Local Court of New South Wales CITATION: RSPCA v HAMILTON [2008] NSWLC 13 JURISDICTION: Criminal PARTIES: RSPCA HAMILTON FILE NUMBER: PLACE OF HEARING: Wagga Wagga DATE OF DECISION: 07/14/2008 MAGISTRATE: Magistrate G Lerve CATCHWORDS: Aggravated Cruelty to Animals - Failure to Provide Proper and Sufficient Food - Failure to Provide Veterinary Treatment - drought - costs LEGISLATION CITED: Prevention of Cruelty to Animals Act 1979; sections 4(3), 8(3), 5(3)(C), 6(1), 4(2A) Pearce –v- The Queen (1998) 103 A Crim R R –v- Jones R –v- Wallace [2006] NSWCCA 63 R –v- Merrin [2007] NSWCCA 255 R –v- Nguyen [2007] NSWCCA 14 R –v- MMK [2006] NSWCCA 272 CASES CITED: Cahyadi –v- R [2007] NSWCCA 1 R –v- Zamagias [2002] NSWCCA 17 R –v- Barlow [2008] NSWCCA 96 R –v- Tolley [2004] NSWCCA 165 R –v- Hallocoglu (1992) 29 NSWLR 67 R –v- Wegener [1999] NSWCCA 405 R –v- Schodde (2003) 142 A R –v- Caradonna (2000) 118 A TEXTS CITED: REPRESENTATION: Mr. P. O'Donnell, of Counsel, instructed by Smythe Wozniak, Solicitors for the RSPCA Mr. Hamilton in person unrepresented ORDERS: 1. Following a defended hearing that took 14 days, including 17 April 2008, the date on which I gave my decision on the issue of guilt Mr. Hamilton, the offender, was found guilty of 102 charges of Aggravated Cruelty to Animals contrary to s. 6(1) of the Prevention of Cruelty to Animals Act 1979 (the Act), 23 charges of Failure to Provide Proper and Sufficient Food contrary to section 8(3) of the Act and 19 charges of Failure to Provide Veterinary Treatment contrary section 5(3)(c) of the Act. After hearing for reasons given on 17 April 2008 he was acquitted of 15 counts of Failure to Provide Veterinary Treatment and 2 counts of Aggravated Cruelty to Animals. 2. All matters were fully defended. Mr. Hamilton was acquitted on a relatively small number of charges. However, there can be no discount for any plea of guilty. This is not to suggest that the penalty is increased because the matters were defended, merely that there can be no discount or consideration given on sentence for any plea of guilty. I note that there was an application by the offender that these sentence proceedings be adjourned from today. The Court was informed that legal aid had been granted, and that Mr. Collery, the solicitor who appeared for Mr. Hamilton during the hearing on 30 April to 4 May 2007 had been contacted. Mr. Collery was not in attendance today 14 July 2008. Inquiries with my Court Officer indicate that Mr. Hamilton contacted the Court Office on Friday of last week and he inquired as to whether the Court had heard from Mr. Collery. The answer was in the negative. For reasons I gave ex tempore earlier today I took the view and remain of the view that Mr. Hamilton was able to tell me what he needed to do, and further, and more importantly, it is really in no one's interest that these matters be any further delayed. Facts 3. Essentially, the charges of Aggravated Cruelty to Animals were brought on the basis that Mr. Hamilton, the "person in charge" (see s. 4 of the Act) of the animals had allowed those animals to decline in condition to such an extent that it was cruel to keep them alive (see s. 4(2A) of the Act). This was the basis on which Mr. Hamilton was found guilty of those charges. Despite the large number of the charges it will be necessary for me to go through the matters in some detail to ensure that I do adhere to the principles enunciated by the High Court in Pearce –v- The Queen (1998) 103 A Crim R. On the issue of the facts I will not go into great detail. 4. All charges on which I have to pass sentence arise from various visits by RSPCA inspectors to the "Barkala Park" and other adjacent properties in the Illabo area operated by the offender. The offender's farming operation entailed the rearing of farm animals, particularly cattle for the purposes of blood collection for serum development and other scientific purposes. Inspector Gerald Rose was the principal witness for the RSPCA. He and other RSPCA officers attended the properties owned and operated by the offender at various times between early May and late July in 2005. 5. It was obvious to Inspector Rose on his initial visit that the farm was devoid of all natural pasture. Accordingly, the animals on the farm required supplementary feed. It was also obvious and I am satisfied beyond reasonable doubt that the farming properties operated by the offender were chronically overstocked, particularly given the prevailing drought conditions. 6. On their initial (and indeed also on their subsequent visits) the RSPCA inspectors found many animals in extremely poor and emaciated conditions to the extent where it was cruel to keep them alive. Section 4(3) of the Act provides that "a person commits an act of aggravated cruelty on an animal if the person commits an act of cruelty upon the animal…in a way which results in…the animal being so severely injured or in such a physical condition that it is cruel to keep it alive. I will be referring to various paddocks that were arbitrarily labelled alphabetically by the RSPCA. Exhibit 7 is a plan indicating the paddocks. It is not to scale, but it is clear enough as to the labelling of the paddocks. 