R v McIvor and Tanuchit

[2010] NSWDC 310

CITATION:	R v McIvor & Tanuchit [2010] NSWDC 310
JUDGMENT DATE:	17 December 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Williams DCJ at 1
DECISION:	1. Counts 3 and 4 relate to Mickey who had previous sex work experience. In regard to count 3, intentionally possess, each offender is sentenced to three years imprisonment. In regard to count 4, use, each offender is sentenced to four years imprisonment. Those sentences are to date, for Mr McIvor from 15 December 2005 and for Ms Tanuchit from 18 December 2008. 2. Counts 1 and 2 relate to Yoko who was enslaved for less than a month but was required to do sex work against her will. In regard to count 1, intentionally possess, each offender is sentenced to three years imprisonment. In regard to count 2, use, each offender is sentenced to five years imprisonment. Those sentences are to date for Mr McIvor from 15 March 2009 and for Ms Tanuchit from 18 March 2009. 3. Counts 5 and 6 relate to Susie who was enslaved for about two and a half months. She was also a somewhat older woman. In regard to count 5, intentionally possess, each offender is sentenced to three years imprisonment. In regard to count 6, use, each offender is sentenced to six years imprisonment. Those sentences are to date for Mr McIvor from 15 July 2009 and for Ms Tanuchit from 18 July 2009. 4. Counts 9 and 10 relate to Sophie who was enslaved for about five and a half months. In regard to count 9, intentionally possess, each offender is sentenced to three years imprisonment. In regard to count 10, use, each offender is sentenced to eight years imprisonment. Those sentences are to date for Mr McIvor from 15 February 2010 and for Ms Tanuchit from 18 February 2010. 5. Counts 7 and 8 involve the victim Jasmine who endured her plight for about ten months and was additionally subjected to degrading and abusive behaviour. In regard to count 7, intentionally possess, each offender is sentenced to three years imprisonment. In regard to count 8 each offender is sentenced to ten years imprisonment. Those sentences are to date for Mr McIvor from 15 December 2010 and for Ms Tanuchit from 18 December 2010. 6. There is a total effective sentence for each offender of twelve years imprisonment. In accordance with the legislation and taking into account the factors referred to above, I set a single non-parole period for Mr McIvor of seven years and six months to date from 15 December 2008 and to expire on 14 June 2016. 7. In respect of Ms Tanuchit and having regard to the sentence passed on her by Taylor DCJ and given that it is not substantially different to that of Mr McIvor I set a slightly shorter non-parole period of seven years to date from 18 December 2008 and to expire on 17 December 2015. 8. Mr McIvor is therefore eligible for release on parole on 14 June 2016 and Ms Tanuchit on 17 December 2015. The total terms will expire respectively on 14 December 2020 and 17 December 2020.
CATCHWORDS:	SENTENCE - slavery offences - after trial and re-trial - multiple offences - relationship of parole period to non parole period - paired offences of possess and use - departure from original sentencing structure
LEGISLATION CITED:	s 270.3(1)(a) of the Commonwealth Criminal Code Act (1995) s 16A of the Crimes Act (1914) Commonwealth
CASES CITED:	McIvor v R and Tanuchit v R [2009] NSWCCA 264 El Karhani (1990) 21 NSWLR 370 R v Wei Tang [2006] VCC 637 Pearce v R (1998) 194 CLR 610 R v Wei Tang [2009] VSCA 182 DS v R [2005] VSCA 1999 R v Kovax and Anor, unreported Supreme Court of Queensland [6 December 2007] R v Bernier [1998] 101 A Crim R 44 Hili v R, Jones v R [2010] HCA 45 King v R [2010] NSWCCA 202, R v Bui [2008] NSWCCA 297 Tang v R [2008] HCA 39 R v Ho and Leech [2009] VSC 495, R v Ho and Ho [2009] VSC 437
PARTIES:	Commonwealth Director of Public Prosecutions Trevor McIvor Kanakporn Tanuchit
FILE NUMBER(S):	2007/14356; 2007/14355
COUNSEL:	Mr B Levet (Crown) Mr G Wendler (McIvor) Mr A Williams (Tanuchit)
SOLICITORS:	Solicitor for CDPP (Ms C Choi) B J Lawyer (Mr B Peters) Watsons (Mr R Lyall)

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JUDGMENT

1 HIS HONOUR: At a second trial in this matter Mr McIvor and Ms Tanuchit were each found guilty by a jury in regard to five offences of intentionally possessing a slave, and five offences of intentionally exercising over a slave, the power attaching to the right of ownership namely the power to use contrary to s 270.3(1)(a) of the Commonwealth Criminal Code Act (1995).

2 There were five victims who were Thai Nationals employed in a brothel known as Marilyn’s owned by Mr McIvor and co-managed by his wife, Ms Tanuchit at Fairfield. The criminal conduct in question relates entirely to conduct in Australia. The maximum penalty for each offence is imprisonment for twenty five years, a fine not exceeding one thousand five hundred penalty units or both. Mr McIvor and Ms Tanuchit were arrested on 8 June 2006.

