Stewart v Nitkiewicz (RSPCA Inspector) - [2022] QDC 256

DISTRICT COURT OF QUEENSLAND

CITATION:

Stewart v Nitkiewicz (RSPCA Inspector) [2022] QDC 256

PARTIES:

KYLIE MAREE STEWART

(appellant)

v

SHAREE NITKIEWICZ (RSPCA INSPECTOR)

(respondent)

FILE NO:

234/21

DIVISION:

Appeal

PROCEEDING:

Appeal pursuant to section 222 Justices Act 1886 (Qld)

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

18 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

29 July and 4 November 2022

JUDGE:

Dearden DCJ

ORDERS:

1.   Appeal granted in part.

2.   Order that the prohibition order imposed by the learned acting Magistrate at the Brisbane Magistrates Court on 27 August 2021 be amended to reduce the term of the prohibition order from five years to three years.

3.   Otherwise affirm the penalty, costs order, disposal and prohibition orders made by the learned acting magistrate at the Brisbane Magistrates Court on 27 August 2021.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant plead guilty to two charges relating to breaching her duty of care to animals contrary to section 17(3)(a) of the Animal Care and Protection Act 2001 (Qld) – where the learned acting magistrate imposed two years of probation with no conviction recorded – where the learned acting magistrate imposed a disposal order in respect of the four horses and a prohibition order against the appellant until 26 August 2026 – where the appellant was ordered to pay costs – where the appellant submits the prohibition and disposal orders are manifestly excessive – whether the sentence imposed was manifestly excessive

LEGISLATION:

Animal Care and Protection Act 2001 (Qld) ss 3, 17, 182, 183, 185

Justices Act1886 (Qld) s 222

CASES:

Forrest v Commissioner of Police [2017] QCA 132

Fuller v RSPCA [2021] QDC 94

McDonald v Queensland Police Service [2017] QCA 255

R v Ferrari [1997] 2 Qd R 472

Smith v Ash [2011] 2 Qd R 175

COUNSEL:
E J Lewsey for the appellant

L Marshall for the respondent

SOLICITORS:
Bosscher Lawyers for the appellant

RSPCA for the respondent

Introduction

On 27 August 2021, the appellant entered a plea of guilty to the following charges in the Brisbane Magistrates Court:-
Breach of duty of care to animals contrary to section 17(3)(a)(i) of the Animal Care and Protection Act 2001 (Qld) (‘ACPA’) by failing to take reasonable steps to provide for the animals’ needs for food in a way that is appropriate; and
Breach of duty of care to animals contrary to section 17(3)(a)(iv) of the ACPA by failing to take reasonable steps to provide to the animals’ needs for treatment of disease or injury in a way that is appropriate.
The learned acting magistrate imposed a two-year probation order, without recording a conviction,[1] and pursuant to the ACPA, made a disposal order in respect of the four horses, and a prohibition order against the appellant until 26 August 2026,[2] (i.e. a five year prohibition order).
[1]Decision p.2, ll 9-10.
[2]Decision p.3, ll 1-2.
The appellant was ordered to pay the…

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 Stewart v Nitkiewicz (RSPCA Inspector)

Details

AGLC: Stewart v Nitkiewicz (RSPCA Inspector) [2022] QDC 256
Case: [2022] QDC 256
Decision Date: 18 November 2022

CaseChat Overview and Summary

The case of Stewart v Nitkiewicz (RSPCA Inspector) involved an appeal against a sentence imposed by the Brisbane Magistrates Court. The appellant, Stewart, pleaded guilty to charges of breaching her duty of care to animals under the Animal Care and Protection Act 2001 (Qld). The learned acting magistrate sentenced Stewart to two years of probation with no conviction recorded, a disposal order in respect of the four horses, and a prohibition order against Stewart until 26 August 2026. Stewart contested the excessiveness of the prohibition and disposal orders.

The court was required to determine whether the prohibition and disposal orders were manifestly excessive. The respondent argued that the learned acting magistrate was justified in imposing the disposal order due to the serious nature of the circumstances, the poor health of the animals, and the appellant's inability to provide appropriate care for the horses at the time. The court agreed that the disposal order was justified, given the very serious circumstances. However, the court found that the prohibition order was more complicated, as it needed to be "just... in the circumstances." The court acknowledged the appellant's significant financial pressures, health issues, dependent children, and lack of criminal history but balanced these against the appellant's plea of guilty and willingness to undertake a probation order.

The court concluded that the prohibition order was excessive, given the appellant's circumstances and the fact that there was at least some reasonable expectation that the appellant's capacity to care for animals would significantly improve before the conclusion of a five-year prohibition period. The court granted the appeal in part and reduced the term of the prohibition order from five years to three years. The court otherwise affirmed the penalty, costs order, disposal, and prohibition orders made by the learned acting magistrate at the Brisbane Magistrates Court on 27 August 2021.

