Noonan, R. v

Where the prosecution disputes a factual account advanced on a guilty plea, procedural fairness requires the defence to know the disputed issue and the evidential basis for it in sufficient time to decide how to meet it. A judge need not separately warn the defence of a dispute that the supplied material has already made plain, nor invite evidence where the defendant chooses not to call it.

Offences that create or sustain an illegal market in endangered species are serious because that market encourages the destruction of wildlife. Substantial deterrent sentences may therefore be justified, subject to personal mitigation and the overall totality of sentence.

The applicant pleaded guilty to offences involving the unlawful export and sale of elephant tusks and sperm whale teeth, and the falsification or misuse of certificates connected with those transactions. On 16 October 2009, His Honour Judge Foster imposed a total sentence of 10 months’ imprisonment.

The applicant had advanced a written basis of plea portraying himself as a collector driven by financial hardship and undercover encouragement. The Crown gave detailed advance notice that it disputed that account, relying principally on emails said to show experienced and deliberate trading. The judge rejected the applicant’s account without hearing defence evidence.

On appeal, the central issues were whether fairness required a further opportunity for a Newton hearing, and whether the total sentence was excessive.

1. Appeal dismissed. The judge was entitled to reject the applicant’s account of the context in which he offended. The Crown had identified, before sentence, each material factual dispute, the basis on which it was disputed, and the documentary material on which it relied. The defence therefore knew that the applicant’s explanation would not be accepted unless it could be supported.

2. The court explained that a true Newton issue concerning the offences requires advance notice of the dispute and a fair opportunity to decide how it should be resolved. The principle illustrated by R v Lucian [2009] EWCA Crim 2004 did not assist where the defence had already received that opportunity. Where a defendant advances an explanation based on matters particularly within his knowledge, it is for the defence to decide whether to call evidence in support. The judge had no duty to invite the applicant to give evidence or to initiate a hearing which the defence did not seek.

3. The total sentence of 10 months was not manifestly excessive. The court treated trafficking in protected specimens as serious offending. It feeds an illegal market and thereby contributes to the capture and destruction of endangered species. The sentencing maxima, including those applicable to specimens in Annex A of the Control of Trade in Endangered Species Enforcement Regulations 1997, reflected Parliament’s increasing concern. A significant deterrent sentence was justified despite the applicant’s health and personal circumstances.

4. Although the offences formed one course of conduct, the judge’s use of some consecutive sentences did not undermine the result. The controlling question was whether the total sentence was justified, and it was.

• Court of Appeal (Criminal Division): Permission to appeal was granted, but the appeal against the total sentence of 10 months was dismissed: [2010] EWCA Crim 2917.

• Crown Court: His Honour Judge Foster sentenced the applicant on 16 October 2009 for offences concerning protected wildlife specimens and related false documentation.