Maher v Krumins
[2022] VSC 281
•27 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2021 02397
| ANTHONY MAHER | First Appellant |
| and | |
| DAVID MAHER | Second Appellant |
| v | |
| LAURA KRUMINS | Respondent |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 March 2022 |
DATE OF RULING: | 27 May 2022 |
CASE MAY BE CITED AS: | Maher & Anor v Krumins |
MEDIUM NEUTRAL CITATION: | [2022] VSC 281 |
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JUDICIAL REVIEW – Criminal Law – Animal cruelty charges – Appeal from Magistrates’ Court on a question of law – Magistrate fined both appellants – Appellants disqualified from being in charge of animals for 10 years – Where Magistrate erred in making comparisons to different legislative scheme and referred to expectations regarding material that should have been provided by the appellants – Appeal allowed – Criminal Procedure Act s 272 – Prevention of Cruelty to Animals Act 1986 ss 10, 12 – Sentencing Act 1991 ss 5, 6, 7.
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APPEARANCES: | Counsel | Solicitors |
| For the First and Second Appellant | Mr K McDonald | Sofra Solicitors |
| For the Respondent | Mr A Sim | Department of Jobs, Precincts and Regions |
HER HONOUR:
Introduction
This is an appeal on a question of law under s 272 of the Criminal Procedure Act 2009 (Vic) (‘CPA’) from orders made in the Shepparton Magistrates’ Court on 11 June 2021. Under s 272 of the CPA, a party to a criminal proceeding in the Magistrates’ Court may bring an appeal on a question of law from a final order of the Magistrates’ Court. The orders imposed below included fines against each appellant after they pleaded guilty to, and were convicted of, several offences under the Prevention of Cruelty to Animals Act 1986 (Vic) (‘PCA Act’); and the Magistrate also made an order against each appellant under s 12 of the PCA Act disqualifying them from being in charge of any farm animal for 10 years. The respondent, Laura Krumins, of the Department of Jobs, Precincts and Regions (‘the Department’), is the informant in the PCA Act charges against both appellants: Anthony Maher and David Maher.
In their notice of appeal dated 8 July 2022, the appellants raised the following four questions of law arising from the Magistrates’ Court orders made 11 June 2021:
(a) Did the Magistrate err by holding that the offences for which the appellants were to be sentenced were analogous to the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’)? (‘Ground One’);
(b) Was there any or any sufficient evidence establishing facts which the Magistrate relied on as adverse to the appellants where they did not admit those facts, and did the Magistrate impermissibly reverse the onus of proof by taking those facts into account when disqualifying the appellants from being in charge of farm animals for 10 years? (‘Ground Two’);
(c) Did the Magistrate have any or any proper regard to the principles of totality, proportionality, and parsimony in imposing the sentences he did? (‘Ground Three’); and
(d) Were the Magistrate’s sentences manifestly excessive? (‘Ground Four’).
Procedural Background
It is useful to briefly set out the manner in which the charges were resolved in the Magistrates’ Court, as there is some procedural complexity.
On 10 July 2019,[1] the appellants were charged on summons with 41 summary offences totalling 82 charges of both animal cruelty and aggravated animal cruelty alleged to have been committed between 16 April and 17 August 2018.[2] The Second Appellant (David Maher) was also charged with having threatened an inspector appointed under the PCA Act. On 30 October 2019 further charges were laid against the appellants for offences alleged to have been committed between 1 January and 22 May 2019. Regarding the 2019 offences, the respondent only proceeded against David Maher for those offences, whilst both appellants were proceeded against for the 2018 offences as explained below. Both appellants have prior convictions from 2002 and 2003 for similar offending.
[1]There appears to be an error in the affidavit of Jessica Walters sworn 8 July 2021 – and consequently in the appellants’ written submissions dated 10 November 2021 (‘Appellant’s Submissions’) – which cited a date of 10 July 2018.
[2]Case numbers K12011857 and K12879594 (the latter of which was subsequently withdrawn in its entirety) relate to the two sets of charges (respectively) against Anthony Maher. Case numbers K12879175 and K12006734 (subsequently consolidated by the Magistrate into case number 202107428) relate to David Maher.
The appellants appeared before the learned Magistrate on 9 June 2021 in the Shepparton Magistrates’ Court, with his Honour sitting remotely from Melbourne due to COVID-19 restrictions. That day, each appellant entered pleas of guilty to certain charges, with certain other charges being withdrawn or rolled up and merged. Following counsel for the respondent (Mr Sim) reading a Prosecution Summary of Facts[3] to the court in respect of each set of charges (the 2018 charges, followed by the 2019 charges), counsel for the appellants (Mr McDonald) made a plea on their behalf.
[3]Which was also an agreed statement of facts.
It is not disputed between the parties that this plea commenced with argument about:
(a) whether the prosecution could call additional witnesses[4] to give evidence in support of an application by the informant for a s 12 control order, in circumstances where the appellants maintained that such an order under that provision was part of any sentence that might be imposed by the court and not a separate application; and
(b) the admissibility of aspects of the victim impact statement of Dr Manning, who was the victim of charge 42 (threatening an inspector) in consolidated proceeding K202107428 against the Second Appellant.
[4]Namely, Dr Rachel Holmes, the Program Manager of Livestock Welfare Compliance; Dr Sarah Hall, a specialist inspector under the Prevention of Cruelty to Animals Act 1986 (Vic) (‘PCA Act’); and Mr Darren Hickey, Project Leader “BetterBeef”.
It is also not disputed that the Magistrate ruled portions of the victim impact statement of Dr Manning to be inadmissible.
Regarding the appellants’ submission to the Magistrate that any order which might be made under s 12 was a ‘sentence’ within the meaning of the Sentencing Act1991 (Vic) (‘Sentencing Act’) and the CPA, it was argued below that it was clear in its terms that s 12(1) of the PCA Act is to be determined on the basis of the evidence before the court upon a finding of guilt, and not any additional or further evidence the applicant might wish to place before the court.[5] The appellants filed a written outline of materials relied on to support their position on this issue.[6]
[5]Document filed in the Magistrates’ Court proceeding titled ’Contested Issues Between The Parties’ dated 8 June 2021.
[6]Document filed in the Magistrates’ Court proceeding titled ‘Skeleton Outline’ dated 9 June 2021 and encompassing reference to the Explanatory Memorandum, Prevention of Cruelty to Animals Amendment Bill 2015 (Vic), associated second reading speeches in the Victorian Legislative Assembly and Legislative Council, and various cases and secondary sources.
The Magistrate indicated a preliminary view that any order made under s 12 was part of the sentence imposed by the court, and was not amenable to a separate application involving discrete witnesses.[7] Following this indication, Mr Sim did not persist with his application to call separate evidence regarding the application for an order under s 12 of the PCA Act.
[7]See, eg, Transcript of Proceedings (Maher & Maher and Krumins, K12011857, 9–11 June 2021) (‘Magistrates’ Court Transcript’) 93, 94.
The plea in mitigation continued on 10 June 2021. On 11 June 2021, the Magistrate found the appellants guilty, and provided oral reasons for his sentences.
The offences to which the appellants ultimately pleaded guilty, and the sentences imposed by the learned Magistrate, are as follows:
Regarding Anthony Maher:
Charges (Case No. K12011857) Offence Charge laid Statutory Maximum Sentence Imposed 37 Animal cruelty (fail to provide food/drink for an animal) between 1 May 2018 and 10 August 2018 (PCA Act s 9(1)(f)) 10 July 2019
250 penalty units or imprisonment for 12 months Fine - $10,000 17 Aggravated cruelty to an animal on 4 June 2018 (PCA Act s 10(1)) 10 July 2019
500 penalty units or imprisonment for 2 years Fine - $60,000 (aggregate for charges 17 and 22) with $127.40 statutory costs 22 Aggravated cruelty to an animal between 21 June 2018 and 6 July 2018 (PCA Act s 10(1)) 10 July 2019
500 penalty units or imprisonment for 2 years Fine - $60,000 (aggregate for charges 17 and 22) with $127.40 statutory costs
Total Effective Sentence Fine $70,000 and order made under s 12(1)(a) of the PCA Act for a period of 10 years disqualifying Anthony Maher from being in charge of any farm animal (within the meaning of the PCA Act) commencing 11 June 2021 (operation of disqualification order suspended until 18 January 2022). Any further stay of payment beyond 28 days to be referred to the same Magistrate. Section 6AAA Statement Term of imprisonment for 6 months and no suspension of operation of s 12(1)(a) order. Other Relevant Orders Pursuant to s 21A of the PCA Act, commencing 11 June 2021, any inspector is authorised to monitor effective compliance by accused with order for period of the order including the suspension period.
