R v Grey (No 3)
[2020] ACTSC 43
•27 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Grey (No 3) |
Citation: | [2020] ACTSC 43 |
Hearing Date: | 6 February 2020 |
DecisionDate: | 27 February 2020 |
Before: | Murrell CJ |
Decision: | Total sentence of 11 years and 5 months’ imprisonment with a nonparole period from 13 July 2020 to 12 May 2024. See [145]–[148]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Transporting person under 18 to provide sexual services – Sexual intercourse without consent – Act of indecency without consent – Multiple complainants – Brothel operator and prospective sex workers – Whether plea discount for Commonwealth offence can incorporate utilitarian value – Lack of consent due to abuse of position of authority |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 33, 35A Crimes (Sentencing Procedure) Act 1999 (NSW) s 10 (repealed) Sexual Offences Act 2003 (UK) ss 57(1), 58(1) |
Cases Cited: | Cameron v The Queen [2002] HCA 6; 209 CLR 339 Director of Public Prosecutions (Cth) v McIntosh [2016] VCC 622 Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1 |
Parties: | The Queen (Crown) Bradley Lester Grey (Offender) |
Representation: | Counsel D Barrow (Commonwealth Crown) S Naidu (ACT Crown) B Morrisroe (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 246 of 2018, 335 of 2019 |
Murrell CJ
Introduction
On 4 November 2019, a jury found the offender guilty of 14 counts of engaging in sexual intercourse without consent and six counts of committing an act of indecency without consent.
The offence of sexual intercourse without consent is contrary to s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act). It carries a maximum penalty of 12 years’ imprisonment. The offence of act of indecency without consent is contrary to s 60(1) of the Crimes Act. It carries a maximum penalty of seven years’ imprisonment.
In addition, when arraigned on an ex officio indictment, the offender pleaded guilty to the offence that, between about 30 June and 25 August 2013, at various places in Australia (including the ACT), he organised or facilitated the domestic transportation of a person under the age of 18, intending that she would be used to provide sexual services during or following transportation, contrary to s 271.7 of the Criminal Code 1995 (Cth) (Criminal Code). This offence carries a maximum penalty of 25 years’ imprisonment and/or a large fine.
The offender has been in custody since he was arrested on 13 February 2018. The sentences will commence on that date.
Commonwealth offence – Transport person under 18 years to provide sexual services
In 2013, the offender and his de facto partner, X, were working in the commercial sex industry in Sydney. They decided to travel around Australia for the purpose of X undertaking commercial sex work.
In June 2013, the offender and X met the complainant at a fast food outlet at the Canberra Centre, where she worked. The offender and the complainant had a conversation in which she informed him that she was 17 years old, estranged from her parents, and living away from her family. The offender told her that he ran a modelling agency and asked her whether she would be interested in becoming a model. When she expressed interest, he handed her a business card for a “modelling” agency.
In late June 2013, the offender, the complainant and X met at the Australian National Botanical Gardens for the purpose of the complainant undertaking a photoshoot. The offender photographed the complainant in a variety of non-sexualised poses.
A second photo shoot was arranged. On that occasion, the offender asked the complainant to undress and he photographed her. The offender and the complainant then engaged in consensual sexual intercourse. The offender paid the complainant for the photoshoot.
At some point, the offender told the complainant that X worked in the sex industry and that the couple travelled for that purpose. He said that, if the complainant travelled around Australia with them, he could organise for her to make “a lot of money” by undertaking sex work.
The complainant agreed. She was attracted by the opportunity to increase her earnings and she believed that sex work would assist her to launch a modelling career. After the complainant had indicated her agreement, the offender drove her to her home, where they had consensual sexual intercourse in his vehicle.
As noted, the complainant had told the offender that she was 17 years old. However, the offender told X that the complainant was “close to being 18 years of age” and that, because she was “essentially her own guardian”, she could undertake sex work.
The complainant’s housemates expressed concern about the complainant’s plan, but she told them that she “really trusted” the offender.
Before the trio left Canberra, the offender advised the complainant that she should not disclose her true age or identity to clients. Rather, she should tell clients that she was 21 years old, from South Africa, and currently living in Sydney. The complainant was to give the offender approximately one third of her earnings, which would be about $300 per service.
On 30 June 2013, the offender drove the group to Adelaide, where he arranged for X and the complainant to provide commercial sexual services. In advertisements, he stated that the complainant was 19 or 20 years old.
On 1 July 2013, the complainant performed her first commercial sexual service. She was extremely nervous, but the offender reassured her.
In Adelaide, sexual services were provided either at the client’s address or at a central Adelaide apartment that was rented by the offender. If necessary, the offender drove the complainant to the client’s address and waited outside until she had provided the service.
On 4 July 2013, the offender drove the trio from Adelaide to Sydney, where they remained until 18 July 2013. During this time, the offender and X organised clients for X and the complainant. X instructed the complainant on how to take calls directly from clients.
On 18 July 2013, the offender drove the complainant and X from Sydney to Brisbane. From 19 to 24 July 2013, the complainant provided sexual services up to four times a day out of an apartment in central Brisbane. The offender advised the complainant that it was illegal to offer unprotected oral sex in Queensland, and that she should not offer such a service over the phone but wait until she was alone with a client to do so.
From 25 July to 18 August 2013, the offender drove the trio around regional Queensland and the complainant provided sexual services in Mackay, Townsville, Cairns, and Rockhampton, returning to Brisbane to provide services from 15 to 18 August. Generally, the complainant and X provided services in hotels.
Between 18 and 20 August 2013, the complainant and X provided commercial sexual services in Sydney. The offender drove the complainant to the location where a service was to be provided and waited in the car while she provided the service.