7. Charges 1 to 10 are charges of Aggravated Cruelty and relate to 10 different animals found by Inspector Rose on dates between 2 and 7 May 2005, both dates inclusive. The 10 different head of cattle were in such a condition that it was cruel to keep them alive. Charge 10 relates to an animal that was found at the burial site. The accused had shot that animal and then took it to the burial site. Regrettably, the animal was not dead at the time it was dragged to the site. Inspector Rose euthanased the animals, including the one to which charge 10 relates. 8. Charges 11 to 25 inclusive are charges of Failure to Provide Proper and Sufficient Food. These charges generally relate to parts of herds of cattle or calves in the rearing sheds. The charges relate to the period 8 April 2005 to 8 May 2005. As I observed in my findings on 17 April 2008, this is obviously an arbitrary time frame of one month that was selected by the prosecution, and in effect, a period of a month prior to the RSPCA attending. There is nothing unusual, exceptional or inappropriate about this course being taken by the prosecution. The evidence in respect of these counts comes essentially from Inspector Rose. Charge 11 related to 160 emaciated cattle found in paddock A, charge 12 relates to 8 mixed cattle that were emaciated found in paddock B, charge 13 relates to 105 mixed cattle that were emaciated in paddock A, charge 14 relates to 260 mixed cattle that were emaciated in paddock P, charge 15 related to 35 mixed cattle that were emaciated in paddock R, charge 16 relates to 11 mixed cattle that were emaciated in paddock Q, charge 17 relates to 110 mixed cattle that were emaciated in paddock P, charge 18 relates to 260 of mixed cattle that were emaciated in paddock 18, charge 19 relates to 56 mixed cattle that were emaciated in paddock V, charge 20 relates to 100 mixed cattle that were emaciated in paddock A, charge 21 relates to 110 mixed cattle that were emaciated in paddock W, charge 22 relates to 147 cattle that were emaciated in Serum E yards, charge 23 relates to 170 of mixed cattle that were emaciated in Serum W yards, charge 24 relates to 100 head of cattle that were emaciated in paddock AE and charge 25 relates to 381 head of mixed cattle in the calf rearing shed. Those 381 animals were also emaciated. Accordingly, charges 11 to 25 inclusive relate to a total of 2013 animals, all of which were emaciated. Given the evidence of Inspector Rose of the condition of those animals I am satisfied beyond reasonable doubt that those animals were not supplied with proper and sufficient food. 9. Charges 26 and 27 are charges of Aggravated Cruelty on 12 and 13 May 2005 respectively. Charge 26 relates to a calf and 27 to a cow. Inspector Jackson gave evidence that those animals were seen her and Inspector Wilson (who did not give evidence). The evidence was that those animals were both cast and unable to rise. It was the opinion of the Inspectors, which I accept beyond reasonable doubt that those animals were in a condition such that it was cruel to keep them alive. 10. Charges 28 to 40 inclusive, 43 and 44, 47 to 50 inclusive, 52 to 54 inclusive, 56 and 57 are offences of Failure to Provide Proper and Sufficient Food. Charges 28 to 40 inclusive relate to one single animal each, namely a horse and relate to the period 13 April to 13 May 2005. Dr. Rast, a veterinary surgeon gave evidence as to the condition of those horses and photographs of those animals are contained within Exhibit 38. The evidence establishes to my satisfaction beyond reasonable doubt that those horses were in very thin condition, and accordingly, it is established beyond reasonable doubt that those horses were not provided with proper and sufficient food. Charges 43 and 44 relate to the same time period, but to horses found in paddock AC. Those two horses were also very thin, and I am likewise satisfied beyond reasonable doubt that they were not provided with proper and sufficient food. Charges 47 to 50 inclusive also relate to the same time period and involve a further four horses found in paddock AC that were either very thin or emaciated condition. I am also satisfied beyond reasonable doubt that those four animals were not provided with proper and sufficient food. Charges 52 to 54 inclusive relate to a three further horses found in paddock AC in thin body condition and I make the same findings in respect of those animals. Charges 56 and 57 relate to 2 stallions found in the serum yards. They were also in thin body condition and I likewise am satisfied beyond reasonable doubt that those animals were not provided with proper and sufficient food. 11. There is then a series of charges of Failure to Provide Veterinary Treatment. These are charges 59, 62, 63, 65, 66, 68, 70-71, 74-75, 78-80 inclusive, 82-83, 85, 89, and 92. These are the least serious charges on which I have to pass sentence. They relate to animals with ringworm of varying severity. This was a very live issue in the hearing. It was the case of the offender that ringworm is a condition that will, in effect, remedy itself. The expert evidence, which I accept beyond reasonable doubt, however was that for this to occur the animal needs to be in a healthy condition. This was not the case with the animals on the offender's properties. The fact remains that the offender should have obtained proper and timely treatment and professional advice for that ringworm. Some of the charges relate to conditions of dermatitis and pressure sores. The same applies to those charges, namely, that the offender should have obtained timely and proper advice, and more particularly, professional veterinary treatment. Charge 92 relates to a herd of 146 goats that were suffering from a serious and significant infestation of intestinal parasites. My findings in respect of these is set out at pp 20-21 of the findings of 17 April 2008. 