Regarding David Maher:
Charges
(Case No. 202107428)Offence Charge laid Statutory Maximum Sentence Imposed 37 Animal cruelty (fail to provide food/drink for an animal) on 2 May 2018 (PCA Act s 9(1)(f)) 10 July 2019 250 penalty units or imprisonment for 12 months Fine - $15,000 (aggregate for charges 37 and 46) 3 Aggravated cruelty to an animal on 16 April 2018 (PCA Act s 10(1)) 10 July 2019 500 penalty units or imprisonment for 2 years Fine - $70,000 (aggregate for charges 3, 6 and 45) with $127.40 statutory costs 6 Aggravated cruelty to an animal between 30 April 2018 and 17 August 2018 (PCA Act s 10(1)) 10 July 2019 500 penalty units or imprisonment for 2 years Fine - $70,000 (aggregate for charges 3, 6 and 45) with $127.40 statutory costs 42 Threaten an inspector in discharging power on 25 July 2018 (PCA Act s 24ZR(1)) 10 July 2019 60 penalty units $5,000 46 (originally charge 4) Animal cruelty (fail to provide food/drink for an animal) between 1 January 2019 and 23 April 2019 (PCA Act s 9(1)(f)) 30 October 2019 250 penalty units or imprisonment for 12 months Fine - $15,000 (aggregate for charges 37 and 46) 45 Aggravated cruelty to an animal between 16 April 2019 and 22 May 2019 (PCA Act s 10(1)). 30 October 2019 500 penalty units or imprisonment for 2 years Fine - $70,000 (aggregate for charges 3, 6 and 45) with $127.40 statutory costs
Total Effective Sentence Fine $90,000 and order made under s 12(1)(a) of the PCA Act for a period of 10 years disqualifying David Maher from being in charge of any farm animal (within the meaning of the PCA Act) commencing 11 June 2021 (suspended until 18 January 2022). Any further stay of payment beyond 28 days to be referred to the same Magistrate. Section 6AAA Statement Term of imprisonment for 9 months and no suspension of operation of s 12 order. Other Relevant Orders Pursuant to s 21A of the PCA Act, commencing 11 June 2021, any inspector is authorised to monitor effective compliance by accused with order for period of the order including the suspension period.
The appellants filed a notice of appeal on 8 July 2021. Judicial Registrar Keith made orders on 13 August 2021, which included a stay of the above orders until the resolution of the current appeal.
It was not disputed that the factual and procedural background to proceedings below was adequately set out in the affidavit of Jessica Walters[8] and the appellants’ submissions.[9] A Joint Court Book was produced by the parties containing the above-mentioned documents and all other documents produced or tendered during the plea hearing, including photographs that formed part of the prosecution opening. Videos of the condition of the subject animals that were provided to the Magistrate were also made available to this Court for the current proceeding. A transcript of the three day hearing in the Magistrates’ Court is included in the Joint Court Book,[10] although it transpired that there were gaps in the recording that related to the second and third day of the hearing. The transcript for the second day only recorded audio of matters put on behalf of the appellants and failed to capture things said by the Magistrate and Mr Sim on that day. Nonetheless, the Magistrate’s sentencing remarks on the third day of the hearing were captured in the transcript provided.
[8]The first Walters affidavit sworn 8 July 2021.
[9]Appellant’s Submissions (n 1).
[10]The Magistrates’ Court Transcript (n 7).
I have had regard to all the materials contained within the Joint Court Book.
Background to the appeal
The appellants are brothers. Together they reside on a rural property named Fineview, near Balmattum in Victoria. The appellants conduct a partnership, Maher Bros, with two other brothers, Thomas and Gerard Maher. Although these four brothers are involved in the Maher Bros partnership, only the two appellants have remained actively running the farming enterprise that Maher Bros conducts. Maher Bros is both a working farming enterprise and the repository for some jointly owned farming real estate. As mentioned in the Victorian Court of Appeal judgment of Maher & Maher v Maher[11] (which concerned the appellants’ challenge to their father’s will), pursuant to a written agreement in 1967 it was provided that the partners of Maher Bros, in equal shares, were Thomas, Gerard, David and Anthony and that the net profits of the partnership business were to be distributed between them in equal shares.
[11][2019] VSCA 161.
The appellants grew up on the farm at Fineview, and have seven other siblings in addition to Thomas and Gerard. Their father died in 1975 and their mother died in 2014. The appellants have farmed both on behalf of the Maher Bros partnership and to assist in the management of the farming estate owned by their parents. The death of their parents and ensuing testamentary arrangements have created complications for the ongoing farming operation. In recent years, litigation has been brought by the appellants in the probate division of this Court, alleging inadequate testamentary provision was made for them by their parents in light of their contribution to the running of the farms attached to the estate of each of their parents.
For the purposes of the Prosecution Summary of Facts in the current proceeding, it was accepted that the appellants each had charge of livestock (sheep and cattle) on specified areas within approximately 2,345 hectares of paddocks forming part of the Fineview farm and associated land.
Throughout 2018 and 2019, the Department received complaints about the welfare of the animals managed by the appellants. Departmental officers and district veterinarians visited the property on numerous occasions throughout 2018 and 2019 to investigate. On many of those visits, they located animals in very poor condition.[12] Some animals were in such a poor state that they required euthanasia. At various times during these visits the Department considered that the appellants had failed to provide adequate food and water to their livestock, and/or had failed to supervise and provide adequate husbandry to others.[13] The charges mainly relate to cattle, but one of the charges subsumes a sheep that was euthanised due to its emaciated condition.[14] Although the pasture in question was suffering drought conditions or very low rainfall during the period in question, this did not relieve the appellants of the obligation to adequately provide for their livestock.
[12]For example, because of emaciation or having high levels of intestinal worms.
[13]I note, however, that the only animal cruelty charges that proceeded were those relating to the failure to provide adequate food and water. All charges that related to the failure to supervise or provide adequate husbandry were withdrawn.
[14]Sheep 2, inspected on 2 May 2018 and found in lateral recumbency, subsumed in Charge 6 relating to David Maher.
On a number of occasions the Department served notices on the appellants requiring them to take measures to rectify the underfeeding of specific livestock, and on one occasion they were required to remediate a dam that had become boggy. It was not specifically alleged in the Prosecution Summary of Facts that the appellants failed to respond to those notices. However, the percentage of malnourished animals observed by the Department appeared to significantly increase over a period between a detailed inspection of the herd that took place on 2 and 3 May 2018, and a further inspection that took place on 9 and 10 August 2018. This led to a notice being served by the Department on the appellants on 17 August 2018 for compulsory seizure of livestock under the PCA Act because of the poor condition of the animals.
Following that notice, Maher Bros and the Department reached an arrangement that an Advisory Panel would be established, with approval of the Department, to ensure the animals were adequately cared for. On that basis, the stock seizure notice was withdrawn.
On 26 August 2018, each of the four partners of Maher Bros signed a written agreement to establish the Advisory Panel. Also that day, a management plan was signed by each of them and by Dr Andrew Walker, who was to chair the Advisory Panel and assist with the development of the plan aimed at remedying the malnourishment issues uncovered hitherto. The arrangement with the Department included a signed acknowledgment and agreement by the partnership confirming the right of the Department to access all properties and records of Maher Bros with full cooperation granted at all times, and that all communications and meetings would be conducted respectfully in a non-violent and non-threatening way. It is likely that the context for the latter aspect of the agreement was the incident on 25 July 2018 where David Maher threatened one of the attending vets, Dr Manning, (an inspector under the PCA Act) whilst complaining about the frequency of Department attendances on the land. This incident gave rise to a single charge against David Maher of threatening an inspector.
As part of the management plan, daily reports were provided to the Department regarding the management of the livestock. Those reports were provided between 27 August and 8 October 2018.
