R v Foad Ali SOLAIMAN

[2008] NSWDC 53

CITATION:	R v Foad Ali SOLAIMAN [2008] NSWDC 53
HEARING DATE(S):	08/02/08; 15/02/08; 20/03/08
JUDGMENT DATE:	20 March 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	I formally convict you in relation to the offence of procuring for prostitution by threat. You are sentenced to a total term of three years imprisonment backdated to commence on 4 December 2007 and to expire on 3 December 2010 with a non parole period of two years imprisonment to expire on 3 December 2009. It will be a term of your parole that you be of good behaviour and that you comply with such directions and attend such programs to which you may be directed by the Probation and Parole Service, including any monitoring of your domestic situation and any assessment of the depression you are said to be suffering as well as such psychotherapy as may be recommended on the basis of the matters set out in the reports of Dr Roberts and the report to which he refers of Dr Younan.
CATCHWORDS:	procure by threat for the purpose of prostitution - victim fearful of the offender - victim is offender's wife - victim impact statement - breach of trust - victim was a vulnerable person - limited degree of planning - no record of previous conditions - person of good character - low risk of recidivism - hardship to dependents - mid-range of criminality - general deterrence - special circumstances
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v MAK [2005] NSWCCA 369 R v Edwards (1996) 90 A CrimR 510 R v Sarca (NSWCCA 11 May 1993 unreported) T (1989) 47 A CrimR 29 Burrell [2000] NSWCCA 207 Wirth (1976) 14 SASR 291 R v X [2004] NSWCCA 93 R v Girard [2004] NSWCCA 170 R v Wei Tang [2007] VSCA 134 R v Broadfoot [1976] 3All ER 753 R v Brown [1984] 1WLR 1211 R v Morris Lowe [1985] 1 WLR 29 R v Gosling [2005] EWCA Crim 3300 R v Oliver, Hartrey and Baldwin [2003] 1 Cr App R 28
PARTIES:	Regina Foad Ali SOLAIMAN
FILE NUMBER(S):	06/11/1035
COUNSEL:	Crown: Mr B Rowe Defence: Mr J Fliece
SOLICITORS:	Crown: Ms A Collins Defence: Ms C Lee

- 29 -

JUDGMENT

1 A non-publication order has been made in relation to the name of the victim and the name of her husband as those names would tend to identify the victim. They will be referred to respectively in these remarks as SI being the victim and PS being the victim’s present husband.

2 On 4 December 2007 the offender was convicted following a trial before a jury on the following count, that between 14 August 2000 and about 30 September 2000 at Banksia in the State of New South Wales did by threat, procure SI for the purposes of prostitution.

3 Pursuant to s 91B of the Crimes Act the maximum penalty for this offence is ten years imprisonment.

4 The offender was acquitted on a further count which was that between about 22 March 2002 and about 30 July 2002 at Banksia in the State of New South Wales he did cause SI to remain in sexual servitude and that he intended to cause or was reckless as to causing that sexual servitude.

Background

5 The offender came to Australia in 1997 from Egypt. He was permitted entry into Australia apparently under a refuge visa based on his Christian/Baptist background. He became an Australian citizen in 1999. Notwithstanding his refugee status he returned to Egypt in 2000 and married the victim in a pre-arranged marriage according to Islamic law in February 2000. The offender returned to Australia in March 2000. The offender and the victim did not know each other prior to the marriage.

Victim

6 The victim SI was born on 13 January 1980 and was at the time of the relevant matters aged twenty. Miss SI’s evidence, which I accept, was that she was brought up in a conservative family in Egypt. Her father operated a clothing store where she assisted him from time to time. Miss SI had apparently just finished school, including to approximately technical school level when she was married. She had never travelled outside of Egypt before travelling to Australia.

Arrival in Australia

7 Miss SI arrived in Australia on 29 July 2000. She did not speak or read English and had no family, friends or other contacts in Australia. She knew no-one else in Sydney. Miss SI’s evidence was that as far as she understood her situation and the basis under which she operated was that under Islamic law and Egyptian mores a wife had to do what she was told by her husband.

