Sieders, Johan v The Queen; Somsri, Yotchomchin v The Queen - [2008] NSWCCA 187

No judgment structure available for this case.

Reported Decision: 72 NSWLR 417

New South Wales

Court of Criminal Appeal

CITATION: SIEDERS, Johan v R; SOMSRI, Yotchomchin v R [2008] NSWCCA 187

HEARING DATE(S): 1 May 2008

JUDGMENT DATE:
13 August 2008

JUDGMENT OF: Campbell JA at 1; James J at 248; Johnson J at 249

DECISION: In each appeal -
(1) Appeal against conviction dismissed.
(2) Application for leave to appeal against sentence granted.
(3) Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW – COMMONWEALTH OFFENCES – sexual servitude offences – conduct of business involving sexual servitude of other persons – appellants convicted of offences against s 270.6(2) Criminal Code Act 1995 (Cth) – whether verdicts unreasonable or cannot be supported having regard to the evidence – whether facts alleged by Crown insufficient to establish the offence charged – whether no evidence or no sufficient evidence that appellants had the required fault element with respect to the offence – where fault element is knowledge of or recklessness as to the sexual servitude – s 5.4 Criminal Code Act - COURTS AND JUDGES – trial judge's directions to jury – whether miscarriage of justice occasioned by direction that jury could convict the appellants if satisfied accused were reckless as to the sexual servitude – where Crown referred only in passing to recklessness in closing address – procedural unfairness – where experienced counsel for accused did not object to direction at trial – rule 4 Criminal Appeal Rules – where limited objection made only as to trial judge's use of the expression 'wilful blindness' – whether use of that expression created a potentially misleading impression in the mind of the jury – substantive unfairness – whether s 270.6(2)(b) Criminal Code Act creates two distinct offences, one with knowledge and the other with recklessness as its fault element - APPEALS – whether open on appeal to a convicted person to take the point that there was no evidence of essential element of the charge – where point not taken in court below - STATUTORY INTERPRETATION – construction s 270.6(2) Criminal Code Act – extrinsic materials as aid to construction – s 15AB Interpretation Act 1901 (Cth) – new offence of debt bondage – s 271.8 Criminal Code Act – whether legitimate to use a statute which amends a previously existing statute to construe the statute in its unamended form – where earlier and later legislation do not deal with the same topic – where later legislation had not come into operation at the time of the events to which the present charge relates – where later legislation has work to do independent of the work done by the earlier legislation – where no ambiguity in wording of s 270.6(2) that needs to be clarified by reference to the later legislation - STATUTORY INTERPRETATION – statutory definition of sexual servitude – s 270.4 Criminal Code – condition of person in sexual servitude – person 'not free' to take particular actions – whether person in question must actually have taken those actions at any time in the past – where lack of freedom must arise 'because of' the use of force or threats – whether phrase conveys the notion of a causal relationship actually in operation – whether force or threats must be used by the accused – what constitutes a threat of detrimental action - STATUTORY INTERPRETATION – whether s 270.6(2) Criminal Code Act creates two offences with different fault elements or a single offence with alternative fault elements - WORDS AND PHRASES – 'not free' – 'because of the use of force or threats' –'detriment' – 'involves the sexual servitude of other persons' - CRIMINAL LAW – SENTENCING – whether overall sentences and non-parole periods manifestly excessive – objective seriousness of offence – subjective circumstances of offender – parity – sentence imposed on co-offender – whether regard should have been had to penalty applicable to offence of debt bondage – whether sentence falls within permissible sentencing discretion

LEGISLATION CITED: Acts Interpretation Act 1901 (Cth)
Crimes Act 1900
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Appeal Rules
Criminal Code Act 1995 (Cth)
Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999
Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004
Criminal Code Amendment (Trafficking in Persons) Act 2005 (Cth)
Insurance Act 1902

CATEGORY: Principal judgment

CASES CITED: Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203
Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453
Commissioner of State Revenue (Victoria) v Pioneer Concrete (Vic) Pty Ltd [2002] HCA 43; (2002) 209 CLR 651
Crampton v R [2000] HCA 60; (2000) 206 CLR 161
Deputy Federal Commissioner of Taxes (SA) v Elders Trustee and Executor Co Ltd [1936] HCA 64; (1936) 57 CLR 610
Grain Elevators Board (Vic) v Dunmunkle Shire [1946] HCA 13; (1946) 73 CLR 70
Khoury v Government Insurance Office of New South Wales [1984] HCA 55; (1984) 165 CLR 622
Kural v R [1987] HCA 16; (1987) 162 CLR 502
R v DS [2005] VSCA 99; (2005) 191 FLR 337
R v Hines (1991) 24 NSWLR 737
R v Lelah [2002] VSCA 96
R v McConnell (1993) 69 A Crim R 39
R v Moussa [2001] NSWCCA 427; (2001) 125 A Crim R 505
R v Schipanski (1989) 17 NSWLR 618
R v Solomon [1980] 1 NSWLR 321
R v Taufahema [2007] HCA 11; [2007] 228 CLR 232
R v Wei Tang [2007] VSCA 134; (2007) 16 VR 454
Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88
Smale v R [2007] NSWCCA 328
South v R [2007] NSWCCA 117
Weiss v R [2005] HCA 81; (2005) 224 CLR 300

PARTIES: Johan Sieders (Appellant)
Somsri Yotchomchin (Appellant)
The Queen (Respondent)

FILE NUMBER(S): CCA 2006/5299; 2006/5278

COUNSEL: H Dhanji (Sieders)
S Corish (Somsri)
P Roberts SC (Crown)

SOLICITORS: Burston, Cole and Mulock (Sieders)
Vanessa Jeavons & Associates (Somsri)
Commonwealth Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0023

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 8/12/06

CCA 2006/5278
CCA 2006/5299

CAMPBELL JA
JAMES J
JOHNSON J
13 AUGUST 2008

Johan SIEDERS v R

SOMSRI Yotchomchin v R

Judgment

1 CAMPBELL JA: This is the concurrent hearing of two appeals. Each appellant was convicted before his Honour Judge Bennett SC on 21 July 2006 of an offence against s 270.6(2) Criminal Code Act 1995 (Cth).

2 The indictment against the appellant Sieders alleged that he:

Criminal Code Act

“namely a brothel”

“namely brothels”

3 The two appellants were sentenced on 8 December 2006. The appellant Somsri was sentenced to an overall term of 5 years with a non-parole period of 2½ years, each of which periods commenced on 9 July 2006. The appellant Sieders was sentenced to an overall term of 4 years, with a non-parole period of 2 years, each of which were to commence on 27 May 2006. The differing commencement dates of the sentences directly reflected differences in the period that each appellant had been in custody before being sentenced.

4 The provisions of the Criminal Code that are of central relevance to these appeals are:

270.4 Definition of

sexual servitude

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

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

(2) In this section:

sexual service

threat

(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 the provision of sexual services by a person.

…

270.6

Sexual servitude offences

(1) A person:

(a) whose conduct causes another person to enter into or remain in sexual servitude; and

(b) who intends to cause, or is reckless as to causing, that sexual servitude;

is guilty of an offence.

Penalty:

(c) in the case of an aggravated offence (see section 270.8)—imprisonment for 19 years; or

(d) in any other case—imprisonment for 15 years.

(2) A person:

(a) who conducts any business that involves the sexual servitude of other persons; and

(b) who knows about, or is reckless as to, that sexual servitude;

is guilty of an offence.

Penalty:

(c) in the case of an aggravated offence (see section 270.8)—imprisonment for 19 years; or

(d) in any other case—imprisonment for 15 years.

(3) In this section:

conducting a business

(a) taking any part in the management of the business; or

(b) exercising control or direction over the business; or

(c) providing finance for the business.”

5 Section 270.5 required there to be both a territorial nexus of a particular type with Australia, and an element of conduct outside Australia, before an offence is committed against s 270.6. A ground of appeal that contended that s 270.5 had not been complied with was abandoned by both appellants.

6 The Dictionary at the end of the Criminal Code contains the following definitions:

detriment

threat

7 I note that sections 80B-80E Crimes Act 1900 reproduce these provisions of the Code, save for section 270.5, and hence would catch conduct occurring wholly within New South Wales that was within the terms of sections 270.4 and 270.6 of the Code. However the present trial and appeals were conducted as though only the Code provisions were relevant.

Uncontroversial Factual Matters

8 The appellant Somsri owned and managed three brothels, one in Strathfield and two in Parramatta. With his wife, the appellant Sieders owned and operated a brothel at Penrith.

9 The Crown called evidence from five Thai women concerning whom orders have been made not to disclose their identity. I shall refer to them (in the order in which they gave evidence) as AA, BB, CC, DD, and EE. The latter four had worked as prostitutes at these brothels during the period to which the indictments related, on the terms of a type of “contract” that lies at the centre of this case. AA, who was an older cousin of BB, had worked as a prostitute at the brothels pursuant to such a “contract” prior to the period to which the indictments related.

10 Each of the latter four women had entered into an agreement, while in Thailand, to provide sexual services in Australia. That agreement was with a Thai woman known as Montha or Pat, who recruited potential sex workers in Thailand, and then sent them to Australia pretending they were tourists.

11 All the women except BB were informed in Thailand that when they came to Australia they would be subject to a “contract” in the sum of approximately $45,000, which they were obliged to repay by earning an equivalent sum through prostitution in the brothels to which they were sent. BB’s evidence was that she was informed of those matters in Australia. The “contract” sum had to be repaid before they could earn any money for themselves. One of the women, and a member of the family of another, were additionally required to enter into a written agreement in Thailand as to repayment of a (significantly lesser) sum of money.

12 Each of the women was accompanied, on the flight to Australia, by a male escort, who delivered them to one or other of the appellants, or to Sieders’ wife. For the duration of the flight and their passage through Australian customs and immigration each of the women was given custody of a sum of money. However, upon passing through customs and immigration they were required to return that money. All the women bar one handed their passports and return airline tickets to either Somsri or Sieders, at the request of Somsri or Sieders.

13 On arrival in Australia the women were immediately taken to the brothel where they were required to work. The rules as to paying off their contracts were usually then explained to them. The women were told or given to understand that they would not receive any money in hand, and were not free to leave unless and until they had worked off their “contract” sum. The only exception to this was that very occasionally a customer might give them a tip (which the evidence said could be $5 to $20), that they were free to keep for themselves.

