Berkmann v Green

[2023] WASC 107

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   BERKMANN -v- GREEN [2023] WASC 107

CORAM:   FORRESTER J

HEARD:   20 FEBRUARY 2023

DELIVERED          :   5 APRIL 2023

FILE NO/S:   SJA 1006 of 2022

BETWEEN:   SIEGLINDE MARIE BERKMANN

Appellant

AND

KYLIE RAE GREEN

Respondent

ON APPEAL FROM:

For File No:   SJA 1006 OF 2022

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE M HOLGATE

File Number            :   AR 3628 - 3629 OF 2021

Catchwords:

Criminal Law - Single judge appeal - Appeal against conviction - Whether miscarriage of justice resulted from non‑disclosure on part of prosecution - Whether verdict was unsafe or unsupported by the evidence - Whether miscarriage of justice resulted from mistaken belief the appellant was complying with the order

Criminal Law - Single judge appeal - Appeal against sentence - Whether prohibition order failed to be in sufficiently clear terms - Whether sentence imposed was manifestly excessive

Legislation:

Animal Welfare Act 2002 (WA)
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Application for extension of time allowed in relation to appeal against sentence
Leave to appeal against conviction is dismissed on all grounds
Leave to appeal against sentence on ground 1 is refused
Leave to appeal against sentence is granted on ground 2
The appeal is allowed in relation to ground 2
The prohibition order in relation to charge AR 3628/2021 is amended
The sentence in relation to charge AR3629/2021 is set aside and the appellant is resentenced

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	I Weldon & R H Harris

Solicitors:

Appellant	:	In Person
Respondent	:	RSPCA WA

Cases referred to in decision:

CD and EF v Chief Executive Officer, Department of Child Protection and Family Support [2017] WASC 126

Holding v Parkin [2012] WASC 113

House v R [1936] HCA 40; (1936) 55 CLR 499

Hunt v Russell [2019] WASC 284

Kabambi v The State of Western Australia [2019] WASCA 44

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

NYL v The State of Western Australia [2022] WASCA 41

Pickett v The State of Western Australia [2004] WASCA 291

Rundle v Innerd [2015] WASC 340

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

FORRESTER J:

Introduction

1. On 15 March 2021, the appellant was charged with offences that she:

   (1)between 14 March 2020 and 14 May 2020 at Jelcobine, being a person in charge of an animal, namely a female chestnut horse known as 'KG01 or Remi', on or about 14 May 2020, was cruel to that horse, contrary to s 19(1) and s 19(3)(d) of the Animal Welfare Act 2002 (WA) (Animal Welfare Act) (AR 3628/2021); and

   (2)between 13 January 2021 and 15 March 2021 at Jelcobine, having on 30 October 2020 in the Armadale Magistrates Court been made the subject of an order pursuant to s 55(1) of the Animal Welfare Act prohibiting her from being in charge of, or in contact with, all livestock for a period of 5 years commencing from 31 December 2020 (the order), failed to comply with that order, by being in charge of, or in contact with, several horses, contrary to s 55(4) of that Act (AR 3629/2021).

2. On 2 November 2021, after a trial before Magistrate Holgate, the appellant was convicted of both offences.

3. On charge AR 3628/2021, the appellant was sentenced to a fine of $20,000, suspended for 12 months, and was prohibited from having contact with animals for a period of 15 years from 31 December 2021.

4. On charge AR 3629/2021, the appellant was sentenced to a term of imprisonment of 6 months and 15 days imprisonment, suspended for a period of 12 months. 

5. By an appeal notice dated 21 January 2022, the appellant appealed against both convictions, the sentences imposed and the prohibition order.

Particulars of the charge

1. The prosecution particularised the cruelty alleged by charge AR 3628/2021 (the first charge), inflicted upon the horse 'Remi', was by failing to provide it proper and sufficient food.[1]

   [1] Transcript, Sieglinde Marie Berkmann v Kylie Rae Green, Magistrates Court of Western Australia, 2 November 2021, 8 (Transcript, 2 November 2021).

2. In relation to charge AR 3629/2021 (the second charge), the appellant was alleged to have been in charge of horses and cows on her property on 17 January 2021, to have been in charge of horses on her property on 16 February 2021 and to have been in charge of horses and cows on her property on 13 March 2021.[2]

   [2] Transcript, 2 November 2021, 11 - 13.

The trial

1. The appellant in opening raised a number of issues she had been having with the owner of the neighbouring property.  It seems this was of relevance to the appellant's claim, in relation to the first charge, that she had some difficulty maintaining sufficient contact with the horse to feed her.  Ultimately, the appellant asserted that she was feeding the horse, but the horse did lose some condition because the horse did not have access to 'general roughage'.  The appellant said she would never deliberately neglect an animal.[3]

   [3] Transcript, 2 November 2021, 19 - 21.

2. In relation to the second charge, the appellant claimed that she arranged, through her lawyer, to get an extension of the date from which she was prohibited from being in charge of, or in contact with, livestock, and that she had arranged for someone to come and assist with the care of the animals.[4]

Evidence

Kylie Rae Green

[4] Transcript, 2 November 2021, 21.

1. Ms Green was a general inspector appointed under the Animal Welfare Act. She was employed by the RSPCA. On 14 May 2020, she attended the appellant's property. She was in her uniform, which included a body worn camera on the vest.[5]

   [5] Transcript, 2 November 2021, 27.

2. When she arrived at the appellant's property, she was unable to make any contact with the appellant.  The neighbours allowed Ms Green access via their property to the perimeter of the appellant's property.  From there, Ms Green was able to see one of the appellant's paddocks, in which lay a dead horse, and Remi, a filly, which was, in Ms Green's opinion, emaciated.  There were also other horses on the appellant's property, which seemed to be in reasonable condition.[6]

   [6] Transcript, 2 November 2021, 28.

3. Ms Green decided to leave the property and return with assistance to enable the horse to be seized.  She did return the following day and again activated her body worn camera.  With her were two other inspectors and a vet, as well as a person driving a horse float.

4. The appellant was not initially at the property on this occasion either.  They entered the property and seized the horse.  While they were loading the horse, the appellant arrived.  They had a conversation about Remi, and the dead horse.  The appellant agreed to surrender Remi.[7]

   [7] Transcript, 2 November 2021, 28 - 30.

5. Ms Green tendered some photographs of the horses and the items in the paddock.  There was ample food on the property, but it was out of the reach of Remi.  There was no natural feed in the paddock.[8]

   [8] Transcript, 2 November 2021, 34 - 35.

6. At the date of surrender, Remi weighed 284kg.  By 17 August 2021, her weight had increased to 350kg.[9]

   [9] Transcript, 2 November 2021, 36.

7. Ms Green also gave evidence that she attended the appellant's property on 13 January 2021.  She spoke to the appellant who informed her that she had livestock on the property, including some cattle, and Ms Green actually saw horses on the property.  The appellant informed her that she had an extension of time, which Ms Green needed to check.[10]  She later ascertained that neither the RSPCA nor the court had granted any extension of the court order.[11]

   [10] Transcript, 2 November 2021, 37 - 38.

   [11] Transcript, 2 November 2021, 41.

8. On 16 February 2021, Ms Green returned to the property.  On this occasion, there was one injured grey horse on the property, and another twelve horses.  The appellant was not at the property at that time.[12]

   [12] Transcript, 2 November 2021, 39.

9. Ms Green went back to the property on 15 March 2021.  The appellant was present on this occasion, and acknowledged that she still had a couple of cows on the property and there were also horses on the property.  Ms Green witnessed the appellant feeding the horses.[13]

   [13] Transcript, 2 November 2021, 40.

10. Prior to cross-examination of Ms Green, the appellant complained that she had not been provided with disclosure of the evidence, or even a copy of the statement of material facts.  The prosecutor responded that the appellant had been given initial disclosure, including the statement of material facts, but that repeated attempts to serve the appellant with full disclosure had failed.[14]

    [14] Transcript, 2 November 2021, 43.

11. The appellant did not seek an adjournment of the trial.  The learned magistrate determined that the matter could proceed.

12. In cross-examination, the appellant showed a photograph dated 7 October 2018 to Ms Green and asked her to agree that it was a picture of Remi, aged approximately one year old.  Ms Green agreed that it looked to be the same horse.[15]

    [15] Transcript, 2 November 2021, 36, 45 - 46; Exhibit 7.

