Green v Lacy
[2023] WASC 369
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GREEN -v- LACY [2023] WASC 369
CORAM: WHITBY J
HEARD: 27 SEPTEMBER 2023
DELIVERED : 27 SEPTEMBER 2023
FILE NO/S: SJA 1038 of 2023
BETWEEN: KYLIE RAE GREEN
Appellant
AND
FRANCIS LACY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G A BENN
File Number : MC MI 1615/2023, MC MI 1616/2023
Catchwords:
Criminal law - Appeal against sentence - Whether sentencing disposition open to learned magistrate as a matter of law - Global fine imposed for two offences under the Animal Welfare Act 2002 (WA) - Global fine not available sentencing option - New fine imposed
Legislation:
Animal Welfare Act 2002 (WA)
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal granted on ground 1
Appeal allowed
Sentence set aside
New fine imposed, costs and compensation order not disturbed
Category: B
Representation:
Counsel:
| Appellant | : | I Weldon & R H Harris |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | RSPCA WA |
| Respondent | : | In person |
Case(s) referred to in decision(s):
Samuels v The State of Western Australia [2005] WASCA 193
WHITBY J:
(This judgment was delivered extemporaneously on 27 September 2023 and has been edited from the transcript.)
Introduction
This is an appeal against sentence. The respondent was charged with two counts of cruelty to animals contrary to s 19(1), s 19(3)(b)(ii) and s 19(3)(d) of the Animal Welfare Act 2002 (WA) (AWA) as a result of leaving his two kelpie cross‑breed dogs inside his car without adequate water between 23 and 25 October 2022.
On 18 April 2023 the respondent plead guilty to the two offences in the Midland Magistrates Court and the learned magistrate entered judgments of conviction against the respondent and imposed a sentence of a global fine of $2,000, costs in the amount of $166.30, and a compensation order to the RSPCA WA for the cost of care given to the dogs of $3,676.96.
The appellant appeals the sentence imposed on the basis that, as a matter of law, the sentencing decision was not open to the learned magistrate.
The respondent advised the court by email dated 22 August 2023 that he would not be appearing at the hearing of the appeal and that he did not seek an adjournment of the matter.
Factual background of the offences
The circumstances of the offending were outlined in the statement of material facts relied upon by the prosecution and were accepted by the respondent. They are as follows.
On 23 October 2022, RSPCA WA, the appellant, received a telephone call reporting that two dogs had been left in the respondent's car, for at least four hours, at Waterford Drive in Gidgegannup.
A general inspector for the appellant, Ms Florence Maude, attended the car and saw two kelpie cross‑breed dogs inside the car. There was limited airflow to the car, no water available for the dogs and a strong smell of ammonia.
Inspector Maude gave the dogs treats and water and left two RSPCA WA notification stickers on the driver side window and the rear registration plate of the car.
On 24 October 2022, Inspector Maude reattended the car and saw that the dogs were still confined inside with no water available. Inspector Maude spoke with the respondent over the telephone. The respondent confirmed that he was the owner of the car and the two dogs.
Inspector Maude expressed her concerns to the respondent stating that the dogs must always have access to proper and sufficient water and provided a written direction for the respondent to attend to this while the dogs were confined inside the vehicle. Inspector Maude also provided the respondent an RSPCA WA educational brochure on the risk of leaving dogs in cars.
On 25 October 2022, Inspector Maude reattended the car and saw that the dogs were still confined inside the car with no water available. Inspector Maude obtained an urgent warrant to enter the car pursuant to s 59 and s 52 of the AWA. Inspector Maude seized the two dogs and took them to Perth Vet Emergency in Wanneroo. A veterinarian conducted an examination of the dogs and noted that they were mildly dehydrated.
Legal principles
This is an appeal under the Criminal Appeals Act 2004 (WA) (CA Act) pt 2.
The CA Act s 7(1) allows an aggrieved party to appeal to a single judge of this court, in respect of a decision made by a court of summary jurisdiction.
The appellant must obtain leave to appeal.[1] If leave to appeal is not granted, the appeal is taken to have been dismissed.[2] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[3]
[1] CA Act s 9(1).
[2] CA Act s 9(3).
[3] Samuels v The State of Western Australia [2005] WASCA 193.
Grounds of appeal
The appellant appeals the sentence on one ground:
1.The magistrate erred in law by imposing a global penalty, a penalty that was not open to the learned magistrate.
The learned magistrate imposed a global fine of $2,000 for both offences.
The appellant submits that, as a matter of law, the sentencing decision was not open to the learned magistrate.
The appellant submits that it was only open to the learned magistrate to impose either:
•a fine of not less than $4000; or
•a penalty listed between s 39(2)(ca) and s 39(2)(h) of the Sentencing Act.
Disposition
Section 19(1) of the AWA provides that the penalty on conviction of an offence of animal cruelty is a fine of not less than $2,000 or more than $50,000 and the imposition of a term of imprisonment not exceeding 5 years.
