Bond v Lamprey
[2022] TASSC 4
•8 February 2022
[2022] TASSC 4
COURT: SUPREME COURT OF TASMANIA
CITATION: Bond v Lamprey [2022] TASSC 4
PARTIES: BOND, Luke
v
LAMPREY, Tony Reuben
FILE NO: 2505/2021
DELIVERED ON: 8 February 2022
DELIVERED AT: Hobart
HEARING DATES: 15 November 2021, 2 February 2022
JUDGMENT OF: Brett J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Grounds that sentence was manifestly inadequate – Sentencing order of magistrate set aside.
Aust Dig Magistrates [1349]
Animals – Prevention of cruelty to animals – Offences – Causing unnecessary pain and cruelly ill-treating – Particular cases – Aggravated cruelty to an animal – Reckless as to whether act will or reasonably likely to result in death, deformity or serious disablement of an animal.
Animal Welfare Act 1993 (Tas) ss 8, 9.
Holding v Parkin [2012] WASC 113, 233 A Crim R 532, followed.
Aust Dig Animals [45]
Animals – Protection of fauna and game laws – Offences – Tasmania –Possession of specially protected wildlife without a permit – Trapping of spotted tail quoll.
Wildlife (General) Regulations 2010 (Tas), reg 35.
Aust Dig Animals [65]
REPRESENTATION:
Counsel:
Applicant: L King-Roberts
Respondent: In person
Solicitors:
Applicant: Director of Public Prosecutions
Judgment Number: [2022] TASSC 4
Number of paragraphs: 20
Serial No 4/2022
File No 2505/2021
CONSTABLE LUKE BOND v TONY REUBEN LAMPREY
REASONS FOR JUDGMENT BRETT J
8 February 2022
The respondent was charged with two offences concerning the trapping and death of a spotted tail quoll, which had occurred at his home in Stowport on 14 February 2021. The charges were as follows:
· Taking specially protected wildlife without a permit, contrary to reg 35(1) of the Wildlife (General) Regulations 2010.
· Aggravated cruelty to an animal, contrary to s 9(1)(a) of the Animal Welfare Act 1993.
On 24 September 2021, he pleaded guilty to both charges and was sentenced by Magistrate Topfer on a global basis to a fine of $500. It was his first appearance with respect to the complaint, and he was not represented by counsel. The applicant moves this Court to review the sentence on the ground that it was manifestly inadequate in all the circumstances of the case.
The prosecution facts read to the magistrate were not disputed by the respondent. A few days before the relevant events, the respondent indicated in a Facebook post his intention to trap a spotted tail quoll which had apparently been taking chickens which he kept in an enclosure at his home. On the night of 13 February, he set a trap and also used a grinder to sharpen the end of a length of reinforcing bar, thereby creating a spear.
The spotted tail quoll was trapped during the morning of 14 February. While the animal was still in the trap, the respondent used the makeshift spear to stab it in the head. He then left for work without checking to see if the animal was dead. When he returned home later in the morning, he speared the animal again and took photos of it. He sent one of the photos to a friend on Facebook. He disposed of the animal's body in a wheelie bin at his work on 15 February.
In subsequent Facebook posts, the respondent made comments such as he did not "really care when [it was] a trespasser", that he had "the last laugh" and that "a good quoll is a dead one".
During a police interview, the respondent told police that he trapped the quoll because he believed that it had killed 12 of his chickens. He said he stabbed it with the spear because he did not have another way of killing it. He left the animal in the cage without checking whether it was dead or alive because he was concerned it might hurt him. When he stabbed it a second time, it started bleeding.
The magistrate was provided with a report from a veterinarian. In the report the veterinarian expressed the opinion that:
· The acts the animal was subjected to, while it was alive, resulted in unreasonable and unjustifiable pain and suffering.
· The physical trauma of the rod passing through the animal's body would have caused an extremely high degree of physical pain.
