Parker v Riley-McDonald - [2017] TASSC 26

[2017] TASSC 26

COURT: SUPREME COURT OF TASMANIA

CITATION: Parker v Riley-McDonald [2017] TASSC 26

PARTIES:  PARKER, John
  v
  RILEY-McDONALD, Jacob Kevin Scott

FILE NO:  3722/2016
DELIVERED ON:  27 April 2017
DELIVERED AT:  Hobart
HEARING DATE:  6 April 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentence and penalty – Cruelty to animals and aggravated cruelty – Sentences of imprisonment concurrent with sentence for assault manifestly inadequate.

Animal Welfare Act 1993 (Tas), ss 8, 9.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  S Nicholson
             Respondent:  A Hensley
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2017] TASSC 26
Number of paragraphs: 32

Serial No 26/2017
File No 3722/2016

JOHN PARKER v JACOB KEVIN SCOTT RILEY-McDONALD

REASONS FOR JUDGMENT BLOW CJ

27 April 2017

This is a motion for the review of some sentencing orders made by a magistrate, Mr R Marron. The applicant, a police prosecutor, contends that the sentences imposed were manifestly inadequate.
During 2015 the respondent, Jacob Riley-McDonald, lived with a woman named Leeanda Brumby for about three months. During the time that he lived with her, he assaulted her repeatedly, was cruel to her cat, and was so cruel to her dog that it died. He was charged with 12 counts of assault contrary to s 35(1) of the Police Offences Act 1935, and on four charges under the Animal Welfare Act 1993. He pleaded not guilty all the charges. The learned magistrate heard all the charges together, found the respondent not guilty on one of the assault charges, found him guilty of all the other charges, and made sentencing orders as follows:
·     In relation to the 11 proven charges of assault, the respondent was convicted and sentenced to 20 months' imprisonment with effect from 6 October 2016.
· In relation to the cat, there was one charge of doing an act likely cause pain to an animal, contrary to s 8(1) of the Animal Welfare Act. On that charge the respondent was convicted and sentenced to three months' imprisonment.
· In relation to the dog, the respondent was convicted on two charges of doing an act likely to cause pain to an animal, and on one charge of doing an act when reckless as to the likely death of an animal, contrary to ss 8(1) and 9(1)(a) of the Animal Welfare Act. On those three charges, he was sentenced to nine months' imprisonment, cumulatively with the three-month sentence relating to the cat.
·     The learned magistrate ordered that the sentences relating to the animals be served concurrently with the sentence relating to the assaults.
·     He ordered that 10 months of the sentences of imprisonment be "suspended for two years".
·     He made a probation order, to operate for 24 months.
·     He ordered that the respondent "be disqualified indefinitely from having custody of any animal".
The applicant accepts that the head sentences of 20 months', three months' and nine months' imprisonment were each appropriate for the charge or charges to which they related. However he contends that in the aggregate the sentences were manifestly inadequate as a result of (a) 10 months of the imprisonment being suspended, and/or (b) the sentences relating to the animals being made concurrent with the sentence relating to the assaults. The respondent also accepts that each head sentence was appropriate for the charge or charges in question, but contends that in the aggregate the sentences were not manifestly inadequate.
In the beginning, Ms Brumby was renting a unit in Mayfield, and living there with her cat and dog. The respondent moved in with her. When interviewed by police officers on 31 July 2015, he explained that he had used her and her address so that he could get bail on other charges. Apparently he expected not to get bail unless he had suitable residential arrangements, and the opportunity to live with Ms Brumby at her unit presented itself.
The learned magistrate was satisfied beyond reasonable doubt that the respondent assaulted Ms Brumby as follows:
·     On 12 May 2015, by punching her to the face.
·     On or about 13 May 2015, by punching her to the body and holding her around the neck.
·     In another incident on or about 13 May 2015, by hitting her across the body with a metal pole, punching her to the body and head, and pulling her hair.
·     Between 14 May 2015 and 17 July 2015, by punching her to the head and body.
·     On a subsequent occasion between those dates, by hitting her to the ribs.
·     On a subsequent occasion between those dates, by punching her to the head.
·     On a subsequent occasion between those dates, by burning her finger.
·     On a subsequent occasion between those dates, by hitting her with a golf club.
·     On a subsequent occasion between those dates, by holding a knife to her throat.
·     Between 1 and 12 July 2015, by hitting her to the body.
·     Between 15 and 17 July 2015, by pouring hot coffee down her back and hitting her to the side of the head.
