R v Hickey [2001] VSCA 75

2. 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.

12. 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.

15. 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.

19. Save for the offence of taking part in an act of sexual penetration with a child between the ages of 10 and 16 years, which is proscribed by s.46(1) of the Crimes Act 1958, the offences are offences against the provisions of the Act. The maximum sentences that could be imposed for the offences were as follows:

* Making an agreement for a child to act as a prostitute: 15 years' imprisonment. * Being an unlicensed prostitution service provider: 5 years' imprisonment. * Performing acts with intent to induce a person to engage or to remain in prostitution: 10 years' imprisonment. * Taking part in an act of sexual penetration with a child: 10 years' imprisonment.

23. Section 8 of the Act prohibits offering or supplying a drug of dependence to another person with intent to induce that person to engage or continue to engage in prostitution, and making a false representation or using any false pretence or other fraudulent means with like intent. The Act defines a child as a person under the age of 18 years. [1]

26. After a plea, the appellant was sentenced to an effective total term of seven years' imprisonment. He was sentenced to three years' imprisonment on each of the seven offences carrying a maximum penalty of 15 years' imprisonment, and to lesser terms on the other counts. The same sentence was imposed in respect of all the offences created by each of the different statutory provisions. A measure of cumulation was ordered. A term of four years and six months was fixed before the appellant was to be eligible for parole.

29. The appellant has appealed against the sentence on six grounds. They are:

"1. The sentencing judge failed to give any or any sufficient weight to: (a) the applicant's plea of guilty; (b) the applicant's prospects of rehabilitation; and (c) the evidence of the applicant's personality disorder. 2. The sentencing judge erred: (a) by rejecting the submission that there was no evidence that the applicant received financial reward from the commission of the offences; and (b) by finding that the applicant received financial reward from the commission of the offences. 3. In all the circumstances: (a) individual sentences on each count; (b) a total effective sentence; and (c) a non-parole period are manifestly excessive. 4. The learned sentencing judge erred: (a) as to the extent of cumulation ordered; and (b) by imposing a total effective sentence and a non-parole period which infringed totality. 5. The learned sentencing judge erred in sentencing the appellant for offending in respect of which he was neither presented nor convicted - for example, offences against ss.6 and 10 of the Prostitution Control Act 1994 (Vic). 6. The learned sentencing judge erred: (a) in failing to have any regard to the sentences imposed upon connected defenders, particularly one Ms Brcic; (b) in failing to apply the principle of parity among co-offenders."

33. The appellant never knew his father. He was brought up in a house with his mother and grandmother. Until his early teenage years he thought his mother was his sister and his grandmother was his mother. He attended Xavier College, completed law and arts degrees at Melbourne University and, as I have said, went to the Bar. The appellant's life after leaving the Bar was a descent into decadence. He slept during the day and frequented cafes and clubs at night. He became a regular user of cocaine and, as these offences demonstrate, entered, indeed wallowed in, the world of prostitution.

36. The appellant had three prior convictions from two court appearances. One was for pretending to be a solicitor, for which he was placed on a community based order, and the other two were assisting an unlicensed prostitution service provider and allowing a child to take part in prostitution. Again he received a community based order.

39. The victims of the offences committed by the applicant were young prostitutes plying their trade on the streets of St Kilda, who were for the most part addicted to heroin. The majority of them were persuaded by the appellant to work in Brcic's brothel by the inducements of drugs and money. Others were persuaded by similar means to take part in sexual activity arranged by the appellant.

42. In order to convey the flavour of the offences I will recount the facts relating to samples of the counts. I have taken the facts from a summary of the prosecution case that was supplied to the sentencing judge. One of the counts alleging the provision of sexual services by a child concerned a girl working as a street prostitute in St Kilda. She was 17 years of age at the time. The appellant met her while driving his car. The appellant arranged for her to provide sexual services to a friend of his. The appellant drove the girl and a friend of hers to an old house. At this house they were introduced to a man named "Fred" or "Frank". The girl performed oral sex on this man in return for $100. The two men drove the girl and her friend back to St Kilda. The other girls the subject of the other counts for this offence were children aged 16 and 17 years, save two of them who were aged 15 years. The charge of being an unlicensed prostitution service provider concerned a 21 year-old girl who met the appellant cruising in his car when she was working as a prostitute on the streets of St Kilda. The appellant told her that he had some friends at a café in Carlton and that he was looking for a girl to help him out with some "jobs". The girls stated that she would charge $50 for oral sex and $120 for "sex". The appellant agreed and drove her to the café where she was introduced to three or four men. The appellant took the girl to a flat in Carlton, and sent the men, one at a time, to the flat where the girl had sex with them. The girl was paid approximately $500. The appellant arranged for the girl to do a couple of other jobs that night in Malvern and in Elsternwick. Out of a sense of obligation the girl offered the appellant free oral sex. The girl was pleased with the appellant as she made "all this money and the work was easy".