· It is highly likely that the animal would have experienced difficulty breathing or respiratory distress, and that circulatory failure or respiratory failure are possible causes of death.
During the sentencing proceedings, the respondent told the magistrate that he was "really sorry", that he had always lived in the city, but he and his new partner had recently moved to the country "not realising what we was [sic] in for when we had chickens in our yard". He said that he did not really understand that the animal was protected, and that he was just protecting his own animals.
The respondent was 54 years of age at the time of the commission of the offences. His prior convictions consisted solely of a modest number of traffic offences, the last of which was committed in 2005. He told the magistrate during the sentencing proceedings that he was in full-time employment and had "never been unemployed" during his life. In short, the respondent is a person of otherwise good character.
Other matters relevant to sentencing included the respondent's early pleas of guilty. He pleaded guilty on the first occasion that the matter came before the court. He also expressed remorse to the magistrate during the sentencing proceedings. However, as the magistrate pointed out in sentencing comments, the claim of remorse was inconsistent with the comments made on social media by the respondent after committing the offences.
The charge of aggravated cruelty contained in s 9 of the Animal Welfare Act is the most serious of a range of offences relating to the mistreatment of animals. Cruelty to animals is dealt with by s 8 which provides that a person must not do any act or omit to do any duty which causes or is likely to cause unreasonable and unjustifiable pain and suffering to an animal. Section 9 is an aggravated form of that offence. The circumstance of aggravation is a mental element, in particular where the person does the act or omits to do the duty knowing that, or is reckless as to whether the act or omission, will or is reasonably likely to result in consequences which include the death, deformity or serious disablement of an animal. The seriousness of the aggravated offence is apparent from the maximum penalty. Section 9 provides for a maximum penalty in the case of a natural person is a fine not exceeding 200 penalty units ($34,400 in this case) or imprisonment for five years. This can be contrasted to the maximum penalty in respect of s 8 which, for a natural person, is a fine not exceeding 100 penalty units ($17,200) or imprisonment for a term of 12 months.
In this case, the charge to which the respondent pleaded guilty alleged that he had wounded the animal and at the time of doing so knew or was reckless as to whether the act was reasonably likely to result in death, deformity or serious disablement. The magistrate did not make any specific finding in respect of the relevant state of mind. I should, accordingly, assess the adequacy of the penalty on the basis of an assumption that the respondent was to be sentenced on the less serious alternative, that is, he was reckless in respect of the relevant consequences of his actions. However, having regard to the nature of this conduct, there is little significance in this distinction.
In the Western Australian case of Holding v Parkin [2012] WASC 113, 233 A Crim R 532, Hall J considered a sentence imposed under a comparative provision of animal cruelty legislation in that State. His Honour listed relevant factors in assessing the objective seriousness of the animal cruelty. They are:
"1the nature of the harm inflicted on the animal;
2the length of time during which the animal suffered;
3the amount of suffering caused, that is the extent of any injury or the degree of pain or the amount of distress;
4the vulnerability of the animal, both in general and in relation to the particular offender;
5whether the conduct that caused the harm was a single act or a course of conduct; and
6whether the conduct was deliberate, intentional or planned, or was neglect of a duty to animals (one will not necessarily be more serious than another, it will depend upon the circumstances)."
