R v Kanbut - [2019] NSWDC 931

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Kanbut [2019] NSWDC 931
Hearing dates: 9 April 2019 – 7 May 2019
Date of orders: 15 November 2019
Decision date: 15 November 2019
Jurisdiction: Criminal
Before: N L Williams DCJ
Decision:
Sentence –
Overall effective sentence of imprisonment for 8 years, 2 months, and 30 days
Count 1: Imprisonment for 4 years and 6 months – Non-parole Period of 2 years, 8 months, and 14 days
Count 2: Imprisonment for 7 years and 6 months – Non-parole Period of 4 years and 6 months
Count 3: Imprisonment for 1 year 6 months – Non-parole Period of 10 months and 25 days
Count 4: Imprisonment for 4 years 6 months – Non-parole Period of 2 years 8 months and 14 days
Count 5: Imprisonment for 7 years and 6 months – Non-parole period of 4 years and 6 months
Count 6: Imprisonment for 1 year and 6 months – Non-parole period of 10 months and 25 days

Catchwords:
Sentencing; Slavery; Proceeds of Crime; Use a Slave; Possess a Slave;

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes Legislation Amendment (Law-Enforcement Integrity) Vulnerable Witness Protection and Other Measures Act 2013 (Cth)

Cases Cited:
R v M.A.K; R v M.S.K [2006] NSWCCA 381
R v Wei Tang 2009 23 VR 332
Regina v Nahlous 2013 NSWCCA
Sieders and Somsri v R [2008] NSWCCA 187
Wong v The Queen (2001) 207 CLR 584

Category: Sentence
Parties: Regina (Crown)
Rungnapha Kanbut (Offender)
Representation: Counsel:
Mr P. Neill SC (Crown)
Ms G. Westgarth (Crown)
Mr J. Clarke

File Number(s): 2017/191697
Publication restriction: Non-publication order as to the names of the complainants

Judgment

Background

The offender Rungnapha Kanbut pleaded not guilty to the above charges at the Sydney District Court on 8 April 2019. The trial proceeded before me and a jury of 12 persons which was reduced to 11. Findings of guilt were made in the trial on 15 May 2019. The offender now comes before the Court to be sentenced.
The charges upon which the jury found the offender guilty are set out in the following table:

Count

Offence

Description

Maximum penalty

1

1 x 270.3(1)(a) Criminal

Code (Cth)

Between about 20 November 2004 & about 15 May

2005, did intentionally possess a slave, namely

VP

Imprisonment for

25 years

2

1 x s 270.3(1)(a)

Criminal Code (Cth)

Between about 20 November 2004 and about 15 May

2005, did intentionally exercise over a slave, namely

VP, any of the powers attaching to the right of ownership namely the power to use

Imprisonment for

25 years

3

1 x 400.6(1) Criminal

Code (Cth)

Between about 20 November 2004 & about 15 May

2005, dealt with money or other property that was,

& that she believed to be, proceeds of crime the value of the money $10,000 or more

Imprisonment for

10 years and/or 600

penalty units

4

1 x s 270.3(1)(a)

Criminal Code (Cth)

Between about 22 March 2005 & about 15 July

2005, did intentionally possess a slave, namely

RB

Imprisonment for

25 years

5

1 x s 270.3(1)(a)

Criminal Code (Cth)

Between about 22 March 2005 & about 15 July

2005, did intentionally exercise over a slave, namely

RB, any of the powers attaching to

the right of ownership, namely the power to use

Imprisonment for

25 years

6

1 x 400.6(1) Criminal

Code (Cth)

Between about 22 March 2005 & about 15 July

2005, dealt with money or other property that was,

& that she believed to be, proceeds of crime the value of the money $10,000 or more

Imprisonment for

10 years and/or 600

penalty units

Maximum penalty

The maximum penalties are set out in the above table. I have taken them into consideration.

Identification of material tendered on sentence

The Crown tendered a sentence bundle including:

Indictment dated 20 April 2018;

Victim Impact Statement of VP dated 11 July 2019;

Crown’s written submissions on sentence;

Comparative Schedule of Cases.

The defence case included;

Psychiatric Report of Dr Sam Calvin 30.8.19;

Letter of Bencha Lapphochai 23.8.19;

Letter of Tareenee Kanbut 3.9.19;

Letter of Rachel Barton 2.9.19;

Letter of Craig Alexander 28.8.19;

Letter of Robert Cornish 28.8.19;

Letter of Pauline Beveridge 28.8.19;

Letter of Dr Paul Bloomfield 2.8.19.

Both Mr Crown and Mr Clarke, for and with the offender, made oral submissions to the Court.

Criminal History

The Offender has no record of previous convictions.
This is to her credit and contributes positively to her good prospects of rehabilitation.

Time in custody

The offender has served time in custody for these matters from 15 May until today 15 November 2019. This is a period of 6 months.
I have taken this time in custody into account.

Facts found on sentence

Counts 1 & 2

In June 2004 Ms VP, a Thai national, was recruited in Thailand by a man named Chang to travel to Australia as a sex worker. Chang organised her travel documentation including passport and plane tickets.
Chang took naked photographs of Ms VP. He told her that they were a form of security to ensure that she would not run away once she was in Australia. If she did run away he told her the photos would be used to shame her.
Chang organised for a male escort to accompany VP to Australia and told her to tell Australian immigration that he was her boyfriend and they were travelling to Australia on holiday. Chang also told VP that when she arrived in Australia she would stay with a person named Rung.
There were no discussions between VP and Chang as to how much money VP would pay to travel to Australia. VP did not pay any money to Chang.
VP arrived in Sydney on 20 November 2004. On arrival the escort took her to the Sydney CBD and made a phone call.
The offender, her husband and niece came to collect VP. They took her to the offender’s home in Belmore Street Burwood.
That night the offender told VP she had to pay her $45,000 which was a debt. VP was to work as a sex worker and use the money earnt from that enterprise to pay off the debt.
The offender took possession of VP’s passport.
Between about 21 November 2004 and 15 May 2005 VP worked as a prostitute at a number of brothels in Sydney.
VP gave the following evidence about her working conditions:

She had to work every day from 10 AM to 10 PM to pay this debt of $45,000. She often had to work later than 10 PM sometimes from 10 PM to 6 AM or 8 AM and was then required to go back to work at 10:30 AM or 11 AM the same day;

the offender promised VP one free day a month but VP did not receive any days off. The offender told VP that if she worked every day then the offender would send $1000 per month to VP’s family in Thailand. The offender sent $4000 to VP’s family and added onto her debt of $45,000;

VP’s was required to give the money she earned to the offender after every shift.

VP referred to the offender as her ‘mothertac’. The offender recorded the amount of money that VP made in a notebook.

VP was able to keep her tips she received about five or $10 per client. Whilst VP was paying off the debt to the offender she had no money besides the tips she earned;

VP did not have any knowledge of Sydney moreover she knew no one here. She was required to live at the offender’s house;

the offender organised her work at various brothels;

the offender’s husband drove VP to work; she never went to work on her own;

the brothels she worked at were in Homebush, Marrickville and Five Dock;

the offender told VP that she was required to work when she had her period. In order to work was menstruating VP used a sponge in her vagina;

VP was often mistreated by her clients this included being spat on, bruised and suffering digital penetration which caused bleeding. When she told the offender of this ill-treatment the offender told her that she should “put up with it until the time was up and then kick the customer out.”;

The offender called VP on her telephone while she was working at the brothels to ask how many jobs she had done. If VP earned less than $500 in one day the offender would organise for her to go to another brothel so she could make more money. The offender’s husband would pick VP up and drive her to the other brothel;

the offender told VP that she was not to go out by herself;

the offender threatened VP and said:

“don’t think about running away because you really can’t run away to anywhere anyway. You have to pay the debt first”

“some girls have run away, do you know where they are? As I will get someone to harm them”. The offender asked VP if she knew where they were working so the offender could send someone to “slap their face”. The offender then said to VP that after she finished paying the debt the offender would help her;

these threats occurred approximately twice;

VP said that she was afraid;

the offender would refer to a person in Thailand meaning Chang and that person had pictures of VP;

when VP lived with the offender at Burwood the offender said “I could call the police and have you deported and then you would have no money”.

VP said that this made her feel “confused I felt like I had no other option I couldn’t run away”;

VP said “I was just resigned to the fact that I couldn’t run away. There were threats before that not to run away so I decided just to pay the debt off”;

VP had a client who became her boyfriend Mr Kristin Gillard. Their relationship has since ended. He gave evidence that they were in a relationship during 2005. VP had told him that the offender had organised documents that allowed her to work in Australia. VP told Mr Gillard that she owed the offender a debt of $50,000 and that she had no option but to pay off that debt she also told him that “if she didn’t work off her debt then ultimately things would happen”.
VP had at that time limited English skills and did not know where she would go if she left. She did not have a visa which allowed her to work.
VP finished paying off the debt of $45,000 to the offender in about May 2005. Once she had finished paying her debt her passport was returned to her. She was able to choose the hours she worked and what brothel that she worked in. She was able to keep the entirety of the income she received for her work.

