CDirector of Public Prosecutions v Farshchi
[2024] VCC 24
•30 January 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01933
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEYYED FARSHCHI |
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JUDGE: | CHIEF JUDGE KIDD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2023 | |
DATE OF SENTENCE: | 30 January 2024 | |
CASE MAY BE CITED AS: | CDPP v Farshchi | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 24 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentencing — Guilty verdict following trial by jury — Forced labour offences — Victim seeking asylum in Australia — Victim employed by the accused — Exploitation of victim’s personal and situational circumstances — Threats to have victim deported or placed in immigration detention if they did not continue to provide labour and services — Threats caused victim to remain in a condition of forced labour for approximately or nearly 20 months — Onerous working conditions — Serious example of each offence — High moral culpability — General deterrence — Denunciation — Some mitigating circumstances, including delay, good character, and good prospects of rehabilitation.
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth).
Cases Cited:Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67; Ansari v The Queen (2010) 241 CLR 299; [2010] HCA 18; R v Aiton (1993) 68 A Crim R 578; Karam v The Queen [2015] VSCA 50; Wakim v The Queen [2016] VSCA 301; R v Talia [2009] VSCA 260; Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75; Mohamed v R (2022) 367 FLR 482; [2022] VSCA 136; El Masri v The King [2023] VSCA 93; Markovic v The Queen (2010) 30 VR 589; Rodriguez v DPP(Cth) (2013) 40 VR 436; [2013] VSCA 216; Weatherburn v The King [2023] VSCA 283; R v Pham (2015) 256 CLR 550; [2015] HCA 39; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; R v Pulini [2019] QCA 258; R v Shaik [2020] VCC 909; R v McAleer (New South Wales District Court, T Smith J, 25 June 2021).
Sentence: Total effective sentence of three years and six months’ imprisonment, with a non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr N. Papas KC Mr P. Botros | Mr S Bruckard, Solicitor for Public Prosecutions (Cth) |
| For Dr Farshchi | Mr D. Gurvich KC Mr M. Stanton | Galbally & O’Bryan Lawyers |
HIS HONOUR:
Introduction
1Dr Farshchi, on 30 October 2023, a jury found you guilty of two charges contrary to Division 270 of the Criminal Code Act 1995 (Cth), namely:
· one charge of causing a person to remain in forced labour, which was Charge 1 on the indictment;[1] and
· one charge of conducting a business involving forced labour, which was Charge 2 on the indictment.[2]
[1]Criminal Code Act 1995 (Cth) s 270.6A(1).
[2]Criminal Code Act 1995 (Cth) s 270.6A(2).
2The maximum penalty for each offence is nine years’ imprisonment.
3The victim in this case is Victor Patterson.[3]
[3]A pseudonym. Pursuant to a proceeding suppression order made by the Chief Judge of County Court, the victim’s name has been supressed (see also s 15YR of the Crimes Act 1914 (Cth)).
The nature and circumstances of the offence[4] and the circumstances of the victim[5]
[4]Crimes Act 1914 (Cth) s 16A(2)(a).
[5]Crimes Act 1914 (Cth) s 16A(2)(d).
4I turn first to the facts and circumstances of your offending.
5The task of a sentencing judge following a jury verdict is well-established.[6] I am obliged to determine the factual basis upon which you are to be sentenced. The facts found by me must not be inconsistent with the jury's verdicts. And, importantly, any adverse findings made by me — save for what is revealed by the jury’s verdicts, including by necessary implication — must be made to the criminal standard; that is, beyond reasonable doubt.
[6]Cheung v The Queen (2001) 209 CLR 1 (Gleeson CJ, Gummow and Hayne JJ); [2001] HCA 67.
6The factual dispute between you and the prosecution is confined; there is very little for me to determine. Indeed, the only real dispute is your state of mind. I will return to this.
7Because of the directions I gave to the jury, the jury’s verdicts necessarily imply that the jury were satisfied of the following matters:
· you conducted the business trading as Candoo Confectionary;
· Mr Patterson was performing labour and services at Candoo Confectionary;
· you made a series of threats to Mr Patterson;
· the threats made to Mr Patterson related to his immigration status, and included threats to have him removed from the Australian community;
· by reason of the threats Mr Patterson himself did not feel free to leave Candoo;
· the threats caused Mr Patterson to remain in a condition of forced labour within the meaning of the Criminal Code;
· Mr Patterson was in a condition of forced labour for a substantial and extended period of time which broadly corresponded with the Crown case.
8It follows from the jury’s verdict that they substantially accepted the account of events given by Mr Patterson, as do I.
9You fall to be sentenced on this basis.
10The offence embodied by Charge 1 applies to conduct that causes a person to enter a condition of forced labour or to remain in a condition of forced labour. The prosecution elected to frame the charge on the basis that your threats caused Mr Patterson to remain in a condition of forced labour.
11I directed the jury that they had to be unanimous as to the period of time in which you caused Mr Patterson to remain in forced labour and that they had to be satisfied that this broadly corresponded to the Crown case. The Crown case was that Mr Patterson was in a condition of forced labour from around July 2015 to Persian New Year on 11 March 2017, when Mr Patterson ultimately ceased working at Candoo. At the plea hearing, the prosecution submitted that the length of the forced labour is therefore approximately 20 months. The defence essentially accepted that I should sentence upon that basis, that is 19 to 20 months. I will proceed upon that basis.
12Charge 1, which is causing Mr Patterson to remain in a condition of forced labour, is therefore founded on the threats directed at Mr Patterson over a period of approximately or nearly 20 months, more particularly, from around July 2015 to March 2017.
13Charge 2, which is conducting a business involving forced labour, is founded on your knowledge that Mr Patterson was in a condition of forced labour when he was working at Candoo, over that period of approximately or nearly 20 months. Charge 2 arises from your control of the business trading as Candoo.
14Before turning to the facts in more detail, it is necessary to say something with respect to what this case is, and is not, about. This is not a case about employment rights, entitlements, and conditions; it is a criminal proceeding relating to your conduct in causing a person to remain in a condition of forced labour within the meaning of the Criminal Code. This court is not sitting in judgment of whether or not you were a poor employer who failed to discharge your legal obligations and duties to employees under Australia’s modern employment system. Instead, I am looking at your conduct through the prism of the criminal law with a view to assessing the objective gravity of your offending and your moral culpability. That said, Mr Patterson’s employment conditions are relevant for context and, in turn, to my assessment of your moral culpability for the forced labour wrongdoing.
15Consistent with the jury’s verdicts, and considering all the evidence at your trial, I am satisfied — beyond reasonable doubt where necessary — of the following facts and circumstances.
16Mr Patterson, his wife, Sandra Patterson,[7] and his daughter, Gabrielle Patterson[8] — whom I will refer to, collectively, as the Patterson family — are from Iran. Fearing for their personal safety,[9] the Patterson family fled Iran in 2013. They made their way to Indonesia, and, with the assistance of people smugglers, they travelled by boat to Australia in the later part of 2013. The Patterson family sought asylum in Australia, spending a period of time in immigration detention on both Christmas Island and in Darwin. They were subsequently granted bridging visas, which permitted them to reside in the community while their applications for permanent residency were being assessed. At the time of your offending, the Patterson family were in the process of applying for a visa for permanent residency on the basis that they were refugees.
[7]A pseudonym.
[8]A pseudonym.
[9]The reason(s) why they feared for their safety was of limited relevance at trial, and is of no relevance to the sentencing exercise.
17The Patterson family spent periods of time at various locales throughout Australia, including in [country Victoria] and [Queensland], before arriving in Melbourne in early-January 2015. They expressed a desire to settle in Melbourne, principally because of the city’s established Iranian population and the sense of community that comes with it. Immersion in the Iranian community was important to the Patterson family, who were, naturally, experiencing feelings of cultural isolation.
