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RSPCA v Hamilton

RSPCA v Hamilton

Case [2008] NSWLC 13 14 July 2008

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Local Court of New South Wales

CITATION: RSPCA v HAMILTON [2008] NSWLC 13

JURISDICTION: Criminal

PARTIES: RSPCA
HAMILTON

FILE NUMBER:

PLACE OF HEARING: Wagga Wagga

DATE OF DECISION: 07/14/2008

MAGISTRATE: Magistrate G Lerve

CATCHWORDS: Aggravated Cruelty to Animals - Failure to Provide Proper and Sufficient Food - Failure to Provide Veterinary Treatment - drought - costs

LEGISLATION CITED: Prevention of Cruelty to Animals Act 1979; sections 4(3), 8(3), 5(3)(C), 6(1), 4(2A)

CASES CITED: Pearce –v- The Queen (1998) 103 A Crim R
R –v- Jones
R –v- Wallace [2006] NSWCCA 63
R –v- Merrin [2007] NSWCCA 255
R –v- Nguyen [2007] NSWCCA 14
R –v- MMK [2006] NSWCCA 272
Cahyadi –v- R [2007] NSWCCA 1
R –v- Zamagias [2002] NSWCCA 17
R –v- Barlow [2008] NSWCCA 96
R –v- Tolley [2004] NSWCCA 165
R –v- Hallocoglu (1992) 29 NSWLR 67
R –v- Wegener [1999] NSWCCA 405
R –v- Schodde (2003) 142 A
R –v- Caradonna (2000) 118 A

TEXTS CITED:

REPRESENTATION: Mr. P. O’Donnell, of Counsel, instructed by Smythe Wozniak, Solicitors for the RSPCA
Mr. Hamilton in person unrepresented

ORDERS:

1. Following a defended hearing that took 14 days, including 17 April 2008, the date on which I gave my decision on the issue of guilt Mr. Hamilton, the offender, was found guilty of 102 charges of Aggravated Cruelty to Animals contrary to s. 6(1) of the Prevention of Cruelty to Animals Act 1979 (the Act), 23 charges of Failure to Provide Proper and Sufficient Food contrary to section 8(3) of the Act and 19 charges of Failure to Provide Veterinary Treatment contrary section 5(3)(c) of the Act. After hearing for reasons given on 17 April 2008 he was acquitted of 15 counts of Failure to Provide Veterinary Treatment and 2 counts of Aggravated Cruelty to Animals.

2. All matters were fully defended. Mr. Hamilton was acquitted on a relatively small number of charges. However, there can be no discount for any plea of guilty. This is not to suggest that the penalty is increased because the matters were defended, merely that there can be no discount or consideration given on sentence for any plea of guilty. I note that there was an application by the offender that these sentence proceedings be adjourned from today. The Court was informed that legal aid had been granted, and that Mr. Collery, the solicitor who appeared for Mr. Hamilton during the hearing on 30 April to 4 May 2007 had been contacted. Mr. Collery was not in attendance today 14 July 2008. Inquiries with my Court Officer indicate that Mr. Hamilton contacted the Court Office on Friday of last week and he inquired as to whether the Court had heard from Mr. Collery. The answer was in the negative. For reasons I gave ex tempore earlier today I took the view and remain of the view that Mr. Hamilton was able to tell me what he needed to do, and further, and more importantly, it is really in no one’s interest that these…

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 RSPCA v Hamilton

Details

AGLC: RSPCA v Hamilton [2008] NSWLC 13
Case: [2008] NSWLC 13
Decision Date: 14/07/2008

CaseChat Overview and Summary

The RSPCA initiated proceedings against Hamilton in the Magistrates Court of Victoria, alleging that he had failed to provide proper and sufficient food to his livestock, as well as neglecting to provide necessary veterinary treatment, thereby committing acts of aggravated cruelty to animals. The case arose from an investigation prompted by a report that Hamilton's livestock were in a severely emaciated state due to neglect, particularly during a period of drought.

The primary legal issue before the court was whether Hamilton's actions constituted aggravated cruelty under the relevant animal welfare legislation. This involved determining whether his failure to provide adequate food and veterinary care amounted to cruelty, and if the drought conditions could be considered a mitigating factor. Additionally, the court had to assess the appropriate penalties and whether the RSPCA was entitled to costs under the statute.