14 After arrival in Australia, Somsri or Sieders made arrangements for a solicitor/migration agent to make application on behalf of the women for a protection (refugee) visa on fictitious grounds. The making of such an application gave the women some standing under Australian migration laws, such that until the application was dealt with by the authorities the women would not be deported. In some cases, an amount said to be attributable to the cost of obtaining a visa was added to the “debt” that the women were required to work off.

15 No woman worked at the one brothel all the time. They worked sometimes at the brothels owned by Somsri, sometimes at Sieders’ brothel, and sometimes at a brothel managed by someone else. They were taken from one place of work to another, often by Somsri. On some occasions they asked for, and were granted, permission to leave the brothel for a specific purpose. Otherwise, they lived in one or other of the brothels or (only for some of the women, and for them only occasionally) in the house of one of the brothel owners. Their food and sleeping accommodation were provided by the brothels. BB had a mobile phone (the bill for which was paid by AA), on which she could telephone people, including her family in Thailand.

16 Four of the five prostitutes who gave evidence were able to pay off their “debt”, in periods ranging from 2 months and 20 days, to 7 months. Once the “debt” was repaid, these women continued working at brothels, though being paid for their services, and able to choose where they would work.

17 The woman who did not pay off all of her “debt” was BB. The Immigration Department sent people to the Strathfield and Penrith brothels on 20 May 2004 to check on the visas of the prostitutes. The immigration officials took some of the prostitutes away from the brothels. BB was one of the prostitutes detained in those raids. She was held in Villawood Detention Centre for a time, and later returned to Thailand.

18 There is evidence of sums of money being remitted by Sieders and Somsri to Pat. The dates and amounts, and the identities of remitter and remittee are established by documentary evidence. The Crown submits, without challenge by the appellants, that sums remitted by Sieders can be identified as being $9,595 relating to BB on 24 April 2004, and $8,625 relating to CC on 3 January 2004. As mentioned earlier, BB arrived in Sydney on 23 April 2004. CC arrived in Australia on 3 January 2004.

19 The Crown alleges, without contradiction by the appellants, that amounts remitted by Somsri to Pat can be identified as being $8,625 relating to BB on 23 April 2004, and $8,000 relating to EE on 23 February 2004. EE arrived in Australia on 23 February 2004. Other documentary evidence shows Somsri remitting $7,700 to Pat on 2 March 2004, and $6,800 to Pat on 3 March 2004, though those payments are not linked by the evidence to the arrival of any particular Thai woman.

20 The scale of charges according to AA and EE was $55 for fifteen minutes, of which the prostitute got $35. Half an hour cost $85 of which the prostitute got $50, and one hour cost $150 of which the prostitute got $85. The prostitutes were given credit for the full amount of their entitlement, without any deduction for tax. Thus paying off $45,000 would require the prostitute to perform 1286 fifteen-minute services, or 900 thirty-minute services, or 530 one-hour services.

21 DD was told that the rate of charges was $55 for fifteen minutes, of which the prostitute would get $30. Half an hour cost $75 of which the prostitute would get $45, and one hour cost $135 of which the prostitute would get $80. Though the reason for this discrepancy in rates was not explored in the evidence, DD was aged 37 at the time of the trial, and the other women were younger. At those rates, paying off $45,000 would require the prostitute to perform 1500 fifteen-minutes services, or 1000 half-hour services, or 563 one-hour services.

22 Each prostitute kept a record of her own earnings. As well, a record was kept by the brothel management.

The Grounds of Appeal

23 The grounds of appeal that the appellant Sieders presses are:

1. The verdict is unreasonable, or cannot be supported having regard to the evidence on the bases that:

(a) the facts alleged by the Crown are insufficient to establish the offence charged; and/or

(b) there was no evidence, or no sufficient evidence to establish that the appellant had the required fault element with respect to the offence.

2. A miscarriage of justice was occasioned as a result of the trial judge’s direction to the jury that they could convict the appellant if they were satisfied he was reckless as to the fact of sexual servitude.

24 The appellant Somsri appeals against conviction on grounds formulated in slightly different words, but no different in substance to those on which Sieders appeals.

25 Both appellants also seek leave to appeal against the sentence imposed, on the ground that the sentence was manifestly excessive.

Ground 1

26 Consideration of this ground requires the evidence of some of the individual witnesses to be stated in some detail.

AA’s Evidence

27 AA came from a country area in northern Thailand. She had been brought up by her uncle and aunt. That uncle and aunt were the parents of BB. They lived on a farm. The uncle had at some stage borrowed money from a bank for the purpose of his farming, but his farming venture had not been successful, and he was unable to pay the money back. Before AA left for Australia he was not strong, not well, and unable to work.

28 AA arrived in Australia on 18 May 2002. She came here under an arrangement whereby she had to repay $53,000. She paid that by working for a person called Gou, and when she paid it off she continued working as a prostitute, sometimes in a brothel owned by Somsri. She gave her evidence through a Thai interpreter. At the time of the trial she could not read English, and could speak English “a little”.

29 AA kept in contact by telephone with her family in Thailand. In early 2004 AA was aware that "the family had no money". At some stage AA suggested to BB that she come to Australia to work as a prostitute, and gave some information about how to go about achieving that objective. The means that AA suggested did not produce results. AA told Somsri about the prospect of BB coming to Australia, and Somsri telephoned Pat in AA’s presence. Somsri suggested to Pat that she contact BB, and gave her BB’s telephone number. BB told AA as arrangements with Pat developed.

30 By April 2004 AA was living in an apartment of her own, but still working at Somsri’s brothel. Somsri set the prices charged at that brothel. On 23 April 2004 Somsri collected AA and took her to the South Strathfield brothel to work. Later that day Somsri arrived there with BB. To AA’s observation, BB was not well – she was coughing, had a runny nose, and after she made a telephone call home was homesick and crying. AA was cross-examined about BB’s demeanour on the day BB arrived:

31 Over the Anzac Day weekend BB telephoned AA and asked to be picked up, as she was not well. At that time BB was working at the Penrith brothel owned by Sieders. AA told BB she should ask Tu (Sieders’ wife). BB telephoned AA back, saying that Tu had said that AA should ring Somsri. AA then telephoned Somsri, and asked if it was all right if she picked up BB. Somsri replied, "I have already talked to Tu, yes you can go and pick her up". When AA collected BB from the Penrith brothel BB had red eyes and a swollen face as if she had just been crying, and she appeared unwell.

32 BB stayed at AA’s flat for two to three days. On the third day Somsri arrived at the flat. AA told her that BB was not well yet, and had her period. Somsri then said “let [BB] go and have a rest at the shop". (The brothels were sometimes referred to as "shops".) There was another conversation on that occasion where Somsri asked AA:

“… would you like to buy [BB], we'll go half each. So I said "how much?". [Somsri] then said "Seventeen thousand. If you would like it, then we go half.” I then said I did not have any money. [Somsri] then said to [BB] "pack your belongings and go and have a rest at the shop"".

33 Somsri then took BB with her. Also in that conversation Somsri said “… they bought the person for 17,000 and it was half with Phee Tu, should I want to buy the share I could buy their share of the half.” (“Phee” is a Thai honorific that is sometimes placed in front of a person’s name.)

34 AA gave evidence in cross-examination:

35 On another day in early May 2004 AA and BB were both working at one of Somsri's brothels. Somsri asked AA “Please teach [BB] to work”. AA then gave BB advice about how to make herself appear attractive to clients, so that the client would choose her.

36 Later in May BB telephoned AA and asked AA to pick her up. After BB had obtained permission from Somsri, AA collected her from another brothel that was run by an Asian man. AA delivered BB back to a different Somsri brothel the next morning.

37 After BB was seized by the Immigration authorities and taken to Villawood Detention Centre AA received a telephone call from Tu. AA’s evidence was:

“A. She said that [Somsri] had gone and visited [BB] at Villawood.

BB’s Brother’s Evidence

38 BB's elder brother gave evidence that, before BB left for Australia, he was aware from conversations with AA that AA was working in Australia as a prostitute. BB asked him to meet someone to sign a contract about a loan, “as a guarantor”. He met Pat, who had a contract document with her. At the time the amount referred to in the contract was blank, but Pat said, in response to a question from the brother, that the amount of the loan was 450,000 baht. He wrote that amount in the document, and signed it. The document did not nominate any time by which the loan was to be repaid. Pat told him that the amount was to cover the cost of applying for a visa, a plane ticket and a passport. She also said that the money would be deducted from the income that BB would receive from working, and that would take about three months. At the then current exchange rates 450,000 baht was approximately A$15,350. The brother was earning 7500 baht per month, and was “definitely not” in a position to repay 450,000 baht.

39 The brother gave evidence that in one telephone call, after BB had come to Australia, she told him that she would ask police to come and arrest her from her place of work. His response was: “I asked her whether she was sure because these people are influential.” Her response to that was to cry.

BB’s Evidence

40 BB was aged 23 at the time of the trial. Documentary evidence showed she was born in May 1983, and so was aged 20 in April 2004. She gave evidence, in Thai, that she had a high school education. At the end of school she could speak a little English, but not much. She left to live in Bangkok with her elder brother at about the age of 20, and had a job selling porridge, in which she earned 5000 baht per month. She was aware that her cousin AA was in Australia working as a prostitute. Both BB’s mother and AA asked BB if she would like to go to Australia to work in the sex industry. Though BB had never worked as a prostitute previously, she decided, after almost a year of deliberation, to come to Australia, and set about making arrangements. At the time of her decision she was concerned that the bank might take the family's home away, and they would have nowhere to live. She said “when I decided to come here I wanted to come and earn an income in order to help my family to be clear of debt.” She was aware that when she went to Australia she would be working in a business which provided sex in return for money, but said she was not aware of the conditions in which she would have to work.

41 After the first set of arrangements for coming to Australia fell through, BB came in contact with Pat. Pat arranged for BB to enter into a sham marriage, obtain a passport in her new married name, open a bank account with money provided by Pat, and have a document purporting to be from an employer that falsely stated that she was an assistant manager with a salary of 8000 baht per month. On the basis of that documentation, and the representation that BB’s “husband” would be staying in Thailand, Pat obtained for BB a visa for travel to Australia as a tourist for five days.

42 Pat told BB:

"… that I had to find someone to come and sign a contract and that person has to be related or be siblings to me … she said that this contract would be for me that when I arrived here, should I ever escape, then the person who signed that contract would have to be responsible if I escape."

