Keir v Croatto
[2017] ACTSC 222
•16 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Keir v Croatto |
Citation: | [2017] ACTSC 222 |
Hearing Date: | 26 July 2017 |
DecisionDate: | 16 August 2017 |
Before: | Mossop J |
Decision: | 1. The appeal is allowed. 2. Proceedings are adjourned until a date to be fixed so as to permit the offender to be re-sentenced. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – statutory interpretation – failure to reach state of satisfaction required by statutory provision for making of order preventing the acquisition or keeping of dog – insufficient evidence before the magistrate to make the order made – s 101 of the Animal Welfare Act 1992 (ACT) ANIMALS – CRUELTY – Neglecting an animal in a way that caused it pain – failure to take reasonable steps to alleviate any pain suffered by an animal |
Legislation Cited: | Animal Welfare Act 1992 (ACT), ss 8, 8(2)(b), 101, 101(1), 101(2)(b), 101(2)(a), 101(3), 105, 105(2) Animal Welfare Amendment Act 2016 (ACT) Magistrates Court Act 1930 (ACT), s 208 |
Parties: | Shane Keir (Appellant) Catherine Croatto (Respondent) |
Representation: | Counsel P Edmonds (Appellant) T Skvortsova (Respondent) |
| Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 17 of 2017 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Boss Date of Decision: 6 February 2017 Case Title: Catherine Croatto v Shane Morrison Keir Court File Number: CC16/41156 |
MOSSOP J:
Introduction
This is an appeal against a sentence imposed by a magistrate upon the appellant. On 6 February 2017 the magistrate convicted the appellant of failing to take steps to alleviate pain to an animal in contravention of s 8(2)(b) of the Animal Welfare Act 1992 (ACT). The appellant was ordered under s 101 of the Act to pay to the Territory an amount of $2,836.90 within three months. He was also required to enter into a Good Behaviour Order with 75 hours of community service. Finally he was banned from purchasing or acquiring a new dog for five years.
The grounds of appeal that were pressed upon the hearing of the appeal were:
(a) the sentence appealed from is manifestly excessive;
(b)there was insufficient evidence before the magistrate to make the order
[banning the appellant from purchasing or acquiring any new dog]; and
(c) the magistrate took judicial notice of contentious matters.
The appellant seeks that the sentence be set aside and that the appellant be resentenced.
The proceedings before the magistrate
The appellant was charged as follows:
On 4 March 2016 Shane Morrison Keir committed an offence against section 8(2)(b) of the Animal Welfare Act 1992, that he, being the person in charge of an animal, namely a male cattle cross dog “Stump” (number 100547), did fail to take reasonable steps to alleviate pain.
Location of the offence [address] Piallago ACT.
The proceedings were first before the ACT Magistrates Court on 2 November 2016. A plea of not guilty was entered and the matter was listed for hearing on 16 January 2017. On 16 January 2017 the appellant entered a plea of guilty. The appellant was remanded to appear on 6 February 2017. On that date the magistrate heard sentencing submissions and made her orders.
The following material was tendered before her Honour:
(a)Exhibit 1: statement of facts, criminal history and photographs.
(b)
Exhibit 2: a document headed “Court Duty Report” being an abbreviated
pre-sentence report prepared at court by an officer of ACT Corrective Services.
(c)Exhibit 3: a letter from PJ Burgess, a veterinary surgeon.
The statement of facts was admitted without objection. It recorded that on 4 March 2016 the RSPCA received a complaint about a dog at the appellant’s address. RSPCA inspectors attended the property later that same day and located a male cattle-dog cross tethered by a chain that was approximately 3.4 m in length. The chain was attached to a chain-link collar which was extremely tight around the dog’s neck. The dog presented as scared when the inspectors approached the dog with difficulty. The dog rarely raised its head and appeared to have difficulty in dragging the heavy chain tether. The chain was attached to a wooden kennel which had no bedding in it.
Inspectors approached the dog and saw that the chain collar was embedded in the dog’s neck. The wound appeared infected and was malodorous. The chain could not be moved and the dog reacted in pain when the collar was touched. The inspectors believed that the dog required immediate veterinary care and it was seized and taken to the RSPCA shelter to be examined by a vet. The vet noted that the dog was skittish upon examination and was hunched over which was indicative of pain. The skin over the dorsal neck had an obvious wound which was due to the collar being too constrictive around the neck. The collar was embedded in the skin and the skin was granulating around the collar. The collar could not be moved around the neck or lifted away from the neck as it was too tight. The dog had a swollen neck on the head side of the chain.