Counts 4 & 5

Ms RB is a Thai national. Around February and March 2005 Chang recruited RB to travel to Australia to engage in paid employment as a sex worker.
Chang organised RB’s visa and plane ticket. He took photographs of RB naked “to prevent her from fleeing”.
On 20 March 2005 Chang came to RB’s apartment. He took her to Bangkok airport to fly to Sydney. On the way to the airport they stopped to buy an outfit for her so that she would look like a businesswoman.
Chang gave RB instructions to tell Australian immigration that she was only staying for one week and that her occupation was a secretary.
If there were to be any further questions she was to show them documents that Chang had given her. Chang gave her some money and told her to give it to the person who picked up in Sydney.
On 21 March 2005 RB arrived in Sydney. She bought a phone card and called Chang. He told her to wait at the airport and someone would pick her up. Shortly after that a man came to collect her. RB later learnt that this man was called Tanae Sakaew.
Mr Sakaew drove RB to Chinatown in Sydney. RB gave him the money that Chang had told her to pass on to him. A man came to look at RB while she was at McDonald’s.
Mr Sakaew then took RB to the Haven Inn hotel in Glebe. He checked her into a room. The next morning RB was picked up by the offender. The offender and her husband took RB to their home is 68B Redmyre Road Strathfield.
When they arrived at the offender’s house the offender told RB that she was required to pay off a debt to the offender of AU$45,000. To do this she was required to work as a sex worker at several brothels to pay the debt. RB was to give the offender the money she earned after each day.
The offender told RB that it would take approximately 4 to 5 months to pay off the debt. The offender took RB’s passport and told her she would receive it back when she had paid off the debt in full. RB was required to live with the offender and was initially not given a key to the residence but was given a key after a month or so.
The offender sourced and secured work for RB as a sex worker. She worked from 10 AM to midnight most days. RB gave the offender the money she made at the end of each shift. The offender recorded the money paid in a notebook.
RB was able to keep her tips which were usually about $100 per week but she had no other money. RB chose to work when she had her period because she wanted to pay her debt to the offender off more quickly.
RB did not get a day off every week.
RB described the offender as her mothertac which means someone who is looking after working girls.
It took RB some 4 to 5 months to pay off the debt of $45,000 AUD to the offender. After the debt was paid she received her passport back. She moved out of the offender’s home and went to live with her boyfriend Mr Sakaew.
RB continued to work as a sex worker but she chose which brothel she worked in. She chose the hours she worked and the days she worked.
Mr Sakaew gave evidence that he had had a relationship with RB while she was living with the offender in 2005. He recalled that RB had told him that indecent photos of her had been taken and if anything happened the photos would be sent to her parents and the people living in her village to shame her.
RB had told him that the photos were taken in Thailand. He recalled that RB had told him that she had to live with the offender until her debt was paid off. He also told her that the offender took all the money she earned working at the brothels except for tips and that she had taken RB’s passport.

Counts 3 & 6

Counts three and six related to the $45,000 AUD that each victim gave to the offender being the total earnings that they made by sex work during the time of their enslavement.

Victim Impact Statement of VP dated 11 July 2019

VP made a Victim Impact Statement dated 11 July 2019.
She told the court that she was always embarrassed and awkward when asked why she came to Australia. She did not know how to answer that question.
She felt psychologically hurt and heartbroken that she was deceived as to the number of clients she would have to service each day and the debt that she had to repay to the offender.
She vividly recalled the pain that she felt when required to use a sponge in her vagina and continue to work even when menstruating. This lead to a feeling of helplessness at not being able to say no and be in control of her own body. She believed that using the sponge had caused her a great deal of pain at the time. She believed it has contributed to the extremely debilitating pain that she now suffers when menstruating. Now when menstruating she cannot even walk without extreme pain for several days. She was crippled over in pain and unable to function. She did not have that problem before in Thailand.
She had been told by doctors that she needed surgery to remove what she referred to as membrane inside of her. She understood that that surgery would relieve the symptoms but had not had that surgery performed because she did not have the funds to pay for it. She could not afford to have time off work and if she had surgery she would have to live alone with no real support after the surgery.
VP said that she would have to live with the scar of this experience for the rest of her life. Even though she tries to forget about it is still with her. Whenever she speaks about it her voice becomes shaky and tears come.
Miss P had chosen to work as a sex worker in Thailand but did that work on her own terms. She was free to choose if she worked or not and how many customers she had each day. While she was under debt to the offender she was made to have up to 10 customers a day and to continue working when she was menstruating.
When she lived in Sydney she had a boyfriend Stefano however they broke up because his family could not accept the fact that she was a sex worker.
Miss P was not in a long-term relationship mainly because of being a sex worker and she did not have any children. She had not been back to Thailand and did not wish to return as she had no family to return to. Her mother had died when she was nine years old and she’d only seen her father once when she was 17 years old. She was brought up by her grandmother who passed away before she came to Australia.
Miss P said that her life had not been easy. Her mother passed away and she had to support her younger brother with her grandmother. She was no longer close to her brother. She had no real support from any family and had learned to survive financially by herself from a young age working as a waitress and as a singer. This had made her vulnerable to being brought to Australia and how she found herself in the circumstances with the offender.
Miss P felt she had few options after finishing her contract with the offender. She had little option but to continue to work in the sex industry. She had no visa permitting her to work and her limited English skills and lack of other life skills stopped her from obtaining further education or gaining other employment.
She had no referees or previous experience for what she referred to as normal job applications. She only finished school to year six in primary school as her family was so poor. Since she was 18 years of age she had worked in the sex industry which is not one you would record on your resume. She had no formal records and no group certificates. She worked in cash in hand business with no sick leave holidays or superannuation.
She now lived in share accommodation with other sex workers because it was difficult to get a lease in her own name. She did not have a credit history and did not have referees or a steady reliable income from a reputable source which she could use to verify any loan or lease application form.
She cannot work for a week during each month as she was incapacitated by the pain she experienced on menstruating. If she didn’t work she had no income to pay the rent and the bills.
Miss P said she was caught in a situation where she could not leave the sex industry and change her lifestyle because of being brought to Australia.
When she was in Thailand she never consumed any illicit substances however whilst working in Australia she had been exposed to recreational drugs. Many clients bring or wish to use drugs in the industry. She had started smoking methamphetamine in about 2012 and still used it recreationally.
She thought that using drugs helped her deal with her life and her situation and allowed her to continue to work. She would like to stop doing sex work but felt she had no choice.

General Commonwealth Sentencing principles

Commonwealth Sentencing Principles

Section 16A(1) Crimes Act1914 (Cth) provides that a court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a “severity appropriate in all the circumstances of the offence”. Section 16A(1) does not stand alone and should be read in conjunction with s 16A(2):” Wong v The Queen at [71] per Gaudron, Gummow and Hayne JJ.
S 16A(2) provides that in addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(a) the nature and circumstances of the offence;
(b) other offences (if any) that are required or permitted to be taken into account;
(c) if the offence forVPart of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence—any victim impact statement for the victim;

(f) the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;

(fa) the extent to which the person has failed to comply with:
(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976 or
(ii) any obligation under a law of the Commonwealth; or
(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;

about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;
(g) if the person has pleaded guilty to the charge in respect of the offence—that fact;
(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
(j) the deterrent effect that any sentence or order under consideration may have on the person;
(ja) the deterrent effect that any sentence or order under consideration may have on other persons;
(k) the need to ensure that the person is adequately punished for the offence;
(m) the character, antecedents, age, means and physical or mental condition of the person;
(n) the prospect of rehabilitation of the person;
(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

S 17 A(1) provides that,

“The court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.”

Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:

shall state the reasons for its decision that no other sentence is appropriate; and

shall cause those reasons to be entered in the records of the court.

Comparables

I have considered for this matter but note that they are scant in number and each set of facts is unique and varied.

Subjective features

The offender’s subjective features have been comprehensively detailed in:

The psychologists report under the hand of Dr Sam Colvin;

The references as follows:

