R v Hartwig; ex parte Attorney-General
[2013] QCA 295
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- R v Hartwig; ex parte Attorney-General[2013] QCA 295
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R v Hartwig; ex parte Attorney-General[2013] QCA 295
R v Hartwig; ex parte Attorney-General[2013] QCA 295
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | CA No 133 of 2013 MC No 296 of 2013 |
Court of Appeal | |
PROCEEDING: | Reference under s669A Criminal Code |
ORIGINATING COURT: | |
DELIVERED ON: | 4 October 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 September 2013 |
JUDGES: | Muir and Gotterson JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – OTHER MATTERS – where CCTV footage showed the 19year old respondent and his 16 year old co-offender throwing objects at and repeatedly striking two alpacas used in the public education system – where one alpaca was found dead and another had to be euthanised – where the respondent was sentenced to six months imprisonment for wilfully and unlawfully killing an alpaca by night and three months imprisonment for wilfully and unlawfully wounding an alpaca by night – where the sentencing magistrate imposed arestitution order and ordered that the respondent be released on parole immediately – where the co-offender was sentenced to 12 months probation and 80 hours community service – where the appellant submits that the sentencing magistrate erred in not ordering a period of actual incarceration – where the appellant submits that the sentencing magistrate was overly influenced by the non-custodial sentence imposed on the juvenile co-offender and that considerations of parity should have been given little weight due to the application of differing sentencing regimes – where the respondent contends that the imposition of a short term of actual imprisonment is inherently undesirable – whether the sentencing magistrate erred in regarding considerations of parity as of particular importance in circumstances where co-offenders are sentenced under different statutory regimes – whether the sentences imposed were manifestly inadequate Criminal Code 1899 (Qld), s468 Penalties and Sentences Act 1992 (Qld), s9(2)(a), s93(1), s95 Channon v The Queen (1978) 33 FLR 433; [1978] FCA 16, cited Lahey v Sanderson [1959] Tas SR 17, considered Lilico v Meyers (2003) 137 A Crim R 473; [2003] QCA 16, cited R v Carlton; ex parte Attorney-General, unreported, Court of Criminal Appeal, Qld, CA No 289 of 1990, 26 November 1990, cited R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited R v DAZ [2012] QCA 31, cited R v Draper [1970] QWN 20, cited R v Kelly [2006] QCA 467, considered R v KU, ex parte Attorney-General (No 2) [2011] 1 Qd R 439; [2008] QCA 154, cited R v Kuzmanovski; ex parte A-G (Qld) [2012] QCA 19, cited R v LY [2008] QCA 76, considered R v Maygar; ex parte A-G (Qld); R v WT; ex parte A-G (Qld) [2007] QCA 310, considered R v Neumann, ex parte Attorney-General [2007] 1 Qd R 53; [2005] QCA 362, cited R v Romano [2008] QCA 140, considered R v Tuki [2004] QCA 482, cited R v V; ex parte A-G (Qld) [2003] QCA 21, cited Towers-Hammond v Burnett [2007] QDC 282, considered |
COUNSEL: | M R Byrne QC for the appellant C Chowdhury for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Fowler Lawyers for the respondent |
[1] MUIR JA: Introduction The appellant Attorney-General appeals against the sentences imposed on the respondent on 30 April 2013 for wilfully and unlawfully killing an alpaca by night on 13 October 2012 and for wilfully and unlawfully wounding an alpaca by night on that date. The sentences imposed were, respectively, six months imprisonment and three months imprisonment. They were accompanied by an order to pay $686.50 restitution and an order that the respondent be released immediately on parole.
The circumstances of the offences
[2] Early in the morning of Saturday 13 October 2012, the respondent and another young male were recorded on CCTV entering a paddock, in the Agricultural Unit Live Animal area at Caboolture State High School, in which there were a bull, a cow, ponies and two alpacas. They herded two ponies and the two alpacas into asmaller enclosure and threw objects, believed to have been rocks, at them. The animals became distressed; the offenders continued to circle the animals, striking them with a hose and continuing to throw objects at them. The offenders released the two ponies before removing a large metal pole supporting an electric fence and using it to strike the alpacas, which were knocked to the ground and continued to be attacked. One of the animals got to its feet and was belaboured until it fell to the ground again.
[3] After attacking the alpacas for five minutes, the offenders left. Their involvement with the animals lasted for approximately half an hour. When the animals were found by a staff member at 9.00am that morning, one of the alpacas was dead. The other was barely alive and had to be euthanised as a result of its injuries, which included a large open wound on the rear of its head. When interviewed by police, the respondent denied any involvement in the incident.