12. I then come to a further series of charges of Aggravated Cruelty to Animals, namely charges 90, 94-97 inclusive, 101 –103 inclusive, 106-118 inclusive, 120, 121, 137 – 144 inclusive, 156-188 inclusive and 253-308 inclusive. All charges relate to a single animal each. Virtually all of them relate to cattle that were in such a condition that it cruel to keep them alive. Inspector Jackson gave evidence in relation to charges, 90, 94-97 and 101-103. Those charges relate to the time around the middle of May 2005. Charges 106-118 were committed between 21 May and 29 May 2005. Inspector Rose gave evidence in respect of these charges. They too relate to cattle that were in such a condition that it was cruel to keep them alive. 13. On 17 April 2008 at p. 26 lines 26-40 I said the following in respect of charges 120: I will deal with count 120 by itself. It relates to an allegation of aggravated cruelty and relates to a very young calf found in a gully. Mr Croker gave evidence of that, see para 57 of exhibit 48. More telling, however, was the video that was tendered and shown to the court, exhibit 49. If anyone had any doubt whatsoever about the truly appalling condition of that young animal they ought to see that video. I am constrained to say that any right minded citizen would have been outraged at the state of that animal. It is beyond any shadow of doubt, in my view, that it was cruel to keep that animal alive. Indeed, I am constrained to observe that death would have been a happy despatch for that wretched and unfortunate young animal. I have been truly appalled at a lot of what I have seen in this case. I must, of course, leave my personal feelings to one side and I must objectively assess the evidence. I maintain that I have done that. But I have found the evidence relating to that calf of count 120 quite distressing, as indeed, I suspect any right minded citizen would. 14. Charge 121 relates to a cow that was found in paddock U. Mr. Croker gave evidence (see para 64 of Exhibit 68) that the animal was unable to rise and the eyes were sunken into the head. There was a new born calf. White froth was coming from the nose and the breathing of the animal was laboured. Clearly, it was cruel to keep that animal alive. 15. Charges 137 to 144 relate to eight different head of cattle that were located by Inspector Rose on 25 and 26 June 2005. Each of the animals were emaciated, and in the opinion of Mr. Rose, which I accept beyond reasonable doubt, it was cruel to keep each of those animals alive. Indeed, many of the animals had created paddle marks on the ground in an effort to rise. They were obviously too weak to do so. The animals were in that condition through lack of food. 16. Charges 156 to 187 inclusive relate to 32 head of cattle (one animal per charge) and charge 188 relates to a horse. The charges relate to the time period 27 June 2005 to 4 July 2005. The animals were seen and inspected by Inspector Rose. The animals were emaciated and in extremely poor condition. The evidence of Inspector Rose, which I accept beyond reasonable doubt, was that it was cruel to keep those animals alive. The animals were euthanased. 17. Charges 253-308 relate to the period 13 to 19 July 2005. Each of the charges relates to a single animal, namely a bull or a cow or a calf. Inspectors Rose and Stockton gave evidence relating to these charges. There are also photographs of many of the animals. As I observed in my findings on 17 April 2008, to use the "hackneyed" expression, "a picture paints a thousand words". Those photographs graphically display the appalling condition in which the animals were found. The evidence, which I accept beyond reasonable doubt in respect of charges 253 to 308 inclusive, is that those animals were in such poor condition through lack of proper food that it was cruel to keep them alive. 18. This brief recitation of the facts in respect of the charges on which I now have to pass sentence in no way conveys the true enormity of the offending. The RSPCA inspectors attended the offender's properties on several occasions between May and July 2005. The inspectors, particularly, Inspector Rose gave the offender advice as to feeding and proper care of the animals. That advice was never heeded. The offender was certainly on notice that the RSPCA were watching him and were taking a very keen interest of the operation of the properties, and in particular, the feeding and care for the animals. 