On 21 August 2013, the trio travelled to Perth, where the offender and X organised for the complainant to provide commercial sexual services.
On 25 August 2013, the offender and the complainant had an argument. The offender refused the complainant’s request to make immediate arrangements for her to return to Canberra. She felt “[t]otally trapped”. She rang a friend in Canberra, who advised her to call police.
The complainant contacted WA Police. She told them that she was 17 years old, that she was from Canberra, and that she was “fearful of the people that she was staying with”. She said that she felt unable to leave and needed a “safe space”.
On the following day, the complainant returned to Canberra.
The complainant estimated that, between 30 June and 25 August 2013, she provided commercial sexual services to approximately 130 clients. She kept the bulk of her earnings, providing about one third to the offender and X, who paid all her expenses.
Clients often asked the complainant about her age and, in accordance with the offender’s instructions, she told them that she was 21 years old.
After the complainant returned to Canberra, she had no contact with the offender until 2014, when they commenced intermittent contact and, on some occasions, the complainant provided sexual services for the offender.
In 2015, the offender moved to Canberra and began to manage a brothel. He contacted the complainant, who agreed to work at the brothel. They also had a brief romantic relationship.
In August 2017, ACT Police began an investigation into the ACT sex industry. On 17 and 23 November 2017, they interviewed the complainant.
Victim Impact Statement
The complainant provided a victim impact statement in which she said that, following the offence, she had struggled with her self-image. She felt manipulated, dirty, and unlovable.
Although the offence occurred more than six years ago, the complainant continues to experience disturbing memories and she believes that they will stay with her for the rest of her life. Unpleasant memories may be triggered when she is with her husband, when certain words are used in conversation, or when she sees someone who resembles the offender.
However, the complainant is determined to recover and make a success of her life. She is on a path to doing so; she has good employment, she is happily married, and the offender no longer dominates her thoughts. It is to the complainant’s credit that she has made a concerted effort to move on with her life and has achieved significant successes in that regard.
History of Commonwealth proceedings
On 13 February 2018, the offender was arrested in Sydney and extradited to the ACT.
On 15 February and 12 April 2018, the offender was charged in the ACT with Commonwealth offences, including domestic trafficking offences relating to the complainant. On 10 May 2018, in the ACT, he entered pleas of not guilty. The charges remained in the Magistrates Court. As the Commonwealth formed the view that it was more appropriate for the charges to be pursued elsewhere, on 14 September 2018, the Commonwealth charges that had been laid in the ACT were withdrawn.
On 9 October 2018, very similar charges were laid in NSW. On 5 February 2019, some of those charges were withdrawn. On 22 March 2019, in the Local Court of NSW, the offender agreed to plead guilty to the present rolled-up charge. The matter was adjourned pending the outcome of the trial of the ACT charges.
After the offender was convicted of the ACT offences, with the offender’s consent, the Commonwealth charge was revived in the ACT by way of ex officio indictment.
Objective seriousness of Commonwealth offence
As with any human trafficking offence, the gravamen of the offence is the transportation (or facilitation of transportation) of a person who is under the age of 18 for a particular purpose—the purpose of the young person being used to provide sexual services, regardless of whether the young person is actually used to provide such services. “Sexual service” means “the use or display of the body of the person providing the service for the sexual gratification of others”: Dictionary to the Criminal Code.
In this case, the following matters are relevant to the assessment of the objective seriousness of the offence.
(a)The complainant was 17 years old (at the upper end of the age range for the offence).
(b)The offender did not use any physical force or threats.
(c)At the time of the offence, the offender was much older than the complainant; he was 49 years old. Where a substantial age difference means that an offender has greater authority and, by virtue of their maturity, should exercise greater responsibility, the age difference may inform the offender’s degree of culpability.
(d)In each of the five jurisdictions visited by the offender and the complainant, it is an offence for a person to engage in sexual activity with a sex worker who is under the age of 18: Commonwealth Crown submissions at [25]. The offender knew that the complainant was a child who could not legally provide sexual services; he told her that she should not disclose her correct age to clients.
(e)The offender was aware that the complainant was vulnerable to his influence, not just because of her age (which is an element of the offence) but also because she was estranged from her parents, was struggling financially, and harboured the ambition to become a model.
(f)The offence was not planned from the outset; initially, the offender took advantage of an opportunity that presented itself. The offence was not part of a large-scale human trafficking operation.
(g)Although the offence did not occupy a long period of time, it continued for about two months and involved many episodes of transportation to a variety of locations across the length and breadth of Australia.
(h)Not only did the offender “facilitate” transportation; he personally delivered it.
(i)The transportation offence occurred in the context that, in fact, many sexual services were provided between episodes of transportation. The offender is not being sentenced for breaching a State or Territory law in this regard, but his conduct places the transportation offence in a proper context.
(j)The motivation for the offence was financial gain; the arrangement was that the offender and his partner, X, would receive about one-third of the complainant’s not insubstantial earnings, and that is what occurred.
(k)The purpose of the transportation was that the complainant’s body would be used for sexual intercourse, a very serious “use or display” of her body within the range of conduct captured by the definition of “sexual service”.
(l)Although the complainant was not forced to travel and was not financially dependent on the offender (she retained a good part of her substantial earnings), the circumstances made her emotionally reliant on the offender such that she felt “trapped” when, in Perth, the offender refused to make immediate arrangements for her return to Canberra.
While lack of consent would have been an aggravating feature, the complainant’s consent to the transportation is not a mitigating feature; at law, a person under the age of 18 years is not capable of agreeing to transportation for the purpose of providing sexual services. Consistent with this legislative intent, s 271.11B of the Criminal Code provides that a complainant’s consent or acquiescence to conduct constituting any element of the offence is not a defence.
