Behrens v Deeks - [2024] QDC 87

DISTRICT COURT OF QUEENSLAND

CITATION:

Behrens v Deeks [2024] QDC 87

PARTIES:

ANDREW JAMES BEHRENS

(appellant)
v

RUTH DEEKS

(respondent)

FILE NO:

1810 of 2021

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

7 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2023

JUDGE:

Sheridan DCJ

ORDER:

1. The appeal is allowed only to the extent that the amount of payment ordered under s 189 of Animal Care and Protection Act 2001 (Qld) is reduced to $1,784.04.

2.   The appeal is otherwise dismissed and the other orders made in the Magistrates Court are confirmed.

3.   If the parties are able to reach agreement in relation to costs, appropriate notification be provided to my associate by email.

4.   If the parties cannot reach agreement as to costs:

(a)     The respondent is to file and serve submissions as to costs (including as to the quantum thereof) by 4pm Friday 14 June 2024; and

(b)     The appellant is to file and serve submissions as to costs by 4pm Monday 24 June 2024.

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – APPEAL AGAINST SENTENCE – where appellant is charged with 8 counts of breaching duty of care to animals to take reasonable steps to provide for animals’ needs for accommodation and living conditions – where appellant convicted and sentenced on all counts – where appellant appeals conviction, sentence and prohibition order – whether Magistrate was in error

LEGISLATION:

Animal Care and Protection Act 2001 (Qld) ss 17, 189, 192
Justices Act 1886 (Qld) ss 222, 223, 224

Evidence Act 1997 (Qld) s 132C

CASES:

Allesch v Maunz (2000) 203 CLR 172
Forrest v Commissioner of Police [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
McPherson v The Queen (1981) 147 CLR 512
Parsons v Raby [2007] QCA 98
Smith v Ash [2010] QCA 112
Teelow v Commissioner of Police [2009] 2 Qd R 489

Wilson v Barraud & Anor [2021] QDC 223

APPEARANCES:
Self-represented appellant

N Boyd instructed by RSPCA for the respondent

Introduction

On 22 June 2021 the appellant was convicted, following a two day trial, of eight charges of being a person in charge of an animal and breaching his duty of care to the animal by failing to take reasonable steps to provide for the animal’s needs for accommodation or living conditions in a way that is appropriate contrary to s 17(3)(a)(ii) of the Animal Care and Protection Act 2001 (Qld) (the “ACPA”). The charges related to 10 python type reptiles and 45 quail type birds.
The appellant was sentenced to two years probation with a prohibition order made until 22 June 2024. The effect of the prohibition order was that the appellant could not possess, purchase or otherwise acquire any animal other than animals as approved from time to time in writing by the RSPCA Queensland Chief Inspector. The learned magistrate noted that approval had been given in relation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Behrens v Deeks

Details

AGLC: Behrens v Deeks [2024] QDC 87
Case: [2024] QDC 87
Decision Date: 7 June 2024

CaseChat Overview and Summary

Behrens v Deeks involved the appellant appealing against his conviction and sentence for eight counts of breaching his duty of care to animals. The appellant was charged under the Animal Care and Protection Act 2001 (Qld) for failing to take reasonable steps to provide for the animals' needs in terms of accommodation and living conditions. The appellant contested the conviction and sentence as well as a prohibition order that was imposed. The legal issues before the court were whether the magistrate erred in convicting the appellant and in the sentence imposed. The appellant argued that he was not given a fair opportunity to cross-examine, that the sentence was excessive, and that the procedure followed in the sentencing process was irregular.

The court found that there was no error in the conviction, as the evidence was sufficient to establish the appellant's guilt. The court acknowledged that the appellant had extensively cross-examined witnesses, but found that the evidence provided regarding the unsanitary conditions of the cages and lack of cleaning up process was sufficient. The court also found that the sentence, while not ideal, was not manifestly excessive. The magistrate had considered the appellant's medical condition and explanation for his actions, and the appellant had indicated a willingness to comply with probation and seek psychiatric treatment. The court held that the magistrate's decision to impose a two-year probation was appropriate given the circumstances. While the court acknowledged that the sentencing process could have been more thorough, it found that the lack of submissions on mitigation and medical information did not significantly affect the outcome.

The appeal was allowed only to the extent that the amount of payment ordered under s 189 of the Animal Care and Protection Act 2001 (Qld) was reduced to $1,784.04. The appeal was otherwise dismissed, and the other orders made in the Magistrates Court were confirmed. The court ordered that if the parties could not reach an agreement on costs, the respondent was to file and serve submissions as to costs by 4pm on Friday 14 June 2024, and the appellant was to file and serve submissions as to costs by 4pm on Monday 24 June 2024.

Orders

Orders of the court

1. The appeal is allowed only to the extent that the amount of payment ordered under s 189 of Animal Care and Protection Act 2001 (Qld) is reduced to $1,784.04.

