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Van Der LAAN v Lang

Van Der LAAN v Lang

Case [2023] WASC 200 9 June 2023

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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…

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 Van Der LAAN v Lang

Details

AGLC: Van Der LAAN v Lang [2023] WASC 200
Case: [2023] WASC 200
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Ben Andrew Van Der Laan appealed against his sentence for animal cruelty, imposed by the Magistrates Court. The appeal centred on two grounds: whether the sentence of immediate imprisonment was manifestly excessive and whether the Magistrate failed to appropriately consider the appellant's cooperation with authorities. The court allowed the appeal on the first ground, finding that a conditionally suspended term of imprisonment should not have been excluded as a sentencing option. The court rejected the second ground, holding that the Magistrate's approach to the appellant's cooperation was not erroneous. The appellant was re-sentenced to a term of imprisonment conditionally suspended for a period of 12 months and a programme requirement was imposed. Additionally, the appellant was prohibited from being in charge of a dog for a period of 5 years.

Orders