Other sentencing considerations applying to Commonwealth offence
Section 16A Crimes Act 2014
The Court must sentence a federal offender in accordance with pt IB of the Crimes Act 1914 (Cth) (Crimes Act 1914). Inter alia, the Court must consider the matters in s 16A of that Act insofar as they are known and relevant to the Court.
I reject the offender’s submission that the “apparent rarity” of offending such as the present means that there is a limited need for general deterrence. Offences of this type may be difficult to detect and prosecute. The maximum penalty of 25 years’ imprisonment indicates the seriousness of offences that involve trafficking in children. As with almost any offence involving the exploitation of children, general deterrence is an important sentencing consideration.
One of the relevant considerations under s 16A(2) is consideration (d), the personal circumstances of any victim. In this case, the victim impact statement speaks of the serious and lasting consequences for the complainant. They are the sort of consequences that one would expect.
Pursuant to s 16A(2)(f), the Court is to consider any contrition on the part of the offender. There is no evidence of significant contrition.
The plea of guilty is a consideration under s 16A(2)(g).
I accept that the plea of guilty was relatively early (it was indicated in the NSW Local Court), although it was not a plea at the earliest reasonable opportunity; it could have been indicated or entered in 2018 in the ACT but, instead, in May 2018 the offender pleaded not guilty in the ACT.
However, the question arose as to whether the plea discount could include a component for the utilitarian value of the plea (avoiding the cost of a trial and bringing finality to the proceedings). In NSW and Victoria, appellate courts have held that, in relation to a federal offender, the decision in Cameron v The Queen [2002] HCA 6; 209 CLR 339 is distinguishable and the utilitarian benefit of a plea of guilty can be taken into account on sentence: Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1 (Xiao) (a five-member bench of the NSW Court of Criminal Appeal); Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237; 53 VR 546 (Thomas). However, in this jurisdiction, in R v Harrington [2016] ACTCA 10; 11 ACTLR 215 (Harrington), which preceded Xiao and Thomas, the majority (Refshauge and Gilmore JJ, Murrell CJ not deciding the issue) held that, in the case of a federal offender, the sentencing court could not take into account the utilitarian value of a guilty plea.
The Commonwealth Crown submitted that, until Harrington is overturned by the ACT Court of Appeal or its effect is reversed by legislation, I am bound by that decision. Nevertheless, a discount should be given because of the offender’s willingness to facilitate the course of justice. The Commonwealth Crown submitted that, in the circumstances of this case, there was no material difference between the discount that would be allowed for willingness to facilitate the course of justice and the objective utilitarian value of the plea. The Commonwealth Crown noted that, in Thomas at [7], the Victorian Court of Appeal had said that, ordinarily, there will be no material difference between the two discounts, although, in some cases, the utilitarian benefit of avoiding a contested trial will be more valuable than an offender’s subjective willingness to facilitate the course of justice, as evidenced by a guilty plea.
The offender submitted that a central consideration when sentencing an offender for a federal offence was the need for sentencing consistency throughout Australia: R v Pham [2015] HCA 39; 256 CLR 550 at [18]. According to the offender, this meant that, as Harrington preceded Xiao and Thomas, the latter decisions should be followed, even at first instance.
I am not convinced that the offender’s approach is correct. However, it is not necessary to decide whether that approach is correct as I agree with the Commonwealth Crown that, in the present case, the plea of guilty had significant value, whether viewed objectively or subjectively, such that the two approaches result in the same outcome.
Under the Crimes Act 1914, there is no requirement to quantify any sentence reduction for a plea of guilty. However, in the interests of transparency, I record that, in this case, I consider that a discount of 20 per cent is appropriate. The plea was indicated in the NSW Local Court after the proceedings had, in effect, been on foot for about 12 months. Nevertheless, it demonstrated a willingness to avoid proceedings that would have been lengthy and unpleasant.
A sentence of imprisonment may be imposed only if no other sentence is appropriate. Having regard to the objective seriousness of the offence, I am satisfied that no other sentence is appropriate. There was no submission to the contrary.
As the Commonwealth offence preceded the ACT offences, the Commonwealth sentence should be served first in time. It is appropriate to impose a fixed term because there will be a significant degree of accumulation between the sentence for the Commonwealth matter and the sentences for the ACT offences and there is no utility in setting a nonparole period: see ss 19AB(3) and 19AC(4) of the Crimes Act 1914. Counsel for the offender did not submit otherwise.
Comparable cases
There are no sentencing decisions concerning s 271.7 of the Criminal Code that assist in the determination of an appropriate sentence. The facts were very different in the two cases in which offenders have been sentenced under s 271.4 of the Criminal Code, which deals with trafficking of children into or out of Australia: see Director of Public Prosecutions (Cth) v McIntosh [2016] VCC 622 and R v KAK [2013] QCA 310.
Two decisions of the England and Wales Court of Appeal are of interest, although they relate to a different sentencing regime.
In R v Khan [2015] EWCA Crim 831, a jury convicted the appellant of causing or inciting child prostitution (prostitution by a person under 18), trafficking within the UK for sexual exploitation, and causing or inciting a child (a person under 16) to engage in sexual activity, contrary to the Sexual Offences Act 2003 (UK) (Sexual Offences Act). The maximum penalty for each offence is 14 years’ imprisonment. The appellant (aged 19) befriended two 15-year-old girls (one of whom was the complainant) and they met up with the co-offender (aged 30) in the appellant’s car. The appellant told the complainant that he had a job for her at his brothel, implying that it was as a sex worker. He suggested that the complainant undertake a “test run”. She declined. Two days later, the appellant contacted the complainant and insisted that she go on a job, saying that she would be paid £50 for her services. She complied as she was fearful of the appellant. On another occasion (or the same as above—the judgment is unclear), the group drove about 25 kilometres. The appellant ordered the complainant to leave the car and have sexual intercourse with the co-offender to “assess her suitability for work as a [sex worker]”. She left the car out of fear but later said that the intercourse had been consensual.
