DPP (Cth) v Ho & Anor [2009] VSC 437

R v Wei Tang [2008] HCA 39; (2008) 237 CLR 1, R v Wei Tang [2009] VSCA 182 referred to.

For the Commonwealth Director of Public Prosecutions

Pursuant to s 18(1)(c) Supreme Court Act 1986

1 Until the jury verdict in relation to Kam Tin Ho in the trial DPP v Kam Tin Ho and Sarissa Leech due to commence on 5 October 2009, this sentence and its particulars are prohibited from media publication, or until further Order; and

2 The Prohibition Order of 5 February 2009 as to the names of the subject witnesses there set out is to continue permanently or until further Order.

Mr Kam Tin Ho and Mr Ho Kam Ho, you both may remain seated during sentence.

3 At 6.00pm on Saturday 27 June 2009, after a ten week jury trial, each of you was found guilty by the jury of several counts contrary to Australian legislation.

4 Mr Kam Tin Ho, the first accused on the Indictment, you were found guilty on 10 counts:

(1) that between 14 August 2003 and 3 November 2004, at Melbourne, you intentionally possessed a slave, Ms N, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 1 on the Indictment);

(2) that between 27 August 2003 and 3 November 2004, at Melbourne, you intentionally possessed a slave, Ms Y, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 3 on the Indictment);

(3) that between 27 August 2003 and 3 November 2004, at Melbourne, you intentionally exercised over a slave, Ms Y, a power attaching to the right of ownership, namely the power to use, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 4 on the Indictment);

(4) that between 14 August 2003 and 3 November 2004, at Melbourne, you intentionally possessed a slave, Ms T, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 5 on the Indictment);

(5) that between 23 June 2004 and 3 November 2004, at Melbourne, you intentionally possessed a slave, Ms R, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 7 on the Indictment);

(6) that between 7 and 16 July 2004, at Melbourne, you were a party to two non-reportable cash transactions (each of $9000.00) for the sole or dominant purpose of attempting to ensure that the transactions would not give rise to a significant cash transaction, contrary to s 31(1) Financial Transaction Reports Act 1988 (Commonwealth) (Count 9 on the Indictment);

(7) that on 9 August 2004, you were a party to two non-reportable cash transactions (each of $9500.00) for the sole or dominant purpose of attempting to ensure that the transactions would not give rise to a significant cash transaction, contrary to s 31(1) Financial Transaction Reports Act 1988 (Commonwealth) (Count 11 on the Indictment);

(8) that between 13 August 2004 and 3 November 2004, at Melbourne, you intentionally possessed a slave, namely Ms K, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 12 on the Indictment);

(9) that between 11 August 2004 and 1 September 2004, at Melbourne, you were a party to four non-reportable cash transactions (each of $9000.00) for the sole or dominant purpose of attempting to ensure that the transactions would not give rise to a significant cash transaction, contrary to s 31(1) Financial Transaction Reports Act 1988 (Commonwealth) (Count 13 on the Indictment); and

(10) that between 14 and 15 September 2004, at Melbourne, you were a party to two non-reportable cash transactions (each of $9000.00) for the sole or dominant purpose of attempting to ensure that the transactions would not give rise to a significant cash transaction, contrary to s31(1) Financial Transaction Reports Act 1988 (Commonwealth) (Count 14 on the Indictment).

5 In relation to you, Mr Kam Tin Ho, the jury was unable to reach a unanimous verdict on four counts. Those counts were:

(1) that between 18 August 2003 and 3 November 2004, at Melbourne, you intentionally exercised over a slave, Ms N, a power attaching to the right of ownership, namely the power to use contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 2 on the Indictment);

(2) that between 17 August 2003 and 3 November 2004, at Melbourne, you intentionally exercised over a slave, Ms T, a power attaching to the right of ownership, namely the power to use, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 6 on the Indictment);

(3) that between 23 June 2004 and 3 November 2004, at Melbourne, you intentionally exercised over a slave, Ms R, a power attaching to the right of ownership, namely the power to use, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 8 on the Indictment); and

(4) that between 9 and 10 August 2004, at Melbourne, you intentionally entered into a commercial transaction involving a slave, Ms K, contrary to paragraph 270.3(1)(c) Criminal Code (Commonwealth) (Count 10 on the Indictment).

6 Thus, Mr Kam Tin Ho, on the 14 count Indictment in relation to you, you were found guilty on 10 counts and the jury was unable to reach a unanimous verdict on 4 other counts. You were not acquitted on any counts. In the circumstances I finally discharged the jury on all counts in relation to you. You are now to be sentenced in relation to the 10 counts on which the jury found you guilty.

