Roman Pacan, Ali Arslan, Edward Facuna, Martin Doci 2009 Oct 16 Court of Appeal

All these appeals were dismissed. The men were convicted between them of trafficking, sex exploitation and child and abuse charges, around Luton and London. For details see below.

This post will be referenced in [3] Cathy Fox Blog to be published Sex Slavery – Slave Girl Return to Hell by Sarah Forsyth and Tim Tate

For indexes of Court of Appeal Documents and newspaper articles:

An Index / Timeline of Newspaper Articles on Cathy Fox Blog [1]

An Index / Timeline of Court Appeal Documents on Cathy Fox Blog [2]

[2009] EWCA Crim 2436

No. 2008/06441/D1, 2008/06444/D1 2008/06837/D1, 2008/00252/D1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London

WC2A 2LL

Friday 16 October 2009
Before:

Lord Justice Maurice Kay

Mr Justice Sweeney

and

Mrs Justice Slade DBE

Regina
v.

Roman Pacan

Computer Aided Transcription by Wordwave International Ltd (a Merrill
Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404
1400; Fax No 020 7404 1424

(Official Shorthand Writers to the Court)

Mr J Winship appeared on behalf of the Appellant Roman Pacan

Mr S Robinson appeared on behalf of the Appellant Ali Arslan

Mr P Wakerley appeared on behalf of the Appellant Edward Facuna

Mrs T Ossack appeared on behalf the Appellant Martin Doci

Miss A Morgan appeared on behalf of the Crown

JUDGMENT

(As Approved by the Court )

Friday 16 October 2009

LORD JUSTICE MAURICE KAY :

1. The appellants are Roman Pacan (aged 39), Edward Facuna (aged 55),
Martin Doci (aged 30), and Ali Arslan (aged 44). On 3 November 2008, after
a trial in the Crown Court at Southwark, they were convicted of various
offences for which they were sentenced on the following day. The offences
arose out of the sexual exploitation of two young women who were forced to
work as prostitutes. Pacan was convicted of trafficking a girl called A [name redacted]
into the United Kingdom for sexual exploitation. He was sentenced
to eleven years’ imprisonment. Facuna was convicted of the same offence and
received the same sentence. Doci was convicted of trafficking A
within the United Kingdom for sexual exploitation. He, too, received a
sentence of eleven years’ imprisonment. Arslan had pleaded guilty to two
offences of keeping a brothel for prostitution, for each of which he
received sentences of four years’ imprisonment. He was convicted by the
jury of three other offences as follows: controlling a young woman called B [name redacted] as a prostitute for gain, for which he received five years’
imprisonment; trafficking A within the United Kingdom for sexual
exploitation, for which he received a consecutive sentence of nine years’
imprisonment; and controlling A as a child prostitute, for which he
received a concurrent term of five years’ imprisonment. The total sentence
in his case was therefore one of fourteen years’ imprisonment. In relation
to all appellants appropriate orders were made that time spent on remand
should count towards sentence.

2. Two other men were convicted by the jury. Mesut Arslan (who is the
nephew of Ali Arslan) was convicted of controlling a child prostitute and
of keeping a brothel. He received a total sentence of 30 months’
imprisonment. Valmir Gjejta was convicted of controlling prostitution and
was sentenced to three years’ imprisonment.

3. The four appellants now appeal against their sentences by leave of the
single judge, who observed that the grounds of appeal were put in the form
of an inappropriate departure from guidelines promulgated by the Sentencing
Guidelines Council. It was for that reason that he gave leave.

4. The facts of the case are extremely serious. Of the two young women in
question, the first to come to this country was B. Only Ali Arslan was
convicted of offences in relation to her.

