Chee Mei Wong (2013) – charges relating to sexual servitude and debt bondage
On 27 March 2013, Ms Chee Mei Wong was convicted of conducting a business involving sexual servitude (s270.6 of Criminal Code) and offences of allowing non-citizens to work in breach of their visa requirements (s245C of Migration Act).
Ms Wong, who called herself “Yoko”, was responsible for recruiting six women from Malaysia for the purpose of working at a brothel, “Diamonds”, in Crows Nest. The victims entered Australia on student visas arranged for them by Ms Wong and were forced to repay a debt of $5,000 for their airfares, visas and educational course enrolments. The women who knew little to no English, were not permitted to leave the brothel premises without permission until their debts were repaid and were made to work up to 20 hours a day. Using the threat of physical violence and deportation, Ms Wong forced the women to take medication to prevent them menstruating, perform unusual sex acts against their will and parade in front of customers with only numbers to identify them.
At trial, Ms Wong pleaded not guilty to the seven charges however the jury unanimously found her guilty of them all.
On 5 July 2013, Ms Wong was sentenced to six years’ imprisonment with a minimum non-parole period of three years.
Watcharaporn Nantahkhum (2012) – charges relating to slavery and debt bondage
On 11 April 2012, Ms Watcharaporn Nantahkhum was found guilty by a jury of intentionally possessing a slave (s270.3(1) of Criminal Code), two offences of allowing a non-citizen to work in breach of a visa condition (s245AC of Migration Act) and two offences of allowing an unlawful non-citizen to work (s245AB of Migration Act). Ms Nantahkhum was also convicted of perverting the course of justice by offering the alleged victim money to keep quiet about her circumstances.
At trial, it was alleged that Ms Nantahkhum, who was herself exploited whilst working in the sex industry after arriving in Australia in 2004, recruited a woman from Thailand in February 2007 when the woman was searching for work to support her family. The woman was allegedly told she would incur a debt of $45,000 however she negotiated this debt to $43,000. The woman claimed that during a telephone conversation with Ms Nantahkhum, she was assured that it would not take long to repay the debt and she would only be required to service a maximum of approximately 5 clients a day.
The woman arrived in Australia and was taken to an apartment where she would live and work. She claimed her passport and return ticket were taken from her and she was not permitted to leave the premises unless escorted by Ms Nantahkhum or her friend.
The woman contended that in order to repay her debt, she provided sexual services to approximately 700 clients, seeing up to 14 clients in one day. She was required to work even when ill or menstruating.
Another woman was allegedly recruited later under similar circumstances but Ms Nantahkhum was only charged with Migration Act offences in relation to the second victim.
During sentencing, the Supreme Court of the ACT considered the personal circumstances of Ms Nantahkhum, including the similar treatment she experienced when first arriving in Australia. The Court did however note that she was not entitled to leniency for her apparent remorse due to her relentless stance that the victims had made false accusations against her.
Ms Nantahkhum was sentenced to eight years and ten months’ imprisonment with a minimum non-parole period of four years and nine months.
Ms Nantahkhum appealed her convictions and sentences and the appeal was heard by the ACT Court of Appeal on 13 February 2013. The Court has reserved its judgment.
Sentence judgment - http://www.courts.act.gov.au/supreme/sentence/view/1182/title/r-v-nantahkhum
Diveye Trivedi (2012) – charges relating to labour trafficking
On 6 October 2011, Mr Diveye Trivedi pled guilty to one count of people trafficking (s 271.2(1B) of Criminal Code).
Between 2007 and 2008, Mr Trivedi organised the travel of an Indian male to Australia in order to work as a chef in one of his Indian restaurants. Upon arrival, the man was subjected to exploitative conditions which included: being forced to live and bathe at the restaurant and work an average of 12 hours a day, seven days a week for minimal pay; being consistently abused, both physically and mentally; and receiving threats against his person and his family.
On 8 May 2012, Mr Trivedi was sentenced to 250 hours’ community service and a fine of $1,000.
To date this is the only conviction for labour trafficking in Australia.
Mao Ru Zhang (2012) – charges relating to sexual servitude and debt bondage
In 2010, Ms Mao Ru Zhang was arrested and charged with two counts of sexual servitude (s270.6(1) of Criminal Code) and two counts of debt bondage (s271.8(1) of Criminal Code) for allegedly forcing two Chinese women into prostitution after they travelled to Australia under the false pretence that they were to further their studies.