The charges relating to the cat and the dog all related to a single incident that occurred between 1 July and 13 July 2015. The learned magistrate accepted the evidence given by Ms Brumby as to that incident. Her evidence was to the following effect. She had a male cat named Charlie and a female American bulldog named Ruby. On the day in question, the respondent suggested that she wash the dog under the shower. Ms Brumby put the dog in the shower, but she kept trying to jump out. The respondent came over to the dog, and started hitting her, pushing her, and telling her to sit down. He was punching her to the head and body. Ms Brumby left the bathroom. From the kitchen, she could hear the respondent hitting the dog and could hear the dog crying. The respondent came out of the bathroom and asked her where the cat was. He found the cat behind the couch. He picked the cat up and threw him across the room, where he hit the leg of the kitchen table. The cat ran and hid behind the couch. The respondent picked the cat up and threw him again against the leg of the kitchen table, about three times. Then he told Ms Brumby to put the cat in a cupboard, which she did. Then he got the cat out of the cupboard, put him in the toilet, and closed the lid on him. Ms Brumby got him out of the toilet. He was wet. Water dripped from him onto the floor. The respondent said words to the effect of, "He's pissed on the floor." He then picked the cat up and threw him over the top of the shower door, into the shower where the dog was. The dog then started to attack the cat. Ms Brumby rescued the cat and put him out of the house through the bathroom window. The respondent then removed the dog from the shower. Ms Brumby went to the kitchen but looked into the bathroom, and saw that the respondent had tied the dog's lead around her leg and mouth so that she could not cry or make any noise. The respondent was repeatedly hitting the dog and was hurting her. He was hitting her with the handle of a golf club and punching her to the body and the head. Subsequently the respondent removed the lead and tried to give the dog water and food, but she would not eat or drink. Ms Brumby tried to dry the dog with a hair dryer in front of a heater. The respondent approached. The dog tried to run away, and jumped up onto the respondent's new couch. She was still wet. The respondent became really angry, started to hit her again, and was yelling at her. The dog was placed in front of the heater again, but would not move. Ms Brumby used the hair dryer to try to dry her face, whereupon the dog got up, walked to the corner of the kitchen, fell down, urinated and defecated. Ms Brumby saw blood in her urine and faeces. The respondent tried to resuscitate the dog, but she vomited repeatedly, went limp, and died.
The respondent hid the body of the dog inside a black leather couch. Three police officers and an animal welfare officer from the RSPCA went to Ms Brumby's home on 23 July 2015 and found the body, wrapped up and hidden inside the couch.
A veterinary surgeon x-rayed the body of the dog and performed a post-mortem examination. She noted a proximal non-displaced fracture of the tenth rib on the left side. She said it was likely that considerable force had been used to cause that fracture, and that that would have caused the dog unjustifiable pain and suffering if it occurred when the dog was still alive. She said it was the type of injury that she might usually see in a motor vehicle accident, for example when an animal had fallen out of a moving utility. She also noted a fracture of the skull in the left occipital area. She said such a fracture was uncommon, but might be seen if an animal was hit by a car or a cricket bat. She could not say whether that injury had occurred before or after death. However there was no suggestion of any violence towards the body of the dog after it died.
As I have said, there was only one charge relating to the cat. The particulars of that charge did not mention the placing of the cat in the toilet. The relevant particulars alleged that the respondent caused the cat unreasonable and unjustifiable pain and suffering "by throwing him at a kitchen table and a wall numerous times" and by "throwing him over a shower door". The learned magistrate said that he found that charge proven "so far as it relates to the allegations of throwing the animal at the kitchen wall a number of times, and throwing him over a shower door". I think he meant to say "kitchen table" rather than "kitchen wall".
As I have said, there were three charges relating to the dog. They were counts 1, 2 and 4 on the relevant complaint. Count 1 related to the respondent's violence towards the dog before the attack on the cat. It was a charge of causing unreasonable and unjustifiable pain to an animal. The learned magistrate found that charge proven. Count 3 was a similar charge, relating to the respondent's violence towards the dog after the attack on the cat. The learned magistrate found that charge proven on the basis that the respondent had caused unreasonable and unjustifiable pain and suffering by wrapping the lead tightly around the dog's neck and mouth, hitting her with a golf club, and continually punching her. Count 4 was a charge of doing an act when the respondent was reckless as to whether that act was reasonably likely to result in the death of the dog. It was based on the same violence as count 2. The learned magistrate found that count proved on the same basis as count 2.
