SIEDERS, Johan v R; SOMSRI, Yotchomchin v R [2008] NSWCCA 187

Reported Decision: 72 NSWLR 417

New South Wales Court of Criminal Appeal

CITATION: SIEDERS, Johan v R; SOMSRI, Yotchomchin v R [2008] NSWCCA 187

HEARING DATE(S): 1 May 2008

JUDGMENT DATE: 13 August 2008

JUDGMENT OF: Campbell JA at 1; James J at 248; Johnson J at 249

In each appeal - DECISION: (1) Appeal against conviction dismissed. (2) Application for leave to appeal against sentence granted. (3) Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW – COMMONWEALTH OFFENCES – sexual servitude offences – conduct of business involving sexual servitude of other persons – appellants convicted of offences against s 270.6(2) Criminal Code Act 1995 (Cth) – whether verdicts unreasonable or cannot be supported having regard to the evidence – whether facts alleged by Crown insufficient to establish the offence charged – whether no evidence or no sufficient evidence that appellants had the required fault element with respect to the offence – where fault element is knowledge of or recklessness as to the sexual servitude – s 5.4 Criminal Code Act - COURTS AND JUDGES – trial judge's directions to jury – whether miscarriage of justice occasioned by direction that jury could convict the appellants if satisfied accused were reckless as to the sexual servitude – where Crown referred only in passing to recklessness in closing address – procedural unfairness – where experienced counsel for accused did not object to direction at trial – rule 4 Criminal Appeal Rules – where limited objection made only as to trial judge's use of the expression 'wilful blindness' – whether use of that expression created a potentially misleading impression in the mind of the jury – substantive unfairness – whether s 270.6(2)(b) Criminal Code Act creates two distinct offences, one with knowledge and the other with recklessness as its fault element - APPEALS – whether open on appeal to a convicted person to take the point that there was no evidence of essential element of the charge – where point not taken in court below - STATUTORY INTERPRETATION – construction s 270.6(2) Criminal Code Act – extrinsic materials as aid to construction – s 15AB Interpretation Act 1901 (Cth) – new offence of debt bondage – s 271.8 Criminal Code Act – whether legitimate to use a statute which amends a previously existing statute to construe the statute in its unamended form – where earlier and later legislation do not deal with the same topic – where later legislation had not come into operation at the time of the events to which the present charge relates – where later legislation has work to do independent of the work done by the earlier legislation – where no ambiguity in wording of s 270.6(2) that needs to be clarified by reference to the later legislation - STATUTORY INTERPRETATION – statutory definition of sexual servitude – s 270.4 Criminal Code – condition of person in sexual servitude – person 'not free' to take particular actions – whether person in question must actually have taken those actions at any time in the past – where lack of freedom must arise 'because of' the use of force or threats – whether phrase conveys the notion of a causal relationship actually in operation – whether force or threats must be used by the accused – what constitutes a threat of detrimental action - STATUTORY INTERPRETATION – whether s 270.6(2) Criminal Code Act creates two offences with different fault elements or a single offence with alternative fault elements - WORDS AND PHRASES – 'not free' – 'because of the use of force or threats' –'detriment' – 'involves the sexual servitude of other persons' - CRIMINAL LAW – SENTENCING – whether overall sentences and non-parole periods manifestly excessive – objective seriousness of offence – subjective circumstances of offender – parity – sentence imposed on co-offender – whether regard should have been had to penalty applicable to offence of debt bondage – whether sentence falls within permissible sentencing discretion