R v Armstrong

[1995] QCA 135

IN THE COURT OF APPEAL	[1995]	QCA	135
SUPREME COURT OF QUEENSLAND

C.A. No. 106 of 1995.
C.A. No. 518 of 1994.

Brisbane

[A-G v. Armstrong, R v. Armstrong]

T H E Q U E E N

v.

WARREN EARLE ARMSTRONG and
ELAINE OLGA MILICENT ARMSTRONG

(Respondents)

ATTORNEY-GENERAL OF QUEENSLAND

(Applicant) Appellant

C.A. No. 544 of 1994.

C.A. No. 543 of 1994.

T H E Q U E E N

v.

WARREN EARLE ARMSTRONG and
ELAINE OLGA MILICENT ARMSTRONG

Appellants

____________________________________________________________________

Macrossan C.J.
Pincus J.A.
Davies J.A.

____________________________________________________________________

Judgment delivered 07/04/1995

Judgment of the Court
____________________________________________________________________

APPEALS AGAINST CONVICTION DISMISSED. ATTORNEY-GENERAL'S APPEAL AGAINST SENTENCE DISMISSED. ATTORNEY-GENERAL'S APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL AGAINST SENTENCE REFUSED.

____________________________________________________________________

CATCHWORDS:CRIMINAL LAW - conviction - whether "prostitution" in s. 229K(2) of the Criminal Code refers only to a single act of prostitution - general rules of interpretation - context of other provisions of the Act.

Ss. 229K(2), 229H(1) Criminal Code ss. 4, 32C Acts Interpretation Act 1954.

SENTENCE - reference to a first offence in specifying maximum penalty under the Code implies that there has been no previous offence under the section the subject of the prosecution - court cautious in accepting unsworn and untested assertions that offender motivated by mistake of law - no interference with trial judge's conclusions on factual point.

EXTENSION OF TIME (sentence) - exercise of discretion not confined to "very

exceptional circumstances".

Counsel:	Mr I Callinan QC with him Mr P Nolan for the respondents/appellants.
Mr P F Rutledge for the applicant/appellant and respondent.
Solicitors:	John P Kelly & Co. for the respondents/appellants.
Director of Prosecutions for the applicant/appellant and respondent.

Hearing date: 07/04/1995.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 07/04/1995

These reasons relate to prosecutions under Ch. 22A of the Criminal Code, headed "Prostitution". Both Warren Earle Armstrong and Elaine Olga Milicent Armstrong appeal against conviction, each having been convicted on four counts. The Attorney-General has appealed against Elaine Armstrong's sentence and, being out of time, applies for an extension of time within which to file a notice of appeal against Warren Armstrong's sentence.

Although the indictment initially contained eight counts, the Crown proceeded on four counts only, the others being struck out. Count 1 alleged that between 31 January 1993 and 15 July 1993 at Brisbane each of the accused, being interested persons in relation to certain specified premises, knowingly allowed the said premises to be used for purposes of prostitution by two or more prostitutes; that is the offence defined by s. 229K(2) of the Code. The 5th count was an allegation that on diverse dates between 31 January 1993 and 15 July 1993 at Brisbane each accused knowingly participated directly in the provision of prostitution by another person, namely a woman known as Michelle Karoline Greenaway. The 6th and 7th counts differed from the 5th only in that, as to each, a woman other than Ms Greenaway was named.

The outline of argument in respect of the appeals against conviction raises two points, but only one is pursued; it is that the provisions under which the charges were laid refer to "prostitution", which means a single act of prostitution. If that is correct then the appeals must succeed, for the indictment treats each count as capable of being committed over a period of time and the judge gave directions to the jury consistently with that - i.e. on the basis that the Crown case depended upon proof of the state of affairs during the period charged.

The first count is based on s. 229K(2) of the Code which reads in part as follows:

"A person who -
(a)is an interested person in relation to premises; and
(b)knowingly allows the premises to be used for the purposes of prostitution by 2

or more prostitutes;

commits a crime."

The argument is that the word "prostitution" in the provision which has been quoted refers to a single act of prostitution, not to a series of acts. The definition of "prostitution" is to be found in s. 229E, subs. 1 of which reads as follows:

"A person engages in 'prostitution' if the person engages in a sexual act with

another person under an arrangement of a commercial character."

"Sexual act" in turn is defined by s. 229D, and it is enough to say that the definition is
framed in terms of a single act, not a series of acts.

If the contention advanced on behalf of the Armstrongs is correct, then the legislative intention could have been made absolutely clear by including the words "a single act of" before "prostitution" in s. 229K(2)(b); it would then be necessary for the Crown to particularise the single act relied on. On the other hand, if the Crown's contention is right, then the word "prostitution" in the expression "for the purposes of prostitution" may refer to prostitution generally, to a continuing activity consisting in a series of acts not individually specified.

Subject to s. 4 of the Acts Interpretation Act 1954, words in the Code which are in the singular include the plural: s. 32C of that Act.

Considerations in favour of the Crown's construction include the fact that it seems improbable that the legislature intended that an "interested person", for example an owner of a brothel, must be proved to have knowledge of a particular act of prostitution carried on in the brothel, to support a charge of knowingly allowing the premises to be used for the purposes of prostitution. The owner may be proved to be perfectly well aware of the use to which the premises are being put, but have no specific knowledge of the details of what is done there. Perhaps more importantly, it seems clear enough that in other provisions in the chapter the word "prostitution" is used as referring to a course of conduct rather than a single identified act. An example is s. 229G(1)(b), which makes it an offence to procure another person to leave Queensland for the purpose of engaging in prostitution elsewhere, or to come to Queensland for the purpose of engaging in prostitution. It is evident that in these provisions the word "prostitution" is used in a sense which does not require proof of any single act of prostitution; indeed the offence is complete without proof of any act of prostitution. Then there is s. 229H(1) which says that:

"A person who knowingly participates, directly or indirectly, in the provision of

prostitution by another person commits a crime."