[4] The co-offender was 16 years old. He had a criminal history and was being sentenced for one other offence of violence. He was sentenced to 12 months probation and 80 hours community service.
The respondent’s antecedents
[5] The respondent, who was 19 at the time of the subject offences, had been convicted in December 2011 of committing a public nuisance and of failing to appear in accordance with an undertaking. He left school in year 10 to commence work and prior to the subject incident he had been consistently employed except for short breaks between jobs.
[6] A psychologist’s report, dated 15 April 2013, placed before the sentencing magistrate expressed the opinions that the respondent’s:
“… underlying self-esteem issues, depression, antisocial personality traits, and problems with alcohol were all influencing factors behind his offence. [His] escalating problem with alcohol at the time was viewed as an avoidant strategy to help suppress his low self-esteem and depression … [He] appears remorseful for his actions, often describing his behaviour as a stupid drunken act. He appears self‑conscious of how his family, peers, and public view him. [He] reported aspirations of apologising to Caboolture State High School for his actions.
Despite [his] presentation of depression, lethargy, and low motivation, he appeared receptive to ongoing therapeutic treatment. [His] behaviour, presentation and assessment results are consistent with the diagnosis of Major Depressive Disorder.”
[7] On the hearing of the appeal, a report by the respondent’s case manager and supervisor dated 20 September 2013 was tendered without objection. Under the heading “Response to supervision”, the report observed:
“A Benchmark assessment identified mental health as high risk areas for [the respondent].
…
[The respondent] currently has full-time employment and he displays a strong work ethic. His goal is to obtain his fork lift ticket. He resides with his mother and siblings in stable accommodation and he has reported to have strong familial support.
[The respondent] reports to have reduced his alcohol consumption significantly and is no longer associating with his co-offender. He appears remorseful for his actions in that he expressed that he wanted to apologise to Caboolture State High School for his actions.
[The respondent] is 20 years of age, in his first correctional episode and indicates that he would benefit from further supervision and support to assist him in his rehabilitation.”
[8] The report also noted that the respondent had completed seven appointments with a psychologist and advice had been received that no further appointments were required. The psychologist’s report, referred to earlier, remarked that “[s]uicide or deliberate self-harm ideation [had] significantly reduced since the commencement of psychotherapy”.
The appellant’s contentions
[9] Counsel for the appellant contended that the sentencing magistrate erred in not ordering a period of actual incarceration. It was submitted that, having regard to the constraints imposed by the prosecutor’s submissions as to the level of sentence at first instance and recognising the respondent’s compliance with approximately five months of parole undertaken by the time of hearing of the appeal, a sentence of two months imprisonment should be imposed with a stipulation that the respondent be released on parole on the last day of the sentence. An alternative submission advanced was that, “to give recognition to the contents of the psychological report”, the respondent should be sentenced to two months imprisonment and probation for a period of 19 months. The period of probation would reflect a notional period of two years probation with a deduction for the period of parole already completed.
[10] In ordering immediate release on parole, the sentencing magistrate was overly influenced by the non-custodial sentence imposed on the juvenile co-offender. Considerations of parity, although not completely irrelevant, should have been given little weight as the offenders were being sentenced under different sentencing regimes.[1]
[11] The matters which require a period of actual incarceration include:
(a) the attack was on two animals with “makeshift but effective weapons” over an extended period;
(b) the attack was deliberate and determined rather than impulsive;
(c) the offenders killed animals used in the public education system causing loss to a wider cross-section of the community than would have been the case had a family pet been killed;
(d) at least one of the animals was left to suffer for some hours; and
(e) the respondent initially denied involvement in the incident when questioned by police.
The respondent’s contentions
[12] Counsel for the respondent relied on the sentences imposed in R v Romano;[2] R v Kelly;[3] and Towers-Hammond v Burnett[4] to support the submission that the subject sentences were not manifestly inadequate and were within the range of a properly exercised sentencing discretion.
[13] The 27 year old applicant in Romano, who had a minor criminal history but had never been sentenced previously to a term of imprisonment, succeeded in having concurrent sentences of 12 months imprisonment with a parole release date after serving one third of each sentence for one count of stealing stock, one count of breaking and entering premises and one count of injuring an animal, replaced with sentences of six months imprisonment with a parole release date after serving two months in respect of each offence.
