The man who slaughtered six little penguins at Sulphur Creek in 2016 was back before the Devonport Magistrates Court on Thursday morning.
Joshua Leigh Jeffrey was due to be sentenced on a range of drug and driving charges, including selling a prohibited plant and evading police under aggravated circumstances.
However, on Thursday Magistrate Duncan Fairley was hesitant to sentence Jeffrey as he was concerned over the implications that may have for the man’s suspended prison sentence in the Supreme Court.
In 2018, Magistrate Tamara Jago sentenced Jeffrey to community service for killing the penguins; a sentence which was successfully appealed by prosecution and replaced with a suspended jail term by Justice Stephen Estcourt.
More than 100,000 people signed an online petition calling for a “more appropriate” sentence.
In sentencing, Justice Estcourt said aggravated animal cruelty “greatly offends the current community’s sensitivities”.
“A suspended sentence was called for and denunciation of the offending should be coupled by a significant period of community service,” he said.
The judge suspended the sentence on condition Jeffrey not commit an offence punishable by jail for 12 months.
The charges which Jeffrey has appeared on in the Magistrates Court may activate that sentence.
On Friday, July 31, Justice Estcourt expressed the view the matters in the lower court should be finalised before he considered the application.
However, that position troubled Magistrate Fairley on Thursday, who said he was “at a loss to understand as to how I am to perform my sentencing function”.
Mr Fairley indicated he was taking into account the totality principle, which ensures just punishment, in regards to the conflict between the jurisdictions.
He directed police prosecutor Constable Jason Rybarczyk to confer with Crown prosecutor Simon Nicholson as to how they wished to proceed.
The matter was adjourned to Thursday, August 20.