Attorney General's Reference Nos. 129 & 132 of 2006

Sentence for trafficking for sexual exploitation depends on the circumstances of recruitment, transport and subsequent control. Large-scale commercial activity, planning, profit, coercion, deception and restrictions on liberty may aggravate the offence.

Assistance to evade immigration controls may aggravate trafficking, but it is not necessarily comparable to commercial people-smuggling where those brought in are likely to remain. Where adult prostitutes knowingly travelled and worked without deception or coercion, substantial concurrent sentences were excessive. A sentence may be lenient without being unduly lenient for the purpose of an Attorney General’s reference.

The court heard together two Attorney General’s references under section 36 of the Criminal Justice Act 1988 and applications concerning sentences for trafficking women into the United Kingdom for sexual exploitation and controlling prostitution for gain.

At Kingston Crown Court, Elisabeth Delgado-Fernandez and Godwin Zammit were convicted of conspiracies to traffic women, control prostitution for gain and facilitate breaches of immigration law. Their operation recruited adult women who knew they would work as prostitutes. At Southwark Crown Court, Thanh Hue Thi pleaded guilty to trafficking Malaysian women and controlling prostitution for gain in a large and profitable brothel enterprise. The central issues were whether the respective sentences were manifestly excessive or unduly lenient.

1. The court allowed the sentence appeals of Godwin Zammit and Elisabeth Delgado-Fernandez, and dismissed the Attorney General’s reference concerning them. It held that the immigration offending was an aggravating part of the trafficking enterprise, but was not comparable to the commercial smuggling considered in R v Van Binh Le and Rudi Heinrich Stark [1999] 1 Cr App R(S) 422. The women entered on false tourist explanations but generally returned home, and there was no long-term increase in illegal immigration.

2. Under section 57 of the Sexual Offences Act 2003, trafficking encompasses conduct of differing gravity. Although these operations were organised and profitable, the women were adults who knew they would work as prostitutes. There was no deception or coercion in their recruitment or work. The sentences of seven years for Zammit and five years for Delgado-Fernandez were therefore manifestly excessive. Zammit’s concurrent sentences on counts 1 and 3 were reduced to five years. Delgado-Fernandez’s were reduced to four years, reflecting her lesser profit and her being under Zammit’s control.

3. The court dismissed the Attorney General’s reference concerning Thi. It upheld the finding of one proved case of coercion, but found no proper basis for treating there as more than one. Comparing the overall offending with R v Roci and another [2006] 2 Cr App R(S) 15, it identified ten years as the appropriate starting point before credit for Thi’s guilty plea and personal mitigation. In view of his wife’s grave illness and the principle of double jeopardy, the sentence was lenient but not unduly lenient. It was left unchanged.

• Court of Appeal (Criminal Division) — In [2007] EWCA Crim 762, the court allowed the sentence appeals of Zammit and Delgado-Fernandez, dismissed the Attorney General’s references under section 36 of the Criminal Justice Act 1988, and left Thi’s sentence undisturbed.
• Crown Court at Kingston — On 26 October 2006, Delgado-Fernandez and Zammit received concurrent sentences for conspiracies to traffic for sexual exploitation, control prostitution for gain and facilitate breaches of immigration law.
• Crown Court at Southwark — On 3 November 2006, Thi was sentenced after guilty pleas to conspiracy to traffic for sexual exploitation and controlling prostitution for gain.