Neutral Citation No. [2012] NICC 26	Ref:     	STE8525	
			
Judgment: approved by the Court for handing down	Delivered:	06/07/12	
(subject to editorial corrections)*			

IN THE CROWN COURT IN NORTHERN IRELAND
 ________

BELFAST CROWN COURT
 ________

THE QUEEN

-v-

RONG CHEN, SIMON DEMPSEY and JASON OWEN HINTON
 _______

STEPHENS J

Reporting restrictions

[1]	I start by reminding that there is an automatic reporting restriction in this case.  No matter relating to the victims shall during their lifetimes be included in any publication if it is likely to lead members of the public to identify any of them.  

[2]	In these sentencing remarks I will refer to those victims whose names are presently known by initials.  I make it clear that those initials have no association with their real names.  

Pleas of guilty

[3]	Rong Chen, on 30th April 2012 and after the jury had been sworn on 26 April 2012, you pleaded guilty to:-

(a)	Controlling prostitution for gain between 1st January 2008 and 2nd February 2009 contrary to section 53(1) of the Sexual Offences Act 2003.

(b)	Controlling prostitution for gain between 1st February 2009 and 29th May 2009 contrary to Article 63(1) of the Sexual Offences (Northern Ireland) Order 2008.

(c)	Trafficking within the United Kingdom for the purposes of sexual exploitation contrary to section 58(1) of the Sexual Offences Act 2003.

(d)	Entering into an arrangement to control criminal property contrary to section 328(1) of the Proceeds of Crime Act 2002.

On 11th March 2011 you had been arraigned in relation to the counts to which you eventually pleaded guilty. The Bill of Indictment was subsequently amended on 14th April 2011 and 17th April 2012.  These amendments did not affect the substance of the charges against you.  Six other counts were left on the books not to be proceeded with without the leave of this court or the Court of Appeal.  It is accepted by the prosecution that during the course of police interviews you made significant admissions.

[4]	Simon Dempsey on 26th April 2012 and immediately prior to the jury being sworn you pleaded guilty to:-

(a)	Aiding and abetting the control of prostitution for gain between 1st January 2008 and 2nd February 2009 contrary to section 53(1) of the Sexual Offences Act 2003.

(b)	Aiding and abetting the control of prostitution for gain between 1st February 2009 and 29th May 2009 contrary to Article 63(1) of the Sexual Offences (Northern Ireland) Order 2008.

(c)	Three counts of entering into an arrangement to control criminal property contrary to section 328(1) of the Proceeds of Crime Act 2002.

At your arraignment on 11th March 2011 you had pleaded not guilty to all counts.  At that stage you were also charged with the offence of trafficking within United Kingdom for the purposes of sexual exploitation contrary to section 58(1) of the Sexual Offences Act 2003.  After a decision had been made by the prosecution not to proceed with the charge of trafficking you entered these guilty pleas.  The count in relation to trafficking was left on the books not to be proceeded without the leave of this court or the Court of Appeal.  It is accepted by the prosecution that by the end of the police interviews you had made substantial and in effect complete admissions to the offences to which you eventually pleaded but maintained your innocence in relation to the charge of trafficking.  

[5]	Jason Owen Hinton on 30th April 2012 and after the jury had been sworn you pleaded guilty to:-

(a)	Aiding and abetting the control of prostitution for gain between 1st January 2008 and 2nd February 2009 contrary to section 53(1) of the Sexual Offences Act 2003.

(b)	Aiding and abetting the control of prostitution for gain between 1st February 2009 and 29th May 2009 contrary to Article 63(1) of the Sexual Offences (Northern Ireland) Order 2008.

At your arraignment on 11th March 2011 you had pleaded not guilty.  Prior to you entering your plea of guilty the prosecution had agreed a basis of plea.  I will set that out later in these sentencing remarks.  It is accepted by the prosecution that by the end of the police interviews you had made complete admissions to the offences to which you eventually pleaded guilty.

Two counts in relation to controlling prostitution for gain

[6]	I should explain the reason why there are two counts in relation to the offences of controlling prostitution for gain and aiding and abetting Rong Chen to control prostitution for gain. The reason is that the legislation governing the offences changed over the period that the offending behaviour occurred. Section 53 of the Sexual Offences Act 2003 was replaced in respect of the period after 2nd February 2009 by Article 63 of the Sexual Offences (Northern Ireland) Order 2008.  Accordingly you each face two counts, one under section 53 of the Sexual Offences Act 2003 governing one period and the other under Article 63 of the Sexual Offences (Northern Ireland) Order 2008 governing the other period.  The offence of controlling prostitution for gain under Article 63(1) is in identical terms to section 53(1).  Under both a person commits the offence of controlling prostitution for gain if— (a) he intentionally controls any of the activities of another person relating to that person’s prostitution in any part of the world, and (b) he does so for or in the expectation of gain for himself or a third person.  Under both a person guilty of such an offence is liable on conviction on indictment, to imprisonment for a term not exceeding 7 years.
[7]	There is however a further difference between the two counts.  In relation to the first count and the first period it was not possible to identify the prostitutes whom Rong Chen controlled.  In relation to the second count and the second period it also was not possible to identify all the prostitutes controlled by Rong Chen but two have been identified and I refer to them by the initials D and M.  

Factual background in relation to controlling prostitution for gain

[8]	The factual background in so far as it relates to controlling prostitution for gain concerns the management of a total of at least five brothels in Northern Ireland by you Rong Chen. That control was aided and abetted by you Simon Dempsey and you Jason Owen Hinton.  Three of those brothels were in Belfast and at the following addresses, namely 

(a)	 11 Tates Avenue, Belfast, 

(b)	 615 Lisburn Road, Belfast and 

(c)	 1 Lanyon Manor, 2 Eglantine Place, Belfast.  

One brothel was in Londonderry at 208 Kular Court, Londonderry.  The fifth brothel was in Newry at 16 Mary Street, Newry.   The defence accountants report obtained for the purposes of these proceedings refers to a total of eight brothels.  

[9]   The period during which you, Rong Chen, controlled prostitution for gain was January 2008 to 29 May 2009.  You Jason Owen Hinton aided and abetted over the same period.  You Simon Dempsey aided and abetted over the period January 2009 to May 2009.

