the first ever report on how animal cruelty is sentenced in the state. It identifies the animal cruelty offences people and corporations were sentenced for between 2008 and 2017, the sentences imposed for those offences and other offences sentenced alongside animal cruelty. It also examines prior and subsequent offending committed by animal cruelty offenders and animal cruelty offences committed in the context of family violence.The report states
Criminal proceedings involving animal cruelty offences tend to attract considerable attention from both the media and the general community. To date, however, very little research has been published on the sentencing outcomes of those offences in Victoria, or in Australia generally.
This report aims to fill that gap by providing an overview of sentencing outcomes for animal cruelty offences heard in Victorian courts in the 10 years from 2008 to 2017 (inclusive), using data provided by courts and prosecuting agencies.
In doing so, this report includes an analysis of which animal cruelty offences people and corporations were sentenced for, the sentences that were imposed for those offences and who committed those offences. This report also identifies whether animal cruelty offenders were sentenced for other offences in the same case (co-sentenced offences), whether their offending occurred in the context of family violence and whether those offenders were sentenced for other offending in the four years before and after their sentence for animal cruelty (prior and subsequent offending).
Prevalence of animal cruelty offences
Each year between 2011 and 2017 in Victoria, an average of over 11,000 animal cruelty complaints were made, nearly 900 charges were laid and nearly 400 charges were sentenced. The number of charges sentenced therefore represents approximately 3.5% of complaints made in that same time period. However, a number of legitimate reasons exist for why a complaint of animal cruelty will not result in a sentenced offence. For example, after investigation many complaints are found to be unsubstantiated and do not warrant further action. Further, RSPCA Victoria, which receives the vast majority of complaints, emphasised during consultation that their primary goal is to promote the welfare of animals, and that this is often best achieved through providing assistance and education, rather than employing a criminal justice response.
In total, 2,960 animal cruelty charges were sentenced in 1,115 cases between 2008 and 2017. The agencies that prosecuted the highest proportion of animal cruelty cases were RSPCA Victoria (53%) and Victoria Police (31%). The three most commonly sentenced animal cruelty offences were:
• aggravated cruelty, contrary to section 10(1) of the Prevention of Cruelty to Animals Act 1986 (Vic) (the ‘POCTA Act’) (25%);
• failing to provide treatment to a sick or injured animal, contrary to section 9(1)(i) of the POCTA Act (24%); and
• failing to provide sufficient food, drink or shelter to an animal, contrary to section 9(1)(f) of the POCTA Act (19%).
Overall, neglect-related offending – offenders omitting to adequately provide and care for animals –was far more prevalent than more deliberate and malicious acts of cruelty.
The majority of animal cruelty charges received a fine (60% or 1,786 charges). This is slightly higher than the overall rate for fines imposed for all offences sentenced in the Magistrates’ Court (55%). Of the 1,786 fines, 87% were part of an aggregate fine covering multiple charges (1,547 fines). For the fines that were not part of an aggregate sentence (239 fines), the average fine was $1,355, and the value of fines ranged from $100 to $20,000.
Between 2012 and 2017, 121 community correction orders (CCOs) were imposed on animal cruelty offenders (some CCOs covered multiple charges). The most common conditions attached to these CCOs were unpaid community work (73%), participation in a treatment and rehabilitation program (71%) and supervision by Corrections Victoria (53%). This is consistent with previous findings about the rate at which these same conditions are attached to all CCOs in Victoria.
A term of imprisonment was imposed in 8% of animal cruelty cases (86 cases) and on 4% of animal cruelty charges (126 charges). Of those charges, 88 were part of an aggregate sentence. For imprisonment terms that were not part of an aggregate sentence (38 charges), the average duration was three months’ imprisonment. A substantial proportion of offender appeals against a sentence of imprisonment were successful; of the 83 cases in which an animal cruelty offender was originally sentenced to imprisonment in the Magistrates’ Court, the sentence was successfully appealed in 17% of cases (14 cases), and those offenders either had the duration of imprisonment reduced (five cases) or had the sentence converted into an entirely non-custodial disposition (nine cases).
Courts also frequently imposed control orders on animal cruelty offenders. These are ancillary orders that may be imposed if an offender has been sentenced for an offence under the POCTA Act. A control order places conditions on if, and how, an animal cruelty offender may own or be in charge of animals. A control order was imposed in 20% of animal cruelty cases (228 cases), though almost none were imposed in cases prosecuted by Victoria Police (less than 1% or 3 of 330 cases). Dogs were the animal most likely to be subject to cruelty in cases in which a control order was imposed and the type of animal could be identified (54% or 116 of 216 cases). Further, in cases specifying which animal(s) the control order applied to, 38% of control orders restricted the offender from owning or being in charge of any animals (87 of 226 control orders).