3 Each offender was found guilty of the same offences after a trial before Judge Taylor and a jury on November 2007. Each was convicted. Mr McIvor was sentenced to an effective sentence of twelve years imprisonment with a non-parole period of seven and a half years. Ms Tanuchit was sentenced to an effective sentence of eleven years with a non-parole of seven years.

4 After the High Court case of Tang v R (2008) HCA 39 those convictions and sentences were the subject of an appeal to the Court of Criminal Appeal and for the reasons set out in the judgment of that court the convictions were quashed and a new trial ordered. (See McIvor v R and Tanuchit v R [2009] NSWCCA 264, not currently on the internet). Due to the success of the conviction appeals the sentences were not considered.

5 Both trials were lengthy and involved substantial hearing time. At the first trial the accused were jointly represented but had separate and different counsel at the sentence hearing. At the second trial Mr McIvor was represented by Mr G Wendler and Ms Tanuchit by Mr A Williams, neither of whom represented the offenders at either the first trial or the first sentence proceedings. The Crown in both trials was Mr Levet. The only substantial differences between the first trial and the second trial were,

1. There were six complaints in the first trial and five in the second. The offenders were found not guilty in regard to the sixth complainant.
2. Mr McIvor gave evidence in the second trial but neither offender gave evidence in the first trial or at the first sentence proceedings.
3. The accused were jointly represented in the first trial but separately represented in the second trial.

6 In order to preserve their anonymity the five victims in order of giving evidence and in chronological order of their association with the offenders were Sophie, Jasmin, Susie, Yoko and Mickey. These were the names used by them during their respective periods of sexual servitude with the offenders.

7 The last trial ran for twelve weeks although there were a number of lost days due to illness and other reasons. The jury went out on the morning of the 28 July 2010 and returned their verdicts at 12.30pm on 30 July.

8 Having regard to the verdicts and the evidence I am satisfied beyond reasonable doubt as to the following general facts.

1. The offenders were engaged in a joint illegal undertaking involving the trafficking of Thai women in the sex industry.

2. The offenders would purchase a woman provided by contacts in Thailand who arranged visas and travel documentation as well as tickets. Whilst it is apparent that some of the methodology used in Thailand was fraudulent, such as the information supplied to Australian authorities to support a Visa application, the only direct evidence of either offenders involvement in that side of the operation relates to Susie who came to Australia accompanied by Ms Tanuchit’s sister and other family members ostensibly to attend an engagement function for Mr McIvor and Ms Tanuchit, and for who Mr McIvor provided a letter in support of her Visa application.

3. Whilst the price paid for these women cannot be accurately determined it appears to have been between twelve and a half a fifteen thousand dollars having regard to amounts remitted to Thailand after the women arrived in Australia.

4. On arrival four of the women were informed that they had a debt of between thirty five thousand and up to forty five thousand dollars owing to the offenders and until that was repaid they were required to work in the offender’s brothel. One was told about this debt in Thailand.

5. In order to prevent the women leaving before the debt was repaid, the offenders confiscated their passports and kept them in locked confinement either at the brothel or at their residence, and they were only allowed out in the presence of either the offenders or a trusted employee. Apart from anything else this meant that they had no way to leave in case of fire or other emergency. Restrictions were also placed on their mobile phone usage for an initial period.

6. All of the women came voluntarily to Australia and except for Yoko all came to work specifically in the sex industry. Except for Mickey none had any previous experience in the sex industry although in cross-examination the suggestion was made to all of them that this was not the truth and that they had in fact previous sex industry experience. Yoko came to Australia to do massage work but was pressured to do sex work from the day she arrived. Given that most had never worked in the sex industry before I have no doubt that they suffered pain and distress in working excessive hours from the day that they arrived in Australia. Most commenced work in the brothel immediately they reached the offender’s residence and had stored their belongings.

7. The women worked seven days a week for lengthy hours and whilst not all the time was occupied with sex work they were at the brothel and on call. On average they worked from 10am to 2am on Monday to Thursday and 10am to 4am on Friday and Saturday and 12pm to 12am on Sunday. They had one free day a week on which they did not have to work but as they had no other income until their debt was repaid they worked on their days off but were allowed to keep that percentage of the take on that day not due to the house. Apart from the house portion the rest on their income on other days went to reducing their debt. For example the rate for an hour’s service was a hundred and seventy five dollars cost to the client. Of that seventy five dollars would go to the house anyhow and the balance would go to a reduction of the victim’s debt for six days a week but on her day off she could keep the one hundred dollars for her own use and expenses. There were different rates for services less than an hour and a corresponding break-up between the house share and the remainder.

8. Sophie was kept in such conditions for about five and a half months, Jasmin for about ten months, Susie for about two and a half months and Yoko and Mickey for less than one month. Not all victims were there at the same time. Sophie did not overlap with any of the others. Jasmin overlapped Susie by about a month and Susie, Yoko and Mickey were at the premises when it was raided by Australian Federal Police and Immigration Officers.

