R E G I N A - v - BESMIR RAMAJ HASAN ATESOGULLARI

Transcription

1 Neutral Citation Number: [2006] EWCA Crim 448 No: 2005/01870/D1, 2005/01871/D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL 17 February 2006 B e f o r e : LORD JUSTICE MOSES MR JUSTICE JACK MR JUSTICE ROYCE R E G I N A - v - BESMIR RAMAJ HASAN ATESOGULLARI Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone (Official Shorthand Writers to the Court) MR A KANE appeared on behalf of THE APPELLANT RAMAJ MR A HENLEY appeared on behalf of THE APPLICANT ATESOGULLARI HTML VERSION OF JUDGMENT Crown Copyright Friday, 17 February 2006 LORD JUSTICE MOSES: I will ask Mr Justice Jack to give the judgment of the court. MR JUSTICE JACK: 1. Starting on 3 February and ending on 4 March 2005, a trial took place before His Honour Judge Hone QC in the Crown Court at Wood Green. There were four defendants who faced a number of counts concerning a brothel run in a flat in Ponders End in the suburbs of London and the girl who worked there "S". S arrived in England from Lithuania on Sunday 30 May She was 18.

2 2. On Thursday 3 June 2004 she escaped from the flat. The following day the flat was raided by the police. The defendants were Besmir Ramaj, aged 20, Hasan Atesogullari, aged 22, Flamur Nuza, aged 26, and Adil Jealezi (whose age is not stated, but who was older than the others). The last three pleaded guilty on the first day of trial to what became count 5, keeping a brothel used for prostitution contrary to section 33(A) of the Sexual Offences Act Ramaj was found guilty on that count by the jury. The defendants had taken over the brothel from its previous management on Monday 31 May. Ramaj was also found guilty on count 1. The statement of offence was: "Trafficking into the United Kingdom for Sexual Exploitation, contrary to section 57 of the Sexual Offences At Particulars of Offence Besmir Ramaj, on or before the 3rd day of June 2004, intentionally arranged or facilitated the arrival in the United Kingdom of [S], intending to do something to or in respect of her after her arrival which if done would involve the commission of an offence of controlling prostitution for gain or keeping a brothel used for prostitution" The defendants were acquitted on the three remaining counts which had been left to the jury. All defendants had been charged and were acquitted on what became count 2, which alleged the false imprisonment of S. The applicant Ramaj had been charged and was acquitted on what became count 3, which alleged the rape of S. All defendants had been charged and were acquitted on what became count 4, which alleged controlling prostitution for gain. That, too, related to S. The judge had directed the jury that if S had consented to her prostitution, they should acquit on that count. 3. The first matter with which we must deal is Ramaj's renewed application for leave to appeal against conviction after refusal by the single judge. There were two proposed grounds of appeal. The first, which is the one that has been pursued before us today, is that the verdicts of the jury were inconsistent. The verdicts of the jury can readily be explained on the basis that the jury accepted S's evidence that Ramaj had been involved in bringing her into this country and to the brothel (count 1), that they were not satisfied that her movements had been restrained (count 2), that they were not satisfied that Ramaj had raped her (count 3), and that they were not satisfied that she did not consent to her prostitution (count 4). In short, the explanation of the verdicts must be that the jury were not satisfied so that they were sure that S was an unwilling prostitute. The fact that the prosecution case was that S had been unwilling in no way invalidates the jury's verdicts on the two counts on which Ramaj was convicted. It is important to have in mind that, in directing the jury on the trafficking count at page 6 of the transcript of the summing-up, the judge expressly stated that the handling arrangements for a willing prostitute would be an offence under the section, in addition to it being an offence if the facts were as the prosecution alleged. 4. The second ground, which was set out in the grounds of appeal, was that the judge summed up the case to the jury in a way which was unbalanced, did not adequately put Ramaj's case, and did not set out the issues. Mr Kane, appearing for Ramaj today, has most wisely abandoned that ground. The summing-up was scrupulously fair and Ramaj's case on particular issues was set out as the summing-up progressed. 5. The renewed application for leave to appeal against conviction is therefore refused. 6. The judge sentenced Ramaj to 10 years' detention in a young offender institution on count 1 (trafficking) and to 18 months concurrent on count 5 (brothel keeping). He appeals against that sentence with the leave of the single judge. 7. Prior to passing sentence, the judge heard counsel for Ramaj at some length as to the factual basis on which he should sentence. In passing sentence he stated:

