Sutcliffe v RSPCA (SA) Inc (No 2) - [2016] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
SUTCLIFFE v RSPCA (SA) INC (No 2)
[2016] SASC 190
Judgment of The Honourable Justice Blue
16 December 2016
ANIMALS - VARIOUS STATUTORY PROVISIONS - PREVENTION OF CRUELTY TO ANIMALS - OFFENCES
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - ORDERS AND CONVICTIONS - SENTENCE - FINES - IMPOSITION INSTEAD OF OR IN ADDITION TO IMPRISONMENT
MAGISTRATES - ORDERS AND CONVICTIONS - SENTENCE - COMPENSATION ORDERS
Appeal against penalty.
The appellant was convicted by a Magistrate of two counts of ill-treating cats in contravention of section 13(2) of the Animal Welfare Act 1985. The appellant’s appeal against conviction was dismissed (Sutcliffe v RSPCA (SA) Inc [2016] SASC 125).
The Magistrate imposed a fine of $7,000; ordered that the proceeds of sale of seized cats be paid to the RSPCA; the appellant pay monies for veterinary and boarding costs in respect of cats seized, surrender all animals currently in her care or control and be prohibited from acquiring or having care or control of any animal until further order.
Held (partially allowing the appeal):
1. The Magistrate did not err in the exercise of his discretion to make the surrender order, except that it should be confined to cats (at [18]).
2. The Magistrate did not err in exercising his discretion to make the prohibition order, except that it should be expressed in terms of “care or control” rather than “custody” (at [22]).
3. The Magistrate did not err in making the order for release of the proceeds of sale of the seized cats (at [25]).
4. The Magistrate did not err in making the order in respect of veterinary and boarding costs (at [29]).
5. The fine of $7,000 was manifestly excessive in all the circumstances, including taking into account the forfeiture of the appellant’s cats and the order for compensation (at [36]-[37]). A fine of $3,000 should be imposed.
6. The Magistrate did not err in ordering payment of legal costs (at [40]).
Animal Welfare Act 1985 (SA) s 3, s 13, s 31A, s 31C, s 32A; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A, s 53; Summary Procedure Act 1921 (SA) s 189, referred to.

SUTCLIFFE v RSPCA (SA) INC (No 2)
[2016] SASC 190
Magistrates Appeal:
BLUE J:

This is an appeal against penalty.
The appellant, Glynne Sutcliffe, was convicted by a Magistrate of two counts of ill-treating cats on 2 September 2011 and between 3 September and 17 October 2011 in contravention of sections 13(2) and (3)(b)(i) of the Animal Welfare Act 1985 (SA) (the Act).
The circumstances of the offending are set out in my reasons for judgment dismissing Ms Sutcliffe’s conviction appeal.[1]
[1] Sutcliffe v RSPCA (SA) Inc [2016] SASC 125.
On 16 November 2015, the Magistrate imposed a single penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). The Magistrate imposed a fine of $7,000. The Magistrate also made orders:
1pursuant to subsection 32A(1)(a) and (b) of the Act that Ms Sutcliffe surrender all animals currently in her care or control to the RSPCA within 14 days;
2pursuant to subsection 32A(1)(d) of the Act that Ms Sutcliffe be prohibited from acquiring, or having care or control, of any animal until further order;
3pursuant to subsection 31C(3) of the Act that the proceeds of sale of seized cats of $3,637 held by the Minister be paid to the RSPCA;
4that Ms Sutcliffe pay to the RSPCA $6,830 (reduced from $10,467 by the proceeds of $3,637) for veterinary and boarding costs incurred in respect of cats seized;
5that Ms Sutcliffe pay to the RSPCA $9,500 by way of legal costs;
6that Ms Sutcliffe pay court costs and mandatory Victims of Crime levies.
On 30 November 2015, Ms Sutcliffe filed a notice of appeal in which she appealed against the orders listed at items 1 and 2 above and foreshadowed a larger appeal against the convictions and the entire sentence.
