Hutchinson v The State of Western Australia
[2005] WASCA 77
•27 APRIL 2005
HUTCHINSON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 77
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 77 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:163/2004 | 17 MARCH 2005 | |
| Coram: | WHEELER JA MCLURE JA MILLER AJA | 27/04/05 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Leave to appeal against sentence granted Sentence quashed and matter remitted to trial Judge for re-sentencing | ||
| B | |||
| PDF Version |
| Parties: | SUSANNE DOROTHY HUTCHINSON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Evidence Criminal trial Admissibility of confessional evidence Comment by investigating officer during interview Whether probative value of evidence outweighed by prejudicial effect Evidence Criminal trial Cross-examination Credit Whether counsel entitled to cross-examine complainant on circumstances of other offending Extent of cross-examination Turns on own facts Criminal law Sentence Permitting a child to act as a prostitute Prostitution Act 2000 (WA), s 16(1) Whether sentence of 8 months' imprisonment manifestly excessive Whether too much emphasis placed on general deterrence Whether mitigating factors sufficiently taken into account Whether parole appropriate |
Legislation: | Criminal Code (WA), s 24 Evidence Act 1906 (WA), s 25 Prostitution Act 2000 (WA), s 16(1), s 49 Sentencing Act 1995 (WA), s 89(2) |
Case References: | Lowndes v The Queen (1999) 195 CLR 665 R v Hutchinson (2003) 144 A Crim R 28 R v Stack [2004] WASCA 300 Singh v The Queen, unreported; CCA SCt of WA; Library No 6002; 18 September 1985 Australian Coal and Shale Employee's Federation & Anor v The Commonwealth & Ors (1953) 94 CLR 621 Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Ibbs v The Queen (1987) 163 CLR 447 Maric v The Queen (1978) 20 ALR 513 Osolin v The Queen [1993] 4 SCR 595 R v Astill (1992) 63 A Crim R 148 R v Chan (1989) 38 A Crim R 337 R v Ireland (1970) 126 CLR 321 R v Jones (1999) 108 A Crim R 50 R v Kadem (2002) 129 A Crim R 304 R v Latham (2000) 117 A Crim R 74 R v Liddington (1997) 18 WAR 394 R v Minchinton (1998) 104 A Crim R 502 R v Schurman (1914) 30 WLR 56 R v Steven Franklin Shire (1993) 66 A Crim R 37 Robinson v R (No 2) (1991) 180 CLR 531 S v R [2001] WASCA 245 Wilde v The Queen (1988) 164 CLR 365 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HUTCHINSON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 77 CORAM : WHEELER JA
- MCLURE JA
MILLER AJA
- CCA 164 of 2004
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FENBURY DCJ
File No : IND 1737 of 2001
(Page 2)
Catchwords:
Evidence - Criminal trial - Admissibility of confessional evidence - Comment by investigating officer during interview - Whether probative value of evidence outweighed by prejudicial effect
Evidence - Criminal trial - Cross-examination - Credit - Whether counsel entitled to cross-examine complainant on circumstances of other offending - Extent of cross-examination - Turns on own facts
Criminal law - Sentence - Permitting a child to act as a prostitute - Prostitution Act 2000 (WA), s 16(1) - Whether sentence of 8 months' imprisonment manifestly excessive - Whether too much emphasis placed on general deterrence - Whether mitigating factors sufficiently taken into account - Whether parole appropriate
Legislation:
Criminal Code (WA), s 24
Evidence Act 1906 (WA), s 25
Prostitution Act 2000 (WA), s 16(1), s 49
Sentencing Act 1995 (WA), s 89(2)
Result:
Appeal against conviction dismissed
Leave to appeal against sentence granted
Sentence quashed and matter remitted to trial Judge for re-sentencing
Category: B
Representation:
Counsel:
Appellant : Mr L M Levy
Respondent : Ms L Petrusa & Ms E M Peattie
Solicitors:
Appellant : Laurie Levy & Associates
Respondent : State Director of Public Prosecutions
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Case(s) referred to in judgment(s):
Lowndes v The Queen (1999) 195 CLR 665
R v Hutchinson (2003) 144 A Crim R 28
R v Stack [2004] WASCA 300
Singh v The Queen, unreported; CCA SCt of WA; Library No 6002; 18 September 1985
Case(s) also cited:
Australian Coal and Shale Employee's Federation & Anor v The Commonwealth & Ors (1953) 94 CLR 621
Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Ibbs v The Queen (1987) 163 CLR 447
Maric v The Queen (1978) 20 ALR 513
Osolin v The Queen [1993] 4 SCR 595
R v Astill (1992) 63 A Crim R 148
R v Chan (1989) 38 A Crim R 337
R v Ireland (1970) 126 CLR 321
R v Jones (1999) 108 A Crim R 50
R v Kadem (2002) 129 A Crim R 304
R v Latham (2000) 117 A Crim R 74
R v Liddington (1997) 18 WAR 394
R v Minchinton (1998) 104 A Crim R 502
R v Schurman (1914) 30 WLR 56
R v Steven Franklin Shire (1993) 66 A Crim R 37
Robinson v R (No 2) (1991) 180 CLR 531
S v R [2001] WASCA 245
Wilde v The Queen (1988) 164 CLR 365
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1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA and Miller AJA. It is therefore not necessary for me to set out the background to these matters. I agree with the orders proposed by Miller AJA. Subject to the comments below, I agree with the reasons of McLure JA and Miller AJA.
Ground 1 - admissibility of portions of the video record of interview
2 I am generally in agreement with the reasons of Miller AJA in relation to this ground. In particular, I am of the view that the inappropriate expressions of opinion by the interviewing detective were not of significance in the context of the very lengthy interview which took place, and with the conclusion that the second of the passages objected to at page 30 of the transcript of the interview is, in essence, a passage in which the appellant may be taken to have admitted that there were reasonable steps which she could have taken, but had failed to take.
