Morrison v Sutton - [2022] QDC 103

DISTRICT COURT OF QUEENSLAND

CITATION:

Morrison v Sutton [2022] QDC 103

PARTIES:

MICHELLE MEREE MORRISON

(appellant)

v

JAMIE SUTTON

(respondent)

FILE NO:

D8/2021

DIVISON

Appellate

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrates Court
Toogoolawah

DELIVERED ON:

13 May 2022

DELIVERED AT:

Maroochydore

HEARING DATE:

15 February 2022

JUDGE:

Cash QC DCJ

ORDERS:

1. The application for an extension of time within which to appeal is refused; and

2. The appeal is dismissed.

CATCHWORDS

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where appellant pleaded guilty to 31 offences under Animal Care and Protection Act 2001 – where the appellant neglected or was cruel to horses – sentence – where appellant fined $20,000 – where the court also ordered appellant to pay costs pursuant to s 189 of the Act – whether order for costs under s 189 relevant to sentence – prohibition order pursuant to s 183 – forfeiture order pursuant to s 182 – whether sentence excessive

LEGISLATION:

Animal Care and Protection Act 2001 (Qld), s 17(2), s 18(2), s 182, s 183, s 185, s 189, s 192
Justices Act 1886 (Qld), s 222, 223
Penalties and Sentences Act 2017 (Qld), s 48

CASES:

House v The King (1936) 55 CLR 499

R v Hart [2008] QCA 199

Teelow v Commissioner of Police [2009] 2 Qd R 489
Wilson v Barraud & Anor [2021] QDC 223, [120], [121], [126], [127], [130]

APPEARANCES:

S B Neaves (Counsel) for the appellant instructed by Belle Dore Legal
J Cranitch (Government Legal Officer) for the respondent instructed by Department of Resources (Queensland)

Introduction

On 24 May 2021 the appellant appeared before a Magistrate at Toogoolawah in relation to several alleged offences prosecuted on complaint by an officer of the Department of Agriculture and Fisheries (the Department).[1] The prosecutor amended the charges, after which the appellant pled guilty to a total of 31 offences contrary to either section 17 or section 18 of the Animal Care and Protection Act 2001 (Qld) (“ACAPA”). In their final form, the charges alleged two offences of animal cruelty and 29 offences of a breach of duty to care for an animal. After hearing submissions, the Magistrate made the following orders:
a)       The appellant was fined $20,000;
b)      The appellant was prohibited from possessing, purchasing, or otherwise acquiring any horse without the approval of the Chief Executive of the Department (with an exception for 25 horses then in her possession);
c)       Sixteen horses belonging to the appellant that had been seized by the Department on 1 April 2019 were forfeited to the State;[2]
d)      The appellant was ordered to pay $40,000, being the costs of the Department in keeping the 16 seized horses from April 2019; and
e)       The appellant was ordered to pay $1,603.60 in court and professional costs.
[1]The officer who complained of the offences was the respondent, Mr Sutton. But in real terms the prosecutor was the Department, and it is the Department who…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morrison v Sutton

Details

AGLC: Morrison v Sutton [2022] QDC 103
Case: [2022] QDC 103
Decision Date: 13 May 2022

CaseChat Overview and Summary

The appellant, Morrison, sought an extension of time to appeal the sentence imposed by the Magistrates’ Court, which found her guilty of 31 offences under the Animal Care and Protection Act 2001. The sentence included a $20,000 fine, a prohibition order, and a forfeiture order. The respondent, Sutton, opposed the application for an extension of time and also sought the dismissal of the appeal. The primary legal issues were whether the sentence was manifestly excessive and if the order for costs under section 189 was relevant to the sentence. The court needed to determine if the Magistrate erred in considering the criteria for the forfeiture order and if the sentence was disproportionate to the offences committed.

The court found that the Magistrate had carefully considered the criteria in section 185 of the Act in relation to the forfeiture order and had reached a just conclusion. There was no error in the Magistrate's decision, and thus the appeal was dismissed. The court also determined that the order for costs under section 189 was not relevant to the sentence and did not contribute to any perceived excessiveness. The appeal did not succeed as the appellant failed to establish any valid complaints.

The court dismissed the application for an extension of time to appeal and the appeal itself. The respondent sought its costs of the appeal, which the appellant indicated would be hard to resist. The court invited the parties to agree on the costs and, if they could not, would decide the matter based on written submissions. The final orders were the refusal of the application for an extension of time to appeal and the dismissal of the appeal. The respondent sought its costs of the appeal, fixed at $1,800.

Orders

Orders of the court

1. The application for an extension of time within which to appeal is refused; and

2. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In these circumstances I am not persuaded that the appellant was denied the chance to properly present her arguments. The Magistrate carefully addressed the criteria in section 185 as they related to the forfeiture order before reaching the conclusion that the order was just in the circumstances.[14] I can detect no error in his Honour’s decision. This ground of appeal also fails.[14]Transcript of the decision, pp. 4-6.Conclusion I have concluded that the appellant has not made out any of her complaints. It follows that her appeal cannot succeed. In the circumstances there is no point in granting an extension of time to commence the appeal. The orders will be1. The application for an extension of time within which to appeal is refused; and2. The appeal is dismissed. The respondent seeks its costs of the appeal fixed in the amount of $1,800. The appellant indicated it would be hard to resist such an order.[15] I would invite the parties to consider if they can reach agreement as to the costs of the appeal. If the parties agree they may provide a draft order to my associate. In the event the parties cannot reach agreement I will decide the question “on the papers” and each party has leave to file written submissions addressing the issue, not exceeding 4 pages, on or before 3 June 2022.[15]Transcript of appeal hearing, T.1-37.34.

Ratio Decidendi

Legal Principle Established

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CITATION:	Morrison v Sutton [2022] QDC 103
PARTIES:	MICHELLE MEREE MORRISON (appellant)
v
JAMIE SUTTON (respondent)
FILE NO:	D8/2021
DIVISON	Appellate
PROCEEDING:	Appeal against sentence
ORIGINATING COURT:	Magistrates Court Toogoolawah
DELIVERED ON:	13 May 2022
DELIVERED AT:	Maroochydore
HEARING DATE:	15 February 2022
JUDGE:	Cash QC DCJ
ORDERS:	1. The application for an extension of time within which to appeal is refused; and 2. The appeal is dismissed.
CATCHWORDS	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where appellant pleaded guilty to 31 offences under Animal Care and Protection Act 2001 – where the appellant neglected or was cruel to horses – sentence – where appellant fined $20,000 – where the court also ordered appellant to pay costs pursuant to s 189 of the Act – whether order for costs under s 189 relevant to sentence – prohibition order pursuant to s 183 – forfeiture order pursuant to s 182 – whether sentence excessive
LEGISLATION:	Animal Care and Protection Act 2001 (Qld), s 17(2), s 18(2), s 182, s 183, s 185, s 189, s 192 Justices Act 1886 (Qld), s 222, 223 Penalties and Sentences Act 2017 (Qld), s 48
CASES:	House v The King (1936) 55 CLR 499 R v Hart [2008] QCA 199 Teelow v Commissioner of Police [2009] 2 Qd R 489 Wilson v Barraud & Anor [2021] QDC 223, [120], [121], [126], [127], [130]
APPEARANCES:	S B Neaves (Counsel) for the appellant instructed by Belle Dore Legal J Cranitch (Government Legal Officer) for the respondent instructed by Department of Resources (Queensland)