Mitchell v Marshall - [2014] TASSC 43

[2014] TASSC 43

COURT: SUPREME COURT OF TASMANIA

CITATION: Mitchell v Marshall [2014] TASSC 43

PARTIES:  MITCHELL, Roderic Neil
  v
  MARSHALL, Sue

BUXTON, Colin Henry
WALTERS, Lee-Anne Maree

FILE NO:  LCA 863/2013
DELIVERED ON:  18 August 2014
DELIVERED AT:  Hobart
HEARING DATE/S:  10, 11 June 2014
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Animals – Various statutory provisions – Prevention of cruelty to animals – Offences – Causing unnecessary pain and cruelly ill-treating – Proof and evidence – Whether criminal standard of negligence applicable.

Animal Welfare Act 1993 (Tas), ss7, 8(1), 9.
R v Lavender (2005) 222 CLR 67, distinguished.
Fehlberg v Gallahar [1957] Tas SR 286; He Kaw Teh v R (1985) 157 CLR 523, discussed.
Aust Dig Animals [43]

REPRESENTATION:

Counsel:
             Applicant:  A G Melick SC, T G Moloney
             Respondents:  H Virs
Solicitors:
             Respondents:  Acting Director of Public Prosecutions

Judgment Number: [2014] TASSC 43
Number of paragraphs: 115

Serial No 43/2014
File No LCA 863/2013

RODERIC NEIL MITCHELL v SUE MARSHALL,
COLIN HENRY BUXTON, LEE-ANNE MAREE WALTERS

REASONS FOR JUDGMENT BLOW CJ

18 August 2014

This is a motion for the review of 140 convictions and a series of sentencing orders imposed by a magistrate, Mr R Marron, in a complicated animal cruelty case.
The applicant, Roderic Mitchell, owned and operated a dairy farm at Redpa, west of Smithton from about 2005 onwards. The charges all related to offences that he was said to have committed on that farm between 3 April 2007 and 15 June 2009. The respondents are three police officers who charged him with the offences in question. The hearing before the learned magistrate related to 191 charges on seven separate complaints. He found 184 of the charges proven, convicted the applicant on 140 of them, and imposed eight sentences of imprisonment. He also ordered the applicant to pay $111,227.25 in relation to the costs and expenses of seizing and keeping animals and providing veterinary treatment, and disqualified the applicant from having the custody of livestock, including cattle, for 10 years.
Most of the charges alleged contraventions of ss7, 8(1) and 9 of the Animal Welfare Act 1993.
Section 7 of that Act makes it an offence for a person who has the care or charge of an animal or group of animals to "use a method of management of the animal or group which is reasonably likely to result in unreasonable and unjustifiable pain or suffering to the animal or an animal in the group". I will refer to the s7 charges as mismanagement charges.
Section 8(1) makes it an offence for a person to "do any act, or omit to do any duty, which causes or is likely to cause unreasonable and unjustifiable pain or suffering to an animal". I will refer to the s8(1) charges as cruelty charges. Section 6 of the Animal Welfare Act imposes a duty that is relevant to those charges. It provides that, "A person who has the care or charge of an animal has a duty to take all reasonable measures to ensure the welfare of the animal".
Section 9 makes it an offence for a person to "do any act, or omit to do any duty, referred to in section 8 which results in the death or serious disablement of an animal". I will refer to the s9 charges as aggravated cruelty charges. Relevantly, s8(2) lists a number of acts and omissions that amount to offences contrary to s8(1). Section 8(2) is set out in full later in these reasons.

The charges and convictions

The details of the charges and convictions in relation to each complaint are as follows:

Complaint 56832/07

This complaint alleged offences during the period from 3 April 2007 to 10 May 2007. There were 10 charges. The learned magistrate found each of them proven. They comprised the following:
· Three mismanagement charges under s7 of the Animal Welfare Act.
· Three cruelty charges under s8(1) of the Animal Welfare Act.
· Three aggravated cruelty charges under s9 of the Animal Welfare Act.
· One charge of failing to comply with an instruction of an officer, contrary to s14(2) of the Animal Welfare Act.

Complaint 56833/07

This complaint alleged the commission of three offences on 27 April 2007. The learned magistrate found each of them proven. They comprised the following:
· One mismanagement charge under s7 of the Animal Welfare Act.
· One cruelty charge under s8(1) of the Animal Welfare Act.
· One aggravated cruelty charge under s9 of the Animal Welfare Act.

Complaint 80184/07

This complaint alleged the commission of a single offence over the period from 16 to 19 July 2007 – an offence of failing to comply with an officer's instructions contrary to s14(2) of the Animal Welfare Act. The learned magistrate found the charge proven.

Complaint 50070/08

This complaint related to the period from 1 August 2007 to 15 October 2007. It contained 138 charges. Three of those charges were not proceeded with. The learned magistrate found the other 135 charges proven. They comprised the following:
· 46 mismanagement charges under s7 of the Animal Welfare Act.
· 43 cruelty charges under s8(1) of the Animal Welfare Act.
· 40 aggravated cruelty charges under s9 of the Animal Welfare Act.
· 6 charges of contravening s14(2) of the Animal Welfare Act (failing to comply with an officer's instructions).
In this complaint five of the relevant s7 charges and one of the relevant s8(1) charges related to groups of cows, not single cows.

Complaint 50326/08

This complaint related to the period from 23 July 2007 to 14 September 2007. It contained 32 charges. Two of them were not proceeded with. The learned magistrate found the other 30 charges proven. They comprised the following:
· 12 charges of failing to ensure that the carcass of an animal was buried, burned or otherwise suitably disposed of within a reasonable time, contrary to s55 of the Animal Health Act 1995.
· 18 charges of contravening a direction given by an inspector under that Act without reasonable excuse, contrary to s76(1)(f) thereof.

Complaint 51087/08

This complaint alleged the commission of four offences on 21 September 2007. The learned magistrate found them all proven. They comprised the following:
· 2 charges of contravening s41 of the Animal Welfare Act – one alleging that the applicant obstructed a person in the performance of his duty, and one alleging that he hindered that person in the performance of his duty.
· A charge of intimidating a public officer contrary to s34B(2) of the Police Offences Act 1935.
· A charge of wilfully obstructing a police officer contrary to s34B(1)(a)(i) of the Police Offences Act.

Complaint 56629/09

This complaint alleged the commission of three offences on 15 June 2009. The learned magistrate found only one of the charges proven – a mismanagement charge under s7 of the Animal Welfare Act. The other two charges were dismissed.

Convictions

Forty-four of the charges under s8(1) of the Animal Welfare Act related to the same facts as charges that the learned magistrate found proven under s9 of that Act. In each case the applicant was charged with both a cruelty offence under s8(1) and an aggravated cruelty offence under s9. Having found the more serious charges under s9 proven, the learned magistrate dismissed the 44 corresponding charges under s8(1) in accordance with the principle discussed by Green CJ in Wood v Major (1992) 3 Tas R 249. He convicted the applicant on the 140 other charges that he found proven.
The applicant has sought the review of his convictions on six grounds, and has sought the review of his sentences on the ground that they were manifestly excessive. I will deal first with the grounds relating to the convictions.

