Van Der LAAN v Lang
[2023] WASC 200
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: VAN DER LAAN -v- LANG [2023] WASC 200
CORAM: SEAWARD J
HEARD: 21 APRIL 2023
DELIVERED : 9 JUNE 2023
FILE NO/S: SJA 1085 of 2022
BETWEEN: BEN ANDREW VAN DER LAAN
Appellant
AND
MARK LANG
Respondent
ON APPEAL FROM:
For File No: SJA 1085 of 2022
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE M HARRIES
File Number : AR 5524/2022
Catchwords:
Appeal against sentence - Animal cruelty - Sentence of immediate imprisonment imposed - Whether term imposed manifestly excessive - Whether appellant's cooperation mitigating factor - Appropriateness of conditionally suspended imprisonment order
Legislation:
Animal Welfare Act 2002 (WA)
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)
Result:
Appeal allowed
Appellant resentenced
Representation:
Counsel:
| Appellant | : | Ms E Zillessen |
| Respondent | : | Mr J Berson |
Solicitors:
| Appellant | : | Legal Aid - Perth |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
ALC v Western Australia [2022] WASCA 96
Atkinson v The State of Western Australia [2017] WASCA 154
Bond v Lamprey [2022] TASSC 4
Bryant v Witts [2018] WASC 194
Catley v R [2014] NSWCCA 249
Hill v The State of Western Australia [2014] WASCA 150
HNA v The State of Western Australia [2016] WASCA 165
Holding v Parkin [2012] WASC 113
Houghton v The State of Western Australia [No 2] [2022] WASCA 7
House v R [1936] HCA 40; (1936) 55 CLR 499
Jackman v The Director of Public Prosecutions [2023] WASC 63
JWD v The State of Western Australia [2013] WASCA 233
Kabambi v The State of Western Australia [2019] WASCA 44
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Malpuss v Giuffre [2020] WASC 303
R v Hartwig; Ex Parte Attorney-General (Qld) [2013] QCA 295
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Shi v The State of Western Australia [2020] WASCA 197
The House of Relocators Pty Ltd v Ginbey [2013] WASC 188
The State of Western Australia v Rayapen [2023] WASCA 55
Wall v Swift [2019] WASC 132
Western Australia v Smith [2016] WASCA 153
SEAWARD J:
Introduction
On 6 September 2022, in the Armadale Magistrates Court, the appellant pleaded guilty to one charge of animal cruelty contrary to s 19(1) of the Animal Welfare Act 2002 (WA) (AW Act). The particularised cruelty was that on 23 July 2020 the appellant had ill‑treated his Labrador Retriever by binding his paws and muzzle and strangling him with a strap until he was dead.
On 5 December 2022, the appellant was sentenced in the Perth Magistrates Court to an immediate term of 7 months' imprisonment and was banned from owning a dog for a period of 5 years pursuant to s 55 of the AW Act.
The appellant now seeks leave to appeal his sentence on the following two grounds:
1.The sentence imposed was manifestly excessive when matters relevant to the circumstances of the appellant and the commission of the offence are taken into account.
2.The learned Magistrate failed to take into account the significant mitigating factor of the cooperation of the appellant in providing his DNA and fingerprints, which when combined with the fact that he reported the incident himself to police, signifies that but for his cooperation prosecution for this offence would have been unlikely.
Statutory framework and legal principles
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A sentence imposed by a court of summary jurisdiction as a result of a conviction is a decision which may be appealed.[1]
[1] CA Act s 6(f) and s 7(1).
Leave to appeal is required for each ground of appeal.[2] Leave to appeal must not be granted on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding,[3] meaning that the ground is required to have a rational and logical prospect of succeeding.[4] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[5]
[2] CA Act s 9(1).
[3] CA Act s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[5] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[6]
[6] CA Act s 14(2).
Facts of the offending
The statement of facts was read by the prosecutor during sentencing and the facts of the offending, which were accepted by the appellant, can be summarised as follows:[7]
[7] ts (5 December 2022) 8 - 10.
On 23 July 2020, the appellant was at his home address in Gosnells. Between 11.20 am and 11.34 am, the appellant approached his dog, a seven-year-old black coloured Labrador Retriever named Neo, in the backyard. The appellant used black electrical tape to truss the dog's back paws and front paws. The appellant also used black electrical tape to strap up and cover the eyes, nose and muzzle of the dog. The appellant then placed a cargo strap around the dog's neck, which the appellant used to strangle the dog to death. After killing his dog, the appellant left the address in his vehicle.
At about 12.00 pm on the same day, the appellant returned home and then telephoned his mother to advise that his dog had been killed. She advised him to call police and report the matter. The appellant then telephoned police, who attended shortly thereafter.
On 23 June 2022, the appellant was arrested and participated in an audio visual record of interview with police for two and a half hours and accepted that he must have committed the offence.
Sentencing of the appellant
Prosecution submissions
The police prosecutor submitted that a term of imprisonment was the only appropriate sentence, and that term should be the maximum after the necessary discount.[8]
Defence submissions and plea in mitigation
[8] ts 15.
The appellant was represented by the duty lawyer who expressed surprise at the prosecution submission that a term of imprisonment was appropriate, as he was instructed that the appellant had been led to believe that it was going to be a matter of trying to get the appellant the help he needed, as opposed to punishment.[9]
[9] ts 17.
