«Module 14 UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna Anti-human trafficking manual for criminal justice practitioners Module 14 Considerations ...»
manual for criminal
UNITED NATIONS OFFICE ON DRUGS AND CRIME
Anti-human trafficking manual
for criminal justice practitioners
Considerations in sentencing in
trafficking in persons cases
New York, 2009
The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. Countries and areas are referred to by the names that were in official use at the time the relevant data were collected.
This publication has not been formally edited.
Considerations in sentencing in trafficking in persons cases Objectives
On completing this module users will be able to:
" Recall the main principles of sentencing;
" Explain the role of the judiciary in sentencing;
" Recall the common aggravating factors to be considered in sentencing in trafficking in persons cases;
" Recall the common mitigating factors in trafficking in persons cases;
" Describe the ways in which information may be found to assist in sentencing decisions in trafficking in persons cases.
Introduction Theories of punishment have existed for thousands of years, dominated by two principle philosophies. Generally speaking, one theory advocates that the punishment administered should be justified on the basis of the crime committed. The other dominant school of thought argues that punishment should be forward thinking and imposed on the basis of the positive impact such punishment will have on the offender or on society more generally.
Criminal justice systems around the world have adopted a mixture of these elements as justification for imposing punishment on the guilty.
The general principles of punishment are, of course, applicable to trafficking in persons cases.
Trafficking cases may pose some unique characteristics including the fact that the crime is often committed in conjunction with a range of other offences.
The purpose of this chapter is to provide a short overview of factors that may be relevant to sentencing in trafficking cases. It should be remembered that the penalties provided for crimes will vary from jurisdiction to jurisdiction and be based upon various legal traditions, jurisprudence, national practices and differing policy objectives. An awareness of these factors will assist practitioners in ensuring that the penalties which are imposed accurately reflect the gravity of the offence(s) committed and the impact that such crimes have on victims, their families and society more generally.
The module first outlines the general principles of sentences. It then considers some of the potential aggravating and mitigating factors found in trafficking cases. Finally some guidance is given on how information to support sentencing decisions may be found.
Principles of sentencing As noted above, the principles which underline sentencing regimes around the world are varied and based upon a variety of factors. Having said this, some of the dominant principles
of sentencing reflected in various legal systems include:
" Proportionality: A sentence should be proportionate to the harm imposed and the benefits derived from trafficking and related exploitation. The harm may be to the individual victim, to their family or to the community at large (see discussion of harm below). It should be noted that this principle is explicitly recognized in article 11 of the United Nations Convention against Transnational Organized Crime (UNTOC). The article requires penalties to take into account the gravity of the offence and give due regard to deterrence. Various national penal laws confirm the tenor of this provision.
" Retribution or denunciation: The penalty is imposed in response to the offence and reflects society’s outrage towards the offence committed.
" Deterrence (both general and specific): With general deterrence, the penalty is imposed in order to deter society in general and to promote social order while specific deterrence is designed to prevent the particular offender from repeating the crime again in the future.
" Rehabilitation: This principle suggests that a sentence should assist in rehabilitating the offender so that they can cease to be a threat to society and in turn become a positive participant in society.
" Incapacitation or separation: The sentence is imposed in order to remove the offender, and the threat of harm he poses, from society at large.
" Reparation: The penalty is imposed on the basis that it restores balance by returning the victim to the place they were before the crime was committed.
In systems where there is judicial discretion in the imposition of a sentence, it will be important for criminal justice system participants to be familiar with the sentencing regime which governs your legal system.
Depending on your legal system those responsible for investigations can be guided by the principles outlined above (as well as aggravating and mitigating factors which are discussed below) in the collection of evidence and the presentation of the case to those responsible for prosecution or adjudication.
Prosecutors can use this information to assist them in developing their theory of the case, structuring their arguments and in particular drawing to the court’s attention that the facts of the case warrant particular consideration in relation to sentencing principles. As has been noted elsewhere in other modules, when possible it is advisable for those responsible for investigation and prosecution to liaise early and often for necessary and relevant information that may help the sentencing pattern.
Module 14: Considerations in sentencing in trafficking in persons cases 3 Judges responsibilities in sentencing Some legal systems may require courts to give primary consideration to certain principles of sentencing over others while other systems may leave it to the discretion of the judge. Other legal systems may provide little discretion to the court in imposing a sentence.
The judge will be guided by the principles of sentencing within their legal system. The judge will balance the applicable aggravating and mitigating factors against one another in determining a just and proportionate sentence for the particular case.
In some jurisdictions, members of the jury may have a role in recommending or determining sentences.
What are the main principles of sentencing?
What is the role of the judiciary (and in some cases juries) in sentencing?
What are the main forms of “harm” in the context of trafficking in persons?
Aggravating factors Aggravating factors are those circumstances present in the case, which warrant an increase in the penalty prescribed. In some jurisdictions, these factors may be expressly prescribed in laws; in others they may be reflected in jurisprudence. It is important to remember that what may have been an aggravating factor in one case need not necessarily be so in another.
