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Between 2004 and June 2017, there have been 20 convictions for offences under division 270 and 271 of the Criminal Code 1995 (Cth) (‘Criminal Code’). Additionally there have been a number of cases that have resulted in charges under State and Territory criminal offence provisions for exploitation type offences. Conduct relating to exploitation may also be charged under other civil law provisions such as set out in legislation relating to family law, migration and passports.


Convictions under divisions 270 and 271 of the Criminal Code


1. Bo-Syun Chen and Yu-Hao Huang (2017) – servitude


On 8 February 2017, Bo-Syun Chen and Yu-Hao Huang, Taiwanese nationals, both pleaded guilty to causing a person to enter into or remain in servitude.


The court was told the men helped run a fraudulent call centre in suburban Brisbane that forced other foreign nationals to take part in an international scam.


Judge Tony Moynihan sentenced Huang to three years' jail, while Chen was sentenced to two-and-half years in jail. Huang and Chen were released on good behaviour after time already served, to be immediately deported to Taiwan.


These matters represent the first convictions under the Criminal Code servitude offences introduced in 2013.


DPP (Cth) v Huang & Another, Unreported (QLDDC, 8 February 2017) Judge Tony Moynihan


Case summary drawn from: Louisa Rebgetz and Josh Bavas, ‘Taiwanese pair to be deported over Brisbane slave house scam’, 8 February 2017, ABC News Online available at http://www.abc.net.au/news/2017-02-08/taiwanese-pair-deported-over-brisbane-slave-house-scam/8252234 (accessed 20 June 2017).


2. McIntosh (2016) – trafficking in children


On 19 May 2016, McIntosh (a pseudonym) pleaded guilty to 30 charges involving child trafficking, incest, indecent acts and child pornography offences.


McIntosh had fathered twin daughters born via an overseas surrogate and brought them to Australia with the intention of committing sexual acts on them. He sexually abused them and produced video recordings and images of those assaults for the purpose of making it available to others online.


McIntosh pled guilty to two charges of trafficking in children, arising out of his actions in facilitating the entry of the two girls into Australia with the intention that they be used to provide sexual services or otherwise be exploited, contrary to section 271.4(1) of the Criminal Code.


McIntosh was also convicted of committing acts of incest and indecent acts against his daughters on 40 occasions in 2014 when they were aged 1-8 months, and producing video recordings and photographs of those assaults, which was child pornography material, for the purpose of making that material available to others online pursuant to s 474.20(1) of the Criminal Code.


The offender was sentenced to 22 years’ imprisonment reflecting the seriousness of the offending and the importance of deterrence, protection of the community, denunciation and punishment. For each of the trafficking in children charges, McIntosh was sentenced to 8 years’ imprisonment.


DPP (Cth) v McIntosh [2016] VCC 622

Link: http://www.austlii.edu.au/au/cases/vic/VCC/2016/622.html


3. Ms K (2013) – trafficking in children


On 16 April 2013, Ms ‘K’ pleaded guilty to one count of trafficking in children contrary to subsection 271.4(1) of the Criminal Code, as well as 19 other charges under the Criminal Code Act 1899 (QLD), including maintaining a sexual relationship with a child.


The charges related to conduct by Ms K that began in 2004, when Ms K arranged for her nine year old daughter, who was living in Thailand at the time, to join her in Australia for a holiday. During this visit, the offender provided sexual services to customers in her daughter’s presence, and encouraged her daughter to massage and provide sexual services to customers of the massage parlour. In 2006, the offender made arrangements for her daughter to move to Australia permanently. Over the following years, the child was required to provide sexual services to various customers, with evidence revealing that in 2010, the child was made to provide these services on at least 45 occasions to seven different clients. Evidence also indicated that the child was required to provide sexual services to clients both before and after school.


Following her guilty plea, Ms K was sentenced to nine years’ imprisonment, with a non-parole period of four years. Ms K appealed against her sentence, and on 18 October 2013 it was reduced to seven years’ imprisonment, with a non-parole period of three years and six months.