7 Mr Ho Kam Ho, the second accused, on the same date, 27 June 2009, you were found guilty by the jury on 5 counts:

(1) that between 14 August 2003 and 3 November 2004, at Melbourne, you intentionally possessed a slave, Ms N, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 1 on the Indictment);

(2) that between 27 August 2003 and 3 November 2004, at Melbourne, you intentionally possessed a slave, Ms Y, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 3 on the Indictment);

(3) that between 14 August 2003 and 3 November 2004, at Melbourne, you intentionally possessed a slave, Ms T, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 5 on the Indictment);

(4) that between 23 June 2003 and 3 November 2004, at Melbourne, you intentionally possessed a slave, Ms R, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 7 on the Indictment); and

(5) that on 9 August 2004, at Melbourne, you were a party to two non-reportable cash transactions (each of $9500.00) for the sole or dominant purpose of attempting to ensure that the transactions would not give rise to a significant cash transaction, contrary to s 31(1) Financial Transaction Reports Act 1988 (Commonwealth) (Count 11 on the Indictment).

8 Mr Ho Kam Ho, on the same date, 27 June 2009, you were found not guilty by the jury on 6 counts. Those counts were:

(1) that between 18 August 2003 and 3 November 2004, at Melbourne, you intentionally exercised over a slave, Ms N, a power attaching to the right of ownership, namely the power to use, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 2 on the Indictment);

(2) that between 27 August 2003 and 3 November 2004, at Melbourne, you intentionally exercised over a slave, Ms Y, a power attaching to the right of ownership, namely the power to use, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 4 on the Indictment);

(3) that between 17 August 2003 and 3 November 2004, at Melbourne, you intentionally exercised over s slave, Ms T, a power attaching to the right of ownership, namely the power to use, contrary to paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 6 on the Indictment);

(4) that between 23 June 2004 and 3 November 2004, at Melbourne, you intentionally exercised over a slave, Ms R, a power attaching to the right of ownership, namely the power to use, contrary of paragraph 270.3(1)(a) Criminal Code (Commonwealth) (Count 8 on the Indictment);

(5) that between 9 and 10 August 2004, at Melbourne, you intentionally entered a commercial transaction involving a slave, Ms K, contrary to paragraph 270.3(1)(c) Criminal Code (Commonwealth) (Count 10 on the Indictment); and

(6) that between 11 August 2004 and 1 September 2004, at Melbourne, you were a party to four non-reportable cash transactions (each of $9000.00) for the sole or dominant purpose of attempting to ensure that the transactions would not give rise to a significant cash transaction, contrary to s 31(1) Financial Transaction Reports Act 1988 (Commonwealth) (Count 13 on the Indictment).

9 Thus, Mr Ho Kam Ho, on the 11 count Indictment in relation to you, you were found guilty on 5 counts and not guilty on 6 counts (the last, Count 13, by my direction). The jury unanimously agreed on all counts in relation to you. You are now to be sentenced on the 5 counts on which the jury found you guilty.

10 Mr Kam Tin Ho, you were found guilty by the jury in relation to offences involving five subjects and, Mr Ho Kam Ho, you were found guilty by the jury in relation to offences involving four subjects.

11 Two other accused were presented on the same Indictment. The third accused was presented on 3 counts. He was found not guilty by the jury on one count (Count 2) and the jury was unable to reach a unanimous verdict on the other two counts (Counts 1 and 12). The fourth accused was presented on 1 count (Count 10) upon which he was found not guilty by the jury. Those verdicts were also delivered on 27 June 2009 and I then finally discharged the jury in relation to those two accused.

12 The offences occurred over the named period to November 2004. Search warrants were executed on the relevant business premises and other premises on 3 November 2004. You, Mr Kam Tin Ho, were arrested on 2 December 2004 and you, Mr Ho Kam Ho, were arrested on 8 September 2005.

13 The proceedings from arrest to sentence have involved a significant time period. The committal in the Magistrates' Court occurred on 26 April 2006; a first Directions Hearing, in this Court, occurred on 4 July 2006; the jury in your trial in this Court was empanelled on 21 April 2009; and as I have said, after a 10 week jury trial, verdicts were received on 27 June 2009.

14 The reason for the extensive period of time from the first Directions Hearing in this Court, 4 July 2006, to the jury empanelment on 21 April 2009 is found in relation to a case which was factually unconnected to this case, but in which multiple related questions of law, both of the Code of the general principle, arose, and which applied to this case. That was the case of Wei Tang.