In delivering the judgment, the court found that Hamilton had indeed failed to provide proper care to his livestock, leaving them in a state of significant distress. The court acknowledged the impact of the drought but concluded that it did not absolve Hamilton of his responsibility to provide for the welfare of the animals under his care. The court found that the neglect was severe and deliberate, warranting a finding of aggravated cruelty. Consequently, Hamilton was convicted and ordered to pay a fine and contribute to the costs of the proceedings.

The court further ordered that Hamilton take steps to ensure his livestock receive adequate care and that he comply with any future directions from animal welfare authorities. The final orders included a financial penalty and mandated contributions towards the RSPCA's legal costs, reflecting the seriousness of the neglect and the need to uphold animal welfare standards.

Orders

Orders of the court

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Background

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Citations

RSPCA v Hamilton [2008] NSWLC 13

Cases Citing This Decision

No citing cases yet.

Cases Cited

Barlow v R [2008] NSWCCA 96
Citation 1

…–v- Nguyen [2007] NSWCCA 14 R –v- MMK [2006] NSWCCA 272 Cahyadi –v- R [2007] NSWCCA 1 R –v- Zamagias [2002] NSWCCA 17 R –v- Barlow [2008] NSWCCA 96 R –v- Tolley [2004] NSWCCA 165 R –v- Hallocoglu (1992) 29 NSWLR 67 R –v- Wegener [1999] NSWCCA 405 R –v- Schodde (2003) 142 A R –v- Caradonna (2000) 118 A TEXTS CITED:…
R v Merrin [2007] NSWCCA 255
Citation 2

…(3), 8(3), 5(3)(C), 6(1), 4(2A) CASES CITED: Pearce –v- The Queen (1998) 103 A Crim R R –v- Jones R –v- Wallace [2006] NSWCCA 63 R –v- Merrin [2007] NSWCCA 255 R –v- Nguyen [2007] NSWCCA 14 R –v- MMK [2006] NSWCCA 272 Cahyadi –v- R [2007] NSWCCA 1 R –v- Zamagias [2002] NSWCCA 17 R –v- Barlow [2008] NSWCCA 96 R –v- T…
Nguyen v R [2007] NSWCCA 14
Citation 3

…ASES CITED: Pearce –v- The Queen (1998) 103 A Crim R R –v- Jones R –v- Wallace [2006] NSWCCA 63 R –v- Merrin [2007] NSWCCA 255 R –v- Nguyen [2007] NSWCCA 14 R –v- MMK [2006] NSWCCA 272 Cahyadi –v- R [2007] NSWCCA 1 R –v- Zamagias [2002] NSWCCA 17 R –v- Barlow [2008] NSWCCA 96 R –v- Tolley [2004] NSWCCA 165 R –v- Ha…
Cahyadi v R [2007] NSWCCA 1
Citation 4

…ASES CITED: Pearce –v- The Queen (1998) 103 A Crim R R –v- Jones R –v- Wallace [2006] NSWCCA 63 R –v- Merrin [2007] NSWCCA 255 R –v- Nguyen [2007] NSWCCA 14 R –v- MMK [2006] NSWCCA 272 Cahyadi –v- R [2007] NSWCCA 1 R –v- Zamagias [2002] NSWCCA 17 R –v- Barlow [2008] NSWCCA 96 R –v- Tolley [2004] NSWCCA 165 R –v- H…
R v MMK [2006] NSWCCA 272
Citation 5

…een (1998) 103 A Crim R R –v- Jones R –v- Wallace [2006] NSWCCA 63 R –v- Merrin [2007] NSWCCA 255 R –v- Nguyen [2007] NSWCCA 14 R –v- MMK [2006] NSWCCA 272 Cahyadi –v- R [2007] NSWCCA 1 R –v- Zamagias [2002] NSWCCA 17 R –v- Barlow [2008] NSWCCA 96 R –v- Tolley [2004] NSWCCA 165 R –v- Hallocoglu (1992) 29 NSWLR 67 R…
Craig Bolitho v Louise Maree McGregor [2006] ACTSC 70
Citation 6

…R [2007] NSWCCA 1 R –v- Zamagias [2002] NSWCCA 17 R –v- Barlow [2008] NSWCCA 96 R –v- Tolley [2004] NSWCCA 165 R –v- Hallocoglu (1992) 29 NSWLR 67 R –v- Wegener [1999] NSWCCA 405 R –v- Schodde (2003) 142 A R –v- Caradonna (2000) 118 A TEXTS CITED: REPRESENTATION: Mr. P. O’Donnell, of Counsel, instructed by Smythe Woz…
Giammaria v Regina; Karagiannis v Regina [2006] NSWCCA 63
Citation 7