2. The appeal is otherwise dismissed and the other orders made in the Magistrates Court are confirmed.

3. If the parties are able to reach agreement in relation to costs, appropriate notification be provided to my associate by email.

4. If the parties cannot reach agreement as to costs:

(a) The respondent is to file and serve submissions as to costs (including as to the quantum thereof) by 4pm Friday 14 June 2024; and

(b) The appellant is to file and serve submissions as to costs by 4pm Monday 24 June 2024.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The fourth matter under this ground was said to be that the appellant was not given a fair opportunity to cross-examine as to the steps a reasonable person would reasonably be expected to take to provide for the animals. The appellant, however, extensively cross-examined on this ground, and the response was that the cages were dirty and contained multiple faeces and that there was no evidence of any cleaning up process. There is no substance in this ground.Conclusions There is accordingly no basis to set aside the findings of guilt.Sentence In his written outline the appellant says that the procedure followed in the sentence hearing was irregular in that the magistrate did not hear any submissions on mitigation and did not seek from the appellant any medical information regarding his diagnosis. The appellant submits that the sentence was manifestly excessive and seeks an order that the period of probation be reduced to one year. The sentencing process commenced immediately after the decision about the offences. Submissions were made by the prosecutor about the facts. The magistrate immediately stated that the magistrate was considering a community based order; which was immediately agreed to by the prosecutor. No submissions were sought from or given by the appellant before he was asked to stand-up for sentence. At that time the appellant was asked to confirm that he was not working and then he was asked whether he thought he could benefit from a term of probation or whether he would be willing to do some community service. The appellant answered that he just wanted to do probation and indicated that he was willing to comply with such an order. The magistrate did not record a conviction but released him on two years probation. It is true that the magistrate did not hear anything in mitigation from the appellant during the sentencing process, nor seek any medical information. The magistrate did, however, have information from the hearing relating to the appellant’s medical condition, and the magistrate had the appellant’s explanation in the recordings as to how things simply got away from him in caring for the animals. It is clear that this information was in the magistrate’s mind when he offered him probation and referred to the condition that he seek psychiatric treatment as directed (on the basis that he was receiving that at the time anyhow). At the hearing of the appeal there was a lengthy and sophisticated psychiatric report on the appellant. This report explained the background and circumstances of the appellant; including not only that he suffered from ADHD and autism spectrum disorder, but also the resulting difficulties he had at school and with long term employment and relationships. Mr McKerrell recorded that the appellant had reported experiencing difficulties with self-management, including caring for animals and completing household chores, prior to receiving an ADHD diagnosis and appropriate treatment for it. This fresh evidence is consistent with what was before the magistrate.

Ratio Decidendi

Legal Principle Established

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CITATION:	Behrens v Deeks [2024] QDC 87
PARTIES:	ANDREW JAMES BEHRENS (appellant) v RUTH DEEKS (respondent)
FILE NO:	1810 of 2021
DIVISION:	Appellate
PROCEEDING:	Appeal pursuant to s 222 of the Justices Act 1886 (Qld)
ORIGINATING COURT:	Brisbane Magistrates Court
DELIVERED ON:	7 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	13 November 2023
JUDGE:	Sheridan DCJ
ORDER:	1. The appeal is allowed only to the extent that the amount of payment ordered under s 189 of *Animal Care and Protection Act 2001* (Qld) is reduced to $1,784.04. 2. The appeal is otherwise dismissed and the other orders made in the Magistrates Court are confirmed. 3. If the parties are able to reach agreement in relation to costs, appropriate notification be provided to my associate by email. 4. If the parties cannot reach agreement as to costs: (a) The respondent is to file and serve submissions as to costs (including as to the quantum thereof) by 4pm Friday 14 June 2024; and (b) The appellant is to file and serve submissions as to costs by 4pm Monday 24 June 2024.
CATCHWORDS:	CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – APPEAL AGAINST SENTENCE – where appellant is charged with 8 counts of breaching duty of care to animals to take reasonable steps to provide for animals’ needs for accommodation and living conditions – where appellant convicted and sentenced on all counts – where appellant appeals conviction, sentence and prohibition order – whether Magistrate was in error
LEGISLATION:	Animal Care and Protection Act 2001 (Qld) ss 17, 189, 192 Justices Act 1886 (Qld) ss 222, 223, 224 Evidence Act 1997 (Qld) s 132C
CASES:	Allesch v Maunz (2000) 203 CLR 172 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 McPherson v The Queen (1981) 147 CLR 512 Parsons v Raby [2007] QCA 98 Smith v Ash [2010] QCA 112 Teelow v Commissioner of Police [2009] 2 Qd R 489 Wilson v Barraud & Anor [2021] QDC 223
APPEARANCES:	Self-represented appellant N Boyd instructed by RSPCA for the respondent