On 23/05/2011, the OC – CID of Mugumu police station received information from two intelligence officers of Tanzania National Parks stationed at Serengeti National Park, that there were persons selling elephant tusks to a person putting up a hotel in Mugumu Township. Acting on the information the OC – CID instructed 5 police officers to accompany him to the hotel. Where they conducted a search and recovered four pieces of elephant tusks from the room occupied by the appellant and his wife. On further interrogations the appellant told them he had purchased them from Kasika John Juma and Lameck James and directed the officers where the two were residing. The police officers conducted a search on their respective rooms and found nothing, on interrogations the two admitted to have sold the trophies to the appellant and that they had bought the same from one Mwita John Chacha. The accuseds were then charged with those two offences. This was a second appeal against an unsuccessful appeal to the High court at Mwanza against conviction and sentence by the appellant. The appellant and three others who were acquitted by the trial court, the Mugumu District court in Serengeti, were accused on two different offences. The first count was against the appellant alone on unlawful possession of government trophies contrary to section 86(1) and (2) of the Wildlife Conservation Act No. 5 0f 2009, read together with paragraph 14 (d) of the first schedule and Sections 57 (1) and 60 (2) of the Economic and Organized Crimes Act Cap 200 R.E 2002. The second count was against all the accused on unlawful dealing in government trophies contrary to Section 84(1) of the wildlife Conservation Act No. 5 0f 2009, read together with paragraph 14 (b) of the first schedule and Sections 57 (1) and 60 of the Economic and Organized Crimes Act Cap 200 R.E 2002. The appellant was found guilty on the first count and sentences to 8 years imprisonment. And all the accused were acquitted on the second count. The appeal was allowed, the decision was quashed and the verdict of guilty was set aside. The court remitted the matter to the trial court for retrial before another magistrate with competent jurisdiction.
On 15th June, 2011, the appellants were caught in Rwashagi area within SENAPA in possession of one carcass of a zebra together with one knife, one spear, one bush knife and a motor cycle. They were accused to have hunted the animal. This was a second appeal, the three accused persons were charges and convicted first in the Bunda District court, being aggrieved with the decision they appealed to the High Court Mwanza Registry, again the High Court disbelieved the accused and found the prosecution case proved beyond reasonable doubt. The accused being aggrieved once again appealed to the court of appeal. The Court of Appeal quashed the decision of the first appellate court.
As a result of an earlier ruling, namely reversing the verdict of acquittal of the District Judge and recording a conviction against both respondents, it is now the task of the Court of Appeal ("the Court") to impose such sentence as is proper in the circumstances.
The trial judge found that the two respondents and another man, who gave evidence for the prosecution, conspired together to import into Hong Kong 619 ivory tusks. The two charges the respondents faced were: 1. Conspiracy to import unmanifested cargo, contrary to common law and Section 18(1)(a) of the Import and Export Ordinance, Cap. 60; and 2. conspiracy to import scheduled species without licence, contrary to common law and section 4(1) of the Animals and Plants Protection of Endangered Species Ordinance (Cap. 187).
The first respondent, an ivory carver, was expected to receive ivory of a value of about USD 500,000, it being accepted that this ivory could not have come into his possession by legitimate methods. The second respondent, although a supplier and not a user of the ivory, was involved in the illegal importation into Hong Kong, worth approximately USD 1M. The Court found that this was a serious conspiracy to import schedule species into Hong Kong.
The Court found that the nature of the offences are serious in nature and require a proper sentence on the first charge of an immediate nine months of imprisonment on each of the respondents. It is worth noting, that the maximum punishment of offences against Section 18(1)(a) of Cap. 60 has been lifted to USD 50,000 and two years imprisonment in 1984. With regard to the second charge, the offence against Section 4(1) of Cap. 187, the maximum sentence for a first offender (which both respondents are in this case) is a fine of USD 5,000. Here, the Court noted that this amount, in the view of the importance of the protection of species, seems to be a derisory maximum. The Court therefore suggested here that the Legislature should re-examine the penalty which can be imposed under that Section. A maximum fine of USD 5,000 was imposed on each of the respondents.