Ground 1 – Strict liability

This ground asserts that the learned magistrate erred in finding that the offences created by ss7, 8(1) and 9 of the Animal Welfare Act were offences of strict liability.
The law recognises three categories of statutory offences – (1) those in which the prosecution must prove some state of mind, often referred to as mens rea, as an essential ingredient; (2) offences of "strict liability", as to which the prosecution need not prove any mental element unless the defendant adduces or elicits evidence suggesting an honest and reasonable mistaken belief in a state of facts that, if true, would render his or her acts or omissions innocent; and (3) offences of "absolute liability", as to which the prosecution does not ever need to prove any mental element, but need only prove the objective ingredients of the offences: He Kaw Teh v R (1985) 157 CLR 523.
In Proudman v Dayman (1941) 67 CLR 536, the High Court was concerned with a charge of permitting an unlicensed person to drive a motor vehicle on a road. It was argued that the prosecutor needed to prove either knowledge that the driver was unlicensed or indifference. It was held that proof of knowledge or indifference was unnecessary. Rich ACJ and Dixon J (as he then was) held, on the facts, that no question of an honest and reasonable mistaken belief arose in that case. Dixon J suggested that that would have been a defence. At 541 he said:
"The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt."
That passage is very often cited for the purpose of explaining the nature of an offence of strict liability.
In this case the learned magistrate held that the three offences created by ss7, 8(1) and 9 of the Animal Welfare Act were offences of strict liability, in respect of which the prosecution had no need to prove any particular state of mind unless the evidence raised an issue as to the existence of an honest and reasonable mistaken exculpatory belief. Ground 1 asserts that that conclusion was wrong.
Senior counsel for the applicant, Mr Melick SC, submitted to me that the mental element in each of the three offences in question was similar to that involved in the common law crime of manslaughter when it is committed by means of criminal negligence. He relied on the High Court's decision in R v Lavender (2005) 222 CLR 67 – a case that concerns the law of New South Wales. When a person is charged with manslaughter in a common law jurisdiction on the basis of criminal negligence, it is necessary for the Crown to prove beyond reasonable doubt, amongst other things, that the accused's act or omission amounted to criminal negligence and merits criminal punishment for the offence of manslaughter because (a) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and (b) it involved such a high risk that death or really serious bodily harm would follow as a result of the act or omission: Judicial Commission of New South Wales Bench Book, par[5-1010]. Mr Melick submitted that the same degree of negligence needed to be established in relation to charges under ss7, 8(1) and 9 of the Animal Welfare Act.
It was held in Lavender that, in a common law manslaughter prosecution based on criminal negligence, the Crown does not ever bear an additional burden of proving that the accused did not hold an honest and reasonable mistaken belief: Gleeson CJ, McHugh, Gummow and Hayne JJ at [57] – [60]; Kirby J at [83]; Callinan J at [140] – [144]; Heydon J at [148]. It appears from those judgments that in such a case any evidence of a mistaken belief is relevant to the assessment of the degree of negligence – that is, to the question whether the negligence of the accused was so wicked as to merit criminal punishment. On that basis, Mr Melick argued that the offences in question in this case were not "strict liability" offences in respect of which evidence suggesting an honest and reasonable mistaken belief consistent with innocence could result in the Crown bearing an onus to disprove any such belief.
Counsel for the respondent made submissions to the effect that there was nothing in the Animal Welfare Act that warranted an interpretation whereby the Crown would have to prove the same degree of wickedness as must be proved in a prosecution for manslaughter based on criminal negligence.
The sections creating the three offences read as follows:
"7   Management of animals
A person who has the care or charge of an animal or group of animals must not use a method of management of the animal or group which is reasonably likely to result in unreasonable and unjustifiable pain or suffering to the animal or an animal in the group.
Penalty:
In the case of —
(a)   a body corporate, a fine not exceeding 500 penalty units; or
(b)   a natural person, a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 6 months, or both.
8    Cruelty to animals
(1)   A person must not do any act, or omit to do any duty, which causes or is likely to cause unreasonable and unjustifiable pain or suffering to an animal.
Penalty:
In the case of —
(a)   a body corporate, a fine not exceeding 500 penalty units; or
(b)   a natural person, a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 12 months, or both.
(2)   Without limiting the generality of subsection (1), a person is guilty of an offence under that subsection if the person —
(a)   wounds, mutilates, tortures, overrides, overdrives, overworks, abuses, beats, torments or terrifies an animal; or
(b)   overloads or overcrowds an animal; or
(c)   drives, conveys, carries or packs an animal in a manner or position or in circumstances that subjects or subject it to unreasonable and unjustifiable pain or suffering; or
(d)   works, rides, drives or uses an animal when it is unfit for the purpose; or
(e)   has possession or custody of an animal that is confined, constrained or otherwise unable to provide for itself and fails to provide the animal with appropriate and sufficient food, drink, shelter or exercise; or
(f)    abandons an animal of a species usually kept in a state of confinement or for domestic purposes; or
(g)   has possession or custody of a sick or injured animal and fails to provide veterinary or other appropriate treatment for the animal; or
(h)   administers to or otherwise uses in respect of an animal an injurious drug or a toxic or noxious substance except for —
(i)medical curative purposes; or
(ii)scientific research purposes; or
(iii)normal management procedures; or
(iv)euthanasia; or
(v)the purposes of controlling a List A disease as defined in the Animal Health Act 1995; or
(vi)the purposes of controlling a pest animal in accordance with the pest register; or
(i)    in the course of any sport or public performance or in the training for any sport or public performance, applies or exposes an electronic device to an animal; or
(j)    uses a spur, or other like appliance, with sharpened rowels on an animal; or
(k)   does any other prescribed act.
(3)   In this section —
abandons, in relation to an animal, includes the relinquishing of the care or charge of the animal without ensuring that another person has, or will immediately take, care or charge of the animal;
appropriate and sufficient means —
(a)   in relation to the provision of food to an animal, that food of sufficient quality is provided —
(i)in sufficient quantity to meet the nutritional requirements of maintaining the animal in reasonable body condition and, if appropriate, allowing for growth and reproduction; and
(ii)as often as appropriate for the digestive system and metabolism of the animal; or
(b)   in relation to the provision of drink, that fluids of sufficient quality are provided in sufficient quantity to keep the animal hydrated at all times; or
(c)   in relation to the provision of shelter, that shelter which affords protection for the animal from the adverse effects of weather conditions is provided;
pest animal means an animal of a kind or class which is entered in the pest register;
pest register means the pest register established and maintained under section 8A.
9    Aggravated cruelty
A person must not do any act, or omit to do any duty, referred to in section 8 which results in the death or serious disablement of an animal.
Penalty:
In the case of —
(a)   a body corporate, a fine not exceeding 1 000 penalty units; or
(b)   a natural person, a fine not exceeding 200 penalty units or imprisonment for a term not exceeding 18 months, or both."
It should be noted that s7, unlike ss8(1) and 9, does not prohibit any sort of omission. It only prohibits the use of a method of management that is reasonably likely to have certain results. There is therefore no reason why cases about criminal negligence should have any relevance to that section. By contrast, the offences created by ss8(1) and 9 can be constituted either by the doing of acts or by omissions to do duties. It must be remembered that s6 creates a duty whereby "A person who has the care or charge of an animal has a duty to take all reasonable measures to ensure the welfare of the animal." That section does not create an offence. It simply imposes a duty whose breach can be the subject of a prosecution under s8(1) or s9, depending on the consequences of the breach.
This is not manslaughter legislation. The maximum penalties reflect the seriousness of the offences created by the relevant sections – 6 months' imprisonment for a mismanagement offence contrary to s7, 12 months' imprisonment for a cruelty offence contrary to s8(1), and 18 months' imprisonment for an aggravated cruelty offence contrary to s9, together with fines. It should also be noted that none of the sections in question makes any reference to negligence.
In Fehlberg v Gallahar [1957] Tas SR 286, it was argued that, in a prosecution for the offence of negligent driving contrary to s32 of the Traffic Act 1925, the prosecution had to establish culpable negligence deserving of punishment by imprisonment. Counsel in that case relied on the High Court's decision in Callaghan v R (1952) 87 CLR 115 – a Western Australian motor manslaughter case in which it was held, at 124, that the applicable standard was that set by the common law in cases where criminal negligence results in the offender being guilty of manslaughter. Burbury CJ rejected that argument, holding that the word "negligently" meant "without due care" and did not refer to the criminal or civil concepts of negligence. The difference in seriousness between a manslaughter charge and a negligent driving charge was a very important consideration that his Honour took into account. Similarly, there is an enormous difference in seriousness between manslaughter and the animal welfare offences to which this ground relates.
There is nothing in the relevant sections that warrants the interpretation contended for by Mr Melick. If such an interpretation were adopted, prosecutions for mismanagement and cruelty offences based on omissions could only be brought in the most horrendous cases. That would not promote the purpose or object of the Animal Welfare Act: Acts Interpretation Act 1931, s8A(1).
The question of what the Crown needs to prove as to the state of mind of a defendant in prosecutions under ss7, 8(1) and 9 has to be determined in accordance with the ordinary principles of statutory interpretation. There is a common law presumption that mens rea is an essential ingredient in every offence: Sherras v De Rutzen [1985] 1 QB 918 at 921; He Kaw Teh v R (above) per Gibbs CJ at 528. Mens rea was described in Sherras v De Rutzen by Wright J at 921 as "an evil intention, or a knowledge of the wrongfulness of the act". As Gibbs CJ made clear in He Kaw Teh at 529, one must consider the words of the statute creating the offence and the subject matter of the statute in order to determine whether the common law presumption has been displaced.