Having regard to these factors, it can be determined that the objective seriousness of the respondent's conduct in this case was high. His actions were planned and deliberate, and it is clear that he intended to inflict significant harm or death on the animal in a cruel way by preparing the makeshift spear. His actions in spearing the animal, and then leaving it while he went to work, and then returning later and spearing it again, demonstrate a persistent callousness and a high degree of cruelty. The magistrate did not make a finding as to whether the animal had died immediately when first speared by the respondent, or whether it remained alive for some time after, perhaps even until when he returned some hours later. The veterinarian had not expressed an opinion, and there was no other evidence from which a reliable finding could have been made about this question. The objective seriousness of the offence should be assessed on the basis that the animal died immediately, but it is relevant to the respondent's moral culpability that he left it impaled by the spear for some hours without checking as to whether it was still alive. Of course, to deliberately leave the animal alive in that condition would represent, in my view, extreme and horrific cruelty resulting in extended pain and suffering. In any event, even proceeding as I do on the basis that, in actual fact, the animal died immediately, the opinion of the veterinarian establishes the probability of significant suffering on the part of the animal as a result of the first wounding. It follows that, even on the assumption that the animal died immediately or within a short time, and that the respondent was reckless as to the reasonable likelihood of death, deformity or serious disablement, this offence represents a serious example of aggravated cruelty to an animal.
I am informed by counsel for the applicant that there is little in the way of comparative sentencing data in this jurisdiction for offences of this nature. Certainly, it is not possible to determine a tariff or range of sentencing for such offences. Cases from other jurisdictions reviewed by Hall J in Holding v Parkin demonstrate that sentences of imprisonment are regularly imposed in serious cases of animal cruelty, but are not inevitable. In an unreported decision of Estcourt J: State of Tasmania v Jeffrey, 16 October 2018, his Honour observed that the significantly increased penalties provided by the Animal Welfare Act for cases of animal cruelty and aggravated animal cruelty, reflected changing community attitudes. His Honour said:
"[21] Societal attitudes towards deliberate cruelty to animals has changed incrementally and very significantly over recent times. One can cite clear and changed attitudes towards whaling, battery hens, greyhound racing, animal slaughtering practices and live sheep exports.
[22] Aggravated cruelty such as that of the respondent greatly offends current community sensibilities, and not only is the principle of general deterrence engaged in such cases, but so in particular is the important principle of denunciation of the conduct. Denunciation in this case is paramount in sentencing, in my view."
I respectfully agree with his Honour's observations. In my view, both general deterrence and denunciation are the paramount sentencing considerations.
Of course, the offence of taking specially protected wildlife without a permit was also a serious matter. In the absence of dispute, the magistrate was bound to accept the respondent's assertion that he did not know that the animal was protected. However, this provided little mitigation in circumstances in which he acted without making any enquiry. The need to protect endangered wildlife is clearly of importance. Offences of this nature are relatively easy to commit and difficult to detect. General deterrence is an important sentencing consideration.
Having regard to these considerations, I am satisfied that a fine of $500 imposed globally in respect of both offences was manifestly inadequate. It demonstrates error in the exercise of the sentencing discretion. Even taking into account the considerations which apply to a prosecution appeal against sentence, the motion should be upheld and the penalty imposed by the learned magistrate set aside. There is a clear need in this case to maintain proper sentencing standards. There is no basis for the exercise of the residual discretion.
Both parties agreed that, in the event that I uphold the motion, I should exercise my power to resentence the respondent. I intend to do so. It is clear, in my view, that the serious nature of the aggravated cruelty offence requires the imposition of a sentence of imprisonment. However, when I take into account the respondent's lack of relevant prior convictions, the out of character nature of the offending, and the fact that the respondent entered a very early plea of guilty, it is appropriate, in my view, to wholly suspend the sentence. I accept that the respondent has taken responsibility for his conduct and it is extremely unlikely that he will commit an offence of this nature again. I note that, in addition to the mitigating factors already referred to, the respondent has provided significant improvements in respect of accommodation for his chickens, which has removed the problem which led him to commit these offences in the first place.
Accordingly, I set aside the sentencing order of the learned magistrate. I intend to impose separate penalties for each offence. In respect of the aggravated cruelty offence, I impose a sentence of three months' imprisonment, which will be wholly suspended for a period of 12 months on condition that the respondent commit no offence punishable by imprisonment during that period. In respect of the offence of taking specially protected wildlife without a permit, the fine of $500 represents, in my view, a modest but appropriate penalty, and accordingly, I impose a fine in that sum for that offence alone.