18Shortly after their arrival in Melbourne, Mr Patterson saw a job advertisement on Facebook. The advertisement, which was posted to a page operated by an Iranian community group, was for Candoo Confectionary, a shop which specialised in Persian sweets and confectionary. As noted earlier, the jury were satisfied that you conducted that business.
19Candoo had two locations: one in Box Hill; and one in Lalor. Having decided to apply for a job at Candoo, Mr Patterson visited the Box Hill store and left his contact details with one of the employees.
20Later that day, you contacted Mr Patterson and asked him if he was interested in working at Candoo as a baker. Mr Patterson said that he was, and you suggested that he complete a one week unpaid trial, under the instruction of an experienced baker, to determine his suitability for the role. Mr Patterson agreed to undertake the trial, which commenced in mid-January 2015.
21There was some discussion at trial about whether the conditions of Mr Patterson’s visa entitled him to work when he applied for a job at Candoo. Whether he was or was not entitled to work is irrelevant for present purposes. What is relevant, for reasons I will come to shortly, is that Mr Patterson was motivated by a desire to provide for his family and establish a life in this country.
22Following his completion of the trial period, you offered Mr Patterson a job. Mr Patterson’s employment was conditioned upon Mr Patterson satisfactorily completing a three-month training program. The training program was offered in-house at Candoo, with Mr Patterson being taught and supervised by other bakers. Mr Patterson would not be paid for his participation in the training program.
23Mr Patterson gave evidence that he questioned you about whether he should be paid during the training period. He said that, in response, you told him that it was normal in Australia for an employee to pay for their training or to complete a TAFE course. It was intimated to Mr Patterson that he was being offered an opportunity that was hard to come by. I accept that this conversation occurred. While you are not to be punished for this conduct, it demonstrates both that Mr Patterson was vulnerable to exploitation, and that you were aware of this fact.
24Mr Patterson completed the training program. He said that he worked long hours over the training period; he would usually commence at about 7 am and finish at 9pm. Over the Persian New Year, he said that he would work until 3 am or 4 am.
25Following his completion of the training program, you told Mr Patterson that you would pay him $10 an hour. At trial, Mr Patterson said that, at the time he accepted the offer, he had no knowledge of minimum wage requirements nor workplace rights generally. I accept that to be so.
26It was after the training period that the employment relationship took on a more sinister character.
27As is the case with conduct that spans some time, it is difficult for those involved to construct a clear timeline of events by reference to precise dates. However, at trial it was accepted by you (and the prosecution) that the training period ended in April or May 2015. It was also accepted that, at some point after April or May in 2015, most likely from July 2015 onward, you had several conversations with Mr Patterson about his pay.
28I accept Mr Patterson’s accounts of those conversations. Mr Patterson says that he had been speaking with friends about his wage. He says that they informed him that pay of $10 per hour was not compatible with minimum wage requirements. They also told him that, as his employer, Candoo had to pay tax on his behalf. Mr Patterson raised these concerns with you on a number of occasions. Your response on each occasion was varied. Mr Patterson described your approach as being ‘push and pull’. Mr Papas KC, appearing for the prosecution, described it, in more colourful terms, as a ‘carrot and stick’ approach.
29When he first confronted you about the adequacy of his pay, Mr Patterson gave evidence that you told him not to be too concerned with his level of remuneration, because you could assist him in other ways. He said that you told him, ‘[s]o it’s not about the wage, don’t worry about the wage, ah, I – I help you with your visa status, I help you with buying your house, I would buy a house for you and stuff like that.’ It was in this context that you told Mr Patterson that you had connections at the (then) Department of Immigration who could help with his visa application. You also told him that you had knowledge of various rules and regulations, which you could use to his advantage. I accept that you said these things to Mr Patterson. I do not need to decide whether you in fact intended to assist Mr Patterson in one or more of the ways just described. These statements are relevant, not because of their underlying intention, but because they were said by you. They are demonstrative of two things.
· First, your knowledge of the things that were important to Mr Patterson, a man whose family was seeking asylum in Australia and who was of limited financial means.
· Second, the impact, and intended impact, these things must have had upon Mr Patterson.
30I find that you made these representations to Mr Patterson because they are the converse of the threats, which I will come to momentarily. They were, as Mr Papas KC said, the carrot — inducements intended to placate Mr Patterson by allaying his concerns about proper remuneration. Working at Candoo was portrayed as more than a job; it was an opportunity for Mr Patterson to build a stable life in Australia.
31Mr Patterson continued to provide labour and services at Candoo after this conversation. He worked long hours. His evidence was replete with references to how strenuous the work was; he said that he was at the point of exhaustion, and, at times, in physical pain. On the issue of the physical pain experienced by Mr Patterson, which included back pain, evidence was adduced from various witnesses employed at Candoo about the prescription of medication by you and their use of that medication. In my view, this evidence did not go very far, at least not from the prosecution’s perspective. Indeed, in the event, the prosecution relied on this evidence for a very confined purpose — it was one of the personal or situational factors the jury could consider in determining whether Mr Patterson was in a condition of forced labour. In the prosecution’s submission, which I accept, the evidence adds further context to the relationship between you and Mr Patterson — not only were you his employer and a respected member of the Iranian community, you were also, in some respects, his medical practitioner.
32Mr Patterson ultimately formed the view — and this would be sometime in or shortly after July 2015 — that you did not intend to fulfill your promises. He approached you again, expressing concerns about both the quantum of pay and the infrequency of payment.
33You did not respond well to Mr Patterson raising these concerns. On Mr Patterson’s recollection of events, this was the first time that you threatened him. You made threats as to what might happen to Mr Patterson if he did not continue to work at Candoo. You said that you had connections in the (then) Department of Immigration that could be used to jeopardise his visa application and have him placed in immigration detention or deported. The threat was, to again adopt the prosecution’s characterisation, the ‘stick’. You had promised Mr Patterson a wealth of opportunities, on the one hand, and threatened to take them way, on the other.
34On the basis of that threat, Mr Patterson continued to work at Candoo, believing that he had no other choice.
35Thereafter the threats continued. Mr Patterson cannot recall, with precision, the number of times you threatened him over the relevant period. He estimates that it was somewhere between seven and 10 times, but could have been more. Identifying the precise number of threats is somewhat of a distraction. I am satisfied, beyond reasonable doubt, that you made multiple threats of the same or similar character. You threatened Mr Patterson as and when necessary, each time with the objective of ensuring that he continued to provide labour and services at Candoo.
36Noting the difficulties routinely faced by witnesses in recounting the actual content of conversations that occurred up to two years prior to speaking with police, I accept that the underlying threats to deport or have Mr Patterson detained were, at times, accompanied by statements to the following effect:
· that the (then) Department of Immigration is looking for a reason to send Mr Patterson back, because he is a refugee.
· that you had recordings of Mr Patterson smoking opium and working illegally;
· that you could harness your connections at the (then) Department of Immigration to Mr Patterson’s detriment;
· that you had the power to have Mr Patterson placed into immigration detention;
· that you would inform Centrelink that Mr Patterson was paid in cash and not declaring income;
· that you had an understanding of the law and regulations, which you could use to your advantage;
· that you could afford to pay any fines or penalties associated with the way you treated Mr Patterson; and
· that you would inform people in Iran that Mr Patterson had converted to Christianity.
37The truth of these statements is immaterial. But the fact you made them demonstrates an acute awareness on your part of the power imbalance that existed between you and Mr Patterson. They had the effect of amplifying the central threat of deportation and / or detention, making that prospect more plausible, at least from Mr Patterson’s perspective. The reference to Mr Patterson’s religion was particularly malicious. Mr Patterson described the threat of deportation being cast in the following terms:
And when they deport you back to Iran I'm gonna let them know that you're a Christian convert, ah, in Australia then their sentence over there is — for apostasy is death so they're going to kill you over there.
