Moore v Lewis

[4] It is submitted on behalf of the appellant that the sentence is manifestly excessive.

[5] The appellant was aged 17 at the time of the offence and aged 18 at the date of sentence. He has a minor criminal history involving committing a public nuisance, evading a fare and obstructing a police officer on 18 April 2006 for which he received one penalty, a fine of $2,000. At the time of the offence he was living with his father, mother and younger sister and working as an apprentice tiler.

[6] The version of events concerning the offence itself put before the Court below on behalf of the complainant was that two boys walking in a park at Narangba saw the appellant "kick a kitten and then kick it again". The cat "staggered off" and the boys went to the mother of one of them and reported the incident. The boys and the mother located it and found that it was dead. A subsequent examination of the cat by a veterinarian revealed a haemorrhage "from a ruptured liver in two places and from ruptured vessels to the right kidney which was severely bruised", injuries "consistent with a severe blow to the abdomen".

[7] The version of events put on behalf of the appellant was that:**

"The kitten had kept coming up, brushing against him, he started off by patting the kitten and he was actually playing with the kitten but then he was trying to get rid of the kitten. He kept shooing it away. Unfortunately ..., he can't explain why, he says that something kicked in and he then kicked the kitten to get rid of it. He accepts ... that he didn't follow the kitten when it went into the bushes ... to see if it was all right..."

**[8] It was submitted to the learned acting Magistrate that the appellant was extremely remorseful, that his family have dogs which he loves and that "he just doesn't know why he did this and he is extremely upset by it". He is recorded as having acknowledged his guilt to the RSPCA representative who questioned him two days after the offence and upon being referred to a firm of solicitors for legal advice, he gave immediate instructions that he would plead guilty.

[9] In his sentencing remarks the learned acting Magistrate stated that he had taken into account the age of the appellant, his employment, his strong family support, that he was "extremely remorseful" in relation to the offence, his "admissions at an early date" and that he pleaded guilty.

[10] The learned acting Magistrate then described the circumstances of the offence as being "that it was not simply one act of lashing out but there were two acts of kicking this kitten until the kitten died". He subsequently described the offence as "an act of viciousness" and "as an atrocious and appalling act of indiscriminate and wanton savagery". He continued:**

"This animal was no danger or menace to you at all. This animal was small in stature and its purpose in rubbing up against you was simply to display acts of affection towards you. For whatever perverse notion of amusement or sport you decided to end its life in a most brutal, cruel and painful fashion."

Similar comments are repeated at the conclusion of the sentence.

**[11] The learned acting Magistrate placed particular emphasis on the need to make it clear that the community, acting through the Court, denounced the conduct constituting the offence and notwithstanding that the appellant was a young man and that "the authorities say that generally it is undesirable for young people to serve sentences of imprisonment" and that he had "very little history", his actions "in killing this animal require the Court to fix a penalty that sends an extremely strong deterrent message to both you and other members of the community who would engage in such abhorrent conduct".

[12] Although purporting to "take into account sections 9 and 11" of the Penalties and Sentences Act 1992 ("PSA") and "all sentencing options that are available to the Court including community based orders", the learned acting Magistrate stated that he was of the view that "having regard to the serious nature of the offence there is no other alternative other than a term of imprisonment".

[13] The ACPA lists as one of its purposes to "protect animals from unjustifiable, unnecessary or unreasonable pain".[1] Section 18(1) simply states "A person must not be cruel to an animal" and prescribes a maximum penalty of 1000 penalty units or two years imprisonment. Instances of animal cruelty are particularised in section 18(2) and range from causing an animal pain that is unjustifiable, unnecessary or unreasonable in the circumstances (the charge before the Court below), to killing it in a way that is inhumane or causes it to die in unreasonable pain.

[14] The PSA lists as one of its purposes "providing sentencing principles that are to be applied by courts".[2] Section 9 provides sentencing guidelines including:**

"(2) In sentencing an offender, a court must have regard to-

(i) a sentence of imprisonment should only be imposed as a last resort; and

(ii) a sentence that allows the offender to stay in the community is preferable."

[15] On behalf of the appellant it is submitted that the learned acting Magistrate was wrong to conclude that the appellant had engaged in amusement or sport in kicking the kitten and that there was no basis for the conclusion that the appellant intended to kill it or that he even knew that he had killed it at the time of his attack upon the kitten. It is submitted that the comments of the learned acting Magistrate reveal that he mistook the nature of the offence and that this was the central error which led to him imposing a manifestly excessive sentence. He sentenced the appellant for intentionally killing a kitten whereas the charge to which he pleaded guilty and the facts placed before the Magistrates Court did not justify a sentence on this basis.

