Lai v Commissioner of Police[2012] QDC 10

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 28 July 2011 the appellant pleaded guilty in the Magistrates Court before the learned Magistrate Cornack at Brisbane to five offences.  These five offences were one count of knowingly carrying on the business of providing unlawful prostitution; three counts of knowingly participating in the provision of prostitution and one count of possessing tainted property.
2. [2]
   The learned Magistrate sentenced the appellant to a fine of $10,000 for all the offences and recorded a conviction.  Although the sentencing remarks do not show it the endorsements in the file show that the learned Magistrate referred payment of the fine to SPER.
3. [3]
   The appellant was born on 9 June 1987 in Taiwan.  The offences are alleged to have occurred between the 1st of September 2010 and the 13th of May 2011.  That was for the offence of knowingly carrying on the business of providing unlawful prostitution.  The offences of knowingly participating in the profession of prostitution occurred on the 12th of May 2011, the 5th of March 2011.  The final offence occurred on the 12th of May 2011.
4. [4]
   The appellant had no prior criminal history.  The grounds of appeal are that the imposition of a fine of $10,000 was manifestly excessive and, further, that the learned Magistrate erred in law by failing to properly consider the principles set out in section 12 of the Penalties and Sentences Act.
5. [5]
   The appellant was 23 years' of age when she committed these offences and was 24 years' of age at the time of sentence.  The principles governing when an Appellate Court may interfere with the primary Judge's or Magistrate's decision are well established in the House -v- The King [1936] 55 CLR 499 at 505, the Court said:

It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so".

