Foster v RSPCA - [2006] SASC 215

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
FOSTER v RSPCA
[2006] SASC 215
Judgment of The Honourable Justice Anderson
24 July 2006
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - TIME FOR APPEAL AND EXTENSION OF
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING
Application for leave to appeal out of time - appeal against sentence - appellant pleaded guilty to two counts of ill-treating an animal, and to one count of refusing or failing to comply with an inspector's directions - one sentence imposed including a fine, order for re-imbursement of costs and disbursements incurred and an order that the appellant be forbidden from acquiring or having custody of more than two more horses until further order - whether sentence was manifestly excessive - leave granted to appeal out of time - appeal dismissed.
Prevention of Cruelty to Animals Act 1985 s29(5)(a), referred to.

FOSTER v RSPCA
[2006] SASC 215
Magistrates Appeal
ANDERSON J
Extension of Time

The appellant requires leave to appeal out of time. When convictions were recorded by the Magistrate on 26 April 2006 both the appellant and his counsel were present in court. The relevant time for such an appeal was 14 days. The appeal was lodged nine days late.
In his notice of appeal, the appellant claims that he was advised by his counsel that the appeal time was 28 days and not 14 days. No affidavits have been filed by anyone acting on behalf of the appellant which supports this.
Moreover, it is apparent that the appellant on a previous occasion, in relation to this very matter, was able to have a conviction overturned because of a misunderstanding regarding the time limit for such an appeal. It is difficult to see how he could be under any misapprehension as a result of his previous experience.
No prejudice is alleged by the respondent. I will deal with the merits of the appeal before considering whether the appeal should be allowed out of time.
Background
The appellant pleaded guilty before a Magistrate to three offences. The offences were: First, that between 1 and 9 March 2004 he ill-treated a male horse by failing to provide it with appropriate and adequate food; and secondly, he pleaded guilty to ill-treating the same male horse in that he failed to take any reasonable steps to alleviate pain suffered by the horse by reason of age, illness or injury. That horse was put down because the infected injury was untreated and resulted in lameness.
The appellant also pleaded guilty in that between 1 and 9 March 2004, being a person to whom a direction was given pursuant to s 29(5)(a) of the Prevention of Cruelty to Animals Act 1985 (“the Act”) to provide the horse with supplementary feed, he failed to do so.
I will adopt and set out the statement of the circumstances of the case by the Magistrate, in paragraphs 2 and 3 of her reasons:
The circumstances are briefly these. There had been visits to the relevant property by the RSPCA. In February 2004 inspectors had seen horses there. There was very little feed for them so they fed the horses while they were there. They attended again on 11 February. They saw 15 horses in poor body condition, so poor that they were rated as being between one and two on a scale of one to five. Once again a small amount of bales of hay were given to the horses. A section 29(5) notice was prepared to order the provision of feed to one of the animals. The inspectors attended again on 1 March 2004. They spoke to an employee Jason Simon who apparently was there to feed the horses. He was served with a notice. He said he would tell Mr Foster about it. Once again there was very little feed for the horses at that stage. One of the horses that was seen was a small bay yearling with an injury to a rear hind leg. Another notice was prepared about that. On 9 March the RSPCA re-attended to inspect the animals. They attended with a vet. That horse was seen to have deteriorated. It had no feed supplied.
The horse was examined by the vet. It had grade four lameness on a scale from one being the lowest to five being the highest. It was in poor body condition being one on a scale of one to five where five is the best body condition. It had wounds around the fetlock. The injury was infected, it was weeks old, and it hadn’t been treated. It was later taken away, flea drenched, seized, treated over a number of weeks. Its injury in the fetlock remained. The lameness didn’t improve and finally it was put down and the post mortem that was conducted showed irreversible joint damage.
The Reasons of the Magistrate
The penalties respectively for the offences to which the appellant pleaded guilty are as follows:
1.     $10,000 or imprisonment for one year;
2.     $10,000 or imprisonment for one year;
3.     $1,250.
The learned Magistrate imposed one penalty for all three offences and a fine of $3,000. In addition there were veterinary fees in the sum of $1,142.65 plus locum costs for the veterinary surgeon, who gave evidence in the trial, amounting in total to $320. Legal costs amounted to $900. The other expenses involved in proving the case against the appellant related to airfares and accommodation for a cancelled witness amounting to $1,300. The Magistrate required the appellant to pay those fees in addition. With the court levies, the total came to $6,777.65. The Magistrate also forbade Mr Foster from acquiring or having custody of any more than two horses until further order.
The learned Magistrate, correctly in my view, regarded the offences as serious. Likewise she correctly directed herself to consider both general and personal deterrence. She was right to say that a message must be sent to other people as well as to the appellant.
The Appeal
The appellant did not attend at the hearing of this appeal but asked me to take into account his written summary of argument.
He is appealing on three bases as follows:
1.Against the fine of $3,000;
2.Against the amount imposed for airfares for the prosecution bringing the appellant’s brother from Western Australia; and
3.Against an order made pursuant to s 26 of the Act that the appellant be forbidden from acquiring or having custody of any more than two horses.
Much of the appellant’s written submission relates to the question of legal ownership of the animal which of course is not relevant because his guilty plea involves an acceptance that he had custody and control of the animals. Custody and control is relevant because of the definition of “owner” pursuant to s 3 of the Act.
In relation to the airfare, the fact is that the guilty plea came very late, by which time the airfares and accommodation expenses were incurred and could not be reversed despite the RSPCA attempting to have the expenses waived or cancelled. The witness was the brother of the appellant who was being called on the question of the ownership of the horses. This was contested by the appellant until he finally pleaded guilty. The expenses should be borne by him.
Having regard to the state in which the animals were when examined by the RSPCA, namely, that they were in “desperate need of assistance both for food and of medical treatment”, it is my view that the order made pursuant to s 26 of the Act is appropriate. The circumstances relevant to this order are described by the learned Magistrate and are set out earlier in these reasons at [7].
When I take into account the circumstances of the ill-treatment and the fact of the late guilty plea on the eve of the trial, the fine, although certainly severe, was not unreasonable and could not be regarded as manifestly excessive. I consider that even taking into account the other amounts imposed in addition to the fine, the end result is not out of the range of penalties which could be expected for the degree of neglect for which the appellant pleaded guilty. It was a case which called for a severe penalty.
There is no prejudice to the respondent as a result of the appeal being lodged nine days late, I would therefore grant an extension of time but dismiss the appeal.