Mitchell v Marshall [2014] TASSC 43

[2014] TASSC 43

Supreme Court of Tasmania|2014-08-18|Before: Blow CJ

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At a glance

Source facts

Court

Supreme Court of Tasmania

Decision date

2014-08-18

Before

Blow CJ

Source

Original judgment source is linked above.

Judgment (6 paragraphs)

[1]

The applicant committed the offences in question during a period that began when he was 26 years old and ended when he was 28. He was 32 years old when he was sentenced and is now 33.
He has some relevant convictions. On 3 May 2007 he was convicted and fined $750 on a charge of omitting to do a duty likely to cause suffering to an animal. That offence was committed on 20 October 2006. On 1 August 2008 he was convicted on charges of obstructing a person in the exercise of his powers, and intimidating a public officer. Those offences were committed on 13 August 2007. He was fined $1,000.
Before coming to Tasmania he had some experience in dairy farming in northern Victoria, but he was not used to Tasmanian conditions, and was not able to manage the farm competently. He initially leased the Redpa property, but exercised an option to purchase it in July 2007. The property was mortgaged to a bank. The bank took possession of the property as mortgagee in 2010. The applicant owes the bank a very large amount of money. He left Tasmania after committing these offences, and has since worked in Western Australia, Victoria and the Northern Territory. When sentenced he was running a fencing business based in Bendigo. The learned magistrate was provided with two character references indicating that he was hard working, professional in his manner, truthful and reliable.
The learned magistrate was provided with a report by a psychologist who undertook an assessment of the applicant in March 2011. The psychologist reported that the applicant had trouble concentrating and staying focussed, was disorganised and forgetful, and had difficulties with impulsivity and hyperactivity. It was thought that these characteristics were symptoms of attention deficit hyperactivity disorder or attention deficit disorder.
The learned magistrate was also provided with a report by a psychiatrist who examined the applicant in July 2011. He concluded that the applicant did not appear to have adult attention deficit disorder. He noted that the applicant had insomnia, but said that he did not appear to have any psychotic symptoms. He said he appeared to have suffered from exhaustion, loss of focus, and mind racing as a consequence of the persistent use of medication that was prescribed for him.

Parties

Applicant/Plaintiff:

# Mitchell

Respondent/Defendant:

Marshall \[2014\] TASSC 43

Legislation Cited (3)

Welfare Act 1993

Health Act 1995

Animals Prevention Act 1925

Cases Cited (23)

Mitchell v Marshall [2014] TASSC 43 (18 August 2014)

R v Lavender [2005] HCA 37; (2005) 222 CLR 67, distinguished.

Fehlberg v Gallahar [1957] TASStRp 21; [1957] Tas SR 286; He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523, discussed.

Forty-four of the charges under s8(1) of the Animal Welfare Act related to the same facts as charges that the learned magistrate found proven under s9 of that Act. In each case the applicant was charged with both a cruelty offence under s8(1) and an aggravated cruelty offence under s9. Having found the more serious charges under s9 proven, the learned magistrate dismissed the 44 corresponding charges under s8(1) in accordance with the principle discussed by Green CJ in Wood v Major [1992] TASSC 28; (1992) 3 Tas R 249. He convicted the applicant on the 140 other charges that he found proven.
The applicant has sought the review of his convictions on six grounds, and has sought the review of his sentences on the ground that they were manifestly excessive. I will deal first with the grounds relating to the convictions.

The provision referred to by the Minister as imposing a duty of care is now s6 of the Animal Welfare Act, to which I have referred.
Each of the provisions in question imposes a prohibition. Section 7 imposes a prohibition on the use of any method of management that is reasonably likely to have certain results. Sections 8(1) and 9 each prohibit both the doing of acts, and omitting to do duties. None of the relevant prohibitions are qualified by adverbs which refer to an offender's state of mind, such as "knowingly", "intentionally" or "wilfully". The absence of any such adverbs is not conclusive, but tends to weigh against the applicability of the common law presumption that mens rea is an ingredient of every offence.
Each of the relevant prohibitions is imposed by the use of the words "must not". These provisions were enacted before the introduction of s10A of the Acts Interpretation Act, which requires the word "must" in subsequent legislation to be treated as imposing a mandatory requirement. However the use of the words "must not" in the relevant sections still tends to indicate that each relevant prohibition applies even in the absence of a guilty mind.
It should also be noted that the words "unreasonable and unjustifiable" in ss7 and 8(1) are used only to describe the degree of pain or suffering that is necessary for an offence to have been committed. They do not refer to the act or omission of an offender or alleged offender. The duty imposed by is a duty "to take all reasonable measures". But there is nothing in the legislation to suggest that, when a defendant is charged on the basis of a positive act, the prosecution needs to prove that the act was unreasonable or unjustifiable.

