defendant. Aggravated cruelty (s 6(1) PCA Act): sentenced to 16 months imprisonment with a non-parole period of 8 months (after 25% plea discount). Failure to provide veterinary treatment (s 5(3)(c) PCA Act):...
Key principles
An early plea of guilty that has utilitarian value attracts a substantial discount; the court applied a 25% reduction in penalty for the early plea (see para 4).
Where conduct in an aggravated animal cruelty offence is at the top of the range of objective seriousness and demonstrates a high level of moral culpability, a sentence of...
The court must consider and explain why, where a custodial sentence of less than three years is imposed, it should not be served by way of an Intensive Corrections Order (ICO);...
The court may make an order under section 31(1)(b) of the Prevention of Cruelty to Animals Act 1979 to prohibit an offender from acquiring or caring for animals, as a protective...
Issues before the court
What sentence is appropriate for aggravated cruelty to an animal under s 6(1) PCA Act where the animal was chronically starved and died?
What discount should be applied for an early plea of guilty?
Plain English Summary
The defendant pleaded guilty to aggravated cruelty and failing to provide veterinary treatment after his dog was found chronically starved and dead. The Local Court characterised the offending as at the top of the seriousness range with very high moral culpability, applied a 25% discount for the early plea, and sentenced the defendant to 16 months imprisonment (non-parole 8 months) with a concurrent 4 months for the lesser charge. The court refused an Intensive Corrections Order and prohibited the defendant from acquiring or caring for animals for 10 years.
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Deep Dive
1,738 words · generated 23/06/2026
What happened
The Local Court (Judge G L Henson AM) sentenced Hongyou Zou after he pleaded guilty to two offences under the Prevention of Cruelty to Animals Act 1979: aggravated cruelty (s 6(1)) and failing to provide veterinary treatment (s 5(3)(c)). The dog, a Maremma sheepdog named "Milk", was found on 20 June 2019 on the defendant's balcony in Kingsford in an emaciated state. The RSPCA inspector observed a balcony covered in excrement and dog hair, with no food or water present (Facts [2], [7]). Veterinary examination by Dr Homewood concluded the dog was approximately 33% of its normal body weight, with severe muscle atrophy and evidence of multiple maggot cycles; the opinion was that the dog had been chronically underfed for a minimum of three months and died from emaciation, with likely severe dehydration (Facts [7]-[9]). The defendant told investigators he had been in China and that someone named "Kelvin" had been minding the dog; investigations showed the contact details were false, the defendant had not left Australia, and there was further evidence of avoidance and untruthfulness in attempts to be interviewed (Facts [3]-[6]). The defendant entered early guilty pleas on 16 December 2019 and was sentenced on 19 February 2020 (Initial remarks [2]; Decision header).
Should the custodial sentence (less than three years) be served by an Intensive Corrections Order (ICO)?
Is a prohibition order under s 31(1)(b) PCA Act appropriate?
Cited legislation
No linked legislation citations have been extracted yet.
Sentence: for aggravated cruelty the court imposed 16 months' imprisonment with a non-parole period of 8 months (after applying a 25% plea discount), and for the lesser offence 4 months' imprisonment to be served concurrently. The court also prohibited the defendant from acquiring or caring for any animal for 10 years under s 31(1)(b) PCA Act. An ICO was considered and rejected (Decision header; Remarks on sentence [10]-[13]). A later appeal to the NSW District Court was dismissed (Note).
Why the court decided this way
The court's decision flows from a fact-based assessment of objective seriousness, moral culpability, limited mitigation, the purposes of sentencing, and relevant statutory and appellate guidance.
Objective seriousness and moral culpability: The dog's condition demonstrated prolonged, chronic underfeeding over months and a gradual but severe decline culminating in death. The court concluded the cruelty was "aggravated" and "towards the top of the range of objective seriousness" (Remarks on sentence [1]). The judge stressed the conduct showed a level of moral culpability "towards the highest level" (Remarks on sentence [8]). Those findings established the need for a significant sentence.
