R v Lelah [2002] VSCA 96

5. The counts of offering to supply a drug of dependence with the above intention were against s.8(1)(b) Prostitution Control Act 1994 for which the maximum penalty was 10 years. The count of intimidating was against s.8(1)(c) of the Prostitution Control Act for which the maximum penalty was 10 years. The counts of trafficking in a drug of dependence were against s.71(1) of the Drugs, Poisons and Controlled Substances Act 1981[1] for which the maximum penalty was 15 years.

8. The counts on which sentences were imposed had been committed between 1 April 1999 and 11 August 1999, a period of some four-and-a-half months.

11. The applicant admitted fourteen prior convictions from nine court appearances between 1972 and 1997. They included convictions in 1986 and 1989 of living off the earnings of prostitution and managing a brothel, in 1994 and 1997 of entering an agreement for the provision of sexual services by a child and in 1997 of being an unlicensed prostitution service provider (two charges).

14. After a plea was made the sentencing judge on 6 September 2000 imposed sentences of imprisonment as follows:

Cumulation orders were made whereby four months of the sentences on all counts other than count 6 were to be cumulative upon the sentence on count 6. The total effective sentence became four years eight months. A minimum term before the applicant would become eligible for parole of three years six months was fixed. A declaration was made that the applicant had been in pre-sentence detention for 390 days.

28. There were two co-offenders, Felix Poltorak and Rosa Brcic, who pleaded guilty to charges under the Prostitution Control Act 1994 in the Magistrates' Court and received suspended sentences of imprisonment.

31. The applicant and a co-accused, Dominic Patrick Hickey, were committed for trial in the Melbourne Magistrates' Court on 15 February 2000. On 6 June 2000 Hickey pleaded guilty in the County Court to a presentment alleging seven counts of agreement for the provision of sexual services by a child, 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 the above-mentioned intention and three counts of taking part in an act of sexual penetration with a child aged between 10 and 16 years. He admitted two relevant prior convictions. Sentences of imprisonment imposed in the County Court were varied, when his appeal was allowed in the Court of Appeal on 25 May 2001.[2] Counts 13 and 15 in the Hickey presentment were identical to counts 6 and 8 in the applicant's presentment. Hickey was sentenced in the Court of Appeal to 18 months' imprisonment on each of counts 13 and 15. His total sentence was one of six years' imprisonment with a non-parole period of four years fixed.

34. Only a very brief account of the criminal activities of the applicant need be given for a comprehensive account of the facts involving Hickey, and to some extent the applicant, is found in the judgment of Buchanan, J.A. in R. v. Hickey[3]. In the reasons for sentence in the County Court given by the sentencing judge in this case the criminal activities of the applicant are adequately described.

37. The applicant and Rosa Brcic conducted the business of a licensed brothel named Sasha's in Fitzroy, in the relevant period. Hickey acted as an agent of the applicant and Rosa Brcic and recruited prostitutes to work in the business. The jury found that the applicant together with Hickey entered into an agreement to the effect that they would approach young women who were working on the streets as prostitutes and recruit them into prostitution, either at Sasha's brothel or privately, by offering them drugs. The agreement resulted in approaches being made to the various young women named in the counts on which guilty verdicts were recorded.

40. In relation to the four counts of offering to supply a drug of dependence, heroin, with intent, the applicant had been involved in offering to supply heroin to four young women whom he knew were drug addicts and in need of heroin, either through information personally gained or from Hickey. The young women involved were at the time of the offences already involved in prostitution to support their drug habit. The judge found, as indeed the jury had found, that in offering to supply them with heroin the applicant intended that the offers should have the effect of each of the women continuing to work as prostitutes either in Sasha's or privately, and the judge found that this was the effect.

43. In relation to count 11, the jury found that the applicant visited the premises of the young woman and intimidated her into going with him to Sasha's brothel even though she said repeatedly she did not wish to do so.

46. The charges of trafficking in heroin involved the applicant on four occasions not merely offering to supply heroin but also arranging for a dealer to attend and sell and supply heroin to the young women. The applicant financed and facilitated the acquisition of heroin by the women by advancing money for the purchase from future earnings by prostitution in the form of a loan or by seeing in some way that the dealer was paid.

49. By notices filed on 18 September 2000 the applicant seeks leave to appeal against conviction and against sentence. Four grounds are specified in the notice concerning conviction, but only the fourth was pursued before us. It asserts that the trial judge erred in ruling that counts 7, 9, 14 and 16 were not alternative counts to counts 6, 8, 13 and 15 respectively. As has already been stated, the former counts allege trafficking in heroin, whilst the latter allege offering to supply the drug with intent to induce the offeree to engage or continue to engage in prostitution.

