Glover v The Queen

[2016] NSWCCA 316

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Glover v R [2016] NSWCCA 316
Hearing dates:	26 October 2016
Date of orders:	21 December 2016
Decision date:	21 December 2016
Before:	Gleeson JA Fagan J N Adams J
Decision:	1. The appeal against conviction is dismissed. 2. Leave is granted to appeal against severity of sentence. 3. The appeal against sentence is dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction – convicted of causing a child to participate in an act of child prostitution – convicted of exercising lawful control over premises in which a child participated in act of child prostitution – Crimes Act 1900 (NSW), ss 91D, 91F – whether duplicity – whether double jeopardy – distinction between elements of each offence – whether evidence supporting one charge was sufficient to procure conviction upon the other charge   CRIMINAL LAW – appeal against sentence – whether manifest excess
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code (the Schedule to the Criminal Code Act 1995) (Cth) Copyright Act 1968 (Cth) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Nahlous v The Queen (2010) 77 NSWLR 463 [2010] NSWCCA 58 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Dodd (1991) 56 A Crim R 451 The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 The Queen v Elrington (1861) 1 B & S 688; 121 ER 870
Category:	Principal judgment
Parties:	Mark Ronald Glover (appellant) Regina (respondent)
Representation:	Counsel: Mr Peter Little (appellant) Mr Eric Balodis (respondent)   Solicitors: Mr Monty Stidwill, Stidwill Solicitors (appellant) Mr Craig Hyland, Office of the Director of Public Prosecutions (respondent)
File Number(s):	2011/201182
Publication restriction:	Pursuant to suppression orders made by Bennett DCJ on 1 May 2016 the complainant the subject of counts 1, 2, 3 and 6 is to be referred to as ER for publication purposes, and the complainant the subject of counts 4, 5, 7 – 10 is to be referred to as RE for publication purposes.
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Citation: Not published Date of Decision: 06 March 2015 Before: Bennett DCJ File Number(s): 2011/201182

Judgment

1. THE COURT: On 6 March 2015 the appellant, Mark Ronald Glover, was sentenced by his Honour Judge Bennett in the District Court to an aggregate sentence of 10 years imprisonment including a non-parole period of 6 years for ten offences of a sexual nature involving two juvenile female complainants. His Honour had found the appellant guilty on all counts after a judge alone trial over 14 days in May 2014. The appellant now appeals his conviction on some of the counts and seeks leave to appeal the severity of the sentence.

2. The following are the counts and the sections of the Crimes Act 1900 (NSW) under which the appellant was charged and convicted, together with the indicative sentences nominated by his Honour for each count and the maximum penalties.

1. Between 1 August 2000 and 13 November 2001 at Parramatta caused a child (ER) to participate in an act of child prostitution contrary to s 91D(1)(a). Indicative sentence: 4 years. Maximum: 10 years (ER having been over 14 years old during the offence period).

2. Between 1 August 2000 and 13 November 2002 at Parramatta exercised lawful control over premises (5 Rosehill Street, Parramatta) in which a child (ER) participated in an act of child prostitution contrary to s 91F. Indicative sentence: 3 years. Maximum: 7 years.

3. Between 1 August 2000 and 13 November 2000 at Parramatta had sexual intercourse with a child (ER) aged 15 contrary to s 66C. Indicative sentence: 3 years 6 months. Maximum: 8 years.

4. Between 9 June 2001 and 9 June 2003 at Warwick Farm exercised lawful control over premises (Grandstand Motel, Warwick Farm) in which a child (RE) participated in an act of child prostitution contrary to s 91F. Indicative sentence: 4 years. Maximum: 7 years.

5. Between 9 June 2001 and 9 June 2003 at Warwick Farm caused a child (RE) to participate in an act of child prostitution contrary to s 91D(1)(a). Indicative sentence: 4 years. Maximum: 14 years (RE having been under 14 years old during the first part of the offence period, up to mid June 2002).

6. On 13 March 2002 at Sydney caused a child (ER) to participate in an act of child prostitution contrary to 91D(1)(a). Indicative sentence: 4 years. Maximum: 14 years.

7. On 21 August 2004 at Sydney caused a child (RE) to participate in an act of child prostitution contrary to 91D(1)(a). Indicative sentence: 4 years. Maximum: 10 years (RE having been over 14 years old at the date of the offence).

8. On 23 August 2004 at Sydney caused a child (RE) to participate in an act of child prostitution contrary to 91D(1)(a). Indicative sentence: 4 years. Maximum: 10 years.

9. On 27 August 2004 caused a child (RE) to participate in an act of child prostitution contrary to 91D(1)(a). Indicative sentence: 4 years. Maximum: 10 years.

