ABALONE AND RACKETEERING – SENTENCE – DURATION OF TRIAL AS AMELIORATING FACTOR

S v MILLER AND OTHERS 2018 (2) SACR 75 (WCC)

 

Conservation — Fishing — Abalone — Possession or control for commercial purposes — Contraventions of regulations under Marine Living Resources Act 18 of 1998 — Sentence — Effect of poaching on environment and social implications for coastal community highlighted — Not victimless crime — In case where large amounts of abalone involved, severe sentences imposed.

Conservation — Fishing — Abalone — Possession or control for commercial purposes — Contraventions of regulations under Marine Living Resources Act 18 of 1998 — Sentence — Value of abalone involved — No direct correlation between value of abalone and sentence — Large profits to be made by participants in value chain.

Prevention of crime — Offences — Contraventions of s 2(1) of Prevention of Organised Crime Act 121 of 1998 — Racketeering in contravention of s 2(1)(e)— Sentence — Involvement in poaching and processing of abalone — Large amounts of abalone involved.

Sentence — Factors to be taken into account — Length of trial — Lengthy trial and case having hung over accused’s heads for 11 years — Sentence had to be ameliorated.

 

The five accused who were before the court had been arrested by members of the South African Police Service and were tried on numerous counts relating to the possession or control for commercial purposes of quantities of abalone. Accused Nos 1 – 4 were convicted of contravening reg 39(1)(a) of the regulations published under the Marine Living Resources Act 18 of 1998 (the MLRA), as well as s 2(1)(e) of the Prevention of Organised Crime Act 121 of 1998 (POCA), for having conducted or been associated with the running of an unlawful enterprise through a pattern of racketeering activity. Accused Nos 2, 3 and 4 were also convicted of contravening s 18(1) of the MLRA for having operated a fish-processing establishment without a licence. The court heard evidence in mitigation and aggravation of sentence, and received pre-sentencing reports in respect of the accused, as well as a social worker’s report in respect of the domestic circumstances of accused 3, who was the caregiver of his two minor children, as his wife suffered a chronic and potentially life-threatening illness.

The court took into account that the legislature viewed the offences under the MLRA as serious, as evidenced by the severity of the sentences that could be imposed under the Act. Allied to this were the sentences under POCA, which were even more severe (see [11] – [12]). It also took into account the effect of abalone-poaching on the marine environment and the unmitigated plunder of the country’s natural resources in a large area of the Overberg (see [24] – [25]). The court stated with a fair degree of certainty that the evidence had established that extraordinarily large amounts of South African abalone had left our shores for the Far East market, and that only a very small percentage of that had been legally harvested and exported (see [37]). This plundering was likely to have significant ecological consequences beyond just the extinction of the species (see [43]).

The court also heard evidence of the social implications of the abalone-poaching for local communities, and held that there were a variety of socioeconomic, sociopolitical and historical factors that contributed to the predicament of poor communities in the area. However, it could not ignore the anecdotal evidence before it of the negative impact that abalone-poaching had had on the residents of the areas where the resource had been so actively poached. It rejected the notion that the illegal exploitation of abalone for commercial purposes was a victimless crime. The court also had little doubt that both the leaders and the residents of those communities looked to the courts to take appropriate steps to improve the quality of life and safety of their communities when the perpetrators of the scourge were brought to book. (See [47] – [48].)

Much evidence was led and documentation produced relating to the value of the poached abalone, but the court held that it was not necessary, nor practically possible, for it to arrive at an accurate figure: the present case was not one where there was a direct correlation between the quantity of contraband involved and the extent of the sentence, such as in drug legislation. What the court could find was that there was a massive difference between what the South African diver or rights-holder earned for a kilogram of live abalone and what the Far East consumer paid for a kilogram of the product in its dried form. The figures demonstrated persuasively that there were very good profits to be made along the value chain through the illegal poaching, processing and exporting of South African abalone. (See [75].)

