Croatto v Banks
[2015] ACTSC 398
•18 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Croatto v Banks |
Citation: | [2015] ACTSC 398 |
Hearing Date(s): | 16 October 2015 |
DecisionDate: | 18 December 2015 |
Before: | Burns J |
Decision: | The appeal is dismissed. The appellant is to pay the reasonably incurred costs of the respondent in relation to the appeal. |
Catchwords: | APPEAL – Crown Appeal Against Sentence – manifest inadequacy – appeal dismissed. CRIMINAL LAW – Animals – failure to take reasonable steps to alleviate any pain suffered by an animal – neglecting an animal in a way that caused it pain. |
Legislation Cited: | Animal Welfare Act 1992 (ACT) ss 8(2)(b), 8(2)(d) Crimes (Sentencing) Act 2005 (ACT) s 7 Magistrates Court Act 1930 (ACT) s 219B |
Cases Cited: | Dinsdale v The Queen (2000) 202 CLR 321 Ganke v Deputy Fedreal Commissioner of Taxation (1975) 75 ATC 4097 Wong v The Queen (2001) 207 CLR 584 |
Parties: | Catherine Croatto (Appellant) Annette Banks (Respondent) |
Representation: | Counsel Mr J Hiscox (Appellant) Mr J Lawton (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Rachel Bird & Co (Respondent) | |
File Number(s): | SCA 58 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Dingwall Date of Decision: 1 July 2015 Case Title: Banks v Croatto Court File Number(s): CC15/40502; CC15/40503; CC15/40504 |
BURNS J:
These proceedings are a prosecution appeal from the decision of a magistrate. On 1 July this year, the respondent was convicted and sentenced with respect to three charges under the Animal Welfare Act 1992 (ACT) (the Act):
(a)failure to take reasonable steps (including, if appropriate, seeking veterinary treatment) to alleviate any pain suffered by an animal, being a shih tzu dog named Lucky, under s 8 (2) (b) of the Act (CC2015/40502). For this offence, a conviction was recorded and the respondent was fined $250.00;
(b)neglecting an animal, being the dog Lucky, in a way that caused it pain under s 8 (2) (d) of the Act (CC2015/40503). For this offence, a conviction was recorded and no further penalty was imposed on the respondent; and
(c)failure to take reasonable steps (including, if appropriate, seeking veterinary treatment) to alleviate any pain suffered by an animal, being a terrier cross dog named Rocky, under s 8 (2) (b) of the Act (CC2015/40504). For this offence, a conviction was recorded and the respondent was fined $100.00.
The appellant appeals on the sole ground that the sentences imposed by the Magistrate were manifestly inadequate.
Background
On 26 November 2014, the respondent requested that her son-in-law take her dog, Lucky, to the Tuggeranong Veterinary Hospital. Lucky presented as being skinny with the following ailments:
(a)a matted coat;
(b)multiple ulcerated masses around the anus, which were fly blown;
(c)the skin on the left perineal area between the scrotum and the body had been eaten away by maggots;
(d)cardiac issues, identified as a grade V/V1 heart murmur with a palpable thrill;
(e)built up scar tissue on the left eye with ocular discharge; and
(f)severe dental disease.
Shortly after the veterinarian’s examination of Lucky, he was euthanized due to his poor condition. The veterinarian considered that the flystrike and the ulcerated masses around the anus would have caused Lucky considerable pain. The veterinarian also noted that it appeared that Lucky had lost vision in his left eye and that the right eye had been surgically removed several years ago.
On the following day, a complaint was received by the RSPCA in relation to the condition of Lucky. RSPCA inspectors then examined Lucky’s body at “Pets at Peace” in Macarthur, where they took a number of photos of Lucky. The RSPCA inspectors also received information that the respondent owned another dog that was in poor condition, named Rocky.
On 12 December 2014, the inspectors attended the respondent’s address and informed her that a complaint had been received about Lucky. The respondent replied that “He liked licking himself down there”. She told the inspectors that Rocky was at a friend’s house and then discontinued the conversation by closing the front door on the inspectors.
Later that day, the inspectors re-attended the location and sighted Rocky. They noted that his coat was in poor condition and that he had extensive hair loss over his body. They also noticed dried discharge around the dog’s eyes. The respondent was then cautioned and asked a number of questions. When asked about the open sores on Lucky’s body, the respondent replied, “I don’t know, I didn’t even realise they were there”. When asked if she had seen any maggots on Lucky she replied, “Only that night, I saw one. I thought that was where he had a wet spot, where he was licking all the time”. The RSPCA inspectors then seized Rocky and explained to the respondent that it was due to his poor condition. The respondent declined to answer any further questions.