This was an extremely serious case of cruelty to animals. The respondent's attacks on the dog and cat were vicious, cowardly, sustained and pointless. He ceased his attack on the cat only as a result of Ms Brumby helping it to escape through the window. He ceased his attack on the dog only when it was obviously near death. The animals were not his. Ms Brumby had trusted him to live in her home, but he breached that trust by attacking both animals, fatally in the case of the dog. To make matters worse, he carried out those attacks in her presence, at a time when she was already traumatised by the repeated assaults on her.
Ms Brumby was six years younger than the respondent. The learned magistrate described her as a "vulnerable person" who was attracted to the respondent, and "wanting a relationship". He made a finding that the respondent's behaviour towards Ms Brumby "oscillated wildly between kindness and violence". He often became angry, upset and violent when under the influence of drugs. Ms Brumby became increasingly fearful of him. The learned magistrate observed that his offending covered a nine-week period "that left one animal injured, one dead, and Ms Brumby terrified and traumatised".
Her physical injuries were described by the learned magistrate as "bruising on her stomach; bumps and lumps and bruises on her forehead and on her arms and legs; a burn on her finger about an inch long, and a burn between her index and right finger about the size of a 5 cent piece". He accepted the evidence of a witness who observed that Ms Brumby had a black eye, and a bruise on her upper right leg. He sentenced the respondent on the basis that any psychological effects were likely to continue for some time after the assault ceased, and were most likely still continuing at the time of sentencing in November 2016, some 16 months after the assaults ceased.
The respondent was 24 years old when these offences were committed, and was 25 when sentenced. Before committing these offences he had been dealt with by courts for 10 assaults. Two of those were assaults on an earlier female partner, committed in early 2013. On one of those occasions he forced the woman onto her hands and knees on the floor, kicked her to the ribs at least four times, raised his foot and brought the bottom of his heel forcefully down onto the middle of her spine, choked her around the neck until she lost consciousness and, after she regained consciousness and vomited, took a wooden rolling pin and struck her to the legs with it. On the second occasion he bit that woman to the back. Her injuries included fractures to five vertebrae. For the assaults on her, the respondent was sentenced to 15 months' imprisonment.
He was released from prison on 12 February 2015, only three months before the first assault on Ms Brumby. He was taken back into custody in relation to other charges on 7 September 2015.
In the period that he was out of prison during 2015, a period of less than seven months, he committed 36 other offences apart from the offences relating to Ms Brumby and her animals. During February 2016 a magistrate sentenced him for those 36 offences, imposing a sentence of 16 months' imprisonment, backdated to 7 September 2015.
The charges to which that sentence related comprise the following:
·Sixteen counts of stealing.
·One count of having possession of stolen property.
·Seven counts of aggravated burglary.
·Three counts of burglary.
·One count of motor vehicle stealing.
·One count of driving without a licence.
·One count of driving with an illicit drug in his blood.
·Six counts of contravening the conditions of a notice. (I infer that the notices in question related to police bail.)
Three months of the 16-month sentence were remitted pursuant to s 86 of the Corrections Act 1997. The last day that the respondent spent in prison serving the 16-month sentence was 6 October 2016. That was the date to which the learned magistrate backdated the sentence of 20 months' imprisonment relating to the assaults on Ms Brumby.
Because the learned magistrate was imposing prison sentences that were, in effect, cumulative with the period of 13 months' imprisonment served by the respondent for the other 36 offences, he was obliged to apply the "totality principle", as discussed by the High Court in Mill v The Queen (1988) 166 CLR 59. The learned magistrate was well aware of that obligation. In practical terms, he was required to impose sentences that would result in the respondent spending less time in custody than would have been appropriate if he had not been in custody prior to 6 October 2016. As Hunt CJ at CL pointed out in R v Gordon (1994) 71 A Crim R 459 at 466:
"When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable."
The learned magistrate was provided with a number of reports which gave him a great deal of information as to the respondent's background. It is clear from those reports that the respondent had problems with anger and aggression from a very young age. His mother died from a drug overdose during his early childhood. He was emotionally and physically abused. He was taken into care at a very young age. He abused drugs from about the age of 11. A thorough report by a psychologist prepared in January 2015 showed that there was little indication of any prospect of rehabilitation. However the material before the learned magistrate contained a number of pieces of information that indicated a recent improvement in the respondent's prospects for rehabilitation.
The learned magistrate received a pre-sentence report by a probation officer dated 8 September 2016. A number of positive comments were made in that report. It was said that the respondent intended to reside with his grandmother when released, and that her home had been assessed as suitable. The respondent had suggested that he would build a more positive social circle and said that he needed to sever ties with numerous anti-social friends and associates. It was said that he had developed a passion for personal training in the prison gymnasium, and intended to continue that activity when released. He hoped to obtain employment in his father's business. He had taken action to address his drug use by completing five months of treatment whilst in prison. He intended to obtain pharmacotherapy for his addiction and cravings for opiates on his release. He had been reclassified from maximum security to minimum security.
A supplementary pre-sentence report related to an interview with the respondent's grandmother. It was said that she had noticed a significant improvement in his attitude over the previous several months. His grandmother considered that he was beginning to take personal responsibility for his behaviour and his situation for the first time.
The learned magistrate also received a report by a psychologist dated 6 October 2016. She too noted that the respondent had been able to control his conduct whilst in custody, and had successfully completed a drug and alcohol treatment program, resulting in a minimum security classification.
The learned magistrate was provided with an "Exit Report" relating to the alcohol and drug treatment program completed by the respondent whilst in custody. He was also provided with copies of certificates showing that the respondent had completed courses in the prison relating to alcohol and drug emergencies, strategies for self-improvement and change, and substance addiction.
Obviously those matters relating to rehabilitation weighed in the respondent's favour for sentencing purposes. However his progress towards rehabilitation must be seen in context. The following paragraphs from the psychologist's report of 6 October 2016 reveal a lot as to the extent of his progress:
"25Mr Riley-McDonald continues to possess problematic personality characteristics consistent with psychopathy. His current offences particularly include a complete disregard for human and animal life, with Mr Riley-McDonald continually using instrumental violence and physical and emotional control to psychologically and physically damage his victim, his ex-partner, and her pets. In doing so, he showed a severe lack of empathy and remorse. Mr Riley-McDonald was constantly abusing substances over the period of the offences, however the complete lack of regard for others is unable to be explained solely by substance abuse. Whilst during this assessment for this report Mr Riley-McDonald was more forthcoming with his thoughts and feelings, this only confirms this personality characteristic as he was more than willing to disclose his past manipulations, along with his violent thoughts and fantasies that still occur on a daily basis.
26During his current incarceration, Mr Riley-McDonald appears to have had a shift in his overall willingness to engage and his behaviour, in that he has been able to control his conduct whilst in custody which has resulted in him successfully being admitted and completing the Apsley Drug and Alcohol Treatment Unit program and being classified as a minimum inmate. This suggests that whilst Mr Riley-McDonald may still possess the violent thoughts and fantasies, as well as the ongoing urges to use substances, he has been able to work on these and moderate his behaviour accordingly.
27Despite this however, Mr Riley-McDonald would remain a high risk of recidivism due to his psychopathic traits and default mechanisms of returning to drugs when things are not going well for him. If Mr Riley-McDonald does not continue to work on his rehabilitation it is inevitable that he will return to offending and possibly commit even more serious offences."

