Hudson v Miskell; Miskell v Hudson

[2011] QDC 44

DISTRICT COURT OF QUEENSLAND

CITATION:

Hudson v Miskell; Miskell v Hudson [2011] QDC 44

PARTIES:

Russell Neal Hudson
(Appellant)

v

Luke Miskell
(Respondent)

Luke Miskell
(Appellant)

v

Russell Neal Hudson
(Respondent)

FILE NO/S:

2318/2010

2517/2010

DIVISION:

Appellate

PROCEEDING:

Appeal from Magistrates Court

ORIGINATING COURT:

Magistrates Court, Holland Park

DELIVERED ON:

8 April, 2011

DELIVERED AT:

Beenleigh

HEARING DATE:

4 March 2011 (Brisbane)

JUDGE:

Dearden DCJ

ORDER:

(1)  Appeal and cross-appeal granted.

(2) Sentence of two months imprisonment with a parole release date after two weeks imposed in the Magistrates Court, set aside.

(3) The appellant/respondent is convicted and sentenced to three months imprisonment with an immediate parole release date fixed at 8 April 2011.          

CATCHWORDS:

LEGISLATION:

CASES:

Appeal – Magistrates Court – Animal Cruelty – manifestly excessive – manifestly inadequate

Animal Care and Protection Act 2001 (Qld)

Corrective Services Act 2006 (Qld)

Justices Act 1886 (Qld)

Penalties and Sentences Act 1992 (Qld)

R v Kelly [2006] QCA 467

R v Solway [1995] QCA 374

Rowe v Kemper [2009] 1 Qd R 247

Stevenson v Yasso [2006] 2 Qd R 150

Towers-Hammond v Burnett [2007] QDC 282

COUNSEL:

Mr S Lewis for the appellant/respondent

Mr S Lynch for the respondent/appellant

SOLICITORS:

Gleeson Lawyers for the appellant/respondent

Couper Geysen Solicitors for the respondent/appellant

Introduction

1. The appellant, Russell Neal Hudson, appeals against a sentence of two months imprisonment, with parole after two weeks, imposed by the learned Magistrate at Holland Park on 12 August 2002 in respect of one count of animal cruelty.  The appellant submits that the sentence was manifestly excessive. 

1. The respondent/appellant Luke Miskell cross-appeals in respect of the same sentence, submitting that the penalty was manifestly inadequate.

Facts

1. The facts upon which the appellant was sentenced were outlined before the learned magistrate as follows:-[1]

   [1] Sentencing transcript pp 1-3 - 1-6 (as per summary in Outline of Submissions on behalf of the Appellant pp 1-4)

“On 20 December [2009] a complaint was received by the RSPCA.  The complaint was that the footage of an incident that had occurred earlier had been shown to work colleagues by the appellant at Jaycar Capalaba where the appellant worked.  It was shown to one or more of his colleagues. 

Whilst the footage was being shown, the appellant commented that he’d finally caught the cat that had been coming onto his property.  The complainant identified the appellant in the footage at the time.  The complainant accurately described the footage, describing the cat and the place at which the incident took place, in particular noting a scratching pole that was present at the place where the incident occurred.

The appellant told colleagues when he showed them the footage that he had placed the trap in front of the scratching post with food.  He said ‘you know a cat a close is death when it pisses all over itself and stops moving’.  On 23 December 2009, a warrant was issued by the court to search the appellant’s premises at Wishart.  That was executed at 6.56am on 24…