19. The offending entails an ongoing chronic neglect by the offender for the welfare of the animals of which he was in charge or animals that were under his custody and control. The offending involves many thousands of animals that were simply left to starve to death. As with the young calf to which charge 120 relates I am certain that death would have been a happy release for many of those animals that were euthanased by the RSPCA officers. 20. I turn now to the more recent matters to which the offender pleaded guilty of 10 June 2008. These matters are 2 counts of Aggravated Cruelty and 1 count of Failure to Provide Proper and Sufficient Food. Those offences were committed on the Illabo properties on 10 April 2007 and between 3 and 10 April 2007. The charges of aggravated cruelty relate to allowing animals to deteriorate to such a condition that it was cruel for those animals to be kept alive. The failure to provide sufficient food involves 59 cows and 20 calves being in an emaciated condition through lack of feed. Assessment of the criminality 21. The offender was either in denial of the situation with which he was confronted or was ignorant or indifferent. In the circumstances of this case it is my opinion that I do not have to make a decision as to which of these is indeed the case. It may even be a combination. As I observed on more than one occasion in my findings on 17 April 2008, anyone with the faculty of sight and a mere modicum of common sense, let alone anyone who was experienced in animal husbandry would have realised that there was a very significant problem with the lack of feed for the animals on the offenders properties. Given the fresh charges relating to April 2007 clearly the offending did not learn much from his experiences in 2005. I am fortified in this conclusion given that today I was also informed of a series of similar matters committed by the offender in Victoria. Those mattes resulted in the offender being placed on suspended sentences. 22. In all of the circumstances, I am satisfied to the requisite extent that given the enormity of the situation that the totality of the offending on which I now have to pass sentence is with the "worst case" category, or if not, extremely close thereto. The offending involves many thousands of animals, it was over a relatively lengthy period of time, and the problems should have been blatantly obvious to the offender. The properties were chronically and woefully overstocked. This too would have been obvious to a layman, let alone anyone with experience in farming and animal husbandry. However, despite the problems literally staring him in the face he sat idly by, did absolutely nothing and simply left those wretched animals starve to death. 23. It is accepted that at the relevant time the Illabo, and indeed the general Riverina/South West area was in the grip of a prolonged and serious drought. That is of no comfort to the offender. He, and other members of the farming community must understand that drought or not they have an obligation to either appropriately care for and feed their animals or they appropriately dispose of the animals, either by sale or otherwise. 24. The offender took issue at the hearing as to the conversation allegedly had between him and Inspector Rose as to his (offender's) financial status. I have no real material to assist me in that regard, apart from the fact that the offender is now bankrupt. However, even if it is the situation that the offender was in financial difficulties, that likewise offers no comfort to the offender. He still had that obligation to either properly feed, and care for his animals, or dispose of them appropriately. 25. Another substantial issue at the hearing was the "feed lot issue". The offender maintains that had the Junee Shire Council permitted the use of the feedlot then he would not be in the predicament he now finds himself. It is really a moot point as to whether that is the true situation or not. The fact remains that the Council refused permission for the use of that feedlot. Once that permission was not forthcoming the offender should simply have made other appropriate arrangements. It is not for the offender to simply maintain that his problems are all the making of the Junee Shire Council – they are not. Maximum Penalties 26. The maximum sentence for the offence of Aggravated Cruelty to an Animal contrary to s. 6 of the Act is a fine of 200 penalty units and/or imprisonment for 2 years. The maximum penalty for the other offences on which I have to pass sentence is fine of 50 penalty units and/or imprisonment for 6 months. I am able to accumulate sentences up to a maximum of five years. Pre Sentence Report 27. Given the seriousness of the offending, and the fact that Mr. Hamilton was unrepresented when the matter was last before the Court I ordered a pre sentence report. I acknowledge my gratitude to the Probation and Parole Service for the preparation of that helpful report. 28. Under the heading "Factors related to Offending" the following is recorded in the report: "The factors related to these offences proved to be complicated issues in the offender's mind. Inter alia when asked about the responsibility he felt for the condition of the animals concerned he conceded that even though most of the stock were dairy cows, who in his mind could be safely made lighter, he had gone too far in the weight reduction of these animals. Also in his mind there seems to exist a date being 28 June 2005, when he allegedly handed over the responsibility for these animals to a particular company thus lifting him from his role in the care of the remaining stock". 