CASE REPORT (CRIMINAL) - TC Beirne School of Law - University ...

HUMAN TRAFFICKING WORKING GROUP
Dr Andreas Schloenhardt, TC Beirne School of Law
Dr Melissa Curley, School of Political Science & International Studies
CASE REPORT (CRIMINAL)
Case name R v Namthip Netthip
Plaintiff The Crown
Defendant (1) Name: Namthip Netthip
Citizenship: Australian
The University of Queensland
Brisbane Qld 4072; Australia
www.law.uq.edu.au/humantrafficking
Reported in Sentencing judgment: R v Netthip [2010] NSWDC 159
Primary charge(s) Knowingly conducting a business involving sexual servitude:
s 270.6(2) Criminal Code (Cth)
Making false statements to an immigration official in connection
with an application for a protection visa: s 234(1)(b) Migration Act
1958 (Cth)
Causing a document containing a false statement to be delivered
to an immigration officer: s 234(1)(c) Migration Act 1958 (Cth)
Case categorisation Act: Transportation/transfer
Means: Abuse of power or a position of vulnerability
Purpose: Exploitation of the prostitution of others or other forms
of sexual exploitation
Industry/Sector: Commercial sexual exploitation
Form: Transnational
Victim details Number of victims: 12
Method of entry: Initially a visitor’s visa then an application was
made for a protection visa.
Gender(s): Female
Age(s): Adult
Place, country of origin: Thailand
Current status
(December 7, 2011)
Related cases N/A
Convicted and sentenced

Facts and Background
Date(s) of offending August 30, 2005 – April, 1 2008
Date of arrest 2009
Location(s) Sydney, Newcastle, Wollongong, Melbourne, Canberra, Adelaide,
and Perth.
Ms Namthip Netthip was born in Thailand, moved to Australia in 1987, and naturalized in
1994. She occasionally engaged in sex work after arriving in Australia, or worked as a
receptionist in various brothels. Between August 2005 and March 2008 Ms Netthip, ran a
business through which she organised the placement of eleven (or possibly twelve) Thai
women in brothels in several Australian cities, including Sydney, Newcastle, Wollongong,
Melbourne, Canberra, Adelaide, and Perth. 1 The women were recruited in Thailand by a
Thai facilitator who organised their passports, visas, and travel. The women agreed to
repay debts of AU$ 53,000 and were aware they would be working in the sex industry.
Seven women later told authorities that they had worked in the sex industry before arriving
in Australia. 2
Ms Netthip, who holds an accountancy diploma from Thailand, was responsible for
organising 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 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 these issues or move them to a different brothel. 3
From their net earnings, the women were required to pay back their debt of AU$ 53,000 to
Ms Netthip. It was estimated that it took approximately six months for each of the women
to pay back this debt. Following payment of the debt, the women were allowed to work
independently. 4 From the AU$ 53,000 collected by Ms Netthip for each woman, the agent
in Thailand was paid AU$ 20,000. It has been estimated that Ms Netthip made
approximately a net profit of AU$ 10,000–18,000 per woman, plus expenses for things
such as food, medical care, rent, telephone, et cetera. Her total profit has been estimated
to range between AU$ 60,000–70,000 (which seems incorrect and underestimated
according to some sources). The motive behind the scheme was that Ms Netthip wanted
to support her 14-year-old daughter and pay off the mortgage on a unit purchased in
2004. 5
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 DIAC (Department of Immigration and Citizenship)
officers during their immigration assessment. 6
1 R v Netthip [2010] NSWDC 159 at [4].
2 Australia, Anti-People Trafficking Interdepartmental Committee, Trafficking in Persons: The
Australian Government Response, 1 July 2010 – 30 June 2011 (2011) 75.
3 Australia, Anti-People Trafficking Interdepartmental Committee, Trafficking in Persons: The
Australian Government Response, 1 July 2010 – 30 June 2011 (2011) 75.
4 Bruce McDougall, ‘Whose bright idea was this?’ (30 July 2010) The Daily Telegraph (Sydney) 13.
5 Jamelle Wells, ‘Sydney mother forced Thai women into prostitution’ (30 July 2010) ABC News,
.
6 Australia, Anti-People Trafficking Interdepartmental Committee, Trafficking in Persons: The
Australian Government Response, 1 July 2010 – 30 June 2011 (2011) 76.
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It is not clear how the case came to the attention of Australian authorities, though official
government reports state that the twelve women provided information to the Australian
Federal Police beginning in May 2007. 7
First Trial
Court New South Wales District Court
Citation Sentencing judgment: R v Netthip [2010] NSWDC 159
Trial judge Murrell SC DCJ
Dates Convicted: March 30, 2010 (Downing Centre Local Court)
Sentencing hearing: July 29, 2010
Sentencing judgment: July 30, 2010
Charges Knowingly conducting a business involving sexual servitude:
s 270.6(2) Criminal Code (Cth)
Plea: Guilty
Trafficking in persons while reckless as to whether the persons
would be exploited, s 271.2(1B) Criminal Code (Cth) (9 counts)
Charge later withdrawn.
Intent to cause another to enter into debt bondage, s 271.8(1)
Criminal Code (Cth) (11 counts)
Charge later withdrawn.