For the offence of causing or inciting child prostitution, the appellant was sentenced to eight years’ imprisonment; for trafficking within the UK for sexual exploitation, he was sentenced to seven years’ imprisonment; for causing or inciting a child to engage in sexual activity, he was sentenced to five years’ imprisonment. All sentences were to be served concurrently, making the total sentence eight years’ imprisonment.
In R v Maka [2005] EWCA Crim 3365, the accused pleaded guilty to two counts of trafficking within the UK for sexual exploitation, contrary to s 58(1) of the Sexual Offences Act. He was convicted by a jury of one count of trafficking into the United Kingdom for sexual exploitation (contrary to s 57(1) of the Sexual Offences Act) and two counts of trafficking within the UK for sexual exploitation (contrary to s 58(1) of the Sexual Offences Act). The maximum penalty for both offences is 14 years’ imprisonment. Neither offence relates specifically to trafficking children.
The complainant, a 15-year-old girl from Lithuania, was tricked into coming to the UK by the promise of a well-paid job. The appellant met her at the airport and seized her passport. He transported her to central London. She was sold to a man, who raped her and forced her to work as a prostitute for several days until she escaped. She contacted the appellant and he collected her. The appellant then sold her to a second man, who put her to work in a brothel until she escaped an hour later. She contacted the appellant, who again collected her. He sold her to a third man, who tried to have intercourse with her, but she refused. The next day, she was sold to a fourth man. She escaped from him and was sold to a fifth man, who raped her and forced her to work in a brothel for about a week. She escaped and returned to the appellant. The appellant sold her to a sixth man. He raped her several times and told her that she would have to work in a brothel. She managed to escape and contact police.
On each of the five counts, the offender was sentenced to eight or nine years’ imprisonment. The total sentence was 18 years’ imprisonment. The appellant’s appeal alleging that the sentences were manifestly excessive was dismissed.
ACT offences
The ACT offences occurred between about 30 December 2015 and 26 December 2016. They related to seven complainants. The offences occurred at Mitchell Mistresses, a brothel that the offender operated in Fyshwick, ACT. In each case, the complainant had contacted the offender to inquire about working as a sex worker. When the complainant attended the brothel for an interview, the offender subjected her to “training” that involved him engaging in sexual activities with her.
KN (Counts 1 and 3)
Facts
In about August 2015, KN, a resident of South Africa, was contacted by the offender (who initially used the profile name “Jess”) through the website FetLife. She was alienated from her family and heavily indebted. The offender and KN discussed the possibility of “escort” work in Australia. She said that she had not previously worked in the sex industry. He said that the work would not focus primarily on sexual intercourse and that she could earn a large amount of money. She was attracted by the prospect of travelling and earning a significant sum.
The offender arranged a holiday visa for KN and booked flights for her to travel from South Africa to Australia. KN flew into Sydney, arriving on 30 December 2015. The offender met her flight and drove her to Canberra. When KN arrived in Canberra, she was exhausted. The offender showed her to the dormitory accommodation that was available to brothel workers. He then asked her to dress in lingerie so that he could photograph her for advertising purposes.
The offender informed KN that she was to undertake “training”. As part of the “training”, the offender directed her to massage his nipples while he masturbated himself (Count 1 – act of indecency) and he inserted his fingers into her genitalia (Count 3 – sexual intercourse without consent). KN had not appreciated that the training would include sexual activities. She said that she did not consent to the sexual activities but complied with the “training” as she felt that she could not say “no” and she did not know whether such “training” was normal in the sex industry. Further, she needed the money that she hoped to earn through sex work.
Thereafter, KN worked at the brothel for several months, until approximately early March 2016.
At the time of the offences on 30 December 2015, KN was 26 years old.
Victim Impact Statement
Since the incident, KN has experienced “recurring nightmares and hallucinations” and has had difficulty in sleeping properly. Although she knows that the offender is in custody, she experiences anxiety about the offender watching or following her, which may be triggered by places or by certain scents. Sometimes, she disassociates from reality. KN suffers from panic attacks, acute anxiety, depression, and associated fatigue. She is still seeking an effective medication regime.
KN’s symptoms have impacted on her relationship with her husband. She has tried to keep her struggles to herself as she fears hurting her family. There has been a significant financial impact; KN feels unable to maintain full-time work.
BG (Counts 5, 6, and 7)
Facts
In response to an advertisement on the Gumtree website, in approximately May 2016, BG contacted the offender. She had no prior experience in the sex industry but was interested in the work as the advertisement suggested earnings of up to $7,000 a week.
On 10 or 11 May 2016, the offender met BG for an interview and training. BG had anticipated that training may include massage training, but she had not expected that it would include sexual activities. During the training, the offender performed unprotected oral sex on her (Count 5 – sexual intercourse without consent), directed her to perform unprotected oral sex on him (Count 6 – sexual intercourse without consent), and then masturbated himself while she was directed to suck on his nipples (Count 7 – act of indecency). During these activities, BG “shut down” emotionally. She submitted to the activities because she thought that it was part of the process of getting the job and believed that everyone who worked for the offender was required to undertake such training.
The following day, BG began to work at the brothel. She did so for approximately one year.
At the time of the offences in May 2016, BG was 25 years old.
