Citation: Regina v Johan Sieders & Somsri Yotchomchin [2007] NSWDC 101
Court: District Court of New South Wales
Date: 4 April 2007
Judge(s): Bennett SC DCJ
Background
Two accused were separately charged with conducting a business involving the sexual servitude of others, contrary to s 270.6(2) of the Commonwealth Criminal Code, in relation to brothels operated in Sydney between December 2003 and May 2004. The Crown alleged that young Thai women were recruited in Thailand and brought to Australia on fraudulently obtained visas, then required to provide sexual services until each had repaid a debt of approximately $45,000. The women were said to be held in a state of sexual servitude through threats of detrimental action against themselves and their families in Thailand, and fear of deportation.
A jury convicted both accused on 1 July 2006. Immediately following the close of the Crown case, counsel for each accused applied for directed verdicts of acquittal on the basis that the Crown had not established the jurisdictional requirements under s 270.5 of the Criminal Code as it stood at the time of the alleged offences.
The court heard argument on 13 and 14 July 2006, rejected both applications, and reserved its reasons. This judgment sets out those reasons.
Legal Issues
- Whether the Crown had adduced sufficient evidence to satisfy any of the jurisdictional limbs in s 270.5 of the Commonwealth Criminal Code, as it existed prior to its amendment by the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth).
- Whether any conduct constituting the offence was "to any extent engaged in outside Australia" within the meaning of s 270.5(b)(i), given that the charges were framed by reference to conduct in Sydney only.
- Whether the condition of sexual servitude could be established by threats made overseas and prior to arrival in Australia, or whether the threats and the provision of sexual services had to be contemporaneous.
- Whether the threats giving rise to sexual servitude needed to emanate from the accused themselves.
Decision
The court identified that s 270.5 required, relevantly under paragraph (b), that the conduct constituting the offence be engaged in "to any extent" outside Australia, and that the sexual services be provided, or be to be provided, "to any extent" within Australia. The accused argued that because the charges were framed solely by reference to conduct in Sydney, there was no evidence of extra-territorial conduct by either accused capable of satisfying that paragraph.
The court rejected that argument. It found that the condition of sexual servitude, as defined in s 270.4, described a continuing state of affairs rather than a series of discrete acts. The arrangements that gave rise to that state of affairs commenced in Thailand, where each woman first became associated with the recruitment process, and the condition persisted as the women were brought to Australia. That continuing state of affairs amounted to conduct engaged in at least to some extent outside Australia.
The court also rejected the submission that the phrase "cease providing" in the definition of sexual servitude required the threats and the provision of sexual services to be strictly contemporaneous. What mattered was that the effect of the threats was operative at the time the women were providing sexual services, regardless of when the threats were first made. It was sufficient that the continuing effect of threats made in Thailand persisted through to the provision of services in Australia.
Further, the court held that the threats need not have been made by the accused personally. It was enough for the Crown to establish that the women were in a condition of sexual servitude as a result of threats from any source, including the woman known as "Pat" operating in Thailand, provided the accused had the requisite knowledge of that condition.
Orders Made
• Applications on behalf of the accused for directed verdicts are rejected
Key Takeaways
- The District Court held that sexual servitude, as defined in s 270.4 of the Commonwealth Criminal Code, describes a continuing state of affairs rather than a single act, meaning the condition can commence overseas and continue into Australia for the purposes of the s 270.5 jurisdictional requirements.
- Under s 270.5(b), it is sufficient that the conduct constituting the offence was engaged in "to any extent" outside Australia. Recruitment and debt-imposition arrangements made in Thailand were capable of satisfying that threshold, even where the charges were otherwise framed by reference to conduct in Sydney.
- A conviction for conducting a business involving sexual servitude does not require the threats giving rise to that servitude to have been made by the accused themselves. Threats originating from third parties overseas can ground the condition of servitude, provided the accused had knowledge of it.
- Contemporaneity between the making of threats and the provision of sexual services is not required. What must be contemporaneous is the continuing effect of those threats and the provision of the services, not the moment the threats were first uttered.
- In rejecting the no-case applications, the court confirmed that the Crown may rely on the full sequence of events commencing overseas as evidence of a continuing state of sexual servitude, rather than being confined to conduct occurring within Australia.
Legislation and Cases Referenced
Legislation:
- Criminal Code (Cth), ss 270.4, 270.5, 270.6
- Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth)
Cases:
- Esber v The Commonwealth of Australia & Another (1991-1992) 174 CLR 431