10. On 1 September 2004 caused a child (RE) to participate in an act of child prostitution contrary to s 91D(1)(a). Indicative sentence: 4 years. Maximum: 10 years.

3. The Notice of Appeal filed 31 May 2015 relies upon the following grounds:

4. “Conviction: …

5. 3. All counts of a particular time ‘caused a child to participate in an act of child prostitution’ and ‘exercising lawful control over premises in which a child participated in an act of child prostitution’ are bad for duplicity and placed the accused in double jeopardy. …

6. Sentence:

7. 1. The sentence was manifestly excessive.”

8. Grounds 1, 2, 4 and 5 in support of the conviction appeal, as they appeared in the Notice of Appeal when it was filed, were not pressed by the appellant at the hearing on 26 October 2016.

Facts regarding ER – counts 1, 2, 3 and 6

9. The child who was the subject of counts 1, 2, 3 and 6, ER, was aged 15 years in the second half of 2000 and turned 16 in November of that year. She had been using heroin from the age of 12 years. The learned trial judge found that in the later months of 2000 but before her sixteenth birthday ER was introduced to the appellant by a prostitute named Marge. ER accompanied Marge to the appellant’s home at 5 Rosehill Street, Parramatta. There, he instructed her to have a shower; that a man was waiting for her in a room; that she was to ask the man what he wanted and then collect payment from him and give it to the appellant before carrying out the man’s wishes. ER complied with the instructions, received payment of $170 and had sexual intercourse with the man. The money was shared 60% to ER and 40% to the appellant.

10. After this the appellant offered ER some extra money for heroin if she would have sex with him. She agreed and they engaged in sexual acts. ER then left the appellant’s home and stayed with Marge for about a week. After that ER returned to the appellant’s home and took up residence there. When ER commenced to live at the appellant’s home he told her she should give him a little money toward board and use her own money for personal needs. The appellant placed weekly advertisements in a number of newspapers offering prostitution services. He instructed ER that if clients attended at the residence wishing to have sex with her for payment, provided that they looked trustworthy she should tell them she was 15 years of age as the fact that she was under 18 was her selling point.

11. Clients regularly attended at the Rosehill Street house and ER provided sexual services to them for payment. The appellant locked ER in the house after she finished work at 3:00 pm each day. On some occasions clients contacted the appellant and wanted ER to go to another location for the purpose of providing sexual services. In those cases the appellant drove her to the location and an additional $60 was charged. The appellant would wait in his car at the place where the meeting with the client took place and knock on the door upon expiry of the time for which the client had paid.

12. At some time after ER commenced working as a prostitute in this fashion at the appellant’s home, the local government authority in respect of that address contacted him and issued warnings concerning the conduct of prostitution at the premises. At one time a $10,000 fine was imposed. Following this for about a year the appellant drove ER to the Grandstand Motel on the Hume Highway at Warwick Farm every day and arranged for clients to meet her there to receive her sexual services for payment. For about a further four years after that a pattern was adopted of ER providing her services at the appellant’s Rosehill Street home on three days per week and at the Grandstand Motel for another three days. ER continued to work as a prostitute in association with the appellant in this manner for 11 years from late 2000.

13. In respect of all of ER’s prostitution the appellant wrote down how much was received, how much ER owed to him and how much he had spent on her behalf. The appellant regularly went out from his home address and purchased heroin for ER from sources that were known to him. The drugs were paid for out of ER’s share of the takings from her prostitution.

14. In the trial the appellant gave evidence and did not contest that ER engaged in prostitution over the period of the s 91D and s 91F charges that concern her, counts 1, 2 and 6, or that he was aware she did so and that he maintained records in respect of her activities. However he contested that he had caused ER to engage in prostitution. He also claimed that he had not come into contact with ER until January 2001, when she would have been 16 years of age. The learned trial judge resolved both these issues against the appellant beyond reasonable doubt. His Honour was satisfied that the first introduction by Marge, as described at [5], occurred in late 2000 before ER’s sixteenth birthday.

15. His Honour found count 1 proved by the facts summarised at [5] – [7] and [9]. The events referred to at [5] were the only specific instance of the appellant causing ER to engage in prostitution which was described in ER’s evidence. Otherwise she described in general terms the modus operandi of the appellant’s activities in connection with her prostitution. Count 2 was found proved on the facts referred to at [5] – [7]. The facts of count 3 are as stated at [6]. Count 6 was found proved on the basis of an entry in a diary maintained by the appellant which was specific as to ER having performed sexual services for reward under arrangements with the appellant on the date pleaded in this count, namely 13 March 2002.