9. Some of the women were more robust than others in resisting some of the offender’s conduct. Some, particularly Jasmin and to some extent Susie were subject to humiliating behaviour by the offenders in regard to their age or appearance during the time that they were there. Whilst distinctions can be drawn between the facts in regard to each victim there is a marked similarity between each. There is also a marked similarity in the degree of criminality of each offender. There is little in principle to distinguish one from the other.

Commonwealth Sentencing Provisions

9 I am required to consider general deterrence having regard to the objective seriousness of the offending and the non-exhaustive list of matters set out in s 16A of the Crimes Act (1914) Commonwealth. (See El Karhani (1990) 21 NSWLR 370). Section 16A(1) requires that a sentence of a severity appropriate to the offending be imposed.

10 The following criteria under s 16A(2) appear to be relevant:-

Section 16A(2)(a) the nature and circumstances of the offences.

11 In addition to the general factors referred to above I am satisfied that the accused met the complainants on their arrival in Australia either at the airport or at a hotel where there was a handover from their Thai minder. The victims were required to work and/or live in locked premises without being given keys to the premises. They did not allow the victims to leave the premises without being in the company of the offenders or a trusted employee. They controlled what the victims wore. They required the victims to work during their menstruation. They required the victims to work during sickness and vaginal infections. During these times of coerced labour there were implied or actual threats of harm or detrimental action if the victims attempted to leave the brothel without having repaid their debt.

12 The offending came to an end on 27 May 2006 when Yoko asked for access to her mobile phone and covertly sent a text message to a friend in Thailand requesting details of the Thai Embassy in Sydney. On 1 June 2006 she surreptitiously gained access to her phone and retrieved the details of the Consul-General’s office in Sydney. On 2 June 2006 she telephoned that office and told them that she was at a brothel in 86 Fairfield at Marilyn’s and that she needed help. On the same day Australian Federal Police and Immigration Officers raided Marilyn’s and located the victims Yoko, Mickey and Susie. Had Yoko not acted as she did I have no doubt that the offending would have continued.

13 Relevant to each victim are the following matters:-

Sophie

14 Sophie was recruited in Thailand to come to Australia to do sex work. She was told in Thailand that she would have a debt of seventeen thousand dollars. Before she came to Australia she had not done sex work. She arrived in Australia on 11 July 2004 in the company of a female minder known as Chut. Whilst she was at a hotel in Sydney she was picked up by the offenders and taken to the offender’s home.

15 When they arrived she was told by the offender Ms Tanuchit that she would have to pay a debt of $43,000 and her passport was confiscated. She was told the passport would be returned to her when the debt was fully repaid. She was required to perform sex work every day, she was told to insert a sponge in her vagina so that she could perform sex work during her menstruation. On one occasion in December 2004 the victim suffered from a severe womb infection and was told by the doctor to rest for one week. She was allowed only one day off and then she was forced to work despite strong pain.

16 There was another occasion when she suffered a tear to her vagina and was in pain as a result. The offender Ms Tanuchit gave her cream to apply but she was not allowed any time off. According to the victim’s debt book from 11 July 2004 to 27 December 2004 when she repaid all her debt she had seen at least eight hundred and ninety four clients. After January 2005 she lived at the brothel, she was not allowed to leave the brothel alone, outside working hours there was no way of getting out had there been a fire or any other emergency. For the first month her access to telephones was restricted.

17 The offender Tanuchit told their victim that one girl had escaped and that when that girl was found she would hire someone to assault her and she threatened the victim if the police or immigration caught her. The victim would be in more trouble than the shop. The victim felt that it was too dangerous for her to run away.

Jasmin

18 Jasmin was recruited in Thailand and told that the work in Australia would involve sex work and that she would have a debt that she could pay off in three months. Before she came to Australia the victim had never done sex work. She arrived in Australia on 19 May 2005 in the company of a male minder known as John. Whilst she was at a hotel in Sydney the offender Ms Tanuchit came to see her. After some discussion she confiscated the victim’s passport and then the offender McIvor picked them both up in the front of the hotel and she was taken to the offender’s home.

19 She resided there until late November 2005 at which time she was told to live at the brothel. She was required to take her clothes off and be examined by Ms Tanuchit. She was required to perform sex work every day and not to refuse any customers whether she was tired or in pain. She was exposed to contracting disease by being forced to perform oral sex without a condom and was given the wrong information about how to check for sexually transmitted diseases. She was told she had to perform such acts because she had no other selling points. She was required to insert a sponge in her vagina so she could perform sex work during her menstruation. She gave evidence that she had difficulty removing the sponge and had to get assistance to take it out.

20 During the period in question between May 2005 and April 2006 she never had a day off. The victim was verbally abused by the co-offender Ms Tanuchit for not being able to attract any clients. Ms Tanuchit used abusive words when she spoke to her and subjected her to humiliation by commenting on her being unable to attract men because of her being so dark and fat and having saggy breasts.