The collar was made from a piece of chain. It had a metal clip at one end and a connection bracket on the other. The removal of the collar revealed traumatised tissue which was approximately 10 cm long. There were two discrete lesions at each end of the traumatised tissue that were approximately 1 to 1.5 cm long. The lesions were ulcerated and had a purulent discharge associated with them. The skin was thickened and red and there was blackening of the tissue and formation of a small scab superficially. There was no fur in the area of the lesion and the fur on the underside of the neck was thinned with many broken strands.
A general anaesthetic was administered to the dog and the infected area on the neck was clipped and cleaned.
The opinion of the vet was that the collar was sufficiently constricting circulation to cause swelling under the jaw. This condition resolved after the collar was removed. The injuries to the top side of the neck were indicative of acute on chronic change, meaning an old injury with ongoing insult resulting in constant skin abrasions, remodelling and scarring. The tissue sample from the area where the collar was, indicated that it had been in place for a sufficient amount of time to cause fibrosis, that is, a minimum of two weeks. The wound was complicated by the ongoing trauma causing ongoing remodelling of the wound.
So far as the consequences for the dog were concerned the statement of facts provided:
The injury would have caused chronic pain to the dog as the collar rubbed into the abraded area which caused the area to be constantly traumatised. The dog had an increased heart and respiratory rate which normalised after the collar was removed. After the collar was removed the vital signs fell back into normal limits indicating that the elevated vitals were likely to be a pain response. The veterinarian stated that the collar had been in place for a considerable amount of time and that the clinical signs were apparent at least a month ago. These signs included hair loss around the neck, erythema or redness in the area. The ongoing trauma caused by the collar resulted in ulcerations, thickened, necrotic (dead) and remodelled skin. The dog was in obvious distress prior to the collar being removed.
The inspectors spoke to the defendant on 7 March 2016. He admitted that he was the owner of the dog. He said that the dog had food and water, that it was “fine in the morning” and that it had been chained up because it was dumped. When told about the chain coming into the dog’s neck he said “I’ve been in hospital for three weeks, the dog has put on weight, that’s what made the chain tight”. On 7 April 2016 the defendant declined to be interviewed but said “I didn’t check the chain before I went into hospital” saying that he had put the chain on the dog just after Christmas. The appellant admitted having seen the dog after he left the hospital stating: “Yeah, we drove in and I saw it but I didn’t go and check it.”
The photographs in evidence were consistent with the description of the dog’s condition in the statement of facts.
After the evidentiary material was tendered before her Honour the prosecutor was asked to summarise the facts disclosed in the statement of facts. He did so. Counsel for the offender then made submissions. He indicated at the outset that he was asking her Honour to consider a fine and/or a Good Behaviour Order and to decline to make any order under s 101 of the Animal Welfare Act in relation to an ownership ban.
At the outset her Honour indicated that she considered the matter to be a serious matter and that a custodial sentence was not “off the table”.
Counsel for the appellant outlined the appellant’s personal circumstances. He noted that the appellant was the owner of a farm known as “Canberra Park”, which was approximately 100 acres. He had on that property 30 cattle, 39 horses and one other dog. He had been on that property for over 20 years. He said that the appellant had never had any issue with any of the other animals on the property. He referred to the letter from the veterinarian. That letter stated that the vet had known the appellant for 25 years, had treated horses, dogs and cats for him and that “I have never known Shane to be cruel to his animals”.
Counsel for the appellant said that the appellant’s family had been involved in harness and carriage showing for over 100 years in the local area. Up to 30 members of the family over three generations competed in harness and carriage showing at the Canberra Show each year and surrounding shows. He pointed to the success of the appellant’s horses in winning ribbons at shows including the 2016 Queanbeyan Show.
Her Honour suggested that he may have a different attitude to large animals in comparison to small animals.
Counsel submitted that his client had been diligent in the care of animals and had taken great pride in showing competition animals. He submitted that he had a large number of animals and was clearly distressed when he came to see him. He submitted that it was a case of not checking up on the animal with sufficient regularity or making sufficient arrangements for the two weeks that he was in hospital having both knees replaced in February 2016.
He said that the animal was one which was dumped at the property before Christmas 2015. He pointed to the fact that there were no issues in relation to the animal’s general condition or weight and that the animal was properly fed and watered and provided with shelter. He said:
Whilst my instructions are that the chain fitted the dog appropriately when first put on just before Christmas in 2015, following the dog putting on a little bit of weight upon being properly fed its become tight and thereafter, in short, your Honour apart from checking on the dog by looking at it from a few yards away, ensuring that it had food and water, otherwise there was no closer attention given to the dog and regrettably, your Honour, the chain has, obviously, over time becomes too tight on the animal.