Rocky was then taken to RSPCA Weston where he was examined by a veterinarian. A number of photographs were also taken. The examination revealed the following issues:
(a)poor condition of his coat, specifically generalised alopecia and hyperkeratosis, which is the abnormal thickening of the outer layer of the skin;
(b)an ulcer on the fifth toe of the right forelimb;
(c)severe dry eye, resulting in superficial ulceration over the entire corneas in both eyes;
(d)severe dental disease; and
(e)a split tongue from a past injury.
The veterinarian noted that his severe dry eye would have been causing him discomfort and his severe dental disease would have been painful.
The proceedings before the Magistrate
The respondent was first charged before the Magistrates Court on 21 April 2015. The matter was then adjourned to 19 May 2015. On that date, the respondent entered a plea of guilty to all three charges. The matter was then adjourned to 1 July 2015 for sentencing.
The sentencing hearing proceeded expeditiously by way of a tendered Agreed Statement of Facts. The Prosecutor did not call the veterinarians that examined each dog to give evidence or any other expert evidence pertaining to the conditions of the dogs. The veterinarian’s opinion regarding each dog was briefly contained within the Statement of Facts.. In relation to Lucky, the veterinarian had stated that his condition was the result of neglect and a reasonable owner should have noted his condition and taken reasonable steps to have him examined by a veterinarian. In relation to Rocky, the veterinarian’s professional opinion was that a reasonable owner should have noticed the discharge around Rocky’s eyes, and the resulting discomfort, and sought veterinary attention.
The level of the respondent’s culpability in relation to these offences was not addressed at the sentencing hearing; that is, no expert evidence was adduced as to the length of time any of the conditions listed above would have been extant, most significantly the flystrike on Lucky. Ms Bird, appearing for the appellant in the Magistrates Court proceedings, attempted to address this, submitting that her “research”, which she referred to as “literature from web sites”, had revealed a flystrike is a fast moving affliction for dogs and can be fatal within 24 hours. This was not challenged by the prosecution in the proceedings before the Magistrate.
The respondent did not give evidence at the sentencing hearing, however, Ms Bird informed the Magistrate, without objection, that the respondent had suffered from a serious gastric condition for a period of nine days prior to the time of the offences. The respondent submitted that she had caught this through her work as a cleaner at an aged care facility. Three letters were also tendered by the respondent, authored by a co-worker, her son and herself. They indicated that she has been quite distressed by the loss of her dogs.
In the short sentencing remarks delivered by the Magistrate, the following factors were noted:
(a)the respondent pleaded guilty;
(b)the respondent was suffering a serious gastric condition at the time of the offences, which rendered her unable to monitor and care for the dogs;
(c)the respondent is someone who has affection for animals and would not have intentionally or deliberately caused them pain;
(d)there had been no previous intervention of the RSPCA;
(e)both dogs were elderly;
(f)with respect to Lucky, the flystrike and the mass in his left eye would have caused him pain; and
(g)with respect to Rocky, his dry eye condition would have caused him pain.
Before sentencing the respondent, the Magistrate also noted that the offences are generally viewed seriously. The Magistrate further noted that, due to dogs’ inability to care for themselves and their dependence on their owners to look after them, a heavy responsibility rests on dog owners. The Magistrate considered that the best way to approach the matter was by imposing fines. The Magistrate also stated that he had difficulty distinguishing between the culpability or the criminality in respect of the two charges that relate to Lucky, and considered that one was entirely encompassed within another, which led to no further penalty being imposed on the respondent under s 8 (2) (d) of the Act.
The respondent’s solicitor also submitted that, in regards to the respondent’s capacity to pay a fine, she has a modest wage of approximately $400.00 per week, part of which is made up of Centrelink payments.
Relevant law
This appeal is a review appeal and is brought pursuant to s 219B of the Magistrates Court Act 1930 (ACT).
The principles upon which an appeal court will review a discretionary judgment are well established. In House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ stated that a primary judge’s discretion should not be interfered with on appeal unless there is an identifiable error before considering the types of errors that would warrant appellate court intervention. The appellant’s claim of manifest inadequacy was referred to as the “residual category of error” by Guadron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at 605:
Reference is made in [House v The King] to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residual category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In the second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principles, even though where and how is not apparent from the statement of reasons.