Bencha Lapphochai

Tareenee Kanbut

Rachel Barton

Craig Alexander

Robert Charles Cornish

Pauline Beveridge

Psychological report

Dr Sam Calvin forensic psychiatrist has prepared a report dated 30 August 2019. Dr Calvin interviewed the offender on 9 August 2019 by way of AV link.
The offender was tearful throughout the interview and the Dr Calvin described her as distraught. Dr Calvin described it as a difficult interview as the offender found it difficult to communicate her emotions adequately. Dr Calvin considered that this may be due to cultural differences where physical symptoms are given predominance over psychiatric symptoms.
The offender described herself as feeling ‘dead inside, bleeding through her eyes’ with a sense of numbness. Dr Calvin was of the view that it was clear that the offender was feeling overwhelmed by the whole experience of her legal matters.
The offender told him that she was unable to express herself clearly during the trial as she had been overwhelmed by the process. She believed that the Court had heard one side of the story and that they had got it wrong.
The offender had met her GP earlier this year for treatment and a mental health plan was created however the offender was unable to attend these appointments. She thought that she may have been prescribed a sedative and medicine for her raised blood pressure.
The offender told Dr Calvin that this was her first time in custody and she spent most of her time in her cell isolating herself from others and is unable to eat anything or sleep well. She remained in a state of shock and was unable to communicate her feelings adequately.
The offender had tried to keep herself occupied by reading books but continued to have negative thoughts. She suffered a panic attack in the prison library and this had made her apprehensive about leaving her prison cell.
She said she continually thinks about her young son and her inability to care for him.
The offender denied any substance use stating that she had not used drugs alcohol or nicotine.
As for her medical history the offender has established diagnoses of hypertension, obesity, hypothyroidism and dyslipidaemia.
The offender told Dr Calvin that she was born in South Thailand the younger of two sisters. Her parents separated before she was born and her mother was unprepared to care for both children. The offender and her sister were subsequently moved to her maternal grandmother’s house where they grew up. Her family suffered significant financial challenges and often did not have enough money for food. She lived in a small house with three other aunties’ and an uncle.
When she was seven she dropped out of school as she was assisting her mother following the birth of another child. When she was 13 or 14 the offender started working on a rubber farm as a farm hand. She had to get up at 4.00 AM to walk to the rubber plantation. After a few years of this gruelling work she left and became an elderly lady’s caregiver.
When she was 18 she moved to Bangkok and worked in a watch shop with her uncle. She became skilled at repairing watches and started night school however this did not last very long as her uncle wanted her to marry one of his friends whom she refused to marry. Accordingly she ran away from this uncle.
The offender started working as a hairdresser and met her ex-husband who was a regular customer. Her ex-husband worked in the Army however the relationship quickly deteriorated as he was physically and emotionally abusive to her. He would lock her up at their home for a few days at a time.
The offender had two children with her ex-husband and they moved to North Thailand on his army posting. They opened a Thai restaurant which was very profitable however her relationship with her husband deteriorated further. He continued to be physically abusive frequently hitting her. She contracted a sexually transmitted disease from her husband and decided to leave the relationship and move to Japan.
The offender worked in the building industry in Japan for eight years visiting Thailand intermittently. The children were being cared for by her mother in Thailand.
When she was working in Japan the offender came to Australia for a holiday. She decided that she would like to get her children into school here. During her stay in Australia she met Richard Barton who became her de facto partner. She decided to settle in Australia. She subsequently had a son Nathanial with him.
They separated amicably after being together for a few years. The offender became the carer of Mr Barton’s elderly mother.
The offender suggested that Nathanial had developmental issues which was challenging for him. Nathanial is now 14 years old and lived with his father.
As previously noted Dr Calvin found the interview difficult and slow. The offender was tearful nonetheless she was cooperative throughout and engaged well with the process.
The offender described herself as feeling ‘sad’. She had lost hope and felt overwhelmed. Dr Calvin thought that the offender’s judgement was adequate and she displayed reasonable insight into her predicament.
The offender’s general practitioner Dr Saddam Abdul Rahim had noted in February of this year that the offender had been feeling depressed, anxious and nervous with panic attacks. He also noted a history of hypertension, obesity subclinical hypothyroidism and dyslipidaemia. There was a provisional diagnosis of depression anxiety disorder and panic attacks in the preceding six months. On the Kessler Psychological Distress Scale the offender scored 38/50 indicative of severe distress.
Over the last six months the offender had displayed persistent symptoms of depression and anxiety along with panic attacks. The symptoms of depression have progressed from a stress-related adjustment disorder to a more severe depressive episode. Dr Calvin wrote that the offender meets the DSM-5 criteria for major depressive disorder.
The offender had no history of depression but the legal processes and her incarceration have contributed to her feeling overwhelmed and depressed. It appeared that the offender was in denial about her legal problems and had not coped well with imprisonment. The established diagnosis of Hypothyroidism may contribute to the worsening of the depressive episode.
Dr Calvin suggested to the offender that she discuss with her doctors in prison about commencing an antidepressant. This would need ongoing monitoring and psychotherapy to help her cope with anxiety.
Dr Calvin was of the view that the offender’s position was likely to worsen especially during the early stages of her incarceration. He was of the belief that the offender would need assistance to find acceptance of her legal situation.
He was also of the view that the prison environment was likely to be more onerous for her compared to somebody without a depressive episode. The offender will need ongoing support from the prison mental health services in the long term the offender must engaged with a psychologist to assist her in attaining remission and to improve her coping skills during periods of stress.

References

Bencha Lapphochai

Ms Bencha Lapphochai provided a reference to the Court dated 23 August 2019. Ms Lapphochai was a good friend of the offender since 2007. Ms Lapphochai was aware of the serious nature of the charges that the offender was facing and that she was presently in custody.
Ms Lapphochai first arrived in Australia in 2004 as a student studying English and management. She met the offender at a Thai Buddhist temple at Annandale. They got along very well and Ms Lapphochai became very attached to the offender’s son Nathanial.
The offender would invite her to her home and teach Ms Lapphochai how to cook. A close friendship developed. The offender cooked delicious meals for her and were sometimes joined by the offender’s daughter Apple and Nathanial. Ms Lapphochai would do the offender’s hair and look after Nathanial from time to time.
When Ms Lapphochai first came to Australia she did not know anyone here. The offender helped her a lot and gave her the necessary skills to get by. In Thailand the community and friends help one another a lot. The offender explained cultural differences to Ms Lapphochai and encouraged her to become more independent and support herself. Ms Lapphochai believed that the offender, in encouraging her to become self-reliant and independent, was reflecting a part of her own character in which she always tried to get by on her own and did not wish to ask for help.
The offender looked after Ms Lapphochai’s mother when she came to visit Australia. Her mother could not speak English and the offender was concerned for her mother being alone in Australia without proper English skills.
When Ms Lapphochai told the offender that she was getting married the offender offered her own wedding dress for her to wear. After Ms Lapphochai’s wedding her opportunities to come to Sydney were reduced nonetheless she kept in touch with the offender by phone and social media.
In September 2018 Ms Lapphochai had visited the offender in Parkes where she lived and was a carer for Mrs Hazel Barton. Mrs Barton was 95 years old and has since passed away. The offender was very caring for Mrs Barton and worried about her. She was very patient with her. Mrs Barton described the offender to Ms Lapphochai as loving, caring and would always put other people before herself. This was a view that Ms Lapphochai totally agreed with.
Ms Lapphochai said that the offender has a good heart. She is straightforward, very hard-working generous and sincere. She had never heard the offender speak badly of anyone. Ms Lapphochai trusted the offender who had given her moral support and good advice when she broke up with her ex-boyfriend. The offender cared for other people and shared her food and clothes even though she herself did not have very much at all. The offender likes to help people no matter who they are and this had led her sometimes to being used by others.
The offender worries a lot about Nathanial and particularly so because he had some issues with mental and behavioural problems. The offender had told her that Mr Barton had broken her heart and was not really a close parent for Nathanial. Ms Lapphochai had observed for herself that that seemed so as he always seemed busy with something. Ms Lapphochai described the offender is being very close to her son. Ms Lapphochai is of the view that the offender does not want those that she loves to worry about her situation and that she struggles with her problems but does not want to worry others with them. Finally Ms Lapphochai believes that the offender would never commit offences in the future.

Tareenee Kanbut

Tareenee Kanbut has provided a reference to the Court dated 3 September 2019. Tareenee Kanbut is the daughter of the offender. She is also known by the English names of Abbey or Apple. She is 33 years of age, married and has a daughter who is 12 years of age.
Tareenee Kanbut works as a bartender at the Star city Casino and has no criminal history which is of course a requirement for the position that she holds. During her previous job she was promoted to the position of manager at that establishment.
Tareenee Kanbut is aware of the offences for which the offender has been found guilty. She knew that the matters related to 2 women in 2004 and 2005. She had supported her mother in the lead up to the trial and was present in Court on many days.
Tareenee Kanbut is the younger of the offenders’ two children from her first marriage in Thailand. She has a brother Tom who lives in Thailand and is married. Tareenee Kanbut also said that her half-brother Nathanial lives with his father Richard in Parkes New South Wales.
Tareenee Kanbut tells me that the offender had a very tough life. She had sacrificed her education so that her sister who had health problems could go to school. The offender worked in any way she could to help the family survive. She would find fruit and vegetables to sell at the markets, cook and do housework cleaning and washing clothes. When it came to her own children she applied this same selflessness and did everything she could to give her children the best life and education possible.
The offender comes from a large family in Thailand. In Thai culture families help each other and rely on one another for many things. The offender had brought her cousin Wichuda Kaewwilad to study in Australia as well is her own children.
They arrived in Australia in March 2001. When Tareenee Kanbut was 16 years old her mother’s sister also came to Australia. Over the following years in Australia they depended very heavily on the offender as they were in a foreign country that they did not know. The offender always ensured that the children had food waiting for them when they finished school. The offender was a very good cook and got a lot of happiness from cooking and providing for others. She also enjoyed doing an English language course in Australia and gained more confidence as the head of the family. Nonetheless Tareenee Kanbut tells me that the offender found it difficult living in Australia compared to Thailand principally because of the lack of family support.
The offender eventually moved back to Thailand with Nathanial to live when Nathanial was in primary school. He had some learning difficulties and the offender thought it was better to go back to Thailand where things would be easier for her. She had family and understood the language better there particularly when trying to understand the medical terminology concerning Nathanial.
Eventually the offender came back to Australia so that Nathanial could have a better education. She also came back to look after Richard Barton’s mother who had become ill. In Thai culture Tareenee Kanbut told me that they look after their elderly family and the community supports each other very much.
Since the offender has been in jail Tareenee Kanbut talks to her mother once every two weeks. She tells me that the offender is very sad and always asks after Nathanial who she doesn’t get to speak to her very often.
Tareenee Kanbut tells me that Nathanial’s father is very busy and does not have a lot of time for him. Sometimes he takes Nathanial out of school if it’s inconvenient for him and as a result Nathanial misses out on days of school at a time.
The offender paid for her children and her niece to do English courses when they first moved to Australia. Those courses were expensive and accordingly the family had to live a simple life so that the fees could be paid. Tareenee was able to complete the English courses and now lives in Australia permanently. She can now speak English well because of the education that the offender provided for her.
The offender was committed to her children and to giving them a better life. Tareenee Kanbut was shocked at the guilty verdict and was saddened that her mother would have to spend more time in custody. The offender was a giving and kind person. She was totally confident that this is the one and only time that the offender would ever be before a court for a criminal matter.
Tareenee Kanbut was also very upset at the prospect that that even if the offender did not commit any further offences nonetheless she will spend time in custody and will be deported back to Thailand as she is not an Australian citizen. Nathanial would be stuck here in Australia as an adolescent and young adult while his mother is either in jail or sent back to Thailand. This is very painful for the offender and she is reminded of this every single day.