Victim Impact
No victim impact statement was provided. However, I do not doubt that the incident had a significant emotional impact on the complainant.
BU (Counts 8, 9, 10, 11, 12, 13, and 14)
Facts
In August 2016, BU responded to an advertisement on the Craigslist website. She had financial difficulties. Previously, she had not undertaken sex work.
The offender flew BU from her home in Brisbane to Canberra. She “didn’t even know where Canberra was”. When BU arrived at the brothel on 5 August 2016, the offender photographed her, then removed his clothes and told her to disrobe. She stated that she felt uncomfortable and told the offender that she did not want to comply. He responded that “everyone else did this” and that she had to do the training “so that she knew what she was doing”. At that stage, BU did not realise that the offender would have any sexual contact with her. However, as part of “training”, the offender massaged her, touching her genitalia (Count 8 – act of indecency), inserting his fingers into her genitalia while he massaged her (Count 9 – sexual intercourse without consent), and massaging her front body, including fondling her breasts (Count 10 – act of indecency). He then performed unprotected oral sex on her (Count 11 – sexual intercourse without consent), directed her to masturbate him (Count 12 – act of indecency), instructed her to sit on his face while he performed oral sex on her (Count 13 – sexual intercourse without consent), and required her to perform unprotected oral sex on him (Count 14 – sexual intercourse without consent). BU felt shocked and disgusted but believed that, if she did not participate in the training, she would not be offered the job and she would be stranded in Canberra.
On the same day, BU began to work at the brothel. She continued to work there until October 2016.
At the time of the offences in August 2016, BU was 23 years old.
Victim Impact
No victim impact statement was provided. However, I am sure that the incident had a very significant emotional impact on the complainant. She did not want to engage in any of the numerous sexual activities. It was an horrendous introduction to sex work.
DL (Counts 15, 16, and 17)
Facts
In late August 2016, DL responded to an advertisement that the offender had posted on Craigslist. She was interested in undertaking sex work because she was trying to leave an abusive relationship and needed to supplement her income. Previously, she had undertaken sex work on a “private” basis.
When DL attended Mitchell Mistresses for an interview, the offender proposed that she dress in lingerie so that he could photograph her for profiling purposes. She did so. The photography occurred in the “VIP room”, as did the subsequent “training”.
During the “training”, the offender required DL to massage his penis (Count 15 – act of indecency) and to perform unprotected oral sex on him (Count 16 – sexual intercourse without consent). He performed unprotected oral sex on her for the stated purpose of demonstrating the best way of doing so (Count 17 – sexual intercourse without consent). DL gave evidence that she was not given an opportunity to say “no” to the sexual activities and that she felt uncomfortable, intimidated, and overwhelmed. Further, she felt that, if she did not “go along” with the training, she would not be accepted as a sex worker.
The following day, DL commenced working as a sex worker at the brothel. Later, she worked as manager at the offender’s two Canberra brothels. She was “let go” in May 2017.
At the time of the offences in August 2016, DL was 27 years old.
Victim Impact Statement
The offences made DL feel vulnerable and childlike. After the offences, her mental health declined and she began to self-sabotage, including by taking drugs, placing herself in risky situations, and inviting conflict with her friends and family.
DL’s inability to cope with life meant that she temporarily lost custody of her children.
Although DL has rebuilt her life, she continues to struggle with intrusive thoughts about the offending behaviour. She sees a psychologist.
SH (Count 21)
In December 2016, SH contacted the offender seeking sex work. She needed an income as she was undertaking an unpaid apprenticeship. She had no prior experience with sex work.
The offender suggested that, because of her inexperience, she would benefit from training. The complainant agreed. She assumed that the training would cover matters such as how to undertake a health check of clients. However, during the “training”, the offender required her to perform oral sex on him while he wore a condom (Count 21 – sexual intercourse without consent). SH felt uncomfortable about the entire process. She “froze”, although she continued to “go along” with the sexual activity; she felt an expectation that, if she was to be employed in the industry, she would need to be capable of undertaking such activities. Thereafter, she worked at the brothel.
At the time of the offences in December 2016, SH was 22 years old.
Victim Impact Statement
The offences and her association with the offender dramatically undermined the SH’s confidence about intimate relationships, general social interaction, and employment. Since the incident and her involvement with the offender’s brothel, she has had difficulty maintaining a stable routine. Her physical health has deteriorated. The stress has reactivated an eating disorder. She has become more reclusive and feels alienated and disconnected from her family. She sees a therapist.
BI (Counts 22 and 23)
In December 2016, BI responded to an advertisement on the Craigslist website. She travelled by train from her home in Newcastle to Sydney, where the offender met her and drove her to Canberra.
The offender learned that BI had not previously undertaken sex work and told her that, prior to commencing work, she would need to undergo training to “make sure [she] could do the job”.
When they arrived at the brothel, the offender took BI to the VIP room, where he photographed her for marketing purposes. He asked her to undress. He undressed. He lay down and asked her to massage him. He then moved to the bed in the room. The offender performed oral sex on BI (Count 22 – sexual intercourse without consent) and required her to perform oral sex on him while he was wearing a condom (Count 23 – sexual intercourse without consent). BI stated that she “certainly wasn’t happy with the fact that [the training] was happening but [she] just really wanted the job”. Although she felt uneasy during the training, she also believed that it was a job requirement.
Thereafter, BI worked at the brothel until mid-2017.
At the time of the offences in December 2016, BI was 20 years old.
Victim Impact Statement
After the offences, BI “became paranoid and suspicious of everyone”. At times, memories of the events made her suicidal.