Mitigation and plea discount: The defendant pleaded guilty at an early stage. The court followed the Court of Criminal Appeal authority in R v Thomson; R v Houlton and applied a 25% utilitarian discount (Initial remarks [4]). However, the court found that the defendant's persistent dishonesty in investigations, attempts to mislead and false statements significantly reduced the mitigating effect of his prior good character and claimed remorse (Facts [3]-[6]; Remarks on sentence [3]-[4]).
Purposes of sentencing: The court applied the statutory purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999, emphasising punishment, general deterrence, denunciation and protection of the animal community as paramount. Given that animals are particularly vulnerable in the care of owners, the court considered general deterrence particularly important (Remarks on sentence [5], [6], [8]).
Consideration of alternatives to full-time custody: The court considered the three-step process set out in R v Zamagias and the requirement to address ICOs where the headline custodial term is under three years (see R v Campbell). Despite the head sentence being less than three years, the court explained why an ICO would be inappropriate: it would undermine general deterrence, fail to reflect the seriousness of the offender's conduct, and would be ineffective because the offender had capacity and intention to leave the jurisdiction (Remarks on sentence [9], [12]).
Protective measures: To protect animals and promote rehabilitation, the court made a s 31(1)(b) order prohibiting the defendant from acquiring or caring for animals for 10 years (Remarks on sentence [5]; Decision header).
In short, severe factual findings of protracted neglect, coupled with the defendant's lack of credible remorse and deception of investigators, produced a sentencing outcome prioritising punishment and deterrence over community-based options.
Before and after state of the law
Before this decision courts had established key sentencing principles relevant to plea discounts and the assessment of ICOs. The court followed established appellate authorities:
Plea discounts: The court applied the approach in R v Thomson; R v Houlton, treating an early plea with utilitarian value as attracting a substantial discount; here the court specified 25% (Initial remarks [4]).
ICO consideration: The court applied the requirement identified in R v Campbell that, if imprisonment less than three years is imposed, the sentencing judge must explain why an ICO is inappropriate. The judge explicitly addressed and rejected an ICO for the reasons given (Remarks on sentence [12]).
The decision does not create a new principle but demonstrates application of established sentencing authorities in the animal-cruelty context. It reinforces that where objective seriousness and moral culpability are high, and where deterrence and denunciation are paramount, full-time custody will often be the only appropriate response despite early pleas or lack of prior convictions. The decision also confirms that s 31 prohibition orders are a proper adjunct to custody for protecting animals and promoting rehabilitation.
Key passages with plain-English translation
"The utilitarian value of the pleas entered attracts a discount of 25%..." (Initial remarks [4]).
Plain English: Because the defendant pleaded guilty early and saved court resources, the judge reduced the sentence by 25%.
"The cruelty ... is aggravated ... towards the top of the range of objective seriousness" (Remarks on sentence [1]).
Plain English: The judge found the conduct to be extremely serious for this type of offence, close to the worst cases of animal cruelty.
"There can be little argument the level of moral culpability ... towards the highest level." (Remarks on sentence [8]).
Plain English: The defendant's moral blameworthiness was very high.
"There is no other penalty appropriate ... than that of a sentence of imprisonment." (Remarks on sentence [9]).
Plain English: After balancing mitigating factors and authorities, the judge concluded imprisonment was the only suitable punishment.
"If I were to order the sentence be served by an ICO I would be undermining the weight to be given to general deterrence ..." (Remarks on sentence [12]).
Plain English: An ICO (serving the sentence in the community) would not send a strong enough message to deter others or be effective here, so the judge refused it.
"I accept there is sufficient basis for the Court to make a finding of special circumstances." (Remarks on sentence [10]).
Plain English: The judge acknowledged factors (foreign national, language barriers, first time in custody) that could be considered special circumstances when fixing parole eligibility.
What fact patterns trigger this precedent
This sentencing approach is triggered when:
An animal is found to have been chronically starved and suffered severe, prolonged neglect resulting in death, with veterinary evidence supporting months of underfeeding and severe muscle atrophy (Facts [7]-[9]); and
The owner or responsible person has actively misled investigators, provided false accounts, or avoided inquiry, thereby diminishing apparent remorse or mitigation (Facts [3]-[6]); and
No substantial mitigating factors exist apart from prior good character which is weakened by deception; and
The offence demands a strong message of denunciation and general deterrence to the community, particularly where the animal is domesticated and emotionally valued (Remarks on sentence [5]-[8]).
