The accused fraudulently obtained a permit and arranged a rhino hunting expedition that shot 26 rhino. A High court on appeal imposed an effective sentence of 30 years’ imprisonment. On a further appeal the Supreme Court of Appeal found the sentence to be excessive and disproportionate and replaced it with a sentence of 13 years’ imprisonment and a fine of R1 million. See
S v LEMTHONGTHAI 2015 (1) SACR 353 (SCA)
Environmental offences — Rhino horn — Unlawful trading in rhino horn in contravention of National Environmental Management: Biodiversity Act 10 of 2004 — Sentence — Accused having arranged hunting expedition for purpose of trading in rhino horn and having fraudulently obtained permit — Hunting party shot 26 rhino — Appellant first offender — Effective sentence of 30 years’ imprisonment, imposed by high court on appeal, excessive and disproportionate — Replaced with sentence of 13 years’ imprisonment and fine of R1 million.
The appellant, a Thai national, was convicted in a regional magistrates’ court of 26 counts of contravening s 80(1)(i) of the Customs and Exercise Act 91 of 1964 (the CEA) in that he had traded illegally in rhinoceros horn, and 26 counts of contravening s 57(1) of the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA) in that he had fraudulently obtained 26 permits to shoot and kill rhinoceros on the basis that professional hunters would shoot the rhino but the persons who were listed on the permits did not in fact shoot them. He was sentenced to ten years’ imprisonment in respect of the contraventions of the CEA and to a total of 30 years’ imprisonment for all of the offences under NEMBA. The magistrate split up the counts for purposes of sentence, sentencing the appellant to 12 years’ imprisonment for counts 27 – 36; 12 years’ imprisonment for counts 37 – 46; and to six years’ imprisonment for counts 47 – 52. The appellant appealed against the sentence to the high court. The high court took into account that the appellant was 44 years of age, was married and had two children at university and was a first offender who had been in custody for 16 months whilst awaiting trial. The high court took the view that a deterrent sentence was called for but the maximum period of imprisonment in terms of s 80(1)(i) of the CEA was five years and since the magistrate took the number of counts in respect of this section of the CEA as one, it ought rightly to have restricted the sentenced to five years’ imprisonment rather than the ten years’ imprisonment that it imposed. Similarly, the court had misdirected itself, it held, as far as counts 27 – 46 were concerned. It held that an appropriate sentence would be ten years’ imprisonment in respect of counts 27 – 36; ten years’ imprisonment in respect of counts 37 – 46; and ten years’ imprisonment in respect of counts 47 – 52, totalling 35 years’ imprisonment. It ordered that the five years’ imprisonment in respect of counts 1 – 26 were to run concurrently with the 30 years’ imprisonment in respect of counts 27 – 52. This resulted in a total sentence of 30 years’ imprisonment.
Held, that the Constitution recognised that citizens had the right to have the environment protected for the benefit of present and future generations I through reasonable legislative and other measures that, inter alia, promoted conservation. The duty resting on us to protect and conserve our biodiversity was owed to present and future generations and in doing so we would also be redressing past neglect. Constitutional values dictate a more caring attitude towards fellow humans, animals and the environment in general. Allowing the kind of behaviour that resulted in the convictions in the present case to be dealt with too leniently would have the opposite effect to what was intended by NEMBA. A non-custodial sentence would send out the wrong message. Furthermore, illegal activities such as those engaged in by the appellant were fuel to the fire of the illicit international trade in rhino horn.
Held, further, that the high court had wrongly had regard to the existence of a rhino trading syndicate, of which there was no evidence. Furthermore, by equating the appellant with typical poachers was unwarranted and the court’s division of counts 27 – 52 into arbitrary groups was inappropriate. In addition to these misdirections, the sentence of 30 years’ imprisonment was too severe and induced a sense of shock. It was disproportionate when compared to the minimum sentences statutorily prescribed for other serious offences. The court on appeal was therefore at large to interfere in the sentence. Having regard to the fact that the killing of the 26 rhinos occurred during one operation, a sentence of imprisonment of six months in respect of each of counts 27 – 52 was an appropriate sentence. This amounted to a total of 13 years’ imprisonment. In arriving at this conclusion the court bore in mind that the appellant had been in custody for 16 months awaiting the finalisation of his trial.
Held, further, that in addition to the sentence of imprisonment for the NEMBA offences, a hefty fine was called for in respect of the contraventions of the CEA. It was clear that such a fine would have an impact not only on the appellant but also on the directing minds behind the offences in question. In this regard the penal provisions under s 80(1) of the CEA, particularly in relation to the imposition of a fine, fell to be considered alongside the facts of the case.
Held, accordingly that the sentences imposed by the court a quo had to be set aside and substituted in respect of counts 1 – 26 with a fine of R1 million or five years’ imprisonment; and in respect of counts 27 – 52, a sentence of imprisonment of six months on each count, giving an effective sentence of 13 years’ imprisonment and a fine of R1 million. The appeal was upheld to this extent.