R v Hickey - [2001] VSCA 75

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 152 of 2000

THE QUEEN
	v.
DOMINIC PATRICK HICKEY

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JUDGES:	WINNEKE, P., TADGELL and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 May 2001
DATE OF JUDGMENT:	25 May 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 75

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Criminal law – Sentence – Appellant recruiting prostitutes to work in brothel and availing himself of service of prostitutes – Sentencing judge erring in ordering cumulation in respect of representative counts and fixing same sentences without regard to differing degrees of criminality – Sentencing discretion re-opened – Sentence of seven years’ imprisonment with minimum term of four years six months reduced to six years and four years respectively.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. S. Pullen	Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr. M.J. Croucher	Hale & Wakeling

WINNEKE, P.:

I agree with Buchanan, J.A. that the appeal should be allowed and that the appellant should be re-sentenced in the manner which his Honour proposes.

TADGELL, J.A.:

I agree with Buchanan, J.A.

BUCHANAN, J.A.:

Between 1998 and 1999 the appellant associated with Fred Lelah and Rosa Brcic, who conducted the business of a brothel licensed under the Prostitution Control Act 1994 ("the Act"). The appellant, who is now 36 years of age, gained a law degree from Melbourne University and in 1990 commenced practice as a member of the Victorian Bar. He left the Bar in 1992 as he could not obtain enough work, and thereafter joined the demi-monde of St Kilda and Carlton, where he met Lelah and Brcic. The association between the three became close, extending beyond social contact to participation in the business conducted by Lelah and Brcic. The appellant acted as an agent recruiting prostitutes to work in the business, arranging for the provision of the services of prostitutes to others and availing himself of the services of prostitutes.

As a result of these activities on 6 June 2000 the appellant was arraigned in the County Court and pleaded guilty to a presentment containing 17 counts. There were seven counts of entering into an agreement under which a child was to provide sexual services for payment, one count of being an unlicensed prostitution service provider, six counts of supplying or offering to supply a drug of dependence or making a false representation with intent to induce a person to engage or continue to

engage in prostitution, and three counts of taking part in an act of sexual penetration with a child between the ages of 10 and 16 years. Eight of the counts were representative counts, not in the sense of being representative of a larger number of like offences involving a number of different persons, but rather in the sense of being representative of like offences committed against or in respect of the same victim. Brcic and Lelah were also charged with a number of similar offences and convicted.

Save for the offence of taking part in an act of sexual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Hickey [2001] VSCA 75
Case: [2001] VSCA 75
Decision Date: 25 May 2001

CaseChat Overview and Summary

The case before the court involved an appellant who was found guilty of recruiting prostitutes to work in a brothel and availing himself of the services of these prostitutes. The sentencing judge had ordered the cumulation of sentences for the representative counts, imposing identical sentences without adequately considering the differing degrees of criminality involved. The appellant challenged this decision, arguing that the sentencing judge had erred in their approach. The court was required to determine whether the sentencing judge had correctly exercised their discretion and whether the sentences were appropriate in light of the differing degrees of criminality.

The court examined the principles of sentencing, particularly focusing on the need for a sentencing judge to consider the degree of criminality involved in each offence. It was established that the sentencing judge had erred by ordering the cumulation of sentences without regard to the differing degrees of criminality. The court found that the sentencing discretion should be re-opened to allow for a more nuanced approach to sentencing. As a result, the original sentence of seven years' imprisonment with a minimum term of four years six months was reduced to six years' imprisonment with a minimum term of four years.

The court's decision highlighted the importance of a sentencing judge carefully considering the degree of criminality in each offence when determining the appropriate sentence. By re-opening the sentencing discretion, the court ensured that the sentences imposed were reflective of the differing levels of criminality and provided a more balanced and just outcome. This case serves as a reminder to sentencing judges of the need to carefully consider the specific circumstances of each offence when determining the appropriate sentence.

Orders