Since the amendments, the frequency of penalty types imposed has shifted and the average penalties have also doubled in magnitude. However, relative to the maximum penalty no changes were observed; less than 10% of the maximum penalties are being used, regardless of the amendments. This study hypothesized that the amendments to the AWA made in 2008 have caused no significant changes to the sentencing outcomes. This hypothesis can be accepted or refuted depending on interpretation. When considering the increases to the average penalties sentenced, the hypothesis would be disproven as the amendments have doubled the average sentences. However, when considering the average sentences relative to the maximum penalties, no changes were observed, which confirms the hypothesis. The remainder of this paper will examine these results in the light of available literature, including cross-jurisdictional reports.
4.1. Shifts in Penalties Imposed
The most common penalties handed down for animal welfare offences were fines, good behavior bonds and prison sentences. Fines are generally considered the least severe option; while imprisonment is the most severe option [13
]. Good behavior bonds can be perceived as a middle ground between fines and imprisonment, as bonds generally have a sum and duration attached to them. Thus, for the purposes of this paper, fines are the least severe option, bonds are intermediate, and imprisonment is the most severe option. Due to the complexity of case sentencing, analyzing penal outcomes is fraught with difficulty. There is no absolute calculation or strict mathematical formula for handing down penalties; human (judicial) decision is determinative, yet defendant factors and circumstances will also be considered by the court. Judicial discretion is a valuable and important component of the criminal justice system, and this study does not seek to undermine this, or in any way suggest that this should not be the status quo. However, we do believe there is value in reporting objective data on animal law sentencing, in spite of the complexities of the sentencing process. For this reason, this study has outlined trends in the sentencing data without considering any factors that contributed to sentencing, such as early pleas, or mitigating or aggravating factors.
The types of penalties handed down in court for animal welfare offences have changed in the last decade, where the proportion of cases resulting in a fine has decreased, and the cases resulting in bonds and prison sentences have increased (Figure 2
). This indicates a movement from the assumed (based on definition) less severe penalties, to the more severe penalties. This change could be attributed to two possible causes: either the offences have become more heinous since the amendments and warrant harsher penalties or, that following the amendments courts are imposing harsher penalties for offences of similar severities. In order to better understand this situation, a comparison between the prevalence of types of cruelty committed before and after the amendments was conducted (Figure 3
). This analysis demonstrated that there were no differences in offence-subtype. There were more cases of negligent-type acts (omission), rather than the application of actual cruelty (commission). This finding tends to go against our first explanation for the change, and hence indicates that the courts are imposing harsher sentences. Although these results are indicative that the amendments are having an effect, we cannot be confident that these changes are due to the amendments. Changes in law, especially over a long period of time, are often multifactorial, which makes understanding the cause of change difficult. This was discussed by Freiberg and Ross [19
] regarding sentencing reform in Victoria, where they stated “attempting to explain changes in the criminal justice system is an exercise fraught with peril … The causes of change are complex, and often unknowable”. This makes it almost impossible to conclude whether the changes observed in Figure 1
are due to the amendments to the AWA in 2008 or simply due to the criminal justice system changing over time.
An argument supporting the idea that courts are imposing harsher sentences is that the magistrates appeared to be aware of the penal changes, and the intent behind them. This was noted during the 2010 South Australian case of RSPCA v Crisp
], where Magistrate Forrest stated:
“The usual outcome on a plea of guilty to this offence is the imposition of a fine. The fact that Parliament has set $20,000 as the maximum fine and that was the subject of an amendment within the last few years, I think, where the maximum financial penalty was raised from $10,000 to $20,000, the fact that Parliament did that reflects the concern of the community as to the ill treatment of animals. It is a matter which the community—and in this I include yourself—regard as being something that should be severely punished”.
However, this is only an example of one case out of the 165 cases sentenced after the amendments. Without examining all the case sentencing submissions, it remains unknown whether all magistrates had a similar approach to Magistrate Forrest, making it difficult to conclude that the amendments caused the penal changes. One way to understand this further would be through judicial interviews, to establish if the magistrates understood the intent behind the amendments and implemented it into their penal decisions.
However, when comparing the changes in penal trends observed in this study to the trends observed in other areas of law, similar results have been found. An analysis of New Zealand sentencing trends unrelated to animal law found that the use of fines declined, the use of imprisonment did not change and, as an alternative to imprisonment, the use of periodic detention and community service penalties increased [21
]. These same trends are seen in the current study, where fines decreased, imprisonment increased, and, as an alternative penalty to imprisonment, good behavior bonds increased. These trends were also observed in the UK, where imprisonment and community-based sentences increased and fines decreased [22
]. Halliday [22
] interpreted these changes as a move towards tougher sentencing, which could not be ascribed to changes in the seriousness of an offence [21
]. Previously fines would have been imposed for less serious offences, whereas now these offences receive a community-based order, which follows the trends observed in this study.
