Behrens v Deeks

[2025] QCA 158

SUPREME COURT OF QUEENSLAND

CITATION:

Behrens v Deeks [2025] QCA 158

PARTIES:

BEHRENS, Andrew James
(applicant)
v
RUTH DEEKS
(respondent)

FILE NO/S:

CA No 150 of 2024
DC No 1810 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane – [2024] QDC 87 (Sheridan DCJ)

DELIVERED ON:

29 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2025

JUDGES:

Bradley and Doyle JJA and Martin SJA

ORDERS:

1.   Application for leave to appeal against sentence is refused.

2.   The applicant is to pay the respondent’s costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – where the applicant was found guilty of eight offences of failing to take reasonable steps to provide for the care needs of animals following a two day trial in the Caboolture Magistrates Court – where irregularities occurred in the sentencing process in that Court – where the applicant appealed his conviction, sentence and prohibition order to the District Court – where that appeal was allowed in part to reduce the contribution towards veterinary fees – where the primary judge made an order as to costs in favour of the respondent but otherwise confirmed the sentencing of the Magistrates Court – where the applicant applies for leave to appeal from the District Court pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the applicant contends that the sentencing discretion miscarried because of irregularities in the Magistrates Court and on the basis that the individual components of his sentence were onerous and that in aggregate they were excessive – whether the applicant has demonstrated that the primary judge erred

Animal Care and Protection Act 2001 (Qld), s 17(3)(ii)
District Court of Queensland Act 1967 (Qld), s 118(3)

Smith v Woodward[2009] QCA 119, cited
Williamson v Betterlay Brick and Block Laying Pty Ltd (2020) 3 QR 594; [2020] QCA 52, cited

COUNSEL:

S J Cartledge for the applicant
D M Caruana for the respondent

SOLICITORS:

Gnech and Associates for the applicant
Jasper Fogerty Lawyers for the respondent

1. BRADLEY JA:  I agree with the orders proposed by Doyle JA and with his Honour’s reasons.

2. DOYLE JA:  The primary application before the Court is an application for leave to appeal against the sentence imposed on the applicant in the Magistrates Court as subsequently modified by order of the District Court.  The application is opposed.

3. Additionally, the applicant (Mr Behrens) has applied for leave to adduce further evidence on the hearing of his application in the form of an affidavit of his solicitor providing information relating to the state of his finances.  That leave is not opposed.  The application for leave to appeal has recently been amended and leave, if required, is not opposed.

4. The applications to amend and to admit further evidence are allowed.  These reasons will address only the application for leave to appeal.

Background

1. After a two-day trial in the Caboolture Magistrates Court, on 22 June 2021 Mr Behrens was found guilty of eight offences of failing to take reasonable steps to provide for the care needs of animals, contrary to s 17(3)(ii) of the Animal Care and Protection Act2001 (Qld). He had initially been charged with a further 19 like offences, 17 of which were discontinued prior to the trial and the remaining two discontinued prior to the close of the prosecution’s case.

2. He was sentenced to a probation order for a duration of two years, an order prohibiting him from keeping animals for a period of three years, he was ordered to pay $2,375.00 in prosecution costs; $101.80 costs of the issue of the summons; and pursuant to s 189 of the Animal Care and Protection Act, a sum of $2,000.00 as a contribution towards veterinary fees which had been incurred in respect of the animals.  All of the financial sums have been referred to the State Penalties Enforcement Registry (SPER) for collection.

3. The Magistrate ordered that no convictions be recorded.

4. Mr Behrens appealed against his convictions, the sentence and the financial orders to the District Court.  In that court, the appeal was allowed in part to reduce the contribution towards veterinary fees to an amount of $1,784.04 but was otherwise dismissed with an order that Mr Behrens pay the costs of the appeal in a further sum of $2,730.00.

5. On 5 July 2024 he filed an application for leave to appeal to the Court of Appeal against his convictions and all other orders that had been made.  The application for leave to appeal against his convictions has since been abandoned.

Nature of issues raised

1. The substance of the case which the applicant seeks to make out is that the individual components of the sentence imposed were onerous and that in aggregate they were excessive.  Further, it is contended the sentencing process was flawed such that this Court should exercise the sentencing power again and more favourably to the applicant.

2. The material available in the courts below shows he did not have a history of secure employment.  It also identified his medical conditions as including attention deficit hyperactivity disorder, autism spectrum disorder, moderate anxiety and depressive disorders.  It was accepted that he would have an impaired ability to conduct his defence (or appeal) as a consequence.  The further material establishes that Mr Behrens has no savings and no personal property of value.  He now receives disability support and rental assistance payments of a sum which just meets his known expenses and modest living expenses.

3. It is common ground that the Magistrate proceeded to sentence Mr Behrens immediately following announcing the findings of guilt without inviting any submissions from him in respect of the sentencing.  Matters of his prior good conduct and his financial and personal circumstances might have been addressed if such submissions had been sought.

4. The Magistrate, however, merely asked him to confirm that he was not in employment and then asked whether he thought he would benefit from probation or whether he was willing to do community service. The applicant indicated a preference for the former. The Magistrate did not explain the nature of probation orders to the applicant or have him agree to the making of that order, as provided for in ss 95 and 96 of the Penalties and Sentences Act1992 (Qld).

5. The District Court judge concluded (correctly) that this was an irregular means of proceeding, but her Honour concluded that the Magistrate already knew of Mr Behrens’ history and medical conditions and that it was unlikely anything further might have been said that would make any difference to the result.  Moreover, on the appeal to the District Court the applicant relied on an extensive psychiatric report which detailed his medical conditions and some of the impact of this on his engagement in employment.  The judge concluded that, having regard to those matters, she would not have arrived at any different order to that imposed by the Magistrate.[1]  That is, the finding of the court below is that had her Honour exercised the sentencing discretion herself the outcome would have been no different.