Subsequently, in April and May 2019, further complaints were received by the Department. During follow up inspections, instances of inadequate provision for livestock were found to have recurred. In July 2019, charges were laid against each of the appellants relating to animal cruelty and aggravated animal cruelty, and against David Maher only in respect of his threat against the inspector Dr Manning. In October 2019 further charges were laid for the 2019 offences, which resulted in additional convictions against David Maher.
The threshold issue: Does the s 12 order form part of the sentence?
Appellants’ position on the threshold issue
The appellants note that Krumins raised an argument before this Court that was ultimately not persisted with below;[15] namely, that the control orders under s 12 of the PCA Act did not form part of the sentences imposed by his Honour for the specific PCA Act offences. In raising this matter below, Krumins had initially indicated that a separate application under s 12 would be made, and separate witnesses would be called in support thereof. As indicated earlier, the learned Magistrate indicated that he proposed to treat the s 12 application as part of the same sentencing exercise.[16]
[15]The initial position of the prosecution below was that an order made under s 12 of the PCA Act represented a discrete application, to be made on the basis of discrete evidence. On the other hand, the appellants argued that such an order formed part of the same sentencing process.
[16] His Honour indicated he did not want to ‘open up the Pandora’s Box’, or a ‘can of worms’: see Magistrates’ Court Transcript (n 7) 91 [9], 90 [30]–[31].
The appellants say that Krumins did not maintain opposition to the s 12 application being dealt with as part of the sentence following the Magistrate’s indication that it should be approached in that way.[17] Furthermore, Krumins did not appeal against his Honour’s determination that the s 12 order was part of the sentence imposed upon each appellant. Therefore, Krumins should not be permitted to use the appellants’ appeal on questions of law as a forum for re-litigating an issue that was not persisted with below and was not the subject of an appeal by Krumins.
[17] As was plain from the Magistrate’s Court Transcript (n 7) 86, 93, 162 [1]–[19].
The appellants submit that the Magistrate’s express decision to treat each of the s 12 orders as part of the sentence[18] was the correct approach.[19] Therefore, ordinary sentencing principles were applicable to the imposition of any order under s 12 of the PCA Act.
[18] Ibid. It should be noted that the formalised court orders made by his Honour are reflective of this approach.
[19] Citing PCA Act s 12(2) and Arie Frieberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Law Book Co, 3rd ed, 2014) 93–4 [1.275].
Krumins’ position on the threshold issue
According to Krumins, the threshold question of whether the s 12 order forms part of the sentence is relevant to Grounds One and Two of this appeal, because Krumins maintains that the Magistrate’s references to the OHS Act, and to material not before the court regarding past and present farm management and future risk, stemmed from his Honour’s consideration of a s 12 order, rather than the specific penalty provisions for each offence. Krumins submits that the threshold issue is also relevant to Grounds Three and Four regarding the severity of the sentence, because if the s 12 orders do not form part of the sentence, then the appellants are not alleging manifest excess on the basis of the fines alone.
Krumins submits that each s 12 order was an ‘ancillary’ court order, made in addition to the sentences (fines) imposed. While the prosecution below applied for a s 12 order against each appellant, the Magistrate could have made such an order regardless. Nothing in the language of s 12 (or its surrounding provisions) suggests that the jurisdiction to make such an order is only enlivened upon application by the prosecution. Therefore, it is evident from the language and purpose of the PCA Act that parliament did not intend for a s 12 order to form part of the relevant sentence for an offender under that Act, since s 12 orders can be made without the prosecution seeking them, and/or in circumstances where no other penalty is being imposed.[20] Further, ss 12AA to 12AF similarly speak of an order under s 12, not a sentence.
[20]Transcript of Proceedings (Maher v Krumins, S ECI 2021 02397, Jane Dixon J, 23 March 2022) (‘Supreme Court Transcript’) 46, [5]–[7].
Consequently, since the s 12 orders were not part of the sentence, the requirement for the Magistrate to be satisfied to the criminal standard of proof of matters adverse to the appellants did not arise, and it was not apt for the appellants to complain that the Magistrate ‘inverted the burden of proof’.
Krumins submits that the Magistrate did not impose the s 12 orders instead of any other penalty and he therefore imposed them in addition to the fines imposed.
In exercising a discretion whether to make a s 12 order, and in determining the type and duration of such an order, Krumins submits that the court must consider not only the subject offending, and any relevant criminal history, but all other matters that are materially relevant to the exercise of discretion.[21]
[21]Respondent’s written submissions dated 8 December 2021, 10 [40] (‘Respondent’s Submissions’).
Applicable Law
Section 1 of the PCA Act sets out the purposes of the statute as follows:
1 Purpose
The purpose of this Act is to―
(a) prevent cruelty to animals; and
(b) to encourage the considerate treatment of animals; and
(c)to improve the level of community awareness about the prevention of cruelty to animals.
Section 9(1) of the PCA Act relevantly provides:
9 Cruelty
(1) A person who―
[…]
(f)is the owner or the person in charge of an animal which is confined or otherwise unable to provide for itself and fails to provide the animal with proper and sufficient food, drink or shelter; or
[…]
commits an act of cruelty upon that animal and is guilty of an offence and is liable to a penalty of not more than, in the case of a natural person, 250 penalty units or imprisonment for 12 months or, in the case of a body corporate, 600 penalty units.
Section 10 relevantly provides:
10 Aggravated Cruelty
(1)A person who commits an act or acts of cruelty on any animal, which result in the death or serious disablement of the animal, commits aggravated cruelty on that animal and is guilty of an offence and is liable to a penalty of not more than, in the case of a natural person, 500 penalty units or imprisonment for 2 years or, in the case of a body corporate, 1200 penalty units.
[…]
Section 12 relevantly provides:
12Court orders for disqualification from or conditions on ownership etc. of animal
(1)If, in a proceeding in a court, a person is convicted, found guilty or found not guilty because of mental impairment of an offence under this Act, the court, if it thinks fit, may by order―
(a)disqualify the person from owning or being in charge of an animal of a kind or class specified in the order for―
(i)if subparagraph (ii) does not apply to the person, up to 10 years; or
(ii)if the person is or has previously been subject to an order under this section or an interstate control order, permanently or for any period (including a period of more than 10 years); or
(b)apply conditions that the person must comply with, whenever the person owns or is in charge of an animal of a kind or class specified in the order, permanently or for any period (including a period of more than 10 years).
(2)An order under subsection (1) may be made in addition to or instead of any other penalty
[…]
Section 21A provides:
21 Court may authorise monitoring of person when making control order
(1)The court, in making a control order, may authorise any POCTA inspector to monitor compliance with the order by any person subject to the order.
(2)The court, when deciding whether to authorise monitoring of compliance with a control order under subsection (1) may have regard to the following―
(a) the nature of the offence on which the order is based;
(b)whether the person is or has been the subject of another control order or an interstate control order;
(c)whether the person has previously been convicted, found guilty or found not guilty because of mental impairment of any other offence under this Act;
(d) any other factor the court considers relevant.
(3)If the court authorises the monitoring of compliance under subsection (1), the court must specify in the control order―
(a)the period for which the monitoring may be carried out, which may be for the length of the control order; and
(b) any other conditions of the monitoring.
Consideration of the threshold question
As has been mentioned, in addition to imposing substantial fines on each of the appellants, the Magistrate imposed control orders disqualifying each appellant from being in charge of any farm animal for ten years under s 12 of the PCA Act. For the following reasons, I have reached the conclusion that the Magistrate correctly approached his power to make a control order under s 12 as being part of the sentence to be imposed upon each appellant.
In my view, it is not to the point that the Magistrate could have made a control order without the prosecution applying for one. The kind of discretionary sentencing power reposed under s 12 is not an uncommon sentencing power.[22] The Sentencing Act does not define ‘sentence’. Such definition is, however, provided in s 3 of the CPA which sets out a non-exhaustive list of orders that fall within the definition of the word ‘sentence’, including orders under Part 3, 3A, 3B, 3BA, 3C, 3D, 4 or 5 of the Sentencing Act.
[22]For example, courts are vested with a general discretion under s 89A of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) to suspend or cancel a drivers licence or permit and disqualify the offender from driving if found guilty or convicted of any offence (emphasis added). This power is contained in Part 4 of the Sentencing Act.