In Hall v CL [2015] ACTSC 286 at [118], Refshauge J considered that the principles applicable to Crown appeals against sentence also apply to prosecution appeals against sentence from the Magistrates Court. Those principles were stated in R v TW (2011) 6 ACTLR 18 at [4] as follows:
i) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle.
ii)Occasions may arise for the bringing of a Crown appeal:
a.when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;
b. where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person;
c.to enable the courts to establish and maintain adequate standards of punishment for crime;
d. to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected;
e.to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience; and
f.to ensure, as far as the subject matter permits, that there will be uniformity of sentencing.
iii)When, in response to a Crown appeal, the court decides to resentence an offender it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat lesser than the sentence it considers should have been imposed at first instance.
iv)The appellate court has an over-riding discretion which may lead it to decline to intervene even if it concludes that error has been shown.
Both parties referred to a number of authorities relevant to an appeal ground of manifest inadequacy (or excess). While I do not propose to recite them all here, it is helpful to refer to the principles noted by the Court of Appeal in R v TW at [60]:
In R v Campbell, this court set out in summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32] to [35]):
32. In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]):
The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion.
33. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):
What must be looked at it is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
34. It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
35. The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.
(citations omitted)
In Dinsdale v The Queen (2000) 202 CLR 321, Gleeson CJ and Hayne J noted that there is no particular verbal formula when determining whether a sentence is manifestly inadequate (at [6]):
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is too long or too short. But to identify the type of error amounts to no more than a statement of a conclusion that has been reached. It is not a statement of reasons arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
The appellant’s submissions
The appellant identified factors it considered relevant from which a conclusion of manifest inadequacy can be drawn:
(a)the Magistrate’s failure to properly assess the objective seriousness of each of the offences;
(b)the Magistrate’s failure to properly reflect the objective seriousness in the actual sentences imposed vis-a-vis the maximum penalty;
(c)the Magistrate’s misconception of the offence provision of s 8 (2) (b) of the Act;
(d)the Magistrate’s treatment of the two charges concerning Lucky as being wholly contained within each other; and
(e)the Magistrate’s failure to properly consider and reflect s 7 of the Crimes (Sentencing) Act 2005 (ACT).
I note that the maximum penalty for an offence both under ss 8 (2) (b) and 8 (2) (d) of the Act is a fine of $15,000.00, imprisonment for one year or both. The appellant submitted that, when comparing the maximum penalty with that imposed by the Magistrate, the respondent’s sentences represented an “almost nominal” penalty. I note the comments of Gleeson CJ, Gummow, Hayne and Callinan JJ regarding maximum penalties in Markarian v R (2005) 215 ALR 213 at 22:
...careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all the other relevant factors, a yardstick.
In written submissions, the appellant sought to describe the differences between ss 8 (2) (b) and 8 (2) (d) of the Act that the Magistrate should have considered in sentencing. Section 8 (2) (d) of the Act is the offence of neglecting an animal in such a way that causes it pain. With respect to Lucky, the appellant submitted that part of the neglect was not looking after Lucky as an ordinary prudent dog owner would, which facilitated the ulcerated masses around the anus and the flystrike to take hold. The appellant submitted that an ordinary prudent dog owner would wash, groom and check the dog. Section 8 (2) (b) is one of failing to take reasonable steps (including, if appropriate, seeking veterinary treatment) to alleviate pain. The appellant submitted that the Magistrate wrongly referred to this offence as “failing to take the dog to the vet”. The appellant submitted that there are many steps an ordinary dog owner could have taken in response to the condition of the dogs, such as washing, grooming, and inspection of eyes and teeth of the dogs.
In oral submissions the appellant drew attention to the comments of the respondent when questioned by the RSPCA inspectors, which I have set out at [6] – [7]. From these comments, the appellant sought to draw an inference as to the respondent’s level of knowledge with respect to Lucky’s condition, being that she was aware that Lucky was flyblown. The appellant, however, ultimately conceded that those comments were not of assistance in ascertaining the level of the respondent’s culpability.
The appellant also submitted that the Magistrate failed to properly consider specific considerations found within s 7 of the Crimes (Sentencing) Act 2005. The appellant contended that, when considering the sentencing remarks as a whole, it is apparent that the Magistrate failed to properly consider the need for adequate punishment and denunciation of such conduct to adequately recognise the harm done to the dogs. The appellant submitted that the need for general deterrence was not reflected in the sentence imposed.
The respondent’s submissions
The respondent sought to rely on the Court of Appeal’s comments in The Queen v Ang [2014] ACTCA 17, when they considered the principles relating to manifest inadequacy or excess (at [24]):
A claim of manifest inadequacy or excess is a claim that despite the absence of identifiable error in the process, the outcome is so dramatically inappropriate that an error of some kind must be inferred.
