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
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…
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- AGLC
- Stewart v Nitkiewicz (RSPCA Inspector) [2022] QDC 256
- Case
- [2022] QDC 256
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
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