21 On 19 May 2005 to sometime in April 2006 the victim paid off more than the original debt of forty five thousand dollars because of further debts incurred for food, medical bills and advances of money to send to her family in Thailand. According to the time sheets the victim saw at least one thousand one hundred and sixty five clients between 11 June 2005 and 13 April 2006.

22 The victim was threatened by the offender Tanuchit that if she spoke about her situation to customers who might happen to be from Immigration she would be sent back to Thailand. Ms Tanuchit also threatened that she had photos of the victim’s family and that they would be harmed, and they would be told that she was working in the sex industry, a socially unacceptable occupation in Thailand.

Susie

23 Susie was recruited in Thailand by Ms Tanuchit’s older sister Pa Phen and told that the work in Australia would involve sex work. Before she came to Australia the victim had never done sex work. She arrived in Australia on 15 March 2006 in the company of Pa Phen and her family. The offenders picked them all up at the airport.

24 She was taken to the offender’s home, at the house Ms Tanuchit confiscated the victim’s passport and return air ticket. Pa Phen told her that this was done to stop the girls from running away. On the same day she was taken to Shop 1, a massage parlour run by the offenders in another suburb. And later that night she was taken to Marilyn’s. She gave evidence in the trial that sex work gave her pain and some clients were violent. She was required to perform sex work every day and not allowing her to refuse any customers. She was also required to insert a sponge in her vagina so she could perform sex work during menstruation.

25 On one occasion she was so sick she needed someone to assist her to shower and to apply her make-up. She was even required to work on her free day despite being sick. During the time that she was at the brothel the only places she went outside was with a minder and that was with a minder were the bank to buy groceries and to see the doctor all located within a short distance of the brothel. For the first one and a half months her access to telephones was also restricted.

26 At times the only food she had was instant noodles and she was often verbally abused by Ms Tanuchit. The victim lived in fear because she was threatened nearly every day that if she escaped she would be found. She was also told that Mr McIvor was an influential person in Australia and that if the victim reported her situation to the Thai police Pa Phen who knew many of the police officers in Thailand would get her and her family into trouble.

Yoko

27 Yoko was recruited in Thailand to come to Australia to do massage work. She was told in Thailand that she also had the option to do sex work if she wished. Before she came to Australia the victim had never done any sex work before and she gave evidence that she had no intention of doing any sex work in Australia. She arrived in Australia on 16 May 2006 and the offenders picked her up at the airport. After leaving the airport in the car the offender Tanuchit took the victim’s passport, mobile phone and fifteen hundred dollars cash that the Thai recruiter had given her.

28 She was taken to the offender’s home where she remained and was taken to and from the brothel daily. The victim came to Australia under the impression that she would be working as a masseur and this was made known to Ms Tanuchit. She was told that whilst she could do just massage work it did not pay very well and it would take a much longer time to pay off her debt. She felt she had no other choice but to accept prostitution. The victim gave evidence that she had never worked in the sex industry and did not want to do that type of work, which must have been a source of additional distress to her. The victim was required to perform sex work for long hours every day and was chastised if she refused to have oral sex or sex without a condom. According to the victim’s debt book during the seventeen days she worked at the brothel she saw forty one and repaid two thousand one hundred and twenty five dollars of her forty five thousand dollar debt.

Mickey

29 Mickey was recruited in Thailand to come to Sydney to do sex work as well as massage. Before she came to Australia the victim had done sex work in Bahrain. She arrived in Australia on 19 May 2006 and was picked up at the airport by the offenders. She was taken to the offender’s home.

30 When she arrived at the house Ms Tanuchit confiscated the victim’s passport and mobile phone. She was told she would keep it until the victim repaid her forty five thousand dollar debt. Within one hour of her arrival she was taken to the brothel to commence work. She was forced to perform sex work every day and was not allowed to refuse clients even after she was hurt by a particular client. She was not allowed to refuse any client or sexual act except sex without using a condom.

31 According to the victim’s debt book from 19 May 2006 to 1 June 2006 she serviced seventy two clients at Marilyn’s and repaid three thousand seven hundred and seventy dollars of her forty five thousand dollar debt. She gave evidence in the trial that she was detained and not given any freedom to leave the brothel even to buy toiletries or groceries, and her access to telephones was restricted. She also gave evidence that she did not attempt to escape because she was afraid that she would not succeed in escaping and that if she got caught she would be harmed. At the time she only had instant noodles to eat. The victim was forbidden to talk to the clients about her situation at the brothel.

Section 16A(2)(d) the personal circumstances of any victim of the offence and (e) any injury, loss or damage resulting from the offence

32 The personal circumstances of the victim and injury, loss or damage resulting from these offences are outlined in each of the victim’s victim impact statements tendered in the Crown materials. Whilst I accept what is stated therein as far as it relates to their personal feelings about how they were treated I do not have regard to any factual material referred to by them that has not been substantiated by evidence at trial.

33 Whilst they each came here voluntarily to do sex work, in most cases with no previous experience, they were thereafter treated in a degrading and inhumane way by the offenders who regarded them basically as sexual pit ponies who needed to work to pay off an inflated debt for something that lacked any moral or substantive practical value in terms of normal contractual consideration.