8 On Miss SI’s arrival in Australia, the offender said to her that she had to work to pay back her visa and that it was also important that she worked so that they could buy a house or unit. The evidence was that shortly after her arrival in Australia the offender took her to the Centrelink offices in Sydney. He opened a bank account for her when she arrived. Initially a joint account was established, then he separated the account into two further accounts. Miss SI apparently did not have an access card to operate those accounts.

9 After a further short period of time in Australia - it would seem about two weeks - the victim said that the offender took her to premises at the Hideaway Brothel on the Princes Highway at Banksia. That had followed some earlier actions when he had walked her around an area where they were living and he had pointed out prostitutes to her, saying that “They earn in one day what I earn in one week.” The victim responded to that suggestion by asking him if the police arrested the girls as they did in Egypt, to which he said “no”. There was a further discussion, given the reaction of the victim, when he suggested to her that she should do massage. Again she demurred from that suggestion.

Prior knowledge

10 The offender had been a prior client of the brothel at the Hideaway premises in Banksia. He had contacted the receptionist or management at the brothel prior to him taking the victim to the brothel to arrange to bring someone to work there. Credit card payments were made by the offender to the holding company for the brothel’s then owner, establishing his prior usage and familiarity with the brothel. It was also clear from the evidence of the staff at the brothel that they knew him in his capacity as a prior client.

11 Miss SI’s evidence was that she did not know what she was going to the premises for, either in what capacity she would be there or what services she would be performing. Based on what the offender had said to her, she initially thought that she would be carrying out massage only.

Introduction to brothel

12 At the brothel, the offender introduced her to some people and identified them by their given names. The staff and other workers in turn instructed her in what she was to do with clients of the brothel. That included fairly graphic descriptions of what she was to do in a sexual context.

13 Miss SI commenced working at the brothel on 14 August 2000, that is about two weeks after her arrival in Australia. It seems that she worked thereafter as a prostitute for a period of just under two years. Given the findings of the jury and the acquittal on count three, I do not take into account in these sentencing proceedings matters relating to the period after the period specified under count one on the indictment, namely after 30 September 2000 save to the extent that I will specify hereafter.

Jury’s verdict

14 It would seem that the jury had evidence before them in relation to the third count on which they were not satisfied that the element of servitude had been made out at least. Having said that I simply provide as a context to the other evidence in these proceedings, including the matters set out in the victim impact statement by way of additional background.

Background : Parties’ return to Egypt : Termination of relationship

15 The parties went overseas on 31 July 2002, that is some eighteen months or more after the end of the period the subject of count one. They went firstly to Malaysia and then on to Egypt. It would seem that the victim thought she was going on a holiday to Malaysia. However, her relative naivete and lack of local knowledge was indicated by the fact that she did not know where Malaysia was and, in particular, whether it was part of Australia. She discovered, when the trip was broken in Kuala Lumpur that she was going on to Egypt. The offender then told her during the trip that he was proposing to separate from her and that she would be left without any monies.

16 In the course of his record of interview conducted on 15 April 2006 the offender said that he had no idea that his wife was going to be on the same plane as he was. The Crown case and I think the evidence in this respect was overwhelmingly credible, to the effect that the offender bought the tickets for himself and the victim. The offender by contrast in his ERISP, in his record of interview said that she must have bought them herself.

17 When the victim arrived in Egypt at the airport, the offender said that she had to find her own way home. She went then to her own family and evidence was given by her mother as to the circumstances of her surprise when the daughter turned up at the home.

Proceedings in Egypt

18 Subsequently there was a meeting between the offender, Miss SI and her family and others during which the offender said that he was “going to have her convicted for taking money from him”.

19 Apparently proceedings were taken by him subsequently, as result of which the victim was convicted in her absence. However those matters did not take a great deal of pre-eminence in the proceedings and are only by way of background for these current proceedings.

20 The Crown case at the trial and it seems to be undisputed, was that subsequently the offender divorced the victim in accordance with the principles of Islamic law, stating that he intended to or did divorce her three times. It appears that the parties then went to see a Muslim Imam known as Sheikh Hilali at the local mosque. Thereafter they reconciled, it would seem, for a period.

