Ceric v Reid and Liosatos
[2012] ACTSC 81
•March 5, 2012
NATASHA ANN CERIC v JARROD REID and JUDY LIOSATOS
[2012] ACTSC 81 (5 March 2012)
APPEAL — Appeal against sentence imposed by Magistrate — Appeal only against sentence “imposed” by Magistrates Court —Automatic period of disqualification from holding a licence — Travini v Starczewski — Disqualification not appellable.
APPEAL — Admission of fresh evidence by consent — Grooms v Toohey — Re-sentence.
Animal Welfare Act 1992 (ACT), ss 8(2), 101
Crimes (Sentence Administration) Act 2005 (ACT), s 108
Magistrates Court Act 1930 (ACT), s 216, div 3.10
Road Transport (Driver Licensing) Act 1999 (ACT), s 32
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Grooms v Toohey (2012) 258 FLR 161
Norbis v Norbis (1986) 161 CLR 513
Travini v Starczewski (2009) 169 ACTR 1
EX TEMPORE JUDGMENT
No. SCA 58 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 5 March 2012
IN THE SUPREME COURT OF THE )
) No. SCA 58 of 2011
AUSTRALIAN CAPITAL TERRITORY )
NATASHA ANN CERIC
Appellant
v
JARROD REID
First Respondent
JUDY LIOSATOS
Second Respondent
ORDER
Judge: Refshauge J
Date: 5 March 2012
Place: Canberra
THE COURT ORDERS THAT:
Natasha Ann Ceric be granted leave to amend the Notice of Appeal to include an appeal against the community service condition to the Good Behaviour Order in respect of the charge of failing to take reasonable steps to alleviate pain.
The appeal be upheld in part.
The appeal against the sentence for the charge of, as a first offender, driving on 15 November 2010 while the licence of Natasha Ann Ceric was suspended by law, be dismissed.
The appeal against the orders made under s 101 of the Animal Welfare Act 1992 (ACT) in respect of the charge under s 8(2)(d) of that Act be upheld.
The orders made under s 101 of the Animal Welfare Act 1992 (ACT) be set aside and in lieu it be ordered:
a. That any animal of which Natasha Ann Ceric is in charge be removed from her possession and control and placed in the care of her mother, namely, Nicola Cowling; and
b. That Natasha Ann Ceric not purchase, acquire or take possession or custody of any animal for the period of 12 months from 6 May 2011 to 5 May 2012.
The appeal in respect of the community service condition to the Good Behaviour Order, in respect of the charge of failing to take steps to alleviate pain, be upheld in part so as to readjust the sentence to require that the balance of the 208 hours, namely, 171 hours, be performed on or before 5 May 2013.
Natasha Ann Ceric be warned that she needs to comply with the good behaviour obligations under the Good Behaviour Orders that have been imposed on her and, in particular, to complete the community service condition as required.
AND THE COURT DECLARES THAT:
The disqualification period under s 32(5)(a) of the Road Transport (Driver Licencing) Act 1999 (ACT), commenced on 6 May 2011 and ends on 5 May 2012.
On 6 May 2011, the appellant, Natasha Ann Ceric, was convicted on her pleas of guilty to the offences of:
(a) being a person in charge of an animal, namely, a kelpie, failing to take reasonable steps to alleviate pain suffered by the animal, a breach of
s 8(2)(b) of the Animal Welfare Act 1992 (ACT) for which the maximum penalty is 100 penalty units, that is a fine of $110 000, or 1 year’s imprisonment or both;
(b) from 1 August 2009 to 14 August 2009, being a person in charge of a kelpie dog and neglecting it in a way that caused it pain, an offence under
s 8(2)(d) of the Animal Welfare Act, which attracts the same maximum penalty;
(c) on 15 November 2010, as a first offender, driving while her licence was suspended by law, an offence under s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), for which she was liable to a maximum penalty of 50 penalty units, that is a fine of $5 500, or 6 months imprisonment or both;
and, it appears, a number of other offences to which I do not have to make reference.