While neither the CPA, nor the Sentencing Act, nor indeed the PCA Act expressly confirms that a control order under s 12 of the PCA Act constitutes a ‘sentence’, the types of orders captured in the non-exhaustive definition of ‘sentence’ in s 3 of the CPA are instructive. It includes a driver disqualification order under Part 4 Division 3 of the Sentencing Act, orders under ss 11 or 11B of the Sex Offenders Registration Act 2004 (Vic), and even orders for impoundment or forfeiture of motor vehicles under ss 84S and 84T of the Road Safety Act1986 (Vic).
In the absence of express statutory explication, the question whether the s 12 order forms part of the sentence is to be derived from the plain wording of the PCA Act, including the provisions set out earlier in this ruling, although the provisions of the CPA and the Sentencing Act that I have just mentioned help inform the approach to interpretation.[23]
[23]See Freiberg (n 19) 92–4 [1.270]–[1.275]. Note also s 35(a) of the Interpretation of Legislation Act 1984 (Vic), which states that ‘a construction that would promote the purpose or object underlying the Act or subordinate instrument [...] shall be preferred to a construction that would not promote that purpose or object’.
The words used in s 12 support the construction that a s 12 order is a sentencing order. The power to make the control order is only enlivened in circumstances where a person is prosecuted for an offence under the PCA Act, regardless of whether such an order is made on application by the prosecution or not.[24]
[24]The order can only be made ‘[i]f, in a proceeding in a court, a person is convicted, found guilty or found not guilty because of mental impairment of an offence under this Act’: see PCA Act s 12(1).
A penalty imposed for an offence under the PCA Act, whether by way of a bond, fine, control order or imprisonment, is a sentencing order. Whether any of those penalties are available to the sentencing court is dependent on the specific offence provisions and the application of the Sentencing Act. For example, a sentence of imprisonment is not provided for in relation to the offence of threatening an inspector, but imprisonment for 12 months or two years are the maximum custodial penalties available for individuals under ss 9 and 10 respectively. Krumins’ argument that the s 12 order was an ‘ancillary’ order, and not part of the sentence, is not persuasive. All sentencing involves an order of the court. When one looks at the inclusive and non-exhaustive definition of ‘sentence’ in the CPA referred to earlier, that definition refers to a range of orders contained in different parts of the Sentencing Act (and beyond) including under Part 3 (custodial and non-custodial orders and fines).
Pursuant to s 12 of the PCA Act, the court is given a discretion not to impose a penalty as provided for in the specific offence provision and/or under the Sentencing Act, but instead to penalise the offender by imposing a control order. Alternatively, the court can exercise its discretion to impose a control order in addition to imposing a specific penalty for the offence. Another option available to the court is to decline to impose a control order at all. This interpretation flows from the words ‘in addition to or instead of any other penalty’.[25]
[25]PCA Act s 12(1) (emphasis added).
The words ‘any other penalty’ can only sensibly be interpreted as referring to a penalty that is otherwise available for the offence under the PCA Act which has given rise to the conviction or finding of guilt. Therefore, parliament is providing for control orders as being an additional available penalty, or an alternative available penalty. In effect, s 12 provides an extra or alternative sentencing option that can be applied in response to an offence.
In exercising the power to make a control order disqualifying a person from owning or being in charge of an animal of a kind or class specified in the order, the maximum length of any disqualification is partly conditioned on whether the person has previously been subject to a control order or is subject to an interstate control order.[26] Alternatively, under s 12(1)(b), rather than imposing disqualification the court can apply conditions that the person must comply with whenever the person owns or is in charge of an animal of a kind or class specified in the order, permanently or for any period including a period in excess of 10 years.
[26]If the person is, or has previously been subject to an order under s 12, or an interstate order, the control order can be made permanently or for any period including a period in excess of 10 years, whereas if those stipulations do not apply the maximum period of disqualification is 10 years.
The potentially substantial impact on the offender of this sentencing power is such that it could be expected that if a Magistrate imposed a control order instead of any other penalty under the PCA Act, the offender would be entitled to appeal the sentence to the County Court, in the same way that the offender could appeal the imposition of a fine or sentence of imprisonment. I reject the submission made on behalf of Krumins, when the question of appeal rights was raised, that no such appeal would lie for a s 12 order in those circumstances.
This discretion reposed in the court when deciding whether it thinks fit to impose a control order, and if so, whether to impose an order under s 12(1)(a) or s 12(1)(b), imports a degree of flexibility in the sentencing exercise. This enables the tailoring of the sentence to respond to the nature of the offence and the gravity of the offending, along with other matters relevant to the exercise of discretion under s 12, such as (for example) any prior convictions.
I therefore conclude that the learned Magistrate was correct to treat the imposition of the control orders as sentences. His Honour was aware that in imposing a s 12 control order he was penalising the appellants along with the convictions and fines imposed against them in respect of each offence.[27] Furthermore, I agree with the appellants that it is not appropriate for Krumins to argue for a different construction in light of her failure to bring any appeal against the learned Magistrate’s determination that the control order was part of the sentence to be imposed on each appellant. Finally, and for completeness, since (as I have found) any s 12 order which is made will form part of the relevant sentence, I observe that it is for the prosecution to put their case in favour of a s 12 order before the court, for the decisionmaker to have regard to, and for the accused to respond to (as appropriate). In other words, I do not regard it as desirable for the prosecution to effectively ‘divide up’ or otherwise ‘hive off’ the evidence which it wishes to call on the plea hearing as concerns i) the imposition of penalties under ss 9 and 10 of the PCA Act (or, for that matter, any other offence provision under that Act), and then separately ii) a s 12 order. That is not consonant with conventional sentencing practice.
[27]Magistrates’ Court Transcript (n 7) 161–2.
The threshold point having been determined, I must now consider the specific grounds of error relied on by the appellants, in the form of Grounds One, Two, Three and Four.
Ground One
Submissions
Appellants’ submissions
The appellants submit that the Magistrate wrongly held that the PCA Act provisions for which they stood to be sentenced were analogous to offences under the OHS Act, and therefore subject to similar sentencing considerations and ranges. The appellants point out that his Honour remarked in sentencing that the only distinction between the two Acts is that the OHS Act deals with humans and the PCA Act deals with animals. According to the appellants, this shows that his Honour misconstrued the purpose of the PCA Act and grafted the philosophy underpinning the OHS Act onto his consideration of the PCA Act.
The appellants emphasise a number of differences between the two Acts[28] and submit that reliance on the OHS Act was apt to mislead the Magistrate, causing his Honour to incorrectly conflate the notion of ‘risk’ under the OHS Act with the purposes of the PCA Act. They submit that, under the OHS Act, ‘risk’ has a particular legal meaning and refers to a situation involving exposure to danger, and that ‘risk’ is synonymous with ‘hazard’ rather than an assessment of any future probability of offending.[29]
[28]Including the fact that the PCA Act does not contain provisions equivalent to ss 1, 2, 4 and 136 of the OHS Act.
[29]Supreme Court Transcript (n 20) 7 [4]–[8].
The appellants also argue that by grafting the philosophy of the OHS Act (including the aforementioned notion of ‘risk’) onto the PCA Act, his Honour distorted the sentencing exercise.[30] It was submitted by way of example that, in certain matters under the OHS Act, material may be put before the court to demonstrate how a risk or hazard will be mitigated.[31] By drawing analogies between these two Acts, his Honour imposed an expectation that material that might be proffered in response to a prosecution under the OHS Act should have been provided by the appellants in the current case to demonstrate how the appellants would address risk.[32] While the sentencing task necessarily involves a consideration of the likelihood of recidivism,[33] by adopting the philosophy of the OHS Act, his Honour created an expectation of a ‘positive obligation’ to provide material resting on the appellants. Counsel for the appellants submits that this ‘infected his Honour‘s approach to sentencing’,[34] and that there is a relationship between Grounds One and Two, whereby this belief in a ‘positive obligation’ led to an expectation that the appellants were obliged to provide evidence as to how they would address risk (and then sentencing on the basis that no such evidence had been provided).
[30]Ibid 6 [1]–[2].
[31]While specific examples with reference to the legislation were not provided in the learned Magistrate’s sentencing remarks, counsel for the appellants referred, by way of illustration, to the positive duties imposed by ss 20–23 of the OHS Act.
[32]Supreme Court Transcript (n 20) 9 [28]–[31], 10 [9]–[13].
[33]Ibid 11 [28]–[31], 12 [1]–[3].
[34]Ibid 6 [1]–[2].
