England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2009] 1 Cr App Rep (S) 82, [2008] EWCA Crim 1930, [2009] 1 Cr App R (S) 82

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		Neutral Citation Number: [2008] EWCA Crim 1930
		No: 200803926 & 03949 A4

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 30th July 2008

B e f o r e :

LORD JUSTICE HUGHES
MRS JUSTICE DOBBS DBE
HIS HONOUR JUDGE PERT QC
Sitting as a Judge of the Court of Appeal Criminal Division
____________________

	R E G I N A
	v
	(1) PEIWEN SHI
	(2) LI YANG

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____________________

Mr M Sharpe appeared on behalf of the First Appellant
Mrs T J Turner appeared on behalf of the Second Appellant
Mr S Hickey appeared on behalf of the Crown
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HTML VERSION OF JUDGMENT
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MRS JUSTICE DOBBS: On 4th April 2008 at the York Crown Court, the appellant Shi pleaded guilty to one count of keeping a brothel used for prostitution and a second count of possession of criminal property. On 2nd May 2008 the appellant Yang pleaded guilty to the same offences and both were sentenced on 19th June by His Honour Judge Ashurst. Shi was sentenced to 21 months' imprisonment on each count to run concurrently, with a direction that the 182 days spent on remand count towards sentence. There was also a recommendation for deportation. In respect of Yang, she was sentenced to 15 months' imprisonment on each count to run concurrently. Similarly, the 183 days spent on remand was to count towards sentence and a recommendation for deportation was made in her case. These applications have been referred to the full court by the Registrar. We give leave.

The Crown's case was that the two appellants ran a brothel at 32 Balmoral Terrace in York from 26th August to 18th December 2007. Money obtained from the running of the brothel was the subject of the acquiring criminal property count.

By way of background, Shi had been given a leave to enter this country as a student and Yang was an illegal immigrant. They rented the property in question, signing the leases; Yang in a different name. Adverts were placed at a weekly cost of £100 in the North Yorkshire Times by Shi which read "Personal services for oriental flower". Council Tax and electricity were paid on Shi's debit card and over the period in question some £6,000 had been paid out of his account for rent, electricity, Council Tax, et cetera. The evidence of prostitution came from the test purchase officers who phoned the number given in the advert, to be advised by Yang of the services: £60 for half an hour and £100 for an hour. Two officers visited the premises where Yang introduced them to a prostitute called Lena. There was further evidence of Chinese girls being picked up at York railway station and taken to the brothel. Shi would visit the brothel from time to time to check on its management. There is also some evidence of Yang banking the payments.

Both were arrested on 17th December of last year, Yang at number 32 and Shi elsewhere. A search of the premises revealed items consistent with sexual activity. In interview Shi made no comment but gave a prepared statement saying that he had rented a massage parlour on behalf of a Mr Liang. He denied running a brothel or to arranging to take the girls in. Yang told various stories, initially denying having been to the premises apart from the day she was arrested, to say that it was a massage parlour, but eventually admitting that she had worked as a prostitute for two weeks and had made about £1,000 in that time. She denied knowing Shi.

There was a basis of plea entered by both, not accepted by the Crown. However, on the day of the Newton hearing Shi abandoned his basis of plea. Yang's basis was that she worked as a receptionist and prostitute on a number of occasions and she helped Shi by signing the lease, and on one occasion went to pay the takings from prostitution into the bank.

Shi is 26 and Yang is 34. Both were of previous good character. The Pre-Sentence Report for Shi indicated that he thought he had done nothing wrong and this was of considerable concern. However, there was a low risk of serious harm to the public. For Yang there was a low to medium risk of re-offending.

The judge gave credit to both appellants for their pleas and cooperation. He accepted that there was no background of coercion or threats, but noted that prostitutes from the Far East were regularly ferried from London to York to work in the brothel. Whilst he took into account the guidelines, he observed that they were not a rigid formula or a straitjacket and that deterrent sentences had to be passed to discourage other like-minded people, given the increase in the setting up of such brothels. As for deportation, he said that those who come to this country to set up criminal enterprises undermine the value of genuine visitors to the country and this is not conducive to the public good.

The grounds are that the sentences are manifestly excessive and that the recommendations for deportation were wrong in principle. The main points of mitigation were pleas, good character, no background of coercion and the short period of enterprise. Additionally, in respect of Yang, it was said there was limited financial gain and lesser involvement than Shi.

A number of authorities were drawn to our attention by both counsel for the appellants in their advice and grounds of appeal which pre-date the coming into force of the Sexual Offences Act 2003 Guidelines prepared by the Sentencing Guidelines Council which show sentences once reduced by the Court of Appeal in the range of 3 to 18 months on pleas of guilty, the top brackets involving cases significantly more serious on the facts.