38Mr Patterson felt compelled to continue to work at Candoo by reason of these threats. He worked long hours in a physically demanding job. He was unable to spend quality time with his family. His wage, which was on any view low, was often not paid, not paid in full, or paid late. Consequently, his mental and physical health deteriorated, as did his relationship with his wife and daughter. I will elaborate on the consequences of your offending shortly when dealing with the victim impact statements.
39The period for which you fall to be sentenced concluded when Mr Patterson left Candoo in March 2017. There was some dispute at trial as to whether Mr Patterson left Candoo because the wage dispute between you both had reached a point where Mr Patterson refused to continue working, or, alternatively, whether you terminated his employment. Nothing was made of this by the parties at the plea hearing. I do not need to resolve this.
The impact on the victim[10]
[10]Crimes Act 1914 (Cth) s 16A(2)(e).
40Three victim impact statements were tendered on the plea.[11]
[11]Exhibit 1 – Victim Impact Statements of Victor Patterson, Sandra Patterson, and Gabrielle Patterson.
41The first victim impact statement, which was read to the Court by the prosecution, was prepared by Mr Patterson. Mr Patterson’s victim impact statement is a powerful one. It articulates in clear terms the pernicious effects of conduct that curtails a person’s agency. Mr Patterson speaks about the way his relationship with his daughter and wife suffered as a result of your offending. His prolonged condition of forced labour, involving as it did long hours and physically demanding work, meant that he was unable to spend quality time with those closest to him. He speaks about his work leading to fractures in those relationships, the effects of which are still being felt today. He said that, at times, he had thoughts of ending his life, both because of your threats and the thought of being deported, and because of the shifts in his family dynamic.
42Mr Patterson also talks about the physical effects of being forced to work at Candoo. He says that the physically demanding work has had a long-term effect on him; he describes his back pain as ‘excruciatingly painful’. Mr Patterson is concerned that his physical ailments will prevent him from pursuing work as a tiler, which is his area of expertise.
43Finally, Mr Patterson discusses the financial impacts of your offending. Your offending meant that he was precluded from working elsewhere, which, in turn, meant that he was beholden to your irregular and inadequate payment practices. In this regard, Mr Patterson speaks of being unable to provide for his family and ‘live like normal people’.
44Mr Patterson concludes his victim impact statement in moving terms. Mr Patterson, a man who fled his home and was aspiring to build a new life in Australia, states that ‘[t]he hope and optimism I had for my future, and that of my family, has been stolen from me.’
45The second victim impact statement was prepared by Ms Patterson. Ms Patterson’s victim impact statement was tendered, but not read. Ms Patterson says that your threats, which grave rise to the spectre of deportation, made her feel unsafe and insecure; she speaks of being ‘paralysed with fear and uncertainty’. She describes herself as being an ‘emotional wreck’.
46The third and final victim impact statement was prepared by Gabrielle Patterson, whom I will refer to as Gabrielle. Gabrielle’s victim impact statement was also tendered, but not read. Gabrielle eloquently describes the impact of your offending on her. It, too, is a powerful statement. Gabrielle says that your offending ‘created an atmosphere of dread and instability’ at home. She speaks of witnessing Mr Patterson’s struggles, and of being ‘robbed of a nurturing and supportive home life’.
47This case was factually rich. It involved a complex narrative that needed to be put before the jury so they could properly understand, assess, and evaluate the evidence. Not all matters which were before the jury are relevant to my present task. Likewise, not all matters detailed in the victim impact statements are matters which I am permitted to take into account in imposing sentence. My focus for present purposes is on how your offending impacted Mr Patterson and his family. I am conscious that there are some matters stated in the victim impact statements which I must not act upon. For example, there is reference to Ms Patterson’s very sad miscarriage of her baby and its consequences upon them. You are not to be punished for this and I do not take into account its consequences.
State of mind — intention or recklessness?
48I will now consider your state of mind, which is the main factual dispute between you and the prosecution.
49As a general proposition, an offence against a law of the Commonwealth is comprised of physical elements and fault elements. A fault element relates to your state of mind. Again, and as a general proposition, every physical element is accompanied by a fault element. This is the case for the forced labour offences.
50With respect to the element of Charge 1 concerning the making of the threats — there is no question that the threats you made were made intentionally; that is, that you intended to make the threats. Proof that you intended to make the threats is an element of the offence; the jury could only have returned verdicts of guilty if they were satisfied that you had that state of mind.
51The issue of controversy before me concerns the fault element as it applies to the forced labour physical element.
52That physical element required the jury to be satisfied that you caused a reasonable person in Mr Patterson’s position to remain in forced labour.
53It was common ground at trial that proof of intention or recklessness would satisfy the fault element. The dispute of fact which falls for determination, with respect to Charge 1, is whether, at the time you made the threats:
(a) you intended that those threats would cause a reasonable person in Mr Patterson’s position to remain in forced labour; or
(b) you were reckless as to whether those threats would cause a reasonable person in Mr Patterson’s position to remain in forced labour.
54Put simply, I have been asked to determine whether your state of mind, with respect to the forced labour element, was one of intention or recklessness. Your counsel argues that I cannot be satisfied, beyond reasonable doubt, that you intended to cause a reasonable person in Mr Patterson’s position to remain in forced labour.
55At the plea, I queried whether the distinction between recklessness and intention was, at least in this case, more apparent than real. It is true that, in Ansari v The Queen,[12] the High Court observed that the fault elements for offences against the laws of the Commonwealth are arranged ‘in a descending order of culpability: intention, knowledge, recklessness and negligence. The most blameworthy fault element is intention and the least blameworthy is negligence.’[13]
[12]Ansari v The Queen (2010) 241 CLR 299; [2010] HCA 18.
[13]Ansari v The Queen (2010) 241 CLR 299, [59]; [2010] HCA 18.
56Your state of mind is relevant to my assessment of your moral culpability. Moral culpability, however, is not to be determined solely by ‘reference … to the category of malice involved.’[14] Rather, it involves the evaluation of several factors, including your state of mind, your motives, what you actually did, the circumstances known to you, and the consequences of your conduct.[15] This multilayered assessment of moral culpability explains why the High Court — and intermediate courts of appeal across the country — have observed that there is not necessarily a distinction in moral culpability between an offence committed intentionally and the same offence committed recklessly.[16] In some cases, the distinction will matter; in others, it will not.[17] Each case must be considered in the light of its own particular facts.
[14]R v Aiton (1993) 68 A Crim R 578, 598.
[15]See, eg, R v Lindrea (unreported, Court of Criminal Appeal, 4 August 1994); Barrett v R (2010) 27 VR 522; [2010] VSCA 133; DPP v Herodotou [2017] VSC 178, [36].
[16]See, eg, R v Crabbe (1985) 156 CLR 464; [1985] HCA 22; R v Lindrea (unreported, Court of Criminal Appeal, 4 August 1994); Barrett v R (2010) 27 VR 522; [2010] VSCA 133;
[17]See, eg, DPP v Herodotou [2017] VSC 178, [36]; DPP v Rider & Anor [2023] VSC 466, [36].
57In the circumstances of this case, and having regard to your conduct as a whole, it seems to me that there is little difference between these two states of mind insofar as your moral culpability is concerned.
58I say that because I find that you clearly intended for your threats to cause Mr Patterson himself to continue providing labour and services at Candoo; you intended that those threats would cause Mr Patterson to consider that he was not free to cease providing labour to Candoo. You clearly intended that those threats would overwhelm his freedom to choose to leave his employment with you. You fully intended that these threats would be effective. You observed at the time that they were effective and, with that knowledge, continued to make threats of the same or similar nature. You did all this with knowledge of Mr Patterson’s economic and social vulnerability. While I will say more about this in a moment, I consider your moral culpability to be high.