3 In relation to the first of the passages objected to, which is apparently at pages 20 and 21 of the transcript of the interview, I would add that the discussion between the detective and the appellant at that point does not concern "C", the subject of the indictment, but concerns steps which the appellant had apparently taken, in relation to other potential employees, to ensure that they were over 18 years of age. The relevance of evidence concerning that subject would be that it would go either to support or to cast doubt upon the appellant's assertion, made in various ways, that she was very conscious of and careful about matters of age. That assertion, in turn, was relevant because it was, in effect, being put to the jury on behalf of the appellant that, because these matters were of importance to the appellant, she would on the occasion in question have taken care to satisfy herself as to the young woman's age. The entire passage, though relevant, was therefore of peripheral importance. Even in that context, the detective's assertion that it was "irrelevant" how old a young woman looked, was unfortunate, but, as Miller AJA has pointed out, his Honour stressed that that was, in any event, a question for the jury to consider.
Ground 4 - cross-examination of "C"
4 In relation to this ground, my approach to the relevance of the cross-examination, and to his Honour's intervention, is different from that of McLure JA and Miller AJA. As has been noted, the cross-examination was directed to the issue of whether "C" had in her possession at any time false identification. In relation to the matter the subject of the indictment, it was "C's" evidence that she had not produced false identification to the appellant and that, indeed, she had never been in possession of false
(Page 5)
- identification. Counsel for the appellant sought to test that assertion, by putting to her offences in which she had been involved which, on one view, would have required her to have had access to false identification in order to carry out those offences. The questioning, in effect, went to her capacity to produce (to anyone) the sort of document which the appellant asserted had been produced to her.
5 When one reads her cross-examination on this issue, "C" may at first be understood to be saying that she personally had taken stolen items to be pawned for cash. When it was put to her that she would be asked for identification on such an occasion, she qualified those earlier answers by asserting that she personally had not done so, but had always gone with others who had pawned the goods for her. When she was questioned about who those persons might be, she was somewhat evasive and gave a Christian name, but declined to give a surname.
6 There are two potential uses which might be made of further cross-examination as to the names of the persons involved. The question of a "line of enquiry" has been dealt with by McLure JA and Miller AJA. The other use, which in my view is the only one of relevance, would be to enable the jury to observe the reaction of "C" when pressed for the names of those with whom she had pawned stolen items. An inability or unwillingness to do so, or observable anxiety while giving names, might lead the jury to conclude that there was a real possibility, in the context of the rest of her cross-examination on this topic, that she had simply invented the detail of having others pawn goods for her, in order to conceal the fact that she had herself at some time had access to forged identification. There are, of course, other explanations which would be available for such a reaction, assuming that it occurred, such as an unwillingness to get friends and associates into trouble. However, that would be a question for the jury.
7 While establishing that "C" had had access to false identification at one time would not necessarily establish that she had such identification when interviewed by the appellant, or that she produced it, it could cast doubt on her denial that she had produced such identification, bound up as it was with an assertion that she was, in any event, unable to do so. It was therefore quite wrong of his Honour, in my view, arbitrarily to stop a line of cross-examination which went to this issue. The manner of his Honour's intervention, which put his authority behind a suggestion that a reluctance to answer such questions would not reflect on "C's" credibility, compounded that error. Had I considered that the production of false identification by "C", of the type described by the appellant, could
(Page 6)
- have influenced the deliberations of a reasonable jury in this case, I would have allowed the appeal. However, it is my view that the submissions on behalf of the appellant attempted to give this issue a significance which it could not have possessed.
8 In my view, the appellant's emphasis upon the alleged "18+" card is based upon a misapprehension of the requirements of s 49 of the Prostitution Act 2000 (WA). That Act requires, in order to overcome the conclusive presumption that the accused knew that a person was a child, that it be proved that the accused had taken "all reasonable steps" (my emphasis) to find out the age of the person concerned. It would not be enough to establish that a reasonable step had been taken, or even more than one reasonable step, if there were other steps which it was reasonable for the accused to have taken, which might have more accurately established the age of the person concerned. So far as I can discern, his Honour did not direct the jury in this way, putting "all reasonable steps" to them at all times as a composite expression, and not emphasising the word "all" which appears to me to place a very heavy burden on an accused person. In that respect, his Honour's direction was unduly favourable to the appellant.
9 However, it is my view that, if the word "all" is given its proper weight, no reasonable jury properly instructed could have concluded that, in the circumstances of this case, the appellant had taken all reasonable steps.
10 The appellant's evidence in relation to this issue relied upon two matters. First, she said that her first impression of "C" was that "C" looked about 25 years of age and that, "C" having given her age as 19, she was therefore prepared to accept that "C" was at least 19. There is a question in my mind as to whether this evidence alone would even enliven s 24 of the Criminal Code (WA) as being potentially an honest and reasonable mistake. It is notoriously difficult to judge the age of a young person from their appearance alone. The appellant's own evidence demonstrated a reason for not relying upon her own perception, since it was at odds with the age that "C" actually gave. Further, the age which "C" gave was very close to the age of adulthood, which should have put the appellant upon inquiry. The appellant said that the birth date given by "C" meant that she was not 19, but 18; that also should have suggested that the claimed age was false.
11 In addition, it was the appellant's evidence that "C" had presented what was called an "18+" card. It was a card showing the name given by
(Page 7)
- "C", a date of birth and an address, but not containing a photograph. The appellant's evidence was that she could not remember whether it had a signature on it. In those circumstances, there was an obvious possibility that the card presented was a card which related to some other person, and which had been borrowed or wrongly obtained by "C". There was a further, and remoter possibility that the card itself was a forgery.
12 It was the appellant's evidence that "C" had told her that she had a driver's licence and would bring it in on the next occasion. Driver's licences in Western Australia have photographs on them. In those circumstances, it would obviously have been a reasonable step for her to have required "C" to produce her driver's licence before permitting her to work. That proposition was put to the appellant by the investigating officers and she agreed with it. I do not see how disagreement would be possible. No doubt, other reasonable steps, of the types frequently encountered in institutions such as banks, could be envisaged. In this case, however, the evidence of the appellant herself pointed to the existence of an obviously reasonable step, much more accurately able to determine whether "C" was 18, which could have been, but was not, taken.