She was from Lithuania and aged 22 years when she came here in early 2005.
Her travel had been facilitated by a Lithuanian man who proceeded to take
her passport from her. In London she was met by a number of men who sold
her to some Albanian men. They forced her to work as a prostitute to pay
back the money that had been spent on her travel. Half of her earnings were
to go to Arslan. She was warned that if she escaped she would be found. At
the time Arslan was running a brothel in East London. It was there that
B was taken three or four days after her arrival in this country. There
were ten other women, of different nationalities, working as prostitutes in
the brothel. B was forced to work five days a week. She was subsequently
bought by another Albanian man but continued to work from the brothel run
by Arslan. On 24 April 2005 she managed to escape and made her way to a
police station.

5. The case for the prosecution against Arslan thus far was that he had
controlled prostitutes from the brothel in East London and that he had
known that B had been trafficked into the United Kingdom to work as a
prostitute in his brothel.

6. A point came when Arslan ceased to carry out his activities from the
brothel in East London. He set up another brothel in Luton. It was to that
brothel that A was eventually taken and forced to work as a
prostitute. She was only 16 years of age. She had been trafficked into the
United Kingdom by Pacan and Facuna. They had collected her by car from her
home town in Slovakia in September 2006. There was another young woman
named C  in the car, but she did not found the basis of any of the
counts on the indictment. A was told that she would work in a public
house in Peterborough. After she had been in this country for about a week,
she was sold to an Albanian man known as Claude, who had an accomplice
called Kevin. They forced her to work as a prostitute. She was threatened
by Claude about going to the police and she was regularly beaten and raped.
Eventually she was taken to Arslan’s brothel, where ten or fifteen other
girls worked. She was taken there by Doci. He had been present on the
occasion when Claude and Kevin had bought A. He was also present when
A was taken into the brothel in Luton. For the first two weeks of her
stay in that brothel she was controlled by Doci; but after that he sold her
to Ali Arslan. Throughout that period she stayed in the brothel because she
had nowhere to go.

7. Although C (the other girl who had travelled from Slovakia) did not
feature at the brothel, she was present on the occasion when A was
sold to Claude at a car park in Peterborough. Doci was also present, and it
was he who drove her away afterwards.

8. Mesut Arslan worked in his uncle’s brothel in Luton. He was convicted
of the offences to which we have referred. In due course, in passing
sentence upon him, the judge observed that he was essentially the
instrument of his uncle and bore less responsibility for what had taken
place than did any of the other defendants.

9. Pacan had previous convictions in the Czech Republic, including one in
1997 for persistently soliciting a woman (or women) for prostitution. The
other appellants either had no previous convictions or no relevant
convictions.

10. When the judge came to pass sentence he began by saying that he had
considered the definitive guidelines for these offences published by the
Sentencing Guidelines Council. It is plain from both his early and indeed
later remarks in the course of passing sentence that he was
concerned that the sentences he was about to pass might be seen as stepping
outside the guidelines. He said that there were particular features in
respect of these offences which justified such a departure. He made a
number of general observations about these offences which he described as
“despicable” and “not to be tolerated in a civilised society”. He described
the several defendants as having each played a role in a degrading activity
that produces untold misery. He added:

“Human trafficking where it exists exploits the impoverished, the young and
the socially disadvantaged.”

At a later point he said:

“The effect of what you collectively did in relation to A. …, and
that to which you participated in relation to B.…, Ali Arslan, was to
leave these two young women devastated, humiliated, violated, unable to
trust anyone, and turning at times to contemplating self-harm because of
all that had happened to them.”

At a number of points the judge referred specifically to the age and
vulnerability of A.

11. The judge dealt individually with each of the appellants. He dealt
with Pacan and Facuna together, having come to the conclusion that he
should draw no distinction between them for sentencing purposes. No point
is taken about that on these appeals. Of Pacan and Facuna he said:

“Neither of you get credit for a plea of guilty. The aggravating features
in your case are obvious. This child was tricked and exploited by you and
you knew full well what would happen to her, as indeed did happen to her
when you handed her over to Claude. You are not much. … removed in terms of
responsibility from Claude or Kevin, were they to be in the dock standing
beside you.”

The judge repeatedly referred to their involvement at an early stage and to
their awareness of what was going on.