Part 5 of the Sentencing Act 1995 (WA) (Sentencing Act) deals with sentencing options for offenders. The sentencing options for natural persons are set out in s 39(2) of the Sentencing Act in increasing order of gravity. Section 39(3) of the Sentencing Act provides that a court must not use a sentencing option in subsection (2) unless satisfied, having regard to div 1 of pt 2 of the Sentencing Act, that it is not appropriate to use any of the options listed before that option.
Section 42(2a) of the Sentencing Act, appearing within pt 5 of the Sentencing Act, provides that:
(2a)If the statutory penalty for the offence is such that both a minimum fine and imprisonment may be imposed, then despite subsection (2) the court must impose one or both of the following -
(a)a fine that is at least the minimum fine and not more than any maximum fine for the offence;
(b)a sentencing option in section 39(2) that is listed after section 39(2)(c),
unless the written law creating the offence provides otherwise. (emphasis added)
The statutory penalty for the offences of which the respondent was convicted under the AWA are 'such that both imprisonment and a fine may be imposed'. Therefore, s 42(2a) of the Sentencing Act is applicable. Further, the AWA does not 'provide otherwise' than what is contained in s 42(2a) of the Sentencing Act. Therefore, the learned magistrate was required to impose either a fine not less than the minimum and not more than the maximum and/or a sentencing option in s 39(2) of the Sentencing Act that is listed after s 39(2)(c).
As a result, the sentencing options available to the learned magistrate for the two offences were either:
(1)a fine of not less than $4,000 (being $2,000 minimum fine for each offence); and/or
(2)a penalty listed between s 39(2)(ca) and s 39(2)(h) of the Sentencing Act (ie a sentencing option listed after s 39(2)).
Section 54 of the Sentencing Act does allow the imposition of a single fine for two or more offences. Specifically, it provides:
(1)A court sentencing an offender for 2 or more offences that -
(a)are founded on the same facts; or
(b)form, or are part of, a series of offences of the same or a similar kind,
may impose a single fine for all of the offences.
(2)A fine imposed under subsection (1) must not be more than the sum of the fines provided by the statutory penalties for each of the offences.
Section 54 of the Sentencing Act does, at first blush, allow for the imposition of a global penalty for these two offences. However, upon closer consideration, s 54 does not allow for a global penalty to be imposed for these reasons. Section 54 of the Sentencing Act appears in pt 8 of the Sentencing Act. Fines under pt 8 of the Sentencing Act appear at, not after, s 39(2)(c) of the Sentencing Act. Therefore, by virtue of s 42(2a)(b), it was not open to the learned magistrate to impose a global fine for the two offences pursuant to s 54 (being a sentencing option that appears at, not after, s 39(2)(c)).
Therefore, I grant leave to appeal on ground 1 and allow the appeal.
Resentencing the respondent
The appropriate course is for the respondent to be re‑sentenced according to law. I have the materials before me necessary to impose an appropriate sentence.
The following facts were before the learned magistrate and are not in dispute.
At the time he was sentenced, the respondent was 54 years old and was on a disability pension. He lived with his mother, but they had fallen out and his mother had taken a restraining order out against him. This meant that the respondent had to leave his mother's house and take his two dogs with him. The respondent left in his car with the dogs and parked in a parking area in Gidgegannup. The respondent's car broke down and he could not move it.
The respondent was required to attend the District Court on another matter and so he left the dogs in the car. He was attempting to find alternative accommodation but had not secured any. The respondent was homeless at the time of the offences.
The respondent has owned the dogs since they were puppies and they have always been well looked after. The respondent has no prior convictions for animal cruelty. While there was the potential for serious harm to the dogs, ultimately the treatment required for the dogs was for mild dehydration.
The respondent has now, and had in April 2023, stable accommodation.
The respondent's offending, while having the potential for serious harm to the dogs, arose out of a series of unfortunate events. I accept that the respondent was homeless and felt he had nowhere to leave his dogs but in his car while he was required to attend the District Court.
In all of the circumstances, given the respondent has no previous convictions for animal cruelty, I consider that the appropriate sentence is a financial penalty. I consider that the appropriate financial penalty is a fine of $2,000 for each offence, making a total fine of $4,000. The orders of the learned magistrate for costs and compensation are not disturbed.
Conclusion
I make the following orders:
(1)Leave to appeal on ground 1 is granted.
(2)The appeal is allowed on ground 1.
(3)The sentence for MI 1615 of 2023 and MI 1616 of 2023 be set aside.
(4)A fine in the total amount of $4,000, being $2,000 for MI 1615 of 2023 and $2,000 for MI 1616 of 2023, be imposed.
(5)The costs order and order for compensation made by Magistrate Benn is not disturbed.
(6)There is no order for costs in the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
27 SEPTEMBER 2023
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