MacCormack [2025] NICA 49: Establishing a 12–14 year starting band for aggravated human trafficking and clarifying how concurrent offences (drug supply and control of prostitution) aggravate the headline offence

Introduction

This ex tempore judgment of the Court of Appeal in Northern Ireland (Keegan LCJ, Horner LJ and O’Hara J) addresses a reference by the Director of Public Prosecutions under section 36 of the Criminal Justice Act 1988 (as amended) challenging the leniency of a global determinate sentence imposed on Oliver James MacCormack. The sentencing judge at first instance (HHJ Kerr KC) imposed a seven-year determinate custodial sentence (half in custody, half on licence) for a sustained course of offending between 2015 and 2022 involving nine victims and 40 offences spanning human trafficking for sexual exploitation, controlling prostitution, obtaining sexual services for payment, Class A drug supply, witness intimidation, and perverting the course of justice.

The central issue on the reference was whether the overall sentence was unduly lenient. In the course of deciding that question, the Court of Appeal has taken the opportunity to provide much-needed guidance in this jurisdiction on sentencing for human trafficking offences, including:

Identifying human trafficking as the appropriate “headline” offence where the wider criminality (control of prostitution and drug supply) is part of the exploitation matrix;
Indicating a starting band of 12–14 years’ imprisonment for high-culpability/high-harm trafficking where the trafficking is aggravated by connected offences such as Class A drug supply and control of prostitution (even where those offences are sentenced concurrently);
Restating the step-by-step sentencing methodology (range → aggravation/mitigation → pre-plea sentence → totality → plea reduction); and
Encouraging prosecutors to assist first-instance judges by proposing sentencing ranges in appropriate cases, for reasons of fairness and consistency.

Summary of the Judgment

The Court granted leave, held that the seven-year sentence was unduly lenient, and increased the overall sentence to nine years’ imprisonment. The Court concluded that the sentencing judge set too low a starting point (nine years) for the trafficking counts and did not sufficiently appreciate how the drug supply and control of prostitution offences aggravated the trafficking. The Court indicated that the appropriate band for this type of multi-offence trafficking case was 12–14 years, with a starting point “somewhere in the region of 12 years,” followed by a consecutive one-year term for the witness intimidation/perverting the course of justice, a totality check, and then a 25% reduction for the guilty plea—resulting in a final sentence just over nine years. The Court imposed nine years, noting a modest allowance for “double jeopardy” inherent in unduly lenient references and the impending sentencing of the respondent in the Republic of Ireland for other drug matters.

Factual and Procedural Background

MacCormack was prosecuted following a PSNI Modern Slavery and Human Trafficking Unit investigation into sexual exploitation in the greater Belfast area. His criminality involved:

11 human trafficking offences (arranging or facilitating travel with a view to exploitation);
9 counts of intentionally controlling the activities of a person in relation to prostitution;
4 counts of causing/inciting someone to become a prostitute;
7 counts of obtaining sexual services for payment;
7 counts concerning Class A drug supply; and
1 count of intimidation and 1 of perverting the course of justice.

The offending exploited vulnerable young women (some as young as 17–19 when the offending began). The respondent orchestrated and profited from prostitution, and also supplied heroin to the victims, thereby reinforcing dependency and control. He provided transport and arranged appointments irrespective of the women’s physical condition (including intoxication/withdrawal). He also sought to interfere with the administration of justice by intimidation and offering money for the withdrawal of a complaint.

At first instance, the judge treated trafficking as the headline offence but adopted a nine-year starting point, reduced by 12 months for age and health, and then by 25% for the guilty plea to reach six years for the trafficking. He imposed concurrent terms for prostitution and drugs (three years) and made one year consecutive for the intimidation/perverting the course of justice (the two being concurrent to each other), producing a total of seven years.