Under these fact patterns, the Local Court indicated imprisonment is likely to be imposed, an ICO is likely to be refused, and a lengthy prohibition on animal ownership may be ordered.
How later courts have treated it
The judgment notes at the end that "an all grounds appeal to the NSW District Court in this matter was dismissed by Hunt DCJ on 23 April 2020" (Note). That indicates a higher court did not find error in the Local Court's approach on the core sentencing issues. The Local Court decision therefore stands as affirmed in its application of sentencing principles: recognising early plea discount but imposing immediate custody for particularly egregious prolonged animal cruelty, and properly addressing ICO considerations as required by appellate authority.
Practitioners should treat this decision as a clear statement that prolonged starvation to death of a companion animal, coupled with deception of investigators, will attract substantial custodial sentences and long-term prohibitions on animal ownership. The decision also underscores that an early plea mitigates but does not necessarily avoid imprisonment where objective seriousness and deterrence demand it.
Still-open questions
Parole timing and 'special circumstances': The court found "special circumstances" for parole considerations given the defendant's status as a foreign national and first-time detainee (Remarks on sentence [10]). How lower- and higher courts will delineate the boundary of "special circumstances" sufficient to reduce a non-parole period in similar cases remains an area for further development. The Local Court accepted those factors for eligibility rather than reducing the non-parole period to avoid custody altogether.
Quantifying plea discounts in animal cruelty cases: The court applied a 25% discount for an early plea in this case. Whether that percentage is typical, or should be adjusted case-by-case, remains a matter for sentencing judges; this decision indicates 25% is appropriate for an early plea with utilitarian value but does not freeze the discount at that quantum for all cases.
The interplay between rehabilitation-focused orders (s 31 prohibitions) and immigration consequences: The court imposed a decade-long prohibition on animal ownership. The practical rehabilitative effect of such orders for foreign nationals who may be deported or leave the jurisdiction raises questions about proportionality and effectiveness which future appellate decisions may address.
ICO suitability framework in animal cruelty cases: The court rejected an ICO primarily on deterrence and effectiveness grounds. Future cases may explore more granular criteria for when ICOs can be appropriate despite serious cruelty, for example where substantial rehabilitation programming is demonstrably available and the offender's capacity to abscond is low.
Sentencing parity and guidance across jurisdictions: While appellate authorities were followed, consistent guidance on where aggravated animal cruelty sits within the sentencing range relative to other serious offences may require further appellate consideration to promote consistency in sentencing outcomes.
Practitioners should therefore note the firm stance this decision takes on prolonged neglect and dishonesty but remain attentive to future appellate refinements on mitigation, ICO use, and interaction with migration and rehabilitation issues.
Judgment (4 paragraphs)
[1]
Judgment
The defendant, Hongyou Zou, appears before the Court for sentence in relation to two prosecutions brought against him under the Prevention of Cruelty to Animals Act 1979 (the PCA Act). The more serious offence, alleging the commission of an act of aggravated cruelty is brought pursuant to section 6(1) of the Act. The maximum penalty for this offence is 2 years imprisonment and/or a fine of $22,000. The second offence under section 5(3)(c) of failing to provide veterinary treatment carries a maximum penalty of 6 months imprisonment and/or a fine of $5,500.
The proceedings came before the Local Court on 2 December 2019. At the request of the defendant they were adjourned to enable him to seek legal advice. On 16 December 2019 he appeared in company with a Mandarin interpreter. A solicitor from the Legal Aid Commission appeared amicus to assist the defendant and the Court. On that date the defendant entered pleas of guilty to both charges. The proceedings were adjourned for sentence on 29 January 2020. On that date the defendant appeared before me. Once again a solicitor from the Legal Aid Commission appeared in an amicus capacity.
