Royal Society for the Prevention of Cruelty to Animals (RSPCA) (SA) Inc v Rogers - [2016] SASC 185

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (RSPCA) (SA) INC v ROGERS
[2016] SASC 185
Reasons for Decision of The Honourable Justice Peek
14 December 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - GENERALLY - POWERS AND DUTIES - JUSTICES' RECORD AND NOTES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
ANIMALS - VARIOUS STATUTORY PROVISIONS - PREVENTION OF CRUELTY TO ANIMALS - OFFENCES
Prosecution appeal against sentence.
The respondent pleaded guilty in the Magistrates Court to one count of ill treatment of an animal causing serious harm pursuant to s 13(1) of the Animal Welfare Act 1985, and one count of ill treatment of an animal pursuant to s 13(2) of that same Act. The Magistrate convicted the respondent of both charges and imposed a total head sentence of six months imprisonment, suspended upon entry into a three year good behaviour bond. His Honour also ordered that the respondent not own an animal for a period of 5 years (pursuant to s 32A of the Animal Welfare Act 1985), and that the respondent pay a total amount of $5,109.50, including $3,682.75 for counsel fees, $100 for “prosecution costs”, veterinary costs, court fees, and the Victims of Crime levy.
The Magistrate incorrectly stated in his reasons that the appellant did not oppose the suspension of the sentence. In an addendum to his reasons, the Magistrate later acknowledged his error and maintained that he would have suspended the sentence irrespective of the appellant’s opposition.
The appellant’s grounds of appeal contended that the Magistrate erred in suspending the sentence, and sought that the restriction on the respondent’s animal ownership pursuant to s 32A be extended indefinitely.
Discussion of the taking of pleas to both of the alternative charges in s 13 of the Animal Welfare Act 1985.
Discussion of the invalidity of the order for $100 prosecution costs in the circumstances.
Held (dismissing the appeal):
1.       The Magistrate’s statement that he would have suspended the sentence irrespective of having initially mistaken the prosecution’s attitude to such suspension should be accepted. Although the prosecution’s position in sentencing is not irrelevant, it is the Magistrate’s role to come to his own decision and not rely on the expressed views of parties or advocates.
2.       The Magistrate acted within his discretion in deciding that there was good reason to suspend the sentence, and no appellable error has been demonstrated in the Magistrate’s approach to, or assessment of, the relevant factors.
3.       The Magistrate acted within his discretion in ordering the respondent be prevented from owning a pet for five years.
Animal Welfare Act 1985 ss 13, 32A; Summary Procedure Act 1921 s 189A; Criminal Law (Sentencing) Act 1988 s 18A, referred to.
Police v Cadd (1997) 69 SASR 150; Lombard v Police [2016] SASC 179; Sutcliffe v RSPCA (SA) Inc [2016] SASC 125; Pearce v The Queen (1998) 194 CLR 610; Police v Holloway; Police v Vithoulkas [2013] SASC 2, discussed.
The Queen v Wilton (1981) 28 SASR 362; Everett v The Queen (1994) 181 CLR 295, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"prosecution costs"

ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (RSPCA) (SA) INC v ROGERS
[2016] SASC 185
Magistrates Appeal
PEEK J.

This case arises out of an incident which occurred on 5 April 2014 and led to an ordeal for the respondent that has lasted too long, and should not have been further prolonged by this prosecution appeal. The appeal was heard on 2 December 2016 and was dismissed (with costs awarded against the appellant) at the conclusion of argument, with reasons to be delivered later. Those reasons follow.
Introduction
The respondent was charged on a complaint laid on 24 July 2015 with the following two charges under the Animal Welfare Act 1985 (‘the Act’):
Count 1
On 5 April 2014 at One Tree Hill in the State of South Australia, the defendant ill-treated an animal, namely a male Rottweiler dog, causing serious harm to the animal. The defendant intended to cause, or was reckless about causing, serious harm to the animal.