Respondent’s submissions
Krumins submits that the appellants mischaracterised his Honour’s reasons, and that the assertion by the appellants that his Honour applied sentencing considerations and ranges relevant to the OHS Act for the PCA Act charges is not supported by the sentencing remarks; his Honour simply drew parallels between the two Acts,[35] whilst still having proper regard to the separate objects and purpose of the PCA Act. His Honour’s references to the OHS Act, which were primarily in relation to the control orders, drew comparisons with the OHS Act and then addressed the question of future risk to animals and the prevention of cruelty to animals, as contemplated by s 1(a) of the PCA Act.
[35]Respondent’s Submissions (n 21) 5–6 [19].
While conceding that it may have been preferable for his Honour to raise his approach regarding the OHS Act with the parties before applying it to the sentencing of the appellants,[36] counsel for Krumins submits that his Honour was not drawing conclusions from the OHS Act, but rather merely raising comparisons. Accepting there are differences between the OHS Act and the PCA Act, counsel for Krumins submits that the court was entitled to have regard to the OHS Act for comparative guidance – particularly in the absence of higher court authority – when dealing with s 12 of the PCA Act.[37]
[36]Supreme Court Transcript (n 20) 38 [9]–[20].
[37]Ibid 35 [22]–[31], 36 [1]–[30], 39.
Consideration of Ground One
Principles
It should be noted that there is nothing erroneous per se in the exercise of drawing comparisons between two different statutes, and I approach any consideration of the learned Magistrate’s reasons on that basis.
For example, judicial decisions on statutory terms can give guidance as to the meaning of the same terms in different statutes, particularly where the two statutes are not materially different in context, history and purpose.[38]
[38]Western Australia v Ward (2002) 213 CLR 1, 216 [480] (McHugh J).
In an examination of enforcement actions available under the PCA Act (relevant to emergency powers to deal with animals), this Court has previously made reference to similar enforcement powers contained in other Victorian statutes, including the OHS Act.[39]
[39]Healey v Royal Society for Prevention of Cruelty to Animals Victoria [2018] VSC 190, [47] (Quigley J).
However, the complaint made under Ground One is that the Magistrate adopted and applied concepts and ideas drawn from the OHS Act in an impermissible way.
Application
Ground One is particularised as follows:
The Magistrate erred in law by finding that the statutory provisions for which the Appellants fell to be sentenced were analogous to offences contrary to the Occupational Health and Safety Act 2004 and therefore subject to similar sentencing considerations and ranges
The Magistrate’s sentence misconstrued the purposes and objects of the Prevention of Cruelty to Animals Act 1986 by holding the same philosophy was found in the Occupational Health and Safety Act 2004 where:
(a) no party submitted the Magistrate ought sentence on such a basis;
(b)the Prevention of Cruelty to Animals Act 1986 (POCA Act) did not contain provisions equivalent to ss 1, 2, 4 or 136 of the Occupational Health and Safety Act 1986; and
(c) the Magistrate held that the only difference between the two statutes was that the Occupational Health and Safety Act (OHS Act) applied only to humans.[40]
[40]Appellant’s Submissions (n 1) 3 [18]–[19].
It is clear from the appellants’ submissions that the phrase ‘the statutory provisions for which the Appellants fell to be sentenced’ is not limited to the offence provisions of ss 9 and 10 of the PCA Act, and is a reference to the purposes of the PCA Act, the offence provisions and the statute as a whole.
In oral submissions before this Court, counsel for the appellants developed the argument that the learned Magistrate considered the sentencing approach for offences under the PCA Act and OHS Act to be the same – the only relevant distinction being that the former Act dealt with animals, whilst the latter Act dealt with humans – and that this approach infected his Honour’s approach in sentencing, by introducing an erroneous expectation that certain material would be forthcoming (such as would be supplied in an OHS Act proceeding), and then making an adverse finding against the appellants on the basis that such material was not placed before his Honour.[41]
[41]Supreme Court Transcript (n 20) 6, 9–10.
It is helpful to set out, in full, the relevant portion of the Magistrate’s sentencing remarks dealing with this issue.
If I quote the objects of this Act, the Prevention of Cruelty to Animals Act, ‘To minimise risk of injury and suffering to animals.’ As per the objects of the Act, the same underpinning and philosophy relevant to injury and suffering is also found in objects relevant to the Occupational Health and Safety Act. The difference only between these objects and the acts is that the Occupational Health and Safety Act applies to human animals, as the focus of minimising such suffering to humans by way of injury and death. Therefore in the case before a court relevant to prevention of cruelty to animals the issue often is what is the risk of death and injury in the past, present and future.
This plea was conducted very professionally and handled exemplary by Mr McDonald, he did all that he could on the materials that he was supplied with to address the questions of the court after being required to, however it appeared to me from him to get easily foreseeable material from both accused directly out of their personal financial circumstances and various business decisions relevant to this case, in order for a court to be able to make a proper and fair assessment of the sentencing principles for each of the accused, it was not easily forthcoming.
It was surprising that these materials were not readily provided by the accused to their instructing solicitors and advocates in a way which would give an appearance of transparency and immediate openness about their respective personal positions of each of them before the court. In an occupational health and safety prosecution the court in dealing with both past and future risk to individuals in the business, as well in a prevention to cruelty animal case in my view, particularly when there is commercial activity involved as there is in both this case and occupational health and safety risks relevant to workplaces, and further knowing s 12 ought to be sought.
The court would have expected a substantial amount of material on evidence of past expenditures and behaviours, and the concerns relevant to those, focusing on the training of any staff or persons operating on that farm or themselves in current animal husbandry and every commitment – and any commitment to future training or education, or evidence of third-party expectations or third-party assistance that they could have access to. I have particular regard to the lack of the material relevant to any veterinarian report from the relevant accused relevant to the current stock, or advice for future husbandry or future plans for breeding, quality stock control and management.[42]
[42]Magistrates’ Court Transcript (n 7) 158–9.
To make a broad comparison between some aspect of two statutes – such as a particular type of enforcement provision – would not, without more, be impermissible, keeping in mind the general principle outlined earlier. However, I consider that his Honour went well beyond this approach in his references to the OHS Act.
Crucially, in drawing these comparisons between the two Acts, the Magistrate fundamentally misstated the object and purpose of the PCA Act. Upon my reading, neither party clearly identified this basic error in their written or oral submissions before me, although I understand the thrust of the appellants’ written submissions to essentially capture this error in approach.
To repeat the relevant quotation from the Magistrate’s sentencing remarks:
If I quote the objects of this Act, the Prevention of Cruelty to Animals Act, ‘To minimise risk of injury and suffering to animals’.
With respect to his Honour, that is not correct. There is nothing in the text of the PCA Act which supports his Honour’s construction. As I have already observed, s 1 of the PCA Act clearly sets out the purposes of the statute as follows:
The purpose of this Act is to―
(a)prevent cruelty to animals; and
(b)to encourage the considerate treatment of animals; and
(c)to improve the level of community awareness about the prevention of cruelty to animals.
In contrast, s 2 of the OHS Act sets out the purposes of that statute as follows:[43]
[43](Emphasis added).
The objects of this Act are―
(a)to secure the health, safety and welfare of employees and other persons at work; and
(b)to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and
(c)to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons; and
(d)to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards―
having regard to the principles of health and safety protection set out in section 4.
Section 4 of the OHS Act sets out the principles of health and safety protection as follows:
(1)The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.
(2)Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.
(3)Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.
(4)Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.
(5)Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues.
While his Honour refers to ‘minimising risk’, rather than ‘eliminating’ risk’ or ‘ensuring’ members of the public are not placed at risk, the phrase ‘minimising risk’ captures the general legislative purpose of the OHS Act aimed at reducing, in various ways, risks to the health, safety and welfare of working people. After misquoting the purposes of the PCA Act, his Honour went on to say:
As per the objects of the Act, the same underpinning and philosophy relevant to injury and suffering is also found in objects relevant to the Occupational Health and Safety Act. The difference only between these objects and the acts is that the Occupational Health and Safety Act applies to human animals, as the focus of minimising such suffering to humans by way of injury and death. Therefore in the case before a court relevant to prevention of cruelty to animals the issue often is what is the risk of death and injury in the past, present and future.[44]
[44]Magistrates’ Court Transcript (n 7) 158 [18]–[28] (emphasis added).