The long title to the Animal Welfare Act is, "An Act to prevent neglect of, and cruelty to, animals, to ensure the welfare of animals, to repeal the Cruelty to Animals Prevention Act 1925 and for related purposes".
In the relevant second reading speech (House of Assembly, 19 May 1993) the then Minister for Primary Industry and Fisheries, Mr Gray, said the following:
"The Animal Welfare Bill has been prepared to replace the Cruelty to Animals Prevention Act which was introduced nearly seventy years ago. Community attitudes have changed significantly in that time to the extent that modern legislation needs not only to provide the means of preventing cruelty but also to ensure that animals are treated with consideration and care.
The motivation to give the replacement of the Cruelty to Animals Prevention Act the highest priority possible arose in 1989, as a direct result of the discovery of 107 diseased and starving dogs in cages near New Norfolk. It was one of the worst cases of animal cruelty in recent years and the old act was totally inadequate to ensure that proper penalties were applied.
…
The bill has been developed after extensive community consultation and with formal representation of community groups via the Animal Welfare Advisory Committee.
…
The bill preserves the basic provisions of the Cruelty to Animals Prevention Act but adds many new features:
A 'duty of care' for the welfare of animals is imposed on animal keepers and is an indicator of the philosophy behind the bill.
A managerial method 'reasonably likely' to result in cruelty, can be brought to court without waiting for the inevitable cruelty to occur.
Cruelty resulting in death or serious disablement of an animal is regarded as 'aggravated cruelty' and attracts heavy penalties.
Powers are provided to authorised persons to take possession of and care for animals which are at risk of serious, ongoing cruelty and a court may disqualify a person convicted of animal cruelty from the right to keep animals.
Throughout this speech I will refer often to community attitudes and standards. As much as possible, the bill avoids provisions which may be difficult to modify in line with future changes in community norms. The emphasis is on flexible, dynamic legislation which can move with the times. One example of this is the definition of cruelty itself.
Many practices clearly constitute cruelty and the bill makes reference to a wide range of these. However there will always be a degree of subjectivity in assessment of particular incidents and under this act courts will often have the opportunity to rule on the basis of their view of current community attitudes and standards."
The provision referred to by the Minister as imposing a duty of care is now s6 of the Animal Welfare Act, to which I have referred.
Each of the provisions in question imposes a prohibition. Section 7 imposes a prohibition on the use of any method of management that is reasonably likely to have certain results. Sections 8(1) and 9 each prohibit both the doing of acts, and omitting to do duties. None of the relevant prohibitions are qualified by adverbs which refer to an offender's state of mind, such as "knowingly", "intentionally" or "wilfully". The absence of any such adverbs is not conclusive, but tends to weigh against the applicability of the common law presumption that mens rea is an ingredient of every offence.
Each of the relevant prohibitions is imposed by the use of the words "must not". These provisions were enacted before the introduction of s10A of the Acts Interpretation Act, which requires the word "must" in subsequent legislation to be treated as imposing a mandatory requirement. However the use of the words "must not" in the relevant sections still tends to indicate that each relevant prohibition applies even in the absence of a guilty mind.
It should also be noted that the words "unreasonable and unjustifiable" in ss7 and 8(1) are used only to describe the degree of pain or suffering that is necessary for an offence to have been committed. They do not refer to the act or omission of an offender or alleged offender. The duty imposed by s6 is a duty "to take all reasonable measures". But there is nothing in the legislation to suggest that, when a defendant is charged on the basis of a positive act, the prosecution needs to prove that the act was unreasonable or unjustifiable.
If one gives the words of s7 their ordinary meaning, it would appear that the prosecution needs to prove (1) that the defendant had the care or charge of an animal or group of animals; (2) that the defendant used a method of management of the animal or group; (3) that that method of management was reasonably likely to result in pain or suffering to the animal or an animal in the group; and (4) that that likely pain or suffering was unreasonable or unjustifiable. No doubt the prosecution would need to prove beyond reasonable doubt that the second of those elements – the use of a method of management – was voluntary and intentional. However there is nothing in the wording of the section to suggest that the prosecution would need to prove beyond reasonable doubt that the defendant intended, knew or foresaw the likely result of the use of the chosen method of management.
If one similarly analyses s8(1), it would appear that the prosecution would need to prove (1) that the defendant either did an act or omitted to do a duty; (2) that that act or omission caused or was likely to cause pain or suffering to an animal; and (3) that that pain or suffering was unreasonable and unjustifiable. If the defendant were charged with doing an act, the prosecution would no doubt have to prove beyond reasonable doubt that the act was voluntary and intentional. If the defendant was charged on the basis of an omission, there is nothing in the subsection to suggest that the prosecution would need to prove beyond reasonable doubt that the defendant knew he or she had a duty, or that he or she knew that he or she was omitting to perform that duty. And there is nothing in the subsection to suggest that the prosecution would need to prove beyond reasonable doubt that the defendant intended, knew or foresaw the results or likely results of his or her act or omission.
Similarly, the words of s9 suggest that, to prove a contravention of that section, a prosecutor would need only to prove (1) that the defendant did an act or omitted to do a duty, and (2) that the act or omission resulted in the death or serious disablement of an animal. Once again, there is nothing in the section to suggest that the prosecutor would need to prove awareness of the duty on the defendant's part, consciousness of omitting to do the duty, intention, knowledge or foresight.
In a number of cases, judges have considered whether statutory provisions creating animal welfare offences required proof of mens rea. In McEwen v Roddick [1952] NZLR 938, the appellant was charged in relation to the suffering of a cat that was killed by a greyhound that he had let loose. The relevant section provided that every person was liable to a fine or imprisonment who "by wantonly or unreasonably doing or omitting to do any act … causes any unnecessary suffering … to any animal". On an appeal against a conviction by a magistrate, it was argued that the prosecution needed to prove intentional cruelty. At 941, F B Adams J said:
"No doubt the act must be an intended act, or the omission one for which the mind is responsible; but, beyond this, the subsection contains its own definition of the requisite mens rea in the words 'wantonly or unreasonably'. There must be volition, positive or negative (as the case may be), in the act or omission that causes the unnecessary suffering, and it must be a wanton or unreasonable act or omission. No other intent is required. …
Mr Dickson also argued that appellant must be fixed with knowledge of the presence of a cat in the vicinity at the time when he released the dog. There is nothing in the section to justify this. All it requires is that there should be a wanton or unreasonable act or omission, and that unnecessary suffering should be caused thereby."
That judgment was cited with approval by Matheson J in Morgan v Masters (1980) 25 SASR 128. In that case the relevant section, omitting the immaterial words, simply provided, "Any person who … ill-treats … any animal … shall be guilty of an offence ...". The word "ill-treat" was defined so as to include "unreasonably, wantonly or maliciously to neglect, beat, or cause unnecessary pain". The appellant was charged with ill-treating a puppy by unreasonably causing it unnecessary pain. In substance, Matheson J decided that the offence was one of absolute liability. At 133 his Honour said:
"In my opinion, the defence of reasonable mistake of fact (commonly known as the Proudman v Dayman - FTN.8defence) is excluded by necessary implication. The words 'unreasonably' and 'unnecessary' are to be construed and applied objectively and it is just not possible for this defence to be available upon such a construction of the section."
In Bell v Gunter (unreported, Supreme Court of New South Wales, 24 October 1997, BC9708066), Dowd J overturned an acquittal of a farmer who had been charged with committing an act of aggravated cruelty upon a cow, contrary to s6(1) of the Prevention of Cruelty to Animals Act 1979 (NSW). The relevant provisions of that Act had a similar structure to those that I am now concerned with. There was a subsection that imposed on a person in charge of an animal duties "(a) to exercise reasonable care, control or supervision … to prevent the commission of an act of cruelty upon the animal", "(b) where pain is being inflicted upon the animal, to take such reasonable steps as is necessary to alleviate the pain, or (c) where it is necessary for the animal to be provided with veterinary treatment … to provide it with that treatment". There was a subsection that made it an offence to commit an act of aggravated cruelty upon an animal. There was a definition of aggravated cruelty which, in essence, defined it as an act of cruelty that resulted in death, deformity, serious disablement, or the animal being so severely injured, so diseased or in such a physical condition that it was cruel to keep it alive. Dowd J concluded that the prosecution was not required to prove mens rea; that the offence in question was not an offence of absolute liability; and that, in the words of Dixon J in Proudman v Dayman (above) "an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent" would amount to a defence.
I see no reason to distinguish that case or to doubt its correctness. In my view ss7, 8(1) and 9, insofar as they relate to acts rather than omissions, apply only to voluntary and intentional acts. The onus is on the prosecution to prove that such acts were voluntary and intentional. There is no need to prove any other mental element. Thus, if a defendant is charged with contravening s8(1) or s9 by making an omission, there is no need to prove any mental element. Such offences may be constituted by omissions that are completely passive. However there is no need to interpret any of the relevant provisions as creating an offence of absolute liability. A defence of honest and reasonable mistaken belief in facts which, if true, would render a defendant's act or omission innocent amounts to a defence. The learned magistrate made no error in relation to these questions. Ground 1 must fail.

