Police v Bridges No. Scgrg-98-31 Judgment No. S6582

[1998] SASC 6582

POLICE  v  BRIDGES

Magistrates’ Appeal

Bleby J

The respondent was charged on complaint with an offence contrary to s28(1)(b) of the Summary Offences Act 1953. The particulars of the offence alleged against her were that on 24 July 1997 at Wayville she received money paid in a brothel situated at an address in Wayville, in respect of prostitution. The maximum penalty for this offence in the case of a first offender is a fine of $1,000 or imprisonment for three months. For a second or subsequent offence the maximum penalty is imprisonment for six months or a fine of $2,000.

On 12 January 1998 the respondent pleaded guilty to the offence in the Adelaide Magistrate’s Court.  She was then represented by Mr McGee, a legal practitioner, who also appeared for her before me.  The circumstances of what happened at the hearing are described in an affidavit of Andrew Paech, the prosecutor, and I read para 3 of that affidavit.  He referred to the fact that the respondent pleaded guilty and he then said:

“Her Honour then, without giving me the opportunity to present the facts of the matter or to allege any prior convictions, asked Mr McGee if a penalty of no conviction, no fine, and no costs, would be acceptable.  Mr McGee replied that it was and her Honour simply ordered the defendant to pay the victims of crime levy without conviction or further penalty.  I recall that her Honour then stated words to the effect that this would be her penalty while the men were not charged with any offence for their part in crimes of this type.”

The complainant now appeals against the order made by the magistrate.  The grounds of appeal allege that the learned magistrate erred in failing to record a conviction and to impose a penalty. 

The first question to be considered is whether this is an appropriate case in which to entertain an appeal by the Crown against the failure to enter a conviction and to impose a penalty.  That question was recently considered by this court in Police v Cadd & Ors (1997) 69 SASR 150, where the court by majority decided that Crown appeals under s42 of the Magistrate’s Court Act 1991 should be in accordance with the principles established by the High Court in Everett v R (1994) 181 CLR 295, namely that Crown appeals against sentence should only be entertained in a “rare and exceptional case”. They will be confined, so the court said, to cases where it is necessary to establish some matter of principle for the governance and guidance of lower courts. The High Court held that that notion encompassed the correction of manifest inadequacy in sentencing standards, constituting an error in point of principle.

The majority in Cadd’s case expressly stated that what the High Court had said in Everett’s case was not inconsistent with what King CJ had said in R v Osenkowski (1982) 30 SASR 212 at pp212-213. That passage reads as follows:

“It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.  There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.  The proper role for prosecution appeals, in my view is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”

For reasons which I am about to mention, in my opinion there was in this case a significant error of principle by the magistrate which not only permits but requires this court to intervene.  It is not merely a matter of the magistrate, having heard all the material submissions, exercising powers of leniency according to the circumstances of the individual case before her.  In fact it was the refusal of the magistrate to entertain any submissions as to the circumstances of the crime and the circumstances of the offender that led her into serious error. 

The description of the hearing contained in the prosecutor’s affidavit to which I have already referred was not challenged on the appeal in any material terms.  In those circumstances it seems to me that the proceedings miscarried in two important respects.

In the first place, it is apparent from what occurred in the Magistrate’s Court that the magistrate did not allow the prosecutor to place before the court any information as to the circumstances of the offence or of the respondent’s antecedents. Section 10 of the Criminal Law (Sentencing) Act 1988 prescribes fourteen specific matters to which a court should have regard, where they are relevant, in sentencing an offender. It also requires that a court should have regard to “any other relevant matter”. Section 10 is not cast in mandatory terms but comprehensively summarizes the various matters to which any court should properly have regard if it is to carry out a responsible exercise of its sentencing discretion. The fact is that the magistrate in this case had regard to none of them, and as a result failed to exercise the sentencing discretion at all. Rather than entertain any information relevant to the determination of the appropriate penalty, the magistrate dealt with the respondent according to her perception of what she considered to be either a policy of not charging males for their part in what she described as ‘crimes of this type’, whatever that may mean, or a policy defect in the law where such persons could not be charged for appropriate offences.

Even if there were such a prosecution policy, and there is no evidence that there was, or even if the magistrate perceived that laws with respect to prostitution and laws regarding receiving money paid for prostitution were weighted in some way against females, that is no excuse for a magistrate not to hear and determine matters which properly come before the court, or not to deal with them in an impartial way, and in a way that the law requires. 

King AJ observed in Francis v Police (1997) 193 LSJS 443 at pp444-445, that it is not the role of the courts to tailor penalties to fit some social theory held by some sections of the public.

Likewise it is not the role of the magistrate to tailor a penalty or lack of it to suit some social theory of the magistrate concerned.  The only relevant social policy is that reflected by Parliament in the Acts which it passes, and Parliament in this case has prescribed that receiving money paid in a brothel in respect of prostitution is an offence, whether committed by a male or a female, and whether in respect of male or female prostitution.

In the second place the only authority of which I am aware by which the magistrate could have discharged the respondent without conviction, as she did, was s15 of the Criminal Law (Sentencing) Act.  That section reads as follows:

“15 (1) Where a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose any penalty, it may -

(a)...... Without conviction dismiss the charge, or

(b)Upon recording a conviction, discharge the defendant without penalty.

