Director of Public Prosecutions v Ho and Leech (Sentence)
[2009] VSC 495
•4 November 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1485 of 2006
| DIRECTOR OF PUBLIC PROSECTIONS (COMMONWEALTH) | |
| v | |
| KAM TIN HO and SARISA LEECH | First Accused Second Accused |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 – 9 October, 12 – 15 October, 22 October 2009 | |
DATE OF SENTENCE: | 4 November 2009 | |
CASE MAY BE CITED AS: | DPP v Ho & Leech (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 495 | Revised 13 November 2009 |
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CRIMINAL LAW – Sentence – Slavery – Intentionally possessing a slave – Intentionally using a slave – Thai woman recruited to work in Australia as a prostitute – Debt to be paid by the provision of sexual services - s.270.3(1)(a) of the Criminal Code 1995 (Cth) – Delay – Totality – Subsequent lack of offending.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr DD Gurvich | Commonwealth Director of Public Prosecutions |
| For the First Accused | Mr JP Dickinson SC | Theo Magazis & Assoc. |
| For the Second Accused | Mr B Wilkinson | Balmer & Assoc. |
HIS HONOUR:
Kam Tin Ho and Sarisa Leech, you have both been found guilty by a jury of slavery offences under the Commonwealth Criminal Code (“the Code”) in relation to one woman, whom I shall refer to as KW. The jury’s verdicts were delivered on 15 October 2009. Both of you were found guilty of the offence of intentionally using a slave, contrary to s 270.3(1)(a) of the Code. You, Sarisa Leech, were also found guilty of intentionally possessing a slave, contrary to the same section of the Code.
The maximum penalty for both offences is 25 years’ imprisonment and I am aware of the significance of that maximum. The offences for which you have been found guilty concerned the intentional possession in your case Sarisa Leech, and the intentional use in both your cases of KW, a young Thai woman who worked as a prostitute in two brothels in Melbourne.
The Circumstances of the Offence
KW was born and educated in Thailand, but only to primary school level. At the age of 14 years she began work as a prostitute in Bangkok. She worked in that capacity in other places, including Malaysia.
In 2003 when she was 30 years of age, she became aware of the prospect of coming to Australia to work here as a prostitute where the potential financial benefits of doing so were better than in Thailand. After a time she met you, Sarisa Leech, in Bangkok. KW then came to Australia, her fare having been paid by others. She knew her ticket and accommodation in Australia had been arranged for her and a visa. KW came to Australia on a “short stay” visa on the false basis that she would be attending a ”team building seminar”. There were false documents attached to the visa application which certified as to that intention.
KW was also informed that these arrangements created a debt owing by her which she would have to work to pay off. That payment was to be made by her providing sexual services to 650 men in particular Melbourne brothels.
In relation to the verdict of guilty of intentionally possessing a slave in relation to you, Sarisa Leech, you told KW that she would be going to stay at a place in Australia where she would have to wait. On arrival in Melbourne, she passed through Customs and was later taken to an apartment in Nicholson Street, Fitzroy, where she was to live. She stayed there with a girl known as “Lisa”. In the early stages she did not have a key to the apartment and from time to time a man known as Ben brought food.
Some time later you also lived in the apartment with KW and Lisa. At one stage also you, Kam Tin Ho, visited the apartment with another woman and KW’s description of that visit was that it was as though “..they came to look at me, [to determine] whether I was good looking enough or not.”
KW lived in the apartment for three months or so before she started working in the brothel she was to go to. When you, Sarisa Leech, were there, KW asked your permission each time she went out of the apartment. However, during that time the relationship between you and KW was apparently friendly. At KW’s request you apparently assisted her with the English language and showed her how to use public transport.
Part of the plan for KW involved obtaining a protection visa thus extending her stay in Australia and enabling her to work. For that purpose, you, Sarisa Leech, attended the offices of a migration agent, Ba Phuc Tran with KW and informed her that you were taking her there for the purpose of obtaining such a visa. You took her to the office of Ba Phuc Tran while the documents that were required were completed. She said she went that office on several occasions. You, Sarisa Leech, were there each time and you, Kam Tin Ho, were there once. KW was required to learn a false story about why she was seeking the protection visa. In essence, the story was that she had converted from Buddhism to Mormonism in Thailand and she was afraid that she would be persecuted if she went back to Thailand. She said that you, Sarisa Leech, were one of several people who told her many times to memorise that story. Without any real assistance from KW except to sign documents containing untrue claims, KW’s application for the protection visa passed through several legal stages, the purpose of which was to create delay while she worked in Melbourne. The original application was signed by KW on 23 July 2003. In or about September 2003, she was advised that the application had been rejected and at the end of September 2003 it was arranged that she would apply for a review of that refusal before the Refugee Review Tribunal. During these periods of delay which apparently included an appeal to the Federal Court of Australia, KW was issued with a bridging visa and that enabled her to work in Australia.