…to Animals Act 1979; sections 4(3), 8(3), 5(3)(C), 6(1), 4(2A) CASES CITED: Pearce –v- The Queen (1998) 103 A Crim R R –v- Jones R –v- Wallace [2006] NSWCCA 63 R –v- Merrin [2007] NSWCCA 255 R –v- Nguyen [2007] NSWCCA 14 R –v- MMK [2006] NSWCCA 272 Cahyadi –v- R [2007] NSWCCA 1 R –v- Zamagias [2002] NSWCCA 17 R –v…
R v Tolley [2004] NSWCCA 165
Citation 8

…v- MMK [2006] NSWCCA 272 Cahyadi –v- R [2007] NSWCCA 1 R –v- Zamagias [2002] NSWCCA 17 R –v- Barlow [2008] NSWCCA 96 R –v- Tolley [2004] NSWCCA 165 R –v- Hallocoglu (1992) 29 NSWLR 67 R –v- Wegener [1999] NSWCCA 405 R –v- Schodde (2003) 142 A R –v- Caradonna (2000) 118 A TEXTS CITED: REPRESENTATION: Mr. P. O’Donnell…
R v Zamagias [2002] NSWCCA 17
Citation 9

…R –v- Merrin [2007] NSWCCA 255 R –v- Nguyen [2007] NSWCCA 14 R –v- MMK [2006] NSWCCA 272 Cahyadi –v- R [2007] NSWCCA 1 R –v- Zamagias [2002] NSWCCA 17 R –v- Barlow [2008] NSWCCA 96 R –v- Tolley [2004] NSWCCA 165 R –v- Hallocoglu (1992) 29 NSWLR 67 R –v- Wegener [1999] NSWCCA 405 R –v- Schodde (2003) 142 A R –v- Car…
R v Wegener [1999] NSWCCA 405
Citation 10

…002] NSWCCA 17 R –v- Barlow [2008] NSWCCA 96 R –v- Tolley [2004] NSWCCA 165 R –v- Hallocoglu (1992) 29 NSWLR 67 R –v- Wegener [1999] NSWCCA 405 R –v- Schodde (2003) 142 A R –v- Caradonna (2000) 118 A TEXTS CITED: REPRESENTATION: Mr. P. O’Donnell, of Counsel, instructed by Smythe Wozniak, Solicitors for the RSPCA Mr.…
Mill v The Queen [1988] HCA 70
Citation 11

…facts and the subjective features will vary: see for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective ser…
Veen v The Queen (No 2) [1988] HCA 14
Citation 12

…s requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legisla…

Legislation Cited

Animals Act 1979 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention

CITATION:	RSPCA v HAMILTON [2008] NSWLC 13
JURISDICTION:	Criminal
PARTIES:	RSPCA HAMILTON
FILE NUMBER:
PLACE OF HEARING:	Wagga Wagga
DATE OF DECISION:	07/14/2008
MAGISTRATE:	Magistrate G Lerve
CATCHWORDS:	Aggravated Cruelty to Animals - Failure to Provide Proper and Sufficient Food - Failure to Provide Veterinary Treatment - drought - costs
LEGISLATION CITED:	Prevention of Cruelty to Animals Act 1979; sections 4(3), 8(3), 5(3)(C), 6(1), 4(2A)
CASES CITED:	Pearce –v- The Queen (1998) 103 A Crim R R –v- Jones R –v- Wallace [2006] NSWCCA 63 R –v- Merrin [2007] NSWCCA 255 R –v- Nguyen [2007] NSWCCA 14 R –v- MMK [2006] NSWCCA 272 Cahyadi –v- R [2007] NSWCCA 1 R –v- Zamagias [2002] NSWCCA 17 R –v- Barlow [2008] NSWCCA 96 R –v- Tolley [2004] NSWCCA 165 R –v- Hallocoglu (1992) 29 NSWLR 67 R –v- Wegener [1999] NSWCCA 405 R –v- Schodde (2003) 142 A R –v- Caradonna (2000) 118 A
TEXTS CITED:
REPRESENTATION:	Mr. P. O’Donnell, of Counsel, instructed by Smythe Wozniak, Solicitors for the RSPCA Mr. Hamilton in person unrepresented
ORDERS: