DPP v Glazner [2001] VSCA 204

Court of Appeal (Vic)|2001-11-21|Before: CALLAWAY and BUCHANAN, JJ.A. and O'BRYAN, A.J.A.

Criminal law - Sentencing - Being an unlicensed prostitution service provider - Living on earnings of prostitution - Crown appeal against sentence - Sentences of four months' and six months' imprisonment increased to sentences between nine and 24 months' imprisonment - Fines imposed below not increased - By majority, total effective sentence of 30 months' imprisonment wholly suspended - Prostitution Control Act 1994, ss. 10, 22.

After a trial of a little over three weeks the respondent was convicted on five counts of being an unlicensed prostitution service provider contrary to s.22 of the Prostitution Control Act 1994 ("the Act") (counts 1, 3, 4, 5 and 6) and two counts of living on the earnings of prostitution contrary to the provisions of s.10 of the Act (counts 2 and 7). The maximum penalties for an offence against s.22 were three years' imprisonment or a fine of $36,000 or both until s.70 of the Sentencing and Other Acts (Amendment) Act 1997 came into operation on 1 September 1997, when the maximum term of imprisonment was increased to five years. The maximum penalties for an offence against s.10 were four years' imprisonment or a fine of $48,000 or both until 1 September 1997, when the maximum term of imprisonment was increased to five years and the maximum fine was increased to $60,000. Counts 1 and 2 were alleged to have been committed between 2 May 1997 and 31 December 1997. The remaining counts were alleged to have been committed in 1998. The sentencing judge, correctly in my view, proceeded upon the basis that the lesser maximum penalties were those relevant to counts 1 and 2.

The respondent was sentenced to a term of four months' imprisonment on each of counts 1 and 2 and to a term of six months' imprisonment on each of counts 3 to 7 inclusive. The difference in the sentences was due to the increase in maximum penalties which preceded the commission of the offences the subject matter of counts

3 to 7. The sentencing judge ordered that two months of each of the sentences on counts 1, 2, 4, 5, 6 and 7 be served cumulatively upon the sentence imposed upon count 3 and upon each other, creating an effective total term of 18 months' imprisonment. His Honour suspended the whole of the sentence for a period of two years. The respondent was also fined $3,000 on each of counts 1 and 2 and $5,000 on each of the remaining counts, a total of $31,000.

The Director of Public Prosecutions has appealed against the sentences. He contends that the sentences are manifestly inadequate in failing to properly reflect the gravity of the offences, the need for general and specific deterrence, the condemnation of the community and the purpose of the Act and gave too much weight to mitigating factors and the submission that the respondent intended to comply with the Act. The appellant has also appealed against the suspension of the sentence and the amount of the fines.

The respondent is now 59 years old. After conducting a number of different businesses the respondent leased the Clifton Hotel in Kew in 1988. In connection with the hotel the respondent operated amusement machines. In 1995 he was convicted of owning an amusement machine without a licence and two charges of permitting an unlabelled amusement machine to be used, and was fined a total of $900. Those were his only prior convictions.

The sentencing judge found that in his hotel trade the respondent employed striptease artists and as a consequence conceived the idea of providing prostitution services as a person licensed to do so under the Act. The respondent made a substantial financial commitment to the business of a brothel-keeper before discovering that obtaining a licence was not a quick or simple process. He launched and maintained his business without a licence. The respondent obtained sex workers from an agent in Thailand at a cost of $18,000 to $20,000 for each worker. The sentencing judge said that due to the respondent's considerable financial outlay, he could not afford to wait for the grant of the licence. It is to be noted, however, that the respondent's breaches of the Act were flagrant. He may have desired to obtain a licence, but in the end he was determined to conduct brothels with or without a licence. The Thai women employed by the respondent were able to work in Australia as a result of the manipulation of Commonwealth immigration laws. The sentencing judge said that there was no suggestion in the material before the Court that the respondent forced the Thai women into the sex industry. He exploited them in the sense that he induced them to work for him by offering money, for which they had demonstrated need. The respondent does not appear to have physically abused his workers, but he exercised a close control over their domestic and working conditions.

The respondent carried on business at premises in Tope Street, South Melbourne, behind the façade of a person licensed under the Act. The business closed when the permit granted to the licensee expired. The respondent thereupon took over the business of another licensed prostitution service provider in City Road, South Melbourne, relegating the licence holder to a subservient role. Once again the respondent acted as if he were the licensee and received the bulk of the proceeds of the business. The respondent also provided the services of prostitutes at unlicensed premises in Ferrars Street, South Melbourne, and escort services from the Clifton Hotel.