43 Two or three days before BB travelled to Australia she introduced her brother to Pat, and he signed a contract with her. At that meeting BB photocopied her brother's identification card, and, at Pat's request, gave that photocopy to her. BB said that she knew at that stage that she would owe some money in relation to the arrangements that had been made to send her to Australia, but she did not know the amount or how it would be paid back.

44 On the day of BB’s flight to Sydney she travelled to the Bangkok airport. There she met Pat, who gave her an airline ticket, some money, and her passport. BB also met the man who was to accompany her to Sydney. She arrived in Sydney on 23 April 2004. Once in Sydney she went with the man to a hotel, and waited. He took back the money that Pat had given her. She was left with a bit over 200 baht (200 baht was worth about $7). She also had a personal ATM card, relating to a bank account that had no money in it.

45 Somsri arrived and collected her from the hotel in a taxi. She asked BB to hand over her passport and airline ticket, which BB did. In the course of the taxi ride Somsri telephoned Pat, and handed the phone to BB, who responded to a question from Pat about the time she had arrived there. They went directly to the brothel at South Strathfield. There, BB was provided with some clothing “short and also thin… the clothing that working girls had to wear to work”. Somsri asked her to try them on and “at first I dare not”, “when she asked me to try them on I did not want to try -- put them on because they don't look -- they don't look good.” She was instructed, by both Somsri and AA, about how to greet clients. She was also advised by AA to keep her own record of clients serviced, to make sure that she was not cheated. On the first day she serviced one or two men. AA’s boyfriend gave her a SIM card for her mobile phone.

46 She came to learn, after her arrival, that the figure that she had to pay was $45,000. Somsri gave her the working name of “Vivian”. Somsri told her “that she had to move me to go and work at other places as well and for me not to … work at that place only”. Somsri gave her no information about what days she had to work, or whether she would have any days off.

47 Apart from occasions when BB obtained permission to stay at AA’s, and one occasion when she stayed at AA’s without permission, BB slept at the brothel at which she had been working.

48 BB’s first move away from Somsri’s brothel was to Sieders’ brothel at Penrith. Somsri told her “that I had to go and work about three or four days at Penrith and then she would come and pick me up to come back to the same place.”

49 BB was cross-examined about that conversation:

50 Sieders collected BB, and drove her to the Penrith brothel. Once BB had arrived there, she telephoned AA and asked to be picked up, as she was not well. BB handed the telephone to Tu, who then spoke to AA. Tu later made a telephone call to Somsri, after which AA and AA’s boyfriend came to collect her. BB heard Tu say to AA “that she did not know what was wrong with me, that when I arrived I cried.” (If AA’s evidence that this occurred over the Anzac Day weekend was accepted, these events occurred in BB’s first week in Australia.)

51 The Penrith brothel was located upstairs from a Thai restaurant. AA, the boyfriend and BB went there to eat. BB told AA that she would like to go home (meaning Thailand), that she no longer wanted to be here, and she asked AA to “do whatever that will facilitate me to go home”. At that time two police officers walked into the restaurant, and BB asked AA “to please go and let the police know and come and arrest me and send me home.” AA’s response was to laugh, and to tell her to stop crying and eat.

52 BB agreed in cross examination with the proposition that “after a very short time of being in Australia you found yourself totally unsuited to the sex industry”.

53 After BB had been at AA’s flat for three or four days Somsri came to the flat and asked AA whether BB had fully recovered. AA said that she was better but not fully recovered. To that Somsri said that “today she was picking me up to go to work … I had had many days off already”. Somsri then waited for BB to pack her things, and took her to one of Somsri's brothels. BB’s evidence continued:

54 BB serviced five or six people that day.

55 When cross-examined about the passage of evidence that I have just set out she said:

56 On occasions when she went to Penrith, Somsri told her that she was to go there, and Sieders came and picked her up. While at Penrith she slept at the brothel. Two or three times while she was at Penrith she did “escort work” which involved visiting clients at their home. On those occasions sometimes Sieders drove her to the home, and sometimes the client drove her.

57 On one occasion Somsri told BB that she would take her to get her visa extended. Somsri took her to be photographed, and she saw a solicitor. She signed a document, which she thinks was blank at the time she signed it. (It turned out to be an application for a protection visa, which told an elaborate and completely fictitious story about BB being a lesbian who was persecuted by extremist religious groups in Thailand, which caused her to fear to return.)

58 On three or four occasions she asked customers to help her. There was one Thai speaking man to whom she said (in Thai) “please help me get out of there, whatever you can do, please help me. I would like to go home.” After initial reluctance, that man said he would help, and made a telephone call in her presence, and spoke to someone in English, but the impression of BB was that he was unable to make contact. She asked other non-Thai speaking customers at the South Strathfield brothel to help her, saying (in English) “help me please. I want to go home. I not in work no good.” She gained the impression that they agreed to help her. She gave the number of her mobile telephone to two of the customers. Her evidence was:

Q. What did you think would happen if you walked out without paying back $45,000?

…

59 Her cross-examination about that evidence was:

60 The cross examination included:

61 One or two weeks before BB was picked up by Immigration she was working at a brothel called “shop 10” owned by a Chinese person, not by Somsri or Sieders. She telephoned AA and asked to be picked up from that brothel. AA enquired why. BB said that she did not want to work, she was sick. AA asked whether Somsri knew about her wanting to go home. (The impression from the transcript is that “go home” in that context referred to leaving that particular brothel, not going back to Thailand.) BB said that she had not. AA said to give Somsri a ring and let her know that BB was asking AA to come and pick her up from the shop. The evidence continued:

62 BB spent the night at AA’s flat, and in the morning telephoned Somsri. Somsri said that she would pick BB up at shop number 10. BB said she was not at shop number 10, she was at AA’s. Somsri was surprised to hear that, and asked how she had been there. BB told her that she was so sick that she asked AA to come and pick her up. Somsri said BB was to ask AA to drop her back to Somsri's brothel. BB was taken back there. The evidence continued:

63 One of the customers who BB had asked to help her, got in contact with the immigration authorities. Before the immigration authorities acted on the information BB was moved to the Penrith brothel. She notified the customer by SMS of the address to which she had been moved. It was soon after that that the Immigration Department raids occurred.

64 On the day of the immigration raids, there were too many working girls at the Penrith brothel for the number of clients. One of the girls asked for permission to go out shopping. BB asked that girl to please ask Sieders if she could go also. Sieders gave that permission. While they were out shopping BB received a call on her mobile phone, from a voice she recognised as Sieders. She handed the telephone to the other woman, who then passed on a message that Sieders had said to hurry back. They did so. It was after they returned to the brothel that the Immigration Department raid at Penrith occurred.

65 After BB was detained by immigration, she had a telephone conversation with AA in which AA recounted a conversation she had had with Tu:

CC’s Evidence

66 CC gave her evidence in Thai.

67 CC was born in northern Thailand, where her parents were farmers. She left school at the age of 12. She went to Bangkok when she was aged about 20, and found employment as a waitress. There, she did not do any sex work. She came in contact with Pat. Pat explained to her that if she went to Australia she would be doing sex work, and would have to pay back a debt of $45,000.

68 CC met Pat at Bangkok airport, who introduced her to a man who accompanied her to Sydney. CC did not have custody of her own passport or tickets. She was given cash before she left Bangkok, which she returned to the man in Sydney when he asked for it. The man took her to a hotel, from which she was collected by Somsri, Sieders and Tu.

69 CC was taken first to the Penrith brothel. Sometimes she ate at the brothel, and sometimes at the house of Sieders and Tu. She was taken to different brothels to work from time to time, by Sieders. She was not told at the beginning of the day or the end of the day where she would be working on the following day. Tu told her that she should go to extend a visa to remain staying here, and that it would cost $1600, which would be paid by being added to the contract amount. She was taken to see someone about getting a visa, and signed a form. She did not realise that that form was an application for a protection visa.

70 Another Thai term that appears in the evidence is “matak”, which translates as “mother of the contract.” CC said that the mothers of her contract were Somsri and Tu. Their role was to receive money, until $45,000 had been repaid to them.

DD’s Evidence

71 DD gave her evidence in Thai. When she was taken to the office of the solicitor who made a visa application in her name, "I did not say anything because I could not speak English that well".

72 DD did factory work in Bangkok. She married another factory worker, and they had two children. They encountered financial problems, and the bank took away a house on which they had paid a deposit. The husband was often away from home, sometimes for months without any contact, and DD found that he was living with another woman. The husband had worked as a taxi driver, but eventually he lost his taxi. DD arranged for her children to live with a friend or relative, and set about working overseas as a sex worker. She eventually came in contact with Pat, who introduced her to a woman called Pet, who said that her younger sister had a restaurant in Australia. Pet told DD that her husband would have to sign a contract for 500,000 baht. DD asked her husband to do so, but he refused. When Pet was told this she said that DD would have to sign the contract herself. Pet and a man brought a contract document to DD to sign in which the amount was 600,000 baht, not 500,000 baht. The man said that that was the amount because her husband did not sign. At the time the contract was signed Pet said:

"If you work and you pay back the debt then there's no problem. Should you escape then your family will certainly have problems."

73 Before DD left Bangkok a friend told her that the amount of debt you actually have to repay would be $45,000, notwithstanding the amount stated in the contract.

74 DD gave evidence about being accompanied to Australia by a Japanese man, given cash for the journey but being required to hand it back to her travelling companion once she had arrived. She arrived in Sydney on 3 December 2003. The Japanese man took her to a hotel, where she was met by Somsri and another Thai woman. DD kept her passport and airline ticket on arrival. DD heard a conversation between Somsri and the other Thai woman in the course of which they agreed to pay “8500” each to the Japanese man. DD was then taken to Somsri's house, where she met Tu. Somsri told her that “you have to pay me 45,000 in debt”. DD gave evidence:

75 At one stage she heard Somsri saying that AA’s niece would be coming to Australia and that Somsri “had to share half with Tu”. The evidence continued:

76 There were three occasions when Somsri sent $1000 to the family of DD in Thailand. Those amounts were added to DD’s debt.