Facts regarding RE – counts 4, 5, 7 – 10

16. RE was the child who was the subject of counts 4, 5 and 7 – 10. She was born in mid June 1988 and turned 18 in 2006. Thus the charge periods for all the counts concerning her relate to times when she was less than 18 years old. She turned 14 in mid June 2002 which is significant because during the charge period for count 5 she was less than 14 years of age and the maximum penalty under s 91D(1)(a) was therefore 14 years imprisonment, as opposed to 10 years imprisonment for counts 7 – 10 when she was over 14 years of age.

17. RE had run away from home when she was 12 years of age and had commenced working as a prostitute soon after, aged 12 or 13 years. She first met the appellant in about May or early June 2001 when she was just under 13 years. He approached her on the street when she was offering herself as a prostitute. He gave her a business card with his phone number on it and invited her to call him if she wished to work as a prostitute in conjunction with him. She did call and arranged to meet him because she had had numerous experiences of providing sexual services and then not being able to obtain payment from her clients.

18. RE later telephoned the number the appellant had provided and arranged to meet him at his house. At this meeting they agreed she would work for $90 per half-hour. Receipts would be split 60% to her and 40% to him. He helped to arrange a means for potential clients to contact with her, involving a “chat line” which she would ring and on which she would leave her description and a number clients could call. The number provided was of a “work phone” supplied to RE by the appellant. It was agreed that sometimes she would work at the appellant’s residence at 5 Rosehill Street, Parramatta and at other times from a hotel room for which she would have to pay. RE worked to these arrangements with the appellant until she was either 19 or 20 or 21. That is, possibly up to as late as June 2009. As events transpired she usually worked at a hotel rather than at the appellant’s house.

19. The hotel used under the above arrangements was the Grandstand Motel at Warwick Farm. Unlike ER, RE did not reside in the appellant’s home at Rosehill Street, Parramatta. Whenever RE worked, the appellant picked her up from where she was living, drove her to the Grandstand Motel and hired a room, then waited for clients to ring on the “work phone” and made bookings for their attendances. The appellant required RE to meet with each client and collect payment from him first, take the money to the appellant who waited in his car in the hotel car park and then return to the room to provide the client with sexual services.

20. RE told the appellant how old she was when she first commenced to work with him in this manner, namely 13 years, and he instructed her to lie to clients and say that she was older than in fact she was. RE had a break from working in this fashion with the appellant in the second half of 2003 and possibly into the first part of 2004, when she was aged 15 years. She then returned to work at the Grandstand Motel during 2004 in conjunction with the appellant, as earlier described. She also performed “out calls” meaning that she would attend at locations nominated by the client for the purpose of providing sexual services to them. The appellant drove her to these locations.

21. The appellant kept a written record of monies received from RE’s work as a prostitute and of the distribution of the money between the two of them. The Crown tendered written records which had been maintained by the appellant. Counts 4 and 5 were found proved by his Honour on the basis of the facts summarised in [13] – [16], which were proved through the evidence of RE herself and strongly corroborated, as his Honour found, by the records of the prostitution business kept by the appellant. It was on the basis of the records that counts 7 – 10, alleging that the appellant caused RE to participate in acts of child prostitution on specific dates, were laid and proved.

Elements of count 1 – offence contrary to s 91D against ER

22. During the charge period in count 1, s 91D under which that count was laid provided as follows [extracted so far as relevant]:

“91D   Promoting or engaging in acts of child prostitution

(1)  Any person who:

(a)  by any means, causes or induces a child to participate in an act of child prostitution, …

is liable to imprisonment for 10 years or, if the child is under the age of 14 years, to imprisonment for 14 years.

(2)  Except where the child and the other person alleged to have participated in the act of child prostitution are both male, a person is not guilty of an offence under this section if the person satisfies the court:

(a)  that the child was not under the age of 14 years when the offence is alleged to have been committed, and

(b)  that the child consented to the act of child prostitution, and

(c)  that the person had, when the offence is alleged to have been committed, reasonable cause to believe, and did in fact believe, that the child was a person of or above the age of 18 years.

(3)  The consent of a child is not a defence to a charge relating to an offence under this section, except as provided by subsection (2).”

23. The terms used in s 91D were defined in s 91C as follows:

“91C   Definitions of “act of child prostitution”, “child”

For the purposes of sections 91C–91G:

act of child prostitution means any sexual service, whether or not involving an indecent act:

(a)  that is provided by a child for the payment of money or the provision of any other material thing (whether or not it is in fact paid or provided to the child or to any other person), and

(b)  that can reasonably be considered to be aimed at the sexual arousal or sexual gratification of a person or persons other than the child,

and includes (but is not limited to) sexual activity between persons of different sexes or the same sex, comprising sexual intercourse (as defined in section 61H) for payment or masturbation committed by one person on another for payment, engaged in by a child.

child means a person who is under the age of 18 years.”