In my opinion the sentencing judge erred in imposing terms of imprisonment which did not adequately reflect the gravity of the offences overall and did not distinguish between offences of materially differing degrees of seriousness. The respondent conducted considerable businesses producing significant income. Although for the most part the businesses were within the system of regulation created by the Act in that there were licences associated with the premises from which most of the business was conducted, the respondent himself was outside the system. The offences were not isolated or spontaneous breaches of the Act: the deliberate evasion of the requirements of the Act occurred on a daily basis over a considerable period of time. Accordingly, the offences were relatively serious breaches of the provisions of the Act. Sentences of between 8% and 11% of the maximum terms of imprisonment in my view did not reflect the criminality of the respondent's conduct. Accordingly, I am of the view that the particular sentences were so inadequate as to constitute error in principle.[1]

The counts covered a wide range of offending conduct. For example, count 3 concerned the respondent's conduct of the business at City Road for a period of some 11 months, which generated large sums of money. On the other hand, the evidence led in respect of count 6 related to the operation of an unlicensed brothel for a period of three weeks. The same term of imprisonment was imposed on both counts. While it is often appropriate to impose like punishment for crimes with similar but not identical circumstances, in the present case I am of the opinion that the scale of the crimes committed by the respondent was so dissimilar that different sentences were required in order to properly reflect the gravity of the offences.

I would re-sentence the respondent to a term of 15 months' imprisonment on count 1, to a term of 15 months' imprisonment on count 2, to a term of 24 months' imprisonment on count 3, to a term of nine months' imprisonment on count 4, to a term of 18 months' imprisonment on count 5, to a term of nine months' imprisonment on count 6 and to a term of 12 months' imprisonment on count 7. I would order that three months of each of the terms of imprisonment imposed in respect of counts 1 and 5 be served cumulatively upon each other and upon the term imposed in respect of count 3. The total effective sentence is 30 months' imprisonment.

While the total effective sentence is that which I consider appropriate having regard to the fact that this is a Crown appeal in which the respondent is exposed to double jeopardy, the individual sentences reflect my view of the appropriate sentences to be imposed by a sentencing judge. The Act creates a system of strict regulation as the price of permitting prostitution to be conducted lawfully. The Attorney-General said, in her second reading speech:

"[W]e cannot fool ourselves that an attempt to completely suppress prostitution through criminal sanctions will ever succeed. Most Victorians recognize that prostitution will continue, whatever the law, as long as there is demand for commercial sexual services. The solution is a strict system of regulation. With a tough set of controls, we can raise a barrier against organized crime. We can protect our communities against the uncontrolled spread of brothels. We can afford some level of protection to those who have resorted to prostitution. Most importantly, we can guard our children from the effects of prostitution."

Strict regulation and protection of the community and those who resort to prostitution can only be achieved by the imposition of penalties that take into account the maximum sentences prescribed by the Act and their stated purposes.

The appellant contends that the fines imposed by the sentencing judge were inadequate having regard to the profits which the respondent made from the business and the circumstance that when he was sentenced he was an undischarged bankrupt. There is a certain tension between the grounds. The financial position of the respondent at the time when he was sentenced meant that the fines could only be paid from moneys earned or acquired by the respondent in the future. The fines have now been paid in full, and as I think the sentences of imprisonment should be increased, I am of the view that it is inappropriate to increase the fines.

There remains the question whether the sentence should have been suspended at all or wholly or in part. The appellant contended that the suspended sentence was less onerous than a term of real imprisonment and was inappropriate having regard to the respondent's flagrant disregard for the law, his lack of remorse and the absence of any character evidence led on his behalf in the course of the plea. On the other hand, the respondent's age, his previous good character save for minor and seemingly irrelevant prior convictions, and his long working and useful life in my view held out reasonable prospects for his rehabilitation. To now order the respondent's immediate incarceration would be a drastic step and I do not consider that it has been demonstrated that the sentencing judge erred. In my view he was entitled to be satisfied pursuant to s.27(1) of the Sentencing Act 1991 that it was

desirable to wholly suspend the sentence in the circumstances.[2] I would, however, extend the period of suspension to two-and-a-half years to reflect the increase in the total effective sentence.

For the foregoing reasons I would allow the appeal for the purpose of substituting the sentences set out above for the particular sentences imposed by the sentencing judge and altering the period of suspension. Otherwise I would confirm the orders which he made.

I have read the reasons of Buchanan, J.A. in draft and agree in his opinion that the sentencing judge erred in imposing terms of imprisonment which were manifestly inadequate. I agree in his opinion that a total effective sentence of 30 months' imprisonment should be substituted for the sentences imposed in the court below.

I do not agree that the substituted sentence of 30 months should be wholly suspended. As I am in the minority I propose not to state how I would deal with the incarceration issue.

I would allow the appeal and substitute the individual terms of imprisonment proposed by Buchanan, J.A. which, with cumulation, produce a total effective sentence of 30 months.

[1] See R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522 per Charles, J.A.

[2] See R. v. Groom [1999] 2 V.R. 159 at 169 per Batt, J.A.

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