45. One of the counts of acting with intent to induce a person to engage or remain in prostitution related to a 19 year-old girl who was picked up by the appellant in a St Kilda street. The appellant took her to a brothel in Fitzroy and said that she could be supplied with drugs of her choice, including heroin, cannabis, ecstasy and cocaine. After the girl worked at the brothel, the appellant gave her an ecstasy tablet. The girl performed "personal jobs" for Lelah and the appellant at the appellant's flat, and formed a sexual relationship with the appellant. The appellant supplied her with heroin, ecstasy and cocaine. Another count concerned another St Kilda street prostitute. The appellant spoke to her about working in a parlour and encouraged her to do so. The girl got into the car with the appellant. She made it clear to the appellant that she needed to use heroin, and the appellant told her that he would take care of it. They drove to a bar in Smith Street, Fitzroy, where Lelah was waiting in his car. The girl asked the appellant about the heroin and was told "Fred would take care of it", and that "Fred had probably already taken care of it." Another victim was an 18 year-old prostitute working in Greeves Street, St Kilda, when she was approached by the appellant driving his car. The appellant wished her a happy birthday. He rang his associate, Fred, and they had a three-way conversation about the girl working at brothels in Fitzroy. The girl was offered a mobile phone, any drugs she needed and a place to live in the future. It was arranged that the girl would meet Lelah the following day and take her to see the appellant, who would supply her with a "taste" of heroin before starting work at the brothel.

48. All the victims of the charges against the appellant were working as street prostitutes when they met the appellant. All of those who were offered drugs were persons who then currently used drugs.

51. In my opinion the specific errors of punishment for an offence not charged and failing to impose a sentence upon the appellant that was comparable to the sentences imposed upon Brcic and Lelah, which the appellant's counsel submits were made by the sentencing judge, have not been established.

54. The contention that the sentencing judge sentenced the appellant for an offence with which he had not been charged was based on his Honour's remarks that one of the factors leading to the offending was "the lure of easy money" and that "a source of [the appellant's] income was [his] criminal activity". Counsel contended that the sentence included a component for breaching ss.6 and 10 of the Act, which proscribe the receipt of payments derived from prostitution.

57. In my opinion, however, when the sentencing judge's remarks are placed in context, the criticism is seen to be unfounded. What led to the statements was the submission of the appellant's counsel that the appellant did not gain financially from the recruitment of the prostitutes. In fact there was among the depositions evidence that the appellant received money for his recruitment activities, albeit the sums were not at all substantial. The sentencing judge did not say or infer that the financial rewards were substantial, and he mentioned money as one of several motives. In my view it cannot be fairly said that his Honour either treated the money received by the appellant as an aggravating factor or punished him for an offence with which he was not charged. I am also of the view that the submission that there was no evidence of financial reward was not made out. The girls recruited by the appellant supplied the evidence.

60. As to parity, the sentence imposed upon Rosa Brcic was not advanced as relevant. Lelah fought a trial presided over by a different judge on various counts, some of which overlapped with the appellant's offending. Lelah was sentenced to a total effective sentence of four years' and eight months' imprisonment with a non-parole period of three-and-a-half years. In my opinion it is not possible to equate the cases of the appellant and Lelah. Lelah committed different offences, and his personal circumstances are not known.

63. I am, however, of the view that the fixing of identical sentences in respect of all offences against the same statutory provisions and the selection of the sentences to be cumulated on other sentences did lead to sentencing error.

