Johnson v RSPCA Queensland
[2016] QDC 185
•22 July 2016
DISTRICT COURT OF QUEENSLAND
CITATION:
Johnson v RSPCA Queensland [2016] QDC 185
PARTIES:
ROBERT JOHNSON
(Appellant)v
RSPCA QUEENSLAND
(Respondent)
FILE NO:
105 of 2016
DIVISION:
Appellate
PROCEEDING:
Appeal against sentence
ORIGINATING COURT:
Magistrates Court, Southport
DELIVERED ON:
22 July 2016
DELIVERED AT:
Southport
HEARING DATE:
15 July 2016 at Southport
JUDGE:
C.F. Wall QC
ORDER:
1. Appeal allowed in part.
2. In lieu of the orders made in the Magistrates Court
(a) set aside the fine of $4,000 and make the one probation order for 9 months for all offences and
(b) order that the costs and compensation totalling $559.30 be paid in instalments of $25 per fortnight commencing on 29 July 2016 payable to the Registrar of the District Court at Southport for payment to the respondent.
3. The appeal in relation to the prohibition order is dismissed and the order that convictions not be recorded is confirmed.
4. No order for costs.
CATCHWORDS:
APPEAL – SENTENCE – whether manifestly excessive – whether Magistrate failed to give credit for pleas of guilty – fine imposed – whether Magistrate properly considered the financial capacity of the defendant to pay a fine – relevant considerations.
LEGISLATION:
Animal Care and Protection Act 2001, Sections 17, 183
Penalties and Sentences Act 1992, Sections 13, 48, 50, 51
COUNSEL:
Robert Johnson represented himself
Mr Michael Byrne QC for the RespondentSOLICITORS:
Couper Geysen – Family and Animal Law for the Respondent
Introduction
This is an appeal by Robert Johnson against sentence imposed on him in the Magistrates Court at Southport on 25 January 2016 following his pleas of guilty to six charges under s 17(2) of the Animal Care and Protection Act 2001 involving three turtles. In the case of each turtle he was charged with failing to take reasonable steps to provide appropriately for the turtles’ needs or living conditions and failing to provide appropriate living conditions for the turtles. Convictions were not recorded. A single fine of $4,000 was imposed plus $472.50 compensation for veterinary fees and court costs of $86. A prohibition order was made under s 183 of the Animal Care and Protection Act 2001 to the effect that the appellant “must not purchase or acquire or take possession of any animal other than animals provided by Guide Dogs Australia or a registered care animal”.
The turtles were kept in a fish tank with “dirty, green and fouled water”, no filtration system and no substrate eating or sunlight or equivalent. They each exhibited signs of shell rot. The appellant explained that his near blindness meant he couldn’t properly see the turtles. The turtles were later put down because they were too far gone to recover.
The matter was listed for trial. The prosecutor was Mr Chris Minnery of counsel instructed by Ms Tracey Jackson, a paralegal employed by Couper Geysen – Family and Animal Law.
Credit for pleading guilty?
The appellant was given no credit for his pleas of guilty and this is his first complaint on the appeal.
The circumstances leading to the appellant pleading guilty are referred to in an affidavit by Ms Jackson which was admitted on the appeal as follows
“19.Between about 9.30am and 10.40am I was with Mr Minnery while he had various conversations with Mr Johnson. I also spoke with the applicant during these conversations.
20.These conversations were held outside the Court in the public waiting area.
21.In between conversations Mr Minnery and I left the applicant to obtain instructions and attend to other matters in relation to the proceedings listed for hearing that day.
24.I was present when Mr Minnery discussed procedural matters in relation to the trial with the applicant. This conversation occurred in the area outside the Court while we were standing.
25.The applicant stated that he was guilty and would be happy to plead guilty to the charges but he had some concerns about the investigation and the RSPCA. He further stated that he had a disability.
27.The applicant again stated that he was guilty and happy to plead guilty. He said that he had some problems with the way the investigation was conducted and he had some questions about how the matter would proceed that day.
28.Mr Minnery discussed with the applicant the extent of his blindness. The applicant said he was able to read documents and in fact throughout the conversation with us the applicant pulled various documents, handwritten and typewritten, from his briefcase, and referred to them as he spoke with us.