13. Ms Green said she did not recall having any conversation with the appellant regarding the injured grey horse she observed on 16 February 2021.[16]

    [16] Transcript, 2 November 2021, 48.

14. The appellant put to Ms Green that Ms Green told the appellant that, if the appellant surrendered Remi, she would not be prosecuted.  Ms Green denied ever having such a conversation with the appellant.  Parts of the body worn camera footage were played, and no such inducement appeared on the footage.  Indeed, Ms Green was recorded at least twice saying that she proposed to continue to investigate the matter.  The appellant suggested to Ms Green that the footage had been edited, which she denied.[17]

    [17] Transcript, 2 November 2021, 55 - 60.

15. The appellant sought to cross-examine Ms Green as to whether or not an extension had been granted in relation to the commencement of Magistrate Malley's order prohibiting her having charge of, or contact with, livestock.  Ms Green did say she was unaware of any correspondence regarding an extension, after which the learned magistrate refused to allow the appellant's questions.[18]

    [18] Transcript, 2 November 2021, 63 - 65.

16. The appellant also sought to cross-examine Ms Green about the lack of guidance to assist her to de‑stock her property, but the learned magistrate prevented the appellant from doing so.[19]

    [19] Transcript, 2 November 2021, 63.

17. The appellant asserted that she had been told that if someone else looked after the livestock, the livestock could remain on the property.  However, this was not a matter which Ms Green was in a position to address.[20]

Robert Davies

[20] Transcript, 2 November 2021, 66.

1. Dr Davies was a veterinary surgeon who attended the appellant's property in May 2020.  He examined Remi.  He said that Remi was in extremely poor condition.  He subsequently prepared a report in relation to the horse, which the prosecution tendered.  The report stated, in part:

   In my opinion, Remi was starved during the four weeks[21] she was in the laneway paddock.  Also, Remi had used all of her muscle reserves to maintain body functions and she was close to death from starvation … When in the laneway paddock, Remi as almost 100% reliant on supplementary feeding and feeding was inadequate … When at Baldivis Vet Hospital Remi was fed a suitable diet and slowly improved in her body condition.  No medical issues were discovered that could explain the weight loss while Remi was in [the appellant's] care other than profound weight loss through starvation.  Remi gained 98kg in body weight in 114 days while at Baldivis Vet Hospital.[22]

   [21] The appellant had told Ms Green in the body worn camera footage that the horse had been in the laneway where she was found for about 4 weeks.

   [22] Exhibit 4; Transcript, 2 November 2021, 70 - 71.

2. The report also detailed that Remi's muscles had severely wasted and she had a body score poorer than 1, which was the lowest on the scale and meant 'extremely emaciated'.  Remi had metabolised all of the epaxial muscle on her back and much of her leg musculature.

3. Dr Davies' report indicated that there was no evidence of supplementary feeding in the area where Remi was kept.  There was faecal material, suggesting she was receiving some food, although the volume of faecal material was reduced.  There was pasture in a paddock nearby, but the paddock she was in made her completely reliant on supplementary feeding. 

4. The appellant did not cross-examine Dr Davies.

Evidence of the appellant

1. The appellant elected to give evidence.  She testified that she was told that she would not be prosecuted if she surrendered the horse, but said that was not on the body worn camera footage.  She was relieved to surrender the horse because she knew that Remi would be looked at by a vet.  The appellant said that there was nothing wrong with the horse except she needed to be fed in a controlled manner in addition to pasture.[23]

   [23] Transcript, 2 November 2021, 73 - 74.

2. The appellant claimed she put the horse in the laneway paddock because there was no more pasture.  The reason there was no more pasture is because her neighbour insisted it was otherwise a fire hazard.[24]  The laneway paddock was the only way to keep Remi safe and make sure she got enough food. 

   [24] Transcript, 2 November 2021, 74.

3. The appellant said that the horse:

   … had lost weight dramatically because she had been accidentally confined to an area where my neighbour had thrown all sorts of dead poisoned plants and where he thought, 'Oh, well, there's the creek, it's not my problem' he should have cut that up a long time ago and spoken to me because they were - or he was certainly perfectly within his rights to speak to me and notify me or just leave a note at the gate or in the letterbox or wherever, but he just has blatant disregard for other people's livestock. 

   The only thing that mattered to him is the power of ownership after learned (sic) he didn't have any stock.  He still doesn't now.  He leases it to someone else.  I couldn't force him.  I could only do my best to walk the boundaries, and when I realised that one of them was suffering in one way or another because it got accidentally into his place because he left gaps wide open to retrieve it, check it over and then make certain because the stock density is no more than one to 10 acres, which is about double the amount normally (indistinct) to stop fending for itself, especially if it's improved pasture, if it's soft travel pasture.[25]

   [25] Transcript, 2 November 2021, 74 - 75.

4. When the learned magistrate asked her to return to the topic of why the horse was in the state she was on 14 May 2020, the appellant said:

   The bottom line is that I was trying to protect her rather than starve her as the RSPCA alleges.[26]

   [26] Transcript, 2 November 2021, 76.

5. In cross-examination, the appellant acknowledged she had the sole care of the horse,[27] but again claimed that the horse had been confined to an area where there was nothing to eat.  She denied putting her there but the prosecutor did not ask her further questions about that.[28]  She said:

   …she didn't look like she did when the RSPCA came all the time.  That only takes a matter of one week to deteriorate….it can take as little as that if water is withheld and the outlook is different as well.[29]

   [27] Transcript, 2 November 2021, 83.

   [28] Transcript, 2 November 2021, 84.

   [29] Transcript, 2 November 2021, 84.

6. The appellant explained that she had been feeding the horse to help her get better and she had left her with a full bale of hay.  She was feeding her gradually because she knew that starving horses should not be overfed.[30]

   [30] Transcript, 2 November 2021, 82.

7. In relation to the second charge, the appellant explained that she did not want to hurt the two calves by transporting them, which is why she still had them.  In relation to the horses, she said she had difficulty moving them safely.[31]

   [31] Transcript, 2 November 2021, 76 - 78.

8. In cross-examination, the appellant said that it only takes a matter of a week for a horse to deteriorate if water is withheld.  She said that someone had wanted to take Remi, and did, but Remi did not hold her condition, and so the appellant took her back.  The appellant kept Remi away from the other horses because they 'marginalised' her.[32]

Magistrate's decision

[32] Transcript, 2 November 2021, 83.

1. The learned magistrate found, without giving reasons, that none of the defences set out in s 20 to s 30 of the Animal Welfare Act applied in the appellant's case.

2. His Honour summarised the evidence of Ms Green and the report of Dr Davies.  He referred to the appellant's evidence of an inducement that she would not be prosecuted, but rejected that evidence on the basis of the body worn camera footage.

3. In summarising Dr Davies' evidence, the learned magistrate appears to have relied upon a statement of the appellant recorded on the body worn camera, which his Honour characterised as the appellant having 'admitted' that the horse had been in the location from which it was seized for a period of four weeks.[33]

   [33] Transcript, 2 November 2021, 91.

4. The learned magistrate found the first charge to be proved.  He did not give reasons for finding that the appellant was 'in charge' of the horse.

5. In relation to the second charge, His Honour found that a court order was in force which prohibited the appellant from being in charge of or having contact with livestock for five years from 31 December 2020.  This clearly included horses, in his view.  His Honour referred to the appellant's evidence regarding reasons why it was inconvenient, impractical or cruel to de-stock but he noted she had had two months to do so.  His Honour was not satisfied that there was any extension to the order to de-stock, or that the RSPCA had any power to grant such an extension in any event.  Accordingly, he found that the second charge had been proved.[34]

   [34] Transcript, 2 November 2021, 92 - 93.

Grounds of appeal

1. The appellant was self‑represented.  With respect to her, it was difficult to distil her appeal grounds having regard to the significant volume of irrelevant material the appellant sought to file in this appeal and her conflation of the matters involved in this appeal with those involved in proceedings before Magistrate Malley on 30 October 2020.

2. The appeal notice contains the following grounds of appeal:

   (1)Never received full disclosure;

   (2)RSPCA reneged on negotiated agreement;

   (3)RSPCA audiotape was edited when heard/shown in evidence.

