No: 200904393 A6
Neutral Citation Number: [2010] EWCA Crim 692
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 10 March 2010
 
B e f o r e:

LORD JUSTICE STANLEY BURNTON 

MR JUSTICE DAVIS 
 
HIS HONOUR JUDGE ROBERTS QC
(Sitting as a Judge of the CACD) 
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R E G I N A 

v 

ATCHARA NUALPENYAI 
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Mr S Earnshaw appeared on behalf of the Applicant
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J U D G M E N T
1.	LORD JUSTICE STANLEY BURNTON:  HHJ Roberts will give the judgment of the court. 
2.	HIS HONOUR JUDGE ROBERTS QC:  The applicant is 30 years of age and was born and grew up in Thailand before coming to this country about five years ago to work as a prostitute.  She renews before the Full Court her application for leave to appeal against a sentence of imprisonment imposed on her on 24 July 2009 in the Crown Court at Croydon.  The total sentence is six and a half years.  It was made up of the following sentences, each of which was ordered to run concurrently with the others: on each of two counts of trafficking for sexual exploitation, six and a half years; on each of two counts of controlling prostitution for gain, two years; on one count of possessing a class A drug for her own use, six months; and on one count of possessing a class C drug for her own use, three months.  Two other counts to which she had pleaded not guilty were ordered to lie on the file on the usual terms.  
3.	We grant leave to appeal and treat this as the hearing of the appeal, subject to any further representations which the applicant may wish to make.  If she does wish to make any, they should be notified to the court within seven days.
4.	The indictment was concerned with the applicant's activities between May 2008 and January 2009.  Between May and October 2008 she ran a brothel at her home address in Wanstead.  Between October 2008 and January 2009 she ran two brothels: one at her original address in Wanstead, and the other at an address in Gants Hill, to which she had moved.  She was arrested on 21 January 2009 and was remanded in custody until she was sentenced in July.  The 183 days that she had served on remand were ordered to count towards her sentence.
5.	Count 2 related to the trafficking of a Miss Boonkurd, who arrived in this country from Thailand on 1 May 2008 having been put in telephone contact with the applicant and having agreed with her to come to the UK and work as a prostitute.  Before speaking to the applicant, Miss Boonkurd had been told by someone in Thailand that, if she was to come to the UK, she would have to pay the applicant out of her earnings a substantial sum described as a debt.  From what the applicant was later to tell the police, it seems that she herself paid substantial lump sums to contacts in Thailand in return for their introducing suitable young women to her, and that she expected to recoup those sums, plus no doubt considerable additional sums, from payments made to her by the young women out of their earnings.  
6.	When Miss Boonkurd spoke to the applicant before coming to the UK, the applicant asked her if she was aware that she would have to pay the debt.  She said that she was.  From what she had been told in Thailand she believed it would be about £7,000.  In fact, when she arrived here, the applicant told her it would be £25,000.  
7.	Count 3 was concerned with the trafficking of a Miss Srimuang, who had also arranged in Thailand to come and work in the UK as a prostitute.  Before leaving Thailand, she had apparently signed a contract agreeing to pay a debt of £20,000 out of her earnings here.  She was provided with a false Malaysian passport on which she travelled to the UK via Romania and Brussels.  On arrival she was told by the applicant that the debt she would have to pay off before she could start earning her own money would be £30,000.  
8.	Both young women were set to work shortly after their arrival in the UK.  They were both made to work almost continuously.  As well as working at the applicant's premises, both young women were sent to various other brothels.  They were required to pay rent in the brothels in which they worked, including the applicant's, and to hand over the rest of their earnings to the applicant in payment towards the large debts which they were told they owed.  Miss Boonkurd had about 30 customers a day, and only stopped working for a period of three days when her body was so sore she could not work any more.  Miss Srimuang was required to work even when she was menstruating.  On a number of occasions she asked the applicant to take her to a sexual health clinic to have herself checked, but the applicant never did.  Both young women were encouraged to have unprotected sex with clients.  There was a greater charge for unprotected sex.  That placed both young women at serious risk to their own health.
9.	Both young women felt trapped in their new lives in the UK.  The applicant took possession of their passports ‑‑ in Miss Srimuang's case, her genuine Thai passport as well as her false Malaysian one ‑‑ as security for the debts which they owed her.  They were given no real control over their own lives; they were simply used as means of generating money for the applicant.  
10.	Miss Boonkurd managed to find her passport one day in August 2008 and ran away.  The applicant contacted her by telephone and made threats in an unsuccessful attempt to persuade her to return.  Miss Boonkurd estimated that by the time she ran away, when she had only been in this country for a few months, she had paid about £13,000 of the £25,000 debt, as well as her rent payments.  She had made nothing for herself.  From the time when the applicant obtained the premises in Gants Hill in October 2008, Miss Srimuang worked at both that address and at the Wanstead address.  
11.	Counts 4 and 5 alleged offences of controlling prostitution for gain at the Wanstead and Gants Hill premises respectively.  In addition to employing others to service clients at these premises, the applicant herself would on occasion do so if none of her employees was available.  
