Towers-Hammond v Burnett - [2007] QDC 282

DISTRICT COURT OF QUEENSLAND

CITATION: Towers - Hammon v Burnett [2007] QDC 282

PARTIES:                   SHAYNE TERENCE TOWERS-HAMMOND
(Appellant)
v
KEITH JOHN BURNETT
  (Respondent)

FILE NO:  27/2006 (Rockhampton)
DIVISION:                   Criminal
PROCEEDING:           Trial Division

DELIVERED ON: 15^th June 2007

DELIVERED AT:        Rockhampton
HEARING DATES:     19^th March 2007
JUDGE:  Britton J

ORDERS:                 1) Appeal allowed
  2) Set aside the orders made at the Magistrates Court    Rockhampton on 3 April 2006, except order for costs
  3) Record conviction
  4) Sentence the respondent to imprisonment for three    months
  5) Fix last day of sentence as parole release date
  6) Order respondent pay costs of appeal fixed at $3552.90
7) Allow 18 months to pay costs.

CATCHWORDS: CRIMINAL LAW – APPEAL – SENTENCE – ANIMALS – PROTECTION OF ANIMALS AND BIRDS – where respondent beat cats with iron bar – where respondent convicted in Magistrates Court and fined $1,800.00 and conviction recorded – where appellant argues penalty was manifestly inadequate
LEGISLATION: Animal Care and Protection Act 2001 (Qld), s 18
Penalties and Sentences Act 1992 (Qld), s 48

CASES:Breitkreuz v. Lightboy, District Court of Queensland, Townsville, Pack DCJ, 9 September 2004, distinguished

COUNSEL: Mr O’ Sullivan for the applicant

Mr Polley for the respondent

The appellant was the complainant in a prosecution brought against the respondent for cruelty to animals.
The respondent pleaded guilty to the charge at the Magistrates Court, Rockhampton on 3 April 2006 and was fined the sum of $1800.00, in default 30 days' imprisonment, and a conviction was recorded.
The ground of appeal is that the penalty imposed was manifestly inadequate.
The appellant argues that the Magistrate should have imposed a fine of at least $5000 and/or a term of imprisonment.
The respondent was born on 27 October 1946, so that at the date of sentence he was 59 years of age.
The respondent has a criminal history both in Queensland and New South Wales. Apart from a conviction for driving under the influence of liquor, the Queensland history relates to property offences, and the most recent conviction was in the Rockhampton Magistrates Court on 24 July 1984.
The New South Wales history (which, interestingly, includes the Queensland history) contains some driving offences, as well as some property offences and one conviction for common assault. This was in 1995.
The respondent therefore has no convictions for offences involving cruelty to animals.
Section 18 of the Animal Care and Protection Act 2001 ("the Act") is the section which creates the offence of which the respondent was convicted.

The section provides as follows:

“18 Animal cruelty prohibited
(1) A person must not be cruel to an animal.
Maximum penalty--1000 penalty units or 2 years imprisonment.
(2) Without limiting subsection (1), a person is taken to be cruel to an animal if     the person does any of the following to the animal--
(a) causes it pain that, in the circumstances, is unjustifiable, unnecessary               or unreasonable;
  (b) beats it so as to cause the animal pain;
  (c) abuses, terrifies,…

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 Towers-Hammond v Burnett

Details

AGLC: Towers-Hammond v Burnett [2007] QDC 282
Case: [2007] QDC 282
Decision Date: 15 June 2007

CaseChat Overview and Summary

In the District Court of Queensland, Shayne Terence Towers-Hammond appealed against the sentence imposed on Keith John Burnett for animal cruelty under the Animal Care and Protection Act 2001. Burnett had been convicted by the Magistrates Court of beating multiple cats with an iron bar, causing them pain, and was fined $1800. The appeal centred on the adequacy of the penalty imposed by the Magistrate. The appellant argued that the penalty was manifestly inadequate and sought a sentence involving imprisonment.

The court examined whether the Magistrate had erred in considering Burnett's actions as an attempt to help a friend re-home the cats or if she had given this factor too much weight. The court also scrutinised whether the Magistrate appropriately considered the maximum penalty stipulated by the Act and the callous nature of Burnett's conduct. The court found that the Magistrate had not sufficiently regarded the maximum penalty and had failed to adequately consider the callousness of Burnett's actions. The court concluded that the imposed penalty was well below the appropriate range for such an offence.

The court determined that a sentence of imprisonment was warranted, taking into account the degree of violence, the nature of the injuries inflicted, the callousness displayed by Burnett, and the need for denunciation and deterrence. The court sentenced Burnett to three months' imprisonment, partially crediting his late guilty plea, which saved the witnesses from giving evidence. The formal orders included allowing the appeal, setting aside the original sentence, recording the conviction, sentencing Burnett to three months' imprisonment, fixing the last day of the sentence as the parole release date, ordering Burnett to pay the costs of the appeal, and allowing 18 months to pay the costs.

Orders