Culverwell v Ginbey
[2016] WASC 3 (S)
•8 SEPTEMBER 2016
CULVERWELL -v- GINBEY [2016] WASC 3 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 3 (S) | |
| Case No: | SJA:1076/2014 | ON THE PAPERS | |
| Coram: | CORBOY J | 8/09/16 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application to vary reimbursement order dismissed | ||
| B | |||
| PDF Version |
| Parties: | ADELE CULVERWELL KEITH NEVILLE GINBEY |
Catchwords: | Criminal law Appeal s 55 of the Animal Welfare Act 2002 (WA) Whether appeal court can vary reimbursement order made following conviction |
Legislation: | Animal Welfare Act 2002 (WA), s 55 |
Case References: | Culverwell v Ginbey [2016] WASC 3 Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
KEITH NEVILLE GINBEY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R S HUSTON
File No : PE 18751 of 2013
Catchwords:
Criminal law - Appeal - s 55 of the Animal Welfare Act 2002 (WA) - Whether appeal court can vary reimbursement order made following conviction
Legislation:
Animal Welfare Act 2002 (WA), s 55
Result:
Application to vary reimbursement order dismissed
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : Ross Christoforou
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Culverwell v Ginbey [2016] WASC 3
Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386
1 CORBOY J: The appellant was convicted of the offence that, being a person in charge of an animal, namely a dog, she was cruel to the animal by confining it in a manner that caused it unnecessary harm, contrary to s 19(1) and s 19(3)(b)(ii) of the Animal Welfare Act 2002 (WA). She was fined $5,000 and ordered to pay legal and care costs. An order was also made that her dog, 'Roxy', be forfeited to the Crown (s 55(2)(c)(ii) of the Act).
2 The appellant appealed from her conviction. Her amended appeal notice pleaded 16 proposed grounds of appeal. A further proposed ground of appeal was added to the notice immediately prior to the hearing of the appeal.
3 I granted leave to appeal on proposed grounds 4 - 6 and the proposed additional ground. However, I dismissed the appeal on those grounds. I further found that none of the remaining proposed grounds of appeal had a reasonable prospect of success. Accordingly, leave to appeal on those grounds was refused: Culverwell v Ginbey [2016] WASC 3.
4 The respondent has now applied for an order under s 55(2)(f) of the Animal Welfare Act seeking to vary an order made by the presiding magistrate pursuant to that section. I have concluded that the application should be refused for the reasons that follow.
The Animal Welfare Act
5 Section 40 of the Animal Welfare Act provides that an inspector may provide to an animal any food, water, shelter, care or treatment the inspector considers necessary to ensure the welfare, safety and health of the animal. Section 42 of the Animal Welfare Act provides that an inspector may seize an animal if the inspector reasonably suspects that an offence under pt 3 of the Act is being, or has been, committed in respect of the animal.
6 Section 55 of the Act provides that:
(1) A court convicting a person of an offence under this Act may, in addition to imposing a penalty, make any other orders against the offender that the court considers appropriate to protect the welfare, safety and health of an animal, a group of animals or animals in general.
(2) Without limiting subsection (1) a court may -
…
(c) order the forfeiture to the Crown of -
(i) seized property owned by the offender;
(ii) an animal owned by the offender; or
(iii) anything used by the offender in the commission of the offence;
…
(f) order the offender to reimburse a person who incurred costs under section 40(1), 41 or 42 in relation to -
(i) the animal the subject of the offence;
…
(1) A person who has incurred costs under section 40(1), 41 or 42 in relation to an animal may apply to the Magistrates Court for an order that the applicant be reimbursed for those costs by a person who was in charge of the animal immediately before the care was provided or the animal was destroyed or seized.
(2) On an application under subsection (1) the court is to make the order sought unless the respondent proves that there were no reasonable grounds on which an inspector could have considered the provision of care, destruction or seizure to be necessary.
(3) The court may adjourn an application under subsection (1) until after the determination of any relevant prosecution proceedings.
…
(5) An order cannot be made under subsection (1) in respect of costs for which an order has been made under section 55(2)(f).
The amount claimed
8 The respondent relied on an affidavit made by Jonathan Rex Shepherd in support of his application. The affidavit annexed an email from Ms Johanna Edwards, the General Counsel for the Royal Society for the Prevention of Cruelty to Animals of Western Australia Inc (RSPCA). Ms Edwards annexed to her email a summary of costs said to have been incurred by the RSPCA in relation to the care of Roxy for the period June - December 2015 and accompanying documents to substantiate the amounts referred to in the summary. The summary stated that the RSPCA had expended $7,306.97 exclusive of GST in the period to December 2015 in caring for Roxy.
