Court of Appeal (Qld)|1996-11-12|Before: Pherson JA, Dowsett J, White J

R v Beissel & Beissel [1996] QCA 488 (12 November 1996)

McPHERSON JA: These are applications for leave to appeal by Robert Beissel and Kenneth Beissel against fines of $10,000 each, in default imprisonment for four months, imposed in respect of three counts of participating in the provision of prostitution, to which each of the applicants pleaded guilty in the District Court at Rockhampton.

The first count related to such an event or events occurring on a date in August 1995, the second and third to successive days in October 1995. The application for leave to appeal is also directed at the Judge's decision to record convictions in the case of each applicant.

Prostitution is defined in section 229E of the Code in such a way as to make it prostitution if a person engages in a sexual act with another person under an arrangement of a commercial character. Sexual act is also defined in the Act, but I think it is not necessary to examine the definition in any detail because, for present purposes, it is clear that the incidents that occurred which led to the applicants' conviction and sentencing amounted to sexual acts.

The applicants satisfied the definition because as the licensee and the manager of The Ponderosa Hotel at Rockhampton they engaged various women to carry out a series of quite shameless sex exhibitions and activities at the hotel and also on a ship cruise which they arranged to take place in the Fitzroy River. It would take too long to condescend to detail in describing the incidents that were presented to patrons on these occasions, but those wishing to savour the particulars may study the appeal record or perhaps look at the videotape which was filmed by an undercover police officer who was present during the exhibition.

In so far as the appeal is directed at the quantum of the fines as being excessive, it is evident that the sentencing Judge was strongly influenced by the fact that the offences had a substantial commercial motivation. They were intended to, and did attract to the applicants' licensed premises, numerous members of the public, who were men who paid admission fees, the total of which could not have been negligible. In addition, of course, it was no doubt expected that presenting exhibitions of this kind would have a tendency to attract clientele to the hotel who might go there in the hope of seeing something of the same kind on future occasions.

In the course of the proceedings the sentencing Judge inquired about the amount of profit that had been obtained by the applicants from these activities. It was not, according to counsel for the applicants, possible for him to give any estimate because he had no instructions on the matter. The Court was therefore left to make estimations of its own and, in the course of discussing it, the Judge suggested that some thousands of dollars profit must have resulted.

The applicants in this Court are not really in a position to challenge this rough assessment made by the Judge because they themselves made no effort to calculate or disclose the sums received, whether directly or indirectly, from their activities. I am not prepared to accept that it would not have been impossible for some attempt to have been made to ascertain the impact on the takings of these activities. However that may be, it is not really open to us to arrive at a basis on which we could say that Judge's estimate was wrong; and, indeed, I do not think that the notice of appeal specifically asks us to take that course.

In these circumstances, the Judge, in fixing the amount of the fines, was justified in giving substantial emphasis to the element of deterrence with a view to discouraging similar forms of enterprise. The fines were, I think, high when all matters are considered, but the case is one in which the applicants presented to the public, and took steps to encourage them to come and watch, a form of mass entertainment of a distinctly prurient kind. Having done so once in August, they proceeded to do so again on two days in October.

They expected to be punished, as indeed is clear from what was said in the proceedings below, and it must also be said that there was a strong element of defiance in their attitude to the law on this matter. On one or more of the occasions on which these shows were presented, police were present in what may not altogether be accurately described as an undercover character. I say that because their identity was known or soon found out by the applicants, and one of them proceeded to ridicule a police officer who was present, no doubt to the delight of the crowd, and he was then made the target of attentions of one of the women who were engaged in performing some of the acts complained of.

The circumstances of the case are such that what these two applicants were doing was introducing, into what ought to be a fairly strictly controlled regime and business of running public houses, an element which it would, to any ordinary person, be considered distinctly undesirable. They did so for profit and in the knowledge that they were likely to be prosecuted for what they had done. They made a profit out of it and they cannot have expected to emerge unscathed from the course they chose to adopt.