Section 13(1) of the Animal Welfare Act 1985.
Particulars
The defendant caused the animal unnecessary harm by shooting the dog with an arrow resulting in traumatic injuries to the animal.
Section 13(3)(a) of the Animal Welfare Act 1985.
Count 2
Between 5 April 2014 and 6 April 2014 at One Tree Hill in the State of South Australia, the defendant ill-treated an animal, namely a male Rottweiler dog.
Section 13(2) of the Animal Welfare Act 1985.
Particulars
The defendant, being the owner of the animal, failed to take reasonable steps to mitigate harm suffered by the animal. The dog was suffering from traumatic injuries and should have received veterinary treatment or been euthanased.
Section 13(3)(b)(ii) of the Animal Welfare Act 1985.
The respondent pleaded guilty to both charges. The factual basis upon which he was sentenced was as contained in a written statement furnished by him on 7 December 2015. It was tendered to the Magistrate and was as follows:
Statement of Paul Rogers
On the 5^th of April 2014 at Lot 7 One Tree hill I was visited by Peter Moran and Tara along with their three kids.
During the evening My Rottweiler dog savagely attacked and mauled Mr Moran’s son, Nate who was 2 years old at the time. This was unexpected and sudden, I cannot describe the myriad of emotions I felt when Tara lifted Nate’s Blood soaked t-shirt to reveal the wounds. I could see muscle, fat and what appeared to be tendon tissue through the large lacerations caused by the canine teeth, I immediately felt that the dog was dangerous and a threat. It was agreed that the wounds were severe enough to be life threatening so ‘000’ was called to ensure immediate medical attention for the infant male.
The dog was a much loved member of the family. So I spoke to my wife and it was agreed that the risk of not immediately destroying the dog was unacceptable given that our family consists of young children ages at the time 3, 6, and 7.
I grabbed my bow and three arrows took the dog firmly by the collar and walked towards the back of the paddock to ensure that the children or my wife did not witness the act. I released the dog, he was in the sitting position, I stepped back approximately 1.5 to two meters apologized to him and said goodbye. I drew the bow and released the arrow. The dog let out a small yelp stretched out laid down on his belly and lowered his head, The blood was being pumped out in short bursts leading me to believe that the broad head attached to the arrow had severed major arteries. The dog was no longer moving.
I briskly walked back to the house, to render any assistance I could in the care of Nate and try to council the other children present. A short time later the ambulance arrived. They asked some questions I told them that the dog had been destroyed and was in the paddock. The ambulance left.
Peter was very angry and wanted to view the dog’s carcass, we had a few minutes to chat whilst smoking a cigarette, I then started to walk back towards the area where I shot the dog with Peter.
We were approximately half way their when we noticed that SAPOL was in attendance, we turned around and walked back to explain what had happened. I told them that I had shot the dog with a bow and arrow and that the dog was dead in the paddock. They left. Peter and I sat again smoked a cigarette whilst consuming a beer. Peter still wanted see the dog by this time I had calmed down and could not bring myself to view the carcass. Peter walked off into the paddock.
Peter was gone for what seemed quite a while, He then returned he said ‘It was good to see that fucking thing dead any dog who bits a kid deserves it.’ then our conversation went back to Nate and his sister 4 year old Isabel who is recovering from brain cancer. The amount of guilt that I was feeling over the mauling cannot be overstated.
The next morning I needed to go to my Mum’s house to prepare a grave for the dog, my wife asked me to retrieve the carcass from the paddock and I refused, as I could not bring myself to deal with the dog. My cousin was attending for lunch that Sunday and I intended to have him put the carcass into the Ute and drive him to Mum’s house and refill the grave.