On the first charge, the sentencing Magistrate imposed a Good Behaviour Order for 18 months with security of $500, a probation condition and a community service condition that Ms Ceric perform 208 hours of community service work within 12 months.
On the second charge, a Good Behaviour Order was made in the same terms but without a community service condition. In addition, however, orders were made under s 101 of the Animal Welfare Act that any animals in Ms Ceric’s possession be removed and placed in the care of the RSPCA, and that she be prohibited from acquiring or taking possession or custody of any animal for 2 years.
On the third charge she was fined $200 and disqualified for driving for 12 months.
On 6 June 2011, the last day of the appeal period, she appealed against these orders, in particular, the period of the disqualification, the removal of the animals to the RSPCA and the prohibition from her acquiring or taking possession or custody of any animals for 2 years.
Appeals against orders such as those made by the Magistrates Court in respect of Ms Ceric are regulated by div 3.10 of the Magistrates Court Act 1930 (ACT). In those circumstances, it is not for this Court to simply substitute its own views for those of the Magistrate. As Mason and Deane JJ said in Norbis v Norbis (1986) 161 CLR 513 at 518:
The principles enunciated in House v The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within in a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principle and decision‑making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part.
As I have set out in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles relating to appeals from the Magistrates Court require the identification of error such as the failure to take into account relevant considerations, the taking into account of irrelevant considerations, error of law and the like. They also include the possibility that manifestly excessive sentencing may disclose error although no specific error has been identified.
In addition, under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the orders appealed from and may in certain cases, even where the appeal is dismissed, require further action in respect of the matters.
In this appeal, Ms Ceric complained that:
a. the removal of her two dogs and cat was unreasonable, although one of the animals has since been put down;
b. the prohibition on her acquiring or possessing or having custody of animals was excessive; and
c. the disqualification of her licence was excessive.
On the appeal, she tendered, by consent, a number of character references. They attest to her as a caring person, that she was to be trusted with dogs, that she had work available if she had a driver licence and that she was a loyal and hard working employee. A reference from a medical practitioner also showed that she had been attending counselling for anger and relationship issues.
As a result of this evidence, and applying the principles I set out in Grooms v Toohey (2012) 258 FLR 161, I have decided that some adjustment is required to some of the sentences imposed.
In relation to the licence disqualification the position is, however, different. Her Honour, though announcing the disqualification of 12 months, was not actually imposing it for it was imposed by statute under s 32(5)(a) of the Road Transport (Driver Licensing) Act. That prevents it from being the subject of an appeal to this Court, as it is not imposed by the Court: see Travini v Starczewski (2009) 169 ACTR 1 at 6–9; [13]–[35], 11; [60]–[62]. As such, there can be no appeal against the decision.
That, however, means that Ms Ceric has been disqualified from driving since 6 May 2011. She informed me, and I have no reason to doubt it, that she has in fact not been driving since that date. Accordingly, to ensure that there is no doubt, I make an appropriate declaration as to the period of her disqualification. As to the other matters, I consider that, notwithstanding the references, the sentences are appropriate, apart from three matters.
The first matter is the disposal of the dogs and the cat to the RSPCA. There is no doubt that Ms Ceric is a caring person. It was clear that she has had access to and care of animals for much of her life. She is a responsible adult, familiar with pets. Nevertheless, the circumstances which were starkly set out in the appeal papers and in the reports of the veterinary surgeon who attended the kelpie dog, the subject of the charges, shows that the protection of animals in these circumstances is important.
The welfare of the pets, while important, does include that they should have what might be called their personal circumstances taken into account. Thus, to be taken into the care of strangers is less desirable than that they be taken into care by a responsible person who has, no doubt, some familiarity with them and could more sensibly and easily allow Ms Ceric to have some access to them, though without possession, custody or control of them.
Her Honour did not investigate whether there was such a person. There was, in fact, such a person, namely, Ms Ceric’s mother Ms Nicola Cowling. It seems to me that the order should be varied so as to provide for Ms Cowling to take responsibility for the dogs in this circumstance. This will allow the dogs and the cat to be in circumstances where they are not simply with strangers and that they may have some contact with the person who was their primary carer up until the orders were made, which will be of benefit to the animals. It will also give Ms Ceric’s mother an opportunity to ensure that Ms Ceric will deal with the animals in an appropriate manner.
