Pacan & Ors, R. v [2009] EWCA Crim 2436

[2009] EWCA Crim 2436

Case No. 2008/06441/D1, 2008/06444/D1, 2008/06837/D1, 2008/00252/D1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 16 October 2009

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE MAURICE KAY

MR JUSTICE SWEENEY

and

MRS JUSTICE SLADE DBE

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R E G I N A

- v -

ROMAN PACAN

ALI ARSLAN

EDWARD FACUNA

MARTIN DOCI

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Mr J Winship appeared on behalf of the Appellant Roman Pacan

Mr S Robinson appeared on behalf of the Appellant Ali Arslan

Mr P Wakerley appeared on behalf of the Appellant Edward Facuna

Mrs T Ossack appeared on behalf the Appellant Martin Doci

Miss A Morgan appeared on behalf of the Crown

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J U D G M E N T

Between

Pacan & OrsDefendant

RCrown

[1]The appellants are Roman Pacan (aged 39), Edward Facuna (aged 55), Martin Doci (aged 30), and Ali Arslan (aged 44). On 3 November 2008, after a trial in the Crown Court at Southwark, they were convicted of various offences for which they were sentenced on the following day. The offences arose out of the sexual exploitation of two young women who were forced to work as prostitutes. Pacan was convicted of trafficking a girl called Martina into the United Kingdom for sexual exploitation. He was sentenced to eleven years' imprisonment. Facuna was convicted of the same offence and received the same sentence. Doci was convicted of trafficking Martina within the United Kingdom for sexual exploitation. He, too, received a sentence of eleven years' imprisonment. Arslan had pleaded guilty to two offences of keeping a brothel for prostitution, for each of which he received sentences of four years' imprisonment. He was convicted by the jury of three other offences as follows: controlling a young woman called Raza as a prostitute for gain, for which he received five years' imprisonment; trafficking Martina within the United Kingdom for sexual exploitation, for which he received a consecutive sentence of nine years' imprisonment; and controlling Martina as a child prostitute, for which he received a concurrent term of five years' imprisonment. The total sentence in his case was therefore one of fourteen years' imprisonment. In relation to all appellants appropriate orders were made that time spent on remand should count towards sentence.

[2]Two other men were convicted by the jury. Mesut Arslan (who is the nephew of Ali Arslan) was convicted of controlling a child prostitute and of keeping a brothel. He received a total sentence of 30 months' imprisonment. Valmir Gjejta was convicted of controlling prostitution and was sentenced to three years' imprisonment.

[3]The four appellants now appeal against their sentences by leave of the single judge, who observed that the grounds of appeal were put in the form of an inappropriate departure from guidelines promulgated by the Sentencing Guidelines Council. It was for that reason that he gave leave.

[4]The facts of the case are extremely serious. Of the two young women in question, the first to come to this country was Raza. Only Ali Arslan was convicted of offences in relation to her. She was from Lithuania and aged 22 years when she came here in early 2005. Her travel had been facilitated by a Lithuanian man who proceeded to take her passport from her. In London she was met by a number of men who sold her to some Albanian men. They forced her to work as a prostitute to pay back the money that had been spent on her travel. Half of her earnings were to go to Arslan. She was warned that if she escaped she would be found. At the time Arslan was running a brothel in East London. It was there that Raza was taken three or four days after her arrival in this country. There were ten other women, of different nationalities, working as prostitutes in the brothel. Raza was forced to work five days a week. She was subsequently bought by another Albanian man but continued to work from the brothel run by Arslan. On 24 April 2005 she managed to escape and made her way to a police station.

[5]The case for the prosecution against Arslan thus far was that he had controlled prostitutes from the brothel in East London and that he had known that Raza had been trafficked into the United Kingdom to work as a prostitute in his brothel.