On 30 November 2015, Ms Sutcliffe filed an interlocutory application seeking a stay of the orders listed at items 1 and 2 above pending the hearing of her appeal. On 24 December 2015, a Judge refused the application for a stay.
Subsequently, I heard Ms Sutcliffe’s appeal against her convictions on the basis that it was common ground that her notice of appeal included an appeal against her convictions.
On 11 August 2016, I dismissed Ms Sutcliffe’s appeal against her convictions. Ms Sutcliffe had indicated that she would be unable to attend the delivery of reasons for judgment. I directed that, if she wished to pursue an appeal against penalty, she was to lodge written submissions in support of such an appeal by 18 August 2016. The RSPCA agreed that, if Ms Sutcliffe wished to pursue an appeal against penalty, her notice of appeal would be treated as including an appeal against all penalty orders.
On 18 August 2016, on her application I extended the time for Ms Sutcliffe to lodge written submissions to 16 September 2016. Ms Sutcliffe did not lodge any submissions in support of an appeal against penalty. I then listed the matter for oral submissions on 7 October 2016.
On 7 October 2016, Ms Sutcliffe did not attend. She had not lodged written submissions but had made brief submissions by email. I heard submissions from the RSPCA and reserved my judgment.
Magistrate’s remarks on penalty
The Magistrate referred to his findings contained in his reasons for judgment delivered after the trial. The Magistrate said:
I accept the conditions found by the RSPCA in September to October 2011 had not always existed at your cattery. A number of factors combined to reduce your capacity to care for the cats: your health declined, including arthritis and hip problems which ultimately led to a hip operation in 2013 and your financial position worsened so that you were unable to continue employing anyone to help you clean the cattery from about Easter 2011. However, the fundamental problem was that you had too many cats – as you did not have the cats de-sexed and nor did you separate most females and males – so you relied wholly on a high rate of sale to control the total cat population.
As the owner and the person who had the care of the cats, it was your responsibility to provide them with adequate living conditions. By September 2011 you were, personally and financially, wholly unable to properly care for the cats at your property. If the RSPCA had not have [sic] intervened, this situation would have continued, and most likely, worsened.
Your personal situation is, in a number of respects, difficult. You are 75 years of age and have a number of health problems. They include anxiety, depression, insomnia, and poor mobility. As said, you had hip surgery in 2013 and much earlier, a breast cancer. You have tendered a number of letters from your GP, Dr Llewellyn, from which I take into account the medical information provided.
Your income is the aged pension, about $400 per week. You own your own home and property, but have a loan of $110,000, on which you pay $600 per month, which pays only the interest on the loan.
…
There are a number of factors to consider in sentencing for these charges. First, you are not to be punished or given a greater penalty because you went to trial, although you are not entitled to a discount for a guilty plea. Secondly, there are your personal circumstances, such as your age, poor health and financial situation. Thirdly, the offences cover a period of 45 days, so the offending was not an isolated incident. Whilst many of the 102 cats seized appeared in good condition, some were of ill-health and a number were substantially underweight. Forty two had feline AIDS, although I accept that would not have been apparent to you. As many appeared in good condition, the prevalence of feline AIDS was most likely caused by you keeping too many cats unrestrained, making them prone to fight. Although there was some improvement in the conditions during the 6 ½ week period, overall, the conditions for the cats were plainly inadequate and in some parts of the cattery, particularly on 2 September, the conditions were abysmal. Finally, there are considerations of personal and general deterrence. Certainly, personal deterrence is relevant, given your lack of contrition for this offending, and as you were dealt with for an offence of ill-treatment of a dog, finalised in 2003; but that was a much less serious matter, as indicated by the ‘without conviction’ penalty. Also, in sentencing for an offence of ill-treat an animal, general deterrence is important – that is making it clear to others in the community that the obligations imposed by the AWA on those who have care of animals are taken seriously by the courts.
The Magistrate said that, given the seriousness of the offences and Ms Sutcliffe’s attitude, a bond to be of good behaviour was not an appropriate penalty. Given her ill health, community service was not an appropriate penalty. Given her age and ill health, imprisonment was not an appropriate penalty. The Magistrate said that he considered that a substantial fine was appropriate. While a fine of $10,000 would normally be necessary to reflect the seriousness of the offences, the Magistrate imposed a fine of $7,000 given the financial orders to be made and Ms Sutcliffe’s financial position.