13 The issue of the "18+" card, given its description by the appellant, appears to me to be of no assistance to the appellant in establishing that she had taken all reasonable steps. There was therefore, in my view, no miscarriage of justice which could have been occasioned by his Honour's not permitting the appellant's counsel to cross-examine "C" about matters relevant to whether she had had access to false identification in the past.
Matters subsequent to appeal
14 I should note that subsequent to the hearing of the appeal, my Associate received a facsimile letter from the appellant personally, consisting of some eight pages. A great deal of it consists of submission about a variety of matters, some of it based upon evidence, some of it reiterating evidence which the appellant gave at her trial, and some of it relating to inquiries which she had caused to have made about her date of eligibility for release. The only material which appeared to me potentially to require consideration was an expression of dissatisfaction with counsel who represented her on the appeal, and advice that she had subsequently withdrawn her instructions to him. She also appeared to express dissatisfaction about the conduct of her trial in some respects. Notwithstanding that she was represented both at trial and on the appeal by competent counsel, the Court considered that she should have the
(Page 8)
opportunity of raising that matter in some more formal way if she wished to do so, and my Associate advised her that the Court would not deliver judgment for a period of 14 days, during which she could take steps to make whatever application seemed to her appropriate. No application has been received, and the 14-day period expired on Friday, 15 April.
15 MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Miller AJA. I agree with the orders he proposes. Subject to my comments below, I also agree with his reasons.
16 The appellant appeals from her conviction for permitting a child to act as a prostitute, contrary to the provisions of s 16(1) of the Prostitution Act 2000 (WA) ("the Act"). I will refer to the child as "C". One of the grounds of appeal concerns the learned trial Judge's ruling limiting the cross-examination of "C".
17 It was not in dispute that "C", with the appellant's permission, worked as a prostitute on the night of 21 April 2001. "C" was 13 at the time. The issue in the case was whether the appellant had taken all reasonable steps to find out "C's" age and whether she believed on reasonable grounds on the night of 21 April 2001 that "C" was at least 18 years of age. The appellant had interviewed "C" on 21 April 2001. The only relevant conflict of evidence concerned whether "C" had produced to the appellant what is known as an "18+" card. The appellant's evidence was that at the interview "C" handed her an "18+" card which she described as being like a bankcard in shape, laminated and showing "C's" name, date of birth and address. It did not have a photograph.
The appellant could not remember whether it had a signature on it.
18 "C's" evidence was that the appellant had asked her for ID and "C" informed the appellant that she had forgotten to bring it but would do so tomorrow night. In examination-in-chief she was asked, "At the time did you have any form of identification?" and she said, "No." She was also asked whether she ever had an "18+" card or anything of that nature and "C" responded, "I've never had one."
19 The cross-examination in question was directed at the issue of whether "C" had false identification. "C" agreed that she stole property to get money for drugs and the stolen property was on occasions converted into cash at pawn shops. Initially "C" said she would go to a pawn shop and hock the item. However, when it was put to her that identification would be requested, she responded, "I didn't usually do it, actually. I
(Page 9)
never did it on my own." Her evidence was that other people would pawn the items for her. The cross-examiner nominated three people who would pawn the items to which she responded in the affirmative. The cross-examination then went as follows:
"Okay, apart from David name one other person that you got to hock the items?---How is a name relevant but?
Can you name one other person? You say you got other people to hock your items?---Yeah.
I'm asking you can you tell the jury one other person?---So you want a name.
Yes?---Brad.
Brad who?---I don't see that's relevant, sorry.
FENBURY DCJ: I think move on, Mr Levy, really. I think there are other obvious reasons why she would be reluctant to name people.
LEVY, MR: Maybe so, your Honour - - -
FENBURY DCJ: I'm not going to compel her to answer. I think you don't need to know and I think you should move on.
LEVY, MR: I want to raise the issue, your Honour.
FENBURY DCJ: I think we have already discussed it, really. She has admitted that she broke the law, that she stole and she has denied using identification herself.
LEVY, MR: Yes, and this is the point - identification, your Honour. I'm asking about identification. This witness is saying she got other people to hock it.
FENBURY DCJ: Yes.
LEVY, MR: It's about identification.
FENBURY DCJ: She is very reluctant to name them. I think that's understandable. I'm not going to compel her to do so and I don't think you should pursue it.
LEVY, MR: As your Honour pleases."
(Page 10)
20 Thus, the limitation on cross-examination was very narrow. The trial Judge prevented cross-examination to elicit the names of other people with whom "C" attended at pawn shops to pawn stolen property.
21 Whether "C" had false identification at or around 21 April 2001 is a fact immediately connected with a fact in issue. Whether "C" at any time had or used false identification to pawn stolen goods in my view goes only to credit. However, the limitation was not on that issue but on the names of people who pawned stolen goods on "C's" behalf in her presence. The appellant contends the questions were relevant to locating the person she claimed had assisted her. That can only be with a view to checking the truth of "C's" evidence. "C's" answers to the challenged questions would not themselves be relevant either to credit or a fact in issue. At best they may facilitate a potential chain of inquiry that may or may not be productive of relevant evidence. Brad was the fourth person nominated by the cross-examiner. There may be others. Even if the questions can be described as relevantly related to credit, the trial Judge was, in my view, entitled pursuant to s 25(2)(b) or (c) of the Evidence Act 1906 to limit the cross-examination in the way he did.
22 The only other matter I wish to raise concerns the appellant's reliance on Singh v The Queen, unreported; CCA SCt of WA; Library No 6002; 18 September 1985. Singh concerns the direction that ought to be given where there is a statutory deeming provision that applies to an element of an offence. That is different from the statutory regime under ss 16(1) and 49 of the Act. The Court in R v Hutchinson (2003) 144 A Crim R 28 held that knowledge on the part of the offender that the person permitted to act as a prostitute is a child is not an element of a s 16 offence. Rather, s 49 cuts down the operation of the defence of mistake under s 24 of the Criminal Code (WA). I agree with Miller AJA that there is no substance to the appellant's contention that the trial Judge undermined the presumption of innocence.
23 MILLER AJA: The appellant appeals to this Court from her conviction in the District Court at Perth on 24 September 2004 for the offence of permitting a child to act as a prostitute, contrary to the provisions of s 16(1) of the Prostitution Act 2000 (WA) ("the Act"). The indictment alleged that the appellant, on or about 21 April 2001 at Perth, permitted a child to act as a prostitute.