[16] On behalf of the respondent it was submitted that the brutal attack on the kitten justified a sentence which incorporated only 1/24th of the maximum term of imprisonment provided for this offence. The need for a deterrent was expressed to be very important in the society in which we live today, which views animal cruelty seriously, and this was contemplated by the legislature in enacting the offence for which the appellant was sentenced. It is contended that a sentence other than actual imprisonment does not have a sufficient deterrent effect.

[17] In the course of the hearing of the appeal I was taken to three comparative decisions which it was submitted were particularly relevant. In Breitkreut v Lightboy[3] non-custodial sentences handed down to six young soldiers who tortured kittens by setting them on fire and running them over were confirmed on appeal. In Police v Veach[4] a 36 year old disability pensioner with a history of drug dependence and a significant criminal history who was assessed as unsuitable for an intensive correction order, was sentenced to three months imprisonment for animal cruelty charges in respect of two dogs which included torturing a dog over an "extended period of time" by urinating on it, placing a rubber band on its penis and fracturing its tail, pelvis and femur. In Towers-Hammond v Burnett[5] a 60 year old man who had a criminal history which included a conviction for an offence of violence was sentenced to a period of three months imprisonment on appeal for callously bludgeoning five kittens, ultimately to death, and dumping their bodies in a St Vincent de Paul clothing bin.

[18] Animal cruelty is abhorrent to any right minded member of the community. We owe an enormous debt to the dedicated officers of the RSPCA who do so much to alleviate the suffering of so many abandoned and mistreated animals. As some of the cases cited above show, there are times when custodial sentences are called for upon prosecutions being brought pursuant to the ACPA, however just because section 18 prescribes a maximum penalty of two years imprisonment does not mean that a custodial sentence should invariably be the outcome. The requirements of the PSA must also be taken into account, as they must with any sentencing of an offender in this State.

[19] Although the conduct of the appellant towards the kitten was cowardly and cruel in the circumstances, the charge upon which he was sentenced and the facts surrounding the offence put before the learned acting Magistrate did not justify the sentencing remarks that the appellant acted out of "perverse notions of amusement or sport" or that he "decided to end its life". These errors, together with the failure of the learned acting Magistrate to expressly have regard to the requirement of section 9(2)(a)(i) of the PSA that a sentence of imprisonment should only be imposed as a last resort, particularly when the appellant was only 18 years of age with no relevant criminal history, results in a conclusion that the sentence imposed on the appellant was manifestly excessive. The need for a deterrent does not justify a custodial sentence when the matters referred to above are taken into account.

[20] On behalf of the appellant it is submitted that any sentence ought to acknowledge that he has already served a period of five days in custody but that I order that no conviction be recorded. No issue was taken with the 18 month period of probation.

[21] Pursuant to section 225 of the JA I have the power to confirm, set aside or vary the appealed order or make any other order I consider just. As I have indicated above, the circumstances of this case, although repugnant to any civilised member of the community, did not justify a custodial sentence, particularly given the age of the appellant and his lack of any significant criminal history. His savage and aggressive outburst which resulted in the death of the kitten was such that he may well benefit from probation so that he can learn to address the cause of the behaviour which has brought him before the Court in such distressing circumstances.

[22] I would therefore allow the appeal and set aside the order made by the learned acting Magistrate pursuant to section 92(1)(b) of the PSA. In lieu thereof, subject to the appellant's consent, I will make a probation order for 18 months pursuant to section 92(1)(a). The consequence of setting aside the sentence of imprisonment and substituting a probation order is that there is a discretion to record or not record a conviction[6]. The relevant matters in considering whether or not to record a conviction are set out in section 12(2) of the PSA:**

"(2) In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including -

(c) the impact that recording a conviction will have on the offender's -

The appellant's youth and lack of significant criminal history are important factors. Moreover, the impact of a conviction on his employment prospects must be taken into consideration.[7] In the circumstances it is appropriate not to record a conviction.

(2) The order made by the learned acting Magistrate on 2 November 2007 is set aside;

(3) In lieu thereof, subject to the appellant's consent, I order 18 months probation;

(4) I direct the appellant's legal representatives to explain the probation order to appellant as required by section of the 95 PSA;

[1] Animal Care and Protection Act 2001, section 3(c).

[2] Penalties and Sentences Act 1992, section 3(e).

[5] [2007] QDC 282.

[6] Section 90.

[7] R v Cay & Ors [2005] QCA 467, and R v Ndizeye [2006] QCA 537.