Certainly, it would have been a better course to have attached the chain to a collar so that the chain was not rubbing directly against skin and fur of the dog. But, your Honour, the evidence that before your Honour appears to indicate that the condition has taken maybe approximately a month or so to develop. Now, again, for two weeks of that month the defendant was in hospital.
There was then a discussion about the effect of this statement, namely that the dog had been effectively chained up for two and a half months. Counsel then said:
Well, certainly, your Honour he has committed an offence. It is a case of neglect. He has pleaded guilty to that offence, your Honour.
There was then a reference to the fact that there were a number of staff on the premises because a bus service was run from there. He then submitted that he had asked the site foreman to take care of the dog. However he accepted that he should have given more detailed instructions and ensured that the dog was closely inspected during the period that he was in hospital and during the period of at least two weeks after he was discharged from hospital when he could himself have more closely checked on the dog.
Submissions were then made about whether or not her Honour should make an animal ownership ban. Her Honour indicated that she was contemplating such a ban in relation to dogs. She indicated that she was considering an order that would ban the appellant from having possession or control of a dog “in the region of five years”. Counsel submitted that one incident over a period of two months was not an objective basis to find that there was a tendency to neglect any type of animal. Her Honour indicated that people have different attitudes towards different types of animals. Her Honour indicated that having regard to what was said by counsel for the appellant about his success with larger animals that a global animal ban was not appropriate. She continued:
But his attitude towards dogs is well demonstrated and, in my view, it’s not – he is not an appropriate person until he has had some period to reflect and perhaps some counselling before he should be permitted with that responsibility. He is a person who has demonstrated an inability to approach this particular species of animal appropriately.
There was then some discussion about the other dog which the appellant owned, namely a red heeler named Cato. During the course of that discussion, counsel for the appellant passed on his additional instructions that in late 2015 “the dog in question had been taken on the back of his motorbike whilst he went out on the property from time to time”.
The end result of the discussion of the scope of any ban was that her Honour said:
If this dog has been checked by the RSPCA and is currently being well cared for there might be some hope that there is enough affection for that animal by the defendant not to have that animal removed, I am prepared to make an exception in relation to that animal.
There was then a discussion of an order in relation to veterinary and boarding expenses incurred by the RSPCA. It was made clear to the magistrate that the order was being sought pursuant to s 101(2)(b) of the Animal Welfare Act. Further it was made clear that the order was said to be in favour of the Territory and Municipal Services Directorate and not directly in favour of the RSPCA.
Counsel for the informant made a statement based on instructions from the informant about another dog that had been tethered at the site and other complaints. After some discussion of the statements made, counsel indicated that she would call the informant, but then after some further discussion did not. Counsel then made brief submissions in relation to sentence.
Her Honour then gave her reasons. As to the objective seriousness of the offence, her Honour said:
The statements of facts and circumstances of the offence in terms of objective seriousness this is within the mid to upper range of objective seriousness for this type of offence. There was prolonged suffering of an animal who was, frankly, apart from perhaps one or two occasions left chained up in a yard with no attention effectively to the animal other than providing it with the bare necessities of life.
The condition was acute on top of a chronic change, that is, there were old injuries with continued skin abrasions. That seems to me consistent with what I understand had happened to the dog, that is, essentially it was obtained and spent the vast majority of the two months while in your possession chained up without alleviation of its suffering. I note that the injury also became infected causing further suffering to the animal.
Her Honour then:
(a)referred to the plea of guilty and indicated a discount of 25 per cent for that plea;
(b)indicated that she had taken into account his age and personal circumstances;
(c)indicated that she had taken account of his criminal history noting that the offences shown on it were of some antiquity, related to traffic and were not relevant to the sentence;
(d)indicated that she had taken into account the content of the letter from the vet.
Her Honour indicated that both specific and general deterrence was highly relevant. She said: “It is not in the community’s interest for this type of behaviour to go unremarked and unpunished”, further stating:
People expect a certain standard of behaviour towards animals. Animals can’t nip down to the shops and buy themselves some food. They can’t loosen their own collars. They can’t take themselves for a walk. They depend on all the necessities of life from people who choose to own them and that is an obligation that runs both ways in the community expects that if an animal is acquired that it be treated properly in accordance with at least the basic humane standards applicable in a civilised society. That is a standard below which you have fallen.