Rachel Barton

Rachel Barton has provided a reference to the Court dated 2 September 2019. The offender is the ex-partner of her father Richard Barton. Ms Barton is 31 years old and has a 12-year-old son from her former marriage. She has no criminal record. She is employed full-time as a nurse in Brisbane.
Ms Barton is aware of the charges upon which the offender was found guilty. Ms Barton knows the offender both through family and as a friend. She has known the offender since approximately 2003 from the time Nathanial was born in 2004. She had visited the offender in Sydney and stayed with her approximately three times a year until 2010. She was aware that the offender had moved back to Thailand when she was facing some personal difficulties. When she had visited the offender in Thailand she stayed with her in her family home. When the offender and Nathanial returned to Australia they stayed with her.
Ms Barton tells me that the offender is a kind and generous person. Her home was always full of people for whom she cooked meals and went out of her way to make people feel welcome in her home. She was kind natured to anybody she had contact with.
The offender had adopted an older Thai national because that woman had no family of her own. The offender was especially kind to the elderly. Ms Barton tells me that the offender is a generous and caring person. She is genuinely of the view that others can have a better life if given the opportunity. The offender came to Australia because she wanted her two older children Tom and Apple to have access to good education and a better life than what she had had.
She returned to Thailand with Nathanial when he was young and began studying farming and how to run a rubber plantation. She was a hard worker and had always been focused on providing for her family.

Ms Barton says that her grandmother Hazel Barton was an English woman who the offender held in high esteem. When her grandmother’s health deteriorated with old age she needed caring for. She did not want to go into a nursing home. The offender returned from Thailand to come to rural New South Wales to care for her grandmother until she died in late 2018.
The offender also wanted Nathanial to have access to good education here in Australia. The offender has faced many hardships in her life but her inner strength had seen her through them. Her children are her inspiration.
Miss Barton said it’s not easy to be a Thai woman in rural NSW in towns like like Parkes but the offender’s love for her family had made it easier. Ms Barton tells me that Mrs Barton senior could be somewhat racist nonetheless the offender always treated her with the utmost love care and respect.
The offender had not had it easy as a single mother and Ms Barton said that her own father Richard is not a responsible or a reliable man. Accordingly the offender had to be the sole carer of Nathanial for his entire life. Nathanial has extra needs and the offender has always provided the extra support that he needed.
Ms Barton worries for Nathanial being without the offender’s assistance. The offender is as an excellent mother. The offender studied farming in Thailand and worked very hard on a rubber plantation of her own to grow that business from scratch. She had also done formal training in traditional Thai massage and had worked as a masseuse. She provided amazing care for her grandmother and was an excellent mother to her three children. The offender has a strong work ethic that is driven by wanting to provide for her family.
Even though Ms Barton had the offences explained by the offender’s lawyers she could not quite believe that the offender had been found guilty of the offences. She believed it is relevant to think of the cultural differences and difficulty for some people immigrating to Australia. She could not reconcile the facts with the person that she knew and was left in disbelief.
Ms Barton reaffirmed that the offender’s family was the most important aspect of her life and she loved them very much. She was also very worried about Nathanial not having his mother to take care of him. She believed that her absence would be detrimental to his health. She also was of the view that the offender would be extremely motivated not to commit any further offences.

Craig Alexander

Mr Craig Alexander has provided a reference to the Court dated 28 August 2019. Mr Alexander is a director of a real estate agency in Port Macquarie and has a degree in accountancy and a postgraduate diploma in computing. He is married with children and no criminal record.
He was aware of the nature of the offences of which the offender had been convicted although he expressed that he was very shocked to learn of these offences.
Mr Alexander first met the offender in the early 2000’s because of her entering a relationship with Mr Barton who was his long-term friend. He had remained friends with the offender and Mr Barton since he had known them.
He described the offender as a very welcoming lady and she was always prepared to help anybody with an open door policy for their home. This was particularly hard for him to reconcile with the nature of the offences which involved putting others under duress for the purpose of sexual slavery.
He was of the view that this was totally out of character for the offender who was always kind and offered shelter and a meal and was generous and kind to others. Mr Alexander said that the offender is a gentle, thoughtful, honest and caring lady.
He had come to know that the offender had had a terrible life as a single mother before Nathanial was born. He understood that her early life was very difficult and her former husband was unkind to her and she had generally lived a life of adversity in Thailand.
In spite of that adversity the offender had a gentle soul was struggling to learn English and yet she always tried her best to help others and spite of the language and cultural difficulties. Mr Alexander described Mr Barton as his close friend and a wonderful man but suffered from attention deficit disorder. The offender had been a wonderful stable influence to Richard and provided a home, lovely meals and a relaxed sense of humour over everyday issues. He never saw the offender angry nor did he ever see her acting any way contrary to another’s best interests.
He described her as a giving person who asked for nothing in return. He said the offender worked very hard to support her family. She was loyal and trustworthy. Even though the offender never had much money if she had a bowl of rice and vegetables she was always prepared to share it with others.
Mr Alexander said that albeit it would have probably been easier for the offender to stay in Thailand for her own and Nathanial’s needs nonetheless she returned to Parkes to care for Mr Barton’s elderly mother. He was also of the view that the offender brought Nathanial back to Australia for his English development and his education. If the offender had been a selfish person she would have stayed in Thailand but she’d put Nathanial and Richard’s elderly mother first and returned to Australia.
Mr Alexander described the offender as very caring and loving prepared to look after an elderly woman in rural New South Wales in the last years of her life. She was patient in an often thankless job. She had dedicated her whole life to raising and caring for Nathanial. Mr Alexander had no doubt that Nathanial will suffer while the offender is in custody. Nathanial already has anxiety and confusion issues. The offender had been one stable part of his life and now that that was removed he was not coping well.
Mr Alexander did not think that Mr Barton was very close to Nathanial. Richard is often distracted and lived in his own world with his own priorities. Richard was a little scatterbrained and highly distracted. Mr Alexander was very much of the view that Nathanial needed his mother now more than ever.
He was of the view that although well-intentioned Richard Barton was not able to provide him the security and stability that Nathanial required. Mr Alexander said that although he had not spoken to the offender since she been in custody he was sure that she would be under enormous stress from being separated from her family.
Mr Alexander believed that the offender would not engage in further offences and that her only wish would be to live her life peacefully and quietly with her family.

Robert Charles Cornish

Robert Charles Cornish has provided a reference to the Court dated 28 August 2019 he is presently a pensioner but had previously been a director of a consulting company in the finance and insurance industry. He was a separated man with two adult daughters. He had no criminal record.
Mr Cornish was aware that the offender had been convicted of the offences presently before the Court. He had a general understanding of the facts behind the offending behaviour. He was totally shocked and saddened to learn of these offences.
Mr Cornish first met the offender in 2008 through Richard Barton. The offender was welcoming and always wanted to help people. He had seen Nathanial recently in Sydney over the long period of the trial. He thought Nathanial had changed so much from the fun loving boy he used to see as he was growing up. These days Nathanial is very quiet and sombre. His voice has lost any expression and he demonstrates that he is extremely traumatised over what is happening to his mother.
Mr Cornish tells me that the offender was totally devoted to Nathanial she loved him very much and they were very close. He described shortcomings with Mr Barton in respect to the way he related to those he loved. Mr Cornish asked or hoped that the Court would consider when sentencing the offender that she was a caring compassionate and giving person throughout her life.