29.Mr Minnery discussed procedural matters of the hearing with the applicant and explained how the matter would proceed before the Magistrate.
30.Mr Minnery took the applicant through each charge separately. He explained what each charge related to, he showed the applicant the photographs of each charge, explaining that these photographs would be provided to the Magistrates, and he read the relevant parts of the statement of facts to the applicant in relation to each charge.
31.On each occasion in relation to each charge the applicant stated that he was responsible for the offences and he would be pleading guilty to the charge.
32.The applicant provided Mr Minnery with information to explain his offending, stating that he was legally blind, that he had cleaned the turtle tanks, and that he had complied with directions by the RSPCA Inspector. The defendant spoke about the needs of turtles being kept as pets and his knowledge about the keeping of turtles…
33.The applicant took no issue with any of the particulars of the charges, however he did maintain that he had cleaned the turtle tank shortly prior to the RSPCA Inspector attending. Mr Minnery showed him a photograph of the tank and explained that he was entitled to make that submission to the Court, however the prosecution would be handing up a copy of that photograph and submitting that the tank in fact was not clean.
34.Mr Minnery then discussed the prohibition order sought by the prosecution. The applicant said that he did not have any problems with a lifetime prohibition order on all animals. He explained that he was legally blind and that he could not care for any animals as it was too much for him.
35.The applicant had a list of complaints about the investigation and Mr Minnery discussed each of these complaints with him. He also informed the applicant that he was entitled to air these matters before the Court.
36.One of the concerns held by the applicant was that the prosecution had been commenced out of time because it was more than 6 months after the offending and that the prosecution was in contravention of RSPCA policies and guidelines. Mr Minnery explained that the applicant was referring to NSW legislation which is a jurisdiction outside Queensland, and that the legislation in Queensland provided for a limitation period of 12 months. I explained that the policies and guidelines the applicant was referring to were also from another jurisdiction and were not those of RSPCA Queensland. The applicant seemed satisfied with this explanation.
38.The applicant was concerned that the RSPCA had breached his privacy. Mr Minnery explained the enforcement powers of the RSPCA Inspectors and their right to enter his premises under warrant. The applicant seemed satisfied with this explanation.
39.Mr Minnery asked the applicant if he was happy to speak to the Court to explain his personal circumstances and any mitigation factors for penalty…
40.Mr Minnery offered to put some information about the applicant before the Court, and the applicant was grateful for this. He provided Mr Minnery with information in relation to his antecedents and the circumstances of the offending and other matters he wished to have placed before the Court.
41.In particular I recall that the applicant informed Mr Minnery that he was legally blind, that he had been in a wheelchair following a motor vehicle accident…”[1]
[1] Affidavit of Tracey Ann Jackson filed 29 June 2016
On two occasions the prosecutor described the appellant’s guilty plea as “a late plea”. He did not explain to the Magistrate his discussion with the appellant which could clearly have had some bearing on the lateness of the plea. His late plea may have been due to the need to explain to the appellant the various matters referred to in Ms Jackson’s affidavit.
On the second occasion the prosecutor actually said
“I would ask your Honour to take the following matters into account. This is a guilty plea. It is a late plea of guilty but it is still a plea of guilty”.[2]
[2] Transcript T1-15
The Magistrate gave the appellant no credit for his plea of guilty. His honour said
“Your plea of guilty today is a matter to be taken into account, although it’s a late plea. The matter was listed for trial today and you were only – you only informed of the plea of guilty after the trial listing – after 9 o’clock this morning. So there’s been some inconvenience to the Crown – some expense to the prosecution, I should say, in prosecuting this particular matter to this extent, which you forced them to do, whereas a plea of guilty would’ve [indistinct] at a much earlier point in time and not have them prepare all the evidence they had to prepare and not obtain the witnesses [indistinct] attend court but they had to attend court. So I do take into account your plea of guilty but it doesn’t, to my mind, mean that I’m going to impose a lesser penalty. I’m imposing a penalty as if you’d been convicted today.”[3]
[3] Decision T1-2
Section 13(1) – (4) of the Penalties and Sentences Act 1992 provides
“13 Guilty plea to be taken into account
(1)In imposing a sentence on an offender who has pleaded guilty to an offence, a court—
(a)must take the guilty plea into account; and
(b)may reduce the sentence that it would have imposed had the offender not pleaded guilty.