Information relating to the age and gender of offenders was available in 1,019 cases (998 unique offenders). Approximately three-quarters of those offenders were male (743 offenders), approximately one-quarter were female (250 offenders) and five offenders were corporations. The average age of the 993 offenders who were natural persons was 38 years, but ages ranged from 11 years to 83 years.
There were three key differences between male and female animal cruelty offenders.
First, 7% of male animal cruelty offenders were aged under 18 years (51 offenders), but less than 1% of female animal cruelty offenders were in that same age group (two offenders). Second, 16% of male animal cruelty offenders were 60 years or older (120 offenders), but just 6% of female animal cruelty offenders were in that same age group. Third, male animal cruelty offenders were three times more likely than female animal cruelty offenders to be sentenced for both deliberate cruelty and aggravated cruelty, contrary to sections 9(1)(a) and 10(1) of the POCTA Act, representing 10% (deliberate cruelty) and 30% (aggravated cruelty) of animal cruelty offences committed by men, compared with 3% and 9% of offences committed by women.
In contrast, female animal cruelty offenders were more likely than male animal cruelty offenders to be sentenced for neglect-related offences contrary to sections 9(1)(f) and 9(1)(i) of the POCTA Act, representing 26% (failure to provide food, drink or shelter) and 41% (failure to provide treatment) of animal cruelty offences committed by women, compared with 17% and 18% of offences committed by men.
The Magistrates’ Court dealt with 95% of animal cruelty cases between 2008 and 2017 (the reference period). The most common offence types sentenced alongside a charge of animal cruelty in the Magistrates’ Court were additional animal cruelty offences (38% of cases), other animal-related offences (16%) and acts intended to cause injury (11%). In comparison, the most common offence types sentenced alongside a charge of animal cruelty in the Children’s Court were theft and related offences (51% of cases), criminal damage (35%) and public order offences (33%). Although only a small number of animal cruelty cases were sentenced in the Children’s Court (58 cases), this suggests that young animal cruelty offenders were more generalist in their overall offending, while older offenders were more likely to be sentenced exclusively for animal cruelty or other animal-related offending (such as failing to register a cat or dog).
A similar trend was observed when comparing male and female animal cruelty offenders. Male animal cruelty offenders were more generalist in their overall offending behaviour than female animal cruelty offenders and were more likely to be co-sentenced for almost every category of offence (except for animal-related offences). For example, male animal cruelty offenders were twice as likely to be co-sentenced for a violent offence (13% of cases for male animal cruelty offenders versus 6% for female animal cruelty offenders), three times more likely to be co-sentenced for criminal damage (12% versus 4%), five times more likely to be co-sentenced for theft and related offences (11% versus 2%) and 11 times more likely to be co-sentenced for offences involving weapons or explosives (7.6% versus 0.7%).
Approximately 15% of animal cruelty cases sentenced in the Magistrates’ Court in 2016 and 2017 were flagged as having occurred in the context of family violence (35 of 231 cases). Almost all offenders in those cases were male (33 of 35 cases). The most common offences in those cases were acts intended to cause injury (57 charges), bail-related offences (44 charges) and breaches of intervention orders (44 charges). In cases flagged as family violence, animal cruelty offenders were much more likely to receive serious sentencing outcomes than all animal cruelty offenders generally: 43% of those family violence offenders were sentenced to imprisonment (compared with 11% of non-family violence offenders in 2016 and 2017) and another 43% were sentenced to a CCO (compared with 9% of non-family violence offenders in 2016 and 2017).
Prior and subsequent offending
Prior and subsequent offending was measured in this report by first identifying offenders sentenced for animal cruelty in 2012 and 2013, and then examining any prior or subsequent sentences in the four years before and the four years after their index sentence. Of the 271 offenders sentenced for animal cruelty in those two years, more than half (57%) were not sentenced for any other offending in the four years before or after their index sentence. The remaining 43% were, however, sentenced on at least one other occasion.
In terms of prior offending, 14% of the 271 offenders had been sentenced for other offending in the 12 months before being sentenced for animal cruelty, and 30% had been sentenced at least once in the four years before being sentenced for animal cruelty. In terms of subsequent offending, 15% had been sentenced for other offending in the 12 months after being sentenced for animal cruelty, and 32% had been sentenced at least once in the four years following their sentence for animal cruelty. This suggests that animal cruelty offenders were slightly less likely than all sentenced offenders to reoffend within four years (prior Council research shows a 34% reoffending rate for all sentenced offenders after four years). However, a subgroup of animal cruelty offenders – those who were sentenced for deliberate animal cruelty contrary to section 9(1)(a) of the POCTA Act – were more likely to be sentenced for both prior (44%) and subsequent (46%) offending.
