King v WA Police - [2024] WASC 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KING -v- WA POLICE [2024] WASC 72
CORAM:   SOLOMON J
HEARD:   1 MARCH 2024
DELIVERED          :   1 MARCH 2024
FILE NO/S:   SJA 1061 of 2023
BETWEEN:   BOSTON KING
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1061 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G BENN
File Number            :   MI 642/2023
MI 643/2023

Catchwords:

Animal cruelty - Reckless driving - Appeal against sentence - Manifestly excessive sentence - Suspension of term of imprisonment - Turns on own facts

Legislation:

Animal Welfare Act 2002 (WA)
Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed

Representation:

Counsel:

Appellant	:	Ms A Antoine
Respondent	:	Ms SJ Keighery

Solicitors:

Appellant	:	Perrella Legal
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Fogg v Western Australia [2011] WASCA 11
Holding v Parkin [2012] WASC 113
Kabambi v The State of Western Australia [2019] WASCA 44
Rubin v The State of Western Australia [2016] WASCA 2
The House of Relocators v Ginbey [2014] WASCA 94
Van der Laan v Lang [2023] WASC 200
Woodhouse v Leslie [2023] WASC 11

SOLOMON J:

(This judgment was delivered extemporaneously on 1 March 2024 and has been edited from the transcript).