The defendant sought an adjournment, not for further legal advice but because, so he stated through the interpreter, he had been mixing with people of Chinese extraction (he being a Chinese national) and was fearful as to the possibility that he may have been exposed to the Coronavirus or COVID-19 as it subsequently came to be known. For abundant caution the sentencing proceedings were adjourned until today.
Before turning to the facts it is appropriate to note that the pleas of guilty entered by the defendant were at an early stage in the proceedings. It is the view of the court that the utilitarian value of the pleas entered attracts a discount of 25% in line with the observations of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383. Nothing in the tendered statement of facts relied on by the prosecution suggests the defendant has any prior criminal convictions.
The facts tendered to the Court are disturbing. I do not intend to include them in the course of these remarks to the full extent. Although these proceedings are heard in open court there are occasions when, for the sake of members of the public who are not inured to the more disturbing aspects of human behaviour and its consequences, a Court, whilst exposing the basis of the facts on which it is to sentence, should nonetheless temper its observations. A complete record of the facts is attached to the court papers.
[2]
The facts (abridged)
The defendant was the owner and responsible person for a dog named "Milk". The dog is a Maremma breed sheepdog. The standard weight for a dog of this type is between 30-40 kilograms. The dog resided in a unit with the defendant in Kingsford. The defendant was, at the time of the offence, a student at the University of New South Wales located in the adjacent suburb of Kensington.
On 20 June 2019 Inspector Lucas of the RSPCA attended the defendant's premises in response to a complaint that a dog appeared to have starved to death. It is unclear who made the complaint. There is an oblique suggestion it may have come from the property manager of the unit but this is speculative on the part of the court.
On arrival Inspector Lucas spoke with the defendant. The facts state that he did so after the administration of a caution. The defendant told Inspector Lucas he had only discovered the death of his dog that morning, that he had found a person on an app to look after his dog, didn't know if the man was staying at the unit with his dog, and he, the defendant had been out of Sydney for a month in China. He provided Inspector Lucas with a telephone number which he said, was the point of contact with the person with whom he said he had arranged to care for his dog. He identified this person as Kelvin. The defendant was also asked for his flight details. They were never provided.
Subsequent investigations by Inspector Lucas disclosed that the telephone number was incorrect. The number connected the Inspector with a business. An employee of that business informed him no such person as Kelvin worked for the business. It is unclear from paragraph 10 of the facts whether the business that was contacted had any involvement in the minding of animals.
Subsequent inquiries by Inspector Lucas with the university disclosed the reality that if the defendant had been in China when he said he was he would have missed one month of university. In November 2019 information provided to the RSPCA by Australian Border Force established that the defendant had not left Australia when he said he had. Additional information to the effect that the defendant's library card was used at the university 3 days prior to the seizure of the body of his dog lends support to this circumstance. The defendant was untruthful during the investigation in other ways.
[3]
Remarks on sentence
The observations of the condition of the dog's body, the time that would need to have passed for it to reach that condition and the assertion that there had been an abject failure to provide food or water for a period of up to 3 months can only lead to the acceptance by the Court of a conclusion that the cruelty in leaving a dog unattended for a period of months, with insufficient or no access to food and water, is aggravated to such an extent that the offending is to be classified as being towards the top of the range of objective seriousness for offences of this nature. The level of moral culpability in the commission of both offences is well above a mid-range category of offence. The defendant's conduct was egregious.
Some may describe it as showing a callous indifference to a living creature bordering on the barbaric. The Court would not disagree with such a description. To leave an animal to die after an extended and cruel decline into eventual death offends our basic sense of humanity and decency. As humans we cannot enter the mind of an animal and what it must have felt during its journey towards death. We can however reasonably conclude that the animal would suffer both the physical consequences of the transition from healthy to emaciated together with some form of emotional pain. It is not unreasonable to conclude there would be a point in this sad journey when the dog would recognise that it was beyond saving. I doubt whether a right thinking community would be anything other than sickened and appalled at the defendant's lack of care.