12.	The most serious aspect of this case is the extent to which Miss Boonkurd and Miss Srimuang were exploited for financial gain by the applicant in the ways which we have described.  That was relevant to the assessment of the seriousness of the offences charged in counts 2 and 3, as well as those charged in counts 4 and 5.  An ingredient of the offences in counts 2 and 3 is the intention to do things in relation to the two young women which would amount to an offence of controlling prostitution for gain.
13.	When the applicant arranged for these two young women to come to this country, it was clear that she was fully aware, although they of course were not, of the exploitative behaviour to which she intended to subject them.  
14.	We agree with the judge's approach of assessing the seriousness of these four offences taken together, and passing concurrent sentences to reflect their overall seriousness.  We also agree that it was appropriate to pass short concurrent sentences for the two drugs offences.  
15.	Mr Earnshaw, on the applicant's behalf, accepts that the offences in counts 2 to 5 were extremely serious and that they called for a substantial prison sentence.  He submits, however, that the total sentence of six and a half years was outside the parameters set by the relevant guidelines published by the Sentencing Guidelines Council, and that the applicant received insufficient credit for her pleas of guilty and other matters of personal mitigation.  
16.	Mr Earnshaw referred us to two decisions of this court: Attorney General's Reference Nos 129 and 132 of 2006 [2007] 2 Cr App R (S) 85, and R v Attilla Makai [2008] 1 Cr App R (S) 73.  
17.	The principal matters of personal mitigation in the present case were the applicant's previous good character and the fact that she had a two year‑old son from whom she would necessarily be parted in consequence of the inevitable custodial sentence.  She was devoted to him and was anxious to retain parental rights if at all possible.  The pleas of guilty were entered at a very late stage on 22 June 2009 when the case was listed for trial and when it was known that Miss Boonkurd and Miss Srimuang and another young Thai girl, who also worked for the applicant, had all attended to give evidence.  One of them came from Thailand to do so.  
18.	The judge, in his sentencing remarks, said that on conviction after a trial the sentence would have been eight years.  He reduced it to six and a half years to take account of the pleas of guilty and the personal mitigation.  We think that that was quite a generous reduction in the circumstances, and we are not persuaded that any further reduction was required.  
19.	That leaves us with the question of whether a starting point of eight years was out of line with the relevant guidelines and the authorities.  
20.	The guidelines for both types of offence, trafficking for sexual exploitation and control of prostitution for gain, draw a distinction between cases where there is coercion and cases where there is not.  The maximum sentence for trafficking for sexual exploitation is 14 years' imprisonment, and that for controlling prostitution for gain is seven years.  
21.	The guideline for offences of trafficking for sexual exploitation provides that for involvement at any level in any stage of the trafficking operation where the victim is coerced, the starting point is six years and the sentencing range four to nine years.  Where there is no coercion, the starting point is two years and the sentencing range is one to four years.  
22.	The guideline for offences of controlling prostitution for gain provides that, where there is evidence of physical and/or mental coercion, the starting point is three years and the sentencing range two to five years.  Where there is no coercion or corruption, but the offender was closely involved in the victim's prostitution, the starting point is 12 months and the sentencing range is six months to two years.  Coercion may of course take many forms, and there are many cases where the coercion was a great deal more serious than in this case.  
23.	In this case, there was no evidence that Miss Boonkurd and Miss Srimuang were coerced into travelling to England to work as prostitutes.  On the contrary, they came here of their own free will to make money from prostitution.  However, it is fair to say that they were to an extent deceived as to the kind of life they would have here, and once they had arrived here, there was certainly evidence of mental coercion of both women.  They were in vulnerable positions and had little real choice but to do what they were required to do.  The removal of their passports was clearly designed to keep them under the applicant's control.  
24.	We think that the element of coercion is primarily relevant to the offences of controlling prostitution for gain, for which lower penalties are appropriate.  On the other hand, it is a significant feature of the trafficking offences that the applicant, in arranging for the two young women to come to this country, intended to exploit them in the way we have described.  
25.	In all the circumstances, we are persuaded that, whilst it is not easy to fit a case like this into the framework of the Sentencing Guidelines, and the offences involved the exploitation and coercion of not one but two young women, the judge's starting point of eight years was too high.  We think that an appropriate starting point would have been somewhere between six and six and a half years, and giving the applicant appropriate credit for her late plea of guilty and personal mitigation, we propose to quash the sentences of six and a half years on counts 2 and 3 and substitute sentences of five years on each of those counts.  The other sentences will remain unchanged, so the total sentence will be five years rather than six and a half years.  The days spent on remand in custody will of course count towards the sentence. 
26.	MR EARNSHAW:  My Lord, I am grateful.  Again, I appear pro bono today, may I respectfully ask for a representation order? 
27.	LORD JUSTICE STANLEY BURNTON:  You may have one, and you will advise her as to the position.  If she seeks to renew again, there is no guarantee that she will keep what she has obtained today.  It is unlikely to be fruitful.
28.	MR EARNSHAW:  My Lord, thank you.