59That is the case regardless of whether you meant for those threats to cause a reasonable person in Mr Patterson’s position to consider he was not free to leave, or whether you were reckless as to that outcome.
60That all said, given the findings I have made about your knowledge and intention concerning the impact of the threats upon Mr Patterson, and your accompanying motive, I am driven to the conclusion, to the criminal standard, that you must have intended that those threats would cause a reasonable person in Mr Patterson’s position to remain in forced labour.
61Your offending behaviour was unambiguous; the threats you made were explicit in nature, were repeated many times and over a protracted period of time. The only reasonable inference available is that you must have been acutely aware of the impact your conduct would have had upon a reasonable person in Mr Patterson’s position, and that you must have meant this outcome.
62For the avoidance of any doubt, I can see no evidence which might support any scenario that while you fully intended that the threats would ensure that Mr Patterson himself would not consider himself free to cease providing labour to your business, that you may not have intended that they would have this impact upon a reasonable person in the position of Mr Patterson.
63There is no evidence concerning the characteristics of Mr Patterson, or his circumstances, which might support a hypothesis that you believed he may have been more susceptible to the threats you made than a reasonable person might be in his position. No such scenario was advanced by the defence, either at the trial or at the plea.
64There is no evidence which might suggest that your capacity to reason or think might have been clouded causing you to misjudge the impact these threats might have had upon a reasonable person in the position of Mr Patterson.
65My conclusion in respect of Charge 1 is that you meant or intended for the threats to cause a reasonable person in Mr Patterson’s position to consider he was not free to leave is simply irresistible.
66I now turn to Charge 2.
67Like Charge 1, I find that your state of mind was one of intention. I make that finding because the evidentiary foundations of Charges 1 and 2 were essentially the same. In fact, it is difficult to identify any evidence relevant to Charge 1 that was not also relevant to Charge 2. If you intended to cause Mr Patterson to remain in a condition of forced labour while working at Candoo, which I have found, it would necessarily follow in the circumstances of this case — as a matter of common sense — that you intended for your business to involve the forced labour of another person. Having regard to the totality of the evidence, no other conclusion would rationally be open to me.
Objective gravity
68Given the novelty of this offence, and the fact there has only been a handful of cases determined to date, it is difficult to assess where your offending sits along the spectrum of objective gravity.
69Even so, as I have said a moment ago, I think your moral culpability is high. Your offending involved the exploitation of the victim, Victor Patterson, for an extended period.
70Mr Patterson was extremely vulnerable. He and his family had fled Iran and were seeking asylum in Australia. Mr Patterson was a man of limited means; he was not financially stable, he had limited literacy skills, and he had a rudimentary grasp of the English language. He certainly did not understand his rights and entitlements as a worker in this country.
71It was in this context that you knowingly took advantage of Mr Patterson, threatening to have him deported if he did not continue working for you. You made multiple threats of the same or similar character over a period of time. The threats which you made were calculated, manipulative and pernicious.
72Your motive was a commercial one — you sought for your business to benefit on the back of the forced labour of Mr Patterson.
73While the commencement of your offending was not planned or pre-meditated, there is no doubt that your conduct became sustained and protracted; this is not a case about an isolated or off-the-cuff remark.
74Your conduct has had a devastating effect on Mr Patterson and his family unit.
75I assess this to be a serious example of this offence.
Mitigating factors
Personal history
76I turn to your personal history, which is detailed in the report of Dr Aaron Cunningham dated 4 December 2023. The report was marked Exhibit A on the plea.
77Dr Farshchi, you are now 50 years’ old.
78You are supported by your wife, Naghmeh Mostafaei, to whom you have been married for 25 years. You and Ms Mostafaei have one child together. You are, by all accounts, a dedicated husband and father. You hold real concerns about how your family would manage if you were to be sentenced to a term of immediate imprisonment.
79You were born in Iran. You told Dr Cunningham that you had a stable home environment with no abuse or trauma. You have one brother and two sisters, but none of them live in Australia. Your wife and son are you main supports.
80You have performed well academically and professionally. Dr Cunningham describes you as a ‘driven and successful individual’. You completed medical school in 1999, and subsequently travelled to Ukraine in 2003 to further your studies. After returning to Iran for a brief period, you were awarded a scholarship to study Chinese Medicine at Beijing University, which you commenced in 2005. In 2007, you travelled to Australia to study chiropractic medicine at Melbourne University.
81You settled in Melbourne, where you began working as a general practitioner, chiropractor, and Chinese medicine practitioner in 2012. You currently own a medical practice.
82In 2013, you started Candoo Confectionary. You sold Candoo in 2018 and no longer have an interest in the business.
83Despite what may appear, outwardly, as a life of professional and financial success, I am told, and I accept, that your medical practice has suffered since you were charged in 2018. I also accept that you are experiencing considerable financial difficulties.
Character, antecedents, age, means and physical and mental condition[18]
[18]Crimes Act 1914 (Cth) s 16A(2)(m).
84You are a person of previous good character, with no prior convictions or matters pending; this is your only run-in with the criminal law.
85Your character and overall standing in the community is evidenced by the number and quality of the character references tendered on your plea.[19] Your character references, there being 15 in total, are consistent. Reading them together, a number of common themes emerge:
· You are a gifted and caring medical practitioner.
· You are kind, caring, and generous.
· You are community-minded and well-respected, especially within the Iranian community.
· You have made a number of contributions to the Iranian community, including by arranging, funding and assisting with events.
· You are family-oriented and, by all accounts, a devoted husband and father.
[19]Exhibit B – Bundle of character references (Dr Barry Draper, dated 4 December 2023; Ms Rouhollah Mobtadi dated 5 December 2023; Babak Abbasi dated 6 December 2023; Mr Davood Ajami dated 6 December 2023; Mr Hanif Reza Jaberipour dated 6 December 2023; Dr Hoda Moghimi dated 6 December 2023; Dr Seyed Alireza Motevallian dated 6 December 2023; Mr Saleh Ramezaniotaghvar dated 6 December 2023; Mr Vahid Taghizadeh Salari dated 6 December 2023; Dr Hamed Shahidian dated 6 December 2023; Dr Hesamaddin Farshad dated 7 December 2023; Mr Gisue Pourrahmatimianji dated 7 December 2023; Dr Hamid Saffary dated 7 December 2023; Dr Saied Shushtarian dated 7 December 2023; and Mohammad Farshchi, dated 06 December 2023).
86Mr Gurvich KC described your character references as ‘impressive’. I agree. The distinct impression that one gets when they read the references prepared on your behalf is that your offending was completely out of character.
87You do not have a history of mental illness, nor do you have any other medical illnesses or injuries.
88In his report, Dr Cunningham opines that the criminal proceeding has caused you considerable distress. You told him that you were ‘shocked’ that you were found guilty. You also told him that the verdict has made you feel very ‘fragile’. You reported experiencing suicidal ideation and feel that you could ‘quickly be broken’ by further stress.
89Dr Cunningham has formed the view that you meet the diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mood. He links your current mental state to this proceeding. He says that your depression and anxiety is chronic as the ‘precipitating stressor’ — that is, this proceeding — remains ongoing. Dr Cunningham notes that the distress you are currently experiencing has affected your day-to-day functioning, impacting both your homelife and business.
90Dr Cunningham concludes that you would find incarceration more onerous relative to a person who has not been diagnosed with adjustment disorder with mixed anxiety and depressed mood.
91Your counsel does not submit that your current mental condition rises to the level required to engage any of the Verdins[20] principles. However, they ask me to take your mental health into account in a general way. I intend to do so.
Standing in the community[21]
[20]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[21]Crimes Act 1914 (Cth) s 16A(2)(ma).
