England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT OF WOLVERHAMPTON
HIS HONOUR JUDGE WEBB
T20067008

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/07/2007

Lord Justice Pill :

1. On 4 December 2006 at the Crown Court at Wolverhampton, Mr Atilla Makai pleaded guilty on re-arraignment to conspiracy to traffic into the United Kingdom for sexual exploitation. On 11 January 2007, before His Honour Judge Webb, he was sentenced to 40 months imprisonment with a direction that 36 days spent on remand should count towards the sentence. He appeals against sentence by leave of the single judge.
2. A co-accused Ms Kinga Borcsok pleaded guilty on re-arraignment to the same offence and was sentenced to 28 months imprisonment.
3. When addressed by the prosecution, the judge rightly sought to investigate the nature of the trafficking. The appellant had signed a basis of plea when pleading guilty a few days before his trial was due to begin. Both defendants were Hungarian nationals without previous convictions. The appellant is 22 years old and the co-accused 28 years old. They were involved in recruiting and arranging for Hungarian girls to come to the United Kingdom to work as prostitutes in brothels here. Advertisements were placed on Hungarian websites and applicants invited to contact the co-accused, known as 'Lily'. The girls bought their own air ticket to the United Kingdom, normally on a budget airline, and were met at Luton Airport by the appellant. He passed them on to other men, mainly Albanians, who were more closely involved in the trade. He was paid a fee of about £3,000 a time.
4. The conspiracy alleged in the indictment related to two girls B and J. They were not prostitutes before they came to the United Kingdom but it is accepted by the prosecution that they would have known for what work they were being recruited. J worked as a prostitute in a brothel in Glasgow. B claimed to have been raped by the Albanians to whom she was handed over, before being taken to the brothel. She was then taken to a club in Birmingham and was kept under the control of those in charge of the brothel there, her personal effects and identity being taken from her.
5. B spoke to friends in Hungary and the police were contacted via the Hungarian authorities. Proceedings were taken against the managers of the brothel, one defendant being sentenced to 2 years imprisonment. It is not suggested that the appellant, or the co-accused, knew what happened to the girls once they had been handed over but the judge approached the case on the basis that they lacked concern as to what the girls were being led into.
6. The basis of the appellant's plea was that the two women were above the age of consent, that they entered the United Kingdom legally and knew that prostitution is legal in the United Kingdom. The women came to the United Kingdom of their own free will on the understanding that they would be working as prostitutes. The appellant's role was limited to introducing the women to others who would place them in brothels.
7. There was evidence that the appellant received payments for his services and the judge approached the case, as he was entitled to do, on the basis that the appellant was paid a significant sum in respect of each of the young women.
8. When sentencing the appellant, the judge stated that the women were aware that they were being bought and sold. The appellant "cannot have been totally blind or unaware of the potential danger to which they were exposed". The judge accepted that some of the aggravating features often present in cases of this kind were not present in this case. He indicated that he would give 20% credit for the late plea of guilty.
9. The substantive offence on which the conspiracy was based was that of trafficking into the United Kingdom for sexual exploitation under section 57 of the Sexual Offences Act 2003 ("the 2003 Act"). It is an offence intentionally to arrange or facilitate the arrival of another person with the intention of doing something which will involve the commission of a relevant offence. The relevant offence was of intentionally causing another person to become a prostitute in the expectation of gain for himself, under section 52 of the 2003 Act. The maximum sentence is one of 14 years imprisonment.
10. On behalf of the appellant, Mr. Bowers submits that the complainants could have entered the United Kingdom and worked as prostitutes without committing an offence. That is a woman's right and the offence under Section 57 appears to contradict that right. Its effect is to force women to work alone and make their own arrangements to work, a position at odds with any other sector of lawful employment. Women's vulnerability is likely to be compounded by legislation which compels a prostitute to work alone rather than in a regularised sector. It is not suggested that Section 57 contravenes the European Convention on Human Rights but the appellant's level of criminality is low, it is submitted. The commission of the offence is a reflection of the economic realities of intra-community migration and an inconsistent legal approach to prostitution. It is also submitted that the sentence on the appellant is too long in comparison with that on his co-accused.
11. The judge was referred to the decision of this court in the R - v - Ramaj and Atesogullari [2006] 2 Cr. App R (S) 83, [2006] EWCA Crim 448. The trafficking offence in that case involved an 18 year old girl from Lithuania whose entry into the United Kingdom with a view to prostitution was facilitated by the defendant who supplied the girl to a brothel. The defendant was 19 years old and of previous good character. Acknowledging the difficulty of deciding upon the level of sentence, the court held that a sentence of 5 years detention would be appropriate on conviction on the trafficking count.
12. Mr Bowers now relies on Attorney General's Reference Nos. 129 and 132 of the 2006 [2007] EWCA Crim 762. Judgment was delivered on 6 March 2007, that is after the sentence in the present case was imposed. Moreover, definitive guidelines have become available from the Sentencing Guidelines Council since the judge imposed the sentence.
13. In the Attorney General's reference, one case involved an enterprise which enabled women from overseas to enter the United Kingdom in order to work as prostitutes. The defendants controlled the work they undertook and received 60% out of their earnings. The defendant, Godwin Zammit, received a total of about £240,000 during the period of police surveillance. He pleaded guilty to a trafficking offence and an immigration offence. A female co-defendant, Delgado-Fernandez, was found guilty following a trial. The court, Lord Phillips of Worth Matravers, Chief Justice presiding, analysed the offence in this way:

"In this case the nature of the immigration assistance was first of all to inform the prostitutes that the easiest way of entering the country was via Ireland, and then to instruct them to fill in their immigration forms with the false information that the purpose for which they were entering the country was tourism. They were then provided with visas to enter the country on that basis. Most of them left before those visas expired. However, instead of spending their time in this country in innocent tourism, they spent their time working as prostitutes. They then returned home, so that there was no long-term increase of illegal immigrants in this country, and indeed never more than four or five at a time as a result of the applicants' activities. It seems to us that the immigration offence was part and parcel of the trafficking offence and, of course, it aggravated that offence.