15 That accused, on 3 June 2006, was found guilty by a jury in the County Court of Victoria of 10 counts contrary to s.273(1)(a) of the Code, being five counts of possessing a slave and five counts of exercising a power of ownership over a slave, being the power to use, in relation to five women. The trial commenced before His Honour Judge McInerney on 19 April 2006 and verdicts were received on 3 June 2006. Sentence was imposed by His Honour on 9 June 2006.[1]

16 Applications for leave to appeal against convictions and sentence were heard in the Victorian Court of Appeal in March 2007, and judgment was handed down by the Court on 27 June 2007.[2] The applications for leave to appeal against convictions were granted. The appeals were allowed. The convictions were quashed and a re-trial was ordered.

17 Special leave was then applied to the High Court from the decision of the Court of Appeal and application to cross-appeal also. In May 2008, the applications and appeals were heard by the High Court. On 28 August 2008, judgment of the High Court was handed down.[3] In that judgment, special leave was granted, the appeal was allowed, the orders of the Court of Appeal below were set aside, the appeal to the Court of Appeal against conviction was dismissed and the matter was remitted to the Court of Appeal for consideration by it of the applications for leave to appeal against sentences.

18 It was the interface of the decision in Tang and this case which occasioned the delay in the progress of the present trial. During 2008 counsel for the parties in this case, responsibly in my view, submitted that it was appropriate, given the interface of issues both under the Code and at common law of Tang and this case, for the authoritative decision of the High Court to be waited upon. That was done. When in 2009 this trial was heard, the jury was directed in accordance with the principles laid down by the High Court in R v Tang.

19 When the jury verdicts were delivered in this case, the decision in the Victorian Court of Appeal on sentence in Tang had been reserved for some time. Accordingly I decided, with the agreement of the parties, to proceed with pleas and sentences. Pleas were heard and a sentence date fixed.

20 Shortly before sentence was to be handed down by me in this matter, the judgment of the Court of Appeal on sentence in Tang was handed down, on 17 August 2009, having been reserved on 5 February 2009. Accordingly I invited the parties to make further submissions to me on the basis of that decision, which all counsel most helpfully did.

21 Thus there has been a long curial pathway in this court of this case.

22 This was a long and difficult investigation and I commend the Federal Agents who conducted it, in particular the Informant, for their loyal work.

23 This was a long and difficult trial and I commend the jury for its conscientious and selfless application to its task as the judges of the facts. Once again this trial demonstrates the responsibility and the loyalty to principle of citizens deciding significant cases.

24 I was most impressed by each of the women the subjects of the counts who gave evidence during the trial. Without exception in the giving of their evidence, each was honest, straight-forward and responsible. I have no doubt that each of them was under considerable strain in court and each of them discharged their duties as witnesses properly.

25 Finally, a word about nomenclature. In Ruling No 1 given on 23 December 2008 I stated:

"I consider it is inappropriate to use the word 'complainants' in relation to each of those persons [the subjects named in the counts] because that term involves an erroneous focusing upon reporting rather than upon the actions alleged in relation to them. The word 'victim' involves an assumption in some cases of what needs to be proved. Accordingly I propose to use the word 'subject' as an appropriate neutral term in relation to each of them."[4]

That course was followed throughout the trial. I consider that the terms "complainant" and "prosecutrix" ought be eschewed. Almost wholly they are confined to sexual offences and stalking. There is no reason to use them in those contexts and every reason not to. As stated above, the term "complainant" has overtones of blaming the subject. The term "prosecutrix" is doctrinally misconceived because it is the State, not the subject, which brings criminal proceedings. More fundamentally, the terms are gender biased. Overwhelmingly, the terms are used in sexual cases and then in relation to women, as the term "prosecutrix" demonstrates. In a note to her article "Rape Lore: Legal Narrative and Sexual Violence"[5], Rae Kaspiew states:

"The question of how to describe women who undergo the experience of rape is a complex one. The legal system's designation of them as complainant or prosecutrix is unsatisfactory from a feminist perspective because both terms situate them in the position of legal actor - a representation this article argues is false. While the term 'victim' reflects the position of the women at the time of the events in question, it also implies vulnerability and weakness. The term 'victim/survivor' will be used in this article to counteract this impression".

The term "complainant" is in current use. It was used throughout the Court of Appeal decision last month in Tang. It is used throughout the Criminal Procedure Act 2009 (Victoria) (substantively to come into operation on 1 January 2010).[6] I am sure that parliamentary counsel can think of a better word than "subject"; but I consider that the word "subject" is preferable to "complainant" or "prosecutrix", for the reasons I have stated.

26 Mr Kam Tin Ho and Mr Ho Kam Ho, each of you played a part in a sophisticated, well-planned and executed scheme to bring Thai women to Australia and profit from their willingness to work for minimal reward in the sex industry in this country. In the course of the scheme the subjects were variously traded, possessed and used as items of property, thereby reducing them to the condition of slavery.