Withdrawal of sponsorship

21 Shortly afterwards the offender withdrew his immigration sponsorship of her. That occurred on 19 November 2001 and that is clear at question and answer 328. At that stage the victim was still in Australia and, on the Crown case, still working in the brothel.

Earnings

22 The victim’s evidence was that she did not receive, in the sense of retain, any of the monies she earnt while working at the brothel but handed them to the offender. Her estimate, and the estimate of those working at the brothel, was that she would have earnt of the order of $200,000 over the total period she was there. As I have stated, that was for a much longer period than that specified in the indictment in relation to count one. Obviously a much lesser amount would have been earnt in the period the subject of count one on the indictment for which the offender was convicted.

23 The victim gave evidence at transcript p 414 that she earnt about $3,000 or more per week at the brothel. Therefore, to the extent that it is relevant, for the period the subject of the count between 14 August 2000 to 30 September 2000 an estimate of what the victim earnt was somewhere of the order of $18,000.

24 Defence counsel submits that the amount should not be relevant as it does not relate to the act of procurement. I think there is some substance in this submission. In my view the financial objective of the act of procuring is the important matter, although to some extent the person who benefited from the act - here the offender - and the financial benefit to him needs to be taken into account. Here it is clear that the victim was procured into a position of sexual service as opposed to servitude.

25 The evidence, which I accept, was that the victim received monies and gave them either immediately or later to the offender and that he applied those monies for his own benefit either personally or sending those monies on to members of his family in Egypt.

26 The practice of the victim receiving an envelope with her earnings and giving it to him immediately on the end of a shift seems to have been generally followed thereafter. The evidence was that on the first shift when the offender took the victim to the brothel he collected her and took her earnings in an envelope. That seems to have set the scene for the practices thereafter.

27 I do not think it necessary to decide the point whether I need to take into account the extent of the earnings as being $200,000 or $18,000 or any lesser figure. It is sufficient for me, for these purposes, to find that the offender procured the victim to work in a brothel for financial reasons and that he benefited from those earnings.

Evidence at the trial

28 Evidence at the trial, that was given by the victim herself, the receptionist at the brothel, Ms Kretsis, another receptionist, Ms Lynn Capella, and Ms Bev Flowers, the then owner of the brothel. Evidence was also given from Dr Bishara, an Arab speaking general practitioner who saw the victim in the periods September-December 2000 in relation to an abortion. That was ultimately carried out on the victim by a Dr Skalicky, now deceased.

Findings

29 Consistently with the jury’s verdict, I find that the evidence given at the trial establishes the following relevant matters for these sentencing proceedings:

The victim was a young woman, who was then aged twenty, who married the offender pursuant to an arranged marriage in Egypt;

She had no or extremely limited English;

She had no family, friends or contacts in Australia at any relevant time in relation to count one of the indictment;

She had never worked in a brothel or as a sex worker and indeed had some repugnance about that vocation;

She was taken to the Hideaway Brothel within two or three weeks of her arrival in Australia;

She was taken there by her newly married husband. He was a person who, by virtue of Egyptian law or if not law, certainly the mores of her upbringing, was someone who she considered herself bound to obey;

He was a man who had lived and worked in Australia for some time and indeed was an Australian citizen at the relevant time;

He had been a client of the brothel and knew its workings at least to the extent as a client;

He had contacted the brothel staff prior to bringing the victim to the brothel; He was aware that she would be and was, directed to work as a prostitute in accordance with the directions of the other staff;

Further, that her earnings while she was there as a prostitute for the period that I have specified, were given as a matter of general practice to him by her.

Victim’s fear

30 The evidence at the trial from Ms Kretsis was that the victim seemed scared and apprehensive at the time she was working at the brothel.

31 That attitude seems to have continued. The evidence from Mr PS, her current husband albeit at a time later than count one on the indictment that she was depressed and there was something wrong with her and she was isolated.

