Regina v Johan Sieders & Somsri Yotchomchin

[2006] NSWDC 184

CITATION:	Regina v Johan Sieders & Somsri Yotchomchin [2006] NSWDC 184
HEARING DATE(S):	13/6/06 to 21/7/06; 27/10/06, 29/9/06, 8/12/06
JUDGMENT DATE:	8 December 2006
JUDGMENT OF:	Bennett SC DCJ
DECISION:	Johan Sieders sentenced to 4 years imprisonment including non-parole period of 2 years; Somsri Yotchomchin sentenced to 5 years imprisonment including non-parole period of 2 years 6 months
CATCHWORDS:	CRIMINAL LAW - SENTENCING - particular offences - conduct of business involving sexual servitude of others - brothels serviced by women brought from overseas
LEGISLATION CITED:	Criminal Code (Cth), Ch 8, Div 270, ss 270.3,270.6 Crimes Act, 1914 (Cth), ss 6A, 16A, 17A
CASES CITED:	R v Arnold [2004] NSWCCA 294 R v Diaz [2005] VSCA 99 R v DS (2005) 191 FLR 337 R v Weitang [2006] VCC 637
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

JUDGMENT

Background

1 These are the sentence proceedings arising from the conclusion of the trials in the matters of Regina v Johan Sieders and Regina v Somsri Yotchomchin.

2 On Tuesday 13 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 Criminal Code (Cth). The accused were separately represented.

3 After some days dealing with legal argument, a jury was empanelled on 19 June 2006, however on 20 June 2006 it was 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.

4 A fresh jury was empanelled on 26 June 2006 and the trial recommenced, however this jury was discharged that day when one of the members informed the Court that he or she could not continue because of commitments previously made. When this was brought to the attention of the parties, application was made for discharge and it was granted.

5 A fresh jury was empanelled and the trial recommenced. On 21 July 2006 the jury returned with verdicts of guilty in respect of each of the accused.

6 The accused Sieders was charged with the following offence contrary to s.270.6(2) Criminal Code (Cth):

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.

7 The accused Yotchomchin was charged with the following offence also contrary to contrary to s.270.6(2) Criminal Code (Cth):

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.

Non-publication orders

8 I note that in the proceedings from the first the names of the women who were found to be in sexual servitude were the subject of a non-publication order. I propose to grant the Crown’s application that there continue to be no publication of the names of these women or the publication of any information that might enable their identities to be ascertained.

9 Three of these women gave evidence at the trial.

10 The women concerned shall be referred to in this document by their initials.

The maximum penalties

11 The maximum penalties, upon conviction for these offences, is imprisonment for fifteen years: s.270.6(2)(d) Criminal Code, (Cth).

The time spent in custody

12 The offender Sieders was arrested on 30 July 2004 and spent fifty-five days in custody until granted bail in the Supreme Court on 23 September 2004. Upon conviction on 21 July 2006 he was taken into custody, bail refused, pending sentence. Accordingly, the sentence to be imposed upon him should commence on 27 May 2006.

13 The offender Yotchomchin was arrested on 30 July 2004 and spent twelve days in custody until granted bail on 11 August 2004. Upon conviction on 21 July 2006 she was taken into custody, bail refused pending sentence. Accordingly, the sentence to be imposed upon her should commence on 9 July 2006.

The Crown cases

14 The accused were not charged as participants in the same offence, but rather were charged with separate offences, albeit engaged upon conduct of an identical nature and involving persons who were connected with both of their enterprises. As reflected in the charges quoted above, the offender Sieders engaged in the conduct of a brothel, whereas the accused Yotchomchin had engaged in the conduct of a business comprising of a number of brothels.

15 The Thai women who were the subject of the sexual servitude with which the offenders were charged were, in all but one case, used in both enterprises.

16 The witnesses called to give evidence in both trials were, for the most part, young women employed as prostitutes in the brothels operated by the offenders within the same period of time. It was appropriate for these trials to be conducted together and at the same time. No application was made, in any event, on behalf of the offenders for the trials to be conducted separately.

17 The Crown case was that these offenders operated brothels in which young Thai women, in circumstances of sexual servitude, were engaged to provide sexual services to clients of the brothels until they had generated income sufficient to discharge, in each case, a debt of approximately $45,000 comprising about $15,000 for arrangements made in Thailand for their travel to Australia with a tourist visa, and a further $30,000, or thereabouts, in Australia for their opportunity to remain and work here.

18 The evidence from each of the Thai women regarding their decision to come to Australia was in large measure comparable. The first step was to arrange for a suitable visa by means of which they could legally enter this country. A woman in Thailand, known as or referred to as Pat, orchestrated these arrangements. Her correct name is Montha Phuncharaen.

19 Assistance was also provided in the form of a male person to travel as a companion with the Thai women, to lend an air of credibility to the purposes for which the travel was supposed to be availed of, and a sum of money was provided for them to give the appearance of having sufficient funds for that travel purpose.

