BARILLA v RSPCA No. SCGRG-99-135 Judgment No. S80

[1999] SASC 80

BARILLA v RSPCA

SASC [1999] 80

Criminal

Debelle J (ex tempore)

1. On the 14 January 1999 Mr and Mrs Barilla pleaded guilty in the Elizabeth Magistrates Court to the offence of ill-treating a dog so as to cause it pain, suffering and distress contrary to s13(1) of the Prevention of Cruelty to Animals Act 1985.  Each was convicted and fined $200.  In addition, they were ordered to pay costs amounting to $280 and to pay the Royal Society for the Prevention of Cruelty to Animals (SA) Inc (“the RSPCA”) the sum of $1510 for the cost of care and treatment of the dog including fees paid to a veterinary surgeon.  The RSPCA had been the complainant in this matter. 

2. There are two appeals before the court arising out of the orders made by the magistrate on 14 January.  The first is an appeal by Mr and Mrs Barilla against the order of the magistrate recording a conviction.  I will call Mr and Mrs Barilla “the appellants”.  The second is an appeal instituted by the RSPCA against the penalties which were ordered on the ground that they are manifestly inadequate.  The RSPCA also appeals against the refusal of an order that the dog be surrendered to it. 

3. On 21 August 1998 an inspector employed by the RSPCA visited the appellants’ premises at Munno Para.  She saw the dog in a condition she described as “extremely emaciated”.  It appeared to the inspector that the dog, which is a German Shepherd/Great Dane cross, needed urgent veterinary assessment.  The inspector decided to seize the dog for treatment and care.  The dog was taken to a veterinary surgeon who reported that the dog was malnourished, that it weighed some 29 kg when it ought to have weighed 45 to 50 kg, that it was unsteady on its feet due to malnutrition, that it had an ulcerated skin condition, and that it had a severe flea infestation.  When the RSPCA took the dog to the veterinary surgeon on 4 November 1998 it had increased in weight by some 35 per cent to 39.6 kg.  By that time the flea infestation was under control, the ulcerated skin condition had healed, and the dog was brighter and steadier on its feet. 

The First Appeal

1. I deal first with the appellant's appeal that the magistrate erred in refusing not to record a conviction. The recitation of the shocking condition of the dog is reason enough for dismissing the appeal. Although the appellants are self-employed, have a good character, have no prior relevant convictions and keep one other dog which is in good condition, the course of offending displays a callous disregard for the health and condition of the dog. The appellants were aware of the condition of the dog since at least June 1998. It must have been readily apparent to them the dog was suffering. When the RSPCA inspector called on 21 August, the female appellant said that she and her husband were waiting for the dog to die. They believed that it was dying for reasons unassociated with nourishment. However, they had not taken the dog to a veterinary surgeon in the previous two years. Ordinary decency and humanity required that at least that course be taken. At the very least, a veterinary surgeon could have put the dog down as an act of kindness to alleviate further suffering. This was not a trifling offence. I have regard to the provisions of s16 of the Criminal Law (Sentencing) Act 1988 but the appellants have not demonstrated that they are in any way entitled to an order pursuant to that provision. The magistrate considered whether it was appropriate not to record a conviction but in the exercise of his discretion decided to do so. Counsel for the appellants has not in any respect demonstrated the magistrate erred in the exercise of his discretion to convict the appellant. The appeal is dismissed.

The RSPCA Appeal

1. The principles relating to the prosecution of appeals against sentence or other penalties are well established.  A court must approach such cases with caution with due regard to the principles enunciated in Everett v R (1994) 181 CLR 295 and R vOsenkowski (1992) 30 SASR 212. As Doyle CJ observed in Police v Cadd (1997) 69 SASR 150 at 158 there is no difference in substance between what the High Court said in Everett and what King CJ said in Osenkowski.  The proper role for prosecution appeals is to enable the courts to establish and maintain adequate standards of punishments for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience:  see Osenkowski at 313.

2. The maximum penalty for this offence is a fine of $10,000 or imprisonment for 12 months.  The seriousness with which Parliament regards this offence is plain.  The appellants have received a penalty very much at the lower end of the scale.  This was not the most serious kind of offending but it was on any view a shocking offence.  A grave view had to be taken of the appellants' callous disregard for this dog's welfare which resulted in it being in a seriously emaciated condition.  Plainly the appellants were not caring for the dog and were ignoring its sorry plight.  The animal was clearly suffering.  It was an offence which called for a substantial penalty. 