32 There was also evidence about cuts and scratches to the victim. However, given that those minor physical injuries have arisen at a time subsequent to the events in count one I do not take that into account as a matter relevant on these sentencing proceedings. However it should be noted that the offender is a man of relatively substantial build, certainly greater than that of the victim. He is also a man twelve years older than the victim and as I say, had worked and lived in Australia for some time.

Findings as to fear

33 I accept that the victim was fearful of her husband for the following reasons. Firstly her background as an Egyptian woman of her young age and relatively limited life experience, extremely limited English and being a person with no contacts or resources in Australia. She thought she was required to do what she was directed to be her husband by both Islamic law and if that was not the case, certainly by the mores of her upbringing and culture. That fear was exacerbated by the fact that she had nowhere else to go or to live or persons to contact in the period the subject of count one. The offender had kept her passport and Medicare cards. He opened accounts in his name and their joint names, he was the person who operated them and ultimately from which monies were transferred at a later time. The victim did not have an ATM card or equivalent.

Threats

34 Importantly on the question of fear it should be noted, and I find, that there were also more important threats which had an impact on this victim, namely, the threat of deportation. That should be viewed against the background that the offender had kept the victim’s passport and had been the person who sponsored her travel to Australia and, secondly, threats of violence implicit in the comments which I find the offender made, that he knew the Mafia and had killed a person. That evidence was given in the trial by Miss SI and she was cross-examined on it at some length. I watched her while she gave that evidence and it was in my view given both truthfully and was something that she felt very deeply, even at the point, some years later, when she gave her evidence.

35 The same language or similar language was used in the victim impact statement where it is spelt out that she, the victim, felt petrified. That background of fear should also be viewed against the comment in the victim impact statement that the offender used to say to the victim “This brain of yours, consider that it does not exist.”

36 For a person in the victim’s circumstances that denigration of her and the reinforcement of that by her working in the circumstances that she did, is something which in my view would have made the fear that she felt even more acute.

Evidence disallowed: Not taken into account

37 There are matters which I should specify that I do not take into account. I will specify these matters to ensure that there is no ambiguity that they are not being taken into account. I do that by prior arrangement with counsel given the circumstances of the offender in particular, his relatively limited English, and the fact that these matters will have to be translated to him.

Coincidence notice

38 Prior to the commencement of the trial the Crown sought on the voir dire to rely on the contents of a Coincidence Notice. Those matters in essence referred to various sexual acts of the offender when he was said to have brought his second wife to the brothel, the same brothel, some years later. The offender was said to be recognised by the former receptionist to the brothel, Ms Kretsis, as being the same person who brought the victim in these proceedings to the brothel. There was further identification evidence given on the voir dire proceedings. The second wife obviously did not give evidence either on the voir dire or on the trial.

39 I ruled the material to be relied on in support of the Coincidence Notice as inadmissible on two bases: firstly, it was essentially hearsay on hearsay involving, as it did, the words “He put me there”, attributed to the second wife, being repeated by a third party and secondly, on the basis of the likely prejudicial effect of that evidence.

Sentencing

40 The allegations of the subsequent acts of the offender with the second wife were not ventilated at the trial. In these sentencing proceedings defence counsel objects to the consideration of this evidence. The Crown submits that it could be used but it would not be fair to resurrect it.

41 This has been raised in the light of the proposal to call the second wife in these sentencing proceedings to provide an evidentiary basis for the submission by the defence counsel that exceptional circumstances exist in this case. Should she have been called, the Crown indicated that he intended to cross-examine her on matters which would go directly to the matters relevant to the Coincidence Notice.

42 In those circumstances and against that background the Crown, in my view fairly, accepted that evidence could be given from the bar table without challenge. The evidence was to the effect that the second wife had with the offender, two children aged one and a half and three and a half. She was a person also of middle-eastern origin who has few friends in Australia, has no English speaking capacities of any substance and was and is totally dependent on the offender. Moreover, she and her children inferentially have suffered a decrease in their household income. I will make further reference to that evidence in my consideration of the question of exceptional hardship. However I should indicate and reinforce for the offender that I do not take the matters the subject of the Coincidence Notice into account in these sentencing proceedings.

