Cruelty, Animals and the Law

For pet owners, the companionship provided by a dog or cat is generally overall a rewarding experience, considerably improving the quality of life of the owner. However, unfortunately instances of animal abuse and cruelty do occur with animals that are widely regarded as companions. We advise that this article may distress some readers.

Ms Celina Shead, a Sydney woman aged 19 years based in Sydney’s Northern Beaches has been arrested by NSW Police for the torture, aggravated cruelty, beating and death caused to a cat. The woman allegedly stabbed the cat 20 times before throwing it off a two-storey unit balcony in Dee Why. She has been refused bail and is set to appear before Manly Local Court. Ms Shead had been sentenced for 30 separate offences a week before the alleged stabbing. Ms Shead had been subjected to an Intensive Correction Order for multiple offences only days before the stabbing.

Committing an act of cruelty upon an animal
Under Section 5(1) of the Prevention of Cruelty to Animals Act 1979, “A person shall not commit an act of cruelty upon an animal”. The maximum penalty for doing so is 50 penalty units ($5,500) and/or 6 months imprisonment.

Committing an aggravated act of cruelty upon an animal
Under Section 6(1) of the Prevention of Cruelty to Animals Act 1979, “A person shall not commit an act of aggravated cruelty upon an animal”. The maximum penalty for doing so is 200 penalty units ($22,000) and/or 2 years imprisonment.

Intentionally inflicting severe pain to torture, kill, seriously injure or causing prolonged suffering
Under Section 530(1) of the Crimes Act 1900, “A person who, with the intention of inflicting severe pain:
(a) tortures, beats or commits any other serious acts of cruelty on an animal, and
(b) kills or seriously injures or causes prolonged suffering to the animal,
is guilty of an offence”. The maximum penalty for this offence is imprisonment for 5 years.

Intensive Correction Order (ICO)

An ICO is a custodial sentence that is served in the community. The ICO is intended to reduce the risk of re-offending, through the imposition of rehabilitation programs that are overseen by direct continuous supervision. It is the most serious criminal sentence possible after imprisonment, which, under Section 5 of the Crimes (Sentencing Procedure) Act, is applicable only if the Court considers no other penalty other than imprisonment appropriate. If an ICO is revoked the offender may be required to serve out the remainder of their sentence in prison.

Ms Shead also admitted to stealing a white Pomeranian dog named Bella that had been died orange, which was recovered by Police from her northern beaches unit. Ms Shead has plead guilty to torturing, beating and causing the death of an animal, and committing an act of aggravation upon an animal. Ms Shead’s father informed police that his daughter had adopted this cat, and another cat, from the RSPCA only days before the stabbing.

Usual choices available at law

Suffice to say if you or someone you know has been charged with a criminal offence no matter how bad the alleged offence is you always have multiple choices available at law. For example:

Choice 1: NEGOTIATION WITH POLICE

Firstly, if you have a case wherein negotiating with the police or Director of Public Prosecution is likely to be advantageous you may be able to negotiate with the police. Often referred to in America as “plea bargaining” in Australia lawyers tend to call this process “making representations” and/or “making negotiations”.

Choice 2: PLEAD NOT GUILTY

If you decide to plead not guilty you will need to prepare to go to a trial or a defended hearing. On the day of the hearing, the prosecutor, who represents the state, will outline the police case and present evidence; this usually takes the form of calling witnesses. The defendant or their lawyer can then question the witnesses about their evidence and this is called cross-examination. The defendant or their lawyer will then outline the defence case and call their own witnesses and the prosecutor can question or cross-examine the defence witnesses. The prosecutor and the defence then address the court and the magistrate or judge/jury decides based on the evidence. If the defendant is found not guilty of the offence, he or she is discharged and is free to leave. If the defendant is found guilty, the magistrate decides on the penalty. In serious matters, the magistrate or judge may ask for a pre-sentence report before deciding on the sentence.

Choice 3: PLEADING GUILTY TO THE ELEMENTS BUT NOT TO THE FACTS

It is little known that in Australia we have a unique and different set of laws to that of other common law jurisdictions (such as England, Canada and New Zealand). How this works well for you is if the police fact sheet is not correct, and the prosecution will not negotiate, you can seek advice as to whether you may dispute the facts at a special “disputed facts” hearing. For example, the prosecution in a damage property charge may allege you damaged four of the complainant’s windows wherein you only damaged one. If the dispute cannot be resolved through negotiations, then you may be able to have the issue decided at a “disputed facts hearing”. If the case requires a disputed fact hearing then the matter will be set down to when the witnesses can come to court to give evidence on the disputed areas. The hearing is then conducted in the same way as a defended hearing/trial except that the court no longer has to decide if you (the defendant) is guilty (you having admitted this even on your own version of what happened) but rather assess as to what happened this being a decision as to the “facts of the case”). One of the ways to dispute the facts is to argue that there are certain “mistruths” or “relevant facts missing” from the Police fact sheet. Moreover, an aggravating factor in the police fact sheet we can argue should be removed.

Choice 4: PLEA OF GUILTY TO THE ELEMENTS AND TO THE FACTS

Where a guilty plea is entered the sentencing court must ascertain the facts of the case before it can pass sentence. If the defendant has pleaded guilty the Magistrate or Judge will usually be given the facts set out in the police fact sheet. Once the court has established the facts of the case, the Magistrate or Judge considers any prior offences. The prosecution may also put other relevant matters to the court. The defendant or their lawyers must be provided with the opportunity to respond and have any other relevant matters considered. The defendant, or his or her lawyer, then has an opportunity to address the court about any matters relevant to sentencing. These are called submissions in mitigation of penalty. The Court will then read any other documents such as pre-sentence and other reports, letters of apology, references and or any rehabilitative documents or summaries of programs completed/psychological reports and then the Court will hand down a sentence. Currently, the sentencing Choices available to the Court are as follows:
• Full-time Imprisonment;
• An Intensive Correction Order (ICO) with a home detention condition available;
• A Community Correction Order (CCO);
• A Fine; and/or
• A Conditional Release Order (CRO).

If you agree that you have committed the offence and the police are able to prove so then sometimes it is best to plead guilty at an early opportunity to receive the maximum discount. The early guilty plea shows the Court that you have remorse and contrition for your actions.

Choice 5: DIVERSION OUT OF THE CRIMINAL JUSTICE SYSTEM

If a person has mental illness or condition, there are several arguments which can be raised which may divert that person out of the criminal justice system. Some of these arguments can be made in the Local Court jurisdiction (i.e. via section 32 or 33 of the Mental Health Forensic Procedure Act 1990 (MHFPA)) whereas some are made in the higher courts (Supreme and District).

Mental health proceedings are very complex however if you engage Rep-Revive Criminal Lawyers™ we can advise you on what you need to do to prepare and what information the court will need to know to improve your chances of success.

If you or someone you know has been charged with a criminal offence, contact Rep-Revive Criminal Lawyers™ now to discuss your choices. The first consultation is free.