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Supreme Court 13 December 2023

Brighton v RSPCA (NSW)

[2023] NSWSC 1653

Other
CRIMINAL LAW SENTENCE SERIOUS ANIMAL CRUELTY C AMEL’S NAME ALICE DOG’S NAME NOT KNOWN LITIGATION WITH LENGTHY HISTORY

Citation: Brighton v RSPCA (NSW) [2023] NSWSC 1653
Court: Supreme Court of New South Wales
Date: 13 December 2023
Judge: Hamill J

Background

The appellant owned a mobile petting zoo and kept a camel named Alice. In the early hours of 14 January 2016, two dogs entered the property and attacked Alice, causing significant injuries to her legs, throat, and face. The appellant captured one of the dogs, a Bull Terrier type, and tied it to a tree.

What followed gave rise to two charges of serious animal cruelty under s 530 of the Crimes Act 1900. The appellant stabbed the restrained dog at least six times with a pitchfork, then left for the vet. On returning and finding the dog still alive, he suspended it from a tree and struck it across the head six to eight times with a mallet until it died.

The matter had an extensive procedural history spanning nearly eight years. Following initial summary convictions, successful appeals to the Supreme Court and the Court of Appeal, and remittal to the Local Court, a second Magistrate convicted the appellant again and on 11 July 2022 imposed a full-time custodial sentence exceeding three years. The appellant appealed that sentence to the Supreme Court.

  • Whether the sentence imposed by the Local Court was manifestly excessive and therefore plainly wrong or unjust
  • Whether the parties' agreed position (a two-year term served by way of an Intensive Corrections Order) should be accepted by the Supreme Court on the sentence appeal
  • Whether the conviction appeal should proceed (it was ultimately withdrawn)
  • The appropriate forum for sentence appeals from the Local Court: the Supreme Court (Part 5 of the Crimes (Appeal and Review) Act 2001) versus the District Court (Part 3)

Decision

On the second day of the hearing, the parties reached an agreed position that a two-year aggregate sentence served by way of an Intensive Corrections Order (ICO) was appropriate. Hamill J accepted the concessions made by both sides, exercised the sentencing discretion afresh, and made orders accordingly.

His Honour accepted that the threshold for imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 was crossed: the conduct was "savage, cruel and unjustified" and warranted stern punishment despite the background of the dog attack on Alice. However, the Local Court's sentence of more than three years full-time imprisonment was found to be manifestly excessive and plainly wrong given the appellant's impeccable history of caring for animals, absence of any relevant criminal history, the peculiar circumstances of the offending, and the low likelihood of reoffending.

Hamill J assessed the first offence (the pitchfork stabbing) as the more serious of the two, noting that the second offence, while equally unjustified, resulted in death more quickly and thus shorter suffering. The indicative sentences were 20 months for the first offence and 12 months for the second. Given the short time separation between the two acts, a modest degree of notional accumulation was applied, but the offences were treated as largely part of the same course of conduct, producing an aggregate term of two years.

On the ICO, Hamill J expressly disagreed with the Magistrate's reasoning that an ICO was inappropriate simply because the appellant was unlikely to reoffend. His Honour, consistent with the High Court's decision in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, found that serving the sentence in the community by ICO was appropriate. The Magistrate's comment that full-time imprisonment was warranted even if an ICO had been available was described as "gratuitous" in circumstances where the length of sentence the Magistrate had imposed had itself placed an ICO out of reach.

Orders Made

  • The conviction appeal was dismissed (having been withdrawn by the appellant).
  • Leave to appeal against sentence was granted.
  • The sentence imposed by the Local Court on 11 July 2022 was quashed.
  • In substitution, an aggregate term of two years imprisonment was imposed, to be served by way of an Intensive Corrections Order, with the following conditions:
  • The appellant must not commit any offence.
  • The appellant must submit to supervision by a community corrections officer.
  • The appellant must participate in a rehabilitation programme directed towards anger management.
  • Indicative individual sentences: 20 months for the first offence; 12 months for the second offence.
  • Costs reserved, with parties granted leave to approach the judge's associate with consent orders on costs.

Key Takeaways

  • A sentence of more than three years full-time imprisonment for two counts of serious animal cruelty, in circumstances involving an offender with no prior criminal history, impeccable animal care credentials, and a very low risk of reoffending, was found to be manifestly excessive and plainly wrong.
  • Under s 530 of the Crimes Act 1900, serious animal cruelty requires proof of a specific intention to inflict severe pain, not merely recklessness. The Court of Appeal had previously held (in the same matter's earlier proceedings) that the prosecution must exclude the possibility the offender intended only to kill the animal as quickly as possible, even if that entailed some pain.
  • A low likelihood of reoffending does not, of itself, render an ICO unavailable or inappropriate. Hamill J found the Magistrate had erred in treating the offender's low reoffending risk as a reason against an ICO rather than as a factor supportive of a community-based sentence.
  • Sentence appeals from the Local Court to the Supreme Court under Part 5 of the Crimes (Appeal and Review) Act 2001 require the appellant to establish manifest unreasonableness. Appeals to the District Court under Part 3, by contrast, involve the judge hearing sentencing proceedings essentially afresh, without any need to demonstrate that the original sentence was plainly wrong. Hamill J noted that cases appropriate for sentence appeal to the Supreme Court, rather than the District Court, are likely to be rare absent a clear legal error.
  • Where a matter has an unusually lengthy litigation history and both parties agreed on the appropriate disposition, Hamill J considered it preferable to resentence directly rather than remit the matter to the Local Court for a third time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 530
- Crimes (Appeal and Review) Act 2001 (NSW) ss 11(2)(a), 12(3), 13(2), 17, 18, 19, 52, 53
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 73, 73A
- Prevention of Cruelty to Animals Act 1979 (NSW) s 21(d)

Cases
- Will v Brighton [2020] NSWSC 435 (Rothman J)
- Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355
- Will v Brighton (No 2) [2021] NSWCA 8
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
- Berryman v R; Wood v R [2018] NSWDC 486
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25