Court of Appeal
| DOI | 10.1350/jcla.2010.74.1.611 |
| Published date | 01 February 2010 |
| Date | 01 February 2010 |
| Subject Matter | Court of Appeal |
Court of Appeal
Sentencing for Trafficking
Rv Pacan, Arslan, Facuna and Doci [2009] EWCA Crim 2436
Keywords Sentencing; Trafficking; Exploitation; Sentencing guidelines
The four appellants, together with two other individuals, were convicted
of various trafficking offences after a trial at the Crown Court at South-
wark. Pacan was convicted of trafficking a girl called Martina into the
UK for sexual exploitation and was sentenced to 11 years’ imprison-
ment. Facuna and Doci were convicted of the same offence and were
given the same sentence. Arslan pleaded guilty to two counts of keeping
a brothel for prostitution and was convicted by the jury of controlling a
prostitute for gain (a woman called Raza), trafficking Martina into the
UK for sexual exploitation and controlling Martina as a child prostitute.
For the offences relating to a brothel he was sentenced to five years’
imprisonment. For the offences relating to Martina he received custodial
sentences of nine and five years’ imprisonment, concurrent with each
other, but consecutive to the other offences, making a total of 14 years’
imprisonment. The sentence was reduced to reflect the totality
principle.
The facts of the case showed that each offender was complicit in the
trafficking and prostitution of young women. Raza (of which only
Arslan was convicted) was 22 years old when she arrived in London,
having been brought to the city by a Lithuanian who took her passport.
He sold her to Arslan who forced her to work as a prostitute to recoup
the money spent on bringing her into the country. Arslan operated the
brothel at which at least 10 other women, of different nationalities, were
working. He later sold Raza to another individual although she con-
tinued to work at his brothel.
Martina was aged only 16 when she was trafficked into the country
by Pacan and Facuna. They had collected her from her home town in
Slovakia and brought her to the UK. She was told she would work in a
pub, but after a week she was sold to an Albanian man who forced her
to work as a prostitute and, in order to seek her compliance, she was
regularly beaten and raped. Eventually she was taken to Arslan’s brothel
where she was controlled by Doci before being sold to Arslan.
The trial judge stated that he considered the Sentencing Guidelines
Council’s definitive sentencing guideline on sexual offences, but that he
was going to depart from it. He described the defendants’ actions as
despicable and not to be tolerated in a civilised society.
Each of the appellants petitioned the Court of Appeal, by leave of the
single judge, against their sentence on the basis that the trial judge had
imposed sentences that were outside the sentences laid down in the
definitive sentencing guideline on sexual offences.
H
ELD
,
DISMISSING THE APPEAL
, the guideline was just that, a guide-
line, and a judge could depart from it where the seriousness of the case
10 The Journal of Criminal Law (2010) 74 JCL 10–26
doi:10.1350/jcla.2010.74.1.611
reflected it. The court also noted that the guideline was badly phrased in
that it did not differentiate between women trafficked in, out or within
the UK. There was also confusion and uncertainty about the aggravating
features and whether some were additional factors or factors inherent
within the starting point for a particular band of sentences.
C
OMMENTARY
In 2007 the UK celebrated its role in the abolition of the slave trade, but
some would argue that the slave trade remains alive and well, with the
trafficking of women and children becoming a global business. The
treatment afforded to the two victims in this case shows that they could
only be described as slaves and that they were bought and sold as if a
commodity.
The definitive sentencing guideline on trafficking is somewhat com-
plicated and the Court of Appeal criticises it in this case. The guideline is
contained in the definitive guideline on sexual offences. The Court of
Appeal was concerned that the guidance does not differentiate between
the trafficking of a person into, out of or within the UK. However, that
would appear to have been a deliberate statement by the Sentencing
Guidelines Council, since Parliament arguably did not desire any distinc-
tion to be made since it prescribed the same punishment for each of the
three types of trafficking (three separate offences relating to trafficking
were created (one each for trafficking into, out of and within the UK)
because it is quite possible that a trafficking operation will involve two or
more separate activities of trafficking, i.e. trafficking V into the UK and
then trafficking V to another part of the UK). The more serious concern,
however, was the fact that the sentencing guideline refers to coercion as
the threshold for one of the starting points in sentencing, but then also
lists it as an aggravating factor (discussed at [14] in the judgment). This
is perhaps confusing for sentencers although the text accompanying the
guideline does note that the degree of coercion is an important feature
and this may mean that where there is a high degree of coercion this
should act as an additional aggravating factor.
The sentences in this case are tough but by reason of necessity. The
Court of Appeal clearly thought that this was one of the worst examples
of the sexual exploitation of an individual and it would be difficult to
take issue with that. The offenders were complicit in the rape, abuse and
prostitution of women. In the past it has been questioned whether a
person who trafficks or controls a prostitute could be guilty of complicity
to rape (which would carry with it a maximum sentence of life impris-
onment), but prosecutors ordinarily seek to rely on the trafficking and
prostitution offences, in part because of the additional evidence that
would be required to prove complicity to rape, especially the mental
element.
The Coroners and Justice Act 2009 received Royal Assent in No-
vember and when Part 4 is enacted the Sentencing Advisory Panel and
Sentencing Guidelines Council will be replaced by the Sentencing
Council for England & Wales. It is not yet known how this institution
will operate although it will have academics appointed to it. Both the
Sentencing for Trafficking
11
To continue reading
Request your trial