The Queen v Nelson[1997] QCA 44

COURT OF APPEAL

FITZGERALD P

DAVIES JA

BYRNE J

CA No 527 of 1996

THE QUEEN

v.

ALLAN WAYNE NELSON Applicant

BRISBANE

DATE 27/02/97

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the District Court on 2 December 1996 to four counts of indecent assault between 17  August 1993 and 7 November 1993.  He was sentenced on the same day to 12 months imprisonment suspended after three months with an operational period of three years.  He seeks leave to appeal against that sentence.

The applicant was 38 years of age at the time of the commission of these offences and he is now 41.  The substantial delay between the commission of these offences and his conviction and sentence was caused in part by his undergoing a term of imprisonment in New South Wales which commenced in June 1995.

This was a sentence of two years imprisonment for which he was required to serve a minimum term of 18 months, for attempting to obtain financial advantage by deception.  He had two earlier offences of conspiracy neither of which had resulted in terms of imprisonment.

The applicant who had been a private investigator was at the relevant time conducting a course in private investigation in which the complainant, a woman of 30 years of age had enrolled.  Three of the four acts of indecent assault committed on the complainant were committed on her during class and in front of other students.

These incidents may be described briefly as follows.  On the first occasion the applicant came up to the complainant when she was sitting at her desk and said to her, "If you keep sitting like that I'll fuck you".  She responded, "Like hell".  The applicant then came closer, pressed his right hand against her breast and his groin against her thigh.  He then leaned towards her and whispered, "I'm going to fuck you".  She pushed him away and said that she felt very embarrassed and humiliated by the incident.

On the second occasion, the complainant had fallen asleep at her desk.  She woke to find the applicant grabbing her legs, placing them over his shoulders, and pushing his pelvic area into her pelvic area.  She was frightened and called out "Don't" and pulled her legs down.

The third incident, occurred in the office area but in front of three male students. The applicant walked up to the complainant, put both his hands on the side of her breasts and rubbed them slowly.  He then pulled her in close to him pressing his pelvic area against her.  He held her quite tightly.  During the course of this or immediately afterwards, he said something to the effect that he wanted to fuck her.  Again the complainant was embarrassed and walked out of the room.

The fourth incident occurred when the complainant and the applicant were in a car practising mobile surveillance apparently alone.  The complainant got into the drivers seat and did her seat belt up.  The applicant grabbed the seat belt and touched her breasts making the comment, "I love women in seat belts because it goes between their boobs".  The complainant brushed his hand away and said, "Don't" and they then drove off. These events caused the complainant considerable distress and were as she said, and I would accept undoubtedly, humiliating and distressful.  She consulted a doctor who prescribed antidepressant pills which she took for a time.  The applicant's prior history although of no direct relevance to these offences is nevertheless of general relevance to show his private prior involvement in anti-social, indeed dishonest behaviour, and the fact that he had previously undergone a term of imprisonment.

He had served in the armed forces overseas and had worked as a private investigator, although it would seem that after his earlier convictions he would no longer have been able to obtain a licence for that work.  There was no mention of any work history apart from the occupation which he was engaged at the time of these offences since then.  It was also mentioned on his behalf that he had done some charity work and that he suffered from a heart condition.

His plea of guilty, of course, must also be taken into account to his credit.  However, it should not be taken as an indication of remorse in view of his subsequent conduct in terminating the complainant's occupation of premises and suing for defamation, and offering to withdraw those proceedings only if these proceedings which continue to his conviction were withdrawn.

Mr Shanahan, who appears for him today also submitted that had he been sentenced for these offences before he had commenced his New South Wales prison term, or even while he was undergoing it perhaps, it would not have resulted in any greater effective term of imprisonment and that consequently he was being in fact penalised because of the delay in the prosecution.

It does appear that some attempts were made on his behalf to have him returned to Queensland for the purpose of this prosecution at an earlier date.  However, I can see no reason why a sentence for these offences should have been served concurrently with that, or the earlier offences, which were widely separated in time and place, and of a quite different kind.  Nor is there any suggestion before us that the sentence imposed in respect of the other offences was other than merely appropriate.

I do not think that, having regard to the circumstances of these offences and the applicant's prior criminal history, the learned sentencing Judge was unjustified in imposing a term of imprisonment.  The only question is whether the term which he imposed was too long.  Mr Shanahan relies primarily on a case of Matthews (C.A. No. 307 of 1993, judgment delivered 14 October 1993) for the submission that it was too long.

That case involved several offences occurring on one day.  The complainant was a young woman at her first day at a new job.  The person assigned to teach her her work after sitting beside her for some time suddenly started kissing her on the lips and cheeks and while doing so kept her pinned down in a chair.  As he did this he said he knew she wanted to have sex with him.  He then grabbed her breasts both outside and inside her clothing and attempted to put his hands down the front of her pants. 

Eventually he desisted and went to make some coffee.  He then returned and began kissing her again and grabbing her breasts.  She then commenced to cry and he then left her alone and apologised.  She then went to the kitchen of the office for a glass of water.  He followed her, pinned her against the wall, and kept grabbing at her breasts and putting his hand down the front of her pants once again.  Again he said that he knew she wanted to have sex with him, while she insisted that she did not.  She immediately telephoned her doctor and her parents.  In that case a sentence of one year's imprisonment in respect of three counts of indecent assault was reduced on appeal to one of six months' imprisonment.

The assaults there appear to be arguably more serious and frightening than those here.  The complainant there was alone and would have cause to be frightened.  On the other hand, as was mentioned during the course of argument, because these offences or three out of four of them occurred in front of other people they would undoubtedly have been more publicly humiliating and it is difficult in my view to say which of the two would have been worse, so far as distress to the complainant was concerned.

However, in Matthews the applicant was a 33-year-old married man, had a continuous work record following army service and, even more importantly, had no previous convictions of any kind.  That case, in my view, does not indicate that the sentence which was imposed in this case was excessive, nor in my view do the circumstances of the offences or the prior history of the applicant indicate that the sentence was outside the range of a sound sentencing discretion.  I would therefore refuse the application.