27 The scheme was run from Bangkok, Sydney and Melbourne. You, Mr Kam Tin Ho, were its Melbourne principal, and you Mr Ho Kam Ho were active in its Melbourne operation. Each of the subjects entered Australia on a three month tourist or business visa that was issued in Bangkok. The visas were arranged by persons overseas who created false cover stories for the subjects' travel to Australia. The subjects were chaperoned into Australia and handed over to their controllers. The scheme to keep the subjects in Australia for as long as possible, and able to work without breaching their visas, was based on the submission of applications for Protection Visas when the expiry of their short stay visas was imminent. In each case the subjects were taken to migration agents to sign Protection Visa applications that falsely claimed that they were fleeing some sort of persecution in Thailand. The subjects took part in these arrangements voluntarily.

28 The subjects came to Australia from Thailand with the knowledge that they were going to work in the sex industry, and all but one had previously worked as prostitutes. They were aware that they had to pay a price to secure their trip to Australia and the opportunity to earn money to assist their families in Thailand. That price was a contract to incur a debt which meant that before earning money of their own to keep they would be required to service a number of specified clients. For some of the subjects the number of clients or jobs owed was 650, for others it was 750. Each was a 30 minute sexual service. These services were performed at either of two brothels that were located in South Melbourne. The brothels were licensed under Part 3 Prostitution Control Act 1994 (Victoria). Clients were charged by the brothel $125 per half hour. The debts owed by the subjects in this case, and thereby the gross value of their work during this period, was in the order of $81,000 to $94,000 each. The duration of the contracts would depend on how quickly the subject was to service enough clients to erase the debt. This was usually around 3 to 4 months, with 6 days a week devoted to paying off the debt. On those 6 days most of the subjects were paid $5 for each $125 service they performed and $50 was deducted from the debt. The seventh day of each week was titled their free day or day off when they could work and keep $50 of each $125 service.

29 These highly exploitative debt arrangements were one of the fundamental factors establishing that powers attaching to the right of ownership were being exercised over the subjects and that, accordingly, they were in the condition of slavery. Significantly these arrangements were accompanied by the exercise of very strict control over almost every significant aspect of the subjects' lives. For at least the duration of their contracts, and usually longer, they were not permitted to keep possession of their passports. They would be transported, usually either by you Mr Ho Kam Ho or the third accused, between the brothels and their places of residence. These residences were usually shared by several of the subjects. The cost of the subjects' accommodation, food and incidentals was paid. The subjects were effectively restricted to the residential premises. They were not allowed to have a key to the premises and were given strict instructions that they were not to go outside unaccompanied. If they needed anything they were usually instructed to contact their particular minder, either you Mr Ho Kam Ho or the third accused, and sometimes you Mr Kan Tin Ho. When rarely they were permitted to go out to have something to eat or to go shopping it would be under supervision. When their contracts had been fulfilled the subjects were expected to continue working for at least the balance of 12 months after their arrival. They were allowed to keep $50 from each service they performed. However the restrictions on their freedom of movement generally remained in place.

30 The differential dates of the offences of which you each were convicted reflects the different personal history of each of the subjects in Australia: Ms N, from 14 August 2003 to 3 November 2004; Ms Y, from 27 August 2003 to 3 November 2004; Ms T, from 14 August 2003 to 3 November 2004; Ms R, from 23 June 2004 to 3 November 2004; and Ms K, from 13 August 2004 to 3 November 2004. The evidence in relation to, and work done by, and the conditions endured by, each of the subjects was essentially the same. There were some small differences, as one would expect, but the commonality was that each of these human beings was reduced to the condition of slavery. The only significant differences between them were that the periods of enslavement varied - longer in the early counts than the later - and the fifth subject, Ms K, had not commenced work as a prostitute when the authorities intervened. Thus in her case there was no use count: that is, no count pursuant to s 270.3(1)(a) of the exercise over her of a power attaching to the right of ownership, namely the power to use. She was, however, intentionally possessed as a slave: Count 12, a count upon which you were found guilty, Mr Kam Tin Ho, and with which you were not presented, Mr Ho Kam Ho.

31 All the subjects were mature adults, educated and aware. Each acted (or, in Ms K's case, was prepared to act) voluntarily as a prostitute, and each entered in Australia knowingly on false documentation and willingly so. Each came to Australia to help their families who were in difficult situations in their homeland. When in Australia, each was in a situation of personal, social and cultural isolation. Each of you, Mr Kam Tin Ho and Mr Ho Kam Ho, was sophisticated enough to treat the women with a veneer of civility. This was for the sole purpose of ensuring that they worked productively for you as prostitutes. The telephone intercept evidence graphically revealed the reality of your control and manipulation, Mr Kam Tin Ho.

