R v D S [2005] VSCA 99

1 I will ask Chernov, J.A. to deliver the first judgment.

2 The appellant, DS, who is a citizen of Thailand and now aged 38 years, pleaded guilty in the County Court at Melbourne on 22 December 2004 to three counts (counts 1, 3 and 4) of possessing a slave contrary to s.270.3(1)(a) of the Criminal Code Act 1995 (Cth) ("the Code") and two counts of engaging in slave trading contrary to s.270.3(1)(b) of the Code (counts 2 and 5). Each offence carries a maximum penalty of 25 years' imprisonment. On 24 January 2005, after hearing a plea for leniency made on the appellant's behalf, the learned sentencing judge sentenced her to a total effective sentence of nine years' imprisonment and, pursuant to s.19AB(1) of the Crimes Act 1914 (Cth) ("the Act"), fixed a single non-parole period in respect of that sentence of three years. More specifically, on counts 1 and 2, his Honour imposed sentences of seven years' and five years' imprisonment respectively. On each of counts 3, 4 and 5, his Honour sentenced the appellant to six years and six months' imprisonment. The learned sentencing judge set out the manner in which he arrived at the desired total effective sentence both in terms of cumulation orders, as made under the Sentencing Act 1991 (Vic), and in the terms required by s.19(2) of the Act. More particularly, his Honour ordered that six months of each of the sentences, other than that imposed on count 1, be served cumulatively on the sentence imposed on count 1 and on each other, thus making a total effective sentence of nine years' imprisonment. His Honour then ordered pursuant to s.19(2) of the Act[1] that each count was to commence on the following dates:

Count 1 - 24 January 2005

Count 2 - 24 July 2008

Count 3 - 24 January 2006

Count 4 - 24 July 2006

Count 5 - 24 July 2007

The effect of fixing the commencement of the sentences at the above dates was to produce an aggregate sentence of nine years' imprisonment. Finally, the learned sentencing judge stated: "As required by s.21E of the Act[2], I have discounted [from the sentence on each count] the additional time I would have imposed but for the factor of [the appellant's undertaking to provide] future co-operation and assistance." His Honour went on to state the additional terms of imprisonment he would have imposed but for the appellant's "future co-operation":

On count 1 - three years

On count 2 - two years and six months

On each of counts 3, 4 and 5 - two years and nine months

On the non-parole period - nine months.

3 Section 270.3 of the Code is part of Division 270 of Chapter 8, which is concerned with offences against humanity. Division 270 was inserted into the Code by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth) and commenced operation on 21 September 1999. The legislation was introduced on the recommendation of the Australian Law Reform Commission that was made in 1990 to replace four 19th century Imperial Acts that dealt with slavery. It is consistent with Australia's obligations as signatory to various international Conventions.[3] His Honour was told by the Crown during the hearing of the plea in mitigation that the prosecution of the appellant and her co-accused was the first prosecution of offences under s.270.3(1)(a) or (b) of the Code or, for that matter, for any other offence against Division 270 of Chapter 8 of the Code.[4]

4 The Code defines "slavery" in s.270.1 as "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." "Slave trading" is defined in s.270.3(3) as "[including]:

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

5 I now turn briefly to the circumstances of the offending. In essence, the appellant was party to an international scheme which involved bringing to Australia from Thailand Thai women, nearly all of whom were destitute and working there in the sex industry, to work as prostitutes in Sydney and Melbourne licensed brothels in circumstances where they were "owned" by the Australian organisers and were compelled to work as prostitutes without wages for very long periods. They were effectively kept under lock and key in their residences and at the brothel for the duration of their contracts and were allowed to leave only with the permission of their "owners" and under escort. The victims were induced to come to Australia as sex workers with promises that after they paid off their "debts" to the Australian organisers for the cost of bringing them out here and providing work, accommodation and food for them, they would be free to earn money in Australia as prostitutes. It seems that each victim was informed about the nature of the work that she would perform once she arrived in Australia and that she would have to sleep with a certain number of "clients" and earn a certain amount of money before she would be free from contractual obligations.