At sentencing on appeal, the court noted that the offending by Ms K with respect to child trafficking was preparatory and incidental to the other offences with respect to which she was convicted (including under s 229G(1)(a) of the Criminal Code (QLD) for procuring a child to engage in prostitution). The court noted that while it was logical to impose a head sentence with respect to the procurement of child prostitution offending, it would not be an error of law to impose the head sentence in respect of the child trafficking offence – rather, such a course would need to be taken if the sentence imposed for the child prostitution offending was inadequate to reflect the child trafficking offending. This was not however, the case in this matter.


R v Kuavong [2013] QCA 310

Link: https://www.unodc.org/res/cld/case-law-doc/traffickingpersonscrimetype/aus/2013/r_v_kuavong_2013_qca310_html/AUS017-R_v_Kuavong_2013_QCA310.pdf


4. Chee Mei Wong (2013) – sexual servitude


On 27 March 2013, Ms Chee Mei Wong was convicted of conducting a business involving sexual servitude (formerly 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 all charges. Ms Wong was sentenced to six years’ imprisonment with a minimum non-parole period of three years.


R v Chee Mei Wong, Unreported (NSWDC, 5 July 2013) Judge Sweeney

Link: https://www.unodc.org/cld/case-law-doc/drugcrimetype/aus/2013/r_v_chee_mei_wong_.html?tmpl=old


5. Watcharaporn Nantahkhum (2012) – slavery


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 appellant was re-sentenced to a reduced six years and ten month’s imprisonment, with a minimum non-parole period of three years and six months.


Nantahkum v R [2013] ACTCA 40 (Court of Appeal)


6. Diveye Trivedi (2012) – trafficking in persons


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.


R v Divye Kumar Trivedi, Unreported (NSWDC, 8 May 2012) Judge O’Connor

See further civil case: Ram v D&d Indian Fine Food Pty Ltd & Anor [2015] FCCA 389


7. Zoltan Kovacs and Melita Kovacs (2010) – 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 (s270.3(1) of Criminal Code) and for arranging a marriage for the purpose of assisting the victim to obtain Australian permanent residence (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, dwelling 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.


See R v Melita Kovacs [2009] QCA 116; R v Kovacs [2008] QCA 417; R v Kovacs [2007] QCA 441

Link: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QCA/2008/417.html?stem=0&synonyms=0&query=title("2008%20QCA%20417")


8. Trevor McIvor and Kanokporn Tanuchit (2010) – 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. In 2010 they were convicted of slavery offences under section 270.3 of the Criminal Code.


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. The initial convictions were the first convictions for slavery in New South Wales.


Both appealed their retrial sentences, however these appeals were unsuccessful.


McIvor v R; Tanuchit v R [ 2009] NSWCCA 264; R v McIvor & Tanuchit [2010] NSWDC 310

Links: Court of Appeal – http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCCA/2009/264.html?stem=0&synonyms=0&query=title("2009%20NSWCCA%20264")

Retrial sentence judgment – http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWDC/2010/310.html?stem=0&synonyms=0&query=McIvor%20and%20Tanuchit


9. Namthip Netthip (2010) – 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 (formerly s270.6(2) of Criminal Code) and to one count of providing false documentation (s234 of Migration Act). Ms Netthip had originally 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. While she was ultimately convicted of the migration offences, 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.


R v Netthip [2010] NSWDC 159

Link: Sentence judgement - http://www.lawlink.nsw.gov.au/dcjudgments/2010nswdc.nsf/2010nswdc.nsf/WebView2/086AFD561DFAD40FCA2577700002D911?OpenDocument

See also: https://www.unodc.org/cld/case-law-doc/traffickingpersonscrimetype/aus/2010/r_v_netthip_2010_nswdc_159.html


10. Wei Tang (2009) and DS (2009) – slavery


Facts


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.


The co-accused – DS


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.


Country Court of Victoria


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.


Supreme Court – Court of Appeal


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.


High Court


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.


Court of Appeal


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.


Citation for Tang: R v Wei Tang [2006] VCC 637; R v Wei Tang [2007] VSCA 134; The Queen v Tang [2008] HCA 39; R v Wei Tang [2009] VSCA 182

Links: Court of Appeal (conviction appeal) – http://www.austlii.edu.au/au/cases/vic/VSCA/2007/134.html

High Court – http://www.austlii.edu.au/au/cases/cth/HCA/2008/39.html

Court of Appeal (sentence appeal) – http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2009/182.html?stem=0&synonyms=0&query=title(R%20and%20tang%20)

Citation for DS: R v DS [2005] VSCA 99


11. Kam Tin Ho and Ho Kam Ho (2009) – 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. In 2009 both men were convicted of slavery offences under s 270.3(1) of the Criminal Code.