29. The date 28 June 2005 is the date that the company "Cowbank" became the beneficial owner of the stock. That however, as I found on 17 April 2008, in no way affected the responsibility for the offender to care for and feed the animals. At p. 27 (lines 36 – 45) of my findings of 17 April 2008 I observed: Mr Hamilton argues that because Cow Bank were in fact the beneficial owners, at least in a legal sense of ownership of the cows, that they were therefore responsible. That argument must be firmly rejected. There could be no reasonable argument, in my view, that Mr Hamilton had the care, control, and supervision of those animals. The expression "care, control and supervision" are expressions drawn from s 4, the definition section, of the Prevention of Cruelty to Animals Act . In my view, the argument that Cow Bank was responsible for the welfare of those animals is yet a further example of Mr Hamilton attempting to avoid his responsibilities in respect of those animals, and as a further example of Mr Hamilton being in nothing but complete denial about the state of his stock on that property. 30. I maintain what I said in regard to the "Cowbank" issue. I am fortified in those findings by what is also contained at p. 2 of the pre sentence report, namely, "When asked about the state of the animals that were apparently starving but remaining on his farm he was non-committal". 31. Further the report also sets out that the offender maintained to the author of the report that, "He felt the lack of a stronger farm middle management would have made a difference but again did not seem to accept his role in the building of this level of local management as part of his role as the managing director. He saw the drought's length as unexpected and blamed local authorities for not allowing an'on farm' feedlot to open". 32. Under the heading attitude to the offences the report records that, "In a last conversation with Mr. Hamilton he agreed that he did not take responsibility for the outcome with the animals to any significant degree seeing himself as doing his best. He appeared to offer no remorse but stated for the future he does not intend to be in control of grazing stock thus ensuring that a situation like this can never re occur. 33. The offender is presently living in Wagga Wagga with his mother and he plans to marry a lady who presently lives in Victoria. Although the offender is suitable for Community Service I am very firmly of the opinion that that is insufficient punishment for the offending on which I have to pass sentence. He is also suitable for periodic detention. 34. The contents of the pre sentence report simply confirms and fortifies the opinion that I reached at the end of evidence and addresses, namely, that the offender has virtually no insight into the enormity of his offending. He is all too keen to abrogate responsibility and blame other people. The fact remains that he either owned or was in charge of those animals. He therefore had the responsibility to appropriately feed and care for those animals. Criminal History 35. The offender is 50 years of age, and has a limited general criminal history. He has convictions for firearm offences recorded at the Junee Local Court on 22 May 2005. I do not consider those offences to be relevant convictions. The offender was a farmer, and as I observed in the course of my findings, a firearm is virtually a tool of trade of a farmer. 35. Of greater significance however are the convictions recorded at Junee Local Court on 14 August 2007 for offences contrary to the Animal Research Act. Those offences constitute a breach of bonds to be of good behaviour. The commission of further offences while on conditional liberty is a matter of "major aggravation" – see for e.g. R –v- Jones unrep. NSWCCA 30.6.1994 and R –v- Wallace [2006] NSWCCA 63. However, given what I have said about the firearms matters, this does not loom large as an issue in these sentence proceedings. I have previously referred to similar matters in Victoria. Today, the prosecution tendered Certificates of Convictions relating to those matters. The offender appeared at the Shepparton Magistrate's Court on 26 June 2008 and was convicted after plea of guilty to charges of Aggravated Cruelty to Animals and Failure to Provide Food/Water to an animal. He was sentenced to 6 months imprisonment, such sentence being wholly suspended. The offender continued on his offending ways. The matters of 2005 on which I now have to pass sentence cannot be said to be a "one off" series of matters or an aberration in the prevailing circumstances in which the offender found himself. Subjective matters – plea in mitigation 37. I have previously indicated that Mr. Hamilton was unrepresented in today's proceedings. Again, he acquitted himself very well, and I am satisfied that no further practical assistance could have been provided had he been represented. 