[6]A point came when Arslan ceased to carry out his activities from the brothel in East London. He set up another brothel in Luton. It was to that brothel that Martina was eventually taken and forced to work as a prostitute. She was only 16 years of age. She had been trafficked into the United Kingdom by Pacan and Facuna. They had collected her by car from her home town in Slovakia in September 2006. There was another young woman named Zofia in the car, but she did not found the basis of any of the counts on the indictment. Martina was told that she would work in a public house in Peterborough. After she had been in this country for about a week, she was sold to an Albanian man known as Claude, who had an accomplice called Kevin. They forced her to work as a prostitute. She was threatened by Claude about going to the police and she was regularly beaten and raped. Eventually she was taken to Arslan's brothel, where ten or fifteen other girls worked. She was taken there by Doci. He had been present on the occasion when Claude and Kevin had bought Martina. He was also present when Martina was taken into the brothel in Luton. For the first two weeks of her stay in that brothel she was controlled by Doci; but after that he sold her to Ali Arslan. Throughout that period she stayed in the brothel because she had nowhere to go.

[7]Although Zofia (the other girl who had travelled from Slovakia) did not feature at the brothel, she was present on the occasion when Martina was sold to Claude at a car park in Peterborough. Doci was also present, and it was he who drove her away afterwards.

[8]Mesut Arslan worked in his uncle's brothel in Luton. He was convicted of the offences to which we have referred. In due course, in passing sentence upon him, the judge observed that he was essentially the instrument of his uncle and bore less responsibility for what had taken place than did any of the other defendants.

[9]Pacan had previous convictions in the Czech Republic, including one in 1997 for persistently soliciting a woman (or women) for prostitution. The other appellants either had no previous convictions or no relevant convictions.

[10]When the judge came to pass sentence he began by saying that he had considered the definitive guidelines for these offences published by the Sentencing Guidelines Council. It is plain from both his early and indeed later remarks in the course of passing sentence that he was concerned that the sentences he was about to pass might be seen as stepping outside the guidelines. He said that there were particular features in respect of these offences which justified such a departure. He made a number of general observations about these offences which he described as "despicable" and "not to be tolerated in a civilised society". He described the several defendants as having each played a role in a degrading activity that produces untold misery. He added:

"Human trafficking where it exists exploits the impoverished, the young and the socially disadvantaged."

At a later point he said: 11. "The effect of what you collectively did in relation to Martina ...., and that to which you participated in relation to Raza ...., Ali Arslan, was to leave these two young women devastated, humiliated, violated, unable to trust anyone, and turning at times to contemplating self-harm because of all that had happened to them." At a number of points the judge referred specifically to the age and vulnerability of Martina.

[11]The judge dealt individually with each of the appellants. He dealt with Pacan and Facuna together, having come to the conclusion that he should draw no distinction between them for sentencing purposes. No point is taken about that on these appeals. Of Pacan and Facuna he said:

"Neither of you get credit for a plea of guilty. The aggravating features in your case are obvious. This child was tricked and exploited by you and you knew full well what would happen to her, as indeed did happen to her when you handed her over to Claude. You are not much .... removed in terms of responsibility from Claude or Kevin, were they to be in the dock standing beside you."

The judge repeatedly referred to their involvement at an early stage and to their awareness of what was going on.

[12]Turning to Doci, the judge said that he saw little to distinguish Doci from Pacan and Facuna. He added:

".... you are just slightly further down the line than an inevitable chain of consequence as far as Martina was concerned. Although in your case you not only trafficked her but for a while were involved in controlling her activities as a prostitute. In your case you were clearly involved at an early stage in what was happening to Martina; you were at that meeting in the car park and you, I am quite sure, were aware of what was going on. .... in due course when you met up again with Claude and Kevin in Luton, I am quite sure you will have known what had been happening to Martina in the meantime and why it was with confidence you would be able to take her to Mellows [the brothel] and to hand her over there to Ali Arslan for her there to work as a prostitute. You were party to this dreadful chain of events which involved her terrible exploitation. You are as cynical, as callous and contemptible as the rest of those involved in her trafficking. .... you like the others have shown no remorse."

[13]Finally, the judge dealt separately with Ali Arslan's involvement in relation to Raza and in relation to Martina. As regards Raza, he said:

".... you knew full well that Raza had been trafficked. I am quite sure that you knew that she was being coerced into working at your brothel where you were prepared to take her on as one of the many prostitutes you were there controlling."