[14] The applicant and four others, after attending a party at Bellbowrie, drove to a nearby property where a pet goat was tethered. They located the goat, placed it in the boot of the car and took it to a church which was under construction. The animal was taken to a raised dais at the end of the church where its throat was cut and it was left to bleed to death. The applicant, having watched the events unfold, took a knife and cut off the goat’s head “to put it out of its misery”.[5] The group, less one of their number who had departed by this time, drove to a store at Kenmore, where a disposable camera purchased by the applicant recorded a woman in the group performing a lewd act with the goat’s head and a male member of the group taking a bite out of the neck. When interviewed by police, the applicant initially gave a false story, but when it was put to him that the goat must have been taken for use as a sacrifice in a satanic ritual he agreed. The applicant was heavily intoxicated at the time of the offence and he was in full time employment.
[15] In her reasons in Romano, White J, with whose reasons the other members of the Court agreed, referred to Kelly, which she concluded suggested that the head sentence imposed was too high and that the setting of the parole release date after four months indicated a failure to have regard to mitigating circumstances.
[16] In Kelly, the 51 year old offender, with a substantial prior criminal history, was sentenced to four months imprisonment suspended after one month with an operational period of five years for wilfully and unlawfully killing a dog. He was also fined $5,000. His application for leave to appeal against sentence was granted and his appeal against sentence was allowed to the extent that a $1,000 fine was substituted for the $5,000 fine. The applicant, armed with a baseball bat, entered the yard of the dog’s owner and “was heard apparently kicking and hitting the dog, which was heard yelping”.[6] He told a neighbour that the dog was dead and that he had “taken care of the dog”.[7] When the dog’s owner returned home, the dog could not be found. The applicant told the dog’s owner that the dog was “vicious” and that he had “got rid of it”.[8] The applicant was sentenced after a trial and showed no remorse. Mc Murdo P, with whose reasons Wilson J agreed, remarked that it was aconcerning aspect of the offence that it involved the violent killing of a domestic pet on its owner’s premises.
[17] In Towers-Hammond, the respondent, who was 59 when sentenced, had a relatively minor criminal history. He pleaded guilty to a charge of cruelty to animals and was convicted and fined $1,800 or, in the event of default, 30 days imprisonment. On appeal to the District Court, the magistrate’s orders were set aside and the respondent was sentenced to three months imprisonment and ordered to pay the costs of the appeal fixed at $3,552.90. The respondent struck a cat belonging to someone else around the body and head between seven and 10 times with an object which an observer thought was a piece of wood. He similarly dealt with three other cats all of which were found dead in a bag. Another animal, found in the same bag, had injuries similar to those of the dead animals and had to be euthanised. The sentencing magistrate found that there was no suggestion of any pleasure or intention to deliberately inflict unnecessary pain and that the respondent was trying to assist a person who wanted to dispose of the cats.
[18] Counsel for the respondent argued that it was significant that the respondent had convictions recorded for the offences whereas the juvenile co-offender, who was also sentenced for other offences, avoided having convictions recorded. Moreover, it was submitted that the imposition of a short term of actual imprisonment was inherently undesirable.
Consideration
[19] I will commence with a brief discussion of the comparable cases.
[20] Kelly was distinguished by counsel for the respondent on the basis that the middle aged appellant, with a significant criminal history, was convicted after a trial. Towers-Hammond, where the respondent pleaded guilty on the date on which the matter had been set down for trial, was distinguished on a similar basis. The matters relied on to distinguish Romano were the age of the applicant (27 at the time of the offence), his prior, albeit minor, criminal history and the fact that he was on bail for other offences at the time of the killing of the goat. Additionally, as the goat was “stock” within the meaning of the Criminal Code, the maximum penalty for wilfully and unlawfully killing, maiming or wounding it was seven years imprisonment. Those are all relevant considerations. However, the cruelty and callousness exhibited by the respondent in the instant case was greater and more protracted than that evidenced in the other cases. It also involved two animals and had other aggravating features which will be referred to later.
[21] The respondent engaged in wantonly cruel conduct over an extended period, terrorising animals and inflicting extensive injuries and pain. Both general and personal deterrence were relevant considerations. The sentencing magistrate regarded “considerations of parity with [the] co-offender” as of particular significance. Her Honour erred in so doing. As counsel for the appellant pointed out, the co-offender, being a minor, was sentenced under a different sentencing regime.