The learned Magistrate advised the appellant's counsel that her preliminary view was that term of immediate imprisonment was appropriate, and invited counsel to address her in relation to that.[10] In this regard, the appellant's submitted that in those circumstances a conditional suspended imprisonment order would be appropriate.[11] Defence counsel accepted that the offending was serious, but relied on the plea of guilty, the lack of any memory or evidence as to motive, the lack of any indication of any malicious intent, the contents of the pre-sentence report and the psychiatric report, including the diagnosis of an adjustment disorder, the lack of any risk factors for re-offending, the lack of any criminal record, the appellant's employment and family support and the support he provides for his partner, in submitting that a conditionally suspended imprisonment order was appropriate in all the circumstances.[12]
Pre-sentence report
[10] ts 15.
[11] ts 15.
[12] ts 16 - 19.
The pre-sentence report dated 30 November 2022 was prepared following an interview with the appellant on 8 November 2022 and the author also had regard to (amongst other material) the psychiatric report of Dr Calvin dated 28 November 2022.
The report notes that the appellant was not able to explain the offending behaviour as he has no memory of the offence, however he conceded that his lack of memory did not equate to him not committing the offence.
In terms of his history, the report notes this is the appellant's first offence and therefore he has no history with corrective services.
The report details the appellant's family background and history, noting that the appellant reported an unremarkable childhood and his parents separated when he was 10. The appellant maintains regular contact with his mother, but does not have any contact with his father due to the father's imprisonment for another offence. The appellant reported that he has been married to his wife for seven years. The appellant reported that his wife has her own medical and mental heath issues but they have a close supportive relationship.
The report details that the appellant completed high school and was earlier diagnosed with dyslexia. Following high school, the appellant commenced a performing arts degree, but ceased this after six months due to an assault by a former partner and associated depression. The appellant qualified as an electrician and has been with the same employer for the past 8-10 years.
In terms of his health, the appellant explained that he currently experiences anxiety and was previously prescribed medication to assist, but ceased this as he did not like the effect the medication had on him. The appellant reported that he engaged in counselling six months ago, but did not provide consent for this information to be verified. The appellant reported that he had not engaged in any illicit substance use for the past 6-7 years or any other use or misuse of prescription medication, or any problematic use of alcohol.
The author's assessment is that the appellant's risk factors appear to include maladaptive coping mechanisms and emotional regulation, particularly in the context of adversity in his intimate partner relationship and his ability to cope with life stressors. The report notes the psychiatric report conclusion of an adjustment disorder and the therapy recommendations referred to by Dr Calvin.
The report notes that the appellant may benefit from participation in psychological counselling to provide him with appropriate stress management and emotional regulation strategies as well as effective coping mechanisms, as well as a cognitive skill program to assist with appropriate decision making.
The report notes that the potential requirements of a period of supervision were discussed with the appellant, who indicated his willingness to comply with any conditions imposed by the court. After considering the appellant's lack of any prior offending history, his identified treatment needs which are available in the community and his protective factors in the community (including stable accommodation and family support), the report recommends that the appellant is considered suitable for a community-based sanction.
Psychiatric report
A psychiatric report was prepared by Dr Calvin, following an interview with the appellant via videoconference on 11 November 2022.
Dr Calvin obtained a family history from the appellant (and also his mother) and noted that the appellant reported a relatively normal childhood with his parents separating when he was 10 years old. The appellant struggled with dyslexia in primary school but completed year 12. The appellant initially attended university studying performing arts, before leaving that course early and commenced training as an electrician.
Dr Calvin noted that the appellant had no documented history of mental illness, but claimed to have a history of anxiety for which his doctor had advised him to seek therapy, but he had not done so. Dr Calvin noted that the appellant had a history of many stressors related to his domestic situation, including his wife's kidney tumour and associated medical treatment, her own mental health struggles, their struggles to conceive and concerns about losing his job during COVID. These pressures had led to low mood and depressive cognitions. The appellant advised that he had previously expressed suicidal ideas but had not dared to act on them.
Dr Calvin also obtained a family psychiatric history and reported that the appellant's father had a psychopathic personality and was imprisoned for an offence as against his stepdaughter. The appellant reported a family history of substance abuse.
Dr Calvin noted there was no indication of psychosis or pervasive mood problems that would indicate an ongoing mental disorder. However, the appellant described his mood as 'feeling depressed'.
The appellant advised Dr Calvin that he had no memory of the offending behaviour and could not explain the offence. The appellant also indicated that he would like to pursue psychological therapy to understand the reasons behind his criminal behaviour better.
Dr Calvin diagnosed the appellant as having an adjustment disorder. Dr Calvin was unable to provide a psychiatric explanation for the appellant's offending behaviour because he has no memory of the event, but noted that there is no indication that his behaviour resulted from mental illness.
Dr Calvin considered the appellant had limited risk factors for future offending, noting no history of violence or antisocial behaviour and having a stable relationship, housing, employment and a supportive family.
Dr Calvin recommended that the appellant should consider psychological therapy to explore his underlying predispositions further and considered the appellant would benefit from treatment focusing on his maladaptive coping mechanisms and regulating his emotions. Dr Calvin recommended that if a non-custodial disposition is being considered, conditions that ensure engagement in therapy will be beneficial.
Sentence and reasons for decision
When sentencing the appellant, the sentencing magistrate had regard to the maximum penalty under the AW Act, and that the AW Act had increased the penalties imposed under its predecessor. The sentencing magistrate acknowledged that the maximum statutory penalty is an indication that Parliament regards this offence very seriously, and the previous penalties were inadequate.[13]
[13] ts 22 - 23.