12. Turning to Doci, the judge said that he saw little to distinguish Doci
from Pacan and Facuna. He added:

“.… you are just slightly further down the line than an inevitable chain of
consequence as far as A was concerned. Although in your case you not
only trafficked her but for a while were involved in controlling her
activities as a prostitute. In your case you were clearly involved at an
early stage in what was happening to A; you were at that meeting in
the car park and you, I am quite sure, were aware of what was going on.

.… in due course when you met up again with Claude and Kevin in Luton, I am
quite sure you will have known what had been happening to A in the
meantime and why it was with confidence you would be able to take her to
Mellows [the brothel] and to hand her over there to Ali Arslan for her
there to work as a prostitute. You were party to this dreadful chain of
events which involved her terrible exploitation. You are as cynical, as
callous and contemptible as the rest of those involved in her trafficking.

.… you like the others have shown no remorse.”

13. Finally, the judge dealt separately with Ali Arslan’s involvement in
relation to B and in relation to A. As regards B, he said:

“.… you knew full well that B had been trafficked. I am quite sure that
you knew that she was being coerced into working at your brothel where you
were prepared to take her on as one of the many prostitutes you were there
controlling.”

A little later he said:

“It is said in mitigation that you did not coerce or force anyone working
in either of the brothels with which this case and you are concerned, but
the fact in my judgment is that others had already done for you that work.
Those with whom you were willingly doing business had done and were
continuing to do the coercion and forcing someone such as B to work in
an establishment such as yours, you paying half of that which B earned
from the activity that she was being made to do, and you keeping the rest
of that money for yourself. You stand in my judgment as far as B is
concerned not much lower in terms of responsibility for what happened to her, beyond those that actually trafficked her. They trafficked her knowing that you would take her on, as you did, until she managed to escape.”

Of events in Luton, the judge said:

“You then. … set up Mellows quite purposefully as a brothel, and word no
doubt went around again to those trafficking women as to where Ali Arslan
was, and where men who would engage in the trafficking of women could take
those women. It seems to me no coincidence that those who were involved in
trafficking Martina.… had connections to Mellows, and it was to Mellows
that she was brought.”

The judge went on to emphasise the age of Martina. He observed that
everyone was aware of her age; indeed, she had told Arslan exactly how old
she was. She had not been a willing participant in what had been happening
to her since her arrival in this country. Again on the subject of coercion,
the judge said:

“It is said there was no coercion; that there was nothing expressed or
opened in that respect, I accept, but the atmosphere of expectation I am
sure was perfectly clear to Martina, who I am sure, and have no doubt, was
in terrible fear of what would happen if she did not co-operate; then
barely able to speak English in a strange country with no one to turn to,
no one to trust, and indeed at that stage, in my judgment, with no idea
where she actually was.

What happened to [her] is a terrible story of betrayal. …”

A little later he said:

“You were not directly cruel, you did not directly coerce, but as I have
said, the expectation was clear that if she did not co-operate, an
expectation set upon her already by others, I have little doubt as to what
probably would have happened.. …

.…

My conclusion is that no compassion exists on your part. You are a callous
man and your pretence at compassion I treat as mere humbug.

.…

Each of [the two brothels] were sizeable operations; 15 to 17 girls working
a day, most days of the year at Mellows making you quite obviously tidy
profits to fund, on the limited evidence in the trial, a smart car, living
in London and trips to nightclubs.

It is. … that the destination for B and for A, both tricked and
trafficked into prostitution, was to establishments that you controlled.”

When he passed sentence, the judge stated that he had reduced the sentence
for the trafficking offence to take into account totality.