The women were allegedly forced to work up to 15 hours a day, seven days a week, in order to repay an apparent debt. They claimed they were under constant supervision and were made to fear their controllers through the use of threats against their families. The women further said they were isolated in that they spoke no English and knew no one in Australia.
Ms Zhang, who came from an extremely poor family, came to Australia with her Taiwanese husband in 2008 and chose to stay illegally when her husband returned to Taiwan in order to make money to support her family in China. In the lead up to trial, Ms Zhang fervently denied the allegations made against her, claiming the women fabricated their stories as a final attempt to remain in Australia after their refugee protection visa applications were rejected.
Ms Zhang was due in court on 13 April 2012, however the two indictable charges of sexual servitude were discontinued and the two summary debt bondage charges were withdrawn after prosecutors believed there were not reasonable prospects of securing a conviction.
Song Chhoung Ea [ 1] (2012) – charges relating to trafficking, sexual servitude and debt bondage
On 2 February 2012, Mr Song Chhoung Ea was arrested and charged with two counts of people trafficking (s271.2(1B) of Criminal Code), one count of conducting a business involving the sexual servitude of persons (s270.6(2) of Criminal Code), three counts of debt bondage (s271.8(1) of Criminal Code) and two counts of allowing non-citizens to work in breach of their visa conditions (s245AC of Migration Act).
Mr Ea allegedly trafficked three Thai women to Australia and forced them to work in a Sydney brothel against their will. The three women claimed they were told they would travel to Australia to study but upon arrival, their passports were confiscated and they were taken to the brothel to begin sex work.
Mr Ea attended court on 14 February 2012, where he entered no plea to the charges.
Zoltan Kovacs and Melita Kovacs (2010) – charges relating to slavery
In November 2007, Mr Zoltan Kovacs and his wife, Ms Melita Kovacs were each tried and convicted for offences of intentionally possessing a slave (s270.3(1) of Criminal Code), intentionally exercising over a slave a power attaching to the right of ownership, namely the power to use (s270.3(1) of Criminal Code) and for arranging a marriage for the purpose of assisting the victim to get a stay visa (s240(1) of Migration Act).
In around the year 2000, Mr and Mrs Kovacs devised a plan whereby a friend of Mr Kovacs, Mr Balint Olasz, would marry a Filipina woman and bring her to Australia where she would work for the Kovacs, both in their take away shop and their home as a child minder and housekeeper. The victim’s aunt was approached by Mrs Kovacs to identify a suitable woman to marry Mr Olasz and work in Australia. The aunt suggested the victim, who was at the time 25 years old, living with nine other members of her family in a one room, galvanised shack with no electricity, running water or telephone. The victim also had a son who was ill and a mother who was also in poor health. The victim’s mother encouraged her to go to Australia to earn money to support the family.
Prior to her arrival in Australia, the victim was told she would earn $800 for doing domestic work, which she assumed would be paid monthly. She was informed that expenses incurred in bringing her to Australia would be deducted from this total but she was not told the amount of these expenses. The victim was also told that she would need to marry a white Australian man to assist her in obtaining a visa, but that the marriage would be a sham.
The victim married the Australian man in January 2001 and arrived in Australia in August 2002, where she was met at the airport by Mr Kovacs. Mr Kovacs took her to a motel where he raped her three times. She was then taken to the shop owned by Mr and Mrs Kovacs where she was forced to work from 6am-6pm. After finishing work, she was required to do domestic work until around 10-11pm. The victim worked 7 days per week and was not given time off.
Mr Kovacs continued to rape the victim two to three times a week at the shop and sometimes at the house when his wife was not around. He warned the victim not to say anything to police or else they would both go to gaol.
The victim attempted to escape on one occasion but was located and forcibly returned by Mr and Mrs Kovacs. A few months later, she successfully escaped with the help of Mr and Mrs Kovacs’ daughter and an employee at the shop.
In December 2007, Mr Kovacs was sentenced to eight years’ imprisonment with a minimum non-parole period of three years and nine months. Mrs Kovacs was sentenced to four years’ imprisonment with a minimum non-parole period of 18 months.