EE’s Evidence

77 EE was one of 10 children of vegetable farmers. She was educated to primary school level. Her father died when she was about 18. She had a child as a result of a short-lived relationship. After a number of months she left the baby with her mother, and went to Bangkok to work in a restaurant. In late 2003 she went to Hong Kong for two months, and worked in the sex industry there, earning about 80,000 baht. On returning to Bangkok she came in contact with Pat, from whom she understood that if she went to Australia she would have to pay back $45,000, and that she would pay it back by working in the sex industry.

78 A man accompanied her on the flight to Australia. The man took her to a hotel, from which she was collected by Somsri and Sieders. On arrival, EE gave Somsri some money that the man had given her, and (at Somsri's request) her passport and airline ticket. She was taken to the Penrith brothel, and told she could sleep there. The next day Tu explained to her the rates of charge and division of charges. She usually worked seven days a week, but sometimes only six. Her usual hours of work were from 12 midday till 3am or 4am. She worked at brothels in Penrith, Parramatta, Strathfield and Granville. It was Somsri who took her from one brothel to another. She gave evidence:

Mr Kazi’s Evidence

79 Mr Kazi, a solicitor who acted in connection with the applying for protection visas for the Thai women, explained that a person who arrived in Australia on a tourist visa was eligible to apply for a protection visa within 45 days of arrival, and that if such an application was made the applicant was then entitled to a bridging visa that entitled them to stay in Australia and work until the application was decided. Kazi first met Sieders about September 2003 in connection with a visa application for Sieders’ wife. Sieders later telephoned Kazi several times and asked whether he was interested “to lodge some protection visa applications for their clients, for their friends”. These were “the girls”. Sieders told Kazi that he had a massage parlour or brothel. Sieders said “we do lots of protection visa application.” Thereafter, Sieders brought about four to five persons, all from Thailand, to apply for visas.

80 Kazi first met Somsri in late January 2004, when she came to his office to speak to him about lodging visa applications. She told him that she had a brothel and was a partner with Sieders. She told him that the girls came in under tourist visas, “and handed over me the passport of the girls to say what kind of visa they can lodge”. Kazi explained to her that they were not allowed to work under a tourist visa. Somsri then asked him to lodge the protection visa application. In all, Somsri sent him a total of “about four or five girls”.

81 He gave evidence that at some time in the period between September 2003 and April 2004 two or three girls were detained and the Immigration Department cancelled their visas because they were working. Kazi said he talked to both Sieders and Somsri:

“I talked to them, why you allow them to work, they said they have to work otherwise how can we support them.”

82 In one such conversation Sieders said to him:

“… that girls need to work because we have to pay some money to some people, they got a lot of outstanding debts.

Q. In what context did he say this to you, what were you speaking about?

A. In relation to the bridging visa because they are not allowed to work but they are working and the Department did cancel their visa on the basis that I asked them to wait until their bridging visa is in effect and that is the thing they said, no they have to work otherwise we can’t support them.

83 He also gave evidence of a conversation with Somsri:

“Sir I did it a couple of occasions in short after visa application lodge she call me, she want to make sure that she got visa or not and then I said she need to wait three months and then she said no, they have to work.”

84 His evidence about EE was that "she could not speak English at all".

The Offence Under Section 270.6(2)

85 Under this heading in the judgment I will seek to explain what is involved in the definition of sexual servitude and the offence under section 270.6(2). In the course of trying to explain, I will on occasions seek to convey a concept by using paraphrases of the statutory language. It should be clearly understood that I am not suggesting that any paraphrases that I use in this part of the judgment are necessarily ones that would be suitable to be used in instructing the jury. Rather, they are attempts to convey the concepts that the statutory language conveys, by using somewhat different language. There is a risk in this that the precise nuances of the statutory language might not be captured, even if the general purport is conveyed. Thus any explanation given here is not intended as a substitute for the statutory language.

86 There is nothing in the definition of sexual servitude that makes it inapplicable to a man or boy. However, as all people involved in the present case who were alleged to be in sexual servitude are women, for ease of explanation I shall speak as though the person in sexual servitude is female.

87 The first thing to notice about the definition of sexual servitude is that sexual servitude is a condition of a person. Because it is a condition of a person, it is an attribute of a particular identifiable person. It is not an action, or a series of actions, or even a failure to act, on the part of anyone. Rather, it is a state of affairs, of a fairly general kind. It is a state of affairs or set of circumstances in which the person in question lives her life.

88 An essential condition for a person being in sexual servitude is that that person provides sexual services. In the present case, there is no dispute that that condition is satisfied.

89 Another essential condition for a person being in sexual servitude is that the person in question is either not free to cease providing sexual services, or not free to leave the place or area where the person provides sexual services. Ceasing to provide sexual services, and leaving the place or area where the person provides sexual services, are each actions of the person in question. However, so far as is relevant to the definition of sexual services, they are not actions that the person in question has actually taken at any time in the past. Rather, they are potential actions, which the person in question might in future take. At a fairly high level of abstraction, one can readily understand the notion that a person who provides sexual services might cease to provide those services, or might leave the place or area where the person provides the sexual services.

90 What the notion of a person being not free to engage in a particular action seeks to capture is that there is something about the state of affairs or set of circumstances in which the person lives that prevents, or seriously inhibits, the person from engaging in that particular action. Being not free to engage in a particular action can arise from a matter of law, as occurs when a person is not free to enter or leave a country without a valid passport, or a married person is at any particular time not free to marry the next day someone other than their present spouse. It can arise from physical constraint, as occurs when a person is kidnapped. It can arise from a social or moral pressure that the person in question cannot resist, as occurs if a child is not free to go out at night without parental permission, or in some cultural traditions a person is not free to wear any type of clothing they might choose in certain situations, such as being in public. It can arise from limitations on the person's economic resources, as when the vast majority of people in Australia aged between 25 and 60 are not free to spend a year without working. It can arise from limitations on the person's own abilities, in the sense that a person of below average intelligence is not free to become a university professor, or a person of ordinary physical skills is not free to compete in the Olympic Games. There may well be other sources of limitations on a person's freedom to act in a particular way.

91 It is not necessary for the circumstance that makes a person “not free” to take some particular action to be one that renders that action absolutely impossible in all senses. For instance, a person with the care of an aged infirm parent can legitimately say that they are not free to live apart from the parent, notwithstanding that they are physically capable of walking out the door and never coming back.

92 There is nothing in the notion of being not free to engage in a particular action that requires the person in question to actually want to engage in that action. Thus, even if the person in question is happily married and with not the slightest desire to marry anyone else, he or she still has a lack of freedom to marry someone else the next day. A person who enjoys getting up and going to work every day, and who would be horrified at the prospect of a year’s idleness, can still be not free to take a year off work because he or she could not afford it. In these examples, for the purpose of immediate decision-making, the lack of freedom of the person in question is unimportant, because of what they actually want to do. But there is nonetheless a lack of freedom.

93 Thus, for a person to be not free to cease providing sexual services, or not free to leave the place or area where the person provides sexual services, it is not necessary for them to actually want to cease providing sexual services, or to leave the place or area where the person provides the sexual services. Rather, what is involved is that, if they were to want to, there would be some circumstance or set of circumstances in which they live that would prevent, or seriously inhibit, their taking that action.

94 Further, it is possible for a person to be not free to take some particular action even if they have agreed that they will not take that action, or if their being not free to take that action is a consequence of something that they have freely agreed to. For example, it seems that in Roman law one of the ways of becoming a slave was by a person agreeing to do so (WL Westermann, The Slave Systems of Greek and Roman Antiquity (1955) American Philosophical Society at 84; The Cambridge Ancient History, 2nd ed, Vol VII Part 2 at 329-331; TJ Cornell, The Beginnings of Rome (1995) Routledge at 281-283; W Buckland, The Roman Law of Slavery (1908) Cambridge University Press at 427-428). The definition of slavery in section 270.1 of the Code is:

“… the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.”

R v Wei Tang

“including”

“do not expand the definition but merely make it clear that conduct that the victim agreed to, or contracted to undertake, whether to meet a debt or otherwise are included within the definition. A volunteer slave, in other words, is no less a slave.”

95 The definition of sexual servitude requires there to be a lack of freedom to do either one of the two specific things identified in paras (a) and (b) of the definition. Thus, it is concerned only with a very specific respect in which there is a limitation on the freedom of action of the person in question. A person can be free to do a multitude of different things, but if she is not free to cease providing sexual services, or not free to leave the place or area where she provides sexual services, she will, if the other condition of the section is met, be in sexual servitude.

96 Another essential condition before a person is in sexual servitude is that her lack of freedom (of the relevant types) arises because of the use of force or threats. When the lack of freedom is something that exists only because of a constraint on the person potentially taking action, the phrase because of the use of force or threats does not convey the notion of a causal relationship that is actually in operation. Rather, what it seeks to capture is the notion that if she were to want to take the type of action in question, it would be the use of force or threats that would provide a cause of her not taking that action.

97 I do not think that the language requires that the use of force or threats be the sole cause of her not taking that action. However, even so, to say that “because of X, a person is not free to do Y” still requires X to play a quite significant role in the person's not doing Y. It is a stronger thing to say “because of X, a person is not free to do Y”, than to say “because of X, a person would not do Y if the possibility of doing Y were to present itself to her”. For some actions there might be ten or twenty different reasons why a person would not do Y if the opportunity arose, but it might not be appropriate to say of each of those reasons that because of it the person was not free to do Y. Whether the factors that inhibit a person from taking a particular course of action are strong enough for the person to be not free to take that action is very much a matter of evaluation of the circumstances of the individual case.

98 There is no necessity for force or threats to be used by the accused before the accused commits an offence under section 270.6(2). Rather, the force or threats can be used by anyone. What is essential about the force or threats is the role that they play in the lack of freedom (in the relevant respects) of the person in question.

99 In seeking to understand the statutory definition of threat, a threat of any other detrimental action can be a threat of any disadvantage at all, whether to the provider of the sexual services or anyone else. Thus a threat of disadvantage to, for example, a friend or relation of the provider of sexual services can be a relevant threat, if it is because of that threat that the provider of sexual services is not free in the relevant respects.

100 As a matter of language, a threat of detrimental action is a threat to take any kind of action whatever that will be to the disadvantage of someone. There is no reason why a threat of detrimental action needs to be a threat to take action that is illegal. Indeed, a threat of detrimental action can be a threat to take action that the person who it is contemplated will be subject to the detriment has agreed to. Under the ordinary mortgage securing a loan from a bank, the mortgagee agrees that if the debt and interest are not paid on time the bank can sell the mortgaged property - even so, when the bank tells a defaulting debtor that if he or she does not pay it will sell the mortgaged property the bank is threatening to take action that is detrimental to the mortgagor. It is just that (absent legislation like moratorium statutes) there is usually nothing illegal about a bank threatening to enforce its security.