3 "The acquittals are important because taken together I accept that the jury were not sure that [S} was at all times an unwilling girl who had been made captive and guarded, and was forced into prostitution. The evidence of the three maids at the brothel attested that during that time there were no incidents or marks of violence, duress, or physical compulsion to remain. Also, in my view, it is important that you were acquitted of the alleged rape. The brothel at 68A High Road, Ponders End, was a start-up operation, crudely furnished and unsophisticated, taken over from Bobby, who had herself found it unprofitable over the preceding three months or so. Your part in the operation relating to count 5 was to supply [S] to the brothel." It is worth continuing with the judge's remarks because it gives the ambit of what occurred. He said: "The evidence that I heard about Wednesday and Thursday, 2 and 3 June 2004 showed that [S] on Wednesday had sex with four customers. The takings were relatively modest or thereabouts. Mary Anne Ellen Surrey gave evidence that [S] was given cash that evening for her services. [S] did not agree with that evidence, but on any basis [S] did not get to keep any money. However, the evidence of the maids was that there was no overt evidence of distress or misery from [S] until Thursday. On Thursday, [S] was the only girl at the brothel. She only had sex with one client, although about four men visited and did not indulge. This small-scale brothel suffered an acute shortage of girls. There is, however, no evidence that the second girl [N] was trafficked. She had previously worked at the premises under Bobby's management.... The jury's verdict on count 1 clearly indicates that [S] correctly identified you as being present at London Heathrow on Sunday 20 May 2004 when she and [L] were brought into this country by the older woman from Lithuania. Eddie, Max, Astor, Laura, yourself, the old woman, and another were all there. You were plainly involved as a principal in the trafficking of [S], although I assume in your favour that the jury thought she may, at least initially, have been willing to come to this country to sell her body. An aggravating feature in this case is that [S] was an 18 year old, just out of school -- naive, gullible and inexperienced in the ways of the world. Human trafficking is a problem which confronts not only this country, but many other countries in the world. It exploits the impoverished, and particularly, in this case, the young, who are promised big money if they abandon their homeland and their morals. Particularly in the case of the young, it strikes at the root of human rights. Those exploited in this way by false promises are entitled, and deserve, the protection of the law." 8. That sets out the factual basis on which the judge determined that Ramaj should be sentenced. It is important that it should be understood that all that can be deduced from the jury's verdicts is that they were not sure that S came here unwillingly. That must therefore provide the basis for sentence of Ramaj. 9. We have been provided with two judgments of this court which were not available to the judge when he passed sentence. They are R v Maka [2005] EWCA Crim 3365 and R v Roci and Ismailaj [2005] EWCA Crim Each concerned trafficking in Lithuanian girls. The facts of each case were very much more serious than the present case. In Maka consecutive sentences of nine years' imprisonment for trafficking into the United Kingdom and nine years' imprisonment for trafficking within the United Kingdom were upheld. In Roci and Ismailaj the