[10]     This was a large scale business operation involving renting the properties to which I have referred and arranging for and rotating prostitutes between the various premises.  You, Rong Chen, provided brothel housekeepers in each brothel who undertook various services such as cooking, cleaning, receiving instructions from you by telephone as to appointments, receiving payments from clients and opening the door.  It has not been possible to identify any of the prostitutes who worked in these brothels except two Chinese nationals, D and M. It has also not been possible to calculate the total number of prostitutes as they were rotated by you around the brothels in Northern Ireland on a regular basis and moved to and from England.  The business enterprise involved thinly veiled advertisements being placed in newspapers seeking clients for these establishments.  The advertisements would contain mobile phone numbers and when the customers would call that number arrangements would be made including fixing prices.  Thereafter you would inform the brothel housekeepers of those arrangements.  Each brothel had at least one prostitute working, but often there were two.  The opening hours were from 10 am to midnight, seven days per week.  Customers normally paid £70 for 20 to 30 minutes.  You would visit the premises and collect the money.  You maintained the properties and provided food for the women working in each brothel.

[11]	  The extent of the business operation can also be gathered from the money generated over the period January 2008 to 29 May 2009.  It can be seen from the diaries kept by you Rong Chen that the amount brought in over that period was £282,107.  The defence accountancy report arrived at a figure only marginally less of £279,682.  In round terms the amount brought in over the period of offending was £280,000.  You Rong Chen extracted that amount and in the process you regarded as inconsequential the emotional and physical abuse of vulnerable individuals.  In short you sexually exploited and degraded women as a commodity for financial gain irrespective of the impact on them, their lives, their personalities, and their hopes and aspirations.  

[12]	There was coercion involved in that you Rong Chen coerced four of the Chinese women who worked in these brothels.  Two as prostitutes, D and M.  Two as brothel housekeepers, H and T.  D is presently aged 45, H 56, M 47 and T 48.  Coercion is to be seen in the context that there is no evidence that any of them had been involved in prostitution prior to coming to Northern Ireland and there has been no suggestion on your behalf that any of them had been prostitutes.  There was also isolation of these women.  Their daily and only function was to be used so that you could gain financially.

[13]	As I have indicated the evidence of coercion and isolation comes from D, H, T and M.  D’s account is that when she arrived in Newry it became obvious that she would be required to work as a prostitute.  You Rong Chen said that she had no choice and she must do this job.  You said that your boyfriend was a member of a Triad gang and he was very powerful.  You said that she was now under their control.  You said that if the police came she must say that she worked there voluntarily.  You said that if she told the police that she was forced to work there then she would be in trouble.  You said that she would be watched so she could not go anywhere.  You used D’s status as an illegal immigrant as a method of controlling her.  She told you that she did not wish to work as a prostitute and that she wished to go back to England, but that you told her that she had no choice and must do this job.  That you also said that D was illegally present in Northern Ireland and could not go back to England. D was scared of you and of your boyfriend, and believed that if she did not do as she was told she would be in trouble. 

[14]     M’s account is that she was unwilling to work as a prostitute, and that she told you that she wished to “get her ferry ticket back” and “to go home”. She said that you Rong Chen told her that it was easy to let her go, and, if she ran away, you would murder her.  You also stated that she may not know how to go if she left and then she would die.  That you also stated that M would have to return the money which you had paid in respect of M. 

[15]     H’s account is that she was scared, and that you Rong Chen told her that she must stay because she did not have status so could not go anywhere. That the sister(s) of your husband in Birmingham were high ranking police officers.  That you Rong Chen had a boyfriend in Northern Ireland and that he was a member of a powerful triad gang.  She was told by you that she could only go out of the house in Newry in the morning and had to return by 10.00 a.m.  She was also told that if "we" went out and anything happened then it would be “our” fault.   H said that she believed in what you told her, and felt very intimidated and scared of you. 

[16]     T’s account is that she said to you Rong Chen that she did not want the job (in the brothel) and wished to return to England, but you said that she could not go back because if she got on the ferry the police would arrest her because of her visa, and at the same time your boyfriend was a police officer, and if she (T) went to any place she would be arrested.  T said that she could not manage to leave at that time because she had no money and was scared of being arrested.  T states that before she could leave the house in which she was required to work she had to ask you Rong Chen.  That she only went out at around 8.00 a.m. in the morning for a walk in the street because she was scared of being arrested.  She was isolated in the house for the rest of her time in Northern Ireland.  She was even isolated from women working as prostitutes for a number of reasons including the fact that you Rong Chen told her not to speak to them.  There were also language difficulties.  

[17]     The conditions inside the brothels were squalid and those were the conditions which you imposed on those whom you controlled.  

[18]	The position in which you, Rong Chen, placed H and D, exposed them to a frightening incident involving physical violence.  That incident lead to a sequence of events that fortuitously brought their ordeal and the ordeal of the other victims to an end.  The ordeal of the victims was not brought to an end by the actions of you Rong Chen or any of the offenders.  

[19]	The incident occurred on 17th May 2009.  Four men, some of whom had previously been customers at the brothel in Newry, forced their way into that brothel.  They grabbed H and pushed her onto a sofa and covered her head with a cushion.  They hit D and demanded money from her.  She gave them money and they took her mobile phone.  They also stole H’s mobile and then left.  Both H and D were petrified.  It is the sad fact that the only person to whom they could turn for help was you, Rong Chen, the very person who had used and abused them.  You were contacted.  Both H and D wished to leave Northern Ireland but were worried about their status as illegal immigrants and how they could effectively travel without being discovered.  On 18th May 2009 H and D left Newry and travelled to Belfast.  You Rong Chen arranged for you Simon Dempsey to take them to the Stena Line Sea Ferry Terminal in Belfast, the terminal for the ferry to Stranraer.  It appeared to Stena staff at the terminal that you Simon Dempsey wanted the females to travel to Stranraer that night.  Members of staff were aware that there were no onward travel connections from Stranraer at the time when the ferry would arrive and became concerned for the welfare of H and D who did not appear to have any luggage.  Police were in the terminal and the ferry staff informed police of their concern.  H and D were interviewed and they eventually told the police about the circumstances in which they came to Northern Ireland and about their activities here.  They also told about their dealings with you Rong Chen and you Simon Dempsey.  They identified to police various premises in Northern Ireland to which they had been taken in Belfast, Newry and Londonderry.  It was in this way that the aftermath of this violent incident lead to the discovery of the criminal activity involved in this case and to the ending of the ordeal of the victims.