Ground 2 – Reasonable mistaken beliefs

This ground asserts that the learned magistrate erred "in having found that offences further to s7, 8(1) and 9 of the AWA [the Animal Welfare Act] were offences of strict liability, further finding that the accused did not have reasonable beliefs, that were they true, would provide a reasonable excuse for his actions".
This ground is misconceived. There was an enormous amount of evidence before the learned magistrate, but none of it raised any issue as to the applicant holding any mistaken belief that could have been exculpatory.
At par[94] of his reasons, the learned magistrate correctly observed that it was open to the applicant "to assert that he reasonably believed in a set of facts, (ignorance of the law being no excuse), which, if true, would render his actions or omissions as innocent".
In pars[96] and [97] of his reasons, the learned magistrate set out the matters relied upon by the applicant's counsel as forming the basis of a defence based on honest and reasonable mistaken beliefs. Those paragraphs read as follows:
"96      Defence counsel submitted that in assessing whether or not Mr Mitchell was bona fide, if mistaken in his desire to care for his animals, the court must have regard to:
The more than $30,000 spent on vet attendances on the property;
Mr Mitchell's procuring and administering of flopacks, antibiotics and other medications and procedures for the cattle;
His attempt to nurse animals in the barn;
His delivery of feed and water to downed cattle;
His procurement of hay, grain and supplements;
His working to the point of exhaustion;
His preparedness to euthanize animals
His preparedness to nurse animals
97       The following circumstances that Mr Mitchell found himself in also needed to be considered:
a   Mr Mitchell over the period in question was;
(i)    Young
(ii)   Suffering from and being medicated for serious psychiatric disorders;
(iii) Socially isolated.
b   Many of the cattle he had imported from Victoria were suffering from condition that caused morbidity and mortality in his stock;
c   Mr Mitchell did not have any specific, authoritative or statutorily [sic] guidelines available to him
d   He was unaided by the Government authorities statutorily charged with his education.
e   He had sufficient feed for his cattle and/or means to acquire same;
f   He regularly had Veterinary Surgeons attend his property;
g   He was physically and emotionally overwhelmed by the volume of work he had to attend to – particularly once the ill imported cattle started dying and requiring nursing."
Essentially the applicant's case was that he was in a difficult situation, meant well, and did his very best to care for his animals. None of the matters referred to in the paragraphs I have quoted involved any assertion of a mistaken belief. At the hearing of the motion to review the applicant's junior counsel, Mr Moloney, presented the argument relating to this ground. He had appeared for the applicant throughout the proceedings before the learned magistrate. I asked him what the mistaken belief was, and what the correct state of facts was. He responded by making assertions to the effect that the applicant's expert witnesses found that the applicant had enough feed to maintain his herd, and that that suggested that the cattle were affected by an unidentified disease. However, in responding to my enquiry, he did not identify any incorrect belief, or suggested incorrect belief, on the part of the applicant.
At par[99] of his reasons, the learned magistrate said:
"99 Having reviewed both the prosecution and defence submissions and the relevant evidence on this point, I am of the opinion that there is no proper basis upon which such a defence could be raised to a threshold that required the prosecution to negative such a belief beyond reasonable doubt. Put simply, according to Mr Mitchell Mr Mitchell [sic], he was doing his best in all the circumstances (as detailed), to take all reasonable measures to ensure the welfare of his animals with the resources and means he had available to him (as identified)."
The learned magistrate's conclusion was correct. This ground must fail.