(Page 11)
24 The trial of the appellant was heard before Fenbury DCJ and a jury between 22 and 24 September 2004. Following conviction the appellant was sentenced on 24 September 2004 to imprisonment for 8 months. The learned trial Judge purported to make an order for eligibility for parole in relation to that sentence but was clearly in error in doing so because s 89(2) of the Sentencing Act 1995 (WA) provides that a parole eligibility order must not be made if the fixed term of imprisonment imposed is less than 12 months. The appellant (applicant in these proceedings) seeks leave to appeal against the sentence of 8 months' imprisonment with parole.
Appeal against conviction
25 There are three grounds upon which the appellant challenges her conviction. The first is that at a hearing pursuant to the provisions of s 611A of the Criminal Code 1913 (WA) on 18 February 2003, O'Sullivan DCJ wrongly ruled that certain questions and answers in a record of interview between the appellant and investigating police officers on 18 May 2001 were admissible in evidence at the appellant's trial. There are two aspects of O'Sullivan DCJ's ruling which are challenged. The first relates to the portion of the video recorded interview between detectives Lague and Gutman and the appellant on 18 May 2001, the questions and answers in relation to which as follows:
"Q. Yeah, but what -- what you're saying is that they're -- I think you said with one of them, 'Oh, she looks 26'. Well, it's irrelevant how old they look, obviously. It's how old they actually are and the only way that you can cover your backside with that is by getting proper ID. And a Medicare card without a date of birth is not sufficient.
A. Mm.
Q. And, you know, like I say, you -- you keep -- you keep saying, 'Well, she looked this and she looked that' --
A. Looked that --
Q. -- it doesn't matter what they look like --
A. No.
Q. -- it is how old they actually are."
(Page 12)
26 The second passage in the same interview to which objection is taken is in the following terms:
"Q. It doesn't really matter what she says to you, it's -- you know, the fact that she's -- you didn't prove otherwise that she was 18 and at the end of the day, it wouldn't have hurt for her to not work that night, come in the next day with some proper ID. Can you understand what I'm saying?
A. Yes, I do.
Q. Just to cover yourself.
A. I agree with you 100 per cent. I know I've done wrong and I've changed everything that I -- look, at that Foxy.
Q. Yeah."
27 To understand the significance of these questions and answers, it is necessary to outline the case presented against the appellant. It was that on 21 April 2001 a 13-year-old girl named "C", who was born on 27 April 1987 and just short of her 14th birthday, telephoned the appellant, who was known as "Bobby" and who ran Hearts Escort Agency, a business from which women acted as prostitutes. "C" telephoned the appellant from her mother's house but her mother interfered with the call, allegedly calling out "She's only 13". The appellant denied that she had heard this comment. In any event, "C" terminated the phone call and went to a telephone box, from which she again rang the appellant and arranged to go to Hearts Escort Agency. Ultimately "C" arrived there and met the appellant. There was a long discussion between "C" and the appellant which included talk about the sort of services "C" would be willing to offer, a pricing structure for the activity and the risks involved in unprotected sex.
28 "C" lied about her age. She told the appellant that she was 18 years of age and about to turn 19. She was unable to produce any identification but said that she would bring some identification the following night. According to "C", the appellant said "I will let you off tonight but bring it in tomorrow night".
29 On the night of 21 April 2001 "C" was allocated work by the appellant. She worked seven or eight hours into the early hours of the morning on 22 April, engaging in sexual activity with six or seven men and earning approximately $700. According to "C", at the end of her shift
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- the appellant was still there and said "Make sure you bring that ID in". "C" testified that she responded "I will bring it in tonight".
30 On the night of 22 April, "C" called the appellant again. The purpose was to give her the number of a new mobile telephone she had acquired. According to "C" the appellant said to her "I know you're 13". "C" denied that she was but the appellant told her that she could not come back until she brought in some "ID". According to "C" the appellant said "I don't want to see you again unless I see your ID".
31 The offence of permitting a child to act as a prostitute is contained in s 16(1) of the Act in the following terms:
"16. Causing, permitting, or seeking to induce child to act as prostitute
(1) A person is not to cause or permit a child to act, or continue to act, as a prostitute."
"49. Accused presumed to know if person is a child
If, in proceedings for an offence under this Act, it is relevant whether or not a person was a child, it is to be conclusively presumed that the accused knew that the person was a child unless it is proved that, having taken all reasonable steps to find out the age of the person concerned, the accused believed on reasonable grounds, at the time the offence is alleged to have been committed, that the age of the person concerned was at least 18 years."
33 As the learned trial Judge pointed out to the jury in his directions, for the prosecution to prove the offence alleged against the appellant it was necessary that the jury be satisfied beyond reasonable doubt of three things:
(1) "C" was a child;
(2) "C" acted as a prostitute on the date alleged;
(3) the appellant permitted "C" to act as a prostitute.
34 The Act defines a child as a person under 18 years of age and so there was no doubt that "C" was a child. Nor was there any doubt that she
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- worked as a prostitute on the night of 21 April 2001. There was no dispute that the appellant permitted "C" to act as a prostitute and hence that she permitted a child to act as a prostitute. Section 49 of the Act established a conclusive presumption that the accused knew "C" was a child, unless it was proven that having taken all reasonable steps to find out the age of "C", the appellant believed on reasonable grounds at the time the offence was alleged to have been committed that "C" was at least 18 years of age. The onus was cast upon the appellant to prove this fact: R v Hutchinson (2003) 144 A Crim R 28 per Steytler J at [30]. Proof was, of course, required only on the balance of probability.
35 The issue in the case was whether the appellant had taken all reasonable steps to find out the age of "C" and whether she believed on reasonable grounds on the night of 21 April 2001 that "C" was at least 18 years of age.
Admissibility of challenged portions of the video record of interview (Ground 1)
36 The first passage in the record of interview of 18 May 2001 was objected to on the basis that it was unfairly prejudicial to the appellant and the probative value of what was said did not outweigh the prejudice to her.