Immediately after sentencing, both Mr and Mrs Kovacs appealed their convictions in respect of the slavery charges. The Queensland Court of Appeal upheld the appeals on the basis that a miscarriage of justice had occurred due to two errors of law by the trial judge under the Queensland Evidence Act. The Court of Appeal set aside the verdicts of guilty and ordered retrials.
Mr Kovacs pleaded guilty to the charges and was given a total effective sentence of twelve years’ imprisonment with a non-parole period of one year and three months (taking into account time already spent incarcerated).
In February 2010, following a six-day retrial, Ms Kovacs was again convicted on all counts and was given a total effective sentence of four years’ imprisonment with a non-parole period of nine months (taking into consideration time already spent incarcerated).
Ms Kovacs again attempted to appeal against her conviction and sentence however this appeal was later withdrawn.
Court of Appeal –
Trevor McIvor and Kanokporn Tanuchit (2010) – charges relating to slavery
Mr Trevor McIvor and his wife, Ms Kanokporn Tanuchit, owned and managed a brothel in Fairfield, Sydney between 2004 to 2006. Over this time, Mr McIvor and Ms Tanuchit recruited five women from Thailand to work in the brothel and subjected each of the women to heinous treatment.
During their combined trail in 2008, the Court heard that Mr McIvor and Ms Tanuchit had forced the victims to work for up to 16 hours a day, 7 days a week, prohibited them from refusing customer requests including unprotected sex, locked them up in rooms under the brothel or in the offenders’ house and confiscated their passports, mobiles and other personal belongings.
Mr McIvor and Ms Tanuchit were each found guilty of five offences for intentionally possessing a slave and five offences for intentionally exercising over a slave, the power attaching to the right of ownership namely the power to use, contrary to s 270.3(1)(a) of the Criminal Code. Mr McIvor was sentenced to twelve years’ imprisonment with a non-parole period of seven years and six months. Ms Tanuchit was sentenced to eleven years’ imprisonment with a non-parole period of seven years.
Both Mr McIvor and Ms Tanuchit appealed their convictions on the basis that the trial judge gave the jury incorrect and confusing directions in relation to the fault element of the offence. In 2009, the New South Wales Court of Criminal Appeal upheld the appeals, quashed the convictions and ordered a new trial. Due to the success of their conviction appeals, their appeals on sentence were not heard.
Following a retrial in 2010, Mr McIvor and Ms Tanuchit were again each found guilty on all counts. Mr McIvor was sentenced to twelve years’ imprisonment with a non-parole period of seven years and six months. Ms Tanuchit was also sentenced to twelve years’ imprisonment with a non-parole period of seven years.
Both appealed their retrial sentences, however these appeals were unsuccessful.
N.B: The initial convictions were the first convictions for slavery in New South Wales.
Court of Appeal –
Retrial sentence judgment -
Namthip Netthip (2010) – charges relating to sexual servitude
On 30 March 2010, Ms Namthip Netthip pleaded guilty to one count of conducting a business that involved sexual servitude, knowing of that sexual servitude (s270.6(2) of Criminal Code) and to one count of providing false documentation (s234 of Migration Act). Ms Netthip had been charged with a further nine counts of people trafficking, eleven offences of intent to cause another to enter into debt bondage and ten offences under the Migration Act however, while the migration offences were taken into account during sentencing, the offences relating to people trafficking and debt bondage were withdrawn.
Ms Netthip arrived in Australia in 1987 and in 1994, became an Australian citizen. Since her arrival, she had worked from time to time in brothels, either as a receptionist or as a sex worker.
Between August 2005 and March 2008, Ms Netthip conducted a business through which she recruited and facilitated the placement of 11 Thai women in brothels in various Australian cities. Each woman told she had accrued a debt of $53,000 that she was required to return.
A Thai facilitator made all the necessary travel arrangements for the women including arranging their passports and visas. Ms Netthip then organised their accommodation, food, work-related medical expenses and mobile telephones as well as being responsible for supervising each of the women’s placements into brothels.
Once each of the women arrived in Australia on a visitor’s visa, Ms Netthip assisted them in applying for a protection visa in order to allow them to continue working for a longer period of time. She supplied each of them with false factual information about their circumstances in Thailand and gave coaching on responses to questions posed by DIAC officers.