9 Mr Shepherd's affidavit was made prior to judgment being entered in the appeal. Directions were subsequently made with a view to the respondent’s application being determined on the papers.
10 Mr Shepherd made a further affidavit pursuant to those directions. The affidavit corrected an error in Mr Shepherd’s first affidavit. The effect of the error was to reduce the amounted claimed for the care of Roxy to $4,889.72.
The magistrate's orders
11 The orders made by the magistrate on convicting the appellant included an order pursuant to s 55(2)(f) of the Animal Welfare Act. His Honour made a reimbursement order in the amount of $15,000. That order was made in addition to imposing a fine of $5,000 and ordering that the appellant pay the respondent's costs of the prosecution fixed at $15,000.
The respondent's submissions
12 The respondent submitted that 'the inspector' was obliged to care for Roxy 'at all times' pursuant to s 44(2) of the Animal Welfare Act. Section 44(2) requires an inspector to notify the owner where property has been seized. It is difficult to see how the subsection, considered in isolation, imposes an obligation on an inspector to care for an animal that has been seized. However, there is no doubt that an inspector is obliged under the Animal Welfare Act to care for, or make arrangements for the care of, an animal has been seized.
13 The respondent further submitted that the obligation to care for Roxy continued for so long as the dog was under the care of the inspector, including the period between the sentencing of the appellant and the completion of the appeal. Moreover, the appellant had sought the return of Roxy and it would have been unreasonable for her to refuse to reimburse the respondent for the costs of caring for the dog and it was to be inferred, in those circumstances, that the appellant had the means to pay for the reasonable costs of care. (respondent's submissions, pars 15 - 21).
The appellant's submissions
14 The appellant submitted that:
(a) the power to make a reimbursement order was discretionary;
(b) s 55(2) of the Animal Welfare Act only operated where the circumstances described in s 40(1) had been established;
(c) Roxy had been forfeited to the Crown pursuant to the orders made by the magistrate so that the Crown became the only entity that was entitled to deal with the animal - in particular, the Animal Welfare Act did not vest any power in an inspector to make directions about the care of an animal that had been forfeited to the Crown;
(d) s 55(2)(f) could not support an order for 'top up' reimbursement as the circumstances described in s 40(1) were not lawful directions given by an inspector;
(e) the appellant was an elderly woman with no assets; her only source of income was an aged pension; she had been fined and ordered to pay the respondent's legal costs and the costs of caring for Roxy; the total amount that she had been ordered to pay was $35,000 and she had no means to satisfy any further order for reimbursement.
The power to make a further order
15 In my view, this court does not have power to vary the reimbursement order made by the magistrate on convicting the appellant.
16 Section 55 of the Animal Welfare Act is directed to the court that convicts a person of an offence against the Act. It permits various orders to be made in addition to imposing a penalty.
17 The reimbursement order made by the magistrate under s 55(2)(f) formed part of the process of sentencing the appellant; that is, part of the process of dealing with the consequences of the appellant’s conviction. The order was made, and is to be made under s 55, by reference to the circumstances as at the date that the appellant was convicted and sentenced. Arguably, considerations of proportionality between the penalty that was imposed, any additional order that was made and the criminality involved in the appellant’s offending were relevant: see, for example, Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386. In any event, the consequences of conviction - penalty, prosecution costs, reimbursement orders and forfeiture - are to be dealt with once and for all by the court convicting the offender subject to the rights of appeal conferred by the Criminal Appeals Act 2004 (WA). The court that convicted the offender has no power to impose any further penalty or make some further or enlarged order in light of subsequent circumstances once it has dealt with the offender.
18 Section 14(1)(c) of the Criminal Appeals Act provides that the Supreme Court may, in deciding an appeal, set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision. However, that power can only be exercised 'in deciding an appeal'. This court’s powers under s 14 are governed by the appellate jurisdiction conferred by pt of the Criminal Appeals Act and in particular, by s 6 - s 9 of the Act.
19 The reimbursement order made by the magistrate was a decision for the purpose of s 6 of the Criminal Appeals Act: see s 6(f). However, the respondent did not appeal from the magistrate's order. Further, the respondent did not contend that the magistrate had erred in law or fact or had acted without or in excess of jurisdiction in making the order or that there had been a miscarriage of justice. The respondent made no complaint about the reimbursement order; rather, he sought to vary and enlarge the order in light of circumstances that had arisen following the appellant’s conviction. This court, in exercising appellate jurisdiction under pt 2 of the Criminal Appeals Act, has no jurisdiction to interfere with the order made by the magistrate in those circumstances.
20 Section 56 has no application. As the appellant submitted, it is difficult to see how the former owner of an animal can be held liable for the cost of care once the animal has been forfeited to the Crown. In any event, the section requires a separate application to be made to the Magistrates Court.
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