The learned Magistrate accepted the facts as read by the prosecutor as to the circumstances of the dog's death and considered the circumstances of the offending against the list of factors identified by Hall J in Holding v Parkin[14] as follows:[15]
(a)the nature of the harm inflicted to the dog, being death, was at the top end of the scale;
(b) whilst the precise length of time that the dog suffered is unknown, the learned Magistrate proceeded on the assumption (based on the facts) that it was a relatively short period of time;
(c) the degree of pain and the amount of distress that the animal suffered was on the high end of the scale in circumstances where the animal was bound, and could not defend himself or make any loud noise was on the high end of the scale. This followed the Magistrate taking judicial notice that it would have been a painful and frightening experience for a pet to die the way that he did;
(d)the animal was vulnerable in relation to the appellant's actions;
(e) the conduct was a single act and not a course of conduct; and
(f) the conduct was deliberate, intentional or planned, which was demonstrated by the fact that the paws of the animal were bound, the mouth muzzled and the animal was deliberately strangled.[16]
[14] Holding v Parkin [2012] WASC 113 [41] and ts 6 - 7.
[15] ts 23 - 34.
[16] See ts 30.
In terms of matters in mitigation, the sentencing magistrate had regard to the appellant's lack of a criminal record or history,[17] no prior history of cruelty to animals[18] and his early plea of guilty for which the sentencing magistrate granted a 25% discount.[19]
[17] ts 25.
[18] ts 25.
[19] ts 30 - 31.
The sentencing magistrate also had regard to the pre-sentence report and the psychiatric report prepared by Dr Calvin. The transcript reveals that there was a potential issue regarding the accuracy of an aspect of the pre-sentence report. The sentencing Magistrate stood the matter down to enable a person from Community Corrections to appear.[20] Having heard from the person from Community Corrections, the appellant accepted the wording of the pre-sentence report.[21]
[20] ts 26 - 29.
[21] ts 29.
The learned Magistrate noted that in the psychiatric report, Dr Calvin had diagnosed the appellant with an adjustment disorder. The learned Magistrate noted as follows:[22]
One of the factors that led to the matter being stood down for that further inquiry was the date of the psychiatric report before me and to what level of weight I could give to the diagnosis of an adjustment disorder, which may have been present at the time.
I have had before me, by Mr Evangel's submissions before me that I ought to take that into account. And the way that paragraph 24 ought read is that those are matters that are stressors that had been in Mr Van Der Laan's life at the time of the offence. And consequently, the adjustment disorder diagnosis relates to that. I suppose taken at its highest that would be the case. The diagnosis has come two years down the track. And there are always some issues in relation to that.
[22] ts 31.
In relation to the appellant's personal circumstances, the learned Magistrate also accepted that:[23]
He has had some personal disadvantage in his life although not significant disadvantage in the sense that his upbringing has been described in the reports as, “unremarkable childhood”, whilst there was an incident involving his father that involved sexual assault of his stepsister. I have taken into account other matters that are referred to, including a diagnosis of dyslexia when he was younger. But he had some management of that and completed year 12.
He has reported an assault by a partner, which led to depression. But notwithstanding that, he has managed to live a life that has been one where he hasn't been before the courts, where he has been able to work, and he has become a qualified electrician. He has an ongoing, stable relationship. His partner is diagnosed with mental health issues. And he assists her. And I have taken that into account.
[23] ts 31.
The learned Magistrate proceeded on the basis that the appellant did not have any memory of killing his dog, but when confronted with the evidence accepted that he must have done it. In this regard, the learned Magistrate noted that this was the basis upon which the plea of guilty was entered, and the prosecution had chosen not to dispute this fact.[24] The learned Magistrate considered it was appropriate to proceed on this basis as follows:[25]
I'm only required to act on assertions by the accused that are credible. I'm not required to act on assertions by the accused which are not reasonably possible, or inherently unbelievable, or offends against common sense. I note those principles and, notwithstanding that, what I do have before me is a psychiatric report that Dr Calvin – and Dr Calvin, at paragraph 25, states:
I'm unable to provide a psychiatric explanation for Van Der Laan's behaviour because he has no memory of the offence. There is no indication that his behaviour resulted from mental illness.
In my view, in circumstances where I have a psychiatric report where the psychiatrist himself is not questioning that that could be a possibility, I am going to deal with the sentence on the basis that that assertion is correct.
[24] ts 21 - 22.
[25] ts 22.
The learned Magistrate then considered the appellant's submission that he had co-operated with the police. The learned Magistrate considered as follows:[26]
In relation to cooperation with the authorities, what I am told is that at the outset when the offence was first reported by him to the police, there was no cooperation in the sense that he certainly didn't indicate to the police that he was responsible. What Mr Evangel says about that is for a person with no memory, he cooperated to the full extent that he could. And that once he was confronted with the evidence, he made admissions in an electronic record of interview two years later.
That's confirmed by the police, that he did make admissions, and to the extent that he cooperated at a time once the information or the evidence had been gathered by police. I will give that cooperation some discounts and some weight in relation to the plea but not significant weight in my view because at that point in time, the police case was such that the full investigation taking up a lot of time and hours of the WA Police had taken place in its entirety. With or without those admissions at that point in time as I understand it, the case was such that the prosecution would have continued.
And so in terms of the cooperation at that stage, in my view it is of less weight.
[26] ts 32.
The learned Magistrate considered that significant weight should be given to the need for general deterrence. The learned Magistrate considered that the fact of the appellant's diagnosis of an adjustment disorder did not moderate this need in any significant respect given the appellant was still participating in employment on a daily basis and continuing to have a relationship.[27]
[27] ts 32 - 33.
The learned Magistrate considered there were prospects for rehabilitation for the appellant and that he was 'keen to get some assistance'.[28]
[28] ts 34.