Each of the women (except those who worked for one particular brothel) repaid their debts by transferring a proportion of their net earnings to Ms Netthip. The amount of time taken by each woman to repay the debt varied depending on the proportion of net earnings the woman wanted to pay with each deposit. It was submitted by Ms Netthip at trial that by the time she had paid all the necessary expenses for each of the women, she was only left with between $10,000-$18,000 per debt. She further submitted that the total amount she had received was between $60,000-$70,000.
On 30 July 2010, in relation to the offence of conducting a business that involved sexual servitude, Ms Netthip was sentenced to two years and three months’ imprisonment with a minimum non-parole period of thirteen months, followed by a recognisance release order to be of good behaviour for 14 months. In relation to the migration offence, Ms Netthip was ordered to be of good behaviour for three years and six months.
Wei Tang (2009) – charges relating to slavery
In 2005, Ms Wei Tang was charged with five counts of possessing a slave and five counts of intentionally exercising over a slave, the power attaching to the right of ownership namely the power to use, contrary to s 270.3(1)(a) of the Criminal Code.
Between August 2002 and May 2003, five Thai women, recruited by brokers in Thailand, voluntarily entered into contracts to work as sex workers in a brothel owned by Ms Tang in Australia. Pursuant to the contract, each woman incurred a debt of between $40,000 and $45,000, which was said to include their travel expenses, accommodation, food and any other incidental expenses incurred whilst working in Australia.
Upon arrival, each of the women’s passports and return airline tickets were confiscated and placed in a locker at the brothel. The women were accommodated in an apartment located close by or else lived in the house of the brothel manager known as “Mummy”, where three or four women shared each room. The women’s movements were restricted and Ms Tang controlled when and where the women worked, often requiring them to work long hours, up to seven days a week.
The brothel charged each client a fee of $110 for sex. The debt of each woman was reduced by $50 per client, however one day a week they were entitled to a free day or could work and retain any earnings they made (still being $50 per client).
On 31 May 2003, the brothel was raided and Ms Tang, Mr Paul Pick and one other co-accused (DS) were arrested. DS pleaded guilty to three counts of possessing a slave and two counts of engaging in slave trading. She was sentenced to nine years’ imprisonment with a non-parole period of three years. Following an appeal, the sentence was reduced to six years’ imprisonment with a non-parole period of two years and six months.
After an initial trial heard together with Mr Pick, the jury were discharged after failing to reach a unanimous verdict in respect of any of the charges against Ms Tang. Ms Tang was later tried separately from Mr Pick and convicted on all counts in June 2006. She was sentenced to ten years’ imprisonment with a non-parole period of six years. She appealed against both conviction and sentence.
In June 2007, the Victorian Court of Appeal found that despite the conviction being adequately supported by evidence, the trial judge provided an inadequate direction to the jury in respect of the fault element of the offence and as such the appeal was to be upheld and the convictions quashed. A retrial was ordered.
The prosecution sought special leave to appeal to the High Court of Australia which was subsequently granted. On 28 August 2008, the High Court handed down its judgment, with a 6-1 majority upholding the appeal, setting aside the orders of the Court of Appeal and dismissing Ms Tang’s appeal on conviction.
Following the High Court’s decision, Tang resubmitted her appeal against sentence. The Victorian Court of Appeal found that while the sentence was not manifestly excessive, as had been claimed by Ms Tang, it did have the effect of ultimately punishing Ms Tang twice for her crimes and as such should be reduced. Further evidence which was not available to the sentencing judge was also accepted in respect of Ms Tang’s circumstances which resulted in the Court of Appeal reducing the sentence to a total of nine years’ imprisonment with a minimum non-parole period of five years.
Court of Appeal (conviction appeal) –
High Court –
Court of Appeal (sentence appeal) –
Kam Tin Ho and Ho Kam Ho (2009) – charges relating to slavery
Mr Kam Tin Ho and Mr Ho Kam Ho were both involved in a sophisticated and well-organised scheme, run from Bangkok, Sydney and Melbourne, which brought Thai women to Australia to work in licensed brothels. Mr Kam Tin Ho was the scheme’s principal in Melbourne and Mr Ho Kam Ho was involved in its Melbourne operation.
The women entered Australia on three-month tourist or business visas which were issued on the basis of falsely created cover stories. They were chaperoned into Australia and upon arrival, found their passports confiscated and their freedom denied. They were subjected to constant supervision and were restricted to their workplace and residence. They were forced to work 6 days per week and service between 650-750 clients in order to repay debts of $81,000 to $94,000 each.