34 The victims were generally subjected to cross-examination that suggested prior sex industry experience to a greater or lesser degree without there being any reliable evidence to support such innuendoes. It was quite clear that a number of the victims found these suggestions distressing. Whilst I have been urged by defence counsel not to believe their assertions no convincing evidence has been advanced as to why I should.

Section 16A(2)(h) the degree to which the persons co-operated with the law enforcement agencies in the investigation of the offence or of other offences

35 Both offenders, as was their right, did not participate in an interview with police. They have not provided any assistance to police in regard to other offenders either in Australia or Thailand or details of other victims. Whilst not charged in respect of any other victim or victims and therefore not a matter that I can take into account as far as aggravating any sentence to be imposed, the evidence clearly established that these five victims were not the only victims of the offender’s criminal conduct. However the particular circumstances of any other Thai persons is not known and could only be guessed at and has thus played no part on the question of penalty.

Section 16A(2)(j) the deterrent effect that any sentence or under consideration may have on the person

36 The period of offending conduct for which the offenders have been convicted commenced in 2004 and ended involuntarily in 2006. Given the offender’s respective ages it is unlikely either will offend in this way again. Nonetheless the sentence needs to have an element of personal deterrence.

Section 16A(2)(k) the need to ensure that the person is adequately punished for that offence

37 The following matters need to be taken into account:

(a) The maximum penalty for the offences. In this case it is twenty five years imprisonment.
(b) The level of control and exploitation forced on the victims. Whilst the level of control was extreme and unacceptable I can well imagine other objective circumstances that would require a more severe sentence.
(c) The harm suffered by the victims.

Section 16A(2)(m) - the character, antecedents, age, means and physical and mental condition of the person

38 Mr McIvor: The offender Mr McIvor was born in Australia and is now sixty three years of age. He has a criminal history for comparatively minor offences which have played no part in my assessment of the appropriate penalty for this offending. After leaving school at fourteen the offender worked as a butcher. He later worked in hotels and clubs before becoming involved in the operation and management of brothels. He went into custody after conviction at the first trial but has otherwise never received a custodial sentence. The two children of his marriage to Ms Tanuchit are living with his daughter who herself has four children.

39 I have available to me a pre-sentence report and medical reports in regard to his recent heart surgery and general health. Mr McIvor gave evidence on sentence as to his various personal and health issues. His heart specialist says that he appears to have had successful coronary artery bypass surgery. He should be assessed every twelve months. Any more immediate follow-up would be surgical issues related to wound management.

40 In the pre-sentence report he disputed that the victims had been kept as slaves but was sorry that they felt wronged and that he had employed people without proper visas. As a non-custodial option is not under consideration the reporter’s efforts in that regard can be passed over otherwise the report confirms Mr McIvor’s background and family situation. His medical situation is not one that in my view should or ought to affect an appropriate sentence.

41 Ms Tanuchit: This offender is forty two years of age and has no prior convictions. She came to Australia in 1995 and is a citizen of this country. She has two children born in 1998 and 2001 from her marriage to Mr McIvor. She was psychiatrically assessed whilst in custody after the first trial and did not appear to have a major mental illness or drug and alcohol problem. She said she was controlled to some degree by Mr McIvor during their marriage. She did not need any psychiatric treatment. She told the psychiatrist that she missed her children and she was hopeful about returning to a normal life in the future working in a normal job and being able to take care of her children. In addition I have a further psychological report dated 7 September 2010 and a pre-sentence report dated 23 September 2010.

42 Ms Tanuchit did not give evidence on sentence. Ms Duffy, the psychologist, found she was suffering from extremely severe anxiety and severe depression. She is currently on Zoloft one hundred milligrams. She confirmed her background in Thailand and her migration to Australia, her background not dissimilar to many of her victims. She also confirmed the personal situation between herself and Mr McIvor which has not always been a happy one and their children. Ms Tanuchit has concerns for the care of the children when she is returned to custody because in her view the previous arrangement did not turn out to be satisfactory.

43 The pre-sentence report indicates she was well regarded whilst in custody previously and undertook and completed a number of courses as well as assigned work. However she appeared to minimise her offending behaviour and place some of the responsibility with the victims. Whilst she verbalised remorse she did not demonstrate any victim empathy. It was not thought that either offender would benefit from any ongoing supervision.

Section 16A(2)(p) requires a sentencing judge to take into account the probable effect that any sentence under consideration would have upon an offender’s family or dependents.

44 Because Mr McIvor’s health issues are not such that they cannot be adequately dealt with by Justice Health and neither offender’s family circumstances go beyond the sort of hardship which occurs when an offender is imprisoned in the ordinary course, as a matter of law, neither issue is such as to affect an appropriate sentence in each case. However, I would be turning a blind eye not to recognise that there will be an effect on the children of the offenders. That being said, I also note that the evidence established little reluctance on the offender’s part to isolate their children from their criminal conduct and there is no way of knowing what the effect was on those children of having the various victims being kept against their will in the same premises where the children were living at different times and having the children at times come into the brothel.