At the current time with the limited data available it is impossible to discern whether the shifts in penalties imposed are due to general changes within the criminal justice system, the 2008 amendments to the AWA, or a combination of both. Sentencing legislation is the subject of frequent reform [11
]. For example, in SA, section 10 of the Sentencing Act 2017
This means that in SA, imprisonment must only be used as a last resort, which contradicts the public’s belief, who are largely in favor of prison sentences for animal abuse [1
]. The small percentage of cases that result in imprisonment (12%) are likely due to seriousness of the offence as described in section 10 of the Sentencing Act
, and the influence of this section may also explain the increase in good behavior bonds which are given in lieu of custodial sentences.
4.2. Penalties Relative to the Maximum Penalty
Since the most significant amendment to the AWA was the increase to statutory maximums, it is important to assess the change in the average penalty relative to the maximum. The average length of custodial sentence, and value of monetary fines have doubled in magnitude since the amendments, however when taking into account the maximum penalties, which also doubled, there is no change observed (Figure 4
). On average, less than 10% of the maximum penalties are being used in court. This has not changed over the last decade regardless of the amendments.
Although there are no empirical data available in other areas of SA law, it was suggested by a former defense lawyer and South Australian police prosecutor that this poor use of statutory maximums is not exclusive to animal law [18
]. Of course, it is not realistic to expect every case of animal cruelty to be handed down the maximum penalty. However, maximums do provide the sentencing courts with a guide of the benchmark against which the gravity of that particular offence should be measured [15
]. In relation to increasing statutory maximums, the change sends a message that Parliament intended to “get tough” on people who abuse animals [11
], and it has been assumed that sterner sentences should be imposed to follow through with Parliament’s intent [13
]. However, this raises a number of questions: do we really know Parliament’s intention behind increasing the statutory maximums? Was it just a symbolic gesture to signify a movement to “get tough”? Did they double the maximum penalties knowing that only 10% of the maximums would be used, but believing that it would cause the average penalties to increase? Did they even consider the practical changes that may arise from increasing the statutory maximums? All of these questions have been posed by commentators on this subject [13
], but no studies have formally investigated ‘Parliament’s intent’. The likely case is that the ‘intent’ discussed in the literature is a subjective measure based on an individual’s viewpoint as to the change resulting from the amendments. In order to establish Parliamentary intent at the time of introducing the amendments, the best evidence that researchers can likely acquire would be from interviewing those Members of Parliament proposing, supporting and debating the bill as it passed through the Houses.
It could be argued that by only using a small percentage of the maximum penalty, especially after they were the subjects of amendment, sends a message to the public that animal abuse is not considered a serious social problem by the courts [23
]. The evidence of the link between animal abuse and human violence suggests otherwise [24
]. A growing body of literature reveals there is in fact a link between juvenile violence against animals, and later adult violence against humans. In more simplistic terms, the teenagers who actively attack the neighbor’s cat often develop into a child abuser [24
], spouse-beater [24
], or even a murderer [29
]. The weight of this link between animal abuse and human violence should be a driver for the criminal justice system to improve sentencing outcomes in order to break this cycle at the animal stage, before it progresses further. However, arguably, increasing maximum penalties is not the most efficient way to make punishments for animal welfare offences more effective; it may be a too simplistic approach.
There is a need to establish penalties that ‘better fit the crime’ in relation to animal cruelty. A number of researchers have argued that imprisonment for criminal offences satisfies very few of the punishment theory aspects, being deterrence, incapacitation, rehabilitation, retribution, and restitution [33
]. In the case of animal law, imprisonment only fully satisfies the retribution aspect, as the suffering experienced by the offender in jail compensates the suffering experienced by the animal harmed [34
]. Other aspects of punishment seem to be ignored or are not fully met. Livingston [23
] suggested that juvenile offenders should undertake psychological evaluation and treatment to reduce the likelihood of later adult violence. Sharman [6
] also noted that animal abusers are acting against social norms and demonstrate moral numbness, making them a threat for future criminal activity. For this reason she recommended that more rehabilitative measures are implemented into sentencing, such as counseling and non-violent-conflict resolution training. Although in SA, Parliament had the right intentions when increasing the maximum penalties, it appears that they are not having the intended effect, whether it was to “get tough” or increase sentencing outcomes, and different approaches should be considered when punishing animal abusers. The desired outcome should not be to increase the duration or dollar value of a sentence; it should be to reduce animal cruelty through the most efficient type of penalty. Instead of wanting an animal abuser to rot away in a jail cell for a couple of years or to financially cripple them, maybe if the courts enforced mandated counseling more frequently it may actually help the offender and reduce their likelihood to reoffend. This concept of penalties that ‘better fit the crime’ has not been extensively analyzed in animal law, but is probably the most important place to start when considering the disappointment in penal outcomes.
It is important to note that punishment itself is not the only way to reduce future offending; the certainty of being caught and punished has been identified as a more effective deterrent than the severity of the punishment [37
]. This study primarily focused on the severity of the punishment. This was due to limitations in ability to access data, since cruelty reports go to a national hotline, and thus require accessing a different agency’s records. Therefore, no conclusions can be drawn on any relationships between investigations versus actual charges, and incidence of animal cruelty. However, this topic does warrant further research, to understand if more investigations of animal cruelty/neglect are being conducted, and whether this translates to more charges being initiated. This is especially important after a legal reform that symbolizes the movement to “get tough”, such as occurred with the 2008 amendments to the AWA.
