R v Nicholas Noonan País/Territorio Reino Unido Tipo de la corte Nacional - corte superior Fecha Dic 4, 2009 Fuente UNEP, InforMEA Nombre del tribunal Court of Appeal, Criminal Division Número de referencia 200905549/A6 Idioma Inglés Materia Especies silvestres y ecosistemas Resumen This applicant appeals against a total sentence of 10-month in respect of fraudulently evading the restriction on the export of elephant tusks and sperm whale teeth, of selling those items and of making false statements and altering or falsifying permits and certificates for the purposes of the same and similar transactions. The first count related to the export of an elephant tusk. It was not clear when it had grown onthe living animal but it seemed to be in the late 1960s or more likely the 1970s. The tusk came from an African elephant. It was offered by the appellant in an solicited email to the under cover agents on EBay. The appellant, during the course of emails about that export, said that he did not have any permits but that he had not previously had problems because he had described theproduct as a “faux” tusk. It was bought by the undercover officers for just under USD 2,000,described as an “ivorine figurine” in the invoice. Count 2 related to two tusks which the applicant listed on EBay. On 10 October 2006 he sent an unsolicited email to the undercover officers. Hereferred in that email to how he had kept the weight down and disguised the shape of the previous tusk but assured them that he would be more careful next time. He said he was now onfirst name terms with the customs officer dealing with UPS parcels, since he had taken the viewthat was a better method and safer method of export than otherwise. The application raises two distinct issues. Firstly, as to the level of sentencing in relation to the offences of that nature, and secondly, as to the procedure adopted by the judge, which involved rejecting the applicant's account and accepting the prosecution version of the context of the transaction without hearing evidence from the applicant or from any other witness he might have wished to call. Count 3 related to a sperm whale tooth which he listed on EBay on 31 January 2008, asserting there was a CITES certificate and that it was legal to sell. It was sold to the officers inAmerica for something over USD 150. At the same time, there was a sale of an elephant tusk wasoffered to the undercover officers; it was later sold to somebody else for just over USD 100. Count 4, he said, was a tusk which had been worked and he had merely made a mistake asto whether it was a forbidden item because the tusk had holes drilled in it, suitable for holding agong and could only be described as an unworked tusk once the gong had been removed. The subject matter of count 5 was the second tusk he had bought at Kempton which theapplicant listed what he described as a “pre-ban” pair of elephant tusks. Count 7 related to sperm whale teeth which were considered to be trading stock, found at his home on search by the police officers in June 2007, and in June 2008 the applicant was arrestedagain and there were found further protected specimens, seven sperm whale teeth, the subjectmatter of count 14. Counts 9, 11 and 12 concerned the falsification and misuse of certificates, for which the CITES and European Commission system provides in order to authorise and control the movements of specimens. The falsified certificates had been posted on the EBay auction site by this appellant in order to prevent the items being removed. He said, when it was put to him he had forged them, he had merely blanked out the details on the certificates that he had obtained, so that he could attempt to show that he was covered for listing items on EBay. Judgment: In this particular case the Court reasoned that it must take care to appreciate that apart from a different type of offence many years ago, this is a middle aged man, with particular difficulties and therefore not an obvious subject for a deterrent sentence. But nevertheless the judge rightly identified the gravity of this offending and put it in the correct context. This appellant knew exactly what he was doing. The Court rejected as fanciful any suggestion that he was merely driven to this by the poverty stricken circumstances which he faced and at the instigation of the undercover agents. He chose to trade in this way and he must face the consequences. A sentence of 10 months will have a severe impact on him, but these offences merited that severe impact. As such, the appeal is dismissed. Texto completo UK-2.pdf Página web www.unodc.org