Finally, the Court also reasoned the following:
"It is our custom, on an application for review, to allow a discount to respondents from the sentence that we think should have been imposed by the trial judge. We shall follow that practice in this case, and accordingly reduce the sentence of nine months imprisonment on the first charge to one of six months. We do not propose to allow any discount of the fine of USD 5,000 imposed on each respondent on the second charge." (Provided by: UNODC SHERLOC)
The appellant pleaded guilty to various offences consisting of dealing with specimens of rare orchids,which were protected by regulations made in accordance with the Convention on International Trade in Endangered Species (CITES). He had travelled extensively to obtain samples of rare orchids from the wild, with a view to selling them to dealers and collectors. Sentenced to a total of 12 months' imprisonment, with four to serve and the balance suspended, fined GBP 10,000, with a forfeiture order in respect of the specimen plants, and ordered to pay GBP 10,000 prosecution costs. The appellant was fined GBP 200, onother charges.
The three offences in counts 2, 3 and 4 of the principal indictment, involving offering for sale restricted specimens, being knowingly concerned in the harbouring, keeping or concealing of or dealing with restricted goods and selling restricted specimens, concerned the applicant dealing in rare species orchids. The orchids concerned were slipper orchids from South America. Over a period of time it is plain from the pleas and the nature of the counts that the applicant has been trading in prohibited species of orchids. He is a considerable expert in his own right. He is an amateur botanist who hasobviously become a leading authority on orchids of horticultural merit in general and slipper orchids inparticular.
The current appeal case holds that the sentence of 12 months was too long, bearing in mind that the maximum sentence for the offence was two years, and that the same offence covered dealing in the products of dead animals,such as ivory and rhino horn.
The Court has decided that the proper sentence in this case is one of six months'imprisonment, which should be treated as suspended as to the balance of that period from today,which will result in the applicant's immediate release. The fine of GBP 10,000 should be reduced to a fine of GBP 2,500, which is approximately the amount which the applicant says he is able to offer from the profits of his grocer's shop by payments of GBP 200 a month. The Court did not think it right to order installment payments, but simply to say that there should be a fine of GBP 2,500 payable in 12 months from today with a two month period of imprisonment in default. There should be no alteration of the additional small fine of GBP 200, making a total financial penalty of GBP 2,700. The order for costs of the prosecution should be remitted.
The final result therefore is that the applicant will have a sentence of six months in all (all the sentences being concurrent), so much of which is suspended as to allow his immediaterelease, fined GBP 2,700 payable in 12 months with two months in default, and no further order. (Provided by: UNODC SHERLOC)
The appellant pleaded guilty to being knowingly concerned in fraudulently evading the prohibition on the importation of a prohibited species of endangered falcon. He was stopped while entering the country with his car, which was found to contain four young birds of prey, Gyr falcons, worth between GBP 10,000 - 15,000 each.
The appellant was stopped at the customs point at Eastern Docks, Dover, in June 2010, by customs officers who searched and found the said material intended for trafficking. A seat of the car was adapted, by taking out the foam, to hide the said material. In answer to the customs officer, the appellant admitted that he thought it was illegal to import the birds. He was subsequently arrested.
He said he had obtained the materials in Germany and that he had been offered the German equivalent of GBP 600 plus expenses to bring them into the country although he had not at the time of his arrest been paid anything. He went on to say that he was instructed to deliver them to another person who would approach him in a parking place outside the customs area at Dover. He had no knowledge of the identity of that person.
The appellant was convicted on the one count and sentenced to 18 months imprisonment. He now appeals this sentence, raising the contention that there should not have been any custodial sentence at all, and if so 18 months is far too extensive for the offence committed. He also submits that in any event, his role in this particular enterprise was a very humble one.
The Court reasoned that for purposes of deterrence, custodial sentence of some length was inevitable and was properly regarded by the learned judge. The Court draws attention to the appellant's good character, the fact that this was an isolated incident, that he has lost his job in consequence of it, and that not only has he got nothing out of it but he has suffered the loss of GBP 2,000 to which was already referred above.
As such, the Court reasoned that an appropriate sentence for this offence was one of nine months instead of 18, and as such the sentence of 18 months is quashed and substituted for a sentence of nine months. (Provided by: UNODC SHERLOC)
The appellant was convicted of one count of keeping and offering for sale a peregrine falcon and six counts of selling such birds, contrary to the Control of Trade in Endangered Species (Enforcement)Regulations 1985. An off-duty police officer guarding the nest of a breeding pair of peregrine falcons saw three men, including the appellant, approach the nest site and subsequently found that two chicks were missing. When his premises were searched a year later, a number of peregrine falcons were found. Sentenced to 18 months' imprisonment.