38. Mr. Hamilton, when asked, took no issue with anything contained within the pre sentence report. In his plea in mitigation, the offender made two principal points. Firstly, there was the issue with the Junee Shire Council and the feedlot. Mr. Hamilton maintained that he had that feedlot facility on his property, and that he expected to be given to use that facility by the relevant authorities, particularly in the climate of the severe drought that was affecting the area at the relevant time. He made repeated requests for permission to use that facility over an 8 week period. Mr. Hamilton is firmly of the view that had he been allowed to use that facility he would not be in the predicament in which he now finds himself. He also made the point that the property was not overstocked on the basis that he had been allowed permission to use the feedlot. 39. Further on the issue of the feedlot, Mr. Hamilton submitted that he fought "savagely" for permission to use that facility. He was and remains of the view that the use of the feedlot would have been an appropriate and valid solution to the difficulties with which he was faced. However, the properties were grossly overstocked. Mr. Hamilton was always hopeful of obtaining permission to use the feedlot, but it was never guaranteed. The fact remains that even after permission was refused, the property remained grossly and chronically overstocked, and moreover, no or no adequate measures were taken to properly care for or feed the livestock on the property. However, I note that in his submissions today, Mr. Hamilton maintained that he was spending up to $20,000 per week on supplementary feed. That may well be so, but it was clearly not adequate over the time the offences on which I now have to pass sentence were committed. 40. The other principal issue was the "Cowbank" issue. That is, as stated in the pre sentence report, Mr. Hamilton was of the view that after 28 June 2005 "Cowbank" was the beneficial owner of the cattle on the Illabo property. That, with respect, is simplistic and overlooks the fact that the prosecution relied, appropriately, on the fact that it was Mr. Hamilton who was the person that had the animals in his 'custody, care control or supervision". There could be no reasonable argument to the contrary that at all relevant times the offender was the person who had the custody care control and supervision of those animals. 41. Mr. Hamilton is a man of 50 years of age. He has been involved in farming and animal husbandry for all of his working life. He presently lives with his mother in Wagga Wagga as a temporary measure pending the outcome of today's proceedings. He maintains that he would not return to raising animals. He is not in a position to acquire a farm, and further, he has no intention or desire to do so. He has an offer of employment with a company "Genecorp" at Tangalle, near Shepparton that would involve work in a laboratory. General Remarks 42. With so many charges before me it is important that I keep firmly in mind the principles enunciated by the High Court in Pearce –v- The Queen (1998) 103 A Crim R 372. I must be careful to impose an appropriate sentence in respect of each matter and then consider the issues of concurrence or cumulation or partial cumulation and the issue of totality. Despite having to consider each matter separately, and having to impose an appropriate sentence on each matter, I cannot ignore the totality of the offending with which I am dealing. All of the offending on which I have to pass sentence occurred between April and July 2005. An argument may be raised that this was simply one ongoing episode of criminality, and accordingly, any sentences imposed should be wholly concurrent .In this regard, Howie J. (Gyles JA, Fullterton J agreeing) in R –v- Merrin [2007] NSWCCA 255 said at [36]: 36 This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances. The statement of Simpson J in R v Hammoud (2000) 118 A Crim R 66 concerning the discretion of a sentencing judge in respect of the structuring of offences has to be read subject to what is required in a particular case to reflect the totality of the criminality before the Court. With respect, the Judge has simply failed to approach the structuring of the sentence according to established principle. 43. On this same issue of concurrent sentences for multiple offending, in R –v- Nguyen [2007] NSWCCA 14 at [12] Howie J. (Sully and Price JJ agreeing) said: "It seems obvious from a number of matters that have been before this Court recently, that there is abroad an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order than sentences be served concurrently or made, at least partially cumulative. There is no rule that sentences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence; see generally R –v- MMK [2006] NSWCCA 272. The position was explained in Cahyadi –v- R [2007] NSWCCA 1 as follows: "27…there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is no regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both". 