In my view the only significant matters that the learned magistrate was required to take into account in the respondent's favour were the totality principle and the steps taken by the respondent towards rehabilitation. A lot of common mitigating factors were absent. The respondent was not a first offender. He did not plead guilty. He was not mentally ill. There was no suggestion of remorse.
The sentence of 20 months' imprisonment in respect of the 11 assaults was a substantial one. It is true that the assaults involved repeated vicious acts over a period of about 9 weeks, involving cowardly violence towards a defenceless woman in her own home, but Ms Brumby appears not to have suffered any serious permanent physical injury. It is true the learned magistrate suspended 10 months of the 20-month sentence, but the respondent could be required to serve the suspended 10 months if he re-offends. I note that the learned magistrate made no provision for parole in relation to that sentence. When that sentence is looked at in isolation, I do not think it can be said that a sentence of 20 months' imprisonment, with half of that period suspended and no provision for parole, was a manifestly inadequate penalty for the 11 assaults. It was not "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505.
However I take a different view in relation to the concurrent sentences imposed for the Animal Welfare Act offences. As I have said, the learned magistrate sentenced the respondent to three months' imprisonment on the charge relating to the cat, and a cumulative term of nine months' imprisonment on the charges relating to the dog, but he made those sentences concurrent with the sentence relating to the assaults. The order that he made suspending 10 months of the sentences of imprisonment must be interpreted as suspending the last two months of the nine-month sentence relating to the dog. If the respondent re-offends and an application is made to activate the suspended parts of the 20-month and nine-month sentences, namely 10 months and two months respectively, orders activating those parts of the sentences would result in the respondent having to serve them cumulatively unless a court otherwise ordered: Sentencing Act 1997, s 27(6)(b). But, subject to that possibility, the practical effect of the learned magistrate's orders is that they would not require the respondent to spend any additional time in prison for the Animal Welfare Act offences after completing his sentences for the 11 assaults and the other 36 offences. In my view the animal cruelty charges, particularly those relating to the dog, were so serious that the only reasonable or appropriate course was to make orders requiring the respondent to spend additional time in prison, over and above the period of incarceration relating to the assaults. The learned magistrate could have brought about that result in a number of ways. He could have imposed a global head sentence of more than 20 months in respect of the 11 assaults and the Animal Welfare Act charges. Or he could have imposed one or more cumulative sentences in respect of the Animal Welfare Act charges. However he did not take either of those courses. He imposed sentences that were concurrent with the sentence relating to the assaults. By taking that course, I consider that he imposed sentences that were, in the aggregate, manifestly inadequate. The motion to review must therefore succeed.
The sentence of 20 months' imprisonment for the assaults was so substantial that it can be inferred that the learned magistrate did not take into account the totality principle in fixing that head sentence. I think it is clear that he gave effect to that principle by ordering that the sentences relating to the Animal Welfare Act charges be served concurrently. That may have been the only factor that led him to take that course.
With the totality principle in mind, I think the most appropriate course in this case is for me to order that the nine-month sentence relating to the dog, but not the three-month sentence relating to the cat, be served cumulatively with the 20-month sentence for the assaults. That will result in periods of incarceration of 13 months, 20 months and 9 months, totalling 42 months, with 10 months thereof suspended, and no provision for parole. Such a result is appropriate, having regard to the totality of the respondent's offending when he was out of prison in 2015.
There is one further order that needs to be made. Under s 43(1)(c) of the Animal Welfare Act, the learned magistrate had the power to order that the respondent be disqualified from having custody of any animal "for such period as the court orders". He purported to make such an order, but did not make it for a period. He ordered that the respondent "be disqualified indefinitely". That needs to be corrected. I have therefore decided to substitute a fresh order, disqualifying the respondent from having the custody of any animal for the term of his natural life. Under s 43(3), he may apply to have that order varied, suspended or cancelled after 12 months have elapsed.
For these reasons, my orders are as follows:
1 The motion to review is allowed.
2The orders of the learned magistrate are varied so that the sentence of nine months' imprisonment imposed on counts 1, 2 and 4 on complaint 30697/16 is to be served cumulatively with the sentence of imprisonment imposed on complaint 30696/16, and without any part of that nine-month sentence being suspended.
3The disqualification order made by the learned magistrate is quashed.
4The respondent is disqualified for the term of his natural life from having custody of any animal.