37 The first question posed by the detective did contain comment. He expressed his own opinion about how proper identification should be obtained and also an opinion that it would not matter what a girl looked like. He ended up by saying "It is how old they actually are" that was important. To these questions or comments the appellant was largely non-committal, although she agreed that it did not matter what the girl looked like.
38 When O'Sullivan DCJ came to rule on the admissibility of this passage, he said:
"The first passage objected to is contained at pages 20 and 21 of the transcript. The view which I have is that, taken as a whole, the evidence contained in that passage is not to be regarded as unfairly prejudicial to the accused. It's not to be so characterised.
I don't believe that any answers given by the accused in response to the questions or statements made by the police officers in that passage can be said to have been answers
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- amounting to evidence as unfairly obtained and, in any event, it is to be observed that the trial judge can of course and no doubt will give appropriate directions to the jury to disregard statements made out of court by the police officers and expressions of opinion and the like. So I would not accede to the application to excise the passages at pages 20 and 21."
39 Unfortunately, O'Sullivan DCJ did not attempt to analyse the questions and answers given. There was no attempt to determine exactly what the appellant admitted to. It would seem that her only admission was that it did not matter what "they look like". However, clearly it did matter in considering the question of "reasonable steps" taken to find out the age of women or girls applying for work as prostitutes and the question of belief on reasonable grounds that the person was at least 18 years of age, "what they looked like". This being so, the question and answer were of no probative value.
40 In my view, however, the questions or statements of opinion put by the detective and the answers given, whilst of no real probative value in the trial, were not so highly prejudicial that it could be said that any miscarriage of justice occurred by reason of that material being put before the jury. The interview ran for nearly an hour, and the passage I have quoted was only a minute portion of it. Further, as I shall point out, the jury appear not to have been influenced by the detective's opinion.
41 It would have been desirable for the learned trial Judge (who was a different Judge) to have directed the jury that expressions of opinion by police officers or detectives in the course of video records of interview are not evidence and are not to be given any weight by the jury in their deliberations. This was not done, despite the fact that O'Sullivan DCJ envisaged that it would be done.
42 On the other hand, counsel for the appellant made no request for such a direction and told this Court he did not want one. As counsel for the respondent has pointed out, the comments of the detective could hardly have prejudiced the appellant at trial, because strong directions were given by the learned trial Judge to the jury as to the importance of they, the jury, reaching a conclusion as to whether or not all reasonable steps had been taken by the appellant to find out the age of "C". As the learned trial Judge put it: "It's a matter for you whether all reasonable steps were taken or not".
(Page 16)
43 Later, in answer to a question from the jury about what "are reasonable steps", the learned trial Judge added this:
"It is for you, the jury, representing, if you like, the community to judge that but it might help if I was to say this to you, that you might ask yourself these two questions or address these two issues. What steps were taken by the accused to find out the age of [C] when she dealt with [C] on 21 April 2001 and then were the steps taken by the accused to find out the age of [C] all that reasonably should have been taken in the circumstances."
44 The question itself suggested that the jury was uninfluenced by the opinion of the detectives. It was:
"Can we have a copy of the Prostitution Act with section identified regarding reasonable steps to satisfy one of the age of the application for a position as a prostitute to assist us with one understanding of what are reasonable steps."
45 In the circumstances it seems clear that the learned trial Judge impressed sufficiently upon the jury that the decision was for them and them alone to decide what steps were taken and whether they were reasonable. Although he did not say so, the clear conclusion from the learned trial Judge's directions is that it was not a matter for a police officer or any other person to say what reasonable steps might be, but for the jury itself. In these circumstances I do not consider the first passage objected to was so prejudicial that there was any injustice done to the appellant.
46 The second passage to which objection is taken, was considered by O'Sullivan DCJ to be "not unfair" and admissible. His Honour said during the course of the s 611A hearing:
"O'SULLIVAN DCJ: Thank you. Turning to the passages at page 30, the first question on that page and the answer it's been agreed should be excised and the next two questions should be excised. As to the fourth question and answer and the fifth question and answer and the sixth question, it seems to me, again taken as a whole, that there's nothing unfair in what the police have put to the accused in those passages and in what the accused has said and I would take the view that they should remain in. I think that disposes of the matters which were in contention."
(Page 17)
47 Again, there was no attempt to isolate just what the appellant was admitting to, but here it would seem that she was agreeing "100 per cent" that it would not have hurt for "C" not to have worked that night and come in the next day with some proper ID. The words "I know I've done wrong" constituted an admission that she failed to take that apparently reasonable course.
48 The interviewing detective again on this occasion expressed his own opinion about what the appellant should have done. He said it didn't matter what "C" had said to the appellant and as she had not established that "C" was 18 years of age, it would not have hurt for her to have missed work that night and come in the next day with proper identification. The first statement was clearly incorrect, as what "C" said was relevant to s 49 of the Act.
49 Although portion of the question or statement of the detective was inadmissible, the proposition that it would have been open to the appellant to have told "C" that until she produced proper identification she could not work and she could come back the next night with the right identification and begin work then was a reasonable one. With this the appellant clearly agreed and admitted that she had "done wrong". I therefore consider that on balance, the "question" and answer were of probative value and outweighed any prejudice caused by the fact that the detective made a wrong statement of opinion. In any event, as I have pointed out, the jury clearly took no account of it and were directed to reach their own conclusion on the issue.
50 I would dismiss the first ground of appeal.
Cross-examination of "C" (Ground 4)
51 The second live ground of appeal challenges the ruling of the learned trial Judge during the course of the trial to the effect that counsel for the appellant could not cross-examine "C" in relation to the names of persons with whom she had been involved in selling stolen property to pawnbrokers. The ground of appeal contends that counsel for the appellant should have been able to pursue questions along this line because the questions were relevant firstly to the credit of "C" on a material issue, namely whether she had false identification or access to false identification, and secondly to elicit information that may have enabled the appellant to locate persons to discredit the testimony of "C", or alternatively to prove that she did in fact have false identification papers.