Ground 3 – s137 of the Evidence Act 2001

This ground, as amended, asserts that the learned magistrate erred:
"In admitting into evidence the expert opinion and evidence of the prosecution witnesses in a criminal proceeding where the probative value of the evidence was outweighed the [sic] danger of unfair prejudice to the defendant (s 137 EA) and failing to provide adequate reasons for his rejection of the Defence application further to s 137 EA to exclude the expert evidence or any part of it."
Section 137 reads as follows:
"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
The basis upon which evidence can be excluded under s137 was explained most succinctly by McHugh J in Festa v R (2001) 208 CLR 593 at [51], as follows:
"But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task."
Those comments apply equally to the situation where the fact-finder is a magistrate rather than a jury.
At the hearing before the learned magistrate, Mr Moloney did not take any objection based on s137 until after all the evidence had been given. The case was adjourned so that counsel for both sides could prepare written submissions. The first mention of any s137 objection was in the written submissions that were then provided by Mr Moloney. He submitted that all of the prosecution's expert opinion evidence should be excluded. He raised a number of arguments as to the weakness of that evidence. He argued that none of the prosecution witnesses was an expert in any forensic sense; that not one of them could be described as independent; that no prosecution eye-witness was in a position to accurately or at all make an assessment of the state of feed on the property; that there was no admissible evidence of there being no disease on the property; that lay witnesses of fact had given opinion evidence as to the issues of fodder and disease; and that there was an entangling of evidence of observations and purported expert opinion evidence.
However his submission overlooked the requirements that, for the purposes of s137, it must be assumed that the impugned evidence will be accepted and that any reasonable inference favourable to the prosecution will be drawn: J v Tasmania (2011) 20 Tas R 425; R v Shamouil (2006) 66 NSWLR 228; R v Sood [2007] NSWCCA 214.
On the issue of unfair prejudice, Mr Moloney's only argument to the learned magistrate appears to have been that his client was disadvantaged because prosecution expert witnesses had given a mixture of evidence of their observations and evidence of their opinions.
The s137 objection was not only very late, but totally lacking in merit. There was no danger that the learned magistrate would be so inflamed by any of the prosecution evidence that he would be overcome by emotion and not deal with the case objectively and impartially. There was no danger that he would have an emotional reaction that might cause him to give any of the evidence more weight than it deserved. There was no basis for a submission that there was any danger of unfair prejudice to the applicant.
The learned magistrate proceeded on the basis that he would rule on the objection when he gave his decision as to whether the charges were proven. Unfortunately his reasons for finding the charges proven contain nothing at all about the s137 objection. He made some general comments as to the admissibility of opinion evidence from the prosecution experts, the possibility of proving ill-treatment without expert evidence, the fact that expert evidence may add weight in some cases, and the fact that it may sometimes be essential. But he did not mention the s137 argument at all.

A judicial officer has an obligation to give reasons for his or her decisions, and the failure to give reasons amounts to an error of law: Pettit v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; Potts v Frost [2012] TASFC 6 at [28]. The duty to give reasons exists because, when there is a right of appeal to a higher court, the appellate court will need to know the basis of any decision that is challenged. See, for example, Soulemezis (above) per Kirby P (as he then was) at 256 – 261. It follows that the duty to give reasons applies not only to a magistrate's determination as to whether a charge is proven, but also to rulings on evidentiary objections, since such a ruling can be relied on at as the basis of a ground of review.
The learned magistrate did not exclude any evidence under s137. He failed to provide any reasons for not upholding the submission of defence counsel based on s137. He thereby erred in law. The error asserted in the second limb of ground 3 has been made out. However, because the submission based on s137 was without merit, the learned magistrate's error was totally inconsequential.

Ground 4 – Evidence of defence experts

This ground, as amended, asserts that the learned magistrate erred:
"In not preferring the evidence of Dr Perkins, Mr Doonan and Mr La Grange in circumstances where no admissible evidence was offered contesting their conclusions and failing to provide adequate reasons for his rejection of this evidence."
The three witnesses named in this ground were all experts who gave evidence for the applicant. Dr Perkins was a highly qualified veterinary surgeon with an expertise in epidemiology. Mr Doonan described himself as an "agri-business consultant". He has a degree in agricultural economics and substantial experience as a farm management consultant. Mr La Grange was an advisor employed by the Tasmanian Institute of Agricultural Research, with expertise in pasture-based dairying and the business and financial aspects of such operations.
Dr Perkins, who had never been to the Redpa property, gave evidence to the effect that, on the basis of information provided to him, it appeared that the death rates for cows in the applicant's herd were significantly higher for those imported from Victoria than for the others. He hypothesised that that could be due to an undiagnosed condition that affected the imported cows, or to the home-grown cows having a greater tolerance to some condition on the property that adversely affected the imported cows. His evidence did not go beyond the suggestion of hypotheses. There was a dispute as to the accuracy of the information that had been provided to him. Under cross-examination he made a number of concessions that were favourable to the prosecution.
Mr La Grange had visited the Redpa property once, on 2 August 2007. He gave advice as to the feeding levels of the herd. He made calculations, based mainly if not entirely on information provided by the applicant, as to what was being done, and might be able to be done, as to feeding levels. At the time of his visit, he considered it obvious that the level of feed being provided to the herd was not sufficient to sustain the desired level of milk production, or even to maintain the then condition of the herd. He formed the opinion that the quality of pasture needed to be improved by a comprehensive re-grassing program over eight to ten years in order for it to accommodate a herd of 350 cows. That was the size of the herd that the applicant already had. Mr La Grange gave very detailed evidence about the amount of hay that would need to be brought in to maintain feed levels. He expressed no opinions as to any animal welfare issues other than in relation to feed levels.
Mr Doonan visited the property three times in 2007 – on 22 August, 10 September and 1 October. He gave advice about employing labour, pregnancy testing the spring calving cows, feeding strategies, supplying power to the electric fences, reducing the number of mobs of cattle, applying urea, considering the future, attending to fencing and irrigation, upgrading laneways, having soil tests done, seeking pasture management advice, developing a small area of the farm each year, considering a move to a split spring calving scenario, and increasing the size of the farm's dam and its irrigated area in the long term. He gave a great deal of evidence about stocking rates, feed levels, recurrent expenditure, and business performance. He said that he did not propose de-stocking, except that he suggested to the applicant that the herd be pregnancy tested and any empty cows removed from the property and sent for slaughter.
In his reasons, the learned magistrate said very little about Dr Perkins, Mr Doonan, Mr La Grange and the matters that they addressed in their evidence. I am not suggesting that that is any indication of error.
In par[187] of his reasons, he said this:
"187 … It was put most strongly, that the prosecution had failed to establish that there was a lack of appropriate feed for the animals. Mr Mitchell, it was said, had supplementary feed available and he was using it. In addition he had more on hand if he needed it. Mr Mitchell however, is not charged with having insufficient feed, he is charged with using a method of management that resulted in certain animals in his care, not being fed or watered appropriately. If he had additional feed, then the prosecution, (who dispute this assertion), say that there was no evidence that he was providing it in sufficient quantity or quality such as to abate the deteriorating condition of the cattle."
He addressed Dr Perkins' hypothesis as to an undiagnosed disease in pars[251] and [252] of his reasons, saying the following:
"251 The possible existence of an undiagnosed disease. It was said by the defence that the prosecution could not exclude the possibility that the animals had other undiagnosed diseases such as pestivirus, Johnes, acid anaemia disease, cancer or some other disease bought by cows from the mainland. (See evidence of Dr Nigel Perkins).
252 That this may have been the case is not in my view, an explanation however as to why it was that the animals were not appropriately cared for or treated. Their condition, observed by witnesses was such as to warrant intervention by the provision of food, water, shelter or veterinary intervention or all of those options . The condition of the animals was not something that occurred overnight but over a period of time."
In pars[255] – [259] he said this:
"255     … the starting point was the provision of adequate and appropriate food , water and shelter and this was best achieved by separation and preferential feeding of which there was little evidence of any system in place to provide this.
256     Support for this position came from the evidence of Dr Nigel Perkins called by the defence. He agreed with the following propositions put to him in cross-examination.
The precise cause of death of the animals was unknown.
The most likely scenario was malnutrition.
If the animals that came to Tasmania were in a weakened state they would not necessarily have died if they had been properly cared for.
257     If there was any doubt about this proposition, the prosecution pointed to the high survival rate of those animals that were seized and taken to an [sic] cared for at the Cressy research facility.
258     That there was sufficient feed, and supplementary feed available and if more was required, Mr Mitchell had access to and the means to secure such.
259     A substantial amount of time was spent in evidence dealing with this particular issue. Even if it were the case however, that there was sufficient feed, it is what Mr Mitchell did or rather, did not do about the situation where the condition of a number of cows were said to be either malnourished or sick or both or dead [sic]. That, according to the prosecution was the most important issue in the case. If the cows were not fed or their state of health and wellbeing as a result of whatever cause was not properly and promptly addressed by the provision of veterinary or appropriate care, then, the prosecution submitted that Mr Mitchell has failed in his duty."
From these passages I think it is clear that the learned magistrate did not reject any of the expert opinions of Dr Perkins, Mr Doonan or Mr La Grange. He evaluated their evidence and reached conclusions that it was not exculpatory. In my view the passages that I have quoted were adequate for the parties and any appellate court to understand what conclusion the learned magistrate reached as to the evidence of the three witnesses in question. I reject the assertion that he failed to provide adequate reasons in relation to their evidence.
This is not an appeal by way of rehearing but a motion to review pursuant to s107 of the Justices Act 1959. The applicable principles as are stated by Crawford CJ in Phillips v Arnold (2009) 19 Tas R 21 at [46]:
"… The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour& Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117."
It has not been demonstrated that the conclusions of the learned magistrate, insofar as they relate to the issues touched on in the evidence of Dr Perkins, Mr Doonan and Mr La Grange, were conclusions that no reasonable person could have come to. Ground 4 must therefore fail.