Pauline Beveridge

VPauline Beveridge is a pensioner and is a retired teacher’s aide and formerly a Justice of the Peace. She had no criminal record she has two adult children. Mrs Beveridge knew the offender as she was the carer to her older sister Hazel Barton for the last three years.
She had known the offender for 11 years but did not see her for a period of five years when she returned to Thailand to seek assistance from Thai doctors whom she could understand better. This was with respect to problems that Nathanial had experienced.
She said that the offender would offer to give her massages as she suffered badly from arthritis and stiff joints. Ms Beveridge explained the situation that had arisen with respect to Nathanial. The school counsellor had been monitoring him and recommended that his parents take him to a psychologist and psychiatrist for examination. They had four visits one of which Ms Beveridge accompanied them with. Ms Beveridge tells me that Nathanial had issues and whilst the offender attempted to understand them she became increasingly frustrated at her lack of Engl. In the end she decided to go back to Thailand so that she could understand the prognosis that her son was facing in her own language. That was in February 2010.
Subsequently Nathanial was diagnosed as having attention deficit and hyperactivity disorder and was put on Ritalin for three years. At that time he lived in Thailand with his maternal grandmother, his mother and extended family members. When Nathanial returned to Australia in early 2016 it was considered that he no longer suffered from his ADHD issues.
Mrs Beveridge tells me that her sister Hazel Barton loved the offender as a daughter and many times during their phone conversations she would praise the offender’s virtues. Mrs Barton told Ms Beveridge that the offender did the housework, gardening, shopping and would always keep an eye out for bargains either in food or clothing. As Mrs Barton was on a pension she was always grateful for the offender’s thriftiness.
Mrs Barton told Ms Beveridge that without the offender she would have had to sell her home and move into a nursing home which she would have hated. She said the offender has always been caring and loving and nothing for her was too much trouble. At Hazel’s funeral the offender slipped away from the service and went and bought and prepared loads of food for the friends and relatives after the funeral service.
Mrs Beveridge tells me that she was appalled to hear that the offender had been arrested and convicted for sex slavery involving two Thai nationals. She could not believe it and could not reconcile the convictions with the person that she had come to know very well over many years.
Ms Beveridge tells me that the offender is a woman to be treasured and she asked and hoped that the offender receives justice tempered with mercy; justice that recognised the valuable contribution and redeeming nature of a very conservative old world Buddhist practitioner.
Ms Beveridge said that the offender had given comfort and service to so many over her life and so many people that she had met speak very highly of her.

Report of Dr Paul Bloomfield

Dr Paul Bloomfield in a report dated 2 August 2019 has set out some of the medical issues concerning Nathanial Barton. Dr Bloomfield is a paediatrician and clinical lecturer in the School of Rural Health at the University of Sydney.
Dr Bloomfield tells me that Nathanial Barton has been his patient since February 2017. He has provided assessment and management advice regarding:

severe anxiety;

social difficulties with features suggestive of autistic spectrum disorder (formal diagnosis not confirmed);

oesophageal achalasia requiring surgery;

schooling difficulties.

Nathanial displayed difficulties in early development including language and social interactions. During his early childhood Nathanial and his mother lived for some time in Thailand. The offender has subsequently remained Nathanial’s primary carer since returning to Australia.
Nathanial has required substantial support with development learning and anxiety management. The offender has attended appointments and followed advice from medical and allied health specialists.
Nathanial is enrolled with the support unit at Parkes High School and also had received substantial support during primary school.
Nathanial experienced significant difficulties with eating and swallowing in 19 in 2008 which resulted in him being diagnosed with oesophageal achalasia which caused dramatic weight loss.
Surgery was performed with a pleasing outcome but the recovery process required frequent appointments, careful observation of his eating and general health all of which the offender closely and appropriately supervised.
Dr Bloomfield said that Nathanial’s father has experienced difficulties financially with employment and his health. He has a limited capacity to provide continuous care for Nathanial. This had increased the demands on the offender who is effectively his sole carer for long periods of Nathanial’s childhood.
Nathanial continues to experience long-term severe anxiety. Treatment for this has included psychological therapy and medication.
Dr Bloomfield was hopeful that Nathanial’s needs could be considered in the sentencing process to minimise the impact on his health and development from his mother’s incarceration. He was willing to provide further details on request with permission from Nathanial’s parents.

Submissions by Counsel

Crown Submissions

The Crown reminded the Court that the offender had pleaded not guilty to all of the charges and stood trial.
The jury returned a verdict of guilty in relation to all counts on the indictment on 15 May 2019 whereupon the offender was taken into custody.
The offender has been in custody since that date.
The Crown reminded the Court of section 17 A of the Crimes Act 1914 (Cth) which requires a sentencing court to consider all available sentences and only sentence to imprisonment when no other sentence is appropriate in the circumstances.
The Crown submitted that the only appropriate sentence is one of full-time imprisonment with an immediate term of custodial imprisonment served by way of a non-parole period.
The Crown submitted that the Court must sentence the offender in accordance with Part 1B of the Crimes Act. The Court must impose a sentence that is “of a severity appropriate in all the circumstances of the offence” and all of the factors relevant under section 16A (2).
The Crown submitted that general deterrence must form part of the sentencing court’s consideration and referred to the introduction of the Crimes Legislation Amendment (Powers offences and other measures) Act 2015 (Cth) to introduce section 16A to JA which explicitly specifies that general deterrence is a sentencing factor. Nonetheless I accept that general deterrence has always been a factor in the purposes of sentencing.
It was submitted by the Crown that general deterrence is of great importance in offences relating to human slavery. See the Queen v Wei Tang 2009 23 VR 332.
The High Court acknowledged that slavery offences under the criminal code are part of Australia’s involvement in the international movement to suppress and prevent human slavery.
Gleeson CJ stated at [34] that the definition of slavery in section 270.3 was to give effect to Australia’s obligations under the 1926 Convention to suppress the slave trade and slavery.
The construction of article 1 of the 1926 slavery convention’s stated aim was to secure the complete suppression of slavery in all its forms and to prevent forced labour from developing into conditions analogous to slavery.
Hayne J at [136] stated “as Gleeson CJ has pointed out the purpose of the convention was to suppress the slave trade and slavery it was directed to both the status of slavery and the condition of slavery.”
The Crown reminded the Court that one of the stated aims of the prohibition on slavery as acknowledged in the legislation was to send a firm message to the organisers and recruiters that Australia will not be a destination for their trade. “We will also encourage the rest of the world to do the same. Australia can be justly proud if it shows leadership to other countries affected by this inhumane trade.”
Parliament further acknowledged that the provisions were aimed at combating the “abusive trade that dramatically undermines basic human rights” and slavery provisions ensure “that the traffickers the financiers, managers and the organisers of this insidious trade cannot slip through the net.”
It was submitted by the Crown that for those above reasons general deterrence had an important role to play in sentencing the offender for the slavery offences in particular.
The Crown submits that the offending behaviour is serious.
The Crown submits that Counts 1 and 2 concern the offender’s possession and use of VP as a slave and Counts 4 and 5 concern the offender’s possession and use of RB as a slave.
The Crown referred to R v Wei Tang [2009] VSCA 182 where the Court of Appeal stated at [41]:

‘The enslavement of the women robbed them not only of control over their lives but of control over their bodies. They were dehumanised. They became mere profit making machines for the applicant.’

The Crown also referred the Court to Sieders and Somsri v R [2008] NSWCCA 187 at [228] which stated as follows:

‘For someone to be denied personal freedom, concerning so intimate a matter as with whom and under what circumstances they will have sexual relations is an inherently serious matter.’

The Crown submits that in relation to Counts 1 and 2 the offending conduct was objectively serious because it:

deprived VP of her liberty;

resulted in VP having no choice but to work as a sex worker until her debt to the offender was paid;

resulted in VP having no choice but to work at brothels that the offender had organised in circumstances where VP had been physically abused by a number of clients;

resulted in VP having no choice as to the hours or days that she worked;

resulted in VP being required to live with the offender;

resulted in VP being unable to leave as she did not have a passport or money;

spanned over a number of months;

was premeditated and planned offending behaviour; and

was undertaken for the offender’s own financial benefit.

In their written submissions the Crown accepted that:

VP knew when she came to Australia that she was going to work as a sex worker;

VP wanted to come to Australia so she could see another country as she had never been overseas before;

VP knew that she would have to pay something to the offender but she did not know exactly how much nor her working and living conditions.

In cross examination she was asked “ultimately you would have to pay something to Mr Chang for helping you come to Australia” VP answered “I didn’t know if I had to pay anything but I knew that once I got to Australia I had to pay a person named Rung something”.

In relation to counts 4 and 5 the Crown submitted the offending conduct was objectively serious because it:

deprived RB of her liberty and freedom;

resulted in RB having no choice but to work as a sex worker until her debt to the offender was paid;

resulted in RB having no choice but to work at the brothels and on the days that the offender wanted her to work;

resulted in RB being required to live with the offender;

resulted in RB being unable to leave as she did not have a passport or money;

it spanned over a number of months;

was premeditated and planned offending behaviour; and

was undertaken for the offender’s own financial benefit.

The Crown accepts that RB knew when she came to Australia that she would be sex worker. Furthermore RB knew that she would owe someone money when she arrived in Australia. What she did not know was to whom or how much money was owed.