Secondly, there is the prohibition for two years. The sentencing Magistrate did not explain why two years was appropriate for the prohibitions that her Honour made. Ms Ceric’s record is relatively minor, with six low-level offences. There are no similar offences and indeed there are no offences on her record since prior to January 2006. The offences that are recorded are minor traffic and street offences.
While the condition of the dog was a matter of serious concern, as I have indicated above, Ms Ceric showed insight into the circumstances. The Pre-Sentence Report refers to her as being embarrassed and disgusted with herself as to the condition of the dog. It noted that she had owned animals all her life and had indeed looked after animals for other people. No charges had been brought against her and there were no complaints brought to the notice of the court in relation to those matters. It was not in her character to be deliberately cruel and she had spent, she told the author of the Pre-Sentence Report, significant money on caring for the dog.
The Pre-Sentence Report further assessed Ms Ceric as at low risk of re‑offending. Indeed, it is suggested that there was no need and limited value in continuing supervision by ACT Corrective Services. I note that, nevertheless, her Honour did make such an order.
In the Pre-Sentence Report, there was an accounting of Ms Ceric’s recognition that she had some emotional issues that had to be addressed and, in particular, some need for anger management and stress and relationship management. As noted above, the report from her general practitioner shows she is now getting it. She also expressed remorse and showed an insight into the offending. In all the circumstances, it seems to me that two years is too long a period.
The third matter is the community service condition. Ms Ceric, having no car but now living in Cooma, has found it difficult to get to Canberra and to discharge her obligations under the community service condition of the Good Behaviour Order. Indeed, preferred before me was a breach of the community service condition showing that, while Ms Ceric had performed a number of hours of community service, there had been a number of occasions on which she had failed to perform work as directed and failed to notify the service of her inability to do so.
As at today, it appears that she has 171 hours of community service still outstanding. Ms Ceric acknowledged the breach and asked me to deal with that today. It seems to me that I should deal with the breach under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT) by amending the Good Behaviour Order and warning Ms Ceric about the need to comply with her obligations. I will do so.
Having regard to the matters to which I have referred, I will make the following orders:
(1) That Ms Ceric be granted leave to amend the Notice of Appeal to include an appeal against the community service condition of the Good Behaviour Order in respect of the charge of failing to take reasonable steps to alleviate pain;
(2) That the appeal be upheld in part;
(3) That the appeal against the sentence for the charge of, as a first offender, driving on 15 November 2010 while her licence was suspended by law, be dismissed;
(4) That the appeal against the orders made under s 101 of the Animal Welfare Act 1992 (ACT) in respect of the charge under s 8(2)(d) of that Act be upheld;
(5) That the orders made under s 101 of that Act be set aside and in lieu it be ordered:
a. That any animal of which Natasha Ann Ceric is in charge be removed from her possession and control and placed in the care of her mother, namely Nicola Cowling;
b. That Natasha Ann Ceric not purchase or acquire or take possession or custody of any animal for the period of 12 months from 6 May 2011 to 5 May 2012.
(6) That the appeal in respect of the community service condition to the Good Behaviour Order, in respect of the charge of failing to take steps to alleviate pain, be upheld in part so as to readjust the sentence to require the balance of the 208 hours; namely 171 hours, be performed on or before 5 May 2013.
(7) That Natasha Ann Ceric be warned that she needs to comply with the good behaviour obligations under the Good Behaviour Orders that have been imposed on her and, in particular, to complete the community service condition as required.
I will also declare that the disqualification period, under s 32(5)(a) of the Road Transport (Driver Licensing) Act, commenced on 6 May 2011 and ends on 5 May 2012.
I certify that the preceding twenty four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 28 May 2012
Counsel for the appellant: In Person
Counsel for the respondent: Mr A Doig
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 5 March 2012
Date of judgment: 5 March 2012
0
3
4