Jensen v Croatto
[2018] ACTSC 213
•28 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jensen v Croatto |
Citation: | [2018] ACTSC 213 |
Hearing Date: | 28 February 2018 |
DecisionDate: | 28 February 2018 |
Before: | Mossop J |
Decision: | See [50] |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentencing decision – offence against Animal Welfare Act 1992, s 8(2)(b) of failure to take reasonable steps to alleviate pain – whether error in making order under s 101 of the Act – whether magistrate obliged to accept factual statement by counsel for the offender – reparation order set aside – appeal otherwise dismissed |
Legislation Cited: | Animal Welfare Act 1992 (ACT), ss 8(2)(b), 101, 101(3) Bail Act 1992 (ACT) Magistrates Court Act 1930 (ACT), s 218 |
Cases Cited: | Australian Telecommunications Commissioner v Krieg Enterprises Pty Ltd (1976) 14 SASR 303 Dhol v Mackenzie [2011] ACTSC 193; 6 ACTLR 74 Tillmann’s Butcheries Pty Ltd v Meat Industry Employees’ Union (1979) 27 ALR 367 |
Parties: | Robert Jensen (Appellant) Catherine Croatto (Respondent) |
Representation: | Counsel R Davies (Appellant) S Janackovic (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 92 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Cush Date of Decision: 27 November 2017 Case Title: Croatto v Jensen Court File Numbers: CC2017/1540 |
MOSSOP J:
Introduction
This is an appeal from a sentencing decision of a magistrate given on 27 November 2017.
The appellant (referred to as the defendant in the balance of these reasons) was dealt with for a failure to appear pursuant to an undertaking given under the Bail Act 1992 (ACT) as well as an offence against s 8(2)(b) of the Animal Welfare Act1992 (ACT) of failing to take reasonable steps to alleviate pain of an animal. Only the latter sentence is relevant to the present appeal. The maximum penalty for the offence was 100 penalty units, imprisonment for one year, or both.
The sentence imposed by his Honour for the animal welfare charge had a number of elements:
(a)The defendant was convicted.
(b)He was given a 12 month good behaviour order.
(c)He was required to complete 100 hours of community service within 12 months.
(d)He was ordered to make reparation to the RSPCA in the sum of $150.
(e)An order was made under s 101(3) of the Animal Welfare Act prohibiting him from acquiring or keeping any animal for a period of five years.
Grounds of appeal
The defendant appealed against both the reparation order as well as the order under s 101. The respondent conceded that the magistrate had erred in making the reparation order that he did. This left the grounds of appeal directed to the s 101 order, which were:
(b) His Honour erred in finding that unless an order was made under s 101 of the Animal Welfare Act 1992 (ACT) the appellant would be likely to commit a further offence in relation to an animal.
(c) His Honour erred in rejecting the appellant’s submissions about the circumstances surrounding the failure to alleviate the animal’s pain.
Issues to be determined
These grounds of appeal give rise to two issues which need to be determined:
1)whether it was open to his Honour to find that it was likely that the offender would commit a further offence in relation to an animal for the purposes of s 101 of the Animal Welfare Act; and
2)whether his Honour erred in the manner in which he dealt with the submissions of the defendant in relation to the circumstances in which he had failed to alleviate the animal’s pain.
Agreed facts and pre-sentence report
It is necessary to address these issues against the background of the two most significant pieces of evidence that were before the Court when the defendant was sentenced, namely the agreed Statement of Facts and the pre-sentence report.