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.


DPP (Cth) v Ho & Anor [2009] VSC 437; Ho v The Queen ; Leech v The Queen [2011] VSCA 344; Ho v The Queen [2012] HCATrans 199

Links: Sentence – http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2009/437.html?stem=0&synonyms=0&query=kam%20tin%20ho

Court of Appeal – http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2011/344.html?stem=0&synonyms=0&query=title(ho%20and%20queen%20)

High Court – http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCATrans/2012/199.html?stem=0&synonyms=0&query=title(ho%20and%20queen%20)


12. Kam Tin Ho and Sarisa Leech (2009) – slavery


Later in 2009, Mr Kam Tin Ho (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)


Ho v The Queen ; Leech v The Queen [2011] VSCA 344; DPP (Cth) v Ho & Leech [2009] VSC 495

Links: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2009/495.html?stem=0&synonyms=0&query=ho%20and%20leech

Court of Appeal – http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2011/344.html?stem=0&synonyms=0&query=title(ho%20and%20queen%20)


13. Keith Dobie (2009) – trafficking in persons


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 ready 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 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.


R v. Dobie [2009] QCA 394; R v Dobie [2010] QCA 034; R v Dobie [2011] QCA 21

Link: Court of Appeal – http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QCA/2009/394.html?stem=0&synonyms=0&query=dobie


14. Somsri Yotchomchin and Johan Sieders (2008) – 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 what was formerly 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.


Regina v Johan Sieders and Somsri Yotchomchin [2006] NSWDC 184; R v Sieders; R v Yotchomchin [2007] NSWDC 101; Sieders v R; Somsri v R [2008] NSWCCA 187

Link: Court of Appeal – http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCCA/2008/187.html?stem=0&synonyms=0&query=sieders#disp8


Forced marriage cases


1. Mr Essey v Ms Elia (2013) – care of children


This case involved the care arrangements for a 6 year old girl. The child’s mother, Ms Elia, claimed she had been forcibly married to Mr Essey at 14 years of age. She gave evidence that she did not consent to the marriage at the time, but was pushed into the marriage by her mother, who said she would be able to visit theme parks and eat ice cream and lollies when she was married. She gave evidence that she was the victim of family violence during the course of her co-habitation with Mr Essey. Ms Elia also gave evidence that Mr Essey had threatened to marry their daughter to a relative at 14 years of age. Ms Elia was granted sole parental responsibility of the child.


[2013] FCCA 1525


2. 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.


[2011] FMCAfam 1007

Link: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FMCAfam/2011/1007.html?stem=0&synonyms=0&query=Madley


3. 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.


[2011] FamCA 22

Link: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2011/22.html?stem=0&synonyms=0&query=Kreet


4. 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.


[2010] FMCAfam 508


5. 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.


[2010] FamCA 742

Link: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2010/742.html?stem=0&synonyms=0&query=brouker


Other relevant cases


1. Fair Work Ombudsman v Maroochy Sunshine Pty Ltd & Anor (2017) – civil contraventions of industrial laws and exploitative labour practices


This case concerned the employment of 22 citizens of Vanuatu over a two month period in 2014. Maroochy Sunshine conducted a labour hire business contracting labourers to farmers in Queensland. These workers were employed to undertake seasonal work in the horticulture industry, and were lured by false promises about the amount of work available and the amounts that might be earned from that work. Evidence was given that the workers were immediately taken to an isolated, rural area on arrival in Australia, were not provided any pocket money to buy food or call their families, were unable to access their own transportation, were forced to sleep in cramped living quarters or on buses, and were verbally abused by the director of Maroochy Sunshine.


The labour-hire company and its director were ordered to pay a combined penalty of $227,300 for breaches of the Fair Work Act 2009 (Cth).


Citation: Fair Work Ombudsman v Maroochy Sunshine Pty Ltd & Anor [2017] FCCA 559

 

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