6 In short compass, the scheme operated as follows. The organisers in Australia arranged for an appropriate visa to be issued to a victim, no doubt on the basis of false information being provided to the immigration authorities. Sometimes that required funds to be deposited temporarily in a bank account in the name of the victim in order to ensure that her visa could be obtained. The woman was then flown to Sydney from Bangkok, "escorted" by one or two people, usually an elderly couple (so as not to arouse suspicion as to the victim's real purpose in coming to Australia). Generally, once the victim arrived here she was treated as being "owned" by those who had procured her passage. The victim would be met at the airport by a representative of the Australian "owner", who would pay off the "escorts" and take the victim to an apartment or hotel in Sydney and keep her there until a decision was made as to the brothel at which she was to work. The victim's passport and return air ticket would be confiscated on the basis that they would be returned to her when she had paid off the so-called "debt" - usually in the order of $40,000 to $45,000 - by working, unpaid, as a prostitute at a brothel designated by her "owner". The "debt" was to be reduced in the following way. The usual fee paid by a "customer" at the brothel where the victim worked was in the order of $110. Of that amount, $50 was paid to the contract "owner" in reduction of the victim's debt and the balance to the brothel owner. Whilst under contract, as I have said, the women lived in apartments controlled by their "owners" and were not permitted to leave them without an escort. Even at these premises they were under the watchful eye of a "minder" who was effectively the agent of the "owner". They did not have keys to the building and were driven to the apartments and to the brothel each day by "escorts". Each woman was required to work through the night at least six days a week without pay, although if she chose to work on the seventh day, usually her earnings could be retained by her. As his Honour stated in his sentencing remarks, each of the victims worked as a prostitute "under terms and conditions which had the effect of reducing each of these ... women to slavery".

7 The appellant herself had been a "contracted" prostitute who arrived in Australia on 24 June 2000, accompanied by an elderly couple. She said in her statement of 15 December 2004 that she came here pursuant to an agreement with a Thai organiser to service 700 clients in Australia in return for a visa to enter here, a return airline ticket and "a chance to earn money" in Australia. Before doing this, she worked as a prostitute in Hong Kong pursuant to a like arrangement into which she entered with Thai organisers. She completed her contract in Sydney and continued to work there as a prostitute. From about late 2001 the appellant began to assist a man known as "Sam", who was located in Sydney and who had been the appellant's "owner" when she was under "contract", to negotiate for him with Thai organisers and to settle the Thai victims in Australia when they came here. Moreover, she generally looked after "contracted" women in relation to their work in a brothel known as Club 417 in Brunswick Street, Fitzroy. The appellant also collected money earned by the victims who worked at Club 417 from a co-accused, WT, who was the owner of Club 417, and delivered it to Sam in Sydney. After a while the appellant was paid a percentage of the money that would be notionally paid for the victims' services, thereby gaining an interest in the contract. In general terms, the appellant was also involved in supervising the work of the victims to see that they were working at an acceptable rate, often acting as their interpreter, telling them of their contractual obligations and instructing them how to deal, if necessary, with police and/or immigration officials in order to avoid being detected as contracted prostitution workers and being deported. On occasions the appellant also acted as an "escort" for the victims, taking them from their residence to and from the brothels, and assisted in making fraudulent applications for visa extensions in respect of some of the women, but unbeknownst to them.

8 I now turn to the offending the subject of the five counts, each of which related to a different victim, all of whom worked at Club 417. Count 1 covered the period August 2002 to May 2003 and related to MK, who came to Australia in August 2002 in circumstances similar to those described earlier and, as the appellant explained to the victim, was required to work off a "debt" of $45,000. It was the appellant who took part in arranging with Thai organisers for MK to come to Australia and it was the appellant who eventually arranged for her to work at Club 417, after which she was paid 20 per cent of MK's notional earnings for the eight months or so that it took her to repay her "debt". During this period the appellant held MK's passport and return air fare. It was also the appellant who, on occasions, "escorted" MK to and from Club 417.

