Brighton v RSPCA (NSW) [2023] NSWSC 1653

Supreme Court New South Wales

Medium Neutral Citation: Brighton v RSPCA (NSW) [2023] NSWSC 1653 Hearing dates: 13 December 2023 Date of orders: 13 December 2023 Decision date: 13 December 2023 Jurisdiction: Common Law Before: Hamill J Decision: (1) Noting that the appeal against the conviction and/or application for leave to appeal against the conviction is withdrawn, that application or appeal is dismissed. (2) Leave to appeal against the sentence granted. (3) Appeal against sentence upheld and the sentence imposed by the Local Court on 11 July 2022 is set aside. (4) In lieu thereof, the appellant is sentenced to an aggregate term of imprisonment 2 years to be served by way of an intensive corrections order with the following conditions pursuant to ss 73 and 73A of the Crimes (Sentencing Procedure) Act 1999: (a) The appellant must not commit any offence. (b) The appellant must submit to supervision by a community corrections officer. (c)The appellant must take part in a rehabilitation programme directed towards anger management. (5) For the purpose of s 53A(2)(a), I indicate that the individual sentences I would have imposed had an aggregate sentence not been imposed are 20 months for the first offence and 12 months for the second offence. (6) Costs reserved and the parties have leave to approach my associate with consent orders relating to costs. Catchwords: CRIMINAL LAW – sentence – serious animal cruelty – savage attack on wild dog which attacked zookeeper's camel – camel's name Alice – dog's name not known – litigation with lengthy history – concurrent intention to kill dog and to inflict severe pain – where Magistrate imposed full time prison sentence exceeding three years following summary hearing – where parties agreed two year Intensive Corrections Order appropriate – where conviction appeal withdrawn – whether concessions should be accepted – offender with impeccable history of caring for animals – no relevant criminal history – peculiar circumstances in which offences committed – offender unlikely to offend again – sentence imposed in Local Court plainly wrong and unjust – manifest excess – appeal upheld CRIMINAL LAW – appeals form Local Court – choice of forum – factors to be considered Legislation Cited: Crimes Act 1990 s 530 Crimes (Appeal and Review) Act 2001 ss 11(2)(a), 12(3), 13(2), 17, 18, 19, 52, 53 Crimes (Sentencing Procedure) Act 1999 ss 5, 73, 73A Prevention of Cruelty to Animals Act 1979 s 21(d) Cases Cited: Berryman v R; Wood v R [2018] NSWDC 486 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 House v The King (1936) 55 CLR 499; [1936] HCA 40 Markarian v The Queen (2005) 228 CLR 357; HCA 25 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 Will v Brighton (No 2) [2021] NSWCA 8 Will v Brighton [2020] NSWSC 435 Category: Principal judgment Parties: Daniel Brighton (Plaintiff) RSPCA (NSW) (Defendant) Representation: Counsel: C Birch SC and M Sahade (Plaintiff) T Game SC and L Hutchinson (Defendant)