[22] Counsel for the respondent referred to R v LY[9] as authority for the proposition that it was permissible for the sentencing magistrate to have regard to the parity principle, even though the respondent’s co-offender had been sentenced as a minor. But even in that case, Mc Murdo P, with whose reasons the other members of the Court agreed, observed that a disparity between a sentence imposed on an adult and one imposed on a juvenile:[10]
“… will only lead to a successful appeal against sentence if it results in a co-offender having a justifiable sense of grievance. A grievance will not be justifiable where the disparity arises solely or primarily because adult co-offenders and juvenile co-offenders are sentenced under different legislative schemes.”
[23] The authorities referred to by counsel for the appellant establish that the application of the different sentencing regimes would normally be sufficient to displace the application of the parity principle. That is the case here.
[24] In Maygar, Keane JA pointed out that “no justifiable sense of grievance”[11] could arise as a result of an adult applicant being sentenced to a longer period in custody than a co-offending minor sentenced under the regime established by the Juvenile Justice Act 1992 (Qld).[12] His Honour referred, with approval, to the following observations of Mackenzie J, with whom Jerrard JA agreed, in R v Tuki:[13]
“… there is no general principle that the mere fact that co-offenders are dealt with differently because one is dealt with as an adult and one as a child, requires this court to reduce the sentence from what is otherwise an appropriate level for the adult offender by resort to the principle of parity. The fact that the sentences are imposed under different schemes of sentencing necessarily implies that there will be differential treatment.”
[25] Keane JA also referred to Mc Pherson JA’s statement in R v Crossley[14] that the “difference in parole eligibility dates between the two offenders was the direct consequence of the operation of the statutory provisions, which it was no part of the sentencing judge’s function to nullify by other means”.
[26] The sentencing magistrate’s approach also failed to recognise the significant age difference between the respondent and the co-offender. The exercise of the sentencing discretion miscarried and this Court should re-sentence.
[27] As counsel for the appellant submitted, other aspects of the respondent’s offending, apart from the cruelty and callousness of his acts and omissions, were relevant to his overall culpability. The animals were public property used in the education of children, which was, no doubt in part, directed to inculcating respect for animals and awareness of the need to safeguard their welfare. The animals were destroyed and children were exposed to emotional upset and conduct diametrically opposed to the principles and attitudes which their education was seeking to instil. As counsel for the appellant submitted, the offending affected many more people than would be affected by the killing of a domestic pet.
[28] Section 468 of the Criminal Code, by imposing a maximum penalty of two years imprisonment for the wilful and unlawful killing or wounding of an animal which is not defined as stock (and three years where the offence is committed at night) expresses the Parliament’s desire to prevent and punish animal cruelty.
[29] When regard is had to the foregoing considerations, the appellant’s submission that a two month term of actual imprisonment is warranted has much to commend it, at least as a general proposition. Conduct such as that engaged in by the respondent merits strong denunciation and the imposition of sentences which will serve to discourage the like-minded. There are, however, countervailing considerations. Counsel for the respondent relied on the potential adverse consequences of sending a youthful offender with no relevant criminal history, to prison for a short time.[15] That concern finds expression in the following frequently quoted passage from the reasons of Burbury CJ in Lahey v Sanderson:[16]
“The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia, and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility. With that I respectfully agree.”
[30] These sentiments are consistent with the requirement in s9(2)(a) of the Penalties and Sentences Act 1992 (Qld) that:
“(i)a sentence of imprisonment should only be imposed as a last resort; and
(ii)a sentence that allows the offender to stay in the community is preferable …”
[31] The fact that the respondent has satisfactorily undergone five months of his parole would not prevent his sentence being increased on appeal but, as the appellant implicitly recognised, it is a matter which may be taken into account in mitigation.[17]
[32] Also relevant are the positive steps taken by the respondent towards his rehabilitation pending the hearing of his appeal and the expert evidence that the respondent’s offending was influenced by his depression and “underlying self-esteem issues” for which he received therapy. His response to the therapy was positive. Alcohol was also regarded as a factor in his offending. The use of alcohol or non-prescription drugs might explain offending behaviour but cannot excuse it. However, a psychiatric condition, such as a major depressive disorder, if it contributes to criminal conduct, may be a mitigating factor and may diminish the offender’s moral culpability.[18]
[33] The evidence suggests that the respondent’s prospects of rehabilitation are good. It is unknown what effect a term of actual imprisonment would have on his rehabilitation and present employment but, as noted earlier, experience suggests that a short term of imprisonment may well increase the risk of reoffending. All of these factors (the respondent’s early plea of guilty, his underlying psychiatric condition, his progress towards rehabilitation, the risks inherent in short terms of imprisonment, his age, his apparent remorse, the absence of a relevant criminal history, his generally satisfactory compliance with approximately five months of parole and the provisions of s9 of the Penalties and Sentences Act) lead to the conclusion that the respondent should not be ordered to serve a term of actual imprisonment, at least not unless he fails to comply with the requirements of the orders Ipropose.
