Salmon v Town of Cottesloe - [2004] WASCA 66

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SALMON -v- TOWN OF COTTESLOE [2004] WASCA 66

CORAM: PULLIN J

HEARD: 29 MARCH 2004

DELIVERED : 29 MARCH 2004

FILE NO/S: SJA 1002 of 2003

BETWEEN: JOHN BALLIOL SALMON
Appellant
AND
TOWN OF COTTESLOE
Respondent

Catchwords:

Criminal law and procedure - Particular offences - Dog Act 1976 - Attack by dog - Turns on own facts

Legislation:

Dog Act 1976 (WA), s 33D

Sentencing Act 1995 (WA), s 6, s 44

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr J C W Skinner

Solicitors:

Appellant: In person
Respondent: McLeod & Co

Case(s) referred to in judgment(s):

Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Lovell v Lovell (1950) 81 CLR 513
Lowndes v The Queen (1999) 195 CLR 665

Case(s) also cited:

Harvey v Robertson [1999] WASCA 120
Staunton v The Queen [2004] WASCA 21

PULLIN J: This is an appeal against a decision of Mr Black SM dated 27 August 2002, whereby the learned Magistrate convicted the appellant on his own plea of guilty of an offence under s 33D of the Dog Act 1976 and imposed a fine of $1,000 and ordered the appellant to pay costs of $447.70.
The first ground of appeal is that the sentence was manifestly excessive in the circumstances. The precise charge against the appellant was that he "was a person liable for the control of a dog which attacked a person within the district of the Town of Cottesloe, contrary to Section 33D(1) of the Dog Act 1976."
The appellant was summonsed to appear in the Court of Petty Sessions and endorsed a written plea of guilty and sent it to the court. The Magistrate accepted the plea of guilty. The facts were then read out to the court by the prosecutor in the following terms:
"The facts are, sir, in June of this year the town received a complaint concerning this particular attack in Federal Street, Cottesloe, on the 25th of June. The complainant was in that street reading meters for Western Power at the time. She was walking out of the house at number 9 after reading the meter, when she heard the dog kept at number 7 growling and barking. She was familiar with the dog from a previous incident at that address so she crossed the road to put some distance between it and herself.
The dog, which is a female bull terrier, ran out of the open yard at house 7 and charged across the road at the complainant. The dog was snarling and growling. As it drew close to her, as she'd done before, she shouted at it and the dog stopped its charge. It stood approximately a metre away from her, snarling and growling.
The complainant then entered the house across the road to get away from the dog. At that stage it retreated onto the front verge of its own property. She tried to walk back out of the yard of the house opposite. The dog again charged across the road at her. She again yelled at it and retreated into the next house to get away from the dog.
At that stage a man came out of the house at 7 Federal Street. The dog trotted back to the verge of the property. That man was the defendant. He looked across at the complainant, then got into his car and drove off. Each time the complainant proceeded into the street in Federal Street, the bull terrier would charge across the road snarling and barking - - growling at her.
Eventually she was forced to leave the street in an attempt to avoid the dog. She walked to the nearest cross street and headed down that street, but the dog had gone down a laneway to the next street and headed her off; again came at her growling and snarling. She managed to ward it off by shouting and kicking at it.
In view of the number of attacks by the dog on that day, and indeed the previous problem she'd had with it, the complainant called rangers. They attended. They went to the house where the dog's kept. At that time the dog was aggressive both to the complainant and the ranger. They put the dog back on the property.
Rangers have often seen the dog roaming the street outside its home property. There was a previous incident concerning the dog attacking the same complainant, again when she was reading meters. That was the 18th of June 2001.
The defendant was interviewed by town rangers later on. He admitted he owned the dog. His comment was, 'It's basically a good dog which wouldn't bite anybody, but growled at persons in uniform.'
The maximum penalty is $10,000. There aren't prior convictions and I'd seek costs of 447.70."
Section 44 of the Sentencing Act1995 provides that if the statutory penalty for an offence is a fine but not imprisonment, then the court may employ any of the sentencing options set out in s 39(2)(a), (b) and (c). These options are a spent conviction order, a CRO, or a fine.
Section 6 of the Sentencing Act 1995 provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence, and the seriousness of the offence must be determined by taking into account:
(a)the statutory penalty for the offence;
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;
(c)any aggravating factors; and
(d)any mitigating factors.
Section 8 provides that a plea of guilty is a mitigating factor, and the earlier in the proceedings it is made, the greater the mitigation.