Surrender order
Subsection 32A(1) of the Act provides:
32A—Court orders on finding of guilt etc
(1)A court may, on finding a person guilty of an offence against this Act or on declaring a person charged with an offence against this Act liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935, make 1 or more of the following orders:
(aa)   an order requiring the person to care for any animal owned by the person (whether or not the subject of the offence) in accordance with the conditions of the order (which may include a condition that the care of any such animal be supervised or monitored by an inspector), either until further order, or for the period specified in the order;
(a)     an order directing the person to surrender an animal that is owned by the person and is the subject of the offence to an inspector;
(b)     an order directing the person to surrender any other specified animal owned by the person to an inspector;
(c)     an order directing that any animal owned by the person that has been surrendered or seized under this Act be forfeited to the Crown;
(d)     an order forbidding the person to acquire, or have custody of, any other animal or any other animal of a specified class, either until further order, or for the period specified in the order;
(e)     an order forfeiting to the Crown an object that is the property of the person and is the subject of the offence or used by the person in the commission of the offence.
Section 3 of the Act defines an “owner” in relation to an animal to include:
a person who has the custody and control of the animal
The Magistrate was empowered by section 32A(1)(a) and (b) to make an order directing a person found guilty of an offence against the Act to surrender an animal the subject of the offence or any other specified animal owned by the person. Ownership for this purpose includes custody and control.
The question arises what is the meaning of the adjective “specified” in section 32A(1)(b). Does it mean that the animal or animals the subject of the surrender order must be specified in a manner that uniquely and individually identifies it or them? Alternatively, does it permit the animal or animals to be specified as belonging to a particular species or breed with specified characteristics, such as cats in the custody or control of the defendant?
Humans are typically identified by name and often this is sufficient to uniquely identify a particular human. By contrast, many animals are not identified by name and typically identifying an animal by name would be insufficient to uniquely identify that particular animal. The Act applies to all vertebrates (species of the sub-phylum vertebrata) except humans and fish and the Act and section 32A apply to many small animals which in practice would be very difficult, if not impossible, to identify uniquely on an individual basis. By reference to the evident purpose of the Act, and in particular the purpose of subsection 32A(1), an animal or animals need not be specified in a manner that uniquely and individually identifies the animal or animals. It is sufficient that the animal or animals be identified by reference to species or breed and characteristics such as being in the custody and control of the defendant.
The Magistrate’s order was not confined to cats but referred to animals of any species. No evidence was adduced that Ms Sutcliffe then owned (within the meaning of the Act) any other animal apart from her cats or that, if she did, she was incapable of caring for that animal. The RSPCA has not sought to enforce or act under the order other than in respect of cats. The Magistrate should have confined the surrender order to cats in the care and control of Ms Sutcliffe.
The Magistrate exercised a discretion to make the surrender order. Leaving aside the breadth of the order insofar as it encompassed animals other than cats, there was no error by the Magistrate in the exercise of his discretion. It was a natural consequence of the acceptance by the Magistrate of the prosecution evidence at trial that a surrender order be made.
Prohibition order
Section 32A(1)(d) of the Act empowers a Magistrate to make an order forbidding a person found guilty of an offence against the Act from acquiring, or having custody of, any animal of a specified class, either for a specified period or until further order.
Ms Sutcliffe had been convicted in 2003 of ill-treatment of a dog in 2000. She was convicted by the Magistrate in 2015 of ill-treatment of cats in 2011 and was found by the Magistrate to have been incapable of caring for those cats.