24. In finding the appellant guilty on count 1 his Honour held that it was not necessary for the Crown to prove that the appellant was the sole or even a substantial cause of ER engaging in prostitution: 31 July 2014, T 17 – 20. It would be sufficient to sustain the charge, in his Honour’s view, if the appellant’s conduct was a cause of the child participating in an active prostitution and “the degree by which the means alleged caused participation might inform the level of culpability for which the accused should be punished”: 31 July 2014, T 20.

25. His Honour held as follows at T 20 – 21:

“If the Crown proves that the accused by any means caused the child to participate in an act of child prostitution, and though the child might have been acquiescent and even willing to so engage, and even though the child had been engaged in child prostitution at the time the accused person involved themselves [sic] with child in these activities, the Crown will have succeeded in proving this element in respect of the occasion alleged. It might not be possible upon the evidence to identify precisely or entirely the means employed by an accused that caused the child to participate in the act of child prostitution alleged, and there might well be multiple acts of prostitution shown on the evidence to have occurred within the period charged, but if the only rational conclusion to draw from the circumstances established by the evidence is that the accused employed means that were to some degree causative of the child’s participation in one or more of the acts of child prostitution upon which the child engaged in the period charged the Crown will have succeeded in proof of this essential element.

If, on the other hand, the conduct of the accused was not causative of the child’s participation, and even though the child in fact engaged in child prostitution exploiting the accused’s facilities to do so, the Crown would fail at this point.”

26. These conclusions on the interpretation and operation of s 91D are not contested on the appeal. The acts which his Honour found the appellant had carried out and had been in some degree causative of ER participating in child prostitution during the period August 2000 to November 2001 were as described by ER herself. At T 13 on 8 August 2014 his Honour accepted ER as “reliable and truthful” with respect to her assertions regarding the appellant’s management of her as a child prostitute. Particulars of the appellant’s causative acts found proved on the evidence were as follows:

1. Allowing ER to use the appellant’s house at 5 Rosehill Street, Parramatta as location where ER could provide sexual services for payment, thereby facilitating her participation in this work.

2. Introducing ER to a client on her first attendance at the appellant’s home.

3. Thereafter advertising the availability of ER’s sexual services in local newspapers and facilitating introduction to ER of potential clients who responded to the advertisements.

1. Advising ER to understate her age as a means of encouraging the interest of clients.

2. Driving ER to locations nominated by clients for the purpose of her providing sexual services.

3. Driving ER to the Grandstand Motel at Warwick Farm and hiring a room there for the purpose of facilitating the provision by ER of sexual services to clients.

4. Instructing ER to collect payment from clients before she provided sexual services to them; then receiving the payment from her, dividing it with her and generally managing the application of this revenue from her activities.

27. On these findings of primary facts, coupled with the uncontested evidence that ER did in fact participate in prostitution whilst a child under the arrangements described, his Honour’s conclusion that the acts of the appellant were a cause of ER’s prostitution was inevitable. The appellant has not argued otherwise on the appeal.

28. The essence of the offence against s 91D(1)(a) lies in the causing by the offender of the child’s participation in child prostitution. As in the present case, making available premises at which sexual services may be provided by the child can be a particular of the offender’s causative acts. But provision of premises is not essential to the charge. An offence against the section may be committed by causative acts which entirely exclude this.

Elements of count 2 – offence contrary to s 91F concerning 5 Rosehill Street

29. During the charge period for count 2, s 91F provided as follows:

“91F   Premises not to be used for child prostitution

(1)  Any person who is capable of exercising lawful control over premises at which a child participates in an act of child prostitution is liable to imprisonment for 7 years.

(2)  For the purposes of this section, each person:

(a)  who is an owner, lessee, licensee or occupier of premises,

(b)  who is concerned in the management of premises or in controlling the entry of persons to, or their movement within, premises,

is to be considered as capable of exercising lawful control over the premises, whether or not any other person is capable of exercising lawful control over the premises.

(3)  A person is not guilty of an offence under this section relating to an act of child prostitution if the person satisfies the court:

(a)  that the person did not know about the act, or

(b)  that the person did not know that a child was participating in the act or, for any other reason, did not know that the act was an act of child prostitution, or

(c)  that the person used all due diligence to prevent the child from participating in the act.”