Statement of Facts
The agreed Statement of Facts provided that on 30 July 2015, the defendant brought his dog, a female crossbreed named Hope, to the RSPCA shelter at Weston. The dog had acute-onset right hind limb lameness of one week’s duration. The defendant informed the treating veterinarian that his dog had been “stepped on” a month ago, however the injuries had resolved over time. The defendant also stated that approximately a week prior to 30 July 2015 a door had been accidentally shut on the dog prior to her onset of lameness. The limb was reportedly non-weight bearing for two days prior to the consultation. The dog was prescribed painkillers and booked in for x‑rays on 4 August 2015. Those x-rays showed a fracture of the femoral neck. On 7 August 2015, an operation was performed to address the fracture (a femoral arthroplasty) and the dog was discharged the following day. The defendant was provided with a discharge letter which had strict post-operative instructions including an instruction to book the dog in for a consultation on 21 August 2015. The defendant did not make the appointment and the veterinarian attempted to contact him by phone. The defendant subsequently made an appointment for 10 September 2015 in relation to apparent swelling around the surgical site but failed to keep this appointment. Somebody from the RSPCA left a message for the defendant to reschedule the appointment. On 15 September 2015, RSPCA inspectors who were at Gowrie Court, received information about the dog. They attended the defendant’s residence and an occupant of the premises brought the dog to the inspectors. It was unable to walk. Its right limb was extremely swollen.
Radiography showed that the dog had a broken right femur. This was different to the injury for which treatment had been provided on 7 August 2015. The expert opinion was that, having regard to the amount of swelling and the lack of healing, this fracture most likely occurred approximately one week prior to presentation. However, there was a further fracture of the femoral neck of the left hind limb. This was a separate and additional injury. It was not possible to establish when this fracture occurred. Surgery was performed immediately on the right leg. The nature of the injury and the operation was such that the limb will be of limited use. The veterinary opinion was that the defendant was negligent in failing to provide the dog with veterinary care following the injuries sustained in September 2015 and allowing the dog to be in considerable pain and suffering. Had more timely treatment been received, there would have been a more positive prognosis about the future use of the limb. Had the dog not been seized by the RSPCA inspectors as it was on 15 September 2015, the inflammatory response to the right hind limb injury may have been life-threatening.
The left hip injury may or may not have healed on its own but would have been a source of pain to the dog without appropriate treatment in the form of painkillers.
The defendant was interviewed on 16 September 2015. In relation to what happened to the dog’s leg he said, “I woke up one morning and it was floppy”. He agreed that he had been told that he needed to bring the dog back to the RSPCA on 21 August 2015. He was asked whether he had done this and said “No, I couldn’t get out there plus she was fine”. He said that the dog was “fine until about a week ago”. When asked whether he could explain the fractures to both hind legs he stated that he could not. He was asked if he had any idea how the injuries occurred and said “I don’t want to bring other people into it. I don’t want to say. All I know, I didn’t do it. I know about the lump on the head, that’s from my daughter swinging and Hope going underneath it”. He was asked if he knew who hurt her and said “Some other fucking arsehole around here”.
Pre-sentence report
The pre-sentence report was prepared as a court duty report. It was prepared on the day of sentencing, 27 November 2017. The animal had been seized on 15 September 2015. When considering the terms of the pre-sentence report it is important to bear in mind that it was prepared more than two years after the events in question. It was therefore at a time when the defendant had had the opportunity to fully consider and reflect upon the adequacy of his care for the animal.
The points made by the pre-sentence report were:
(a)The defendant was 30 years old.
(b)He was a single parent with primary care of his eight year old daughter.
(c)He had an unsettled upbringing.
(d)He has 14 siblings.
(e)He has phone contact with his father but minimal or no contact with other family members.
(f)He left the formal education system at the end of Year 8 and worked on and off as a tyre fitter. He claimed his longest period of continuous employment was approximately five years.
(g)He has been unemployed for two years and in receipt of Centrelink Newstart benefits.
(h)He commenced using cannabis at the age of 14. From the age of 18 until two years ago, when his daughter came into his care, he was a heavy user. He has reduced his use but continues to use the substance on a regular basis.
(i)He reported reasonable physical health and had never sought assistance with mental health issues.
In relation to his attitude to the offence, the pre-sentence report provided:
(a)He did not agree with the Statement of Facts, noting that “he did not feel the animal was a priority that should come before his daughter”.
(b)He had noticed the animal had injuries approximately three days prior to the animal being removed “but could not afford to take the animal to the veterinarian”.
(c)The animal had surgery prior to removal and “he believed the injury may have been a result of that operation”.
(d)He did not know how the animal came to sustain the injuries and “minimised his role, stating he felt the animal was being cared for as a community as he was staying with friends at the time”.