(Page 18)
52 During the course of the cross-examination of "C", and in the absence of the jury, counsel for the appellant informed the learned trial Judge that he wanted to put to "C" that she was involved in criminal activity in circumstances where she needed an ID card and she may have got that card from somebody else. It was sought to cross-examine "C" about her lifestyle generally and her accessibility to forged ID documentation. After a good deal of argument the learned trial Judge ruled that counsel could ask "C" whether she funded her drug habit by breaking the law but he was not prepared to allow cross-examination on the detail of her offending behaviour.
53 The cross-examination then went as follows:
"So how were you funding your drug habit?---All sorts of things, you know.
FENBURY DCJ: Ask her directly.
LEVY, MR: Were you stealing?---Yeah.
Stealing?---Yep.
When you stole things you had to get rid of them, didn't you, and get the money?---Yeah.
Did you hock them? Do you know what I mean by hock?---Sometimes.
Right?---Sometimes the dealers would take the items in exchange.
So what would happen is that if you have a stolen item you would have to convert that stolen item into cash?---Yes.
Things like, what mobile phones?---Yeah.
Stereos?---Yeah.
And you would then go to a pawnshop?---Mm'hm.
And hock the item?---Sometimes, yeah.
They would ask you for identification, wouldn't they?---I didn't usually do it, actually. I never did it on my own.
Sorry?---I never did it on my own.
(Page 19)
- You never went to a hockshop on your own?---No.
No, so, what, you would get someone else, would you?---Yeah.
You are not just trying to avoid the issue about identification, are you?---No.
No, so if I suggested to you that on occasions you produced identification at hockshops what would you say about that?---Well, I never - never did it at the hockshop.
No?---No.
So tell the jury how would you do it then?---Like I said, I had other people to do it for me."
54 "C" was pressed in relation to who the other people were who produced identification at pawn shops and she gave various Christian names, but declined to give the surname of a person named Brad. The learned trial Judge told counsel that he would not allow him to press the point. The cross-examination continued with counsel putting to "C" that either she or persons with whom she was involved would use false identification. She denied this, saying "I never hang out with teenagers … they never had to use false ID … I never had a false ID". She specifically denied that she ever had what was called an "18+ card" or that when she saw the appellant on 21 April she had an "18+" card with her.
55 The learned trial Judge made reference during his ruling on the subject to the provisions of s 25 of the Evidence Act 1906 (WA) which provide that where a question is put to a witness upon cross-examination on a matter not relevant to the proceedings except insofar as it affects the credit of the witness, it shall be the duty of the Court to decide whether or not the witness shall be compelled to answer it. Certain criteria are set out to govern the exercise of the discretion so exercised by the trial Judge. Section 25(2)(a) - (c) is as follows:
"(2) In exercising this discretion, the court shall have regard to the following considerations -
(a) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(Page 20)
- (b) such questions are improper if the imputation they convey relates to matters so remote in time, or of such character, that the truth of the imputation would not affect, or would affect in a slight degree only, the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(c) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence."
56 The learned trial Judge did not specify which, if any, of these provisions he thought directly applicable to the case. When he stopped the questioning about names, it seems likely that he thought there had been enough questioning on the point.
57 The right of the accused to cross-examine is a fundamental feature of the criminal justice process. This has been made clear in many cases, most of which are collected in R v Stack [2004] WASCA 300, particularly by Steytler J at [77] - [84].
58 However, the right to cross-examine is not unfettered. The only "right" of the accused is to have a fair trial. There are well-recognised limits on cross-examination: See R v Stack (supra) per Steytler J at [99] - [105].
59 The decision of the learned trial Judge to stop cross-examination on the names of people who had been involved in visiting pawn shops with stolen goods does not seem to have fitted any known discretion to stop the course of cross-examination, but the question is whether any injustice resulted.
60 The questions leading up to the learned trial Judge's decision to stop the cross-examination were directed at the credibility of "C" in relation to whether she did or did not have an identification card. In my view, her credibility could not have been further affected by pursuit of the names of persons with whom she had committed offences and been involved in producing goods at pawn shops. She had clearly answered in the negative to the proposition that she herself had false identification papers. She had also answered in the negative to the proposition that friends with whom she was involved in criminal activity had false identification papers. The pursuit of those persons to see whether they had false identification papers
(Page 21)
- or whether they knew that "C" had ever used false identification papers could not, in my view, have materially altered the question of "C's" credibility. Further, even if evidence could have been obtained that "C" had on an occasion had false identification papers, that evidence could not have gone to the issue as to whether or not she produced a false identification card to the appellant on 21 April 2001.
61 Counsel for the appellant had cross-examined "C" effectively to establish that she had lied to the appellant in the interview of 21 April, that she was addicted to drugs, and that she had stolen property to fund her drug habit. The character of "C" was laid bare before the jury by the cross-examination.
62 Because of this, s 25(2)(b) of the Evidence Act could have been applied, although it was not so much a question of the cross-examination being improper. It was more a case of the cross-examination having reached a point at which no further good purpose was to be served by pursuing the issue further.
63 The issue as to whether she had or had not produced an identification card to the appellant on the night of 21 April would not have been further advanced by evidence about what she and friends or associates had done in relation to identification cards, if they had done anything at all.
64 There was evidence from a witness John Slade, that on 21 April 2001 he worked as a driver for Hearts Escort Agency and that in the evening he saw "C's" application form on a desk with an "18+" card. The question was whether on this night such a card was produced by "C", not whether she had ever used one in the past.
65 Further, it was the prosecution case that although there was an issue in the trial as to whether the complainant presented to the appellant an "18+" card, the prosecution case was that even if such a card had been presented, the appellant had failed to take reasonable steps to ascertain the age of the complainant. The learned trial Judge made this clear to the jury in the following passage:
"Mr Porter put to you that on presentation and in any of the photos and today in his submission to you [C] was young enough to attract inquiry, as he put it. He put it that [C] was in the danger zone for age and that it should have been apparent. Rhetorically, counsel asked what did the accused person do?
(Page 22)
- He then said that for the purposes of what he was saying to you, assume there was an 18-plus card which the prosecution disputes, obviously. Again, he said the complainant was in the danger zone for age, that she looked 18 - looking 18. Counsel said the accused accepted the 18-plus card with no photograph and no signature recalled. Rhetorically, again, he asked were reasonable steps taken? The prosecutor says no."