Orders

Orders of the court

1. Appeal granted in part.

2. Order that the prohibition order imposed by the learned acting Magistrate at the Brisbane Magistrates Court on 27 August 2021 be amended to reduce the term of the prohibition order from five years to three years.

3. Otherwise affirm the penalty, costs order, disposal and prohibition orders made by the learned acting magistrate at the Brisbane Magistrates Court on 27 August 2021.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent submits, in respect of the disposal order, that there had been a lengthy history of underweight horses, there was evidence of the appellant’s lack of financial ability to care for the horses, the appellant’s status as a bankrupt, and in those circumstances, argues that the learned acting magistrate was correct to be concerned about the appellant’s ability to feed the horses, particularly given that the horses the subject of the disposal order were “heavy breed” horses, expensive to care for and feed; that the offending (both failure to feed and failure to treat) were caused in part by the appellant’s financial difficulties; and although the appellant deposed to having a new fulltime job, she did have a fulltime job at the time of the offending but still could not appropriately feed or care for the horses, and did not, in the alternative, sell or otherwise surrender the horses.Conclusion With respect, given the criteria that the learned acting magistrate was obliged to be satisfied of, on the balance of probabilities, it is clear that the disposal order was justified, given the very serious nature of the circumstances in which the relevant animals were located, the very poor health in which they were located, the inability at the time for the appellant to provide appropriately for the welfare of the animals, and her apparent lack of ability and capacity to care for those horses at that time.[42] In all of those circumstances, it was clearly open for the learned acting magistrate to conclude, on balance, that the animals the subject of the disposal order should not be returned to the appellant.[42]ACPA s 185(1)&(2)(a)-(d). The issue though, with respect, is more complicated regarding the prohibition order. Although the criteria for making a prohibition order is the same criteria as for making a disposal order,[43] and despite the reliance at sentence on the observation by Smith DCJA in Fuller v RSPCA [2021] QDC 94,[44] that “generally five-year orders are made where there are a number of animals or where for example [an] animal is euthanised”, it must still be necessary for the prohibition order, if made, to meet the specific circumstances of the offender in a way that is “just … in the circumstances”. [45][43]ACPA s 185.[44]Fuller v RSPCA [2021] QDC 94 [114].[45]JA s 185(1). In this case, the appellant had undoubtedly been suffering from significant financial pressures, had a number of health issues, had dependent children, had a partner with unreliable and inconsistent work, and had been the subject of a number of complaints to the RSPCA, as well as becoming bankrupt in 2019, shortly after the RSPCA seized the horses. However, this needed to be balanced against the appellant’s plea of guilty, her lack of criminal history, her willingness to undertake a probation order for two years (which required her consent), in circumstances where there was at least some reasonable expectation that the appellant’s capacity to appropriately care for animals in her possession, both financially and personally, would significantly improve before the conclusion of a five year prohibition period.

Ratio Decidendi

Legal Principle Established

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CITATION:	Stewart v Nitkiewicz (RSPCA Inspector) [2022] QDC 256
PARTIES:	KYLIE MAREE STEWART (appellant) v SHAREE NITKIEWICZ (RSPCA INSPECTOR) (respondent)
FILE NO:	234/21
DIVISION:	Appeal
PROCEEDING:	Appeal pursuant to section 222 Justices Act 1886 (Qld)
ORIGINATING COURT:	Brisbane Magistrates Court
DELIVERED ON:	18 November 2022
DELIVERED AT:	Brisbane
HEARING DATE:	29 July and 4 November 2022
JUDGE:	Dearden DCJ
ORDERS:	1. Appeal granted in part. 2. Order that the prohibition order imposed by the learned acting Magistrate at the Brisbane Magistrates Court on 27 August 2021 be amended to reduce the term of the prohibition order from five years to three years. 3. Otherwise affirm the penalty, costs order, disposal and prohibition orders made by the learned acting magistrate at the Brisbane Magistrates Court on 27 August 2021.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant plead guilty to two charges relating to breaching her duty of care to animals contrary to section 17(3)(a) of the Animal Care and Protection Act 2001 (Qld) – where the learned acting magistrate imposed two years of probation with no conviction recorded – where the learned acting magistrate imposed a disposal order in respect of the four horses and a prohibition order against the appellant until 26 August 2026 – where the appellant was ordered to pay costs – where the appellant submits the prohibition and disposal orders are manifestly excessive – whether the sentence imposed was manifestly excessive
LEGISLATION:	Animal Care and Protection Act 2001 (Qld) ss 3, 17, 182, 183, 185 Justices Act1886 (Qld) s 222
CASES:	Forrest v Commissioner of Police [2017] QCA 132 Fuller v RSPCA [2021] QDC 94 McDonald v Queensland Police Service [2017] QCA 255 R v Ferrari [1997] 2 Qd R 472 Smith v Ash [2011] 2 Qd R 175
COUNSEL:	E J Lewsey for the appellant L Marshall for the respondent
SOLICITORS:	Bosscher Lawyers for the appellant RSPCA for the respondent