Towers - Hammon v Burnett

(2) Without limiting subsection (1), a person is taken to be cruel to an animal if the person does any of the following to the animal--

(a) causes it pain that, in the circumstances, is unjustifiable, unnecessary or unreasonable;

(e) uses on the animal an electrical device prescribed under a regulation;

(i) without appropriate preparation, including, for example, appropriate food, rest, shelter or water; or

(ii) when it is unfit for the confinement or transport; or

(iii) in a way that is inappropriate for the animal's welfare; or

"That on the 27th day of January 2005 at Rockhampton ...Keith John Burnett was cruel to animals, namely a white-coloured cat, a female tabby cat, a black-coloured kitten, a tabby cat and a tabby kitten, by beating the said cats with an iron bar, causing them pain that was, in the circumstances, unjustifiable, unnecessary or unreasonable ..."

[12] The cats belonged to a person known to the respondent. Damien John Payne was the son of the owner of the cats, and lived in the premises where the cats lived. Payne was described as being in his early 20s and as being "quite dull in intellect". He made some inquiries about finding new homes for the cats, including of his neighbour, Rodney Lewandowsky, and on the day the offence was committed, he was working with the respondent and another at Lewandowsky's house when Lewandowsky told him to get the cats and bring them next door. Payne obtained the cats from the yard of the residence next door and took them to Lewandowsky's residence, believing that the cats were going to be re-housed.

[13] When the cats were taken by Payne to Lewandowsky's residence, the respondent picked up a pinch bar and began hitting a cat, known as CC, on the head and neck. While this was happening, Payne became very angry and screamed at the respondent to stop.

[14] Another person, who was about 25 metres away, heard what he thought was a woman screaming (Payne was said to have a very high-pitched voice) and saw a man, fitting the description of the respondent, strike a cat between 7 and 10 times with what he thought was a piece of wood. He said he saw the man hit the cat around the body and head and then drop it to the ground where he continued to strike it. He then walked away and then returned and hit the cat several more times.

[15] Payne did not see how the other cats were killed. He later saw their bodies and was asked by one of those present to pick up a sack, which was being used as a doormat by Lewandowsky, and he saw all of the bodies placed in the sack which was then left on the veranda floor for several hours while he and the others present, including the respondent, drank some beer. When Payne left, the sack was still on the veranda

[16] Later on 27 January, the bag containing the cats was found in a St Vincent de Paul clothing bin. Four cats were found to be dead. They all had injuries consistent with having been bludgeoned with a blunt object. One of the animals found in the bag was still alive. It had similar injuries to the dead animals. When touched, it cried and it was euthanased by the complainant, who was an Inspector with the RSPCA.

[17] A veterinary surgeon, Dr Muir, examined all of the animals and viewed a videotape showing the kitten which was found to be still alive before it was euthanased. In respect of that kitten, Dr Muir said it appeared to be dazed, depressed and semi-conscious. Its movements were uncoordinated; its eyes appeared abnormal, suggesting head injuries affecting brain function; and its breathing was laboured. He said the cat appeared to be in a lot of pain as it screamed when picked up. In relation to all of the other cats which were dead when found, they had severe injuries, including possible broken necks, head trauma and bleeding from the throat and it was said that one was "virtually decapitated".

[18] As noted by the learned Magistrate, there was no description of the respondent's conduct in respect of the cats, other than CC.

[19] The learned Magistrate referred to the maximum penalty provided for by Section 18 of the Act - 1000 penalty points ($75000) or two years' imprisonment.

[20] The Magistrate also referred to the decision of the Chief Magistrate in a matter of Snowdon, which was handed down on 15 February 2006, and his Honour's reference in that decision to the Minister's Second Reading Speech in relation to the Act. This decision was not referred to in submissions on sentence by either party or the Magistrate.

[21] The Magistrate referred to the respondent's lack of any criminal history for an offence of a like nature and to the fact that his only conviction for an offence of violence was more than 10 years earlier. She noted there was no suggestion of any pleasure or intention to deliberately inflict unnecessary pain and she said that the respondent was trying to assist a person who wanted to dispose of his cats, but who at least appeared initially to think that that would be by finding alternative homes for them.

[22] The Magistrate noted the need to consider both general and specific deterrence. She referred to an unnamed case in Townsville (which had been referred to in submissions) and she said there was a clear distinction between the treatment and duration of the suffering in that case compared with the present. In the Townsville case, she said the defendants' actions were described by the Judge on appeal to the District Court as "extreme, callous and sadistic". She also contrasted the facts in the present case with those in Snowdon's case.

[23] The Magistrate referred to the respondent's plea as a late one, coming on the day on which the matter had been set down for trial, but nevertheless, reduced "slightly" the amount of the fine she would otherwise have imposed in recognition that the plea had saved the necessity for Payne suffering the stress associated with giving evidence.

[24] The appellant submits, inter alia, that the Magistrate failed to pay proper regard to the maximum penalty, arguing that the penalty imposed equates to only about 2½ per cent of the maximum.

[25] While it is, of course, entirely appropriate when exercising the sentencing discretion to have regard to the maximum penalty provided for by the legislature, there is no mathematical formula by which a penalty should be arrived at.

