What the Law says about Animal Cruelty Offences in NSW

By Sahar Adatia and Jimmy Singh.

Warning to all animal lovers: This article contains sensitive content and may induce tears. Especially if you like cute, little, spikey echidnas that turn into a ball when they’re scared.

Seriously, you may want to keep some tissues ready – we sure did writing this.

On 31 July 2019, Chinese student Zhenbo Gao was found guilty to hurling an echidna from a Brisbane bridge to its brutal death at Griffith University’s Nathan Campus.

The university student admitted he carried out the act simply because he was “curious” to see whether the small creature would survive the fall.

How Chinese University Student came to Kill Echidna by Throwing it off Two-Storey Bridge

The incident occurred back in May 2018 when the 24-year-old student began stalking Australia’s native wildlife, namely capturing lizards, petting possums and chasing koalas.

At the time, Mr Gao was hunting lizards when he came across an adult echidna, shrouding in a bush.

He quickly picked up the creature before dropping it as it began to struggle, following which it balled up under a ramp and buried itself in the dirt to hide.

Mr Goa then threw rocks the size of a football to force the animal into the open.

He then picked it up a second time and tossed the fraught mammal off a two-storey bridge, simply out of his curiosity to see if would survive.

The animal did not survive, dying after landing on the concrete.

Autopsy Reveals Echidna was “Terrified”, Suffered Pain, Died from Blunt Force Trauma

An autopsy report revealed the echidna was not only “terrified”, but suffered significant pain and died from blunt force trauma.

The report said the echidna, a young adult, had broken quills, haemorrhaging around the skull area, along with extensive bruising.

“The findings of the autopsy indicate that the echidna died from blunt force trauma and would have endured significant pain and suffering, as well as fear and terror, in the process,” the statement of facts stated.

Mr Gao told RSPCA examiners that he had never seen an echidna before and so became very “curious” about it. He threw the animal from the second storey height to test its survival skills and see if it could handle the fall.

Mr Gao Pleads Guilty to Animal Cruelty, Banned from Keeping an Animal for Five Years

At Mr Gao’s court hearing, the event planning student pleaded guilty to animal cruelty, however claimed he never intended to kill the animal, but wanted to take it home and study it.

His defence lawyers told the court he was “deeply remorseful” and had brought significant shame to his family.

Mr Gao’s mother travelled all the way from China to support her son in court.

While acting Magistrate Robert Turra did not record a conviction, he did order him to serve 18 months’ probation, and perform 180 hours of community service.

“I consider this defendant to be particularly naive … with little life experience,” he said.

Mr Gao was also banned from keeping an animal for five years and ordered to pay restitution to the RSPCA.

RSPCA Disappointed: Student Avoided Spending Time in Prison for Killing “Defenceless” Animal

Meanwhile, spokeswoman for the RSPCA, Tracey Jackson, said the organisation was disappointed Mr Gao had avoided spending time in prison.

“Sometimes we question what exactly you have to do to an animal to end up in jail,” Ms Jackson said.

“This was a defenceless animal. There was no explanation for what was done to the animal except sheer curiosity, and quite frankly that is alarming.”

Differentiating Between the Various Forms of Animal Cruelty

You may think that animal cruelty simply involves overt and intentional acts of violence towards animals, however, as the RSPCA advises, malice towards creatures actually takes a variety of forms.

Along with blatant and deliberate physical force towards animals, animal cruelty also includes neglect or the failure to provide for the welfare of an animal under the person’s control.

Additionally, extending beyond mere physical harm, inflicting psychological maltreatment in the form of distress, torment or terror also signify acts unkindness towards animals.

With so many different shades of animal malice, when it comes to legislation, animal cruelty is not defined in a restricted way. Instead, it is delineated in more general terms as “any act or omission that causes unnecessary or unreasonable harm to an animal”.

