ROCCISANO -v- GREEN [2026] WASC 135 (15 April 2026)

1. In each matter, the learned magistrate began his sentencing remarks by recounting the facts. His Honour described the conduct in understandably strong terms. He characterised it with various expressions, including 'disgusting', 'disgraceful', 'vile', 'abhorrent', 'incomprehensible' and a 'betrayal of humanity'.[2]
2. The learned magistrate then considered the facts in light of relevant case law, particularly Holding v Parkin.[3]
3. In respect of Mr Summers, the learned magistrate noted that he had received six references from people attesting to Mr Summers' generally good character. His Honour took account of Mr Summers' age of 24 years. He observed that Mr Summers promptly assisted the inspector, was remorseful and had never disputed the offence. Mr Summers was a person of previous good character with no criminal record. His Honour accepted that Mr Summers was unlikely to offend again.
4. The learned magistrate stated that he would give Mr Summers a 25% discount for his guilty plea. His Honour expressed doubt about whether he was required to nominate a figure, but he nevertheless nominated the amount of 25%.
5. The learned magistrate made similar condemnatory remarks regarding Mr Roccisano's conduct, while acknowledging that he was not the person who struck the blows. This was relevant to the issue of parity of Mr Roccisano's sentence in relation to that of Mr Summers - that is, Mr Roccisano's sentence needed to be lower. The learned magistrate again expressly nominated a 25% discount for Mr Roccisano's plea of guilty.
6. His Honour acknowledged Mr Roccisano's remorse. Mr Roccisano was 28 years old. The learned magistrate acknowledged the character references and that Mr Roccisano deserved some degree of credit for his good character. Mr Roccisano had one minor historical offence relating to a breach of the regulations associated with the COVID‑19 pandemic. The learned magistrate accepted that Mr Rocissano too was unlikely to reoffend.

1. Section 19(1) of the Animal Welfare Act stipulates the punishment for an act of animal cruelty by an individual of a fine of not less than $2,000 or more than $50,000, and imprisonment for a term of up to 5 years. As noted, the learned magistrate imposed a fine of $48,000 on Mr Summers and a fine of $39,000 on Mr Roccisano.

1. The statutory framework of an appeal under pt 2 of the Criminal Appeals Act 2004 (WA) is clear. It has been set out many times in decisions of this court and need not be repeated again.
2. The principles applicable to an appeal against a sentence on the ground that it is manifestly excessive are similarly well settled. They include, relevantly, the following:[4]

(1) an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently. Appellate intervention occurs only if the appellant demonstrates either an express or implied material error;

(2) express error involves acting on a wrong principle; for example, by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred;

(3) implied error will arise if a sentence is manifestly excessive. In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances; and

(4) the range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence.

1. Considerable attention was directed in both the written and oral submissions to s 9AA of the Sentencing Act 1995 (WA) (Sentencing Act), and the learned magistrate's remarks regarding the 25% credit for the plea of guilty he expressly nominated for each of Mr Summers and Mr Roccisano.
2. The learned magistrate's comments are not easy to understand. In each matter, his Honour stated that he did not consider he was bound by s 9AA to nominate an amount for the discount to be applied for the guilty pleas, but he would nevertheless do so.[5] The learned magistrate then nominated 25%.
3. His Honour explained that the 25% discount went to the disposition of the sentence rather than its quantum. In respect of Mr Summers, following the sentencing and a short adjournment, Mr Summers' counsel appears to have sought to recall the matter to raise his possible misunderstanding of the sentence in light of the magistrate's nomination of a 25% discount and yet imposing a fine of $48,000 (with a statutory maximum of $50,000). After telling Mr Summers' counsel that he 'really should not be recalling the matter for this purpose', the learned magistrate said, 'I will just note on the transcript, though, that that is a matter that went towards disposition, rather than quantum'.[6]
4. Mr Roccisano's matter followed that of Mr Summers. In his sentencing remarks, the learned magistrate said he would award a 25% discount for Mr Roccisano's plea of guilty. His Honour then said that he needed to clarify the relevant law. By reference to a number of first instance decisions of this court, the learned magistrate said that s 9AA applies only to sentences of imprisonment.[7] That explained why his Honour took the view that he was not bound by the requirements of s 9AA when imposing a fine. The learned magistrate then repeated what he said in respect of Mr Summers: that the 25% discount 'is a reference to the disposition, not to the quantum'.[8]
5. It is plain that the fines imposed by the learned magistrate did not reflect a 25% discount on the maximum quantum of the fine. By his remarks, his Honour appears to have applied the '25% discount' by imposing a fine rather than a term of imprisonment. Counsel for the parties agreed that the only possible way to understand the remarks is the following. Each of the appellants ought to have been sentenced with a term of imprisonment. However, they deserved the maximum credit for their guilty pleas for which the magistrate nominated a figure of 25%. The full credit of the guilty pleas - that is, the 25%, and it seems all the other mitigatory factors - were exhausted or entirely 'used up' by the decision to impose the lesser penalty of a fine rather than imprisonment. Therefore, when it came to the fine, there was no further mitigatory credit available. Mr Summers therefore received a fine very close to the statutory maximum and Mr Roccisano received a lesser, but still very significant, fine to reflect parity with the fine imposed on Mr Summers.
6. Section 9AA of the Sentencing Act provide as follows:

Plea of guilty, sentence may be reduced in case of

(1) In this section -

fixed term has the meaning given in section 85(1);

head sentence, for an offence, means the sentence that a court would have imposed for the offence if -

(a) the offender had been found guilty after a plea of not guilty; and

(b) there were no mitigating factors;

victim has the meaning given in section 13.

(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.

(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -

(a) by more than 25%; or

(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.

(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.

1. At the hearing, the parties were at odds as to whether the learned magistrate was correct that s 9AA applied only to a term of imprisonment and not to the imposition of a fine. Counsel for the respondent contended that the learned magistrate's remarks were consistent with authority in this court and with the proper construction of the provision. In particular, counsel for the respondent referred to the decision in Neach v Hobbs, where Archer J said: 'From its terms, s 9AA is limited to sentences of imprisonment. Other types of dispositions do not have a "head sentence''.'[9] Counsel for the respondent submitted that a 'head sentence' was necessarily a reference to a sentence of imprisonment and that Neach v Hobbs (and the decisions that followed it) were therefore correct. Counsel for the appellants contended that notwithstanding the authorities referred to, including Neach v Hobbs, s 9AA was not limited to terms of imprisonment, and the learned magistrate erred in proceeding on that basis.
2. In exchange with counsel during the hearing of the appeals, a number of issues were raised. They included that the definition of 'head sentence' in s 9AA did not suggest that it was limited to a term of imprisonment. It may be accepted that s 9AA(4) could only refer to a prison sentence. But that was because of the words 'fixed term', not the words 'head sentence'. Moreover, it was not apparent that the limited application of s 9AA(4) to a prison sentence necessarily meant that the whole of s 9AA could only refer to a prison sentence.
3. I allowed the parties the opportunity to file supplementary submissions in relation to that issue. In the supplementary submissions, counsel for the respondent conceded that s 9AA was not limited to a sentence of imprisonment. Counsel for the respondent accepted that it followed that the learned magistrate possibly made an express error of law by proceeding on the basis that s 9AA did not apply to the imposition of a fine.
4. I maintain doubt about the correctness of the statement in Neach v Hobbs that a non‑custodial sentence cannot have a 'head sentence'. There is no doubt that the term 'head sentence' is widely used and understood to be limited to a custodial sentence. But the ubiquity of that convention cannot displace the statutory definition in s 9AA itself. The statutory definition of 'head sentence' of itself also does not mandate the conclusion that it can only refer to a custodial sentence.
5. There may nevertheless be reasons why on its proper construction, s 9AA applies only to a custodial sentence. It is neither necessary nor appropriate for me to express a concluded view on the broader issue of whether s 9AA can apply to a non-custodial sentence. That is because I have concluded that, irrespective of the breadth of s 9AA, the sentences imposed were manifestly excessive in the circumstances.