66. The sentencing judge fixed sentences without apparently taking into account and weighing appropriately the circumstances attending each of the different instances of the same crime. It may be appropriate to impose the same sentence in respect of each of a series of crimes where the only differences in the circumstances attending the crimes do not disclose differing degrees of criminality. This was not such a case, in that some at least of the counts were more or less serious examples than other crimes committed in respect of the same statutory provisions. Thus the same sentence of three years' imprisonment was imposed on the appellant for persuading a 15 year old girl to perform oral sex with five men at the appellant's flat, in return for which the appellant supplied her with heroin and money, and for offering a 17 year old girl employment in a brothel, an offer which the Crown did not allege was accepted. Again, the same sentence of one year and six months' imprisonment was imposed upon the appellant for arranging for a 20 year old to work in a brothel and supplying her with heroin, cocaine and ecstasy, and for offering a 24 year old prostitute money to work in a brothel, again an offer which the Crown did not allege was accepted.

69. It is a basic principle of sentencing law that a sentence should be proportional and appropriate to the gravity of the crime constituted by its objective circumstances.[2] The personal circumstances of the appellant were the same in respect of each count. The objective circumstances of the crimes, which rendered them more or less serious, should have been reflected in the individual sentences.

72. It is not easy to discern the basis upon which the sentencing judge selected the counts in respect of which he ordered cumulation. He chose three of the six counts of acting with intent to induce a person to engage or remain in prostitution, two of the seven counts of entering into an agreement for the provision of sexual services by a child, and one of the three counts of taking part in an act of sexual penetration with a child. The counts chosen for cumulation in a sense disclosed different courses of criminal conduct, but so in the same sense did each of the remaining counts. Four of the six counts chosen for cumulation were counts said to represent a larger number of like crimes committed in respect of the same victim. The fact that a count is a representative count is a matter to be considered in fixing the sentence for that count by providing the context by which the criminal quality of the offence is to be judged and removing the possibility that it was a spontaneous act due to special circumstances. [3] In my opinion the fact that a count is a representative count is not to be reflected by an unexplained process of cumulation.

75. Accordingly, in my opinion, the sentence does disclose specific error which reopens the sentencing discretion. The offences were grave, their gravity being reflected in the maximum sentences provided by the Act. The objects of the Act include seeking to protect children from sexual exploitation and coercion and maximising the protection of prostitutes from exploitation.[4] Although it does not appear that the appellant persuaded or forced any child or woman to become a prostitute, nor was he responsible for anyone remaining a prostitute who, but for the appellant, would have left the industry, nevertheless he did exploit for his own ends persons who were vulnerable by reason of their youth and addiction to heroin. The appellant joined the milieu which dealt with women and children outside the limits of the lawful prostitution industry. On the other hand there were mitigating factors upon which the appellant was entitled to rely, namely, the plea of guilty, for which he was entitled to a discount, the disturbing circumstances of his upbringing, his borderline personality disorder or dependent personality disorder diagnosed by a forensic psychologist and conceded by the Crown, the appellant's insight into his condition and the prospects of his rehabilitation.

78. I would re-sentence the appellant to a term of two years' imprisonment on count 1, two and a half years' imprisonment on count 2, six months' imprisonment on count 3, 18 months' imprisonment on count 4, two years' imprisonment on count 5, four years' imprisonment on count 6, two years' imprisonment on counts 7, 8, and 9, 18 months' imprisonment on count 10, three years' imprisonment on count 11, one year's imprisonment on count 12, 18 months' imprisonment on count 13, two and a half years' imprisonment on count 14, three years' imprisonment on count 15, one year's imprisonment on count 16 and 18 months' imprisonment on count 17. I would cumulate three months' of the sentence imposed on count 3 on the sentence imposed in respect of count 6, and I would similarly cumulate nine months of the sentence imposed on count 15 and one year of the sentence imposed on count 9. The counts chosen for cumulation are examples of the different crimes committed by the appellant. In respect of count 9 the appellant is being sentenced as a serious offender. Pursuant to s.6E of the Sentencing Act I would direct that only one year of the sentence imposed in respect of count 9 be served cumulatively. I have refrained from ordering cumulation in respect of the sentences on other counts so as not to produce a sentence that would infringe the principle of totality. The total effective sentence is one of six years' imprisonment. I would fix a period of four years before the appellant is to be eligible for parole.

[1] See s.3 of the Act.

[2] Veen v. R. (1988) 154 C.L.A. 465; Hoare v. R [1989] HCA 33; (1989) 167 C.L.R. 348 at 354 per Mason C.J., Deane, Dawson, Toohey and McHugh, J.

[3] See R. v. Holyoak (1995) 82 A.Crim.R. 502 at 509-12 per Allen, J.

[4] See s.4 of the Act.