El Noor v The Queen
[2001] WASCA 231
•2 AUGUST 2001
EL NOOR -v- THE QUEEN [2001] WASCA 231
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 231 | |
| COURT OF CRIMINAL APPEAL | 02/08/2001 | ||
| Case No: | CCA:32/2001 | 22 JUNE 2001 | |
| Coram: | KENNEDY J WALLWORK J PIDGEON AUJ | 22/06/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time for applying for leave to appeal and leave to appeal granted Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | RASOULE EL NOOR THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Plea of guilty to two counts of keeping premises for purposes of prostitution Applicant fined $10,000 on each count Applicant given 28 days to pay Payment of fines directed to be enforced under Sentencing Act 1995, s 59(3) Non-payment of fines resulting in 400 days' imprisonment to be served Period for default reduced to 200 days |
Legislation: | Sentencing Act 1995, s 59(3) |
Case References: | R v Belcher (1981) 27 SASR 46 R v Cheshire (1995) 76 A Crim R 261 Gavin v The Queen (1992) 6 WAR 195 Lowndes v The Queen (1999) 195 CLR 665 R v Azaddin (1999) 109 A Crim R 474 R v Nevermann (1989) 43 A Crim R 347 R v Sgroi (1989) 40 A Crim R 197 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : EL NOOR -v- THE QUEEN [2001] WASCA 231 CORAM : KENNEDY J
- WALLWORK J
PIDGEON AUJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Plea of guilty to two counts of keeping premises for purposes of prostitution - Applicant fined $10,000 on each count - Applicant given 28 days to pay - Payment of fines directed to be enforced under Sentencing Act 1995, s 59(3) - Non-payment of fines resulting in 400 days' imprisonment to be served - Period for default reduced to 200 days
Legislation:
Sentencing Act 1995, s 59(3)
(Page 2)
Result:
Extension of time for applying for leave to appeal and leave to appeal granted
Appeal allowed
Category: A
Representation:
Counsel:
Applicant : Mr R A Mazza
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Mazza & Mazza
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
R v Belcher (1981) 27 SASR 46
R v Cheshire (1995) 76 A Crim R 261
Case(s) also cited:
Gavin v The Queen (1992) 6 WAR 195
Lowndes v The Queen (1999) 195 CLR 665
R v Azaddin (1999) 109 A Crim R 474
R v Nevermann (1989) 43 A Crim R 347
R v Sgroi (1989) 40 A Crim R 197
(Page 3)
1 KENNEDY J: The applicant sought an extension of time for leave to appeal against the severity of the fines, each of $10,000, imposed upon him on two counts of keeping a place for the purpose of prostitution, contrary to the provisions of s 209 of the Criminal Code, and against the period of imprisonment he was required to serve in default of payment of those fines. At the conclusion of the hearing on 21 June 2000, this Court granted the applicant an extension of time for leave to appeal against the sentences, granted him leave to appeal and allowed the appeal to the extent of substituting a period of 200 days of imprisonment in default of the payment of the two fines, totalling $20,000, in lieu of the default period fixed under s 59(3) of the Sentencing Act 1995. I now set out my reasons for joining in those orders.
2 The facts placed before the learned District Court Judge were that, between 19 March and 4 August 1999, the applicant kept two premises, situated in Mosman Park and in Victoria Park, for the purpose of prostitution. The premises were rented by the applicant, who employed receptionists to work at each of the premises. The receptionist employed a number of women to provide their services to the men resorting to the establishments. These women operated on a roster system between the hours of 10.00 am and 11.30 pm each day of the week.
3 The applicant also employed a male person to assist him with the collection of the receipts from the premises on a daily basis, from which the rent and any outstanding costs in connection with power, telephone and the day-to-day running of the premises were paid. It appears that the revenue from the premises during the relatively brief period they were operating amounted to approximately $88,000. The applicant had initially invested the sum of approximately $10,000 in the venture.
4 On 4 August 1999, detectives executed a search warrant at the applicant's home in Peppermint Grove, in which they located numerous documents relating to the running of the two premises. The applicant was interviewed by the detectives and admitted to his renting both of the premises which were used by him for the purpose of prostitution, to his paying all bills in relation to them and to his receiving moneys resulting from the activities carried on within the premises. He later pleaded guilty to the two charges brought against him.