Victim impact statement

43 The victim prepared an amended statement which became exhibit S5. That was subject to some considerable discussion prior to these proceedings today and I will incorporate parts of it into these remarks on sentence.

44 The victim said that prior to her marriage she lived a happy life in Egypt. She had a happy childhood, she looked forward to a happy future. She talked about her arranged marriage and said that the offender stayed with her in Egypt for about a month after their marriage, during which he helped to prepare the papers for her migration to Australia. He painted for her a paradise picture of Australia and that he would organise work for her and arrange for her to learn English.

45 The victim said she was nineteen when she was married to the offender and joined him five months later in Australia. He picked her up from the airport and took her to their home. Shortly afterwards, while they went for a walk, he pointed out prostitutes and other matters which I have referred to earlier.

46 She said - and this is very much confirmatory of her evidence in the trial - “I was starting to fear him more and more”. He said he was with the Mafia and had killed a person, that the Mafia had assisted him to come to Australia. She felt petrified of what she was hearing and couldn’t say anything to him. He made other comments to her that I have indicated. She said, “I felt depressed all the time, I didn’t have the guts to cry in front of him. I would go to a room where he could not see.”

Victim’s reactions to working in brothel

47 The victim recounted the events when he took her to the brothel. She had no idea of what was being said as she could speak no English. He said, “You will be working there and whatever they say to you, you do it.” He said, “This is a massage place.” She said she was shocked and scared and did not know who to talk to. He left her and went away.

“When I was by myself I felt paralysed, scared, not know what I was supposed to do. I was lost and I could not think properly. I felt suffocated. It was an enormous shock to me as a young girl looking towards married life. Here I was in a brothel. It was a black mark on my life. Even now when I go out onto the streets and see people who may have seen me in the brothel, I hope they do not recognise me. I try to hide from them and hope they do not know I was the girl who worked in the brothel.


I hated everything about myself when I had to go with a strange man. I hated myself and everything around me. I hated that when under the pressure I did do the things I did, I did not want to. Deep inside me I was scared. Throughout all this time I felt he was putting me under his thumb, pressuring me to do things I did not believe in.

I was unable to express my feelings and because of that I used to cry and cry. I felt I was lost and so tired.

I feel that my personality has been destroyed as a result of my life with him.

It is seven years down the track and he is still haunting me. I want to get him out of my life but I can't.

I feel I cry and cry and want to break down to get out of this terrible nightmare. People try to help me. People tell me to help myself but I find it more and more difficult. How can I forget the things I want to forget when they are always there haunting me? I cannot enjoy sleeping. I am always stressed out. I feel like talking but I can't. I feel I am in fear of my life being always scared.”

Those are extracts from the victim impact statement, which, as I say, are consistent with my assessment of the impact of these matters on the victim as she gave her evidence.

48 Having regard to those matters I find that the victim’s fear and psychological problems are real and continuing. They go beyond that which would normally be suffered by any person involved with an offence of this nature within the principles outlined, particularly by Hidden J in the decision of R v Youkhana [2004] NSWCCA 412.

Evidence at sentencing proceedings

49 The offender did not give evidence at the at the trial nor at the sentencing proceedings.

50 A pre-sentence report dated 7 February 2008 had been prepared by Linda McEwen of the Silverwater office of the Probation and Parole Service. That became exhibit S1.

51 There was also a psychologist’s report prepared by Mr John Taylor dated 31 January 2008 which became exhibit S7. That included his findings of low to moderate risk of recidivism for the offender. The report also contains reference to a psychiatric report of Dr Younan and the recommendation that the offender would benefit from some kind of psychotherapy. That recommendation is set out on page 8 of the report.

Family/Social factors

52 The following additional family or social factors are clear from the reports.

53 Mr Solaiman arrived in Australia as a refugee in 1997. He has been married twice. The report indicates that Mr Solaiman claimed that initially his marriage to the victim was stable. However, he later had suspicions with regard to his then wife’s activities. As I have indicated, having observed the victim giving evidence, particularly under the strenuous cross-examination which took place of her and inferentially her mother on that subject, I reject those suspicions as being without foundation.

