Keith William Dobie is a Gold Coast man who, in December 2009, became the first person to be convicted for offences relating to trafficking in persons under Division 271 of the Criminal Code (Cth). Mr Dobie, a hairdresser from Broadbeach, Queensland, started a prostitution racket after flooding and fire destroyed his hair salon, KD Concepts, in Currumbin [Flatley C, “Qld: Human Trafficker to Appeal Sentence”, Australian Associated Press (7 January 2009)]. The necessary repairs left Mr Dobie in mounting debt, reportedly owing $1,200 a week to violent loan sharks who had lent him approximately $50,000 [Greg Stolz, ‘Thais prostituted to pay off debt’, Courier Mail (Brisbane), 21 October 2008, 5]. In the six months between December 2005 and May 2006, Mr Dobie sought to bring four different women from Thailand to Australia to work for him as prostitutes. It has been reported that Mr Dobie, assisted by a friend in Thailand, provided false information to the Department of Immigration and Citizenship (DIAC) and the Australian Embassy in Bangkok to organise visas for the women [Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response January 2004–April 2009, Canberra, ACT: Commonwealth of Australia, 2009, 72]. The false information presented to immigration officials included statutory declarations that the women were travelling to Australia to visit close friends who would sponsor them. In two instances there was a ‘skilful fabrication’ about a pending wedding (para. 37).
Mr Dobie successfully lured two of the four women, victim H. and victim A., to Australia, promising them ‘easy money and generous working conditions’ (para. 37). The women were both mothers and saw the trip as an opportunity to set up their families financially and escape the sex trade [Greg Stolz, ‘Thais prostituted to pay off debt’, Courier Mail (Brisbane), 21 October 2008, 5]. As sex workers in Thailand, Mr Dobie knew that the women controlled when and how often they worked. Whilst aware she would be working as a sex worker in Australia, the victim H. was told she could work whenever she wanted to, while victim A. was promised two days off each week. The sentencing judge, however, later found that Mr Dobie had no intention of keeping these promises (para. 37).
Mr Dobie used his own money to pay for the airfares and visas for the two women. When the women arrived in Australia, Mr Dobie organised the advertising of their services as sole operators in local papers and would drive them to and from clients. The women were left unaccompanied with the clients and without a mobile phone. He reportedly promised the women they would be earning up to $14,000 over their three-month stay in Australia, but the women never received any significant payment from him. The women were only ever paid $20 a day for food and personal care. The women stayed with Mr Dobie in his apartment but were not locked up; it was later noted, however, that they did not need to be locked up because ‘they were isolated by culture, by language and poverty’ (para. 37).
(i) First complainant
In the case of victim H., a Thai national, Mr Dobie organised a visa for a three-month period during which she was expected to work. The victim H.arrived in Australia on December 19, 2005. She was pressured by Mr Dobie to work whenever a client called and saw up to five customers a day. She stayed in Australia for only 36 days, in that time servicing a minimum of 50 customers and working between 10 and 18 days. If she refused to work, Mr Dobie would abuse her verbally, saying that she could not leave and would be arrested or evicted if she did so. On one occasion, victim H. was pressured to work even though it was physically painful to do so. Despite earning up to $1000 a day for Mr Dobie, he sent back just $640 to victim H. family after she urged him to do so. When she indicated she wanted to return to Thailand, Mr Dobie attempted to delay her departure; on one occasion he physically blocked her for 30 minutes when she tried to leave. The victim H. ultimately sought assistance from a third party to leave Australia.
In April 2006 Mr Dobie was convicted and fined $750 for provision of prostitution in relation to victim H. (para. 37). Despite this conviction, Mr Dobie continued to pursue his trafficking scheme, and as late as May 15, 2006 he was attempting to arrange the illegal entry into Australia of two more Thai nationals.
