Not Restricted
AT Melbourne
CRIMINAL DIVISION
Case No. AP-12-2095
AP-12-2096
AP-12-2295
THE DIRECTOR OF PUBLIC PROSECUTIONSV
ZACHARY HUNTER
BRETT SAUNDERS
SCOTT SAUNDERS
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JUDGE: / Her Honour Judge MillaneWHERE HELD: / Melbourne
DATE OF HEARING: / 7 November 2012
DATE OF SENTENCE: / 21 November 2012
REASONS FOR APPEAL SENTENCE
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Catchwords: Criminal law – Director’s appeal – aggravated cruelty to an animal – cruelty to an animal – destroying protected wildlife – unlawful possession or control of wildlife – appealed to the Court on the basis that each sentence imposed was manifestly inadequate – whether sentence.
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APPEARANCES: / Counsel / SolicitorsFor the DPP / Mr J. Champion SC / Office of Public Prosecutions
For Mr Hunter / Mr C. Farrington / Patrick Dwyer
For Mr B. Saunders / Mr F. Scully / Still & Co.
For Mr S. Saunders / Mr P. McGinn / P. M. Law
COUNTY COURT OF VICTORIA
250 William Street, Melbourne / !Undefined Bookmark, I
HER HONOUR:
Introduction
1 Please remain seated. I will ask you to stand when I'm ready to impose your sentences.
2 The Prevention of Cruelty to Animals Act 1986 was enacted to prevent cruelty to animals, to encourage considerate treatment of animals and to improve the level of community awareness about the prevention of cruelty to animals. The provisions of Wildlife Act 1975, among other things, act to protect and conserve wildlife.
3 The offenders have each pleaded guilty to offences under the Prevention of Cruelty to Animals Act and the Wildlife Act. The offending occurred on 21 October 2011. The animal involved was a quarter grown Eastern Grey kangaroo classified as a joey. This joey was protected wildlife.
4 On 16 August 2012 a Magistrate sitting at Seymour found, Zachary William Hunter guilty of one charge of aggravated cruelty to an animal (charge 1) and of one charge of destroying protected wildlife (charge 2).
5 On the same date, Brett Andrew Saunders was found guilty of one charge of cruelty to this animal (charge 8) and of one charge of unlawful possession or control of wildlife, namely the kangaroo.
6 Without conviction, each of these offenders was released on an undertaking to be of good behaviour for a period of 12 months and ordered to pay $850 to the Court fund.
7 On 27 September 2012 a different Magistrate sitting at Seymour found, Scott Raymond Saunders, guilty of one charge of aggravated cruelty to the kangaroo (charge 1), of one charge of unlawful possession or control of the kangaroo (charge 2) and of one charge of destroying protected wildlife (charge 6).
8 Without conviction, Scott Saunders was also released on an undertaking to be of good behaviour for a period of 12 months. However, the amount he was ordered to pay to the Court fund was substantially higher than his co-offenders, namely the sum of $2500.
9 The offence of 'cruelty' punishes conduct which, among other things, involves wounding, torturing, tormenting or terrifying an animal. On the relevant date the maximum penalty for an act of cruelty committed upon the kangaroo was 120 penalty units or imprisonment for 12 months.[1] The value of a penalty unit was $122.14.
10 The offence of "aggravated cruelty" punishes an act of cruelty which results in the death or serious disablement of the animal. On the relevant date the maximum penalty for an act of aggravated cruelty committed upon the kangaroo was 240 penalty units or imprisonment for two years.[2]
11 Destruction of protected wildlife carries a maximum penalty of 50 penalty units or six months imprisonment or both the fine and imprisonment and an additional penalty of 5 penalty units for every head of wildlife in respect of which an offence has been committed.[3]
12 The offence of unlawful possession or control of wildlife carries a maximum penalty of 240 penalty units or 24 months’ imprisonment or both.[4]
13 The Director of Public Prosecutions has appealed to this Court on the ground that each sentence imposed was manifestly inadequate in all the circumstances.
The evidence
14 The Director tendered various materials as follows:[5]
· a bundle of nine photographs of the dead kangaroo taken by police;
· a DVD described as "Roo Footage", which contained a short segment of film and recording of some of the offending conduct found on Scott Saunders’ mobile telephone;
· the criminal record for Scott Saunders which records prior convictions and penalties imposed on 30 April 2009 for a number of driving offences;
· a folder of print outs containing Facebook posts made by Scott Saunders and others subsequent to the Magistrates' Court hearing in August 2012 on the Facebook page of the "Australian Society for Kangaroos" (“ASK”). The Director relied on 9 pages, some of which contained posts by Scott Saunders. The location of these pages in the folder was later tabulated to allow consideration of the conversations and context in which Scott Saunders posted his comments;
· a copy of a statement made on 30 October 2011 by Todd Hoskin. He was with Zachary Hunter when he offended; and
· a copy of a statement made by Sgt Steve Carden, who among other things stated that he spoke to Brett and Scott Saunders subsequent to these offences. He evidently inspected the dead kangaroo in the presence of Scott Saunders.
15 A letter expressing remorse for his role in this offending was tendered on behalf of Zachary Hunter.[6]
16 Various materials were tendered on behalf of Brett Saunders. These comprised:[7]
· a report from psychologist Ms Rotch dated 1 November 2012. I found the report unsatisfactory because it did not provide any formal expert diagnosis or an indication of the nature and the extent of any professional treatment received. Instead, it largely repeated Brett Saunders’ version of the circumstances of the offending and, based on his report blamed Brett Saunders’ brother for initiating the violence against the joey;
· a bundle of written testimonials composed by a friend, Mr Sherwood, the current employer at Bakers Delight Seymour, Ms Wyllie, a fellow employee, Mr Quaife and by a former teacher, Ms Cram;
· a copy of a poster apparently mailed to the employer which likened Brett Saunders and his co-offenders to the murderer, Ivan Milat; and
· a bundle of Facebook posts which, in addition to expressing the anger and disgust of numerous individuals, posted the employer's telephone number. The latter was a clear invitation to others to put pressure on Brett Saunders’ employer to terminate his employment.
17 Brett Saunders’ uncle, Daniel Robert Warr, a retired police officer gave character evidence on his behalf. Mr Warr believes that his nephew’s conduct on this occasion was totally out of character. He told the Court that since this episode Brett Saunders had been withdrawn and upset and that he was ashamed of the disgrace he had brought on his family. Moreover, according to Mr Warr, his nephew had expressed remorse both for his conduct and for the animal involved and was fearful that the episode would lead to the loss of his employment with the bakery.
18 Lastly, a work reference dated 21 September 2012 from Goldfields Creative Concreting was tendered on behalf of Scott Saunders. This letter confirmed employment over the last year on a temporary, casual basis, as well as noting that Scott Saunders was a valued employee.
19 Scott Saunders did not appear at the Appeal hearing. He was, however, represented by Mr Maginn of counsel. The letter from his employer did not indicate any threat to Scott Saunders’ ongoing employment should he absent himself from work to attend a court hearing.
20 Accordingly, without more, I was not satisfied that any threat to his employment or the likely cost of travelling from Western Australia to attend this hearing provided a plausible explanation for this respondent’s failure to appear in person.
21 I will say more about this matter in my discussion of Scott Saunders' plea in mitigation in due course.
The circumstances of the offending
22 The prosecution conceded that, despite the reference to “wounding” in the certified extract, for the purpose of this Appeal the cruelty charge against Brett Saunders, was confined to the conduct alleged before the Magistrate, namely tormenting the animal during the period of its release in Anzac Avenue, after which he conveyed the joey in the boot of his vehicle to Lions Park in Seymour. Save for this concession, the prosecution summary of the facts was read to the Court without objection.
23 As to the unlawful possession or control of wildlife charges against Brett Saunders and Scott Saunders, charges 1 and 2 respectively, I was told that on Friday, 21 October 2011, Brett Saunders, who was 18 years old, was driving his vehicle along Sungarrin Road in Seymour. His only passenger at the time was his co-offender and older brother, Scott Saunders, who was 22 years of age. Having stopped, ostensibly to let a dog out of the vehicle to chase rabbits, the dog apparently caught the joey, which was then placed by both offenders in the boot of the vehicle before they continued to drive towards Seymour.
24 During the course of the plea hearing I was told by, Mr Scully, Brett Saunders’ counsel, that, whilst his client was the registered owner of the dog, for reasons which were never explained, the dog actually belonged to Brett Saunders’ brother, Scott.
25 In effect, the kangaroo was unlawfully possessed and controlled by both offenders over a period of some hours, during which time the joey was variously kept in the boot of Brett Saunders’ vehicle or released and tormented and, prior to its death later that evening, the joey was subjected to the specific acts of cruelty to which Scott Saunders and Zachary Hunter, who was also 22 years of age, have pleaded guilty.
26 According to the prosecution summary, at approximately 7:30 pm, Scott Saunders called co-offender, Zachary Hunter and organised to meet him at a car wash in Seymour. At approximately 8 pm Zachary Hunter arrived at the car wash with Todd Hoskin. They were instructed by Scott Saunders to follow in their vehicle.
27 The two vehicles then travelled to the corner of Chisholm Crescent and Anzac Avenue where Scott Saunders removed the kangaroo from the boot and placed it on the public road. Statements of witnesses confirm that after the kangaroo hopped away down Anzac Avenue it was nearly struck by passing traffic.
28 As to the cruelty charge against Brett Saunders, charge 8, I was told that his brother chased the kangaroo on foot whilst Brett Saunders pursued the animal along the same route in his vehicle. Scott Saunders apparently recaptured the joey and, carrying the animal by its tail returned it to the boot of Brett Saunders' vehicle, which was later driven by Brett Saunders to Lions Park.
29 The co-offender, Mr Hunter followed in a vehicle driven by Mr Hoskin.
30 At Lions Park the joey was removed from the vehicle by Scott Saunders and placed in front of the two vehicles, on which the headlights were operating. The dog was also released from the vehicle and was seen to display aggression toward the kangaroo. This aggression was also evident from the film and recording made by Brett Saunders on his brother’s mobile telephone and shown in Court. Among other things, the headlights of each vehicle appear to have been trained on the joey which stood facing Scott Saunders who can be seen holding a barking dog by its collar.
31 The recording also recorded Scott Saunders’ laughter as he approached the joey and struck it to the face several times, both with his hand and with a stick.
32 As to the aggravated cruelty charge against Zachary Hunter, charge 1, I was told that at the relevant time he was wearing steel capped boots. The film graphically captured Zachary Hunter running from a distance of some metres toward the joey and kicking the animal to the head with his right foot. This kick caused the joey to become airborne before it landed approximately a metre from where the blow had been delivered. Scott Saunders’ laughter in response to this conduct is audible on the recording as is the sickening sound of the blow delivered to the already traumatised animal’s head.
33 As to the aggravated cruelty charge against, Scott Saunders, charge 1, this charge is constituted by his conduct in approaching the motionless joey, picking it up by the tail and swinging the animal into a large tree after which he walked away. This act of aggravated cruelty was also captured on film and confirmed by the independent witnesses.
34 As to the destruction of protected wildlife charges against Scott Saunders and Zachary Hunter, charges 6 and 2 respectively, I was told that it remains unclear whether the joey's death was caused by the kick to the head or by being thrown against the tree.
35 During the course of the plea in mitigation, Mr Maginn sought to rely on Sgt Carden's statement to establish that the kick to its head had caused the animal’s death. Having read the statement made, I was not satisfied that Sgt Carden’s evidence supported this conclusion. Rather, he appears to have inspected the dead animal and to have formed the view that the only visible wounds to the kangaroo, namely the blood pooled in its left eye and an old wound to its left lower leg, were not consistent with an earlier assertion made by Brett Saunders to the effect that the animal had been hit by a car.