The remaining elements of the trafficking offence lacked most of the aggravating factors identified by the Sentencing Guidelines Council. There was no deception or coercion. There was assistance for prostitutes who wanted to come to this country – assistance with their entering the country illegally and organisation of their business while they were here on a substantial scale and for a substantial profit."

A total sentence of 5 years imprisonment was considered appropriate in the case of Zammit and 4 years in the case of Delgado-Fernandez, who was very much under the control of Zammit.

14. In the other case before that court, Thanh Hue Thi, the defendant was involved in the trafficking into the United Kingdom of Malaysian women for the purpose of prostitution at brothels in London and Birmingham. Documents seized showed that the defendant had received very substantial income from the brothels, in the management of which the defendant was involved. Aggravating features were the scale of offending and the existence, in one instance, of coercion. The defendant had been sentenced on guilty pleas to 5 years imprisonment for the trafficking offence, with a concurrent sentence of 2½ years imprisonment for controlling prostitution for gain.
15. The court compared the case with that of the R - v – Roci and another [2006] 2 Cr App R(S) 15, [2005] EWCA Crim 3404 in which there were very late guilty pleas. The defendants were concerned in the importation and the control in this country of prostitutes from Lithuania. The women came to this country willingly but were coerced to work in unpleasant circumstances and ways contrary to their wishes and to pay over most of their earnings. A sentence 9 years imprisonment had been considered by this court to be appropriate in that case.
16. In the Attorney General's reference, the court stated:

"We have compared the facts of this case with those in Roci. Although here there was the single case of coercion, the picture in Roci is of a much more rigid regime of exploitation, albeit lacking the gravity of the single aggravating feature that we have to deal with. Overall we consider that the two cases are comparable and that the appropriate starting point in this case should have been ten years. From that starting point there fell to be a full reduction for the guilty plea, and then there was the further reduction made by the judge to reflect personal mitigation. Initially we were sceptical as to its justification. However, we are told that the applicant's wife, whose life expectancy is very limited, has returned to Malaysia where she is likely to die in circumstance where the applicant will not see her again.

In these circumstances, have regard to that item of mitigation and to the principle of double jeopardy, we have reached the conclusion that while this was a lenient sentence, it did not amount to a sentence that was unduly lenient so that it should be increased. For that reason we propose to leave the sentence as it stands."

17. The scale of offending in the present case was, on the indictment, much smaller than those cases. The appellant handed over the women to others and was not himself concerned in brothel management.
18. The Sentencing Guidelines, having referred to trafficking offences, provide:

"The offences are designed to cover anyone involved in any stage of the trafficking operation, whether or not there is evidence of gain. This is serious offending behaviour, which society as a whole finds repugnant, and a financial or community penalty would rarely be an appropriate disposal.

The degree of coercion used and the level of control over the trafficked person's liberty will be relevant to assessing the seriousness of the offender's behaviour. The nature of the sexual exploitation to which the victim is exposed will also be relevant, as will the victim's age and vulnerability.

In general terms the greater the level of involvement, the more serious the crime. Those at the top of an organised trafficking chain may have very little personal involvement with day-today operations and may have no knowledge at all of individual victims. However, being in control of a money-making operation that is based on the degradation, exploitation and abuse of vulnerable people may be equally, if not more, serious than the actions of an individual who is personally involved at an operational level."

……

"The starting point for sentencing for offences of trafficking for sexual exploitation should be a custodial sentence. Aggravating factors such as participation in a large-scale commercial enterprise involving a high degree of planning, organisation or sophistication, financial or other gain, and the coercion and vulnerability of victims should move sentences towards the maximum 14 years."

19. Additional aggravating factors are listed in the Guidelines. These do not apply in the present case save, to a limited extent, "substantial financial (in the region of £5,000 and upwards) or other gain". The Guidelines do, however, acknowledge the seriousness of the trafficking chain even in the absence of knowledge of what happens to individual victims.
20. The starting point when coercion is involved is stated to be 6 years custody, with a range of 4 to 9 years. In the absence of coercion, the starting point is 2 years custody, with a range of 1 to 4 years.
21. We reject the submissions based on the alleged beneficial effects for women of arrangements such as those made by the defendants in this case. The submissions are inconsistent with the statutory intention, including the availability of a maximum sentence of 14 years, and with the Sentencing Guidelines Council view of the seriousness of offending behaviour such as this. The submissions are misconceived. The trade is a repugnant one, as the Council have stated.
22. The only issue is whether a sentence of 40 months is manifestly excessive given the comparatively limited scale of the operation, as charged, and the absence of specified aggravating factors. We agree with the judge's analysis of the situation, including the importance of the risks to women handed on for a fee in the way the complainants in this case were. The appellant is in his early twenties, without previous convictions, and is entitled to about 20% discount for his late plea.
23. We have come to the conclusion, not without hesitation, that the sentence was too long. The judge did not have the benefit of the guidance available to this court. He took as his starting point a figure in the now appropriate sentencing bracket but at the top of it, four years. A sentence of 30 months imprisonment would have been appropriate, having given discount for guilty plea. At that level, the appellant can have no grievance on the basis of disparity with his co-accused.
24. The sentence of 40 months imprisonment will be quashed and a sentence of 30 months imprisonment substituted. To that extent, the appeal is allowed.