Where manifest inadequacy or excess is found, there is no separate step for the appeal court of considering whether the sentence is inappropriate; that conclusion is implicit in the finding of manifest inadequacy or excess. In considering a claim of manifest inadequacy or excess, particular aspects of the sentencing judge’s consideration are not in issue; what may well be in issue, however, are the facts and circumstances that were available for consideration in the sentencing process.
(emphasis added)
It is the emphasised remark from Ang that the respondent seeks to rely on. The respondent submitted that, despite the appellant relying solely on the ground of manifest inadequacy, the larger part of the appellant’s submissions were focused on criticising “particular aspects of the sentencing Judge’s consideration”. He then referred to another passage in Ang at [22] – [23]:
That is, appeal grounds framed to assert “failures” by the sentencing judge to have proper or adequate regard to a matter, or to complain about the weight given to particular matters by the sentencing judge, do not properly “invoke either category of appellate intervention”.
The Crown’s particulars of manifest inadequacy in this case, still framed as failures on the part of the sentencing judge, suggest an ongoing misunderstanding of the difference between a claim of specific error of the kind described in House v The King (1936) 55 CLR 499 and a claim of manifest inadequacy or excess. The former is an explicit claim that the sentencing process has gone wrong in an identifiable way, which might or might not have produced an inappropriate result; this is why an identifiable error in the sentencing process will only require re-sentencing if the appeal court considers that another sentence is appropriate (that is, that the outcome of the flawed process is also flawed).
The respondent submitted that, to correctly reply Ang, the Court must consider the facts and circumstances, which the respondent submitted were those set out by the Magistrate in his reasons, to which I have referred to above at [14].
Counsel also emphasised that, when the respondent became aware of Lucky’s condition, she sought to have him taken to a veterinarian, and therefore she should be placed at the lower end of the spectrum for culpability.
Consideration
I am not satisfied that the sentences imposed by the Magistrate are manifestly inadequate. The Magistrate was entitled to treat this case as extraordinary, and to impose penalties at the very bottom of the range for such offending.
The circumstances that are relevant to determining the objective seriousness of an offence of failing to take reasonable steps to alleviate pain suffered by an animal under s 8 (2) (b) of the Act include:
(a)the level of pain likely to have been suffered by the animal;
(b)the length of time during which the pain was suffered;
(c)the level of appreciation of the defendant that the animal was suffering pain;
(d)the length of time that the defendant had that appreciation; and
(e)any steps taken by the defendant, not amounting to reasonable steps, to alleviate the pain.
The circumstances that are relevant to determining the objective seriousness of an offence of neglecting an animal so as to cause it pain contrary to s 8 (2) (d) of the Act include:
(a)the level of neglect, by which I mean the precise factual manner in which the animal is neglected;
(b)the period over which the animal was neglected;
(c)the level of pain likely to have been suffered by the animal;
(d)the length of time during which the pain was suffered;
(e)the level of appreciation of the defendant that the animal was suffering pain;
(f)the length of time that the defendant had that appreciation.
With respect to Lucky, the Statement of Facts presented to the Magistrate said: “Lucky would have been in considerable pain due to ulcerated masses around the anus and the flystrike”. That was the only mention of pain concerning Lucky in the Statement of Facts, although there was a statement that other aspects of the dog’s condition would have been “uncomfortable”. There was no evidence before the Magistrate that indicated how long the ulcerated masses may have been present, nor for how long the dog may have been afflicted by flystrike. Counsel then representing the respondent put to the Magistrate, without demur from the prosecutor, that her enquiries suggested that maggots may appear within 8 to 12 hours of flystrike. On the material presented, the Magistrate was entitled to find that Lucky had not been in pain for a lengthy period, and that the pain may have been present for a very short period.
It was also put to the Magistrate on behalf of the respondent, again without demur by the prosecutor, that the respondent had been severely ill for some time before Lucky was taken to the veterinarian, and was “effectively...bedridden for a period of nine days”. There was no evidence before the Magistrate to suggest the respondent was aware of the ulcerated masses, or the flystrike, on Lucky until shortly before she arranged for the dog to be taken to the veterinarians. The Magistrate was entitled to conclude that the respondent’s culpability for that offence was at the bottom of the range.
