THE fourth and final man charged following the horrific torture and killing of a kangaroo last year has been jailed, with the magistrate sending a clear message that being associated with such behaviour had severe consequences.
Ben Jaydon Malpuss (27), of Woodvale, faced Joondalup Magistrate’s Court on Tuesday morning flanked by family members who wept as Magistrate Sandra De Maio sentenced him to six months in prison for the “ill treatment of an animal”, as well as a further three months for his role in an unrelated incident in Craigie where he shot a gel blaster gun at pedestrians.
The conviction followed the close of the trial last week after Malpuss admitted to being “present during the commission of the offence but not physically taking part” and that the kangaroo was alive when the video was filmed.
Though Malpuss did “not strike any blows” to the animal, Ms De Maio found him to be “a willing party” to the crime, with a “snapshot” from mobile phone footage showing him “smiling, laughing and quite clearly holding a light possibly to film or assist in illuminating the area”.
Laughing can also be heard in the background as well as “specific directions of where to strike and where to avoid”.
Ms De Maio said while it cannot be inferred who is laughing and speaking, the footage shows Malpuss was “in very close proximity to the principal offender” and his actions inferred he was “enjoying what he was seeing”.
“You were part of a cohesive group who were brutally attacking a small kangaroo,” Ms De Maio said.
“The animal was severely injured but they continued with forceful blows to the head trying to cause its eye to explode.
“The extreme and unrelenting brutality of the assault is horrifying.”
Ms De Maio said while the footage did not show how long the “horrific episode” lasted or how long Malpuss was there, it did show he was present “at some point”.
“That short time is horrific enough on its own,” she said.
“The brutality is distressing but he (Malpuss) is not distressed.”
She said Malpuss’s “apparent enjoyment” and that he was holding a light “clearly defined a bond” between Malpuss and the principal offender.
“You were not passive to the crime, you provided intentional encouragement,” she said.
This followed defence lawyer Mark Gunning’s submissions last week that Malpuss was “not the principal offender” and he could only be criminally responsible if he “intentionally aided” the offending.
“Mere presence does not amount to aiding,” he said.
“There must be some amount of assistance or encouragement.”
However, the prosecutor said Malpuss was “voluntarily and deliberately” present during the crime “without opposition or dissent”, therefore he was a party to the crime.
He said the offending was “so egregious” and “intolerable on any human level” and there were “no words to describe how horrific” it was.
“Lack of opposition in the face of intolerable behaviour amounts to wilful encouragement,” he argued.
Ms De Maio said general deterrence had a “hefty weight” in her sentencing decision.
“A clear message must ring out that if you are associated with the behaviour you will be dealt with severely by the courts even if you did not strike a blow,” she said.
Taking in to account his remorse, conduct during the trial and admissions made, character references, and that he had handed himself in to police, though some time after the offence, she sentenced him to an immediate term of six months in jail.
The prison term follows jail terms handed down to the three other men charged over the kangaroo torture: Luke Kevin Dempster (27), of Wanneroo, Dylan Leslie Griffin (23), of Bullsbrook, and Ricky Ian Swan (29), of Aveley.
However, Mr Gunning said each person’s participation in the crime was “starkly different” as were their criminal records, with Malpuss having no previous record and not involved in the physical assault on the kangaroo.
On Friday Ms De Maio requested clarification of Swan’s 12-month sentence, which was made up of two animal cruelty attacks, following the suggestion it might have been suspended.
On Tuesday the prosecution confirmed Swan was sentenced to 12 months, serving five months immediately and having the last seven months suspended.
Ms De Maio said this showed parity “does not come in to play” in her sentencing decisions but she had “not completely ignored it”.
She said Swan’s sentence was “not in line with the other two” and she believed it was “too light”.
Mr Gunning said Malpuss “found himself in a position where he had an interest in cars and motorbikes” and that was how he “got acquainted” with the other three men.
However, Ms De Maio said Malpuss could not “hide behind getting involved with the wrong crowd and being led by them”.
“Even after the incident, you stuck with the group, with the gel blaster assault happening almost four months later,” she said.
“You chose that crowd and continued to be involved with them and that was a deliberate decision.”
Malpuss was also sentenced to a further three months in jail for his role in the unrelated incident in Craigie in September 2018 where he was the passenger in a car being driven by Dempster and shot water pellets from a gel blaster gun.
The prosecutor said the incidents happened on Camberwarra Drive at 5pm, resulting in three charges of common assault, of which one was in circumstances of aggravation because it involved a child.
The court heard Malpuss fired several times at a man who was “out walking and minding his own business”, hitting him in the right shoulder, then the same to a lady walking a dog with her partner, hitting her in the left upper arm.
He then saw a man, who was with his eight-year-old son, getting out of his car and slowed down to fire up to 10 pellets, hitting him in the chest and stomach.
While none suffered serious injuries, the prosecutor said there would have been a “massive psychological impact” on the victims.
“It was an unknown car slowing down, then a gun is stuck out the window and discharged,” he said.
Mr Gunning said Malpuss envisaged the gel blaster shootings as “more of a practical joke” and “skylarking” rather than intending to hurt the victims.
“He realises now it was completely inappropriate,” he said.
However, Ms De Maio said Malpuss was “too old to be skylarking”.
“What causes a young man who has everything going for him to become friends with such violent and aggressive people,” she said.
“And to discharge a gun at people going about their business. It astounds me.”
She said at 27, Malpuss could not rely on youth as part of his defence.
“You don’t have much of the young but a lot of the stupid,” she said.
“I’m struggling to understand how on Earth you thought that would be funny.”
“The victims would not have known it was not a real gun.
“It must have hurt on impact, even if only momentarily, but the fright they would have endured goes beyond the momentary pain particularly for the child seeing what looked liked his dad being shot at.”
Ms De Maio sentenced him to three months for the common assault in circumstances of aggravation, to be served on top of the six months for animal cruelty, and two months each for the common assaults, which will run concurrently.
Malpuss had also been charged with three counts of discharging a firearm to cause fear but these were dismissed on Friday.
Mr Gunning therefore requested he be reimbursed costs of $1200 to cover these, which was granted.
Mr Gunning had also made submissions on Friday for a spent conviction but given the jail term imposed, this was automatically refused.
Malpuss will be eligible for parole halfway through his nine-month sentence.