3. In a document purporting to be a draft affidavit dated 28 October 2022, the appellant states:

   (1)I did not understand the Court process and I feel that I should have been given the Opportunity to seek further legal advice and to have legal representation.

   (2)I do not believe I was in breach of section 19(1) as Kylie R. Bree (sic) did not satisfy the Legal elements of that section.

   (3)I do not believe I breached Section 19(3)(d) as I was not aware that my neighbour, during an excursion into my block during my absence had placed the yearling filly Remi accidentally into a confined bush area outside my major paddock area. This pocked (sic) of land is not readily overseen from any direction. Hay is commonly unrolled to spread downhill continuously and animals readily come and spread evenly to eat. I had no intention in any way not to provide sufficient food or water to Remi. I will submit photos to verify this by mail.

   (4)I appeal and say I did not breach the order prohibiting me from being in charge of or in Contact with livestock for five years from 31.12.2020.  I understood from legal advice received from Karrie Louden that I was complying with the order in that she had negotiated and scheduled a hearing at Armadale Court in 18.1.21 to extend the deadline and I also had obtained help from a couple who managed, fed and maintained all waters of any remaining livestock since past Christmas 2020. 

1. In my view, this additional document raises three additional grounds of appeal, which I propose to number grounds (4) ‑ (6):

   (4)there was a miscarriage of justice as a result of the failure to provide the appellant the opportunity to seek further legal advice and be legally represented at the appeal;

   (5)the conviction on charge AR 3628/2021 was unsafe and unsupported by the evidence; and

   (6)there was a miscarriage of justice in relation to charge AR 3629/2021 as a result of the mistaken belief of the appellant that she was complying with the order.

2. Grounds 1 and 4 relate to both convictions.  Grounds 2, 3 and 5 relate to the conviction on AR 3628/2021.  Ground 6 relates to the conviction on AR 3629/2021.

Application to adduce additional evidence

1. The appellant sought to adduce a very significant amount of additional material in this matter.  Regrettably, a very large volume of it was comprised of emails setting out, in narrative form, various issues the appellant has had with various people and her property.  This was despite the appellant having appeared a number of times before registrars of this court, who made orders regarding the manner in which documents were to be filed, and when, and the required format.

2. At a directions hearing on 10 October 2022, I made final orders regarding the filing by the appellant of any affidavits containing additional evidence.  Then, at a further directions hearing on 28 November 2022, I made rulings as to the evidence which was to form part of the appellant's application to adduce additional evidence.

3. Ultimately, I ruled that the appellant had properly applied to adduce the following additional evidence at the appeal:

   (1)affidavit of Garth Cruden sworn on 15 February 2022;

   (2)affidavit of Garth Cruden sworn on 31 May 2022;

   (3)affidavit of the appellant (undated) filed on 10 June 2022;

   (4)affidavit of the appellant (undated) filed on 3 August 2022;

   (5)statutory declaration of Maria Laura Castineyras declared on 26 October 2022;

   (6)draft affidavit of the appellant dated 28 October 2022; and

   (7)2 photographs.

4. The respondent also filed an application to adduce additional evidence on the appeal, namely the affidavit of Kylie Rae Green affirmed on 5 July 2022.

Application for extension of time

1. In an affidavit dated 21 January 2022, the appellant has asserted that:

   (1)ED hospital attendance due to hip joint, contracted flu after COVID vaccination;

   (2) Vehicle breakdowns: a) rear ball joint replacement needed, b) gearbox failure, c) coil, points, plugs, d) starter motor failure;

   (3)Police ordered new tyres, none available until January;

   (4)Severe economic constraints, limited fuel;

   (5)No power, aircon at home;

   (6)Sudden heatwave generates more work which takes longer to perform.

2. The appeal is 52 days out of time.  The respondent does not oppose the appellant's application for an extension of time except on the basis that the grounds of appeal have no reasonable prospects of success.

Appellant's submissions

1. The appellant did not file any written submissions. 

Respondent's submissions

1. The respondent filed written submissions dated 5 July 2022 and 5 December 2022.

2. The respondent concedes that full disclosure was not provided to the appellant, and it should have been provided.  However, it submits that the failure to disclose did not constitute a miscarriage of justice.  The respondent relies upon the learned Magistrate's view that the appellant was capable of continuing with the trial. 

3. In relation to grounds 2 and 3, the respondent relies on the evidence at trial and submits that no evidence has been adduced to contradict that evidence. 

4. In relation to ground 4, the respondent points to the fact that the appellant did not seek an adjournment of the trial to seek legal advice. 

5. As to ground 5, the respondent submits that no evidence was adduced at trial to the effect that the appellant provided food for Remi and a 'bare assertion' is insufficient to engage the discretion to adduce additional evidence. Further, intention is not an element of an offence contrary to s 19(3) of the Animal Welfare Act.

6. As to ground 6, the respondent points to the absence of evidence to the effect that there was any extension of the commencement date of the prohibition order made by Magistrate Malley on 30 October 2020.  Further, any belief on the part of the appellant that there had been an extension would have been a mistake of law, and thus would not excuse the appellant from criminal responsibility.

Additional evidence

1. The affidavit of Garth Cruden sworn on 31 May 2022 describes a number of events between 11 August 2021 and April 2022.  It describes issues the appellant had with managing her property, a conversation Mr Cruden had with a neighbour and Mr Cruden's observations about some sheep belonging to the neighbour.  The contents are irrelevant.

2. The appellant's affidavit, sworn before Robin Fidock and filed on 10 June 2022, contains a number of annexures.  The annexures include correspondence between the appellant and her legal representative, an email from the appellant dated 1 June 2022, allegations about her neighbour, a series of photographs regarding other animals and parts of the appellant's property, and printouts of extracts from social media pages with comments written by the appellant.  Apart from one photograph, showing the appellant's sheep feeder apparently blocking a gap in a fence,[35] there is nothing of relevance in the affidavit. 

   [35] IMG_1662.jpg.

3. The affidavit filed on 3 August 2022 primarily relates to the appellant's desire to have the care of her dog pending the appeal.  However, in it the appellant also asserts that her solicitor 'negotiated an extension', which I understand to be a reference to an extension of the date on which she was to destock her property pursuant to the order made on 30 October 2020.  Apart from the assertion regarding the extension, there is nothing of relevance in the affidavit.

4. The statutory declaration of Maria Castineyras states that she has never seen any evidence of starving or neglected horses when she has attended the appellant's property and that any deliberate or premediated cruelty to animals seems to her to be out of character.  There is no indication of the time frame to which Ms Casteneyras is referring, and it was no part of the prosecution case that the cruelty alleged in the present case was deliberate or premeditated.  Accordingly, the statutory declaration is irrelevant

5. The affidavit of the appellant dated 28 October 2022 is relevant, in that the appellant asserts that her neighbour had accidentally restricted Remi to a confined bush area outside the major paddock area.  This confined area was not readily overseen from any direction.  She says that hay was commonly unrolled to spread downhill continuously for the animals.  The appellant foreshadowed submitting photographs.  One aerial image and one photograph were tendered, neither of which support the appellant's claim.

6. In the 28 October 2022 affidavit, the appellant again stated that she understood she had an extension in which to comply with the order of Magistrate Malley.

7. The appellant was given considerable leeway in relation to her application to adduce additional evidence.  She was permitted to file her material by way of email unsworn, on the basis that she would be required to swear it by the hearing of the appeal.  Despite being given clear information regarding this, one affidavit remained wholly unsworn, and the appellant acknowledged having added unsworn material to another.[36]

   [36] Transcript, Sieglinde Marie Berkmann v Kylie Rae Green, Supreme Court of Western Australia, 28 November 2022, 66 - 69.

8. On the hearing of the appeal, the appellant sought to introduce significant additional material during her submissions.  The respondent, exercising appropriate constraint, did not seek to cross‑examine the appellant on that additional material, and I indicated that I would consider it and give it such weight as I considered appropriate.

