RSPCA v Hongyou Zou

[2020] NSWLC 3

Local Court

New South Wales

Medium Neutral Citation:

RSPCA v Hongyou Zou [2020] NSWLC 3

Hearing dates:

16 December 2019, 29 January and 19 February 2020

Date of orders:

19 February 2020

Decision date:

19 February 2020

Jurisdiction:

Criminal

Before:

Judge G L Henson AM, Chief Magistrate

Decision:

Sequence 1 - The offender is sentenced to a term of imprisonment of 16 months, with a non-parole period of 8 months.

Sequence 2 - The offender is sentenced to a term of imprisonment of 4 months, to be served concurrently.

Pursuant to section 31(1)(b) of Prevention of Cruelty to Animals Act 1979, the offender is prohibited from acquiring or caring for any animal for a period of 10 years.

Catchwords:

SENTENCING – particular offences – commit act of aggravated cruelty upon animal – fail to provide vet treatment – dog starved to death - discount for utilitarian value of guilty plea – high range objective seriousness – no prior criminal record - difficult to conclude offender displays contrition or remorse given attempts to mislead investigators – moral culpability towards highest level - need for retribution and general deterrence call for significant sentence – no other sentence than term of imprisonment appropriate – special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 ss 3A, 5, 21A(2), 21A(3)

Prevention of Cruelty to Animals Act 1979 ss 5(3)(c), 6(1), 31(1)(b)

Cases Cited:

R v Campbell [2018] NSWCCA 87

R v Thomson; R v Houlton (2000) 49 NSWLR 383

R v Zamagias [2002] NSWCCA 17

Category:

Sentence

Parties:

Royal Society for the Prevention of Cruelty to Animals (RSPCA) (prosecution)
Hongyou Zou (defendant)

Representation:

Ms K Hewson, for the prosecution
Legal Aid (amicus curiae), for the defendant

File Number(s):

2019/00359868

Publication restriction:

Nil

Judgment

1. The defendant, Hongyou Zou, appears before the Court for sentence in relation to two prosecutions brought against him under the Prevention of Cruelty to Animals Act 1979 (the PCA Act). The more serious offence, alleging the commission of an act of aggravated cruelty is brought pursuant to section 6(1) of the Act. The maximum penalty for this offence is 2 years imprisonment and/or a fine of $22,000. The second offence under section 5(3)(c) of failing to provide veterinary treatment carries a maximum penalty of 6 months imprisonment and/or a fine of $5,500.

2. The proceedings came before the Local Court on 2 December 2019. At the request of the defendant they were adjourned to enable him to seek legal advice. On 16 December 2019 he appeared in company with a Mandarin interpreter. A solicitor from the Legal Aid Commission appeared amicus to assist the defendant and the Court. On that date the defendant entered pleas of guilty to both charges. The proceedings were adjourned for sentence on 29 January 2020. On that date the defendant appeared before me. Once again a solicitor from the Legal Aid Commission appeared in an amicus capacity.

3. The defendant sought an adjournment, not for further legal advice but because, so he stated through the interpreter, he had been mixing with people of Chinese extraction (he being a Chinese national) and was fearful as to the possibility that he may have been exposed to the Coronavirus or COVID-19 as it subsequently came to be known. For abundant caution the sentencing proceedings were adjourned until today.

4. Before turning to the facts it is appropriate to note that the pleas of guilty entered by the defendant were at an early stage in the proceedings. It is the view of the court that the utilitarian value of the pleas entered attracts a discount of 25% in line with the observations of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383. Nothing in the tendered statement of facts relied on by the prosecution suggests the defendant has any prior criminal convictions.

5. The facts tendered to the Court are disturbing. I do not intend to include them in the course of these remarks to the full extent. Although these proceedings are heard in open court there are occasions when, for the sake of members of the public who are not inured to the more disturbing aspects of human behaviour and its consequences, a Court, whilst exposing the basis of the facts on which it is to sentence, should nonetheless temper its observations. A complete record of the facts is attached to the court papers.

The facts (abridged)

6. The defendant was the owner and responsible person for a dog named “Milk”. The dog is a Maremma breed sheepdog. The standard weight for a dog of this type is between 30-40 kilograms. The dog resided in a unit with the defendant in Kingsford. The defendant was, at the time of the offence, a student at the University of New South Wales located in the adjacent suburb of Kensington.

7. On 20 June 2019 Inspector Lucas of the RSPCA attended the defendant’s premises in response to a complaint that a dog appeared to have starved to death. It is unclear who made the complaint. There is an oblique suggestion it may have come from the property manager of the unit but this is speculative on the part of the court.

8. On arrival Inspector Lucas spoke with the defendant. The facts state that he did so after the administration of a caution. The defendant told Inspector Lucas he had only discovered the death of his dog that morning, that he had found a person on an app to look after his dog, didn’t know if the man was staying at the unit with his dog, and he, the defendant had been out of Sydney for a month in China. He provided Inspector Lucas with a telephone number which he said, was the point of contact with the person with whom he said he had arranged to care for his dog. He identified this person as Kelvin. The defendant was also asked for his flight details. They were never provided.