The learned Magistrate concluded that in all the circumstances the only appropriate sentence is one of imprisonment.[29] The learned Magistrate then considered whether it was appropriate to suspend the term of imprisonment, (including a conditional suspension) and concluded that it was not.[30]
[29] ts 34.
[30] ts 35.
The learned Magistrate then imposed a term of immediate imprisonment of 7 months, and an order prohibiting the appellant for being in charge of any animal for a period of 5 years.[31]
[31] ts 35.
Ground 1 - manifestly excessive
Legal principles
The legal principles regarding sentencing errors are well established. An allegation that the sentencing judge imposed a sentence that was manifestly excessive asserts an implied error. To establish this ground, the appellant must demonstrate that the sentence was unreasonable or plainly unjust.[32]
[32] Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)] (Mazza and Beech JJA); Kabambi v The State of Western Australia [2019] WASCA 44 [21(1)];
In determining whether a sentence is manifestly excessive, the sentence should be examined having regard to the maximum penalty for the offence; sentences imposed in other cases for similar offences; the gravity of the criminal conduct on the scale of seriousness of offences of that type and the personal circumstances of the offender.[33]
[33] Gaskell v The State of Western Australia [2018] WASCA 8 [22] (Buss P) and [127(2)] (Mazza and Beech JJA); Kabambi v The State of Western Australia [2019] WASCA 44 [21(2)]; Chan v The Queen (1989) 38 A Crim R 337, 342.
An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing judge has made a material error in exercising his or her discretion.[34]
[34] Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)] (Mazza and Beech JJA); Kabambi v The State of Western Australia [2019] WASCA 44 [21(1)]; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; House v R [1936] HCA 40; (1936) 55 CLR 499, 505.
The range of sentences customarily imposed does not establish the range of a sound exercise of the sentencing discretion. Rather, sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing (bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence). What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.[35]
[35] Gaskell v The State of Western Australia [2018] WASCA 8 [127(4)] (Mazza and Beech JJA); Kabambi v The State of Western Australia [2019] WASCA 44 [21(4)].
If there are no directly comparable cases, the appeal court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick with which to judge the adequacy of the sentence imposed at first instance.[36]
[36] Gaskell v The State of Western Australia [2018] WASCA 8 [23] (Buss P).
Where, as here, it is submitted that the sentence is manifestly excessive because the wrong type of sentence was imposed, the question for the appellate court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and in all of the circumstances, to be positively satisfied that none of the sentencing options listed before that type of sentence in s 39(2) of the Sentencing Act 1995 (WA) (Sentencing Act) were appropriate.[37] Simply showing that a lesser type of sentence was also reasonably open is insufficient to establish error.[38]
[37] HNA v The State of Western Australia [2016] WASCA 165 [27] and [30]; See also the recent decision of the Court of Appeal of The State of Western Australia v Rayapen [2023] WASCA 55.
[38] Houghton v The State of Western Australia [No 2] [2022] WASCA 7 [229].
In Shi v The State of Western Australia,[39] the Court of Appeal reiterated the principles to be applied in determining whether to impose an immediate term of imprisonment:
A court must not impose a term of immediate imprisonment unless positively satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose some form of suspended imprisonment. It is established that:
1.A court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.
2.In determining whether to exercise the power to suspend a term of imprisonment the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.
3.The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.
4.Even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors. The relevant question is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the ordinarily appropriate sentence. (citations omitted)
[39] Shi v The State of Western Australia [2020] WASCA 197 [39].
The penalty for an offence against s 19(1) of the AW Act is a fine of between $2,000 and $50,000 and/or imprisonment for a maximum of five years. The AW Act was enacted in 2002 and came into operation on 4 April 2003. It replaced the Prevention of Cruelty to Animals Act 1920 (WA) and significantly increased the maximum penalty for cruelty offences. The maximum penalty under the repealed Act was $5,000 or 12 months' imprisonment (s 4(1)). This increase must be taken as being an indication that the legislature viewed offences of this type as being serious and that previous maximum penalties were inadequate.[40]
[40] Holding v Parkin [2012] WASC 113 [23].
In Holding v Parkin,[41] Hall J set out the factors which his Honour considered to be relevant in assessing the circumstances of an offence of animal cruelty pursuant to s 19 of the AW Act:
1.the nature of the harm inflicted on the animal (see definition of 'harm' in s 5);
2.the length of time during which the animal suffered;
3.the amount of suffering caused, that is the extent of any injury or the degree of pain or the amount of distress;
4.the vulnerability of the animal, both in general and in relation to the particular offender;
5.whether the conduct that caused the harm was a single act or a course of conduct; and
6.whether the conduct was deliberate, intentional or planned, or was neglect of a duty to animals (one will not necessarily be more serious than another, it will depend upon the circumstances).
[41] Holding v Parkin [2012] WASC 113 [41].
I respectfully agree with his Honour's approach and propose to consider the circumstances of the offending in this appeal by reference to these factors. The parties also proceeded on this basis.
Appellant's submissions
The appellant concedes that given the facts of the offending, and the other relevant sentencing factors, a sentence of imprisonment is warranted.[42]
[42]Appellant's submissions [46].
However, the appellant submits that the circumstances of the appellant's case including the factors in mitigation and the need, from a long-term public interest perspective, to ensure the appellant is both engaged therapeutically and supervised to address the issues related to the offending, compel the conclusion that it was not open to the learned Magistrate to conclude that it was not appropriate to impose a conditional suspended imprisonment order. The appellant submits that the public interest in condemnation of the offence can be achieved contemporaneously with the public interest in seeing a first time offender with prospects of rehabilitation who is the sole source of financial support in his household given the opportunity to remain in the community under supervision.[43]
[43]Appellant's submissions [47] - [48].