The fact is that although the penalty imposed by the Judge was in my view high, it is one in which, so far as one can gather, the maximum is in the order of $25,000 and it has recently been increased by some 25 per cent, or so we were told. In all the circumstances, although I have some sympathy with the application in relation to the quantum of the fines, I think that the amount imposed by the learned Judge below was within the limits of a proper sentencing discretion and that we should not disturb it.

The other question concerns the application to alter the Judge's decision to record the convictions. In the material, and certainly in the written submissions before us, attention appeared to focus on that particular consequence of the applicants sentences.

As to it, the learned sentencing Judge exercised the discretion which is conferred by the provisions of section 12 of the Penalties and Sentences Act and it has, to my mind, not been shown that he acted on any wrong principle, or that he took into account irrelevant factors in doing so, or ignored a matter that was relevant.

An attempt was made before us to tender affidavit evidence concerning matters not distinctly presented in the Court below. The object was, I infer, to show in more detail the consequences for each of the applicants of recording a conviction against them. Even if (which I am inclined to doubt) the evidence or the property to be admitted upon this appeal, its tendency is only to show that if the convictions become known to the licensing authority, or the Auctioneers and Agents Committee it is possible that it will prejudice the prospects of the applicant in each case of making, or continuing to make, a career of either of those two vocations.

In my opinion it really misapprehends the purpose and function of provisions like section 12 to suppose that the provisions they confer are designed to enable the fact that criminal convictions have been sustained to be concealed from bodies or authorities whose duty it is to determine whether or not an applicant is a fit and proper person to be licensed under a particular statute.

In the case of an applicant for a real estate agent's licence or a salesman's licence, the affidavit material in this particular case suggests that one question that will be asked of him is whether he has any criminal convictions. A person who has been convicted of a criminal offence has a criminal conviction, whether or not it is formally recorded, and, that being so, the Court should not in my opinion lend its aid to attempts to conceal that fact. Much the same consideration applies to the Liquor Licensing Authority. It is no part of this Court's function to minimise the seriousness of these offences with a view to influencing a Government instrumentality like that to disregard or overlook the offences.

The question is not whether a conviction has been recorded, but whether what was in fact done by the applicant in committing the offences renders him unsuitable to be admitted to, or remain in, the particular occupation in question. I would expect the licensing authority approach the matter in that way. If it does not, there are no doubt other remedies available to ensure that it does so in this case and in future.

This Court should not, in my opinion, be used as a means for pre-empting or influencing the proper exercise of a discretion on such a matter by the duly constituted authority. For these reasons, and more particularly because the Judge considered the matter himself and has not shown to have gone wrong, I consider that the application, so far as it is directed to the recording of convictions, should also be refused.

In all the circumstances it is my opinion that the applications for leave to appeal should be dismissed.

WHITE J: I agree also and would just add that the very public nature of these entertainments and the incitement to the acts, which constituted the acts of prostitution by the applicant, takes this case out of the class of usual prostitution cases. The quantum of the fines might be thought high when compared with the fines imposed in such cases, but it is this very public flouting of the law in licensed premises which suggest to me that the fine imposed was such that it ought not to be interfered with. The applications against recording of a conviction also seem to me to give an unwarranted benefit to the applicants which will have the effect of seeking to hide from the liquor licensing authority and the Department of Consumer Affairs which administers the Auctioneers and Agents Act conduct which really ought to be taken into account by them when considering the issuing of any such licences. These are matters which are properly within their discretion and I agree with the learned presiding Judge that this Court ought not to lend its authority to anything which would seek to hide conduct which ought to be before those bodies when making those sorts of decisions. I would agree with the orders proposed.

McPHERSON J: Yes, I may say that I agree with the remarks that Justice White has just made. The applications for leave to appeal are dismissed.

R v Beissel & Beissel [1996] QCA 488

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Judgment (23 paragraphs)

R v Beissel & Beissel [1996] QCA 488 (12 November 1996)

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