Since becoming involved with the offender and his brothel, she has found it difficult to socialise with friends, family and boyfriends. She has experienced nightmares, sleeping difficulties and flashbacks to the offences, including while being intimate with partners. She believes that her capacity for intimacy has been permanently affected and she worries about the impact on any future marriage.
The complainant continues to battle the sense that the offender is trying to control her. She is focused on the danger posed by predatory men like the offender, both to herself and to women in general. She feels a need to protect others and prevent the offender from committing further offences. She is always preparing “for the worst”.
She continues to feel depressed and angry to the extent that she has been unable to work or study successfully.
For the past two years, BI has attended weekly therapy.
Given the complainant’s youth at the time of the offences and the fact that they occurred away from her home and any support network, it is not surprising that the offences and their sequelae have had a dramatic impact on the complainant.
NH (Counts 24 and 25)
Facts
NH contacted the offender in relation to sex work because she was in a financially “desperate” position. On the telephone, the offender asked her many questions about her personal situation. She told him that she was heavily indebted. He responded that there was a prospect of making a large amount of money. She had not previously undertaken sex work.
On 26 December 2016, NH attended Mitchell Mistresses for an interview, in the company of a friend. The offender asked both about their personal sex life.
The offender then took NH to the VIP room for the purpose of photographing her wearing lingerie. He directed her to undress for “training” purposes. The offender told NH that, if she could not do the training, then she could not work at the brothel. For that reason, NH complied. The offender commenced the “training” by massaging NH. He then performed oral sex on her and inserted his fingers into her genitalia (Count 24 – sexual intercourse without consent). He required her to perform oral sex on him and to fondle his penis (Count 25 – sexual intercourse without consent).
NH worked at the brothel until mid-2017.
At the time of the offences in December 2016, NH was 21 years old.
Victim Impact Statement
Before NH began to work for the offender, she was “in a dark place”. She had separated from a partner and been forced to move, she had left her job, she was unable to pay her bills, and she was facing eviction. She was “extremely depressed” and had relapsed into drug addiction.
The “training” made her feel disgusting, but she was convinced that sex work was her only financial option.
After she left the sex industry, she felt very alone, fearing that others would judge her harshly. She was “extremely ashamed for [her] decisions and choices”. She became “severely depressed and hated [her]self”. On one occasion, she attempted suicide and was hospitalised.
NH takes medication for depression and anxiety. She has been treated by several psychologists but is “still learning to live with this past experience”.
Like BI, NH was particularly young and vulnerable at the time of the offences. It is not surprising that the offences had a serious psychological impact upon her.
Objective seriousness of ACT offences
In relation to the ACT offences, the following general observations can be made.
(a)They occurred over a period of approximately 12 months; there were not one or two isolated incidents.
(b)They involved seven discrete episodes of misconduct (generally, each episode entailed several offences), and each episode affected a different complainant.
(c)In most cases, the complainants were vulnerable in the sense that they were young women who were desperate to earn money and who had lacked prior experience in the sex industry, so did not know what to expect of “training”.
(d)The offender was a much older man.
(e)The offender was aware of the complainants’ vulnerability as, prior to committing offences against most, if not all, complainants, he had learned of the complainant’s unfortunate personal circumstances and knew that she needed the employment.
(f)The offender took advantage of the complainants’ naivety and the element of surprise and associated shock (for obvious reasons, the complainants were not expecting that “training” would involve sexual activity) to engage in sexual activity for his own sexual gratification.
(g)To himself, the offender may have rationalised his conduct as “training” in the sense of “breaking in” the complainants so that they could cope with the challenging nature of sex work, but that was a very convenient rationalisation; the offender must have understood that his conduct served to satisfy his own desire for sexual gratification. The fact that there may have been an element of legitimate training (for example, massage training) is not a significant mitigating consideration.
(h)In relation to most offences of sexual intercourse, no protection was used, raising the spectre of sexually transmitted infection.
(i)The offences were planned; in each case, the offender adopted a similar pattern of conduct.
(j)As a general proposition, digital and oral intercourse are less serious than penile/vaginal intercourse. However, in this case, the digital and oral intercourse that occurred were reasonably serious examples of that type of sexual intercourse.
(k)Similarly, the indecent acts that occurred were relatively serious examples of such conduct.
(l)Inevitably, each victim suffered significant psychological harm.
On the other hand, I accept that:
(a)Each victim was an adult.
(b)The offender acted alone.
(c)The sexual intercourse was digital intercourse or oral sex, not penile/vaginal intercourse.
(d)There was no actual or threatened violence and no weapon was involved.
(e)Each offence was of relatively short duration and I infer that the whole of each episode was of relatively short duration.
(f)The offences were not associated with gratuitous humiliation or degradation.
(g)In the case of each victim, her ongoing psychological injury is probably multifactorial.
At the trial, the prosecution argued that lack of consent could be established via a variety of routes, which differed as between different charges and complainants: see MFI 18.
In the case of each complainant, the jury may have found that the offender had abused his position of authority as employer or prospective employer, thereby vitiating any consent (rather than that there was an actual lack of consent). If so, the offences are no less objectively serious because lack of consent was established in that way. However, it does mean that, in sentencing the offender, his abuse of authority cannot be taken into account under s 33(1)(u) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) as an additional matter aggravating the objective seriousness of the offences.
Discount
The offender cannot avail himself of any discount for a plea of guilty.
The offender contended that he should be given a discount under s 35A of the Sentencing Act for his assistance to the administration of justice in that he acquiesced to the Crown leading tendency evidence and indicated that a number of Crown witnesses were not required and that their evidence could be led through the police informant, for example, police witnesses connected with a search warrant.