A little later he said: 15. "It is said in mitigation that you did not coerce or force anyone working in either of the brothels with which this case and you are concerned, but the fact in my judgment is that others had already done for you that work. Those with whom you were willingly doing business had done and were continuing to do the coercion and forcing someone such as Raza to work in an establishment such as yours, you paying half of that which Raza earned from the activity that she was being made to do, and you keeping the rest of that money for yourself. You stand in my judgment as far as Raza is concerned not much lower in terms of responsibility for what happened to her, beyond those that actually trafficked her. They trafficked her knowing that you would take her on, as you did, until she managed to escape." Of events in Luton, the judge said: 16. "You then .... set up Mellows quite purposefully as a brothel, and word no doubt went around again to those trafficking women as to where Ali Arslan was, and where men who would engage in the trafficking of women could take those women. It seems to me no coincidence that those who were involved in trafficking Martina .... had connections to Mellows, and it was to Mellows that she was brought." 17. "It is said there was no coercion; that there was nothing expressed or opened in that respect, I accept, but the atmosphere of expectation I am sure was perfectly clear to Martina, who I am sure, and have no doubt, was in terrible fear of what would happen if she did not co-operate; then barely able to speak English in a strange country with no one to turn to, no one to trust, and indeed at that stage, in my judgment, with no idea where she actually was. 18. What happened to [her] is a terrible story of betrayal ...." A little later he said: 19. "You were not directly cruel, you did not directly coerce, but as I have said, the expectation was clear that if she did not co-operate, an expectation set upon her already by others, I have little doubt as to what probably would have happened. .... 20. .... 21. My conclusion is that no compassion exists on your part. You are a callous man and your pretence at compassion I treat as mere humbug. 22. .... 23. Each of [the two brothels] were sizeable operations; 15 to 17 girls working a day, most days of the year at Mellows making you quite obviously tidy profits to fund, on the limited evidence in the trial, a smart car, living in London and trips to nightclubs. 24. It is .... that the destination for Raza and for Martina, both tricked and trafficked into prostitution, was to establishments that you controlled." When he passed sentence, the judge stated that he had reduced the sentence for the trafficking offence to take into account totality.

[14]We turn to the grounds of appeal. We begin with the point sought to be made about the Sentencing Guidelines Council's definitive guidelines. It is well-known that, by section 172 of the Criminal Justice Act 2003, in sentencing an offender every court must have regard to any guidelines which are relevant to the offender's case. "Guidelines" there means sentencing guidelines issued by the Council under section 170 as definitive guidelines. The definitive guidelines on the Sexual Offences Act 2003 were published in April 2007. So far as trafficking for sexual exploitation is concerned, they cover the offences under sections 57, 58 and 59 of the Sexual Offences Act. It is pertinent to observe that in prescribing guidelines, they draw no distinction between trafficking into, trafficking within, and trafficking out of the United Kingdom for sexual exploitation. The maximum penalty for all these offences is one of fourteen years. In a box set out on page 131, the guidelines identify the more serious of two forms of trafficking as trafficking with an involvement at any level, in any stage of the trafficking operation "where the victim was coerced". The starting point is then set as six years, with a sentencing range from four to nine years. A specific cross-reference is made to cases where the victim is under 13 years of age, but, more generally, a list of thirteen aggravating and three mitigating factors (referred to as "additional aggravating and mitigating factors") are there set out. They include, as aggravating features, deception and the use of force, threats of force or other forms of coercion. In the text preceding those stated guidelines, there is an uncontroversial description of the seriousness of this type of offence. The following two sub-paragraphs are relevant:

"4. 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. .... 8. The starting point for sentencing for 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."

[15]When the judge passed sentence, he commented that he had also had regard to decisions of this court from the period prior to the promulgation of the definitive guidelines. He found them difficult to reconcile as between themselves. We are not entirely surprised. Suffice it to say that the authorities in question were not judicial guideline cases, but cases on their individual facts.