3. The effect of the orders made by the magistrate is that the appellants are required to pay an amount of almost $2,000 for this offending.  The order for compensation was made pursuant to s53 of the Criminal (Sentencing) Act 1988, which can only be made where injury, loss or damage results from the commission of the offence.  It is not entirely clear from the reasons of the learned magistrate whether he has had regard to the totality of the amount to be paid by the appellants when fixing penalty.  The only remarks which he made which bear upon that issue, were made in the context of some remarks made as to the future care of the dog.  Noting the submission of Mr Scragg, who appeared for the appellants, he said:

   “Mr Scragg has indicated that you are prepared to conduct yourselves in that manner, and I have proceeded in setting the penalty and making my other remarks on that basis.”

The reference to “conduct yourselves in that manner” was a reference to the fact that the appellants, through their counsel, gave an undertaking that the dog would be regularly examined by a veterinary surgeon.  It is possible to construe these remarks as indicating that the learned magistrate had regard to both the fines and the order for compensation when determining what was an appropriate penalty.  When the matter is viewed in that light, it is difficult to say that the penalties which were imposed were of a kind which were so disproportionate to the seriousness of the crime as to shock the public conscience and which would require the intervention of this court to correct the penalty. 

1. Obviously magistrates must take a very serious view of this kind of offending.  In ordinary circumstances a fine of $200 would I think be manifestly inadequate for this offence.   Reference to other cases suggests that, as a general rule, the penalties which are ordered are considerably higher.  This is the decision of an experienced magistrate.  I have already referred to the fact that his reasons suggest he has taken a global view of the matter and considered that a penalty of $2000 to this family was, in all the circumstances, adequate.  For those reasons, whilst I have some misgivings about the adequacy of this penalty, I do not think this is an appropriate case in which to intervene. 

2. The RSPCA has also appealed against the magistrate's refusal to make an order pursuant to s36(1) of the Prevention of Cruelty to Animals Act directing that the appellants surrender the dog to an RSPCA inspector.  Section 36(1) provides:

   “Where the owner of an animal is convicted of an offence against this Act in respect of the animal, the court may make an order -

   (a)      directing that the person surrender the animal to an inspector; and 

   (b)...... forbidding the person to acquire, or have custody of, any other animal or any other animal of a specified class, either until further order, or for the period specified in the order.”

The purpose of s36(1) is preventive rather than punitive.  It is to prevent people who cannot be trusted to care for animals from having custody of them.  The power conferred by this section is to be exercised in order to prevent further cruelty to animals: see RSPCA v Streeter and Whiteley  (unreported, 29 August 1997, King CJ, Judgment No S6332) at p5. 

1. The magistrate had regard to the fact that the appellants take good care of another dog which is kept inside the house.  He concluded that the appellants were capable of looking after the dog subject of these proceedings but had neglected to care for it with the same care and attention provided to the other dog.  He did not believe the case was so serious that he should order that the dog be surrendered to the RSPCA.  He believed that the proceedings would jolt the appellants into taking proper care of the dog.  As already mentioned, the appellants, through Mr Scragg, had undertaken that they would have the animal examined weekly by a veterinary surgeon at Gawler.  The magistrate noted that intended course of action, but suggested a monthly attendance might suffice. 

2. I do not think there is any ground for interfering with the magistrate's exercise of discretion.  The magistrate had been informed that the appellants and their children had gone to see the dog in each week while it was in the custody of the RSPCA.  That involved a journey from Munno Para to Lonsdale for much of that time.  That is an indication of their affection for the dog.  There was evidence upon which the magistrate could accept that the appellants had both learned their lesson and would not neglect the dog again.  Furthermore, the appellants have today indicated through Mr Scragg that they are willing to permit an inspector of the RSPCA to visit their premises from time to time during ordinary business hours for the purpose of ascertaining the condition of the dog. If, on inspection, the RSPCA ascertains that the dog is being mistreated, it is open to the RSPCA again to prosecute the appellants and, if a conviction is secured, there is every likelihood that an order for the surrender of the dog would be made.  I think the appellants are entitled to demonstrate that they are capable of looking after this dog for the reasons that I have mentioned. 

3. The appeal by the RSPCA is also dismissed. 

4. The orders will be:

5. The appeal by Stefano Barilla and Grace Maria Barilla is dismissed. 

6. The appeal by the RSPCA is dismissed. 

7. No order for costs on either appeal.

8. Stephano Barilla and Grace Maria Barilla will permit an inspector of the RSPCA to visit their premises from time to time to inspect the dog the subject of these proceedings.