The appellant's submission on this ground relies on the pre-sentence report and the psychiatric report, on a comparison of the sentences in other cases (which I will consider further below) and on the submission that whilst the circumstances of the offending is serious, it lacks any intention to cause suffering as is present in some of the other cases.
Respondent's submissions
The respondent submits that when regard is had to relevant factors identified by Hall J in Holding v Parkin,[44] that it was open to the learned Magistrate to conclude that the offence sat towards the upper end of the scale of seriousness.[45]
[44] ts 6 - 7.
[45] Respondent's submissions [23] - [26].
In relation to the other case examples referred to by the appellant, the respondent submits the interstate cases are of limited assistance given the different statutory contexts in which they arise, including different maximum penalties.[46] Further, the respondent submits that the cases referred to demonstrate that there is no established tariff for animal cruelty offences, nor is it possible to discern an established range of sentences for animal cruelty offences. The factual circumstances of such cases vary significantly.[47] At most, the respondent submits that the cases may reveal that immediate imprisonment is not the usual sentence for offences of this type, but as Hall J noted in Holding v Parkin (a matter in which ultimately a sentence of 6 months' imprisonment suspended for three months was imposed) a number of the cases canvassed did involve sentences of imprisonment but they were more serious than the case before his Honour.[48]
[46] Respondent's submissions [13].
[47] Respondent's submissions [14] citing Malpuss v Giuffre [2020] WASC 303 [91] and Holding v Parkin [2012] WASC 113 [35].
[48] Respondent's submissions [18] citing Holding v Parkin [2012] WASC 113 [35].
The respondent submits that the present offending was more serious than in Holding v Parkin, and when the seriousness of the circumstance of this offence is considered along with the maximum penalty applicable and the personal circumstances of the appellant, an immediate term of imprisonment is not unreasonable or unjust.[49]
Disposition
[49] Respondent's submissions [28] - [29].
The appellant does not challenge the learned Magistrate's conclusion that a term of imprisonment was appropriate. Rather, the appellant's submissions are directed to the proposition that the sentence imposed on him was manifestly excessive because the imposition of a conditionally suspended term of imprisonment could not be excluded. Accordingly, I have approached the question of whether the sentence was manifestly excessive by considering whether it was reasonably open to the learned Magistrate to positively conclude that it was not appropriate to impose some form of suspended imprisonment.
I have had regard to the factors identified by Hall J in Holding v Parkin, the maximum penalty under the AW Act and other mitigating factors. The learned Magistrate's conclusions in relation to these factors are set out earlier in these reasons.
The maximum penalty for the offence of animal cruelty under s 19(1) of the AW Act is a fine of between $2,000 and $50,000 and/or imprisonment for a maximum of five years. That maximum, and the increase in that maximum over the previous legislation, is an indication of the seriousness of the offence.
I agree with the learned Magistrate that the offending in this case is serious. I agree that although the precise length of time that the dog suffered is unknown, based on the facts it was a relatively short period. However, the degree of pain and the amount of distress that the animal suffered was on the high end of the scale as the dog was bound, and could not defend himself or make any loud noise. At all times the dog was vulnerable in relation to the appellant. The conduct in question was a single act, but it was deliberate, intentional or planned, which was demonstrated by the fact paws of the animal were bound, the mouth muzzled and the dog was deliberately strangled. The manner in which the appellant treated the dog in the lead up to his death (binding his paws, muzzling and strangling him with a strap until he was dead) is cruel and in all the circumstances an example of serious offending.
There is no substantial dispute between the parties as to the appellant's personal circumstances. The appellant has no prior criminal history of any sort, he pleaded guilty and he co-operated with police during the police interview and to a degree in police investigations.
A curious feature of this case is the appellant's lack of any memory of the offending or explanation of why it occurred. At the sentencing, the prosecution initially disputed sentencing proceeding on this basis. However, the prosecution ultimately decided not to hold a trial of the issue and proceeded on this basis.
I accept that there is no evidence of the appellant's intention to cause the dog suffering as is present in some of the other cases I have been referred to (discussed below).
The pre-sentence report and the psychiatric report note this feature. In the psychiatric report Dr Calvin diagnosed the appellant as having an adjustment disorder. However, Dr Calvin was unable to provide a psychiatric explanation for the appellant's offending behaviour because he has no memory of the event.
Dr Calvin considered the appellant had limited risk factors for future offending, noting no history of violence or antisocial behaviour and having a stable relationship, housing, employment and a supportive family.
Dr Calvin recommended that the appellant consider psychological therapy to explore his underlying predispositions further and considered the appellant would benefit from treatment focusing on his maladaptive coping mechanisms and regulating his emotions. Dr Calvin recommended that if a non-custodial disposition is being considered, conditions that ensure engagement in therapy will be beneficial.
I note that the pre-sentence report states that the potential requirements of a period of supervision were discussed with the appellant, who indicated his willingness to comply with any conditions imposed by the court. The pre-sentence report recommends that given the appellant's lack of any offending history, that his identified treatment needs are available in the community and his protective factors in the community, the appellant is considered suitable for a community-based sanction.
The appellant has referred the court to a number of different authorities which are also relevant to an assessment of whether the sentence imposed was manifestly excessive. I accept the respondent's submission that the cases referred demonstrate that there is no established tariff for animal cruelty offences, nor is it possible to discern an established range of sentences for animal cruelty offences as the factual circumstances of such cases vary significantly.[50]
[50] Respondent's submissions [14] citing Malpuss v Giuffre [2020] WASC 303 [91] and Holding v Parkin [2012] WASC 113 [35].