[20]     A further aspect of the business operation controlled by you Rong Chen was a campaign of disruption of rival premises.

[21]     The principal accused in relation to controlling prostitution for gain is you Rong Chen.  

[22]     You Simon Dempsey assisted Rong Chen in a number of ways.  

(a)	You assisted in renting properties for the purposes of prostitution.   That included acting as a guarantor on properties leased for prostitution (Lisburn Road and Victoria Place) as well as providing a reference from a fictitious male in order to secure a tenancy of the Newry property. 

(b)	You drove Rong Chen around Northern Ireland, in connection with her activities of controlling prostitution. 

(c)	You brought provisions to the brothels, and did maintenance work. 

(d)	You were concerned with identifying rival brothels. 

(e)	You drove H and D to the ferry terminal.

(f)	You drove prostitutes between brothels.

(g)	You collected money from the brothels - money which was the proceeds of prostitution. 

(h)	You dealt with that criminal property, by arranging with Rong Chen to bank some of those proceeds. You made a lodgement on Rong Chen’s behalf in November 2008. The amount is unspecified.   On the 26 May 2009 you made two lodgements into the Credit Lucky account at Barclays. You lodged £1,050 in cash and £2,000 in cash.  On the same date you lodged smaller amounts of £220 and £110 into two different HSBC accounts. Previously on 19 May 2009 you had lodged £260 and £110 into two different HSBC accounts. Those lodgements were under the instruction of Rong Chen. The account details and amounts were communicated to you via text from Rong Chen’s phone.

[23]	You Jason Owen Hinton assisted Rong Chen in two ways.  

(a)	You arranged a large number of flights to Northern Ireland for her, in the knowledge that she was making those journeys for the purpose of her activities of controlling prostitution.   Rong Chen made over 20 trips to Belfast by plane resulting in over 20 return journeys being booked between January 2008 and May 2009. 

(b)	You took part in a campaign of the attempted disruption of rival premises - a campaign which you intended would assist Rong Chen in her activities of controlling prostitution.  The campaign included: calling numbers of rival brothel’s to ascertain their addresses; writing multiple letters to the residents around those brothels to raise concerns about prostitution and drug dealing; similar letters were sent to the management companies, letting agents and landlords of the rival brothels, and their identities appear to have been obtained from estate agents; contacting the police via email using a fictitious identity (Anne Bateman) to report prostitution and drug dealing in the rival brothels. 

[24]     The factual basis agreed by the prosecution and upon which you Jason Owen Hinton pleaded guilty was in the following terms

(a)	The defendant paid for his wife’s flights to Northern Ireland and sent disruption letters at her request, with the knowledge that she was involved in the management or keeping of brothels (albeit on behalf of another) in Northern Ireland.

(b)	The defendant had no knowledge of any threats, intimidation or coercion.

(c)	The defendant had a peripheral role and was never in Northern Ireland to assist with the enterprise.

(d)	The defendant was not actively engaged in the coercion or control of those engaged in prostitution.

I will sentence you on that factual basis.

Factual background in relation to trafficking for sexual exploitation

[25]	The factual background, in so far as it relates to trafficking for sexual exploitation, involves, D, H, T and M.  All of them are Chinese and had come to the United Kingdom either on visas which had expired or were illegal immigrants on arrival.  Accordingly none of them were legally entitled to remain in the United Kingdom.  Initially you, Rong Chen, reassured them that they could travel to Northern Ireland despite their lack of legal immigration status in the United Kingdom.  Once they were in Northern Ireland you used their illegal immigration status to control and coerce them.  You knew that as a result of their lack of proper immigration status that all of them were inhibited from contacting the authorities in the United Kingdom.  

[26]       The technique was for you Rong Chen to place advertisements in Chinese newspapers in England advertising jobs.  The individuals telephoned you from England in response to those advertisements and you offered them employment at £220 per week which given their circumstances was a very attractive offer.  D was offered employment to cook and clean in a massage parlour, M as a babysitter, H as a nanny in a massage parlour and T as a nanny looking after children.   Those offers of employment were deceptions both in relation to the amount that would be paid and also in relation to the type of work that they would undertake.  On the basis of those deceptions they were induced to travel to Northern Ireland and you arranged for their transport.  You accompanied D and H on their journey.  You met T on her arrival in Belfast and you met M in Londonderry she having been taken on her arrival in Belfast to Londonderry by a Chinese man.  It was your intention that when they arrived in Northern Ireland they would be coerced and threatened.  In addition for instance D was trafficked within Northern Ireland at a time when she was coerced.  You initially arranged for D to go to Newry and she spent one week in that brothel.  At the end of that week you rang D to go to work at the brothel at 615 Lisburn Road, Belfast.  She spent 2 weeks there working as a prostitute.  You then told her to go to the brothel in Londonderry where she also worked as a prostitute.  After one week in Londonderry you ordered her to go back to the Newry brothel.  She arrived in Newry on 17th May 2009.   

Factual background in relation to the control of criminal property

[27]     You Rong Chen were concerned with dealing with criminal property, being the proceeds, in cash, of prostitution, by arranging with Simon Dempsey that he would lodge some of that cash in banks on your behalf.

Sentencing Guidelines in respect of the offence of trafficking

[28]	The Sentencing Council for England and Wales has set out guidelines for trafficking offences in part 6D at pages 130 and 131 of the definitive guideline dated April 2007 of offences within the Sexual Offences Act 2003 (“the 2007 guidelines”).  His Honour Judge Burgess in R v. Matyas Pis [2012] NICC 14 based his sentence in that case on the 2007 guidelines.  I am only required to and do consider the application of the 2007 guidelines to the particular offences in this case. In this section of this judgment I consider the application of the 2007 guidelines to the offence of trafficking.

[29]     I start by emphasising the distinction between sentences and guidelines.  It may be that the sentences in Northern Ireland in relation to the offence of trafficking should be no different from the sentences imposed in England and Wales but that is a separate and distinct question from whether the guidelines used in England and Wales should be used in Northern Ireland.  I will address each of those questions in turn.

