1. Sentencing IN RESPECT OF Rhino Poaching-Related Offences
PRESENTATION TO THE PORTFOLIO COMMITTEE ON ENVIRONMENTAL AFFAIRS:
21 FEBRUARY 2017

2. Sentencing iro Rhino Poaching-Related Offences
Global March (NGO) wrote to Government proposing amendments to –
(a) the Criminal Procedure Act, 1977 (CPA) to make section 60(11) of that Act, read with Schedule 5, dealing with bail provisions, applicable to persons accused of rhino related offences; and
(b) the Criminal Law Amendment Act, (the Minimum Sentences Act) to make the minimum sentencing regime applicable to rhino related offences.
In terms of section 60(11) of the CPA, read with Schedule 5, only a court may grant bail to an accused charged with an offence listed in Schedule 5 and in this instance the accused must satisfy the court that his or her release is in the interests of justice.
The Minimum Sentences Act provides for minimum sentences depending on the number of previous convictions of an accused and the sentencing regime applicable to the offence, yet allowing for some discretion for the court to deviate from the prescribed minimum sentence if substantial and compelling circumstances exist.

3. Section 51 of the Minimum Sentences Act provides for the following minimum sentences:
Part I : imprisonment for life.
Part II: First offender- imprisonment for not less than 15 years
Second offender – imprisonment for not less than 20 years
Third or subsequent offender – imprisonment for not less than 25 years.
Part III : : First offender- imprisonment for not less than 10 years
Second offender – imprisonment for not less than 15 years
Third or subsequent offender – imprisonment for not less than 20 years.

4. Part IV : First offender- imprisonment for not less than 5 years
Second offender – imprisonment for not less than 7 years
Third or subsequent offender – imprisonment for not less than 10 years.
Part V : First offender- imprisonment for not less than 3 years
Second offender – imprisonment for not less than 5 years
Third or subsequent offender – imprisonment for not less than 7 years.

5. Government Departments which received the letter from Global March and the National Prosecuting Authority (the NPA) met to discuss the proposal.
The meeting supported an amendment to Schedule 5 to the CPA, which deals with bail.
The meeting also agreed that there is no need to amend the minimum sentencing regime. The view was expressed that the courts impose appropriate sentences upon the submission of aggravating evidence by the prosecution.

6. It was agreed that Schedule 5 to the CPA be amended by including the offences under the Prevention of Organised Crime Act, 1998 (POCA) in Schedule 5 and not the offences under section 57(1) of the National Environmental Management: Biodiversity Act (NEMA), 2004, as persons involved in rhino poaching operate as syndicates, taking the form of organised crime as envisaged in the POCA.
By including all POCA offences in Schedule 5, without any limitation, all offences under the NEMA committed by syndicates will be covered.
Amendments to Schedule 5 to the CPA were included in the Criminal Matters Amendment Act, 2015, so as to include POCA offences – see section 4 of the Act – POCA offences include racketeering, money laundering and gang-related activities.

7. Minimum sentences must only be prescribed for exceptional offences for a number of reasons:
As a general rule, the imposition of sentences should be left in the discretion of judicial officers who are best placed to impose appropriate sentences, having regard to all the facts of the case and the personal circumstances of the accused.
Mandatory minimum sentences have in the past elicited severe criticism, especially from the judiciary.
The Department has already received a few requests to make minimum sentences applicable to other offences as well.
The extension of minimum sentences for other offences will exacerbate the challenges faced by the already overburdened correctional facilities. This was highlighted in a recent Western Cape High Court judgment.

8. The Department is, however, mindful of the level of crime relating to rhino poaching and its negative effects.
In order to deal with this problem the following alternative initiatives are suggested:
Sensitising judicial officers in respect of the level of this particular offence and the implications thereof .
Ensuring that prosecutors place aggravating factors before the court so as to ensure appropriate sentencing – the use of impact statements and statistics are crucial.
Ensuring that the legislation provides for maximum sentences that will enable judicial officers to impose harsh sentences.
The prosecution must ensure that the offences are adjudicated in an appropriate forum.
Experienced prosecutors must be assigned to these cases.
It will be necessary to monitor sentences for rhino poaching offences over a period of time in order to determine patterns of sentencing with a view to considering possible amendments to relevant legislation. For this purpose, formal statistics are required.