Hudson v Miskell; Miskell v Hudson
[2011] QDC 44
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- Unreported Judgment
- Hudson v Miskell; Miskell v Hudson[2011] QDC 44
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Hudson v Miskell; Miskell v Hudson[2011] QDC 44
Hudson v Miskell; Miskell v Hudson[2011] QDC 44
DISTRICT COURT OF QUEENSLAND
CITATION: | Hudson v Miskell; Miskell v Hudson [2011] QDC 44 |
PARTIES: | Russell Neal Hudson (Appellant) v Luke Miskell (Respondent) Luke Miskell (Appellant) v Russell Neal Hudson (Respondent) |
FILE NO/S: | 2318/2010 2517/2010 |
DIVISION: | Appellate |
PROCEEDING: | Appeal from Magistrates Court |
ORIGINATING COURT: | Magistrates Court, Holland Park |
DELIVERED ON: | 8 April, 2011 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 4 March 2011 (Brisbane) |
JUDGE: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: LEGISLATION: CASES: | Appeal – Magistrates Court – Animal Cruelty – manifestly excessive – manifestly inadequate Animal Care and Protection Act 2001 (Qld) Corrective Services Act 2006 (Qld) Justices Act 1886 (Qld) Penalties and Sentences Act 1992 (Qld) R v Kelly [2006] QCA 467 R v Solway [1995] QCA 374 Rowe v Kemper [2009] 1 Qd R 247 Stevenson v Yasso [2006] 2 Qd R 150 Towers-Hammond v Burnett [2007] QDC 282 |
COUNSEL: | Mr S Lewis for the appellant/respondent Mr S Lynch for the respondent/appellant |
SOLICITORS: | Gleeson Lawyers for the appellant/respondent Couper Geysen Solicitors for the respondent/appellant |
Introduction
- [1]The appellant, Russell Neal Hudson, appeals against a sentence of two months imprisonment, with parole after two weeks, imposed by the learned Magistrate at Holland Park on 12 August 2002 in respect of one count of animal cruelty. The appellant submits that the sentence was manifestly excessive.
- [2]The respondent/appellant Luke Miskell cross-appeals in respect of the same sentence, submitting that the penalty was manifestly inadequate.
Facts
- [3]The facts upon which the appellant was sentenced were outlined before the learned magistrate as follows:-[1]
“On 20 December [2009] a complaint was received by the RSPCA. The complaint was that the footage of an incident that had occurred earlier had been shown to work colleagues by the appellant at Jaycar Capalaba where the appellant worked. It was shown to one or more of his colleagues.
Whilst the footage was being shown, the appellant commented that he’d finally caught the cat that had been coming onto his property. The complainant identified the appellant in the footage at the time. The complainant accurately described the footage, describing the cat and the place at which the incident took place, in particular noting a scratching pole that was present at the place where the incident occurred.
The appellant told colleagues when he showed them the footage that he had placed the trap in front of the scratching post with food. He said ‘you know a cat a close is death when it pisses all over itself and stops moving’. On 23 December 2009, a warrant was issued by the court to search the appellant’s premises at Wishart. That was executed at 6.56am on 24 December 2009, whilst the appellant was present.
It was noted during the execution of the warrant that there were three cameras placed in various parts around the house, one at the front and one at the rear of the house. There was also a computer workshop located in the downstairs area. The appellant indicated that at the time, only one of the cameras could capture images, which was the one at the rear of the house. The camera was able to be turned on, with the footage viewed on computer screens located inside the workshop. It could also be moved by a controller from within the workshop.
Also present at the time was a scratching pole which was situated underneath the usable camera. There was a gun-type trigger mechanism bolted to a bench near the camera controller in the workshop, and this mechanism [had] surveyor string running from it, leading through the workshop wall to a small external storage area near where the scratching pole was located.
During the [execution of] the warrant, the appellant stated that the only footage he had shown to colleagues was of hunting footage from websites such as You Tube. Inspectors seized several items and issued receipts to the appellant for those. One of the items [which] was viewed by inspectors at the RSPCA shelter at Fairfield was a USB stick.