32 The residential circumstances, as well as the work conditions, of the subjects were strictly controlled by you both. The subjects were denied freedom. They were effectively prisoners in the residences, whether the Bourke Street apartment or the suburban premises provided by you in order to control them. The confluence of control over work and residence situation constituted slavery. This was in part physical - the inability to leave - but essentially mental. You controlled the subjects by their vulnerability - you knew that they feared apprehension and deportation; by the removal of their passports - critical to their self-image as persons with an identity, in a foreign country with little language and skills and no personal support; and by the ever-present shadow of a minder under the veneer of a helper. In the context of the personal isolation of the subjects - no family, no friends, no language or personal history here to help them - all this achieved your intention: to disempower these subjects. The consequence was that this was modern slavery: not with physical chains but with mental chains. The modern world unfortunately is replete with the effectiveness, and at times illegality, of mental techniques of control.

33 The financial transaction counts reflect the expropriation of funds earned from prostitution to the subjects' families in Thailand. There are two aspects to these transactions. First, they demonstrate the determination of you both that the scheme would not be discovered by the authorities. Second, they demonstrate that you did not steal from the subjects. This second matter is to your credit.

34 Each of you at trial stood mute, which is you right - a right I support. It is for the prosecution to prove the charges it brings, and there should be no burden of proof, directly or by implication, upon accused persons.

35 The differential verdicts - in your case, Mr Kam Tin Ho, of 10 verdicts of guilty and 4 counts upon which the jury was unable unanimously to agree; and in your case, Mr Ho Kam Ho, of 5 verdicts of guilty and 6 verdicts of not guilty - simply mean that, on the verdicts other than guilty, the prosecution failed to prove beyond reasonable doubt all the essential elements of the relevant offence charged.

36 Chapter 8 of the Code proscribes offences against humanity. Within it is Division 270 entitled "Slavery, sexual servitude and deceptive recruiting". By s 270.1 slavery is defined:

"For the purposes of this Division, slavery 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."

"Slavery remains unlawful and its abolition is maintained, despite the repeal by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 of Imperial Acts relating to slavery."

By s 270.3 slavery offences are defined and proscribed:

"(1) A person who, whether within or outside Australia, intentionally:

(a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; or

(b) engages in slave trading; or

(c) enters into any commercial transaction involving a slave; or

(d) exercises control or direction over, or provides finance for:

(i) any act of slave trading; or

(ii) any commercial transaction involving a slave;

is guilty of an offence.

Penalty: Imprisonment for 25 years.

(2) A person who:

(a) whether within or outside Australia:

(i) enters into any commercial transaction involving a slave; or

(ii) exercises control or direction over, or provides finance for, any commercial transaction involving a slave; or

(iii) exercises control or discretion over, or provides finance for, any act of slave trading; and

(b) is reckless as to whether the transaction or act involves a slave, slavery or slave trading;

is guilty of an offence.

Penalty: Imprisonment for 17 years.

(3) In this section:

Slave trading includes:

(a) the capture, transport or disposal of a person with the intention of reducing the person to slavery; or

(b) the purchase of sale of a slave.

(4) A person who engages in any conduct with the intention of securing the release of a person from slavery is not guilty of an offence against this section.

(5) The defendant bears a legal burden of proving the matter mentioned in subsection (4).

"(1) For the purposes of this Division, sexual servitude is the condition of a person who provides sexual services and who, because of the use of force or threats:

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

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

(2) In this section:

threat means:

(a) a threat of force; or

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

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

"(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 20 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 20 years; or

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

(3) In this section:

c_onducting a business_ includes:

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

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

(c) providing finance for the business."

Division 271 defines and proscribes trafficking in persons and debt bondage (in operation from 3 August 2005). The offences for which you are to be sentenced under the Code arise under s 270.3(1)(a) and (c).

37 The above scheme demonstrates the gravity of the offending conduct and that within that category the most serious are s 270.3 offences, offences of which each of you has been found guilty.

38 Chapter 2 of the Code provides for criminal responsibility. It states in relevant part:

"Chapter 2 - General principles of criminal responsibility

Part 2.1 - Purpose and application

Division 2

2.1 Purpose

The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth. It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.

Part 2.2 - The elements of an offence

Division 3 - General

3.1 Elements

(1) An offence consists of physical elements and fault elements.

(2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements.

(3) The law that creates the offence may provide different fault elements for different physical elements.