[30]     The courts in Northern Ireland, taking into account the particular needs in Northern Ireland, have in a number of cases imposed sentences which are greater than those imposed in England and Wales.  However no reason was advanced before me as to why the sentences in respect of the offence of trafficking should be different in Northern Ireland from England and Wales.  Geographically the only difference is a land border.  At present I cannot conceive of any geographical or societal reason why this offence should attract a different sentence in Northern Ireland than in England and Wales.  Accordingly in answer to the first question I consider that the sentences in Northern Ireland in relation to the offence of trafficking should be no different from the sentences imposed in England and Wales.

[31]     As a result and in carrying out this sentencing exercise I have considered a significant number of sentencing cases in England and Wales to determine the level of sentences imposed in respect of different degrees of offending.  Those cases include for instance AG’s Ref No. 6 of 2004 (Plakici) [2004] EWCA Crim 1275, R v Shaban Maka [2005] EWCA Crim 3365, R v Roci & Ismailaj [2005] EWCA Crim 3404, R v Besmir Ramaj [2006] EWCA Crim 448, R v Kizlaite & Axhami [2006] EWCA Crim 1492, R v Agron Demarku [2006] EWCA Crim 2049, AG’s Ref. Nos 129 & 132 (Delgado-Fernandez & Zammit) [2007] EWCA Crim 762, R v Atilla Makai [2007] EWCA Crim 1652, R v Pacan et al [2009] EWCA Crim 2436 and R v Atchara Nualpenyi [2010] EWCA Crim 692.  In the case of R v Martin Brusch and Dusan Hurvat [2012] 1 Cr. App. R. (S) 47 the Court of Appeal in England & Wales reduced a 10 year sentence for trafficking to 8 years.  The offenders in that case had previous convictions.  You Rong Chen have a clear record.  The degree of coercion in that case was greater than this case using as it did the victims drug dependency.  One of the victims was 19.  However there were 2 victims in that case.  Here there are 4.  Furthermore in this case there is in addition a large scale commercial operation in controlling prostitution for gain which was absent in that case.

[32]     The second question is whether the 2007 guidelines in relation to the offence of trafficking should be used in this jurisdiction.  There are a number of ambiguities in them.  Those ambiguities have been highlighted by the Court of Appeal in England and Wales in the case of R v Roman Pacan & others [2010] 2 Cr. App. R. (S) 2.  In that case Maurice Kay LJ stated that: 

“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 para.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.”

The presence of such ambiguities in the 2007 guidelines must be a factor to be taken into account in arriving at a decision as to whether to apply them in whole or in part in Northern Ireland.  

[33]     As a result of those ambiguities the major difficulty that I have encountered in my attempts to use the 2007 guidelines is the requirement to adopt a starting point.  The 6 year starting point applies in cases of coercion regardless of the degree and nature of the coercion involved.  I do not consider it appropriate that there should be no assessment of the degree of coercion before one increases a starting point by 4 years from 2 to 6 years custody.  The difficulties with the feature of coercion continue because under the 2007 guidelines it is potentially an additional aggravating feature.  Accordingly coercion is to be considered in two distinct stages without any definition as to the degree of coercion to be taken into account at each stage.  Furthermore coercion is ordinarily coercion of the vulnerable and therefore the question arises as to whether vulnerability has been taken into account in fixing the starting point but it is then thereafter another potential aggravating feature.  I consider it more appropriate to form one overall view on the facts of a particular case as to the degree of coercion involved and to take that factor along with all the other aggravating and mitigating factors into account in imposing an appropriate sentence within the overall sentencing range.  I do not adopt the 2007 guidelines in relation to the use of a starting point.

[34]	Another ambiguity in the 2007 guidelines is that it lists on page 131 as an aggravating feature “Large number of people trafficked”.  It gives no indication as to what is considered to be a large number. I consider that the sentencing exercise should focus on the facts of each case rather than focussing on what is meant by a large number which is a rather sterile debate.  It is repugnant to traffick one person.  There is a greater degree of repugnance and there is greater significance when 4 people are trafficked.  Trafficking 4 people is obviously not as significant as trafficking 10, 20 or 100 people.  I see no reason why the 2007 guidelines could not have identified this aggravating feature as “More than 1 person trafficked and if so the number of persons trafficked”.  

[35]     Another potential ambiguity in the 2007 guidelines is created by the lack of any reference to corruption.  The 2007 guidelines make it clear that coercion and the degree of coercion is an aggravating feature that is highly relevant to sentence.  I consider that an explanation for the absence of any reference to corruption is that ordinarily it is a consequence of coercion.  For example if a person is coerced to work as a prostitute then ordinarily that individual is corrupted.   By way of contrast there are cases where willing prostitutes are willingly trafficked.  In such cases there is no coercion and no corruption.  Accordingly I consider that ordinarily corruption should not be dealt with as a separate aggravating feature when coercion is present.  

[36]     I consider that the 2007 guidelines assists the sentencing exercise identifying aggravating and mitigating features and sentencing ranges.  I am informed by the various aggravating and mitigating features identified and I will seek to apply the sentencing ranges set out in the 2007 guidelines.  I do not consider it appropriate to apply a starting point given the ambiguities that exist.  

[37]	There is another aspect of the 2007 guidelines to which I should refer.  The maximum sentence for trafficking within the United Kingdom for sexual exploitation is 14 years yet the sentencing range in the 2007 guidelines is stated to be 4 – 9 years custody where the victim was coerced. The explanation as to why the sentencing range does not embrace the maximum sentence is that the range relates to sentencing for a first time offender.  In R v Martin Brusch and Dusan Hurvat [2012] 1 Cr. App. R. (S) 47 it was stated that that range applied to a single offence and to men of good character. In that case there was more than one offence there being two separate counts in relation to the two women trafficked and there being two separate counts in relation to trafficking each of them into and within the United Kingdom.  That is a total of four counts.  In this case there could have been four separate counts in relation to each of the four women.  I look at the substance and accordingly this is not a single offence case.  Furthermore it is made clear in the 8th paragraph on page 130 of the 2007 guidelines that aggravating factors such as participation in a large scale commercial enterprise involving a high degree of planning, organisational sophistication, financial or other gain, and the coercion and vulnerability of victims should move sentences towards the maximum of 14 years.  Accordingly while the table on page 131 suggests a top sentencing range of 4-9 years custody the 8th factor on page 130 contemplates sentences towards the maximum.  In short the 2007 guidelines do not purport to create a new and reduced maximum for the offence of trafficking.

