SUPREME COURT OF QUEENSLAND

[1]  MUIR JA: I agree with the reasons of White J and with the orders she proposes.  I will add only the following brief observations.  In my view the learned sentencing judge had insufficient regard to the applicant’s role in this sorry episode.

[2] The evidence, such as there was, did not contradict the applicant’s version of events.  According to him, he did not instigate or participate in the formulation of any plan to take and deal with the goat.  Nor did he participate in the maltreatment of the animal until, becoming “distressed that the animal was suffering significant pain”, he killed it.

[3] Whilst one may be sceptical about the applicant’s account of events, it was not challenged by the prosecution.

[4] Despite these matters, however, the applicant, by his presence in the group, encouraged the activities of the ring leaders.

[5]  FRASER JA: I have had the advantage of reading the reasons for judgment of White J.  I agree with the orders proposed by her Honour, and with her reasons for those orders.

[6]  WHITE J: On 10 April this year the applicant pleaded guilty in the District Court at Brisbane to one count of stealing stock, one count of breaking and entering premises and one count of injuring an animal.  On each count he was sentenced to 12 months imprisonment with a parole release date of 10 August 2008, that is, after serving one-third of the sentence.  The applicant has been serving his sentence since the date it was imposed.  He seeks leave to appeal that sentence on the ground that it is manifestly excessive, contending for a sentence in the range of four to six months imprisonment to be served as a wholly suspended sentence or an immediate parole release order or an intensive correction order, each to be accompanied by a compensation order.

[7] On the night of Friday, 13 October 2006, the applicant and four other people, who had been at a party at Bellbowrie, a suburb in the semi-rural west of Brisbane, drove to a nearby property where a pet goat was tethered.  The driver and owner of the motor vehicle was Tracey Arnold.  The occupiers of the car were specifically looking for the goat which was tied to its shelter for the night some distance from the road.  The goat was found, led back to the vehicle and placed in the boot.  The vehicle was driven some two kilometres to the Bellbowrie Community Church then under construction but only a week from completion.  It seems that when one member of the party became aware of the fate in store for the goat he left and was later fined $450 for stealing the goat.

[8] The back door of the church was boarded up and the applicant removed the obstruction permitting the group to enter with the goat.  The animal was led to a raised dais at the end at the room where its throat was cut.  On the applicant’s account to police later, which was not contradicted, he was sitting near the door watching and, seeing the goat lying bleeding to death, took a knife with a 20 centimetre doubled-edged blade and cut off the goat’s head “to put it out of its misery”.

[9] The next morning construction workers found the decapitated body of the goat lying on the floor of the church in a large pool of blood.

[10]  The group drove with the goat’s head to a 7-Eleven store at Kenmore at about 1.30 am.  What occurred there was captured on the store’s CCTV and observed by a number of witnesses.  The applicant purchased a disposable camera.  That camera recorded one of the women performing a lewd act with the goat’s head.  A male member of the group, not the applicant, seized the head and took a bite out of the neck.  The group then decamped to Tracey Arnold’s residence.  When police eventually attended there they found the goat’s head in the kitchen freezer as well as the disposable camera and items suggestive of an interest in “the occult”. 

[11]  Some days later police located the applicant.  After giving a false story initially the applicant gave his account of what had taken place that night.  When it was put to him that the goat must have been taken for a satanic ritual and was to be used as a sacrifice he agreed.  However, he denied that he knew that the building was a church, a denial that was not challenged by the prosecutor below.  Mr Copely, for the respondent on appeal, in seeking to support the sentence imposed, urged that the most serious aspect of the offence was the desecration of a church by the ritualised killing of the animal. 

[12]  The photographs tendered below suggest that the room where the killing took place resembled a community hall rather than a traditional church.  There is a slight raised dais at the end of the room, as defence counsel below described it, more like a “stage where a drummer would sit, eight or 10 inches above the floor”.  It is an empty room containing no ornament or furnishing of a religious or of any kind.  There is no basis for seeking to support the sentence on the inference that what the applicant engaged in was a deliberate act of sacrilege.  The prosecutor below did not do so.  He contended that the aggravating feature of the offence was the distress caused to the owner of the goat.  The goat had been purchased some three-and-a-half years earlier as a nine month old kid for the complainant’s daughter and treated as a family pet, along with the dog and the cat.  The publicity surrounding the cruel and macabre treatment of the girl’s pet had added to the distress which she experienced.

[13]  The applicant was aged 27 years at the time of the offence with a criminal history involving minor possession and production of dangerous drugs, receiving stolen property and weapons offences, all dealt with in the Magistrates Courts.  He was on bail for minor drug and other summary offences at the time he committed these offences.  He had never been sentenced to a term of imprisonment previously.

