R v Wallace

[1994] QCA 579

COURT OF APPEAL

[1994] QCA 579

FITZGERALD P
PINCUS JA

DOWSETT J

CA No 451 of 1994
THE QUEEN
v.

TIMOTHY JAMES WALLACE Applicant

BRISBANE
..DATE 01/12/94
THE PRESIDENT: This is an application for leave to appeal
against sentences imposed in the District Court at Brisbane on
18 October 1994. The applicant was convicted on his own plea
of 19 counts of indecent assault, seven counts of an indecent
act and one count each of serious assault and common assault.

He was sentenced to imprisonment for two years on the

indecent assault counts, imprisonment for one year on the
counts of an indecent act, two years' imprisonment for the
serious assault and nine months' imprisonment for common
assault.

The applicant seeks to appeal against the sentences on the ground that they were manifestly excessive. On various dates between 24 February 1993 and 11 March 1994 the applicant committed a series of assaults on females in the West End, Paddington and Highgate Hill areas. Most of the assaults occurred between the hours of 6.30 and 9.30 p.m., and consisted of the applicant walking past the complainant in the street, and as he did so reaching out with his hand and grabbing the complainant's breast.

On some occasions, the applicant exposed himself and began
masturbating in front of the complainant. On a number of
occasions, the applicant followed or chased the complainant
after the assault. The last two counts relate to assaults
made upon a female undercover police officer who was working
as part of an operation to locate the applicant.
When the applicant was apprehended and interviewed by police,
he admitted the offences concerning the undercover officer and
admitted that he indecently assaulted women by grabbing them
on the breast on approximately 40 or 50 occasions. Indeed,
the frequency of his behaviour became such a problem that some
victims experienced a second incident and some victims met
other victims in the same area after their assaults. Needless
to say the complainants, 20 women in all, were obviously
distressed and upset by the applicant's behaviour,
particularly as they were merely walking on the street at the
relevant times going about their business.

Many of the complainants understandably reacted with shock, fear, distress, disgust and anger. The attacks were clearly unprovoked and represented blatant disregard for the concerns and safety of the women. The applicant is 32 years old and has a reasonably good work history. He was in employment at the time of the offences. However, his personal circumstances meant that he was from October 1993 until the time of his arrest apparently living in his car and eating and sleeping at a truck stop. He has a criminal history which is minor and irrelevant for present purposes.

A report from a psychiatrist was tendered and another from a psychologist. In substance, those reports say little relevant for present purposes beyond that the offences were out of character or very much out of character, and largely related to a state of anger in which the applicant found himself after the break-up of a domestic relationship. It was submitted on behalf of the applicant that the sentences are manifestly excessive having regard to his cooperation with police, the circumstance that the proceedings were by way of ex officio indictment, his plea of guilty and his remorse which it was said was manifested by his omission to seek bail, recognising that he should be incarcerated. The time spent in custody prior to sentence, almost 26 weeks, was also relied upon and the applicant's efforts at rehabilitation in custody were referred to.

It was submitted that despite the number of the applicant's offences, they are not examples of the most serious offences of this type, and that the sentencing Judge failed to give adequate weight to the matters of mitigation which were raised. The respondent emphasised that the Court must protect the right of women to be able to walk the streets free of fear of harassment, and while allowance is to be given for the applicant's admissions and pleas, that must be tempered by the fact that he was caught in the act.

Individual offences taken in isolation could be said to be at
the lower end of the scale of seriousness, but the real
criminality derives from the number of the offences,
additional verbal threats which were made, that some of the
victims were followed, that the applicant drove around looking
for his victims, that he attempted to resist apprehension by
the female police officer by twice pushing her to the ground
and some reliance was placed, although in my opinion,
inappropriately on the previous convictions.
The time spent by the applicant in custody prior to sentencing
has been directed to be taken into account as time served
under the sentences and is accordingly, in my opinion, of
little relevance for present purposes. I can find nothing
manifestly excessive or excessive in any respect in the
sentences, and in my opinion the application should be
refused.

PINCUS JA: I agree.

DOWSETT J: I also agree.

THE PRESIDENT: The order of the Court is application refused.

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