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Court of Criminal Appeal 13 August 2008

SIEDERS, Johan v R; SOMSRI, Yotchomchin v R

[2008] NSWCCA 187

Also reported as (2008) 72 NSWLR 417
Sexual offences
CRIMINAL LAW COMMONWEALTH OFFENCES SEXUAL SERVITUDE OFFENCES S 5.4 CRIMINAL CODE ACT COURTS AND JUDGES TRIAL JUDGE'S DIRECTIONS TO JURY

Citation: SIEDERS, Johan v R; SOMSRI, Yotchomchin v R [2008] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 13 August 2008
Judge(s): Campbell JA; James J; Johnson J

Background

Two appellants were each convicted in the District Court before Bennett DCJ of conducting a business that involved the sexual servitude of other persons, contrary to s 270.6(2) of the Criminal Code Act 1995 (Cth). The relevant period was December 2003 to May 2004. One appellant was charged in relation to a single brothel; the other in relation to multiple brothels. Both were sentenced in December 2006, receiving overall terms of four and five years respectively, each with non-parole periods of half the head sentence.

Both appellants appealed against their convictions and sought leave to appeal against their sentences. The appeals raised substantial questions about the proper construction of the sexual servitude provisions, the adequacy of the trial judge's directions to the jury, and whether the sentences imposed were manifestly excessive.

  • Whether the verdicts were unreasonable or unsupported by the evidence
  • Whether the facts alleged by the Crown were sufficient to establish the offence under s 270.6(2)
  • Whether there was sufficient evidence of the required fault element (knowledge of, or recklessness as to, sexual servitude)
  • Whether the trial judge's direction permitting conviction on the basis of recklessness caused a miscarriage of justice, given the Crown had only referred to recklessness in passing
  • Whether the use of the expression "wilful blindness" in the jury direction was potentially misleading
  • How the definition of "sexual servitude" in s 270.4 should be construed, particularly the phrases "not free," "because of the use of force or threats," and "threat of any other detrimental action"
  • Whether s 270.6(2) creates two distinct offences (one requiring knowledge, one recklessness) or a single offence with alternative fault elements
  • Whether the later debt bondage offence (s 271.8) could be used to construe or limit the scope of s 270.6(2)
  • Whether the sentences were manifestly excessive and whether the penalty for debt bondage should have informed the sentencing discretion

Decision

Statutory construction of "sexual servitude"

The court undertook a detailed analysis of the definition in s 270.4. The phrase "not free" does not require proof that the person actually attempted to cease providing services or to leave a location. It captures the condition of a person whose freedom to do those things is constrained. The phrase "because of the use of force or threats" conveys an actual causal relationship between the force or threats and the lack of freedom, but it does not require that the accused personally be the source of that force or those threats. On the meaning of "threat," the court held that a "threat of any other detrimental action" is broad and does not require the action threatened to be unlawful.

Structure of the offence under s 270.6(2)

The court held that s 270.6(2) creates a single offence with alternative fault elements rather than two separate offences. A person is guilty if they conduct a relevant business and either know about the sexual servitude or are reckless as to it.

Trial judge's directions and procedural fairness

The appellants argued that directing the jury on recklessness was unfair because the Crown had barely mentioned it. The court rejected this ground. Experienced trial counsel had not objected to the direction at the time, engaging Rule 4 of the Criminal Appeal Rules. The court found no substantial miscarriage of justice. On the use of the phrase "wilful blindness," the court acknowledged it had attracted limited objection at trial but found it did not create a materially misleading impression requiring intervention on appeal.

Use of later legislation and sentencing

The court declined to use the later debt bondage offence (s 271.8, introduced in 2005) as a tool to construe or limit s 270.6(2). The two provisions address different conduct, and there was no ambiguity in s 270.6(2) that required resolution by reference to later amendments. On sentence, the court found no error. The debt bondage offence notably does not require that the services in question be sexual services, and Parliament simultaneously increased the aggravated penalty under s 270.6(2) when enacting the debt bondage offence, indicating a deliberate view that the two offences occupy very different levels of seriousness. The sentences imposed fell within the permissible sentencing discretion.

Orders Made

Appeal by Somsri:
- Appeal against conviction dismissed
- Application for leave to appeal against sentence granted
- Appeal against sentence dismissed

Appeal by Sieders:
- Appeal against conviction dismissed
- Application for leave to appeal against sentence granted
- Appeal against sentence dismissed

Key Takeaways

  • Under s 270.4 of the Criminal Code Act 1995 (Cth), a person is "not free" within the definition of sexual servitude if their freedom is causally constrained by force or threats, regardless of whether they have actually attempted to exercise that freedom.
  • The force or threats giving rise to the condition of sexual servitude need not originate from the accused conducting the business; the causal link between the constraint and the condition is what matters.
  • Section 270.6(2) creates a single offence with alternative fault elements: knowledge of, or recklessness as to, the sexual servitude. It does not create two distinct offences.
  • Where experienced counsel fails to object to a jury direction at trial, the Court of Criminal Appeal will apply Rule 4 of the Criminal Appeal Rules and will not readily find a substantial miscarriage of justice on appeal based on that direction.
  • A later amending statute introducing a related but distinct offence (here, debt bondage) does not, without more, provide a basis for construing or limiting the scope of an earlier provision where the two offences address different conduct and the earlier provision is unambiguous.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 270.4, 270.6, 270.8, 271.8
- Acts Interpretation Act 1901 (Cth), s 15AB
- Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth)
- Criminal Code Amendment (Trafficking in Persons) Act 2005 (Cth)
- Criminal Appeal Rules, Rule 4
- Criminal Appeal Act 1912
- Crimes Act 1914 (Cth)

Cases:
- Weiss v R [2005] HCA 81; (2005) 224 CLR 300
- R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
- Crampton v R [2000] HCA 60; (2000) 206 CLR 161
- Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453
- Commissioner of State Revenue (Victoria) v Pioneer Concrete (Vic) Pty Ltd [2002] HCA 43; (2002) 209 CLR 651
- Khoury v Government Insurance Office of New South Wales [1984] HCA 55; (1984) 165 CLR 522
- Kural v R [1987] HCA 16; (1987) 162 CLR 502
- R v Wei Tang [2007] VSCA 134; (2007) 16 VR 454
- R v DS [2005] VSCA 99; (2005) 191 FLR 337
- South v R [2007] NSWCCA 117
- Smale v R [2007] NSWCCA 328
- Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88