9. Subsequent investigations by Inspector Lucas disclosed that the telephone number was incorrect. The number connected the Inspector with a business. An employee of that business informed him no such person as Kelvin worked for the business. It is unclear from paragraph 10 of the facts whether the business that was contacted had any involvement in the minding of animals.

10. Subsequent inquiries by Inspector Lucas with the university disclosed the reality that if the defendant had been in China when he said he was he would have missed one month of university. In November 2019 information provided to the RSPCA by Australian Border Force established that the defendant had not left Australia when he said he had. Additional information to the effect that the defendant’s library card was used at the university 3 days prior to the seizure of the body of his dog lends support to this circumstance. The defendant was untruthful during the investigation in other ways.

11. The RSPCA sought to interview the defendant in July 2019. The defendant asked for a postponement because he had university exams. Subsequent investigations established this was not true. The defendant’s exam schedule was between 17 and 31 August 2019. Other attempts to interview the defendant and reschedule interviews in September and October 2019 were unsuccessful. It is safe to conclude the defendant did not want to engage.

12. To return to the day Inspector Lucas attended the defendant’s premises – he found the dog on the defendant’s balcony. The balcony was covered in excrement and dog hair. There was no food or water to be seen. The dog’s body was taken to the RSPCA where it was examined by Dr Homewood. It was found to be approximately 33% of its normal body weight, emaciated with bones protruding and signs of the presence of numerous cycles of maggots. There were other observations made. They are set out in paragraph 7 of the facts.

13. The report of Dr Homewood and its conclusions are set out at paragraph 19 of the facts. He expressed the opinion that the degree of muscle atrophy was so severe that there was barely any muscle palpable, or able to be felt on the body and that this condition existed ante mortem. The doctor expressed the further view that the dog had not been provided with sufficient or proper food for a minimum of 3 months. At this point I do not lose sight of the statement by the defendant, even though proven false, that he had been in China for a month.

14. Dr Homewood expressed the opinion the dog died from emaciation and that this was a prolonged process leading to his further view that the dog would have had to have been chronically underfed for months to develop emaciation to such an extent. The doctor further expressed the view that it is likely severe dehydration also played a part in the death. I note from paragraph 4 of the facts that no food or water was seen by Inspector Lucas. Viewed overall the opinion of Dr Homewood was that a dog in this condition put it in a position of absolute emergency requiring veterinary intervention.

15. The observation by Inspector Lucas in the final sentence of paragraph 4 when taken with the need for treatment expressed by Dr Homewood was that there was a clear failure to provide the dog with veterinary treatment for its condition. Given that the facts establish the defendant’s presence in the jurisdiction during the relevant periods there was clearly an abject failure on his part to arrange the care that was required and which may have led to the recovery of the dog.

Remarks on sentence

16. The observations of the condition of the dog’s body, the time that would need to have passed for it to reach that condition and the assertion that there had been an abject failure to provide food or water for a period of up to 3 months can only lead to the acceptance by the Court of a conclusion that the cruelty in leaving a dog unattended for a period of months, with insufficient or no access to food and water, is aggravated to such an extent that the offending is to be classified as being towards the top of the range of objective seriousness for offences of this nature. The level of moral culpability in the commission of both offences is well above a mid-range category of offence. The defendant’s conduct was egregious.

17. Some may describe it as showing a callous indifference to a living creature bordering on the barbaric. The Court would not disagree with such a description. To leave an animal to die after an extended and cruel decline into eventual death offends our basic sense of humanity and decency. As humans we cannot enter the mind of an animal and what it must have felt during its journey towards death. We can however reasonably conclude that the animal would suffer both the physical consequences of the transition from healthy to emaciated together with some form of emotional pain. It is not unreasonable to conclude there would be a point in this sad journey when the dog would recognise that it was beyond saving. I doubt whether a right thinking community would be anything other than sickened and appalled at the defendant’s lack of care.

18. Although there are no factors under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) that aggravate the offence (section 21A(2)(f) being in reality an element of both offences), there are no substantial mitigating factors to be found in section 21A(3) other than his prior good character. It is difficult to conclude there is any worthy degree of contrition or remorse given the attempts by the defendant to mislead the prosecution and sheet blame on someone or some organisation that appears never to have existed. The defendant’s dishonesty and the persistence of his lying impact detrimentally in my view on the degree of mitigation of penalty to be found in his prior good character.

19. The Court has been assisted in relation to the subjective factors relating to the defendant through the provision of a duty Sentence Assessment Report. According to that document the defendant blames “his financial circumstances and competing obligations for his failure to properly care for the dog”. The Court is not assisted by this somewhat nebulous statement. Nor is it assisted by his statement that despite his untruthful assertion to Inspector Lucas that he had returned to China, he had resided in the unit where the dog was found and fed it occasionally when he could afford to. He further claims that he tried to surrender the dog to the RSPCA however he could not provide details of such attempts to the Community Corrections Officer. Given the background of untruthfulness throughout the investigation of these matters and the positive submission by counsel for the RSPCA that no call of that nature would ever be rejected, and there was no record of such call ever having been received, I reject his accounts and attempts to mitigate his conduct in this way.