The scheme attempted to keep the women working in Australia for as long as possible without breaching their visa requirements and as such, upon imminent expiry of their temporary visas, the women applied for refugee protection visas based on false information given to immigration officials. The women participated voluntarily in this part of the scheme.
Despite the fact that each of the women entered Australia illegally with the knowledge that they would be working in the sex industry, the Court found that their treatment and the level of control exercised over them, including being variously traded, possessed and used as items of property, had exploited their vulnerabilities and reduced them to the condition of slavery.
After a 10-week trial, Mr Kam Tin Ho was found guilty on ten of the fourteen counts he was charged with, including five counts of intentionally possessing a slave (s270.3(1) of Criminal Code); one count of intentionally exercising over a slave a power attaching to the right of ownership (s270.3(1) of Criminal Code); and four counts of being party to two non-reportable cash transactions contrary to the Financial Transaction Reports Act 1988 (Cth). Mr Ho Kam Ho on the other hand was only found guilty of five of the eleven charges, being four counts of intentionally possessing a slave (s270.3(1) of Criminal Code) and one count of being party to two non-reportable cash transactions contrary to the Financial Transaction Reports Act 1988 (Cth).
Mr Kam Tin Ho was sentenced to a total of fourteen years’ imprisonment with a minimum non-parole period of eleven years. Mr Ho Kam Ho was sentenced to a reduced total of ten years’ imprisonment with a minimum non-parole period of seven years for his slightly lesser role in the scheme.
In 2011, Mr Kam Tin Ho and Mr Ho Kam Ho each appealed their convictions and sentences. Both appeals in relation to convictions were rejected, however both appeals in relation to sentencing were upheld. Mr Kam Tin Ho was re-sentenced to a total of eight years and three months’ imprisonment with a minimum non-parole period of five years. Mr Ho Kam Ho was re-sentenced to five years and nine months’ imprisonment with a minimum non-parole period of three years.
A special leave application was made to the High Court of Australia in 2012 in relation to the convictions of both men. Both Gummow J and Crennan J found the Court of Appeal had made no errors of law and therefore upheld its decision to dismiss the appeals.
Trial sentence –
Court of Appeal –
High Court –
Kam Tin Ho and Sarisa Leech (2009) – charges relating to slavery
Later in 2009, Mr Kam Tin Ho (same as above), was convicted on one further count of intentionally exercising over a slave a power attaching to the right of ownership, namely the power to use contrary to s 270.3(1)(a) of the Criminal Code. Ms Sarisa Leech, who was herself previously a victim of debt bondage, was also convicted of intentionally possessing a slave (s270.3(1) of Criminal Code) and intentionally using a slave (s s 270.3(1)(a) of Criminal Code).
At trial it was alleged that Ms Leech met KW, a Thai sex worker from the age of 14, in 2003 in Bangkok. Following this meeting, KW travelled to Australia on a short-stay visa on the basis of attending a “team building seminar” when in actual fact it was intended that she would work in the sex industry. KW’s ticket, visa and accommodation in Australia were paid by other people on her behalf and she was told that this constituted a debt which she would have to pay off by providing sexual services to 650 clients in licensed brothels.
Upon arrival in Australia, KW was taken to the apartment where she was to live along with another girl known as “Lisa”. She was not given a key and from time to time a man known as “Ben” would bring her food. She did not commence working for a period of three months and during this time she was visited by Ms Leech and Mr Ho. KW’s passport was taken from her and she was told to memorise a false story in order to obtain a protection visa to stay in Australia.
Once she commenced working, KW said it took her three to four months to pay off her debt. She worked daily from 11am-2am and would see up to 16 clients in that time. Whilst at work, the premise was locked and KW was not allowed to leave. She was forced to work even when she was ill and was made to continue working after her debt had been paid because there were “no girls”.
In observing the sentencing principle of totality, the court sentenced Mr Ho to six years’ imprisonment, with six months to be served cumulatively upon the sentences imposed by Justice Philip Cummins (above). The total effective sentence for all convictions was therefore fourteen years and six months’ imprisonment. The non-parole period set by Justice Cummins, being eleven years, was affirmed.
Ms Leech was sentenced to six years’ imprisonment, with a minimum non-parole period of three years and six months.
