Re Kim
[2013] VSC 465
•27 August 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 133 of 2013
IN THE MATTER of the Bail Act1977 (Vic)
and
IN THE MATTER of an Application for Bail by MOON JA KIM
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JUDGE: | T. FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 August 2013 | |
DATE OF JUDGMENT: | 27 August 2013 | |
CASE MAY BE CITED AS: | Re Kim; Application for Bail | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 465 | |
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CRIMINAL LAW – Application for Bail – Aiding and abetting dealing in the proceeds of crime with the value of $100,000 or more – Living on earnings of sex worker without licence – Unacceptable risk – Risk of flight not unacceptable – Risk of reoffending not unacceptable – Bail granted
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | K Breckweg | Office of Public Prosecutions |
| For the Accused | G.A. Georgiou SC with R. Avis | Vale Criminal Law |
HIS HONOUR:
On 2 July 2013 the applicant was charged with aiding and abetting Mae Ja Kim in dealing with money believed by Mae Ja Kim to be the proceeds of crime, contrary to sub-ss 400.4 and 11.2 of the Criminal Code (Cth). The money is said to be the proceeds of crime because it was derived from the provision of sex work contrary to s 10 of the Sex Work Act (Vic) 1994 (“the Act”).
The charge stems from an investigation code named ‘Operation Kitrino’. It is alleged that young women were recruited from South East Asia to provide sex work services in brothels in Melbourne. The applicant’s younger sister, May Ja Kim, is said to be at the head of a syndicate which did this recruiting. It is said that the syndicate employed recruiters in South East Asia, who located interested young women and arranged their travel visa requirements and accommodation in Australia. Good pay and conditions were offered and/or existing debts were allegedly paid out.
As I understand it, the recruited sex workers worked at one of four licensed brothels all located in the Melbourne inner suburbs. The syndicate did not own these brothels; its role was to provide them with the recruited sex workers. As I understand it, for every $130 charged for a sexual service by a worker, the worker herself would retain $75. The remaining $55 was split either 50/50 or 60/40 between the syndicate and the brothel licensee.
It follows that the syndicate would receive between $27.50 and $33.00 for every $130 received by sex workers recruited by the syndicate. As I have observed, the offending, which is said to make these receipts by the syndicate the proceeds of crime, is said to be contrary to s 10 of the Act. Section 10 makes it an offence for a person to derive a benefit from the earnings of sex work without holding the necessary licence pursuant to Part III of the Act.
The applicant is not charged with an offence under s 10, however. She is charged with aiding and abetting her sister to deal with money said to be the proceeds of crime, that crime or those crimes said to be breaches of s 10. The prosecution estimate that the applicant has aided and abetted the dealing in between $500,000 and $800,000 of the proceeds of crime.
The applicant is said to have lived in a two bedroom apartment in Southbank. When her house was searched roughly $8,000 was seized together with documents said to be rosters of brothels with the names of sex workers written against shift times, phone lists of sex workers and rent payments for sex workers’ accommodation. These documents are said to have been secreted at the premises. The applicant is said to have unexplained wealth and her assets would appear to be consistent with a high disposable income, certainly considerably higher than has been declared in her recent tax returns.
The applicant is prima facie entitled to bail. The prosecution contend that the applicant is an unacceptable risk of flight and also an unacceptable risk of re-offending. The onus rests with the prosecution to make good these submissions.
The applicant is a 56-year-old woman with no prior criminal history. She was born in Korea and more recently has been a Chinese resident. Since 2006 she has lived in Australia and has been an Australian citizen since 2010. She has returned to China and Korea frequently over the last few years and possesses a Korean and Australian passport. Both are currently in the possession of the Australian Federal Police.
It is put on the applicant’s behalf that she has a fledgling shiatsu massage business set up and ready to go in Elizabeth Street, Melbourne. In July this year a permit was granted permitting the premises in Elizabeth Street to be used for this purpose, although it appears there may be some technical problem with this permit.
I am told and accept that preparation of the hand up briefs is on schedule, and that it should be served by the fixed date of 25 September 2013. A committal mention is set down for 6 November 2013. It is notoriously difficult to predict the course and timing of future legal proceedings, however, it seems clear that even if the proceedings against all or some of the four co-accused were to collapse for some reason, the trial of the applicant could not occur before 2015 in any event.
I am told the committal will be contested, and it is likely to be conducted in February or March of 2014. I am also told that a delay of about 12 months from committal to trial can be anticipated.
In short, should the applicant decide to contest the trial, as is her right, it will be 18 months or more from her arrest to trial. This is an important factor that goes to any evaluation I must make of the acceptability or otherwise of the risks that the applicant presents if granted bail (see In the matter of an application for bail by Antonios Mokbel[1]).
[1](2002) VSC 312 at paragraph 41 and following.
Ms Breckweg, who appears for the respondent, in helpful submissions conceded that this timeframe was reasonable.
As I have said, the applicant is prima facie entitled to bail, and this application is opposed on the two bases I have identified. The prosecution bears the onus, as I have said, of demonstrating that one or other or both of the risks identified are unacceptable.