I accept that the offender assisted in these respects. However, there was an overwhelming case for the admission of tendency evidence, and the evidence led through the police informant was uncontroversial. Had the offender taken a more adversarial attitude to the evidence in question, he would not have benefited, and he may have been forensically disadvantaged.
Consequently, exercising my discretion under s 35A of the Sentencing Act, I decline to allow a discount.
Subjective features
The offender is 55 years old. He was about 51 or 52 years old at the time of the offences.
In the 1980s, the offender was convicted in Tasmania of driving offences, including several offences of driving under the influence of alcohol. These convictions corroborate the fact that, at that stage, he abused alcohol. Otherwise, they are of no relevance.
In 1999 in Queensland, the offender received four convictions for breaching a domestic violence order. In August 2006, he knowingly participated in the provision of prostitution and possessed tainted property; he was fined and no conviction was recorded. The offender has numerous traffic convictions in Queensland. While of some interest, because of their age and/or minor nature, the Queensland offences are of no great moment.
More relevantly, in NSW in 2015 (after the commission of the Commonwealth offence), the offender was convicted of stalking or intimidation with intent to cause fear of physical or mental harm and destroying or damaging property. For each offence, he received a nine-month bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (provision now repealed). This outcome suggests that the offences were of a relatively minor nature.
The offender has no prior convictions for trafficking matters or sex matters similar to those before the Court. While extensive, the offender’s criminal history is for offences that are relatively petty when compared to the subject criminal conduct.
The commission of the earlier Commonwealth offence is of significant relevance to the ACT sentencing exercise, but the subsequent commission of the ACT offences is of very limited relevance so far as the Commonwealth sentencing exercise is concerned.
The offender is the youngest of three children. He was raised in Tasmania.
During his childhood, he was subjected to physical and verbal abuse from his mother, with whom he has had no contact since 2006 or 2007. The offender’s parents separated when he was 14 or 15 years old, and his father passed away in 1989.
At school, the offender displayed talent in football and boxing, but in 1981 he suffered an injury that prevented him from playing football.
At 16 years of age, the offender began to abuse alcohol. In 2003, he became abstinent.
The offender has a good work history. After leaving school in Year 11, he worked for 20 years in retail (including in management roles), spent several years in the Australian Army, and worked for three years in real estate. He has also worked as a taxi driver.
In 2004, the offender began to work as a masseur. Later, he worked as an escort. From 2009 until his arrest in 2018, he worked in the sex industry in Sydney (2009 to 2014) and Canberra (2015 to 2017). In Canberra, he operated Mitchell Mistresses and another brothel, Diamond Companions, in Fyshwick. In 2017, the offender moved back to Sydney in search of work.
The offender has been married twice. His first marriage broke down after a short period, possibly in part because both the offender and his wife were dependent on alcohol. In 1996, he remarried. Unfortunately, the second marriage broke down because of the offender’s alcohol abuse. Following the breakdown of this marriage, the offender ceased abusing alcohol. From 2007 to 2014, the offender had a relationship with X. Together, they invested in various businesses, both in and out of the sex industry.
The offender indicated that he has no intention of returning to work in the sex industry.
There are two adult children of the offender’s second marriage, with whom he reported positive relationships. Currently, he has only intermittent contact with his children, primarily by email.
The offender is willing to engage in treatment programs. His conduct in custody has been good.
When first incarcerated, the offender experienced suicidal ideation. However, his current physical and mental health is good.
The offender informed the authors of the pre-sentence report that he regretted his behaviour and the grief and trauma that he had caused to the victims of the ACT offences. He maintained that he had engaged in the conduct for the purpose of training employees who were new to the industry.
With qualification, the offender has accepted responsibility and demonstrated contrition and remorse.
While relevant, the subjective features advanced by the offender are not particularly strong. For example, they do not demonstrate any long-standing social disadvantage or psychological problem that mitigates his moral culpability or commands compassion. His subjective circumstances provide no explanation for the offences.
Comparable cases and sentencing statistics
The limitations of sentencing statistics are well-known. However, for what it is worth, I note that offences against s 54(1) of the Crimes Act frequently attract sentences in the range of 3 to 4 years’ imprisonment. Offences against s 60(1) of the Crimes Act frequently attract sentences in the range of 6 to 12 months’ imprisonment.
The parties agreed that, in this jurisdiction, there are no directly comparable cases.
The decision in Onnis v The Queen [2013] VSCA 271 is somewhat comparable. The offender pleaded guilty to six charges of procuring sexual penetration by fraud and one charge of attempting to procure sexual penetration by fraud. The maximum penalty for these offences is five years’ and two years’ imprisonment, respectively. Prior to the offences, the offender had conducted an internet-based relationship with a woman and, without her consent, had video-recorded her exposing herself and removing her clothes. The offender used the recorded footage to convince the seven young complainants that he was a woman who owned an “adult services boutique business”. He persuaded each complainant to expose herself and engage in sexually provocative conduct via webcam for “the purposes of assessing her suitability for employment within the company”. This conduct was recorded. The offender then told each complainant that she was to meet with a “company scout”, with whom she would be required to perform sexual acts. Six complainants engaged in sexual conduct with the offender, posing as the “scout” or a “client”. The seventh complainant refused to meet the offender and, after the offender threatened to release the intimate recording of her, she reported the incident to the police. At the time of the offences, the offender was 35 years old. Six of the complainants were aged 19 or 20, and one complainant was aged 16. The offender was resentenced on appeal to sentences of 30 months’ and 33 months’ imprisonment for five counts of procuring sexual penetration by fraud and 15 months’ imprisonment for one count of attempting to procure sexual penetration by fraud. The total sentence of imprisonment was six years and two months, with a nonparole period of three years and six months.