[Signed and witnessed on 7 December 2015]
The Magistrate convicted the respondent of both charges.[1] His Honour imposed a total head sentence of six months imprisonment,[2] suspended upon entry into a bond to be of good behaviour for three years in the amount of $1,000.00. His Honour also ordered pursuant to s 32A of the Act that the respondent not own an animal for a period of five years. The respondent was also ordered to pay a total amount of $5,109.50, being veterinary costs of $704.00; a court fee of $302.75; a VIC levy of $320.00; counsel fees of $3,682.75 and a further amount of $100.00 styled as “prosecution costs”.[3]
[1] This aspect of the matter is discussed below.
[2] By virtue of s 18A Criminal Law (Sentencing) Act 1988.
[3] This aspect of the matter is discussed below.
Principles applicable to each of the grounds of appeal
The following principles are applicable to each of the grounds of appeal.
The application of the “Double Jeopardy principles”
The respondent, a person who has never been incarcerated, faced the prospect of incarceration before the Magistrate but received a suspended sentence; the prosecution now seek to overturn that disposition in his favour and have a period of incarceration imposed. The present is therefore the central case to which the double jeopardy principles apply.
In Police v Cadd, a majority of the Full Court held that the double jeopardy principles apply to appeals from decisions of Magistrates.[4] Doyle CJ stated:
[4] (1997) 69 SASR 150 (Doyle CJ at 156-158); (Duggan J at 172); (Mullighan J at 173-174).
In Everett v The Queen (1994) 181 CLR 295 the High Court dealt with the exercise of the jurisdiction, now common in Australia, for Courts of Criminal Appeal to grant leave to the prosecution to appeal against sentence. The majority (Brennan, Deane, Dawson and Gaudron JJ) said (at 299-300):
Such a jurisdiction has become commonplace throughout this country and the common law world. Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognise that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a ‘court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified’. In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293:
an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.
The reference to ‘matter of principle’ in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy in sentencing standards which Barwick CJ saw as constituting ‘error in point of principle’. (Footnotes omitted.)
In the present case it was argued that the same approach should be taken in considering an application by the prosecutor for leave to appeal from a single judge to the Full Court, and by a single judge and by the Full Court before interfering with a sentence imposed by a magistrate.
Before dealing with the submission, I repeat that under s 42 of the Magistrates Court Act an appeal lies as of right against an acquittal as well as against a sentence.
The Solicitor General, who appeared for the prosecutor, argued that the correct approach in appeals against a sentence imposed by the Magistrates Court is the approach taken in dealing with any discretionary decision. That is, that it is not enough that the court considers that it would have imposed a different sentence. The appellate court interferes only if satisfied that the magistrate was in error in acting on a wrong principle or in error in wrongly assessing some aspect of the evidence, or if the sentence itself appears to be so excessive or inadequate as to manifest such error. He argued that what the High Court said in Everett v The Queen is not applicable to appeals from a Magistrates Court. That approach, he submitted, rests in large part upon the requirement to obtain a grant of leave before there can be a prosecution appeal against the inadequacy of a sentence. He also submitted that the concept of double jeopardy, which has played a part in the reasoning of the High Court, has no application in the case of appeals from the Magistrates Court, there being an appeal as of right from an acquittal and from a sentence.
The point is one which does not appear to have arisen previously for authoritative determination in this State.
In my opinion the submission advanced by the Solicitor General must be rejected.
In Griffiths v The Queen the High Court was dealing with an appeal against sentence as of right conferred upon the Attorney-General for New South Wales. To my mind it is clear that in Everett the High Court was approving of the reasoning in Griffiths, and that reasoning cannot be regarded as restricted to cases in which leave to appeal is required. I refer in particular to the judgment of Barwick CJ in Griffiths (at 309-310). The judgment of Deane J and McHugh J in Malvaso v The Queen (1989) 168 CLR 227 was referred to with approval by the majority in the passage from Everett cited above. In the course of their judgment, and immediately before the passage cited in Everett and set out above, they said (at 234), referring to the judgment of Barwick CJ in Griffiths:
… it should be accepted as representing general and authoritative guidance to the Courts of Criminal Appeal of this country. It is of particular importance in a case such as the present where an appeal by the Attorney-General against sentence lies only pursuant to a grant of leave …
It is apparent from this passage that they did not restrict the application of the judgment of Barwick CJ to the consideration of leave to appeal. I mention also that in R v Tait (1979) 46 FLR 386, where these issues were canvassed, and where a Crown appeal against sentence was said to raise “considerations which are not present in an appeal by a defendant seeking a reduction in his sentence” (at 388), the court was again dealing with an appeal as of right and not by leave: see also R v P (1992) 39 FCR 276 at 283.