The Crown in their skeleton argument drew the court's attention to the fact that the Sentencing Guidelines Council's Guideline on the Sexual Offences Act 2003 had come into force after the authorities focused on by the appellants' counsel, and also pointed out that the old offence of keeping a brothel carried a maximum of 6 months, whereas the maximum under this Act is 7 years. In the Crown's submission, Shi fell into the top bracket, namely having made at least £5,000 (that amount being in his bank account) and accepted by the judge at the court below, and that Yang fell into the second bracket.

The Guidelines identify three brackets. The top bracket is relevant to an offender who is the keeper of a brothel and has made substantial profits in the region of £5,000 upwards, with a starting point of 2 years' custody and a sentencing range of 1 to 4 years. The second bracket is where the offender is the keeper of the brothel or a person involved in its management, with a starting point of 12 months and a sentencing range of 26 weeks to 2 years. The third bracket is where the involvement of the offender was minimal where a community order is thought to be appropriate.

We accept the Crown's contention that Shi fell into the top bracket, which is the starting point of 2 years, but we do note the point that this case on its facts was very much on the cusp of the two brackets, although falling just into the top bracket. We also accept, and it is accepted by the Crown, that Yang fell into the second bracket with a starting point of 12 months.

Today counsel for the Crown drew the court's attention to the case of Veio [2008] 2 Cr.App.R(S) at page 61, number 10. It was a case where the appellant pleaded guilty to managing a brothel and possessing criminal property. The appellant ran a hairdressing salon but also offered sexual services to customers. The women concerned were not procured or coerced and were not under age. The court was unable to work out how much, in fact, had been made in that case in relation to the brothel activities and, on the basis of the plea of guilty and the fact that there were only two girls involved, neither being under age and that there was no coercion or corruption, a sentence of 18 months was reduced to 12 months to run concurrently.

We take the view, having looked at the facts of this case, being mindful of the guidelines, taking into account the mitigation -- including the pleas of guilty, the short duration of the offences, the previous good character, that this was the appellants' first sentence of imprisonment -- that the sentences were too high. In the case of Shi we consider that the appropriate sentence is one of 16 months' imprisonment and in the case of Yang, one of 10 months' imprisonment. In relation to Shi the 182 days served in custody should count towards the sentence and in relation to Yang the 183 days already served should be taken into account.

We turn now to the question of the recommendations for deportation. The submission, in short, is that the offences are not serious enough to warrant a recommendation and that it was wrong in principle for one to have been made. The test is whether the continued presence of the defendant is to the detriment of the country or community. It is in the judge's discretion whether or not to make such an order, having considered all relevant circumstances. The focus is on the expected future behaviour, taking into account the offence, previous record and other relevant circumstances. The principles that counsel for the appellant say can be derived from the authorities are as follows: that a recommendation should not be made for an isolated offence, and that it should not be made merely because the offence is a serious offence. It is said on Shi's behalf that, despite his lack of remorse, he must have learned from the sentence imposed on him that this kind of behaviour is not approved of and thus he presents no future risk. In relation to Yang, it is submitted that the assessment of low to medium risk in the Pre-Sentence Report should be taken into account and also there is the deterrent element of the sentence as being a factor that can allow the court to find that there is no risk.

There is nothing wrong in principle with making a recommendation for deportation in relation to an offender of previous good character where the offences involved are serious and of a deliberate nature (see the important case of Nazari 71 Cr.App.R 87). In Yang's case it has been argued that she faces problems in her home country of China, but that is something which these courts here need not concern themselves within relation to a recommendation. Such matters are for the Secretary of State. Both appellants, although not assessed as a high risk of re-offending, were assessed as a risk. Shi thought he had done nothing wrong. Yang was assessed as low to medium risk, but one has to put that in the context that she is unable to work legally in this country and that must be relevant to risk.

Not only are the offences serious, as the judge found, both were involved in a commercial enterprise which encourages the influx of illegal immigrants and thrives on the use of them, extracting substantial profit for those who carry out the services. Even though we have reduced the sentences passed by the trial judge, we do not consider that he erred in making the recommendation for deportation. Whether it is acted upon is entirely a matter for the Secretary of State.

The appeals are allowed to the extent already indicated, namely that the sentences of imprisonment will be quashed and a sentence of 16 months substituted in the case of Shi imposed, with 182 days on remand, and 10 months in the case of Yang with 183 days on remand. The recommendations for deportation will stand.