Generally speaking, most animal welfare legislation outline examples of inhumaneness as a guideline. These may include:

• Torturing or beating an animal
• Confining or transporting an animal in a manner that is not suitable for its welfare
• Causing death to an animal in an inhuman way
• Failing to make adequate food or water available for an animal
• Failing to arrange for proper treatment for disease or injury
• Absence of appropriate living conditions for the animal

In NSW, animal cruelty offences are taken very seriously. All forms of animal cruelty are prohibited and animal owners are obligated to provide for the welfare needs of their animals.

In NSW, animal cruelty offences are reflected in the Prevention of Cruelty to Animals Act 1979.

The object of the Act is to prevent cruelty to animals and to promote their welfare by necessitating a person in charge of an animal to provide care for it, to treat it in a humane manner, and to ensure the well-being of the animal.

Under the Act, an animal is defined as any member of a vertebrate species, including fish, bird, mammal (other than human), reptile or amphibian.

An animal also includes a crustacean when at a place such as a restaurant where food is prepared or offered for consumption in the place or building by retail sale.

What the Law says about Animal Cruelty Offences in NSW

In NSW, the law and penalties for cruelty to animals in NSW are outlined in section 5 Prevention of Cruelty to Animals Act 1979 (NSW).

It is prohibited to commit an act of cruelty to an animal.

It’s also prohibited for a person who is in charge of an animal to authorise for an act of cruelty to be committed on the animal.

The person who is in charge of an animal is required to:

• Exercise reasonable care, control or supervision of an animal to prevent an act of cruelty to be committed upon the animal;
• Where pain is being inflicted on the animal, the person in charge is required to take reasonable steps considered necessary to alleviate the pain;
• To provide the animal with any necessary veterinary treatment (whether or not over a period of time).

The law attaches criminal responsibility to anyone who breaches these laws with a maximum penalty of 6-months imprisonment and/or up to $5,500 fine for an individual or $27,500 for a corporation.

The maximum penalty is 2-years imprisonment and/or $22,000 for an individual (or $110,000 for a corporation) for a person who commits an act of aggravated cruelty to an animal in NSW under section 6 Prevention of Cruelty to Animals Act 1979 (NSW).

These offences can therefore result in a criminal conviction which can have long lasting consequences beyond the penalty the court imposes on an individual.

An act of cruelty is expressed in section 4(2) of the Act as including a reference to any act or even omission to act as a consequence of which the animal is unreasonably, unnecessarily or unjustifiably:

• Beaten, killed, kicked, wounded, pinioned, mutilated, maimed, abused, tormented, tortured, terrified or infuriated; or
• Over-loaded, over-worked, over-driven, over-ridden or over-used; or
• Is exposed to excessive cold or heat; or
• Is inflicted with pain.

An aggravated act of cruelty is also expressed in section 4(3) of the Act, as including an act of cruelty committed on an animal in such a way that it causes the animal to die, suffer a deformity or serious disablement or the animal is so severely injured and distressed (or in such a physical state) that it’s cruel to keep it alive.

In NSW, an alternative law also prohibits a person from committing serious animal cruelty under section 530 Crimes Act 1900 (NSW). Anyone guilty of this will be faced with a maximum sentence of 5-years imprisonment if done intentionally, and 3-years imprisonment if done recklessly.

A defence to this charge is if the person commits the conduct in the course of or for the purpose of routine agricultural or animal husbandry activities, recognised religious practices, to exterminate pest animals or veterinary practice.

It is also a defence if the conduct occurred in accordance with the authority under the Animal Research Act 1985 (NSW) of any other relevant law.

Further defences are outlined in out previous blog here: Defences to animal cruelty offences in NSW.

Click here for an outline on the law and penalties for section 530 Crimes Act 1900 of serious animal cruelty offences in NSW.

According to law in NSW, a criminal conviction can only be avoided for an offence of this kind if the Court agrees to not impose a criminal record against the offender’s name by way of a Conditional Release Order without conviction or section 10 dismissal sentence.

Click here for an outline on what you should know if you represent yourself in court.

Any questions? Call our friendly team.

Our Sydney based criminal lawyers appear across all courts and offer a free first consultation.

We are available 24/7 on (02) 8606 2218.

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