1. As noted above, the maximum sentence prescribed for the offence is a fine of not more than $50,000, and imprisonment for a term of up to 5 years. The penalty was enacted with the introduction of the Animal Welfare Act and significantly increased the maximum penalty for cruelty offences, which was previously $5,000 or 12 months of imprisonment.[10] The increase indicates that the legislature viewed offences of this type as being serious, and that previous penalties were inadequate.[11]
2. The range of sentences for offences under s 19 of the Animal Welfare Act were reviewed by this court in a number of decisions, including Holding v Parkin, Van der Laan v Lang,[12] and King v WA Police.[13] It is not necessary to set out those summaries again. It is sufficient to observe that the offence can reflect a very wide range of differing circumstances, and that it is neither possible nor appropriate to discern an established tariff or range of sentences for the offence. The appropriate sentence is highly fact‑dependant and turns on a broad range of factors, including those set out in Holding v Parkin.[14]
3. In this matter, it was not in dispute that the learned magistrate's strong and condemnatory description of the conduct was appropriate and accurate. To that description, I would add 'cruel'.
4. At the same time, it is perhaps a sad reality that the behaviour is some considerable distance from the worst type of conduct to constitute such an offence. This was a one‑off and imbecilic act of toxic and performative bravado on a single animal. It was somewhat sustained in its execution, but relatively brief overall. It was not repeated. It appears to have been fairly impulsive, inspired by the opportunity to impress those with a shared propensity for juvenile idiocy. It is far from the category of the sustained and planned persecution of animals by torture or neglect.
5. Both appellants otherwise presented as decent, responsible and gainfully employed young men of good character, with no relevant prior criminal convictions or history of unlawful conduct. They both pleaded guilty at the first opportunity, cooperated with authorities and took responsibility for their actions. The learned magistrate accepted that they were remorseful and unlikely to reoffend.
6. In all the circumstances, the imposition of a fine reflecting 96% of the maximum fine for Mr Summers and 78% of the maximum fine for Mr Roccisano was each manifestly excessive.
7. Accordingly, I would grant leave to appeal, allow the appeal and set aside the sentences of each of Mr Summers and Mr Roccisano.

1. Each of the appellants provided updated information of their personal circumstances for the purpose of resentencing.
2. Mr Summers' trade is a fitter. He was employed in that trade at the time of his conviction. He lost that job as a result of the conviction. He sought alternative employment and after two months found work as a truck driver. For the last four months, he has been employed again as a fitter.
3. Mr Summers now earns a very good income from his trade. He owns an expensive motor vehicle which he purchased for $95,000. Other than that, he has no substantial assets other than $8,000 in savings and superannuation. Mr Summers' expenses include motor vehicle repayments, fuel, and rent, which at the time of the hearing totalled about $4,000 per month. The cost of fuel has since risen significantly. In addition, he resides in a regional area in which food and other items are relatively more expensive than in Perth. Even taking account of these expenses, Mr Summers has no dependants and would appear to confront no real difficulty in paying a fine, at least by instalments (which he has been doing to date).
4. Mr Roccisano also earns a very good wage. He recently purchased a home for $500,000 and his expenses include monthly mortgage repayments and motor vehicle repayments, although his car is worth considerably less than that of Mr Summers. He has other debts, including a credit card debt, but nothing of the magnitude that would prevent him from paying a fine by instalments (which he also is currently doing).
5. Taking account of each of the appellant's personal financial circumstances and various factors that were established in the Magistrates Court proceedings, I consider that the appropriate sentence is:

(1) in respect of Mr Summers, a fine of $18,000; and

(2) in respect of Mr Roccisano, a fine of $14,000.

1. I would grant leave to appeal, grant the appeal, set aside the sentences and impose the sentences stipulated above.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] ts, Green v Summers (the transcript incorrectly records this document as Western Australia Police v Summers), Magistrates Court of Western Australia, 23 June 2025, 6 - 8 (ts Summers); ts, Green v Roccisano (the transcript incorrectly records this document as Western Australia Police v Roccisano), Magistrates Court of Western Australia, 23 June 2025, 2 - 3 (ts Roccisano).

[3] Holding v Parkin [2012] WASC 113.

[4] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[7] Neach v Hobbs [2021] WASC 135 [24]; Lockyer v DPP [2022] WASC 207 [33]; Inglis v Peach [2016] WASC 30 [50] ‑ [52].

[10] Prevention to Cruelty to Animals Act 1920 (WA) (repealed) s 4(1).

[11] The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 [63]; Holding v Parkin [23].

[12] Van der Laan v Lang [2023] WASC 200.

[13] King v WA Police [2024] WASC 72.