(2)A reduction under subsection (1)(b) may be made having regard to the time at which the offender—
(a)pleaded guilty; or
(b)informed the relevant law enforcement agency of his or her intention to plead guilty.
(3) When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed.
(4) A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court—
(a)that fact; and
(b)its reasons for not reducing the sentence.”
In my view the appellant should have been given some credit for his guilty plea. The Magistrate referred to “some inconvenience and expense” to the prosecution as a result of the lateness of the plea. Three or four prosecution witnesses were at court and the vet was on standby for telephone evidence. The distinct impression I have from reading what the prosecution said to the Magistrate is that some, but perhaps not the usual credit, was warranted for the appellant’s pleas of guilty. Knowing what is now known about the pre-trial discussions, I think that the appellant was entitled to some credit for pleading guilty and this seems to be what the prosecutor was saying to the Magistrate, but, as will be seen shortly, it is not necessary to express a definitive view about this ground.
Whether a fine was warranted?
The appellant also contends that the fine of $4,000 is, by itself, manifestly excessive.
The appellant is a disability pensioner who is vision impaired and this was why he said he had difficulty caring for the turtles. The Magistrate accepted that his limited sight “obviously” impacted upon his ability to properly care for the turtles. He could not, for example, see the shell condition of the turtles. He also found that this condition impacted on his ability to earn income. He also has other physical disabilities which are causally related to his eligibility for a disability pension. He was born on 19 July 1947. He owns his house with his carer and it is subject to a mortgage. The house was purchased for $265,000, $240,000 of which was borrowed. He and his carer pay off the mortgage at the rate of $589 a fortnight and he has about $20 in the bank. He said he could pay the court costs and vet fees if he “scrimps on food” but $4,000 is “beyond” him. The Magistrate ordered that fines, costs and compensation be “referred to SPER for collection”.
Sections 48, 50 and 51 of the Penalties and Sentences Act 1992 provide, so far as is relevant
“48 Exercise of power to fine
(1) If a court decides to fine an offender, then, in determining the amount of the fine and the way in which it is to be paid, the court must, as far as practicable, take into account—
(a)the financial circumstances of the offender; and
(b)the nature of the burden that payment of the fine will be on the offender.
(2) The court may fine the offender even though it has been unable to find out about the matters mentioned in subsection (1)(a) and (b).
(3) In considering the financial circumstances of the offender, the court must take into account any other order that it or another court has made, or that it proposes to make—
(a)providing for the confiscation of the proceeds of crime;
or
(b)requiring the offender to make restitution or pay compensation.
(3A) In considering the financial circumstances of the offender, the court must not take into account the offender levy imposed under section 179C.
(4) If the court considers that—
(a)it would be appropriate both to impose a fine and to make a restitution or compensation order; and
(b)the offender has not enough means to pay both;
the court must, in making its order, give more importance to restitution or compensation, though it may also impose a fine.
50 Instalment order
If a court fines an offender, it may order that—(a)the fine be paid by instalments; or
(b)the proper officer give, under the State Penalties Enforcement Act 1999, section 34, particulars of the fine to SPER for registration under that section.
51 Payment of fine
If a court does not make an instalment order under section 50(a), it must, at the time of imposing the fine order that—(a)the offender be allowed time to pay the fine; or
(b)the proper officer give, under the State Penalties Enforcement Act 1999, section 34, particulars of the fine to SPER for registration under that section.”
The Magistrate’s conclusion that the appellant “had the ability to pay a fine” of $4,000 was reached notwithstanding that the appellant was a disability pensioner living in a house subject to a mortgage. It is not apparent that his Honour considered, or properly considered
(a) the financial circumstances of the appellant; or
(b) the nature of the burden that payment of a fine of $4,000 would have on the appellant.
At best there was a cursory examination only of the appellant’s financial circumstances and no apparent consideration of the burden that payment of a fine of $4,000 would impose on the appellant.