In relation to Counts three and six relating to the dealing with money that was the proceeds of crime namely of the slavery offences concerning VP and RB respectively the Crown submitted the offending was objectively serious.
It spanned a number of months and included the offender receiving money from VP and RB after every shift they worked as a sex worker.
The Crown further submitted that there were no other offences that the Court was required or permitted to take into account.
The offender does not have a criminal history.
The Crown submitted that offences 1, 2 and 3 were committed over approximately five months and counts 4, 5 and 6 were committed over approximately four months.
It was submitted that the offender’s conduct was planned and premeditated.
It was noted that VP had made a victim impact statement whilst RB had decided not to.
It was noted that section 16 A(2) (ea), s 16 AAA and s16 AB of the Crimes Act came into effect by virtue of Crimes Legislation Amendment (Law-Enforcement Integrity) Vulnerable Witness Protection and Other Measures Act 2013 and only applies to offences that occurred on or after 29 June 2013.
It was submitted that these sections cannot be relied upon as the offences before the Court occurred well before 29 June 2013.
The Crown submitted that nevertheless that any harm to the victim is a mandatory consideration in determining the sentence to be imposed under section 16 A(2)(d) and 16A(2)(e): see Regina v Nahlous 2013 NSWCCA [90] at [94].
The Crown submitted that the offender had shown no contrition with respect to the offences and that she had not co-operated with law enforcement authorities.
It was submitted that given that the offender had exploited the liberty and freedom of two vulnerable female victims for her own financial gain there was a need for specific deterrence.
The Crown also pointed out that the maximum penalty for counts 1, 2, 4 and five is 25 years imprisonment and the maximum penalty for counts three and six is 10 years imprisonment.
The maximum penalty provides a yardstick for appropriate sentences but of course must be balanced against all the other relevant factors.
The Crown submitted that pursuant to section 16A(2)(m)(n) & (p) the Court must take into account the character, antecedents, age, means and physical or mental condition of the person, the prospects of rehabilitation and the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents.

Defence Submissions

Defence have submitted that the objective seriousness of the matter is difficult to assess as there are so few slavery matters. It is accordingly difficult to assess what a typical matter involves.
The maximum penalty and the other cases provide a guidepost with R v Wei Tang being the closest factually to the matter before the Court albeit that matter was a bigger operation with more counts.
It was submitted that with respect to the Victim Impact Statement of VP there was no medical evidence to establish a causal link between the menstrual pain that she suffered and the actions of the offender.
Defence also reminded the Court that I must be satisfied beyond reasonable doubt of any factor that may serve to aggravate the objective seriousness of the offending.
It was submitted that on a common sense basis the time that each victim spent as a slave was reasonably short and VP had been involved in this type of work over a substantial period of time.
It was also submitted that each victim was allowed a certain amount of time to go out which on the defence submission ameliorated the objective seriousness of the offending.
It was submitted that the Court would accept that all cases of this type would be viewed seriously however to fully assess the degree of seriousness it was important to determine what was the role of the offender.
Given the time frame of the offending, being 20 November 2004 until 15 May 2005 for VP and 22 March 2005 until around 15 July 2005 for RB it was submitted that the Court could take the view that the time frame was quite short.
It was also submitted that the significant effluxion of time since the end of the offending period and the matter now being before the Court some almost 15 years later may be a relevant consideration particularly as to rehabilitation.
It was submitted that this was not a situation where the offending behaviour stopped due to police intervention. It follows that it must have stopped because she chose to stop.
In the intervening 15 years the offender has not offended.
With respect to the role of the offender it was submitted that the legislation is designed to stamp out the recruiters and maybe those who assist them. It was submitted that the offender was not involved in recruiting victims. On the other hand what she had done was to provide the victims with somewhere to live and provide them with items for work.
It was submitted that they were not locked up during their time with the offender.
Some of the money was sent back to the victims’ families and some would have been used to offset their airfares and clothing.
The Defence submitted that the objective seriousness of the facts fell below the mid-range.
With respect to the proceeds of crime offences it was submitted that the Court could rationally and easily come to the view that the money largely ended up with Mr Chang and accordingly the benefits to the offender were reduced.
It was submitted that whilst the offender may have had what was described as a ‘hands on role’ she was not without compassion for the victims. Moreover she was lower down the ranking with respect to other participants who may have otherwise sat in the chain.
It was submitted that the evidence was unclear as to her husband’s role and it was submitted that the Court could not be satisfied beyond reasonable doubt that he was recruited into the operation.
It was submitted that the Court would determine a sentence appropriate to the circumstances of the offending.
It was conceded that the threshold for a custodial sentence had been crossed but notwithstanding that concession the sentence imposed need not be a significant sentence.
Mr Clarke accepted that the test for hardship was the test of establishing exceptional circumstances. Mr Clarke reminded the Court that, even though the Crown submitted that this was not established on the facts before the Court, he did not accept that and accordingly urged the Court to reject the Crown submission.
Mr Clarke submitted that with respect to Nathaniel, the son of the offender, he was not in the situation of an ordinary young man as he had far more difficulties in his life. Mr Clarke submitted that even if it may not necessarily amount to exceptional circumstances nonetheless it was a factor in the general mix.
Mr Clarke submitted that the evidence established that the offender’s son’s condition was far more significant which took the submission onto another level far above the descriptor ‘unfortunate circumstances’.
With respect to Nathaniel if you gauge what the effect of the offender’s incarceration was on him it could only be assessed as a significant impact on a 15 year old who had had the offender in his entire life.
With respect to rehabilitation it was submitted that there was a clear indicator that rehabilitation had already taken place and that now the offender was what Mr Clarke described as ‘an older lady’.
Mr Clarke reminded the Court of the offender’s Thai nationality, her clean record and her prior Australian residency.
Mr Clarke admitted that one recognised the need for general deterrence with an offence of this type but given the offender’s prior good character and her already established rehabilitation the need for specific deterrence was a low priority.
Mr Clarke submitted that any specific deterrent effect of the sentence could not be felt any more on her that what she feels herself. This was so particularly the feeling that she cannot be a mother to her children, mostly Nathaniel.
He submitted that this has caused her a feeling of helplessness and it followed that her time in custody would be harder on her than on another.
Mr Clarke conceded that the as the Crown submitted the ‘use’ offences may be more serious than the ‘possess’ offences but that they were so ‘overlaid with each other in time’ that the need for accumulation was minimal.
Accumulation on too greater scale would ‘bump up’ against the totality principle such that one could easily get to a point wherein any sentence which was not careful about accumulation ‘would very easily get to a point that the sentence would go beyond the criminality involved.’
Mr Clarke urged that accumulation be kept to a minimum and that with respect to the money laundering offences the accumulation should be ‘pretty minimal.’
Mr Clarke submitted that whilst there would be ‘no soon starting point in the non-parole period’ nevertheless there needed to be a sentence which reflected the criminality of the offending.
The defence also made submissions on the subjective features of offending. Mr Clarke submitted that the subjective case that the offender put before the Court was excellent.
She had demonstrated significant rehabilitation and all of those factors would drive the sentence downwards.
Mr Clarke submitted that as long as the term of imprisonment reflected the criminality there was an indeterminate lower range in which the Court could impose a sentence which would provide a pathway of some hope to the offender and allow her to become a contributing, law abiding member of the community.
It was submitted that given the totality of the subjective material before the Court the offender should be released back into the community sooner rather than later.
Defence counsel referred the Court to 2 comparative cases.

General and Specific deterrence

Slavery derogates fundamentally from the human condition and takes away basic human rights. Slavery reduces those who are subjected to it to being little more than a commodity. Those who choose to involve themselves in slavery reap significant financial benefit at the great cost of those enslaved. A society which fails to denounce slavery is gravely diminished.
It is without doubt that general deterrence is therefore of great importance in sentencing offences relating to human slavery. General deterrence is accordingly an important factor in this sentencing exercise.
Whilst I note the defence submissions with respect to specific deterrence, that the offender has punished herself and no punishment from the Court could mete out what she has self-imposed, nonetheless given that the offender has exploited and denied the liberty and freedom of VP and RB for her own financial gain there is still need for specific deterrence.

Remorse/Rehabilitation

There is no evidence before the Court with respect to any remorse demonstrated by the offender.
As to rehabilitation I note that the offender comes before the Court with no prior record.
She has not offended since these matters which bring her before the Court and I note that they occurred some 15 years ago. This is a positive matter that I take into account in the offender’s favour.
Her referees speak very highly of her kindness, her generosity and her loving and giving nature.
Her role of carer towards the elderly and frail Mrs Hazel Burton speaks powerfully and eloquently of how positively she can contribute to society.
The offender has not had an easy life but has overcome many disadvantages and worked very hard to educate and provide the very best opportunities for her children ostensibly as a single parent.
In many ways as some of the authors of the references have stated it is very hard to reconcile these most positive references that the Court has before it with the offending behaviour.
The Court accepts unreservedly Mr Clarke’s submission that the offender presents with very positive prospects for rehabilitation. Accordingly the Court finds that the offender does have positive prospects for rehabilitation.
This must ameliorate the sentence.