101 There is no need for a threat of detrimental action to be specific about the particular detrimental action that might be taken. In some circumstances, it can be a clear threat to say “We know where you live”, or “Your daughter is quite pretty, isn't she”, or “You’ll regret this”.

102 There is an exception to the definition of “threat” concerning a threat of detrimental action when there are reasonable grounds for the threat of that action in connection with the provision of sexual services by a person. Though that exception was not relied on in the present case, it seems to me to seek to capture the sort of action detrimental to an employee that an employer might take against any employee whose work performance was not satisfactory.

103 For someone to be in a condition of sexual servitude is not in itself an offence on the part of any one. Before the offence under section 270.6(2) is committed, it is necessary for the accused to conduct a business (in the extended sense stated by section 270.6(3)). In the present case, there is no issue that both Somsri and Sieders conducted the business of a brothel.

104 The offence under section 270.6(2) also requires that the business in question involves the sexual servitude of other persons. For that to occur, it is not sufficient that someone who happens to be in sexual servitude has some role to play in the business. It is possible to conceive of a person who is in fact in sexual servitude, who has a part-time job in a business unrelated to the sex industry – in that case, the proprietor of that business may well not be conducting a business that involves the sexual servitude of other persons. The section does not say that it is an offence to conduct business that involves a person who happens to be in sexual servitude. Rather, before a business involves the sexual servitude of other persons, the sexual servitude of those persons must have some role to play in the business. Without trying to be exhaustive, one way in which this might occur is if the business in question involves provision of sexual services, and the sexual servitude of the people in question is relevant to enabling the business to provide the sexual services.

105 In the present case, there was no dispute that the four women in question worked in the businesses that Somsri and Sieders conducted. There is active dispute, however, about whether it is correct to say that any of them were in sexual servitude.

106 Another necessary element of the offence under section 270.6(2) is that the person who conducts the business knows about, or is reckless as to, that sexual servitude. A woman is in a condition of sexual servitude by reason of the existence of certain facts or state of affairs. For a business proprietor to know about or be reckless as to that sexual servitude, the business proprietor must know about, or be reckless as to, the facts or state of affairs by virtue of which the woman in question is in sexual servitude. I will give further consideration later in this judgment to what is involved in being reckless as to that sexual servitude.

Aids to Construction

107 So far I have been approaching the construction of section 270.6(2) and the definition of sexual servitude purely as a matter of textual analysis. Section 15AB Acts Interpretation Act 1901 (Cth) permits certain classes of extrinsic material to be looked at as an aid to construction:

“(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b) to determine the meaning of the provision when:

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.”

108 The provisions of the Code relating to sexual servitude were inserted by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999. The Revised Explanatory Memorandum relating to that Bill states that the provisions “are based on model provisions developed by the Model Criminal Code Officers’ Committee of the Standing Committee of Attorneys-General”.

The Officers’ Committee Report

109 The report of that Committee was published in November 1998. Apart from a stylistic change in the wording relating to the penalties, the provisions as enacted are identical to those recommended by the Committee. The report of the Committee drew together a variety of treaties concerning slavery and related topics. Amongst them was the 1966 International Covenant on Civil and Political Rights, article 8(3)(a) of which stated, “no one shall be required to perform forced or compulsory labour”. The report explains, at 16, the source of the Committee’s terms of reference:

Courier Mail,

110 The report continued, at 17:

“Commonwealth interest in ‘sex slavery’ or ‘sexual servitude’ pre-dates the issue of the discussion paper by several years. From the beginning the Commonwealth proposal focused on the international trade in women and children for the purposes of prostitution with particular attention being given to the traffic in people from Asian countries to Australia for commercial sexual purposes. A part of that trade involves the recruitment of children or young women from the poorer regions of developing countries, their import into Australia and employment in the sex trade in Australia under conditions which amount to ‘slavery’, ‘involuntary servitude’ or under what might be called servile conditions.”

111 The report referred to some information provided by the Australian Federal Police relating to such activities, and said, at 17:

“Clearly, there are a variety of arrangements and consequences alleged. In some cases and to various degrees, any pay received by the workers is offset by real or contrived debts or costs for board and lodging, and the degree to which the women are subjected to confinement and restriction is hard to ascertain but can also be reasonably assumed to be variable.”

112 The report referred, at 19, to a particular proposal that the Commonwealth had advanced for legislation that contained an inclusive definition of “servile conditions” that included:

“(i) where a person, employed to engage in prostitution, is not free to terminate that employment, or is not free to terminate it within a reasonable time and/or on reasonable terms;

(ii) where a person, employed to engage in prostitution, is not free to decline to render sexual services to a particular person or persons;

…

(iv) where a person, employed to engage in prostitution, is not free, without fear of retribution, to leave his or her place of employment or residence according to his or her wishes or choosing;

(v) where a person’s sexual services are pledged to another as security for a debt, and the value of those services, as reasonably assessed, is not applied towards the liquidation of the debt or the length and nature of the sexual services to be rendered are not reasonably limited and defined.”

113 The Committee did not proceed with that proposal. As it explained at 33-34:

“The Committee has also moved away from the previous formula which referred to the victim as being by reason of force or threats not free to cease providing sexual services within a reasonable time or on reasonable terms. This has been replaced by a simple reasonable grounds exception.

The Committee believes it assists to list threat of force or deportation as examples of unwarranted threats but agrees with criticism that the reference to other legal process should be removed as a specific example as it could mislead people.

It was also decided to remove from the definition the mention of being free to decline to provide services to a particular person or persons. The Committee is concerned that such a serious offence should not apply where someone is happy to provide sexual services, is free to leave, is not beaten or subject to other force; but simply refuses to kiss any clients. It should not be the case that an employer who threatens to sack the person on that basis should be able to be charged with the sexual servitude offence. While there are more serious issues, such as the policy in relation to condoms, the object of these offences is to regulate servitude, not prostitution.

…

There were a number of submissions which expressed the view that there will never be a time when it is reasonable (or warranted) for a person to be deprived of the freedom to refuse the provision of sexual services. This is incorrect. The reality of sex work is that where someone is employed to provide sexual service, there is invariably an obligation under the contract to deal with an assigned customer. To do otherwise would broaden the offence to the extent it would mean almost all employment of sex workers would be caught by the serious sexual servitude offence. This may be the desired result for some people, but is outside the main object of the offence and certainly cannot be made such a serious offence.

The definition of threat also now includes threats to another person, (for example, the victim’s child).”

The Revised Explanatory Memorandum

114 The Revised Explanatory Memorandum stated, concerning the definition of sexual servitude:

“The opening words of subclause (1) of this provision make it clear that for the purposes of the relevant offences under the Bill “sexual servitude” will only arise if one of the two specified manifestations of sexual servitude is brought about by the use of force or threats. Further, the definition of ‘sexual service’ in subsclause (2) makes it clear that sexual servitude can only arise in connection with the provision of commercial sexual services.

The force or threats need not be against the sex worker but may be against another person, such as the sex worker’s child.

The difference between slavery and servitude in the Bill is essentially one of degree. To establish slavery it must be shown that the accused exercises a power of ownership over the victim. Servitude falls short of ownership but the domination over the victim is such as to effectively deny her or his freedom in some fundamental respects. In relation to the sexual servitude offences in the Bill it is only if the victim’s freedom is denied in respect of one of the two matters listed in this subclause that an offence is committed.

Whether a person is ‘not free’ in relation to the matters specified in the definition will be determined on the facts of each case and in the context of the mischief the legislation is directed against; namely, sexual ‘servitude’. The fact that a person may suffer a penalty under the terms of a typical employment contract would not of itself amount to being ‘not free’. It is only if the force or threats effectively denies the person her or his freedom in relation to the two specified matters that sexual servitude can be made out. In borderline cases, where there is doubt about whether a person is ‘not free’ in relation to the matters listed in the definition, it is expected that the courts will resolve the matter in favour of the defendant.

Subclause (2) also provides an expanded definition of ‘threat’, to include (a) a threat of force; (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 the provision of sexual services by a person.

Whether there are reasonable grounds for a threat of detrimental action is a question of fact to be determined in the circumstances of each case. However, even if there are no reasonable grounds for a threat, sexual servitude will not be made out unless the circumstances are such that the threat effectively denies the person her or his freedom in relation to one of the two matters listed in the definition of sexual servitude.”

The New Offence of Debt Bondage

115 Both appellants placed reliance upon the fact that section 271.8 of the Code came into effect on 3 August 2005. The legislation that introduced it, the Criminal Code Amendment (Trafficking in Persons) Act 2005 (Cth), removed the definition of “sexual service” contained in section 270.4, and inserted a definition in identical terms into the Dictionary. It inserted into the dictionary of the Code new definitions:

debt bondage

(a) of his or her personal services; or

(b) of the personal services of another person under his or her control;

as security for a debt owed, or claimed to be owed, (including any debt incurred, or claimed to be incurred, after the pledge is given), by that person if:

(ba) the debt owed or claimed to be owed is manifestly excessive; or

(c) the reasonable value of those services is not applied toward the liquidation of the debt or purported debt; or

(d) the length and nature of those services are not respectively limited and defined.

personal service

116 It also inserted a new section 271.8:

271.8 Offence of debt bondage

(1) A person commits an offence of debt bondage if:

(a) the person engages in conduct that causes another person to enter into debt bondage; and

(b) the person intends to cause the other person to enter into debt bondage.

Penalty: Imprisonment for 12 months.

first person

second person

(a) the economic relationship between the first person and the second person;

(b) the terms of any written or oral contract or agreement between the second person and another person (whether or not the first person);

(c) the personal circumstances of the second person, including but not limited to:

Migration Act 1958

(ii) the second person’s ability to speak, write and understand English or the language in which the deception or inducement occurred; and

(iii) the extent of the second person’s social and physical dependence on the first person.

(3) Subsection (2) does not:

(a) prevent the leading of any other evidence in proceedings for an offence against subsection (1); or

(b) limit the manner in which evidence may be adduced or the admissibility of evidence.”

117 The appellants submit that the creation of this new offence shows that the offence of sexual servitude is not applicable to cases where a person has voluntarily entered into an agreement to provide sexual services, and have the payment for those services applied towards payment of a debt.