For those reasons I conclude that the principles stated by the High Court in Everett cannot be confined to appeals by leave or to appeals from courts not being courts of summary jurisdiction. It follows that they apply in relation to appeals from the Magistrates Court.
It was clear that counsel for the appellant was unaware of the above principles, or of their application to this appeal under s 42 of the Magistrates Court Act 1991.
The correct approach to the “suspension of sentence decision” and to the principles adumbrated in House v The King
One must have regard to both the correct approach to the “suspension of sentence decision” and to the principles adumbrated in House v The King[5] concerning “appellate review of such a decision”. There are many statements concerning each of those topics, but a very recent decision dealing with both of them is Lombard v Police where Doyle J stated:[6]
The determination of whether there is good reason to suspend involves the exercise of a broad discretion on the part of the sentencing judge, having regard to the full range of sentencing considerations.[7] As such, this appeal from the Magistrate’s refusal to suspend the sentence of imprisonment that he imposed is governed by the principles in House v The King.[8] These principles require satisfaction that the sentencing judge made an error of principle; took account of an irrelevant consideration; failed to take account of a relevant consideration; made a material error of fact; or reached a decision that was plainly unjust or unreasonable.
To contend, or establish, merely that the sentencing judge gave inadequate or insufficient weight to a particular consideration is not sufficient for the purposes of House v The King. Read literally, the appellant’s appeal grounds do not therefore contend any relevant error on the part of the Magistrate. However, even on a broad reading of those grounds, for the reasons that follow, I do not accept that any error has been established. I am not persuaded that in exercising his discretion not to suspend the appellant’s sentence of imprisonment the Magistrate made any error of principle, overlooked any relevant consideration, or otherwise reached a conclusion that was plainly unjust or unreasonable. The decision not to suspend the appellant’s sentence of imprisonment was an appropriate exercise of his Honour’s discretion.
[5] (1936) 55 CLR 499.
[6] [2016] SASC 179, [12]-[13].
[7] R v O’Toole [2013] SASCFC 18, [50].
[8] House v The King (1936) 55 CLR 499, 504-505.
With respect, that passage is wholly accurate. The latter part happens to foreshadow my view of the present grounds of appeal. I now turn to them.
Ground 1 of appeal
Ground 1 of appeal asserts as follows:
1. One of the main reasons Magistrate Sprod gave for suspending the six month period of imprisonment in its’ entirety was that RSPCA (SA) did not oppose the suspension of the sentence. His Honour erred in that RSPCA (SA) had always sought an immediate period of imprisonment.
It is the fact that the Magistrate mistakenly stated in the course of his judgment that the prosecutor did not oppose suspension of the sentence; his Honour added as an addendum: “Since publishing those reasons I have reviewed the transcript and acknowledge that I was in error when I proceeded on the basis that the prosecution did not oppose suspension of any term of imprisonment, I would have suspended the sentence anyway”.
While the attitude of prosecution counsel to suspension is not irrelevant, it is the Magistrate’s role to come to his own decision and not rely on the expressed views of parties or advocates. Thus in R v Malvaso, King CJ (with whom Cox and O’Loughlin JJ agreed) stated:[9]
The prosecution has a role in the sentencing process which consists of presenting the facts to the Court and of making submissions which it thinks proper on the question of what sentence ought to be imposed. The decision as to what sentence is to be imposed is, however, entirely a matter for the Court which may, of course, be influenced by the arguments that are placed before it by the prosecution as well as by the defence, but must never be influenced by the attitudes or opinions as distinct from the arguments of either. In particular it must be stressed that the attitude of the prosecution towards a particular proposed course of action in relation to sentence is, as such, irrelevant; the view of the prosecution has no greater weight than the arguments advanced in support of that view. These propositions are elementary and fundamental propositions relating to the administration of criminal justice by independent courts, but their express elaboration may assist in clarifying the confusion of thought which lay at the root of some of the argument addressed on the present appeal.
