Bindi Francis v Police No. Scgrg-97-986 Judgment No. 6328 Number of Pages 7 Magistrates

[1997] SASC 6328

IN THE SUPREME COURT OF SOUTH AUSTRALIA

KING J

Magistrates - jurisdiction and procedure generally - procedure - orders and convictions - sentencing - particular orders - appeal by defendant against order imposed by a magistrate upon the appellant's plea of guilty to two charges of being on premises frequented by prostitutes - good behaviour bond on the condition that the appellant not attend the premises named in the complaint or similar premises - appellant misunderstood effect of order and desires not to enter into bond - appeal allowed - bond cancelled - repeated offending of the appellant called for penalty substantially greater than for previous offences - consideration of sentencing principles and legislation applicable to prostitution offences - in the face of the legislative policy there could be no warrant for approaching the sentencing of repeated offenders on different principles than those applying to recidivists in other types of offending - the task of the court is to impose a penalty within the limits fixed by Parliament in accordance with established sentencing principles - fine of $150 for earlier offence and $350 for later offence. Summary Offences Act 1953s25, 26, 28, 29, referred to. Hayes v Steadman (Unreported, SA Supreme Court, Millhouse J, 4 December 90), discussed.

ADELAIDE, 12-13 August 1997 (hearing), 29 August 1997 (decision)

#DATE 29:8:1997

#ADD 5:8:1997

Appellant:

Counsel:

Solicitors:

Respondent:

Counsel:

Solicitors:

Appearances :

Counsel for appellant: Mr D Sprod

Solicitors for appellant: Scammel & Co

Counsel for respondent: Ms J Lee-Justine

Solicitors for respondent: Crown Solicitor (SA)

Order: appeals allowed.

KING A J

The appellant pleaded guilty in the Magistrates Court to two charges of being on premises frequented by prostitutes. On each charge, the learned magistrate ordered that she be convicted but discharged upon her entering into a bond in the amount of $500 to be of good behaviour and not to attend the premises named in the complaint or "similar premises as the premises named in the complaint". The appellant has appealed against the orders.

On the appeal Mr Sprod for the appellant did not contend against the recording of convictions. He contended, however, that the bonds were inappropriate. He informed me that the appellant does not wish to be bound by a bond because it affects, to use Mr Sprod's words "her right as a citizen of this state to pursue lawful employment...... and was in effect to deprive her of her ability to pursue her occupation" as a prostitute. Mr Sprod conveyed to me his instructions that the appellant believed that she was obliged to enter into the bond and was not aware that she was free to decline and to accept the penalty for the offence. Although she was legally represented before the magistrate, I am prepared to accept that there may have been a misunderstanding and to free her from the bond which she entered into in ignorance of her rights. It therefore becomes necessary to impose the appropriate penalty for the offence.

The appellant has been a persistent offender since December 1996. The date of the subject offences were 3rd April and 25th April 1997. All her prior offences are for being on premises frequented by prostitutes.

Her record is as follows:

Date of Hearing Date of Offence Penalty Convicted 12.02.97 06.12.96 Fine 50.00 Cost and Levy 116.00 $166.00

Convicted 17.02.97 05.12.96 Fine 50.00 Cost and Levy 116.00 $166.00 Convicted 24.02.97 14.12.96 Fine 50.00 Cost and Levy 116.00 $166.00

04.03.97 14.12.96 Without conviction Fine $50.00 Cost and Levy $116.00 $166.00

24.04.97 16.01.97 Convicted Fine $75.00 Costs and Levy $116.00 $191.00

08.04.97 09.02.97 Convicted Fine $60.00 Costs and Levy $116.00 $176.00

17.04.97 08.02.97 Convicted Fine $50.00 Costs and Levy $100.00 $150.00

23.04.97 20.02.97 Convicted Fine $75.00 $116.00 $191.00

24.04.97 10.04.97 Convicted Fine $75.00 Costs and Levy $116.00 $191.00

All the offences listed above were committed before the offence of 25th April and all of the hearings had already taken place.

Such repeated offending, notwithstanding the penalties incurred, would on the established sentencing principles call for a substantially increased penalty on this occasion. The appellant is not to be punished again for her past offences but there are three reasons why an increased penalty would be indicated. The offence itself is made more serious by the element of defiance of the law and determination to persist in the offending conduct, which the repetition indicates. The credit to be obtained for previous good conduct is progressively diminished. Personal deterrence assumes greater importance and as previous penalties have not been an effective deterrent it becomes necessary to increase them.