30. With respect to count 2, there was no dispute that the appellant was the owner and occupier of 5 Rosehill Street, Parramatta and was therefore capable of exercising lawful control over the property by force of subs (2) of s 91F. Even without the operation of that subsection, the evidence of both ER and the appellant was sufficient to have satisfied his Honour that the appellant in fact exercised lawful control over the property. This was not in issue at the trial. The defence under subs (3) was not proved.

31. When the elements of this offence are considered together with the affirmative defence provided for in subs (3) it may be seen that its gravamen lies in the failure to exercise, with due diligence, lawful control over premises to prevent them from being used for child prostitution. This section may be regarded as creating a statutory obligation of a person with the capacity for lawful control of premises to exercise that control for the preventive purpose, on pain of criminal sanctions. No element of causing the prostitution which in fact takes place on the premises is involved in the commission of the offence.

Ground 3 – asserted duplicity or double jeopardy in counts 1 and 2

32. Under ground 3 the appellant submitted that in s 91D(1)(a) the element that the offender “causes” a child to participate in an act of child prostitution “includes inter alia the provision of premises and … s 91F is aimed at those people whose engagement in child prostitution is limited to the provision of premises not to those people who cause an act of child prostitution”. That argument is rejected. The language of s 91F is very clear and simple. There is no warrant for reading into it a restriction that the offence can only be committed if the offender, being a person capable of exercising lawful control over premises in which child prostitution takes place, does not by any act cause the child to participate in the prostitution.

33. The appellant did not cite any aspect of the history of the legislation, such as precursor provisions or second reading speeches, nor any authority to support the contention. Nor was it supported by reasoning. On the plain meaning of its language, s 91F creates an offence in its terms, whether the offender who lawfully controls the premises does or does not also cause the relevant child to participate in prostitution, either by allowing the premises to be used for that purpose or by other acts of encouragement or both.

34. The law relevant to duplicity and double jeopardy as argued by the appellant pursuant to ground 3 was the subject of thoroughly researched written submissions prepared by Crown counsel on the appeal, in which the authorities were categorised and analysed in a manner which was of great assistance to the Court.

35. So far as ground 3 asserts duplicity in relation to counts 1 and 2 it appears to be misconceived. Duplicity arises where one count on an indictment charges two or more separate offences. This may occur, for example, where the acts alleged as constituting the infringement of a statutory provision in fact amount to two or more discrete instances or occasions of infringement. Duplicity may be patent on the face of the indictment if the pleaded particulars of the offence show multiple instances or it may be latent and only become apparent when the Crown opens its case or tenders evidence.

36. There is no duplicity in the pleading of counts 1 and 2 as laid against the appellant. Nor did any duplicity emerge in relation to either count from the evidence which the Crown led. Both charges were substantiated by proof of a course of conduct (in the case of count 1) or a continuing situation and relationship (in the case of count 2) which endured over a span of more than a year. Each provision was capable of being infringed, in a single offence, by such a course of conduct or continuing situation. Neither the Crown case on count 1 nor that on count 2 constituted an attempt to prove any more than one infringement of each of the sections respectively.

37. The appellant’s contention that counts 1 and 2 involved double jeopardy is concerned with the branch of that subject which relates to the situation of two or more statutory prohibitions applying to the same set, or overlapping sets, of primary facts. There are other aspects of the meaning of double jeopardy which are not directly applicable here: see Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [9]; The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 at [9] and [84].

38. R v Dodd (1991) 56 A Crim R 451 illustrates the principles which are to be applied in the resolution of ground 3. The offenders in that case were charged under the Drug Misuse and Trafficking Act 1985 (NSW) with possession of a prohibited drug, namely 4 g of heroin. That is a summary offence created by s 10. They were each convicted of that offence in the Local Court but then indicted under s 25 of the Act, in respect of the same quantity of heroin on the same occasion, on a count of supplying a prohibited drug. This charge invoked the deeming effect of s 29 pursuant to which they were taken to have had the drug in their possession for supply by reason that the 4 g exceeded the trafficable quantity (as defined by the statute).

39. It was held by this Court that the appellants were entitled to raise a plea in bar to the charge under s 25, analogous to autrefois acquit. At 457 Gleeson CJ held:

“There are many forms of conduct which are capable of giving rise to multiple breaches of the law. In Australia it is not the law that a person cannot be prosecuted for a number of offences just because they all arise out of the same act or course of conduct: cf Australian Oil Refinery Pty Ltd v Cooper (1989) 11 NSWLR 277. The rule with which we are presently concerned is one which prevents more than one prosecution for the same offence and which also applies to prevent prosecution for an offence which is merely an aggravated form of an offence for which a person has already been punished.”