One of the files located on the USB [stick] was called ‘Kitty’. Upon viewing the file, the inspectors could see a black cat with white feet near a scratching pole, with a bowl of food. When the cat went to eat the food, it was caught be a noose and hung from its neck. The cat was seen to struggle wildly for a minute, before it appeared to die.
Then the appellant was seen to come in to the footage with a piece of cardboard, or paper, large enough to place in front of [the] cat, obliterating from view. Written on the [cardboard/paper] was ‘fuck you Kitty’. The appellant was also in possession of a plastic Aldi bag and zip ties, one of which appears to have been used to place the dead cat, before applying the zip ties to it to seal the bag. All this appears to be directly in front of the workshop in the rear yard of the appellant’s residence.
There are two dates shown on the footage viewed by inspectors. One is 4 August 2008 and the other is 9 August 2008. It appears that the part dated 9 August [2008] is the date on which the footage was either taken, saved or edited.
The cat had distinctive features and the [RSPCA] inspectors prepared a brochure that pictured the cat which had been taken from the footage. A door knock of [the appellant’s] street was conducted on 29 December 2009 which resulted in a nearby neighbour identifying the cat as her property. Inspectors where informed that the cat’s name was Sox.
They heard that the cat had gone missing in August 2008 and had been reported lost to the RSPCA at the time. The RSPCA was able to confirm from computer records that this was true. On 4 January 2010 the inspector showed the footage to the cat’s owner in order to obtain a formal identification. Sox’s owner was able to formally identify her cat from distinctive markings on its body.
The owner also identified the male in the footage as being Russell, a neighbour from the appellant’s street. She informed inspectors that Sox had been a loved pet and the loss of him had had a big impact on her family.
On 5 January 2010 the appellant voluntarily took part in a record [of] interview in relation to the cat’s death. After viewing the footage, the appellant stated that he had been downstairs in his workshop and had smelt cat urine through the air conditioner. Upon investigating the smell, he found the cat hanging and thought that he should dispose of the body.
When asked about the ‘fuck you Kitty’ sign, the Aldi bag and the zip ties, the appellant stated that he had gone outside to investigate the smell and saw the cat hanging outside the sensor light, with the sensor light on. He put out his cigarette, turn the sensor light off, went into his garden shed to get bleach, and then returned to his workshop. There he wrote the sign, and got the zip ties and bags to dispose of the cat. This allegedly took about 30 seconds.
The appellant stated that the sign ‘fuck you Kitty’ was just a joke. He made several comments of interest during the interview including ‘my wife asked me to do something about the cat. She was quite strong in her words’. When asked why he had difficulty looking at the cat owner’s young son in the face, he stated ‘well if you can imagine, I am responsible for the death of his pet it’s a remorseful thing.’
The appellant was asked how he knew who had owned the cat and its name, to which he answered ‘because if I am correct, well the names Soxy. I think I heard him mention his cat. As I am driving home Soxy’s on the footpath out the front of our place.’ Then referring to the questions ‘and I’m equally concerned that if I’m forthcoming about some of this information you request, I will wind up in jail.’
The workshop where the appellant claimed he had smelt the cat urine also contains the controller to the pan-tilt camera mechanism, the computer screens where the footage can be viewed, and the mechanism that is believed to be the trigger for the snare. On 8 April 2010 the summons was served upon the appellant.”
- [4]The prosecution tendered photographs (Exhibit 1) and a DVD (Exhibit 2), as well as a criminal history of the appellant, which (for no obvious reason) was not made an exhibit by the learned magistrate.
The Law
- [5]The appellant was charged pursuant to ss. 18(1) & (2)(g) of the Animal Care and Protection Act 2001. These sections relevantly provide:-
s. 18(1)A person must not be cruel to an animal. Maximum penalty – 1000 penalty units or two years imprisonment.
s. 18(2)(g)A person is taken to be cruel to an animal if the person kills it any way that-
(i)Is inhumane; or
(ii)Causes it not to die quickly; or
(iii)Causes it to die in unreasonable pain.