(ii) Second complainant
Three weeks after victim H. returned to Thailand, Mr Dobie arranged for victim A. to travel to Australia for three months. Victim A. was sent a text message and later an email that stated she would not have to work on Sunday or Monday. Victim A. arrived on February 26, 2006 and started work on her second day in the country. She was forced to work every day of her 33-day stay, except for two days when her period was heaviest. During her stay she had sex with at least 70 customers. Victim A. serviced, on average, three to four customers per day and sometimes up to five customers a day. The sentencing judge remarked that Mr Dobie’s treatment of Ms Aunthso was “particularly demeaning and callous (para. 37). On one occasion Mr Dobie pressured victim A. to participate in group sex with three other men, but she became so hysterical that the customers could not continue. Mr Dobie forced her to work even when she was menstruating and verbally abused her when she sought a day off or expressed an intention to leave. In these circumstances he would tell her that he had paid for her travel, passport and accommodation and as such she had to work. He would also ‘remind’ her that, because he was her immigration sponsor, she was unable to leave.
During her stay she earned approximately $11,000 for Mr Dobie, and of that only $650 was sent back to family in Thailand. The sentencing judge found that victim A. only continued working in the hope Mr Dobie would return the money she had earned for her children. When it was clear this was not going to happen, she sought the help of a third party in order to leave and ultimately reported the matter to the police.
Australie
Thaïlande1st Instance
Southport District Court (unreported)
Trial: October 20, 2008
Mention: December 9, 2008
Sentencing hearing: December 18, 2008.
Keith Dobie was charged on July 19, 2006 with two counts of trafficking in persons (deceptive recruitment) [Section 271.2(2B) Criminal Code (Cth)] four counts of presenting false information to an immigration officer [Section 234(1)(a) Migration Act 1958 (Cth)] and one count of dealing in the proceeds of crime [Section 400.6(1) Criminal Code (Cth)]. On October 20, 2008 Mr Dobie initially pleaded guilty to all counts other than the two trafficking charges, but changed his plea to guilty on all counts later the same day. On December 16, 2008 an application was filed by Mr Dobie to set aside the pleas of guilty. At his sentencing hearing on December 18, 2008, Mr Dobie’s legal counsel agreed to dismiss the application and Mr Dobie was re-arraigned on the whole indictment and entered pleas of guilty on all seven counts (para. 5). It appears the unusual number of plea changes were because Mr Dobie ‘realised he was the first Queenslander to be charged with people trafficking’ and as a result wanted to change his pleas and legal representation [Emmaline Stigwood, ‘Hairdress in sex plea tangle’, The Gold Coast Bulletin (The Gold Coast), 19 December 2008].
On the two trafficking counts, Mr Dobie was sentenced to concurrent terms of four years imprisonment. On count three (dealing in proceeds of crime) Mr Dobie was sentenced to 12 months imprisonment. Finally, on each of counts three to seven (presenting false documents) he was sentenced to 12 months’ imprisonment. The sentencing judge ordered that the terms of 12 months imprisonment imposed on counts six and seven be served cumulatively, resulting in an effective sentence of five years, with a non-parole period of 22 months (para. 5). In handing down the sentence, Judge Leanne Clare remarked that Mr Dobie showed no signs of remorse and that ‘his crime and treatment of the women was calculated, protracted, and callous’ [‘A 48-year-old Gold Coast hairdresser has been handed a five-year sentence in the District Court in Brisbane for people trafficking’, ABC Brisbane (23 Dec 2008) available at www.abc.net.au/news/stories/2008/12/23/2453912.htm?site=brisbane (accessed 10 August 2011)].
Queensland Court of Appeal (2009) 236 FLR 455; [2009] QCA 394
First hearing: July 7, 2009
Second Hearing: September 30, 2009
Judgment: December 18, 2009
Reasoning:
On January 5, 2009, Mr Dobie filed an application for leave to appeal his sentence on all counts. In a hand-written application to the Queensland Court of Appeal, he argued that the sentence was excessive and that the judge used insufficiently related cases to determine the sentence [Christine Flately, ‘Qld: Human trafficker appeals conviction’, Australian Associated Press, 30 Sep 2009]. Mr Dobie also complained about comments made by Judge Clare that the way he had treated the women was ‘particularly demeaning and callous’[Mark Oberhardt, ‘Sex slave pimp appeals jail term’, Courier Mail (Brisbane), 8 Jan 2009].
