Moore v. Lewis - [2008] QDC 105

DISTRICT COURT OF QUEENSLAND

CITATION:

Moore v Lewis [2008] QDC 105

PARTIES:

SHANE ALLAN MOORE

(Appellant)

v

BRIAN DAVID LEWIS

(Respondent)

FILE NO/S:

3178/07

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court (Caboolture)

DELIVERED ON:

9 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2008

JUDGE:

Everson DCJ

ORDER:

(1)       The appeal is allowed;

(2)       The order made by the learned acting Magistrate on 2 November 2007 is set aside;

(3)       In lieu thereof, subject to the appellant’s consent, I order 18 months probation;

(4) I direct the appellant’s legal representatives to explain the probation order to the appellant as required by section 95 Penalties and Sentences Act 1992

(5)       A conviction is not recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL – DISTRICT COURT OF QUEENSLAND – SENTENCE – ANIMALS – PROTECTION OF ANIMALS AND BIRDS – where the appellant kicked a cat – where appellant sentenced in Magistrates Court to one month imprisonment with 18 month probation order – whether penalty is manifestly excessive

Animal Care and Protection Act 2001, s 3, s 18
Penalties and Sentences Act 1992, s 3, s 9, s 12, s 90, s 92, s 95

Justices Act 1886, s 222, s 225

Breitkreut v Lightboy, unreported, Pack DCJ 09/09/04, considered
Police v Veach, unreported, Hennessy SM 08/04/05, considered
R v Cay & Ors [2005] QCA 467, cited
R v Ndizeye [2006] QCA 537, cited
Towers-Hammond v Burnett [2007] QDC 282, considered

COUNSEL:

B G Devereaux SC for the appellant

G Page SC and R Fryberg for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Stephens & Tozer for the respondent

This is an appeal pursuant to section 222 of the Justices Act 1886 (“JA”) against the sentence imposed upon the appellant by the Magistrates Court at Caboolture on 2 November 2007.

The appellant was convicted of one count of animal cruelty pursuant to section 18(1) of the Animal Care and Protection Act 2001 (“ACPA”). He was sentenced to one month imprisonment and an 18 month probation order. He was granted bail after five days in custody.

The complaint particularises the charge as that on the 27^th day of June 2006 the appellant “was cruel to an animal, namely a silver tabby cat, by kicking the said animal in the abdomen, unjustifiably and unreasonably injuring the animal…”.

It is submitted on behalf of the appellant that the sentence is manifestly excessive.

Facts

The appellant was aged 17 at the time of the offence and aged 18 at the date of sentence. He has a minor criminal history involving committing a public nuisance, evading a fare and obstructing a police officer on 18 April 2006 for which he received one penalty, a fine of $2,000. At the time of the offence he was living with his father, mother and younger sister and working as an apprentice tiler.

The version of events concerning the offence itself put before the Court below on behalf of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moore v. Lewis

Details

AGLC: Moore v Lewis [2008] QDC 105
Case: [2008] QDC 105
Decision Date: 9 May 2008

CaseChat Overview and Summary

In the matter of Moore v. Lewis, the appellant was convicted for an offence involving the mistreatment of a cat. The appellant had kicked a cat, leading to the charge being brought against him in the Magistrates Court of Queensland. The appellant was sentenced to one month imprisonment with an 18-month probation order. Dissatisfied with the sentence, the appellant appealed to the District Court of Queensland.

The primary legal issue before the court was whether the sentence imposed by the Magistrates Court was manifestly excessive. The appellant argued that the penalty was unduly harsh given the nature of the offence. The court had to balance the need for punishment and deterrence against the need to avoid excessive punishment.

The court found that the sentence imposed by the Magistrates Court was indeed manifestly excessive. The court noted that while the act of kicking a cat was reprehensible, the sentence should reflect the gravity of the offence and serve as a deterrent. However, the court emphasised that a custodial sentence of one month was disproportionate to the offence. The court also considered the appellant's personal circumstances and the likelihood of reoffending. Ultimately, the court determined that an 18-month probation order would be a more appropriate sentence. The court set aside the original sentence and imposed the probation order in its place. The court also directed the appellant's legal representatives to explain the terms of the probation order to the appellant, as required by the Penalties and Sentences Act 1992. Finally, the court decided not to record a conviction against the appellant.

Orders

Orders of the court

(1) The appeal is allowed;

(2) The order made by the learned acting Magistrate on 2 November 2007 is set aside;

(3) In lieu thereof, subject to the appellant’s consent, I order 18 months probation;

(4) I direct the appellant’s legal representatives to explain the probation order to the appellant as required by section 95 Penalties and Sentences Act 1992

(5) A conviction is not recorded.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Moore v Lewis [2008] QDC 105
PARTIES:	SHANE ALLAN MOORE (Appellant) v BRIAN DAVID LEWIS (Respondent)
FILE NO/S:	3178/07
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court (Caboolture)
DELIVERED ON:	9 May 2008
DELIVERED AT:	Brisbane
HEARING DATE:	5 May 2008
JUDGE:	Everson DCJ
ORDER:	(1) The appeal is allowed; (2) The order made by the learned acting Magistrate on 2 November 2007 is set aside; (3) In lieu thereof, subject to the appellant’s consent, I order 18 months probation; *(4) I direct the appellant’s legal representatives to explain the probation order to the appellant as required by section 95 Penalties and Sentences Act* 1992 (5) A conviction is not recorded.**
CATCHWORDS:	CRIMINAL LAW – APPEAL – DISTRICT COURT OF QUEENSLAND – SENTENCE – ANIMALS – PROTECTION OF ANIMALS AND BIRDS – where the appellant kicked a cat – where appellant sentenced in Magistrates Court to one month imprisonment with 18 month probation order – whether penalty is manifestly excessive Animal Care and Protection Act 2001, s 3, s 18 Penalties and Sentences Act 1992, s 3, s 9, s 12, s 90, s 92, s 95 Justices Act 1886, s 222, s 225 Breitkreut v Lightboy, unreported, Pack DCJ 09/09/04, considered Police v Veach, unreported, Hennessy SM 08/04/05, considered R v Cay & Ors [2005] QCA 467, cited R v Ndizeye [2006] QCA 537, cited Towers-Hammond v Burnett [2007] QDC 282, considered
COUNSEL:	B G Devereaux SC for the appellant G Page SC and R Fryberg for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Stephens & Tozer for the respondent