KW began work at a brothel at 59 York Street, South Melbourne, and that is likely to have been on 10 September 2003. As to the count of intentionally using a slave in relation to both of you, she was told by you, Sarisa Leech, that she would be starting work and she went there with you on the first day. She was given the name “Cindy” by you, Kam Tin Ho and you were there on the day she commenced. She was given certain information, according to her evidence, as to who the owners of the brothel at 59 York Street were, but I am not prepared to conclude that issue adversely to either accused for the purpose of imposing sentence.
KW did say that she was told by you, Sarisa Leech, that Kam Tin Ho and a man called Ben would supervise her. The arrangement in the brothel was that clients paid $125 for half an hour of sexual services and that money was placed into a locked box by the employees including KW. She was told by you, Sarisa Leech, that $50 of the $125 would be deducted from the debt that she owed. She also gave evidence that her passport was in that box and that she was instructed by at least you, Sarisa Leech, to put the passport in the box. She said that whilst she was paying off the debt, she never took her passport home, although she said she wanted to have her passport with her.
KW said that it took her three or four months to pay off the debt that she owed, and she kept her own record of the clients that she serviced. She described the fact that on a free day in the week and after she had paid off the debt, she was entitled to earn $50 of $125 herself from each customer.
In relation to the verdict of guilty that the jury reached in relation to you, Kam Tin Ho, on the count of intentionally using a slave, your activities did involve speaking to KW about complaints that clients had about the service she provided. You told her that she needed to service the clients “quite nicely”. The recorded telephone calls between you and KW also include one conversation about when and where she was to work. After the debt was paid she asked whether she could stop working and you told her she could not because there were no girls at the shop. Your conversations with Sarisa Leech and others about KW also demonstrate that you had a significant interest in the work she did and way in which she did it. You also went to the Nicholson Street flat to give KW money.
The hours that KW worked in the brothel were told to her by you, Sarisa Leech. KW gave evidence which was not challenged that she worked from 11.00am to 2.00am and would see as many as 16 customers during that time. She said that when she was working at Shop 59, the premises were locked and when she was working, she could not leave.
As I have earlier said after she had paid her debt, she asked both of you whether she could work for a lesser period of time, but was told that she had to keep working because there were no girls at the shop and she therefore did so. According to her evidence, even when ill, KW continued to work in the brothel.
Once KW’s debt was “paid”, KW appeared to have more freedom to leave the apartment, and described going to the city, particularly while you, Sarisa Leech were in Thailand. After she paid the debt she had a key to the apartment. When you, Sarisa Leech, were in Thailand you rang KW and told her that if she did not work she would be sent back to Thailand. During the time that KW worked, she sent money back to Thailand in a total sum of about $25,000 and also purchased for herself a Rolex watch valued at $6,000, together with a gold bracelet valued at about $500.
You, Sarisa Leech, had considered establishing a brothel in Sydney, and KW went with you to Sydney with a view to working there. However, the number of customers was inadequate and she returned to Melbourne.
Apart from the evidence of KW, there was also evidence before the jury of telephone intercepts which included conversations both between yourselves and with KW. The conversation of 30 June 2004 between the two of you seemed clearly to be discussing arrangements as to where KW should work. The conversation on 13 July 2004 was between you, Kam Tin Ho, and KW about arrangements being made for her to work not at 59 York Street, but at the other brothel known as 43. In a conversation on 21 August 2004, you, Kam Tin Ho, again gave directions to KW about when she was to work. On 22 August 2004, you discussed with each other the arrangements for KW to go to Sydney in relation to her visa. A similar conversation occurred twice later the same day. You, Kam Tin Ho, then rang KW and arranged for her to go to the airport to go to Sydney the following morning.
On 8 September 2004, you discussed with each other the money that was to be paid to KW and you, Sarisa Leech, indicated that you had given her $60 that week for one job and that you had promised that much would continue if she stayed past one year. You, Kam Tin Ho, seemed to accept that arrangement, indeed, in a conversation with Lo Den, another man somehow connected to the scheme, you seemed to indicate that there was really not much choice.
On 20 September 2004, you discussed with each other arrangements for KW to pay the various bills from the apartment and the fact that KW had become scared of what would occur if police become involved and asked her questions.