[38]	A person commits the offence of Trafficking within the UK for sexual exploitation if he intentionally arranges or facilitates travel within the United Kingdom by another person (B) and either— 

(a)	he intends to do anything to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence, or 
(b) 	he believes that another person is likely to do something to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence.

In this case the relevant offence is controlling prostitution for gain.  However the legislation contemplates that trafficking can be for the purposes of a whole range of sexual offences of different gravity.  The offence of trafficking embraces a wide variety of different purposes.  I consider that the purpose of the creation of the trafficking offence is to enable the court to consider the criminal operation as a whole; that is both the offence and the relevant offence.  To commit the offence when the relevant offence involves for instance violence, coercion, isolation, squalid conditions, or a large scale commercial operation is more serious than when these features of the relevant offence are absent.  I consider that the court is enabled to take into account the relevant offence for which a person was trafficked together with the mitigating and aggravating features of the relevant offence when imposing an appropriate sentence in respect of the offence of trafficking.  That the court should do this if the defendant is charged with the offence of trafficking but not with the relevant offence.  That the court should also do so when the defendant is charged with both the offence of trafficking and the relevant offence if on the facts of that case the court considers it appropriate to impose concurrent sentences in respect of those offences.  

[39]	It was contended on behalf of you Rong Chen, that the aggravating features contained in the 2007 Guidelines in respect of the offence of trafficking should be restricted so that they do not include aggravating features of the relevant offence.  As I have indicated I reject that submission.  However I do accept that in sentencing for the offence of trafficking there should be an appreciation as to whether the aggravating feature relates to the relevant offence.  For instance in this case there was a large scale commercial operation in respect of controlling prostitution for gain but no large scale commercial operation in relation to trafficking.  That distinction should be recognised and reflected in the sentencing exercise.  It is for instance far more serious to have a large scale commercial operation in relation to trafficking than to have a large scale commercial operation in relation to controlling prostitution for gain.  Indeed it would be even more serious if both the offence and the relevant offence involved large scale commercial operations.  However on the facts of this case I do not accept that because the large scale commercial operation was purely in relation to the relevant offence that it should not be an aggravating feature of the offence of trafficking.  The fact remains that you, Rong Chen, trafficked four women as an adjunct to and to facilitate a large scale commercial operation of controlling prostitution for gain.  I will treat that as an aggravating feature of the offence of trafficking.

[40]	I will take another example of an aggravating feature and that is coercion.  It is submitted on your behalf that D, H, M and T were not subject to coercion at the point that they were trafficked from England to Northern Ireland but rather they were deceived.  That the coercion came later and that it related to the relevant offence of controlling prostitution for gain.  Factually I do not accept that contention because for instance D was trafficked in Northern Ireland at a time when she was coerced rather than deceived.  Even if it was factually correct that coercion related solely to the relevant offence I still consider that it would be an aggravating feature of the offence.  The fact would remain that you trafficked four women to facilitate their coercion to be prostitutes or brothel keepers.

[41]	On the facts of this case I will adopt the approach of taking into account the aggravating and mitigating features of controlling prostitution for gain in sentencing for the trafficking offence.  On that basis I will impose concurrent sentences see the guidance of the Court of Appeal in R v Samuel Robinson in which case Carswell LCJ quoted with approval a passage from the judgment of Hutton LCJ in Attorney-General's Reference (No. 1 of 1991) [1991] NI 218.  The overriding concern must be that the total global sentence, whether made up of concurrent or consecutive sentences, must reflect appropriate and just punishment so that it is proportionate to the offending behaviour and properly balanced.  I consider that I can achieve that result more satisfactorily by imposing concurrent sentences.  This would require me to take into account the aggravating and mitigating features of the offences of controlling prostitution for gain in fixing the sentence for the offence of trafficking and as I have explained I consider that the law permits me to follow that course of action.  I emphasise that this approach is a decision in the exercise of my discretion on the facts of this case.  It might be that on the facts of another case it would be appropriate to separate out the mitigating and aggravating features and to impose consecutive sentences.

[42]	The 2007 guidelines set out the following starting points and sentencing ranges for trafficking:

Type/nature of activity 	Starting point 	Sentencing range 	
Involvement at any level in any stage of the trafficking operation where the victim was coerced 	6 years custody 	4–9 years custody 	
Involvement at any level in any stage of the trafficking operation where there was no coercion of the victim 	2 years custody 	1–4 years custody 	

I am not going to use a starting point.

[43]	There is a clear need for deterrence in relation to the offence of Trafficking.

[44]	The offence of Trafficking is both a serious offence within schedule 1 paragraph 28 of the Criminal Justice (Northern Ireland) Order 2008 and a specified sexual offence within schedule 2, part 2, paragraph 13 of that Order.  I will therefore give consideration to a life sentence, an indeterminate custodial sentence or an extended custodial sentence.

Sentencing Guidelines in respect of controlling prostitution for gain.

[45]	I will adopt the same approach to the guidelines for exploitation of prostitution in part 6C at pages 126 and 127 of the 2007 guidelines as I have adopted in relation to trafficking.  The maximum sentence is 7 years.   The offence under section 53(1) of the Sexual Offences Act 2003 is a specified offence but not a serious offence within schedules 1 and 2 of the Criminal Justice (Northern Ireland) Order 2008.  The offence under Article 63(1) of the Sexual Offences (Northern Ireland) Order 2008 is both a serious offence within schedule 1 paragraph 31A of the Criminal Justice (Northern Ireland) Order 2008 (as amended by Schedule 1, paragraph 35 of the Sexual Offences (NI) Order 2008) and a specified sexual offence within schedule 2, part 2, paragraph 14A of that Order (again as amended by as amended by Schedule 1, paragraph 35 of the Sexual Offences (NI) Order 2008).  