Mr Sprod, however, argued that while those principles might be of general validity, they do not apply to prostitution type offences. He maintained that prostitution offences are in a special category. He claimed that they are victimless offences, that there is a great deal of sympathy in the community "for persons caught in these circumstances" and that the public is not adversely affected.

I cannot regard the matters advanced by Mr Sprod as valid reasons for not applying ordinary sentencing principles to these offences. It is not the role of the courts to tailor penalties to fit some social theory held by some sections of the public. The social policy which is binding on the courts is that which is embodied by parliament in legislation. Prostitution has been regarded as a social evil and the Prostitute as a person of low moral character in almost every culture and stage of civilisation. That the parliament of South Australia adheres to that time honoured assessment is evident from a number of sections of the Summary Offences Act. In the very section under which the appellant was charged, prostitutes are linked with thieves as persons who should not be allowed to associate together in premises. It is true, as Mr Sprod submitted, that a private transaction involving prostitution is not made an offence. That may be because it is thought that such an offence could never be effectively enforced, or it may be that as it lacks any public element it is considered to be not a fit subject for penal sanctions. The Parliament, however, strikes at prostitution in a number of ways. Soliciting or accosting in a public place for that purpose is prohibited: s25. Living on the earnings of prostitution is prohibited s26. Prostitution in a brothel is struck at by forbidding the receipt of money in a brothel in respect of prostitution: s28(1)(b). Brothels are sought to be suppressed by the prohibition against managing a brothel: s28(1)(a); and against permitting premises to be used as a brothel: s29. In the face of the legislative policy manifested by those provisions, there can be no warrant for approaching the sentencing of repeated offenders on any different principles than those applying to recidivists in other types of offending.

The sympathy which Courts must feel for persons who have allowed themselves to be drawn into a life of prostitution, or indeed a life of vice or crime of any sort cannot deflect them from imposing penalties designed to be a deterrent from repeated offending.

Mr Sprod referred me to Hayes v Steadman, an unreported judgment on an appeal to this Court in respect of a penalty for receiving money in a brothel in respect of prostitution. In that case the learned Judge expressed the view that many if not most members of the community think that it should not be an offence and that parliament should change the law on prostitution, and imposed a fine of $50. Every case as to penalty of course, depends on its own facts. I am bound to say, however, that I would not feel justified in fixing a penalty by reference to any private views which I may hold as to what the law should be in relation to prostitution. That is a matter for parliament. A judge would be no more justified in imposing a small fine because he thought that the conduct should not be an offence than he would be in imposing the maximum fine because he thought that the conduct should be vigorously suppressed and that the penalty fixed by parliament was insufficient. The task of the Court is to impose a penalty within the limits fixed by parliament in accordance with established sentencing principles. Moreover both counsel informed me of the persistent efforts made by the police through the activities of a particular squad, to suppress this type of offending. It is apparent that considerable resources of the state are utilised in those efforts. It seems to me that it is the duty of the courts to impose penalties which provide support to those law enforcement activities.

The maximum fine under the section is $500. The section, of course, applies to reputed thieves as well as to prostitutes, but the section makes no distinction between them. The appellant is a mother of four children for whom she cares and Mr Sprod referred to her means to pay a fine. I informed him, however, that in view of her admitted occupation as a prostitute and her intention to continue in that occupation, I could not take lack of means into account without evidence from the appellant as to her earnings. Mr Sprod did not call the appellant to give evidence. The persistence of the appellant's offending would, on ordinary principles, attract a penalty approaching the maximum. The plea of guilty, however, must be taken into account.

The fines which I impose involve a much greater proportional increase on the penalty for the last offence than would usually be the case. That is because the magistrates on the previous occasions appear not to have increased the level of penalties to take account of the appellant's persistence in her offending. If that had been done the last penalty would have been much greater and the present increase a lot less steep. I think that it is now necessary to impose the penalty which is appropriate in the light of the appellant's persistent unlawful conduct.

The appeals are allowed. The orders made by the magistrate as to penalty are set aside. The bonds are cancelled.

For the offence of 3rd April there will be a fine of $150 with court fees $72, amended injuries levy $28 and prosecution costs $16 making a total of $266. I allow 6 months to pay.

For the offence of 25th April, there will be a fine of $350 with court fees $72, Criminal injuries compensation levy $28 and prosecution costs $16, making a total of $466. I allow 6 months to pay.