5 The applicant was born in Egypt. He enjoyed a privileged upbringing. He obtained a degree in commerce at the London School of Economics after studying in Egypt. He came to Western Australia in 1982. At the time of his arrest, he described himself as being
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- self-employed. He claimed to have previously worked in an importing and exporting business in the United Kingdom. It appears that he was also involved in property dealings. In this State, he embarked upon various business enterprises, including hairdressing boutiques, promotions, mediation services and sports management and training. He is not married and has no dependants. At the time of his sentencing on 17 January 2000 he was 47 years of age.
6 The learned sentencing Judge indicated that, whilst the applicant might have presented as an outwardly respectable business proprietor, on delving into his background, a different picture emerged. He did not have favourable antecedents, having a number of convictions in Perth during 1986, including convictions for assault, for possession of cannabis and for breaking and entering and stealing. He had also accumulated a number of convictions for motor vehicle offences between 1980 and 1990. The applicant had never been imprisoned for any of his criminal offending, but had been either fined or placed on good behaviour bonds, indicating that his offending in each instance had been towards the lower end of the scale. Her Honour also noted that the applicant had been dealt with in Queensland for offences similar in nature to those for which he was to be sentenced by her. In August 1986, he had been fined $750 in Queensland for knowingly participating in the provision of prostitution, and a year later, in September 1997, he had been fined $1500 for a similar offence in Queensland. Despite these penalties, the applicant had failed to learn his lesson and had deliberately engaged in similar illegal behaviour in Western Australia.
7 As her Honour indicated, there was not a great deal to be said on the applicant's behalf in relation to the offences of which he had been convicted by her. He did not have youth on his side, and there were no apparent social, health or emotional problems in his past which might have explained his behaviour, behaviour which the learned sentencing Judge described as being, to a degree, exploitative of other human beings purely for the purpose of his making money. The most which could be said in his favour was that no under-age persons were involved in the businesses.
8 Her Honour acknowledged that the applicant had pleaded guilty to the offences at an early opportunity, and that he should receive credit for this fact in the sentencing process. Her Honour also indicated that she took into account the gravity of the applicant's offending, as well as the maximum statutory penalty for each offence, which was 3 years' imprisonment. Although her Honour regarded the situation as being
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- finely balanced, she did not consider that the applicant had reached the point where he should be sent to prison. She proceeded to impose a fine of $10,000 in respect of each of the two offences. Having done so, she enquired of counsel for the applicant as to whether the applicant should be granted time to pay. She was informed by his counsel that the applicant would need to convert assets into cash in order to pay the fines, and counsel further indicated that he would have thought at least a month would be required "to do that". Counsel said that the assets were such as the applicant would need some time after they had been placed on the market in order to find a buyer, and for any settlement to take place. Nevertheless, counsel confirmed that, in the circumstances, a month would be a reasonable period of time within which the applicant could raise the sum of $20,000.
9 The learned sentencing Judge clearly recognised that the amount which the applicant would have to raise was not insubstantial, and she indicated that she was a little surprised that no more than 28 days had been requested for payment of the fines in full. That surprise on her part was fully justified. Nevertheless, she accepted what she had been told, and indicated that, if this sum were not paid within 28 days, the provisions of s 59(3) of the Sentencing Act 1995 would apply. She did not, on the face of it, consider the other options open to her and, in particular, the power under s 59(1)(b) to fix a shorter period than that fixed under s 59(3), which, at that time, was the amount of the fine divided by $50 and rounded up to the nearest whole number of days.
10 Section 53 of the Sentencing Act, which is headed "Considerations when imposing a fine", provides in subs (1):
"Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account
(a) the means of the offender; and
(b) the extent to which payment of the fine will burden the offender."
11 Subsection (2) of the same section provides that a court may fine an offender even though it has been unable to find out about the matters in subsection (1).
(Page 6)
12 Subsection (3) provides that a court "must not fine an offender if satisfied that after paying compensation to the victim … the offender will be unable to pay the fine within a reasonable time".
13 Section 57(2) of the Sentencing Act provided, at the time of sentencing:
"Unless an order is made under section 58 or 59, a fine imposed by a court must be paid, and may be enforced, under the Fines, Penalties and Infringement Notices Enforcement Act 1994."
14 Section 59(1) of the Sentencing Act relevantly provided at the time of sentencing:
"If a superior court fines an offender for an offence it may order that if the offender does not pay the fine before a date set by the court the offender is to be imprisoned until the offender's liability to pay the fine is discharged…(b) by the offender serving the whole of the period of imprisonment determined under subsection (3), or a shorter period set by the court. ..."