Just as Freiberg and Ross [19
] concluded almost two decades ago, it appears that penal reforms and sentencing outcomes are loosely connected. Although, the 2008 amendments to the AWA have increased the average custodial sentences and monetary fines imposed in court, it is debatable whether this is enough to reduce animal welfare offending and whether this is the effect Parliament intended, in order to “get tough” on animal abusers. Given the evidence of the link between animal and human abuse, and the ability to be more creative in sentencing under the auspices of the sentencing legislation, perhaps different approaches to penalties are now required, with a renewed focus on rehabilitation of the offender.
4.3. Is Animal Law Speciesist?
Speciesism is defined as “the unjustified disadvantageous consideration or treatment of certain individuals because they are not members of a given species” [38
]. In relation to this study, speciesism can be viewed as giving harsher penalties, and thus ascribing greater intrinsic value, to one species over the other. For example, it would be speciesist if offenders against companion animals received harsher penalties compared to those committing offences against farm animals, for a similar type of cruelty. This concept was explored in this study, by contrasting the average penalties received by both companion and farm animal offenders. It was anticipated that penalties given for offences against companion animals would be harsher compared to offences against farm animals. However, the opposite was observed, in that average penalties were found to be higher for offences against farm animals (Table 4
Studies have found that the public perceives companion animals as superior to farm animals [3
]. This is likely due to humans having a greater emotive response to companion animals, often viewing them as having greater intrinsic value (moral value), and farm animals having greater extrinsic value (worth to humans) [39
]. As a result, it would be expected that offending against companion animals would be subject to harsher penalties. However, the contrary was observed. This may be explained by the Judge holding farm animal abusers to a higher degree due to the utilitarian nature of the farming industry [39
]. To further explain, farmers have an ethical responsibility to treat their animals humanely, as it is their employment. In legal terms, the court will apply an objective test which considers whether the ‘ordinary, reasonable person in the defendant’s circumstances’ would have acted similarly [41
]. For a professional, such as a farmer, with an expert skill in this area, the test becomes elevated to the standards of ‘the reasonable professional’ in those circumstances [42
However, one problem with the preceding analysis is that there were not enough charges involving farm animals in the dataset to make a comprehensive comparison between the average penalties given between the two groups. The total number of farm animal charges (n = 55) was significantly lower than companion animal charges (n = 167). Also when considering this on a per animal basis, more farm animals (n = 1685) were the subject of cruelty charges compared to companion animals (n = 853). Despite the increased number of farm animals affected, less charges relating to them were being commenced via the initiating process. This is due, to the prosecution including multiple farm animals under a single charge of cruelty. This is likely due to the difficult and labor-intensive task of amassing the legal evidence needed to support the charge for each individual animal in a farm environment. Whereas in companion animal cases, generally a small number of animals are affected per case, and charges are brought on a per animal basis. Evidential burden is less since there are fewer animals, and each animal can be identified as an individual, which assists in maintaining the chain of custody. However, in reality this is a resourcing issue rather than a speciesism issue. Taking into account the paucity of data, our findings are not indicative of a speciesist element in animal law sentencing. However, in order to make a confident conclusion more data are required.
4.4. Demographic Trends
Establishing demographic trends in relation to animal cruelty offences will assist in resource allocation, and allow specific interventions to target groups or areas considered high-risk. Current research on demographic trends in this area either relates to the people who commit animal cruelty offences [25
], or people who have a greater empathic nature towards animals [49
]. These studies rely heavily on surveys and interviews with either members of the public [43
], or people who were incarcerated for reasons other than animal abuse [25
Currently it is accepted that males are more commonly involved in animal abuse [25
], and that females are more empathic towards animals [48
]. Interestingly, the findings in this study contradict these conclusions, as the proportion of males and females charged with animal welfare offences were equivalent (Table 5
). However, when considering specific offences, males were charged with aggravated offences more often than females, and were notably younger. We are unable to conclude whether this reflects the actual demographics of offenders in the community, is as a result of reporting/detection differences based on the type of offences, or relates to biases in charging by prosecutors. However, at face value, this suggests that males may rely on aggression more than females, as discussed by Febres, et al. [25
] when investigating animal abuse propensity by perpetrators of domestic violence. A more psychological-based research approach would be required to comprehensively understand the motives of animal abusers, and to further explain the observed gender and age effects.
A clear relationship between animal cruelty and the location of the offence was established (Figure 5
). Animal cruelty was found to be more prevalent in Adelaide’s northern suburbs. This peak in cruelty may be related to the socioeconomics of the area, as Adelaide’s northern suburbs were ranked as the most disadvantaged area in SA in the 2016 Australian Census [56
]. However, there is a need to establish this relationship further using more updated statistics, as well as documenting the socioeconomic status of each defendant. Interestingly though, the RSPCA (SA) does not target their education programs in the northern suburbs due to a lack of volunteers in that area [57
]. It is recommended that a more targeted approach towards youth education in the northern suburbs should be established, to disrupt the high rate of offending in this area.