(e)He “did not acknowledge any distress that may have been caused to the animal”.
The opinion expressed by the author of the pre-sentence report was as follows:
Mr Jensen was assessed as a high risk of general reoffending based on his unaddressed substance use, unemployment, associations and attitude to offending. Mr Jensen displayed limited insight into his offending behaviour and limited victim empathy. He minimised the offence by claiming diminished responsibility of care stating the dog was also being cared for by others”.
Section 101 order
The interpretation of s 101 of the Animal Welfare Act was dealt with in Keir v Croatto [2017] ACTSC 222 at [43]-49]. The interpretation which I gave to the word “likely” was that it required a finding on the balance of probabilities. That gave the word a more limited effect than is available in some contexts. In some contexts, it may refer to a real or not remote chance or possibility: see Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 at 380-1. However, as was pointed out in that case, in Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303 at 309, Bray CJ stated that interpreting “likely” as meaning “probable” was usually the case where the statute was a penal one or imposed an additional liability in tort. The interpretation of s 101 would have been different had its language been less clearly directed to a threshold of more probable than not, such as, if it referred to there being a “likelihood” that the person would commit a further offence. The use of such language would have made it more likely that it referred to a real and not remote possibility in the same way as does the Bail Act 1992 (ACT): see Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 at [54]-[55].
Reasons for s 101 order
At the sentencing hearing, the following documents of relevance to the animal welfare charge were tendered:
(a)an agreed Statement of Facts;
(b)a criminal history of the defendant;
(c)an x-ray and two photographs of the dog shortly after its seizure; and
(d)a pre-sentence report prepared by the court duty officer.
Dr Wiley Chung, a staff veterinarian with the RSPCA, gave evidence about the condition and treatment of the dog.
At the conclusion of submissions the magistrate gave his reasons.
The magistrate referred to the terms of the court duty report and the subjective circumstances disclosed in that report.
He referred to the submission which is the subject of ground (c) in this appeal and said that the explanation was “consistent with the general disregard that the defendant [has] had for this animal”. He referred to the evidence of the defendant, recorded in the pre‑sentence report, that the defendant did not know how the animal came to sustain the injuries and that it was “being cared for as a community as he was staying with friends at the time”. He referred to the absence of any acknowledgement of distress that may have been caused to the animal. He referred to the assessment by the author of the pre‑sentence report that the defendant was at a high risk of general reoffending.
He referred to the period before 15 September 2015 in which the defendant did not take proper steps to alleviate the dog’s pain or get appropriate treatment for her. His Honour recognised having regard to the particularisation of the charge that these were not matters for which he was being punished in the sentencing process but considered them relevant to the s 101 order.
He then referred to the two subsequent injuries and that it was not clear how those occurred. He identified that no treatment was provided to the dog between the treatment in August and 15 September 2015.
So far as the condition of the dog at the point of seizure and its subsequent treatment, he said: “It seems to me that there was an appalling lack of care for Hope by the defendant and in circumstances where the pain and suffering from which it was suffering and the need for medical treatment must have been obvious.”
He referred to the traffic related criminal history of the defendant. He addressed the issue of a reparation order. He then said:
I am satisfied from what’s set out in the statement of facts between August 2015 and September 2015 that the defendant is not a person who should be caring for animals. … The objects of the Animal Welfare Act are to promote and protect the welfare, safety and health of animals and to ensure the proper and humane care of animals and to reflect the community’s expectation of people who keep or care for animals and will ensure that they are properly treated. That hasn’t occurred in this case and I don’t have any confidence having regard to the way the defendant behaved in August and September 2015, even though that’s quite some time ago, and how he’s reflected his attitude to the presentence report preparer that he has any greatly different attitude towards care of animals.
He then referred to the fact that the defendant or his daughter owned a cat, a matter which he had been told in submissions, and said that if similar circumstances arose in relation to the cat “I have no confidence that he would seek appropriate treatment were that necessary.” His Honour continued:
There may be some limitations on him because of the relatively young age that he left school. There may be limitations on him because of his lack of social interaction with members of his family. He clearly was unable, it seems, to call upon support when it was necessary to get Hope to hospital and that doesn’t seem to be anything that is likely to change.