Later that day, you, Kam Tin Ho, spoke with KW to establish what it was she was frightened of and to give her instructions as to how to deal with any questions which she might be asked. That process was repeated when you, Kam Tin Ho, called her again suggesting that if there were problems, she could complain, although you did not indicate to whom she should complain. Later that day, the two of you spoke with each other about the problem of KW being scared and the need for there to be a further conversation with her about that.
The remaining conversations involving you, Kam Tin Ho, concerned making arrangements so that KW could be disconnected from the arrangements and cease working.
Background - Kam Tin Ho
I am told that you, Kam Tin Ho, are from a family that came from Hong Kong, having left that area when Hong Kong reverted to Chinese sovereignty. You came to Australia with your parents and your siblings. Your older brother is now on a disability pension and your sister is a single parent. Your other brother, Ho Kam Ho, is serving a sentence of imprisonment pursuant to the sentence imposed by Cummins J on 29 September 2009.
Your education was sparse and was effectively what you had when you left Hong Kong. In Australia, you went to school, but gained no benefit and achieved no qualifications. You worked from time to time and moved later towards the brothel industry.
Not long after you arrived in Australia, your parents separated and you were, at the time, 18 years of age. For a short time you were married and then separated, but the marriage produced a daughter, who was born in July 2001. I am told you have the care of that child, who is now being looked after by your mother and your grandmother.
Both of those people are being treated by medical practitioners for a variety of medical conditions. Mr Ho’s grandmother is in her late 90s and clearly in bad health.
Kam Tin Ho - Prior convictions
Kam Tin Ho, you have a number of prior convictions, but the only ones of any relevance are those of 28 April 1994 in respect of which you were convicted of a very large number of counts of obtaining property by deception and obtaining a financial advantage by deception. Despite the large number of charges, the sentence imposed on you was a community based order. It seems to me that these prior convictions are of almost no relevance in imposing sentence on you in this matter, except that it cannot be said on your behalf, and it was not, that you are a person of good character without any previous convictions.
Background - Sarisa Leech
You, Sarisa Leech, are 37 years of age, having been born in February 1972. You are from Thailand, your father having been a soldier in the Thai Army. He was involved in conflict and died of malaria whilst fighting. You are one of three children. As a result of the pension payable to your mother, you received government-funded schooling in Thailand to the stage of Year 11. You then obtained work as a waitress in a restaurant and, in or around 1991, obtained employment in what your counsel described as a “high class cocktail lounge”, which seemed to lead you into a life of prostitution.
You came to Australia in 1997, yourself under a contract of similar kind that KW was under, being required to service some 650 men. After the period of your contract expired, you attempted to establish a business in Sydney, but that failed.
In 1998, you married an Australian and for three years lived with your husband in Sydney, but the marriage failed and you moved to Melbourne to work.
You were arrested and charged with a number of matters on 12 September 2006 and again released on bail after your committal proceeding on 21 May 2007. You have no prior convictions.
Delay
You are both affected by a significant delay in this matter. You, Mr Ho, were arrested in relation to a number of matters on 2 December 2004. You, Sarisa Leech, were arrested on 12 September 2006. It is accepted by the Crown that the delay occurred through no fault of your own, but because of the matter of Wei Tang[1] proceeding through this Court and to the High Court. The relevance of delay in sentencing is concerned with the effect that the delay has on each of you. The law indicates that delay constitutes “a powerful mitigating factor” and focuses attention on issues of rehabilitation and fairness.[2] Further it is no less so when a person to be dealt with has been at large and ordered his or her affairs. The concern over an extended period about the ultimate disposition remains an anxiety for a person in your position. In my view the delay is significant. In the case of each of you, there has been no subsequent offending.
[1] See R v Wei Tang [2007] VSCA 134; R vTang [2008] HCA 39
[2]See R v Merrett, Piggott and Ferrari [2007] 14 VR 392 at p 400 per Maxwell P.
Mr Dickinson referred to the delay and rightly submitted that it is almost a period of five years in which there has been no further offending, suggesting both that rehabilitation had advanced and that, of course, as a matter of fairness, you, Kam Tin Ho, have had the matter, as he put it, “hanging over your head” for that period of time.
Likewise in your case, Sarisa Leech. Although the period of delay is shorter, it is nonetheless three years, a period referred to in a case to which I was referred of R v Tiburcy.[3] In your case also there has been no subsequent offending. You have continued to work in what is referred to these days as the “sex industry” but you have done so lawfully and I believe that the prospects of you reverting to committing these kinds of offences are very low.
[3][2006] VSCA 244.