Legal Issues

45 There are relatively few cases dealing with slavery offences. R v Wei Tang 2006 VCC 637 is similar to the present case. The offender was found guilty of ten breaches of s 270.3(1)(a) of the Criminal Code Act 1995 Commonwealth, being five counts of possess a slave, and five counts of exercising the power of ownership over a slave being the power to use. As in the present case the offences related to five victims. As far as I can tell from Judge McInerney’s judgment on sentence in the Wei Tang matter, significant factual differences are that in Wei Tang all of the victims had previously worked in the sex industry, they all agreed to come to Australia for that purpose, none of them were locked up until their contract debt was repaid and they were all lodged in found premises where their food and medical requirements were attended to. The contrary situation regarding the victims in the present case amounts to considerable aggravation of the offending conduct.

46 In Pearce v R (1998) 194 CLR 610 at 623, it was said, amongst other things, that:

“to the extent that two offences for which an offender is convicted contain common elements it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention but the punishment to be exacted should reflect what an offender has done. It should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is then all the more important that proper principle be applied throughout the process.

47 The Wei Tang case on appeal gave rise to an issue in regard to double punishment for essentially the same conduct. This problem was considered in the Victorian Supreme Court of Appeal in R v Wei Tang 2009 VSCA 182. The Court made the following observations in regard to the paired offences of possession and use of a slave, and having regard to the fact that the concept of use is encompassed in possession, and possession is a prerequisite for use as those expressions appear in the legislation. The Court said, amongst other things, at para 28 the following:

“Approaching the question as a matter of commonsense, not as a matter of semantics, we have no doubt that the offences of possessing a slave and using a slave overlap when committed in relation to the same person. Put simply, there can be no use unless there is possession, and use itself is an illustration of possession.”

As Brennan J pointed out in He Kaw Teh v R

“Having something in possession is more easily seen as a state of affairs that exists because of what the person who has possession does in relation to the thing possessed. The conduct which here constituted possession encompass, though it was not limited to, the conduct which constituted use”.

Paragraph 32, “The trial Judge sentenced the applicant to identical terms of imprisonment on the use and possession counts with respect to each complainant. Like the High Court in Pearce we can only conclude that the sentence on each of the possession counts contained a portion which was to punish the applicant having used the victim. Prima facie therefore she was doubly punished for the same conduct; as the High Court made clear in Pearce full concurrency is no answer to a complaint of double punishment.”

Paragraph 73: “We would resentence the applicant as set out in the following table. We have differentiated between the use and possess sentences on the basis that although use was an expression of the applicant’s possession of each complainant, the use in the brothel was the exercise of the power which most harshly exemplified the enslavement. The sentences on the possess counts punish the other manifestations of the applicant’s control over the complainants.”

48 In my view, I should follow the approach of the Victorian Supreme Court of Appeal. Whilst it is difficult to envisage a situation where a person might be charged only with possessing a slave, the possibility does exist. Perhaps if a person was apprehended transporting slaves from one place to another, he or she, if they knew that they were in fact transporting a slave, that is a human being purportedly owned by someone else, might be charged solely with possession.

49 In DS v R 2005 VSCA 1999, DS was a co-accused of Wei Tang so the factual circumstances were similar. However DS pleaded guilty; there was a significant expression of remorse and DS promised assistance to authorities of a significant nature. The Court of Appeal indicated that but for the promise to cooperate it would have imposed aggregate sentences of twelve years with a non-parole period of five years. In the result the Court of Appeal sentenced DS to an aggregate period imprisonment of six years with a single non-parole period of two years and six months.

50 R v Kovax and Anor, unreported Supreme Court of Queensland 6 December 2007 has little application because of different objective circumstances to the present case. In that case the victim was not subject to any physical constraints except for the retention of her passport and some interference with her mail. The exploitation was of a different kind and did not involve the daily and commercial delivery of sexual services and the continual demeaning of the victim inherent in such conduct.

Other Crimes Act Sentencing Provisions:

51 I am satisfied, and it has not been suggested otherwise, that there is no alternative to a sentence of full time custody. I am required to take into account presentence custody as well as the part sentence served pending appeal. I am informed that time spent in custody already has been one year, eleven moths and eighteen days, and one year and eleven months and fifteen days respectively for Mr McIvor and Ms Tanuchit. I have therefore backdated the commencement of sentence to date from a date that reflects those periods. In accordance with s 19AB of the Crimes Act I will fix a single non-parole period in each case.

