Johnston v Lawton[2002] QDC 120

APPELLATE JURISDICTION

JUDGE McGILL SC

and

BRISBANE

DATE 15/04/2002

JUDGMENT

HIS HONOUR: This is an appeal under section 222 of the Justices Act against a sentence imposed by a Magistrate at Bundaberg on 13 October 2000. On that occasion the respondent pleaded guilty to a charge that on 28 July 2000 at Mount Morgan he did illtreat an animal, namely a Staffordshire Bull Terrier cross dog, by stabbing it in the mouth and muzzle with a file and hitting it on the head with an axe, contrary to section 4(1)(a) of the Animal Protection Act as amended.

The circumstances of the offending were that the dog had followed the respondent's children home and had been around the house for a few days but the respondent did not want the dog in the house and did not want the dog to be kept. On the day in question he had been apparently affected by alcohol to some extent. There was an initial incident when he stabbed the dog in the mouth a number of times with a steel file, then carried it with one leg, before striking it on the head with the back of an axe a number of times before the dog was eventually killed. The body was then taken and thrown on the footpath.

It was apparent from examination of the body that there were quite severe injuries to the head and face and that the dog would have suffered a good deal of pain before it died. A couple of witnesses also spoke of the dog crying out in pain for some time during this incident. The respondent said, when interviewed by the police, that he was hitting it for a time and ultimately was trying to put it out of its misery.

There are particularly disconcerting aspects of the offence, that this was not just a matter of killing the dog and killing the dog as conveniently and expeditiously as possible. It involved an element of torture, really, before the dog was put out of its misery and it involved killing the dog in a particularly prolonged and painful way and that, I think, is the serious aspect of the offence.

The respondent pleaded guilty when he was before the Magistrates Court apparently at a fairly early stage - not, I think, on the initial appearance date but on the occasion he pleaded guilty, he was not legally represented. He did not in his address on that occasion dispute the version of the facts given by counsel for the complainant, but did not offer any particular explanation or excuse other than that he had a couple of drinks and been sharpening his axe ready for work and that the dog was not wanted at the house. He did not want to keep the dog in the house himself.

The Magistrate was told that there were no previous convictions. In fact, there were some convictions for minor matters dating back some years. The most recent was in 1995. All of them had only involved the imposition of a fairly small fine. None of them involved anything in the nature of similar offending and I think all of them really were of no significance in relation to the sentence or the appeal. The respondent had never previously been convicted of an offence of illtreating animals, or indeed any offence of violence, and he had never previously been imprisoned.

The Magistrate recorded a conviction and imposed a fine of $750 and ordered the respondent to pay professional costs of $300 and costs of Court of $58. A period of three months to pay was allowed, in default 50 days imprisonment. The fine was paid. The respondent was at the time in employment, earning $75 a day, so that it reflected 10 days' gross income for him.

It has been submitted on appeal that the only appropriate sentence would be a sentence which involved a term of imprisonment, even if it were wholly suspended. I was referred to a number of previous matters, most of which had been dealt with in the Magistrates Court, where a wholly-suspended term of three months' imprisonment was imposed for throwing a dog out of a window, causing it to break its legs, and a period of 14 days' imprisonment was imposed for beating a cat to death and beheading a cockatiel in circumstances where this was done deliberately in order to distress the owner of the animals who was the ex-wife of the defendant. There were perhaps particular circumstances involved in that offence.

There was also a sentence of imprisonment imposed for mistreating a racehorse, to be suspended after seven days, but on appeal it was ordered to be wholly suspended for a period of two years. That was a case where there was not deliberate infliction of pain but infliction of pain and injury through neglect, although the horse in that case subsequently recovered.

In the present case a point would have been reached where it would have been an exercise of simply trying to kill the dog to put it out of its misery, but I think before that point was reached there was a good deal of gratuitous pain inflicted on the dog. The case is certainly comparable in severity and cruelty with some of the matters where custodial sentences have been imposed.

I have been concerned about the correct approach to an appeal of this nature. The Court of Appeal, when dealing with appeals from sentences imposed under the Penalties and Sentences Act in respect of offences against the criminal code by the Attorney-General under section 669A of the Criminal Code has consistently - indeed, consistently with decisions of the High Court - taken the view that a Court should be reluctant to increase a sentence imposed at first instance unless there was a clear error of principle or unless the sentence was manifestly inadequate so as to show that there must have been some failure of the sentencing process: R v. Melano [1995] 2 QdR 186 at 189.

The Court has also consistently adopted the attitude that it should be particularly reluctant to allow an appeal where the effect of that would be to impose for the first time on appeal a custodial sentence. That approach has been adopted consistently even in cases where the Court has taken the view that a custodial sentence ought to have been imposed at first instance: R v. T; ex parte Attorney-General [2000] QCA 282.

Nevertheless, in circumstances where it was not imposed at first instance and a period of time, particularly if a significant period of time has elapsed since then, it has been consistently decided by the Court of Appeal not to impose a custodial sentence unless it was absolutely essential that that be done in the particular circumstances of the case. It requires a very strong case to justify the imposition on appeal of a custodial sentence for the first time.

In the present case a custodial sentence was certainly open to the Magistrate and it would have been quite unsurprising if one had been imposed. The maximum penalty for an offence under this section is six months' imprisonment and, although the facts are very unpleasant, particularly in the absence of previous convictions for mistreating animals or other relevant previous convictions, it would not have been appropriate to impose the maximum penalty or anything like that. Perhaps a short term of imprisonment, perhaps of 14 days, or even seven days, would have been appropriate.

But I do not think that in the light of the authorities to which I have referred, and the approach of the Court of Appeal to which I have referred, and the reasoning which leads to that approach being adopted, much of which I think is also applicable, particularly the reasoning, to an appeal under section 222, I do not think that this is such a case where it is so clearly essential for a term of actual imprisonment to be imposed as to justify my interfering on appeal with the sentence imposed.

I am not persuaded that the sentence was wholly outside the legitimate range of sentencing in the circumstances and I am not persuaded that it was so clearly necessary to impose a sentence of imprisonment that it will be appropriate to allow the appeal now.

There is also the consideration that it would not be appropriate to impose a sentence of imprisonment, even one which was wholly suspended, unless a sentence of imprisonment is called for by the circumstances of the events. It is not a matter of treating a wholly suspended term of imprisonment as not being really a custodial sentence. I think, particularly bearing that factor in mind, it is not appropriate on appeal to vary the sentence so as to impose for the first time a custodial sentence, and the appeal is dismissed.