[14]  Tracey Arnold had pleaded guilty to similar charges summarily in the Magistrates Court.  The learned sentencing judge was concerned that there should be some parity with her sentence.  She was admitted to two years probation with special conditions relating to her psychiatric condition, an order that she apologise to the church and the owners of the goat, and ordered to make compensation in the sum of $1,535 in respect of the $6,090.11 damages which had been calculated in respect of the church.  Because her car was used in committing the offence she was disqualified from driving for a period.

[15]  The other two co-offenders had decamped to Sydney and had not been found.

[16]  The court below was told that the applicant had been rebuffed in his attempts to apologise to the family.  He had also done a few hours of voluntary work with the RSPCA in an endeavour to make amends for his appalling behaviour. 

[17]  At the time of the offences the applicant was heavily intoxicated and had a serious problem with alcohol which, by the time of sentence, he was addressing.  He was then in fulltime employment as a trades assistant after a mixed employment history.  To demonstrate that his offending conduct was out of character, the learned sentencing judge was referred to an occasion in 2002 when the applicant, riding his bicycle late at night, observed a young woman set a house on fire with fuel.  He challenged her, woke the sleeping residents, and started to put out the fire before the fire brigade arrived.  Counsel tendered a statement from the residents expressing their gratitude to the applicant.

[18]  The prosecutor below had submitted for a sentence of imprisonment up to six months while defence counsel sought a non-custodial order with a compensation order.

[19]  The learned sentencing judge was particularly concerned about two matters – parity with the sentence imposed on Arnold and the need for deterrence.  He observed that were it not for the parity issue, the term of imprisonment imposed would have been more severe.  However, because of Arnold’s psychiatric problems and no criminal history, there was no real need for his Honour to be particularly concerned about parity.

[20]  The maximum penalty for killing an animal when that animal is stock, which, by virtue of s 1 of the Criminal Code, a goat is, is imprisonment for seven years.  There are few comparable cases dealing with cruelty to animals.  Unfortunately the learned sentencing judge was not referred to any, but one which may have guided him was R v Kelly[1].  The offender in that case beat to death a neighbour’s dog that had annoyed him with a baseball bat.  He entered the neighbour’s property to do so.  After a trial, and having expressed no remorse, he was sentenced to four months imprisonment, suspended after one month, with an operational period of five years and fined $5,000.  That offender was a mature man in his fifties and had a previous criminal history described as “concerning”.  This Court reduced the fine to $1,000 but otherwise left the sentence unaltered.  The maximum penalty for the offence, a dog not being stock, was two years imprisonment.

[21]  Mr Copley referred the Court to R v Daley[2] where an offender was sentenced to 240 hours community service and ordered to pay compensation of $500 with a conviction recorded for the deliberate shooting of a neighbour’s goat on a rural property after a trial.  Of the sentence the Court noted at para 12:

“The goat was in kid and the only reasonable inference is that the offence involved cruelty to an animal and vindictiveness against a neighbour against whom the applicant held ill will.  There was no remorse, plea or explanation.  The sentence was very moderate and we do not propose to discuss the application further.  It should be refused.”

[22]  The facts of this case lie closer to Kelly in so far as the cruelty to the animal is concerned, although in that case the maximum penalty was only two years.  That fact, as well as the circumstances of the capture and injury of the goat, even if, on the applicant’s account, he carried out a coup de grace, supports a term of imprisonment actually to be served.

[23]  The learned sentencing judge, having emphasised that it was only parity with Arnold’s sentence which caused him to modify the sentence means that his starting point was, necessarily, higher than 12 months.  The recognition of the plea of guilty appears to be at best, no more than a few months by setting the parole release date after serving one-third of the sentence.  There is no sense that the applicant’s remorse shown by his attempt to apologise or his previous good deed about the fire were given appropriate recognition.  Kelly, a recent decision, would suggest that his Honour imposed a head sentence that was too high and setting the parole release date after four months indicates a failure to have regard to mitigating circumstances.  He therefore imposed a sentence which was manifestly excessive.

[24]  The imposition of 12 months imprisonment for the break and enter in the circumstances of no damage to the building apart from the blood on the floor was clearly excessive, as was the same penalty for stealing the goat.

[25]  It is, therefore, necessary for this Court to re-exercise the sentencing discretion.  Horrible as this ugly crime was, when the decisions in Kelly and Daley are considered and the mitigating circumstances taken into account, the applicant should have been ordered to serve a term of imprisonment of six months with a parole release date of 10 June 2008 in respect of each offence.

[26]  I would grant the application and allow the appeal and set aside the sentences below.  In lieu of the sentences imposed below I would order the appellant to serve a term of imprisonment of six months with a parole release date of 10 June 2008 in respect of each offence.