52. After the close of the Crown case, her Honour ruled that the two sets of counts were for different offences and that, whilst they did rely upon evidence which was in part common, offering to supply did not, and need not, involve an actual trafficking. The charge of trafficking was aimed at conduct subsequent to the commission of the completed offence of offering to supply with intent. The Crown was therefore entitled to seek convictions on each of the four pairs of counts.

55. It was submitted for the applicant before us that the verdicts of guilty on each pair of counts established two offences of a similar character and that an offender should not be convicted of both offences where they are of similar character, Falkner v. Barba[4] being cited. It was acknowledged that the legislature had created two distinct offences, under two separate Acts, but it was submitted that, because there were a number of common elements in them and the facts and circumstances of each were the same, her Honour had erred in not ruling them to be alternative counts. The applicant had offered to facilitate the obtaining of drugs by those proposing or willing to engage or continue to engage in prostitution. That, it was submitted, was within paragraph (c) of the definition of "traffick" set out below.

58. In our opinion, for the reasons which follow and which substantially reflect the argument for the respondent, her Honour's ruling was correct. First, the elements of the two offences are very different: indeed they scarcely overlap. The offence the subject of counts 6, 8, 13 and 15 is created by s.8(1)(c) of the Prostitution Control Act in the following terms:

"(1) A person must not with intent to induce another person aged 18 years or more to engage or continue to engage in prostitution - ... (c) supply or offer to supply a drug of dependence to that other person or any other person; ...".

The offence of trafficking in a drug of dependence, which is the subject of counts 7, 9, 14 and 16, is created by s.71(1)(b) of the Drugs, Poisons and Controlled Substances Act, and "traffick" in relation to a drug of dependence is defined in s.70(1) of that Act as including -

"(a) prepare a drug of dependence for trafficking; (b) manufacture a drug of dependence; or (c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence."

(There are definitions of "sell" and "supply" in s.4(1), but by s.70(2) they do not apply to Part V, including s.71.) Each of the offences of offering to supply with intent was complete once the offer was made, irrespective of whether there was subsequent supply. Offering to supply a drug of dependence, unlike offering it for sale, does not by itself constitute trafficking in the drug either at common law or, contrary to the applicant's submission, within the statutory definition. (Nor was trafficking left to, or found by, the jury on that basis.) Indeed the supply of a drug of dependence does not necessarily constitute trafficking, though it may.[5] Thus, trafficking was not an element of the offence of offering to supply with intent. Moreover, the intent necessary for the latter offence formed no part of the offence of trafficking. Thus, both the actus reus and the mens rea of the two offences were different. The offences addressed two different evils, namely, using a drug of dependence to make or keep a person involved in prostitution (a specific evil) and engaging actively in the chain of distribution of such a drug (in this case by putting a prostitute in contact with a dealer and allowing a brothel to be used for trafficking). The criminality involved in either one of the offences was not subsumed by the criminality involved in the other.

67. It scarcely needs to be said that this was not a case where the elements of one of the offences were wholly included in the other, so that the included offence was properly an alternative to the greater offence and conviction for one was a bar to a conviction for the other.[6]

70. Secondly, although the burden of the argument for the applicant was that the two offences were based upon the same facts or conduct, when attention is directed to the evidence supporting each of the pairs of counts it is seen to be quite different. The jury must have found that the applicant first offered to supply[7] heroin to each of the young women with intent to induce her to engage or to continue to engage in prostitution at Sasha's brothel or privately. That constituted the offence against s.8(1)(c) of the Prostitution Control Act. Later, even if not much later, the applicant, the jury must have found, in order to complete his part of the bargain, arranged for the supply of heroin to each young woman from a dealer by way of sale. Thereby he trafficked (in the common law sense of that word[8]) in heroin, in that he was knowingly concerned in the commercial movement of heroin from producer or manufacturer to ultimate consumer. It seems that a plea in bar is not available at common law on the ground that the offences charged are "in respect of the same or substantially the same set of facts": Pearce v. The Queen[9]. In any event, as the foregoing summary of the jury's findings shows, the facts of the two offences here are not substantially the same. It is unnecessary to determine conclusively the status of Falkner v. Barba after Pearce since the foundation, that is, the foundational fact, of each count was not the same.[10]

73. We do not find it necessary to consider what would have been the position had the offences against s.8(1)(c) of the Prostitution Control Act pleaded in the presentment been supplying a drug of dependence (as opposed to offering to supply such a drug), though it seems highly likely that trafficking would not also have been charged.