Turning to the Western Australian authorities, the most relevant is Holding v Parkin. This case concerned an appeal from the decision of the sentencing magistrate to sentence the appellant to a term of 7 months' immediate imprisonment for one charge of animal cruelty. That cruelty consisted of killing a chicken owned by the appellant and his partner with an axe in anger following a dispute between the two. The appellant was also convicted of a separate assault charge on the partner and sentence to a further 2 months' imprisonment to be served concurrently with the animal cruelty sentence. The appellant appealed the sentence on the ground that it was manifestly excessive. The appeal was upheld and the appellant sentenced to a term of 6 months' and 1 day imprisonment, suspended for 3 months (the appellant having already served 4 months of the sentence that was imposed upon him). Hall J also conducted a review of the sentences imposed in various cases for the same or similar offences.
In ALC v Western Australia,[51] a sentence of 2 months' imprisonment for burning a chicken alive and further 2 months' imprisonment for crushing a chicken to death in the context of more serious offending, was upheld on appeal (total effective sentence of 3 years and 6 months'). The accused in this case was a child, and the other offending consisted of criminal damage to the chicken enclosure and 6 unrelated sexual penetration charges.
[51] ALC v Western Australia [2022] WASCA 96.
In Malpuss v Giuffre,[52] the accused was convicted of animal cruelty charges by being a party (but not principal offender) to an offence involving an extreme and unrelenting attack on a kangaroo, which the accused aided and encouraged. The accused was convicted following a trial and sentenced to a term of 6 months' immediate imprisonment. The accused was also sentenced for 3 counts of common assault, resulting in a total effective sentence of 9 months' immediate imprisonment. An appeal against the various sentences was upheld. In relation to the animal cruelty charge, the term of 6 months' imprisonment was suspended.
[52] Malpuss v Giuffre [2020] WASC 303.
Wall v Swift[53] involved an unsuccessful appeal against conviction for three counts of cruelty to an animal, being a horse, in circumstances where the horses were malnourished and there had been a failure to provide sufficient food and water. There was no appeal against the sentence imposed which was a community service order with 12 months supervision and 100 hours of community work.
[53] Wall v Swift [2019] WASC 132.
In Bryant v Witts,[54] a sentence of 4 months' immediate imprisonment was upheld on appeal (and suspended imprisonment not ordered) and imposed for kicking a small dog so hard that it became paralysed and then died, in the context of multiple domestic violence assault charges resulting in bodily harm to a person (total effective sentence of 22 months' imprisonment).
[54] Bryant v Witts [2018] WASC 194.
Western Australia v Smith[55] concerned a state appeal against sentence for a number of offences, including a sentence of 2 months' immediate imprisonment for striking a police dog. The other charges involved aggravated serious personal violence offences and the total effective sentence imposed was 2 years and 2 months' immediate imprisonment. The state appealed the sentence imposed for two of the other charges, as well as submitting that the total effective sentence infringed the first limb of the totality principle. The appeal was allowed. In re‑sentencing the accused, the sentence of 2 months' immediate imprisonment for striking a police dog was not disturbed.
[55] Western Australia v Smith [2016] WASCA 153.
In The House of Relocators Pty Ltd v Ginbey,[56] a sentence of 6 months and 1 day's imprisonment, suspended for 2 years was set aside for extreme neglect of stock animals on the basis that the concurrent fine of $83,000, the lack of malice or intention on the part of the appellant and the age and personal circumstances of the appellant were such that the decision to impose a sentence of imprisonment was an error.
[56] The House of Relocators Pty Ltd v Ginbey [2013] WASC 188.
The appellant also referred the court to a number of interstate cases. I accept the respondent's submission that these cases are of limited assistance given the different statutory contexts in which they arise, including the different maximum penalties. I also note that some of these cases were considered by Hall J in his review of the sentence for various cases in Holding v Parkin. I have therefore not set out a summary of those interstate cases that were reviewed in Holding v Parkin.
Two additional interstate cases were referred to by the appellant. In Bond v Lamprey,[57] a fine of $500 for trapping and spearing a spotted quoll and leaving it to die slowly was increased on appeal to 3 months' imprisonment suspended for 12 months (the maximum penalty being 5 years' imprisonment and fine of $34,400).
[57] Bond v Lamprey [2022] TASSC 4.
R v Hartwig; Ex Parte Attorney-General (Qld),[58] involved a State appeal against the sentence imposed on two offenders for wilfully and unlawfully killing an alpaca (at night) and for wilfully and unlawfully wounding an alpaca (at night). The original sentences were, respectively 6 months' imprisonment and three months' imprisonment with immediate release on parole (the maximum penalty being 2 years' imprisonment or 3 if the offence is committed at night). The Court of Appeal upheld the appeal and varied the sentences so as to impose 6 months' imprisonment for both charges and by suspending both sentences for a period of 18 months.
[58] R v Hartwig; Ex Parte Attorney-General (Qld) [2013] QCA 295.
The respondent also refers to the decision of the New South Wales Court of Criminal Appeal in Catley v R.[59] The court considered an appeal against sentence imposed for offences in relation to the manslaughter of the appellant's mother and two counts of killing an animal with intent to inflict severe pain for killing his mother's cats by slashing their throats (a maximum penalty of 5 years imprisonment). The sentence of 2 years' imprisonment on each count of killing an animal was upheld.
[59] Catley v R [2014] NSWCCA 249.
Ultimately, having considered all of the above matters, I have reached the conclusion that although the offending was serious, it was not open to reach the conclusion that the offending was of such seriousness that only a sentence of immediate imprisonment could be justified, or that the protection of the community required it.