9. The additional material was as follows:

   (1)the appellant was never given initial disclosure by a police officer at Brookton Police Station.[37]  The appellant claimed that the affidavit of service contained a date of service which was a day after the affidavit was sworn;

   (2)the horse Remi had been inadvertently trapped in a paddock in which she did not have access to food or water for an unknown period, which the appellant speculated was as a result of actions by her neighbour.  She said that she was not prevented from feeding the horse.  However, while she could see the horse from a distance, she did not go too close to the spot where she was because she was scared of her neighbour, and thus she did not realise the horse was losing weight.[38]

   (3)The appellant did not know how long the horse was trapped there, but when she discovered the situation, she moved the horse to the place it was located when the RSPCA attended.  She gave it access to food and water, but was conscious not to give it too much so it did not gorge itself.  On the first day the RSPCA attended, the officer must have shut a gate the appellant had left open to enable the horse to get access to water, and the horse must have finished all of its hay, which is why it did not have access to either food or water on the second visit by the RSPCA;[39]

   (4)the appellant went to Armadale Magistrates Court on 18 January 2021 to attend a hearing her lawyer told her was scheduled to obtain an extension of the order to de-stock her property.  However, her lawyer told her the paperwork was inadequate and so the hearing was abandoned.  Notwithstanding this, the appellant believed that there was an extension granted until, she thought, the end of February 2021.  She had received emails showing this but they had been lost when her iPad broke and she had been unable to retrieve them, and her (former) lawyer had not provided them to her again, despite being requested to do so;[40]

   (5)the efforts she had gone to in order to comply with the order of Magistrate Malley, including hiring a livestock manager (Mr Cruden).  She understood that meant that she was no longer in control or in charge of the livestock; and

   (6)she was not aware that the livestock manager had not been officially set up as the lessee or owner (although she said she had been told that Mr Cruden had to get independent legal advice).[41]

   [37] ts 79 - 80.

   [38] ts 98 - 101.

   [39] ts 101 - 102.

   [40] ts 88 - 91.

   [41] ts 89 - 90.

10. The appellant also sought to go into some detail as to the nature of her dispute with her neighbour, what she perceived was 'inequity' in the way she was treated by the RSPCA when compared with the RSPCA's treatment of others, and a large amount of other irrelevant material which I do not propose to set out in detail.

11. The respondent applied to adduce additional evidence at the hearing of the appeal, including all body worn camera footage from 14 and 15 May 2020, Ms Green's handwritten notes, and correspondence relating to service of the initial disclosure brief which contained a statement of material facts, and a copy of the body worn camera footage.  The respondent also annexed an affidavit sworn by a police officer on 25 March 2021 to the effect that he served the appellant with those materials.

Statutory framework and legal principles

The appeal against conviction

1. The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused after a trial is a decision which may be appealed.[42]

   [42] CA Act s 6(c) and s 7(1).

2. Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[43] meaning that the ground is required to have a rational and logical prospect of succeeding.[44]  Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[45]

   [43] CA Act s 9(2).

   [44] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

   [45] CA Act s 9(3).

3. Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[46]

Application to adduce additional evidence

[46] CA Act s 14(2).

1. In CD and EF v Chief Executive Officer, Department of Child Protection and Family Support,[47] Pritchard J summarised the principles applicable in considering whether to admit new evidence in a criminal appeal as follows:

   Under the CA Act, an appeal court must decide an appeal on the evidence and material that were before the lower court.  However, that requirement does not affect the power of the appeal court to admit additional evidence.  Under the CA Act, the Court has a discretion to permit evidence, other than that which was adduced at the trial, to be relied upon.

   In Cramphorn v Bailey, Mazza JA observed that:

   The discretion … is wide and is designed to serve the demands of justice.  It is confined only by the subject matter of the legislation and by the requirement that it must be exercised judicially.  However, because Parliament conferred an appellate jurisdiction on this court, it is highly unlikely that it intended to abolish the distinction between original and appellate jurisdictions.

   The exercise of the statutory discretion to admit new evidence will be informed (although not necessarily determined) by the principles concerning new and fresh evidence.  In the context of a criminal trial, where an appellant seeks to rely on new evidence – that is, evidence which was available at the time of the trial, or could, with reasonable diligence, have been discovered – no miscarriage of justice will arise simply because the new evidence was not adduced.  Rather, new evidence will only give rise to a miscarriage of justice if the appellate court is either satisfied that the accused is innocent or concludes that the accused should not have been convicted, and it is not sufficient that the new evidence reveals only a likelihood that the court below would have returned a verdict of not guilty.  An appellant thus faces a high hurdle in overturning a finding of guilt based on new evidence.

   [47] CD and EF v Chief Executive Officer, Department of Child Protection and Family Support [2017] WASC 126 [117] ‑ [119]; see also Hunt v Russell [2019] WASC 284 [11] (Smith J).

Disposition

Ground 1

1. It is clear that, by this ground, the appellant is asserting that a miscarriage of justice resulted from the failure of the prosecution to provide the appellant with disclosure.

2. The respondent does not contest the appellant's assertion that she did not receive some of the required disclosure.  No evidence (as opposed to what was said at the trial from the bar table) has been adduced as to the reason for the failure to provide full disclosure to the appellant.

3. The respondent did adduce evidence, by way of a sworn affidavit, that the appellant was served with initial disclosure at Brookton Police Station.  In my view, the application to adduce this evidence should be allowed.

4. The appellant, in the course of the hearing of the appeal, did not accept the contents of the affidavit, and further claimed that the officer's affidavit stated that she was served the day after the affidavit was sworn.

5. Contrary to the appellant's assertion, in my view the affidavit states that it was sworn on the same date that service was effected, although I can understand how the appellant might read the number '25' as '26'.

6. At the trial, the appellant told the learned magistrate that she had not received the Statement of Material Facts or the photographs.  She did not repeat that claim in evidence, and she did not seek to adduce evidence to that effect in the documents she filed for the appeal.  At the hearing of the appeal, for the first time, she specifically claimed that the affidavit of service was not true.[48]  These statements were not evidence, but I will nonetheless deal with them.

   [48] ts 81.

7. In my view, the appellant's statements at the hearing of the appeal can only properly be regarded as referring to full disclosure.  I have formed this view because the appellant told the court that, on her way home from court, she asked the officer about the disclosure he had to deliver to her and he told her that the matter had already been decided; that is, that the trial had already been determined.

8. In the circumstances, I am not satisfied that there is any basis on which to doubt the veracity of the affidavit of service of initial disclosure.

9. Assuming the appellant did receive initial disclosure, that included the body worn camera footage and the statement of material facts, which comprehensively set out the allegations against the appellant, it is apparent that she had not viewed that material.  Further, the respondent conceded she did not receive full disclosure, which included witness statements, the expert report and photographs.

10. The fact that the respondent did not properly attend to service of full disclosure on the appellant was wholly unsatisfactory.  There were many ways to properly effect service which were not undertaken.  However, that does not mean that this ground should succeed.  The question is whether the non-disclosure caused a miscarriage of justice.

11. The appellant did not seek an adjournment of the trial as a result of the non‑disclosure.  When asked to identify any steps which she would have taken differently, or evidence which she would have adduced, had she received full disclosure, the appellant said:

    I … would have tried very, very hard to find somebody to counter some of the points that were made. I might have tried harder to travel repeatedly to Narrogin Court to bring written evidence of the violence restraining order I was forced to take out.[49]

    [49] ts 83; The reference to a restraining order was apparently a reference to a dispute the appellant had with one of her neighbours.

12. The appellant did not seek to adduce any material in relation to the violence restraining order from the Narrogin court on the appeal.

13. When asked what she would have said to the learned magistrate in relation to the charge of the horse not having enough food had she had disclosure, the appellant alleged that her neighbour had blocked the horse in to an area of her land and she did not notice for some time.  When she did notice, she put the horse in the place where the RSPCA found her and fed her hay and pellets, but limited it so the horse did not gorge herself.[50]

    [50] ts 84 - 87.

14. The appellant said that she had not had the chance to give that evidence at the trial.  However, when it was pointed out to the appellant that she had given evidence at the trial, and was asked why she did not say that the horse had been put there by someone else, she said:

    Because I had no evidence.  I wasn't there.  I discussed it with somebody and they said, 'You cannot say something if you didn't see it physically.  And even then, you should have evidence.  You should have photographic evidence.'  I cannot run after the man who is trying to kill me and photograph every move he makes.[51]

    [51] ts 85.

15. The appellant also said that she disagreed with the expert evidence.  She said she would have asked about their conclusion that the horse was near death, because, she said, that was not the case.  She said she did not ask for an adjournment because she did not know she could.[52]

    [52] ts 87.