[9] (1989) 50 SASR 503, 509-510. An appeal to the High Court in Malvaso v The Queen (1989) 168 CLR 227 was allowed, but the above statement was not thereby affected.

In similar vein, in R v Nemer, Doyle CJ stated:[10]
In sentencing an offender the court must act according to law. The court must reach its own conclusion on the factual basis on which sentence is to be passed, and must exercise its own judgment and discretion in arriving at the appropriate sentence. As has been said, the court exercises its power and makes its decision acting in the public interest: Malvaso v The Queen (1989) 168 CLR 227 at 233 (Malvaso). The Director of Public Prosecutions has a duty to assist the court in the sentencing process. In the discharge of that duty the Director puts submissions to the court, but those submissions are merely matters to be considered by the court, to be given such weight as they deserve. The court is not bound in any way by the submissions of the Director, nor is the Director’s attitude to a given case a matter that should influence the court …
[10] (2003) 87 SASR 168, 173.
And in Clark v Police, in rejecting an argument by a defendant appellant that the Magistrate had erred in failing to take in to account the position of the prosecutor in not opposing suspension of sentence, David J stated:[11]
[15] In my view, that argument has no validity. The attitude of a prosecutor at sentencing may be helpful to a magistrate or judge, but its use can be no more than that … The exercise of the discretion whether or not to suspend a sentence is the magistrate or judge’s alone. To inform the magistrate or judge that the discretion to suspend was open may be of assistance; to be contrasted to a situation where as a matter of law the discretion is not open. However, it is no more than that.
[11] [2008] SASC 146.
Of course, judicial officers who have determined to suspend a sentence do have the habit of carefully recording the fact when the prosecutor concedes that suspension is not opposed. However, the reason is not (as an inexperienced prosecutor might possibly imagine) to thereby emphasise how important such a factor was to the sentencing decision, but rather that the decision of the prosecution to not oppose such a course may virtually ensure that the prosecution will not be able to appeal against what the Magistrate considers to be a just result, namely a suspended sentence.[12]
[12] The statements to this effect are legion; two of the best known are The Queen v Wilton (1981) 28 SASR 362, 367-368 (King CJ, with whom Mitchell and Williams JJ agreed) and Everett v The Queen (1994) 181 CLR 295, 303 (Brennan, Deane, Dawson and Gaudron JJ).
In summary, if, as happened here, a Magistrate in fact misunderstands the attitude of prosecution counsel, the Magistrate’s later express statement that “he would have come to the same decision in any event” should be accepted without question. A Magistrate who had considered that there was good reason to suspend a sentence, and therefore did so, was highly unlikely to have taken the opposite course just because a prosecutor “opposed” such disposition (with or without various vituperative descriptors such as “strongly”, “vehemently” etc).
In any event, in the present case one can be doubly confident of the correctness of the Magistrate’s assurance that he would have suspended in any event because the review of the facts and circumstances of the case necessitated by the other grounds of appeal in fact confirms that the considerations militating in favour of suspension outweigh those militating against suspension by a very clear margin.
I reject ground 1 of appeal.
Ground 2 of appeal
2. His Honour placed too great a weight on the defendant’s intention to euthanase the dog to “prevent it from attacking and causing harm to other members of the public”. This went against the evidence that the dog was chained-up at the time and therefore posed no further risk.