There is an important difference between a surrender order, which has a present application to animals in the ownership of the defendant when the order is made, and a prohibition order, which has a future operation for a specified period or until further order. While a surrender order should generally be confined to animals of a particular species, this constraint does not have the same force in respect of a prohibition order applying until further order. In the latter case, it is open to a defendant to apply to the court to revoke or vary the order in relation to a particular animal or animals of a particular species. The Magistrate had power to make a prohibition order in respect of any animal. However, section 32A(1)(d) refers to forbidding a person having “custody” of an animal, whereas the Magistrate’s order referred to Ms Sutcliffe having “care or control”. The word custody is not defined in the Act. While a person who has care or control of an animal will typically have custody of the animal, the Magistrate’s order should have used the statutory language.
The Magistrate exercised a discretion to make the prohibition order. Leaving aside reference in the order to “care or control” as opposed to “custody”, there was no error by the Magistrate in the exercise of his discretion. It was a natural consequence of the acceptance by the Magistrate of the prosecution evidence at trial that a prohibition order be made.
Disbursement of proceeds of sale
Section 31C of the Act provides:
31C—Dealing with seized animals and objects
(1)The Minister may sell, destroy or otherwise dispose of an animal or object that has been seized under this Act but is no longer required to be retained if—
(a)     the whereabouts of the owner of the animal or object cannot, after reasonable inquiries, be ascertained; or
(b)     the whereabouts of the owner are known but the owner has failed, within 3 clear working days of being given written notice that the animal or object may be collected from a specified place, to collect the animal or object.
(2)If, on application by an inspector, a magistrate is satisfied that—
(a)an animal has been seized and retained under this Act; and
(b)legal proceedings under this Act relating to the animal are pending; and
(c)     in the circumstances, it is impractical or unreasonable for the animal to continue to be retained until the proceedings have been concluded or otherwise terminated,
the magistrate may make an order authorising that the animal be sold, destroyed or otherwise disposed of as the Minister thinks fit.
(3)If an animal is disposed of by sale under subsection (2), the proceeds of the sale are to be held by the Minister until the conclusion or termination of the proceedings when they are to be disbursed in accordance with a further order of the court.
The RSPCA provided to the Magistrate an itemised listing of the proceeds of sale of 15 cats sold by the RSPCA (pursuant to authorisations granted by Magistrates on 6 October and 3 November 2011). This showed total proceeds of sale of $3,637.
The Magistrate made an order that the proceeds of sale of seized cats of $3,637 held by the Minister be paid to the RSPCA. The Magistrate had power pursuant to subsection 31C of the Act to make an order for disbursement of the proceeds. Ordinarily proceeds of sale of animals seized may be expected to be disbursed to the owner subject to defraying costs incurred as a result of the seizure. Here those costs exceeded the proceeds and if the Magistrate had not made the order for disbursement to the RSPCA, the compensation order under section 53 of the Sentencing Act would have been correspondingly higher. In these circumstances, no error was made by the Magistrate in making the disbursement order.
Veterinary and boarding costs
Section 31A of the Act relevantly provides:
31A—Special powers relating to animals
(1)An inspector may examine an animal and its living conditions and, if the inspector suspects on reasonable grounds that the animal is suffering or may if urgent action is not taken suffer unnecessary harm, do 1 or more of the following:
(a)     provide treatment and care for the animal;
(b)     cause the living conditions of the animal to be modified;
(c)     seize and retain the animal for treatment and care.
(2)For the purposes of subsection (1), an inspector has all of the powers conferred on an inspector by section 30.
(3)The costs and expenses reasonably incurred by a person or the Crown in seizing, treating or caring for an animal, or in causing the living conditions of an animal to be modified, under this section may be recovered as a debt from the owner of the animal.
Section 53(1) of the Sentencing Act provides:
53—Compensation
(1)Subject to this section, a court may make an order requiring a defendant to pay compensation for injury, loss or damage resulting from the offence of which the defendant has been found guilty or for any offence taken into account by the court in determining sentence for that offence.
The RSPCA provided to the Magistrate an itemised list of the costs of veterinary treatment (vaccination, flea and worm treatment and FIV test together with additional treatment in individual cases) of 51 cats seized by an inspector of the RSPCA. The cost charged for each item of treatment was reasonable. The RSPCA also provided to the Magistrate a calculation of costs of caring for 51 cats for 35 days and 33 cats for 17 days. The RSPCA claimed for the cost of caring for these cats at $2 per day per cat, which was a reasonable cost.