Mr Ho and Ms Leech lodged appeals against both their convictions and sentences. Similar to the above, the appeals in relation to convictions were rejected however the appeals in relation to sentence were accepted. Ms Leech failed on her appeal in relation to her sentence for possessing a slave however the Court of Appeal reduced her sentence for using a slave by six months. She was re-sentenced to a total of five years and six months’ imprisonment with a three year non-parole period.
Following the decision to reduce the sentence against Ms Leech, the court considered it appropriate to address the question of parity between the sentences of Ms Leech and Mr Ho and as a result reduced the sentence of Mr Ho to four years and six months’ imprisonment and confirmed that the non-parole period as set by the trial judge would need to be redetermined.
(For the final sentence of Mr Ho, see above)
Court of Appeal –
Keith Dobie (2009) – charges relating to trafficking
On 18 December 2008, Mr Keith Dobie pleaded guilty to two counts of trafficking in persons (s 271.2(2B) of Criminal Code), one count of dealing in the proceeds of crime (s400.6(1) of Criminal Code) and four counts of presenting a false document to immigration officials (s234(1)(a) of Migration Act).
At trial it was submitted that Mr Dobie was in dire financial circumstances when he recruited and arranged for two Thai women to travel to Australia for the purposes of working as sex workers. Mr Dobie deceptively recruited the women by making false promises of easy money and good working conditions when he in fact intended to make as much money out of the women as possible to pay off his ever increasing debts. Mr Dobie pressured the women into working as much as possible and did not allow them to choose the clients they would service, contrary to previous statements he made prior to their arrival in Australia.
When initially charged on all counts, Mr Dobie pleaded not guilty to the two counts of trafficking in persons. However, following the empanelling of a jury, Dobie’s counsel changed his plea to a plea of guilty. Mr Dobie later made an application to set aside the pleas of guilty however, on the day of sentencing, this application was dismissed by consent and the sentencing judge subsequently believed it to have been abandoned.
On 23 December 2008, Mr Dobie was convicted and sentenced to five years’ imprisonment with a non-parole period of one year and ten months.
Following sentencing, Mr Dobie made an application for leave to appeal his sentence and an application for extension of time within which to appeal against the conviction. Mr Dobie argued that he pleaded guilty without a full appreciation of the elements of the offences because he was pressured and threatened and also that the prosecution had failed to prove the offences because the element of deception was unable to be established.
In December 2009, the Queensland Court of Appeal refused to grant leave to appeal against sentence, granted the application for extension of time within which to appeal against conviction however dismissed the appeal against conviction.
Court of Appeal –
Somsri Yotchomchin and Johan Sieders (2008) – charges relating to sexual servitude
On 21 July 2006, Ms Somsri Yotchomchin and Mr Johan Sieders were each convicted of one count of conducting a business, namely a brothel, that involved the sexual servitude of others, contrary to s270.6(2) of the Criminal Code.
During the period 1 December 2003 to 31 May 2004, Ms Yotchomchin and Mr Sieders recruited four women from Thailand to travel to Australia to work in the sex industry. The women each accumulated a debt of $45,000, being made up of $15,000 for their visa and travel expenses and a further $30,000 for the opportunity to live and work in Australia.
A tourist visa was obtained and a return airline ticket purchased for each of the women by a Thai woman known as “Pat”. She also provided each of them with a sum of money to be used to show immigration officials upon arrival in Australia, if required, that they were each capable of supporting themselves. On the plane from Thailand to Australia, each woman was accompanied by a young Thai male who the women had never met before and who they never saw again.
Once in Australia, the women worked in brothels owned by Ms Yotchomchin and Mr Sieders. They were not paid for their work and instead were told the money made from their sexual services would go directly towards paying off their debt.
Ms Yotchomchin and Mr Sieders both pleaded not guilty to the charges of servitude however, following the discharge of two juries, both were found guilty.
On 8 December 2006, Ms Yotchomchin was sentenced to five years’ imprisonment with a non-parole period of two years and six months. Mr Sieders was sentenced to four years’ imprisonment with a non-parole period of two years.
Both Ms Yotchomchin and Mr Sieders lodged appeals in relation to their convictions on the grounds that the verdicts were unreasonable and could not be supported by the evidence and that there had been a miscarriage of justice by the trial judge in providing the jury with an incorrect direction as to the fault element of the offence. Appeals against sentence were also lodged on the basis that the sentences imposed were manifestly excessive. On 13 August 2008, the New South Wales Court of Appeal dismissed both of the appeals against conviction and sentence.