9 Counts 3 and 4 were concerned with the appellant's dealings with SJ and AT respectively, but over the shorter period between 5 April 2003 and 31 May 2003. These victims came to Australia on 5 April 2003 in much the same circumstances as MK and the appellant was similarly involved with them. In return the appellant was paid 10 per cent of the relevant earnings.

10 Count 2 essentially alleged that the appellant was engaged in slave trading in relation to JR between 17 and 28 October 2002. As the intermediary between Thai organisers and WT, the appellant effected, between 17 and 28 October 2002, the transfer of "possession" of JR to WT as her new "owner". It took JR some eight months to work off her debt and during this period the appellant dealt with her in much the same way as she did with MK. JR's freedom to work as a prostitute in her own right was short-lived because, as will be explained shortly, the brothel was raided by the authorities one week or so after she had worked off her debt. In relation to SB, who is the victim identified in count 5, the period of the appellant's offending was confined to 16 May 2003, being the date on which that victim arrived in Melbourne to work as a prostitute. She was met by the appellant, who had acted in an intermediary capacity between the Thai organisers and the ultimate "owners" of SB in Australia, namely, WT and the appellant's co-offender, PP, the manager of Club 417.

11 On 31 May 2003, officials from the Department of Immigration, Multicultural and Indigenous Affairs, accompanied by officers of the Australian Tax Office, executed a search warrant at Club 417. During the search, officials obtained from PP a number of passports, three of which belonged to the victims who were the subjects of counts 3, 4 and 5. Each of these women was still "under contract", their passports having been confiscated in the circumstances already described.

12 Following the search, on 11 July 2003, the appellant, WT and PP were arrested and charged with offences contrary to s.270.3(1) of the Code. The appellant was interviewed later that day and made a "no comment" interview. At the three-week committal proceeding that commenced on 11 November 2003, the Crown called fifteen witnesses. Because of the continuing investigation by the authorities of like offending conduct, and in order not to expose the appellant to undue risk of harm from other offenders, police witnesses who gave evidence before his Honour about the value to them of the appellant's assistance could do so only in general terms. Thus, at the hearing of the plea in mitigation, the officer in charge of the matter, and who was concerned with the appellant's arrest, told his Honour that in August 2004 the appellant had been involved in lengthy interviews by the Federal Police during which she admitted her role in the offending conduct described earlier and gave the police valuable information about the scheme's operation here and in Thailand. He described her co-operation as unique, saying that it provided the Federal Police with a valuable insight into the scheme, including the finances of the operation and the work of the contract "owners" that was otherwise difficult to obtain. Furthermore, the appellant gave additional information in regards to other investigations, which his Honour did not detail in his sentencing remarks, but he accepted that such information was of particular value to the authorities. The appellant had also undertaken to give evidence in regard to her co-accused, as well as in the prosecution of others in New South Wales in relation to like operations and in respect of other, further, investigations that were being continued. His Honour accepted that, in addition to giving useful information to police, the appellant provided information of particular assistance to the immigration authorities. The appellant gave evidence before his Honour and provided a relevant undertaking to provide co-operation to the authorities in the future. We were told that the trial of WT and PP was to commence shortly in the County Court at Melbourne.

13 The appellant filed a Notice of Application for leave to appeal against sentence on 27 January 2005 and on 4 March 2005 the learned President granted the application. In her comprehensive Full Statement of Grounds of Appeal, filed on 30 March 2005, the appellant complains about the sentences on 16 stated grounds that allege a number of specific errors by his Honour. It is claimed by the appellant that his Honour's sentencing discretion has been vitiated and she must now be re-sentenced by this Court. It is not necessary to examine all the grounds or the comprehensive submissions made in support of them by Mr Holdenson, who appeared for the appellant before us. It is sufficient to note that Mr Silbert, who appeared for the Crown, agreed that his Honour's sentencing discretion had miscarried in a number of ways as alleged by the appellant. Thus, for example, Mr Silbert conceded that his Honour erred in imposing a sentence in respect of count 5 that was higher than that imposed on count 2 and by wrongly attributing "great weight" to the principle of specific deterrence. There are other significant errors for which Mr Holdenson contended that were essentially conceded by Mr Silbert, but it is not necessary to discuss them here because I am satisfied that the Crown made proper concessions as to the above sentencing errors, with the result that the appellant is to be re-sentenced by this Court.

