Shi & Anor, R v

Sentencing for keeping a brothel must begin with the applicable guideline category, but must reflect the individual facts and mitigation. A case close to a higher-profit category may justify a sentence below that category’s starting point where the offending was short-lived and the offenders have pleaded guilty, have previous good character and are serving their first custodial sentences.

A recommendation for deportation is discretionary. The question is whether the offender’s continued presence would be detrimental to the country or community, assessed principally by expected future behaviour in light of the offending, record and other relevant circumstances. Previous good character does not prevent a recommendation for serious, deliberate commercial offending.

Shi and Yang pleaded guilty at York Crown Court to keeping a brothel used for prostitution and possessing criminal property. They had operated a brothel in York for several months. Shi was the principal organiser. Yang had a lesser role, but assisted with the lease, reception work, prostitution and banking takings.

On 19 June 2008, the judge imposed concurrent terms of 21 months on Shi and 15 months on Yang, and recommended both for deportation. They appealed on the grounds that the sentences were manifestly excessive and that the recommendations were wrong in principle.

The central issues were the proper application of the sentencing guidelines and whether the circumstances justified recommendations for deportation.

1. The appeals were allowed in part. The custodial sentences were manifestly too high, but the recommendations for deportation were properly made and remained in force.
2. The applicable sentencing guidelines placed a brothel keeper making substantial profits of about £5,000 or more in the highest category, with a two-year custodial starting point. Shi fell within that category, although his case was close to the boundary with the second category. Yang fell within the second category as a person involved in management, for whom the starting point was 12 months.
3. The guideline starting points required adjustment for the facts. The court gave weight to the guilty pleas, the short duration of the enterprise, previous good character and the fact that this was each appellant’s first imprisonment. It substituted concurrent sentences of 16 months for Shi and 10 months for Yang. Their respective periods on remand were to count towards those sentences. The comparative sentence in Veio [2008] 2 Cr.App.R(S) 61 supported the conclusion that the original terms were excessive.
4. A deportation recommendation depends on whether the offender’s continued presence is detrimental to the country or community. It is discretionary and forward-looking. The court must consider the likely future behaviour of the offender, including the offence, previous record and other relevant circumstances. Under Nazari 71 Cr.App.R 87, previous good character does not make a recommendation wrong in principle where the offending is serious and deliberate.
5. These offences formed a deliberate commercial enterprise which encouraged and profited from illegal immigration. Shi lacked insight into his wrongdoing, and Yang’s inability to work lawfully was relevant to her risk of reoffending. The sentencing reduction did not show that the trial judge had erred in recommending deportation. Whether either recommendation would be acted upon was for the Secretary of State.

• Court of Appeal (Criminal Division): In [2008] EWCA Crim 1930, the court allowed the sentence appeals to the extent of substituting 16 months’ imprisonment for Shi and 10 months’ imprisonment for Yang. It upheld the recommendations for deportation.
• York Crown Court: The appellants pleaded guilty to keeping a brothel used for prostitution and possessing criminal property. On 19 June 2008, Shi received concurrent sentences of 21 months and Yang concurrent sentences of 15 months; the judge recommended both for deportation.