Objective Seriousness

Defence have submitted that the objective seriousness is below the mid-range.
The Crown submits that all of the offending is serious.
Counts 1 and 2 concern the offender’s possession and use of VP as a slave.
The Crown further submits that Counts 4 and 5 concern the offender’s possession and use of RB as a slave.
Counts 3 and 6 concern the offender’s dealing with the proceeds of crime namely the two sums of cash which were paid over to the offender by each complainant as repayment for the debt owed. Each debt was assessed at $45,000 with some additional sums for payment to the girls’ families in Thailand.
The Crown referred to R v Wei Tang [2009] VSCA 182 the Court of Appeal stated at [41]

‘The enslavement of the women robbed them not only of control over their lives but of control over their bodies. They were dehumanised. They became mere profit making machines for the applicant.’

The Crown also referred the Court to Sieders and Somsri v R [2008] NSWCCA 187 at [228] which stated as follows:

‘For someone to be denied personal freedom, concerning so intimate a matter as with whom and under what circumstances they will have sexual relations is an inherently serious matter.’

The Crown submits that In relation to Counts 1 and 2 the offending conduct was objectively serious because it:

deprived VP of her liberty;

resulted in VP having no choice but to work as a sex worker until her debt to the offender was paid;

resulted in VP having no choice but to work at brothels that the offender had organised in circumstances where VP had been physically abused by a number of clients;

resulted in VP having no choice as to the hours or days that she worked;

resulted in VP being required to live with the offender;

resulted in Miss P being unable to leave as she did not have a passport or money;

spanned over a number of months;

was premeditated and planned offending behaviour; and

was undertaken for the offender’s own financial benefit.

In their written submissions the Crown accepted that:

VP knew when she came to Australia that she was going to work as a sex worker;

VP wanted to come to Australia so she could see another country as she had never been overseas before;

VP new that she would have to pay something to the offender but she did not know exactly how much nor her working and living conditions. In cross examination she was asked “ultimately you would have to pay something to Mr Cheyne for helping you come to Australia” VP answered “I didn’t know if I had to pay 10 anything but I knew that once I got to Australia I had to pay a person named Rung something”

In relation to counts 4 and 5 the Crown submitted the offending conduct was objectively serious because it:

deprived RB of her liberty and freedom;

resulted in RB and having no choice but to work as a sex worker until her debt to the offender was paid;

resulted in RB having no choice but to work at the brothels and on the days that the offender wanted her to work;

resulted in RBand being required to live with the offender;

resulted in RB and being unable to leave as she did not have a passport or money;

it spanned over a number of months;

was premeditated and planned offending behaviour; and

was undertaken for the offender’s own financial benefit.

The Crown accepts that RB knew when she came to Australia that she was going to work as a sex worker. Furthermore RB knew that she would owe someone money when she arrived in Australia but she did not know who or how much money she would owe.
In relation to counts three and six relating to the dealing with money that was the proceeds of crime namely of the slavery offences concerning VP and RB respectively the Crown submitted the offending was objectively serious because it spanned a number of months and included the offender receiving money from VP and RB after every shift they worked as a sex worker.

Findings as to objective seriousness

I find that Count 1 and 2 largely overlap in time and circumstance nonetheless as the authorities state they refer to two discrete offences.
I find that Count 1 is somewhat less serious than Count 2.
I find the following:

VP was deprived of her liberty for about 5 months from late November 2004 until about mid May 2005 which is not an inconsiderable period of time;

VP was required to live with the offender;

VP could not leave the offender’s effective custody as the offender had taken her passport;

VP could not run away because Chang had previously taken photos of her naked and had told her that he would use them to compromise her should she run away. The offender knew about this and benefited from it;

additionally the offender threatened VP with violence if she were to run away and not complete repayment of her debt;

VP had to work at brothels that the offender organised;

sometimes VP was physically abused by clients;

the offender knew of this physical abuse but did nothing to assist VP;

VP had no right to control the number of clients that she had sex with on a daily basis;

she could not control what hours she worked and was required to work very long hours sometimes overnight;

VP was required to hand over all over her earnings to the offender save for very modest tips;

the offending was premeditated and planned;

it was for the offender’s financial benefit.

I find that the offender’s role in the organisation was hands on. She was in fact the person on the ground in Sydney. Both victims referred to her as the mothertac. She was a pivotal person in the Sydney aspect of the operation which sent young vulnerable female Thai nationals to Australia to work in the sex industry in conditions of slavery.
The offender arrived to take custody of each girl from their escort in a time frame very proximate to their arrival in Sydney and took them to her home.
No other person has been identified as exercising any role of authority in the operation in Sydney.
The offender provided a home, accommodation and meals to the victims. She explained the debt that they owed her and how it would be paid off. She explained the work conditions and when and how they would work. She took away their passport. She organised their transport to work. She repeatedly rang VP at her work place to check up on how many clients she had on a particular day.
She demanded the payment to her of their entire earnings. She reinforced the fact that they could not leave as she was aware that they had no cash, no contacts, limited English and she had taken their passports. She was also aware that VP had been compromised by the naked photos of her and was complicit in allowing that to remain an ongoing constraint on VP’s liberty.
There was no overt suggestion of gratuitous cruelty exercised by the offender. On the contrary I accept Mr Clarke’s submission, to a point, that the offender was not without compassion for the victims.
She did allow both victims a limited degree of freedom at times throughout the time of the offending.
Nonetheless given that VP was a vulnerable, young, female Thai national who had limited English, her passport was confiscated, she had no money and the threats to shame her and subject her to physical violence were ongoing and real what the offender established was effectively a prison without bars for VP.
Accordingly I am of the view that the objective seriousness of the offending for Counts 1 and 2 lies in the mid-range of objective seriousness.
I turn now to my findings as to the objective seriousness of Counts 4 and 5 with respect to RB.
I find that Count 4 and 5 largely overlap in time and circumstance nonetheless as the authorities state they refer to two discrete offences.

I find that Count 4 is somewhat less serious than Count 5.
I find the following:

RB was deprived of her liberty for about 4 months from late March 2005 until about mid July 2005 which is not an inconsiderable period of time;

RB had no choice but to work as a sex worker until her debt to the offender was paid;

RB was required to work at the brothels and on the days that the offender organised for her to work;

RB was required to hand over all of her earnings to the offender save for modest tips;

RB was required to live with the offender;

RB was unable to leave as the offender had taken her passport and she had no money;

The offending was premeditated and planned offending behaviour; and

was undertaken for the offender’s own financial benefit.

I make the same findings with respect to the level of objective seriousness for Counts 4 and 5 as I do for Counts 1 and 2, that is I find that the objective seriousness for counts 4 and 5 lie in the mid-range of objective seriousness.
For the sake of completeness I restate my earlier findings as they apply almost equally to RB.
I find that the offender’s role in the organisation was hands on. She was in fact the person on the ground in Sydney. She was a pivotal person in the Sydney aspect of the operation which sent young vulnerable female Thai nationals to Australia to work in the sex industry in conditions of slavery.
The offender arrived to take custody of each girl from their escort in a time frame very proximate to their arrival in Sydney and take them to her home.
No other person has been identified as exercising any role of authority in the operation in Sydney.
The offender provided a home, accommodation and meals to the victims. She explained the debt that they owed her and how it would be paid off. She explained the work conditions and when and how they would work. She took away their passport. She organised their transport to work.
She demanded the payment to her of their entire earnings. She reinforced the fact that they could not leave as she was aware that they had no cash, no contacts, limited English and she had taken their passports.
There was no overt suggestion of gratuitous cruelty exercised by the offender. On the contrary I accept Mr Clarke’s submission, to a point, that the offender was not without compassion for the victims.
She did allow both victims a limited degree of freedom at times throughout the time of the offending.
Nonetheless given that RB was a vulnerable, young, female Thai national who had limited English, her passport was confiscated, she had no money and the threats to shame her were ongoing and real. The offender established effectively a prison without bars for RB.
Accordingly I am of the view that the objective seriousness of the offending lies in the mid-range of objective seriousness.
With respect to Counts 3 and 6 which are virtually identical, I find that the amounts dealt with were approximately $45,000 and that the amount of time involved was four to five months.
These are significant sums of money and both periods of time were not inconsiderable.
Accordingly I find that the objective seriousness falls in the mid-range of offending.
I also note that the objective seriousness for all counts is influenced by the important factor of the fact that there was both planning and pre-meditation and indeed, the offending was for the offender’s financial benefit.

Special Circumstances

Whilst it may not be particularly necessary to make a finding of special circumstances, nonetheless I would be prepared to find special circumstances given the fact that the offenders time in custody will be more difficult for her given the fact that she is separated from her son and language difficulties, as well as this being her first time in custody.

Totality and Accumulation

I have considered principles of totality and accumulation and considered very carefully the submissions of both Counsel with respect to how the Court should approach the overall construction of the sentence bearing in mind principles of totality and accumulation.
There is a need for partial accumulation to take into account the separate offences and the fact that there are two victims.
Nonetheless the Court accepts that close consideration must be given to the application of the principles of totality and accumulation to ensure that a crushing sentence is not imposed: see R v M.A.K; R v M.S.K [2006] NSWCCA 381, (2006) 167 A Crim R 159.
I have made the periods of accumulation relatively modest to reflect the above principles and to ensure that the overall sentence reflects the criminality before the Court.