16. Whether or not the horse was 'near death' was not a matter in issue in the trial.  The charge was particularised as being on the basis that Remi had not been provided with sufficient food.  At no point, either at trial or in the appeal, did the appellant assert that the horse was not significantly malnourished.  To the contrary, the overall effect of the appellant's evidence was that the horse was malnourished.

1. It is difficult to see what the appellant could or would have done differently.  From the appellant's perspective, the real issue at trial in relation to the first charge was not that the horse was not malnourished, but how the horse came to be deprived of food, which was not addressed by any of the evidence which had not been disclosed.

2. In relation to the second charge, the appellant did not point to any basis on which the course of the trial or the evidence would have been altered had the prosecution complied with its disclosure obligations.  Throughout the trial the appellant admitted that she did have livestock on her property at the relevant times.  Her defence was that she believed an extension had been granted.  The undisclosed evidence had no bearing on this matter.

3. At no point in the period since the filing of her appeal has the appellant sought to adduce any additional evidence which countered the evidence which had not been disclosed.

4. In my view, there is no realistic possibility that the course of the trial or the evidence would have been different had the prosecution properly complied with its disclosure obligations.

5. In the circumstances, no miscarriage of justice has been established to have occurred as a result of the non-disclosure.  Ground 1 has no merit.

Ground 2

1. The appellant asserts that the RSPCA 'reneged on negotiated agreement'.  At the hearing, the appellant clarified this ground to allege that Ms Green had advised the appellant that she would not be prosecuted and there had therefore been a miscarriage of justice.

2. The magistrate made a finding of fact to the effect that there was no such agreement.[53]  The appellant has adduced no additional evidence which calls into question that finding, nor pointed to any other matter which does so.

   [53] ts 89, 92.

3. Even if there had been an agreement, the appellant was unable to articulate how the subsequent prosecution constituted a miscarriage of justice.  She does not claim to have relied in any way on the assurance such that she was prejudiced in the prosecution against her.

4. Ground 2 has no reasonable prospects of success.

Ground 3

1. The appellant asserts that the body worn camera footage was edited before it was played in evidence.  It is said that this resulted in a miscarriage of justice because the agreement the appellant alleges (by ground 2) was entered into was edited from the footage.

2. The evidence of Ms Green was that no such editing took place.  The learned magistrate accepted that evidence.[54]  The appellant has adduced no additional evidence which contradicts Ms Green's evidence. 

   [54] ts 89, 92.

3. Further, and in any event, I have found that even had there been such an agreement, no miscarriage of justice was established by reason of the subsequent prosecution of the appellant.

4. Ground 3 has no reasonable prospect of success.

Ground 4

1. The appellant submits that she did not understand the court process and feels that she should have been given the opportunity to seek further legal advice and to have legal representation.  She claims this gave rise to a miscarriage of justice.

2. At no point in the trial did the appellant request an adjournment to seek further legal advice.  The appellant has not identified how obtaining further legal advice would have altered the path of her trial and I have been unable to identify how it would have done so.

3. This ground has no reasonable prospect of success.

Ground 5

1. The principles which apply to a ground that a verdict is unreasonable and cannot be supported having regard to the evidence are well settled.  The question for the appeal court is whether, upon the whole of the evidence, it was open to the learned magistrate to be satisfied beyond reasonable doubt that the accused was guilty.  That question requires consideration of whether the magistrate must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.[55]

   [55] NYL v The State of Western Australia [2022] WASCA 41 [63].

2. The appellant was charged, pursuant to s 19(1) and s 19(3)(d) of the Animal Welfare Act, that she had been cruel to the horse. Those provisions relevantly provide:

   (1)A person must not be cruel to an animal.

   Penalty:  Minimum — $2 000.

   Maximum — $50 000 and imprisonment for 5 years.

   (3)Without limiting subsection (1) a person in charge of an animal is cruel to an animal if the animal —

   (d)is not provided with proper and sufficient food or water;

3. Pursuant to s 5 of the Animal Welfare Act, the term 'person in charge' in relation to an animal, means:

   (a)the owner of the animal; or

   (b)a person who has actual physical custody or control of the animal; or

   (c)if the person referred to in paragraph (b) is a member of staff of another person, that other person; or

   (d)the owner or occupier of the place or vehicle where the animal is or was at the relevant time;

4. The appellant had admitted having the sole care of the horse from October 2018 until May 2020.[56]  Ms Green gave evidence, without objection, that the appellant was the owner of the property.[57]  No evidence was adduced to the effect that the appellant owned the horse.

   [56] Transcript, 2 November 2021, 83.

   [57] Transcript, 2 November 2021, 27.

5. It was therefore open, on the evidence, for the learned magistrate to find that the appellant was a 'person in charge' of the horse at all relevant times.  On the evidence, his Honour was entitled to find that the appellant was a person in charge of the horse under subpar (b) or (d) of the definition.

6. The evidence at trial was to the effect that the horse had not been fed sufficiently, and had become severely emaciated as a result.  At trial, the appellant gave evidence that the horse had been accidentally confined to an area where there was no food, but did not say how, or when, or give any detail about the area.  There was no evidence at trial as to the last time the appellant had seen the horse, or checked on her, prior to finding her in the severely emaciated state she was in on 14 May 2020.  The appellant acknowledged having had the sole care of the horse in the relevant period.

7. On the appellant's own evidence at trial, to the effect that the horse could have deteriorated within a week, it must have been at least that long that the appellant had seen the horse or checked on her, in order for her to end up in the state she did.  However, it was an irresistible inference that the horse was neglected for a much longer period than a week, in order to become as severely emaciated as she was on 14 May 2020.

8. The appellant did say she had been feeding the horse in the laneway where she was found for at least approximately three days.[58]  Whether that was 'sufficient' food is not necessary to resolve, as it did not alter the fact that, at least prior to that, the horse had been insufficiently fed.

   [58] Transcript, 2 November 2021, 81.

9. In his reasons for decision, the learned magistrate relied upon a statement made by the appellant and recorded on the body worn camera, to the effect that she had brought the horse into the area where she was found by the RSPCA about four weeks previously.[59]

   [59] Transcript, 2 November 2021, 91.

10. The prosecution had made a forensic decision not to adduce the body worn camera footage during the evidence in chief of Ms Green.[60]  As a result, it made a deliberate forensic decision not to adduce evidence of any admissions made by the appellant which were recorded on that footage.

    [60] Transcript, 2 November 2021, 41.

11. Ultimately, the appellant's questions of Ms Green, suggesting that there had been a 'negotiated agreement' by which she was not to be charged, resulted in the entirety of the footage recording the appellant being played during cross-examination of Ms Green.[61]  However, the prosecution did not rely on anything said in the footage as an admission, and the recording was only played to establish that the alleged 'negotiated agreement' was not in fact reached.

    [61] Transcript, 2 November 2021, 58 - 59.

12. In those circumstances, I do not consider it was appropriate for the learned magistrate to use the evidence from the body worn camera as constituting an admission, at least without giving the appellant an opportunity to make submissions regarding its use in that manner.  Accordingly, I propose to determine this ground without relying on this evidence.

13. However, it is also my view that this evidence could have had no material impact on the outcome, in that the prosecution needed only to establish that the horse was in that condition because it had not been sufficiently fed; the precise length of time over which that had occurred, or exactly when, was of no material consequence.

14. As I have indicated, the learned magistrate determined, without giving reasons, that no defence was available to the appellant in this case. It is appropriate to specifically address s 28 of the Animal Welfare Act which provides:

    (1)It is a defence to a charge under section 19(1) committed in circumstances described in section 19(3)(d), (e), (f) or (h) for a person to prove that the person —

    (a)is a 'person in charge' by reason of paragraph (a), (c) or (d), but not paragraph (b), of the definition of that term; and

    (b)took reasonable steps to ensure that the animal would be properly treated and cared for.

    (2)It is a defence to a charge under section 19(1) committed in circumstances described in section 19(3)(d), (e), (f) or (h) for a person to prove that the person —

    (a)is a 'person in charge' by reason only of paragraph (d) of the definition of that term; and

    (b)did not know, and could not reasonably be expected to have known, that —

    (i)the animal was at a place, or in a vehicle, owned or occupied by the person; or

    (ii)the animal was not being properly treated and cared for.