Whilst the offending was serious, it is not the most serious of this type of offence. To the extent the other cases referred to by the appellant are relevant, they certainly reveal that a term of immediate imprisonment can and is imposed in some cases, but most of those have been in situations where other offending also occurred. I accept the respondent's submission that the most similar case is that of Holding v Parkin, and that was a case involving less serious offending than in the present case. In that case, a term of 6 months and 1 day imprisonment was suspended for 3 months (after the offender had already served 4 months of the sentence that was imposed upon him).
However, I also consider the appellant's lack of prior offending and the contents of the pre-sentence report and the psychiatric report to be factors which mean that a sentencing court could not be satisfied that an immediate term of imprisonment was the only appropriate sentencing option and that it was not appropriate to conditionally suspend the term of imprisonment.
Rather, given the appellant's antecedents and his lack of a prior criminal history, as well as what is set out in the pre-sentence report and the psychiatric report regarding the appellant's diagnosis and suitability for community based treatment, a conditionally suspended imprisonment order, with a programme requirement, could not reasonably be excluded as a sentencing option.
Accordingly, I will allow ground 1 of the appeal.
Ground 2 - failure to take into account co-operation
Legal principles
The legal principles concerning voluntary disclosure and co-operation in the context of the sentencing process were set out by Buss JA (as His Honour then was) in Hill v The State of Western Australia:[60]
It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and his or her guilt. Such a confession may well not be motivated by fear of discovery or acceptance of the likelihood of proof of guilt, and will often exhibit the offender's remorse and contrition: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [113]; JWD v The State of Western Australia [2013] WASCA 233 [45]. When a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender of an offence which was otherwise unlikely to have come to light, that is ordinarily a significant matter to the credit of the offender to be taken into account in the sentencing process: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [11] - [15]; R v Ellis (1986) 6 NSWLR 603, 604; Schriever v The State of Western Australia [2008] WASCA 133 [22]. How significant it is in the sentencing process depends upon the facts and circumstances of the case: Ryan [15].
[60] Hill v The State of Western Australia [2014] WASCA 150 [33]; see also Atkinson v The State of Western Australia [2017] WASCA 154 [63].
One of the reasons why disclosure to the authorities of an otherwise unknown offence has significant weight is that it may evidence a genuine acceptance of responsibility and contrition on the part of the offender.[61]
[61] AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [113] - [114]; JWD v The State of Western Australia [2013] WASCA 233 [45] (Hall J, with Newnes and Mazza JJA agreeing).
A disclosure that does not occur out of a sense of remorse or contrition, nor a subjective acceptance of responsibility and subjective willingness to facilitate the course of justice, and may be considered inadvertent rather than intended, may not warrant further leniency.[62]
Appellant's submissions
[62] Hill v The State of Western Australia [2014] WASCA 150 [38].
Ground 2 of the appeal concerns the mitigatory effect of the appellant's co-operation with the police and the effect the learned Magistrate gave that co-operation in sentencing the appellant.
The appellant submits that the learned Magistrate erred in sentencing the appellant in so far as she found that:[63]
(a)there had been no cooperation by the appellant with authorities when the appellant first reported the incident to police because the appellant did not take responsibility for the offence at that time; and
(b)some limited weight could be given to the appellant's late cooperation by the making of admissions during the police interview, and after the police had collected the evidence and confronted the appellant with it.
[63] Appellant's submissions [56] - [57].
The appellant acknowledges the unusual circumstances of this case and says that it does not fit neatly into the other examples of cases of where voluntary disclosure has led to a discount in the sentence.[64]
[64] ts 21 April 2023 (Ts appeal), 18 - 19, 21.
However, the appellant submits that the learned Magistrate's approach is in error, as the appellant was the person who contacted the police to inform them about an offence which they would not otherwise have discovered.[65]
[65] ts appeal 20.
Further, in the circumstances where the appellant had no memory of the offence, the appellant co-operated to the best of his ability prior to the police interview, including by voluntarily providing DNA samples, which were later relied upon by the police as part of the decision to charge the appellant and without that evidence the charges may not have been preferred.[66]
[66] Appellant's submissions [58]; ts appeal 20.
Finally, without the appellant's co-operation and acceptance of responsibility during the police interview, the prosecution's case was weak.[67]
[67] Appellant's submissions [60] - [61].
The appellant submits that accordingly the learned Magistrate erred in finding that the appellant's initial report to police, when combined with his ongoing cooperation with police during the investigation encompassing at least the provision of his DNA, was not a significant mitigating factor deserving of some leniency beyond the discount for the plea of guilty.[68]
[68] Appellant's submissions [72] - [77].
The appellant submits that this error had a material effect on the sentence imposed and the decision not to conditionally suspend the term of imprisonment imposed.[69]
Respondent's submissions
[69] Appellant's submissions [78]; ts appeal 22.
The respondent submits that there was no error by the learned Magistrate in relation to the discount given in relation to voluntary disclosure and co-operation. The respondent submits that the facts reveal that the policy reasons underlying when leniency will be warranted are not met in the present case for a number of reasons.
First, because this is not a typical case of voluntary disclosure of guilt of an otherwise unknown offence. The offence was reported by the appellant to the authorities, almost two years prior to any relevant admissions, and the report only occurred after the offence had been disclosed to a third party, his mother, who prompted the appellant to call the police.[70]
[70] Respondent's submissions [36].
