Hall v Gundelach[2005] QDC 34

APPELLATE JURISDICTION

JUDGE GRIFFIN SC

and

Appeal No BD3332 of 2004

and

Appeal No BD3333 of 2004

and

BRISBANE

..DATE 14/02/2005

JUDGMENT

HIS HONOUR: These are three appeals under the Justices Act against the adequacy of sentences pursuant to section 18 of the Animal Care and Protection Act 2001 which were passed on the three respondents on different occasions in relation to an incident which occurred at the Exchange Hotel where, in the course of what was described as entertainment, a competition, which was a competition of escalating dares, concluded in the competitors, at the encouragement of the respondents Gundelach and Stafford, by placing live mice in their mouths were encouraged, with a view to winning a substantial prize, to bite the tails off the mice.

The appeal of Hall v. Gundelach was heard before me on the 29th of November 2004. In that case I reserved my decision deeming it appropriate that two related appeals, Hall v. Stafford and Hall v. McGee, be heard prior to a decision being given in relation to all matters.

The effective maximum penalty in each case is $75,000 as a fine or two years imprisonment.

It is important to appreciate the nature of these appeals brought pursuant to section 222 of the Justices Act and the role that this Court has in considering such appeals. It is not at all a matter of my substituting any view which I may have of an appropriate sentence that I myself would have imposed. The nature of this appeal, in the way it is argued, is one to which the principles of House v. The King apply where this Court is asked to consider the exercise of the original sentencing Court's discretion.

In this case different Stipendiary Magistrates dealt with the respondents on sentence and this, in my view, is a most unfortunate and complicating feature of the way in which all three respondents were sentenced in what was essentially the same incident involving somewhat different individual participations.

It is necessary for the appellant in this case to demonstrate that the sentencing discretion has miscarried either by failure of the original sentencing Court to take into account certain relevant facts, or that irrelevant matters have been taken into account in the overall sentencing process, or in the light of all the circumstances the sentence itself demonstrates, by inference or otherwise, and by reference to the facts, that the sentencing discretion has clearly miscarried.

The facts relevant to this appeal appear to be that the incident occurred at the Exchange Hotel in Brisbane. As part of the so-called entertainment, participants were asked to participate in various dares, including sticking pins into each other, the last remaining participant being the winner of a substantial prize. By the end of proceedings two participants remained, one of whom was the respondent McGee, and live mice were then utilised in the final dare.

It is clear to me on the evidence before the original sentencing Courts that there was some premeditation in this activity; that is to say that live mice were provided in the event of some sort of the and that the mice would be used in some way as part of the dare process. I have no doubt whatsoever that the respondents Gundelach and Stafford appreciated this. It is, however, open on the evidence and a view which may properly be formed, that the actual biting of the tails of the mice was something that was done rather more on the spur of the moment and the idea was that of the respondent, Gundelach. The original intended use of the mice, let alone the idea of biting off their tails, is not only disgusting but an affront to ordinary common standards of proper behaviour. It is also obviously extremely cruel to the animals and this is borne out by the uncontested evidence of the veterinary surgeon who described the way in which the tails of the mice would have to be detached from their bodies by the serration of human teeth. Merely to state the facts of this is sufficient to appreciate how disgusting this activity was.

It is instructive to recall, from what was placed before Stipendiary Magistrate McLaughlin in the matter of Gundelach, that that respondent said on the point on which this particular appeal is focused, these words:

Two mice were then produced from a small white cardboard box and Gundelach then said:

Each of the participants stood with a mouse in his mouth holding the tail of the mouse. Then after a few seconds the respondent, Gundelach, said:

The two participants then attempted to bite the tails off the mice. The activity it seems was not an instantaneous one but went on for a short time. According to the transcript the tails were then held up in the air for a second or two before being thrown on the ground. After this activity the respondent, Gundelach, said to the audience:

Referring to the mouse. Some of the crowd began to yell:

One participant spat the mouse on to the floor and there is no evidence as to whether that mouse was alive or dead at that stage.

As to the respondent Stafford's involvement, he was an independent contractor, so it was accepted, engaged to run this Jackass Dare type of competition. Stafford was advised of the course of the dares on the night in question when he arrived at the hotel. It was a decision he had not made himself, according to what was placed before the original sentencing Court. Nevertheless, Stafford was advised of the dares and “acted as something of an aid”.

McGee was one of the patrons of the hotel and was one of the last two competitors in the dare competition. McGee actually performed the act of biting the tail off the mouse, or as it was put in the appellant's submissions, “chewing the mouse”.

The starting point for consideration of the matters raised upon these appeals by the appellant appears to be the involvement of the respondent, Gundelach, and an analysis of the approach which was taken by that Court on sentence. A number of matters are submitted by the appellant as being those features which go to a conclusion that the sentence is manifestly inadequate.