The question raised is not whether he ought to have been sentenced to imprisonment but whether the sentence of 18 months was or was not excessive. The maximum sentence for any of these offences was one of two years' imprisonment. There were here seven offences with which the court had to dealand the sentences of 18 months' imprisonment were imposed concurrently.
Mr Salter, appearing on behalf of the defendant, says that the offences were not at the top of the scale of possible offending; the appellant was genuinely interested in birds and knowledgeable about them; he was not simply taking birds from wild life solely for the purpose of profit or cruelty; and accordingly the sentence of 18 months'imprisonment, which allowed for the sentence not being at the top of the range, was not sufficiently scaled down.
The appellant did not plead guilty; he contested the matter all the way. In this Court's judgment the sentence of 18 months' imprisonment, which was imposed by the trial judge on each of the counts, was not manifestly excessive or wrong in principle. Accordingly, the appeal against sentence must be dismissed. (Provided by: UNODC SHERLOC)
The appellants pleaded guilty to conspiring to sell restricted specimens, rhinoceros horn, contrary to the control of the Trade in Endangered Species (Enforcement) Regulations 1985. The second appellant was the owner of a quantity of rhinoceros horn which had come into his possession many years previously, before the restrictions on selling rhinoceros horn came into effect.
The second appellant was sentenced to life imprisonment for murder in 1986, and made arrangements for thehorn to be stored. He then decided to sell the horn, and caused the second appellant to make inquiries with a view to selling the horn. A person who was approached informed the RSPCA, andinspectors posing as potential buyers entered into negotiations with the appellant and others involved. The two RSPCA inspectors were replaced by two undercover police officers, and arrangements were made for the money to be paid.
Eventually the first appellant was arrested. Sentenced to nine months'imprisonment and 15 months' imprisonment respectively, with an order depriving the second appellant of his rights in the rhinoceros horn and an order for the payment of prosecution costs by thesecond appellant.
The current appeal case deals with the following issues:
The appellant Eley, respresented by Mr Burke, had throughout the meetings with the RSPCA and the undercover officers, as was apparent from the transcript of their conversations, questioned whether the proposed sale was lawful. But they gave equivocal answers, all avoiding giving a straight answerto those questions. He submits that Eley, in those circumstances, had been entrapped by the RSPCA undercover officer, and should receive a substantial discount on that account.He pointed out, as indeed did Miss Davies for the appellant Bull, that new Regulations came into force in 1997, replacing the 1985 Regulations and, under those Regulations, the sale certainly of part of the catalogue of rhino horn would have been lawful because about 30 per cent of the rhino hornwas from South Africa and there is special treatment in those Regulations. In all the circumstances MrBurke asked the Court to quash the sentence completely or to reduce it.
Miss Davies, in the course of her submissions, accepted that the sentence of 15 months' imprisonment was correct in principle, but submitted, in all the circumstances, that it was too long, but that he, like Eley, had put forward his plea on the basis of recklessness as to knowledge of the illegality, but she accepted that he was in a different position to Eley, because he had the advantage of knowledge of the sale and purchase of the single horn in 1994, which was accompanied by the exemption certificate, so he was on much more notice than Eley that sales of this kind of commodity were now regulated.
But as Miss Davies frankly accepted, her principal submissions were not on the sentence, but on theforfeiture order, and she submitted that whatever exact value of this large quantity of rhino horn (andits exact value could not be known), it was considerably in excess of what the appellant bought and paid for it in the 1960s and early 70s when he had spent a few pounds here and a few pounds there, and the collection had assumed a much more greater value since. Whatever its actual value, it is now worth many thousands of pounds, and its forfeiture, in circumstances where he claimed to have bought legitimately, was excessive and harsh and could not be justified.
The offence of selling or offering to sell restricted specimens was a serious offence; the custody threshold was crossed and a custodial sentence was called for in the case of each appellant. In view of the first appellant's poor health, his sentence would be reduced to six months' imprisonment. The sentence of 15 months' imprisonment imposed on the second appellant was correct, but the forfeiture order would be quashed. (Provided by: UNODC SHERLOC)
The defendant was a breeder of rare parrots. He was charged in an indictment with four counts of being knowingly concerned in the fraudulent evasion of a restriction, by virtue of an enactment, on the importation of goods, contrary to section 170(2)(b) of the Customs and Excise Management Act 1979. The prosecution alleged that in 1997 and 1998 he had imported into the United Kingdom endangered macaws, trade in which was prohibited or restricted under article 5(I) of Council Regulation (EEC) No 3626/82 and article 4(I) and (2) of Council Regulation (EC) No 338/97, from Yugoslavia and Slovakia without the required import permit.
