In the Dock

years”. 258 Ambiguity within the sentencing guidelines were recognised in R v Roman Pacan &others 259 where Lord Justice Maurice Kay stated:“[T]here is a degree of ambiguity in the way the guidelines are set out. Thus, for example, the bracket forwhich six years’ custody is the prescribed starting point assumes coercion. However, coercion thenappears as a potential additional aggravating factor, and indeed appears … as one of a number of factors,including vulnerability and, by implication, age of victims, which ‘should move sentences towards themaximum 14 years’. Age is not referred to in the specification of a starting point of six years. Nor is itmentioned as an additional aggravating factor ... But it is referred to, and must have been consideredrelevant ... There is similar ambiguity as to vulnerability.”Furthermore, the concept of coercion is not clearly defined within the guidelines, leaving it open tointerpretation by the individual judge. Without clarification, this may cause confusion and in turn mayadversely affect sentencing. Again in R v Rong Chen, Simon Dempsey and Jason Owen, 260 JudgeStephens stated that the aggravating factor of a large number of people trafficked “gives no indicationas to what is considered to be a large number … It is repugnant to traffick one person … I see noreason why the 2007 guidelines could not have identified this aggravating feature as ‘More than 1person trafficked and if so the number of persons trafficked’”. 261Currently, as part of a revision of sexual offences sentencing, these guidelines are being reviewed butthis will not include other forms of trafficking e.g. domestic servitude and forced labour. It is intendedthat the new matrix for considering sentencing will also look at culpability of the defendant and harm tothe victim. This may assist judges in trafficking for sexual exploitation, however, to comply with theConvention and Directive, explicit reference needs to be made to specific aggravating factors notcurrently considered.Furthermore, it is unknown to what extent the mitigating principles set out in R v Delgado-Fernandez& Zammit; R v Thi 262 (discussed in Chapter 2) and R v Roci and Ismailaj 263 apply in reducingsentences in cases where the person comes to the UK in the knowledge that they will be working as aprostitute but the terms of their work are completely misrepresented. They may be forced to performunprotected and harmful sexual services such as extreme sadomasochism. Service providerssupporting such women report high levels of trauma exemplified in this group. In R v Roci and Ismailajthe appeal against sentencing was allowed, reducing the main appellant’s sentence from 11 years' to9 years' imprisonment. Although the women came to this country willingly to work as prostitutes, theyhad been coerced to perform services contrary to their wishes, experienced threats and were subjectto inhuman treatment. In addition they received only 25 per cent of their earnings. Within thisjudgement, weight for reducing the sentence was given as “the victims of these offences were not onlyadult prostitutes, but they came to this country for the purpose of carrying on a trade as prostitutes.The coercion to which they were subjected was extremely minor compared with the coercion andcorruption to which the victim in Maka [recruited as a waitress and forced to work as a prostitute] wassubjected.” 264 However, given the potential traumatic impact on these victims, it may be argued thatprior occupations should not be of concern in the sentencing of such cases.In the UK, labour trafficking conviction rates are generally lower than sex trafficking cases, with adultdomestic servitude cases faring the worst. Indeed in R v Rebecca Balira, 265 the defendant wassentenced to six months' imprisonment, and before R v SK, in the initial trial, the judge ordered a nine-258Emphasis added. Sentencing Guidelines Council, Sexual Offences Act 2003: Definitive Guideline (2007). Available at:http://sentencingcouncil.judiciary.gov.uk/docs/web_SexualOffencesAct_2003.pdf [last accessed March 2013].259R v Pacan & Others [2009] EWCA Crim 2436260R v Rong Chen, Simon Dempsey and Jason Owen [2012] NICC 26.261Ibid., para. 34.262Delgado-Fernandez, supra note 19.263R v Roci and Ismailaj [2006] 2 Cr. App. R. (S.) 15.264Ibid., para.18.265Balira, supra note 114.81