3.2 Establishing guilt in respect of offences

In order for a person to be found guilty of committing an offence the following must be proved:

(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;

(b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.

Division 4 - Physical elements

4.1 - Physical elements

(1) A physical element of an offence may be:

(a) conduct; or

(b) a result of conduct; or

(c) a circumstance in which conduct, or a result of conduct, occurs.

(2) In this Code:

conduct means an act, an omission to perform an act or a state of affairs.

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

4.2 Voluntariness

(1) Conduct can only be a physical element if it is voluntary.

(2) Conduct is only voluntary if it is a product of the will of the person whose conduct it is.

.....

4.3. Omissions

An omission to perform an act can only be a physical element if:

(a) the law creating the offence makes it so; or

(b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.

Division 5 - Fault elements

5.1 Fault elements

(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

(2) Subsection(1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.

5.2 Intention

(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

5.3 Knowledge

A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

5.4 Recklessness

(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2) A person is reckless with respect to result if:

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(3) The question whether taking a risk is unjustifiable is one of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

5.5 Negligence

A person is negligent with respect to a physical element of an offence if his or her conduct involves:

(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b) such a high risk that the physical element exists or will exist; that the conduct merits criminal punishment for the offence.

5.6 Offences that do not specify faults elements

(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.

(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element".

39 The above provisions articulate the elements the prosecution proved beyond reasonable doubt in the cases against each of you.

40 The slavery offences, upon which each of you have been found guilty, are properly described as offences against humanity. Australia has significant obligations as signatory to international conventions in relation to this subject matter, which subject matter transcends national boundaries and there is a strong national and international interest in its eradication. Human trafficking is a global blight.[7] Particularly egregious is sexual slavery.

41 The maximum penalty for each slavery offence, as I have stated, is 25 years' imprisonment, and for each financial offence, five years' imprisonment.

42 The subjects came to Australia from Thailand with the knowledge and intention that they were going to work in the sex industry, but your conduct towards them in Australia reduced them to the condition of slavery. The evidence in this case demonstrated significant control by you over, and disempowerment of, the subjects. That was the hallmark of the evidence in this case. That hallmark of control and disempowerment was effected by you both, particularly by you Mr Kam Tin Ho, by the fear in the subjects of detection by immigration authorities and of apprehension and deportation. The confiscation of the subjects' passports was a critical operational and psychological element of control and disempowerment. Further, the subjects were instructed not to leave the living premises, were supervised when they did and were in constant risk of apprehension and deportation. All this over a substantial period of time.

43 Although, as I have said, there were small differences in the treatment and conditions of the subjects, other than Ms K who did not commence work as a prostitute, and the periods of offending were longer in the early counts than the later, the profound commonality between the subjects was that they were reduced to slavery. It is appropriate because of that commonality to impose the same sentence in relation to each of the subjects on the counts of possession of a slave, respectively for you Mr Kam Tin Ho and separately for you Mr Ho Kam Ho because of your lesser role than your brother in the scheme.

44 I turn to the interface of Counts 3 and 4 in relation to you, Mr Kam Tin Ho. You were found guilty by the jury on Count 3 - intentionally possessing a slave, Ms Y, contrary to s 270.3(1)(a) - and on Count 4 - intentionally exercising over a slave, Ms Y, a power attaching to the right of ownership, namely the power to use, contrary to s 270.3(1)(a).

45 The Court of Appeal in Tang found one error in the reasoning of His Honour Judge McInerney - that of "double punishment". The Court held that as that error vitiated sentence, the sentencing discretion should be exercised afresh by it. The Court then reduced the total effective sentence and the non-parole period each by one year - from a total effective sentence of 10 years' imprisonment with a non-parole period of 6 years, to a total effective sentence of 9 years' imprisonment with a non-parole period of 5 years.

46 In Tang, the Court of Appeal said of the interface of a possession count and a use count (omitting footnotes):

"As the High Court said in Pearce, we must obey Sir John Barry's injunction to 'avoid excessive subtleties and refinements'. Approaching the question 'as a matter of common sense, not as a matter of semantics', we have no doubt that the offences of 'possessing a slave' and 'using a slave' overlap when committed in relation to the same person. Put simply, there can be no 'use' unless there is 'possession', and 'use' is itself an illustration of 'possession'. As Brennan J pointed out in He Kaw Teh v R, having something in possession is more easily seen as a 'state of affairs that exists because of what the person [who has possession] does in relation to thing possessed'. The conduct which here constituted 'possession' encompassed, though it was not limited to, the conduct which constituted 'use'".[8]