The court took into account, in respect of all the accused, that there was one general factor in mitigation: the case had hung like a dark cloud over their heads for more than 11 years. It had taken eight years before the trial could commence and, once it commenced, it had stretched over more than three and a half years. Their earning capacities had been compromised accordingly, and all had complained of the depressing effect which the uncertainty attached to the case had brought them. Their sentences had to be ameliorated somewhat in the light of that. (See [180].)

In respect of the personal circumstances of the accused, the court held:

Accused No 1, who was a 57-year-old man with two adult children, had a lesser role in the activities of the enterprise, having supplied pilchards to help mask the illegal export of 44 tons of frozen abalone worth approximately R11 million. He was struggling financially at the time, and, driven by need rather than greed, deserved a lighter sentence than his co-accused (see [110]). Sentence imposed: in respect of contravention of s 2(1)(e) of POCA — four years’ imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977 (the CPA); in respect of 15 counts of contravening reg 39(1)(a) — six months’ imprisonment in terms of s 276(1)(i) of the CPA on each count, suspended for five years.

Accused No 2, a 45-year-old successful businessman, married, with two young children, who never said a word in the proceedings, was convicted on counts in respect of 28,5 tons of frozen abalone. The court held that he was driven to commit the offences by greed, given that he had a successful business offering a reasonable income. Because he had been associated with a lesser amount of abalone, his sentence would be ameliorated accordingly (see [128]). Sentence imposed: in respect of contravention of s 2(1)(e) of POCA — eight years’ imprisonment; in respect of 11 counts of contravening reg 39(1)(a) — eight months’ imprisonment on each count; in respect of contravening s 18(1) of the MLRA — four years’ imprisonment. The sentences were ordered to run concurrently with the effect that the accused would serve an effective eight years’ imprisonment.

 

Accused No 3, a 42-year-old man, married, with four children, two of whom were under the age of 18, had two previous convictions for the unlawful possession of abalone and the running of an illegal fish-processing enterprise. The court held that he had not shown true remorse and had persistently been involved in abalone-smuggling (see [148]). The court also had to consider that his wife had a chronic and potentially terminal medical condition, and the accused had to share the role of caregiver to the two younger children. There were, however, two older children in the home capable of caring for their younger siblings, and both parents had extended families who resided in the Western Cape and to whom the children could turn in times of need. The accused had clearly been driven by greed, as he and his wife had been running a profitable business from their home. His moral blameworthiness was high, and he deserved a heavy sentence (see [152] – [154]). Sentence imposed: s 2(1)(e) — 15 years’ imprisonment; in respect of 10 counts of contravening reg 39(1)(a) — eight months’ imprisonment on each count; in respect of three counts of contravening s 18(1) of the MLRA — five years’ imprisonment on each count. The sentences were ordered to run concurrently, to the extent that the effective sentences was 15 years’ imprisonment.

Accused No 4, a 62-year-old man who was divorced and had three adult children, was convicted of being responsible for processing more than 74 tons of frozen abalone, which equated to about 247 tons of live product valued at around R62 million. His moral blameworthiness was high, although the court was prepared to accept that he was now contrite. He had been overtaken by greed for the easy money which abalone presented. The court held that he deserved a heavy sentence (see [158] – [161]). Sentence imposed: contravening s 2(1)(e) — 15 years’ imprisonment; in respect of 28 counts of contravening reg 39(1)(a) — six months’ imprisonment on each count; in respect of contravening s 18(1) — five years’ imprisonment. The sentences were ordered to run concurrently so that the accused would serve a sentence of 15 years’ imprisonment.

Accused No 5, was 46 years of age, single, and self-employed as a chef. He was convicted of only one count of contravening reg 39(1)(a) in relation to 1969 units of frozen abalone. His moral blameworthiness was not high, and he deserved a lesser sentence (see [162] – [163]). Sentence imposed: one year’s imprisonment suspended for five years.

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