The word “fail” in s 8 (2) (b) of the Act is worthy of consideration. It is a word often encountered in provisions creating regulatory offences. In Ingram v Ingram (1938) 38 SR (NSW) 407, Jordan CJ said at 410:
As to the first point, where it is provided by statute that certain consequences shall follow if a person fails to do something which is directed to be done, the meaning of the word ‘fail’ depends upon the context in which it is found. In some contexts it may mean simply the omission to do the thing in question, irrespectively of any reason which may have existed for his not doing it. In other cases it may mean an omission to do the thing by reason of some carelessness or delinquency on his part, but the person in question is not responsible. In other cases, it may mean omission to do the thing, but so that omission caused by impossibility arising from some causes is included and from others is excluded. In the case of s. 11 [failure to comply with a restitution decree under the Matrimonial Causes Act 1899] I am of the opinion that the mere fact that the directions of the restitution decree have not been performed, although supplying evidence of failure to comply with the decree, does not establish such failure conclusively; and that evidence that the non-performance has been occasioned by some supervening impossibility to which no carelessness or delinquency on the part of the respondent in any way contributed would justify the inference that there had been no failure to comply with the decree.
(citations omitted)
The dicta of Jordan CJ in Ingram was cited with approval in Ganke v Deputy Federal Commissioner of Taxation (1975) 75 ATC 4097, which considered an offence of failing to duly furnish information required by a notice issued by the Deputy Commissioner of Taxation under s 122 of the Income Tax Assessment Act 1936 (Cth). In the Court of Criminal Appeal of New South Wales, the Court (Nagle J, with whom Street CJ and Begg J agreed) preferred the second category referred to by Jordan CJ, and determined that a “failure” for the purposes of s 122 was “an omission to do the thing by reason of carelessness or delinquency on his part, but not omission caused by impossibility for which the person in question is not responsible”. In my opinion, such an approach should be taken to the interpretation of the word “fails” in s 8 (2) (b) of the Act. It could hardly have been the intention of the legislature to criminalise failures on the part of a person in charge of an animal unaccompanied by carelessness or delinquency, albeit that an animal may be suffering pain. For example, cattle on a large property may range over a large area while grazing, such that it would be impossible to check the condition of each animal daily. It could hardly be suggested that the owner of such cattle would be guilty of an offence under s 8 (2) (b) if one of the animals developed a painful condition unknown to the owner, and for a period of time suffered pain in circumstances where there was no carelessness on the part of the owner.
The Magistrate recorded a conviction but imposed no further penalty on the respondent with respect to the charge of neglecting Lucky in a way that caused it pain. It will immediately be observed that s 8 (2) (d) of the Act does not criminalise all forms of neglect of an animal, but only those that cause the animal pain. As I have already noted, the Statement of Facts only asserted that the dog suffered pain as a result of the ulcerated masses around its anus and the flystrike. These were the same conditions that formed the basis of the charge under s 8 (2) (b) of the Act. The Magistrate was quite correct to identify significant common elements between the charge under s 8 (2) (b) and that under s 8 (2) (d). The circumstances to which I have referred concerning the respondent’s level of culpability for the offence under s 8 (2) (d) apply equally to the offender under s 8 (2) (d). The circumstances of the offence under s 8 (2) (d) did not involve significantly different criminal conduct to that relevant to the offence under s 8 (2) (b).
I note in passing that the Magistrate appears to have accepted that Lucky was euthanized because of the ulcerated masses and the results of the flystrike. Undoubtedly those conditions were taken into account in making the decision to euthanize, but the Statement of Facts says that other circumstances contributed to that decision, including the age of the dog and its cardiac issues. There was, of course, no suggestion that the respondent was responsible for those matters. The Statement of Facts did not support the proposition that the condition of the dog, relevant to the offences under s 8 (2) (b) or s 8 (2) (d), by itself necessitated or warranted euthanizing the dog.
Turning to the charge concerning Rocky, the Statement of Facts referred to two conditions which would have been causing the dog pain, being severe dental disease and severe dry eye. The dry eye condition resulted in corneal ulcers and discharge around the eyes of the dog. The Statement of Facts is silent as to how long Rocky may have been suffering from these conditions and, more importantly, for how long they may have been causing him pain, although it may be inferred that the dental disease had been developing for some time. There was no evidence before the Magistrate concerning how long the conditions would have been evident to the respondent. The respondent’s personal ill health in the period before Rocky was seized was also relevant to determining her culpability for this offence, for the same reasons that I have referred to with regard to the corresponding offence concerning Lucky.
On the basis of the material placed before him, the Magistrate was entitled to assess the respondent’s culpability as at the bottom of the range of such offences. The appellant has not demonstrated that the sentences imposed by the Magistrate were manifestly inadequate.
Orders
The appeal will be dismissed.
In accordance with s 219F (8) of the Magistrates Court Act 1930 (ACT), the appellant is to pay the reasonably incurred costs of the respondent in relation to this appeal.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 18 December 2015 |
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