15. In the case of each of s 28(1) and s 28(2), the onus was on the appellant to prove the matters set out therein in order for the defence to operate. However, in light of the evidence the appellant gave at the trial, upon which she was capable of being found to be a 'person in charge' pursuant to both paragraphs (b) and (d) of the definition of that term, neither s 28(1) or s 28(2) was open.

16. Having made an independent assessment of all of the evidence, I have concluded that the learned magistrate was entitled to accept the evidence of Ms Green and the evidence of Dr Davies as to the state of Remi, and this evidence was capable of proving the prosecution case beyond reasonable doubt.  Having regard to the visual evidence, the credibility of the witnesses had limited significance in the prosecution case.  In the absence of any defence, it was open to his Honour to find the appellant guilty of the offence.  I do not consider that he must have experienced a reasonable doubt as to the appellant's guilt.

17. The additional material sought to be adduced by the appellant on this appeal is to the effect that her neighbour trapped the horse in an area on her property where it was deprived of food, which she did not notice for some time.  When she did notice, she moved the horse to the place where she was found by the RSPCA, at which point she claimed she did feed the horse sufficiently, but needed to ration its food so it did not gorge itself.

18. To the extent the appellant did not say this at trial, this is not fresh evidence, as it was available at the time of the trial.  Further, there is no apparent reason why the appellant did not give that evidence at the trial.

19. At the hearing of the appeal, the appellant submitted that the additional material established that, as a result of the actions of her neighbour, she 'had no control'.[62]

    [62] ts 84, 87, 96.

20. The additional material sought to be adduced by the appellant, even if it were accepted, could not impact on the learned magistrate's finding that the appellant, being a person in charge of the horse, did not supply it with sufficient food. At its highest, the appellant effectively seeks to invoke s 28 of the Animal Welfare Act on the basis that she did not have physical custody or control of the horse.

21. The appellant acknowledged that her neighbour did not prevent her from feeding the horse, which remained on her property.  She claimed she was reluctant to get close enough to the horse to observe her condition, because she was frightened of her neighbour.  However, this does not mean that the horse was not within her physical custody and control.

22. I am not satisfied that the additional material is capable of establishing that the appellant did not have physical custody or control of the horse, so as to enable her to avail herself of the defence under s 28 of the Animal Welfare Act.

23. Further, and in any event, the additional material is incapable of proving that the appellant could not be reasonably expected to have known that the horse was being insufficiently treated and cared for at a time well before she became as malnourished as she was. This being the least the appellant would have to prove in order to avail herself of a defence under s 28 of the Animal Welfare Act, the additional material does not establish that the appellant might not have been convicted, let alone that she is innocent.

24. Ground 5 has no reasonable prospects of success.

Ground 6

1. The appellant submitted that she was mistakenly of the understanding that the order of Magistrate Malley, due to take effect on 31 December 2020, had been extended.  While she was not certain, the latest date the appellant claimed it had been extended to was the end of February 2021.

2. The actual order was that, for a period of 5 years from 31 December 2020, the appellant was 'not to be in charge of or have contact with all livestock'.[63]

   [63] Exhibit 1.

3. It was not disputed that horses and cows constitute livestock, that the appellant was not permitted to be in charge of, or have contact with, either horses or cows, and that there were both horses and cows on her property.

4. The evidence at trial was that on 13 January 2021, 16 February 2021 and 15 March 2021, the appellant had both cows and horses on her property.  While she made numerous submissions and asked numerous questions alleging she had an extension, when it came to giving evidence at the trial, the appellant at no stage said she believed any such extension had been given.  Even when expressly asked about having been given to the end of December to comply with the order, the appellant did not suggest she believed she had an extension.[64]

   [64] Transcript, 2 November 2021, 84.

5. The appellant did start to say in evidence what she had earlier alleged by way of submission; that she had legal advice that as long as she had someone helping her to maintain and feed the livestock, she was complying with Magistrate Malley's order.[65]

   [65] Transcript, 2 November 2021, 85.

6. The appellant did not seek on this appeal to adduce any evidence other than a statement of belief that the order had been extended.  She did not seek to adduce any document or evidence of any other person which provided any foundation for that belief.  Indeed, the information she sought to adduce at the hearing suggested that she was well aware that the court hearing at which an extension was sought had not proceeded, and no order was made.[66]

   [66] ts 90 - 91.

7. The appellant also claimed that she believed that she had appointed a person to manage the livestock on her property and that, in those circumstances, she believed she was not in charge of the livestock.

8. If the appellant had a mistaken belief as to the commencement date of the order made by Magistrate Malley, that would be a mistake of law, not a mistake of fact. As a result, even if mistake of fact were a defence to a charge under s 19 of the Animal Welfare Act, that defence would not have been open to the appellant.

9. Further, and in any event, the appellant was well aware that, as at 15 March 2021, that order had taken effect.

10. It is necessary to evaluate the appellant's claim, repeated at the hearing of the appeal, that she had made arrangements for someone else to be the 'livestock manager', effectively meaning that she was not 'in charge of' the livestock.[67]

    [67] ts 89 - 90, 93.

11. The appellant claimed that the person in charge of her livestock was Garth Cruden.  However, two affidavits of Mr Cruden had been filed by the appellant as part of her application to adduce additional evidence.  His affidavit sworn on 15 February 2022 indicated that, from 30 December 2020, he visited her property to tend to the animals 'most weekends', 'typically on a Saturday'.  He expressly stated he had no interest in taking on a lease of the appellant's property.

12. The respondent pointed to the definition of 'person in charge' in s 5 of the Animal Welfare Act, which includes the owner of the animal, and the owner or occupier of the place where the animal was at the relevant time. The respondent argued that the appellant was, therefore, as the owner/occupier of the property, 'in charge of' the livestock.

13. However, in the absence of provision to that effect, the meaning of the words 'in charge of' in Magistrate Malley's order are not to be interpreted by reference to the meaning of 'person in charge' in the Animal Welfare Act. They are to be interpreted according to their ordinary meaning. The definition in s 5 of the Animal Welfare Act does not assist to determine whether, in the circumstances she now describes were in place, the appellant was 'in charge of' the livestock contrary to the order of Magistrate Malley.

14. In my view, the arrangement which was put in place by the appellant does not mean she was not in breach of Magistrate Malley's order.

15. According to the Macquarie Dictionary, to be 'in charge of' something is to 'have the care or supervision of' it.  The livestock was on the appellant's property.  The fact that another person visited her property once a week did not mean that the appellant did not also have the care or supervision of the livestock.  The observations Ms Green made of the appellant feeding horses on 15 March 2021 reinforces this.

16. Further, and in any event, the order also prohibited the appellant from having contact with livestock.  The observations of Ms Green from 15 March 2021 alone prove that the appellant was in breach of that order.

17. In my view, no miscarriage of justice has been established as a result of any misunderstanding the appellant had as to the effect of the order of Magistrate Malley. 

18. Ground 6 has no reasonable prospects of success.

Applications to adduce additional material

1. In light of the fact that the additional material the appellant sought to adduce (including that sought to be adduced from the bar table on the hearing of the appeal) would not result in any of the grounds being made out, and does not establish that the appellant is innocent, or should not have been convicted of the charges, I dismiss the appellant's application to adduce additional evidence without making specific findings as to its admissibility.

2. In relation to the respondent's application to adduce additional evidence, I have admitted the affidavit of Simon Christopher Boyd sworn on 25 March 2021.  The application in relation to the remainder of the material sought to be adduced is dismissed.

Appeal against sentence

1. The appellant has appealed her sentence in the following terms:

   (1)I wish to appeal the now extended to 15 years prohibition from contact with any animal, presumably including livestock. I do not believe this extended period is justified given the facts presented and total lack of evidence.

   (2)I wish to appeal the suspended fine amount of $20,000 as again I do not believe it is legally practical, given I need to work towards finalising, transferring, leasing or having managed any livestock remaining.

Ground 1

1. In relation to the first ground of appeal against sentence, the appellant submitted that there was 'no evidence' justifying the prohibition order.