Sentencing Considerations
The maximum penalty for both the offences is 25 years’ imprisonment. It was submitted on behalf of the Crown that the paramount consideration is general deterrence. I will accord appropriate significance to general deterrence. Doing so does not preclude giving appropriate weight to the very lengthy delay in this case and the fact of no re-offending during that period[4]
[4]See R v Tiburcy [2006] VSCA 244 at para [28].
There could be no doubt that this arrangement under which KW performed the services that she did was highly exploitative. KW was in Melbourne and unable to speak English. She had no money and was entirely dependent. The so-called “debt” seems particularly exploitative. There was strict control over significant aspects of KW’s daily life and particularly onerous for her in a foreign country, unable to speak the language, was that she was not permitted to keep possession of her passport. You, Sarisa Leech, did give back KW’s passport at her request some time later. In the early stages, she was not permitted to have a key to the premises and was supervised in almost every aspect of her daily life. She was required to participate in transparently dishonest schemes to both enter the country and then apply for visas based an entirely false fear of persecution. That aspect was designed to achieve delay so that she could work for as long as possible.
Such offences have been recently described as offences against humanity.[5] The prosecutor, Mr Gurvich, submitted that the paramount sentencing consideration is general deterrence.
[5]Per Cummins J, DPP v Kam Tin Ho and Ho Kam Ho [2009] VSC 437, [40].
It was submitted that you, Kam Tin Ho, did not, on the evidence, have a disclosed financial interest in the work that KW did in the brothel or anyone else’s work. On the other hand, Mr Gurvich submitted that I should infer that you had a financial interest in the work that KW did and that such an inference is irresistible, given that you gave directions about where she was to work, what hours she was to work and the amount she was to be paid for such work. I am satisfied that you had a financial interest in the work that KW did, although I am not able to say what the extent of that interest was. It would be absurd for me not to conclude that you had such an interest, for the directions you were giving and the interest you took in the work that she did compels the conclusion that it was something in which you stood to benefit financially.
As your counsel conceded, what you did Kam Tin Ho, you did with the knowledge that KW was in a condition of slavery. On the evidence, I make no finding, and indeed would not be able to make finding as to the role you played in the two brothels in which KW worked. Clearly, you had some role, but the evidence does not enable me to conclude what it was.
Your counsel submitted that your role in relation to the count of which you were found guilty by the jury of the intentional using of KW, she being in a condition of slavery, should be categorised as being at the bottom end of the scale of offending. He made that submission contrasting this case with the case that was before Cummins J. Mr Gurvich, in response, submitted that the sentence that I impose should be somewhere in the “same order” as the sentences imposed by Cummins J.
As to you, Sarisa Leech, I infer that you gained a financial benefit from the activities you performed which are at the basis of the counts of which the jury found you guilty. Your activities in relation to KW involved arrangements in both Thailand and Australia. You were involved in the arrangements for her to come to Australia, the travel arrangements, the obtaining of a visa, the various subsequent applications for a protection visa and you supervised her quite closely. As I have described you were directly involved in the arrangements under which she worked in the two brothels.
On your plea, your counsel Mr Wilkinson called two witnesses, Ms Josie Cameron and Ms Danielle Ellis, to give evidence of your character. Both women worked with you until recently in a brothel in Melbourne, Ms Cameron as a manager and Ms Ellis as a colleague. Ms Cameron gave evidence that you are “very loyal, very generous, very helpful at work with especially the younger girls, very supportive”. Evidence was given that you would often buy and cook food for your co-workers and were often called in to resolve disputes with customers.
Totality - Kam Tin Ho
Mr Dickinson, on your behalf Mr Ho, has quite properly raised the sentencing principle of totality in relation to the sentence now to be imposed on you. In this case you have been sentenced by Cummins J for the majority of your offending being the ten counts of which you were found guilty by a jury on 27 June 2009. Those counts included five counts of intentionally possessing a slave, one count of intentionally using a slave and four counts being breaches of the Financial Transaction Reports Act (1988) (Commonwealth). His Honour imposed a total effective sentence on you of fourteen years and fixed eleven years as the minimum term to be served before you would be eligible to apply for release on parole.
As a result of the involvement of Sarisa Leech in this matter only, and to avoid the need for KW to give her evidence twice, you stood trial separately for this matter. In such circumstances, I am required to consider what would be likely to have been the effective head sentence imposed if you had been sentenced for all the offences at once.[6] I am required to “stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose”.[7] The question is, what total sentence is “just and appropriate”.[8]
[6]See Mill v R (1988) 166 CLR 59 at p 66.
