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District Court 17 December 2010

R v McIvor & Tanuchit

[2010] NSWDC 310

Sexual offencesFraud & dishonesty
SENTENCE SLAVERY OFFENCES AFTER TRIAL AND RE TRIAL MULTIPLE OFFENCES PAIRED OFFENCES OF POSSESS AND USE

Citation: R v McIvor & Tanuchit [2010] NSWDC 310
Court: District Court of New South Wales
Date: 17 December 2010
Judge(s): Williams DCJ

Background

The two offenders, a brothel owner and his wife who co-managed the business, were convicted after a second jury trial of ten counts of slavery offences under the Commonwealth Criminal Code. Each was found guilty of five counts of intentionally possessing a slave and five counts of intentionally exercising over a slave the power attaching to the right of ownership, specifically the power to use. The maximum penalty for each offence was 25 years imprisonment.

The offending concerned five Thai women trafficked to work in the offenders' brothel at Fairfield, NSW. Upon arrival, each woman was told she owed a debt of between $35,000 and $45,000. Their passports were confiscated, they were kept in locked confinement, and their movements were strictly controlled until the debt was repaid. The women were compelled to perform sex work in conditions the court described as sexual servitude.

Both offenders had previously been convicted at a first trial in 2007 and sentenced by Taylor DCJ. Those convictions were quashed by the NSW Court of Criminal Appeal following the High Court's decision in Tang v R [2008] HCA 39, and a retrial was ordered. The second trial ran for twelve weeks, resulting in the same convictions across five victims rather than six, as the jury acquitted on the count relating to a sixth complainant.

  • What total effective sentence was appropriate for each offender across ten counts of slavery offences involving five separate victims?
  • How should the "possess" and "use" counts for each victim be structured relative to each other, given they arose from the same conduct?
  • How should the non-parole period relate to the parole period, and to what extent should the sentencing structure depart from that imposed at the original sentencing?
  • Whether any difference in sentences between the two offenders was warranted, and if so on what basis.

Decision

The court sentenced each offender on ten counts, structured as paired "possess" and "use" offences for each of the five victims. For each victim, the sentence on the "possess" count was fixed at three years. The "use" sentences escalated according to the gravity and duration of each victim's exploitation, ranging from four years for the victim with prior sex work experience through to ten years for the victim who endured the longest period of servitude (approximately ten months) and was subjected to additional degrading and abusive treatment.

All sentences were made partly cumulative, reflecting the principle that the offending against each victim was distinct and the overall criminality could not be adequately reflected by concurrent terms alone. The court structured the commencement dates for each pair of counts so as to produce a total effective sentence of twelve years for each offender.

The court set a single non-parole period for the entire aggregate sentence. For McIvor, that period was seven years and six months, commencing 15 December 2008. For Tanuchit, a slightly shorter non-parole period of seven years was set from 18 December 2008, reflecting the sentence previously imposed on her by Taylor DCJ and the fact that it was not substantially different from that of McIvor. The court acknowledged the original sentencing structure as a relevant reference point, while departing from it where the second trial required adjustments.

Orders Made

  • Counts 3 and 4 (Mickey): Each offender sentenced to 3 years (possess) and 4 years (use); McIvor's sentences to date from 15 December 2005, Tanuchit's from 18 December 2008.
  • Counts 1 and 2 (Yoko): Each offender sentenced to 3 years (possess) and 5 years (use); McIvor's sentences from 15 March 2009, Tanuchit's from 18 March 2009.
  • Counts 5 and 6 (Susie): Each offender sentenced to 3 years (possess) and 6 years (use); McIvor's sentences from 15 July 2009, Tanuchit's from 18 July 2009.
  • Counts 9 and 10 (Sophie): Each offender sentenced to 3 years (possess) and 8 years (use); McIvor's sentences from 15 February 2010, Tanuchit's from 18 February 2010.
  • Counts 7 and 8 (Jasmine): Each offender sentenced to 3 years (possess) and 10 years (use); McIvor's sentences from 15 December 2010, Tanuchit's from 18 December 2010.
  • Total effective sentence: 12 years imprisonment for each offender.
  • Non-parole period: McIvor: 7 years 6 months from 15 December 2008 (parole eligibility 14 June 2016; total term expires 14 December 2020). Tanuchit: 7 years from 18 December 2008 (parole eligibility 17 December 2015; total term expires 17 December 2020).
  • Non-publication order maintained prohibiting any link between victims' working names and their real names.

Key Takeaways

  • The District Court treated each victim as giving rise to discrete criminal conduct, structuring cumulative sentences to reflect the separate and successive nature of the offending rather than allowing concurrent terms to mask the full extent of the criminality.
  • Where paired offences of "possess" and "use" arise from the same slavery conduct toward the same victim, the sentencing court distinguished them by imposing a uniform lower term on the "possess" count and calibrating the "use" term to the specific facts, including duration and any aggravating treatment.
  • Escalating sentence lengths across victims reflected the duration of each woman's enslavement and any additional aggravating circumstances, with the longest "use" sentence (ten years) imposed for the victim subjected to approximately ten months of servitude and degrading conduct.
  • A sentencing structure from an earlier, quashed sentencing proceeding remained a relevant reference point at resentencing after retrial, even though the court was not bound by it and departed from it where the second trial produced a different factual outcome.
  • A slight disparity in non-parole periods between co-offenders was warranted where one co-offender had already been the subject of a prior sentencing by a different judge at an earlier proceeding, and that earlier sentence differed only marginally from the other offender's.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 270.3(1)(a) (slavery offences)
- Crimes Act 1914 (Cth), s 16A (sentencing factors)

Cases
- Tang v R [2008] HCA 39
- McIvor v R and Tanuchit v R [2009] NSWCCA 264
- Hili v R; Jones v R [2010] HCA 45
- Pearce v R (1998) 194 CLR 610
- El Karhani (1990) 21 NSWLR 370
- King v R [2010] NSWCCA 202
- R v Bui [2008] NSWCCA 297
- R v Wei Tang [2006] VCC 637; [2009] VSCA 182
- DS v R [2005] VSCA 199
- R v Ho and Leech [2009] VSC 495
- R v Ho and Ho [2009] VSC 437
- R v Kovax and Anor (Supreme Court of Queensland, 6 December 2007, unreported)
- R v Bernier [1998] 101 A Crim R 44