2. That contention cannot be accepted.  On 19 October 2020, the appellant had been convicted of being cruel to a horse in the period leading up to, and on, 28 February 2018.  That had resulted in a substantial fine, and the five year prohibition on being in charge of or having contact with livestock.  Not only had the appellant failed to comply with the order, she had been convicted of an additional offence of being cruel to a horse, between March and May 2020.  While that offence was not committed after her October 2020 conviction, it showed that the appellant's conduct was not isolated.  Further, in each case, her neglect of the animals was extended and severe.

1. The appellant also had three other relevant prior convictions.  One was entered on 18 December 2018 for ill‑treating an animal and two others were entered in 2005 for failing to provide sufficient food to animals and providing false information to an inspector.

2. In my view, in these circumstances, the prohibition order was justified, as was its length.

3. However, the appellant also complained at the hearing of the appeal that the ambit of the order, which prohibited her from having any contact with animals, was unreasonably broad, and prevented her having contact, even briefly, with any kind of animal.  This would prevent her even taking an injured animal to a wildlife centre.  Given she resides on a rural property, she envisaged a number of issues with such a prohibition.

4. The respondent observed that it was difficult to draft an order in sufficiently clear terms, that the order used the same language used in s 55 of the Animal Welfare Act, and, in such a case, the authorities would not be aware of incidental contact and no charge would likely arise in such a case.

5. In my view, that is not a sufficient response to the appellant's submission.  A court order must be in sufficiently clear terms as to enable the person to know when they are complying with it.  That is particularly so in a case in which failure to comply with it exposes the person to a term of imprisonment.  The appellant should not have to rely on the prosecuting authority's discretion in order to avoid charges for inadvertent contact with an animal, where the order was never intended to prohibit such contact, but to prohibit the appellant having responsibility for the health and welfare of any animal.

6. The respondent conceded that, if it was possible, an order with more clarity as to the extent of the prohibition on the appellant's contact with animals was desirable, and that it would be appropriate to amend the order accordingly.

7. I propose to vary the terms of the order to read as follows:

   (1)Subject to order (3), the appellant is prohibited from being a 'person in charge' (as that term is defined in s 5 of the Animal Welfare Act 2002 (WA)) in relation to any livestock or partially or fully domesticated animal for a period of 14 years from 10 May 2023.

   (2)Subject to order (3), the appellant is prohibited from being in contact with any animal on her own for more than 24 consecutive hours at a time from 10 May 2023.

   (3)The appellant is permitted to own one dog (only) for companionship purposes. 

8. The appellant claimed that, if an order was maintained which required her to de-stock her property, she would require six months to do so.  In my view, that is an unreasonably long period.  Accordingly, the appellant should be required to remove all animals which fall within the ambit of (1) from her property by 10 May 2023.

Ground 2

1. By her original notice of appeal, the appellant sought to appeal the sentences imposed.

2. She specifically stated that she sought to appeal the suspended $20,000 fine imposed on her, on the basis that she did not believe it to be 'legally practical'.  The appellant did not elaborate on this submission at the hearing of the appeal.

3. At the hearing of the appeal, the appellant indicated that she sought to appeal both sentences on the basis that she has not had a single problem since Mr Cruden had been coming to her property and that he had agreed to continue to do so.

4. Neither of those submissions warrant interference with the sentences in this case.  However, the appellant is self‑represented.  It was understood on the appeal, and the respondent has made submissions on the understanding that, the appellant sought to contest the severity of each of the sentences imposed.  In the circumstances, I consider it appropriate to determine whether either of the sentences imposed was manifestly excessive.

5. The general principles governing appeals against sentence which assert implied error on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well‑established[68] and need not be repeated, save that an appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner.  It must be shown that the sentencing judge has made an error in exercising his or her discretion.[69]

   [68] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

   [69] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; House v R [1936] HCA 40; (1936) 55 CLR 499.

6. In Holding v Parkin,[70] Hall J set out the factors which he considered to be relevant in assessing the circumstances of an offence of animal cruelty pursuant to s 19 of the Animal Welfare Act:

   1.the nature of the harm inflicted on the animal (see definition of 'harm' in s 5);

   2.the length of time during which the animal suffered;

   3.the amount of suffering caused, that is the extent of any injury or the degree of pain or the amount of distress;

   4.the vulnerability of the animal, both in general and in relation to the particular offender;

   5.whether the conduct that caused the harm was a single act or a course of conduct; and

   6.whether the conduct was deliberate, intentional or planned, or was neglect of a duty to animals (one will not necessarily be more serious than another, it will depend upon the circumstances).

   [70] Holding v Parkin [2012] WASC 113 [41].

7. I respectfully agree with his Honour's approach and propose to consider this appeal by reference to these factors.

8. It is, of course, also necessary to take into account any mitigating factors, including those factors that are personal to the offender.

9. The maximum penalty for the offence is $50,000 and imprisonment for 5 years.[71]

   [71] Animal Welfare Act s 19(1).

10. The medical evidence established that the horse was so severely malnourished that there was almost no muscle evidence on her body apart from the muscles used for walking.  She had no fat reserves and was, in Dr Davies' opinion, close to death from starvation.  She had plainly been deprived of proper nourishment for some time, although exactly how long was difficult to establish.  It took almost three months for the horse to properly recover.  The animal did not appear to be in any particular distress, apart from her very poor condition.

11. The horse was, at all times, dependent on the appellant for sufficient food and water.  Ordinarily, the horse would at least have access to pasture.  It is unclear whether the area in which Remi was said to have been initially confined gave her access to pasture, but she certainly did not have such access once the appellant confined her to the laneway.  After that point, the horse was particularly dependent on the appellant.

12. The length of time over which the horse was deprived of food had to have been significant.  After the RSPCA seized Remi, she weighed 284kg.  In the following 114 days, she gained 98kg.  To that extent, the neglect of the horse was sustained and substantial.

13. However, there is no evidence that the neglect of the horse was deliberate.  Further, there is nothing which casts doubt on the appellant's claims that she was simply unaware that the horse was not getting sufficient food for at least part of the period over which she became so malnourished.  All of the other horses on the property were sufficiently fed and watered, which means that the neglect was not the result of a general failure of the appellant to obtain or put out sufficient feed.  As a result, the appellant's conduct, while still very serious, was not at the upper end of the range of animal cruelty cases.

14. The appellant did not have the benefit of a plea of guilty, or prior good character.  Having regard to her prior criminal history for similar offending, specific deterrence was a dominant sentencing consideration.

15. Pursuant to s 39(3) of the Sentencing Act 1995 (the Sentencing Act), the court must not use a sentencing option referred to in s 39(2) unless satisfied that a sentencing option listed before it is not appropriate. Somewhat curiously, a suspended fine is a sentencing option listed after, rather than before, a fine.

16. I was not referred to, and have not been able to locate, any comparable appellate cases which provide guidance as to the appropriate sentencing range.

17. Pursuant to s 53 of the Sentencing Act, the learned magistrate was obliged to take into account, as far as practicable, the appellant's financial means or the extent to which a fine would burden the appellant. His Honour was aware of the previous fine of $18,000 imposed on the appellant in October 2020. The appellant told him that she had 'had no income whatsoever'.[72]  The prosecution, in the course of sentencing submissions, submitted that the appellant had previously said that one reason she did not feed her animals properly was that she had previously been fined large amounts.[73]  However, his Honour did not refer to those factors.

    [72] Transcript, 2 November 2021, 108.

    [73] Transcript, 2 November 2021, 98 - 99.

18. The mere fact that his Honour did not refer to s 53 of the Sentencing Act in the course of his sentencing remarks does not necessarily mean that he failed to take the appellant's financial situation into account. In the absence of credible evidence to the contrary, it is to be assumed that a magistrate has taken all relevant matters into account.[74]  This is even more likely to be so in relation to the imposition of a fine, which is a very common sentencing disposition in the Magistrates Court.

    [74] Pickett v The State of Western Australia [2004] WASCA 291 [10]; Rundle v Innerd [2015] WASC 340 [117].

19. However, in light of the very limited information available to the learned magistrate, it would have been appropriate for inquiries to have been made of the appellant as to her means of paying a fine before imposing the sentence on the first charge.

20. Notwithstanding this, having regard to the seriousness of the offending, the sentencing principles set out in s 6 of the Sentencing Act, and the matters personal to the appellant, in my view a suspended fine in the sum of $20,000 was within, but towards the lower end of the appropriate sentencing range for the appellant's offending.