54 The offender married for a second time in Egypt in October 2003. He returned to Australia to live. This relationship is current and the couple have two sons aged three and a half and one and a half. Prior to being placed in custody Mr Solaiman and his family resided within the Sydney metropolitan area. He reported his current marriage to be stable and further commented that he is still afforded his wife’s support. It is said that the inquiries with the second wife confirmed her support for her husband.

Education/employment

55 Mr Solaiman has had no stable employment since a back injury he suffered while working. He is in receipt of government benefits prior to being placed in custody. He said that he is hopeful of regaining employment upon his release from custody.

56 Mr Solaiman denies the offences and did not agree with the police facts. It was therefore not possible to explore his attitude to the offence or his level of remorse. It would seem that that absence of remorse is continuing.

Mental Health Issues

57 The psychological report indicates that Mr Solaiman would benefit from psychological intervention. He is said to have suffered from depression from an early age. The report states that it would benefit the offender and possibly minimise the risk of recidivism if he was referred to the appropriate mental health services in the community upon his release. I propose that that be recommended.

Subjective features of the offender

58 In addition to the matters set out above, the offender was thirty-two at the time of the offence, his date of birth being 5 December 1968.

Section 21A Crimes (Sentencing Procedure) Act 1999

59 I find the relevant factors are firstly in relation to the injury, emotional harm, loss or damage I find as I have set out earlier to be the case in the sense that I have described it at an earlier stage.

Position of trust

60 Defence counsel disputes whether the offender abused a position of trust or authority in relation to the victim, disputing, in particular, that the relationship came within the category of trust such as to warrant it being taken into account as an aggravating factor. He relies on the fact that the victim was an adult, albeit nineteen or twenty and that those relationships of trust and the abuse of authority generally relate to fiduciary relationships involving minors where there is an abuse of authority.

61 I disagree with that submission.

62 The categories of relationships of trust are not closed and generally presuppose an element or category of reliance and dependence which gives rise to the exacerbation of the criminality involved where there is a breach of that relationship. Inferentially I think the decision of R v MAK [2005] NSWCCA 369 at 103 makes it clear that such relationships can extend to domestic relationships.

63 Here, in my view, the facts that:-

the offender was the victim’s husband;
he had become her husband as a result of an arranged marriage;
when her relatively confined familial and social circle, when the mores of that circle would have been known to him;
when he was significantly older and more experienced than the victim, when he brought her and indeed sponsored her to Australia;
which was a foreign country to her;
in the circumstances which were known to him, that she knew nobody, did not speak the language;
he was aware of what she had told him as to her preferences in terms of employment;
when he took her to the brothel where he had been before as a client and knew the business and practices of the brothel;
where she was apprehensive about the criminality involved because of her limited knowledge of prostitution as a bystander in Egypt – that apprehension being not only the possibility of criminal sanctions but also police attention.

establish that the victim was in a relationship of trust with the offender and that that breach of trust should be regarded as an aggravating factor.

64 I find that the victim was, as a result of that relationship, entitled to rely on the offender as to his actions and representations of what she would be doing and likely to experience. Further, given that he had sponsored her to come to Australia and made the arrangements for her to go to work in the business as she did, that she should have been able to rely on him for her protection.

Vulnerability

65 In terms of paragraph (l) – vulnerability – the examples given in the legislation namely, because the victim was very young or very old or had a disability or because of the victim’s occupation, are not exhaustive. They indicate persons who effectively cannot call on others for help and assistance.

66 In my view the victim here was also in the position of a vulnerable person essentially for the reasons that I have outlined earlier, under the question of a breach of trust.

67 I think Mr Fliece accurately submits that there is a risk of double counting in this circumstance and there is some overlap between the two categories. Nevertheless in my view the victim was vulnerable here because she was not in a position where the person on whom she could depend (being the person whom she trusted) was also a person whom she could not call on. She became very vulnerable indeed when she was on her own in the brothel and had no-one to turn to, for the reasons I have outlined earlier.