47 The analysis of the Court of Appeal is a priori. It involves that where the two offences involve the same person, the offences necessarily - that is, always - overlap. Unfortunately I have difficulty in that analysis in relation to this case. First, there are two separate offences proscribed by s 270.3(1) of the Code - possessing a slave and exercising over a slave any of the "other" powers attaching to the right of ownership - which bifurcation plainly postulates the difference between possession and the exercise of other powers including use. Second, the two offences involve differential, not necessarily cumulative, elements. It is easy to conceive of cases wherein the use may be far more egregious than the possession and unrelated to it. Third, there is no analogy with Pearce v R,[9] the authority relied upon by the Court of Appeal, because the gravamen in that case was the same on both counts - inflicting grievous bodily harm - the difference in the two counts being situational (breaking into the dwelling house); whereas here, the gravamen of the two offences is quite different. Accordingly I consider it is proper here to treat each count as distinct for purposes of sentence.

48 Looking to comparative cases, in Tang the accused had had an odyssey of uncertainty, unpredictability, disappointment and delay[10] which does not apply here. Each of you has had delay - not of your own making - but not the other elements applicable in Tang. Further, each of you has been on bail for a substantial portion of the delay period. Further, the element of ill-health arising in Tang does not arise here.[11] She had no prior convictions. The case of R v D.S.[12] involved a plea of guilty and very substantial assistance to the authorities. The case of R v McIvor and Tanuchit[13] involved egregious elements not present here.[14] I must say that I have derived substantial assistance from the careful Reasons for Sentence of His Honour Judge McInerney in R v Tang[15], delivered on 9 June 2006, but six days after verdicts.

49 Bearing in mind the principle of totality, it is necessary in each of your cases to order very extensive concurrency on the slavery counts, while allowing limited cumulation to reflect the fact of different subjects. Although the financial transactions counts legally are separate from the slavery counts, and involve different criminality, I consider that the sentences on those counts should be wholly concurrent with the sentences on the slavery counts because the amounts were not large and were not diverted by you to your own gain.

50 Mr Kam Tin Ho, you are now 40 years of age. You and your family came to Australia from Hong Kong in 1984. You were educated in a local Melbourne school until Year 9, and thereafter being in a difficult environment with little English underwent a period of dislocation and various jobs. You married but the marriage failed. There was a daughter of the marriage, born in 2001, and it is much to your credit that you have undertaken her upbringing. Until the jury verdicts you were living with her and with your mother and your elderly grandmother and caring for them. Your mother and grandmother are in ill health. Especially by reason of your family circumstances your imprisonment will be burdensome for you. You have been subject to these charges now for a lengthy time, with its attendant uncertainty and strain. You have complied with bail conditions and have undertaken a computer course, a matter to your credit. You have a number of prior convictions - from 1990 to 1994, a considerable time ago - including 189 charges of obtaining a financial advantage by deception and 307 charges of obtaining property by deception, all sustained in the Magistrates' Court on 28 August 1994 - and some later driving convictions which are irrelevant. You have not previously served a term of imprisonment. You were the architect and director of the Melbourne part of the scheme of slavery over a substantial period of time until the authorities intervened.

51 Mr Ho Kam Ho, you are now 39 years of age and are the younger brother of the first accused. You came to Australia with your brother and family from Hong Kong in 1984. You went to local Melbourne schools until Year 11. You took various jobs thereafter. You have had two marriages which unfortunately failed. You have a number of prior convictions recorded in 1994, a considerable time ago, for deception offences. You have not previously served a term of imprisonment. You, like your brother, have been subject to these charges now for a lengthy time, with its attendant uncertainty and strain. You also have complied with bail conditions and have undertaken a computer course, a matter to your credit. You were not the architect or director of the scheme of slavery but were an active and effective organiser, supervisor and controller over a substantial period of time until the authorities intervened.

52 Bearing in mind the different roles each of you played in this criminal enterprise, five principles of sentencing apply to both of you with that differentiation of role. First, the conduct of both of you is to be condemned. Second, both of you are to be punished for your criminal conduct. Third, and significantly, the principle of general deterrence, that is the deterrence of other like minded criminal enterprises, is most significant in sentence in this and in other slavery cases. Fourth, each of you is yourself to be deterred, known as specific deterrence. Fifth, the Court always has regard to the principle of reformation, an important principle which I have regard to in relation to both of you.

53 The sentences I impose upon you are as follows. First you, Mr Kam Tin Ho:

54 On Count 1, you are sentenced to nine years' imprisonment;

55 On Count 3, you are sentenced to nine years' imprisonment;

56 On Count 4, you are sentenced to nine years' imprisonment;

57 On Count 5, you are sentenced to nine years' imprisonment;

58 On Count 7, you are sentenced to nine years' imprisonment; and

59 On Count 12, you are sentenced to nine years' imprisonment.

60 I direct cumulation of one year's imprisonment of each of the sentences on Counts 3, 4, 5, 7 and 12 upon Count 1 and upon each other. They are the slavery counts.