In R v Hoyle (No 2) [2017] ACTSC 175, the offender was a lecturer at the University of Canberra. For the stated purpose of investigating plagiarism, he invited individual students to his office. The complainants were four international students who were struggling academically. They were much younger than the offender. When he met with each student, the offender asked her about the plagiarism allegation, suggesting that the issue would be resolved if she provided him with sexual favours. He then made sexual advances. At a trial, the offender was found guilty of five acts of indecency and two acts of sexual intercourse without consent. For the acts of indecency (including showing one complainant pornographic images, inappropriately touching or attempting to touch complainants on the thigh, knee, face, breast and underwear, and kissing complainants on the lips and face), the offender was sentenced to between two and four months’ imprisonment. For non-consensual sexual intercourse by digital penetration and penile/vaginal penetration, the offender was sentenced to three years’ imprisonment and three years and six months’ imprisonment respectively. The total sentence was four years’ imprisonment, with a nonparole period of two years and six months’ imprisonment. The sentences were not a subject of the appeal in Hoyle v The Queen [2018] ACTCA 42.
Sentencing purposes and other sentencing considerations
The facts of the offences call for a strong message of general deterrence. The sex industry is notorious for attracting and exploiting persons who are vulnerable, whether for emotional, financial, or other reasons. It is important that those who operate sex businesses appreciate that a sex worker has just as much right as any other person to control what happens to their own body. They are not to be objectified and treated as chattels.
Other relevant sentencing purposes are accountability, denunciation, and recognition of harm to the victims.
Sentences
The total sentence will be 11 years and five months’ imprisonment from 13 February 2018 to 12 July 2029. I impose the following individual sentences.
Commonwealth offence
For the Commonwealth offence: 20 June to 25 August 2013—transport person under 18 years with intent to provide sexual services—four years and 10 months’ imprisonment (reduced from six years’ imprisonment), from 13 February 2018 to 12 December 2022.
ACT offences
For the ACT offences, I impose the following sentences:
(a)Count 1: 30 December 2015—act of indecency (KN)—nine months’ imprisonment, from 13 July 2020 to 12 April 2021.
(b)Count 3: 30 December 2015—sexual intercourse (KN)—two years and six months’ imprisonment, from 13 January 2021 to 12 July 2023.
(c)Count 5: 10 and 11 May 2016—sexual intercourse (BG)—two years and six months’ imprisonment, from 13 July 2021 to 12 January 2024.
(d)Count 6: 10 and 11 May 2016—sexual intercourse (BG)—two years and six months’ imprisonment, from 13 May 2021 to 12 November 2023.
(e)Count 7: 10 and 11 May 2016—act of indecency (BG)—12 months’ imprisonment, from 13 July 2023 to 12 July 2024.
(f)Count 8: 5 August 2016—act of indecency (BU)—nine months’ imprisonment, from 13 January to 12 October 2024.
(g)Count 9: 5 August 2016—sexual intercourse (BU)—two years and six months’ imprisonment, from 13 July 2022 to 12 January 2025.
(h)Count 10: 5 August 2016—act of indecency (BU)—nine months’ imprisonment, from 13 January 2024 to 12 October 2024.
(i)Count 11: 5 August 2016—sexual intercourse (BU)—two years and six months’ imprisonment, from 13 January 2023 to 12 July 2025.
(j)Count 12: 5 August 2016—act of indecency (BU)—12 months’ imprisonment, from 13 October 2023 to 12 October 2024.
(k)Count 13: 5 August 2016—sexual intercourse (BU)—two years and six months’ imprisonment, from 13 April 2023 to 12 October 2025.
(l)Count 14: 5 August 2016—sexual intercourse (BU)—two years and six months’ imprisonment, from 13 July 2023 to 12 January 2026.
(m)Count 15: 27 August 2016—act of indecency (DL)—12 months’ imprisonment, from 13 July 2025 to 12 July 2026.
(n)Count 16: 27 August 2016—sexual intercourse (DL)—two years and six months’ imprisonment, from 13 April 2024 to 12 October 2026.
(o)Count 17: 27 August 2016—sexual intercourse (DL)—two years and six months’ imprisonment, from 13 July 2024 to 12 January 2027.
(p)Count 21: 1 December 2016—sexual intercourse (SH)—two years and three months’ imprisonment, from 13 April 2025 to 12 July 2027.
(q)Count 22: 14 December 2016—sexual intercourse (BI)—two years and six months’ imprisonment, from 13 July 2025 to 12 January 2028.
(r)Count 23: 14 December 2016—sexual intercourse (BI)—two years and three months’ imprisonment, from 13 April 2026 to 12 July 2028.
(s)Count 24: 26 December 2016—sexual intercourse (NH)—two years and six months’ imprisonment, from 13 July 2026 to 12 January 2029.
(t)Count 25: 26 December 2016—sexual intercourse (NH)—two years and six months’ imprisonment, from 13 January 2027 to 12 July 2029.
As I consider the offender’s prospects of reoffending to be low, this is the first period that he will spend in custody and it is a very long period, I fix a nonparole period from 13 July 2020 to 12 May 2024 (approximately 55 per cent of the total term of imprisonment).
| I certify that the preceding one hundred and forty-eight [148] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
**************
Amendments
| 3 March 2020 | 1. In “Decision” in the headnote, replace “a nonparole period of 6 years and 3 months” with “a nonparole period from 13 July 2020 to 12 May 2024”. 2. In paragraph [148], replace “a nonparole period of six years and three months’ imprisonment (approximately 55 per cent of the total term of imprisonment), from 13 February 2018 to 12 May 2024” to “a nonparole period from 13 July 2020 to 12 May 2024 (approximately 55 per cent of the total term of imprisonment)”. |
3