He referred to the fact that the defendant was dependent upon social security and as a consequence did not have a lot of money to feed animals. He then correctly stated the test for the purposes of s 101: “The test is that I am concerned, unless appropriate order is made, the defendant is likely to commit further offences in relation to an animal or any animal that might come into his care. So I will also propose to make those orders.”
He then went on to determine other aspects of the penalty. Having announced the sentence that he would impose he said, apparently to the defendant:
The cat will have to go. I don’t trust you. I have real concerns about your attitude to animals. There might be a whole lot of good reasons for that but nevertheless you can’t pass on the care of that animal to other members of the community. The animals need to be looked after when - they’re in your care. If you can’t do that, then you shouldn’t have an animal…
The magistrate made a notation on the bench sheet consistent with the s 101 indicating that he was satisfied that unless an order was made it was likely that the defendant would commit a further offence in relation to an animal.
Order consistent with s 101
There was no error in the magistrate taking the approach that he did. It is correct to say that the defendant had no previous convictions for animal welfare matters. It is also the case, as I pointed out in Keir v Croatto at [45], that the necessity for an order under s 101 only arises in circumstances in which the specific deterrent effect of any proposed sentence is, on the balance of probabilities, going to be unsuccessful. However, this is a case in which it was clearly open to his Honour to be satisfied of the threshold requirement for the making of an order under s 101. That arose from:
(a)the pattern of uncharged but neglectful behaviour demonstrated by the defendant following the operation on the dog on 7 August 2015 and the time or times when the dog suffered the September injuries to its right and left rear limbs;
(b)the conduct charged, which demonstrated neglect and indifference to the suffering of an animal;
(c)the apparent lack of capacity on the part of the defendant to work out how to solve the problem of obtaining appropriate treatment for the dog following the August operation and following the September injuries;
(d)the evidence about the lack of formal education, lack of employment, lack of connections with family and ongoing drug use, all of which made it more likely that the kind of neglect demonstrated in the Statement of Facts would occur in future if the defendant was permitted to keep an animal;
(e)the ongoing lack of acceptance of responsibility, lack of insight or empathy demonstrated by the pre-sentence report;
(f)the assessed high risk of general reoffending as assessed by the author of the pre-sentence report.
All of these circumstances taken together meant that it was readily open to his Honour to be satisfied that unless an appropriate order was made the defendant would be likely to commit a further offence in relation to an animal.
As a consequence of this conclusion, I am satisfied that ground (b) in the Notice of Appeal is not made out.
Was the magistrate obliged to accept the statement from the bar table
The second issue is whether or not his Honour was obliged to accept the statements made by counsel for the defendant in relation to the circumstances in which he had failed to alleviate the animal’s pain and whether there was any error on the part of his Honour in dealing with the matter in the manner that he did.
At page 15 of the transcript, counsel for the defendant said:
With respect to the circumstances my instructions are that as soon as he noticed the new injuries in September he made an appointment for the dog to be seen at the RSPCA Clinic on 10 September and that there is some reference to that appointment in the statement of facts. He did not attend that appointment. He tells me the reason he didn’t go that day or during the five following days is that---
…
In any event the reason he didn’t attend, he tells me, is that he could not obtain transport to get to the clinic in Weston. At the time he was “couch surfing” at Gowrie Court in Narrabundah.
Your Honour heard evidence today that [the] RSPCA Clinic is out in Weston which is a significant distance away. I am instructed he didn’t have access to a motor vehicle. He didn’t have anyone else who could drive him out there with the dog and he didn’t have the financial means to arrange any transport. He was not working at the time, was dependent on a Centrelink benefit. He had care for his then a six year old daughter, so he was supporting her financially and he also had some other financial obligations like paying board at the place where he was living.
On my instructions it’s a situation where he didn’t have any means to get himself there and your Honour has heard some evidence today that there was not a mobile vet option where he could have asked the RSPCA to come to him. There may have been additional steps he could have taken, trying to get others to drive him there, things of that nature but in his instructions to me he has made clear that he thought he’d exhausted his options. He was prioritising care for the daughter with the limited money that he had and he wasn’t aware of any other options that were available to him.