Sentence judgment –
Court of Appeal –
Yogalingham Rasalingham (2007) – charges relating to labour trafficking
In 2007, Mr Yogalingham Rasalingham was charged with one offence of people trafficking (s271.2(1B) of Criminal Code) and one offence of dishonestly influencing a Commonwealth public official (s135.1(7) of Criminal Code).
Mr Rasalingham, an Australian citizen, owned and operated a chain of Indian restaurants in Australia. At trial it was alleged that he met Mr R in India where he offered him employment in one of his restaurants. Mr R claimed he agreed to work 365 days a year for Mr Rasalingham without payment, on the condition that Mr R’s family would be given money each time Mr Rasalingham returned to India.
Mr R also alleged that following a direction from Mr Rasalingham, he saw a travel agent in India who made all the necessary travel arrangements including obtaining a visa. However, Mr R stated that he never signed the application for a visa nor any other documents related to his travel. Instead, he was asked to sign a blank piece of paper seven times and those signatures were later used to falsify the visa application and employment contract submitted to the DIAC on Mr R’s behalf.
Upon arrival in Australia, Mr R’s passport, return ticket and other documents were allegedly confiscated by Mr Rasalingham and he was forced to work up to 15 hours a day, seven days a week. Mr R contended that he was not paid for his work and no payments were ever made to his family in India as agreed.
Mr Rasalingham was ultimately found guilty of dishonestly influencing a Commonwealth public official but not guilty of the trafficking offence. He was sentenced to four months’ imprisonment to be released forthwith upon entering a recognisance in the sum of $5,000 to be of good behaviour for twelve months.
Sally Cui Mian Xu, Ngoc Lan Tran and Jamie Lin Qi (2005) – charges relating to sexual servitude and slavery
In 2005, Ms Sally Xu, Ms Ngoc Tran and Mr Jamie Lin Qi were each charged with one count of causing sexual servitude (s270.6(1) of Criminal Code), one count of conducting a business involving sexual servitude (s270.6(2) of Criminal Code) and one count of detaining a person for advantage as a prostitute (s86(2)(a) of Crimes Act 1900 (NSW)). Ms Xu and Ms Tran were also charged with one count each of intentionally exercising control over a slave contrary to s270.2(1) of the Criminal Code.
The initial charges laid against each of the defendants were later retracted and the Criminal Code charges were replaced with the equivalent charges under the NSW Crimes Act 1900.
The charges related to the alleged treatment of Ms K, a law student from Thailand, who claimed she was brought to Australia in December 2002 under the false pretence that she would be employed as a waitress in a Thai restaurant. Upon arrival in Sydney, Ms K said she forced to work as a sex worker in a number of brothels operated by Ms Xu and Ms Tran.
In her evidence, Ms K stated that all of her travel expenses were paid for, including her airfare and her visa, however she was told that she had incurred a debt of $200,000 that she would need to repay by performing sexual acts on brothel customers. Ms K further contended that her passport was confiscated and she spent her time either locked up in a house or being transported from one brothel to another.
In relation to the slave trading charge, the Court heard that after a few days of working in Ms Xu’s brothel, Ms K threatened to commit suicide and begged a customer for help. Ms Xu then allegedly sold Ms K to Ms Tran who forced Ms K to service up to 20 customers a day. At the end of her shift, Ms K was forced to crawl through a hole in the wall to reach her accommodation which was adjacent to the brothel in which she worked.
Following a lengthy nine-week trial, the jury deliberated for two days and ultimately acquitted Ms Xu of the charge for slave trading. The jury was hung however in relation to the remaining sexual servitude charges against each of the defendants.
Before a decision had been reached by the Crown as to whether any retrial would be heard, Ms K returned to Thailand and indicated that she could not give any further evidence due to the traumatic circumstances in which she had given evidence previously. The remaining charges against the defendants were therefore dropped.
Related case –
Danny Kwok, Hoseah Yoe, Jenny Ong & Raymond Tan (2005) – charges relating to sexual servitude
In 2005, Mr Danny Kwok, Mr Hosea Yoe, Ms Jenny Ong and her son Mr Raymond Tan, were each charged with conspiring to bring women from Thailand and Indonesia to Australia to work as sex slaves contrary to sections 11.5 and 270.6(1) of the Criminal Code.