A number of the examples set out in the statute make it clear that the legislature contemplated that this offence, under s. 229H(1), may be committed otherwise than in relation to a single specific act of prostitution. Example 2 is as follows:

"A person who provides financial or other resources to enable the establishment of premises from which prostitution is carried out or coordinated knowing that the premises will be so used".

A money lender who finances the setting-up of a brothel may be held to have knowingly participated in the provision of prostitution, even if unaware of any single specific act of prostitution carried on there.

So far from the context suggesting that, for the offence here in question to have been committed, it must be shown that the interested person knew of a single act of prostitution, it seems to make it plain enough that a course of conduct constituting prostitution may be relied on under s. 229K(2)

The other three counts are all under s. 229H(1), which has been quoted above in discussing the interpretation of s. 229K(2). It is unnecessary to discuss the point further, with respect to s. 229H(1); the examples plainly tend against a reading of the word "prostitution" in that provision which would confine its meaning to a single sexual act. As to the use of examples set out in an Act, see s. 14D of the Acts Interpretation Act 1954.

It follows that the only point taken on the conviction appeals fails.

As has been mentioned, there is an application for an extension of time to appeal against sentence and an appeal against sentence, each instituted by the Attorney-General; the appeal relates to Elaine Armstrong's sentence and the application to Warren Armstrong's. Elaine was fined $2,500 on count 1 and $500 on each of the other three counts, and Warren was fined $5,000 on count 1 and $500 on each of the others. It is convenient to deal with the merits before saying anything about the consequence of the time for filing the appeal against Warren Armstrong's sentence having expired.

In respect of each count, the Code prescribes a maximum penalty of 3 years imprisonment for a first offence. It was suggested on behalf of the Attorney that, as each of the Armstrongs has convictions in respect of offences of a similar kind under previous legislation, neither was a first offender for the purposes of this section. We were referred to no authority to support that proposition and the better view appears to be that the reference to a first offence implies that there has been no previous offence under the section the subject of the prosecution. Nevertheless, Warren in particular seems to have been lightly punished. Among his convictions are four of official corruption, which produced a sentence of 5 years imprisonment, and a number of offences relating to prostitution.

The explanation of the level of punishment seems to have been a version of events placed before the primary judge, to the effect that there was some uncertainty in the Armstrongs' minds as to the effect of the relevant law. Mention was made of legal advice having been obtained from senior counsel and to certain proceedings brought before this Court in its civil jurisdiction, to obtain a definitive interpretation of the statute. It was argued for the Armstrongs below that: "You would have to say there are two interpretations and you wouldn't know which way a court would go, though you could give an advice saying what you probably thought..." and other assertions along that line were put forward.

Whatever might have been the legal point which was exercising the minds of the Armstrongs and their legal advisers, it was not thought to be of sufficient substance to be aired before this Court; here, the only point taken was one which related to the form of the indictment, not to the legality of the Armstrongs' activities, which were as follows. They ran an establishment known as The Players Inn at Spring Hill. There was evidence that the premises were advertised in the Yellow Pages under "Escort Section - Girls Waiting" and in a newspaper under the heading "Casual Liaisons". At The Players Inn there were various areas including a bar and a number of small rooms; men coming to the premises were taken to one of these rooms and offered a choice of women whose company could be had for $40 per half hour. The couple would leave the premises and go to a nearby motel or flat where sexual acts were negotiated and performed for a cash consideration. The function of the premises, then, was to provide a place at which people desiring to use prostitutes could meet and select them.

It was argued, on behalf of Elaine, that "there was no evidence to show exactly how much, if any, money was made from the business". However, that contention, contained in the outline of argument, was not elaborated on before us and in particular it was not suggested that the Armstrongs' venture, carried on at considerable expense, should be assumed to be of a charitable character.

The learned primary judge remarked by way of giving reasons for sentence:

"So far as both accused are concerned, I accept everything that your counsel has said in relation to you. Sentence is governed, to some extent, by the uncontested facts in relation to the attempts made to find some legal resolution of what was happening at the Players Inn".

A court should be cautious in accepting, for the purposes of sentence, unsworn assertions, untested by cross-examination, that the offender was motivated by some mistake or uncertainty as to the law, as here; the content of the offender's mind at the time of the offence is unlikely to be a matter about which Crown counsel can obtain instructions. But in the present case the primary judge accepted such assertions, and the better course appears to be not to interfere with his Honour's conclusion on that factual point. It follows that there is no ground for interfering with the sentences.

Our conclusion on the merits makes it unnecessary to consider a submission, made by counsel for the Armstrongs, that leave to appeal against Warren Armstrong's sentence should not be given unless there are "very exceptional circumstances", that proposition being said to be supported by Trew (1979) Qd.R. 29 and other cases. It has to be said that this Court's practice is not to confine the exercise of its discretion to grant an extension of time to apply for leave to appeal against sentence to instances in which the circumstances are very exceptional. If Trew stands for that view of the law, we would not follow it.

The appeals against conviction are dismissed. The Attorney-General's appeal against sentence is dismissed, and the Attorney-General's application for an extension of time refused.