(2) A court may exercise the powers conferred by this section despite any minimum penalty fixed by a special Act.”

Once again the magistrate had before her no information on which she could possibly have reached a conclusion that the offence was trifling. 

An offence will not be trifling if it is a typical offence of the class proscribed: Mancini v Vallelonga (1981) 28 SASR 236 per Mitchell J at 239. However, before it can be ascertained whether an offence is trifling, many factors relevant to the offence itself and the circumstances of its commission will need to be reviewed. That was just not done in this case.

It will not be relevant to consider in this regard any circumstances relevant to the antecedents of the offender or the effect on him or her of the penalty, save to the extent that any such matters may have some bearing on the circumstances under which the offence was committed.  Nor will it be a relevant consideration that the magistrate, as a matter of policy or for some other reason, considers that the offender should not have been charged or that the magistrate holds some view about the policy of the law or of its administration, and whether it is or is not appropriate to charge the offender with the offence in question. 

So much was made clear in Phillips v Evans [1896] 1 QB 305 where the court had dismissed a charge against a dog owner for not having paid a licence fee when the owner had applied to commissioners for, but had not obtained, a certificate of exemption. Section 16 of the Summary Jurisdiction Act at that time was in similar terms to s15(1)(a) of the Criminal Law (Sentencing) Act.  Kay LJ said at p308:

“It comes to this - that as the commissioners have not granted a certificate of exemption to the respondent, although he refuses to pay for a dog licence, we (the magistrates) think his offence so trifling that we shall not convict.  How can it be said that a man refusing to pay the dog tax commits a trifling offence?  Of course if all the facts were not before us we could not interfere with the discretion of the justices; but here we have not only a full account of them, but also what amounts to an explanation of the reason why the magistrates think the offence a trifling one.  They think so because in their opinion the commissioners ought to have granted the respondent a certificate of exemption.  They have no right to entertain that question, and therefore they have no ground for saying that the offence is trifling.”

In the same fashion the magistrate here had no right either to entertain the question as to whether males in other circumstances should or should not have been prosecuted for offences relating to prostitution, or to entertain the question as to the perceived inadequacy of the law to deal with males who make use of prostitutes. 

Other judges have made it quite clear that a magistrate’s view of the appropriateness of the offence, or of the policy of the law, cannot be taken into account in determining whether an offence is trifling: Mancini v Vallelonga (supra) per Mitchell J at p239; Police v Hughes; Police v Hodge (1996) 188 LSJS 367 per Debelle J at p367.

As the proceedings have miscarried in these material respects the appeal must inevitably be allowed.  In the circumstances, and in the interests of justice, it is appropriate I think that I should determine an appropriate penalty after taking into account all the relevant circumstances. 

For that purpose I heard submissions from counsel for the appellant and for the respondent as to the circumstances of the offence and the antecedents of the respondent. 

The circumstances of the offence, in brief, were that at about 6.30pm on 24 July 1997 a police officer, in possession of a warrant, entered the premises concerned as an agent.  He was taken by another person in the premises to a room which contained a double bed with a towel arranged on it, in the centre, the room being lit by a single lamp on a bedside table.  There were various other relevant items of equipment near the bed. 

There was a conversation between the police officer and the respondent whereby the respondent stated that sexual services would be performed for the officer.  The police officer concerned took two $50 notes from his wallet and passed them to the respondent.  She received the money in her hands.  The police officer then identified himself as such and took the money back and other police then appeared. 

The respondent stated that she was just trying to make a living and at least was not stealing, and she declined to make any further statement in relation to the matter. 

During the course of the earlier conversation the respondent indicated the sort of services of a sexual nature that she was prepared to provide and that the price for the service would be $90 for half an hour. 

The respondent’s record of previous convictions includes some minor traffic offences, one minor offence of larceny and breaches of s21(1)(a) of the Summary Offences Act and of the Liquor Licensing Act, for both of which she was fined without conviction. 

She was born in Hong Kong in 1968.  She came to Australia at about the age of three and has spent most of her time in South Australia.  She has completed tertiary study at the University of South Australia and in 1991 was awarded a Bachelor of Arts degree.  She then became employed but has more recently been retrenched from her employment.  She had accumulated substantial debts, including a large number of traffic expiation fees.  She was on unemployment benefits and had borrowed money which she had agreed to repay at a fortnightly rate. 

She sought some conversion of the accumulation of her expiation fees to the performance of community service and was told that that was not possible.  She arranged with the Magistrates Court for payment of the accumulated fees at $30 a fortnight and that, together with the repayment of the loan, committed her to expenses greater than the unemployment benefits that she was receiving.  That is what led her to the situation in which she found herself.  She had apparently only been working in the premises for a matter of some days before she was apprehended.  I am told that she received the money against her employer’s instructions. 

In those circumstances, in my view a conviction and fine is appropriate, and taking into account all the circumstances that have been related to me I impose a fine of $100.  The magistrate previously ordered the payment of $28 by way of levy.  That of course will remain.  In addition there will be court fees of $73 and a prosecution fee of $16.  The total is $217.  I allow the respondent six months to pay the fine, costs and levy imposed.  There will be no order as to the costs of the appeal.