In March 2023, the appellant Boston King pleaded guilty to one count of animal cruelty contra to s 19(1) of the Animal Welfare Act 2002 (WA) (Animal Welfare Act).
The matter was ultimately adjourned for sentencing on 1 August 2023. The Statement of Material Facts was read to the Magistrates Court in respect of the guilty plea as follows: At about 12.20 am on Saturday 24 December 2022, the accused was driving his vehicle, a white Toyota Landcruiser. He was driving along Clarkson Road in Bullsbrook with two male friends on board. As he reached the southern end of Clarkson Road, the accused saw a kangaroo and took deliberate action to aim his vehicle towards the animal. The accused deliberately drove his vehicle off the road onto the verge and used his vehicle to intentionally collide with the kangaroo. The accused then stopped his vehicle and got out. He approached the unmoving kangaroo and, using a knife, proceeded to sever one of the kangaroo's back legs and its tail from its body. The accused left the tail on the ground next to the body and hung the leg on a picket fence. The accused returned to his vehicle and continued to drive on Clarkson Road again using his vehicle to intentionally run down a number of other kangaroos on the road, road verge, and sides of the road. He then travelled back up Clarkson Road and returned on to Gibbard Place where the accused ran down a number of other kangaroos in the same manner. CCTV footage captured the vehicle leaving the road and mounting the verge in pursuit of two kangaroos. Other than the first kangaroo the accused did not exit his vehicle to check the welfare of any of the other kangaroos. The accused then left the area in his vehicle.
Mr King was later arrested at his home and conveyed to Ellenbrook Police Station. He participated in an audio-visual record of interview in which he made admissions to using the vehicle to deliberately run down 11 kangaroos.
That was the Statement of Material Facts read to the Magistrate. Those facts described essentially three events of driving deliberately into more than one kangaroo with the intent and effect of killing them.
There was some discussion about the duration of time over which that took place. The appellant's counsel said it was a period of five minutes. There was no real evidence on the matter, but it is not in contention that it took place over a relatively short time, and was all part of the one episode - although it may well have taken longer than five minutes.
Submissions were made on behalf of both the appellant and by the respondent at the sentencing hearing. Prior to the sentencing hearing the Magistrates Court received the following materials: six character references, a handwritten letter of apology from the appellant, a Certificate of Attendance from the Defensive Driving School, a report from the Traffic Offender Intervention Program, a pre-sentence psychological report procured and prepared privately by Dr Lorraine Sheridan, a psychologist, and also a pre-sentence report ordered by and provided to the court. The Magistrate advised that he had read and considered each of those materials.
I summarise now the Magistrate's remarks at sentencing. The Magistrate noted the early pleas of guilty, observing that these entitled the appellant to the full discount of 25%. He noted and accepted the remorse, regret, and shame that the appellant had expressed. He had regard to the character references, the pre-sentence report, and the psychological report.
The learned Magistrate noted at the outset Mr King's very young age of 18, and the absence of any prior record, and accepted that they were significant mitigating factors. The Magistrate also pointed to the fact the appellant cooperated with the police, and readily made admissions in terms of the offending.
The Magistrate made reference to the content of the psychological report, including a potential diagnosis of ADHD. The Magistrate also noted that Mr King had the benefit of a loving, supporting, caring and functional family who had raised him. The Magistrate said, however, that the potential diagnosis of ADHD or the matters that were symptomatic of ADHD in respect of Mr King, and the fact that he was affected by alcohol at the time, did not explain or provide an understanding of any kind of justification for what the Magistrate characterised as 'appalling behaviour'.
The Magistrate characterised the conduct as an extraordinarily cruel, sadistic, barbaric slaughter of kangaroos without any consideration, over and over again. The Magistrate also referred to the impact on the local community. The Magistrate remarked that the penalty had to reflect the very serious nature of the offending as a personal deterrent and also as a general deterrence to the community. In that context, the Magistrate also pointed to the public nature of the offence, that it was not committed in someone's backyard or home. It was very public. And that, the Magistrate said, was a relevant factor in considering the penalty.
The Magistrate repeated that the penalty needed to reflect the very serious nature of the offending, and concluded that in the circumstances the only appropriate penalty was a term of imprisonment. The Magistrate then turned his mind to the suspension of the sentence and said, having regard to the same factors, he was not of the view that the sentence should be suspended.
The Magistrate then imposed a term of 8 months' imprisonment to be served immediately, with parole eligibility. The Magistrate also imposed an 18-month driving disqualification under s 105 of the Sentencing Act 1995 (WA) (Sentencing Act).
The appellant appeals broadly on the basis that the sentence was manifestly excessive and thereby reflects legal error. That is put in the alternative. Firstly, it is said that the type of sentence, that is a sentence of imprisonment, was manifestly excessive. Secondly, it is said that if a term of imprisonment was not manifestly excessive as to the type of penalty, then it was not reasonably open to the Magistrate to exclude the option of a term of suspended imprisonment, conditionally or otherwise. In short, the Magistrate ought to have suspended the sentence, conditionally or otherwise.
In the appellant's written submissions, and more amply in oral submissions, counsel for the appellant contended that there was also error in the Magistrate's decision by reason of the Magistrate having had regard to the victim impact statements. The appellant's counsel contended that those statements were inadmissible under the Sentencing Act. Further, it was said to be clear from the transcript of the Magistrates Court sentencing hearing that the Magistrate had taken account of the matters contained in the victim impact statements. Since this was done impermissibly, the error was compounded. Counsel for the appellant accepted that this was not a separate ground of appeal. Rather, it was advanced on the basis that, as I understood it, it explained or gave reason for the manifestly excessive nature of the sentence imposed. That is, it was not an independent ground of appeal, but went towards explaining how or why the learned Magistrate arrived at a sentence that the appellant contended was manifestly excessive.
I will not have regard to that aspect of the appellant’s appeal. Firstly, I accept the submission of counsel for the respondent that the Magistrate's use of the victim impact statements ought to have been an independent ground of appeal. But in any event, and perhaps more importantly, it seems to me that the content of the victim impact statements did not feature materially in the actual sentencing remarks of the Magistrate as reflected in the transcript.