40. His Honour cited The Queen v Elrington (1861) 1 B & S 688; 121 ER 870 in which all members of the House of Lords had agreed that the test whether a party who had been accused of a minor offence and acquitted or convicted was being charged again on the same facts in a more aggravated form was “whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first” (in Gleeson CJ’s paraphrase at 454). The Court held that in the case of each offender “the offence first dealt with (possession) was a necessary element of the offence charged in the indictment (supply, which in this case by definition meant possession for the purpose of supply), and the latter offence was an aggravated form of the former offence in that the evidence required to secure a conviction on the latter offence would necessarily have sustained a conviction on the former”.

41. As particularised and proved, the primary facts relevant to both counts 1 and 2 were that the appellant had lawful control of his home at 5 Rosehill Street and that ER worked there as a prostitute. However, the offence in count 1 consisted of the appellant making the premises available to ER for the conduct of her prostitution and by that means together with other encouragement and facilitation causing her to participate in that prostitution. The offence in count 2 consisted merely in the appellant being capable of exercising lawful control over the premises at which ER participated in an act of child prostitution.

42. It cannot be said that the lesser offence (against s 91F), as particularised and proved, is comprehended within the offence against s 91D. The gravamen of the lesser offence is a failure to exercise control over premises to prevent certain conduct of one or more other persons. The gravamen of the s 91D offence is the active causation of another’s conduct. The s 91D offence is not merely an aggravated form of the s 91F offence; it is entirely different.

43. Applying the test which Gleeson CJ adopted in R v Dodd from The Queen vElrington, the evidence necessary to secure conviction on the charge under s 91D(1)(a) would not have been sufficient also to secure conviction on the s 91F count. In order to prove the offence of causing ER to participate in child prostitution, it was not necessary to prove that she had undertaken that activity at any particular location. It was not necessary to prove that she had done it at premises under the appellant’s control. The charge under s 91D could have been proved without reliance upon this particular of the appellant’s causative conduct, at all. Even in so far as the Crown did rely upon the appellant providing ER with premises at which she could provide her sexual services, it was not necessary to the Crown case on the s 91D count to show that the appellant was capable of exercising lawful control over the premises which he made available for that purpose.

44. The judgment of Gleeson CJ in Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 contains some general statements of principle which confirm the effect of R v Dodd. His Honour said at 507G – 508A:

“Where an act of Parliament makes a certain type of conduct an offence, and imposes a penalty, the offence will usually be characterised in terms of a certain quality or attribute that may be attached to the primary facts. Different statutes may fasten upon different qualities or attributes of the same set of primary facts to create separate offences. To assert that a person may not be convicted of multiple offences for the same facts invites a request for a more precise definition of the relevant facts.”

45. His Honour continued at 508E as follows:

“Where two or more different statutory prohibitions apply to the same set of primary facts, this will often be because each prohibition fastens upon some different aspect of those facts and makes it the gist or gravamen of the offence. It may be that one particular feature of the facts is immaterial for the purpose of one prohibition and material for another.”

46. Gleeson CJ made these observations upon the decision in R v Dodd, at 509 A – B:

“The decision of this Court in R v Dodd involved the application to the facts of the case of orthodox principles, expressed in terms of double jeopardy for the same offence. … The significance of Dodd, however, is that the Court was prepared to look to the substance of the two relevant offences in terms of the particulars of the charges in the light of the facts of the case. The appellants, having been convicted of possessing illegal drugs, could not later be convicted of supplying them, because, in the circumstances of that case, the charge of supply meant, and meant only, possession for the purpose of supply, and consequently the second alleged offence was merely an aggravated form of the first.”

47. The authority of the above two decisions has been confirmed in Pearce v The Queen. In the judgment of McHugh, Hayne and Callinan JJ at [20] their Honours adverted to the established test for whether a plea in bar would lie as being “whether the evidence necessary to support the second charge [charge or prosecution] would have been sufficient to procure a legal conviction upon the first”. Their Honours further said:

“[20] … At first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges. Closer examination reveals that the inquiry suggested is different; it is an inquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say. It is only if attention is directed to what evidence might be given, as opposed to what evidence was necessary, that the inquiry begins to slide away from its proper focus upon identity of offence to focus upon whether the charges arise out of the same transaction or course of events.

[21] Further, when it is said that it is enough if the offences are ‘substantially’ the same, this should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration.”

48. This passage supports the approach to comparison of the two charges in the present case which the Court has taken at [36] – [38] above. At [28] McHugh, Hayne and Callinan JJ said:

“Inevitably, any test of the availability of the pleas in bar which considers the evidence to be given on the trial of the second prosecution except in aid of an enquiry about identity of elements of the offences charged would bring with it uncertainties of the kind identified by Scalia J [in Grady v Corbin 495 US 508 (1990)]. The stream of authorities in this country runs against adopting such a test [footnote omitted] and there is no reason to depart from the use of the test which looks to the elements of the offences concerned. Each of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plea in bar could be upheld.”