At the hearing of the appeal against sentence on July 7, 2009, Mr Dobie’s counsel also sought to argue that the convictions on the two trafficking charges should be set aside, despite there being no application to appeal the convictions or to set aside the guilty pleas. It was contended by Mr Dobie’s counsel that the judge failed to ensure that the facts put before her Honour established the commission of the offences, the applicant pleaded guilty without a full appreciation of the elements of the offences to which he was pleading guilty, he pleaded guilty because he was pressured and threatened, and the offences were not established because the prosecution could not establish the element of deception (para. 6).
The application was adjourned because ‘the applicant’s material was in disarray’ (para. 6).
On July 30, 2009 an application was filed for an extension of time for leave to appeal the convictions on the trafficking charges (counts one and two) and for leave to appeal against the sentences imposed for all offences. On December 18, 2009, Mr Dobie’s appeal was dismissed in all matters. The Court of Appeal granted the application for an extension of time for leave to appeal the trafficking convictions (counts one and two), but dismissed the appeals. The application for leave to appeal against his sentences was also refused. The reasoning for these decisions is discussed in more detail below.
(i) Appeal against conviction on counts one and two
The first issue considered was whether to grant an extension of time to appeal against the conviction. The Court granted the extension on the basis that the merit of the appeal was arguable and that the seven-month delay, due to Dobie’s difficulties in finding legal assistance and advice, was acceptable.
At the hearing on September 30, 2009 Mr Dobie’s counsel abandoned the assertions that he was pressured and threatened and had pleaded guilty without a full appreciation of the charges. Rather, the grounds of the proposed appeal against conviction were confined to the contention that there was a miscarriage of justice because the sentencing judge erred in law by accepting a guilty plea to the trafficking charges when the facts said to constitute the offence were incapable of supporting the elements of that offence. In regards to this issue the Court referred to the statement of Justices Brennan, Toohey, and McHugh in Meissner v The Queen [(1995) 184 CLR 132] that there is no miscarriage of justice if a court acts on a plea of guilty entered in open court by a person who is of full age and apparently sound of mind and understanding where the plea is entered in the exercise of a free choice in the interests of the person entering the plea, even if that person is not in truth guilty of the offence [Meissner v The Queen (1995) 184 CLR 132 at 141].
The Court also pointed out that a plea of guilty is an admission of all of the elements of the offence and that all available defences have been negatived. On this basis the Court concluded that the ‘facts put forward and accepted at the sentence hearing established that the applicant was guilty of the offences charges in counts 1 and 2’ (para. 10).
The third issue that the Court considered was whether the prosecution had failed to correctly interpret the human trafficking provisions in the Criminal Code. The relevant section, section 271.2(2B) of the Code provides that
A person (the first person) commits an offence of trafficking in persons if:
(a) the first person organises or facilitates the entry or proposed entry, or the receipt, of another person into Australia; and
(b) there is an arrangement for the other person to provide sexual services in Australia; and
(c) the first person deceives the other person about any of the following:
…
(iii) the extent to which the other person will be free to cease providing sexual services.
Mr Dobie’s counsel argued that deception established by the facts concerning each count of trafficking was not about ‘the extent to which the [complainant] will be free to cease providing sexual services’ (para. 19). The terms ‘deceive’ and ‘sexual service’ are both defined within the Criminal Code (Cth). ‘Deceive’ is to mean ‘mislead as to fact (including the intention of any person) or as to law, by words or other conduct’ [Section 271.1 Criminal Code 1995 (Cth)] and ‘sexual service’ is to mean ‘the commercial use or display of the body of the person providing the service for the sexual gratification of others.’ However, there is no definition within the Code of the term ‘cease’. The applicant’s counsel argued that the word ‘cease’ meant to permanently stop providing sexual services, and that this does not include to freely decline to provide services during a particular period or to particular persons.