76. As ground 4 fails, the application for leave to appeal against conviction should be dismissed.

79. The notice of application for leave to appeal against a sentence contained eight grounds but only grounds 2 and 3 were pursued before us:

"1. The learned sentencing judge erred in sentencing on the basis of a course of conduct involving a third party, one Dominic Hickey, which was not open on the presentment; 2. The learned sentencing judge erred in failing to differentiate between the facts and circumstances of each count; 3. The learned sentencing judge erred in ordering cumulation between counts of trafficking (7, 9, 14 & 16) and counts of inducement (6, 8, 13 & 15); 4. The learned sentencing judge erred in taking into account effects on victims without differentiating between victims or without evidence of any particular harmful effects; 5. The sentences re counts 6, 8, 11, 13 and 15 are manifestly excessive; 6. The learned sentencing judge erred in comparing sentences of 18 months imprisonment imposed in different proceedings upon a third party, Dominic Hickey, which related to underage victims when sentencing on counts 6, 8, 11, 13 and 15 which did not; 7. The learned sentencing judge erred in giving insufficient weight to the fact that the victims who were already involved in illegal prostitution were induced to continue to engage in prostitution but in a legal setting, and not that they were introduced into prostitution nor induced to continue in illegal prostitution; 8. The sentences re counts 7, 9, 14 and 16 are manifestly excessive."

83. The penalties prescribed by Parliament indicate, all too clearly, the seriousness with which Parliament views the conduct indulged in by the applicant. It is useful to repeat the remarks of Buchanan, J.A. in Hickey, a judgment agreed in by Winneke, P. and Tadgell, J.A., for they are equally applicable to this case -

"The offences were grave, their gravity being reflected in the maximum sentences provided by the Act. The objects of the Act include ... maximising the protection of prostitutes from exploitation."[11]

87. The young women whilst not children as defined in the Act were vulnerable by reason of their youth and addiction to heroin. Supplying them with heroin was most serious conduct.

90. During the plea it was revealed that the applicant was born in Singapore in 1953 of an Eurasian background and came to Australia at age 16. He found employment of an unskilled kind and despite his prior convictions was described by his counsel as "a benign non-threatening type of individual". In one way or another, he worked in the sex trade since age 30. Counsel for the applicant had submitted to the judge that the offences were at the very lowest end of the scale of offences of their type and did not call for an immediate custodial sentence. Counsel for the Crown submitted that given the nature of the offending and the applicant's past record and the need for specific and general deterrence an immediate custodial sentence was appropriate in the circumstances.

93. In her sentencing remarks her Honour rejected a submission that the conduct was at the lower end of the scale because the young women were already in the desperate position of offering sexual services for money to support an ongoing heroin addiction. Her Honour correctly observed that the provisions in the Prostitution Control Act offended against contemplate that the person induced may already have been working as a prostitute and the conduct of the applicant meant that their addiction continued or increased for a period of time when drugs were made available to them and they had no choice but to continue with prostitution to pay for their addiction. Since the offences the women had taken steps to remove themselves from their addiction. The evil in the offending included the exploitation and degradation of young women in need of protection. Her Honour expressed the view that the applicant was a person who required specific deterrence because he worked in the sex industry and had relevant convictions.

96. Mr O'Doherty limited his argument to grounds 3 and 2. He submitted that the orders for cumulation of four months on each count with the sentence imposed on count 6 were wrong because, where a number of offences arise out of substantially the same act, circumstances, or series of occurrences, the presumption of concurrency should apply. The Sentencing Act 1991, in s.16(1) provides:

"Subject to sub-section (1A), every term of imprisonment imposed on a person by a court must, unless otherwise directed by a court, be served concurrently with any uncompleted sentence or sentences of imprisonment ... imposed on that person, whether before or at the same time as that term."

100. The intention of the Act is that unless the facts and circumstances relating to the offences requires the judge to direct cumulation in respect of sentences of imprisonment for different offences concurrency will apply without the need for the Court to so order. The judge has a discretion in respect to cumulation.