In my view, there is an important difference between prevention of cruelty to animals on the one hand, and the elimination or reduction of risks to health, safety and welfare of working persons under the OHS Act. This was echoed in the appellants’ submissions.
The OHS Act is a wide-ranging statute, which – as I have already noted – also introduces positive obligations (particularly under ss 20–23) with regard to risk mitigation. The OHS Act creates broad and substantial obligations for employers to identify risk within workplaces, and either eliminate those risks or reduce them as far as reasonably practicable.[45] The OHS Act creates certain risk-based offences,[46] which exist whether or not any harm is caused to a person. As stated in DPP v Vibro-Pile (Aust) Pty Ltd:
Axiomatically, proof of a breach of the [OHS Act] does not require proof that the breach caused actual harm to any person. The offences created by the Act (and by its 1985 predecessor) are risk-based, not outcome-based, offences. The breach consists in the employer’s failure to eliminate or reduce a risk to employee safety. The occurrence of death or injury is of evidentiary significance only. It is not an element of the offence.[47]
[45]See Deal v Father Pius Kodakkathanath (2016) 258 CLR 281; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (‘Kirk’). Kirk concerned s 15 of the Occupational Health and Safety Act 1983 (NSW) (‘OHS Act (NSW)’); whilst that provision differs in some respects from s 21 of the Victorian OHS Act, s 15(2) of the OHS Act (NSW) is largely the same as s 21(2) of the Victorian OHS Act. See as cited in DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676, 693 [52] (Maxwell P, Redlich and Whelan JJA).
[46]For example, under s 21.
[47](2016) 49 VR 676, 682 [3] (Maxwell P, Redlich and Whelan JJA) (emphasis added); see also Kirk (n 45) 553 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The fulfilment of an employer’s duties under s 21 requires a proactive approach, articulated[48] in Holmes v R E Spence & Co Pty Ltd[49] as an ‘active, imaginative and flexible approach to potential dangers’.[50] This is now reflected is s 4(3) of the OHS Act that ’[e]mployers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces’.[51] The OHS Act deals with both risks and hazards, as mentioned by the appellants,[52] the distinction between these terms under the OHS Act being that ‘hazard is understood to be the thing that can cause harm, whereas a risk is the possibility, high or low, that any hazard will actually cause somebody harm.’[53]
[48]With reference to s 21(1) of the previous Occupational Health and Safety Act 1985 (Vic).
[49](1992) 5 VIR 119.
[50] Ibid 123 (Harper J).
[51]See also Breen Creighton and Peter Rozen, Health and Safety Law in Victoria (Federation Press, 4th ed, 2017) 96, 131 [6.41].
[52] Supreme Court Transcript (n 20) 7 [4]–[8].
[53] Leigh Howard, ‘Victoria’s New General Environmental Duty: A Comparison with Its OHS Forefather’ (2020) 23 Local Government Law Journal 67, 72 (emphasis added); see also OHS Act s 20(2).
The PCA Act, by contrast, is a relatively narrow and confined statute. It is true, as accepted by the appellants, that both Acts have an ‘underlying protective purpose’.[54] Beyond those underlying beneficial or protective purposes, the Acts are fundamentally different statutory regimes. In carrying out the purpose of preventing cruelty to animals, the PCA Act establishes offences based on actual acts of cruelty under ss 9 and 10 of the Act. The PCA Act is not directed at eliminating or reducing potential hazards through provisions establishing ongoing obligations to guard against potential risks. In this context, the Magistrate’s ‘expectation’ of material of a similar kind to that which might be proffered in response to a prosecution under the OHS Act to address future risks bespeaks error, being an expectation erroneously derived from a perspective informed by the OHS Act, rather than the PCA Act.
[54]Supreme Court Transcript (n 20) 8 [3]–[7].
Having identified the error, the question then is whether the error is material to the outcome of the proceeding, in effect a vitiating error.[55] In my view, it is apparent that the misstatement of statutory purpose was material to the sentences imposed on the appellants, because of a misplaced view that the philosophy and approach to sentencing under the OHS Act should inform sentencing under the PCA Act. The Magistrate’s misstatement of the objectives of the PCA Act impermissibly collapsed the distinctions between the two statutes, and led his Honour to erroneously find that the offences for which the appellants were to be sentenced under the PCA Act involved similar sentencing considerations to offences under the OHS Act. This clearly had the potential to impact the sentence his Honour ultimately imposed.
[55]See, eg, Patrick Stevedoring Pty Ltd v Chasser (2011) 215 IR 411, 438 [81]–[83] (Osborn J) (‘Patrick Stevedoring’).
In considering the influence of the OHS Act comparisons in his Honour’s reasons, certain remarks made by his Honour show how the OHS Act approach shaped his Honour’s approach to the offences under the PCA Act. His Honour appears to have been particularly influenced by the commercial nature of farming animals for profit, the idea that the appellants’ undertaking should be viewed as both a business and a workplace, and the idea that some kind of risk avoidance framework needed to be established to his Honour’s satisfaction encompassing relevant expenditure on measures such as training and education of any staff or persons operating on that farm. To again quote from his Honour’s sentencing remarks:
In an occupational health and safety prosecution the court in dealing with both past and future risk to individuals in the business, as well in a prevention to cruelty animal case in my view, particularly when there is commercial activity involved as there is in both this case and occupational health and safety risks relevant to workplaces, and further knowing s 12 ought to be sought.
The court would have expected a substantial amount of material on evidence of past expenditures and behaviours, and the concerns relevant to those, focusing on the training of any staff or persons operating on that farm or themselves in current animal husbandry and every commitment – and any commitment to future training or education, or evidence of third-party expectations or third-party assistance that they could have access to. I have particular regard to the lack of the material relevant to any veterinarian report from the relevant accused relevant to the current stock, or advice for future husbandry or future plans for breeding, quality stock control and management.
[…]
They have [not][56] shown by many means at their various disposal, contrition, or remorseful behaviours from the outcomes to these animals. I’ve heard nothing from them, therefor[e] as a result, I’m far from persuaded on this plea that the accused are motivated to reform or take a different attitude to their commercial decision making relating to matters of expenditure and commitments in respect of best practice animal husbandry, which would lead them down a different path than that which they have shown in the past. Therefore, as part of the sentencing process, I’m required to consider not only the matters as specific deterrence and general deterrence, but under the Provision [sic] of Cruelties to Animals Act, the question of whether the court should entertain an ordering in the partnership business and their involvement with animal husbandry should now cease, or be suspended, or conditionally operative.[57]
[56]The sentence can only make sense if it is assumed that the word ‘not’ was said, although it does not appear in the transcript.
[57]Magistrates’ Court Transcript 159 [13]–[31], 160 [1]–[2], 161 [22]–[31], 162 [1]–[7].
In other words, in addition to his Honour’s misstatement of the PCA Act’s purpose, his Honour introduced reference to certain risk mitigation material that he expected to receive, as will be discussed further under Ground Two.
In summary, I am satisfied that the references to the OHS Act did distort the approach taken by the learned Magistrate to the PCA Act, and in particular to s 12 of that latter Act, so that his Honour erroneously held the offences for which the appellants were sentenced were subject to similar sentencing considerations to those that exist under the OHS Act.
Whilst the language of Ground One made reference to the misapplication of the OHS Act approach by using the words ‘similar sentencing considerations and ranges’, no particular argument was advanced by the appellants regarding the issue of ranges drawn from OHS Act prosecutions or an OHS Act-informed perspective.
Accordingly, I am not satisfied that his Honour wrongly took account of or applied sentencing ranges drawn from OHS Act prosecutions.
Nevertheless, I am satisfied that his Honour’s conflation of OHS Act considerations with the PCA Act charges he was dealing with distorted his approach in sentencing the appellants, and led him into error. It is sufficient to state here that I would therefore uphold Ground One for the reasons stated above.
I should add however, that it was problematic of his Honour to embark on this exercise of looking for or expecting to receive ‘a substantial amount of material’ of the kind referred to in the excerpts from his Honour’s sentencing remarks set out above, in circumstances where this OHS Act-inspired approach was not ventilated with the parties before, or during, the plea hearing. No particularly definitive argument was put to this Court based on procedural fairness, although counsel for the appellants submitted that such an approach ‘runs the risk’ of denying procedural fairness,[58] and submitted that this was such a case.[59] It is trite to observe that, if his Honour had discussed the conceptual approach he was minded to apply, informed by the OHS Act and jurisdiction, the parties would have had the opportunity to make submissions arguing against that approach. Counsel for the respondent conceded as much in oral argument before me.