15 By s 59(3) it was provided at the time of sentencing:
"Unless the court sets a shorter period of imprisonment under subsection (1)(b), the period of imprisonment (in days) for the purposes of that subsection is the shorter of
(a) the period determined by dividing the amount of the fine by $50 and rounding the result up to the nearest whole number of days; and
(b) the term of imprisonment, if any, provided by the statutory penalty for the offence concerned."
- Not long after the imposition of the fines on the applicant, s 59(3)(a) of the Act was amended by a regulation made under s 59(4) and gazetted on 3 March 2000 by substituting $150 for $50, resulting in a reduction of two-thirds in the length of the time to be served by an offender in default of payment of a fine.
16 The applicant was unable to raise any money from his anticipated source of funds, his interest in a Queensland film production company known as "Flick Productions". The pre-sentence report did not suggest that, apart from his interest in the company, he was in any financial position to pay the fines. His share in the company had been thought by
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- him to have been worth $100,000. As it transpired, the applicant's interest in the company proved to be worthless, as the film which it contemplated making never reached the stage of production. Other attempts by him to raise money to pay the fines and to fund his appeal against his fines, an appeal which had been recommended by his counsel, proved to be unsuccessful. On 3 December 2000, nearly a year after the fines had been imposed, a warrant of imprisonment was executed against him.
17 A very considerable length of time elapsed between the imposition of the fines and the applicant's application for an extension of time for leave to appeal against his sentences, during which he was endeavouring to raise the amount of his fines. There appears to have been a misunderstanding by the applicant of the advice which he had been given by his counsel regarding his launching an appeal, and this had led to the substantial delay. In an affidavit in support of an extension of time, the applicant deposed that his understanding had been that he could not appeal before he had paid the fines; but all his attempts to raise the necessary funds had failed.
18 There is no doubt that the sentencing Judge was misled into the belief that the applicant would have no difficulty in raising the amount of the fines within the period allowed, although she herself apparently had some misgivings about the time which would be needed for this purpose. The problem which the applicant faced was that his assets proved to be incapable of being converted into cash. The case was unusual, but I was satisfied that, in the circumstances, it would have been unfair to the applicant to require him to serve 400 days' imprisonment when her Honour was not persuaded that a term of imprisonment was called for. Four hundred days' imprisonment is equivalent to the period in custody served by a person sentenced to a term of slightly more than 3 years and 3 months before becoming eligible for parole. Her Honour, however, did not give consideration to the possible consequence of the applicant being unable to pay the fines. In the circumstances, I joined in granting an extension of time for applying for leave to appeal against the sentences.
19 I would not interfere with the amounts of the fines. In R v Cheshire (1995) 76 A Crim R 261 at 270, the Victorian Court of Appeal said in an appeal against the amount of a fine:
"Plainly, we think, it is for the offender to put material before the court relating to financial circumstances: see Higgins (1988) 10 Cr App R (S) 144. If he fails to do so he can hardly expect then to be entitled to a reassessment of his penalty, by an
(Page 8)
- appellate court. At least that must be so, we think, if there are grounds for inferring that the amount of a fine is not such as to cause a burden to the offender which is disproportionate to his criminality."
- As in the present case, in R v Cheshire, counsel for the applicant raised no demur when the fine was imposed, but simply asked for a month's stay of payment, a stay which was granted unopposed. See also R v Belcher (1981) 27 SASR 46. The amount of the fines cannot, in my view, successfully now be challenged.
20 As previously indicated, a number of options were open to her Honour in relation to making provision for the applicant's default in payment of the fines. However, without providing any reasons, she elected, notwithstanding her own reservations, to apply s 59(3), resulting in the period of 400 days' imprisonment in default. That period was substantially more than was necessary in this case, and in my respectful opinion her Honour should have fixed a shorter period of imprisonment in default of payment of each fine.
21 In all the circumstances, and notwithstanding the serious delay in making the application, I formed the conclusion that leave to appeal should be granted and the appeal allowed by substituting a period of imprisonment of 100 days in default of payment of each of the two fines of $10,000, those sentences to be served cumulatively.
22 WALLWORK J: The reasons for judgment of Kennedy J fully express my reasons for joining in the order to allow the appeal.
23 PIDGEON AUJ : I have read in draft the reasons published by Kennedy J. I agree with those reasons and have nothing further to add.
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