68 Paragraph (n) - the offence was part of a planned and organised criminal activity. I find that the planning was limited in a temporal sense to the two week period after the victim’s arrival in Australia. I find that that planning was, with the background of the absence of any knowledge by the victim of the brothel and its management and its systems, such that when he took her to the brothel he had planned, at least to some extent, what was to occur. He had clearly made arrangements for her work and to be recruited into the services of the brothel.

Mitigating factors

69 In terms of the mitigating factors the offender does not have any record of convictions. He was otherwise a person of good character.

70 It is submitted on behalf of him that there are good prospects of rehabilitation and the risk of recidivism is low. The psychologist’s evidence indicates a low risk of recidivism but that needs to be looked at in terms of his feelings of alienation towards authority and the absence of any remorse.

Hardship to the dependents

71 I have outlined the evidence which is accepted from the bar table by the Crown in relation to the hardship being experienced by the offender’s second family following his incarceration. As a matter of general principle, the legal principles are that it is only in circumstances of exceptional hardship to an offender’s family that the court will take into account the hardship in mitigation an otherwise appropriate sentence. The hardship must be exceptional, see R v Edwards (1996) 90 A CrimR 510 or extreme, see R v Sarca (NSWCCA 11 May 1993 unreported) at p 5. The same approach is evident from the decisions is T (1989) 47 A CrimR 29 and Burrell [2000] NSWCCA 207 as well as Wirth (1976) 14 SASR 291.

72 However hardship caused to family members can still be taken into account as a relevant consideration in assessing the appropriate sentence provided it is not isolated and given particular weight. It can be taken into account as part of the general mix of subjective matters but family circumstances cannot be isolated, characterised as highly exceptional and used as discrete and substantial measures of leniency and added onto the offender’s entitlement. That is clear from the decisions of R v X [2004] NSWCCA 93 at [24] and R v Girard [2004] NSWCCA 170.

73 There the Crown concedes that a finding of exceptional circumstances is open in these particular circumstances. In the light of that concession, and particularly because the second wife is relatively isolated in Australia and is dependent on the husband, that she has suffered a significant decrease in household income and the circumstances of her two young boys apparently suffering from asthma, constitutes exceptional hardship and I so find. That finding will be reflected in the overall sentence to be imposed.

Authorities

74 It would seem from the research both of counsel and myself that there are few authorities of relevance and none in relation to this specific provision of the Crimes Act. The other authorities that I have been able to ascertain are from other jurisdictions and the offences have been found under legislative provisions with some differences having differing periods of imprisonment. I would simply refer to these and I will put the full citations in the final version of these reasons, R v Wei Tang [2007] VSCA 134, R v Broadfoot [1976] 3All ER 753, R v Brown [1984] 1WLR 1211, R v Morris Lowe [1985] 1 WLR 29, R v Gosling [2005] EWCA Crim 3300, the last four of which are English decisions. Interestingly in another decision of R v Oliver, Hartrey and Baldwin [2003] 1 Cr App R 28, the court there said that any element of commercial gain in offences of this nature will place an offence at the higher level of seriousness.

Assessment of criminality

75 I have considered that matter in relation to the assessment of criminality. Here it does seem to me that there was some financial involvement but I do not think what was involved was at the high end of criminality for cases of this nature for the reasons I will subsequently set out. In my view and I find that what was involved was at the mid-range level of criminality.

Statistics

76 I do not think that there are any Judicial Commission statistics available of direct relevance, given that all of those involved different elements of criminality, particularly the induction of children into circumstances of prostitution which, as I say, involves an entirely different aspect of criminality.

Consideration

77 Here the victim was twenty, she was essentially defenceless against a plan organised by and into which she was effectively tricked for the period specified, it would seem, in count one. I accept and find that it would have been a frightening and humiliating experience for a young woman who had no family, friends, support systems or familiarity in this country. The act of procuring her to work in the brothel had lasting and continuing effects on her. I specify in relation to that, that I am only considering the period on this count of the indictment.

