R v Crocker

[1998] QCA 153

[1998] QCA 153

COURT OF APPEAL
PINCUS JA
McPHERSON JA

MUIR J

CA No 14 of 1998

THE QUEEN
v.

GEOFFREY LUKE CROCKER

BRISBANE
..DATE 16/04/98
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PINCUS JA: This is an application for leave to appeal against
sentence. The applicant was convicted after a trial in the
District Court on eight counts being offences committed between
1 January 1991 and 20 December 1994; that is, at various times
over a four year period. The first five counts on which the
applicant was convicted alleged that he kept a house for the
purpose of prostitution. Count 6 alleged that, being an
interested person in relation to certain premises, he knowingly
allowed them to be used for the purpose of prostitution by two
or more prostitutes. The last two counts alleged that he
knowingly participated directly in the provision of prostitution
by other persons.

The applicant is 51 years of age and has an extensive criminal history, the details of which I will mention later. He was, in effect, given a sentence of three years imprisonment. For the more serious five offences, the learned District Court Judge imposed a term of three years and for three of the counts which were of lesser significance His Honour imposed a term of 12 months imprisonment, all concurrent.

The effect of the imprisonment was to reactivate a previous sentence, as I shall mention. The applicant's previous criminal history consisted mainly of offences relating to sex, in particular, prostitution, and also offences having to do with gambling and liquor. It has to be said in his favour, however, that he was never thought to be a serious enough offender to be imprisoned until 1989, when he was convicted of 16 prostitution charges and sentenced to three years imprisonment on each. Leaving aside offences other than those to do with prostitution 160498 T7/JAP/20 M/T COA 77/98

and the like, one finds in his record convictions for exhibiting obscene movies in 1977 and convictions of using premises for prostitution in 1977, 1978 (three times), 1979 (twice), and 1981. There were also, as I have mentioned, convictions for having kept a place for the purpose of prostitution in 1989 which produced a sentence of three years imprisonment. That imprisonment would have ended on 10 August 1992, since the sentence was imposed on 11 August 1989.

It was pointed out in the respondent's outline that four of the counts presently in question were committed while the applicant was on parole in respect of the 1989 sentences. He had served precisely half of that three year term partly on home detention and during the latter half of the three year term he went back into the prostitution business.

The applicant was initially indicted on 15 counts; he pleaded guilty on the second day of the trial to three of them and was found guilty on five others. It is not possible, as it seems to me, to determine, with any accuracy at all, how much money the applicant received from these activities. As to count 1, the evidence showed that the applicant was in the brothel business as a principal. It was said that $8,000 to $10,000 was divided between the partners each week. As to count 2, there were 13 or 14 sex workers and it seemed likely that the applicant was the sole proprietor of the business. Count 3 related to premises at which there were between 12 and 25 sex workers and, again, the applicant was a principal and took part in the business. With respect to count 7, I should mention the takings were apparently split five ways. But it is not possible or profitable to 160498 T7/JAP/20 M/T COA 77/98

attempt to estimate the total financial return which the
applicant received over this period of years.

It is necessary to mention, however, that the businesses were conceded to be quite substantial.

It is necessary to say, as pointed out by Mr Rafter on behalf of the applicant, that the Judge in his sentencing remarks and in discussion earlier held, in effect, that as to three of the counts, numbers 9, 11 and 12, the applicant was sentenced on the basis that he was taking a minor role. His Honour said during discussion with Mr Jerrard Q.C., who appeared for the applicant below:

"As far as his involvement with respect to counts 11 and 12 are concerned, I propose to sentence him on the basis that he was a driver, that he drove periodically taking prostitutes to out calls and I am not persuaded to conclude that he was paid."

In respect of count number 9, His Honour said, during his
sentencing remarks;
"You pleaded guilty to count 9, which relates to your own home

... and the evidence seems to support the basis upon which your counsel indicated you entered your plea, namely, that you were an unenthusiastic permitter of activities from that house ..."

Therefore, one has a total of five offences of being involved, to put it simply, with the running of a brothel business and three offences of being involved with the running of a brothel but in a much lesser sense. What the judge did was to impose a sentence of three years for the major offences, as I have mentioned, and one year for the lesser ones, but all concurrent.

His Honour made those sentences concurrent upon any other

160498 T7/JAP/20 M/T COA 77/98
sentence which the applicant might be required to serve; that
was a reference to the balance of the three year sentence
imposed in 1989, of which only half had been served.

The result of section 190 of the Corrective Services Act 1988 is that the sentencing of the applicant on this occasion produced the result that he became liable to serve the balance on the 1989 sentence, subject to the discretion of the Queensland Community Corrections Board, referred to in subsection 190(2). However, the discretion is not, in this instance, a matter of any importance, because the fact that His Honour made the new three year sentence concurrent with the former sentence means that the precise length of the former sentence is of no great significance.

What Mr Rafter complains about, in essence, is that His Honour, while imposing a sentence of three years imprisonment, being the maximum, made an order recommending that the applicant be eligible for release on parole after two and a half years from the date of sentencing, that is, two and a half years from 12 December 1997. Mr Rafter argued that that was an unusual course, that is, to extend the date of eligibility for parole from one and a half years to two and a half years. But he did not suggest that its unusual character is, in itself, sufficient to warrant interference by this Court. In the end, Mr Rafter submitted that, taking the whole of the circumstances into account, a sentence of three years' imprisonment with a recommendation for release on parole after two and a half years was so excessive as to require correction.

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The fact that the three years is the maximum seems to me to be a
matter in favour of the applicant but, on the other hand, there
were five major offences, as I have mentioned, and for the five
considered as a group it could not be thought that the
imposition of a three year penalty was manifestly excessive.

My own view of the matter is that His Honour tried to structure the sentence in such a way as to produce what he regarded as an adequate penalty for this repetition of previous criminal behaviour while on parole, considered against the background of a substantial pattern of previous involvement in prostitution and the like.

In my opinion, if one asks the question: Was it manifestly excessive to impose a sentence of three years imprisonment with a recommendation for release on parole deferred by a year? the answer must be in the negative. That is, while I concede that it is not a particularly common course to extend the non-parole period as His Honour has done, in the circumstances of this case it appears to me that it reached a reasonable outcome. I would therefore refuse the application.

McPHERSON JA: I agree.
MUIR J: I agree.

PINCUS JA: The application is refused.

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