The Magistrate referred to the public nature of the offence, the shock it caused, and its inevitable impact on the community. Those are matters of plain common sense and common experience, and in my view do not reflect any error. In any event, s 15 of the Sentencing Act permitted the learned Magistrate to have regard to matters as the Magistrate saw fit, including matters of that nature.
I turn then to the statutory framework under which this appeal is brought. It is brought under div 2 pt 2 of the Criminal Appeals Act 2004 (WA). An appeal may be made against a sentence imposed by a court of summary jurisdiction as a result of a conviction. Leave to appeal is required for each ground of appeal, and must not be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding, meaning that the ground is required to have a rational and logical prospect of succeeding.
Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed. Further, even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
I turn then to the relevant principles of sentencing. Those are not controversial. They are set out in cases such as Kabambi v The State of Western Australia [2019] WASCA 44 (Kabambi) at [21]:
The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. 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. Thus, 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.
(2)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.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(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. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.[1]
[1] Kabambi v The State of Western Australia [2019] WASCA 44, [21].
I had occasion to summarise those principles in Woodhouse v Leslie [2023] WASC 11 (Woodhouse) at [35] - [37], including the principles applicable in circumstances where it is said or alleged that the manifestly excessive nature of the sentence is constituted by the failure to suspend a sentence, and with particular reference to the Court of Appeal decision in Fogg v Western Australia [2011] WASCA 11 (Fogg) at paragraphs [5] - [10].
Those principles were also summarised in the context of a similar appeal for an offence under the Animal Welfare Act recently by her Honour Seaward J in Van der Laan v Lang [2023] WASC 200 (Van der Laan) from paragraph [44] - [51], paragraph [51] being the paragraph that sets out the relevant penalty for the offence the subject of this appeal, that is an offence under s 19(1) of the Animal Welfare Act. The penalty is a fine of between $2,000 and $50,000 and/or imprisonment for a maximum of 5 years.
One of the important principles that emerges from the summaries or discussion contained in those authorities is that it is not a sufficient basis for appeal that this court would have determined that a different sentence was the appropriate sentence. The test is not whether this court would have sentenced the appellant differently; the test is whether it was open to the Magistrate to give the sentence that he did and that it was within the range of available sentences.
I refer also to the decision of the Court of Appeal in Rubin v The State of Western Australia [2016] WASCA 2 (Rubin) and the observations of the Chief Justice at paragraphs [49] - [50].
Ground 2 asserts, in effect, that error is to be implied from the failure of the sentencing judge to suspend the terms of imprisonment which he imposed. Such error may be implied if the sentences imposed are unreasonable or unjust. A sentence will not be characterised as unreasonable or unjust if it was within the range of sentences reasonably open in the exercise of a sound discretionary judgment. Once it is accepted that there may be cases in which different types of sentence are reasonably open in the exercise of a sound discretionary judgment, it follows that an appeal against sentence on the ground of error to be implied from the type of sentence imposed can only succeed if it is established that the type of sentence imposed was not reasonably open in the exercise of a sound discretionary judgment. Notwithstanding s 39(3) of the Act, that burden will not be discharged by establishing that some lesser type of sentence was also within the range reasonably open.
Applied to the circumstances of this case, it follows that ground 2 can only be made out if it is established that terms of imprisonment to be immediately served were not within the range reasonably open to the sentencing judge in the exercise of a sound discretionary judgment or, put another way, if it is established that suspended terms of imprisonment were the only type of sentence available within that range. That is the question which must now be addressed.[2]
[2] Rubin v The State of Western Australia [2016] WASCA 2 [49] - [50] (citations omitted).
It follows that in terms of the alternative contention advanced by the appellant in relation to the failure to suspend, the application of those principles means that in order for that ground to succeed, I must be persuaded that it was not open to the Magistrate to come to the view that no other sentence but one of immediate imprisonment was appropriate. Or, put another way: was it reasonably open to the Magistrate to positively conclude that it was not appropriate to impose some form of suspended imprisonment?
That is the way that in my respectful view it was correctly framed by Hall J in Holding v Parkin [2012] WASC 113 (Holding) at paragraph [51] and by Seaward J in Van der Laan at paragraph [60].
Hall J in Holding set out at paragraph [41] the relevant factors in assessing the circumstances of an offence of animal cruelty pursuant to s 19 of the Animal Welfare Act:
Section 6 of the Sentencing Act 1995 (WA) requires that sentences be commensurate with the seriousness of the offence. This requires consideration of the circumstances of the commission of the offence. In my view, the relevant factors in assessing the circumstances of an offence of animal cruelty pursuant to s 19 of the Animal Welfare Act are:
1.the nature of the harm inflicted on the animal (see definition of 'harm' in s 5);
2.the length of time during which the animal suffered;
3.the amount of suffering caused, that is the extent of any injury or the degree of pain or the amount of distress;
4.the vulnerability of the animal, both in general and in relation to the particular offender;
5.whether the conduct that caused the harm was a single act or a course of conduct; and
6.whether 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).
Those principles were accepted by the Court of Appeal as appropriate in The House of Relocators v Ginbey [2014] WASCA 94 (House of Relocators) at paragraph [65].
The Court of Appeal added that the list by Hall J was not exhaustive.[3] In that regard, it seems to me that a further factor (which has some relevance to this case) might be whether the animal cruelty had some form (justified or not) of ancillary utility or constructive purpose or whether, on the other hand, it was done wantonly or gratuitously as an act of cruelty or recreation.
[3] The House of Relocators v Ginbey [2014] WASCA 94 ('House of Relocators') [66] per Mazza JA.
I pause also to observe that the Court of Appeal in House of Relocators explained that the amendment to the regime in relation to animal protection that came into effect through the operation of the Animal Welfare Act increased the penalties considerably for animal cruelty, and that must be taken as an indication that the legislature viewed offences of this type as being serious, and that the previous applicable maximum penalties were inadequate.[4]
[4] The House of Relocators [63] per Mazza JA.