The order by the Magistrate that Ms Sutcliffe pay gross veterinary and boarding costs of $10,467, offset by the proceeds of sale of cats, was empowered by section 53 of the Sentencing Act and was appropriate.
Fine

The maximum penalty for ill-treating an animal is imprisoned for two years or a fine of $20,000.
Ms Sutcliffe had previously been charged in the Magistrates Court with ill-treatment of a dog in December 2000. After a trial, the offence was found proved. In April 2003, and, without a conviction being recorded, she was ordered to perform 40 hours of community service.
Ms Sutcliffe was convicted of two counts of ill-treating animals but both counts related to what was essentially one course of conduct.
Considered objectively, Ms Sutcliffe’s offending was serious due to the number of cats for whom she failed to provide adequate living conditions and the multiple respects in which the living conditions provided were inadequate. It is appropriate when considering penalty to have regard to the nature of the ill-treatment, being passive rather than active ill-treatment. It is also appropriate to have regard to the fact that Ms Sutcliffe did not intend to ill-treat the cats, although she must necessarily have been aware of the fact that the living conditions were objectively inadequate.
Ms Sutcliffe owned a valuable property subject to a mortgage securing a bank loan of approximately $110,000. Her income was approximately $400 per week. She paid approximately $150 per week in interest on the bank loan.
The Magistrate in his remarks on penalty identified the factors relevant to determining an appropriate penalty. The Magistrate said that he took into account the financial obligations imposed on Ms Sutcliffe as a result of the other orders made as well as her financial position.
While the Magistrate identified the factors relevant to penalty, the outcome of the exercise of his discretion in determining the amount of the fine indicates that he must have made some error in approach. Section 10(1)(k) of the Sentencing Act required the Magistrate to take into account, if forfeiture of property is to be imposed as a result of commission of the offence, the nature and extent of the forfeiture. A forfeiture of the proceeds of sale of some of her cats seized, being $3,637, was imposed as a result of her commission of the offences. In addition, Ms Sutcliffe was ordered to pay compensation under section 53 of the Sentencing Act for injury, loss or damage resulting from the offence, of $10,467 (offset against the proceeds of sale of cats of $3,637). It was a relevant factor for the Magistrate to take into account that Ms Sutcliffe was required to pay this amount as a result of her commission of the offences. In the circumstances, including the forfeiture and compensation orders, a fine of $7,000 was manifestly excessive.
On exercising the sentencing discretion afresh, I would impose a fine of $3,000.
Legal costs
Section 189 of the Summary Procedure Act 1921 (SA) empowers a Magistrate to award such costs for or against a party to proceedings as the Magistrate thinks fit.
The RSPCA provided to the Magistrate a schedule showing calculation of costs in accordance with the Magistrates Court Criminal Scale of Costs. The trial occupied ten full days and five half days. In addition, there were 15 court appearances and two detailed arguments. The RSPCA incurred a filing fee of $1,000 and five lay witness fees and two expert witness fees were payable under the Scale. The total costs calculated in accordance with the scale were $21,875.
It was appropriate for the Magistrate to order Ms Sutcliffe to pay the amount sought for legal costs being $9,500.
Conclusion
I allow the appeal against penalty and set aside the orders made by the Magistrate. In lieu thereof, I make the following orders in respect of both counts pursuant to section 18A of the Sentencing Act:
1a fine of $3,000 is imposed;
2the proceeds of sale of seized cats of $3,637 held by the Minister be paid to the RSPCA;
3Ms Sutcliffe pay to the RSPCA $6,830 for veterinary and boarding costs incurred by the RSPCA in respect of cats seized;
4Ms Sutcliffe surrender all cats in her custody and control as at 16 November 2015 to an inspector within 14 days;
5Ms Sutcliffe be prohibited from acquiring or having custody of any animal until further order;
6Ms Sutcliffe pay to the RSPCA $9,500 by way of legal costs;
7Ms Sutcliffe pay court costs and mandatory Victims of Crime levies.