20 Upon arrival in this country they were taken to a meeting with the offender Yotchomchin and delivered into her care. The money was retrieved from the women and the male person would depart, apparently to return to Thailand. The women were then put to work in the brothels operated by the offenders.

21 Of course the women could not remain here legally under the terms of the visas issued to them in Thailand. Thus, a corrupt Immigration agent was employed for the purposes of making applications in the names of the women for visas under the authority of which they could remain here. Mofazzal Haque Kazi was engaged for this purpose.

22 The money for disbursement in Australia included the fees paid to Kazi for his corrupt conduct on behalf of the accused Yotchomchin, preparing and lodging applications for protection visas and interim bridging visas for the women, prepared upon false representations to the Commonwealth authorities, allowing them to work in Australia at least while the applications were processed.

23 The Crown alleged that the women were not free to cease providing sexual services because of their fear of detrimental action against themselves and their families in Thailand should they not earn the funds needed to discharge the debt of $45,000 claimed by the accused, and the fear of deportation to the circumstances in their homeland from which they had escaped.

24 It was said on behalf of the accused that this was no more than a commercial arrangement at the conclusion of which these women were free to continue in the sex industry and harvest the available rewards for themselves. This theme has been continued in the submissions made in the proceedings on sentence.

25 I believe there is a flaw in this submission.

26 True it is that the women had the prospect of continuing to earn income from this industry after their debt was discharged. Indeed, as has been observed by Mr Wendler on behalf of the offender Yotchomchin to which I shall refer when summarising his submissions, there is evidence that some have continued to do so. However, it does not bring to account the risk faced by these women that at any point in time they were liable to deportation, and had the prospect of generating the money required to discharge their debt only to be then deported from this country without the opportunities to which counsel have referred.

27 Moreover, because of their status in Australia, they were required to exist in something of an underground community lest they be discovered, prosecuted, and returned to their homeland.

28 In written submissions prepared by the Crown the particular misconduct of these offenders has been summarised.

29 I shall first deal with what the evidence established against the offender Sieders in my assessment to a standard beyond reasonable doubt. Sieders owned and co-managed, along with his wife, a brothel at 373 High Street Penrith. At that brothel he employed Thai women who were in a condition of sexual servitude.

30 Three of those women gave evidence at the trial. They shall be referred to as L.K, W.P. and W.S..

31 The evidence at trial revealed that the offender Sieders remitted the following sums of money to the woman Pat (Montha Phuncharaen) in Thailand as part of the payment for these women in discharge of that component of their debt:

L.K. $9,595 on 24 April 2004
W.S. $8,625 on 3 January 2004.

32 There was also evidence of $8,155 having been remitted to the woman Pat in the name of R.S. on 2 April 2004, another girl who worked at the Penrith brothel amongst other places.

33 The evidence at trial also revealed that the offender Sieders and his wife, Rapeparn Arpornrat, worked in cooperation with the offender Yotchomchin in obtaining Thai prostitutes. This cooperation included sharing payment to Pat for securing the entry of the Thai women into Australia, and sharing the services of these women as prostitutes in their brothels once they arrived.

34 The offender Yotchomchin owned and managed a number of brothels in the Parramatta and Strathfield area, namely, unit 2, 81-89 Cosgrove Road, Strathfield, 4 First Street, Granville, 55 Pitt Street, Parramatta and 39 Lansdowne Road, Parramatta. At these brothels she employed Thai women who were in a condition of sexual servitude.

35 Four of these women gave evidence at trial. These were the three women to whom I have already referred and a fourth woman to whom I shall refer to as P.N. The non-publication order extends to that individual.

36 The evidence at the trial revealed that the offender remitted the following sums of money to the woman Pat in Thailand as part payment for these women:

L.K. $8,625 on 23 April 2004
W.P. $8,000 on 23 February 2004
$7,700 on 2 March 2004 for other Thai women
$6,800 on 3 March 2004 also for other Thai women

37 The evidence at trial satisfies me, beyond reasonable doubt that the women were in a condition of sexual servitude, under a contract to work without payment as prostitutes until they had earned $45,000 plus any additional sum added on. They were not permitted to leave the service of the offenders until that figure had been reached and they were required to work at nominated brothels, mostly brothels owned by the offenders.

38 I am satisfied that during the period of the sexual servitude there was the implied or actual threat of detrimental action if the women attempted to leave the service of the offenders without having repaid the debt of $45,000.

39 The offence of which the offenders have been found guilty involves the element of knowledge, that is, the offender must have known about the sexual servitude. This element can be proved by actual knowledge, or imputed knowledge, that is, through recklessness. In either case the offence is made out and the penalty, or the maximum penalty, is the same.

40 In the course of the trial the jury sought further directions regarding recklessness, however it remains for me to determine, according to the evidence, whether or not I may be satisfied beyond reasonable doubt that the knowledge of the offenders was actual knowledge, or was knowledge that should be imputed to them by reason of the concept of recklessness.

41 Notwithstanding the question that was posed by the jury in the course of their deliberations, I am satisfied beyond reasonable doubt upon the evidence at trial that both offenders knew that their businesses involved the sexual servitude of others, and I so find.