[58]Supreme Court Transcript (n 20) 75 [30]–[31].
[59]Appellants’ Submissions (n 1) 3 [21].
In the absence of more detailed submissions by the parties, it is unnecessary for me to determine the point further, beyond observing the principle that a court may not sentence an offender based on a fact which it considers important, without first identifying the relevant question at hand and providing the parties with an opportunity to make submissions.[60]
Ground Two
Submissions
[60]See Judicial College of Victoria, Victorian Sentencing Manual (4th ed, 2022) 8 [2.2.2.2.1] and the cases cited there.
Appellants’ submissions
The appellants submitted that the Magistrate erred in law by taking into account facts adverse to the appellants where those facts were not admitted by the appellants and there was no or no sufficient evidence establishing those facts beyond reasonable doubt, and in effect treating an order disqualifying the appellants from owning or being in charge of an animal for up to 10 years as a sentence that was ‘an inevitable consequence’[61] unless the appellants adduced evidence satisfying the Magistrate that the sentence was not justified.
[61]Appellants’ Submissions (n 1) 5 [27].
The appellants submit that his Honour made adverse findings against the two appellants because of their failure to provide certain expected material, including the following findings:
(a) no evidence was adduced by the Appellants about the administration of fodder, veterinary care or chemical supplements to animals under the care but that such was often required in animal husbandry matters;
(b) no evidence was adduced by the Appellants about what past, present and future risk of death and injury there was to animals under their control;
(c) no evidence was adduced by the Appellants about substantial amount of evidence on past expenditure on and training of any staff or persons on the Appellants’ farm in current animal husbandry and any commitment to future training and education or evidence of third-party expectations or assistance that they could have access to;
(d) he had particular regard to a lack of material about the lack of [sic] veterinary care to stock, or advice for future husbandry, quality control and management;
(e) the absence of such material demonstrated the attitude of the Appellants; and
(f) the Appellants lacked remorse as they had been before the Court for similar offences committed in 2002 and 2003 and had failed to give evidence of remorse in this case.[62]
[62]Ibid 5 [28].
The adverse findings made by his Honour about the attitudes of the appellants and their absence of remorse were partly premised on the perceived failure by the appellants to provide certain expected material to his Honour. His Honour went beyond merely finding an absence of mitigation.
Furthermore, the appellants submitted that while positive submissions were not made in relation to remorse, it was an error for his Honour to make adverse findings against the appellants because of the absence of material of a kind that he stated he would expect to have received.[63]
[63]Supreme Court Transcript (n 20) 9 [28]–[31], 10 [1]–[8].
His Honour was not entitled to treat the absence of such material as an aggravating factor against the appellants in sentencing.[64] The appellants submit that this error derived from his Honour’s erroneous approach conflating aspects of the OHS Act with the PCA Act. His Honour adopted an expectation that certain material should be provided by the appellants so as to satisfy him of the absence of risk factors; the failure of the appellants to provide this material led his Honour to make adverse findings against the appellants. The appellants submitted that, in fact, there was no onus on the appellants to produce material of this kind to satisfy his Honour ‘s expectations, and to expect otherwise amounted to a reversal of the onus of proof.
[64]Ibid.
Respondent’s submissions
Krumins submits that if the s 12 order is not a part of the sentence, then regarding Ground Two, his Honour was not bound to apply the criminal standard of proof to the consideration of evidence for or against the making of the s 12 order. Therefore, his Honour was not bound to be persuaded beyond reasonable doubt before being satisfied of matters adverse to each appellant.
Even if the s 12 order formed part of the sentence, his Honour had a wide discretion to consider all relevant matters in deciding whether to make an order under s 12.
Despite the appellants’ argument that mitigation could be found in their compliance with directions given by the Department’s Advisory Panel, nevertheless:
(a) The second appellant, David Maher, was charged with further offending in 2019, after receiving assistance from the Advisory Panel; and
(b) both appellants had relevant criminal histories for animal cruelty offending 15 years earlier.
Krumins submits that the Magistrate was entitled to make the enquiries his Honour did seeking animal husbandry material in determining whether a s 12 order was needed; and, if such order was to be imposed, the type and duration of that order.
The absence of material in mitigation was relevant to the determination of what sentence to impose.[65] Ordinary sentencing principles allowed his Honour to take into account against each appellant a finding as to absence of remorse.[66] The absence of mitigation allowed for a full disqualification order under s 12 of the PCA Act, and did not require a lesser disposition such as a conditional order under s 12(b).
[65]Ibid 48 [22]–[29].
[66]Ibid 48 [15]–[21].
Consideration of Ground Two
As noted above, I have already found that the s 12 order formed part of the sentence, and I therefore approach consideration of this ground and the parties’ relevant submissions on that basis.
Principles
Conventional sentencing jurisprudence includes the following principles:
(a) If an offender wishes to be sentenced on a more favourable factual basis, the onus is on the offender to establish those matters on the balance of probabilities which may include providing relevant evidence to the court.[67]
[67]See variously, eg, R v King [1979] VR 399, 406 (Young CJ, Lush and Brooking JJ) (‘R v King’); Formosa v R (2012) 36 VR 679, 681 [8] (Whelan JA, Redlich and Osborn JJA agreeing); Winstead v The Queen [2009] NTCCA 12, [14]–[15] (Martin (BR) CJ, Southwood and Kelly JJ) (‘Winstead’); Ito v Beaty (Supreme Court of New South Wales, Ireland J, 23 July 1993) 26; R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA); R v Olbrich (1999) 199 CLR 270, 281 [25] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Filippou v The Queen (2015) 256 CLR 47, 69 [64] (French CJ, Bell, Keane and Nettle JJ).
(b) If the offender does not give or provide such evidence, they cannot then complain if the court declines to draw inferences or sentencing considerations in their favour.[68]
(c) Absent the provision of such evidence, the court should proceed by applying ‘normal sentencing principles’ and sentence the offender on the basis of the case made out by the prosecution in evidence, i.e. leniency is simply excluded.[69]
(d) But to treat the absence of mitigating factors as aggravating factors is erroneous, and a sentencing error – this will be so on a fair reading of the sentencing remarks, even if the sentencing judge does not expressly refer in those remarks to the absence of such factors as aggravating. It is then necessary to confirm whether that error was material to the sentence imposed; and if so, to re-exercise the sentencing discretion appropriately.[70]
[68]R v King (n 67). See also, eg, Pamtoonda v Commissioner of Police [2021] QDC 207, [66] (Fantin DCJ).
[69]Winstead (n 67).
[70]See variously, eg, R v Begg (Supreme Court of Victoria, Court of Appeal, Batt JA (Tadgell JA and Ashley AJA agreeing), 1 July 1997) 4, 5; Republic of Croatia v Snedden (2010) 241 CLR 461, 484 [79]–[81] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); R v Sudo Cavkic (No 2) (2009) 28 VR 341, 375 [134] (Vincent and Nettle JJA and Vickery AJA); Bahar v R (2011) 255 FLR 80, 93 [58] (McLure P, Martin CJ and Mazza J agreeing). Note also that it is impermissible to use an aggravating factor to cancel out a mitigating factor (such as a plea of guilty): see R v Hall (1994) 76 A Crim R 454, 457 (Phillips CJ).
As stated by the Victorian Court of Appeal in Smith v The Queen:
It is well understood that while remorse and associated concepts, such as insight, are treated by sentencing courts as factors that may tend to mitigate sentence, their absence does not constitute a feature of aggravation. Callaway JA put the proposition succinctly:
[W]hilst remorse is a circumstance of mitigation, its absence is not an aggravating factor.
We consider that by treating lack of remorse, insight or regard for the consequences of the offending as aggravating features, his Honour’s sentencing discretion has miscarried and Ground 3 has been made out.[71]
[71][2018] VSCA 258, [84]–[85] (citations omitted).
Application
As the appellants noted in their submissions – and as I discussed in my consideration of Ground One above – there appears to be a relationship between Grounds One and Two. The ‘positive obligation’ to provide material – stemming from a posited misconstruction of the PCA Act and conflation with the OHS Act – created an expectation that material of a particular character or category would be placed before the Magistrate. The appellants were then sentenced on the basis that this expectation had not been met, due to a lack of transparency or unsatisfactory attitude.