Making false statements to an immigration official in connection
with an application for a protection visa: s 234(1)(b) Migration Act
1958 (Cth) (10 counts)
Plea: Guilty
Causing a document containing a false statement to be delivered
to an immigration officer: s 234(1)(c) Migration Act 1958 (Cth) (11
counts)
Plea: Guilty
Sentence Two years and three months imprisonment to be released on 24
August 2011 after a period of thirteen months, on a recognizance
release order to be of good behaviour for fourteen months
Ms Netthip was arrested and charged in 2009. On March 30, 2010 at the Downing Centre
Local Court, NSW she pleaded guilty to knowingly conducting a business that involved the
sexual servitude of 11 other persons between August 30, 2005 and April 1, 2008. 8 This was
first guilty plea in Australia in relation to sexual servitude charges. 9 She also pleaded guilty
to a number of immigration offences against s 234(1)(b) and (c) Migration Act 1958 (Cth) for
making false statements to immigration officials. 10 Other charges against her in relation to
trafficking in persons and debt bondage were withdrawn.
Ms Netthip was sentenced on July 30, 2010 to two years and three months imprisonment for
the sexual servitude offences, with a non-parole period of thirteen months. 11 In relation to
7 Australia, Anti-People Trafficking Interdepartmental Committee, Trafficking in Persons: The
Australian Government Response, 1 July 2010 – 30 June 2011 (2011) 17.
8 Criminal Code (Cth) s 270.6(2).
9 Australia, Anti-People Trafficking Interdepartmental Committee, Trafficking in Persons: The
Australian Government Response, 1 July 2010 – 30 June 2011 (2011) 17.
10 Australia, Anti-People Trafficking Interdepartmental Committee, Trafficking in Persons: The
Australian Government Response, 1 July 2010 – 30 June 2011 (2011) 17.
11 R v Netthip [2010] NSWDC 159 at [35].
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the migration offences she received a three-and-a-half year good behaviour bond. 12 In
sentencing Ms Netthip, District Court Judge Helen Murrell SC held that Ms Netthip’s
considered the relevant case law relating to sexual servitude, the objective seriousness of
the offence, and the need for both general and specific deterrence. Judge Murrell also
recognised the individual circumstance of Ms Netthip and her early guilty plea to the sexual
servitude offences which 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. 13 The potential problems that would have arisen at trial are discussed below.
Analysis and Comment
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 (s 271.8 Criminal Code (Cth)) and conducting a business involving sexual
servitude (s 270.6). 14 On the facts it seems 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. 15 Indeed Counsel for Ms Netthip argued in sentencing
submissions that the present case had all the ‘hallmarks of a debt bondage offence’. 16 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.’ 17 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. 18 Most relevantly, one type of ‘threat’ is that of ‘detrimental action’ 19 which is
defined to include ‘any disadvantage and is not limited to personal injury or to loss of or
damage to property.’ 20
In R v Sieders Justice Campbell 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. 21
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.’ 22 Counsel for
Ms Netthip attempted to distinguish the present case on the basis that in R v 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. 23 In the present case the women had
12 R v Netthip [2010] NSWDC 159 at [36].
13 R v Netthip [2010] NSWDC 159 at [28] and [34].
14 R v Netthip [2010] NSWDC 159 at [11] – [16].
15 Criminal Code (Cth) s 271.8
16 R v Netthip [2010] NSWDC 159, [14].
17 R v Netthip [2010] NSWDC 159, [11].
18 Criminal Code (Cth) s 270.4(1)
19 Criminal Code (Cth) s 270.4(2)
20 Criminal Code (Cth) Dictionary (definition of ‘detriment’).
21 R v Sieders; R v Somsri [2008] NSWCCA 187 at [156].
22 R v Netthip [2010] NSWDC 159, [14].
23 R v Netthip [2010] NSWDC 159, [14].
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agreed to the debt arrangement, were not under physical control, and had a relatively high
degree of freedom (e.g. access to money, a telephone, and the Internet). 24 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. 25
Judge Murrell noted that the Crown could have charged Ms Netthip with offences of debt
bondage. 26 It was held, however, that in light of the decision in R v Sieders 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. 27
The recognition by Judge Murrell 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.
24 R v Netthip [2010] NSWDC 159, [16].
25 R v Netthip [2010] NSWDC 159, [14].
26 R v Netthip [2010] NSWDC 159, [15].
27 R v Netthip [2010] NSWDC 159, [15].
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List of references
Official case reports
R v Netthip [2010] NSWDC 159
Secondary sources
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.
Australia, Anti-People Trafficking Interdepartmental Committee, Trafficking in Persons: The Australian
Government Response, 1 July 2010 – 30 June 2011, Canberra, ACT: Commonwealth of Australia,
2011.
McDougall, Bruce, ‘Whose bright idea was this?’ (30 July 2010) The Daily Telegraph (Sydney) 13.
Wells, Jamelle, ‘Sydney mother forced Thai women into prostitution’ (30 July 2010) ABC News,
© 2011, The University of Queensland Human Trafficking Working Group.
An electronic copy of this document is available at www.law.uq.edu.au/humantrafficking.
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