This case involves Ms Namthip Netthip, who was born in Thailand but became an Australian citizen in 1994. Ms Netthip, a former sex-worker herself, ran a business through which she organized the placement of 11 Thai women in brothels in Australian cities, including Sydney, Newcastle, Wollongong, Melbourne, Canberra, Adelaide, and Perth [R v Netthip [2010] NSWDC 159 at [4]]. The women were recruited in Thailand by a Thai facilitator who organised their passports, visas, and travel plans. The women agreed to repay debts of $53,000, and were aware they would be working in the sex industry. Seven of the eleven women informed Australian authorities that they had worked in the sex industry before arriving in Australia.
Ms Netthip, who holds an accountancy diploma from Thailand, was responsible for organizing food, work-related medical expenses, mobile phones, and initial accommodation for each of the women upon their arrival in Australia. Under the direction of Ms Netthip, the women were then placed into an Australian brothel that would in turn deduct a fee from the earnings made by each woman. The women were allowed access to the Internet and could contact family. Some were driven to and from work, while others caught public transport. If the women had problems with working conditions then Ms Netthip would attempt to resolve it or move them to a new brothel. From her net earnings, the women were required to pay back their debt of $53,000 to Ms Netthip. It was estimated that it took approximately 6 months for each of the women to pay back this debt. From the $53,000 collected by Ms Netthip for each woman, the agent in Thailand was paid $20,000. It was estimated that, after all expenses (e.g. food, medical, rent, telephone etc), Ms Netthip would receive approximately $10,000–18,000 net profit per woman. It was estimated that the net profit in relation to all 11 women was approximately $60,000 - $70,000, although this was considered to be an underestimate. It was indicated in a pre-sentence report that Ms Netthip was ‘driven by the need to financially support her parents and later her daughter’ (para. 21). As part of the arrangement agreed to by the women, Ms.Netthip would assist them in applying for a protection visa approximately six weeks after arriving in Australia. Ms. Netthip would provide the women with false information for the purpose of substantiating a claim for refugee status. The women were also coached about the way in which they should answer questions asked by the Department of Immigration and Citizenship officers during their immigration assessment.
Australia
ThailandMs Netthip was arrested in 2009, and on 30 March 2010 at the Downing Centre Local Court (New South Wales) plead guilty to knowingly conducting a business that involved the sexual servitude of 11 other persons between 30 August 2005 and 1 April 2008 [Criminal Code (Cth) s 270.6(2)]. She also plead guilty to a number of immigration offences in relation to the making of false statements to DIAC immigration officials [Migration Act 1958 (Cth) s 234(1)(b) and (c)]. She was not sentenced at the Downing Centre Local Court. The sentencing decision is the subject of the present case [R v Netthip [2010] NSWDC 159].
Ms Netthip was sentenced on 30 July 2010 at the New South Wales District Court to two years and three months imprisonment for the sexual servitude offences, with a non-parole period of 13 months (para. 35). In relation to the migration offences she received a three-and-a-half year good behaviour bond (para.36). In sentencing Ms Netthip, Murrell SC DCJ held that her early guilty plea to the sexual servitude offences avoided ‘the need for a lengthy and potentially problematic trial’ and as such she was given a 25% discount on the original sentence of three years imprisonment (para. 34).The potential problems that would have arisen at trial are discussed in the ‘commentary and significant features’ section.
New South Wales District Court
Official case reports
Sentencing decision: R v Netthip [2010] NSWDC 159
In determining the sentence for the offences committed by Ms Netthip, there was an interesting, albeit brief, consideration of the difference between the offence of debt bondage and conducting a business involving sexual servitude (paras. 11-16). On the facts it seems very possible that Ms Netthip could have been charged with the offence of debt bondage, a summary offence carrying a maximum term of imprisonment of 12 months [Criminal Code (Cth) s 271.8]. Indeed Counsel for Ms Netthip argued in sentencing submissions that the present case had all the ‘hallmarks of a debt bondage offence’ (para. 14). A similar issue surrounding the distinction between the two offences arose, and was dealt with, in R v Sieders; R v Somsri [2008] NSWCCA 187.
An offence of debt bondage arises, inter alia, where ‘there is a pledge by a person of sexual services as security for a debt claimed to be owed and the debt is manifestly excessive’ (para. 11). In order to prove the condition of ‘sexual servitude’, however, it must be shown that the use of force or threats causes a person not to be free to cease providing sexual services or is not free to leave the place or area where the person provides sexual services [Criminal Code (Cth) s 270.4(1)]. Most relevantly, one type of ‘threat’ is that of ‘detrimental action’ [Criminal Code (Cth) s 270.4(2)] which is defined to include ‘any disadvantage and is not limited to personal injury or to loss of or damage to property’ [Criminal Code (Cth) Dictionary (definition of ‘detriment’)].
In Sieders Campbell JA attempted to draw a distinction between the two offences:
When the tendency of the debt arrangement is to keep the women providing sexual services (in the business), it would be open to the jury to find that (the business) was one involving sexual servitude [R v Sieders; R v Somsri [2008] NSWCCA 187 at [156]].
The ‘threat of detrimental action’ required to establish the condition of ‘sexual servitude’ could thus be made out ‘because of the – albeit implicit and unspecific – threat associated with any failure to continue sex work for the purpose of repaying the debt’ (para. 14). Counsel for Ms Netthip attempted to distinguish the present case on the basis that in Sieders there was a high level of physical supervision of the women and four of the five women were required to surrender their passports and tickets (para. 14). In the present case the women had agreed to the debt arrangement, were not under physical control and had a high degree of freedom (e.g. access to money, a telephone and the Internet) (para.16). Counsel for Ms Netthip thus argued that the only relevant ‘threat’ arose from the debt itself and as such could be better characterised as a debt bondage offence (para.14).
Murrell SC DCJ noted that the Crown could have charged Ms Netthip with offences of debt bondage (para. 15). It was held, however, that in light of the Sieders decision and given the high level of sexual exploitation associated with the offenders conduct, it was plain that the offence of sexual servitude had been established (para. 15).
The recognition by Murrell SC DCJ that a trial could have been problematic suggests that the distinction between the offences of debt bondage and conducting a business involving sexual servitude may be open to further interpretation and argument.