6. [6]
   The facts of the offending were put before the learned Magistrate.  They were contained in a schedule.  These showed that in July 2009 investigations commenced into a female identified as the appellant in relation to the suspected provision of illegal outcall prostitution in Brisbane.
7. [7]
   In the course of the investigation the police located and seized four mobile phones, numerous sex aids, extensive financial records and records pertaining to the placement of advertisements in Quest Newspapers.  The investigation also revealed at one time that the person who was an employee of Quest Newspapers identified the appellant as the person who had, on a number of occasions, in January 2010, placed and made payment for numerous advertisements relating to outcall adult services in the Brisbane area.
8. [8]
   The schedule of facts also showed that when a warrant was issued relating to stored communications for the period of 3 March to 6 March 2011 for one of the telecommunication services seized the data obtained revealed that 1,330 SMS messages were sent from that telecommunication service during that period.  The content of the majority of these messages related to arrangements being made to deliver females to various addresses.  Examples were given in the schedule of facts.
9. [9]
   A second stored communications warrant was apparently obtained for the period, 23 April to 1 May 2011, for another telecommunication service that had been seized.  Data revealed that 1,928 SMS messages were sent from that telecommunications service during that period.  Again, these SMS messages related to the organisation and transport of females to various addresses for the purposes of prostitution.  Ultimately the investigation was closed.
10. [10]
    The schedule of facts show that when the police apprehended the appellant and her mother in a carpark of a dwelling the appellant had with her a suitcase containing $12,000 and she was holding a mobile telephone which was determined to be one of the telecommunication services, the subject of one of the warrants.
11. [11]
    Clearly the appellant showed remorse as the learned Magistrate accepted by her pleas of guilty and she cooperated with the administration of justice.  The learned Magistrate accepted the pleas of guilty were early pleas of guilty.  The learned Magistrate considered the decision of Ashton and Leyden -v- The Attorney-General, Court of Appeal Number 239 of 1995 and Court of Appeal Number 240 of 1995, decision given on the 23rd of August 1995.  The reference being 1995 QCA 422.
12. [12]
    The learned Magistrate noted that in that case the respondents had pleaded guilty to charges involving the operation of a substantial business and consisting of four escort agencies and 14 prostitutes and had originally been fined $1,000 and no conviction was recorded.  On an appeal, a conviction was recorded and the fine was increased to $5,000.
13. [13]
    The learned Magistrate, in her reasons, noted that since that sentence in 1995 the law in Queensland had changed considerably about prostitution. She noted, in Queensland now, sex workers are supervised by a system that provides for licensing and registration of prostitution.
14. [14]
    This has significant benefits for the community as it provides for the protection of every sex worker, the maintenance of good public health by ensuring that appropriate standards apply to prevent the spread of sexually transmittable diseases.  It also protects the clients.  It also protects against corruption and protects against organised crime and make sure that those who engage in prostitution pay their lawful amount of income tax which, when matters are illegal, is largely overlooked.
15. [15]
    When hearing this appeal, apart from the decision of Ashton and Laden -v- The Attorney-General, I have been referred to the decision of The Queen -v- Beissel [1996] QCA 488 decision given on the 12th of November 1996.  In that case the applicants for leave to appeal had been fined $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.
16. [16]
    The offences occurred in a date in August 1995 in relation to the first count and then on successive days in October 1995 in relation to the second and third counts.  The applicants also sought to appeal the Judge's decision to record convictions in the case of each applicant.
17. [17]
    The factual basis appeared to be that the applicants had been the licensee and manager of a hotel in Rockhampton and 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.
18. [18]
    Justice of Appeal McPherson noted that while the appeal was on the basis that the quantum of the fines was excessive it was evident the sentencing Judge was strongly influenced by the fact that the offences had a substantial commercial motivation.
19. [19]
    If I have not mentioned it the fines were $10,000 in the case of each applicant.  The Court of Appeal did not interfere with fines of that magnitude in that case.  Justice of Appeal McPherson found that the fines were within the limits of a proper sentencing discretion and did not consider those fines should be disturbed.
20. [20]
    With regard to the imposing of conviction Justice of Appeal McPherson found that it was not shown that the sentencing Judge acted on a wrong principle nor that he took into account irrelevant factors in doing so or ignored a matter that was relevant.  He stated, in his opinion, it really misapprehends the purpose and function of provisions like section 12 to suppose that the provisions they confer are designed to enable a 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.  Therefore, the applications were dismissed.
21. [21]
    His Honour also said that it was no part of the 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 other members of the Court agreed with Justice of Appeal McPherson.
22. [22]
    In sentencing the learned Magistrate noted the appellant had come to Australia on a student visa, that obviously she was a person who was not unintelligent and she was studying in Australia.  She had married since coming to Australia and she was on a bridging visa meaning that she was unable to work.  It is to be noted that the respondent had submitted to the Magistrate that no conviction be recorded and that a 100 hours community service should be imposed for carrying on the business of prostitution unlawfully and that a global fine of $2,000 for the balance of the offences should be imposed.  The learned Magistrate rejected the submissions as in any way being within a sensible sentencing guideline.
23. [23]
    The learned Magistrate noted that a generous approach might be taken if the appellant was someone who was engaged in a very minor role in the offending.  What the learned Magistrate noted was the appellant had lodged many ads with The Courier Mail advertising sexual services.  She maintained a number of mobile phones.  There was a high volume of traffic of calls and SMS on those mobile phones.  She engaged a number of women to provide sexual services.  She engaged a number of drivers to drive those women to various locations.  She did this outside the system for licensing and regulating prostitution in Queensland.
24. [24]
    While the learned Magistrate noted that the evidence did not give a clear indication of the profits from the appellant's offending, nevertheless, she concluded this was a serious offence.
25. [25]
    Submissions have been made by the appellant that, in this case, the fine of $10,000 represents 60 per cent of the maximum fine that the learned Magistrate could have imposed.  The maximum fine being $16,500 for count 1.
26. [26]
    In my opinion since the decisions of Ashton and Leyden -v- The Attorney-General and The Queen -v- Beissel, the value of money has changed.  There has also been an emphasis in the legislation to the licensing and regulation of prostitution in Queensland.
27. [27]
    The maximum penalties for count 1 is seven years' imprisonment and the counts of knowingly participating in the provision of prostitution the maximum penalty is three years' imprisonment and for the possessing tainted property the maximum penalty is two years' imprisonment or 100 penalty units.
28. [28]
    If the appellant's submissions were accepted a fine would be imposed in the order of $3,300.  In my opinion that would be totally inappropriate on the facts of this case.  In the end, I have come to the view that it has not been demonstrated that the learned Magistrate has made any error in the exercise of her discretion to, in this case, fine the appellant $10,000 globally for the five offences and refer payment of the fine to SPER.
29. [29]
    As the learned Magistrate appreciated the crucial sentencing decision was whether or not to record a conviction against the appellant.  The learned Magistrate noted that a recording a conviction will, no doubt, impact upon her residency and status in Australia pursuant to the migration laws.  She came here on a student visa and she's now on a bridging visa.
30. [30]
    The appellant's submissions refer to the cases of R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467 where Justice of Appeal Keane referred, with approval, to the statement of Macrossan Chief Justice in The Queen -v- Brown ex parte Attorney-General:

"Where the recording a conviction is not compelled by the sentencing legislation, all relevant circumstances must be taken into account by the sentencing Court.  The opening words  of section 12, subsection 2, of the Act say so and then there follow certain specified matters which are not exhaustive of all relevant circumstances.  In my opinion nothing justifies granting a general predominance to one of those specified features rather than to another.  They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claimed to greater weight."

31. [31]
    The appellant's submissions also refers to The Queen -v- Briese [1998] 1 Queensland Reports 487 noting that the Court of Appeal discussed the principles which involved the striking of a balance between the interests of the community in knowing that a person has been convicted of an offence and the rehabilitation of the offender.
32. [32]
    In my opinion the learned Magistrate considered all relevant circumstances and was not in error when she reached the conclusion that it would be totally inappropriate not to record a conviction against the appellant in relation to her activities during the relevant time.
33. [33]
    Therefore, I dismiss the appeal.