   [1]Behrens v Deeks [2024] QDC 87 at [92], [99], [116].

6. It was accepted on the appeal in the District Court that the amount of $2,000.00 contribution towards veterinary costs which was ordered by the Magistrate, while something of an estimate, overstated the correct sum and this was corrected by the orders made in the District Court.

7. The costs order which was made in the District Court is said to have been unwarranted because of the partial success which Mr Behrens enjoyed in his appeal to that court and otherwise because of the hardship to him of the combination of those costs and all of the other financial sums he had been ordered to pay.  No reasons have been given for the costs order made by the District Court judge.

Principles applicable to leave application

1. By s 118(3) of the District Court of Queensland Act1967 (Qld), a party dissatisfied with a judgment of that court, including in its appellate jurisdiction, may only appeal to this Court with leave of the Court of Appeal.

2. The respondent referred to the guidance provided in Williamson v Betterlay Brick and Block Laying Pty Ltd(2020) 3 QR 594 as to the exercise of the court’s power to grant that leave. Philippides JA (with whom Morrison JA and Applegarth J agreed) said of the operation of s 118(3):

   “[25] While the Court’s discretion to grant leave pursuant to s 118(3) [of the] DC Act is unfettered, leave to appeal against a decision of the District Court in its appellate jurisdiction will not be given lightly. Given that the applicant has already had the benefit of two judicial hearings, more than mere error is ordinarily required to justify the granting of leave to appeal. Accordingly, the applicant must demonstrate that an appeal is ‘necessary to correct a substantial injustice and there [is] a reasonable argument that there was an error to be corrected’. Furthermore, in determining whether there is substantial injustice, the Court will generally consider ‘whether the issue is a matter of public or community importance; whether the case involves a question or principle of general importance; or whether the matter considers an important point of law’.”

3. It was not submitted that some other approach should inform the grant or refusal of leave in this case.  That said, I would reserve for some more appropriate case determination of whether the formulation of the guidance provided in the above passage (beyond noting the discretion is unfettered) represents the correct approach and in particular how it is to be understood where some specific error in the sentencing process is identified.

4. In the end, the discretion is unfettered.  The task of this Court is to determine if some sufficient ground has been made out for its grant recognising that the applicant has already had contested hearings before two courts.

5. There is a further aspect to this application that should be mentioned which bears upon the discretion whether or not to grant leave.  Aspects of the proposed grounds of appeal concern the award of costs which have been made, both in the Magistrates Court and in the District Court.  Appellate courts are generally very slow to interfere with costs orders made by lower courts: Smith v Woodward [2009] QCA 119 at [20] per Keane JA (as his Honour then was).

Discussion

1. For the following reasons leave is not warranted in this case.

2. First, no convictions were recorded.  Any assessment of the cumulative impact of the orders made must take account of this feature.

3. Second, the period of currency of each of the probation and prohibition orders has expired.  There is no residual injustice required to be corrected, except the possible satisfaction of affirming that they were initially made, in the Magistrates Court, in irregular circumstances.

4. Thirdly, it cannot be concluded that the award of costs in the Magistrates Court was excessive, even having regard to Mr Behrens’ personal health and financial circumstances.  Whilst most of the initial charges were not proceeded with against him, a two-day trial was conducted leading to his conviction of eight offences.  The respondent points out that no costs were ordered in respect of the numerous pre-trial mentions (identified before the Magistrate as 11 such mentions in respect of which costs could be awarded at $250 each).[2]  The resultant order represents the striking of some middle ground at least.

   [2]Transcript page 2-96 lines 8 to 18.

5. Fourthly, the order for the payment of veterinary expenses arose pursuant to s 189(2) of the Animal Care and Protection Act.  That section enables the RSPCA Queensland to recover from an animal’s “owner” certain costs incurred by it or an inspector engaged by it, being those necessary and reasonable for that animal to receive veterinary care.[3]  It is, as counsel for the respondent submits, an order imposed not to punish Mr Behrens, but to reimburse the costs of the care of the animals.  No issue is taken as to the modified amount of these costs ordered by the District Court.

   [3]The respondent was employed or engaged by RSPCA Queensland.  There was an issue at trial as to Mr Behrens’ ownership or mere custody of the animals.  No point about that is taken in the present application.

6. Fifthly, as to the costs of the appeal to the District Court, the primary judge received written submissions on behalf of Mr Behrens and the respondent, with Mr Behrens seeking an order that each party bear their own costs of the appeal and the respondent seeking an order for costs in the sum of $3,510.00.  The figure ultimately ordered was less than that.  No reasons were given. They should have been, even if only brief. On the material available to this Court, the order made was open, taking into account the various matters raised in those submissions and her Honour’s knowledge of the conduct of the appeal itself.

7. Finally, irregularities in the sentencing process which took place in the Magistrates Court have been identified by the District Court judge as not material.  This is first in the sense that the Magistrate was aware of the applicant’s personal and financial conditions and concluded little else could have been advanced on his behalf.  Further, any irregularity in the Magistrates Court’s sentencing process did not persuade the District Court judge that the sentence imposed was excessive, and indeed her Honour would have imposed the same sentence.

8. For these reasons, the application is refused.

9. The applicant has been wholly unsuccessful.  It was submitted on his behalf that no order for costs should be made because of his financial circumstances, and his medical conditions and because irregularities occurred in the conduct of the sentencing in the Magistrates Court.  None of those is a sufficient reason why costs should not follow the event in this application, which he has brought.  Accordingly, there should be an order that the applicant pay the respondent’s costs of the appeal.

10. MARTIN SJA:  I agree with Doyle JA.