The prosecution did not content that the point of entry into the European Union was the UK; it was probably Austria. The defendant denied the offences, contending taht where the point of entry into the EU was not the UK the Regulations relied on did not contain any relevant restriction for the purposes of section 170(2)(b) of the 1979 Act and therefore did not impose any restriction on the movement of endangered macaws between or within member states. He was convicted.
Upon conviction, the defendant was sentenced to 30 months' imprisonment on each count concurrent was ordered to pay GBP 5,000 towards the costs of the prosecution. The maximum sentence for an offence under section 170(2) of the 1979 Act is seven years.
The defendant appeals with leave against conviction on one ground and renews his application on the ground upon which the single judge refused leave; his application for leave to appeal against sentence was referred to the full court by the single judge. The defendant/appellant argued that the judge wrongly rejected the defence application at the outset of the trial to quash the indictment; it was submitted that it disclosed no offence known to English law. He was refused to leave to argue that his interview with Customs and Excise should have been excluded from the trial pursuant to section 78 of the Police and Criminal Evidence Act 1984.
The Court reasoned that Council Regulation (EEC) No 3626/82 and (EC) No 338/97 were "enactments" for the purposes of section 170(2) of the 1979 Act; that the 1979 Act clearly incorporated as restrictions the council Regulations which restricted entry of certain goods into the EU as a whole without differentiation between member states; that the territorial scope of the 1979 Act turned on the scope of the restrictions in the enactments in question, which took effect under the Act according to their terms rather than being cut down by the Act; and that, accordingly, it was an offence under section 170(2) of the 1979 Act for a person to be knowingly concerned in the fraudulent evasion of the restriction, contained in the Regulations, on the importation of goods into the EU whatever the country of entry into the EU might be.
The sentence was reduced in view of the defendant's age, the fact that this is his first prison sentence, and his financial position, having lost already GBP 50,000 for having paid for the birds in the first place, and his motives, albeit legally misguided, in seeking to breed these extremely endangered birds. The appeal against conviction is dismissed.The sentence of 30 months' imprisonment is quashed and substituted by a sentence of 18 months. (Provided by: UNODC SHERLOC)
The appellant pleaded guilty to being knowingly concerned in the fraudulent evasion of the restriction on the importation of wild birds. The appellant was concerned in smuggling 23 wildbirds from Thailand. The appellant and another man arranged for wild birds of prey to be exported from Thailand secreted in plastic tubes concealed in two suitcases. The appellant arrived at Heathrow airport with the two suitcases and was later arrested by Customs officers. Twenty-three wild birds of prey, six of which were dead, were found in the suitcases. The birds which survived had suffered asphyxia and hypothermia as the result of being transported in the hold of the aircraft. The birds were a protected species. Sentenced to 22 months' imprisonment.
The case presented a difficult sentencing problem as little guidance could be found in decisions of the Court in respect of the offence. The offence was a serious one which merited imprisonment, because it caused suffering to the birds, and it was carefully and deliberately planned.
The appellant's co-defendant was commercially motivated. It was said that the appellant's co-defendant had exercised a degree of influence over him and, for that reason and inview of the appellant's plea of guilty, the Court considered that the proper sentence was 15months' imprisonment. (Provided by: UNODC SHERLOC)
The appellant was convicted of 22 offences of unlawfully importing or dealing with animals and birds of endangered species. The appellant was concerned in importing 23 birds of prey in two suit cases. A search of his premises resulted in the discovery of various other birds and animals, including a gibbon, a golden eagle, and various other birds of prey. Sentenced to a total of six and a half years' imprisonment.
The sentencing judge imposed sentence on the basis that the appellant was well aware that his activities were against the law and that they were committed for profit. Some of the birds had been treated with cruelty and one of the rare birds (gibbon) was from an extremely rare breed. The Court agreed with the judge's observation that the sentence should send a clear message to others minded to commit similar offences.
The Court had come to the conclusion that some modest reduction could be made in the sentence; the total sentence would be reduced to five-and-a-half years' imprisonment. (Provided by: UNODC SHERLOC)