Paragraphs 4 and 5 of the respondent’s outline of argument appear to submit that the Magistrate’s statement at judgment [12], “sought to euthanize his dog to prevent it from attacking and causing harm to other members of the public” in some way conflicts with his Honour’s previous statement at judgment [8] that the dog was chained up (and hence not presenting an imminent risk).
This is to take far too narrow a view. What had happened on 5 April 2014 was that a curious young child had approached the chained up dog and had been severely mauled, despite the presence in the near vicinity of the child’s two parents as well as the respondent and his wife. The mother of the child had come to its rescue and was also injured. On any fair reading of the material before the Court, the respondent was traumatised by the attack and deeply concerned that the same thing might happen in the future to one of his own children (then aged 3, 6 and 7 years respectively). Thus the respondent stated:
During the evening My Rottweiler dog savagely attacked and mauled Mr Moran’s son, Nate who was 2 years old at the time. This was unexpected and sudden, I cannot describe the myriad of emotions I felt when Tara lifted Nate’s Blood soaked t-shirt to reveal the wounds. I could see muscle, fat and what appeared to be tendon tissue through the large lacerations caused by the canine teeth, I immediately felt that the dog was dangerous and a threat. It was agreed that the wounds were severe enough to be life threatening so ‘000’ was called to ensure immediate medical attention for the infant male.
The dog was a much loved member of the family. So I spoke to my wife and it was agreed that the risk of not immediately destroying the dog was unacceptable given that our family consists of young children ages at the time 3, 6, and 7.
The correct view of the situation is revealed by the very statement by the Magistrate at [12] complained of by the respondent, when it is read in its proper surrounding context. Thus, his Honour there said:
[12] Generally speaking, the cases referred to me were cases where sentences of imprisonment were imposed, either with time to be served, or suspended. Immediate terms of imprisonment followed in cases where the defendant in those cases had deliberately intended to cause substantial pain and suffering to the animal in question. This matter is different. Here the defendant, in a very inappropriate manner, sought to euthanize his dog to prevent it from attacking and causing harm to other members of the public in circumstances where it had already bitten a child and the child’s mother. The photograph of the child’s injuries, which is on the court file, show not insignificant injuries and must have been very distressing to all of those concerned. It was in that distressed state that the defendant made the very inappropriate decision to euthanize the dog when very obviously, there were other alternatives available to him and the method that he chose might be considered by some to be somewhat barbaric. That said, the animal very obviously suffered considerable pain and discomfort over a not insubstantial period of time.
In this passage, the Magistrate expressly notes that “very obviously, there were other alternatives available to him”, thus debunking any suggestion that his Honour mistakenly thought that there was an immediate threat of further biting. Further, his Honour’s final words, “the animal very obviously suffered considerable pain and discomfort over a not insubstantial period of time” make it plain that his Honour was very much alive to that aspect of the matter, which takes us to ground 3 of appeal. I reject ground 2 of appeal.
Ground 3 of appeal
Ground 3 of appeal appears as follows:
3 His Honour placed too little weight on the high level of suffering experienced by the animal.
(i)His Honour stated that “If I were of the view that the defendant deliberately set out to cause the animal pain, discomfort and distress, I would have no hesitation in [ordering the defendant to serve a period in custody immediately]”. His Honour further commented that the defendant’s decision to euthanize the dog with a bow and arrow was a “very inappropriate decision” when “very obviously, there were alternatives available to him”. Further, His Honour stated that the method chosen by the defendant to euthanase his dog “might be considered by some to be somewhat barbaric”.
(ii)In all these circumstances, His Honour should have sentenced the defendant on the basis that that the defendant’s deliberate actions in shooting the dog with a bow and arrow were likely to, and did in fact, cause the dog significant pain and distress.
This ground is a little difficult to understand. The Magistrate’s statements here reproduced within ground 3(i) itself (coupled with other statements by his Honour referred to above) make it perfectly plain that his Honour did place real weight on the matter of harm to the dog and its suffering. Indeed, the appellant did not suggest on appeal that his Honour failed to take into account any aspect of that matter.