4 sentences of eleven years passed on Ismailaj following a late plea for trafficking into the United Kingdom was reduced to nine years. The four adult women there involved had come to work as prostitutes, but were coerced into working in a manner and in conditions to which they would not have willingly consented. In paragraph 18 of the judgment the Vice-President stated: "It is to be noted in this case, as in contrast to the case of Maka in which this constitution gave judgment earlier today, that the victims of these offences were not only adult prostitutes, but they came to this country for the purpose of carrying on trade as prostitutes. The coercion to which they were subjected was extremely minor compared with the coercion and corruption to which the victim in Maka was subjected. That said, these activities were carried out by these two appellants for commercial gain, over a substantial period of time." The sentence of four years' imprisonment on Roci for conspiracy to control prostitution for gain was reduced to three years. 10. The judge here found that Ramaj was one of the principals involved in bringing S into the United Kingdom and had supplied her to the brothel. In accordance with the jury's verdicts he proceeded on the basis that she had come willingly. She had worked in the brothel on two days or nights, 2 and 3 June. There was no evidence that on 3 June at least she was distressed or miserable. 11. Ramaj was born on 29 April 1985, and so at this time was just over 19 years old. He was of good character. In respect of that mitigation the judge stated: "You are of previous good character, and only 19 years of age. But that is balanced by the youth and naivete of your victim and the seriousness of the offence. I have earlier mentioned the lack of physical injury, the acquittals of rape and false imprisonment and the short duration of the enterprise. However, having seen [S] giving evidence over four court days, no one could doubt the adverse impact upon her of these events, and I thought her mother's confirming evidence was wholly credible on that point." It might appear from that passage that the judge was suggesting that the mitigation of Ramaj's youth and good character was removed by the effect on S. In our view the right way of reading that passage is that the judge was stating that the mitigating factors of good character and young age were to an extent offset by the aggravating feature to which he referred. 12. We consider that the sentence passed on Ramaj for his part in the trafficking of S was substantially too long. It is more difficult to determine precisely what the correct sentence should be. We have anxiously considered that. Taking account of all the various factors in the case to which we have referred, including Ramaj's age and good character, we have concluded that a sentence of five years' detention would be appropriate on the trafficking count. 13. There is also the sentence of 18 months for keeping a brothel used for prostitution. We have to consider that in conjunction with the renewed application of Atesogullari for leave to appeal against his similar sentence. We have been referred to a number of cases in this court relating to the management of brothels. We need only refer to the most recent two. In R v Rousseau [2003] 1 Cr App R(S) 15, the appellant had been sentenced following a plea to nine months' imprisonment for living on the earnings of prostitution. He had lived in premises which were part brothel and received 30 per client. That had occurred over a substantial period. The sentence was reduced to four months. In R v Middleton [2005] 1 Cr App R 42, the appellant had run a massage parlour offering sexual intercourse amongst other services. Up to twenty women were involved. His sentence of twelve months following a plea was reduced to nine months. In neither case was there any coercion or corruption.

5 14. Subject to one aspect, the facts of these cases were more serious than in the present case, if in the present case they are to be sentenced on the basis that S was a willing participant. That aspect is the element here that S had been brought from aboard to work in the brothel. Ramaj has been separately convicted in respect of that and Atesogullari was not charged with trafficking. It appears though that he must have known how S came to be here and from where she had come. As is clear from the passages in the sentencing remarks in respect of Ramaj, which we have quoted, this was a small, brief, amateur operation. Atesogullari is aged 22 and was of good character. 15. In the circumstances we consider that the appropriate sentences on this count would have been of three months. We do not distinguish between Ramaj and Atesogullari because, although Atesogullari pleaded guilty at a very late stage and Ramaj did not, Atesogullari appears to have had a greater involvement in the brothel than Ramaj. 16. We have also been referred to the fact that the woman from whom the appellants had taken over the brothel had been dealt with by means of a conditional discharge. Her involvement in the brothel was plainly substantially greater and over a longer period than these two. But we must conclude that the conditional discharge recognised that she had given evidence for the prosecution at the trial. 17. So far as Ramaj is concerned, his sentence of eighteen months' detention on count 5 (keeping a brothel) will be set aside, and one of three months' detention substituted. We grant leave to Atesogullari to appeal against sentence. He is not present today. Unless he requests that his appeal should be restored for hearing, such request to be made within 21 days of notification of our decision to him, the appeal will be allowed in his case and a sentence of three months' imprisonment substituted for that of eighteen months' imprisonment. BAILII: Copyright Policy Disclaimers Privacy Policy Feedback Donate to BAILII URL: