Regina v Johan Sieders & Somsri Yotchomchin

[2007] NSWDC 101

CITATION:	Regina v Johan Sieders & Somsri Yotchomchin [2007] NSWDC 101
HEARING DATE(S):	13/6/06 TO 21/7/06
JUDGMENT DATE:	4 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Bennett SC DCJ
DECISION:	Application rejected
CATCHWORDS:	CRIMINAL LAW - COMMONWEALTH OFFENCES - conduct of business involving sexual servitude of others - jurisdiction - whether conduct constituting the offence was to any extent engaged in outside Australia
LEGISLATION CITED:	Criminal Code (Cth) ss 270.4; 270.5, 270.6 Criminal Code Amendment (Trafficking in Persons Offences) Act, 2005 (Cth)
CASES CITED:	Esber v The Commonwealth of Australia & Another (1991-1992) 174 CLR 431
PARTIES:	The Crown Johan Sieders Somsri Yotchomchin
FILE NUMBER(S):	06/11/0023
COUNSEL:	Mr P Roberts SC Mr M Gelbert Mr G Wendler
SOLICITORS:	Ms G Knott - Cwth DPP Mr G Willis of Burston Cole & Mulock Solicitors Mr R Van Houten of Van Houten Solicitors

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JUDGMENT

Background

1 On Tuesday the 13th June 2006 Johan Sieders and Somsri Yotchomchin appeared before me for trial, each of them upon one count of conducting a business involving the sexual servitude of other persons contrary to s.270.6 of the Commonwealth Criminal Code. The accused were separately represented.

2 After some days dealing with a legal argument a jury was empanelled on the 19th June 2006, however on the 20th June 2006 it became necessary to discharge that jury when the first witness in the Crown case at the end of her examination-in-chief identified one of the jurors as a person with whom she was acquainted.

3 On the 26th June 2006 a fresh jury was empanelled and the trial recommenced. On the 1st July 2006 the jury returned with verdicts of guilty in respect of each of the accused.

4 On the 13th July 2006 immediately following the close of the case for the Crown, counsel for the accused Yotchomchin rose to submit that his client had no case to answer in respect of the charge brought against her. He submitted that she could not be lawfully convicted of that offence, as the Crown had presented no evidence of the jurisdictional requirements mandated by s.270.5 of the Commonwealth Criminal Code as it was when it is alleged that she committed the offence.

5 Counsel for the accused Sieders, without adding anything to the argument, made an identical application in respect of his client relying upon the submissions made by counsel for Yotchomchin.

6 The argument extended to the 14th July 2006, and after giving my consideration to the submissions made, I rejected both applications and indicated that I would publish my reasons in due course. The following are the reasons for rejecting the applications.

The Crown Cases

7 The accused Sieders was charged in the following terms:

Between about 1 December 2003 and 31 May 2004 at Sydney in the State of New South Wales, conducted a business, namely a brothel, that involved the sexual servitude of other persons, knowing about that sexual servitude, contrary to section 270.6(2) of the Criminal Code 1995 (Cth).

8 The accused Yotchomchin was charged in the following terms:

Between about 1 December 2003 and 31 May 2004 at Sydney in the State of New South Wales, conducted a business, namely brothels, that involved the sexual servitude of other persons, knowing about that sexual servitude, contrary to section 270.6(2) of the Criminal Code 1995 (Cth).

9 The accused were not charged as participants in the same offence, but with separate offences arising from alleged conduct and circumstances of an identical nature.

10 The evidence from the witnesses called was relevant to both trials. They included young Thai women employed as prostitutes in the brothels operated by the accused within the same period of time. It was therefore appropriate for these trials to be conducted together and at the same time. There was no application in any event by either of the accused for their trials to be conducted separately.

11 In each case the Crown was required to prove beyond reasonable doubt that:

(a) The accused conducted their business;

(b) The business involved the sexual servitude of other persons; and

(c) The accused know of that sexual servitude.