[46]	The 2007 guidelines sets out the follow starting points and ranges for exploitation of prostitution:

Type/nature of activity 	Starting points 	Sentencing ranges 	
Evidence of physical and/or mental coercion 	3 years custody 	2–5 years custody 	
No coercion or corruption, but the offender is closely involved in the victim’s prostitution 	12 months custody 	26 weeks–2 years custody 	
No evidence that the victim was physically coerced or corrupted, and the involvement of the offender was minimal 	Community order 	An appropriate non-custodial sentence 	

I am not going to use a starting point.

Sentencing Guidelines in respect of the offence of controlling criminal property

[47]	In R v Paul Edward Meehan [2010] NICC I set out my understanding of the sentencing principles in relation to the offence of using criminal property contrary to section 329(1)(b) of the Proceeds of Crime Act 2002.  In relation to the sentences that I impose in this case I seek to apply the principles in R v Greaves [2011] 1 Cr App R (S) 72. There can be situations where there should be no increase in the total sentence where the antecedent offence and the use of criminal property have been committed by the same defendant.  For instance a thief who uses or retains possession of property that he has just stolen (this being criminal property as defined in s. 340) must therefore be guilty of an offence under s. 329(1)(b) or (c), the maximum penalty for which is twice that for basic theft. It does not follow that such a charge would be appropriate.  It might indeed be considered perverse.  In this case the criminal property was generated by the antecedent offence of controlling prostitution for gain committed by you Rong Chen and it is an aggravating feature in relation to that offence.  In relation to you Simon Dempsey the assistance that you gave Rong Chen in relation to the control of criminal property is a part of the sentencing exercise in relation to offence of aiding and abetting the control of prostitution.  

Ancillary Orders
[48]      There are a number of ancillary orders that might be applicable as follows
(a)	  A Sexual Offences Prevention Order.  Each of you has pleaded guilty to the offence of controlling prostitution for gain contrary to Article 63(1) of the Sexual Offences (Northern Ireland) Order 2008.  This offence is listed in Schedule 5 to the Sexual Offences Act 2003 (at paragraph 171B).  Accordingly, by virtue of section 104(1)(b) and 104(2) of the 2003 Act, I may make a sexual offences protection order in relation to each of the defendants if I am satisfied that it is necessary for the purpose of protecting the public or any particular members thereof from serious sexual harm from the defendant.   In R v Rampley [2007] 1 Cr App R (S) 87 and R v Richards [2007] 1 Cr App R (S) 120 the Court of Appeal in England and Wales stated that a finding that a defendant did not pose a risk of serious harm to the public did not preclude the court from imposing a sexual offences prevention order.  The prosecution have not applied for a sexual offences prevention order.  I do not make such an order.

(b)	Deportation.  It is not apparent from the information available to me as to whether you Rong Chen are a British citizen.  A foreign national does not automatically acquire British nationality through marriage to a British national.  If you are not a British citizen then the question as to whether you should be deported is subject to Part V of the UK Borders Act 2007 which provides for automatic deportation and which extends to Northern Ireland.  Section 32(5) requires the secretary of state to make a deportation order in respect of a “foreign criminal”.  The definition of a foreign criminal includes a person who is not a British citizen and who has been sentenced to a period of imprisonment for at least 12 months.  Automatic deportation under section 32(5) does not apply in a number of circumstances including where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach a person's Convention rights.  Accordingly in this case as you Rong Chen will be sentenced to more than 12 months in prison there will be a requirement for the secretary of state to make a deportation order unless for instance deportation would breach a convention right.  The court still has discretion to recommend deportation.  A recommendation of deportation is ancillary to sentence and is not a mitigating factor.   However in view of the provisions as to automatic deportation I exercise my discretion not to make any recommendation as there is a statutory scheme in place dealing with that question.  See R v Sliogeris & others [2008] NICC 32 at paragraphs [31] – [38] and R v Stirbys & Stonkus [2009] NICC 1 at paragraphs [25] – [29]

(c)	A Serious Crime Prevention Order.  Controlling prostitution for gain is a ‘serious crime’ by virtue of being listed in Part 2 of Schedule 1 to the Serious Crime Act 2007 (paragraph 20).  Accordingly, each of you may be made the subject of a serious crime prevention order under section 19 of the 2007 Act if the Court has reasonable grounds to believe that such an order would protect the public by preventing, restricting or disrupting your involvement in serious crime in Northern Ireland.  The order may contain such prohibitions, restrictions or requirements and such other terms as the Court considers necessary for this purpose.  I may adjourn this issue for consideration after sentencing for which see Criminal Procedure in Northern Ireland, Valentine (2010) at paragraph 18.150.   The prosecution have applied for a serious crime prevention order in respect of you Rong Chen.  I make such an order.  The terms of the order are in the schedule to this judgment.

(d)	A Compensation Order.  Under Article 14 of the Criminal Justice (Northern Ireland) Order 1994, I may order the offenders to pay compensation in such amount as I consider appropriate for any personal injury, loss or damage resulting from the offences.   

(e)	A confiscation order.  A confiscation order can be made under section 156 of the Proceeds of Crime Act 2002.  There is a power to postpone contained in section 164 of Proceeds of Crime Act 2002.  This enables me to proceed to sentence you and later to vary the sentences to include a confiscation order if appropriate, see section 165 of the Proceeds of Crime Act 2002.  If I postpone proceedings and in proceeding to sentence you for the offences the court must not, amongst other matters, make an order for the payment of compensation under Article 14 of the Criminal Justice (NI) Order 1994.  However later I can vary the sentence to not only include a confiscation order but I can also make an order for the payment of compensation under Article 14 of the Criminal Justice (Northern Ireland) Order 1994.  In relation to all of you I postpone the confiscation proceedings.        

(f)	A Financial Reporting Order.  Rong Chen and Simon Dempsey have each been convicted of money laundering offences which are ‘lifestyle offences’ listed in Schedule 5 of Proceeds of Crime Act 2002.  Accordingly, either or both of you can be made subject to a financial reporting order under section 78 of the Serious Organised Crime and Police Act 2005.  This requires the subject to make periodic reports relating to his financial affairs to a person specified by the Court.  The Court must be satisfied that the risk of the subject committing another offence of a similar type (specified in section 78(3) of the 2005 Act) is sufficiently high to justify making the order.  The prosecution have not applied for a financial reporting order.  I do not make such an order.