14. We turn to the grounds of appeal. We begin with the point sought to be
made about the Sentencing Guidelines Council’s definitive guidelines. It is
well-known that, by section 172 of the Criminal Justice Act 2003, in
sentencing an offender every court must have regard to any guidelines which
are relevant to the offender’s case. “Guidelines” there means sentencing
guidelines issued by the Council under section 170 as definitive
guidelines. The definitive guidelines on the Sexual Offences Act 2003 were
published in April 2007. So far as trafficking for sexual exploitation is
concerned, they cover the offences under sections 57, 58 and 59 of the
Sexual Offences Act. It is pertinent to observe that in prescribing
guidelines, they draw no distinction between trafficking into, trafficking
within, and trafficking out of the United Kingdom for sexual exploitation.
The maximum penalty for all these offences is one of fourteen years. In a
box set out on page 131, the guidelines identify the more serious of two
forms of trafficking as trafficking with an involvement at any level, in
any stage of the trafficking operation “where the victim was coerced”. The
starting point is then set as six years, with a sentencing range from four
to nine years. A specific cross-reference is made to cases where the victim
is under 13 years of age, but, more generally, a list of thirteen
aggravating and three mitigating factors (referred to as “additional
aggravating and mitigating factors”) are there set out. They include, as
aggravating features, deception and the use of force, threats of force or
other forms of coercion. In the text preceding those stated guidelines,
there is an uncontroversial description of the seriousness of this type of
offence. The following two sub-paragraphs are relevant:

“4. 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.

.…

8. The starting point for sentencing for 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.”

15. When the judge passed sentence, he commented that he had also had
regard to decisions of this court from the period prior to the promulgation
of the definitive guidelines. He found them difficult to reconcile as
between themselves. We are not entirely surprised. Suffice it to say that
the authorities in question were not judicial guideline cases, but cases on
their individual facts.

16. The judge was correct to consider and to have regard to the
guidelines. We understand why he felt uncomfortable about his conclusion
when set against the Council’s guidelines. As we see it, there is a degree
of ambiguity in the way the guidelines are set out. Thus, for example, the
bracket for which six years’ custody is the prescribed starting point
assumes coercion. However, coercion then appears as a potential additional
aggravating factor, and indeed appears in paragraph 8 as one of a number of
factors, including vulnerability and, by implication, age of victims, which
“should move sentences towards the maximum 14 years”. Age is not referred
to in the specification of a starting point of six years. Nor is it
mentioned as an additional aggravating factor in the table immediately
below. But it is referred to, and must have been considered relevant, on
the page of text preceding it. There is similar ambiguity as to
vulnerability. For these reasons we understand why the judge felt that he
might have been going outside the guidelines, although he was satisfied
that he was justified in so doing.

17. In this case the judge took account of the age and vulnerability of
the victims which, when coupled with the other factors including coercion,
significantly aggravated the case beyond the starting point and indeed
above the range set out in the guideline. It cannot be suggested that
sentences above nine years can never be passed. After all, the Sentencing
Guidelines Council does not purport to create a new and reduced maximum for
the offence with which it is dealing. In our view, the approach of the
judge was entirely consistent with paragraph 8 of the text. We have come to
the conclusion that he did not act outwith the guidelines. He merely
struggled with the element of ambiguity which we believe exists within them
and produced a result which we find to be susceptible to accommodation
within them. In our judgment his approach in that regard cannot be faulted.

18. We turn to the individual appellants, save that we deal with Pacan and
Facuna together because the judge did and their respective counsel do not
take exception to that (at least as a starting point). It is submitted on
their behalf that they treated A in a relatively kindly way. Of
course they did. It was their task to win her confidence after they had
deceived her as to her ultimate fate in this country. They brought a 16
year old girl here in order to plunge her into sex slavery. They knew what would befall her at Claude’s hands. She was brutalised into submission. That is the basis upon which the judge approached the case. He had heard and seen the evidence. We respect the
conclusion to which he came. Given that conclusion, with which we agree, in
our judgment the sentences of eleven years’ imprisonment cannot be said to
be manifestly excessive. The appeals of Pacan and Facuna are therefore
dismissed.