52 It has been generally accepted that it is appropriate for the ratio of the non-parole period to head sentence, having regard to all relevant subjective factors, to be approximately 60 per cent to 66.6 per cent. See R v Bernier 1998 101 A Crim R 44. However, in the recent High Court decision of Hili v R, Jones v R [2010] HCA 45, the Court said, amongst other things, that

“Section 16A does not permit the making of generalisations across all forms of federal offence about how individual sentences are to be fixed. To attempt such a generalisation would depart from the injunction that the sentencing Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. The Statute made no provision fixing any relationship between the head sentence and a recognisance release order. On the contrary, the sentencing Court had power to fix the recognisance release orders to take effect at any time during the period of the head sentences. There neither is, nor should be, a judicially determined norm or starting point, whether expressed as a percentage of the head sentence or otherwise, the period of imprisonment that a federal offender should actually serve in prison before release on a recognisance release order. More particularly, these are reasons enough to conclude that it is wrong to say, as the Court of Criminal appeal did, that the norm for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66 per cent, which figure will be affected by special circumstances applicable to a particular offender. It is wrong to begin from some assumed starting point and then seek to identify special circumstances. Rather, a sentencing Judge should determine the length of sentence to be served before a recognisance release order takes effect, by reference to an application of the principles identified by this Court in R v Power, R v Deacon and R v Bugmy . Consistency is not demonstrated by and does not require numerical equivalents. Presentation of the sentences that have been passed on Federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing Judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing Judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of Federal offences sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results. The consistency that is sought is consistency in the application of the relevant legal principles and that requires consistency in the application of Part 1B of the Crimes Act . When it is said that the search is for reasonable consistency what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. The first and paramount means of achieving consistency in Federal sentencing is to apply the relevant statutory provisions, and that requires the application of those provisions without being distracted or influenced by other and different provisions that would be engaged if the offender concerned were not a Federal offender. Next, in seeking consistency, sentencing Judges must have regard to what has been done in other cases.”

53 In the present case I do not take account of so called ratio referred to in Bernier in determining the relationship of parole period to non-parole period but rather to the statutory matters, referred to above, in mitigation or aggravation that appear to be appropriate, as well as the decided cases. It has been argued that the additional emotional and psychological burden on the offender’s children is a factor I could take into account to decrease the non-parole period relative to the parole period. I accept that special circumstances could be found, if proved circumstances relative to the children were such as to justify such a finding, or even, if the case was exceptional, consideration could be made to an overall reduction of penalty. See King v R [2010] NSWCCA 202, paras 17, 18, 23, 24 and 25. And R v Bui [2008] NSWCCA 297, paras 41 and 42.

54 I see no reason to distinguish between the criminal conduct of each offender. Whilst the experiences of the victims may have differed the degree of criminality with respect to each victim by each offender is indistinguishable. For the most part the victims were living in and working in close proximity and subjected to much the same controls.

Sentencing for Multiple Offences:

55 In accord with Pearce I am required to fix an appropriate sentence for each offence, to then consider questions of concurrence or accumulation and then apply the principle of totality and to avoid doubly punishing the offenders for essentially the same conduct.

56 The offenders engaged in a course of conduct involving multiple victims and are to be sentenced having regard to the totality of their criminal conduct. Whilst Ms Tanuchit’s subjective features are slightly more favourable than Mr McIvor’s by virtue of having no prior convictions, little effect, if any, should result as I have not taken Mr McIvor’s prior record into account to any substantial degree in passing sentence for his offending, there being no relationship between his past offences and his current offences.

57 Although the sentences in respect to the offending conduct for each victim should be different, following the approach of the Victorian Court of Appeal referred to above, it is nonetheless appropriate that the sentences imposed with respect to the offences against each victim be served concurrently having regard to the fact that possession is regarded as one of the powers attaching to the right of ownership, along with the power to use. (See Tang v R 2008 HCA 39).

58 It has been argued that these offences are now old or stale and the offenders have suffered unduly in being in prison, released after appeal and now facing prison again. That is conceded, but the Crown argues that the delay has also been adverse to the victims who have been required to give evidence again, and suggests that the two considerations cancel each other out. Whether or not that is a proper approach is debatable, but in the sentencing position that I have adopted I have tried to take into account the many competing factors which are of such a nature that while not entitling either offender to a reduced sentence are matters to be taken into account in not increasing the sentences and in determining an appropriate non-parole period.

59 I accept that barring other considerations I should not impose a sentence longer than the sentence imposed by the first trial judge. If a longer sentence is to be imposed I need to provide reasons as to that course. The Crown suggests that authorities, which were not available to Taylor DCJ, have tended to set the tariff somewhat higher than did his Honour. However, I cannot see that such is the case in any of the authorities referred to in the Crown’s submission. (See R v Ho and Leech 2009 VSC 495, R v Ho and Ho 2009 VSC 437 and the other cases previously referred to). I am not persuaded that Taylor DCJ’s assessment of an appropriate sentence was too lenient. Nothing additional has arisen in the trial before me to change that view, particularly as the Crown did not appeal the sentences imposed in that trial. Nor am I persuaded that anything has occurred since the first trial that would justify a reduction of the non-parole period set by his Honour.

60 However, I do need to revisit the sentences his Honour imposed to take account of a number of factors; those factors are;

1. The issue of double punishment as referred to by the Victorian Supreme Court of Appeal in Wei Tang.
2. The objective criminality of each offence in each case.
3. The fact that the victims were in a state of slavery for different periods.
4. The fact that some of the victims were treated more harshly than others.