Ground 5 – The undiagnosed disease hypothesis

This ground, as amended, asserts that the learned magistrate erred:
"In finding that even if there were undiagnosed disease on Mr Mitchell's property that this would provide no explanation as the [sic] state of the animals on the property and failing to provide adequate reasons for his reaching this conclusion."
This is really a repetition of part of ground 4. It is an attack on the conclusion reached by the learned magistrate in pars[251] and [252] of his reasons, which I have quoted above. If an animal is sick it should be cared for, given veterinary treatment, and if necessary be put down. The learned magistrate made it clear that he therefore did not regard the existence of an undiagnosed disease, if there was one, as exculpatory in relation to any charge. His reasons as to that point were adequate. His conclusion was reasonably open to him. This ground must fail.

Ground 6 – Insufficient fodder

This ground, as amended, asserts that the learned magistrate erred:
"In finding that there was in sufficient [sic] fodder on the property to maintain the cattle on the property and failing to provide adequate reasons for his reaching this conclusion."
The learned magistrate did not make a finding that there was insufficient fodder on the property. It is clear from par[259] of his reasons, which I have set out in full when discussing ground 4, that he considered that the real question was not whether there was insufficient feed, but what the applicant did or did not do about the condition of his cows. The second sentence of that paragraph, whilst it is most unfortunately constructed, makes his position clear:
"Even if it were the case however, that there was sufficient feed, it is what Mr Mitchell did or rather, did not do about the situation where the condition of a number of cows were said to be either malnourished or sick or both or dead."
This ground asserts an error in relation to a finding that was not made. The conclusions of the learned magistrate in relation to the "insufficient fodder" issue were reasonably open to him. His reasons in relation to that issue were adequate. This ground must fail.

Ground 7 – Manifestly excessive sentence

This ground, as amended, asserts:
"That the sentence imposed by the Learned Magistrate was manifestly excessive."
As I have said, the learned magistrate imposed eight sentences of imprisonment on the applicant. Some related to groups of charges and others related to single charges. Some were concurrent. Some were cumulative. One was partly cumulative and partly concurrent.
The eight sentences of imprisonment, and the charges that each related to, can be summarised as follows:
(i)On complaint 50070/08, on three of the s7 mismanagement charges, the learned magistrate imposed a global penalty of one month's imprisonment. Each of those three charges related to groups of animals.
(ii)In relation to all but one of the remaining s7 mismanagement charges, the learned magistrate imposed a global term of two months' imprisonment. Those charges comprised three counts on complaint 56832/07, one count on complaint 56833/07, and 43 counts on complaint 50070/08. One of the counts on that last complaint related to 55 animals, but the others, on all complaints, related to individual animals.
(iii)On the s7 mismanagement charge on complaint 56629/09, the learned magistrate imposed a cumulative sentence of three months' imprisonment. He commented that he found that charge to be "aggravating in nature".
(iv)On a single s8(1) cruelty charge on complaint 50070/08, the learned magistrate imposed a penalty of two months' imprisonment. That charge related to a Friesian cow that had suffered a hock injury.
(v)On another single s8(1) cruelty charge on the same complaint, the learned magistrate imposed another penalty of two months' imprisonment. That charge related to a Friesian cow that had suffered a wire injury.
(vi)On another single s8(1) charge on the same complaint, the learned magistrate imposed a penalty of four months' imprisonment. That charge related to 55 animals found on a bush block.
(vii)On 44 aggravated cruelty charges under s9 of the Animal Welfare Act, the learned magistrate imposed a global penalty of nine months' imprisonment. Each of those 44 charges related to an individual animal. They were the s9 charges that were found proven on complaints 56832/07, 56833/07, and 50070/08.
(viii)On the remaining charges, the learned magistrate imposed a global penalty of six months' imprisonment, specifying that three months thereof was to be cumulative and three months concurrent. Those remaining charges comprised all the charges of failing to comply with instructions, and all the charges found proven on complaints 50326/08 and 51087/08.
Having imposed those eight sentences, the learned magistrate said, "The total period of imprisonment is 15 months and I order you to serve 9 months before being considered eligible for parole."
Unfortunately the learned magistrate did not specify which of the eight sentences were intended to be cumulative and which concurrent, except in relation to the third sentence and the last one. I infer that the third sentence (3 months), the seventh sentence (9 months) and half of the last sentence (3 months of 6 months) were intended to be cumulative, and that the rest of the sentences were intended to be concurrent. I do not think there is any other basis for adding together numbers that total 15.
Section 17(2)(b) of the Sentencing Act 1997 provides that, "A court that imposes a sentence of imprisonment on an offender … may order … that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order." The wording of that provision tends to suggest that, when multiple sentences of imprisonment are imposed, it may be necessary to make a separate order as to parole in respect of each sentence. However none of the grounds of review raises any suggestion of error on the part of the learned magistrate in imposing a single non-parole period.
Ground 7 was obviously intended to refer to all of the sentences imposed by the learned magistrate. I therefore need to consider whether any of those sentences or the aggregate of them were so "unreasonable or plainly unjust" as to give rise to an inference that there has been a failure to properly exercise the sentencing discretion: House v R (1935) 55 CLR 499; A, MC v Police (2008) 102 SASR 151 at [88]; Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31].
Most, but not all, of the offences committed by the applicant were punishable by imprisonment. The maximum penalties for the various offences were as follows:
· For mismanagement, contrary to s7 of the Animal Welfare Act – 6 months' imprisonment and/or a fine of 100 penalty units.
· For cruelty, contrary to s8(1) of the Animal Welfare Act – 12 months' imprisonment and/or a fine of 100 penalty units.
· For aggravated cruelty, contrary to s9 of the Animal Welfare Act – 18 months' imprisonment and/or a fine of 200 penalty units.
· For failing to comply with an instruction of an officer, contrary to s14(2) of the Animal Welfare Act – a fine of 10 penalty units.
· For obstructing or hindering a person in the performance of his duty, contrary to s41 of the Animal Welfare Act – 3 months' imprisonment and/or a fine of 10 penalty units.
· For failing to ensure that the carcass of an animal was buried, burned or otherwise suitably disposed of within a reasonable time, contrary to s55 of the Animal Health Act – a fine of 50 penalty units.
· For contravening a direction given by an inspector without reasonable excuse, contrary to s76(1)(f) of the Animal Health Act – 6 months' imprisonment and/or a fine of 50 penalty units.
· For intimidating a public officer, contrary to s34B(2) of the Police Offences Act – 12 months' imprisonment or a fine of 25 penalty units.
· For obstructing a police officer, contrary to s34B(1)(a)(i) of the Police Offences Act – 2 years' imprisonment or a fine of 50 penalty units.