Her Honour then announced the sentence that she imposed.
Statutory provisions
As at the date of the offence, s 8 of the Act provided:
8 Pain
(1) A person commits an offence if the person causes an animal unnecessary pain.
Maximum penalty: 100 penalty units, imprisonment for 1 year or both.
(2) A person in charge of an animal commits an offence if the person –
(a) fails to provide it with appropriate, and adequate, food, water, shelter or exercise; or
(b) fails to take reasonable steps (including, if appropriate, seeking veterinary treatment) to alleviate any pain suffered by the animal; or
(c) abandons the animal; or
(d) neglects the animal in a way that causes it pain; or
(e) kills the animal in a way that causes it unnecessary pain.
Maximum penalty: 100 penalty units, imprisonment for 1 year or both.
The section was subsequently omitted by the Animal Welfare Amendment Act 2016 (ACT).
As at the sentencing date s 101 provided:
101Animal offences – court orders (general)
(1) This section applies if –
(a) a court has convicted or found guilty a person in charge of an animal of an offence in relation to the animal; and
(b) the court is satisfied that, unless an appropriate order under this section is made, the person would be likely to commit a further offence in relation to the animal, or any other animal.
(2) The court may, in addition to any penalty which it may otherwise impose, make any order it considers appropriate in relation to –
(a) the disposal of –
(i) the animal in relation to which the offence was committed; and
(ii) any other animal of which the person is in charge; and
(b) the payment to the Territory of expenses incurred in the care of –
(i) the animal in relation to which the offence was committed; and
(ii) any other animal of which the person is in charge.
(3) The court may, in addition to any penalty which it may otherwise impose, make an order as it considers appropriate that the person must not –
(a) purchase or acquire any animal within the period stated in the order; or
(b) keep, care for or control any animal within the period stated in the order.
(4) A person must not engage in conduct that contravenes an order under subsection (2) or (3).
Maximum penalty (subsection (4)): 50 penalty units, imprisonment for 6 months or both.
(5) In this section:
expenses incurred, in the care of an animal, includes any expense incurred by, or on behalf of, the Territory for any of the following:
(a) taking possession of the animal;
(b) transporting the animal;
(c) providing food, drink and water for the animal;
(d) providing shelter or accommodation for the animal;
(e) providing veterinary care for the animal.
The powers in s 102(2) and (5) in relation to orders requiring payment of expenses did not exist at the time of the offence as they were inserted by the Animal Welfare Amendment Act. Neither party contended that the power to make an order was unavailable in the circumstances of the present case.
As at the date of the filing of the notice of appeal, s 105 of the Act provided:
105 Court orders – procedure and appeals
(1) For the purposes of proceedings for an order under this division –
(a) the court may require notice of the proceedings to be given to any person the court thinks fit; and
(b) the court may hear a person to whom a notice has been given.
(2) Without affecting any other right of appeal, an order under this division is appellable in the same manner as if it were, or were part of, a sentence imposed in relation to the relevant offence.
Jurisdiction
Counsel for the respondent identified that there may be an issue in relation to the jurisdiction of the Court to hear an appeal in relation to the banning order made under s 101. That was because s 105(2) did not expressly confer jurisdiction on the Court. Section 105(2) makes the order appellable in the same manner as if it was part of a sentence imposed in relation to the relevant offence. That means that it is required to be treated as part of the sentence and, if the sentence is appellable, then so too is the order.
In the present case it was uncontroversial that the Court had jurisdiction to hear an appeal in relation to the underlying sentence: see s 208 of the Magistrates Court Act 1930 (ACT). Section 105(2) has the effect that the s 101 order must be treated as being appellable as if it was part of the sentence.
The combined effect of ss 208 and 105(2) is either to permit an appeal under s 208 in relation to the whole of the sentence including the section 101 order or permit a parallel appeal which has the identical consequences that would occur as a result of the s 101 order being included in a s 208 appeal. The reference in s 207 to the jurisdiction of the Magistrates Court extending only to the appeal is there set out and “to no others” does not avoid the operation of s 105. It does however suggest that the first option referred to above is the desirable interpretation, namely, that s 105 requires the s 101 order to be taken to be part of the sentence and hence within the scope of the appeal permitted by s 208. The fact that the jurisdiction of the Supreme Court extends to the hearing of the appeal in so far as the sentence incorporates the s 101 order flows naturally from this interpretation.
Because I have interpreted s 105 as putting the appeal directly within the scope of s 208, it is not necessary in this case to determine whether any additional jurisdiction of the Supreme Court to hear an appeal relating to a s 101 order would have been given directly by the section or by the combined effect of the section and s 176 of the Legislation Act 2001 (ACT). It is also not necessary to determine the respondent’s submission that s 176 could not operate because it did not refer to a “particular” court.
Ground (b) — s 101 of the Animal Welfare Act
Ground (b) in the notice of appeal contends that her Honour erred because there was insufficient evidence before the magistrate to make the order banning the appellant from purchasing or acquiring any new dog. In making their submissions to the magistrate neither party made any reference to the threshold requirements for the operation of s 101 set out in s 101(2). In giving her reasons the magistrate made no specific reference to the threshold requirements for the application of s 101. In order to understand the significance of this fact, it is necessary to say something more about the unusual nature of the section.
In s 101(1) there are two elements which must be satisfied in order for the section to apply. That in sub-s (1)(a) is relatively easily satisfied. However that in sub-s (1)(b) is more difficult. It requires an answer to the question whether, if an order under this section is not made, is the person “likely” to commit a further offence in relation to the animal subject of the charge or any other animal. In approaching the matter this way it assumes that a sentence (without a s 101 order) will be imposed, then requires the court to be satisfied that on the balance of probabilities that a further offence in relation to an animal will be committed.
In approaching the matter in this way it assumes that whatever sentence is imposed will be inadequate to deter the offender from committing a further offence. In sentencing an offender for an offence under the Animal Welfare Act one of the significant purposes of sentencing is “to prevent crime by deterring the offender … from committing the same or similar offences”: Crimes (Sentencing) Act 2005 (ACT) s 7(1)(b). In determining an appropriate sentence, if a judicial officer considered that the sentence was unlikely to deter the offender from committing a similar offence in the future that would usually be an indicator that either the legislature has failed to specify an appropriate maximum penalty or that the sentence to be imposed was not an appropriate one and a more severe sentence should be imposed. Thus, because specific deterrence is an important goal of the sentencing process the circumstances in which an additional order is permitted are likely to be limited.
However, it is not just the effect of the sentence that would otherwise be imposed which has the consequence of narrowing the circumstances in which the threshold requirement in s 101(1)(b) is met. The requirement that the person “be likely to commit a further offence” is one which requires a conclusion on the balance of probabilities about the conduct of the sentenced person over the period during which an order under this section might be made. It is not enough that the court be satisfied that there is a significant risk of further offending conduct. There must be a satisfaction that such offending is “likely”, that is that the balance of probabilities favour its future occurrence. Given that this involves a prediction about the future made in the context of sentencing proceedings, the circumstances where a court may be satisfied that even after the imposition of whatever sentence would otherwise be imposed it was more likely than not that further animal offences would be committed would generally only be ones where the past conduct or mental state of the offender is such that the offender will be unresponsive to efforts at specific deterrence. It certainly would not be a threshold that was routinely satisfied by reason of the commission of a single offence.
The restrictive threshold requirements are not the only notable features of the section. Further comment is required in relation to the capacity to make orders for the payment to the Territory for expenses incurred: s 101(2)(b). When the Animal Welfare Act was enacted in 1992, it only contained a power to make a banning for disposal order, the equivalent to that provided for by s 101(2)(a) and s 101(3). The most significant amendments made to the section were those made by the Animal Welfare Amendment Act 2016. That Act substituted an amended version of s 101 sub‑ss (2) and (3) so as to include a power to make an order in relation to the payment to the Territory of expenses incurred in the care of the animal in relation to which the offence was committed or any other animal of which the person is in charge.
The Explanatory Statement for the Animal Welfare Amendment Bill 2016 referred to this new power being available “in specific and limited circumstances”. It said that the amendment “responds to an increasing, unintended and unfeasible trend where owners who are alleged to have committed animal welfare offences are indirectly being permitted to shift the costs of their animal’s care, treatment and rehabilitation to the Territory, and ultimately, the community.” It had described the amended provisions as being consistent with s 114(6) of the Domestic Animals Act 2000 (ACT). That section provided that where a person was charged with allowing an animal nuisance and the animal was seized, then any costs or expenses incurred by the Territory in seizing or impounding an animal seized under sub-s (1) are a debt payable to the Territory by the keeper of the animal.