61 A sentence of ten years was imposed for each separate offence, as against each victim by each offender. Some of those sentences were partially accumulated and most were concurrent.

62 With great respect that approach does not seem to distinguish between the objective seriousness of the individual offences. It does not take account of the element of double punishment inherent in the possession offences and the use offences, or the substantial variances in the duration of the individual victim’s period and conditions of slavery. I would adopt the Victorian Supreme Court of Appeal’s approach in regard to distinguishing the possess offence as being of lesser seriousness than the use offence, in the circumstances of the offending here. The VSCA said that although the use was an expression of the applicant’s possession of each complainant, the use in the brothel was the exercise of a power which most harshly exemplified the enslavement. The sentences for the possess counts punish other manifestations of the applicant’s control over the complainants.

63 These are undoubtedly serious offences deserving of both condemnation in the strongest possible terms as well as substantial punishment. Anyone else inclined to think that they can profit from this industry that trades in misery and the economic duress of underprivileged persons needs to know that such offending will involve serious punishment. This is not a moral argument in the sense of expressing outrage against the sex trade or harsh working conditions, but it does reflect the moral reprehensibility to be placed on the exploitation of some human beings by others who ought to know better. It is one thing for an entrepreneur to arrange for Thai women to get proper visas to work in the sex industry in Australia and pay them a reasonable wage; that is morally neutral. But to exploit such women at every opportunity, to imprison them without recourse in a strange country, whose language they do not speak, to require them to work unceasingly in an industry where there are no checks on the clientele without regard to the their freedom of choice and without regard to their wellbeing and to then refuse them the daily individual and unsupervised activities that offer relief from stress and exhaustion is morally reprehensible to a substantial degree and absolutely demeaning of the human condition.

64 Each offender is convicted of each offence.

The sentences I pass are as follows:

65 Counts 3 and 4 relate to Mickey who had previous sex work experience. In regard to count 3, intentionally possess, each offender is sentenced to three years imprisonment. In regard to count 4, use, each offender is sentenced to four years imprisonment. Those sentences are to date, for Mr McIvor from 15 December 2005 and for Ms Tanuchit from 18 December 2008.

66 Counts 1 and 2 relate to Yoko who was enslaved for less than a month but was required to do sex work against her will. In regard to count 1, intentionally possess, each offender is sentenced to three years imprisonment. In regard to count 2, use, each offender is sentenced to five years imprisonment. Those sentences are to date for Mr McIvor from 15 March 2009 and for Ms Tanuchit from 18 March 2009.

67 Counts 5 and 6 relate to Susie who was enslaved for about two and a half months. She was also a somewhat older woman. In regard to count 5, intentionally possess, each offender is sentenced to three years imprisonment. In regard to count 6, use, each offender is sentenced to six years imprisonment. Those sentences are to date for Mr McIvor from 15 July 2009 and for Ms Tanuchit from 18 July 2009.

68 Counts 9 and 10 relate to Sophie who was enslaved for about five and a half months. In regard to count 9, intentionally possess, each offender is sentenced to three years imprisonment. In regard to count 10, use, each offender is sentenced to eight years imprisonment. Those sentences are to date for Mr McIvor from 15 February 2010 and for Ms Tanuchit from 18 February 2010.

69 Counts 7 and 8 involve the victim Jasmine who endured her plight for about ten months and was additionally subjected to degrading and abusive behaviour. In regard to count 7, intentionally possess, each offender is sentenced to three years imprisonment. In regard to count 8 each offender is sentenced to ten years imprisonment. Those sentences are to date for Mr McIvor from 15 December 2010 and for Ms Tanuchit from 18 December 2010.

70 There is a total effective sentence for each offender of twelve years imprisonment. In accordance with the legislation and taking into account the factors referred to above, I set a single non-parole period for Mr McIvor of seven years and six months to date from 15 December 2008 and to expire on 14 June 2016.

71 In respect of Ms Tanuchit and having regard to the sentence passed on her by Taylor DCJ and given that it is not substantially different to that of Mr McIvor I set a slightly shorter non-parole period of seven years to date from 18 December 2008 and to expire on 17 December 2015.

72 Mr McIvor is therefore eligible for release on parole on 14 June 2016 and Ms Tanuchit on 17 December 2015. The total terms will expire respectively on 14 December 2020 and 17 December 2020.

73 Mr McIvor and Ms Tanuchit, what that effectively means is that you have been sentenced to twelve years imprisonment, Mr McIvor with a seven and a half year non-parole period, Ms Tanuchit with a seven year non-parole period, which dates back to 15 December 2008 for Mr McIvor and 18 December 2008 for Ms Tanuchit, which means that you are eligible for release on parole for Mr McIvor on 14 June 2016 and Ms Tanuchit 17 December 2015. Of course, whether you are released on parole will depend upon whether or not you are of good behaviour whilst you are in custody.

74 I make it quite clear that the non-publication order of publishing any link between the working names and the real names of the victims is of course still in place.