Although there are no factors under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) that aggravate the offence (section 21A(2)(f) being in reality an element of both offences), there are no substantial mitigating factors to be found in section 21A(3) other than his prior good character. It is difficult to conclude there is any worthy degree of contrition or remorse given the attempts by the defendant to mislead the prosecution and sheet blame on someone or some organisation that appears never to have existed. The defendant's dishonesty and the persistence of his lying impact detrimentally in my view on the degree of mitigation of penalty to be found in his prior good character.
The Court has been assisted in relation to the subjective factors relating to the defendant through the provision of a duty Sentence Assessment Report. According to that document the defendant blames "his financial circumstances and competing obligations for his failure to properly care for the dog". The Court is not assisted by this somewhat nebulous statement. Nor is it assisted by his statement that despite his untruthful assertion to Inspector Lucas that he had returned to China, he had resided in the unit where the dog was found and fed it occasionally when he could afford to. He further claims that he tried to surrender the dog to the RSPCA however he could not provide details of such attempts to the Community Corrections Officer. Given the background of untruthfulness throughout the investigation of these matters and the positive submission by counsel for the RSPCA that no call of that nature would ever be rejected, and there was no record of such call ever having been received, I reject his accounts and attempts to mitigate his conduct in this way.
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 18 February 2021
Aggravated cruelty (s 6(1) PCA Act): sentenced to 16 months imprisonment with a non-parole period of 8 months (after 25% plea discount). Failure to provide veterinary treatment (s 5(3)(c) PCA Act): sentenced to 4 months imprisonment to be served concurrently. Prohibited from acquiring or caring for any animal for 10 years pursuant to s 31(1)(b) PCA Act. ICO refused; full-time custody to commence forthwith (Decision header; Remarks on sentence [10]-[13]; Decision header).
The RSPCA sought to interview the defendant in July 2019. The defendant asked for a postponement because he had university exams. Subsequent investigations established this was not true. The defendant's exam schedule was between 17 and 31 August 2019. Other attempts to interview the defendant and reschedule interviews in September and October 2019 were unsuccessful. It is safe to conclude the defendant did not want to engage.
To return to the day Inspector Lucas attended the defendant's premises - he found the dog on the defendant's balcony. The balcony was covered in excrement and dog hair. There was no food or water to be seen. The dog's body was taken to the RSPCA where it was examined by Dr Homewood. It was found to be approximately 33% of its normal body weight, emaciated with bones protruding and signs of the presence of numerous cycles of maggots. There were other observations made. They are set out in paragraph 7 of the facts.
The report of Dr Homewood and its conclusions are set out at paragraph 19 of the facts. He expressed the opinion that the degree of muscle atrophy was so severe that there was barely any muscle palpable, or able to be felt on the body and that this condition existed ante mortem. The doctor expressed the further view that the dog had not been provided with sufficient or proper food for a minimum of 3 months. At this point I do not lose sight of the statement by the defendant, even though proven false, that he had been in China for a month.
Dr Homewood expressed the opinion the dog died from emaciation and that this was a prolonged process leading to his further view that the dog would have had to have been chronically underfed for months to develop emaciation to such an extent. The doctor further expressed the view that it is likely severe dehydration also played a part in the death. I note from paragraph 4 of the facts that no food or water was seen by Inspector Lucas. Viewed overall the opinion of Dr Homewood was that a dog in this condition put it in a position of absolute emergency requiring veterinary intervention.
The observation by Inspector Lucas in the final sentence of paragraph 4 when taken with the need for treatment expressed by Dr Homewood was that there was a clear failure to provide the dog with veterinary treatment for its condition. Given that the facts establish the defendant's presence in the jurisdiction during the relevant periods there was clearly an abject failure on his part to arrange the care that was required and which may have led to the recovery of the dog.
Guidance in relation to penalty is to be found in the purposes of sentencing set out in section 3A of the Sentencing Act. The unacceptable nature of the offending leads to a need to ensure the defendant is adequately punished. The reality that animals are at a real disadvantage at the hands of those entrusted with their care either as owners or carers means that general deterrence is of significant importance. The significance of pet and other animal ownership within the community means that courts need to be firm in their endeavours to prevent crimes of this nature by imposing sentences that are meaningful. The protection of the community, in this case the animal community, from further acts by the defendant can be achieved through the making of an order under section 31(1)(b) of the PCA Act. By making such an order promotion of the rehabilitation of the offender is, one hopes, largely achieved by taking away the capacity to be entrusted with a pet for the next decade. Breach of such an order carries a reasonably significant financial penalty.
