The Queen v Hatch[1999] QCA 495

COURT OF APPEAL

de JERSEY CJ

PINCUS JA

HELMAN J

CA No 320 of 1999

THE QUEEN

v.

COLIN TREVOR HATCH Applicant

BRISBANE

DATE 29/11/99

JUDGMENT

THE CHIEF JUSTICE:  The applicant a 27-year-old man was convicted after a five day trial of the offence of unlawfully and indecently assaulting a woman in her house. The applicant was then 25 years old with no prior criminal history. He was sentenced to 18 months imprisonment. He seeks leave to appeal on the ground that the sentence is manifestly excessive.

The complainant then 23 years old had come home to her flat and gone to sleep in her bed. Another occupant of the flat later allowed the applicant in to sleep in another bedroom. The complainant of course had no knowledge of that. The complainant woke up to find the applicant on top of her. She asked him to desist but the applicant in fact proceeded to put his fingers inside her vagina. This caused some pain. She kept asking him to stop. He went on however, as the sentencing Judge put it, forcibly to grope her breasts. The complainant continued to ask him to stop. He again did not do so, this time moving his hand down in between her legs.

She then managed to push him off and ran out of the bedroom to seek help from her flatmate. She left in a taxi. The applicant had earlier left and in so doing made remarks to the complainant which the sentencing Judge noted showed absence of remorse and by contrast a degree of arrogance and a determination to dominate the complainant. Those words which the Judge considered very significant were:

"If I want to sleep with you I will sleep with you. If I want to fuck with you I will deal with it." 

He had earlier spoken derisorily of her saying:

"You are nothing but a child, you are stupid and you have no life, you do nothing, don't be silly."

At the time the complainant's boyfriend was in London. The Judge described her position as vulnerable. The incident greatly upset her. Fearing further contact with the applicant, the complainant a few months later went to New Zealand. The applicant's remorseless attitude was further illustrated by his setting up an alibi rejected by the jury and particularly by his giving evidence at the trial in support of it which he conceded to be false leading to the Judges referring the papers to the Attorney-General.

The Judge also pointed out that in July 1997 the maximum penalty for the offence was increased from 14 years imprisonment to life imprisonment. Apart from his age at the time, 25 years, and lack of previous convictions, that he did not apply great force, a point taken in the applicant's outline, is of some significance in moderating the penalty. On the other hand he persisted for an appreciable period against clear objection and the digital penetration puts the case into a more serious category.

That seriousness is confirmed by the lack of remorse, the intimidatory remarks and the residual effect on the complainant. We were referred to a number of cases, some difficult to reconcile as has frequently been observed here and which is not particularly surprising in this area. Especially allowing for the subsequent increase in the maximum penalty, the earlier cases of Palmer CA 190 of 1990 and Watson CA 58 of 1996 in my opinion provide sufficient support for this sentence of 18 months imprisonment. We were referred by Mr Hutton for the applicant to Knight

CA 370 of 1995 a case which preceded the increase in the maximum and in which, to my mind significantly, the complainant was, as was put by Their Honours, apparently not unduly perturbed by the unsolicited presence and attentions of that applicant.

Allowing for the serious features I have mentioned, the other moderating features, really only two - the applicant's lack of prior convictions and the limits on the force used, did not require a lesser penalty here such that we should conclude that the 18 months term was manifestly excessive. There was I consider no feature which could have justified a recommendation for earlier than usual parole. I would refuse the application.

PINCUS JA:  I agree.

HELMAN J:  I agree.

THE CHIEF JUSTICE:  The application is refused.