Kizlaite & Anor, R. v [2006] EWCA Crim 1492

No: 200506032 A7/200506033 A7[2006] EWCA Crim 1492
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 16th May 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE GAGE
MR JUSTICE FORBES
MRS JUSTICE COX DBE
R E G I N A
-v-
VILMA KIZLAITE
AND
TASIM AXHAMI
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS A DENTON appeared on behalf of the 1st APPELLANT
MR P PIMM appeared on behalf of the 2nd APPELLANT
J U D G M E N T
Between
Kizlaite & AnorDefendantRCrown
[1]MR JUSTICE FORBES: On 18th October 2005 in the Sheffield Crown Court, on an indictment containing 13 counts (T20047596), the appellant Vilma Kizlaite was convicted after trial on nine counts. On 8th November in the Crown Court at Wood Green, she pleaded to a single count on a second indictment (T20057141). On 18th October 2005, on indictment T20047596, the appellant Tasim Axhami pleaded guilty to four counts and was convicted after trial on a further seven counts.[2]On 18th September they were sentenced as follows. Dealing first with indictment 20047596 on each of counts 1 to 4, the appellant Ms Kizlaite was sentenced to concurrent terms of four years' detention in a Young Offender Institution for offences of trafficking into the United Kingdom for sexual exploitation. On counts 5 and 6 she was sentenced to further concurrent terms of five years' detention for offences of false imprisonment. On count 11, for an offence of causing a person to engage in sexual activity without consent, she was sentenced to a consecutive term of six years' detention. On counts 12 and 13, which charged her with offences of causing or inciting prostitution for gain and controlling prostitution for gain, she was sentenced to further concurrent terms of two years' detention. On the same indictment on each of Counts 1, 3 and 4, for offences of trafficking into the United Kingdom for sexual exploitation, the appellant Axhami was sentenced to concurrent terms of six years' detention in a Young Offender Institution. On counts 5 and 6, for offences of false imprisonment, he was sentenced to further concurrent terms of seven years' detention. On counts 8, 9 and 10 he was sentenced to further concurrent terms of 12 years' detention for offences of rape. On count 11, for an offence of causing a person to engage in sexual activity without consent, a consecutive term of nine years' detention was imposed and on counts 12 and 13 he was sentenced to concurrent terms of three years' detention for offences of causing or inciting prostitution for gain and controlling prostitution for gain. So far as concerns the separate indictment (T20057141) on 11th November 2005, in the Wood Green Crown Court, the appellant Ms Kizlaite was sentenced to six years' detention in a Young Offender Institution for a single count for a single count of trafficking into the United Kingdom for sexual exploitation. That sentence was expressed by the judge to be concurrent to the sentences passed on indictment T20047596.[3]Accordingly, the total sentences were as follows. So far as concerns Ms Kizlaite, the total sentence was one of 11 years' detention in a Young Offender Institution. So far as concerns the appellant Axhami, the total sentence was one of 21 years' detention in a Young Offender Institution. In the case of the appellant Axhami, the judge also recommended that he be deported. Both the appellants, having been convicted of offences listed in schedule 3 of the Sexual Offences Act 2003, were required to comply with the appropriate notification of their details to the police for an indefinite period of time.[4]There was a co-accused, Emiljan Beqirat, who pleaded guilty to one count of trafficking within the United Kingdom and was convicted after trial of offences of trafficking into the United Kingdom, false imprisonment, causing a person to engage in sexual activity without consent, inciting prostitution for gain and controlling prostitution for gain. He was sentenced to a total of 16 years' detention in a Young Offender Institution and he was also recommended for deportation. The appellants, Ms Kizlaite and Axhami, now appeal against sentence by leave of the Single Judge.[5]The brief facts relating to indictment 20047596 are as follows. About a year before the offences in question, the appellant Axhami and the co-accused Beqirat became friends. As a result, in October 2004, Axhami met Ms Kizlaite. She was Beqirat's girlfriend and worked as a prostitute. Beqirat controlled her and the money that she made. Ms Kizlaite and possibly Beqirat were in contact with a woman in Lithuania called Jolanta. Jolanta was in the business of procuring girls and trafficking them to the United Kingdom for the purposes of prostitution. Ms Kizlaite herself had been trafficked in just such a way.[6]Axhami moved in with Ms Kizlaite and Beqirat and they suggested to him that he should buy a girl to run as a prostitute. He agreed to this proposal. As a result, a girl called R was sent from Lithuania. When she arrived in Sheffield, the three defendants discovered that R was only 15 years old. She was therefore not used as a prostitute but sent back to Lithuania. However, Jolanta refused to refund any money but said that she would provide a replacement. The replacement's name was V.