49. Adopting the last sentence of this passage, it is equally true of the present case. The charge under s 91D(1)(a) required proof that the appellant’s acts in some degree caused ER to participate in prostitution. That was not an element of the offence under s 91F. Similarly count 2 laid under s 91F would only be made out if it should be established beyond reasonable doubt that the appellant was capable of exercising lawful control over premises at which an act of child prostitution by ER took place. No such element had to be proved in order to sustain count 1 under s 91D(1)(a).

50. The charging of these two counts was not amenable to being stayed as an abuse of process under the wider principle applied in Nahlous v The Queen (2010) 77 NSWLR 463 [2010] NSWCCA 58. In Nahlous v The Queen the applicant was charged with four offences under s 135ASB(1) of the Copyright Act 1968 (Cth) of selling unauthorised decoders and two offences under s 135ASC(1) of offering to sell such devices. A decoder is a device which enables pay television services to be received without the recipient paying a subscription for them.

51. One of the counts under s 135ASB(1) concerned the sale of 50 decoders for $15,000, which was received in cash. The applicant in that case was also charged under s 400.6(1) of the Criminal Code (the Schedule to the Criminal Code Act 1995) (Cth) with having dealt with this $15,000 on the basis that it was (and was believed by the appellant to be) proceeds of crime – namely, proceeds of the unlawful sale of the decoders. This Court held it had been an abuse of process for the applicant to have been additionally charged with the Code offence which had consisted solely in the receipt of the $15,000, which was an inherent element of the unlawful sale offence charged under s 135ASB(1).

52. That case is quite different from the present in that a sale in contravention of the Copyright Act necessarily involved delivery of the unauthorised goods in exchange for receipt of payment. That is, the receipt of the $15,000 which was the entire criminal act prosecuted under s 400.6(1) of the Criminal Code was integral to the sale by which the offence against s 135ASB(1) was committed. The Court held as follows:

“[17] We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty. We do not believe that there is anything in Pearce v The Queen (1998) 194 CLR 610 that conflicts with the view that we have taken as to the inappropriateness of the prosecution of the Code offence as well as the decoder offence (see particularly at 621 [31]). We believe that in the circumstances of this case it was oppressive to charge the applicant with both the sale of the decoders and the receipt of the money as a result of the sale. That is because in our view the offence of sale encompassed the criminality of possessing the proceeds of the sale.”

53. In contrast, in the present case the fact of the appellant having lawful control of his home at Rosehill Street, Parramatta was not inherent in or integral to the offence of causing ER to participate in child prostitution contrary to s 91D. The latter offence did not depend solely upon the appellant making his premises available: that was but one particular of his having caused ER to participate in child prostitution. For the s 91D offence it was not necessary that he should have been “capable of exercising lawful control” over his premises. Further, the offence against that section had at its heart causation of ER’s activities which was no part of the s 91F offence.

54. The fact that the appellant now before this Court has been convicted of two offences in which a common circumstance is the use of his home for child prostitution, in one case as a particular of actively causing the prostitution and in the other case as an offence in itself (absent due diligence to prevent the prostitution, which would afford a defence under subs (3)), is a matter to be taken into account on sentence by way of careful regard for the totality of criminality involved. It is not a matter which has given rise to double jeopardy which would have justified a stay of prosecution on one of the charges as an abuse of process or which affects the validity of the convictions on both counts.

Ground 3 – asserted duplicity or double jeopardy in counts 4 and 5

55. Under ground 3 the appellant argued the same points in relation to counts 4 and 5 (ss 91D and 91F offences concerning the child RE) as he argued for counts 1 and 2 concerning ER. Count 4, laid under s 91F, concerned the appellant having repeatedly hired a room at the Grandstand Motel for use by RE as a prostitute. The appellant became a licensee of the room upon hire of it and was therefore “capable of exercising lawful control” within the meaning of s 91F(1), both by the deeming effect of s 91F(2) and, in any event, as a matter of contract and the operation of the general law.

56. The Crown’s case on count 5, laid under s 91D(1)(a), relied upon the following particulars of the appellant’s acts. His Honour found these acts proved and that they had been a cause of RE’s prostitution over the charge period, 9 June 2001 to 9 June 2003 (between which dates RE was aged 13 to 14 years):

1. Meeting with RE at his home, at the appellant’s invitation, in about June 2001 and agreeing with her to introduce clients to whom she could provide sexual services and to divide the earnings from this prostitution 60% to her and 40% to himself.