In addition, during the reference period very few animal cruelty offenders were sentenced for animal cruelty offending on multiple occasions. Less than 3% of animal cruelty offenders in the Magistrates’ Court (whose identity was discernible) were sentenced for animal cruelty on more than one occasion (22 of 953 offenders).The Council concludes
The report has a number of key findings:
• most sentenced animal cruelty offending is neglect-related, involving failing to provide food, drink, shelter or treatment to an animal (43%);
• at least 15% of animal cruelty offending occurred in the context of family violence;
• the majority of animal cruelty charges were sentenced to a fine (60%), and 4% were sentenced to imprisonment;
• an ancillary control order was imposed in 20% of cases, placing restrictions on if, and how, offenders can own or be in charge of animals;
• the majority of animal cruelty offenders were male (75%);
• young offenders sentenced for animal cruelty in the Children’s Court tended to be more generalist in their offending – they were co-sentenced for other offences in 84% of cases – than offenders sentenced in the Magistrates’ Court (41%);
• similarly, male animal cruelty offenders tended to be more generalist in their offending – they were co-sentenced for other offences in 49% of cases – than female animal cruelty offenders (29%); and
• just under one-third of animal cruelty offenders were sentenced for other offending both in the four years before being sentenced for animal cruelty (30%) and in the four years after being sentenced for animal cruelty (32%).
Arising out of these key findings, and from discussions with stakeholders, were three key issues that may warrant further consideration: the high rate of fines for animal cruelty offending, the importance of control orders in animal cruelty proceedings and the need to develop guidance on how animal cruelty should be sentenced, with subsequent judicial education about that guidance.
High rate of fines
During consultation, some stakeholders indicated that fines may be appropriate in some cases of animal cruelty. However, the finding in this report that fines represented more than half of all sentences imposed for animal cruelty offending was cause for concern. If the offender is a farmer who is struggling financially and, as a result, has been unable to water, feed or medicate their livestock, it would seem incongruous to further burden them with a monetary penalty payable to the state. Further, the harm and culpability inherent in deliberate acts of cruelty would tend to indicate that some form of offender rehabilitation is needed, rather than what one animal welfare researcher has described as a ‘regulatory’ response in the form of a fine.
In addition, the Council has previously found that, of all fines imposed on individuals for all offences over a nine-year period, only 53% of fines were completely paid, 7% were partly paid and 40% were not paid at all. A criminal prosecution resulting in the imposition of a fine (and possibly conviction) may demonstrate the court’s (and the community’s) denunciation of the offender’s conduct, but it is difficult to see which of the other purposes of sentencing are achieved if the fine remains unpaid.
One of the common themes in consultation with stakeholders was the importance of control orders in sentencing animal cruelty offending. These ancillary orders can prohibit offenders from owning or being in charge of animals, or place conditions and restrictions on their ownership and oversight of animals. Some prosecutors said that the imposition of a control order was the most appropriate outcome in many proceedings.
Of the 1,115 cases involving animal cruelty sentenced during the reference period, a control order was imposed in 20% of cases (228), particularly in cases prosecuted by RSPCA Victoria and DEDJTR and DELWP. ...
Many of the stakeholders consulted for this report considered that a level of inconsistency exists in how courts sentence animal cruelty offences in Victoria, in terms of both sentencing outcomes and the factors taken into account in determining sentence. The Council could not test this assertion, however, because sentencing remarks are not available for cases heard in the Magistrates’ Court. There is also limited case law in Victoria on the sentencing of animal cruelty offences.
Stakeholders did, however, suggest that some form of guidance for judicial officers (especially magistrates) about sentencing animal cruelty would be helpful in this regard.In the ACT the Legislative Assembly is considering the Animal Welfare Legislation Amendment Bill 2019, based on a 2018 Bill.
The new Objects provisions are
4A Objects of Act
(1) The main objects of this Act are to recognise that—
(a) animals are sentient beings that are able to subjectively feel and perceive the world around them; and
(b) animals have intrinsic value and deserve to be treated with compassion and have a quality of life that reflects their intrinsic value; and
(c) people have a duty to care for the physical and mental welfare of animals.
(2) This is to be achieved particularly by—
(a) promoting and protecting the welfare of animals; and
(b) providing for the proper and humane care, management and treatment of animals; and
(c) deterring and preventing animal cruelty and the abuse and neglect of animals; and
(d) enforcing laws about the matters mentioned in paragraphs (a), (b) and (c).The Explanatory Statement comments
This clause substitutes the current objects of the Act, with a new set of objects to ensure that animals are recognised as sentient beings (meaning they can subjectively feel and perceive the world around them), have intrinsic value and deserve to be shown compassion and have an acceptable quality of life, and to reflect the community’s expectations around animal welfare and the proper treatment of all animals.