A total of nine women were allegedly brought to Australia, some with the belief that they were to work as waitresses in restaurants, others knowing they were being employed to work in the sex industry. At trial, the prosecution submitted that while some of the women were aware of their position, none of them were aware of the atrocious conditions of their employment until they arrived.
It was claimed that upon arriving in Australia, the women were each told they had accumulated a debt of $18,000 which they would repay by providing a total of 700 to 900 sexual services to brothel customers. It was further submitted that upon expiry of their initial visas, the defendants attempted to apply for protection visas on behalf of the women, without consent, by forging their signatures on immigration application forms.
Three of the women claimed they contacted police after escaping from the house they were living in.
In June 2005, a jury was empanelled and the trial commenced. However, the jury were subsequently discharged when it came to light that the Australian Federal Police had failed to disclose that the key prosecution witness had been under investigation for two years on suspicion of selling sex slaves in Australia.
The four defendants were initially told the charges had been dropped but were capable of being reinstated at any time should further evidence emerge. The prosecution later decided not to proceed with a retrial due to a lack of evidence.
Related case –
Forced marriage cases
Mr & Mrs Madley (2011) – forced marriage
Ms Madley was 16 years old when her parents arranged for her to marry a man from Lebanon that she had met only once before. The wedding was scheduled to take place in Lebanon within two weeks of her urgent application to the Court. She gave evidence that she was fearful for her safety and her mother’s reactions and that she did not want to marry the young man she was engaged to.
The Court ordered that her parents be restrained from removing, attempting or causing removal of, Ms Madley from Australia. Ms Madley’s passport was also to be surrendered to court and she was placed on the airport Watch List.
Ms Kreet & Mr Sampir (2011) – forced marriage
A 17 year old girl was tricked into travelling to India under the belief that she could marry her Australian boyfriend but was instead forced to go through a marriage ceremony to another suitor by her parents. The girl’s parents, who confiscated her passport upon arrival in India, threatened to kidnap and rape the mother and sister of her Australian boyfriend if she did not comply with their directions. It was alleged that threats of a similar nature were also made to her boyfriend. The girl also stated that her father had hit her across the face on two separate occasions and hit her once on the back.
After the marriage in India had taken place, the girl agreed to assist in her husband’s visa application and they both returned to Australia. In Australia, she withdrew her support for the visa application and went to live with her former boyfriend.
The Family Court held that the marriage was void as “her consent was not real because it was obtained by duress”. The Court found that she had been “physically and mentally overborne” and refused to recognise the marriage under Australian law.
Mr & Mrs Khyatt and Mr Kandal (2010) – forced marriage
Ms Kandal, a 17 year old girl, contacted police on 4 May 2010 stating that she was being taken to Lebanon to be married against her will by her mother and ‘perhaps other family members’. Her flight had been booked for 19 May 2010. Ms Kandal was living with her mother and step-father however she claimed that both her father and step-father supported the decision for her removal from Australia.
Ms Kandal gave enough information to the police that they were able to verify her identity and her place of residence. She stated however that she wanted minimal involvement from authorities and wanted to be placed on the airport Watch List.
The Family Court made an order against her mother, father and step-father to restrain from removing or attempting to remove the girl from Australia and to surrender her passport to the court. She was also placed on the airport Watch List and an order made under s68B of the Family Law Act 1975 for her mother, father and step-father to be restrained by way of injunction from assaulting, threatening, harassing or intimidating her.
Mr & Mrs Brouker (2010) – forced marriage
In June 2010, Child Protection of the Department of Human Services in Victoria received a report that “V”, then aged nearly 14, was not attending school. The report suggested that V’s parents were intending to have her married.
Following the report, the Department interviewed V and applied to the court for orders preventing her from being removed from Australia. In the interview, she stated that she was engaged for one month to a 17 year old man whose photograph she had seen. She had little knowledge of what would be required of her after the marriage, especially with regard to sex.
When questioned about the facts of the application, V’s mother did not dispute their accuracy.
The court ordered an interim injunction to prevent the removal of V from Australia prior to her 18th birthday. The court also retained her passport and placed an injunction on her parents from applying for a new passport for V until she reached the age of 18 years.
[ 1]Jury discharged recently – waiting decision by DPP as to whether they will try again