Deterrence – Undue leniency

Attorney General’s Reference (nos 37, 38 and 65 of 2010) sub nom R v (1) Shahawaz Ali Khan (2) Raza Ali Khan (3) Perveen Khan: CA (Civ Div) (Lord Justice Pitchford, Mr Justice Henriques, Judge Milford QC): 9 December 2010

The attorney general referred to the court as unduly lenient sentences of three years’ imprisonment imposed on the offenders (S, R and P) for an offence of statutory conspiracy to traffic persons for the purpose of exploitation, contrary to section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. S and R were the sons of P who all worked in the family business running a restaurant.

During a period of four years, S, R and P recruited from the Middle East and India nine men. Each was promised attractive pay and working conditions. On arrival they suffered various methods of exploitation: their passports and documents were taken from them; they were required to arrive with bond money which was not returned to them; they were required to work 12 hours or more a day for six to seven days a week, contrary to the terms on which they were engaged; they did not receive due recompense for overtime and in several cases did not receive a basic salary; they were told not to mix with the local community or visit the town; and were not given national insurance numbers. If they questioned their working conditions they were subjected to threats and abuse. The attorney general submitted that the present case was a bad case of its type, involving a persistent campaign of exploitation involving nine vulnerable men over a prolonged period of time, and a deterrent sentence was required. The offenders sought leave to appeal their sentences and submitted in mitigation that the victims were not illegal immigrants or smuggled into the country; several of the victims returned to work after visits home; S and R were young men; and P had a depressive disorder and therefore should have received a hospital order under section 37 of the Mental Health Act 1983.

Held: (1) Factors that required consideration when assessing the seriousness of an offence under section 4 included: (a) the nature and degree of deception or coercion exercised upon the incoming worker; (b) the nature and degree of exploitation exercised upon the worker on arrival in the workplace; (c) the level and methods of control exercised; (d) the level of vulnerability of the incoming worker; (e) the degree of harm suffered by the worker; (f) the level of organisation and planning behind the scheme, the gain sought or achieved, and the offender’s role within the organisation; (g) the numbers of those exploited; and (h) previous convictions for similar offences. In the present case, the offending was a persistent campaign of exploitation. The motivation was financial and each of the offenders played a different but prominent role. The victims were particularly vulnerable and badly affected by their experience. The pattern of offending demonstrated a significant degree of organisation and planning. The method adopted involved the deception of the victims and of the UK which had granted work permits and working visas for the victims. An element of general deterrence was appropriate when assessing the sentence. In the present case, the starting point would have been six years (see paras 14, 17, 20, 23 of judgment).

(2) The judge accepted that P was suffering from a depressive disorder and gave considerable thought to whether he should make an order under section 37 of the 1983 Act. He concluded that she was exaggerating her symptoms. He did not err in principle in concluding that a sentence of imprisonment was necessary, R v Khelifi [2006] 2 Cr App R (S) 650 followed. None of the offenders showed remorse. The return of the victims following visits home was evidence of further exploitation by the offenders of the personal circumstances of the victims. Sentences of three years for offending of the magnitude of the present case were unduly lenient. Giving limited credit for personal mitigation, sentences of five years’ imprisonment would have been appropriate. S and R were still young men of 31 and 34 years for whom sentences of imprisonment would have lasting consequences, and they had had to await a second sentencing process which should be reflected in a further reduction to four years’ imprisonment. The uncertain and fluctuating state of P’s mental health meant that her sentence would take effect unaltered. The offenders’ applications for leave to appeal sentence were refused (paragraphs 18, 31-34).

References allowed in part.

Edward Garnier QC, Edward Brown QC for the attorney general; Nicholas Lumley (instructed by Clarion) for the first applicant; Balraj Bhatia (instructed by Kamrans) for the second applicant; Zarif Khan (instructed by Opus Law) for the third applicant.