21. Accordingly, even if the learned magistrate erred in failing to comply with s 53, I am not satisfied that there has been a miscarriage of justice regarding the sentence imposed in relation to the first charge, and I dismiss the appellant's appeal on this ground.

22. Turning to the second charge, the appellant was convicted of an offence contrary to s 55(4) of the Animal Welfare Act. The maximum penalty for that offence was a fine of $20,000 and imprisonment for one year.

23. The order prohibiting the appellant from being in charge of, or having contact with, livestock for a period of 5 years, took effect from 31 December 2020.[75]

    [75] Exhibit 1.

24. The appellant submitted that she had tried her best to divest herself of the livestock, since the order was made.  She said she had tried to make some arrangements to do so, but articulated a number of barriers, including the issues with her neighbour, the heat,[76] COVID‑19 restrictions, the difficulty of transporting cattle, the fact that the cattle were not properly tagged, and her inability to move the horses.[77]  The appellant had arranged for someone to help her take care of the horses.  None of that evidence was challenged by the prosecution, or the respondent on appeal.

    [76] Transcript, 2 November 2021, 21.

    [77] Transcript, 2 November 2021 77 - 78, 84, 106 - 107.

25. Ms Green had said in evidence that one of the horses she observed on 16 February 2021 appeared to be injured.[78]  She took photographs,[79] which show an open wound on its right hip.  However, there was no evidence adduced by the prosecution that any of the horses in the appellant's possession on any of the three dates had been neglected in any way.

    [78] Transcript, 2 November 2021, 39.

    [79] Exhibit 6.

26. In sentencing the appellant on the second charge, his Honour said:

    You've failed to comply with an order of the court.  And the order was made one year and two days ago, or three days ago.  That you divest yourself of the animals, so you do not have contact or care of animals after 31 December 2020.  And it seems to me that you've - well.  The visit of the inspectors on 13 January, 16 February and 15 March 2021, they observed horses.  So that's what you're charged with.  But you've also admitted that there's still animals there and there's still cattle.

    You've - so in contravention of the order that was made last year, you had under your care, in charge of or contact with horses.  Several horses, in contravention of the order that was made last year …

    I don't accept that there has been any representation from the RSPCA that you were allowed to breach the order of the court last year. So in relation to that matter, I think it's a blatant disregard. It's a blatant disregard of an order of the court. The maximum penalty is a fine of $20,000 or one year's imprisonment. Given your repeated breaches of the Animal Welfare Act, I am satisfied that you have reached a situation where a term of imprisonment is appropriate but I will suspend that. And I'll suspend that term. So the term will be six months and 15 days imprisonment and it will be suspended for 12 months.

    Perhaps the biggest reason that I will suspend that term of imprisonment for is to allow you to divest yourself of the animals by 31 December this year.[80]

    [80] Transcript, 2 November 2021, 108 - 109.

27. There is no doubt that the appellant found it extremely challenging to divest herself of the livestock on her property.  Part of that, I accept, was for practical reasons, in that the appellant found it difficult to find people who would take the animals, and she found the exercise of transporting the animals to be particularly difficult.

28. However, in my view, at least some, if not a majority, of the obstacle to complying with the prohibition order was the appellant's reluctance to do so.  She was quick to find reasons to reject people as suitable to take possession of the horses.  She regarded the horses as 'my family'.[81]  She also professed, on appeal, to have had some difficulty understanding the exact meaning of the prohibition order, suggesting that she believed that, if she had a livestock manager, she had complied with the order.[82]  She professed not to understand that the order also included a prohibition on her having contact with livestock.[83]  While I am not certain that the appellant had as complete a misunderstanding as she professed, I do accept that she had trouble wholly understanding her obligations under the orders. 

    [81] Transcript, 2 November 2021, 24.

    [82] ts 93.

    [83] ts 93.

29. In my view, while the offending the subject of the second charge was not at the upper end of the range of seriousness for an offence of this kind, it was also not at the very lowest end of the range either.

30. Again, the appellant did not have the benefit of a plea of guilty or unblemished antecedents.  Her disregard for the orders of the court over the period of three months was properly to be regarded as significant.  Personal and general deterrence were important factors. 

31. There are no comparable cases which assist in establishing a range of sentences for this kind of offending.

32. The appellant fell to be sentenced for having failed to comply with it between January and March 2021, that is, in the three months after the order commenced.  While it was relevant that she still had livestock on her property, the appellant was not to be sentenced for a more extended breach of the order.  Further, while any breach of a court order is serious, the appellant's conduct had not resulted in any harm to any animal.

33. The learned magistrate had been told that the RSPCA was not willing or able to take all of the livestock from the appellant's property,[84] despite the acknowledgement of the prosecutor that the appellant was ill‑equipped to look after the horses herself.

    [84] Transcript, 2 November 2021, 101.

34. In my view, it is impossible to reconcile the learned magistrate's decision that the only appropriate disposition on the second charge was imprisonment with his Honour's determination that a suspended fine was appropriate for the first charge. 

35. The first offence attracted a greater maximum penalty, was the fourth instance on which the appellant had committed such an offence, and involved actual harm, characterised by the Animal Welfare Act as cruelty, to an animal. However, it was only in relation to the second offence that, in reaching satisfaction that the point had been reached at which a term of imprisonment was appropriate, the learned magistrate cited the appellant's 'repeated breaches of the Animal Welfare Act.'

36. The appellant had never been convicted of an offence of breaching an order under the Animal Welfare Act before. She had been convicted of ill-treating animals in 2005 and 2018, as well as the offence for which she was convicted in October 2020. However, the fact that the appellant had been previously convicted was not an aggravating factor in sentencing.

37. The appellant undoubtedly was experiencing serious difficulties in complying with the order, and the maximum penalty was significantly lower than for the first charge.

38. The learned magistrate considered the appellant's breach of the order to be a 'blatant' one.  However, even then, in my view, having regard to the maximum penalty, the seriousness of the offence, and the personal circumstances of the appellant, it was not open to the learned magistrate to find that the point had been reached that imprisonment was the only available disposition.  Accordingly, I am satisfied that the sentence on the second charge was manifestly excessive.

39. It is therefore necessary that the appellant be resentenced on the second charge.  I consider that a suspended fine is also the appropriate penalty in this case. 

40. I heard further from the parties on 5 April 2023 as to the factors set out in s 53 of the Sentencing Act before setting the amount of the fine to be imposed. The appellant’s financial circumstances have changed since the appellant’s trial, and her income stream is substantially reduced. She is paying her earlier fine on a fortnightly basis. As a result, the amount of the suspended fine will be very much lower than would otherwise be appropriate.

41. Further, having regard to the fact that the appellant has already served the period of the suspension in relation to the first charge, and the term of the suspension on the second charge must commence from today, the term of the suspension will be significantly less than would otherwise be appropriate if the appellant were being sentenced at first instance.  However, it remains appropriate to mark the seriousness of the appellant’s disregard of the court’s order. 

42. The fine will be in the sum of $2,000, and it will be suspended for a period of 3 months. 

Orders

1. The application for an extension of time is allowed in relation to the appeal against sentence.

2. Leave to appeal against conviction is dismissed on all grounds.

3. Leave to appeal against sentence on ground 1 is refused.

4. Leave to appeal against sentence is granted on ground 2.

5. The appeal is allowed in relation to ground 2.

6. The prohibition order imposed by the learned magistrate on 2 November 2021 in relation to charge AR 3628/2021 is amended to:

   (1)Subject to order (3), the appellant is prohibited from being a 'person in charge' (as that term is defined in s 5 of the Animal Welfare Act 2002 (WA)) in relation to any livestock or partially or fully domesticated animal for a period of 14 years from 10 May 2023.

   (2)Subject to order (3), the appellant is prohibited from being in contact with any animal on her own for more than 24 consecutive hours at a time from 10 May 2023 for a period of 14 years.

   (3)The appellant is permitted to own one dog (only) for companionship purposes. 

1. The sentence imposed by the learned magistrate on 2 November 2021 in relation to charge AR 3629/2021 is set aside and the appellant is resentenced to a suspended fine in a sum of $2,000.  The term of the suspension is 3 months. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AT

Associate to the Honourable Justice Forrester

5 APRIL 2023