[16]The judge was correct to consider and to have regard to the guidelines. We understand why he felt uncomfortable about his conclusion when set against the Council's guidelines. As we see it, there is a degree of ambiguity in the way the guidelines are set out. Thus, for example, the bracket for which six years' custody is the prescribed starting point assumes coercion. However, coercion then appears as a potential additional aggravating factor, and indeed appears in paragraph 8 as one of a number of factors, including vulnerability and, by implication, age of victims, which "should move sentences towards the maximum 14 years". Age is not referred to in the specification of a starting point of six years. Nor is it mentioned as an additional aggravating factor in the table immediately below. But it is referred to, and must have been considered relevant, on the page of text preceding it. There is similar ambiguity as to vulnerability. For these reasons we understand why the judge felt that he might have been going outside the guidelines, although he was satisfied that he was justified in so doing.

[17]In this case the judge took account of the age and vulnerability of the victims which, when coupled with the other factors including coercion, significantly aggravated the case beyond the starting point and indeed above the range set out in the guideline. It cannot be suggested that sentences above nine years can never be passed. After all, the Sentencing Guidelines Council does not purport to create a new and reduced maximum for the offence with which it is dealing. In our view, the approach of the judge was entirely consistent with paragraph 8 of the text. We have come to the conclusion that he did not act outwith the guidelines. He merely struggled with the element of ambiguity which we believe exists within them and produced a result which we find to be susceptible to accommodation within them. In our judgment his approach in that regard cannot be faulted.

[18]We turn to the individual appellants, save that we deal with Pacan and Facuna together because the judge did and their respective counsel do not take exception to that (at least as a starting point). It is submitted on their behalf that they treated Martina in a relatively kindly way. Of course they did. It was their task to win her confidence after they had deceived her as to her ultimate fate in this country. They brought a 16 year old girl here in order to plunge her into sex slavery. They knew what would befall her at Claude's hands. She was brutalised into submission. That is the basis upon which the judge approached the case. He had heard and seen the evidence. We respect the conclusion to which he came. Given that conclusion, with which we agree, in our judgment the sentences of eleven years' imprisonment cannot be said to be manifestly excessive. The appeals of Pacan and Facuna are therefore dismissed.

[19]The same point arises in the case of Doci about the Sentencing Guidelines Council. The submissions made today on his behalf in our view consistently understate his involvement. Although the offence of which he was convicted was trafficking within and not into the United Kingdom, we have already observed that the maximum sentence for both those offences is the same, and indeed the Sentencing Guidelines Council does not distinguish between them. Doci was deeply involved at the point where Martina passed from Pacan and Facuna to Claude, and when later she moved into Mellows. They knew what had happened to her in the meantime. In Mellows Doci initially controlled her as a child prostitute before selling her on. Again, we view his case with the utmost seriousness. We respect the view formed by the trial judge as to his role and his relationship with the other defendants and as to his position in the chain relative to them. In those circumstances we conclude that in his case the sentence of eleven years' imprisonment was not manifestly excessive; nor was the concurrent sentence for controlling a child prostitute manifestly excessive. A further point is sought to be made on his behalf, namely that it is suggested that there is disparity between his sentence and that passed upon Mesut Arslan. We reject that submission. The judge came to a clear view about their respective responsibility and was convinced that Mesut Arslan was acting essentially as the instrument of his uncle.

[20]Finally, we return to Ali Arslan. His conviction on count 5 (trafficking Martina within the United Kingdom for sexual exploitation) means that he was involved in the trafficking of Martina, that is to say in arranging and facilitating her travel within the United Kingdom, intending to cause her to become a prostitute. This is not simply a case of a brothel keeper upon whose doorstep a potential prostitute unexpectedly arrived. The judge's assessment was that Ali Arslan was a ready and willing end purchaser of young girls whom he did not personally coerce, but in respect of whom he knowingly took the benefit of the coercion to which they had already been subjected -- the cynical and ruthless brutalization that had driven them into submission.

[21]Alone of the appellants, Ali Arslan's offences cover both young women. We can see no basis for disagreeing with the judge's conclusions about his role. We reject in terms the submissions of Mr Robinson that this is "just an average trafficking case". In Ali Arslan's case there was no error of principle in the judge's approach to sentencing. The issue therefore is whether a total of fourteen years' imprisonment is manifestly excessive. We are satisfied that it is not. It might have been aggregated in different ways, but we see no reason to interfere with any of any of the individual sentences.

[22]Accordingly, all these appeals against sentence are dismissed. ______________________________________