44. Of course, in Merrin the Court was dealing with multiple offences of Break Enter and Steal. In my opinion, this does not detract from the matters of general principle enunciated by the Court of Criminal Appeal on the issue of the imposition of concurrent or cumulative sentences. Of significance in the matters with which I am dealing the issue of the sentence for one reflecting the criminality for the other. 45. A sentence imposed must also reflect the principle of proportionality. The Court of Criminal Appeal (Gleeson CJ, Lee CJ at CL at Hunt J (as he then was) said in the decision of R –v- Dodd (1991) 57 A Crim R 349 at p. 354: "As Jordon CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and the subjective features will vary: see for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594." 46. I am firmly of the opinion that there are real and significant issues of general and specific deterrence in this matter. The farming community as a whole must understand that adverse climatic and/or financial considerations notwithstanding they have an obligation to appropriately care for their animals, or if that is not possible then those animals must be appropriately disposed of. A message must be sent to the community in general, and the farming community in particular that large scale neglect of care and feed for animals will result in condign custodial sentences. 47. Of course, I am obliged to give proper effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. It is not appropriate to impose a custodial sentence unless I am of the opinion that no other sentence is warranted. Given the offending, and where I have found that offending sits on the scale of seriousness for matters of these types, I am very firmly of the opinion that no other sentence other than custody is appropriate. The issue then becomes whether I suspend the sentences, or alternatively, I order that they be served by way of periodic detention. 48. On the issue of suspension of sentence, in R –v- Zamagias [2002] NSWCCA 17 Howie J. said (paragraph [32]): "Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is to protect the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate." 49. Recently, in R –v- Barlow [2008] NSWCCA 96 the Court of Criminal Appeal affirmed the earlier decision in Zamagias. 50. There could be no reasonable argument suggesting that a suspended sentence is not as severe as one that is not suspended. Howie J. in R –v- Tolley [2004] NSWCCA 165 said at [22]: "A suspended sentence has often been described as a 'sword of Damocles' hanging by a thread over the head of an offender while the period of the period of the bond is current. However in R –v- Brady (1998) ABCA 7 (Alberta Court of Appeal) Fraser CJ and Cote J said at [46]: 'This metaphor exaggerates the severity of a conditional sentence. Even if a conditional sentence could be equate to a sword, it does not hang by a thread, but by a rope, and the only way that this rope can break is if the offender himself cuts it. And with each passing day of the sentence, the 'sword' shrinks until if finally becomes a butter knife'." 51. I now turn to the issue of periodic detention. Periodic Detention has long been recognised as having a significant degree of leniency built into it, and as being less severe than a sentence of full time imprisonment. Hunt CJ at CL in R –v- Hallocoglu (1992) 29 NSWLR 67 at 73 (paragraph E) said: "Periodic detention has nevertheless been recognised by this Court in many cases as having a strong degree of leniency built into it and as being outwardly less severe in its denunciation of the crime…" 52. Sperling J. in R –v- Wegener [1999] NSWCCA 405 at [31] – [33] said: "Periodic detention is substantially more lenient than full time custody for the same period. That is self-evident. Full time custody is custody for seven days a week continuously. Periodic detention is custody for two days a week periodically (which converts to community service after one third of the term has passed). The difference has been recognised in the authorities cited by James J in this case. It was also recognised by the sentencing judge when he said in the course of argument that he was imposing a longer sentence than he would otherwise have fixed because it was to be served by periodic detention It follows that, speaking generally, a term of imprisonment which is appropriate if served by full time custody would be much too lenient to be appropriate if served by periodic detention. There may be cases where that would not be so but they would be exceptional. In the result, I do not see how a court could, in the ordinary case, conscientiously make an order for periodic detention in relation to a sentence imposed in the usual way. Yet that is what the statute no contemplates will happen." 53. Bell J. (as she then was) cited that passage was cited with approval in R –v- Schodde (2003) 142 A Crim R 307 at 311 (paragraph [16]). See also the decision of R –v- Caradonna (2000) 118 A Crim R 312, especially the judgment of Dunford J. (Wood CJ at CL and Carruthers AJ agreeing) at 316 – paragraph [24]. 