Denunciation of crimes such as this is of fundamental importance. Although proper treatment of animals is almost a given in any civilised community it remains important from time to time to remind ourselves that acquiring an animal also means the acquisition of a responsibility and a trust that when breached diminishes the community as a whole unless the unacceptability of the behaviour is properly and loudly rejected. Lastly there is the need to recognise the harm done, not in this case to the victim because that is self-evident, but to the community. Unnecessary and inexcusable cruelty is unsettling for the community at large.
Domestication of animals, in this case dogs, leads to an emotional attachment beyond mere affection. When someone such as the offender acts in the way he did and produces such an inhumane outcome the revulsion felt by those who become aware of this type of conduct is visceral. The memory of what was done lingers and cannot be assumed to just fade away. The very fact of the existence of the RSPCA reflects, and significantly so, the overwhelming view of our community that cruelty is unacceptable, that it exists despite this reality and that the task of reducing it whether through education or punishment is worth the effort on behalf of all of us. This is the background against which sentence in these matters is to proceed.
There can be little argument the level of moral culpability associated with the commission of the offence is towards the highest level. There can be little argument the degree of cruelty inflicted on the dog is towards the upper range. To starve an animal of food and water over a period of months extends the degree of cruelty. The impact on the animal was not sudden and of short duration. There can be little argument that in pursuit of the purposes of the legislation and the purposes of sentencing that denunciation, retribution and general deterrence all call for a sentence of significance.
I have considered carefully the cautionary statement in section 5 of the Sentencing Act. This is necessary as the first step in the three step process set out in R v Zamagias [2002] NSWCCA 17. Having done so, and having taken into account the defendant's prior good character together with the utilitarian value of his early plea of guilty, I am nonetheless of the view that there is no other penalty appropriate in each matter than that of a sentence of imprisonment.
The defendant is convicted. Having weighed in the balance the foregoing and after the application of the 25% discount for his plea on the count of aggravated cruelty he is sentenced to imprisonment for a minimum period of 8 months and an additional period of 8 months. As a foreign national for whom English is not a first language and is entering custody away from his family and for the first time I accept there is sufficient basis for the Court to make a finding of special circumstances. I have done so.
On the lesser offence, again this is a course of offending at the top of the range of objective seriousness warranting a sentence of imprisonment he is convicted and sentenced to imprisonment for a period of 4 months. This sentence is to be served concurrently with the other sentence imposed on this date on the basis that much of the conduct in this offence has been considered in the context of the more serious matter.
Having determined that a sentence of imprisonment is appropriate I turn to the third consideration outlined in R v Zamagias -the manner in which such sentence is to be served. In line with the statement of principle by Hamill J in R v Campbell [2018] NSWCCA 87, namely that the court must explain why, in circumstances where the sentence is less than 3 years, why it should not be served by way of an Intensive Corrections Order (ICO). An ICO is a sentence of imprisonment albeit one served in the community. It is my view that if I were to order the sentence be served by an ICO I would be undermining the weight to be given to general deterrence and would not be reflecting the horrendous nature of the defendant's conduct adequately. Given the capacity of the defendant to leave the jurisdiction, and in fact his intention to do so in August 2020, an ICO would be rendered meaningless and would not reflect any adequacy of punishment.
It is the view of the Court that the community would be justifiably aggrieved at any other sentence in this matter than one of full time custody. It is a fact of judicial life that sometimes offences are committed where the conduct is so repugnant there is no rational basis for any other sentence than one of imprisonment. This is one of them. The sentence of imprisonment is to be served by way of full time custody and is to commence forthwith. The defendant will be eligible to be considered for parole on 14 October 2017.
Judge G L Henson AM
Chief Magistrate
Downing Centre Local Court
19 February 2020
NOTE: An all grounds appeal to the NSW District Court in this matter was dismissed by Hunt DCJ on 23 April 2020.