In my view, it is apparent from his Honour’s sentencing remarks that he was influenced by the way in which the plea was presented and the failure of the appellants to provide material of the kind he expected to receive.
Whilst his Honour properly took into account a range of relevant sentencing factors, his Honour went beyond those findings to make adverse findings against the appellants because:
There was no evidence tendered in the plea as to precisely how much fodder, veterinary care or chemical supplements were provided to these animals […] there was not any material provided during that relevant period as to precisely the administration of that fodder, care by veterinary service, or chemical intervention which is well required often regarding animal husbandry matters.[72]
[72]Magistrates’ Court Transcript (n 7) 158 [7]–[15].
It was precisely after making these remarks that his Honour made the imputed comparisons between the objects of the PCA Act and the objects of the OHS Act. His Honour went on to remark about the difficulty for counsel representing the appellants in getting ‘easily foreseeable material’ from his clients regarding ‘their personal financial circumstances and various business decisions relevant to this case’ and ‘in a way that would give an appearance of transparency and immediate openness about their respective personal positions before the court’.[73] It was at that point that his Honour again raised the comparison between what would be expected in an OHS Act prosecution and the animal cruelty prosecutions under the PCA Act before him, ‘particularly when there is commercial activity involved as there is in both this case and occupational health and safety risks relevant to workplaces, and further knowing [a] s 12 [order] ought to be sought’.[74] These remarks then led directly into another statement as to what the court would have expected with further adumbration of the kinds of material that his Honour considered should have been provided, leading his Honour to say:
I have particular regard to the lack of the material relevant to any veterinarian report from the relevant accused relevant to the current stock, or advice for future husbandry or future plans for breeding, quality stock control and management.[75]
[73]Ibid 159 [1]–[13].
[74]Ibid 159 [16]–[20].
[75]Ibid 159 [29]–[31], 160 [1]–[2] (emphasis added).
The nature of items described is suggestive of an OHS Act-influenced, proactive risk avoidance framework being overlaid onto his Honour’s conception of what is required for appropriate animal husbandry. The words ‘I have particular regard’ are illustrative of the significance that his Honour placed on the failure to provide that material.
It is evident that the failure to produce and tender the expected material did lead to adverse findings against the appellants, including findings in relation to their unsatisfactory attitudes, as is amply demonstrated by his Honour’s remark that:
This dearth of material goes to the accused response to this prosecution and their attitudes to their intention, particularly in David Maher’s case, as to his attitude towards the department and their interventions.[76]
[76]Ibid 160 [20]–[24].
It is also shown by his Honour’s comments leading on from a finding as to absence of remorse, where his Honour said:
They have [not][77] shown by many means at their various disposal, contrition, or remorseful behaviours from the outcomes to these animals. I’ve heard nothing from them, therefor[e] as a result, I’m far from persuaded on this plea that the accused are motivated to reform or take a different attitude to their commercial decision making relating to matters of expenditure and commitments in respect of best practice animal husbandry, which would lead them down a different path than that which they have shown in the past.’[78]
[77]The sentence can only make sense if it is assumed that the word ‘not’ was said, although it does not appear in the transcript.
[78]Magistrates’ Court Transcript (n 7) 161 [22]–[31].
In elaborating the category of documentary evidence that was expected, but not provided, his Honour went on to again list a range of animal husbandry items seemingly again incorporating an OHS Act-inspired, risk avoidance framework, before indicating that his Honour therefore was ‘left with little option in these circumstances’,[79] but that he would account for their needs for transition (a reference to the decision that the s 12 disqualification order would be suspended for a period to enable the appellants to transition from being in charge of farm animals).
[79]Ibid 162 [14]–[15].
I therefore accept the appellants’ submission that his Honour erred by treating the failure to produce certain expected material as a matter of aggravation when approaching sentencing, where as a matter of law there was no onus on the appellants to produce or tender those materials in response to prosecution. The appellants’ submission that the Magistrate impermissibly ‘reversed the onus of proof’ can also be accepted, inasmuch as his Honour did, in my view, erroneously proceed from the position that certain expected material should have been provided to him. This expectation was informed by the impugned OHS Act approach which I have discussed above – and his Honour in effect registered a black mark against the appellants in sentencing when they had, in his eyes, failed to proffer that kind of expected material, which the appellants were in fact not obliged to provide either as a matter of legal principle or under the PCA Act. It is, of course, trite to observe that there is no such onus upon an accused in criminal proceedings, and I refer to my statements of principle with respect to sentencing jurisprudence above. His Honour’s findings went beyond mere findings of absence of remorse; the Magistrate went on to incorporate a finding of an unsatisfactory attitude which – in combination with absence of remorse – meant that his Honour concluded he was left with little option other than the sentences that were ultimately imposed. It was clear that, in sentencing the two appellants, his Honour relied on the abovementioned matters to select the option that would entail ‘ordering in the partnership business and their involvement with animal husbandry should now cease’ rather than, for example, ordering that it should be suspended or conditionally operative.[80]
[80]Ibid 162 [1]–[19].
This is not to suggest that in sentencing the appellants, his Honour did not also pay regard to other considerations, including matters mentioned both before and after the abovementioned remarks, incorporating the objective seriousness of the offences; the plea of guilty; factors personal to each appellant; sentencing principles; and current sentencing practice.[81] But the error in his Honour’s approach to the absence of the expected materials materially influenced his decision as to what penalty to select in each case.[82]
[81]Although it should be noted that relevant data to inform current sentencing practice was of limited utility.
[82]Especially as regards the orders imposed under s 12 of the PCA Act.
For the reasons stated, Ground Two will be upheld.
Having found that specific error is made out in relation to Grounds One and Two, it is unnecessary for me to consider Grounds Three and Four.[83] Accordingly, I have decided to uphold this appeal.
[83]I note that this was the approach taken in Smith v The Queen [2018] VSCA 258.
I must now turn to the orders I am entitled to make under s 272(9) of the CPA as a consequence of upholding the appeal.
Conclusion and Orders
While the appellants sought that this Court deal with the matter itself – rather than remitting it to the Magistrates’ Court – if I were to allow their appeal, I am not persuaded that I should adopt that approach under s 272. Section 272(9) of the CPA states that after hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the case for rehearing to the Magistrates’ Court with or without any direction of law. I note that other Judges of this Court have decided to re-exercise the powers of the lower court upon upholding or otherwise allowing appeals under this section, on the basis of the material put before the court below. However, the scope for re-exercise of the entire sentencing discretion following determination of a discrete question of law under s 272 is questionable. I note the constraints discussed by the authorities in respect of a judicial review of this nature.[84] In the present case there was much emphasis by Mr McDonald on the decision by the learned Magistrate to impose a full disqualification order for the maximum available period applicable to the appellants’ cases under s 12(1)(a) of the Act. If I had been exercising my discretion on the basis of the material put before the court for the appeal hearing, I might not have found it appropriate to impose those same orders, as distinct from conditional orders. However, I am conscious of the limitations on my role in reviewing the Magistrate’s decisions from the perspective of legal error.
[84]See, eg, Osland v Secretary to the Department of Justice (2010) 241 CLR 320; Yehia v Williams [2022] VSC 197, [53]–[54] (Tsalamandris J). See also Patrick Stevedoring (n 55) [124]–[125] (Osborn J).
Further matters pointing away from this Court determining the matter for itself are that there are gaps in the transcript of the proceedings below, including in relation to the prosecution submissions on sentence. Mr Sim referred to this limitation if the matter were not remitted. Mr McDonald for the appellants acknowledged that re-sentencing could be a difficult exercise for this Court given the complexity of the case. I am also conscious of the passage of time since the hearing in the lower court. The appellants may wish to advance updated information about their current circumstances. Accordingly, even if I am empowered to exercise the sentencing discretion in lieu of the Magistrates’ Court, I am not persuaded that I should do so.
Instead, I consider the most appropriate course is to make the following orders and declarations pursuant to s 272(9) of the CPA:
(a) The sentences and associated orders of the Magistrate are set aside.
(b) The matter is remitted to the Magistrates’ Court for rehearing and determination by a different Magistrate according to law.
I will hear the parties as to costs.
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