92I have already made reference to the credit which you must be given for your good character and your contribution to the community. You were of good standing in the community, and a leader in the Persian community. You will receive full credit for this.
93On the other hand, the prosecution relied upon s 16A(ma) of the Crimes Act 1914 (Cth) which provides as a relevant sentencing consideration:
[I]f the person's standing in the community was used by the person to aid in the commission of the offence — that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates.
94It was argued by the prosecution that your offending is so aggravated. It was accepted by your counsel that your standing in the community was used, to some degree, to aid in the commission of the offence. That concession was properly made. I sentence you upon that basis.
95I am conscious, however, that I must not discount the mitigation for previous good character on the basis of features of the offending which have already been taken into account in aggravation of the penalty to be imposed. Such reasoning would effectively doubly punish you.[22] I have avoided doing this.
The degree to which Dr Farshchi has shown contrition for the offence[23]
[22]Wakim v The Queen [2016] VSCA 301, [43].
[23]Crimes Act 1914 (Cth) s 16A(2)(f).
96After some discussion at the plea hearing, your counsel accepted — with one qualification — that there is no evidence of contrition, remorse or acceptance of responsibility.
97The one qualification is that you consented at the plea hearing to the making of a reparation order[24] in the sum of $42,990, which relates to the underpayment of the victim.
[24]Crimes Act 1914 (Cth) s 21B.
98One of the consequences of your forced labour was the underpayment Mr Patterson. Your counsel submitted that the consent to the reparation order addressed this loss — at least in part.[25] It was said that consenting to the order evidenced some level of contrition, acceptance of responsibility and the facilitation of the course of justice, albeit confined to the issue of the underpayment of Mr Patterson. Your counsel accepted, sensibly, that this could not constitute evidence of contrition, acceptance of responsibility or facilitation of the course of justice with respect to your underlying criminality, namely the making of the threats.
[25]The Crown noted that the victim continues to pursue you, in a Federal court for outstanding wages which, he says, total up to some $800,000. Those proceedings have not been settled. It would seem that the full amount of what Mr Patterson is owed is still very much in dispute and will no doubt be determined in another forum. It is not my role to adjudicate upon this.
99I accept that your consent to the reparation order can be taken into account in this limited way, and I will do so.
100Otherwise, it is my view that you have shown no remorse or contrition in relation to the gravamen of the wrongdoing for which you have been convicted, namely the making of multiple threats over an extended period of time to ensure that Mr Patterson remained in a condition of forced labour, to your benefit. You have never acknowledged this misconduct. You have shown no insight into this wrongdoing or its full consequences.
101It was further submitted on your behalf that you conducted the trial in a manner that facilitated the administration of justice, and this is a matter that can be taken into account in sentencing.
102The Crown took issue with this, pointing to a number of matters, including the fact that you ran a lengthy contested committal over two weeks in 2019, with the cross-examination of 18 witnesses, you made an unsuccessful stay application in 2021, and had lengthy pre-trial arguments in 2022 and 2023.
103None of the parties engaged in any granular analysis of the conduct of the trial. The submissions were very general. Guided by the relevant principles,[26] I am satisfied that the trial was conducted by the defence generally in an efficient and cooperative manner. Admissions were made, evidence was led by agreement through law enforcement officials, cross-examination and addresses were generally economical. It was apparent to me that when required, the defence generally co-operated with the prosecution in order to resolve issues in a sensible way.
[26]Karam v The Queen [2015] VSCA 50, [156].
104In the circumstances, while not a weighty factor, you will receive some mitigatory benefit as a result of the utilitarian benefit flowing from the conduct of your trial.
Extra-curial punishment
105You began working as a General Medical Practitioner, Chiropractor and Chinese Medicine practitioner in 2012. You had a mixed practice clinic in Epping.
106As a result of this prosecution, in 2018 restrictions were placed upon you by the regulatory authorities whereby you could only practice in these three fields under onerous conditions which required a very high level of supervision, at your own expense.
107You appealed these restrictions to the Victorian Civil and Administrative Tribunal (VCAT) which upheld the restrictions.[27]
[27]Farshchi v Chiropractic Board of Australia (Review and Regulation) [2018] VCAT 1618, [89]-[97].
108These conditions have significantly affected the way in which you have been able to practice and the sanctions have greatly impacted you income over the last five years. There is evidence from a Dr Draper that as result you have not been able to practice as a medical practitioner. Dr Draper supervised you in your chiropractic practice.
109As to the future, it was submitted by your counsel that this conviction will effectively result in the loss of your professional prospects in all three fields, but in particular upon your field of choice, which is chiropractic practice; this was the focus of the submissions made by your counsel.
110The fact that this conviction will likely have this incidental impact is accepted by the prosecution.
111The real controversy at the plea was the extent to which this loss of your professional prospects — especially in chiropractic practice — constitutes a mitigatory factor.
112There is authority that there is ‘a distinct difference between a disqualification resulting from criminal conduct in the course of the employment from which the person is disqualified and criminal conduct remote from that employment but having that consequence’.[28]
[28]R v Talia [2009] VSCA 260, [28] (Ashley and Weinberg JJA)
113Your counsel submitted that whether characterised as extra-curial punishment or otherwise, the loss of professional prospects is a real and significant aspect of punishment. Your counsel argued your offences did not involve the abuse of your professional position as a chiropractor. Put another way, the threats you made had no real connection to your role as a chiropractor. He said that VCAT did not find otherwise.[29] Your counsel emphasised that while you admitted prescribing medication to Mr Patterson, and were aware that medication was also being used by others at the Candoo store, that had at most a limited connection to the way in the which the prosecution case was ultimately put before the jury which centred on threats.
[29]Farshchi v Chiropractic Board of Australia (Review and Regulation) [2018] VCAT 1618, [89]-[97].
114The prosecution accepts that the restrictions imposed on your chiropractic practice involve extra-curial punishment. It is submitted, however, that this has limited mitigatory value. It is submitted that while the offending was not committed through your role as a chiropractor, it was interconnected with that role and not remote from it. Reliance is placed upon the findings reached by VCAT concerning the interconnectedness of your professional role and Mr Patterson’s (then) allegations.[30]
[30]Farshchi v Chiropractic Board of Australia (Review and Regulation) [2018] VCAT 1618, [89]-[97].
115While there is some overlay, I accept the substance of your counsel’s submissions that the bakery business was a side-business and had very little to do with your medical practice. The VCAT decision was fundamentally concerned with assessing the concerns which your (then alleged) criminal behaviour raised with respect to your practice in the respective health professions. This does not equate your case to one where your loss of professional opportunity has resulted ‘from criminal conduct in the course of the employment from which the person is disqualified’.[31] In my view, the essence of your offending was reasonably remote from your practice in the field of chiropractic medicine, and, indeed, the other fields.
[31]R v Talia [2009] VSCA 260, [28] (Ashley and Weinberg JJA).
116The importance of this mitigating factor should not be overstated, but it is deserving of some material diminution in sentence.
Family hardship
Effects of incarceration on your family[32]
[32]Crimes Act 1914 (Cth) s 16A(2)(p).
117The probable effects that any sentence under consideration would have on your family or dependants is a relevant matter. This is commonly referred to as family hardship.
118Traditionally, family hardship was only relevant if it satisfied the test of exceptionality. The position in respect of federal offenders has now changed.[33] I am required to take into account your family hardship, even if it does not rise to the level of exceptional hardship.[34]
[33]See, eg, Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75; Mohamed v R (2022) 367 FLR 482; [2022] VSCA 136.
[34]See, eg, Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75; Mohamed v R (2022) 367 FLR 482; [2022] VSCA 136.