103. Mr O'Doherty argued that, apart from the clear intention of the legislature expressed in s.16(1), when offences are so mixed up together and so clearly facets of the same course of conduct a court should incline towards concurrent sentences as a matter of principle, if imprisonment is warranted. In Dicker v. Ashton[12], Wells, J. said:

"I am of the opinion that, unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent course of criminal conduct that happen to have occurred together, a court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated, and that simply represent facets of the one course of conduct."

107. Attorney-General v. Tichy[13] is an example where on the facts two offences (armed robbery in a shop and shooting with intent to do grievous bodily harm outside the shop) were regarded as separate and distinct courses of conduct in the Court of Criminal Appeal of South Australia on appeal by the Attorney-General.

110. Mr Coghlan for the respondent submitted that her Honour did not offend the principle relied upon by Mr O'Doherty because the counts of offering to supply a drug of dependence involved four different women on separate occasions and the count of intimidating concerned another woman and involved a different form of offending. The counts of trafficking also involved different offending with the four women to whom the offer to supply was made.

113. As we have already observed, the elements of the offering to supply counts are not the same as the elements of the trafficking counts and the evidence supporting each of the pairs of counts is different. The judge was entitled to find she was dealing with separate and distinct courses of criminal conduct for which it was appropriate to direct some cumulation.

116. Ground 3 as drafted and argued did not allege error in ordering greater cumulation than was justified in the circumstances. Consequently, as we have decided the judge was entitled to order cumulation in respect of eight counts, ground 3 fails.

119. Ground 2 asserts that her Honour erred in failing to differentiate between the facts and circumstances of each count. Mr O'Doherty submitted that this failure resulted in a miscarriage of the sentencing discretion. In support of this failure he submitted that the sentence of two years imposed on count 6 compared to the effective sentences imposed on the other counts demonstrates the error.

122. Mr Coghlan submitted that the judge was entitled to use count 6 as the base offence on which to direct cumulation for she was familiar with the offending by the applicant involving the five women and the criminality involved.

125. The offences did not constitute a single course of conduct; the offending in respect of each woman added to the total criminality of the applicant's conduct in our view. Her Honour did not depart from the principle expressed in R. v. Lomax[14] by Ormiston, J.A.[15] that an appropriate total effective sentence can be achieved by imposing appropriate individual sentences which reflect the gravity of the offence and making them largely concurrent rather than imposing lower sentences that are individually inappropriate and making numerous cumulation orders.[16]

128. We are of the opinion that the individual sentences were within the range available to the sentencing judge. Some comparison has been made with individual sentences imposed on Hickey by the Court of Appeal who gained a discount because he pleaded guilty.[17] The cumulation orders produced an appropriate total effective sentence having regard to the principles of totality and proportionality.

131. The total effective sentence imposed in respect of nine counts of offending over about four-and-a-half months was a little less than five years, falling below 50% of the maximum sentence for a single count. The sentence was not excessive having regard to the totality of the offending and the past record of the offender.

134. In our opinion, the application for leave to appeal against sentence should be dismissed.

[1] As in force before its amendment by Act No. 61 of 2001.

[2] R. v. Hickey [2001] VSCA 75; (2001) 119 A.Crim.R. 68.

[4] [1971] VicRp 39; [1971] V.R. 332 at 337.

[5] Compare Falconer v. Pedersen [1974] VicRp 24; [1974] V.R. 185.

[6] Pearce v. The Queen (1998) 194 C.L.R. 610 at paras.[24] and [63]; R. v. Sessions [1998] 2 V.R. 304 at 308; cf. R. v. Weeding [1959] VicRp 50; [1959] V.R. 298 and Reardon v. Baker [1987] VicRp 72; [1987] V.R. 887 at 898-899.

[7] To supply includes or was implicitly treated as including to procure supply of.

[8] As to which, see Falconer v. Pedersen.

[10] This was, of course, not a case where, as in R. v. Sessions, a single act constituted the offending conduct under both counts, so that a verdict or plea of guilty was to be accepted on the first count only. Compare R. v. R.H. McL [1998] VSCA 61; [1999] 1 V.R. 746 at 759 and cases cited; affd. as to re-sentencing: R.H. McL v. The Queen [2000] HCA 46; (2000) 203 C.L.R. 452.

[12] (1975) 65 Law Society Judgment Scheme (S.A.) 150 at 151.

[13] (1982) 30 S.A.S.R. 84.

[14] [1998] 1 V.R. 551.

[16] Cf. DPP v. Grabovac [1998] 1 V.R. 664 at 680.

[17] Compare, counts 6 and 8 - Lelah - 2 years on each count, with counts 13 and 15 - Hickey - 18 months on each count.