However, this argument was also dismissed after consideration of the relevant provision within the context of the Division as a whole, as well in light of relevant extrinsic material. As Fraser JA explained, the ordinary meaning of ‘cease’ is to stop (para. 23). Whether it is intended to stop something permanently, or to stop an activity in certain circumstances and to resume the same activity after an appreciable interlude (para. 23), the word ‘cease’ is still applicable. The applicant deceived both complainants in the relevant case about the extent to which they would be allowed to ‘cease’ providing sexual services. They were essentially pressured to work and had no days off. Therefore, it was concluded the word ‘cease’ to be appropriate in this context. Fraser JA concluded that the statutory language was not ambiguous or doubtful, and thus rejected an argument put forward by Mr Dobie’s counsel that in borderline cases the court should resolve the matter in favour of the defendant. As such, the applicant was in fact guilty of the first two counts against him and the appeal against conviction was ultimately dismissed.
(ii) Appeal against sentence
It was also submitted by Dobie that the sentence was manifestly excessive; the prosecution used a comparative sentence that was not a comparative in the case; Her Honour had comments in sentencing that helped make the sentence manifestly excessive; the Crown’s submissions on sentence should be looked at as well as the Crown’s statements of fact; and a comparative sentence handed up by the Crown was never looked at (para. 36). Each of these arguments was dismissed by the Court of Appeal and Fraser JA concluded by stating that ‘the pernicious and callous nature of the applicant’s offending, carried out in a persistent way over a period of time and where the applicant had a relevant criminal history, warranted the imprisonment which was visited upon him’ (para. 48).
Decision:
Appeal dismissed.
3rd Instance:
Queensland Court of Appeal [2010] QCA 34
Hearing: February 16, 2010
Judgment: February 26, 2010
Reasoning:
On the February 16, 2010 the Court of Appeal heard an application made by Mr Dobie for an extension of time to appeal against his convictions for all offences. Because Mr Dobie had already had his appeal against conviction on counts one and two (the trafficking charges) heard and determined on merit, the Court found there was no further right of appeal against those convictions (para. 10).
In order to appeal against his convictions in respect of the other four counts, the Court found Dobie would have to withdraw his pleas of guilty (para. 11). The Court reiterated the position in Meissner v The Queen [(1995) 184 CLR 132]whereby a guilty plea ‘will not be set aside on appeal unless it can be shown that a miscarryiage of justice has occurred’[(1995) 184 CLR 132 at [157]].
Mr Dobie argued that, in respect of counts 4-7 (presenting false information to an immigration officer), the statement of facts used by the prosecutor in sentencing showed the applicant was in Australia at all times the offences were said to have been committed and as such Mr Dobie could not have committed them. The Court, however, dismissed this contention because the statement of facts did not state the location of Mr Dobie at all relevant times and the offence could still be made out regardless of location (para. 14). In relation to count three (dealing in the proceeds of crime in an amount exceeding $10,000) Mr Dobie argued, irrelevantly, his related outgoings exceed the proceeds of prostitutions received by him (para. 17).
Furthermore Mr Dobie contended that he pleaded guilty because he was told something by the prosecution about his sentencing, although no particulars of this statement were given. The Court held that the sentencing judge was not bound by anything the prosecution may have said to the applicant regarding sentence and the prosecution’s conduct was not misleading or improper in anyway. It was further noted that in his first appeal in 2009 Mr Dobie did not contend that his guilty pleas were based on any representation regarding sentencing (paras. 18-21).
Decision:
The Court of Appeal concluded that no basis for the withdrawal of the pleas had been made out and the application was refused.
4th Instance:
Queensland Court of Appeal [2011] QCA 21
Hearing: February 1, 2011
Judgment: February 18, 2011
Reasoning:
Mr Dobie made a further application to the Court of Appeal on February 1, 2011. He applied for an extension of time to appeal against his conviction and sentence on all counts. Mr Dobie argued that there had been a conflict of interest in his case because the sentencing judge involved in his prosecution, Judge Clare, was the Director of Public Prosecutions (Queensland) at the time he was charged and legally responsible for the decision to have charges brought against him. McMurdo P, with whom Fraser and Chesterman JA agreed, held that these allegations were ‘entirely baseless’ because the charges against him were brought under Commonwealth legislation by the Commonwealth Director of Public Prosecutions (para. 10).