[7]Per King CJ in R v Creed (1985) 37 SASR 566 at 568.
[8]Postiglione v R (1987) 189 CLR 295 at 341.
Kam Tin Ho - Sentence to be imposed
Cummins J made a number of findings of fact which distinguish the case he was dealing with against you. For example, his Honour found that you were the Melbourne principal for a sophisticated, well-planned and well-executed scheme. It is not open to me to make similar findings in this case because there is no evidence for me to do so. I am dealing with you solely in relation to KW and only on the count for which you have been found guilty being intentionally using a slave. It seems to me therefore that a sentence of the same proportion as Cummins J imposed would not be appropriate. In addition, as I have already said the delay of almost five years coupled with your subsequent lack of offending is significant
It was submitted on your behalf that, particularly taking into account the principle of totality, the sentence which was imposed on you by Cummins J of a total effective sentence of fourteen years with a minimum term of eleven years adequately reflects all of your offending, and it was submitted that I should not add to that sentence. In particular, it was submitted that the sentence that Cummins J imposed of nine years’ imprisonment was “nowhere near” the appropriate sentence for this case. The Crown, on the other hand, submitted that I should impose a sentence which adds to both the total effective sentence and the non parole period.
Kam Tin Ho, on the count of intentionally using a slave contrary to s 270.3(1)(a) of the Commonwealth Criminal Code, I sentence you to six years’ imprisonment and I direct that six months of that sentence be served cumulatively upon the sentences imposed by Cummins J on 29 September 2009. I am required to identify the date on which the sentence I impose on you is to commence and I declare that that date is 29 March 2018. The effect of that will be that the head sentence, the total effective sentence on you will be fourteen years and six months’ imprisonment.
Pursuant to s.19AD of the Commonwealth Crimes Act, I confirm the existing non-parole period of eleven years as imposed by Cummins J on 29 September 2009. I confirm that the non-parole period of eleven years commences on the same day as Cummins J’s fixing of a non-parole period, that is 29 September 2009. That non-parole period means that you must serve eleven years before you may be eligible for parole. If you are granted parole, that means that you must complete a period of service in the community, that is called the parole period, to complete the service of your sentence. If you are paroled you will be subject to conditions and the Parole Order may be amended or revoked if you do not fulfil its conditions. This explanation is given to you pursuant to s.16F of the Crimes Act 1914 (Commonwealth).
On 29 September 2009 Cummins J declared pre-sentence detention in your case of 107 days. In view of the way in which the sentences have been imposed on you I am not required to declare any further pre-sentence detention. The period declared by His Honour is confirmed as the pre-sentence detention.
Sarisa Leech - sentence to be imposed
Mr Wilkinson, on your behalf, referred to the overlap between the count of intentionally possessing a slave and intentionally using a slave. I have differentiated between the two counts of intentionally possessing a slave and intentionally using a slave by referring to the facts which it seemed to me supported the count of possession on the one hand and use on the other. I directed the jury accordingly. There will, therefore, be a degree of cumulation between the sentences on the two counts of which the jury found you guilty.
During the plea on your behalf, Mr Gurvich for the Crown submitted that the appropriate sentence to be imposed on you Ms Leech, was a term of imprisonment in the order of nine to fifteen years with a non-parole period of seven to eleven years. In response, your counsel Mr Wilkinson, submitted that the minimum period of imprisonment ought be no longer than twelve months.
Sarisa Leech, taking into account all the matters that have been put on your behalf, the appropriate sentence to be imposed on Count 1, the count of intentionally possessing a slave contrary to s 270.3(1)(a) of the Criminal Code is five years imprisonment. On Count 2, the count of intentionally using a slave contrary to s 270.3(1)(a) of the Criminal Code, the sentence is also five years imprisonment. I order that one year of the sentence on Count 2 be served cumulatively on the sentence on Count 1, making a total effective sentence of six years.
In relation to Count 1 I declare that the sentence is to commence on 4 November 2009. As to Count 2, your sentence in relation to that count will commence on 4 November 2010.
I fix a period of three years and six months’ imprisonment before you are eligible to apply for release on parole. That means that you must serve the period of three years and six months’ imprisonment before you may be eligible for parole. If you are granted parole, that means that you must complete a period of service in the community, called the parole period, in order to complete service of the sentence. If you are paroled you will be subject to conditions and the Parole Order may be amended or revoked if you do not comply with those conditions. This explanation is also given pursuant to s.16F of the Crimes Act 1914 (Commonwealth).
I declare the pre-sentence detention in relation to you Ms Leech is 21 days and direct that that declaration be recorded in the records of the Court.
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