Submissions by counsel

42 Before turning to the circumstances of the individual offenders I shall refer to the submissions made by counsel on behalf of the offenders as to the nature of the offences and the objective seriousness of their commission.

43 On behalf of the offender Yotchomchin Mr Wendler submitted helpful written submissions in some detail. Reflecting some thoroughness, he divided his submissions between the Thai women in respect of whom these prosecutions were brought.

44 Dealing firstly with the woman L.K. he reminds me that upon the evidence, the cousin of this woman had earlier come to Australia to work as a prostitute, her purpose to alleviate the dire financial circumstances of her family who at that time were in danger of losing their home.

45 Prior to the involvement of the offender Yotchomchin and the woman Pat, L.K. had been dealing with another Thai person of the name Sie Thoy who had embarked upon the process of arranging for her to travel to Australia as a sex worker. According to the evidence, this arrangement became rather complicated and led to contact being made by the person Pat with L.K.. She knew that L.K. wished to come to Australia to join with her cousin to work in the sex industry, and as I understood the evidence, this was an arrangement that had been instigated by her cousin through the offender Yotchomchin.

46 L.K. was expecting to come to Australia to earn significant sums of money, particularly by comparison to the opportunities to earn money in Thailand. The purpose was to harvest sufficient funds to repay the family debt. Her brother acted as a guarantor for the agreed debt of $45,000.

47 L.K. arrived in Sydney on 23 April 2004. She was met at a hotel by the offender Yotchomchin. The offender took possession of her passport and her airline ticket. She was taken to the brothel at Strathfield where she met her cousin. Telephone contact was made with her parents and her boyfriend in Thailand but she was apparently unwell and rested for half a day before being put to work. She was provided with a SIM card for her mobile telephone. It appears that she was in regular contact with her brother and other associates.

48 The offender told her that she would be working in a number of brothels, including the brothel at Penrith operated by the offender Sieders. She lived in her cousin’s flat for a small number of days, and there was evidence regarding her sleeping arrangements at the home of the offender on another occasion.

49 She had acknowledged in her evidence that she felt an obligation to repay this debt of $45,000, and that her ultimate goal was to meet a further obligation she felt to financially assist her family.

50 Mr Wendler reminds me of her evidence regarding her introduction to the corrupt Immigration official Kazi, and the submission of a false application for a protection visa lodged on her behalf.

51 She engaged in the sex work for about four weeks, and did some escort work, but she was not comfortable pursuing this type of work and began to miss her boyfriend at home. To extricate herself from her circumstances, she embarked upon a course of self-help and resorted to procuring the assistance of a customer who, at her request, made contact with Immigration officials which in turn led to their attendance upon these premises.

52 There was evidence [from L.K's brother] regarding money that was allegedly sent by her to her brother in Thailand, but I am not satisfied that her brother’s perception as to the source of that money is accurate.

53 In relation to the woman W.S., Mr Wendler reminded me that on 3 January 2004 she arrived in Australia for the sole purpose of working in the sex industry. Her presence in Australia was by arrangement made through the woman Pat in Thailand.

54 Her evidence was that she was seeking the opportunity to make a significant amount of money. She had a debt of $45,000 and understood that it would take her three and a half months to repay this debt. She saw this as the cost of the opportunity to work in the Australian sex industry. She understood that there were two mothers of her contract. The term ‘mothers of contract’ or ‘mother of contract’, as I understood the evidence, referred to the person who exercised control over the arrangement until the debt was repaid and the girls were free to leave this servitude to embark upon sex work for their own benefit.

55 She also worked at the Penrith brothel and other brothels. She was also aware of a false application made for a protection visa. She gave evidence of having discharged her debt in three months and was earning between $12,000 and $13,000 a month.

56 She continued in the sex industry after retiring the debt. Her earnings reduced to about $8,000 per month and then $2,000 per month. This, I am satisfied, was a much more leisurely pace of work to be engaged upon in this industry, she having been relieved of the burden of finding the money to repay this imposed debt.

57 Mr Wendler reminds me that the money earned was tax-free. He reminds me that she sent money home to her family. He reminds me that she was provided with an indemnity against prosecution.

58 This is a matter of significance, he has said, because it seems odd, according to his submission, that these girls who are engaged upon illegal activity should be given an indemnity from prosecution whereas his client is exposed to the ignominy of the conviction and the consequence of incarceration, which is bound to follow.

59 With regard to the woman P.N., he reminded me that in her evidence she represented that in 2003 she made contact with persons who could arrange for her entry into Australia to work as a prostitute. She was introduced to the woman Pat and her decision was to improve her economic circumstances. She expected to earn a lot of money in Australia also.

60 There was evidence, regarding this woman, as to the contract expressed in terms of Baht as opposed to Australian dollars. The original amount was 500,000. Her husband would not sign the contract as guarantor. She then signed the contract without the guarantor but the figure was increased by 100,000 Baht, apparently to reflect the increased risk to the person imposing this debt, at least as they perceived it to be.