- [6]Appeals under the Justices Act 1886 s. 222(1) entitle both the defendant and a complainant to appeal from a Magistrates Court to the District Court, but where a defendant pleads guilty, the appeal may proceed only on the ground that the penalty “was excessive or inadequate”[2].
- [7]Unless this court grants leave to adduce fresh, additional or substituted evidence, the appeal is by way of rehearing on the evidence given in the proceeding in the Magistrates Court.[3]An appeal pursuant to this legislation requires this court “to make [its] own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the Magistrates view.”[4]
Sentence Issues
- [8]The appellant is 47 years of age, has been married for 16 years and has a child aged six. The appellant works in the electronic industry and manages a retail outlet on the Sunshine Coast. The appellant also ran an electronic business from home.
- [9]The matter was an early plea.
- [10]It was submitted on behalf of the appellant that it was not a wanton killing, but the appellant had targeted a cat that had been coming on to his property, had attacked his two pet Burmese cats and killed his daughter’s guinea pigs. In the appellant’s record of interview, he stated that he’d spoken to neighbours twice, and had been asked by his wife to do something about the cat because it had been spraying inside and outside around their house.
- [11]The appellant stated that the cat had got in to his house through a window and had damaged flyscreens. When the appellant showed the video to one of his colleagues, he said “I finally got the cat that’s been coming in to my house”. This was confirmed in the record of interview.
- [12]During the course of oral submissions on the appeal, it was effectively conceded by Mr Lewis (who appears on behalf on the appellant/respondent Russell Hudson) that the head sentence imposed was inadequate, given the comparable decisions of Towers-Hammond v Burnett [2007] QDC 282 and R v Kelly [2006] QCA 467. However, Mr Lewis pressed his submission that requiring a period of two weeks of actual custody before release on parole remained manifestly excessive in the circumstances.
- [13]
- [14]It is also clear that even a short period in custody for a mature man, employed with family commitments and no previous experience of prison, would be significantly (and arguably unduly) excessive.[7]
Conclusion
- [15]In all of the circumstances, while giving due deference and a good deal of weight to the learned magistrates view, I consider that the appropriate sentence in the circumstances is a head sentence which reflects the community’s abhorrence and disgust at this blatant and appalling example of cruelty to an animal. The head sentence imposed by the learned magistrate was, I consider, manifestly inadequate. The appropriate sentence, reflecting the seriousness of the offending, is a sentence of three months imprisonment.
- [16]However, I consider that it was manifestly excessive to order that the appellant/respondent serve two weeks custody in respect of the original sentence. Accordingly, I consider that the imprisonment should be served by way of an immediate parole order which I set at 8 April 2011 (the date on which this appeal decision is delivered). The appellant/respondent will be subject to the provisions of Penalties and Sentences Act s. 160G(3) (i.e. required to report to a probation and parole officer between 9.00am and 5.00pm on the offender’s parole release date, or the next business day) and will be subject to the conditions of parole set out at Corrective Services Act s. 200.
Order
- (1)Appeal and cross-appeal granted.
- (2)Sentence of two months imprisonment with a parole release date after two weeks imposed in the Magistrates Court, set aside.
- (3)The appellant/respondent is convicted and sentenced to three months imprisonment with an immediate parole release date fixed at 8 April 2011.
Footnotes
[1] Sentencing transcript pp 1-3 - 1-6 (as per summary in Outline of Submissions on behalf of the Appellant pp 1-4)
[2] Justices Act s. 222(1) and (2)(c)
[3] Justices Act s. 223
[4] Stevenson v Yasso [2006] 2 Qd R 150, 162 (per McMurdo P at p. 162, para 36). See also Rowe v Kemper [2009] 1 Qd R 247 (per McMurdo P p. 253 para 3)
[5] Penalties and Sentences Act s. 9(2)(i)
[6] Penalties and Sentences Act s. 9(2)(a)(ii)
[7] See R v Solway [1995] QCA 374 per Pincus JA at p. 8.