As to the risk of committing further offences whilst on bail, I consider that it is too early to reach any satisfactory conclusion about the strength of the evidence against the applicant or the extent of her alleged activities within the syndicate. Most of the evidence relating to this is contained in yet to be properly translated and transcribed telephone intercepts. I am prepared to accept, however, that the evidence will demonstrate that the applicant was a senior member of the syndicate, although not its leader.
Essentially, the prosecution argue that this was a sophisticated venture into organised crime and that given the applicant’s role in its administration, her otherwise inexplicable wealth and her apparent inability to derive income from any legitimate source, the applicant presents an unacceptable risk of returning to the type of offending that is currently alleged if she is granted bail.
Every grant of bail is accompanied by risk. President Maxwell in an application for bail by Fred Joseph Asmar[2], made the following observations, which I gratefully adopt:
[2]Re Asmar (2005) VSC 487
I deal separately with the risk to witnesses in the next section of this judgment. As to the risk of criminal behaviour if bail were granted, it is widely recognised that the prediction of future dangerousness is notoriously difficult. Making predictions is difficult enough when the person has been found guilty of relevant, recent criminal conduct. How much more difficult it is when – as will always be the case with a bail application – the applicant for bail is presumed to be innocent of the matters charged. In the present case, all that can be said is that the charges are very serious indeed. As Eames, J. said in Ghiller:
"A bail application is not concerned with determining the issues which the jury must decide, nor is it concerned with punishing a person in advance of that adjudication by a jury."
Senior counsel for the applicant drew my attention to the following statement by Fox, J. in Burton v R, which is relevant to the present inquiry:
"It is not normally a factor of any great weight adverse to the granting of bail that an accused person may possibly commit a crime while he is on bail. It should not readily be assumed that he might commit an offence, or further offence. If he does, he can be dealt with by the criminal law. There are, however, situations in which the consequences of any crime he commits while on bail may be so serious and have such widespread effect that the possibility that he may commit a crime while on bail is an important consideration." [3]
[3]Ibid, at paragraphs 19 and 20.
The applicant, as I have said, is 56 years old, has no prior convictions, and there are no other charges pending against her. I accept that the offending alleged is serious. However, I am not persuaded that the applicant is an unacceptable risk of reoffending. She will understand, very well I suspect, that her activities, if she is released on bail, will be fairly closely scrutinised by the Australian Federal Police and that any detected offending will jeopardise any grant of bail that I am minded to make. The fact remains, as I have said, that she is 56 years old without prior convictions and has no other charges outstanding against her. That weighs heavily upon me, as does the fact that any trial of the applicant is many months away.
Similarly, I am not persuaded that the applicant is an unacceptable risk of failing to appear on bail. It is true that she has some family in China and Korea, but she has substantial family and property ties to Australia. She has, as I have said, obviously no history of failing to appear on bail, a surety is available, apparently from a man who received a diversion in lieu of a sentence 11 years ago, and I can tailor conditions to ameliorate this risk.
I consider that conditions that require reporting to a nominated police station three times a week, the surrender of all passports held by the applicant, that the applicant not approach international points of departure, that she reside at a nominated address, together with a surety of $10,000 are sufficient to ameliorate the risk of absconding to a more acceptable level.
More generally, I think it is appropriate to impose conditions that the applicant not contact witnesses for the prosecution other than the police informant and her corroborator, and that she not contact current or former sex workers, managers, or licensees of the relevant brothels.
It follows that the applicant is prima facie entitled to bail and that the respondent has failed to discharge the onus of demonstrating one or other of the unacceptable risks that I have adverted to, and I propose to grant bail on the following basis.
I will refer in the body of the order to Ms Kim as Emily Kim. The order will be that she be admitted to bail on her own undertaking with one surety of $10,000 and upon the following conditions:
(1)That she attend the Melbourne Magistrates’ Court on 6 November 2013 at 9.30 am for committal mention or on such date as directed by the Court and not depart without the leave of the Court and as often as leave is given return at the time appointed by the court on granting leave and again surrender herself.
(2)That she report each Monday, Wednesday and Friday at South Melbourne Police Station between the hours of 7.00 am and 9.00 pm.
(3)That she reside at Southbank in the state of Victoria.
(4)That she surrender any current passport in her possession and not reapply for a passport or other travel documentation.
(5)That she not attend within one kilometre of any point of international departure.
(6)That she not contact witnesses for the prosecution other than the police informant or the corroborator,
(7)That she not use any telephone other than one nominated handset and sim card, subscribed in her name, the details of which are to be provided to the informant prior to their use.
(8)That she not communicate with current or former sex workers, managers or licensees of any of the brothels nominated in condition 9.
(9) That she not go within 100 metres of the licensed brothels at:
a) 39 Tope St South, Melbourne,
b) 43 Tope St South, Melbourne,c) 122 Dynon Rd, West Melbourne, and,
d) 392 Victoria St, Richmond.
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