61 She arrived in Sydney on 3 December 2003. She was a more mature woman, of thirty four years. She was able to keep her passport and her airline ticket. Once she arrived in Granville she was told by the offender that she would have to pay $45,000 to her. Her perception was that she was obliged to honour this debt and could not escape because of the contract to which she had been made subject. She worked in a number of brothels operated by the offender.

62 She too was the subject of a false application for a protection visa. This was following advice given to her by Yotchomchin that her visa, which allowed entry into this country, did not permit her to work in Australia, and she needed another visa document.

63 Mr Wendler reminds me that the police have assisted this witness with her current visa status and that they have told her they would assist her to remain in Australia in return for giving evidence.

64 She retired her debt in three months working seven days per week earning $15,000 to $17,000 per month. She continued working in the industry throughout 2004 and 2005 and at the time of giving evidence was still earning money in the sex industry. The suggestion has been made that this was tax-free and money has been sent home to Thailand.

65 The witness W.P. came to this country with previous experience in the sex industry in Hong Kong. She came here to make money. She also wanted to provide funds to her family in Thailand for the renovation of their home. She also had the assistance of Pat in Thailand, incurred a debt of $45,000 and, it appears, an understanding of the arrangement before leaving the country to come to Australia.

66 She was met by the offender Yotchomchin in Sydney, and was taken to the Penrith brothel. She worked at a number of brothels and retired her debt in two months and 20 days earning $15,000 per month. She worked in the sex industry throughout 2005 and continues to be, it appears, working in that industry. There was also a false application for a protection visa for her in which she participated. She too has an indemnity from prosecution.

67 On behalf of Mr Sieders, Mr Gelbert made submissions, which were not in writing. He embraced what had been advanced by Mr Wendler on behalf of his client and raised two other matters in respect of Sieders.

68 He submitted that the overall criminality of his client was less than that of Yotchomchin. Relevant to his case there were only three of these women employed in the brothel, whereas there were four employed by Yotchomchin in the various premises from which she operated. He submitted that that distinction should be reflected in the lower sentence that ought to be imposed upon his client.

69 He submitted that I should find that the knowledge of his client regarding the sexual servitude is to be assessed upon the basis of recklessness rather than actual knowledge. I do not accept that submission.

70 I do agree however that his role is marginally less than that of Yotchomchin, and that will be reflected in the sentences that are ultimately imposed.

71 I should note at this point that the amount of money that was earned by these girls to discharge these debts, in the time that they had to do so, required that they work long hours for seven days a week within those periods before they had generated sufficient funds to be able to engage upon the same trade for their own benefit.

The Offenders

72 On behalf of both offenders a case was presented regarding their individual circumstances in mitigation of the objective seriousness of the offences of which they have been found guilty.

73 I first of all note that the offender Sieders is fifty-six years of age, born on 19 April 1950. His wife, Rapeparn Arpornrat, is currently in Thailand. He owned and co-managed with his wife the brothel at 373 High Street, Penrith at the material times. He has no prior convictions.

74 The offender Yotchomchin is forty-three years of age born on 16 October 1962. She is divorced. At the time of these offences, as I indicated earlier, she operated a number of brothels. She has no prior convictions.

75 The evidence before me included pre-sentence reports. First, dealing with the offender Yotchomchin, exhibit Y1 is a report signed by Tamzin Dand on 15 September 2006. The report notes that much of the information that was elicited from the offender in the first interview is unverified.

76 It reports that the offender only allowed the Service to contact her defacto partner. There were two interviews. In the first of these the offender presented willing to engage in discussion of background information for the preparation of the report. The following day however, at the second interview, she said that she did not wish to be interviewed and gave the writer a note, which read “On legal advice I cannot discuss this. I accept jury’s verdict.” Thereafter the offence with which the offender was charged was not discussed and the interview was terminated.

77 Accordingly, the report provided in respect of Yotchomchin, notwithstanding the best efforts of the author, is of limited value, but I consider that it offers some balance to what has been provided by way of the evidence from Stephen J Woods, Psychologist. His report became exhibit Y2 and he gave evidence before me speaking to the matters therein.

78 The material that has been provided by way of the presentence report refers to the offender’s birth in Thailand as a member of a large blended family. It is said that she is the eldest of three children to her natural parents and that she has other siblings from her parents' other relationships.

79 She claimed an unhappy upbringing marred by poverty, her parents' separation, and an unplanned pregnancy following a rape at the age of thirteen years. Her son, who was born after that event, is now thirty years old and lives with his maternal grandparents in Thailand. He has some minor physical disability, apparently following a motor vehicle accident in his adolescent years. He has apparently been the subject of attention by law enforcement agencies in that country for illicit drug use.

80 According to the offender all but one member of her family live in Thailand. Her younger sister lives in Cabramatta. An older brother died from alcohol related illness, and another brother abandoned his family leaving them in the care of the offender’s parents and herself.

81 The offender claims to maintain contact with her parents, her son, and her sister who lives in Cabramatta. The information is a little confused in the report. I am not quite sure from what is there written where her parents are.