66 In my view, although the learned trial Judge did prematurely cut off the cross-examination, the learned trial Judge's ruling did not cause any significant injustice to the appellant. I would dismiss this ground of appeal.
Direction on s 49 of the Act (Ground 5)
67 The one remaining ground of appeal against conviction contends that the learned trial Judge erred in law by directing the jury that the appellant was guilty of permitting a child to act as a prostitute unless they thought it was more likely than not, on all the evidence, that she believed "C" was at least 18, she reached that belief based on reasonable grounds and she did take all reasonable steps to find out "C's" age. It was contended that this direction undermined the appellant's right to the presumption of innocence.
68 This ground has no substance at all. Section 49 of the Act is in very clear terms. It provides that there is a conclusive presumption that an accused person knew that a person was a child unless it is proved that having taken all reasonable steps to find out the age of the person concerned the accused believed on reasonable grounds at the time the offence was alleged to have been committed that the age of the person concerned was at least 18 years. The provision reverses the onus of proof in criminal proceedings brought under s 16 of the Act: R v Hutchinson (supra). The elements of the offence contained within s 16(1) are established unless it is proved by the accused person on the balance of probability that having taken all reasonable steps to find out the age of the person concerned she believed on reasonable grounds that she was at least 18 years of age.
69 Singh v The Queen, unreported; CCA SCt of WA; Library No 6002; 18 September 1985 establishes that in directing a jury in relation to a provision like s 49 of the Act, a trial Judge should avoid "the complication of talking about a shifting onus of proof". The proper direction (in Singh's case it was in the context of s 11 of the Misuse of Drugs Act 1981 (WA)) was suggested by the Court (at 7- 8) to be:
(Page 23)
- "He may well have told the jury that in respect of the first count in the indictment that if they were satisfied beyond reasonable doubt that the accused had cultivated not less than 25 cannabis plants then that in law is equivalent to proof beyond reasonable doubt of the intent to sell or supply those plants to another unless upon a consideration of all of the evidence they conclude that it is more probable than not that the accused did not intend to sell or supply the plants to another, in which case s 11 would not apply and they would be bound to return a verdict of not guilty of the offence of cultivating with intent. Such a direction would avoid the complication of talking about a shifting onus of proof, and would certainly avoid the temptation to divide the trial up into the prosecution case on the one hand and the defence case on the other."
70 In the present case the learned trial Judge followed this course. He said (speaking of s 49 of the Act):
"I will break that up for you. Thus, given [C] was a child acting as a prostitute and the accused permitted her to do so then the Prostitution Act says it is to be conclusively presumed the accused knew [C] was a child. You, the jury, are to take that view that she knew and you are to presume that she had that knowledge unless it is proved that the accused believed on reasonable grounds at the time [C] was at least 18 years old and in addition to requiring that it be proved that the accused had that belief on reasonable grounds. The section also requires that it be proved that the accused took all reasonable steps to find out [C's] age.
So breaking that down perhaps a little bit further in order to assist you - it seems to me there are really three matters that need to be proved because of the Prostitution Act and what it says; firstly, that the accused believed [C] was 18, at least 18. That has got to be proved; secondly, that that belief was based on reasonable grounds and, thirdly, that the accused took all reasonable steps to find out [C's] age. So these are the matters that need to be proved. Given there is no dispute the accused permitted the child, [C], to act as a prostitute, then if one or other of those three matters is not proved, then you would be likely to find the accused guilty of the charge on the indictment.
(Page 24)
- I have been talking about proved and proven and matters like that. The level of proof required for each of those three matters; that is, the standard of proof, before you could find any of those matters had been proved is proof on the balance of probabilities. In other words, is it more likely than not. That is a lower standard than the level of proof required to be achieved by the prosecution in the criminal trial.
When I have been saying that these three matters need to be proved, I mean that you have reference to the whole of the evidence in the case including the evidence that the prosecution has called and the evidence that the accused has given and called."
71 The appellant's complaint that the learned trial Judge's direction to the jury effectively undermined the presumption of innocence has no substance. The direction given was necessary and appropriate. The learned trial Judge made it clear that the proof on the balance of probabilities was a lower standard than the level of proof required to be achieved by the prosecution in the trial. I would dismiss this ground of appeal.
72 It follows that the grounds of appeal relied on have not been made out and I would dismiss the appellant's appeal against her conviction.
Application for leave to appeal against sentence
73 The grounds upon which the applicant seeks leave to appeal against her sentence are five. The first is that the learned sentencing Judge erred in finding that the age of "C" was an aggravating factor in the circumstances of the offence. The second is that the learned sentencing Judge erred in placing too much emphasis upon the issue of general deterrence in sentencing the appellant. The third ground is that the learned sentencing Judge erred in failing to give sufficient weight to various mitigating factors which favoured the applicant. The fourth is that the learned sentencing Judge erred by failing to properly consider the imposition of a suspended sentence. The fifth ground refers to the decision of the learned sentencing Judge to make an order for eligibility for parole. As I have already pointed out, this was a clear error, being contrary to the provisions of s 89(2) of the Sentencing Act 1995.
74 The general complaint of the applicant is that the sentence of 8 months' imprisonment was manifestly excessive in the circumstances that I have outlined.
(Page 25)
75 It is important to appreciate that the offence of permitting a child to act as a prostitute carries a maximum penalty of imprisonment for 14 years. Further, the second reading speech for the Prostitution Bill 1999 makes it clear that deterrence is an important aspect of the sentencing process for offences against the Act. The then Minister for Police, Mr Prince, said in the course of his second reading speech (Hansard 23 November 1999, page 3600):
"While the exploitation of women is a serious issue, the community generally is appalled by those within society who would see fit to exploit children for the purpose of the sexual gratification of others, as has been the case in relation to the Asian sex tours and the steps taken to address that issue. As a consequence, a child - being a person under the age of 18 years - will be prohibited from involvement in or from being exploited for the purpose of prostitution. The Bill makes it an offence for any person to -
Cause, permit or seek to induce a child to act or continue to act as a prostitute or do anything with the intention of inducing a child to act or continue to act as a prostitute;
- Receive any payment, in money or any other form, knowing that it or part of it has been derived directly or indirectly, from a child taking part in an act of prostitution, whether as a prostitute or client; or
Enter into, or offer to enter into, an agreement under which a child is to act as a prostitute, whether for that person or any other person.
