S57, S58, S59. Trafficking into the UK for sexual exploitation (S57); Trafficking within the UK for sexual exploitation (S58); Trafficking out of the UK for sexual exploitation (S59).
Date Updated: January 2012
Title: Sexual Offences
Offence: Trafficking into the UK for sexual exploitation (S57); Trafficking within the UK for sexual exploitation (S58); Trafficking out of the UK for sexual exploitation (S59).
Legislation: Sexual Offences Act 2003 - S57, S58, S59
Commencement date: 1/05/2004
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty:
- On Indictment - 14 years
- Summary Conviction - 6 months imprisonment and/or statutory maximum fine
Culpability & Harm
The sentences for public protection must be considered in all cases. They are designed to ensure that sexual offenders are not released into the community if they present a significant risk of serious harm.
The type of activity covered by the various trafficking offences in the SOA 2003 is broadly the same, the only difference being the geographical area within which the trafficked persons are moved. The harm being addressed is sexual exploitation, but here either children or adults may be involved as victims.
The offences are designed to cover anyone involved in any stage of the trafficking operation, whether or not there is evidence of gain. This is serious offending behaviour, which society as a whole finds repugnant, and a financial or community penalty would rarely be an appropriate disposal.
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.
In general terms the greater the level of involvement, the more serious the crime. Those at the top of an organised trafficking chain may have very little personal involvement with day-to-day operations and may have no knowledge at all of individual victims. However, being in control of a money-making operation that is based on the degradation, exploitation and abuse of vulnerable people may be equally, if not more, serious than the actions of an individual who is personally involved at an operational level.
The presence of any of the general aggravating factors identified in the Council guideline on seriousness or any of the additional factors identified in the guidelines will indicate a sentence above the normal starting point.
Circumstances such as the fact that the offender is also a victim of trafficking and that their actions were governed by fear could be a mitigating factor if not accepted as a defence.
The starting point for sentencing for offences of 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.
In cases where a number of children are involved, consecutive sentences may be appropriate, leading to cumulative sentences significantly higher than the suggested starting points for individual offences.
Where an offender has profited from his or her involvement in the prostitution of others, the court should consider making a confiscation order10 approximately equivalent to the profits enjoyed.
The court may order the forfeiture of a vehicle used, or intended to be used, in connection with the offence.
Aggravating & Mitigating Factors
Aggravating
- Large scale commercial operation
- High degree of planning and sophistication
- Large number of people trafficked
- Substantial financial (in the region of £5,000 and upwards) or other gain
- Fraud
- Financial extortion of victim
- Deception
- Use of force, threats of force or other forms of coercion
- Threats against victim or against victim's family
- Abduction or detention
- Restriction of victims liberty
- Inhuman treatment
- Confiscation of victim's passport
Mitigating:
- Coercion of the offender by a third party
- No evidence of personal gain
- Limited involvement
Relevant Sentencing Council Guideline (if any)
- Guidelines effective for offences sentenced on or after the 14th May 2007.
- The starting points are for an adult offender, of previous good character who was convicted after trial.
Type/nature of activity: Involvement at any level in any stage of the trafficking operation where the victim was coerced
Starting point: 6 years custody
Sentencing range: 4 - 9 years custody
Type/nature of activity: Involvement at any level in any stage of the trafficking operation where there was no coercion of the victim
Starting point: 2 years custody
Sentencing range: 1 - 4 years custody
Note: If the victim is under 13, one of the specific under-13 offences would normally be charged. Any commercial exploitation element would be an aggravating factor.
Relevant Sentencing Case Law
R v Pacan & Others [2009] EWCA Crim 2436. 4 defendants were convicted of sex trafficking and D4 was also convicted of other prostitution offences. D4 brought V1 a 22 year old Lithuanian woman to the UK with a promise of a well paid job and forced her to work as a prostitute he kept half her earnings. She escaped to a police station. D4 then set up a brothel in Luton. D3 worked there. D1 and D2 then trafficked V2 a 16 year old Slovakian girl she was forced to work as a prostitute and regularly beaten and raped. D1 had a Czech conviction for soliciting for prostitution the rest were of good character. HELD 11 years for D1 - 3and 14 for D4 was not severe. The Court of Appeal noted there is some ambiguity in the way the guidelines are set out. 6years assumes coercion then coercion is set out as an aggravating feature. Age of the victim is referred to neither in the guidelines nor the aggravating features. The range of sentences do not purport to create a reduced maximum sentence.
R v Maka [2006] 2 Cr App R (S) 14: Defendant (24 good character) was convicted of one count of S57 and two under S58. He pleaded guilty to two further counts of S15. V a 15 year old Lithuanian girl was lured to the UK with the promise of a well paid job. Her fare was paid and she was met at the airport. Her passport was taken and she was sold, raped and forced to work as a prostitute. She escaped and returned to D - he sold her again and she was made to work in a brothel. She escaped again was sold again, escaped again and sold again. She was raped and forced to work in a brothel. She again escaped and was sold again and raped. She then escaped to the police. The Judge noted the increasing prevalence of the offence and that the case had echoes of slavery. The victim was naive and vulnerable. She finished up disorientated, assaulted, threatened and friendless in an alien environment. D was a prime mover and was aware of her age and suffering. HELD: Their was significant planning, the court highlighted the merciless way the defendant made money from her. 18 years was held to be 'appropriately severe'.
R v Demarku [2007 I Cr. App R (S) 83 - D was a 22 year old Albanian national of good character, he was convicted of two counts of s57, controlling child prostitution, sexual activity without consent, and 2 prostitution counts. The defendant tricked a 16 year old Lithuanian girl into travelling to London she was then forced into prostitution. The court noted that D was effectively permitting a child to be raped on a regular basis for his financial benefit, 4 years consecutive for the child prostitution offences 14 years for the others, making 18 years.
For a case where one of the defendants was herself a prostitute being controlled by the co-defendant see Kizlaite and Axhami [2007] 1 Cr App R (S) 30 on the same theme, Nualpenyai [2010] Crim 692.
Att-Gen's Ref Nos 129 and 132 of 2006, [2007] 2 Cr App R (S) 85 - D a prostitute, set up a business with a co-defendant Z and a third man A. They were involved in advertising for prostitutes to work in the UK. There was no coercion, the women received 40% of takings, they were free to leave, they were not particularly vulnerable and they were given clean and hygienic premises. Although they advised the women how to enter the UK, most left when the visa expired. There was no long term increase in illegal immigration and the most in the country was 4 or 5 at any one time. For Z 5 years, for D 4 years.
Ancillary Orders
- POCA (Proceeds of Crime Act 2002 s 6 and s75)
- Where the defendant is aged 18 or over he or she is automatically barred from engaging in regulated activity with children and with vulnerable adults. (Safeguarding Vulnerable Groups Act 2006).
- Deprivation Order
- Forfeiture order for vehicles, ships and aircraft (S60A Sexual Offences Act 2003)
Consider Also
- Dangerous Offender provisions apply. Sentences for public protection must be considered.
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