Mr Byrne QC for the respondent referred to a schedule of comparative sentences which was before the Magistrate. To my mind some of the defendants there referred to seem to have been fined amounts clearly beyond their financial circumstances. One of those decisions is the case of Stormont which was particularly referred to his Honour in the present case. The defendant there was fined $4,000 notwithstanding that she was a single unemployed mother with four young dependent children and the matter was dealt with in her absence. I am unable to accept that decisions such as that should influence the discretion to fine in the present case. No proper consideration at all seems to be have been given to the matters mentioned in s 48(1) notwithstanding s 48(2).
Mr Byrne QC submitted that if I found the fine to be manifestly excessive I should consider making a probation order.
Section 48(1) clearly requires certain matters to be considered in reaching a decision to fine an offender and if so, for what amount. It is not the case that offenders can be fined regardless of their personal circumstances with the fine then referred to SPER which is what seems to be what happened here.
In my view the Magistrate erred in this respect and the sentencing discretion must be exercised afresh.
Prohibition order
The final issue on the appeal concerns the prohibition order. The appellant contends that he in fact consented only to a prohibition order for 3 years for reptiles only.
What Ms Jackson says the appellant said to Mr Minnery before the hearing suggests the contrary is the case.[4]
[4] Affidavit of Tracey Ann Jackson filed 29 June 2016, para 34
In addition the transcript of the proceeding before the Magistrate also indicates otherwise. Relevant passages are as follows:
“Mr Minnery: Your Honour, I’m not seeking the postage, just the $86.80, and no other appearance costs or any of those types of costs.
Your Honour, I also seek a prohibition order…
In this case, I seek a prohibition of holding or possess, purchasing or otherwise acquiring any animal at all.
Bench:Any animal?
Mr Minnery: Yes, your Honour.
Bench:Even a dog?
Mr Minnery: Yes, your Honour.
Bench:Why?
Mr Minnery: Your Honour, in this case, my understanding is the defendant will be addressing you to suggest that he cannot care for animals - - -
Bench:Okay.
Mr Minnery: - - - because of his vision impairment…
Bench:Now, the prosecution is seeking an order that you must not purchase, possess or otherwise acquire any animal for the period of your lifetime.
Defendant:Yeah. I’m quite happy with that - - -
Bench:You consent to that. Okay…
Mr Minnery: Your Honour, if I can assist. There’s a power to review such an order if the circumstances warrant it, and your Honour will find that in section 188 of the Act…
Mr Minnery: So I don’t know that he would be prejudiced by the order being made as sought and as consented to and he can come back before the court if there’s an issue.
Bench:All right. That’s so, Mr Johnson, you’re happy enough to come back to court if you want to change that?
Defendant:Well, no, because basically I don’t have the finances available to do that.
Bench:Right.
Defendant:Well, I could – may I make a suggestion?
Bench:Yes
Defendant:That that’s with the exception of a care animal - - -
Bench:Well, I’d rather get that right.
Defendant:- - - which are then monitored by the authorities that provide the care animal.”[5]
[5] Transcript T1- 12, 13, 18, 19
In my view the appellant clearly knew what he was consenting to and there is no substance in his contention that he didn’t.
Result
Notwithstanding the appellant’s impaired vision, the offences are serious and general deterrence is clearly a very relevant sentencing consideration for offences such as these. I recognise though that the effect of decisions of the Court of Appeal is that general deterrence would be of lesser importance in this case because of the appellant’s vision impairment. In circumstances where the appellant clearly has no capacity to pay a fine as well as costs and compensation, a period of probation would, I consider, meet the community’s expectation of a sufficient sentencing response for his offending. In my view, provided the appellant agrees, a sentence of 9 months probation should be substituted for the fine imposed on the appellant.
Orders
In the circumstances the appeal will be allowed in part and the following orders will be made in lieu of those made by the Magistrate
1. The fine of $4,000 will be set aside and in lieu thereof the one probation order for 9 months will be made for all offences.
2. The costs and compensation totalling $559.30 is to be paid in instalments of $25 per fortnight commencing on 29 July 2016 payable to the Registrar of the District Court at Southport for payment to the respondent.
3. The appeal in relation to the prohibition order is dismissed and the order that convictions not be recorded is confirmed.
4. I make no order for costs.
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