A penalty of a maximum of 14 years' imprisonment will apply to these offences."
- General deterrence is clearly a factor of major importance in relation to sentencing for an offence under s 16(1) of the Act.
76 There were mitigating factors which favoured the applicant. She did have prior good character and did cooperate with police by participating in a video record of interview, although as counsel for the respondent has pointed out, she destroyed potential evidence (a work sheet) once she knew that police were involved in investigating the matter. The applicant did make some changes to her employment practice after the incident involving "C", but as counsel for the respondent submits, all that this
(Page 26)
- involved was making copies of documentation which established identity and age. It was something that ought more properly to have been done at the time "C" was engaged if (as the applicant contended), "C" had produced some identification.
77 When the learned sentencing Judge came to impose sentence he first recited the facts and concluded that the jury had most likely convicted the applicant on the basis that they had taken the view that she had failed to take all reasonable steps to ascertain "C's" age. The learned sentencing Judge concluded from the video record of interview that it might be said that the applicant did believe "C" was at least 18 years of age but the question was whether or not that belief was reasonably based and/or whether the applicant had taken all reasonable steps to ascertain "C's" age. The learned sentencing Judge thought there was an overlap between these two issues. He pointed out that the applicant could easily have telephoned "C's" mother on the night in question as she had her number. His Honour then said:
"You are in the prostitution or perhaps more fairly called the sex industry and you make your living from it. It's notorious I think that the drug-crazed young will stop at little or nothing to get money to buy drugs and it is known that they seek - those that can, they seek employment in the industry. I think it's notorious and unarguable that children that engage in prostitution damage themselves in innumerable ways, both from the conduct itself and with their ill-gotten gains, which often they use to support their drug habit.
The relevant provisions of the Prostitution Act, section 16, section 49, seem to me to indicate that parliament has recognised that these children who seek to make money in this way need to be protected in a sense from themselves as well as from those who would exploit them. I'm not aware of any other case that has been prosecuted, pursuant to these provisions of the act and the fact that the maximum penalty is 14 years' imprisonment and the matters to which I have referred, I think a message needs to be sent to those people in management in this industry that if you permit a person under 18 to act as a prostitute without having taken adequate steps to verify age, then you will be severely dealt with."
78 The learned sentencing Judge outlined matters personal to the applicant and took full account of her prior good character. He pointed
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- out, however, that personal antecedents were not of such moment that they should impact upon the mode of disposition of the matter. Although significant factors had to be taken into account they could not weigh sufficiently heavily so as to lead to a different view than that taken by the learned sentencing Judge as to the proper disposition of the matter. He said:
"I think I'm obliged by the Prostitution Act to take this matter very seriously. I think general deterrence is a paramount consideration in this type of case. In my view noncustodial orders are not appropriate, a fine is not appropriate. I don't think it's appropriate anyway, but it would - I don't think a fine would reflect the seriousness of the matter, quite frankly - I won't make any other comment about a fine.
I think a sentence of imprisonment is warranted, frankly. It doesn't have to be long in the circumstances. I will keep it as low as I reasonably can because of the factors pointed out to me, but what is important in my view is that it be made known in the industry that severe consequences flow if a child is permitted to act as a prostitute, full stop, and that message needs to be sent - so I think in your particular case, in spite of your good character and lack of priors and in spite of what one might say not as great a degree of criminality that one finds in other sorts of cases, I can't see any option based upon the legislation - I think a sentence of something of the order of 12 months would have been appropriate.
I will reduce that by a third because of the legislation, so you will be sentenced to eight months' imprisonment, starting date today, in the absence of any time spent. I make an order that you are eligible for parole. As I understand it, you are likely to spend about four months in custody or thereabouts until you are released, can anticipate release."
80 In my view the various grounds upon which leave is sought to appeal against sentence come down to the question whether, having regard to
(Page 28)
- matters personal to the applicant, including the extent of her involvement in the offence, the fact of the prior trial, her prior good character and the extent of the criminal culpability could have resulted in a situation where the learned sentencing Judge thought it appropriate only to impose a sentence of finite imprisonment to be served immediately. Although complaint is made that proper consideration was not given to some other disposition of the matter, and particularly to a suspended sentence, it seems to me clear that the learned sentencing Judge did take into account other options. It could not be contemplated that he did not have in mind the possibility of a suspended sentence. There was no obligation to specifically spell out the fact that he had considered but rejected that alternative.
81 In all the circumstances I consider a sentence of 8 months' imprisonment to be served immediately was well within the discretion of the learned sentencing Judge. The principles set out in Lowndes v The Queen (1999) 195 CLR 665 at [15] apply to this case:
"The principles according to which an appellate court may interfered with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
82 However, there is a problem caused by the fact that the learned sentencing Judge purported to make a parole eligibility order. This he was precluded from doing, as the sentence was less than 12 months. It was brought to his Honour's attention after sentence had been pronounced that no parole eligibility order should have been made, because the Warrant of Commitment (Form 5 of the Sentencing Regulations No 1) was reissued or amended with the box "Eligible for Parole" marked "No", rather than "Yes".
83 Pursuant to s 37(1) of the Sentencing Act, the learned sentencing Judge could have recalled the order for parole. This he should have done
(Page 29)
- rather than simply amend the order by altering a form. Had he done so, counsel for the appellant may have sought to make submissions on the appropriate length of the sentence in view of the fact that the learned sentencing Judge had first indicated a wish to make a parole eligibility order. This he was precluded from doing. Whether it would have affected the length of the sentence is unknown.
84 I consider that the appellant should now have the opportunity of making any submissions she wishes to the learned sentencing Judge and I would therefore grant leave to appeal against sentence, quash the sentence of 8 months' imprisonment with eligibility for parole and direct that the matter be remitted to Fenbury DCJ for resentencing according to law. I would otherwise dismiss the grounds of appeal.
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