119Your counsel identified several matters, which, in their submission, make it likely that your wife and child would experience hardship if you were sentenced to a period of immediate imprisonment. Those matters were:
· First, you are the sole breadwinner; your wife, Ms Mostafaei, does not work and said that she is not able to do so. Ms Mostafaei has not given evidence on this issue. She did, however, relay her concerns to Dr Cunningham. In his report, Dr Cunningham records that Ms Mostafaei is concerned that she would not be able to maintain your medical practice — that is, the running of the clinic — in your absence.
· Second, and relatedly, Ms Mostafaei told Dr Cunningham that your absence will cause her significant financial distress. She is of the view that she would not be able to pay the mortgage on your family home, and is worried that she is going to have to move. Ms Mostafaei’s concerns with respect to the mortgage are supported by bank statements tendered on your plea.[35] They make it clear that you are currently in arrears.
· Third, Ms Mostafaei told Dr Cunningham that she is concerned about the effect your absence may have on your son. She noted that your son is very dependent on you. There is no objective evidence to support this, but I do not doubt the truth of what Ms Mostafaei has said about this issue. I accept that your absence is likely to have an effect on your son’s development in his formative years.
· Fourth, Ms Mostafaei told Dr Cunningham that she does not have any other family in Australia. She feels isolated and hopeless with her current situation. She is afraid of being alone in the family home without you.
· Fifth, Ms Mostafaei has a number of health issues. She has been diagnosed as pre-diabetic and has permanent retina damage, both of which have been attributed to stress. She told Dr Cunningham that her eye condition could worsen with additional stress. Aside from what Ms Mostafaei told Dr Cunningham, there is no evidence of the nature, source or cause of either health condition. Separately, Ms Mostafaei had a fall on 27 December 2023. Medical reports were provided to the Court. The report prepared by Dr Lamba states that Ms Mostafaei has two non-displacement fractures: one on her right ankle; and one on her foot. Her foot injury has also caused her to experience aggravated chronic back injury. Dr Lamba is of the view that, due to her medical condition, Ms Mostafaei requires extensive care and assistance. This includes assistance in caring for your son, at least in the short term.
[35]Exhibit D — Bank of Melbourne bank statements.
120Although the test of exceptionality no longer applies (at least with respect to federal offences), Mr Gurvich KC accepts, correctly, that the nature and level of hardship in a given case directly corresponds to the weight that can be given to it. Your counsel contended that, by virtue of the various matters I have just outlined and accept, a period of immediate imprisonment would have a significant impact on your family.
121The prosecution accepts that a term of immediate imprisonment would have ‘some detrimental impact’ on your family. However, the prosecution contends that family hardship is not a significant mitigating factor in this case.
122I accept the prosecution’s submission.
123I accept that a sentence requiring you to serve a period of immediate imprisonment would place a significant burden on your family, especially Ms Mostafaei. Of the matters identified by your counsel, the financial impacts are, in my view, likely to cause the greatest hardship. However, the Court of Appeal has recognised that family hardship of the kind relied upon by you is an ‘inevitable corollary’ of you having been found guilty of a serious crime.[36] But that does not mean that the hardship in your case carries no weight in the instinctive synthesis. It is my role to determine how much weight should be ascribed to this factor.
[36]Mohamed v R (2022) 367 FLR 482, [99]; [2022] VSCA 136; El Masri v The King [2023] VSCA 93, [56].
124I have concluded that the hardship likely to be experienced by your family, were you to be sentenced to a period of immediate imprisonment, is significant but not so significant that it should weigh heavily in the sentencing calculus and result in a discernible reduction. In forming that view, I have had regard to the nature and seriousness of your offending, which was protracted and calls for both general deterrence and denunciation.[37]
[37]See, eg, El Masri v The King [2023] VSCA 93, [58].
125I give the prospective hardship some weight, although the weight I give it is modest.
The effect of your family’s hardship on you
126In Markovicv The Queen, the Court of Appeal said that ‘an offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor — for example, if the court is satisfied that this will make the experience of imprisonment more burdensome’.[38]
[38]Markovic v The Queen (2010) 30 VR 589, [20]; [2010] VSCA 105.
127As I have said, you have been diagnosed with adjustment disorder with mixed anxiety and depressed mood. In his report, Dr Cunningham opines that ‘[a]t present, fear for his family’s welfare if he was incarcerated is a significant trigger for his depression and anxiety.’ Relying on Dr Cunningham’s opinion, you contend that a period of imprisonment would be subjectively more burdensome for you.
128I broadly accept that submission.
129I take into account the effect of you knowing that your family will suffer if you are incarcerated.
Delay
130I now turn to delay.
131Your counsel submitted that the delay in this matter is extraordinary or inordinate[39] — about six-and-a-half years from the end of the offending period to jury verdict.
[39]R v Merrett, Piggott and Ferrari [2007] VSCA 1; (2007) 14 VR 392, 400-1 [34]-[38] (Maxwell P, with whom Chernov JA and Habersberger AJA agreed).
132It is common ground that a significant portion of this delay was due to the COVID-19 pandemic and the complexity of this matter. It was also said that you were unable to consent to a judge-alone trial given this is a Commonwealth matter.[40]
[40]Alqudsi v The Queen ; (2016) 258 CLR 203; [2016] HCA 24.
133Delay is not, in and of itself, mitigatory. Delay can be relevant in two ways. As the Victorian Court of Appeal observed in Rodriguez v DPP(Cth):[41]
First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[42]
[41](2013) 40 VR 436; [2013] VSCA 216.
[42]Rodriguez v DPP(Cth) (2013) 40 VR 436; [2013] VSCA 216 (Warren CJ and Redlich JA) (citations omitted).
134It was submitted on your behalf that this delay is a powerful mitigating factor, having regard to the impact that this proceeding has had upon you and your family over many years (including both trials), and your demonstrated rehabilitation over that period.
135Both limbs are engaged in this case. I think delay is a matter of real significance here.
136You have taken the opportunity to demonstrate during this period that you have reformed. There has been no re-offending, and you have complied with all your conditions over many years including reporting for some of that period. This, in turn, is relevant to my assessment of your prospects of rehabilitation.
137I also accept that you have suffered by reason of the delay — principally by being in an uncertain state of suspense as to your fate. I have earlier referred to the report of psychologist Dr Aaron Cunningham and to his opinions which I do not repeat. Suffice it to say Dr Cunningham spoke about the significant distress and feelings of hopelessness which you have experienced. I have no hesitation in concluding that the length of the delay has contributed to this distress. The impact of the delay, and its unfairness or punitive effect, has been exacerbated by the restrictions placed upon you in your medical practice and by your lengthy compliance with bail conditions.
138For completeness, I have not been persuaded — on the material and submissions presented by the prosecution — that you conducted the proceedings in a way that exacerbated the delay, thereby tempering the mitigatory effect of undue delay as a sentencing consideration.
139The authorities make it plain that an accused will not be entitled to call in aid the mitigatory effect of undue delay which has resulted from ‘deliberate delaying tactics on their … part’.[43] There is no evidence of anything that could be described as ‘deliberate delaying tactics’.
[43]Weatherburn v The King [2023] VSCA 283, [42].
140You exercised your rights to a committal hearing and to a trial. That you did this should not diminish the mitigatory impact of delay.
141There were procedural delays in the filing of court documents and submissions, and in relation to funding and legal representation issues. I am not in a position to attribute blame or substantial blame to you for these delays.
Rehabilitation prospects[44]
[44]Crimes Act 1914 (Cth) s 16A(2)(n).
142Your counsel argued that notwithstanding that you ran a trial, your prospects for rehabilitation should be regarded as very good.
143The prosecution took issue with this, contending that your prospects of rehabilitation cannot be regarded as good, or even guarded. They are simply unknown, the Crown says.