But at ground 3(ii), the appellant proceeds to assert that “[i]n all these circumstances, his Honour should have sentenced the defendant on the basis that that the defendant’s deliberate actions in shooting the dog with a bow and arrow were likely to, and did in fact, cause the dog significant pain and distress.”
The fact is that the Magistrate did sentence on the basis that the respondent’s action was deliberate (in the sense of voluntary) and that the dog did thereby suffer harm, pain and distress.[13] The Magistrate clearly did take into account that there were other options open, and that the use of the bow and arrow was highly inappropriate. And further, his Honour specifically noted that “if I were of the view that the defendant deliberately set out to cause the animal pain, discomfort and distress, I would have no hesitation in (imposing a custodial sentence)”.
[13] Magistrate’s reasons at [12]: “the animal very obviously suffered considerable pain and discomfort over a not insubstantial period of time”.
What the ground of appeal as drafted ignores is that his Honour took into account all the facts of the case and properly and judicially balanced those matters relied upon by the prosecutor against the cumulative effect of the further facts that:
-the dog attack led to a fraught atmosphere brought about by: the shock of the attack itself; the observed serious injuries to the child; the calling of an ambulance; the reactions of the child’s mother (who was also bitten by the dog) and her husband and the respondent’s own wife and children;
-the respondent was upset and distressed and reacted to a very difficult situation not of his making;
-he was genuinely concerned with the welfare of the injured child and mother and particularly the future welfare of his own children;
-although he should have adopted different means of dealing with the situation, he did not deliberately set out to “punish” the dog by inflicting pain, discomfort or distress;
-he attempted to perform euthanasia by what he thought (wrongly as it happened) would be an efficient method;
-he thought that he had killed the dog; and
-he did not know until much later that the dog had in fact survived the shooting for a prolonged period and had thereby suffered pain.
Having regard to the combination of those circumstances, one can understand the subjective reaction by the respondent that something drastic needed to be done straight away, and the unfortunate selection of an inappropriate course of action being made under the pressure of the moment. The Magistrate acted well within his discretion in taking the view that there was good reason to suspend the sentence.
I reject ground 3 of appeal.
Ground 4 of appeal
Ground 4 of appeal appears as follows:
4. Due to the seriousness of the offending, the defendant should have been prevented from owning any animals until further order.
The facts are that the respondent has been deprived of being able to own a pet for five years in circumstances where he loved his dog; was acutely aware that his wife and three young children also loved the dog; but subjectively thought that he should euthanase it in the interest of the future safety of his children.
If such an order was to be made at all, its duration was a matter for the Magistrate’s judgment. No cogent argument has been advanced to establish that his Honour erred in exercising his discretion in a way adumbrated in House v The King. I reject ground 4 of appeal.
Some final words
Although there is no defence appeal (and such an appeal would now be very much out of time), I will briefly mention two matters which may arise again in future cases and are worth commenting on.
Double convictions and punishment – Pearce v The Queen
The respondent was charged with two offences, one against s 13(1) and one against s 13(2) of the Act. As Blue J recently observed in Sutcliffe v RSPCA (SA) Inc,[14] the two offences are the same, with the elements of the less serious offence (s 13(2)) being wholly contained within the less serious offence (s 13(1)). His Honour there stated:
[58]    Subsection 13(1) creates a different and more serious offence to that created by subsection 13(2). A comparison of the two subsections shows that they both have in common as an element of the respective offences created by them ill treatment by a person of an animal, but the offence created by subsection (1) contains two additional elements, namely:
1      the ill treatment causes the death of or serious harm to the animal (a physical element); and
2      the person intends to cause or is reckless about causing the death of or serious harm to the animal (a mental element).
…
[62]The evident purpose of subsection 13(2) is to create a lesser offence than the offence created by subsection 13(1), containing only the first of the three elements of the more serious offence and without the causation or intention or recklessness elements of the more serious offence. Section 13 proceeds on the basis that the owner of an animal has an affirmative responsibility to look after it.
