Court of Appeal sets aside excessive animal cruelty sentence to allow suspended custodial term based on mitigating factors.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

Between/

43/15

The People at the Suit of the Director of Public Prosecutions

RESPONDENT

V

Rory O’Brien

APPELLANT

Judgment of the Court (ex tempore) delivered on the 24th day of July 2015 by

Mr. Justice Sheehan

1. This is an appeal against severity of sentence.

2. The appellant pleaded guilty to five counts on a full facts basis at Cork Circuit Court on the 4th February, 2015 and was sentenced

in respect of those counts on the 12th February, 2015.

3. The background to these offences is as follows. The appellant was indicted on 32 counts over a period commencing on the 3rd

May, 2011, and up to the 8th September, 2011, 3 offences in respect of the Welfare of Pigs under the European Communities Welfare

of Farmed Animals Regulations 2010, 2 for failing to comply with a notice under the same regulation and 27 counts of cruelty under

the Protection of Animals Act 1911. Similar charges were brought against the appellant’s wife and his employed nominated herd

keeper.

4. The trial of the three defendants was listed for the 4th February, 2015. On the morning of that day, the appellant and his co-

defendants were arraigned and all pleaded not guilty. A jury was sworn in, the appellant then offered to plead to five sample counts

on the indictment. This offer was accepted by the Director of Public Prosecutions on the basis that full particulars of the background

to the offending would be given at the sentence hearing and as a result of this, the appellant was subsequently re-arraigned on the

five counts in front of the jury and pleaded guilty to them. The charges then against his co-defendants were withdrawn.

5. The counts in respect of which the appellant pleaded guilty are as follows. Count No. 1 which was failing to take necessary steps

to ensure the welfare of animals in his care in contravention of Regulation 5(1) of the European Communities Welfare of Farmed

Animals Regulations 2010 and it is also contrary to certain statutory instruments that are part of the details of the offence and it was

also made contrary to Regulation 41(a) of the said European Communities Welfare of Farmed Animals Regulations 2010.

6. Count No. 4 which was the second count on the indictment is summarised as follows and involves failing to comply with a notice

being a welfare notice in contravention of Regulation 33(6) of the European Communities Welfare of Farmed Animals Regulations 2010,

contrary to Regulation 41(1)(b) of the said European Communities Welfare of Farmed Animals Regulations 2010 and in respect of that

it was alleged that he had failed to comply with the welfare notice dated the 7th June, relating to animals in his possession or control

or under his care.

7. In the first count, which I have read out, the details were that he failed to take all necessary steps to ensure the welfare of

animals in his possession or control or under his care namely, pigs, part of a particular herd and to ensure that the animals were not

caused unnecessary pain or suffering or injury by failing to treat or euthanize them. The three remaining counts are cruelty counts.

Count No. 11 was an offence contrary to s. 1 of the Protection of Animals Act 1911, alleged to have occurred on the 9th May, 2011,

in respect of a particular pig. The next cruelty offence related to a boar and was alleged to have occurred on the 3rd June, 2011 and

the last count was a further count of cruelty to a pig contrary to s. 1 of the Protection of Animals Act 1911.

8. The appellant has filed a number of grounds of appeal in respect of the said sentence and the court does not propose to go

through all of these grounds, save to say the following. The court does not accept that the sentencing judge erred in principle in

taking into account extraneous material given that the pleas of guilty were entered on a full facts basis which permitted counsel for

the Director of Public Prosecutions to go beyond the individual counts on the indictment in explaining to the sentencing judge the full

background to the case and the level of offending. Nor does this Court take the view that there was any onus on the sentencing

judge to obtain a probation report in this case. No application was made for such a report prior to sentence and indeed it is not clear

that such a report would have been of much assistance to the court. Furthermore, no request was made to adjourn the proceedings.

9. However, the appellant in this case is a 60 year old man of previous good character and it is this court’s view that in these

circumstances some consideration ought to have been given to suspending part of the sentence that was imposed. Secondly, in the

course of his sentencing remarks the sentencing judge stated that had the accused man been found guilty following a jury trial, he

would have imposed the maximum sentence. This indicates that the sentencing judge at the time was not prepared to give credit for

other mitigating factors apart from the plea of guilty. For example, relating to the appellant’s work history and other personal

contributions that he had made to his community.

10. The court considers that these two matters amount to errors in principle in this case and accordingly, the court will set aside the

original sentence and now proceed to sentence the appellant afresh.

11. In respect of the sentences that were imposed by the Circuit Court judge regarding the accounts that I have read out at the

beginning of this judgment, the sentencing judge imposed a sentence of eighteen months’ imprisonment on counts 1 and 4 and

sentences of twelve months’ imprisonment were imposed on each of the three remaining counts of cruelty contrary to the Protection

of Animals Act 1911. The sentencing judge directed that all these sentences run concurrently and date from the 12th February, 2015.

12. At the outset, this Court emphasises that it acknowledges that these offences are extremely serious. That goes without saying

and the facts of this case speak for themselves. However, it is undoubtedly a fact also that the appellant was under considerable

pressure over the three month period during which these offences occurred.

13. The court was told that he was effectively bankrupt and struggling to wind down his business. The appellant in this case is a 60

year old married man with a grown up family who had clearly worked hard all his life, at one stage employing up to 40 people. When he

did so, he was making a serious and important contribution to the development of a particularly important agri-industry.

14. This Court holds that a custodial sentence is necessary in this case and the view taken to that effect by the sentencing judge

was perfectly correct. However, the appellant in this case is entitled to have his personal qualities, contributions to his community

and work history also taken into account as mitigating factors.

15. Indeed, this Court also notes that since his period in prison, he has completed a number of programmes while in Loughan House

and the court has also been told that only are there no disciplinary issues but he has engaged actively with the programmes that

have been offered to him.

16. In the circumstances of this case, the court will leave the original sentence of eighteen months in place, but will, in view of all the

mitigating factors in the case apart from the plea of guilty which was factored into the original sentence of eighteen months by the

trial judge, in view of the remaining mitigating factors which the court has outlined, the Court will suspend the final six months of the

eighteen month prison sentences that were imposed in respect of counts 1 and 4 and in respect of the sentences of twelve months

imprisonment which were imposed on the remaining three counts, the Court will suspend the final four months of each of those

sentences. All sentences will be suspended on the appellant entering into a bond to keep the peace and be of good behaviour for a

period of two years from today’s date.