Detailed Analysis

Precedents and Materials Cited

R v Sharyar Ali [2023] NICA 2: Reaffirmed the limited function of a section 36 reference. The prosecution has no general right of appeal; the Court may enlarge a sentence only where it is “unduly lenient,” not merely because the appellate court would have chosen differently. Leave should be exceptional; the test is connected to maintaining public confidence in the administration of justice.
R v ZB [2022] NICA 69 and R v Hutton [2024] NICA 19 (para 58): Provided structured guidance for multiple-offence, multiple-victim sentencing, including the identification of a headline offence, the use of concurrent and consecutive terms, and the “totality” cross-check before applying plea reductions.
England & Wales Sentencing Guidelines: Not binding in Northern Ireland but treated as a useful guide, especially on assessing culpability and harm, and listing aggravating/mitigating factors in trafficking cases. The Court acknowledged some consistency issues but found the guidelines helpful insofar as they assist structured reasoning.
Linked cases: R v Heaney, Rodgers, Brown and Harvey: These were connected first-instance cases referred to by the sentencing judge for consistency. None were before the Court of Appeal, but the Court addressed disparity arguments, noting Brown received six years in a different profile of offending. The Court held any uplift in MacCormack’s case—given the greater number of victims and charges—was justified and produced no legitimate sense of grievance.

Legal Reasoning

Keegan LCJ, delivering the judgment, structured the appellate reasoning around three grounds raised by the DPP: (i) the sentence was outside the range for high-culpability/high-harm trafficking; (ii) insufficient deterrent effect; and (iii) insufficient aggravation of the trafficking by the drugs and prostitution-control offences.

Key steps in the Court’s reasoning:

Appropriate Sentencing Methodology: The Court re-stated the orthodox steps. A judge should: (1) identify the appropriate range for the headline offence; (2) weigh aggravating and mitigating features to set a pre-plea sentence; (3) decide concurrency or consecutivity for other offences; (4) apply the totality principle; and (5) apply plea reduction. This echoes ZB and Hutton.
Headline Offence and Aggravation: The Court endorsed the first-instance choice of trafficking as the headline offence. However, it held the judge did not fully appreciate how the concurrent drug supply and control of prostitution offences aggravate the trafficking. The drugs supplied were Class A and were used to secure, maintain and exploit dependency, increasing harm and culpability. Control of prostitution was not mere background; it was the operationalisation of exploitation. These factors elevated the trafficking into a significantly higher band.
Starting Band for Aggravated Trafficking: The Court indicated that “the range for this type of multiple offending” lies between 12–14 years. With the agreed aggravating features—including the number and vulnerability of victims, multiplicity and duration of the conduct, and cessation only upon detection—the proper starting point should have been “in the region of 12 years.”
Consecutive Sentencing for Distinct Offences: The Court agreed that witness intimidation and perverting the course of justice were distinct from the core exploitation and merited a consecutive sentence of one year (the two to be concurrent to each other). This aligns with Hutton’s guidance on when consecutive terms are generally appropriate.
Totality and Plea Reduction: Applying totality to the revised structure, the Court arrived at an overall figure “in the region of 13 years” pre-plea. Applying a 25% guilty plea discount yielded a final figure a little above nine years. The Court imposed nine years, reflecting a modest allowance for the “double jeopardy” aspect of unduly lenient references and noting the respondent’s impending sentencing in the Republic of Ireland.
Deterrence and Public Confidence: The Court stressed that the offending—predatory exploitation of nine vulnerable women—required a sentence that appropriately punishes and deters, and that leaving the seven-year term undisturbed would undermine public confidence. This dovetails with the Sharyar Ali articulation of the “unduly lenient” test.
Personal Mitigation: Although not the focus of the reference, the Court signalled reservations about the weight given to personal mitigation (age/health) in offending of this gravity. It underscored that such mitigation is limited in serious trafficking contexts.
Prosecutors Proposing Ranges at First Instance: The Court stated that it “does not offend prosecuting counsel’s duties to suggest a range” and that fairness to first-instance judges favours such assistance, especially where the Court of Appeal might later be offered ranges that were not canvassed below.

Impact and Forward-Looking Significance

This judgment is significant in six principal ways:

Sentencing Benchmark for Aggravated Trafficking: For multi-offence trafficking involving high culpability and harm, aggravated by control of prostitution and Class A drug supply, the Court’s indication of a 12–14 year starting band provides a practical anchor for future cases in Northern Ireland. It is guidance, not a rigid tariff, but will be highly influential.
Integration of Concurrent Offences as Aggravation: The Court makes explicit that concurrent offences forming part of the exploitative apparatus (drug supply and control of prostitution) should aggravate the headline trafficking sentence. Judges should avoid double-counting but must not treat these offences as neutral background simply because they are sentenced concurrently.
Structured Methodology and Totality: The decision consolidates a stepwise approach for multi-count/multi-victim cases, reinforcing ZB and Hutton. This improves consistency and transparency, particularly in complex trafficking prosecutions.
Prosecutorial Practice: The encouragement for prosecutors to propose sentencing ranges at first instance should enhance the quality of sentencing submissions and reduce avoidable references. It also promotes fairness to trial judges dealing with complex cases over lengthy periods.
Deterrence and Public Confidence: The case underscores that lenient sentences in serious exploitation can erode public confidence. Appellate correction will be used where necessary to convey denunciation and deterrence.
Disparity and Co-Defendants: The Court’s handling of disparity clarifies that different sentences among co-defendants are not inherently objectionable where offending profiles differ materially (e.g., number of victims, breadth of criminality). The yardstick is a just and proportionate sentence for the individual offender.

Complex Concepts Simplified

Section 36 Reference (Unduly Lenient Sentence): A special procedure allowing the DPP to ask the Court of Appeal to review a sentence. The Court can only increase it if it was “unduly lenient”—meaning so lenient that it would damage public confidence—not merely because the Court would have chosen a stiffer sentence.
Headline Offence: In multi-offence cases, the main offence that best captures the overall criminality. Here, human trafficking was the headline because the other offences were mechanisms by which exploitation occurred.
Concurrent vs Consecutive Sentences: Concurrent sentences run at the same time; consecutive sentences run back-to-back. Distinct offences against different interests (e.g., witness intimidation) often justify consecutive terms, subject to totality.
Totality: A final cross-check to ensure the overall sentence is just and proportionate to all the offending considered together. It guards against sentences that are either crushing or unduly lenient when multiple counts are involved.
Guilty Plea Discount: A reduction (here, 25%) applied after the pre-plea sentence is set, reflecting factors like saving court time and sparing victims from giving evidence. The earlier the plea, generally the larger the discount.
Aggravating Factors: Features that increase seriousness and drive the sentence up. In this case: multiple victims, prolonged course of conduct, exploitation of vulnerability (age, drug dependency, isolation), use of Class A drugs to control victims, and attempts to intimidate a witness/pervert justice.
“Double Jeopardy” Discount in ULS References: Not the criminal-law rule against retrial, but a shorthand for a modest reduction recognising the hardship of being re-sentenced upwards after an initial sentence. The Court noted any such allowance was accommodated within the nine-year outcome.
Determinate Custodial Sentence (DCS): A fixed term where, typically, half is served in custody and half on licence in the community, subject to conditions and recall.

How This Judgment Refines Sentencing Practice

Drawing together the Court’s guidance, a practical sentencing framework for aggravated trafficking cases emerges:

Identify the headline offence (often trafficking in exploitation cases).
Assess culpability and harm. England & Wales guidelines are a useful (non-binding) cross-check.
Select a starting band. For high-culpability/high-harm trafficking aggravated by connected exploitation offences, look to the 12–14 year band; set a starting point within it (e.g., “in the region of 12 years”).
Account for aggravation and mitigation. Treat control of prostitution and drug supply as aggravating the trafficking where they facilitate the exploitation.
Determine concurrency/consecutivity for other distinct offences (e.g., witness intimidation/perverting the course of justice often merit a discrete consecutive term).
Apply the totality principle.
Apply the appropriate plea discount.
Consider modest “double jeopardy” allowance in an unduly lenient reference, if appropriate.
Check for unwarranted disparity with co-defendants, bearing in mind material differences in culpability and harm profiles.

Conclusion

MacCormack is a pivotal Northern Ireland authority on sentencing for modern slavery/human trafficking cases with linked prostitution-control and Class A drug supply offending. It:

Sets a clear 12–14 year starting band for high-culpability/high-harm trafficking aggravated by concurrent exploitation offences;
Clarifies that concurrent offences can materially aggravate the headline trafficking sentence, especially where drugs were used to secure and maintain control over victims;
Reinforces the structured method and totality principles for multi-offence/multi-victim cases;
Encourages prosecutors to propose sentencing ranges at first instance; and
Reasserts the importance of deterrence and public confidence in correcting unduly lenient sentences.

Ultimately, the Court recast the sentence to nine years, conveying the requisite denunciation of predatory exploitation of vulnerable young women while providing judges and practitioners with practical, jurisdiction-specific guidance to secure principled and consistent sentencing in future trafficking cases.