78 I find there was planning for the offence which was indicated by the fact that the offender arranged for her to be working the brothel within a fortnight of her arrival. The offender had been an Australian citizen when he obtained the visa for her. He was aware of her cultural and social background as well as her economic dependency on him.

79 I find also that there were the threats made by the offender to the victim consistently with the jury’s verdict as I have outlined them earlier - particularly the threat that he would have had her deported against the background on the threats I have specified.

80 I accept that the offender insisted that she work in the brothel as a means of earning money for a number of purposes. However I also find that she did not have those funds for her own use but rather they seem to be for either the offender’s use or for onward transmission to his family in Egypt.

81 I should also say this in terms of my overall consideration: the photographs adduced at the trial show the interior of the brothel in various areas. It was a sordid and demeaning place for anyone to be placed in, let alone a young bride with little worldly experience and newly arrived in Australia. In that regard I specifically reject the suggestion made or implicit in the offender’s case in the trial, particularly as was the basis for the cross-examination, obviously on instructions, that the victim was a person of ostensively loose morals who had married and come to Australia as some kind of manipulative trick to pursue another relationship and then to establish a new and better life for at least herself if not others.

82 The victim was a quietly spoken young woman of innate dignity and, considering what she had been through and the contents of the victim impact statement, considerable poise and balance albeit having had to survive in difficult ongoing circumstances.

Public policy issues

83 The criminality of this offence arises from the procuring of an individual to work in a situation where she had to prostitute herself by one who was in a vastly superior and indeed dominant position compared to her both as a result of their relationship and the world from which she had moved.

84 There is also a need from the point of view of general deterrence that a strong message be sent that behaviour of this kind, involving as it does, an underlying attitude to young and vulnerable women, will not be tolerated in Australia.

85 The legislature has established a maximum penalty of ten years imprisonment for this offence, including the seriousness with which it should be viewed. Balanced against that is the fact of the offender’s personal subjective circumstances as I have outlined them earlier.

Special circumstances

86 It has been submitted that I should find special circumstance on the ground it will be the offender’s first time in custody, that there are good prospects of rehabilitation based on his subsequent marriage and the fact that he has now two children. Also, reference has been made to the fact that he was a victim of religious persecution. He came to Australia as a refugee in 1997. He has suffered from depression and treatment might be more effect if it takes place outside a custodial setting and further that his prospects of rehabilitation are likely to be greatly enhanced.

87 In my view the facts, that this is the offender’s first time in custody, that he has a family who may provide a structure of supervision for him and that he will need considerable assistance to establish his life upon release are grounds on which special circumstances could and should be found.

88 I do not accept that the refugee status which enabled him to come to Australia in 1997 warrant a finding of special circumstances or the assertion and to the extent of the medical evidence that supports it, that the depression in these circumstances warrants a finding that he should be released at an earlier date for ongoing external supervision.

89 As a result of my findings of special circumstances I am of the view that the statutory ratio should be varied such that the period of full-time imprisonment should be two-thirds of that of the total sentence.

Sentencing options

90 The pre-sentence report states the offender is suitable for a community service order and has signed the necessary undertaking. He is also eligible as being assessed as suitable for a periodic detention order and has signed the relevant undertaking for that.

91 I have considered those sentencing options and all possible alternatives. In my view the circumstances of this offence mean that a sentence of full-time imprisonment is the only realistic option.

Time in custody

92 The offender was remanded in custody on 4 December 2007, has been in custody since that time. It is appropriate and the Crown concedes, that the sentence be backdated to commence from that date.

Sentence

I formally convict you in relation to the offence of procuring for prostitution by threat.

The sentence is as follows. You are sentenced to a total term of three years imprisonment backdated to commence on 4 December 2007 and to expire on 3 December 2010 with a non-parole period of two years imprisonment to expire on 3 December 2009.

It will be a term of your parole that you be of good behaviour and that you comply with such directions and attend such programs to which you may be directed by the Probation and Parole Service, including any monitoring of your domestic situation and any assessment of the depression you are said to be suffering as well as such psychotherapy as may be recommended on the basis of the matters set out in the reports of Dr Roberts and the report to which he refers of Dr Younan.

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