[26] The appellant emphasised that the respondent had not demonstrated any remorse. That seems to be perfectly clear, especially in view of his lack of co-operation with the investigation and particularly his lying to the Inspector on more than one occasion. Whilst genuine remorse is a matter which will usually result in a lesser penalty being imposed than would otherwise have been the case, lack of remorse is not a matter which should result in a higher penalty being imposed than that which is otherwise appropriate. The Magistrate did not expressly give the respondent any credit for remorse and there is nothing to indicate that she reduced the penalty on account of remorse.

[27] The appellant argues that the Magistrate failed to pay proper regard to the respondent taking advantage of Payne because of his slow intellect and his wish to have the animals re-housed. It is argued that the respondent displayed callousness in relation to the offence.

[28] In my view, the facts placed before the Magistrate do show that the respondent's conduct was callous. I refer, in particular, to the actions of the respondent in relation to the first cat, which were observed by a witness, and the fact that he continued to strike despite the protestations of Payne. There is also the nature of the injuries inflicted and the fact that one kitten was left alive, but seriously injured, and that all of the animals were disposed of by being dumped in a St Vincent de Paul bin. Whether or not the respondent took advantage of Payne, in my view, the material placed before the Magistrate does demonstrate that the respondent's conduct was callous. I do not think the Magistrate had sufficient regard to the callousness of the respondent's conduct.

[29] I earlier mentioned the Townsville case, which was referred to but not named, in submissions before the Magistrate. This was the matter of Breitkreuz v. Lightboy, District Court of Queensland, Townsville, Pack DCJ, 9 September 2004. In that case some young soldiers tortured some kittens. They were set on fire and run over. The sentencing Magistrate fined the defendants $2000 and ordered them to perform community service, and an appeal on the grounds that the sentence was inadequate was dismissed. However, although the conduct in that case may be viewed as being more reprehensible than the conduct here, the defendants had demonstrated great remorse and had volunteered to work for the RSPCA, and as a result of the offence had lost their army careers.

[30] In the other case to which I referred, which was the decision of the Chief Magistrate in Snowdon, the defendant had tethered a dog to a tree where it died as the result of deprivation of food and water. The defendant was impecunious, he had co-operated with the investigating authority and made full admissions, but his Honour did not consider the defendant was genuinely remorseful. His Honour found the defendant had acted with premeditation and deliberation in killing the dog despite reasonable avenues of help available to him which he declined to seek for his own selfish motives. The defendant was a 36 year-old man with previous convictions for violence for which he had been imprisoned. In that case the sentence imposed was 4 months' imprisonment "reduced from 6 months because of the defendant's early guilty plea).

[31] It seems to me that in Snowdon's case, despite the lack of violence of the type exhibited by the respondent, the suffering of the dog must have been more prolonged than in the present case (it being left to starve to death), and to that extent it may be regarded as being more serious. I note that the Chief Magistrate found that prior to leaving the dog to die, he had twisted its neck with the intention of breaking it.

[32] In all of the circumstances, the appellant submits that a sentence of imprisonment would be in range.

[33] It was argued on behalf of the respondent that before the Magistrate, the appellant did not argue that a sentence of imprisonment was within range. I reject that submission. It seems to me that it was clearly submitted before the Magistrate by counsel for the appellant that a term of imprisonment was within range (T12/10 - T13/10).

[34] The respondent argues that imprisonment would be outside the appropriate range because of the respondent's antecedents. He is 60 years of age, in only casual employment as a concreter, and dependent largely upon unemployment benefits to support himself, and has a limited criminal history with only one conviction for an offence of violence more than 10 years previously.

[35] On behalf of the respondent, it was also argued that the respondent's means must be taken into account (Penalties and Sentences Act 1992, Section 48). Other than informing the Magistrate that the respondent worked as a casual concreter and received unemployment benefits, no material was placed before the Court as to the respondent's financial circumstances or the nature of the burden that payment of a fine will be on him. I note that sub-Section 48(2) provides that a Court may fine the offender even though it has been unable to find out about the offender's financial circumstances.

[36] I have reached the conclusion that the learned Magistrate failed to have sufficient regard to the callous nature of the offence, and further, that either she erred in reaching the conclusion that the respondent was trying to help Payne, or if she was entitled to reach that conclusion gave it too much weight. I am further of the view that the Magistrate failed to have sufficient regard to the maximum penalty provided by the Act, and in all of the circumstances I conclude that the penalty imposed falls well below what is the appropriate range for this offence.

[37] Having reached the conclusion that the sentence which was imposed was inadequate, it is for this Court to impose an appropriate sentence.

[38] Having regard to all of the circumstances, and the sentencing prescribed in the Penalties and Sentences Act, I am of the view that a sentence of imprisonment is called for in this case. I have had particular regard to the degree of violence used and the nature of the injuries inflicted, and the callousness demonstrated by the respondent, and the need for denunciation and deterrence both general and personal.

[39] I propose to sentence the respondent to imprisonment for three months. In fixing that period, I have given the respondent some benefit for pleading guilty, notwithstanding it was a late plea. Nevertheless, his plea resulted in some expense being saved and spared the witnesses from having to give evidence.

[40] The formal orders will be:

1. Appeal allowed

2. Set aside the orders made at the Magistrates Court Rockhampton on 3 April 2006, except order for costs

3. Record conviction

4. Sentence the respondent to imprisonment for three months

5. Fix last day of sentence as parole release date

6. Order respondent pay costs of appeal fixed at $3552.90

7. Allow 18 months to pay costs.