12 The first and second of these elements are what the Criminal Code refers to as physical elements, and the third is what the Code describes as a fault element.

13 The Crown case broadly stated was that these accused operated brothels in which Thai girls, in circumstances of sexual servitude, were engaged to provide sexual services to clients of those brothels until they had generated income sufficient to discharge in each case a debt of approximately $45,000, comprising $15,000 for arrangements made in Thailand for their travel to Australia with a tourist visa, and a further $30,000 in Australia for the opportunity to remain and work here. The applications for the tourist visas, and subsequent visas sought when the women were in Australia, were made upon false representations.

14 The arrangements in Thailand were set in place by a woman known as Pat with whom the accused Yotchomchin was associated.

15 The Crown alleged that the women were not free to cease providing sexual services because of the threat of detrimental action against themselves and their families in Thailand should they not earn the funds needed to discharge the debt of $45,000 imposed upon them, and the fear of deportation to the impoverished circumstances from which they had escaped if they had tried to do so.

The Relevant Provisions

16 The terms sexual servitude and threat are defined. S.270.4 of the Commonwealth Criminal Code provides in sub-section (1):

For the purposes of this division, sexual servitude is the condition of a person who provides sexual services and who, because of the use of force or threats:

(a) Is not free to cease providing sexual services; or

(b Is not free to leave the place or area where the person provides the sexual services.

17 Subsection (2) of this section provides:

In this section:

threat means

(a) a threat of force; or

(b) a threat to cause a person’s deportation; or

(c) a threat of any other detrimental action unless there are reasonable grounds for the threat of that action in connection with a provision of sexual services by a person.

18 Sexual service is defined in the Dictionary to the Commonwealth Criminal Code in the following terms:

Means the commercial use or display of the body of the person providing the service for the sexual gratification others.

19 It is common ground that s.270.5 of the Criminal Code, as it stood until its repeal and replacement by the Criminal Code Amendment (Trafficking in Persons Offences) Act, 2005 (Cth), applies to these matters. Counsel for the accused brought to my attention Esber v The Commonwealth of Australia and Another (1991-1992) 174 CLR 431 in support of this proposition, which in any event the Crown conceded in the course of the argument. This section provides,

A person commits an offence against section 270.6 or 270.7 only if:

(a) all of the following subparagraphs apply:

(i) the person is an Australian citizen, a resident of Australia, a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory or any other body corporate that carries on its activity principally in Australia; and
(ii) the conduct constituting the offence is engaged in outside Australia; and
(iii) the sexual services to which the alleged offence relates are provided or to be provided, outside Australia; or

(b) both:

(i) the conduct constituting the alleged offence is to any extent engaged in outside Australia; and
(ii) the sexual services to which the alleged offence relates are to any extent provided, or to be provided, within Australia; or

(c) both:

(i) the conduct constituting the alleged offence is to any extent engaged in or within Australia; and
(ii) the sexual services to which the alleged offence relates are to any extent provided, or to be provided, outside Australia.

The Submissions

20 Counsel for the accused submitted that s.270.5 of the Criminal Code, as it was when it is alleged that the offences were committed, did not provide jurisdiction to the Commonwealth for the prosecution of these offences, for none of the paragraphs (a), (b), or (c) could apply to the facts and circumstances upon which the Crown relies to establish its case.

21 The charges, as framed, allege that the accused conducted businesses in Sydney, but should have also alleged conduct outside of Australia to address the jurisdictional requirements that these paragraphs, expressed in the alternative, demand.

22 Counsel submitted that there was no evidence of any extra-territorial conduct on the part of the accused, or the Thai women in respect of whom these prosecutions are brought, upon which the Crown could rely in any event.

23 Counsel pointed to the words "cease providing" used in the definition of sexual servitude in s.270.4 of the Criminal Code, and submitted that properly construed, they required that the provision of sexual services by the person or persons in sexual servitude must be contemporaneous with the conduct alleged of the accused.