[7]So it was that the complainants, 18-year-old V and 20-year-old E, arrived at Heathrow Airport from Vilnius in Lithuania on 6th November 2004. They were accompanied by two Lithuanian men called Arnoldas and Rokas. Arnoldas had paid for their tickets and had told the complainant that the trip was to collect some money that was owed to his father. However, once they arrived at Heathrow, Rokas told the women that they would have to work to pay for their tickets and that they would have to stay with friends whilst they did this. He then took E's passport from her. V refused to hand hers over but later discovered that it had actually been removed from her handbag. At the airport, they were joined by four Albanian men. Two of those men were Axhami and Beqirat. V noticed that Rokas gave her passport to Axhami. The Albanians then drove the complainants to Sheffield. They were taken to a flat where they met Ms Kizlaite. She told the complainants that she, Axhami and Beqirat had paid £3,000 for each of the complainants and that they were expected to work as prostitutes. Another Albanian man called Samir took E from the flat in Sheffield to another town where he sought to obtain work for her as a prostitute in brothels. She was then taken to London and kept in two or three locations, where she was raped by two men who have never subsequently been traced. On 13th November, she managed to escape and, with the help of a local resident, she went to the police.[8]Meanwhile, in Sheffield Ms Kizlaite told V that she had to work as a prostitute and had to have sex with Axhami because he had bought her. She was threatened with violence and with being sold to people in London. That same night, the appellant Axhami raped her whilst Ms Kizlaite and Beqirat were in the same room. Ms Kizlaite interpreted Axhami's threats and demands during the course of the rape. The following night, Axhami raped V again. V was locked in the flat and, although she was allowed to telephone her brother, her conversation was carefully monitored. She was then forced to walk the streets with Ms Kizlaite looking for work as prostitutes. She was required to charge £20 for sex. She then had to give that money to either Ms Kizlaite or Axhami. When she left the flat, she was always accompanied by one of the defendants.[9]One night, Axhami forced V to have sex with him against her will and on another occasion he slapped her in the face and again forced her to have sex with him. After that, she no longer struggled because she planned to escape as soon as she could. On 17th November 2004, V and Ms Kizlaite were out walking together when V said that she was planning to run away. Ms Kizlaite threatened her, pulled her hair and attempted to drag her into a nearby park. Fortunately, a woman who happened to be passing by intervened, as a result of which Ms Kizlaite ran away. The passer-by then took V home. The police were called and they took her into their protection. She identified the flat to which she had been taken to the police and there the police arrested Ms Kizlaite, Axhami and Beqirat. A mobile telephone was recovered from Ms Kizlaite. This showed that text messages and telephone calls had been made to Jolanta in Lithuania.[10]When passing sentence in relation to this particular case, the judge noted that the three defendants were young and had previous good characters. However, they had trafficked young women into the United Kingdom for prostitution. The judge pointed out that the complainants had been tricked into coming into the United Kingdom; that they spoke no English; that they had been threatened; that they had been transported like cattle and then imprisoned before being forced into prostitution. The judge observed that both women were in a state of total degradation and despair and that the damage the defendants had done to the two women did not bear thinking about. The judge stated that the appellant Axhami had repeatedly and violently raped V and then all three defendants had forced her into prostitution for their collective gain. The judge described the defendants as sexual slave traders. He did not accept that they were merely small cogs in a busy machine. In the judge's view, the appellant Axhami and the co-accused Beqirat had no moral values, no scruples and no compassion. He described them as inveterate liars. He said, rightly in our view, that they had no place in normal society.[11]The judge acknowledged that Ms Kizlaite had been subjected to the same violence and degradation that she had meted out to V. He also accepted that she had been brutalised, that she suffered from post-traumatic stress disorder and that, to her credit, she had told the jury the truth throughout the trial. That was a reference to the fact that the appellant Kizlaite's defence at trial had been one of duress and that otherwise her account of what had happened was a truthful one. The judge acknowledged the strength of the mitigation that was advanced on her behalf.[12]The brief facts relating to the separate indictment are as follows. The complainant in that case was a Lithuanian called S. She was a distant relative of Ms Kizlaite. She had just turned 18 on 7th May 2004. Whilst she was in London Ms Kizlaite made a number of telephone calls to S in Lithuania in the weeks prior to her 18th birthday. The Crown case was that Ms Kizlaite wished S a happy birthday and said that she would send her a present. In the meantime, Kizlaite's boyfriend in Lithuania, Sigis, had already approached S and told her that she could earn good money in a hotel in London. Subsequently, Sigis contacted S and told her that Ms Kizlaite had sent her the airfare to London as a present. Sigis said that S could then pay Ms Kizlaite back from her earnings once she started working in London. In effect, Ms Kizlaite had helped to persuade S to come to London, knowing that S would be forced into prostitution. S duly arrived at Heathrow on 30th May 2004, where she was met by three men and a woman. She was then taken to a flat and then to a brothel. She was forced to have sex with men for the financial benefit of her captors. However, she managed to escape on 3rd June by climbing down a drainpipe from the flat where she was then being held. She then made her way to the police.[13]There was a written basis of plea in this second case. Although the Crown did not agree the contents, it was accepted that it was proper to deal with the issue of sentence without there being a Newton hearing. The written basis of plea was, so far as material, as follows:
"I plead guilty to an offence of intentionally arranging or facilitating the arrival in the UK of another person for the purposes of sexual exploitation ... on the basis that I accept that, during a telephone call between myself and [S], I have gave her some reassurance that her trip to the United Kingdom would not involve any harm coming to her. I did not make a call but received a call from a man known as Thomas or Sigis, who asked me to speak to [S]. At the time of that call I was in London and [S] was in Lithuania at a house belonging to Jolanta and Sigis. "
I was fearful that if I did not do as I requested by Sigis some harm would come to me. Jolanta and he were responsible for trafficking me into the United Kingdom. I did not send any money to [S] but did not speak to her about working in the United Kingdom prior to my leaving Lithuania. I was unaware that [S's] 18th birthday was 7th May 2004. I did not speak to her in relation to any birthday presents."[14]In passing sentence in that case, the judge noted that the appellant Ms Kizlaite knew how serious the offence was, not only because of her earlier trial at Sheffield but because she herself had been a victim of just such exploitation. The judge observed that the appellant had clearly lent herself to the enterprise and that it had resulted in the complainant being held prisoner and being subjected to indignities and violence. The judge said that it was difficult to imagine a more awful deprivation of liberty and of forced employment in a foreign country. The judge noted that the sentences passed for such offending had to be very long. However, it was the judge's view that the appellant's involvement did not merit a very long sentence and he noted that she had already been sentenced to 11 years' detention in the earlier case. The judge observed that there was no doubt that the appellant had been heavily influenced by the men in charge and that she had also suffered from the treatment meted out to her. The judge gave credit for her plea of guilty, although it had been a delayed plea. The judge also took into account the appellant's sad childhood and upbringing and noted that she had not gained financially from the offence. Because of her age, the fact that she was in a foreign country and the fact that she had already received a long sentence, the judge decided that the appropriate sentence to pass upon the appellant in that case was a concurrent sentence. That, in his view, took into account the issue of totality.[15]The appellant Ms Kizlaite is now aged 20 and was of previous good character. The appellant Axhami is now aged 19 and he too was of previous good character. As we have already indicated, there was a clinical psychology report relating to Ms Kizlaite dated 3rd September 2005 and prepared by a Dr Craig McNulty. He was of the opinion that Ms Kizlaite's psychological distress and symptoms of post-traumatic stress were consistent with her being violently forced into prostitution. Dr McNulty described Ms Kizlaite's relationship with Beqirat as a consequence of coercion and manipulation. He said that she was totally reliant on her abusers for security. Dr McNulty stated that this phenomenon was known as the Stockholm syndrome and was generally considered to be a "survival strategy". Dr McNulty expressed the opinion that the appellant's claim that she could do nothing to protect V was consistent with her history of systematic physical and sexual violence and psychological manipulation. It was Dr McNulty's view that the appellant Ms Kizlaite suffered from post traumatic stress disorder and required clinical care and treatment.[16]On behalf of the appellant Ms Kizlaite, Ms Denton submitted that the total sentence passed was too long, having regard to the formidable body of mitigation that existed in Ms Kizlaite's case. In particular, Ms Denton referred to the following matters, which are fully set out in paragraph 6 of the detailed and carefully expressed advice that Ms Denton has prepared in Ms Kizlaite's case. First, Ms Kizlaite was only 18 at the team she committed the offences, although she was 20 by the date she was convicted. Second, she had entered a plea of guilty in relation to the second indictment and was entitled to credit for that, although the plea had not been entered at the earliest opportunity. Third, the contents of Dr McNulty's psychological report showed that the appellant suffered severe symptoms of post-traumatic stress disorder. Fourth, the appellant had been trafficked into the United Kingdom and had been subjected to similar degrading treatment herself. Fifth, the sentencing judge in the Sheffield Crown court had accepted the following important matters with regard to Ms Kizlaite's case:(i) that she had given a truthful account to the jury, despite her defence of duress being rejected;(ii) that she had herself been the victim of violent degradation in the same way as the victims;(iii) that she had been brutalised and, as a result, now suffered from post-traumatic stress disorder;(iv) that she had offered to plead guilty to the counts of the indictment of which she was eventually convicted, having always