14 I mention for completeness Mr Holdenson's ground 13, under cover of which it was alleged in written outline that his Honour erred by ordering that one of the sentences, that in relation to count 2, was to commence subsequently to the expiration of the non-parole period which was fixed. It will be recalled that the non-parole period was three years and that it was, therefore, due to expire on 24 January 2008, whereas the sentence on count 2 was due to commence after that date, on 24 July 2008. It was claimed that the non-parole period so fixed properly formed part of "each and all" of the federal sentences of imprisonment imposed, and in light of s.19(2), none of the individual sentences could properly commence after the expiration of the sentences "the commencement of which had already been fixed". Consequently, it was said, the commencement date of the sentence imposed on count 2 has been impermissibly fixed by his Honour. Mr Holdenson did not press this ground in oral submissions before us and Mr Silbert, who had originally conceded the correctness of ground 13, specifically disavowed the Director contending that a sentence that commenced after the expiration of the non-parole period would be, by that reason alone, wrong. I think this was a proper concession to make.

15 In one sense, the non-parole period is a "federal sentence" fixed under the Act, inasmuch as it is the minimum period of imprisonment that, in the opinion of the sentencing court, must be served by the offender in order to meet the requirements of justice before becoming eligible for parole. See, for example, R. v. Cardona[5]. But s.19(2) of the Act[6] deals with different matters. The concluding words of that provision, I think, perform two functions. First, they seek to prevent a situation arising where there is a gap in time between the ending of one sentence and the commencement of another, thereby avoiding the potential problem of the offender being released and then having to return to serve the next sentence. Secondly, they enable the fixing of what is, in effect, a total effective sentence by requiring the sentencing judge to fix a series of commencing dates of a number of sentences that either overlap, or are "back to back", such that at the expiration of one of them at the latest point in time determines the overall period of imprisonment that the offender must serve, having regard to the totality of his or her criminality, before he or she becomes eligible for unconditional release. The non-parole period does not fit into this legislative scheme; it marks out a point in time during the sentence when the offender will be eligible to be released on parole. Moreover, the definition of "non-parole period" in s.16(1) of the Act does not speak of "each sentence", as counsel would have it, and nor does s.19AB(1), which requires the imposition of a non-parole period in respect of the aggregate sentence of over three years' duration.

16 The criticism of his Honour now under ground 13 could have been avoided simply by an artificial "fiddling" of the commencement date of the sentence imposed on count 2 to a date prior to 24 January 2008, being a date before the expiration of the non-parole period. I doubt that Parliament intended to impose such a superficial requirement on sentencing judges. Moreover, if counsel's argument were accepted, it would mean that, in many cases where a number of relatively short sentences are imposed in circumstances where the total criminality of the offending conduct was such as to warrant a significant amount of cumulation (ordered in the form required by s.19(2)), the sentencing judge would be effectively deprived of fixing a relatively short non-parole period. Thus, if the judge were minded to impose a total effective sentence of 11 years' imprisonment in the context where he imposed six individual sentences ranging from 1 to 4 years' imprisonment, a non-parole period of 3 years could not be properly fixed according to counsel's argument. In the circumstances, as I have said, the concession initially made by the Director was unwarranted and Mr Silbert was correct to withdraw it.

17 I therefore proceed to consider the sentences that should be imposed on the appellant by this Court by way of re-sentencing in relation to the five counts in question. Although, as I have said, there is no essential disagreement between the parties on the question whether his Honour relevantly erred in sentencing the appellant, the Crown did not accept Mr Holdenson's claim that she played only a limited role in the offending. Mr Holdenson argued that the appellant was a mere intermediary and not an organiser of the criminal schemes. It was said that she was near the bottom of the hierarchy and was a "facilitator" rather than a "principal" and that his Honour was right when he described the appellant as a "minor player". Mr Holdenson emphasised that the appellant gained limited financial benefits from her illegal conduct (in the order of $20,000) and that many of the aggravating features that might be present in the offendings against the above two provisions of the Code, and which counsel itemised, were not present here. Moreover, counsel pointed out that each victim was an experienced sex worker before she came here, and that none of them was forced to come to Australia under coercion, and each of them had the opportunity to stay in this country until such time as their visas were terminated. Thus, it was said, the appellant's offending should be properly placed at the lower end of the scale.