82 She told the author that she immigrated to Australia in 1997, and lived with her husband whom she met through her sister. This marriage lasted for about two and a half years but broke down as a result of her husband’s infidelity. They were divorced in 1999. She became an Australian citizen in the same year.

83 She is currently in a defacto relationship of about seven years duration, and according to her partner they enjoy a happy union. He represents that he intends to remain supportive of Ms Yotchomchin, and he visits her frequently whilst she is in custody.

84 Her education concluded in Thailand at the age of ten. She was unable to continue with education because of her family’s impoverished circumstances and the need for her to assist her mother selling goods at the local market and with home duties.

85 Her work history in Australia has been unskilled, labouring, cleaning, in restaurants and a plastic factory, and also in a laundry at a nursing home.

86 After she separated from her husband she began working as a prostitute and continued in this work until she was charged with the offence upon which she appeared before me and the jury.

87 She has obviously prospered in that enterprise to the point where she was able to develop her own premises and have others working for her in the circumstances that I have earlier described.

88 The defacto partner, according to the report, represented that a few months prior to her arrest the offender was managing a brothel. Either the author has misunderstood what was said or that is a blatant misrepresentation of the facts.

89 The offender claims not to have ever used illicit drugs. She claims that she uses alcohol only on occasions and in moderation. This has been verified by her partner. She has been a gambler, regularly attending at a casino, and would spend significant amounts of money playing the poker machines. The offender does not consider this to be a problem, although her partner sees it otherwise.

90 The offender reports that she sends money back to her parents in Thailand to support her brother’s three children, two of whom are of school age. This part of the report clarifies my earlier confusion about where her parents and these children were.

91 She has a debt of $35,000, which she has borrowed to buy a car.

92 The report makes the following comment

It was difficult to engage Ms Yotchomchin on issues surrounding her offending behaviour as she would not elaborate or provide any information in this regard. Her offending seems highly sophisticated in view of her ability to manipulate officials from a Federal Government department to achieve her ends, and her associations with others who may be involved in corrupt and deceptive misconduct warrants caution.

93 With that observation I agree.

94 The report suggests that she is unlikely to derive any benefit from supervision by the Service. She is suitable for community service and she is suitable for periodic detention. Those options are not appropriate in my assessment in this case.

95 As I said Stephen J Woods, Psychologist presented a report, which became exhibit Y2, and he also gave evidence before me on 27 October 2006 when the proceedings on sentence were conducted.

96 The Crown has challenged the representations and the opinions he has formed. In particular, the Crown challenges the proposition that the offender suffers from a post-traumatic condition known as disorder of extreme stress, not otherwise specified, described by Stephen Woods as a condition similar to post-traumatic stress disorder.

97 Mr Woods attributes that condition to the circumstances of the rape that she suffered at the age of thirteen years in the course of which she was held captive and continued to be held captive for about three days. According to Mr Woods this is the genesis of the condition that she has described.

98 I note that he has represented in the report that the New South Wales Court of Criminal Appeal in R v Arnold [2004] NSWCCA 294 determined that psychologists are qualified to diagnose psychiatric disorders. That puts the proposition far too high. I have had access to a copy of that decision and the relevant passage appears at para [63].

99 The observations there by his Honour Mr Justice Adams were in respect of the evidence that was before his Honour, the sentencing judge, under review by the Court of Criminal Appeal at that time. It was in respect of a report that had been tendered on behalf of an offender, without objection from the Crown, without any challenge to any of the content.

100 Moreover, the author of the report had extensive qualifications, it appears to me far greater than Mr Woods although I will reserve judgement in respect of that because of the limited information available in the passage to which I am referring. In any event there was ample reason for his Honour to come to the view that the opinion expressed by the psychologist in that case was one upon which the Court could place appropriate weight.

101 It does not follow, that as a general proposition psychologists are qualified to diagnose psychiatric disorders, although their observations clearly may be taken into account by a sentencing court upon that issue. I agree with the Crown submissions made in relation to that aspect.

102 The report does provide some analysis of the background of the offender and detailed analysis of the injury suffered by her son in the motor vehicle accident to which I earlier referred. I am not persuaded however, that there is any connection between this condition described as disorder of extreme stress, not otherwise specified, in any causal sense, and the offender’s misconduct leading to the prosecution and the finding of guilt by the jury.

103 Mr Sieders is the subject of a presentence report, which is exhibit S3. It provides details of his background and his relationship with his previous wife. I note that relevant to that, evidence was led on his behalf from his daughter whom I accept as a witness of truth, and whose evidence I found to be reliable. I accept that Mr Sieders has a strong relationship with his former wife and his children of that union, and that he has continued to maintain the relationship with them as she described.

104 He has been in this country for some years after his migration from Holland. According to the report his present wife is presently under arrest in Thailand apparently for seeking to procure Thai nationals to travel to this country for work.

105 The report refers to his debt incurred when he set up his business venture, the brothel. It appears that he owes his brother $26,000 and his mother $31,000.