Sentencing

I have carefully considered Section 16A (1) and (2) of the Crimes Act1914 (Cth) and the general sentencing principles which I must apply.
I have turned my mind to section 17 A of the Crimes Act 1914 (Cth) which requires a sentencing court to consider all available sentences and only sentence to imprisonment when no other sentence is appropriate in the circumstances.
I note that for counts 1, 2, 4 and 5 the maximum penalty is 25 years imprisonment and the maximum penalty for counts 3 and 6 is 10 years imprisonment.
The maximum penalty provides a yardstick for appropriate sentences but of course must be balanced against all the other relevant factors.
I have read other cases which deal with sexual slavery and the sentences which were imposed.
I note Mr Clarke’s submission that R v Wei Tang is the closest matter factually but that Wei Tang was sentenced for counts relating to 5 victims. The Court notes that Ms Tang was sentenced for a total of 10 counts being five counts of use and 5 counts of possess a slave referable to the 5 victims.
The facts were different in that Ms Tang was an owner of a licensed brothel. The five Thai nationals came to Australia voluntarily on visas which had been obtained illegally to work as prostitutes. They became ‘contract workers’ at the brothel. Ms Tang had a 70% interest in a syndicate which had ‘purchased’ four of the complainants by payment of $20,000 to recruiters in Thailand.
Each of the 5 victims acknowledged a debt of between $42,000 to $45,000. They were required to repay this amount by working 6 days a week servicing up to 900 customers. An amount of $110 was charged to customers for the women’s services all of which was retained by Wei Tang and other members of her syndicate. For each customer the debt was reduced by $50. While repaying the debt the women lived at premises arranged by Tang and were restricted to those premises. While paying off the debt their passports and return airfares were held by Tang.
In the present matter there was no suggestion of any other syndicate members in Sydney and as noted I have found that the offender was a principal operator in the Sydney enterprise.
I note the appropriate defence concession that the s 5 threshold has been crossed.
I am mindful that the offending behaviour continued over a period of 5 months for VP and 4 months for RB. Whilst it was submitted that that was not an extended period of time nonetheless even a scintilla of time in which one’s freedom and liberty are denied and to live and work under such subjugation is unacceptable to our society. When considering that both victims were exposed to this treatment for months on end this must be viewed in all of the circumstances as a significant period of time.
I have found that the objective seriousness of all counts is at the mid-range.
I have carefully and closely considered the offender’s subjective case and I agree that she has presented an excellent subjective case including a strong case for positive rehabilitation.
I found the array of personal references compelling and powerful.
I have also closely considered the situation of Nathaniel Barton, the offender’s 15 year old son. Nathaniel’s circumstances are very concerning which are compounded given the fact that his mother has been his primary carer for his entire life and she now faces a considerable term of imprisonment.
His father whilst no doubt a loving presence in some ways has not offered the same level of care, concern and love as the offender.
By all accounts the offender has been exemplary in providing for Nathaniel’s physical, educational, emotional and complex medical needs since his birth. She returned to Thailand to ensure that Nathaniel had access to the best care from her extended family and to ensure that she could completely understand the complexities of his prognosis and treatment plan from the medical profession.
I have read the report of Dr Bloomfield which I have set out in detail above.
The accepted test for hardship is establishing exceptional circumstances. Whilst there is no doubt that the offender’s imprisonment will have a significant and deleterious impact on Nathaniel (given their close and no doubt loving relationship) and whilst there is evidence of a complex medical and socioeconomic disadvantage by the offender’s incarceration that will necessarily flow to Nathaniel nonetheless I do not find that the situation presented with respect to Nathaniel’s difficulties amounts to exceptional circumstances.
I hasten to add though that I have very much taken Nathaniel’s situation into account in the general mix of all the factors that I am required to take into account in this complex sentencing exercise.
For all of the above reasons I have come to the view that the only appropriate sentence is one of full-time imprisonment with an immediate term of custodial imprisonment served by way of a non-parole period.
I take into account time served and have back dated the first sentence from 15 May 2019 which was the date that the offender was taken into custody.

Order

The offender is convicted and sentenced to imprisonment.
For the offence of Possess a slave (VP) I impose a head sentence of 4 years, 6 months commencing 15 May 2019 and expiring 14 November 2023.
I set a non-parole period of 2 years, 8 months and 14 days imprisonment commencing on 15 May 2019 and expiring 28 January 2022.
I impose a balance of term of 1 year 9 months and 17 days imprisonment to commence at the expiration of the non-parole period, that is 29 January 2022 and expiring 14 November 2023.
For the offence of Use a slave (VP) I impose a head sentence of 7 years and 6 months commencing 14 August 2019 and expiring 13 February 2027.
I set a non-parole period of 4 years and 6 months imprisonment commencing on 14 August 2019 and expiring 13 February 2024.
I impose a balance of term of 3 years imprisonment to commence at the expiration of the non-parole period, that is 14 February 2024 and expiring 13 February 2027.
For the offence of Deal with Proceeds of Crime (VP) I impose a head sentence of 1 year 6 months commencing 13 September 2019 and expiring 12 March 2021.
I set a non-parole period of 10 months and 25 days imprisonment commencing on 13 September 2019 and expiring 6 August 2020.
I impose a balance of term of 7 months and 6 days imprisonment to commence at the expiration of the non-parole period, that is 7 August 2020 and expiring 12 March 2021.
For the offence of Possess a slave (RB) I impose a head sentence of 4 years 6 months commencing 14 November 2019 and expiring 13 May 2024.
I set a non-parole period of 2 years 8 months and 14 days imprisonment commencing on 14 November 2019 and expiring 27 July 2022.
I impose a balance of term of 1 year 9 months and 16 days imprisonment to commence at the expiration of the non-parole period, that is 28 July 2022 and expiring 13 May 2024.
For the offence of Use a slave (RB) I impose a head sentence of 7 years and 6 months commencing 14 February 2020 and expiring 13 August 2027.
I set a non-parole period of 4 years and 6 months imprisonment commencing on 14 February 2020 and expiring 13 August 2024.
I impose a balance of term of 3 years imprisonment to commence at the expiration of the non-parole period, that is 14 August 2024 and expiring 13 August 2027.
For the offence of Deal with Proceeds of Crime (RB) I impose a head sentence of 1 year and 6 months commencing 13 March 2020 and expiring 12 September 2021.
I set a non-parole period of 10 months and 25 days imprisonment commencing on 13 March 2020 and expiring 6 February 2021.
I impose a balance of term of 7 months and 6 days imprisonment to commence at the expiration of the non-parole period, that is 7 February 2021 and expiring 12 September 2021.
The overall effective sentence is 8 years, 2 months and 30 days, commencing on 15 May 2019 and expiring on 13 August 2027.
The offender will become eligible for parole on 13 August 2024.
I have found special circumstances for the reasons discussed above, and note that the non-parole period for all offences has been set at 60% or effectively so.

IN CUSTODY ORDERS

Whilst in custody it is recommended the Corrective Services Commission assist the Offender:
Receive counselling and treatment including relevant medication from NSW Health Justice Health and Forensic Mental Health Network or any related health service provider as to her mental health.
I direct a copy of the report of Dr Sam Calvin dated 30.8.19 attach to the Offenders custodial warrant for the assistance in the assessment and treatment of the Offender’s mental health difficulties by Justice Health and Corrective Services;
I expressly recommend Corrective Services assist the offender enrol and participate in any available English language programs throughout her time in custody.

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Amendments

28 August 2020 - Amendment: removal of suppressed name at [193], [261-263].

Decision last updated: 28 August 2020

Medium Neutral Citation:	R v Kanbut [2019] NSWDC 931
Hearing dates:	9 April 2019 – 7 May 2019
Date of orders:	15 November 2019
Decision date:	15 November 2019
Jurisdiction:	Criminal
Before:	N L Williams DCJ
Decision:	Sentence – Overall effective sentence of imprisonment for 8 years, 2 months, and 30 days Count 1: Imprisonment for 4 years and 6 months – Non-parole Period of 2 years, 8 months, and 14 days Count 2: Imprisonment for 7 years and 6 months – Non-parole Period of 4 years and 6 months Count 3: Imprisonment for 1 year 6 months – Non-parole Period of 10 months and 25 days Count 4: Imprisonment for 4 years 6 months – Non-parole Period of 2 years 8 months and 14 days Count 5: Imprisonment for 7 years and 6 months – Non-parole period of 4 years and 6 months Count 6: Imprisonment for 1 year and 6 months – Non-parole period of 10 months and 25 days
Catchwords:	Sentencing; Slavery; Proceeds of Crime; Use a Slave; Possess a Slave;
Legislation Cited:	Crimes Act 1914 (Cth) Crimes Legislation Amendment (Law-Enforcement Integrity) Vulnerable Witness Protection and Other Measures Act 2013 (Cth)
Cases Cited:	R v M.A.K; R v M.S.K [2006] NSWCCA 381 R v Wei Tang 2009 23 VR 332 Regina v Nahlous 2013 NSWCCA Sieders and Somsri v R [2008] NSWCCA 187 Wong v The Queen (2001) 207 CLR 584
Category:	Sentence
Parties:	Regina (Crown) Rungnapha Kanbut (Offender)
Representation:	Counsel: Mr P. Neill SC (Crown) Ms G. Westgarth (Crown) Mr J. Clarke
File Number(s):	2017/191697
Publication restriction:	Non-publication order as to the names of the complainants