Mr Dobie further contended that Mrs Clare SC, as the Director of Public Prosecutions (Queensland), was involved in the initial investigation and prosecution of Queensland prostitution offences relating to the women who were to become the subjects of counts 1 and 2 in the present case. It was held, however, that Mr Dobie could produce no evidence to support these allegations. In any event it was deemed ‘improbable’ that the Director of Public Prosecutions (Queensland) would be involved in the investigation and prosecution of relatively minor offences in the Magistrates Court. For these reasons this ground of appeal was dismissed (para.14).
In addition to the first ground of appeal, Mr Dobie also submitted that he had pleaded guilty because the Commonwealth Director of Public Prosecutions offered him a reduced sentence but that this deal was never communicated to the sentencing judge. It was held, however, that this argument had been considered and rightly rejected in R v Dobie [2010] QCA 34 (para. 16).
Mr Dobie’s final ground of appeal was ‘that there was an irregularity in the wording of counts 1 and 2 and for this reason his appeal against conviction on those counts should be allowed’ (para.17). This contention was also considered and rejected in R v Dobie [2009] QCA 394 and as such was once again dismissed by the Court of the Appeal (para.17).
Decision:
It was determined that any appeal to the High Court of Australia would ‘inevitably fail’ on these grounds and thus the application for an extension of time to appeal against conviction and sentence was refused (para. 20). Because of Mr Dobie’s ‘persistence in making repeated hopeless applications to extend time within which to appeal’ the court also ordered that he be refused permission to file any further applications to appeal without the leave of a judge of appeal (para. 20).
Queensland Court of Appeal
Official case reports
First appeal: R v Dobie (2009) 236 FLR 455, [2009] QCA 394
Second appeal: R v Dobie [2010] QCA 34
Third appeal: R v Dobie [2011] QCA 21
Secondary sources
Debeljak, Julie, et al, The Legislative Framework for Combating Trafficking in Persons (2009) 18 – 19.
Schloenhardt, Andreas, & Joseph O’Shea, ‘Reflections on R v Dobie’ (2010) 34(6) Criminal Law Journal 400-407
Schloenhardt, Andreas, Genevieve Beirne and Toby Corsbie, ‘Trafficking in Persons in Australia: Myths and Realities’ (2009) 10(3) Global Crime (Routledge, London) 224, 242.
Schloenhardt, Andreas, Genevieve Bierne and Toby Corsbie. ‘Human Trafficking and Sexual Servitude in Australia’ (2009) 32(1) University of New South Wales Law Journal 27, 46 – 27.
Schloenhardt, Andreas. Human trafficking still lurking in the shadows (2008) Lawyers Weekly <http://www.lawyersweekly.com.au/blogs/opinion/archive/2008/10/17/human-trafficking-still-lurking-in-the-shadows.aspx> at Wed 27 July 2011.
Australia, Anti-People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government Response, 1 May 2009 – 30 June 2010, Canberra, ACT: Commonwealth of Australia, 2010, 56.
Australia, Anti–People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian Government’s Response January 2004–April 2009, Canberra, ACT: Commonwealth of Australia, 2009, 72
Vijeyarasa, Ramona. ‘The impossible victim: judicial treatment of trafficked migrants and their unmet expectations’ (2010) 35(4) Alternative Law Journal, 217.
The following extract from an article written by Dr Andreas Schloenhardt and Joseph O’Shea in 2010 provides a more comprehensive analysis and commentary on the 2009 Court of Appeal decision in this case:
The question may be asked as to why Mr Dobie was not charged under s 270.3 of the Criminal Code (Cth), given that the definition of slavery arguably applied to the circumstances of his case. Moreover, Mr Dobie’s actions would appear on the wording of the legislation to also fall under offences relating to sexual servitude in s 270.6 of the Criminal Code (Cth).
There is little doubt that the two complainants in R v Dobie provided sexual services. However, Fraser JA rejected extrinsic evidence proffered by Mr Dobie’s counsel on the basis of the difference between the sexual servitude and trafficking provisions. This was in part due to the “element of force or threat” in the definition of sexual servitude that according to his Honour rendered the two offences different. However, a substantial part of the prosecution’s statement of facts focused on Mr Dobie’s verbal abuse and threats of deportation, arrest, loss of visa and other detrimental action. In the case of Ms H, the first complainant, she was at one point physically prevented from leaving. Does this not then satisfy the requirement under s 270.6?