The appellant chose not to appear at the hearing before the Magistrate or to instruct counsel to appear, and put no mitigating circumstances before the court, other than the fact which was obvious, namely that the appellant pleaded guilty at an early stage. A letter was sent by the appellant to the court, and it was placed before the Magistrate before he imposed sentence. I have not been provided with a copy of that letter, but I accept, from what the appellant has told me, that it was a letter which expressed regret for the incident.
The Magistrate therefore had to decide on an appropriate penalty, ranging from a spent conviction order, a CRO, or a fine. There was no sufficient information before the court on which the Magistrate could make a spent conviction order or a CRO, and so in the particular circumstances a fine was the only option.
Section 33D of the Dog Act covers a range of possible circumstances. It covers the most serious dog attack imaginable, where great injury is done to a person, and at the other end of the range covers a case where a person is briefly chased by a dog but not harmed in any way. It is therefore an offence which will attract markedly different penalties, depending on the facts of each case.
Now, the appellant alleges that the penalty was manifestly excessive. It is settled law that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge or Magistrate exercised his discretion: see Lowndes v The Queen (1999) 195 CLR 665 at 671 to 672.
A sentence may, however, be overturned on appeal if there was some error made in sentencing; error being understood, as was explained in House v The King (1936) 55 CLR 499, and see Lovell v Lovell (1950) 81 CLR 513 at 519 to 520. In addition, a sentence may be reviewable because it is manifestly excessive. In determining whether a sentence is manifestly excessive or not, it is not necessary to attribute some specific error in the reasoning of a sentencing court. If there is a manifestly excessive sentence, it frequently does not admit of amplification, except by stating the respect in which the sentence is excessive. A court reviewing a sentence is not obliged to employ any particular verbal formula, so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration which is appropriate or possible will vary from case to case: see Dinsdale v The Queen (2000) 202 CLR 321 at [6].
To determine whether a sentence is excessive involves considering the matters referred to in Chan v The Queen (1989) 38 A Crim R 337 and the vulnerability of the victim. These considerations are all now set out in statutory form in s 6 of the Sentencing Act.
In this case, the circumstances were that the dog caused no injury and, in fact, made no contact with the complainant. On the other hand, the dog was persistent in its attacks on the complainant. The word "attack" is defined in the s 3(1) of the Dog Act 1976 in this way:
"… in relation to the behaviour of a dog, … includes ‑
(a)aggressively rushing at … any person …"
The facts reveal that this dog did attack the Western Power worker. If the dog had only made one pass at the complainant, then the offence would have been at the very lower end of the range and the fine would have been manifestly excessive. However, the facts read to the court revealed that the dog was persistent in the attention that it paid to the complainant, and even followed her once she had retreated from the street in which the dog had its home.
An aggravating factor was that the appellant was at home, according to the facts read to the court, and the dog was allowed to be free in the street in circumstances where the appellant knew that the dog displayed aggression to people in uniform. The latter point was admitted by the appellant when interviewed by the town ranger.
In this case, a range of fines might properly have been imposed, and in my view this fine was at the high end of that range. However, my conclusion is that it was not manifestly excessive because of the circumstances and factors to which I have referred.
The second ground of appeal is that the appellant pleaded guilty. This is not a complaint that the learned Magistrate made any error, and I need say nothing more about it. The third ground, which is that the complainant was aware of the nature of the dog and was uninjured, seems to be a complaint about the decision to convict. The appellant chose not to contest the case. He tried, and failed in his attempt, to have the case reheard. The appellant is, in effect, seeking to re‑run the case to raise matters which might have been run if he had chosen to plead not guilty in the first place and had chosen to appear at the hearing to defend the case. There was no error by the Magistrate, and therefore no basis for setting aside the conviction.
The appellant has appeared in person before me and has made a series of complaints about alleged unethical behaviour on the part of the local authority and its solicitors. These complaints were not raised at the hearing before the Magistrate, and the complaints were not the subject of any admissible evidence. They were allegations made by the appellant from the bar table. There is nothing to provide any support at all for these allegations on the material before me. I dismiss the appeal.