The first sentence – 1 month

The first sentence was a sentence of 1 month's imprisonment in respect of three s7 mismanagement charges. One of these charges related to 35 young dairy cattle that were found in a paddock. The learned magistrate accepted evidence that they were aged between four and seven months, that they were in very poor condition, that they did not have enough food or water, and that they ate flat out once food was provided. He found that that situation came about over a period of weeks, and that the animals had progressively deteriorated. He accepted evidence that they were kept in an area with no useful pasture, and that there was no evidence of supplementary feeding.
The other s7 charges that are the subject of this sentence related to two groups of cattle that were seized by the authorities – 32 animals seized on 4 September 2007 and 20 animals seized on 21 September 2007. The learned magistrate found that it had become increasingly obvious to officers attending the applicant's property that he was not carrying out instructions to identify weaker or more vulnerable animals and to isolate them so as to allow them to have preferential feeding. He accepted evidence that nearly all the animals recovered their condition after seizure, simply as a result of the provision of adequate food. He concluded that the primary cause of their poor body condition was a lack of adequate nutrition.

The second sentence – 2 months

This sentence related to 47 mismanagement charges under s7 of the Animal Welfare Act, 46 of which related to individual animals, and one of which related to 55 animals. Of the 46 individual animals, 44 were the same animals that were the subject of the s9 charges that gave rise to the sentence of 9 months' imprisonment, which I will discuss in due course. The group of 55 animals was found on a bush block on 15 October 2007. The learned magistrate accepted evidence that the bush block was an unsuitable place to keep cows, and particularly unsuitable for some of the 55 that were underweight, weak, calving, or about to calve. The block was steep. It had virtually no pasture or other suitable food. The learned magistrate found that there was an appreciable risk that the cows could have suffered injury negotiating the steep and slippery slopes, become caught up in thick bush, or become bogged. He found that the cows were in a position where they were extremely difficult to observe and monitor, and that they should have been located close to the applicant's dairy and residence when they came close to calving.

The third sentence – 3 months cumulative

This sentence related to a single s7 mismanagement charge. The charge related to a cow with an ear tag reading "0751". The learned magistrate accepted evidence that it slipped in the yard, suffered a bone injury, remained down for days, and died without the applicant having called a vet or provided any treatment. He accepted that the cow's poor condition was a result of a method of management used by the applicant that failed to identify its welfare needs, and that that was likely to result in unreasonable and unjustifiable pain or suffering. Charges of cruelty and aggravated cruelty in relation to this cow were dismissed by the learned magistrate on the basis that he was not satisfied beyond reasonable doubt that the cow was still alive when the applicant did various things to it. It would therefore be inappropriate for me to summarise what he did.

The fourth sentence – 2 months

This sentence related to a single s8(1) cruelty charge that concerned a single cow – a Friesian cow numbered 238. The learned magistrate made findings that the cow had a sore foot for some time; that the applicant treated that condition himself with non-prescribed penicillin medication; that the condition recurred and kept getting worse; that the applicant changed the medication; and that the cow started to respond before it was examined by a vet.

The fifth sentence – 2 months

This sentence also related to a single s8(1) cruelty charge. That charge related to a single Friesian cow numbered 6004. The learned magistrate made findings that that cow had become separated from the rest of the herd and was on its own in a paddock that was several paddocks from where it was supposed to be; that the applicant initially did not know that; that he had been too busy to check every paddock for each stray animal; that a Mr Jessup told him where it was; and that the animal was not in a "life and death" situation. I infer that he was satisfied beyond reasonable doubt that the applicant had failed to do his duty to take all reasonable measures to ensure the welfare of the animal, and that his omission made it likely that the animal would experience unreasonable and unjustifiable suffering as a result of neglect. This was one of the least serious cruelty charges.

The sixth sentence – 4 months

This sentence also related to a single s8(1) cruelty charge. That charge related to the same group of 55 animals, found on a bush block, whose ill-treatment I have described when dealing with the second sentence. The learned magistrate included the s7 mismanagement charge relating to them in the group of s7 mismanagement charges that was the subject of that concurrent sentence of 2 months' imprisonment.

The seventh sentence – 9 months

This sentence related to 44 aggravated cruelty charges under s9 of the Animal Welfare Act. Each charge related to an individual animal. Of the 44 animals, 17 animals were found dead on the property between May and October 2007. Three more were found alive during August 2007, but in such poor condition that they died within days. The others were found in such poor condition as to warrant the attention of the various witnesses who found them. The applicant gave evidence before the learned magistrate about some, but not all, of the animals in question. At [179] of his reasons, the learned magistrate made findings in relation to the animals identified by the applicant, as follows:
"I'm satisfied that Mr Mitchell failed to identify or adequately identify the specific welfare needs of those particular animals by not providing for, or not carrying out, appropriate, regular or adequate inspection of the individual animals to achieve that objective. The reason that Mr Mitchell was not able to carry out such critical inspections was because he said he did not have the time himself nor did he have enough help. The underlying problem, a lack adequate fencing and hence stock and feed control, was a matter that he was well aware of but had failed to maintain. This led to animals at various stages of their life cycle including vulnerable animals such as those that were calving, being allowed to mix with stronger animals, competing for the pasture and being free to roam in all parts of the property including steep bushy areas as well as boggy swamps and creeks in which they became trapped while remaining unobserved."