Those comments apply equally to the situation where the fact-finder is a magistrate rather than a jury.
At the hearing before the learned magistrate, Mr Moloney did not take any objection based on s137 until after all the evidence had been given. The case was adjourned so that counsel for both sides could prepare written submissions. The first mention of any s137 objection was in the written submissions that were then provided by Mr Moloney. He submitted that all of the prosecution's expert opinion evidence should be excluded. He raised a number of arguments as to the weakness of that evidence. He argued that none of the prosecution witnesses was an expert in any forensic sense; that not one of them could be described as independent; that no prosecution eye-witness was in a position to accurately or at all make an assessment of the state of feed on the property; that there was no admissible evidence of there being no disease on the property; that lay witnesses of fact had given opinion evidence as to the issues of fodder and disease; and that there was an entangling of evidence of observations and purported expert opinion evidence.
However his submission overlooked the requirements that, for the purposes of s137, it must be assumed that the impugned evidence will be accepted and that any reasonable inference favourable to the prosecution will be drawn: J v Tasmania [2011] TASCCA 7; (2011) 20 Tas R 425; R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; R v Sood [2007] NSWCCA 214.
On the issue of unfair prejudice, Mr Moloney's only argument to the learned magistrate appears to have been that his client was disadvantaged because prosecution expert witnesses had given a mixture of evidence of their observations and evidence of their opinions.

From these passages I think it is clear that the learned magistrate did not reject any of the expert opinions of Dr Perkins, Mr Doonan or Mr La Grange. He evaluated their evidence and reached conclusions that it was not exculpatory. In my view the passages that I have quoted were adequate for the parties and any appellate court to understand what conclusion the learned magistrate reached as to the evidence of the three witnesses in question. I reject the assertion that he failed to provide adequate reasons in relation to their evidence.
This is not an appeal by way of rehearing but a motion to review pursuant to s107 of the Justices Act 1959. The applicable principles as are stated by Crawford CJ in Phillips v Arnold [2009] TASSC 43; (2009) 19 Tas R 21 at [46]:

"... The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] TASStRp 9; [1963] Tas SR 69 at 81; Benson v Rogers [1966] TASStRp 13; [1966] Tas SR 97 at 99; Richardson v Shipp [1970] TASStRp 6; [1970] Tas SR 105 at 117."

Having imposed those eight sentences, the learned magistrate said, "The total period of imprisonment is 15 months and I order you to serve 9 months before being considered eligible for parole."
Unfortunately the learned magistrate did not specify which of the eight sentences were intended to be cumulative and which concurrent, except in relation to the third sentence and the last one. I infer that the third sentence (3 months), the seventh sentence (9 months) and half of the last sentence (3 months of 6 months) were intended to be cumulative, and that the rest of the sentences were intended to be concurrent. I do not think there is any other basis for adding together numbers that total 15.
Section 17(2)(b) of the Sentencing Act 1997 provides that, "A court that imposes a sentence of imprisonment on an offender ... may order ... that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order." The wording of that provision tends to suggest that, when multiple sentences of imprisonment are imposed, it may be necessary to make a separate order as to parole in respect of each sentence. However none of the grounds of review raises any suggestion of error on the part of the learned magistrate in imposing a single non-parole period.
Ground 7 was obviously intended to refer to all of the sentences imposed by the learned magistrate. I therefore need to consider whether any of those sentences or the aggregate of them were so "unreasonable or plainly unjust" as to give rise to an inference that there has been a failure to properly exercise the sentencing discretion: House v R (1935) 55 CLR 499; A, MC v Police [2008] SASC 279; (2008) 102 SASR 151 at [88]; at .

(2005) 222 CLR 67

(1985) 157 CLR 523

(1992) 3 Tas R 249

(1941) 67 CLR 536

(1952) 87 CLR 115

(1980) 25 SASR 128

(2001) 208 CLR 593

(2011) 20 Tas R 425

(2006) 66 NSWLR 228

(1987) 10 NSWLR 247

(2009) 19 Tas R 21

(1979) 142 CLR 531

(1935) 55 CLR 499

(2008) 102 SASR 151