It doesn’t offer him a defence, given that the offence is entirely based on an objective test but, in my submission, it must have a significant bearing on your Honour’s assessment of his culpability. It must reduce his culpability significantly compared to a situation where someone clearly has the means and the opportunity to seek treatment and they simply don’t do so.
Subsequently, counsel said:
I’m not taking it as far as that there was nothing he could have done but on my instructions he did do some things. He made contact with them as soon as he noticed it and he felt like that there weren’t many other options open to him, given his means at the time.
Later in the submissions he says:
COUNSEL FOR THE DEFENDANT: … As I have conceded there is probably more he could have done in that intervening period but it wasn’t completely a case of negligence or oversight.
HIS HONOUR: Well, complete neglect.
COUNSEL FOR THE DEFENDANT: Well as in there were factors beyond his control, contributing to the shortcomings and the care.
The prosecutor addressed the submission in the following manner:
And I note that what my friend has submitted about the fact that his client now says that his excuse for not surrendering the dog to the vet or bringing her to the vet’s attention was because he did not have a means to transport the dog to the RSPCA Clinic. But your Honour there’s no evidence even in the sentencing proceedings that he made any enquiries about what, if any, transport the RSPCA Clinic or the inspector could provide to him if the dog was in as dire of a state as it was eventually located in or found in.
The passage of the magistrate’s reasons to which this ground of appeal is directed is:
There’s also the explanation given by [counsel] on behalf of the defendant, that at the time prior to the seizure on 15 September he was unable to take the animal to a hospital or the RSPCA by vehicle. That just wasn’t available to him in the circumstances. To me that seems to stretch the line of credibility a bit but it seems to me it’s consistent with the general disregard that the defendant [has] had for this animal.
It appears that the defendant’s submission is directed to the proposition articulated in the first portion of the submissions made by counsel for the defendant to the magistrate, which I have referred to above (at [33]), that the reason for the non-attendance at the 10 September appointment and between that date and the 15 September appointment was the defendant’s inability to obtain transport.
The submission of the prosecutor did not directly challenge that assertion but rather pointed out that which was obvious, namely that even if he perceived to be inhibited by a lack of transport, there was no indication that the defendant had done anything to address the problem of getting the dog appropriate veterinary treatment.
The manner in which his Honour dealt with that was to accept the proposition that the defendant had understood that a lack of transport meant that he could not attend, to observe that that lacked credibility and that it was consistent with a general disregard for the animal.
The submission of the defendant in this Court was that there was no evidence to contradict the submission that the defendant was unable to keep the appointment because of lack of transport and that if his Honour was to not accept that then counsel should have been put on notice. The defendant relies upon the remarks of Refshauge J in Dhol v Mackenzie [2011] ACTSC 193; 6 ACTLR 74, in particular at [90]-[99].
It is unnecessary in this case to examine in any detail the problematic evidentiary issues that arise in relation to sentencing discussed in Dhol v Mackenzie.
In this case, the issue in relation to which complaint is made is whether or not a lack of transport was a proper excuse for the failure to attend the appointment that the defendant made at the RSPCA for 10 September or between that date and 15 September 2015. The submission made to his Honour on behalf of the defendant was not an absolute one. Ultimately, the submission put by counsel was that “There may have been additional steps he could have taken, trying to get others to drive him there, things of that nature but in his instructions to me he has made it clear that he thought he’d exhausted his options.” The manner in which his Honour dealt with the issue was to accept that the reason that the defendant did not attend the RSPCA was because of a lack of transport. His reasons imply that having regard to the obligation to care for the animal, that was an inadequate excuse and that he should have made whatever effort was necessary in order to solve the transport problem. It is for that reason that his Honour made the remark that the explanation “stretch[ed] the line of credibility a bit”. Consistent with a degree of scepticism about the extent to which that explanation reduced the culpability of the defendant, the magistrate then made the observation that the conduct was consistent with a general disregard that the defendant had for the animal.