24 There was no evidence of threatening conduct by the accused outside of Australia to keep the women to the task of providing sexual services within Australia.

25 The conduct alleged of the accused and the sexual services provided all took place within Australia; the sexual services were only ever provided in Australia. The minimum jurisdictional requirement is that the sexual services should have commenced overseas and then continued in Australia, and, in circumstances in which the women concerned were not free to cease providing the sexual services in Australia.

26 It was submitted that the evidence adduced by the Crown is capable of establishing only that the women came to Australia and then commenced to work in the sex industry, that there was no continuation of the provision of sexual services from outside Australia to within, and that this continuum was necessary for there to be the jurisdiction claimed by the Commonwealth.

27 Without wishing to do injustice to the submissions of counsel, the points ventured might be conveniently summarised in the following way:

(1) The provisions under consideration, being a part of a criminal statute, should be construed narrowly;

(2) Upon the proper construction of the phrase "cease providing" used in the definition of sexual servitude, the provision of sexual services needed to be contemporaneous with the alleged misconduct of the accused; I understood this submission to be that the use of force or threats required for the condition of sexual servitude had to be contemporaneous with the provision of sexual services; that the force, or the threats, were to be contemporaneous with the provision of sexual services, and not before or after the time when they were being provided; and that the application of force or threats must be the conduct of the accused, and not of others associated with the accused and concerned in the arrangements for the deployment of these women in Australia from Thailand;

(3) S.270.5 of the Criminal Code imposes a jurisdictional limitation confining the Commonwealth to the prosecution of offences, such as are charged against these accused, to facts and circumstances to which one or other of paragraphs (a), (b) or (c) of s.270.5 may be applied;

(4) Each of these paragraphs require that the relevant facts and circumstances have extra-territorial characteristics before there has been such an offence committed;

(5) Paragraph (a) provides for Australian citizens, residents, or bodies corporate incorporated in the Commonwealth, the States or Territories, or carrying on activities principally in Australia, and, requires that the conduct said to constitute the offence, and the sexual services alleged, to have been outside of Australia;

(6) Alternatively, paragraph (b) provides for conduct constituting the alleged offence to any extent engaged in outside Australia, and, sexual services to which the alleged offence relates to any extent provided or to be provided within Australia;

(7) In the further alternative, paragraph (c) provides for conduct constituting the alleged offence to any extent engaged in within Australia, and, sexual services to which the alleged offence relates to any extent provided or to be provided outside Australia;

(8) The conduct alleged of the accused, and their enterprises, have no extra-territorial characteristics whatsoever; and

(9) The sexual services provided by the nominated Thai women were in each case provided entirely within Australia;

(10) Accordingly, the facts and circumstances upon which the Crown relies to establish its case do not answer any of the requirements of this provision, and accordingly no offence has been committed.

28 I was not referred to any authority in the course of the submissions.

29 In response, the Crown reminded me of the physical elements of the offence, namely, that the accused conducted their businesses, and, that those businesses involved the sexual servitude of other persons.

30 The Crown pointed out that the physical element of an offence may be conduct, or a result of conduct, or, a circumstance in which conduct or a result of conduct occurs: section 4.1(1) of the Criminal Code.

31 Conduct is defined at section 4.1(2) of the Code to mean an act, an omission to perform an act, or a state of affairs.

32 The Crown submitted that the conduct constituting the offences alleged against the accused includes the state of affairs in which the women from Thailand, whilst in their homeland, became indebted to others who, in due course, were to be paid the amounts claimed from the money harvested by Yotchomchin and Sieders from the sexual services provided by the women in Australia. The payments were to be made, and the evidence was that they were made, by way of the transfer of funds from Australia to Thailand from the cash flow generated by the women, after they arrived in Australia and began providing sexual services.

33 The Crown submitted that the arguments advanced on behalf of the accused failed to understand the true nature of the physical elements of these offences.