19. The same point arises in the case of Doci about the Sentencing
Guidelines Council. The submissions made today on his behalf in our view
consistently understate his involvement. Although the offence of which he
was convicted was trafficking within and not into the United Kingdom, we
have already observed that the maximum sentence for both those offences is
the same, and indeed the Sentencing Guidelines Council does not distinguish
between them. Doci was deeply involved at the point where A passed
from Pacan and Facuna to Claude, and when later she moved into Mellows.
They knew what had happened to her in the meantime. In Mellows Doci
initially controlled her as a child prostitute before selling her on.
Again, we view his case with the utmost seriousness. We respect the view
formed by the trial judge as to his role and his relationship with the
other defendants and as to his position in the chain relative to them. In
those circumstances we conclude that in his case the sentence of eleven
years’ imprisonment was not manifestly excessive; nor was the concurrent
sentence for controlling a child prostitute manifestly excessive. A further
point is sought to be made on his behalf, namely that it is suggested that
there is disparity between his sentence and that passed upon Mesut Arslan.
We reject that submission. The judge came to a clear view about their
respective responsibility and was convinced that Mesut Arslan was acting
essentially as the instrument of his uncle.

20. Finally, we return to Ali Arslan. His conviction on count 5
(trafficking A within the United Kingdom for sexual exploitation)
means that he was involved in the trafficking of A, that is to say in
arranging and facilitating her travel within the United Kingdom, intending
to cause her to become a prostitute. This is not simply a case of a brothel
keeper upon whose doorstep a potential prostitute unexpectedly arrived. The
judge’s assessment was that Ali Arslan was a ready and willing end
purchaser of young girls whom he did not personally coerce, but in respect
of whom he knowingly took the benefit of the coercion to which they had
already been subjected—the cynical and ruthless brutalization that had
driven them into submission.

21. Alone of the appellants, Ali Arslan’s offences cover both young women.
We can see no basis for disagreeing with the judge’s conclusions about his
role. We reject in terms the submissions of Mr Robinson that this is “just
an average trafficking case”. In Ali Arslan’s case there was no error of
principle in the judge’s approach to sentencing. The issue therefore is
whether a total of fourteen years’ imprisonment is manifestly excessive. We
are satisfied that it is not. It might have been aggregated in different
ways, but we see no reason to interfere with any of any of the individual
sentences.

22. Accordingly, all these appeals against sentence are dismissed.

Please note that victims of abuse may be triggered by reading this information. The Sanctuary for the Abused [A] has advice on how to prevent triggers.  National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups. Other useful sites are One in Four [C]  and Havoca [D]. Useful post on Triggers [E]  from SurvivorsJustice [F] blog. Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.

Links

[1] Cathy Fox Blog 2015 May 8 [constantly updated] Index Timeline of Newspaper Articles on Cathy Fox Blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/

[2] Cathy Fox Blog 2015 May 8 [constantly updated] An Index / Timeline of Court Appeal Documents on Cathy Fox Blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

[3] Cathy Fox Blog to be published Sex Slavery – Slave Girl Return to Hell by Sarah Forsyth and Tim Tate

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

[B] NAPAC http://www.napac.org.uk/

[C] One in Four http://www.oneinfour.org.uk/

[D] Havoca http://www.havoca.org/HAVOCA_home.htm

[E] SurvivorsJustice Triggers post http://survivorsjustice.com/2014/02/26/triggers-what-are-they-and-how-do-we-work-through-them/

[F] SurvivorsJustice Blog http://survivorsjustice.com/

[G] Jim Hopper Mindfulness http://www.jimhopper.com/mindfulness/

[H] Jim Hopper Meditation http://www.jimhopper.com/mindfulness/#cultivate

This is all written in good faith but if there is anything that needs to be corrected please email cathyfox@bigfoot.com

cathyfox the truth will out, the truth will shout, the truth will set us free

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2 Responses to Roman Pacan, Ali Arslan, Edward Facuna, Martin Doci 2009 Oct 16 Court of Appeal

  1. Pingback: An Index and Timeline of Court & Court of Appeal, EWCA Documents on Cathy Fox Blog | cathyfox blog

  2. Pingback: Roman Pacan, Ali Arslan, Edward Facuna, Martin Doci 2009 Oct 16 Court of Appeal | meggiemom342

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