Brighton v RSPCA (NSW) [2023] NSWSC 1653

Brighton v RSPCA (NSW) [2023] NSWSC 1653 · Read the judgment on AustLII

Catchwords: Appeals from the Local Court – avenues of appeal – interesting but unnecessary facts

A Supreme Court judge, sitting alone, himself described this case as ‘arguably interesting’, involving, as it did, an unprovoked attack on a camel named Alice, the ‘barbaric’ killing of a dog by the owner, summary conviction, a successful appeal, remittal, and the eventual imposition of an ‘extraordinarily severe’ sentence. Its real importance to these pages is in the examination of the different appeal options from decisions of the Local Court.

The facts are in equal parts compelling, challenging, and strictly unnecessary for the purpose of understanding the judgment – but they cannot go unmentioned. The appellant owned a mobile petting zoo with animals including a camel named Alice. In the dark of night two dogs entered the property where Alice was housed (the catchwords reveal that the dogs’ names are unknown). The dogs attacked Alice, causing serious injuries to her legs, throat, and face; they had to be beaten off Alice with a pole. The appellant caught one of the dogs and tied it to a tree so that it was ‘fairly submissive’. Submissiveness notwithstanding, in the acts constituting the first charge, the appellant stabbed the dog repeatedly with a pitchfork, before leaving to go to the vet to get medication for the camel. The pitchfork was left in the dog. When the appellant came back, the dog was still alive. This apparently came as some surprise to the appellant, but when he realised this, he suspended the dog from a tree and repeatedly beat it about the head with a mallet, saying ‘I will make sure it’s dead’. The dog died and was buried. The one eye-witness to the acts of cruelty was instructed never to tell anybody that she had seen dogs. Expert evidence taken after exhumation of the remains of the dog found that the injuries were likely to have inflicted prolonged suffering and were not consistent with the humane ‘extinction’ of a dog. In the Local Court the appellant was sentenced to fulltime imprisonment for 3 years and 2 months (the length of the non-parole period isn’t mentioned).

The appellant evidently chose to take the path of a Supreme Court appeal rather than an appeal to the District Court. The matter came before Hamill J, but resolved on the second day by way of an agreed position. In the course of accepting the parties’ concessions in relation to the disposition of the appeal, his Honour made obiter comments said to be calculated to ensure litigants are properly advised as to the most appropriate avenue of appeal from decisions in criminal cases in the Local Court’ (at [42]).

Pursuant to the Crimes (Appeal and Review) Act 2001 (‘CARA’), there are two avenues of appeal from a decision of a Magistrate: an appeal to the District Court, or one to the Supreme Court. An appeal to the District Court involves a rehearing, generally on the same evidence that the Magistrate heard, although fresh evidence can be received as of right in appeals against sentence, or with leave in appeals against conviction. There are restrictions against evidence being given in person. A District Court judge can revisit factual findings, it is not incumbent on an appellant to identify legal error, and litigants are not restricted to arguing the appeal based on identified grounds of appeal (at [44]). Conversely, there is no appeal as of right to the Supreme Court unless the appeal is based on a question of law alone; if the ground of appeal involves a question of fact or a mixed question of fact and law then there must be a grant of leave (at [45]), and there are many reasons why the Supreme Court might refuse leave in a given case (at [47]). Section 29 of CARA restricts an appellant from pursuing both avenues of appeal, and although s 29(3) may theoretically allow an unsuccessful appellant to then pursue an appeal in the District Court, the practical reality is that by the time leave is refused, the time limit to appeal to the District Court (even with leave) will probably have expired (at [47]).

The appellant in the present case argued a ground that the sentence was ‘manifestly excessive’. An appeal to the Supreme Court like the one in this case therefore required the appellant to establish manifest unreasonableness, and it would not be enough, for a CARA appeal to succeed in the Supreme Court, for a judge to decide that they would have imposed a substantially less severe sentence (at [48]). In the District Court, on the other hand, the judge hears the sentencing exercise afresh and, if they would have imposed a lesser sentence, they must intervene. In reaching that determination they can consider fresh evidence, and there is no requirement to establish manifest legal error or that the sentence is plainly wrong or unjust, and no need to pay deference to the role of a sentencing judge and the axiom that there is no single correct sentence (at [49]). And, his Honour noted, the cost of going to the Supreme Court is likely to be much higher (at [50]).

The parties having agreed that the appeal should be allowed, the judge accepted the concessions and imposed an aggregate sentence of 2 years, to be served by way of an Intensive Correction Order.