(g)	An order to deprive the offenders of property used, or intended for use, for the purposes of crime.  I have been asked to make such an order under Article 11 of the Criminal Justice (NI) Order 1994 in relation to various items which were seized from the brothels.  The items were evidence for the purposes of the trial though there is secondary evidence of them which will be available if needed in the future.  I make the order that is sought by the prosecution in respect of those items.

(h)	A notification order requiring information to be entered on the sex offenders register.  None of the offences of which you have been convicted are listed in schedule 3 of the Sexual Offences Act 2003 and accordingly none of you will be required to sign the sex offenders register.

(i)	A disqualification order under the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003.  The effect of such an order is that it makes it a criminal offence for the person against whom it is made to work, offer to work or to apply to work with children and/or vulnerable adults.  However the offences in this case were not committed against children and none of you is a care provider for vulnerable adults.  In such circumstances there is no jurisdiction to make any such order.

Victim Impact Statements

[49]	One constituent element of sentencing is retribution and accordingly victim impact statements are an important part of the sentencing process informing the court as to the short or long term consequences of criminal activity.  Statements from victims not only provide further information to the court in relation to the retributive element but also they inform the public as to the devastation inflicted on the lives of individuals by criminal activity.  I requested victim impact statements in this case from D, H, M and T.  Three of them declined to give a statement.  One was unable through illness to engage in the process.  Whilst encouraging victims to make statements I respect the decisions which have been made by these particular victims.  Their considerable personal courage in being prepared to give evidence about such intensely personal matters has to be recognised as does their desire at this stage, convictions having been secured, not to have any further involvement in the process.  

Personal background of Rong Chen and whether she poses a risk of re offending or a risk of serious harm and if so to what degree

[50]	You, Rong Chen, had a normal childhood in China.  You are now 35 (date of birth 22nd November 1976).  You have a brother and sister.  They both live in China.  You were educated in China leaving school at the age of 17.  You then found work in China in a factory making children’s clothes subsequently running your own beauty shop for some 4 years and then becoming a saleswoman selling facial products.  In 2005 you contacted David Thornton via a website.  You married him in China and then in 2005 moved with him to England.  That marriage ended in divorce.  In May 2006 you commenced a relationship with Jason Owen Hinton, your co-accused, and you married him in July 2007.  You have lived with him in England in the Kidderminster area since then.

[51]	You have twin daughters aged 15 who live with your parents in China.

[52]	It appears from the pre-sentence report that at the time of your offending you were purely focussed on financial gain.  That you did not consider the impact of your behaviour on your victims who were kept against their will and exposed to a lifestyle of abuse.  You did not consider the impact of your behaviour on the community as a whole or give consideration to the families that were residing close to or in the vicinity of the brothels which you operated.  This egocentric focus on financial gain was despite the lack of any financial pressure in that your husband, Jason Owen Hinton, was in employment.

[53]	It also appears from the pre-sentence report that you pose a medium risk of harm to females, predominantly those associated with the sex trade, but that you are assessed as a low risk of reoffending.

Personal background of Simon Dempsey and whether he poses a risk of re offending or a risk of serious harm and if so to what degree
 
[54]	You, Simon Dempsey had the benefit of a positive childhood with no adverse experiences during your formative years.  You are 42 (date of birth 25th September 1969).  Your father is a retired prison officer and your mother works in the travel industry.  You are the second eldest of four children.  You attended Regent House Grammar School achieving 9 O Levels and two A Levels.  You then attended college in London for 3 years undertaking courses in sports studies and geography.  You joined the police in Northern Ireland.  You served in the police force at a number of locations.  Upon leaving the police you gained employment with a security company specialising in work in Iraq.  You earned approximately £5,000 per month.  You are currently unemployed.  

[55]	You suffer from Buergers Disease a condition which affects circulation.  As a result you have had two toes amputated.  You have been the victim of a car accident in which you received a broken eye socket and two chipped bones to your neck.  You suffer from double vision.  You also suffer from stress having sought help from a counsellor and having made contact with the Samaritans.

[56]	You have expressed remorse for your actions and have demonstrated some understanding of the harm caused to the victims. 

[57]	It appears from the pre-sentence report that you are assessed as medium likelihood of reoffending.  You have also been assessed as not posing a significant risk of serious harm at this time.  

Personal background of Jason Owen Hinton and whether he poses a risk of re offending or a risk of serious harm and if so to what degree

[58]	You, Jason Owen Hinton had the benefit of a happy childhood in England in Stourport.  You are 44 (date of birth 6th September 1967).  Your father is a lorry driver.  Your mother is a veterinary assistant.  You left school in 1984 at 16 with 7 O Levels.  You attended Worcester and Kidderminster colleges and achieved Btec National Certificates in Business Studies and an Accounting professional qualification.  You have been employed as an Accountant and Finance Manager.  Since your arrest in May 2009 you have been unemployed.  

[59]	You commenced a relationship with your co-accused Rong Chen, in May 2006 and you married her in July 2007.  You knew that she was involved in managing brothels in Northern Ireland.

[60]	Dr P Bell, Consultant Psychiatrist, Knockbracken Healthcare Park, has prepared two reports in relation to you dated respectively 3rd February 2011 and 14th May 2012.  You have been diagnosed by him as suffering from anxiety and depression for which you are on medication.  You have a long history of mental health problems associated with obsessive compulsive ideas and phobic ideas for which you have received medical advice and treatment over the years.  There have been concerns in the past as to the risk of suicide.  Your present circumstances have exacerbated your mental health problems.  You have resorted to heavy drinking.  You recount that you superficially self-harm whilst intoxicated.  You state that you do not think that you will kill yourself but you are worried about the effect that a custodial sentence will have on your mental health.  Dr Bell considers that you will become severely depressed in a custodial environment and that there will be an increased risk of a serious self-harm.  If you do receive a custodial sentence then Dr Bell recommends that you should be referred to the prison mental health team so that your anxiety and depression can be managed in prison.  He does not state that it cannot be managed in prison.  

[61]	You are also addicted to Zopiclone, sleeping tablets, and these should not be suddenly discontinued otherwise you would become seriously ill.  