144It is true that your lack of remorse and insight would ordinarily reflect poorly on my assessment of your prospects of rehabilitation. In your case, however, notwithstanding this landscape, I am prepared to find that your prospects of rehabilitation are at least good for the following reasons:
· You are a middle-aged man who prior to this criminal wrongdoing was someone of good character and standing within the community.
· I do see this offending as being aberrant.
· I have already found that you have used the delay in these proceedings (over six years) to demonstrate that you have reformed.
· To some extent, this offending was also situational. You no longer have an interest in the running of the business, Candoo, or indeed in the running of any business other than your medical practice.
· I am also confident that the sentence I am about to impose upon you will play a further role in deterring you from offending in the future.
· I am comforted by the fact that your wife and child will provide further motivation to you to not reoffend.
145In short, I judge your risk of re-offending to be low.
Specific deterrence[45]
[45]Crimes Act 1914 (Cth) s 16A(2)(j).
146I have found that you are unlikely to reoffend. While not completely irrelevant, I do not think specific deterrence is a weighty matter in determining your sentence.
Comparative cases
147The High Court has stated that a court sentencing a federal offender has a duty to have regard to what has been done in comparable cases throughout the Commonwealth.[46] This is done by referring to comparable cases of intermediate appellate courts in particular.[47]
[46]R v Pham (2015) 256 CLR 550, [49]-[50]; [2015] HCA 39 (Bell and Gageler JJ).
[47]R v Pham (2015) 256 CLR 550, [49]-[50]; [2015] HCA 39 (Bell and Gageler JJ).
148The Crown referred me to the following cases, accepting that none is on all fours with the present case:
· R v Pulini[48]
· DPP v Shaik[49]
· R v McAleer[50]
[48][2019] QCA 258.
[49][2020] VCC 909.
[50](New South Wales District Court, T Smith J, 25 June 2021).
149The offence of forced labour is relatively new. Unsurprisingly, there are very few truly comparable cases. This makes ascertaining current sentencing practices difficult. Certainly, three cases (only one of which is an appellate decision of an intermediate court) do not make for a sentencing practice or pattern.
150Ultimately, what each sentence requires is an individualised approach, which takes account of the unique circumstances of both the offending and the offender.[51] Sentences are not binding precedents which must be followed unless distinguished.[52]
[51]Elias v The Queen (2013) 248 CLR 483, 494-495 [49]; [2013] HCA 31 (French CJ, Hayne, Kiefel, Bell and Keane JJ);
[52]Wong v The Queen (2001) 207 CLR 584, 605 [57]; [2001] HCA 64 (Gaudron, Gummow and Hayne JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 596 [55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2011] HCA 10; R v Pham (2015) 256 CLR 550, [29] (French CJ, Keane and Nettle JJ).
151With these qualifications in mind, I make a few observations about some of the features of these cases.
152In my view, Pulini was a more extreme case of forced labour than your case.
153For the respective forced labour charges, Mr Pulini was sentenced to a period of five years’ imprisonment and Mrs Pulini to a period of six years’ imprisonment for offending which ran for approximately three years and five months.
154There was an especially callous and calculated flavour to the offending, as reflected in this summary given by Morrison JA:
Ms RM was brought to Australia under a plan to effectively force her to remain on as a poorly paid servant of the Pulini family, by making her overstay her temporary visa and with her passport confiscated. She was kept in that position, paid at a rate which Mr Pulini described as nowhere near a normal wage but merely a token of appreciation, for a period of eight years. During the vast bulk of that time she was an unlawful non-citizen, acutely aware of her position and vulnerability, and fearful of what might follow if she was discovered. Those fears were fed by the Pulinis telling her to lie about her status, on another occasion, to keep secret while they were absent, and telling her that the immigration authorities were looking for Mrs Pulini’s mother and to therefore keep secret. The Pulinis callously exploited and oppressed Ms RM over an extended period of time, and with little regard for her welfare and wellbeing. She was even effectively denied proper treatment for medical conditions.[53]
[53]R v Pulini [2019] QCA 258, [112].
155Without wanting to diminish the gravity of your offending and appalling behaviour:
·The offending in Pulini was planned and pre-meditated from the outset, whereas your offending was not.
·While the offending in Pulini involved domestic forced labour, and there was no commercial profit motive, the forced labour resulted in the victim being robbed of virtually all social, economic, physical and movement independence. The intrusion into the victim’s most basic freedoms and rights was almost absolute.
156Further, for comparative purposes, the Pulini sentences must also be seen within a wider context:
· In addition to the forced labour offending, the offenders in Pulini were also sentenced for offences of trafficking a person and harbouring an unlawful non-citizen. Because of the structure of the sentencing orders, the sentences of imprisonment imposed for this additional offending was subsumed into the sentences imposed for the force labour offending. That is, the total effective sentences equated to the forced labour sentences (for Mr Pulini five years’ imprisonment with a non-parole period of two years; for Mrs Pulini six years’ imprisonment with a non-parole period of two years from the date of sentence).
· While the forced labour offending ran for approximately three years and five months (from March 2013 through to August 2016), the overall charged offending period was also of some eight years duration (2008 through to August 2016, when the victim left). Prior to March 2016, forced labour was not a criminal offence.
· What this all means is that the overall sentences of five and six years respectively covered conduct which was far more extensive in duration and in breadth than your forced labour offending.
157In any event, the period of three years and five months for the forced labour offending in Pulini was a markedly lengthier period of offending than your offending — it was effectively double the period of 20 months for which you fall to be sentenced.
158In the case of McAleer, the offenders, who were husband and wife, were sentenced for their role in forcing a Filipino victim to perform domestic work as well as some employment work at Mr McAleer’s business.
159Mrs McAleer faced a charge of causing a person to enter into or remain in forced labour. Mr McAleer faced a charge of conducting a business involving forced labour. They both also faced a charge of harbouring an unlawful non-citizen.
160The forced labour offending period was of some 23 months duration, the victim worked long and demanding days and was underpaid.
161The coercive conduct relied upon by the prosecution fundamentally rested upon the persistent emotional pressure which the offenders applied to the victim to make her feel indebted to them; that is, that she could not leave until all her travel expenses incurred by the offenders to bring her out from the Philippines had been repaid by her. At one point Mrs McAleer also threatened the victim that she knew people back in the Philippines who she could hire to harm the victim or her family if she went home early.
162For the forced labour offending, Mrs McAleer, who was considered to be the most culpable, was sentenced to a period of two years and nine months’ imprisonment.[54] Mr McAleer was sentenced to a period of two years and one month for the force labour offence.[55]
[54]A total effective sentence of three years and three months of imprisonment, with a non-parole period of 14 months imprisonment, was imposed.
[55]A total effective sentence of two years and six months imprisonment was imposed. At the time of the sentence he was to be assessed as to whether this might be served by way of home detention.
163The sentencing judge considered that the features of the forced labour pointed ‘to it being a serious example of this type of offence.’
164It may be accepted that the forced labour offending in McAleer has some similar features to your offending, including the period of the force labour (some 23 months), the fact that it involved a sinister threat or threats, that it was initially opportunistic (in contrast to Pulini), and involved some force labour at the workplace.
165However, when considering the comparative relevance of this case there are some material differences from your case:
· While a threat or threats were employed in McAleer, they were not as sustained as in your case. Mr McAleer also made no such threats. The criminal conduct in McAleer was largely represented by more subtle abuses of power which were generally less egregious than your explicit, malicious, and repeated threats.
· The offending — at least insofar as Mrs McAleer was concerned — was not as commercially motivated as your case (although, as I have observed with Pulini, domestic forced labour is morally repugnant for different reasons).
· Both the offenders in McAleer had entered pleas of guilty, albeit late ones.
166The offender in Shaik was sentenced to a period of 18 months’ imprisonment to be released forthwith upon entering into a recognisance for forced labour offending. Shaik is of limited assistance:
· Shaik involved a plea of guilty.