18 I do not accept Mr Holdenson's submissions in this regard. In my view they tend to understate the appellant's criminality in the scheme in which she was, I think, an important participant. I agree with Mr Silbert's argument that, in general terms, her offending could be properly characterised as about mid-range in respect of counts 1 and 2, although the offending reflected in counts 3 to 5 was less serious. The appellant played an important role in the criminal scheme by effectively arranging for each of the victims to work in a brothel here in circumstances where they were totally subjected to the directions of their "owner" so far as their work was concerned and were deprived of their basic freedom of movement. The appellant well knew that the scheme involved robbing the victims of their basic rights - she was such a victim herself at one stage, yet she participated in the illegal and highly immoral scheme. It is clear enough, I think, that his Honour treated the appellant as having performed an important role in the criminal conduct in respect of the five victims in question and I consider that this finding was well open to him.

19 It is plain that, for the reasons given by the learned sentencing judge, the appellant's offending conduct here was serious. It is also plain that the offences are very serious given the maximum custodial sentences prescribed by the Commonwealth Parliament. Moreover, I think that the sentencing principles of general deterrence, denunciation and just punishment assumed considerable importance in this case. Having said that, however, there are significant mitigating circumstances that operate in the appellant's favour, the principal ones being the appellant's plea of guilty, her remorse and contrition, and the obviously significant help that she has provided to the police and immigration authorities in their fight against criminal conduct of the kind in which the appellant was involved. Furthermore, given her cultural background and isolation in Australia, serving a term of imprisonment will be of particular difficulty for the appellant. Importantly, as I have mentioned, she has undertaken, at considerable risk to her own safety, to continue to provide valuable assistance to the authorities in the future. It should also be noted that the provision of such assistance by the appellant to the authorities imposed on her considerable hardship in serving the sentence. As Mr Holdenson pointed out, the appellant, being in prison, could only provide assistance to the authorities during meetings with officials that were effectively in view of other inmates. Similarly, in order to give evidence interstate the appellant was required to travel from the prison in circumstances that made her purpose for so doing apparent to other prisoners. All this tended to increase, at the very least, the other prisoners' hostility towards her. Counsel further pointed out that the appellant has already devoted considerable effort to fulfilling her promise to co-operate. Thus, it is plain that she must have spent considerable time in providing evidence to the authorities earlier this year, given that she made a statement on 8 March 2005 of some 16 pages, and a further statement on 14 March 2005 of 14 pages, with exhibits including photographs of buildings in Sydney. It follows that the appellant is entitled to a significant sentencing discount by reason of these mitigating factors.

20 In so far as any sentencing discount is to be given to the appellant in relation to her future co-operation with the authorities, this Court is, as I have noted, bound by s.21E(1) of the Act to state the sentence that would have been imposed but for that reduction. In the circumstances, in re-sentencing the appellant, I would impose the sentences that are set out in column 1 of Table 1 below, taking into account the mitigating factors, which include those referred to earlier, including a reduction for her promised future co-operation with the authorities. I also set out in column 2 of Table 1 the sentences that I would have imposed but for that reduction, as required by the above provision.

TABLE 1

Count Col 1 Col 2

1 5 years 9 years

2 4 years 7 years

3 3 years 5 years

4 3 years 5 years

5 2 years 3 years.

21 As I have explained, in the circumstances of this case, s.19(2) of the Act requires this Court to direct the date on which each sentence is to commence, "so that no sentence commences later than the end of the sentence the commencement of which has already been fixed or of the last to end of those sentences". In light of the totality of the appellant's criminal conduct, which took place over a relatively lengthy period, I would direct that the sentences on each count that I have set out in column 1 of Table 1 commence on the dates shown in Table 2 below.