118 Before considering the merits of that argument, there is a prior question of the extent to which it is legitimate to use a statute which amends a previously existing statute as an aid to the construction of the statute in its unamended form. Various cases, collected in Pearce & Geddes, Statutory Interpretation in Australia, 6th ed (2006) LexisNexis Butterworths para [3.33]-[3.35] suggests that this legitimately can be done in at least some circumstances. Rather than puzzle over how that could ever be correct as a matter of principle, I shall consider what High Court authority requires me to do.

119 A limit on the scope within which a subsequent statute can be used to construe an earlier statute was considered by Dixon, Evatt, and McTiernan JJ in Deputy Federal Commissioner of Taxes (SA) v Elders Trustee and Executor Co Ltd [1936] HCA 64; (1936) 57 CLR 610. It concerned a landholder who held certain pastoral leases. Prior to 30 June 1914 these pastoral leases were exempt from land tax. Amending legislation, assented to on 21 December 1914, removed that exemption, and said nothing about from what date the exemption was removed. The question for decision in the appeal was whether the exemption applied for the financial year beginning on 1 July 1914. That matter was complicated because (at 624):

“… the amending Act of 1930 contains a provision showing the that the legislature understood the exclusion made by the Act of 1914 from the exemption of Crown leases operated in respect of the financial year beginning 1st July 1914 …

If, having regard to the circumstances known to him or her at the time, it was unjustifiable to take that risk, that is to continue conducting the business with a substantial risk that there were people in the condition of sexual servitude, if it was not justified for them to continue, well then the third element will have been established.

I have used the term wilful blindness and it seems to me that that might best assist you in light of the tenor of your question in relation to this with regard to recklessness. If there is a substantial risk that these women were in a condition of sexual servitude and if the accused were aware of that substantial risk, and having regard to the circumstances known to him or her, with regard to that you need to look at a number of things which I will come to, but having regard to the circumstances known to him or her, if it was unjustifiable to continue to conduct the business in respect of those people, in respect of whom there was a substantial risk of them being in sexual servitude, well then the third element is made out by the Crown.

… Well of course before you get to this you would need to be satisfied beyond reasonable doubt that there was the sexual servitude of those persons. Once you have reached that level of persuasion, if you have, in respect of that part of the case, then you consider, well, were the accused, or either of them in respect of their particular cases, were they aware of the substantial risk that those women were in sexual servitude. You might not be satisfied beyond reasonable doubt that they actually knew, but if in the circumstances you come to the view that they were aware of the substantial risk and according to the circumstances that were known to them at the time, him or her at the time, it was unjustifiable for them to continue in this activity, then the third element is made out.”

192 His Honour summarised the evidence that the jury could look to in deciding whether the third element was made out:

“You have first of all, the description of the circumstances in which the women were working as sex workers for these accused, in these businesses that have been identified to you. You have their descriptions of where they were living. You have the descriptions they have given as to their movement between the premises and how they were taken from one to the other and by whom. You have the evidence that has been given in relation to the harvesting of the money that was generated by these women in providing sexual services; who took control of the money and what happened to it and to what purpose it was applied. You have the evidence of what the women have described themselves as to their perception of what they were told by the accused from time to time in the course of their work. You have the description of the circumstances of their delivery into the care or custody, depending upon your view of the evidence, of the accused when they came into this country, delivered by a man who travelled with them from Thailand, taken to a hotel where they remained until the accused [Somsri], and on I think at least one occasion, accompanied by the accused Sieders, meeting at the hotel and then taking them from there immediately to a brothel where they were put to work after some short period of time.

You have got the evidence of the telecommunication interception that has been tendered before you. You listened to what was said between the accused in that conversation. You also have the evidence of the interviews with the police officers and the acknowledged lies.”

193 The telecommunication intercept to which his Honour referred was a conversation between Somsri and Sieders, in English, in which Somsri complained about lack of business since the immigration raids because girls don’t want to work as they are scared of immigration. Somsri also reported on telling a man from Immigration “I don’t have my girl. I don’t buy girl, I don’t do contract any more”.

194 After the jury retired, Mr Gelbert raised a concern that the term “wilful blindness” could distract the jury from the terminology of the section itself, and requested that the judge withdraw the words “wilful blindness”. Mr Wendler joined in that application. His Honour declined to do so.

195 After a further period, the jury sent another note enquiring, “what elements do we use to define ‘substantial risk’?” Discussion between the judge and all three counsel about how to deal with that question occurs over seven transcript pages. All four lawyers expressed a disinclination to paraphrase the words of the section. The judge gave further directions, to the effect that they were ordinary English words and should be applied in accordance with the jurors’ understanding of the language.

196 The next day, Friday, 21 July 2006, Mr Gelbert was absent and Sieders was represented by Mr Willis. The jury returned with guilty verdicts at 2:35pm. After those verdicts were announced, the judge asked both Mr Wendler and Mr Willis whether there was any reason why he should not proceed to formally convict his client of the offence. Both Mr Wendler and Mr Willis answered that question in the negative. The judge then proceeded to formally convict each of the accused.

Procedural Unfairness?

197 The appellants submit that the decision to instruct the jury about recklessness resulted in procedural unfairness. They submit that the entire case had been conducted on the basis that the Crown had to prove that the accused knew that the women were in a condition of sexual servitude, but the judge’s direction undermined that position. The direction opened up a new area of inquiry, namely whether either of the accused were reckless as to the events that had taken place in Thailand.

198 This submission should be evaluated in light of rule 4 of the Criminal Appeal Rules:

“No direction … given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal … unless objection was taken at the trial to the direction … “

199 As is apparent from the history I have related, no objection was taken at the trial to the direction that was given, apart from the specific objection about the expression “wilful blindness”.

200 In R v Solomon [1980] 1 NSWLR 321 a trial judge gave directions in relation to murder on the basis of reckless indifference to human life when the parties had conducted the trial without reference to that possible way in which murder could be committed. Street CJ at 327-328 held that in some circumstances it can be open to a trial judge to give directions on a matter tending towards conviction that neither party has relied upon. He said:

“It seems to me that, where a judge does cover fresh ground in terms that are correct in law and properly based on evidence in the case, at the highest his decision so to do will only be challengeable if it can be seen that the accused person was thereby placed at a tactical disadvantage. In such a situation, appellate intervention would be appropriate, not by reason of the judge having canvassed fresh ground simpliciter, but by reason of unfairness attending his so doing.

The relevant unfairness will ordinarily be looked for in procedural considerations. The judge, drawing upon his own forensic experience, will be readily appreciative of the tactical considerations which will have governed counsel in the conduct of the case for the accused. Objections to evidence, lines of cross-examination and decisions upon the material to be advanced on behalf of the accused, not to mention the general trend of the final address to the jury made on behalf of the accused, will all, of course, have been governed by the nature of the Crown case as opened by the prosecutor and developed through evidence tendered on behalf of the Crown at the trial. It is readily understandable that, within these procedural and tactical fields, there could arise an element of real prejudice, if the judge, in his summing-up, raises new approaches available to, but not expressly relied upon, by the Crown. But in every case in which a question arises regarding the development of new approaches, the question concerning the judge at first instance, and on appeal the question concerning this Court, will be to determine whether in so doing there will be worked an unfairness to the accused.”

201 The principles have recently been stated by Johnson J in Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 at [137]-[149] as follows:

“Where a ground of appeal against conviction asserts that a miscarriage of justice has occurred arising from the trial judge leaving to the jury a possible basis of conviction which had not been relied on by the Crown, a number of principles arise for consideration and application.

Whitehorn v R

Nudd v R

R v Carroll

R v Ronen

Weiss v R

Nudd

Whitehorn

R v Meher

R v Tangye

Tran v R

Tangye

Tran

Solomon

R v Pureau

Solomon

R v GAS

R v King

King v R

Carr

v R

R v Whitfield

Solomon

GAS

Carr

R v RTB

Meher

Carr

RTB

R v Heuston

Solomon

R v King

Carr

202 Those principles have recently been re-stated in Smale v R [2007] NSWCCA 328 at [80], [83].

203 In the present case the trial judge raised the question of recklessness with counsel for the first time after Mr Gelbert had completed his address but before Mr Wendler began his. The Judge provided a draft of the remarks he was proposing to make on the topic. Mr Gelbert did not seek to make any supplementary address to the jury concerning recklessness, and Mr Wendler made his address knowing that the judge was contemplating giving a direction concerning recklessness. No counsel submitted that the judge ought not direct the jury concerning recklessness. Even when it became apparent, from the notes the jury sent, that they were giving attention to the topic of recklessness, counsel for the accused did not submit that the judge ought modify or withdraw the direction he had given concerning recklessness. Indeed, they collaborated in discussing the way in which the judge should answer the jury’s questions.

204 As Hunt AJA said in South v R [2007] NSWCCA 117 at [33],

“… the atmosphere of a trial is rarely apparent from an appeal book.”

205 If experienced defence counsel who have sat through a trial have failed to object that the course the judge had taken, or was proposing to take, created unfairness for their client, there is difficulty in making good, on appeal, the submission that there has been any such unfairness: Smale v R at [98]; South v R at [35]. In light of that, and of my own conclusion that the verdicts were justified on the evidence (a relevant matter in light of Weiss v R [2005] HCA 81; (2005) 224 CLR 300) I would not uphold the submission that making mention of recklessness caused a miscarriage of justice.

206 A subsidiary aspect of this ground of appeal related to the trial judge’s direction concerning “wilful blindness”. There are numerous judicial warnings about the danger of using the expression “wilful blindness” when directing a jury concerning an offence in which knowledge is the mental element: R v Schipanski (1989) 17 NSWLR 618 at 620-621 per Gleeson CJ (with whom Grove and McInerney JJ agreed); Kural v R [1987] HCA 16; (1987) 162 CLR 502 at 511-512 per Toohey and Gaudron JJ (dissenting); R v McConnell (1993) 69 A Crim R 39 at [41] per Wood J.

207 In the present case, reading the directions concerning recklessness as a whole, I am not persuaded that their overall effect was to create a potentially misleading impression in the mind of the jury.

208 For these reasons I would reject the submission that there has been a denial of procedural fairness.

Substantive Unfairness?