· The offending in Shaik related to a markedly more confined period than your case (i.e. seven months).
· While Shaik involved the use of a sinister threat, it appears this occurred on an isolated occasion — unlike your case.
167To the extent that these three cases are comparable and provide some guidance of an embryonic sentencing practice for this offence, I take them into account.
Adequate punishment[56] and General deterrence[57]
[56]Crimes Act 1914 (Cth) s 16A(2)(k).
[57]Crimes Act 1914 (Cth) s 16A(2)(j).
168Forced labour offences are intended to prevent the exploitation of vulnerable people, whether such exploitation be achieved through express threats or more subtle abuses of power.
169In the Second Reading Speech to the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012 (Cth), it was said that:
A common factor of contemporary slavery and trafficking – from forced labour and forced marriage to organ trafficking – is the misuse and abuse of power. And such abuse has no place here.
170Your offending, viewed as a whole, requires this Court to give paramount consideration to the sentencing principles of general deterrence and denunciation. The sentences must ensure others are deterred from engaging in this criminal behaviour. And the Court must make it clear that exploitation and abuses of power, particularly where the victim is a vulnerable member of the community, will not be tolerated.
Sentencing Disposition
171The prosecution submitted that an immediate term of imprisonment was required and one which involved the fixing of a head sentence and a non-parole period.
172The defence conceded that a sentence of imprisonment is warranted to acknowledge the seriousness of the offending. However, having regard to the factors in mitigation in this matter, it was submitted by the defence that the threshold for imposing a period of immediate imprisonment had not been reached. It was submitted that all sentencing considerations could be addressed through the imposition of recognizance release order, to be released forthwith on Charge 1; and the imposition of a community correction order (with punitive conditions, such as community work) on Charge 2.
173My overarching duty is to impose a sentence that is of a severity appropriate in all the circumstances of the case.[58] I may only pass a sentence of imprisonment if, upon proper consideration of all other available sentences, I am satisfied that no other sentence is appropriate.[59]
[58]Crimes Act 1914 (Cth) s 16A(1).
[59]Crimes Act 1914 (Cth) s 17A(1).
174Taking into account all relevant sentencing considerations, I have concluded that a sentence of imprisonment is the only appropriate sentencing disposition. I have also concluded that your offending calls for the imposition of a term of imprisonment with a non-parole period.[60] No other disposition would be of a severity appropriate in all the circumstances of the case.
[60]Crimes Act 1914 (Cth) s 19AB.
175Your personal and mitigating circumstances are relevant to the determination of the individual sentences, total effective sentence and non-parole period. However, they are especially relevant to the fixing of the non-parole period, particularly given the finding I have made about your prospects of rehabilitation.
Relationship between the two charges
176You fall to be sentenced for two charges.
177Charge 1 is directly concerned with punishing your conduct in causing Mr Patterson to remain in a condition of forced labour at Candoo. It is directly founded upon the threats made by you to Mr Patterson. Elementally, it required proof that you were involved in the making of the threats which were causative of the condition of force labour and that you did so with the accompanying fault element. Elementally, it is not concerned — directly anyway — with your interest in the business of Candoo, your financial motive and the benefit you received through that forced labour.
178Charge 2, on the other hand, is directly concerned with punishing you for conducting the business trading as Candoo while it involved the use of forced labour (with the relevant accompanying fault element). The offence is not focused upon punishing the conduct which caused the forced labour but rather it is focused upon punishing the running of a business which employed forced labour. It is effectively directed at persons profiting from the use of forced labour, irrespective of whether they were involved in causing or procuring that forced labour.
179It may be accepted there are elemental or legal differences between the two offences and that they cover different though overlapping fields.
180Depending upon the facts and the manner in which the prosecution puts its case, these differences might be significant.
181In this case, because of the way in which the prosecution put its case to the jury, in my view it is difficult to identify any conduct covered by Charge 2 which will not otherwise be taken into account in some way under the sentence to be imposed on Charge 1 and vice versa.
182I say that for two reasons.
183First, both charges rested upon proof that you made the threats. Under Charge 1, your making of the threats was elemental; while not elemental under Charge 2, the manner in which the prosecution presented its case meant that your making of the threats was evidentially foundational. If the jury entertained a reasonable doubt about whether you made the threats, they really had to acquit on both charges. Your making of the threats was indispensable to proof of both charges.
184Second, under both charges your commercially driven motive is significant.
185It is elementally inherent in charge 2. Charge 2 required that it be proved that you controlled the business Candoo.
186While not elemental under Charge 1, it is evidentially significant. When punishing you for your role in Charge 1, it is inevitable that I must take into account that your motivation was that you would benefit from Mr Patterson’s forced labour at your business, and that you did so financially benefit. It follows that the commercial, profit driven nature of the offending informs the context to Charge 1 as well as my assessment of your motive and moral culpability. Further, in my sentence imposed on Charge 1, I would inevitably take into account that you knew that Mr Patterson was in a condition of forced labour when he was working at Candoo.
187Technically, I could refrain from taking into account your commercial motive under Charge 1, and punish this only under Charge 2. To approach it in this way would be pretty artificial.
188So, while the focus of the two offences is different, when analysed in the above way it becomes clear that all or almost all of the conduct pleaded or relied upon in Charge 2 would essentially be taken into account in some way under any sentence imposed on Charge 1 and vice versa.
189At the hearing of the plea, senior counsel for the prosecution seemed to accept as much. There is some real force in the submission made by your counsel that ‘any additional criminality between the charges is minimal’ and that the sentences ought to be concurrent.
190The prosecution also submitted that Charge 1 is the most serious charge, essentially because elementally it requires an offender to engage in the conduct which caused the condition of forced labour.
191I am not convinced this is correct. As a general proposition, the offence embodied by Charge 1 is not necessarily more serious than the offence embodied by Charge 2. I note that Parliament has prescribed the same maximum penalty for both offences. Their relative seriousness will depend upon the individual circumstances of the case. In your case, the overlap in the evidential foundation to each charge suggests they are of broadly equal seriousness.
192Your conduct under Charge 2 cannot be equated to that of a business owner who has merely passively benefited from the use of forced labour, caused or procured by others. The fact is you yourself caused the forced labour at the business you controlled, and you did so by the making of the threats. As I have said, this threatening conduct underpins both charges.
193Given this very significant overlap — indeed total evidential overlap — and the need to avoid double punishment, I will make directions of full concurrency.
Disposition
194I sentence you as follows.
195On Charge 1, causing a person to remain in forced labour contrary to s 270.6A(1) of the Criminal Code, I sentence you to a term of imprisonment of three years and six months. This is the base sentence. I direct that the sentence imposed on Charge 1 commence today, 30 January 2024.
196On Charge 2, conducting a business involving forced labour contrary to s 270.6A(2) of the Criminal Code, I sentence you to a term of imprisonment of three years and six months. I also direct that this commence today.
197My intention, for the reasons I earlier explained, is that the entire sentence imposed on Charge 2 be served concurrently with the sentenced imposed on Charge 1.[61] This makes for a total effective sentence of three years and six months’ imprisonment.
[61]Crimes Act 1914 (Cth) s 19(2).
198I fix a non-parole period of 18 months. This is the minimum period which you must serve before you become eligible to apply for parole. It will then be a matter for the Parole Board as to when you are released.
199Finally, I make a reparation order, pursuant to s 21B(1) of the Crimes Act 1914 (Cth), in the terms proposed by the prosecution and consented to by you. More particularly, I order that the sum of $42,989.82 be paid to Mr Patterson, which represents unpaid wages at an agreed rate. I am satisfied that this sum represents a loss suffered by Mr Patterson by reason of the offending.[62]
[62]Crimes Act 1914 (Cth) s 21B(1)((d).
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