R v WBE[2017] QCA 87

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  On 1 September 2016 in the District Court at Ipswich, the applicant, WBE, pleaded guilty to an offence against s 242(1) of the Criminal Code (Qld).  The single count of which the applicant had been charged was that on 12 October 2014 at Churchable and with an intent to inflict severe pain or suffering, he unlawfully caused prolonged suffering to an animal.

2. The applicant was convicted of the offence and a conviction recorded.  A fine of $5,000 was imposed by way of sentence.  In proceedings in-camera, the learned sentencing judge stated that the sentence he would have imposed but for the applicant’s cooperation under s 13A of the Penalties and Sentences Act 1992 (Qld) was $7,500.

3. On 29 September 2016, the applicant, who now acts for himself, filed an application for leave to appeal to this Court against his sentence.^[1]  The sole ground of appeal stated in the application is that the sentence imposed is manifestly excessive.

Circumstances of the offending

4. The applicant was a greyhound trainer. A Schedule of Facts tendered at sentence^[2] disclosed that on the morning of 12 October 2014, he took his black greyhound “Ruby” to a training track at Churchable near Ipswich, operated by Thomas Noble.

5. Noble carried on the practice of live baiting at the track. It involves tying a live animal to a mechanical lure arm that spins around the track at high speed. Greyhounds are released from boxes to chase the bait.

6. The applicant walked to the track fence opposite the lure control tower. Noble was operating the lure. The applicant observed an associate of Noble tying a live piglet to the lure arm. He collected his greyhound and put her in the starting boxes. The dog was muzzled. It trialled on the live bait. Once the trial run had been completed, the applicant caused the dog to let go of the bait. The piglet was still alive.

7. The applicant paid Noble $5 for the trial. He then departed with his dog. In all, he was at the track for less than half an hour. His offending was recorded by covert cameras installed by private investigators engaged by Animal Liberation Queensland.

8. Police interviewed the applicant. He made admissions concerning his offending on 12 October 2014.  He also provided a statement to police implicating Noble and two others present on that date in the practice of live baiting.  Prior to sentence, he signed a s 13A undertaking in which he affirmed the truthfulness of his statement and undertook to assist in relation to the prosecutions of offences disclosed in it.

The applicant’s personal circumstances

9. The applicant was 47 years of age at the time of the offending and 49 years old at sentence. He was a hobby-trainer of greyhounds. What income he made from that activity supplemented his employment income. The applicant had a consistent work history over many years. At the time of sentence, he was working 25 hours a week part-time as a night-fill manager at Woolworths.^[3]

10. The applicant’s greyhound trainer’s licence was suspended by Racing Queensland in March 2014 in consequence of his offending. In March 2016, he began an 18 month counsellor’s course at Smart City College funded by VET FEE-HELP. The applicant had no criminal record at sentence. He has had a long time involvement in junior soccer for which he has been required to hold a Blue Card. He is the father to a young daughter whom he supports.

The sentencing remarks

11. The learned sentencing judge referred to the circumstances of the offending. He emphasised the seriousness of the offence charged and denounced live baiting as a barbaric act of deliberate cruelty and brutality to defenceless animals.  His Honour accepted the applicant’s statement that, of the three occasions on which the applicant had visited Noble’s track, this was the last and the only one at which live baiting took place.  That and the fact that the applicant had muzzled his dog caused his Honour to characterise the applicant’s conduct as being “at the lower end of such offending”.^[4]

12. Reference was made to the applicant’s early plea of guilty as reflecting both co-operation with the administration of justice and remorse, and to his co-operating with law enforcement authorities.^[5]  The learned sentencing judge acknowledged that he had been referred by the prosecutor to sentences imposed in a number of animal cruelty cases,^[6] all of which preceded the enactment of s 242(1) by the Criminal Law Amendment Act 2014 (Qld)^[7] which commenced on 15 August 2014.

13. However, his Honour observed that he derived greater assistance from sentences recently imposed in the District Court at Ipswich on three other offenders who had participated in live baiting at Noble’s training track. He regarded the offending in each of those cases as worse than that of the applicant.

14. The offender in R v Roberts^[8] was an employee of Noble and had assisted in the practice of live baiting.  She was convicted on two counts of offences against s 242(1) and sentenced to imprisonment for three months wholly suspended for an operational period of 18 months.  A wholly suspended sentence of three months’ imprisonment but with an operational period of 12 months was imposed in R v Chapman^[9] where the offender also pleaded guilty to two offences against s 242(1).  The first offence involved the live baiting of a possum that the offender himself had taken to the track.  The offender in R v F^[10] pleaded guilty to five offences, namely, an offence against s 242(1); three offences of animal cruelty under provisions of the Animal Care and Protection Act 2001 (Qld); and an offence of making a false declaration to a Greyhound Racing enquiry.  Convictions were recorded and after allowance for s 13A co-operation, a single fine of $5,000 was imposed for all five offences.

15. The learned sentencing judge noted the applicant’s absence of a criminal record, his good work history, his community involvement and otherwise good character.^[11]  He then imposed the fine of $5,000.