2. Supplying a “work phone” with a number that RE could provide to potential clients via a “chat line”.

3. Regularly driving RE from her residential address to the Grandstand Motel and hiring a room for her there, in which she could receive clients and provide her services as a prostitute.

4. Making bookings for clients by telephone for their attendance at the Grandstand Motel to meet with RE for purposes of prostitution.

5. Instructing RE to meet with each client, collect payment and deliver the money to the appellant waiting in a car in the Motel car park before providing any services.

6. Receiving all revenue from RE’s work as a prostitute, dividing it in accordance with the 60%/40% agreement and maintaining written records of receipts and distributions for the purpose of adhering to the agreement.

7. Instructing RE to misrepresent her age to potential clients as being greater than in fact it was.

8. Driving RE to locations other than the Grandstand Motel to provide sexual services to clients when they nominated such other locations.

57. What has been said at [18] – [49] with respect to counts 1 and 2 is equally applicable to counts 4 and 5, for the purpose of resolving appeal ground 3 so far as it concerns the latter counts. There was no duplicity in either count 4 or count 5; the charging of both these counts did not give rise to double jeopardy in the sense of the appellant having been prosecuted on two counts for the same offence and there was no abuse of process in the charging of both counts or in the appellant having been convicted of both. Again, care was required in sentencing to ensure that the total criminality across both counts should not be punished twice or in a partially overlapping fashion.

58. For the reasons given at [18] – [49] in relation to counts 1 and 2 and the further reasons given at [50] – [52] in relation to counts 4 and 5, ground 3 is not substantiated and is rejected.

Ground 1 – severity of sentence

59. The objective circumstances of the offences have already been recounted. The counts under s 91D(1)(a) in each case involved gross exploitation of two very young, troubled, vulnerable females. A submission was made to his Honour that the offences were mitigated because the appellant provided to ER and RE some measure of protection and support in their careers of prostitution upon which they were well and truly embarked. His Honour rejected this but took into account that each of ER and RE was already engaged in prostitution when the applicant first met them and that he did not cause them to commence the activity but rather to continue it, exploiting their doing so for financial advantage. His Honour found both the s 91D and s 91F offences to be “about mid range” of seriousness, in relation to each child.

60. The applicant was approaching 57 years of age when he was sentenced on 6 March 2015. He would therefore have been between the ages of 42 years and 46 years at the dates of the offences, respectively. At the time of sentence he was suffering from a hernia of seven millimetres which was in need of surgical intervention and an undescended testicle which required management. A psychiatrist whose evidence was before his Honour diagnosed him as “falling within the autistic spectrum”. His Honour accepted this and, upon the basis of having observed the appellant in the witness box for an extended period during the trial, concluded that he was “going to have a difficult time in custody”.

61. His Honour also took into account that the appellant had to sell his home at Parramatta to raise funds for his defence and was left with very limited financial resources. His source of income apart from the illegal activity which was the subject of the charges had been tutoring in high school studies. His Honour did not consider that any of the delay in the criminal proceedings was relevant to mitigation of sentence. The long delay between his Honour’s findings of guilt and the passing of sentence followed from applications by the appellant himself for adjournments to enable medical reports to be obtained.

62. His Honour did not consider that there were any applicable aggravating circumstances beyond the features of the offences inherent in the charges. Favourable character references were taken into account but regarded by the learned sentencing judge as of limited significance because of their “largely historical” character. His Honour was satisfied the offender was unlikely to engage in misconduct of a like nature in the future. This view was formed notwithstanding his Honour being conscious that the appellant continued to deny that he had taken the causative and controlling role in the prostitution of these two young girls which his Honour had found proved. Special circumstances were found for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the proportion of the head sentence which was to be served without parole was reduced accordingly.

63. No specific error is alleged in relation to the sentencing process. As noted at [3] the sole ground is that the sentence was manifestly excessive. To succeed on this ground the applicant must establish that the sentence was ‘unreasonable’ or ‘plainly unjust’: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. The appellant made extremely brief and insubstantial submissions in support of this, relying primarily upon statistics which derive from a database of only five cases. These statistics provided no guidance. Having regard to the statutory maximum penalties, the exploitative nature of the offences, the protracted continuance of the offending over a number of years, the need for strong denunciation of such crimes and for general deterrence, the aggregate sentence of 10 years with a non-parole period of 6 years could not in our view be said to be manifestly excessive.

Orders

64. The orders of the Court are:

1. The appeal against conviction is dismissed.

2. Leave is granted to appeal against severity of sentence.

3. The appeal against sentence is dismissed.

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Decision last updated: 04 April 2018