106 He was self-employed as a truck driver from his late teens until February 2004 when he decided to embark upon this enterprise that brought him before the Court. He has reported that he was influenced by his current wife to commence this business because she had been involved in such a venture in Thailand and there was some prospect of good financial gain.

107 He has told the author of the report he did not appreciate the complexities involved in this offence, and that the girls who were working for him could leave the premises at any time. He acknowledged, however, the debt and that the girls needed to work in the industry to alleviate the debt, but he maintained the position that there was nothing preventing them from leaving. He has been assessed as suitable for community service and periodic detention.

108 As I said his daughter gave evidence and I was impressed. But for this misconduct it would seem that he is a person who has made a contribution to the community, being involved in Dutch folk dancing.

109 His financial circumstances are somewhat imperilled. He owes his mother, as I have said earlier, $31,000. He owes the Tax Office $20,000. He has a credit card debt, and he owes his brother $26,000.

110 He has much ground to make up once he finally completes the sentence that is to be served as a consequence of this conviction.

111 I accept in his case that there has been no physical coercion exercised by him and that the extent to which he exercised control over these girls was somewhat more limited than that control exercised by Yotchomchin.

112 I also have in relation to him character references. One is from people of the name Potter from Eastern Creek who speak well of him, having known him for some thirty-five years. They are part of his extended family. They speak of him as being a hard-working, trustworthy, reliable man, and someone who would not deliberately hurt or offend others. They express surprise at his present difficulties.

113 There are additional references from a man of the name Rafferty, and another whose name I am unable to decipher, but they are, in essence, to the same effect.

The Crimes Act, 1914 (Cth) and Authorities

114 I am obliged to turn my mind to s.6A and s.17A of the Crimes Act, 1914 (Cth) when assessing the appropriate sentence. I am to assess the objective criminality of the offence. Mr Wendler, in whose submissions Mr Gelbert has joined, makes the following points.

115 “All complainants” (I interpolate here that the word “complainant” is probably not appropriate in the circumstances) actively and voluntarily sought out the opportunity to gain entry into Australia for the sole purpose of working in the sex industry for significant monetary gain. All sought economic improvement by the sale of sexual services. It is said that it would be contrary to the evidence, and nonsense, to suggest the complainants were pressured or manipulated by anyone to leave Thailand for the purposes of working in the Australian sex industry.

116 To some extent that is true. The girls have taken the opportunity to come to this country to improve the circumstances of their life and to escape those in which they had to exist in Thailand. However, in my assessment their circumstances have been the subject of exploitation by people such as Yotchomchin and the woman Pat in Thailand.

117 It is also said that none of the complainants were manipulated or deceived concerning work arrangements in the sex industry. It is also said that they proactively cooperated with the contacts in Thailand in order to secure the opportunity to work in a country where they could advance their own economic interests and those of their families.

118 It is said that there is no psychological or physical damage demonstrated by any of them. They were not the subject of total control over their movements and activities. This is so, as I understand the evidence. They were not placed behind a door secured by a lock and key. Nevertheless, there was the burden of the contract and the economic imperilment that it created and the fact that they were in this country illegally and at risk of deportation at any point in time.

119 I am reminded that the debt, once paid, was discharged and concluded, and that was the end of the arrangement. Thereafter the girls were free to earn as they wished to do at whatever pace they wished to do so. It is said that the period of sexual servitude was of short duration in each case. Three of the women were able to repatriate large sums of tax-free money to Thailand.

120 Significantly, it is said that there is something uncomfortable and intellectually troubling about the fact that the Thai women secured indemnities against prosecution whilst on the other hand the offenders, who provided the economic opportunities which they had sought and by which three of them have enriched themselves, stand to be punished and relegated to infamy.

121 It is said:

It is an escapable irony that having regard to the history of this prosecution two of the complainants have now secured visas which enable them to work lawfully in the sex industry. This is something they were not permitted to do when they first came to Australia.

122 The course of conduct in which the offenders engaged, I am reminded, involved these Thai workers in the sex industry on a continuing basis under contract, however it is also said that there is no evidence that the offenders arranged for the brothel businesses to use only Thai sex workers brought to this country under the terms of these so-called contracts.

123 The personal circumstances of the complainants were desperate it is said. All were of different ages. There is no evidence of any injury or loss or damage resulting from the offence. I am reminded that the offenders do not have previous convictions and it is said that they have excellent prospects of rehabilitation.

124 I have been assisted with authorities from other jurisdictions. I acknowledge that there is very little authority to guide and assist me in the imposition of sentences in this case. The first of those cases to which I have been invited is R v Diaz (2005) VSCA 99 in the County Court of Victoria. Mr Wendler has referred to this in written submissions. The decision was taken on appeal to the Court of Appeal in Victoria: R v DS (2005) 191 FLR 337.

125 In that case the offender was charged with offences that carried a maximum penalty of twenty-five years imprisonment. The sentencing judge imposed a total effective sentence of nine years with a non-parole period of three years. The offences had been committed as part of an international scheme involving the enticement of women from Thailand to Australia to work as prostitutes in circumstances where they were owned by the organisers and effectively kept under lock and key. On appeal the sentence was reduced effectively to six years with a non-parole period of two years and six months. Clearly that is a worse case than that which is presently before me.