Eighth sentence – 6 months partly cumulative

As I have said, the learned magistrate made three months of this sentence cumulative with the other sentences, and three months of it concurrent. This sentence related to an assortment of charges. I will deal first with those that were punishable by imprisonment. They included 18 charges of contravening directions given by inspectors contrary to s76(1)(f) of the Animal Health Act. Each of those charges related to a direction to dispose of the carcass of a particular dead cow by burying it. Those charges relate to a period of about eight weeks from 23 July 2007 to 14 September 2007.
Four of the charges arose from an incident on 21 September 2007. The applicant had been given a formal instruction under the Animal Welfare Act to separate the 35 thinnest cows from his other cows, to run them separately, to fully feed them, and to keep them separated for 14 days. A group of public officers from the relevant government department arrived at the property with a police officer to check whether the instruction was being complied with. The four charges, which were on complaint 51087/08, related to the applicant's responses to his visitors. An officer named Thomas Raphael ordered the applicant not to remove certain cattle from a yard, but the applicant obstructed Mr Raphael in the performance of his duty by opening a gate and releasing the cattle. A number of cattle were subsequently seized pursuant to the provisions of the Animal Welfare Act and loaded into a truck. Mr Raphael was about to drive the truck away, when the applicant parked a tractor in front of the truck, hindering its departure. In respect of that act he was convicted of hindering Mr Raphael in the performance of his duty. At one stage during this incident the applicant used a chainsaw in an aggressive and frenzied manner to destroy the rails of a loading ramp. In respect of that act he was convicted of intimidating Mr Raphael, a public officer in the execution of his duty, contrary to s34B(2) of the Police Offences Act. At another stage during this incident the police officer was trying to control the movement of cattle when the applicant rode a quad bike through the mob of cattle, which scattered. That act was the subject of a conviction for obstructing a police officer in the execution of his duty.
The other charges that were the subject of this eighth sentence comprised 8 charges of failing to comply with instructions contrary to s14(2) of the Animal Welfare Act and 12 charges of failing to ensure that carcasses were suitably disposed of. Those were offences not punishable by imprisonment.

The applicant and his circumstances

The applicant committed the offences in question during a period that began when he was 26 years old and ended when he was 28. He was 32 years old when he was sentenced and is now 33.
He has some relevant convictions. On 3 May 2007 he was convicted and fined $750 on a charge of omitting to do a duty likely to cause suffering to an animal. That offence was committed on 20 October 2006. On 1 August 2008 he was convicted on charges of obstructing a person in the exercise of his powers, and intimidating a public officer. Those offences were committed on 13 August 2007. He was fined $1,000.
Before coming to Tasmania he had some experience in dairy farming in northern Victoria, but he was not used to Tasmanian conditions, and was not able to manage the farm competently. He initially leased the Redpa property, but exercised an option to purchase it in July 2007. The property was mortgaged to a bank. The bank took possession of the property as mortgagee in 2010. The applicant owes the bank a very large amount of money. He left Tasmania after committing these offences, and has since worked in Western Australia, Victoria and the Northern Territory. When sentenced he was running a fencing business based in Bendigo. The learned magistrate was provided with two character references indicating that he was hard working, professional in his manner, truthful and reliable.
The learned magistrate was provided with a report by a psychologist who undertook an assessment of the applicant in March 2011. The psychologist reported that the applicant had trouble concentrating and staying focussed, was disorganised and forgetful, and had difficulties with impulsivity and hyperactivity. It was thought that these characteristics were symptoms of attention deficit hyperactivity disorder or attention deficit disorder.
The learned magistrate was also provided with a report by a psychiatrist who examined the applicant in July 2011. He concluded that the applicant did not appear to have adult attention deficit disorder. He noted that the applicant had insomnia, but said that he did not appear to have any psychotic symptoms. He said he appeared to have suffered from exhaustion, loss of focus, and mind racing as a consequence of the persistent use of medication that was prescribed for him.
The learned magistrate took into account remorse on the applicant's part, but commented that he regretted the consequences to himself first, and to his animals second. The learned magistrate considered that the applicant had never personally accepted responsibility for his actions, and that he had almost no insight as to the seriousness and the enormity of his offending.

Aggravating circumstances

Many of these charges related to cows that were neglected and not properly fed for a very long time, with the result that they went down, were unable to get up again, and either died or had to be destroyed. Many animals suffered terribly over periods of weeks and months. The bulk of the charges spanned a period of about seven months and involved nearly 200 cows.
There is no reason to think that the applicant wanted any of his cows to suffer. However this is an extremely serious case involving sustained and repeated neglect. A number of steps were available to the applicant. For example, he could have reduced the size of his herd, sold the entire herd, and/or sold the farm. The applicant repeatedly failed to heed advice and comply with instructions.
I agree with some comments that the learned magistrate made when he sentenced the applicant, as follows:
"This is clearly a case … where general deterrence must be the predominant sentencing consideration. It must be made clear to the community and to all those involved in commercial farming that a lack of means or ability or both can in no way abrogate the responsibility to provide appropriate care to the animals in their care."
In my view, because of the number of animals that suffered, the extent and duration of their suffering, and the duration of the applicant's offending, the only appropriate sentencing option was imprisonment.

Excessive sentences

However I consider that some of the sentences imposed by the learned magistrate were out of all proportion to the seriousness of the charges to which they related. The third sentence – a cumulative sentence of 3 months' imprisonment which the learned magistrate imposed on a single mismanagement charge in relation to a single cow – was out of all proportion to the seriousness of the conduct to which it related. The same applies to the fourth and fifth sentences – two concurrent sentences of 2 months' imprisonment each, each of which related to a single charge concerning a single cow. The eighth and final sentence – a sentence of 6 months' imprisonment – was out of all proportion to the seriousness of the applicant's misbehaviour on 21 September 2007, his failure to bury 18 dead cows within reasonable times after being instructed to do so, and his other acts of disobedience for which imprisonment was not prescribed as a penalty.
The arrangement whereby the learned magistrate imposed eight separate sentences, some in respect of single charges and some in respect of groups of charges, appears to have been somewhat haphazard.
Despite the seriousness of this case, I consider that the eight sentences imposed by the learned magistrate, effectively totalling 15 months' imprisonment with provision for parole after 9 months, were, in the aggregate, manifestly excessive.

Conclusion

In my view the most appropriate course would have been for the learned magistrate to convict the applicant on all the charges that he did not dismiss; to impose a single global sentence of imprisonment in respect of all the charges that were punishable by imprisonment; and to make an order permitting parole after the shortest possible non-parole period. As to parole, it is significant that the applicant has never been to prison before, and appears to have been leading a responsible life since committing the offences in question.
Although the error asserted by the second limb of ground 3, which relates to s137 of the Evidence Act, has been made out, the only appropriate course is for all the 140 convictions to remain undisturbed. I consider that an appropriate global penalty for the proven offences punishable by imprisonment is 12 months' imprisonment, with an order that the applicant is not to be eligible for parole until he has served half of that sentence. Since the applicant was in custody from 19 February 2010 until 25 February 2010, I will backdate his sentence to take that period into account.
I therefore make the following orders. The motion to review is allowed. The sentences of imprisonment imposed by the learned magistrate are set aside. In respect of the charges listed below, the applicant is sentenced to 12 months' imprisonment with effect from 11 August 2014. The applicant is not to be eligible for parole until he has served six months of that sentence.
The sentence of imprisonment relates to the following charges:
·     Counts 1, 3, 4, 6, 8 and 10 on complaint 56832/07.
·     Counts 1 and 3 on complaint 56833/07.
·     Counts 1 to 45 inclusive, 47, and 92 to 131 inclusive on complaint 50070/08.
·     Counts 2, 4, 6, 9, 10, 12, 14, 15, 18, 21, 22, 24, 25, 27, 28, 30, 31 and 32 on complaint 50326/08.
·     Counts 1 to 4 inclusive on complaint 51087/08.
·     Count 1 on complaint 56629/09.