[62]	It appears from the pre-sentence report that you are unable to express much in the way of empathy for the victims though you did express a good degree of remorse for the commission of the offences.  

[63]	You have been assessed as being a medium risk of serious harm to the public.  The risk of reoffending is assessed as being low at this stage.  

Conclusion in relation to dangerousness

[64]	I do not consider that any of you pose a significant risk to members of the public of serious harm occasioned by the commission by you of further serious or specified offences, within Articles 12 to 15 of the Criminal Justice (Northern Ireland) Order 2008.  For that reason, an extended custodial sentence or an indeterminate custodial sentence is inappropriate in relation to any of you.

Aggravating features in respect of the overall criminal activity of you Rong Chen 
[65]     There was both coercion and deception of all four victims.  
[66]     There was a large scale commercial operation involved in the related offence of controlling prostitution for gain.
[67]         The offence and the related offence were planned.

[68]     There was substantial financial gain involved in the related offence of controlling prostitution for gain.

[69]         Four people, D, H, M and T, were trafficked

[70]         D, H, M and T were vulnerable by reason of their limited means, their illegal immigrant status in the United Kingdom and their inability to speak English.  As a result of that vulnerability you were the person to whom they were driven to turn for assistance in circumstances where you were the person who was abusing and using them.  

[71]     D, H, M and T were not detained.  They could have left if they had the means and the courage to do so.  However as a consequence of your threats and their vulnerability their liberty had been removed to a significant extent.

[72]	The squalid conditions in which D, H, M and T were required to live.

[73]      The isolation of D, H, M and T.

[74]     The exposure of H and D to the risk of physical violence which risk in fact materialised.  

[75]     The substantial period of offending in relation to the related offence.

[76]     There was corruption in that D, H, M and T had not been prostitutes and none of them had worked in brothels.  However on the facts of this case I consider this to be an aspect of coercion which I have already taken into account.  I make it clear that I do not take this feature into account as an additional aggravating feature.

Mitigating features in relation to you Rong Chen

[77]	You pleaded guilty though not at the earliest stage.  I have given a greater discount than I would ordinarily give for a plea of guilty at a late stage given the admissions that you made during the course of your police interviews.

[78]  	You have no previous convictions.

[79]	You have shown remorse which I accept to a significant extent but not completely given your egocentric attitudes.

[80]	I have set out and taken into account your personal circumstances but in doing so I bear in mind that in cases of this gravity your personal circumstances are of limited effect in the choice of sentence, see Attorney General’s Reference (No 7 of 2004) (Gary Edward Holmes) 2004 NICA 42 and Attorney General’s Reference (No. 6 of 2004) (Conor Gerard Doyle) [2004] NICA 33.

Aggravating and mitigating features in relation to you Simon Dempsey.

[81]	I have set out your involvement in the offences of aiding and abetting the control of prostitution and entering into an arrangement to control criminal property. I accept that you did not gain financially, that you did not control or plan the criminal activities, that you were involved for a limited period of time and that your actions were based on a misguided concept of friendship and a failure of appreciation as to the seriousness of the consequence of your activities.

[82]	In mitigation I take a number of factors into account. 

(a)	 You pleaded guilty though not at the earliest stage.  I have given a greater discount than I would ordinarily give for a plea of guilty at a late stage given the admissions that you made during the course of your police interviews.

(b)	You have no previous convictions.

(c)	Your personal circumstances which I have set out.

(d)	  Your remorse which I accept as genuine.

Aggravating and mitigating features in relation to you Jason Owen Hinton.

[83]	I have set out your involvement in the offences of aiding and abetting the control of prostitution.  I sentence you on the basis accepted by the prosecution that your involvement was peripheral.  

[84]     In mitigation I take a number of factors into account. 

(a)	 You pleaded guilty though not at the earliest stage.  I have given a greater discount than I would ordinarily give for a plea of guilty at a late stage given the admissions that you made during the course of your police interviews.

(b)	You have no previous convictions.

(c)	Your personal circumstances which I have set out.

(d)	  Your remorse though I note that the probation officer states that you were unable to express much in the way of empathy for the victims though you did express a good degree of remorse of the commission of the offences.

Sentence in respect of you Rong Chen

[85]   For the offence of trafficking, contained in count 3, I impose a sentence of 7 years imprisonment.

[86]    For offences of controlling prostitution for gain contained in counts 1 and 2, I impose a sentence of 4 years imprisonment on each count.

[87]     For the offence of entering into an arrangement to control criminal property contained in count 10 I impose a sentence of 1 year’s imprisonment.

[88]     All of these sentences shall be concurrent.

[89]     As I have passed sentences of imprisonment I am required by Article 8 of the Criminal Justice (NI) Order 2008 to specify in relation to each sentence (except count 1) the custodial period at the end of which you are to be released on licence.  It is provided by Article 8(3) that the maximum custodial period is one half of the term of the sentence.  I fix the custodial period at one half of the term of 7 years in relation to count 3, at one half of the term of 4 years in relation to count 2 and one half of the term of one year on count 10.  At the end of that custodial period calculated in accordance with Article 32 and as provided by Article 17 the Secretary of State shall release you on licence.  That licence may be revoked under Article 28.
Sentence in respect of you Simon Dempsey

[90]	For offences of aiding and abetting the control of prostitution for gain contained in counts 1 and 2, I impose a sentence of 9 months imprisonment on each count.

[91]	For the offence of entering into an arrangement to control criminal property contained in counts 11, 12 and 13 I impose a sentence of 3 months imprisonment on each count.

[92]	All of these sentences shall be concurrent.  
Sentence in respect of you Jason Owen Hinton

[93]	For offences of aiding and abetting the control of prostitution for gain contained in	 counts 1 and 2, I intend to impose a community service order on each count requiring you to perform 220 hours of unpaid work.  Those orders will be concurrent.  I am satisfied that you are a suitable person to perform work under such an order and that provision can be made by the probation board for you to do so.  In arriving at that conclusion I have taken into account that you will be residing in England but I am satisfied that the probation board here has made appropriate arrangements with the probation service of England and Wales.  I cannot make such an order unless you consent.  Do you consent?  As you do consent I make those orders.