126 I do note though that the Court of Appeal referred to the role of the offender in the enterprise. It was said that the offender played an important role in the scheme by effectively arranging for each of the victims to work in a brothel in circumstances where they were totally subjected to the direction of their owner so far as their work was concerned and were deprived of their basic freedom of movement.

127 The offender well knew that the scheme involved robbing the victims of their basic rights. She had been a victim herself at one stage and yet she participated in the illegal and highly immoral scheme. Her conduct was seen to be serious and the offences were likewise seen to be serious.

128 I have been referred to another decision from the County Court of Victoria, before his Honour Judge McInerny: R v Weitang [2006] VCC 637. This was a prosecution for offences of slavery contrary to s.270.1 and s.270.3 of the Criminal Code (Cth).

129 There were similarities between the circumstances of that matter and what I have before me. The case is instructive for it provides some reference to the legislative history of the provisions. The circumstances of the criminality were that the five complainants had been recruited in Thailand. They had all previously worked in the sex industry. They had all consented to come to Australia. They were part of a program where they were recruited and transported to Australia under entry visas and they were placed with owners of brothels to work off their contracts. The Thai connections were paid by the accused sums in the order of $20,000. The main contract debt was the sum of $45,000.

130 While under contract each woman would serve up to 900 customers over a period of four to six months. $110 would be charged for sexual intercourse. $67 went to the owners and $43 to the brothel. With each service $50 was deducted from the contract debt. The hours of work were, on average, from 6pm to 2am or later.

131 These figures and those hours are comparable with the evidence that was presented before me in this case in respect of the women who gave evidence.

132 There were ten counts. These attracted sentences of seven years in respect of four of them, five years in respect of two of them, four years in respect of two of them and three and a half years in respect of two of them. They were partly accumulated and partly concurrent. The overall effective sentence commenced on 9 January 2006 to expire on 8 July 2016, a period of almost ten years. There was a non-parole period of six years fixed.

133 In his sentencing submissions the Crown has also reminded me of my obligations to refer to s.16A of the Crimes Act, 1914 (Cth), which provides a checklist for the matters that I should take into account when sentencing these offenders.

134 I am reminded that the governing principle under s.16A(1) is the imposition of a sentence, which is of a severity appropriate to all the circumstances of the offence. In addition I must consider the matters adverted to in s.16A(2) and not overlook the important consideration of general deterrence.

135 The Crown correctly points out that the Division 270 of Chapter 8 of the Criminal Code is concerned with offences against humanity. This Division was inserted by the Criminal Code Amendment Slavery and Sexual Servitude Act, 1999 (Cth) and commenced operation on 21 September 1999. It was introduced upon the recommendation of the Australian Law Reform Commission to replace 19th century Imperial legislation dealing with slavery and like practices.

136 I am told by the Crown that these are the first prosecutions under this section, although, as noted by reference to the earlier decisions, there have been convictions based on similar factual circumstances where the offenders were charged with slavery offences. That is so in respect of both R v Diaz and R v Weitang.

137 The Crown submits that the offence with which each offender has been found guilty is plainly very serious as disclosed by the maximum custodial sentence prescribed by Parliament. The Crown submits that general deterrence, denunciation, and just punishment assume considerable importance as sentencing factors in respect of these offences.

138 The Crown submits that there is little difference in the relevant factual circumstances of each offender, however the evidence at trial reveals that the offender Yotchomchin had more extensive contact with the Thai organiser Pat than the offender Sieders. This is so according to my assessment and understanding of the evidence, and I note this submission concurs with what was said by Mr Gelbert to some extent.

139 I shall now refer specifically to the provisions of s.16A of the Crimes Act. I note s.16A(1) and that I must impose a sentence that is of a severity appropriate to the circumstances of the offence. Specifically I must note, by reference to s.16A(2) and the paragraphs appearing therein, the nature and circumstances of the offence. I have already dealt with that in some detail. There are no other offences to be taken into account.

140 The offences, although expressed in one count in each case, reflect a course of conduct consisting of a series of criminal acts of the same or similar character. I take note of that course of conduct. I have taken note of the personal circumstances of the victims of these offences and I note what has been said about three of them having improved their circumstances by being able to continue in the sex industry in this country. I have noted that injury, loss or damage resulting from these offences to the individuals is not a significant factor in this case.

141 I can put to one side the extent to which the offenders have shown contrition for this offence. There has been no plea of guilty and there has been limited, if any, cooperation with law enforcement agencies.

142 I note that this sentence should have an appropriate deterrent effect upon the offenders. I note that the offenders must be adequately punished. I have taken into account the character, antecedents and cultural background, age, means, and physical and mental condition of the offenders as reflected in the pre-sentence reports and the evidence given by the psychologist Mr Woods.

143 I am confident that there are prospects of rehabilitation for both offenders and I propose to accommodate that by the structure of the sentences with a longer period of parole.

