Beattie v Croatto
[2017] ACTSC 98
•3 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Beattie v Croatto |
Citation: | [2017] ACTSC 98 |
Hearing Date: | 3 May 2017 |
DecisionDate: | 3 May 2017 |
Before: | Elkaim J |
Decision: | See paragraph [19] |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against sentence – whether the sentence imposed was manifestly excessive. |
Legislation Cited: | Animal Welfare Act 1992 (ACT) ss 8 and 101 |
Cases Cited: | Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | Shay Michelle Beattie (Appellant) Catherine Croatto (Respondent) |
Representation: | Counsel Ms M Voleynik (Appellant) Mr C Wanigaratne (Respondent) |
| Solicitors Aboriginal Legal Service (NSW/ACT) Limited (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 83 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 9 November 2016 Case Title: RSPCA v Beattie Court File Number: CC 40434 of 2015 |
ELKAIM J:
On 3 November 2015, the appellant pleaded guilty to the offence of failing to provide an animal with appropriate sustenance contrary to s 8(2)(a) of the Animal Welfare Act 1992 (ACT) (the Act).
On 9 November 2016, the appellant was sentenced by Magistrate Boss, sitting in the Galambany Circle Sentencing Court, as follows:
(i)A good behaviour order for a period of 24 months, with a condition to perform 100 hours of community service work;
(ii)Reparation to be paid to the RSPCA (ACT Inc) in the sum of $1,385 within 12 months;
(iii)The appellant not to keep, care for or control any animal for 10 years.
On 21 November 2016, a notice of appeal against sentence was filed. The single ground of appeal is: the sentence was manifestly excessive.
The maximum penalty for the offence is 100 penalty units or imprisonment for one year or both. In addition, pursuant to s 101(2) (b) of the Act, the Court may also impose an order to reimburse the Territory for expenses incurred in relation to the care of the animal which is the subject of the offence. Further, s 101(3) allows the Court to make an order, as it thinks appropriate, that the offender must not purchase or acquire an animal, or keep, care or control an animal for a certain period.
Whether a sentence is manifestly excessive has been the subject of much judicial observation. For present purposes, I think it sufficient to quote from the judgment of the ACT Court of Appeal in Zdravkovic v The Queen [2016] ACTCA 53 at paragraph [51] and [52]:
51. A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdalev The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaarv The Queen [2012] ACTCA 26 at [61].
52. When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarianv The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.
Cruelty to animals must be taken seriously. The dog, Thug, was obviously in need of nourishment when first identified, and seized, on 17 June 2014. On 9 July 2014, the RSPCA returned Thug to the appellant on her assurance that he would be well cared for. This undertaking was not honoured.
On 18 November 2014, a RSPCA Inspector found Thug in a poor condition and living in parlous circumstances. Thug was again seized and properly fed. He returned to a healthy weight.
There is no suggestion that Thug needed to be ‘put down’ or suffered any lasting injury.
The failure of the appellant to look after Thug following the first seizure is obviously an aggravating factor that the Magistrate was entitled to take into account in sentence. Her Honour was also, appropriately, influenced by the dependence an animal has on its owner for its upkeep. As her Honour noted:
The animal is not able to go down to the shops and buy a bone or a can of food, it can’t open a can of food in the cupboard. They rely completely and utterly on you for the care. And if you fail to fulfil that obligation then you are accountable for what results.
The Court Duty Report that was placed before her Honour listed a number of subjective factors of mitigation. They included the appellant’s care for her infant son, her unemployment, her poor financial circumstances, her past difficulties with drugs and a former diagnosis of Post Traumatic Stress Disorder.
Although the appellant had a previous conviction relating to the neglect of a child, there was nothing in her criminal record indicating any similar offences.
In its written submissions, the respondent submitted that “the manifest inadequacy of the offence is evident upon consideration of all the relevant factors that went to the imposition of the sentence”. I agree. Taking this approach, I am of the view that the sentence was manifestly excessive.
The requirement to do community service, the imposition of a relatively large fine on a person who is struggling financially and a very long ban from caring for any animal, all result in an overall sentence that, in my view, is excessive to a degree that warrants interference.
The respondent, again correctly, noted that:
[W]hile it is not suggested that offences with respect to animals should be set on par with offences with respect to humans, it is still the case that animals, like humans, are able to feel pain, suffering and distress.
Arguably however, the appellant received a lesser sentence for the neglect of her child.
Having reached a conclusion that the sentence is manifestly excessive, I will set aside the orders made by the Magistrate.
It is now necessary for me to re-sentence the appellant. There are no relevant comparable judgments.
I think that the reparation order imposed by the Magistrate is appropriate because it represents the monies spent in the restitution of the dog to a healthy state. I also think that a period of community service is appropriate to reflect the attitude that must be taken to the maltreatment of animals.
Taking into account all the matters I have set out above, including the facts of the offence and the mitigating factors, I make the following orders:
(a)The appeal is allowed.
(b)The sentence imposed by Magistrate Boss on 9 November 2016 is set aside.
(c)In lieu thereof the appellant is sentenced as follows:
(i)The appellant is to enter into a Good Behaviour Order for a period of 2 years, commencing on 3 May 2017 and ending on 2 May 2019, with a condition that she perform 50 hours of community service work.
(ii)The appellant is banned from keeping, caring for or controlling any animal for a period of 2 years, commencing on 3 May 2017 and ending on 2 May 2019.
(iii)The appellant is to make reparation to the RSPCA in the amount of $1,385, that sum to be paid within 12 months of today’s date.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 3 May 2017 |
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