20. Guidance in relation to penalty is to be found in the purposes of sentencing set out in section 3A of the Sentencing Act. The unacceptable nature of the offending leads to a need to ensure the defendant is adequately punished. The reality that animals are at a real disadvantage at the hands of those entrusted with their care either as owners or carers means that general deterrence is of significant importance. The significance of pet and other animal ownership within the community means that courts need to be firm in their endeavours to prevent crimes of this nature by imposing sentences that are meaningful. The protection of the community, in this case the animal community, from further acts by the defendant can be achieved through the making of an order under section 31(1)(b) of the PCA Act. By making such an order promotion of the rehabilitation of the offender is, one hopes, largely achieved by taking away the capacity to be entrusted with a pet for the next decade. Breach of such an order carries a reasonably significant financial penalty.

21. Denunciation of crimes such as this is of fundamental importance. Although proper treatment of animals is almost a given in any civilised community it remains important from time to time to remind ourselves that acquiring an animal also means the acquisition of a responsibility and a trust that when breached diminishes the community as a whole unless the unacceptability of the behaviour is properly and loudly rejected. Lastly there is the need to recognise the harm done, not in this case to the victim because that is self-evident, but to the community. Unnecessary and inexcusable cruelty is unsettling for the community at large.

22. Domestication of animals, in this case dogs, leads to an emotional attachment beyond mere affection. When someone such as the offender acts in the way he did and produces such an inhumane outcome the revulsion felt by those who become aware of this type of conduct is visceral. The memory of what was done lingers and cannot be assumed to just fade away. The very fact of the existence of the RSPCA reflects, and significantly so, the overwhelming view of our community that cruelty is unacceptable, that it exists despite this reality and that the task of reducing it whether through education or punishment is worth the effort on behalf of all of us. This is the background against which sentence in these matters is to proceed.

23. There can be little argument the level of moral culpability associated with the commission of the offence is towards the highest level. There can be little argument the degree of cruelty inflicted on the dog is towards the upper range. To starve an animal of food and water over a period of months extends the degree of cruelty. The impact on the animal was not sudden and of short duration. There can be little argument that in pursuit of the purposes of the legislation and the purposes of sentencing that denunciation, retribution and general deterrence all call for a sentence of significance.

24. I have considered carefully the cautionary statement in section 5 of the Sentencing Act. This is necessary as the first step in the three step process set out in R v Zamagias [2002] NSWCCA 17. Having done so, and having taken into account the defendant’s prior good character together with the utilitarian value of his early plea of guilty, I am nonetheless of the view that there is no other penalty appropriate in each matter than that of a sentence of imprisonment.

25. The defendant is convicted. Having weighed in the balance the foregoing and after the application of the 25% discount for his plea on the count of aggravated cruelty he is sentenced to imprisonment for a minimum period of 8 months and an additional period of 8 months. As a foreign national for whom English is not a first language and is entering custody away from his family and for the first time I accept there is sufficient basis for the Court to make a finding of special circumstances. I have done so.

26. On the lesser offence, again this is a course of offending at the top of the range of objective seriousness warranting a sentence of imprisonment he is convicted and sentenced to imprisonment for a period of 4 months. This sentence is to be served concurrently with the other sentence imposed on this date on the basis that much of the conduct in this offence has been considered in the context of the more serious matter.

27. Having determined that a sentence of imprisonment is appropriate I turn to the third consideration outlined in R v Zamagias –the manner in which such sentence is to be served. In line with the statement of principle by Hamill J in R v Campbell [2018] NSWCCA 87, namely that the court must explain why, in circumstances where the sentence is less than 3 years, why it should not be served by way of an Intensive Corrections Order (ICO). An ICO is a sentence of imprisonment albeit one served in the community. It is my view that if I were to order the sentence be served by an ICO I would be undermining the weight to be given to general deterrence and would not be reflecting the horrendous nature of the defendant’s conduct adequately. Given the capacity of the defendant to leave the jurisdiction, and in fact his intention to do so in August 2020, an ICO would be rendered meaningless and would not reflect any adequacy of punishment.

28. It is the view of the Court that the community would be justifiably aggrieved at any other sentence in this matter than one of full time custody. It is a fact of judicial life that sometimes offences are committed where the conduct is so repugnant there is no rational basis for any other sentence than one of imprisonment. This is one of them. The sentence of imprisonment is to be served by way of full time custody and is to commence forthwith. The defendant will be eligible to be considered for parole on 14 October 2017.

Judge G L Henson AM

Chief Magistrate

Downing Centre Local Court

19 February 2020

NOTE: An all grounds appeal to the NSW District Court in this matter was dismissed by Hunt DCJ on 23 April 2020.

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Decision last updated: 18 February 2021