54. In all of the circumstances, but particularly the seriousness and extent of the offending, taken with the need for general and specific deterrence I am firmly of the opinion that only a sentence of full time custody is appropriate in this matter. However, given the offender's age, the fact that this will be his first time in custody, the fact that I have partially accumulated the sentences, and the need for supervision, I am prepared to find "special circumstances". Formal Orders 55. In respect of each of the matters that I found proved beyond reasonable doubt, namely charges 1-10, 11-25, 26, 27, 28-40, 43,44, 47-50, 52-54, 56, 57, 59, 62, 63, 65, 66, 68, 70-71, 74, 75, 78-80, 82, 83, 85, 88, 89, 90, 92, 94-97, 101-103, 106-118, 120, 121, 137 –144, 156-188, 253-308 inclusive the offender is convicted. 56. Consequent upon those convictions, I impose the following sentences: I respect of each of the charges of Failure to Provide Veterinary Treatment, namely charges 59, 62, 63, 65, 66, 70, 71, 74, 75, 78-80, 82, 83, 85, 88, 89 and 92 I impose a sentence of a fixed term of imprisonment of one month to commence on 14 July 2008 and to expire on 13 August 2008. In respect of each of the charges of Failure to Provide Proper and Sufficient Food, namely charges 11-25, 26, 27, 28-40, 43, 44, 47-50, 52-54, 56 and 57 I impose a sentence of a fixed term of four months imprisonment to commence on 14 July 2008 and to expire on 13 November 2008. In respect of the charges of Aggravated Cruelty I impose the following: On charges 1-10 inclusive and 26 and 27 a sentence of a fixed term of 9 months to commence on 14 October 2008 and to expire on 13 July 2008. I have imposed that sentence as a fixed term as I am about to impose partially cumulative sentences in respect of other charges of Aggravated Cruelty to an animal. On charges 90, 94-97, 101-103, 106-118, 120 and 121 , a sentence of a non-parole period of 9 months to commence on 14 December 2008 and to expire on 13 September 2009. Thereafter I specify a balance of term of 9 months to commence on 14 September 2009 and to expire on 13 June 2010. Parole is to be supervised. On the remaining charges, namely charges 137-144, 156 – 188 and 253 to 308 inclusive a sentence of a non-parole period of 12 months to commence on 14 February 2009 and to expire on 13 February 2010. Thereafter I specify a balance of term of 9 months to commence on 14 February 2010 and expire on 13 November 2010. Parole is to be supervised. 57. I have imposed a more severe sentence on this last group of charges because of the fact that by the time those offences had been committed, Inspector Rose and other RSPCA personnel had attended the properties on a number of occasions. The offences continued despite continued and repeated warnings from the RSPCA officials and inspectors. 58. On the charge relating to April 2007 I impose the following sentences: In respect of the charge of Aggravated Cruelty , a sentence of a Fixed Term of 9 months to commence on 14 February 2009 and to expire on 13 November 2009. In respect of the charge of Fail to Provide Proper and Sufficient Food, a sentence of a Fixed Term of Imprisonment of 4 months to commence on 14 February 2009 and to expire on 13 June 2009. Issue of costs 59. The RSPCA have been successful on the vast bulk of the matters they have brought against the offender. The small number of matters that were dismissed did not add to any significant extent to the time the matters took in Court. I am of the very firm opinion that the RSPCA is entitled to its costs. As I indicated on 17 April 2008, I am firmly of the opinion that this was an appropriate matter for the retention of Senior and Junior Counsel. Material was today tendered on the application. I repeat what I said in open Court when taking submissions, namely, that the fees charged by Mr. King SC (as he then was) were extremely modest given his ability, experience and standing within the profession. 60. The RSPCA also seek Court Costs, Witness Costs and costs pursuant to s. 30A of the Act. I am of the opinion that it is appropriate to award costs to the RSPCA in the sums sought, namely: Professional Costs $231,417-90 Court Costs $ 189-00 Witness Costs $ 8,330-16 Section 30A costs $ 10,87836 Total $250,815-42 Other Orders 61. The RSPCA also seek two further orders. The first of those being an order pursuant to 31 of the Act that an order be made prohibiting the offender from purchasing, acquiring, or taking possession or custody of any "stock animal" for a period of ten years. Given the extent of the offending on which I have just passed sentence, and noting the offences in Victoria, and noting the offences of April 2007 I am very firmly of the opinion that it is appropriate to make such an order in this case. I order pursuant to s. 31(1)(b) of the Act that Mr. Paul Hamilton is prohibited from purchasing, acquiring or taking possession or custody of any stock animal for a period of ten years from today. 62. The second order sought is an order that Mr. Hamilton, pursuant to s. 31(1)(a) of the Act be required to dispose of any stock animal on which he is in charge. Mr. Hamilton assures the Court that he has no animals in his charge. However, for the same reasons, I am of the opinion that this too is an appropriate order to make, and accordingly, I order that Mr. Paul Hamilton dispose of any stock animal of which he is in charge. Gordon Lerve Magistrate Wagg Wagga Local Court 14 July 2008 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.