It is clear that in relation to the other two respondents the respective sentencing Courts drew some distinction between the behaviour of the respondent, Gundelach, on the one hand and of Stafford and McGee on the other. For Stafford it was said that he was an independent contractor who, although knowing the nature of the dares, was merely an aid to the activity proposed by Gundelach. It is, of course, implicit in this that the notion of biting off the tails of the mice was an extension of the idea of merely holding them in the mouth and this idea was independently arrived at by the respondent, Gundelach, and which, it seems on the evidence, could not be said to have had the input of Stafford.

The matters raised by the appellant in respect of each respondent are fundamentally the same, although it appears that distinctions are able to be made amongst the respondents and their subjective circumstances and involvements, which may ultimately affect the disposition of penalties. For example, the appellant, on its own submissions, both in this Court and in the lower Court, has made a distinction between the respondent, McGee and the other two respondents.

In McGee's case it had been submitted that a penalty in the region of $1,000 to $2,000 was appropriate. That submission was continued in this Court. In McGee's case the original sentence was one of a fine of $750.

In the case of the respondent Gundelach the fine was $1,250 and in the case of Stafford the fine was $1,000.

No submissions were made by the appellant at first instance that convictions should be recorded in the case of any respondent.

The features which are relied upon by the appellant and referrable to the various respondents in varying degrees may be summarised as follows:

There was premeditation at least to the extent that live mice had been brought to the venue with a view at least to cause considerable distress to them but placing them in the mouths of persons in the event of a tie break.

This was an organised and very public display of animal cruelty in what was admitted by the appellant to be in the name of what might loosely be called “entertainment”.

A strong deterrent sentence was required to the appellant submitted both at a general and subjective level but given the relative recency or newness of the legislation certainly a general level of deterrence was required.

It was submitted by the appellant that the respondent Gundelach was the originator and instigator of the particular acts of cruelty. Stafford acted as an aide but was not the originator. McGee was a drunken participant and on the appellant's case and less responsible.

McGee was a person who, on the evidence, was affected by alcohol and competing for a pecuniary prize.

The encouragement to McGee by Gundelach and to a lesser extent Stafford was against a background that participants were likely to comply with the suggested cruelty, not merely because of an intoxicated state but because of a likely desire to be the winner of the prize.

The cruelty procured by the respondents Stafford and Gundelach, so the appellant argued, and carried out by McGee was the biting off the tail of creatures in what was called, by a veterinary surgeon, a ripping and tearing action, given that human teeth are not structured for a clean severing of such things as tails of mice.

It was submitted that the case was one of positive cruelty, not one of neglect or negligence. It goes without saying that this case carries with it highly emotive qualities and much of that has been picked up in media reports surrounding this particular case.

Therefore in analysing the matters which I must assess on this appeal, it is important to judge the matter dispassionately and in the context of the role that must be performed by me according to the well-accepted principles which I have set out above, namely that this Court is not one of review but one which must have demonstrated to it that in the exercise of the original sentencing discretion some form of error, according to the principles in House v. The King, is discernible.

Section 225 sub-section 1 of the Justices Act provides:

These powers in my view are to be utilised in the context of the principles set out in House v. The King. Section 225 sub-section 1 does not operate as a separate regime in the determination of appeals under section 222.

Each of the respondents had a number of individual and separate features which went to mitigation and which on this appeal were not contested by the appellant.

In respect of Gundelach it was said he was a youthful offender who had no previous convictions. He was someone who was a student whose activities of employment at the hotel were part-time for a modest amount. He was in fact a “junior member of staff”, to use a phrase used in the original hearing. He was said to have had excellent references and that view is borne out by the learned Magistrate's exposition of some of those features of the references.

It was submitted both below and in this Court that a fine at the level imposed was a significant imposition for someone in his particular circumstances. That fine I recount was $1,250. What money he earned was said to have been applied to a significant extent to appropriate expenses which he had including normal living expenses.

In McGee's case, although an appropriate fine of $1,000 to $2,000 was submitted as appropriate by the appellant, the Magistrate fined him $750 together with $250 costs of Court. It was uncontested in McGee's case that he was of limited financial means and was living at home as part of the program to repay debts and complete his apprenticeship. At the time of sentence he was receiving unemployment benefits. Both Gundelach and McGee were said to be, and are, youthful offenders.

I have already set out some of the features pertinent to Stafford. He was 25 years of age at the time of the offence. In the case of all respondents an early plea of guilty was entered which, on the view I form, may have contained some ingredients of remorse.