It was certainly open to the magistrate to be sceptical about the excuse. No information or evidence was given about the financial affairs of the defendant. There was evidence that he was receiving Centrelink benefits and couch surfing. There was evidence that he had obligations to care for his daughter. Yet there was evidence that he was an ongoing cannabis user, a habit which comes at a cost. There was evidence that the defendant was able to bring the dog to the RSPCA on 30 July 2015, on 4 August 2015 and 7 August 2015 and collect the dog following the operation on 7 August 2015 and no explanation as to the relationship between that capacity and the subsequent lack of capacity to arrange transport. There was no firm basis upon which it could be said that had he appropriately prioritised the care for the animal or that he could not one way or another have financially solved the transport problem. The magistrate was entitled to be sceptical of an assertion that he was simply incapable of affording transport to the vet as opposed to choosing to prioritise other matters in circumstances where a proper evidentiary foundation for that assertion was not made out. That is quite apart from any issue about the other means by which appropriate care for the animal might have been obtained. Because of this, there was no rejection of the qualified submissions made by counsel for the defendant and no error on the magistrate’s part in proceeding as he did.
Although that is sufficient to dispose of the appeal, there are two other points that should be noted.
The first is that the statement made by counsel for the defendant was to the effect that the defendant had noticed the September injuries prior to making an appointment to see the RSPCA clinic on 10 September. That would mean that he had been on notice of the injuries prior to 10 September 2015 and that it was those injuries rather than anything else which prompted the making of the appointment. That was inconsistent with the evidence of what he had told the author of the pre-sentence report on the day of his sentencing. It was also inconsistent with the Statement of Facts which provided that the defendant made the appointment for 10 September 2015 “for apparent swelling around the surgical site”. The Statement of Facts also indicated that nothing was done by the defendant to have any contact with the RSPCA following the unexplained non‑attendance on 10 September 2015 and the message left for him by officers of the RSPCA following that non‑attendance. So far as the reasons for the 10 September 2015 appointment were concerned, the magistrate was entitled to act consistently with the Statement of Facts where that was in conflict with a statement made from the bar table about the reason for the appointment.
The second point is that the reasons for the failure to attend the appointment on 10 September 2015 or to transport the dog to the RSPCA between that date and 15 September 2015 were at the periphery of matters relevant to whether or not to make an order under s 101. Even if the appointment had been made by the defendant in order to address the September injuries rather than the consequences of the surgery, his failure to do anything following that missed appointment would still be conduct that favoured making an order under s 101. The gravity of the injuries which the dog was required to suffer from until seized by the officers of the RSPCA would still have been the same. The fact that the dog had suffered a number of serious injuries in a relatively short period of time would still have been the same. The subjective circumstances disclosed in the pre‑sentence report would have been the same. The incapacity on the part of the defendant to work out solutions to problems that would arise in relation to the care of domestic animals would still have been the same. The very adverse attitude of the defendant reflected in the pre‑sentence report would have been the same. As a consequence this is a case where, even if the submission as to the facts put forward by counsel for the defendant had been accepted at its highest, it would have had little or no impact on the strength of the case for making an order under s 101.
I am not satisfied that there was any denial of procedural fairness or other error in the manner in which his Honour dealt with the submission made by counsel for the defendant about the reasons for non-attendance at the appointment on 10 September or between that date and 15 September 2015. As a consequence, this ground of appeal is not made out.
Result
The parties approached the appeal on the basis that the error in relation to the reparation order which was conceded did not automatically require the Court to engage in a resentencing exercise. No challenge was made to the conviction, the good behaviour order and the requirement to perform community service. The balance of the challenge was directed to the order under s 101. The parties proceeded on the basis that the flexibility available to the Court under s 218 of the Magistrates Court Act 1930 (ACT) was sufficient to permit the Court to address separable aspects of the sentence imposed. I have proceeded consistently with the approach of the parties. In light of my conclusions, it is appropriate that the reparation order be set aside, but that otherwise the appeal be dismissed and the sentence confirmed.
Orders
The orders of the Court are:
1.In relation to the orders made by the Magistrates Court in relation to charge CC2016/40002:
(i)The reparation order is set aside.
(ii)The appeal is otherwise dismissed and the sentence otherwise confirmed.
| I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 15 August 2018 |
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