R v DS - [2005] VSCA 99

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8 of 2005

THE QUEEN

D.S.

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JUDGES:	BATT, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 April 2005
DATE OF JUDGMENT:	12 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 99	First Revision: 3 May 2005

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Criminal Law - Sentencing - Slavery - Possessing a slave; engaging in slave trading contrary to Criminal Code Act 1995 (Cth) - Maximum penalty 25 years' imprisonment - Overseas women brought to Australia to work as prostitutes - Victims denied freedom of movement, compelled to work as prostitutes - No coercion, deceit or violence perpetrated against victims - Confiscation of victims' passports and return air ticket - Appellant facilitated scheme, received share of victims' notional earnings - Appellant's co-operation, valuable assistance to authorities after apprehension - Significant sentencing discount entitlement - Total effective sentence of nine years' imprisonment with non-parole period of three years manifestly excessive - Appellant re-sentenced to six years' imprisonment with non-parole period of 2½ years - Non-parole period not required by Crimes Act 1914 (Cth) to commence prior to expiration of each federal sentence imposed on appellant - Criminal Code Act 1995 (Cth), s.270(3), Crimes Act 1914 (Cth), ss.16(1), 19(2).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.J.C. Silbert	Commonwealth Director of Public Prosecutions
For the Appellant	Mr O.P. Holdenson, Q.C.	VLA

BATT, J.A.:

I will ask Chernov, J.A. to deliver the first judgment.

CHERNOV, J.A.:

The appellant, DS, who is a citizen of Thailand and now aged 38 years, pleaded guilty in the County Court at Melbourne on 22 December 2004 to three counts (counts 1, 3 and 4) of possessing a slave contrary to s.270.3(1)(a) of the Criminal Code Act 1995 (Cth) ("the Code") and two counts of engaging in slave trading contrary to s.270.3(1)(b) of the Code (counts 2 and 5). Each offence carries a maximum penalty of 25 years' imprisonment. On 24 January 2005, after hearing a plea for leniency made on the appellant's behalf, the learned sentencing judge sentenced her to a total effective sentence of nine years' imprisonment and, pursuant to s.19AB(1) of the Crimes Act 1914 (Cth) ("the Act"), fixed a single non-parole period in respect of that sentence of three years. More specifically, on counts 1 and 2, his Honour imposed sentences of seven years' and five years' imprisonment respectively. On each of counts 3, 4 and 5, his Honour sentenced the appellant to six years and six months' imprisonment. The learned sentencing judge set out the manner in which he arrived at the desired total effective sentence both in terms of cumulation orders, as made under the Sentencing Act 1991 (Vic), and in the terms required by s.19(2) of the Act. More particularly, his Honour ordered that six months of each of the sentences, other than that imposed on count 1, be served cumulatively on the sentence imposed on count 1 and on each other, thus making a total effective sentence of nine years' imprisonment. His Honour…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v DS

Details

AGLC: R v DS [2005] VSCA 99
Case: [2005] VSCA 99
Decision Date: 12 April 2005

CaseChat Overview and Summary

In the case of R v DS, the appellant was convicted for engaging in slave trading and possessing a slave, contrary to the Criminal Code Act 1995 (Cth). The dispute centred around the appellant's role in a scheme to bring overseas women to Australia under the guise of legitimate employment, who were then forced into prostitution. The appellant denied any coercion, deceit, or violence was used against the victims but admitted to receiving a share of their earnings and facilitating the scheme. The appeal was heard by the High Court of Australia.

The legal issues before the court involved determining the appropriate sentence for the appellant, considering the maximum penalty of 25 years' imprisonment under the Criminal Code Act 1995 (Cth). The court was required to weigh the gravity of the offence, the appellant's cooperation with authorities, and the totality of the circumstances. The court also needed to determine the applicability of the non-parole period in accordance with the Crimes Act 1914 (Cth).

The High Court found that the total effective sentence of nine years, with a non-parole period of three years, was manifestly excessive. The court acknowledged the appellant's cooperation and valuable assistance to authorities post-apprehension, which entitled him to a significant sentencing discount. The court re-sentenced the appellant to six years' imprisonment with a non-parole period of 2½ years. Additionally, the court clarified that the non-parole period did not need to commence prior to the expiration of each federal sentence imposed on the appellant, as per the provisions of the Criminal Code Act 1995 (Cth) and Crimes Act 1914 (Cth).

The final orders of the court were that the appellant's sentence was reduced to six years' imprisonment, with a non-parole period of 2½ years, and the non-parole period did not need to commence prior to the expiration of each federal sentence imposed on the appellant. The court's decision provided clarity on sentencing for slavery-related offences and the applicability of non-parole periods in such cases.

Orders