maintained a not guilty plea in relation to count 7 (causing sexual activity without consent, namely assisting Axhami in his rape of V), of which particular count she was eventually acquitted by the jury;(v) the evidence of V herself, given at the trial about the applicant's situation and behaviour, which was in a number of respects favourable to the applicant, as follows: (a) that the appellant had made phone calls to try and help V to return to Lithuania; (b) V said that she regarded the appellant as a friend because of the way the appellant behaved towards her generally; (c) V gave details of two episodes of violence to which Ms Kizlaite had been subjected by the others; (d) that, during the rape committed by Axhami, Ms Kizlaite had tried to intervene to prevent it but had been told to keep out of it by Axhami; (e) on another occasion, the appellant had been treated so violently that V volunteered herself to have sex with the client that the appellant was being required to have sex with by Beqirat; (f) that the appellant also had to pay all the money she earned from prostitution to the other two men and (g) V said that she could not understand why the appellant did not run away with her, bearing in mind her suffering and that, whilst she was trying to escape, the appellant kept saying that she would be killed by her co-accused if V succeeded in running away. Sixth, Ms Denton referred to the fact that the appellant had cooperated with the South Yorkshire Police and the Metropolitan Police to assist in investigations into this sort of activity. Seventh, the appellant had not herself made any financial gain from her criminal conduct. Eighth, the appellant was the product of a disturbed and sad childhood: she had been born in prison, her mother was an alcoholic and her father had committed suicide when she was only seven years old. She had been raised predominantly away from her siblings by her grandmother, in very poor financial circumstances.[17]We readily accept that all these matters, which we have sought to summarise as shortly as possible, do amount to a formidable body of mitigation in the case of Ms Kizlaite. However, it was quite clear from the careful sentencing remarks of both judges that each judge was fully aware of all these important mitigating features in her case. It is also clear from the sentencing remarks that the judge in each case sought to take those mitigating circumstances fully into account. Nevertheless it was Ms Denton's submission that the total sentence was too high.[18]In the case of the appellant Axhami, Mr Pimm made a similar submission with regard to the totality of the sentence. He submitted that the total sentence was too high, having regard to all the circumstances of the case. In the course of his carefully presented submissions, Mr Pimm made the following points. He stressed that this appellant had not actually been involved in the recruiting of girls. He referred to the fact that the appellant had been partly instrumental in sending an underage girl back to Lithuania rather than have her involved in prostitution after she had arrived in this country. Mr Pimm emphasised that the appellant Axhami is still only aged 19. He was, Mr Pimm submitted, induced or persuaded to join in these activities of sexual exploitation by his co-defendants. Mr Pimm stressed that Axhami had made little or no profit out of his activities, which in any event had only been for a relatively short period of time. Drawing attention to the case of R v Maka, decided by a different constitution of this court on 16th November 2005, Mr Pimm suggested that for this order of criminality an appropriate total sentence would have been in the region of 15 years and that 21 years in total was far too long.[19]We have considered these submissions on behalf of both appellants with considerable anxiety and care. We accept that, in each case, the total sentence was severe but we have come to the conclusion that, in the circumstances of this case, the sentences passed were fully justified. As Rose LJ, Vice President, observed when giving the judgment of the court in the case of Maka:
"The intention of the legislature in introducing the offence of trafficking for sexual exploitation by the Sexual Offences Act 2003, was plainly to embrace a wide variety of different forms of conduct, identifiable as trafficking, for sexual exploitation ... The legislation contemplates that trafficking may be for the purposes of the whole range of sexual offences from rape downwards."
Then at paragraph 13:
"In our judgment, the total sentence which the judge passed was a severe one. It was appropriately severe, because deterrence of those in Lithuania, or other Eastern European countries, or, indeed, in any other part of Europe, as well of to those in this country, who take part in activities of this kind, is a highly material consideration."
[20]We echo and adopt those observations. The many aggravating features in this case have been identified in our recital of the facts. This was a case involving callous, systematic and brutal degradation and sexual exploitation of the victims. In our judgment, whilst this case may not be of the most serious of its type that is conceivable, it comes remarkably close to it. The judge in the first case was quite right to describe the appellants as being sexual slave traders. In our view, it was entirely appropriate to pass sentences of this degree of severity in order to mark the gravity of the offences and as a clear deterrent to those who take part in this abhorrent form of criminal activity.[21]For all those reasons, therefore, these appeals against sentence are dismissed.