61 On Count 9, you are sentenced to six months' imprisonment;

62 On Count 11, you are sentenced to six months' imprisonment;

63 On Count 13, you are sentenced to six months' imprisonment; and

64 On Count 14, you are sentenced to six months' imprisonment.

65 In relation to the financial transaction counts, I direct that the four sentences on Counts 9, 11, 13 and 14 are to be served wholly concurrently with each other and wholly concurrently with the sentence on Count 1, the first slavery count.

66 The total effective sentence imposed upon you, Mr Kam Tin Ho, is 14 years' imprisonment. I direct that you serve a minimum term of 11 years' imprisonment before being eligible for parole.

67 Pursuant to s.16(e)(2) Crimes Act 1914 (Commonwealth) and s.18(1)(c) Sentencing Act 1991 (Victoria) I declare the period of 107 days' pre-sentence detention already served by you as already served under the sentences and I so certify.

68 The commencement of sentences is set out in a Schedule, which I shall have my Associate provide to the parties upon leaving the Bench.

69 Mr Kam Tin Ho, the period of non-parole, that is, the period of 11 years before which you may be eligible for parole, means that that period must be served before you might become eligible for parole; and if you are granted parole, that means that you are subject to conditions and the Parole Order may be amended or revoked if you do not fulfil its conditions. That explanation is required by s.16(f) Crimes Act 1914 (Commonwealth).

70 Mr Ho Kam Ho, the sentences I impose upon you are as follows.

71 On Count 1, you are sentenced to seven years' imprisonment;

72 On Count 3, you are sentenced to seven years' imprisonment;

73 On Count 5, you are sentenced to seven years' imprisonment; and

74 On Count 7, you are sentenced to seven years' imprisonment;

75 On the financial transaction count, Count 11, you are sentenced to six months' imprisonment.

76 I direct in relation to the slavery counts, cumulation of one year's imprisonment of the sentences on each of Counts 3, 5 and 7 upon Count 1 and upon each other.

77 I direct that the sentence of six months' imprisonment on Count 11 be served wholly concurrently with the sentence on Count 1.

78 The total effective sentence imposed upon you Mr Ho Kam Ho, is ten years' imprisonment. I direct that you serve a minimum period of seven years' imprisonment before you are eligible for parole.

79 Pursuant to s.16(e)(2) Crimes Act 1914 (Commonwealth) and s.18(1)(c) Sentencing Act 1991 (Victoria), I declare the period of 315 days' pre-sentence detention as already served by you under the sentences and I so certify. Commencement of sentence is also set out in the Schedule attached and, again, the same explanation I gave to Mr Kam Tin Ho, I give to you, Mr Ho Kam Ho, as to the meaning of the non-parole period and of the possibility and conditions of parole after seven years.

COMMENCEMENT of SENTENCES: S.19(2) Crimes Act 1914 (Cwl'th)

COMMENCEMENT of SENTENCES: S.19(2) Crimes Act 1914 (Cwl'th)

[1] [2006] VCC 637.

[3] [2008] HCA 39; (2008) 237 CLR 1.

[5] Kaspiew, R: "Rape Lore: Legal Narrative and Sexual Violence"[1995] MelbULawRw 24; (1995) 20 Melbourne University Law Review 350, 355 n.41. See also Naffine, N. "Windows on the Legal Mind: the Evocation of Rape in Legal Writings" [1992] MelbULawRw 17; (1992) 18 Melbourne University Law Review 741 and Erickson N. "Final Report: Sex Bias in the Teaching of Criminal Law" (1990) 42 Rutgers Law Review 309. See also Allen v State of Texas 700 SW 2d 924 (Texas Ct. Crim. App., 1985) per Teague J at 933-934 and per Miller J at 936. I agree with Miller J on the matter of nomenclature.

[6] Sections 99(1), 110(1)(f), 123, 133(3), 163(2) and 181(2)(d). In section 110, the number (1) is otiose.

[7] See Hathaway, J.C.: "The Human Rights Quagmire of 'Human Trafficking'" [2008] VirgJlIntLaw 14; (2008) 49 Virginia Journal of International Law 1.

[12] [2005] VSCA 99; (2005) 153 A.Crim.R. 194.

[13] [2008] NSWDC 185.

[14] [2008] NSWDC 185, in particular paragraph 24 and paragraph 35 dot points 4 and 5.

[15] [2006] VCC 637.