R v Tilley

[1996] QCA 310

[1996] QCA 310

COURT OF APPEAL
DERRINGTON J
MACKENZIE J

WHITE J

CA No 197 of 1996
THE QUEEN
v.

ANNE MARIE TILLEY Applicant

BRISBANE

..DATE 01/08/96

JUDGMENT
010896 T18/SA M/T COA175/96

DERRINGTON J: I will ask Justice Mackenzie to deliver the first judgment.

MACKENZIE J: The applicant pleaded guilty in the District Court to offences of procuring a woman to engage in prostitution, having an interest in the premises for prostitution and knowingly participating in prostitution.

On the first count she was given a suspended sentence of two years, operative for three years. On the other two, fines were imposed. The only argument is in relation to count 1 as the applicant's complaint is that the sentence lacks parity with a sentence imposed on Hector Hapeta who had pleaded guilty, summarily, to the same offences. The fines with respect to counts 2 and 3 were identical in each case.

At the time of the commission of the offences, Hapeta was living on home detention in a halfway house following partial completion of sentences for heroin trafficking and official corruption. The applicant had also been convicted of official corruption and was on parole at the time of the commission of the present offences. However, by the time that she was sentenced, it was apparent that she would not be dealt with for breach of parole by incurring the present convictions.

The applicant had a very large number of prostitution-related convictions from 1972 to 1982, including offences of keeping premises for the purposes of prostitution. The charge in respect of procuring prostitution in respect of which the application is made arose from a meeting between Hapeta, the

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applicant, another man and a prostitute at which the prostitute
was engaged to work in a brothel at Tweed Heads.

The applicant drove the prostitute to Tweed Heads on two Mondays and collected her from Tweed Heads on the Friday of each week. After that, the prostitute worked in Brisbane from premises with which the applicant was associated. The offences were committed, according to my calculations, about 18 months after the expiry of the non-parole period for the sentence for official corruption.

Hapeta had been sentenced in the Magistrates Court in July 1995 and was returned to prison in consequence of his conviction for the prostitution-related offences. That fact was before the learned sentencing Judge. The applicant's counsel said, and I quote, "He was fined for them but he's been taken back into custody, so he's worse in that position."

It is against that background that the parity argument must be considered. From Lowe v. The Queen (1984) 154 Commonwealth Law Reports 606, the principle can be derived that mere disparity between sentences imposed on co-offenders is not of itself a ground for intervention of an appellate court. The difference between the sentences must be manifestly excessive and the Court will intervene in such a case on the ground that the disparity engenders a justifiable sense of grievance on the part of the accused on whom the heaviest sentence is imposed on the ground that the disparity gives the appearance that justice has not been done.

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Whether there is a valid argument based on the ground of parity therefore involves a consideration of all the factors in the case so that it may be tested against the propositions in Lowe.

The sentencing Judge referred to the fact that the applicant had numerous prostitution-related convictions. He also observed that she had been convicted of a serious corruption charge relating to the payment of protection money to police in connection with prostitution. He said that he thought he could distinguish between the applicant's criminal history and Hapeta's, not in terms of overall seriousness but in terms of convictions for offences involving prostitution, and that the applicant had considerably more.

He also referred in his remarks upon sentence that Hapeta was back in prison because he had breached his parole. The fact that he had suffered that consequence was therefore not lost upon the sentencing Judge.

Having regard to those factors, it seems to me that the sentencing Judge, in imposing a sentence of suspended imprisonment, was not unmindful of the need to achieve a certain amount of parity as between the offences. It seems to me that the way in which the sentence complained of was imposed does not, in the result, display the lack of parity of which complaint is made and, in my view, the appeal must fail. In my opinion, the application should be refused.

DERRINGTON J: I agree.
WHITE J: Although the learned sentencing Judge referred to

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Hapeta as being on parole or quasi parole in his sentencing remarks when, in fact, as I understand it, he was on home detention and detention at Kennigo Street, nonetheless, in so describing the effect on Hapeta of what had occurred in respect of these offences, the learned sentencing Judge was clearly, in my view, seized of the understanding that for Hapeta a consequence of his conviction was that he would be returned to the prison system.

In those circumstances, it cannot be said that he failed to take into account that factor, and therefore was mindful of the question of parity between the applicant today and Hapeta, and I would agree with the orders proposed.

DERRINGTON J: The order of the Court is that the application is refused.

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