If the two offences are “so different” from one another, the potential problem is that the sexual servitude offences may not apply in situations like that of Mr Dobie, where the victims are not physically restrained from ceasing the sexual services or leaving the place where the services are provided, but are stopped from doing so in more subtle ways. A telling remark in this context came from the sentencing judge in Mr Dobie’s case, where her Honour noted: “While you did not keep the women locked up, you did not need to. They were isolated by culture, by language and poverty. You manipulated their isolation and frightened them with threats” [R v Dobie (District Court of Brisbane, Indictment No 1221 of 2008, 23 December 2008)].
Both complainants were eventually able to escape with the help of third parties, suggesting that, at most, they only “believed” they were not free to leave or cease providing sexual services. Presumably this is one reason why Mr Dobie was not charged under Div 270. Section 270.6 of the Criminal Code (Cth) requires the persons subjected to sexual servitude to be actually unable to leave or cease the sexual services, whereas the Div 271 requires only a deception on the part of the person charged.
It is arguable, then, that the test in the sexual servitude offence under s 270.6 is too high, considering it requires the vulnerable person to be actually unable to leave. Such a test does not account for the specific vulnerabilities felt by trafficking victims (such as the two complainants in the Dobie case) in relation to what could be classed as complete isolation. The question that arises is whether the legislation should set the bar lower and require the person only to “believe” they are not free. Is something less than a person not being actually free to leave a place where sexual services are being provided, or to cease providing those services, still sexual servitude, and should it be punished accordingly? The concern in lowering this standard under Div 270 is that any expansion of the offence of sexual servitude should be avoided unless it is justified. As MCCOC noted as early as 1998, the purpose of Div 270 is to criminalise servitude, not regulate prostitution [MCCOC, Model Criminal Code, Offences Against Humanity – Slavery, Final Report (November 1998) p 33].
It is clear that Divs 270 and 271 are intrinsically linked. However, it is less clear as to the appropriate role of each Division, given that both have the general aim of addressing trafficking in persons. Consultation with experts in the law enforcement field suggests that the trafficking offences in Div 271 are viewed as being concerned with the means by which a person is brought to Australia, as opposed to their actual treatment once inside the country. This reinforces previous assessment of the Australian trafficking offences as being focused on migration and border control, as opposed to end-purpose exploitation [Debeljak J et al, The Legislative Framework for Combating Trafficking in Persons (2009) p 23]. However, where the element of “organising or facilitating” movement cannot be proved, but there is still evidence of exploitation, then the Div 270 offences are more suitable.
Debeljak et al have argued that the penalties for the trafficking in persons offences are inconsistent with those prescribed under Div 270 [Debeljak J et al, The Legislative Framework for Combating Trafficking in Persons (2009) p 19]. For example, trafficking another into sexual servitude or slavery can result in a maximum 12-year term of imprisonment. The offences of slavery and sexual servitude, however, attract imprisonment terms of between 15 and 25 years under Div 270. This evidences a disparity with the penalties prescribed for the trafficking offences under which Mr Dobie was charged. For example, organising or facilitating the movement of a person, reckless as to whether that person will be exploited, can result in a maximum 12-year term of imprisonment [Sections 271.2(1B)-(1C) Criminal Code (Cth)].
However, recklessly causing someone to enter into or remain in sexual servitude (considered a form of exploitation in the trafficking offence) attracts a 15-year imprisonment term [Section 270.6(1) Criminal Code (Cth)].
Finally, it was noteworthy that Fraser JA specifically acknowledged the vast resources invested into combating trafficking in persons as a factor in dismissing Mr Dobie’s appeal against sentence (para. 40). This policy justification from Fraser JA is to be welcomed, as it is recognition that the many and varied efforts to fight the scourge of trafficking in persons are both expensive and time-consuming, and that this fact can be legitimately taken into account when sentencing [Andreas Schloenhardt & Joseph O’Shea, ‘Reflections on R v Dobie’ (2010) 34(6) Criminal Law Journal 400, 406-407].
This case has also been used for the Australian "Be Careful What You Pay For" campaign in 2011, see poster.