Secondly, the prosecution case was not inherently weak and dependent upon the appellant's confession. The respondent submits that the appellant has mischaracterised both the nature of the DNA evidence that was brought to the Magistrate's attention, and the strength of that evidence. The respondent submits that the DNA evidence was from the inside of the tape that had been used to bind the animal and it was the fact that there was no other recorded or mixed DNA which, in the words of the prosecutor was 'the final straw…to prove that there was no one else involved in the matter'.[71]
[71] Respondent's submissions [37] - [38]; ts (5 December 2022) 20.
Thirdly, this is not a case where the appellant's confession carried significant weight as a genuine acceptance of responsibility and contrition on his part over and above the entry of a guilty plea. Rather, he pleaded guilty to the offence because he accepted the evidence obtained by police.[72]
[72] Respondent's submissions [39].
Fourthly, the respondent submits that this not a case where the appellant's report of the offence and subsequent confession two years later can be said to have saved any investigative costs. The respondent refers to the information provided to the learned Magistrate during sentencing that the police investigation involved 656 investigative actions over two years.[73]
[73] Respondent's submissions [40]; ts 13.
Finally, the respondent submits that even if an error is revealed, there has been no substantial miscarriage of justice.[74]
Disposition
[74] ts appeal 24 - 25.
The learned Magistrate's reasoning in relation to the discount that was given for the appellant's co-operation with the police is set out earlier in these reasons.[75]
[75] See ts appeal 23.
The nub of the appellant's submission is that no discount was given for the voluntary disclosure of the offence to the police, and for the appellant's co-operation prior to the police interview (which was done to the best of his ability given his lack of memory) and the appellant's acceptance of responsibility.
I do not consider it can be said that the learned Magistrate erred in the manner alleged.
This was not a case where the appellant confessed to a crime that would otherwise have been unknown at the time of his original complaint to the police. Rather, the appellant reported the offence, but indicated that he was the victim of that offence. The appellant then co-operated with the police prior to the police interview, but it cannot be said that it was done by way of a genuine acceptance of remorse or contrition or a subjective acceptance of responsibility. It cannot be as the appellant has no memory of what occurred. The acceptance of responsibility for the offence did not occur at this earlier point in the process, only later during the police interview when confronted with evidence that he must be responsible for the offending.
The voluntary disclosure cannot be said to be of a crime that would necessarily otherwise have gone unnoticed. The appellant's mother was told of the crime and presumably the appellant's wife would also have been aware or become aware of it. It is possible that the crime could therefore have been reported by others.
Further, in the present case it cannot be said that the appellant's co-operation prior to the police interview combined with the lack of any acknowledgment of responsibility, saved any costs to the public. Police investigations continued for a further two years before the appellant accepted responsibility.
Finally, this is not a case where no discount was given for co-operation at all. The learned Magistrate gave the appellant's later co-operation some discount and weight, but not significant weight in light of the time at which the admissions were made to police. The learned Magistrate also allowed a 25% discount for a plea of guilty at an early opportunity.
Accordingly, in all the circumstances I do not consider the appellant has demonstrated any error by the learned Magistrate in relation to the treatment of and discount for the appellant's co-operation with police.
Therefore, whilst I grant the appellant leave to appeal on ground 2, I dismiss this ground of appeal.
Re-sentencing
Given my conclusion in relation to ground 1 of the appeal, it is necessary to re-sentence the appellant. In my view, I am in as good a position to re-exercise the sentencing discretion as a magistrate would be on remittal.
In resentencing the appellant, I have applied the sentencing principles in the Sentencing Act which are very helpfully summarised in the decision of Derrick J in Jackman v The Director of Public Prosecutions.[76] I have not repeated those principles here.
[76] Jackman v The Director of Public Prosecutions [2023] WASC 63 [69] - [73].
In re-sentencing the appellant, I have considered the maximum penalty for the offence, the circumstances of the offending (as detailed earlier in these reasons), the need for specific and general deterrence, the various mitigating factors (as detailed earlier in these reasons), the fact that there is no established tariff or range for sentences for this offence (although I have had regard to the various other cases identified by the parties) and the fact the appellant has already served a total of 16 days of his sentence prior to being granted bail on 20 December 2022. I have also had regard to the early guilty plea of the appellant and have reduced the sentence I would otherwise have imposed by 25% in recognition of that plea.
In all the circumstances, I am satisfied that a term of imprisonment is the only appropriate disposition in the present case. This was not challenged by the appellant. I am satisfied that the other sentencing alternatives do not sufficiently have regard to the serious nature of the offending and the need for general and specific deterrence. In my view the appropriate sentence is a term of imprisonment of 6 months and 14 days. However, I am satisfied that the term of imprisonment should be conditionally suspended for a period of 12 months under s 81 of the Sentencing Act and that a programme requirement in accordance with s 84(1)(a) and s 84A of the Sentencing Act should be imposed. I am also satisfied that it is appropriate to make an order under s 55 of the AW Act that the appellant is prohibited from being in charge of a dog for a period of 5 years.
Orders
In light of the above reasons, I make the following orders:
1.Leave to appeal is granted on all grounds.
2.Ground 1 of the appeal is allowed.
3.Ground 2 of the appeal is dismissed.
4.The sentence imposed on 5 December 2022 for the offence the subject of charge AR 5524/2022 is set aside.
5.The appellant is instead sentenced to a term of 6 months and 14 days imprisonment, conditionally suspended for a period of 12 months and a programme requirement is imposed in accordance with s 84(1)(a) and s 84A of the Sentencing Act 1995 (WA). The appellant is also prohibited from being in charge of a dog for a period of 5 years pursuant to s 55 of the Animal Welfare Act 2002 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AA
Associate to the Judge
9 JUNE 2023
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