Aggravating factors are context specific having regard to the particular facts at play.
In some cases, what has been identified in laws or jurisprodence as an aggravating factor may already necessarily be part of the offence. For example, in jurisdictions where there is a distinct offence for trafficking in children, the fact that the victim is a child is necessarily reflected in the design of the offence and the penalty, which is assigned to it. In such a case, the fact that the offence was committed against a child should not be viewed as an aggravating factor and used as a justification for increasing the penalty.
In short, each case is fact specific and the facts must be thoroughly examined and held up against the offences within your jurisdiction as well as any aggravating factors that may exist in your legal system.
The list of aggravating factors below is illustrative only and may or may not apply to any given case of trafficking in persons in your jurisdiction.
4 ANTI-HUMAN TRAFFICKING MANUAL FOR CRIMINAL JUSTICE PRACTITIONERSPrevious conviction(s) and behaviour, particularly where the previous convictions are for trafficking in persons or related offences A guilty party’s previous criminal record can be of relevance for sentencing considerations, particularly when they have been previously convicted for trafficking offences or related conduct such as offences involving coercion or violence. This factor can impact on a number of the sentencing principles identified above including specific deterrence, and denunciation.
Efforts should be made to identify, obtain and verify this information. Care should be taken in determining the relevance of the record. For example, if the offence is unrelated to trafficking and occurred a considerable time in the past, its relevance for sentencing purposes may be less clear.
Prior “bad” conduct Some jurisdictions may allow evidence of prior “bad” conduct to be considered when sentencing, even when this does not involve a previous conviction. “Bad” conduct may be very broadly defined.
Such conduct will be introduced for the purpose of establishing the character of the convicted party. It will be necessary to assess whether such information is relevant and how it relates to one of the principles of sentencing in your jurisdiction.
The offence was motivated by bias, prejudice or hate based on race, religion, sex, age or other personal characteristics that are immutable While trafficking cases are unquestionably motivated by money, traffickers may choose or target their victims on the basis of their personal characteristics. Where evidence demonstrates that the convicted person deliberately chose his/her victims because of a bias, prejudice or hate based on the personal characteristics of the victim, this should be presented to the court as a factor that warrants an increase in the penalty.
The offence involved planning and deliberation
Most trafficking cases will involve planning on the part of the offender that is often longterm and in great detail. Any claim from a defendant that they committed a trafficking offence with no prior planning should be investigated thoroughly. The fact that the offence was planned thoroughly speaks to the blameworthiness of the guilty party and such pre-meditation demonstrates a deliberate intent to harm the victim and to commit the criminal act.
The offender intended more serious harm than actually resulted
The fact that the guilty party’s intended exploitation did not actually take place should not diminish the severity of the offence. The consequences of the trafficking are relevant to the determination of an appropriate sentence. There is a danger that offenders could escape with lighter sentences because they have been intercepted at an early stage of the trafficking process, such as the recruitment stage.
Module 14: Considerations in sentencing in trafficking in persons cases 5 Any evidence that shows serious harm would have been the likely outcome if their plans had been successful should be reflected in the sentencing submissions.
The offender operated in conjunction with an organized criminal group The crime of trafficking is often perpetrated by a group involved in a criminal enterprise.
Care should be taken to investigate any possible linkages to an organized criminal group whether it is a well-organized criminal organization or a loosely affiliated crime group. If established during the sentencing process, this factor demonstrates a heightened threat to society and an increase in the gravity of the offence.
According to article 2 of the Untied Nations Convention against Transnational Organized Crime, “Organized criminal group” shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit;
The offence was motivated by financial or material gain This aggravating feature is likely to be present in virtually all trafficking cases to some degree and should be a significant factor for sentencing purposes. Financial gain should not simply be seen in terms of money; payment in kind, such as free accommodation, food, access to vehicles, and gifts all represents a financial or material gain for the offender.
The fact that human trafficking involves the ongoing exploitation and violation of the autonomy of the victim and is motivated by the greed of those who traffic makes the crime particularly heinous.
Evidence that the convicted person received a high level of profit from the activity may only strengthen claims for a strong penalty of incarceration.
Deliberate attempts to obstruction of justice If there is evidence to demonstrate that the convicted party deliberately attempted to obstruct the administration of justice during the investigative, or prosecutorial stages or during the sentencing, this can be taken to be an aggravating factor. Examples could include attempting to destroy or conceal evidence, misleading criminal justice officials or attempting to intimidate witnesses, police officers, prosecutors or other justice system participants.
6 ANTI-HUMAN TRAFFICKING MANUAL FOR CRIMINAL JUSTICE PRACTITIONERS
According to Article 23 of the Untied Nations Convention against Transnational Organized Crime,
obstruction of justice is to be criminalized. Obstruction means:
(a) The use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage to induce false testimony or to interfere in the giving of testimony or the production of evidence in a proceeding in relation to the commission of offences covered by this Convention;