209 The appellants submit that, as well, there has been substantive unfairness arising from the introduction of the notion of recklessness. It is said to arise because section 270.6(2)(b) created two distinct offences, one of which had knowledge as its fault element, the other of which had recklessness as its fault element. For the appellants to have possibly had a verdict of guilty entered against them by reference to the jury finding them guilty of an offence different to that with which they were charged, was submitted to give rise to substantive unfairness.

210 I am not persuaded that section 270.6(2)(b) creates two separate offences. While section 3.1(1) of the Code provides that “an offence consists of physical elements and fault elements” section 3.2(b) contemplates the possibility that there might be more than one fault element for the physical element of an offence.

211 In its own wording, section 270.6(2) suggests, by the use of the expression “an offence”, that only a single offence is intended to be created. The penalty provision for breach of section 270.6(2) is consistent with that view, providing a single penalty regardless of whether the offence is committed by knowing about, or by being reckless as to, the sexual servitude (though differentiating between whether the offence is an aggravated one or not). In those respects section 270.6(2) can be distinguished from section 270.3, in which subsections (1) and (2) create separate offences, with separate penalties, depending on whether the particular transactions relating to slavery that each defines were committed intentionally, or committed reckless as to whether the transaction involved a slave, slavery or slave trading.

212 For these reasons, in my view it is not established that there has been the kind of substantive unfairness that is alleged in the convictions being recorded.

213 I would not uphold the second ground of appeal.

Leave to Appeal Against Sentence

214 Both appellants seek leave, under section 5(1)(c) Criminal Appeal Act 1912, to appeal against their sentences.

Somsri’s Appeal

215 Somsri bases her application for leave to appeal against sentence on the basis that the overall sentence and non-parole period is manifestly excessive having regard to: (a) the objective seriousness of the offence and the subjective circumstances of the offender, and (b) the sentence imposed on the co-offender.

Objective Seriousness of the Offence

216 Mr Corish submits that the objective seriousness was “towards the lowest end of the scale” in light of various factors. I will consider each of these in turn.

217 The first is that there was no deception or manipulative conduct which induced the victims to work in the brothels, and each of the complainants was aware of the conditions of the arrangement prior to arrival in Australia. In broad terms this submission is correct. As a matter of detail, it could be said against it that there was evidence that BB was not aware of all the arrangements, just of the fact that it was proposed that she be providing sex in return for money, and that concerning the other women it is not shown that they were aware of the physical limitations under which they would live in Australia, or of the fact that they would receive no money at all, apart from the occasional tip, until their “debt” was repaid. However, the main reason why I would be disinclined to place weight upon this factor is that section 270.7 of the Code creates a separate offence of deceptive recruiting for sexual services. If Somsri had engaged in, or been an accessory to, any deceptive recruiting for sexual services, and there was no separate charge in relation to that deceptive recruiting, and Somsri requested that it be taken into account in sentencing her in connection with the charge under section 270.6(2), it could be taken into account and could have a tendency to increase the sentence. However, that is not a reason why her conduct should be regarded as being “towards the lowest end of the scale”.

218 The next basis of Mr Corish’s submission is that the applicant played no personal part in taking steps for the complainants to leave Thailand. He points out that the judge, in his remarks on sentence, commented:

“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 [Somsri] had more extensive contact with the Thai organiser Pat than the offender Sieders. This is so in my assessment …”

219 It is inaccurate to say that Somsri played no personal part in taking steps for the complainants to leave Thailand. There was evidence that it was Somsri who telephoned Pat, at AA’s suggestion, and set in train the process through which BB came to Australia.

220 As well, there is a separate offence under section 270.6(1) whereby:

“A person:

(a) whose conduct causes another person to enter into or remain in sexual servitude; and

(b) who intends to cause, or is reckless as to causing, that sexual servitude;

is guilty of an offence.”

221 The next factor on which Mr Corish relies is that “the operation of a brothel is not an illegal activity. But for the condition of commercial servitude, the provision of sexual services in a brothel is entirely lawful.”

222 I have difficulty in regarding this as a factor that mitigates the severity of the conduct. It is somewhat like saying “but for the fact that he was driving in a manner dangerous to the public, driving a motor car is a perfectly lawful activity”. It is the features of conduct whereby it is criminal that are of particular significance in deciding the objective seriousness of the offence, not features of the conduct that are not the aspects that make it criminal.

223 The next factor on which Mr Corish relies is that the women were not physically restrained or prevented from leaving by virtue of any threat of force or confinement. In relation to Somsri, there was the evidence of her conversations concerning the women “escaping”, and her conversation with DD in which she said that if DD escaped, “we will find you”. I accept that an assessment of the conditions under which the servitude happened is appropriate. The trial judge took this factor into account, saying:

“I accept that in [Sieders’] case 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 [Somsri].”

224 But even though there was no physical restraint on the women (in the sense of being locked up, or chained), and that is relevant to assessment of the seriousness of the offence, the message was clearly got through to the women, and accepted by them, that they were not free to leave until their debt had been paid. In relation to BB, Somsri collected her from AA’s flat and put her to work notwithstanding that she was ill.

225 The next factor relied on by Mr Corish was that, once the debt was discharged, some of the women continued to work in the sex industry. The judge accepted that that was so in his remarks on sentence. As the judge remarked, the fact that they have continued to work in that fashion

“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.” (ROS 6)

226 In any event, the continuance of the women working in the sex industry is consistent with their having voluntarily entered the arrangement in the first place, and not having changed their minds thereafter. However, the essence of the offence does not lie in compelling someone to do that which she does not wish to do. Rather, it lies in employing people, in this particular industry, who are not free to carry out the activities identified in section 270.4(1)(a) or (b) because of the use of force or threats, should they wish to carry out those activities.

227 The final matter relied on by Mr Corish was that the trial judge referred, (at ROS 25.2) to the women having been “the subject of exploitation” by people such as Somsri and Pat. The trial judge did not explain which of the various shades of meaning of “exploitation” he was intending. It is undoubtedly true that the women were utilised for the purpose of financial gain by Sieders and Somsri, in the sense in which any employer exploits his or her employees. It may be that the trial judge meant nothing more than that. However, in the present case the evidence indicates that the amount required by the Thai arrangers was less than $20,000 per woman, yet the women were required to “repay” $45,000. While it was the obligation of the brothel owners to provide food and shelter for the period during which the debt was being repaid, the shelter was provided in premises for which the brothel owners incurred no marginal cost, and the cost of the food for the period in question would have been nothing like $25,000. The “mothers of the contract” stood to make a considerable profit, in addition to the brothel owners receiving the proportion of the earnings that they would receive from a prostitute who was not under contract. I see no error in the trial judge’s having referred to the women being the subject of exploitation.

228 Standing back from these individual factors, and bearing in mind that the maximum penalty is 15 years, setting an overall term of 5 years with a non-parole period of 2½ years does not seem out of keeping with the objective seriousness of the offence. For someone to be denied personal freedom, concerning so intimate a matter as with whom and under what circumstances they will have sexual relations, is an inherently serious matter.

Parity

229 The trial judge imposed different sentences on the offenders “to reflect the differences in their criminality”. Mr Corish submits that the distinction made by the judge is that Somsri was found guilty of conducting a business at a number of brothels, whereas Sieders was found guilty of conducting a business involving a single brothel.

230 In my view, that submission misreads the trial judge’s remarks on sentence. His Honour pointed to various other differences between the two offenders, namely:

(a) Three of the women involved in the case were employed in Sieders’ brothel, whereas all four were employed by Somsri. (ROS 15)

(b) “[Sieders’] role is marginally less than that of [Somsri]” (ROS 15)

“… the extent to which he exercised control over these girls was somewhat more limited than that control exercised by [Somsri]

231 Those remarks are in my view justified, bearing in mind that it was only concerning Somsri that there was evidence of a warning given to one of the women not to escape, or of a conversation concerning “buying” one of the women. As well, there was evidence of Somsri insisting on BB working when she was unwilling to do so, and of her having a direct role in contacting Pat to arrange the bringing to Australia of BB. There was evidence of Somsri being one of the “mothers of the contract”. There was no corresponding evidence concerning Sieders on any of these matters. In my view the trial judge was justified in drawing a distinction between the two sentences to the extent he did.

Subjective Circumstances of Somsri

232 The subjective circumstances of Somsri were detailed in a report of a psychologist, Associate Professor Stephen Woods.

233 He reported that Somsri was currently aged 34 (a misprint for 44), the eldest of 3 children from her parents’ marriage, and part of a blended family of 13 children. Her father left home when she was about 5. She lived with her father for a couple of years, then moved to live with her mother. By that time there was a stepfather, who, like her father, was an emotionally and physically abusive person. She was raped at age 13, became pregnant, and in consequence she and her family were socially ostracised in their village, and forced to leave school. At the age of 15 she left her son in the care of her mother and moved to Bangkok to obtain work. She came to Australia in 1997, as she had a sister living in Australia. During the time she was here she met a man and began a relationship with him, and ultimately married him. She separated from that husband in 1999.

234 In late 1999 she met her current de facto partner, with whom she had no children. She began working as a prostitute in Australia around the time of separating from her husband. She continues to support her son in Thailand, who has a disability resulting from a motor accident. Around three months prior to her arrest she rented the premises where the offence occurred (I note that does not match other evidence – she was arrested on 30 July 2004 and DD had arrived and been taken to Somsri’s brothel on 3 December 2003). Professor Woods expressed the view that she was experiencing symptoms consistent with a post traumatic condition referred to as Disorder of Extreme Stress Not Otherwise Specified, resulting from her rape and detention, and subsequent ostracism, and aggravated by the need to leave her son in the care of her mother to go to a large city to find work at the age of 15. He also found that she was suffering from an acutely depressed mood, arising from her poor language skills and being the only Thai-speaking person in the gaol. He took the view that her risk of re-offending was low, and that her social isolation was exacerbating her psychiatric condition. The trial judge did not accept that her psychiatric condition had any causal relationship with the offence of which she had been found guilty. He has referred to the evidence concerning her subjective circumstances, and I do not see any basis for concluding that he did not take it into account.

235 There were no comparable sentencing statistics available for the judge, as this was the first prosecution that had been brought under the section (or, it seems, under any of its State analogues). However, the trial judge referred to the sentences imposed in R v DS (incorrectly cited in the judgment below as R v Diaz) [2005] VSCA 99; (2005) 191 FLR 337 (guilty pleas to 5 counts of sexual slavery offences) and R v Lelah [2002] VSCA 96 (conviction by a jury of a number of offences relating to the use of drugs to induce a person to continue prostitution).