TABLE 2

Count Commencement

1 24 January 2005

2 24 July 2006

3 24 October 2007

4 24 January 2008

5 24 January 2009

This means that the aggregate period of imprisonment that the appellant will have to serve, if other members of the Court agree, will be between 24 January 2005 and 23 January 2011, namely, 6 years.

22 But for the appellant's promise to co-operate, I would have imposed an aggregate sentence of 12 years' imprisonment. In terms of Victorian sentencing practice it would mean that 18 months of the sentence of 7 years imposed on count 2, as shown in column 2 of Table 1, and 9 months of each of the sentences so imposed on counts 3 and 4 would be cumulated on the sentence of 9 years imposed on count 1 and upon each other.

23 In re-sentencing the appellant I would fix, in accordance with s.19AB(1) of the Act, a single non-parole period of 2 years and 6 months and state, pursuant to s.21E(1)(b), that, but for her abovementioned co-operation, I would have imposed a non-parole period of 5 years.

24 Finally, I consider that, given the serious nature and extent of the offending in this case and the relevant sentencing principles to which reference has been made,

no other sentence than that which I have proposed would be appropriate.

26 I agree with the disposition of this matter proposed by Chernov, J.A. and do so for the reasons advanced by him.

27 The order of the Court is:

1. The appeal is allowed.

2. The sentence passed on the appellant in the County Court at Melbourne on 24 January 2005 is quashed.

3. In its place -

(a) the appellant is sentenced to be imprisoned for the following terms of imprisonment and it is directed that those sentences commence on the following respective dates:

on count 1 - 5 years, commencing 24 January 2005

on count 2 - 4 years, commencing 24 July 2006

on count 3 - 3 years, commencing 24 October 2007

on count 4 - 3 years, commencing 24 January 2008

on count 5 - 2 years, commencing 24 January 2009,

so that the total effective sentence is imprisonment for 6 years.

(b) A single non-parole period of 2 years and 6 months, calculated from 24 January 2005, is fixed in respect of those sentences.

4. In compliance with s.17A(2)(b) of the Crimes Act 1914 (Cth) it is directed that the reasons constituted by paragraph [24] of the reasons for judgment of the Honourable Justice Chernov delivered this day be

entered in the records of the Court.

5. It is declared that the period of 641 days, calculated to and including this day, 12 April 2005, is to be reckoned as already served under the sentence and it is directed that the fact that this declaration was made and its details be noted in the records of the Court.

28 Mr. Holdenson, may we have your undertaking to cause to be explained to the appellant what is required to be explained by s.16F(1) of the Crimes Act?

29 Yes, I will give the undertaking. My instructing solicitor, who is present in court, will be physically carrying out that obligation.

30 And perhaps I might just say that the purpose of the fixing of the non-parole period is as is required by the Act and secondly to provide for mitigation of punishment in favour of rehabilitation - if your instructing solicitor would draw that to the appellant's attention.

[1] Section 19(2) of the Act provides that where an offender is convicted and sentenced to a period of imprisonment in respect of two or more "federal offences", the sentencing judge must by order direct when each sentence is to commence, but "so that no sentence commences later than the end of the sentence the commencement of which has already been fixed or of the last to end of those sentences".

[2] Section 21E(1) of the Act requires that, where a sentence or a non-parole period imposed in respect of a federal offence is reduced by reason of the offender's undertaking "to co-operate with law enforcement agencies in proceedings" for any offence the court must state, amongst other matters, "the sentence [and the non-parole period] that would have been imposed but for that reduction".

[3] These Conventions include the 1926 International Convention to Suppress the Slave Trade and Slavery and the 1956 Protocol amending the abovementioned Convention, as well as the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery.

[4] A number of persons, however, have also been charged in New South Wales with offences under Division 2 of the Code and their trial is expected to commence in June 2005.

[5] [1998] 2 V.R. 126 at 135 per Batt, J.A. and the cases referred to.

[6] See f/n 1.