34 The accused conducted their businesses as brothels, involving the sexual servitude of the Thai women from whom the court has heard. This sexual servitude was a state of affairs, which, by definition, is conduct for the purposes of the Criminal Code. The state of affairs arose in Thailand from whence the women came to Australia after having fallen under the management and control of those who arranged for and facilitated their travel to Australia upon tourist visas obtained in response to false representations.

35 The Crown submitted that the events and circumstances that are alleged to have brought about the condition of sexual servitude in the four women, nominated as being in that condition, occurred in Thailand and Australia. The circumstances which brought about the condition of sexual servitude had their origin in Thailand, and then continued to evolve thereafter as the women were brought to Australia under the arrangement which had as its goal their deployment in these brothels to provide sexual services for the financial benefit of the accused, and to a lesser extent their associates in Thailand.

36 The jurisdictional requirements of section 270.5(b) of the Code are fulfilled if the conduct constituting the alleged offence is to any extent engaged in outside Australia, and, the sexual services to which the alleged offence relates are to any extent provided, or to be provided, within Australia.

37 The Crown submitted that paragraph (b) of s.270.5 is therefore satisfied.

Conclusion

38 I agree with the submissions made by the Crown.

39 The question is to be determined upon the proper construction of the relevant provisions. S. 270.5 (b) provides (emphasis added),

A person co mmits an offence against section 270.6 … only if: both the conduct constituting the alleged offence is to any extent engaged in outside Australia; and the sexual services to which the alleged offence relates are to any extent provided, or to be provided, within Australia;…

40 Clearly there is evidence that sexual services were provided by the four nominated Thai women within Australia, and accordingly that aspect of this paragraph is satisfied.

41 There are I believe two ways to approach the first aspect of paragraph (b) of the section.

42 First, the definition of the term conduct provided in the Code is expressed to mean, amongst other things, a state of affairs.

43 The state of affairs upon which the Crown may rely is the sexual servitude in which it is alleged that each of these women existed. This state of affairs in each case had its genesis in Thailand when the women made their connection with the woman Pat, with whom, according to the evidence, Yotchomchin was associated for the purposes of the arrangements to bring them from Thailand to Australia as sex workers upon visas obtained fraudulently. The state of affairs in each case therefore continued to evolve through a process from when the particular girl first began her association with the woman Pat.

44 In the circumstances, it must be said that this "conduct", that is to say the state of affairs of sexual servitude, was at least to some extent engaged in outside Australia.

45 Secondly, the second physical element of the offence, that the business involved the sexual servitude of other persons, is an element that may be properly described as a circumstance in which the conduct of the businesses occurred: s. 4.1(1)(c) Criminal Code.

46 What I have said with regard to the state of affairs of sexual servitude applies with equal force to the circumstance of sexual servitude contemplated in the second element of the charges.

47 I do not accept the submission of counsel for the accused that the phrase "cease providing" used in the definition of sexual servitude requires that the provision of sexual services be contemporaneous with the alleged misconduct of the accused in the way that he has ventured, according to my understanding of the submissions. What is required, relevantly, is that the effect of the threats required for the condition of sexual servitude be contemporaneous with the provision of sexual services, whether those threats were made contemporaneously or at some time before the provision of sexual services. In other words, it is the existence of the threat and its continuing effect upon the women that is to be established.

48 Neither do I accept that the threats must be from the accused. It is sufficient if there is evidence of the effect of the threats impacting upon the women said to have been in sexual servitude, of which the accused are shown to have the requisite knowledge, notwithstanding that the threats might have emanated from sources other than the accused, and at some earlier time.

49 The Crown is entitled to advance upon the evidence it has presented of the events and circumstances under which these women became a part of these arrangements commencing in Thailand, as evidence of sexual servitude that commenced there, and continued thereafter as the women were brought to Australia to be deployed as prostitutes in this country.

50 For these reasons I came to the view that the applications made on behalf if the accused that there be directed verdicts should be rejected.

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