[14] [2016] SASC 125.
Blue J’s analysis of the position is clearly correct. It follows that in a case of the present type where there was only one transaction relied upon, it was proper to charge both an offence against s 13(1) and an offence against s 13(2) of the Act, but only as alternatives. Charging such alternative charges enables a defendant to consider his position as to whether he will plead guilty to one of the two charges.
If the defendant decides to plead guilty to the more serious offence, no plea should be taken concerning the less serious charge, which should be dismissed. If the defendant is willing to plead only to the less serious charge, it will be up to the prosecutor as to whether such a plea will be taken in satisfaction of the complaint. If the prosecutor is so willing, the plea of guilty to the less serious offence will be taken; and no plea should be taken concerning the more serious charge, which should be dismissed. If the prosecutor is not so willing, the trial will proceed on the chosen pleas of the defendant to the two charges and it will be for the Magistrate to determine whether he will find the defendant guilty of count 1, or of count 2, or of neither – but not of both.
Thus in Pearce v The Queen, McHugh, Hayne and Callinan JJ stated:[15]
[40]    To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
…
[42]    It is clear in this case that a single act (the appellant’s inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by “excessive subtleties and refinements”. It should be approached as a matter of common sense, not as a matter of semantics.
[43]    The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.
[44]    Does that matter if, as was the case here, an order was made that the sentences be served concurrently?
[45]    To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
[46]    Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
[47]    Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.[16]
[15] (1998) 194 CLR 610.
[16] It is, of course, the case that the present case is actually a fortiori to the subject case in Pearce in that here the elements of the lesser charge are entirely contained within the greater charge, whereas this was not so in Pearce where “the elements overlapped but were not identical” (1998) 194 CLR 610, 613.
In future cases it must be borne in mind that there cannot be convictions of both an offence against s 13(1) and an offence against s 13(2) of the Act based on the same incident as occurred in the present case.
Imposition of $100 for “prosecution costs”
It is noted above that the respondent was ordered inter alia to pay $100.00 for “prosecution costs”. In Police v Holloway; Police v Vithoulkas,[17] it is explained that the award of a maximum amount of $100.00 for “prosecution costs” may only be made in cases which are prosecuted by police officers (being persons who are not admitted legal practitioners and therefore have no right to an award by a court of “legal costs”).[18] The power to make such an award is found in s 189A of the Summary Procedure Act 1921 which provides as follows:
[17] [2013] SASC 2.
[18] In Holloway it was held that in cases where police officers prosecute, the award is limited to $100 no matter how long the case lasts.
189A—Costs payable by defendant in certain criminal proceedings
…
(2)     If the Court finds a defendant guilty in proceedings for an offence prosecuted by a police officer, the Court must, subject to subsection (3), make an order for costs against the defendant for—
(a)if an amount is prescribed by regulation for the purposes of this subsection—the prescribed amount; or
(b)     if no such amount is prescribed—$100.
(3)     If the prosecution agrees that an order under subsection (2) should not be made, the Court may instead make some other order as to costs (or may make no order as to costs).   (Emphasis added)

This is the genesis of the present order made against the respondent to pay “$100 prosecution costs”. Such an order is made against all defendants prosecuted by police officers, which cases constitute the vast majority of cases disposed of by Magistrates. However, that provision simply cannot apply to the present case where, unusually, the respondent was not prosecuted by a police officer. Indeed, it was the very fact that he was prosecuted by an admitted legal practitioner rather than a police officer that enabled an award of $3,682.75 to be made against him; but there was no jurisdiction to make both such an award and an order that the respondent pay “$100 prosecution costs”.
I add that both counsel stated that arrangements would be made to rectify this error so that the respondent would not be liable to pay the $100. I was not requested to make any order concerning the matter.
Disposition of the appeal
As appears above, none of the grounds of appeal were made out and the appeal was dismissed with costs.