[34] In my view the most appropriate course in the light of the above considerations is to vary the sentence of three months imprisonment and the sentence of six months imprisonment by increasing the sentence of three months imprisonment imposed for wounding to six months imprisonment and by wholly suspending both sentences with an operational period of 18 months from the date of these reasons. I would have been inclined to stipulate an operational period of two years were it not for the desirability of recognising the completion of a period of probation of approximately five months. I would also order that the respondent be subjected to an 18 month probation order so that he is subjected to a degree of supervision and assistance with his rehabilitation. There is no sound basis for imposing a lesser sentence for wounding than for killing. Both animals were subjected to similar cruelty and the one that had to be euthanised may well have suffered more than the other.
[35] The consequence of a suspended sentence, unlike the existing sentence, will be that if the respondent commits another offence punishable by imprisonment within the operational period of the suspended sentence, he may be required to serve the six month terms of imprisonment. Whether he serves any or all of such terms is a matter which is essentially in his hands.
[36] The formal orders I would make are thus:
1. the appeal be allowed;
2. the sentences imposed on 30 April 2013, be varied by increasing the sentence imposed for the offence of unlawfully wounding an alpaca by night to six months imprisonment and by suspending both sentences of imprisonment from that date and by ordering that the respondent must not commit another offence punishable by imprisonment within a period of 18 months from the date of this order if to avoid being dealt with for the suspended term of imprisonment;
3. the respondent be released from the date of this order under the supervision of an authorised Corrective Services officer for a period of 18 months and must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld), as well as the requirement that he submit to such psychiatric or psychological treatment as may be directed by a Corrective Services officer, and report within 48 hours to an authorised Corrective Services officer at Caboolture;
4. the parole order is revoked;
5. the restitution order is confirmed;
6. the prohibition order is confirmed; and
7. the respondent’s legal representatives forthwith give the respondent an explanation in terms of s 95 of the Penalties and Sentences Act 1992 (Qld).
[37] GOTTERSON JA: I agree with the orders proposed by Muir JA and with the reasons given by his Honour.
[38] PHILIPPIDES J: I agree with the reasons of Muir JA and the orders proposed.
Footnotes
[1] See R v KU, ex parte Attorney-General (No 2) [2011] 1 Qd R 439 at [153]; R v Maygar; ex parte A‑G (Qld); R v WT; ex parte A‑G (Qld) [2007] QCA 310 at [57]–[60]; R v DAZ [2012] QCA 31 at [44].
[2] [2008] QCA 140.
[3] [2006] QCA 467.
[4] [2007] QDC 282.
[5] R v Romano [2008] QCA 140 at [8].
[6] R v Kelly [2006] QCA 467 at [15].
[7] R v Kelly [2006] QCA 467 at [15].
[8] R v Kelly [2006] QCA 467 at [15].
[9] [2008] QCA 76 at [31].
[10] R v LY [2008] QCA 76 at [31].
[11] R v Maygar; ex parte A‑G (Qld); R v WT; ex parte A‑G (Qld) [2007] QCA 310 at [57].
[12] Now the Youth Justice Act 1992 (Qld).
[13] [2004] QCA 482 at [7].
[14] (1999) 106 A Crim R 80 at 88.
[15] R v Draper [1970] QWN 20 and Lilico v Meyers (2003) 137 A Crim R 473 at 487.
[16] [1959] Tas SR 17 at 21; see also R v Kuzmanovski; ex parte A-G (Qld) [2012] QCA 19 at [15]–[16].
[17] R v Carlton; ex parte Attorney-General, unreported, Court of Criminal Appeal, Qld, CA No 289 of 1990, 26 November 1990; R v V; ex parte A-G (Qld) [2003] QCA 21 at [27].
[18] Channon v The Queen (1978) 33 FLR 433 at 436–437; R v Neumann, ex parte Attorney-General [2007] 1 Qd R 53 at 60–61.