The decisions of Hall and Seaward JJ also reviewed a range of cases involving animal cruelty, and included a survey of cases and various facts and factors applicable to each of those cases and the penalties that each set of circumstances attracted.[5]
[5] Holding [26] - [32], Van der Laan [73] - [82].
In that regard, I would respectfully agree with the observation of Seaward J that there is no established tariff for animal cruelty offences, nor is it possible to discern and establish a range of sentences for animal cruelty, as the factual circumstances of each case vary quite significantly.
It is not the case that acts of animal cruelty invariably lead to sentences of imprisonment, but it is by no means uncommon that they do. That serves to illustrate the varying circumstances that lead to different sentences and underscores the observation of Seaward J that it is not possible to discern and establish a range of sentences.
In those circumstances, and given the survey has been undertaken carefully and comprehensively by Seaward J in her quite recent decision, I do not intend to repeat the matters in her Honour's decision other than in respect of the observations I have already made.
I turn then to the circumstances of the offending which is the subject of the appeal. I have already referred to and set out the Statement of Material Facts. There can be no doubt that this was an act of depraved and crazed idiocy fuelled by alcohol and social pressure. It involved a complete and callous disregard for animals, for the environment, and for the community.
I need to have regard to the general principles of sentencing. I have already referred to the statutory penalty. I have referred to the circumstances of the offence. And I turn now to the personal factors to which the appellant points in respect of his own circumstances, and the circumstances of the events.
They include, as the most significant factor in my view, the appellant's youth. He had just turned 18. He had no prior criminal conduct, and this was a one off, unplanned event. Although it involved 11 animals, it was part of one series of events over a relatively short period of time. The appellant also points to the remorse, and the fact that he sought professional assistance to deal with what obviously are some troubling issues.
Having regard to the range of sentences customarily imposed in comparable cases, the maximum sentence prescribed by the statute, the place that the criminal conduct occupies in the scale of seriousness, and the offender's personal circumstances, it was plainly open to the Magistrate to impose a sentence of imprisonment.
The real question on this appeal is the issue of the suspension of that sentence. I have described already the very disturbing and serious nature of the offence. I have taken all matters very carefully into account, but particularly having regard to the factors of the appellant's youth, the absence of any prior criminal conduct, the remorse accepted by the Magistrate, some of the treatment which he has received, and the extra curial punishment of public humiliation that he has suffered, I have concluded that it was not open to the Magistrate to come to the view that no other sentence was open to him other than one of immediate imprisonment.
In those circumstances, I would set aside the sentence of immediate imprisonment, and impose a sentence of 8 months' imprisonment conditionally suspended for 24 months, together with a fine of $5,000. I will include supervision and counselling requirements. That sentence cannot be backdated. So that sentence will be from today, and it will come with a fine of $5,000.

Orders

Accordingly, I make the following orders:
1.Leave to appeal be granted.
2.The appeal be allowed.
3.The sentence imposed by the Magistrates Court in MI 642/2023 be set aside, and the following sentence be substituted:
(a)8 months' imprisonment, conditionally suspended for 24 months with programme and supervision requirements;
(b)A fine of $5,000; and
(c)Disqualification from holding or obtaining a motor driver's licence for 18 months, to be served concurrently and backdated to commence on 1 August 2023.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LZ
Associate to the Honourable Justice Solomon
15 MARCH 2024