All this would have made some sense if the power to make an order relating to expenses incurred by the Territory was generally available where an animal had been the subject of regulatory action under the provisions of the Animal Welfare Act and a person was convicted of an offence. However, as will be apparent from the discussion of s 101(1) above, the circumstances in which the section can apply at all are very limited. Indeed, in relation to an order relating to expenses incurred it is not at all apparent why the circumstances in which such an order would be available should be limited to the narrow class of circumstances set out in s 101(1)(b). In obvious contrast to the provision in s 114(6) of the Domestic Animals Act 2000 referred to in the explanatory statement, the powers relating to expenses in s 101 can only be invoked in the unusual circumstance where a person is likely to commit an offence if such an order is not made. While there might be some logic in creating such a link between the making of a banning order and the possibility of future offending because a banning order will remove the capacity for a person to commit a further offence, there is no apparent logic in linking the possibility of future offending to a power to make an order in relation to the payment of expenses.
So far as this new power to make orders in relation to expenses is concerned, it is possible that the legislature wished to create a very narrow legislative power that would only operate in very unusual circumstances. Some support for this is given by the reference to “specific and limited circumstances” in the explanatory statement. However, the other material in the explanatory statement would suggest a more general legislative policy to permit orders relating to the recovery of expenses that were available where an offence was made out. It is difficult to avoid the conclusion that the narrowness of the circumstances in which s 101 as a whole might operate has been overlooked by the drafter in deciding to insert the new power relating to expenses within that section.
In the present case counsel for the parties provided her Honour no assistance with the proper interpretation of s 101. Her Honour’s reasons do not record that she reached the state of satisfaction required by s 101(1)(b). While a sentencing magistrate’s reasons should not be scrutinised with an eye finely tuned to the detection of error, in the present case because of:
(a)the unusual nature of the statutory provisions;
(b)the failure by the parties to make any reference to the threshold requirements set out in s 101(1); and
(c)the failure by her Honour to make any reference to the threshold requirements in her reasons;
I consider that her Honour failed to reach the state of satisfaction that was a threshold requirement for the application of the section.
In any event, if her Honour did reach that state of satisfaction, she erred in doing so. That is because the evidence was not sufficient to establish that, notwithstanding the sentence that her Honour was going to impose, it was “likely” that a further offence would be committed in relation to another dog.
In the light of the evidence about the manner in which the dog was treated and hence the lack of care and consideration on the offender’s part for the welfare of the animal, there was evidence sufficient to establish that there was a risk, having regard to that mental attitude, that further offences would be committed in the future. Clearly, her Honour was unimpressed with the attitude of the offender so far as it was reflected in the offending conduct and the circumstances surrounding his treatment of the dog more generally.
Having regard to the absence of evidence on oath from the offender disclosing in a reliable way why he treated the dog in the way that he did, or his attitude to the offence, it was certainly not possible to say that the risk of future offending conduct was negligible. However, the absence of any past convictions for similar offences and the evidence in the form of the letter from the veterinarian as to his treatment of other animals, it was difficult to assess the magnitude of that risk. There was certainly no evidence of any intractable attitude or mental impairment which would render him unresponsive to specific deterrence. The evidence available was not such that would permit a conclusion that it was more likely than not that a further offence in relation to a dog would occur.
As a consequence ground (b) in the notice of appeal is made out.
Other grounds of appeal
Having regard to the conclusion that there was a specific error in relation to the operation of s 101, it is not necessary to come to a conclusion in ground (a) that the sentence imposed was manifestly excessive.
So far as ground (c) is concerned, that ground is not made out because it is clear that even though her Honour may have gone beyond matters of which she was entitled to take a judicial notice, she did so in the context of considering whether or not to exclude the offender’s other dog, Cato, from the banning order. As Cato was ultimately excluded, there was no detriment to the offender which arose from her Honour taking those matters into account and no basis upon which to interfere with the orders made.
Re-sentencing
In the light of my conclusion above it is necessary to re-sentence the offender. That exercise is complicated by my conclusions above in relation to the threshold for the operation of s 101 so far as orders relating to expenses are concerned. I will need to hear the parties as to whether or not it is open to make an order under s 101 in relation to expenses, and if not, whether an order may be made under s 19 or otherwise under the Crimes (Sentencing) Act, and if not, whether the sentencing should be further adjourned pending payment of expenses incurred or the penalty otherwise adjusted so as to take account of the non-payment of those expenses.
Orders
The orders of the Court are:
1. The appeal is allowed.
2. Proceedings are adjourned to a date to be fixed so as to permit the offender to be re-sentenced.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 16 August 2017 |
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