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Supreme Court 7 April 2000

Coleman v DPP

[2000] NSWSC 275

Also reported as [2000] 49 NSWLR 371
Public order & justice offences
CRIMINAL LAW PROSTITUTE SOLICIT

Citation: Coleman v DPP [2000] NSWSC 275; (2000) 49 NSWLR 371; (2000) 114 A Crim R 298
Court: NSW Supreme Court, Common Law Division
Date: 7 April 2000
Judge(s): O'Keefe J

Background

The plaintiff, a prostitute, was convicted in the Local Court at the Downing Centre of soliciting for the purposes of prostitution contrary to s 19(1) of the Summary Offences Act 1988. The offence occurred on a street within view of a school in Darlinghurst, an area where police had received complaints about prostitution activity near that school.

The circumstances were that an undercover constable in an unmarked car pulled to the kerb near the plaintiff. She approached the vehicle, leant on the open passenger window, asked whether the constable wanted "some fun," then entered the car and quoted him prices for various sexual acts along with a proposed location. The constable drove instead to meet his sergeant, and the plaintiff was arrested and charged.

The plaintiff appealed her conviction on the sole ground that the magistrate had erred in law in his interpretation of the word "solicit." Her case was that what she did amounted to no more than a simple, single request and therefore did not meet the legal threshold for soliciting.

  • What is the correct legal meaning of the word "solicit" as used in s 19(1) of the Summary Offences Act 1988?
  • Does soliciting require elements of persistence, pestering, pressure, harassment, or the causing of annoyance or distress to constitute an offence?
  • Did the plaintiff's conduct on the night in question satisfy that definition?

Decision

O'Keefe J began by examining the ordinary English meaning of "solicit" across multiple dictionaries, including the Macquarie Dictionary, the Oxford English Dictionary, and several others. He found that the consistent thread running through these definitions, in the context of prostitution, was an approach to another person accompanied by an offer of sexual services for reward. The concept did not inherently require aggression, persistence, or repeated importuning.

The judge then traced the legislative history of the provision through predecessor legislation, including the Vagrancy Act 1902 and the Summary Offences Act 1970, and reviewed a range of Australian and overseas cases. He concluded that the structure of s 19 itself was informative: s 19(3) expressly addresses soliciting "in a manner that harasses or distresses" the other person and carries a higher maximum penalty. This made it plain that harassment and distress are not elements of the basic offence under s 19(1), but rather aggravating factors relevant to a different and more serious variant.

O'Keefe J held that, as used in s 19, "solicit" involves a personal approach for the purpose of, or which constitutes or conveys, an offer of sexual activity in return for money. No element of aggressive persistence, pressure, or caused distress is required. A single approach by a prostitute to a potential customer, when accompanied by appropriate dress, words, or conduct indicating availability, is sufficient.

Applying that definition to the facts, the judge found that the plaintiff's conduct clearly constituted soliciting. Her attire, her approach to the constable's vehicle, her opening question, and her subsequent quotation of prices and terms inside the car together amounted to a plain offer of sexual services for reward. The magistrate had not erred in law, and the conviction was affirmed.

Orders Made

  • Summons dismissed.
  • Conviction affirmed.
  • Plaintiff to pay the costs of the proceedings.

Key Takeaways

  • Under s 19(1) of the Summary Offences Act 1988, "solicit" in the context of prostitution requires only a personal approach that constitutes or conveys an offer of sexual activity in return for monetary gain. No element of persistence, pestering, aggression, harassment, or caused distress is necessary to establish the basic offence.

  • The structure of s 19 as a whole was central to the court's reasoning: s 19(3), which targets soliciting that harasses or distresses the other person and carries a higher penalty, demonstrates that those elements are additional aggravating factors, not prerequisites for liability under s 19(1).

  • A single approach by a prostitute to a prospective customer, accompanied by suggestive dress and words indicating availability for sexual services, is sufficient to constitute soliciting under s 19(1).

  • Legislative history and dictionary definitions were both examined, but the court's principal interpretive tool was the ordinary English meaning of "solicit" read in light of the statute's own internal structure.

  • In dismissing the appeal, the Supreme Court confirmed that the magistrate had applied the correct legal principles in convicting the plaintiff.

Legislation and Cases Referenced

Legislation
- Summary Offences Act 1988 (NSW), s 19
- Vagrancy Act 1902 (NSW)
- Summary Offences Act 1970 (NSW)
- Justices Act 1902 (NSW), s 104(1)(a)

Cases
- Jitjarden v Thompson (1995) 38 NSWLR 611
- Fingleton v Bryson (1980) 265 ASR 280
- Newman v Paties [1979] Qd R 402
- Weisz v Monahan [1962] 1 WLR 262
- Behrendt v Burridge [1976] 1 WLR 29
- Smith v Hughes [1960] 1 WLR 830
- Hutt v The Queen (1978) 82 DLR (3d) 95
- Reg v Roland (1976) 27 CCC (2d) 435
- Perre v Apand Pty Ltd (1999) 73 ALJR 1180
- Beckwith v R (1976) 12 ALR 333
- Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad [1976] 136 CLR 529
- Canadian National Railway Co v North Pacific Steamship Co [1992] 1 SCR 1021
- Walter v State of New South Wales (Supreme Court, unreported, 15 March 2000)