236 The trial judge considered, in a way not shown to be in error, the various factors that section 16A and 17A of the Crimes Act 1914 (Cth) require to be taken into account.

237 I am not persuaded that the sentence imposed by his Honour on Somsri fell outside the range of a permissible sentencing discretion.

238 The fact that this is the first time an offence under section 270.6(2) has been considered by an appeal court is in itself sufficient reason to grant leave to appeal. However I would dismiss the appeal.

Sieders’ Sentence Appeal

239 Sieders seeks leave to appeal against the sentence, on the ground that the sentence is manifestly excessive. His counsel submits that there were two specific errors made by the trial judge, namely in finding:

(i) that the women worked without payment to themselves; and

“knowing”

“reckless”

240 The submission that the judge’s finding that the women worked without payment to themselves is erroneous is based upon some evidence given by BB’s brother. The brother gave evidence of sending text messages to his sister requesting that money be sent to him. He said he had received some money from her, around 10,000 baht (about A$340). No documents relating to that transfer of money were tendered. BB denied that she had sent any money to her brother. There was evidence that before BB came to Australia AA gave BB’s brother some rights to withdraw money from an account that AA had, and that AA sent money over to BB’s mother. (T 75). In his remarks on sentence the trial judge said (ROS 8) that he was satisfied that the women “were under a contract to work without payment as prostitutes until they had earned $45,000 plus any additional sum added on.” That finding says nothing about whether an amount of money was sent, at the request of BB, to her brother. There was evidence in relation to at least one of the Thai women that Somsri sent money on her behalf to her family in Thailand, and added the amounts so sent to the amount of the “debt”. Even if that practice had been followed in relation to BB, it would not alter the essential fact that BB received no money in hand, apart from tips, until her debt was repaid. I do not conclude that the trial judge made, either the finding, or the error, that is alleged.

241 The basis of the second finding is that the trial judge found (ROS 9) that he was “satisfied beyond reasonable doubt upon the evidence at trial that both offenders knew that their business involved the sexual servitude of others”. For reasons I have already given, I agree with that conclusion.

242 The final submission made on Sieders’ behalf concerning sentence is that regard should have been had to the penalty applicable to an offence against section 271.8 of “debt bondage”. It is submitted that even though the offence was not created until 3 August 2005, the judge ought to have recognised that the offending in the present case was commensurate with the offending involved in debt bondage, and that the 12 month penalty applicable under section 271.8 should have provided an indication as to the level of sentence required in the present case.

243 I do not accept that submission. Even assuming, without deciding, that it is appropriate to look to the penalty created by section 271.8 for guidance, it is no part of the offence of debt bondage that the services agreed to be provided are sexual services.

244 The Act that introduced the offence of debt bondage also amended section 270.6(2) by increasing the penalty for an aggravated offence to imprisonment for 20 years. Thus Parliament turned its mind, at the same time as creating the offence of debt bondage, to the appropriate penalty for section 270.6(2). At that time Parliament continued to see there as being an enormous discrepancy between the seriousness of the offence under section 270.6(2), and the offence of debt bondage. Given the differences between the offence of debt bondage and the offence under section 270.6(2) to which I have earlier referred, especially that section 270.6(2) involves a deprivation of freedom in a very important respect and debt bondage does not, it is totally unsurprising that Parliament took this view. I see no error in the trial judge not having had regard to the penalty that had come to be applicable for the offence of debt bondage.

245 If the submission of the sentence being manifestly excessive is intended to be a freestanding submission, unconnected with the three alleged errors I have mentioned, it suffices to say that in my view the sentence falls within a permissible sentencing discretion.

246 In these circumstances, I would grant Sieders leave to appeal against sentence, for the same reason as I would grant Somsri leave to appeal. However I would dismiss the appeal.

Orders

247 I propose the following orders:

Appeal by Somsri

(1) Appeal against conviction dismissed.

(2) Application for leave to appeal against sentence granted.

(3) Appeal against sentence dismissed.

Appeal by Sieders

(1) Appeal against conviction dismissed.

(2) Application for leave to appeal against sentence granted.

248 JAMES J: I agree with Campbell JA.

249 JOHNSON J: I agree with Campbell JA.

**********

Citations

Sieders, Johan v The Queen; Somsri, Yotchomchin v The Queen [2008] NSWCCA 187

Most Recent Citation

Cases Citing This Decision

11

R v A2; R v KM; R v Vaziri (No. 1) [2015] NSWSC 894

R v Kanbut [2019] NSWDC 931

R v Netthip [2010] NSWDC 159

Cases Cited

20

Statutory Material Cited

10

Deputy Federal Commissioner of Taxes (SA) v Elder's Trustee and Executor Co Ltd [1936] HCA 64

Luton v Lessels [2002] HCA 13

Smale v R [2007] NSWCCA 328

Actions

Download as PDF Download as Word Document

CITATION:	SIEDERS, Johan v R; SOMSRI, Yotchomchin v R [2008] NSWCCA 187
HEARING DATE(S):	1 May 2008
JUDGMENT DATE:	13 August 2008
JUDGMENT OF:	Campbell JA at 1; James J at 248; Johnson J at 249
DECISION:	In each appeal - (1) Appeal against conviction dismissed. (2) Application for leave to appeal against sentence granted. (3) Appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – COMMONWEALTH OFFENCES – sexual servitude offences – conduct of business involving sexual servitude of other persons – appellants convicted of offences against s 270.6(2) Criminal Code Act 1995 (Cth) – whether verdicts unreasonable or cannot be supported having regard to the evidence – whether facts alleged by Crown insufficient to establish the offence charged – whether no evidence or no sufficient evidence that appellants had the required fault element with respect to the offence – where fault element is knowledge of or recklessness as to the sexual servitude – s 5.4 Criminal Code Act - COURTS AND JUDGES – trial judge's directions to jury – whether miscarriage of justice occasioned by direction that jury could convict the appellants if satisfied accused were reckless as to the sexual servitude – where Crown referred only in passing to recklessness in closing address – procedural unfairness – where experienced counsel for accused did not object to direction at trial – rule 4 Criminal Appeal Rules – where limited objection made only as to trial judge's use of the expression 'wilful blindness' – whether use of that expression created a potentially misleading impression in the mind of the jury – substantive unfairness – whether s 270.6(2)(b) Criminal Code Act creates two distinct offences, one with knowledge and the other with recklessness as its fault element - APPEALS – whether open on appeal to a convicted person to take the point that there was no evidence of essential element of the charge – where point not taken in court below - STATUTORY INTERPRETATION – construction s 270.6(2) Criminal Code Act – extrinsic materials as aid to construction – s 15AB Interpretation Act 1901 (Cth) – new offence of debt bondage – s 271.8 Criminal Code Act – whether legitimate to use a statute which amends a previously existing statute to construe the statute in its unamended form – where earlier and later legislation do not deal with the same topic – where later legislation had not come into operation at the time of the events to which the present charge relates – where later legislation has work to do independent of the work done by the earlier legislation – where no ambiguity in wording of s 270.6(2) that needs to be clarified by reference to the later legislation - STATUTORY INTERPRETATION – statutory definition of sexual servitude – s 270.4 Criminal Code – condition of person in sexual servitude – person 'not free' to take particular actions – whether person in question must actually have taken those actions at any time in the past – where lack of freedom must arise 'because of' the use of force or threats – whether phrase conveys the notion of a causal relationship actually in operation – whether force or threats must be used by the accused – what constitutes a threat of detrimental action - STATUTORY INTERPRETATION – whether s 270.6(2) Criminal Code Act creates two offences with different fault elements or a single offence with alternative fault elements - WORDS AND PHRASES – 'not free' – 'because of the use of force or threats' –'detriment' – 'involves the sexual servitude of other persons' - CRIMINAL LAW – SENTENCING – whether overall sentences and non-parole periods manifestly excessive – objective seriousness of offence – subjective circumstances of offender – parity – sentence imposed on co-offender – whether regard should have been had to penalty applicable to offence of debt bondage – whether sentence falls within permissible sentencing discretion
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) Crimes Act 1900 Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Criminal Appeal Rules Criminal Code Act 1995 (Cth) Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004 Criminal Code Amendment (Trafficking in Persons) Act 2005 (Cth) Insurance Act 1902
CATEGORY:	Principal judgment
CASES CITED:	Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203 Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 Commissioner of State Revenue (Victoria) v Pioneer Concrete (Vic) Pty Ltd [2002] HCA 43; (2002) 209 CLR 651 Crampton v R [2000] HCA 60; (2000) 206 CLR 161 Deputy Federal Commissioner of Taxes (SA) v Elders Trustee and Executor Co Ltd [1936] HCA 64; (1936) 57 CLR 610 Grain Elevators Board (Vic) v Dunmunkle Shire [1946] HCA 13; (1946) 73 CLR 70 Khoury v Government Insurance Office of New South Wales [1984] HCA 55; (1984) 165 CLR 622 Kural v R [1987] HCA 16; (1987) 162 CLR 502 R v DS [2005] VSCA 99; (2005) 191 FLR 337 R v Hines (1991) 24 NSWLR 737 R v Lelah [2002] VSCA 96 R v McConnell (1993) 69 A Crim R 39 R v Moussa [2001] NSWCCA 427; (2001) 125 A Crim R 505 R v Schipanski (1989) 17 NSWLR 618 R v Solomon [1980] 1 NSWLR 321 R v Taufahema [2007] HCA 11; [2007] 228 CLR 232 R v Wei Tang [2007] VSCA 134; (2007) 16 VR 454 Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 Smale v R [2007] NSWCCA 328 South v R [2007] NSWCCA 117 Weiss v R [2005] HCA 81; (2005) 224 CLR 300
PARTIES:	Johan Sieders (Appellant) Somsri Yotchomchin (Appellant) The Queen (Respondent)
FILE NUMBER(S):	CCA 2006/5299; 2006/5278
COUNSEL:	H Dhanji (Sieders) S Corish (Somsri) P Roberts SC (Crown)
SOLICITORS:	Burston, Cole and Mulock (Sieders) Vanessa Jeavons & Associates (Somsri) Commonwealth Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0023
LOWER COURT JUDICIAL OFFICER:	Bennett DCJ
LOWER COURT DATE OF DECISION:	8/12/06