Submissions were made during the course of these hearings categorising the undoubted cruelty in this case as active or passive cruelty. Whilst that may in some way define the particular activity of cruelty practised upon the unfortunate animals in this case, regard should be had in my view to the context of cruelty in a somewhat wider sense. For example, in Breitkreutz against Lightboy and Others, a decision of the District Court in Townsville by his Honour Judge Pack on 9 September 2004, his Honour there identified a prolonged attack of the most cruel kind which his Honour determined to be extreme cruelty which was “callous and sadistic”.

I have been referred to no other authorities of any relevance or assistance. It is clear, however, that this legislation, novel as it is in terms of the level of penalty, is perhaps going to happily afford in our civilised society, very few examples of this type of disgusting behaviour.

One can, in considering the level in seriousness of the offences, and with section 18 in mind, imagine other behaviour which falls into the appellant's category of passive cruelty - for example, periods of deliberate, sustained neglect where the suffering of animals is prolonged and extremely painful.

This case may be contrasted with that type of activity and the behaviour encouraged by the respondents Gundelach and Stafford to McGee was relatively and thankfully brief.

Section 18 sub-section 2 contemplates a wide variety of factual circumstances which by definition amount to cruelty. In Breitkreutz v. Lightboy and others it is evident that the extent and level of cruelty was substantially greater. In that case fines of $2,000 were imposed and the appellate Court in that case took into account the loss of employment of each of the respondents as a relevant factor.

The principles guiding the approach which this Court must take in order for the appellant to demonstrate that a sentence is manifestly inadequate in order to have that sentence increased, are established in such cases as The Queen v. Melano ex parte The Attorney-General 1995 2 Queensland Reports 186.

As has been submitted by Mr Byrne QC on behalf of the appellant, the principles which are relevant in cases where an attack is made upon the exercise of discretion and the bases upon which such an attack will be successful are to be found, as I have said, in House v. The King 1936 55 Commonwealth Law Reports at 499, and particularly in the judgment, the joint judgment of Justices Dixon, Evatt and McTiernan at 505.

More recently the High Court has considered these well-settled principles without interfering with the approach suggested by those principles in Dinsdale 2000 202 Commonwealth Law Reports at 321.

In Queensland the Court of Appeal considered those principles in R v. Gillies ex parte The Attorney-General 2000 QCA at 503. In that case Justice Pincus said, in reference to Dinsdale:

His Honour, in dealing with another issue returned to that point:

The last passage of Justice Pincus's judgment highlights an important feature of these appeals, that is, it is not for the Appellate Court, whatever its view of the propriety of the original sentence, to interfere with that sentence unless it can be demonstrated that there has been some error in approach or that the sentence is absolutely outside the range in a way in which it makes it demonstrably or manifestly inadequate.

I have considered the objective seriousness of the case and regard the involvement of each of the respondents in this activity as demonstrating a failure of the standards of proper human behaviour to animals no matter what life form that animal takes. This behaviour is not excused by alcohol consumption; greed in a desire to win a proposed prize or the excitement or heady adulation of the spectators watching the behaviour of the three respondents.

While persuaded to the view that the fines in each case were very low, indeed at the very lowest end of the appropriate penalty for what was a very public display of animal cruelty, I am however, with reference to each of the respondents, and by applying the appropriate principles to these appellate proceedings, unable to conclude that there has been demonstrated a level of penalty which goes so far below that which is required, as to demonstrate by itself manifest inadequacy.

Nor do I find that any feature taken into account by the Sentencing Magistrate was inappropriately referred to, nor has any feature, particularly those exacerbating features of the prosecution case, been disregarded or given less weight than appropriate in all the circumstances.

I am therefore of opinion that the appeals in each case should be dismissed. I must say I reached this conclusion reluctantly. Having regard to what I have said, these appeals should not stand as any benchmark for future sentences in cases of this kind. Now gentlemen, the question of costs.

MR ZILLMAN: I ask for costs to be taxed, your Honour.

MR KISSICK: I seek costs - perhaps taxation might be appropriate, although there is a scale - fixed. Perhaps taxation is the appropriate basis.

MR POWER: Your Honour, I'd ask for costs, however, I note that I appear - I'm from Legal Aid and I will speak to the people at Legal Aid as to whether that will be sought, but out of caution I'd ask that the costs be granted.

HIS HONOUR: Yes. Mr Byrne?

MR BYRNE: Nothing useful I can add to that point.

HIS HONOUR: Gentlemen, I will make an order in this way, that the appellant in each case pay the respondent's costs of the appeal to be agreed or assessed. Perhaps that is a satisfactory order. And I should say I grant liberty to apply in relation to the question of costs.

MR BYRNE: Thank you.

MR ZILLMAN: Thank you.

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