Importantly, this clause reflects the five freedoms of animals and that animals have a right to both mental and physical wellbeing.
This clause also states that an objective of the Bill is to recognise that people have a duty to care for the physical and mental welfare of animals. This includes, for example, providing opportunities for a dog to exercise and experience enjoyment and behaviours that are natural to the animal. ;Section 6B deals with Failure to provide appropriate care
(1) A person in charge of an animal commits an offence if the person fails to give the animal—
(a) appropriate food; or
(b) appropriate water; or
(c) appropriate treatment for illness, disease or injury; or
(d) appropriate shelter or accommodation; or
(e) a clean and hygienic living environment; or
(f) appropriate grooming and maintenance; or
(g) appropriate exercise; or
(h) appropriate opportunities to display behaviour that is normal for the animal; or
(i) care that is appropriate for the animal’s wellbeing.
Maximum penalty: 100 penalty units, imprisonment for 1 year or both.
(3) In this section:
appropriate, in relation to an animal, means suitable for the needs of the animal having regard to the species, environment and circumstances of the animal.
The Explanatory Statement indicatestreatment includes veterinary treatment, including preventative treatment, if a reasonable person would expect veterinary treatment to be sought in the circumstances.
In summary, the Bill provides amendments to the Animal Welfare Act 1992 to:
a) update the objects of the Act to reflect contemporary views on animal welfare, including recognition of animals as sentient beings.
b) amend the governance framework for the Animal Welfare Advisory Committee (AWAC) so that the AWAC can provide advice to the Animal Welfare Authority in addition to the Minister. The Animal Welfare Authority was setup when the Act was introduced to administer the legislation, and is a Government appointed role responsible for animal welfare.
c) set out a high-level framework for regulating pet business, and specifically pet shops and boarding kennels, to assure animal welfare outcomes. This provides the ability for the Animal Welfare Authority to impose conditions on a pet business licence. These conditions could restrict things such as the source and sale of certain types of animals, for example only dogs or cats sourced from shelters, pounds or foster organisations, as needed.
d) set out a high level regulatory framework for assistance animals in the ACT that provides for the recognition, regulation and rights of access of assistance animals in the Territory, that is consistent with Commonwealth and ACT discrimination law. The Government will work with the assistance dog industry and key stakeholders to develop standards to support the new scheme, which will come into effect six months after the notification day.
e) improve the regulatory framework for the Animal Welfare Authority so that: a. the Authority can impose an interim prohibition order on a person owning or caring for animals of up to six months where there are serious concerns for the welfare of an animal or animals. This will be an appealable decision; b. the Authority can seize, retain and/or sell or rehome an animal where appropriate, similar to powers under the Domestic Animals Act 2000; and c. the Authority can impound an animal at a premises other than a Government pound (for example, keeping seized puppies with an animal rescue organisation).
f) introduce a new offence category for minor duty-of-care or cruelty offences where warnings and fines can be issued where appropriate (for example, where a person does not leave out water for their dog or kicks a dog in anger). The existing serious offences that attract significant financial and court penalties will remain and still be available.
g) make a number of amendments to introduce new or amend current offences in the Act. These include:
a. requiring a person to report the injury of an animal that is a mammal within 2 hours, rather than the current 24 hours in the Act in section 10 (for example, where a car collides with kangaroo or a dog and the animal needs urgent veterinary treatment). Existing duty of care obligations remain for a person to take reasonable steps to alleviate pain and/or suffering for all animals, including non-mammals. For example, a person who hits a bird with their car and the bird is injured is required to take reasonable steps to alleviate pain and/or suffering;
b. introducing provisions that expressly address dog fighting and allow for effective enforcement of dog fighting offences; and
c. clarify provisions around violent animal activities and ensure the prohibition of pig-dogging and other similar activities where an animal is used to intentionally injure and/or kill another animal, or where live baiting takes place, are captured. This will not prevent hunting activities more generally, the owning of hunting dogs or participation in accredited dog sporting activities.
h) increase maximum court imposed penalties for cruelty and aggravated cruelty offences.
i) expressly make it an offence for a person to leave an animal in a hot car or in other circumstances where a dog is in serious danger, and providing appropriate provision for an authorised officer or person to break into a car to rescue an animal only in reasonable and exceptional circumstances where all reasonable steps have been taken by that person and the animal’s life is in danger.
j) amend a number of existing offences to make these offences strict liability and to update penalty amounts and infringement notices where appropriate.
k) ensure provisions capture not appropriately restraining a dog in a moving vehicle.
l) provide for a regulation making power to support the operation of the Act.
m) make other minor changes to support the practical implementation and enforcement of the Act.