16. His Honour gave consideration to whether the discretion not to record a conviction given by s 12 of the Penalties and Sentences Act 1992 (Qld) (PSA) ought to be exercised.  He thought that the potential difficulties that a recorded conviction might cause the applicant in obtaining membership of a professional association for counsellors or in continuing to hold a Blue Card, to both of which defence counsel had referred, were “somewhat speculative and somewhat detached from the present circumstances”.  In the absence of evidence that a conviction would impact on his capacity to obtain employment as a counsellor and having regard to the seriousness of the offence charged, his Honour declined to exercise the discretion.^[12]

17. His Honour then closed the court for the purpose of explaining the sentence that he would have imposed but for the co-operation under s 13A PSA.  As I have already noted, that sentence was a fine of $7,500.

The applicant’s submissions

18. The applicant submitted that his sentence was manifestly excessive in two respects, namely, the amount of the fine, and the recording of a conviction. He argued that the amount of the fine was unreasonably high in comparison with the fine imposed on the offender in F.  An appropriate fine would, he submitted, have been $2,000 reduced by one-third on account of his co-operation to $1,333.

19. As to the recording of the conviction, the applicant submitted that independently of whether it would have immediate adverse effect on his Blue Card registration or his ability to register with agencies that would improve his professional development as a counsellor, the recording of a conviction “would for all purposes follow [him] from now on, causing an unwanted perception of [his] character, [his] values and [his] standing with the community in general”.^[13]  Given that and that this offending was a “one-off” for him, no conviction ought to have been recorded.

The respondent’s submissions

20. The respondent submitted that a difficulty confronting the applicant was that his counsel at sentence had proposed a fine “similar” to that imposed in F.^[14]  That offender’s indicative sentence of $10,000 exceeded that for the applicant but was reduced by 50 per cent to $5,000 on account of the greater value of her cooperation.  Notably, she wore a device at the track that allowed her conversations with three other offenders to be recorded.  That the fines in the applicant’s case and F were the same was unremarkable in that the greater criminality in the latter was balanced by greater cooperation on the part of the offender in that case.^[15]

21. As to the recording of a conviction, the learned sentencing judge had regard to the applicant’s otherwise good character, his age and the impact of a recorded conviction on his social wellbeing and chances of finding employment. No error in the exercise of the discretion was shown.^[16]

Discussion

22. It is convenient to consider first whether the fine of $5,000 is manifestly excessive in amount. It was derived from the indicative fine of $7,500.

23. The issue for consideration here is whether that amount was manifestly excessive as the indicative fine. That is so because the applicant has not suggested that the reduction of one-third for s 13A cooperation was in any way erroneous.  Indeed, it would be difficult for the applicant to have so suggested given that, at sentence, his counsel conceded, as was the case, that the s 13A cooperation given by the offender in F was of “a higher level” and of “a greater significance” than that of the applicant.^[17]

24. To my mind, the offending in F was much more serious than that of the applicant.  That offender had trialled a greyhound in which a piglet was used for live bait.  She admitted to knowledge of, and acquiescence in, other instances of live baiting involving a chicken, a piglet and a rabbit, which were the bases of the three animal cruelty summary offences.  As well, the offender initially gave a false declaration to the Racing Queensland enquiry into the greyhound industry on which the fourth summary offence was based.

25. By contrast, the applicant offended on but one occasion. Further, there was no offending involving dishonesty on his part. Giving due recognition to these highly significant differences, I am of the opinion that the nominal fine of $7,500 in the applicant’s case was manifestly excessive.

26. I do not consider that the submission made by defence counsel and identified by counsel for the respondent, presents a difficulty for the applicant as has been suggested. The submission was that his Honour “could consider a significant fine as was imposed in [F]’s case”.^[18]  The point of the submission, taken in context, was that a significant fine (as had been imposed in F) rather than imprisonment (as had been imposed in both Roberts and Chapman), should be imposed in the applicant’s case.  It was not a submission that the significant fine should equate in monetary terms to the fine imposed in F.

27. As to what is an appropriate nominal fine in the applicant’s case, I would reject his submission that it ought to be $2,000. A nominal fine of that order would altogether fail to recognise the seriousness of offending involving the intended infliction of cruelty to animals. Moreover, it would reflect a mechanistic equal apportionment of the indicative fine in F over the five offences charged.  In my view, an appropriate indicative fine for the applicant’s offending is $5,000.

28. With regard to the recording of a conviction, the applicant is, in substance, challenging the separate exercise of the discretion under s 12 PSA.  He has failed to identify, let alone demonstrate, any error of the kind described in House v The King^[19] in the discretionary decision below.  The challenge to the exercise of the s 12 discretion cannot succeed.  Moreover, the sentence imposed at first instance was not, to my mind, manifestly excessive by virtue of the recording of a conviction.  However, it may be added that the recording of this conviction ought not to preclude any renewal of the applicant’s Blue Card.

Disposition

29. For these reasons, the applicant should be granted leave to appeal against his sentence and the appeal allowed. The indicative fine of $5,000 should be reduced by of the order of, but not less than, one-third for s 13A cooperation.  I would substitute a fine of $3,300 for the fine imposed at first instance.  The recording of the conviction is maintained.

Orders

30. I would propose the following orders:

1. Leave to appeal against sentence is granted.

2. The appeal is allowed.

3. The sentence imposed on 1 September 2016 is varied by substituting a fine of $3,300 for the fine of $5,000.

4. The sentence is otherwise confirmed.

31. McMURDO JA:  I agree with Gotterson JA.

32. FLANAGAN J:  I agree with the orders proposed by Gotterson JA and with his Honour’s reasons.