144 I have also noted the fact that there will be some effect from the sentences upon the circumstances of the families of the offenders. I note, in the case of Yotchomchin, that seems to be confined to her defacto partner in this country, but there is also the impact it will have upon the lost opportunity for her to send money back to her parents and the children of her brother and also to her son in Thailand.

145 In the case of Mr Sieders, I note his economic circumstances and the impact this will have upon his family, particularly the children born to him and his first wife.

146 I should also note, in relation to the offender Yotchomchin - and this is something that is referred to in the material - that she appears to have limited English. It is said that she is the only Thai person at the place where she is presently incarcerated and that there is a sense of isolation being experienced by reason of the fact that she has no person with whom she can comfortably communicate.

147 Apart from her representation made to those who have advanced that information there is no other evidence before me regarding her limitations. I note that throughout the trial she had the benefit of interpreters but I also note that she has been in this country for some significant period of time and that she has been able to conduct what clearly have been, on any view, successful businesses.

148 I am simply not in a position to make a finding one way or the other with regard to the asserted difficulties. It is a matter that I would have thought there could have been some better evidence presented. It is a matter upon which I believe the offender has the burden on the balance of probabilities. That said, I will bring it to account when settling upon the sentence which I feel is appropriate to the circumstances of her case.

149 Before I actually impose sentence I want to make one further remark. I want to make clear that I am satisfied, beyond reasonable doubt, in keeping with the verdict of the jury, that these girls were subject to sexual servitude, and that during the period of their contract, as reflected in the dates appearing in the charges, they were required to work extensive hours for effectively no return to themselves, so that these contracts imposed upon them could be discharged in the shortest possible time, before they were able to work at a more leisurely pace and with a view to deriving an income to which they could have access.

150 That is serious enough, but the evidence does not, in my assessment, allow me to find to the appropriate standard that these women were physically restrained and prevented by any degree of force or confinement which prevented them from moving about in the community. That is particularly so in relation to the premises here at Penrith, but it also, in my view, applies to the premises operated by the offender Yotchomchin.

151 Of course these women were in a foreign country, they were not English speaking individuals and they were subject to arrest and deportation, living, as I said earlier, in something in the nature of an underground community. It is at that level of criminality that I am directing the sentences upon which I have settled in this case.

152 I should indicate before I actually impose sentences what I propose to do. I am satisfied that in both cases there are strong prospects of rehabilitation by reason of the material that has been presented to me. In the case of Yotchomchin I do not find and I do not accept that this condition observed by the psychologist Mr Woods has any causal relationship with the offence of which she has been found guilty.

153 That said, I do note that the operation of brothels in this community is not, of itself, an illegal activity. I believe I can come to the view upon the material presented that these two individuals are not likely to come back as subjects of a prosecution for like behaviour in the future.

154 They must both be sentenced to imprisonment to denounce what they have done and to publish generally that such is not appropriate in this country. Such exploitation is to be deplored, even without embarking upon an analysis of the flow-on effect of fraud upon the Commonwealth, tax avoidance and breach of the Immigration Law.

The sentences

155 I propose to sentence the offender Yotchomchin to a period of five years. I propose to set a non-parole period of two and a half years for her. I propose to sentence the offender Sieders to a term of imprisonment of four years and I set a non-parole period for him of two years to reflect the differences in their criminality.

156 The sentence to be imposed upon Sieders is to commence on 27 May 2006. The non-parole period will expire on 26 May 2008 and he will be subject to a further term of imprisonment to expire on 26 May 2010 during which he will be eligible for release to parole.

157 Mr Sieders you are convicted. You are sentenced as follows: I set a non-parole period of two years commencing on 27 May 2006 and expiring on 26 May 2008. I impose a further period of imprisonment of two years to commence at the expiration of the non-parole period and expiring on 26 May 2010.

158 The total sentence therefore is four years comprising the non-parole period and the balance of the sentence. I have found that by reason of the prospects for your rehabilitation it is appropriate to apply the ratio reflected in that sentence between the non-parole period and the parole period. You are eligible for release to parole at the expiration of the non-parole period.

159 Before I formally pass sentence on Ms Yotchomchin, the dates that I have calculated are that the sentence shall commence on 9 July 2006, the non-parole period will expire on 8 January 2009 and the parole will expire on 8 July 2011.

160 In respect of the offence upon which you have been found guilty of engaging in a business involving the sexual servitude of others you are convicted and you are sentenced to imprisonment as follows: I set a non-parole period of two and a half years commencing on 9 July 2006 and expiring on 8 January 2009. I impose a further period of imprisonment of two and a half years to commence upon the expiration of the non-parole period and expiring on 8 July 2011. The total sentence is therefore five years, comprising the non-parole period and the balance of the sentence.

161 By reason of the prospects for your rehabilitation from such misconduct in the future I am satisfied that it was appropriate to adjust the ratio between the non-parole period and the parole period as reflected in that sentence. You are eligible to be released to parole at the expiration of the non-parole period.

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