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[2013] WASC 188
General information, not legal advice.
Supreme Court of WA
2013-05-17
Kechnie J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : THE HOUSE OF RELOCATORS PTY LTD -v- GINBEY [2013] WASC 188
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
File No : MI 5840 of 2012, MI 5841 of 2012, MI 5842 of 2012, MI 5843 of 2012, MI 5844 of 2012
Criminal law and procedure - Sentencing - Animal cruelty - Plea agreement - Effect of plea agreement on appeal - Whether fines manifestly excessive - Purpose of prohibition order - Whether punishment
Animal Welfare Act 2002 (WA), s 19
1 Phillip William Carter is the sole director and shareholder of The House of Relocators Pty Ltd.
2 On 2 August 2012 Mr Carter pleaded to four charges and The House of Relocators pleaded guilty to one charge of animal cruelty.
3 On 9 August 2012 the magistrate fined Mr Carter $83,000. He also imposed a sentence of 6 months and 1 day's imprisonment, suspended for 2 years. Mr Carter is also banned permanently from being in charge of any animal (except two sterilized cats and dogs).
4 The magistrate fined The House of Relocators $30,000 also and prohibited the company from being in charge of any animal.
5 The magistrate made a costs order in favour of the prosecution, the RSPCA, for $50,000.
6 Except for the term of imprisonment, Mr Carter had agreed to the penalties. Before pleading guilty to the charges, Mr Carter had been given advice by a lawyer and entered into a written agreement with the prosecution as to penalties.
8 He and The House of Relocators appeal against the severity of his punishment on ground that the sentences and orders made were, in all the circumstances, manifestly excessive. The grounds are particularised. As their interests coincide I will refer to both Mr Carter and his company as 'the appellant'.
9 The appeal succeeds to the extent that I set aside the term of suspended imprisonment.
10 Otherwise the appeals are dismissed. This is why.
11 The facts were outlined by the prosecutor to the magistrate:
Charge 5840 of 2012:
The statement of material facts alleges the accused is the registered proprietor of property at 218 Rigoll Road, Westdale, Western Australia, otherwise known as the Westdale property and thereby in charge of 36 head of cattle and four buffalo which were confined on that property.
On 15 February 2011 the RSPCA attended that site by reason of one of its inspectors going there. Found that there was little or no grazing in any of the paddocks at the property. There was no evidence of any supplemental feeding. There were approximately 40 head of cattle and four buffalo, which we now know to be 36 and four. A cow near the western boundary fence line was emaciated and could not sit up unaided. The cow was subsequently euthanased by the RSPCA.
They found four cattle in poor body condition and 35 in less than reasonable condition. The RSPCA went on to provide feed for those animals and, subsequently, returned with a veterinary surgeon. The veterinary surgeon observed, in effect, the same thing and that's set out on the second page of the statement of material facts.
On 18 February 2011 the general inspector, pursuant to section 41 (b) of the Animal Welfare Act issued a directive to provide food and water to all the animals on that property. On 25 February 2011, some seven days later, the general inspector returned, observed all of the cattle eating a single large bale of straw and the dead cow, which I had previously referred to, which has, by that stage, been fly blown.
On 17 March the general inspector, again, returned, observed no evidence of supplementary feed, observed unsettled and hungry cattle. He observed the thinner suffering cows in a more emaciated state than previously and observed the same deceased carcass to which I have referred.
On 21 March, again, the RSPCA returned, observed a large squire of straw bales, that the cattle had improved somewhat from the previous visit to the property and the younger animals were separated. On 12 April, again, the RSPCA returned and found that there was approximately 45 head of cattle and four buffalo and the condition of at least three of the cattle has significantly deteriorated again.
Charge 5841 of 2012:
It appears that the registered proprietor of the property located 21 Ash Road, Beechina, Western Australia, known as the Beechina property. The accused was the person in charge of four sheep confined at that property. On 4 May 2011, an RSPCA general inspector had cause to attend the Beechina property.
The general inspector initially observed what he thought were four dead sheep. On closer inspection, after some examination, it was determined that three of the sheep were alive and one was deceased. The three sheep that were alive were emaciated - the eye of one of the sheep was damaged and bleeding - most likely had been taken by a crow or other bird -
The general inspector immediately asked the local vet to attend. One of the three remaining alive sheep died prior to the attendance by the veterinary surgeon. The veterinary surgeon took blood samples from the two sheep which were alive and subsequently euthanased them.
The general inspector telephoned the accused to discuss the condition of the sheep and the general inspector directed that the accused remove the carcasses. It's alleged by the prosecution the four sheep at the Beechina property were ill-treated by the accused.
Charge 5842 of 2012:
The accused is the registered proprietor of the Beechina property. There were 16 sheep confined at that property in addition to the four in respect of charge 5841 of 2012.
On 12 July an RSPCA inspector had cause to attend the property, observed the bare pastures and no evidence of supplementary feed. 13 July 2011 an RSPCA inspector attended the property again, observed 16 sheep at the property and that the Merino sheep were in heavy wool.
The general inspector, after having inspected the sheep, asked the accused to surrender the sheep and the accused did agree and did surrender those sheep to the RSPCA. Those sheep were then transported to the RSPCA headquarters in Malaga and examined by a veterinary surgeon. Blood samples were taken. It was observed that two of the sheep were broken mouthed.
The veterinary surgeon was required to euthanase four those sheep due to their condition.
Charge 5843 of 2012:
The accused is the registered proprietor, again, of the Beechina property. The accused was the person in charge of 35 head of cattle confined at that property. On 12 July an RSPCA inspector attended at the property and observed bare pastures. No evidence of supplementary feed. 35 head of cattle, including a buffalo and calf, five seriously emaciated cattle, one young bull with (indistinct) and sunken eyes and one heifer with severe muscle loss and wobbly gait.
The general inspector called a local veterinary surgeon to attend. The veterinary surgeon took blood and faecal samples from eight of the cattle. The general inspector then re-attended the Beechina property with six bales of hay and straw which was emergency feed for those animals.
The accused then agreed to allow the general inspector to euthanase any weak and emaciated cattle and the general inspector was then required to euthanase two of the animals of the property. On 20 July 2007 the general inspector then re-attended. The general inspector observed that most of the hay, as had previously been supplied by the RSPCA, was gone and on further inspection observed 15 dead cattle under trees and branches.
On 25 July the general inspector, again, re-attended the property. The general inspector observed the cattle had been given two bales of straw. On 11 August 2011, again, the RSPCA's inspector attended, observed 34 head of cattle, including buffalo, and two bales of hay straw.
On 13 August the general inspector instructed the accused to feed the cattle. On 26 August 2011 the general inspector, again, reattended and observed 12 head of cattle, including two buffalo, and limited grazing and a quarter of a bale of straw. The RSPCA alleges 35 cattle of the Beechina property were ill-treated by the accused.
Charge 5845 of 2012:
The accused [House of Relocators] is the registered proprietor of a property located at 210 Old Spencer Road, Mokine, in Western Australia, known as the Mokine property. The accused was the person in charge of 35 head of cattle confined to that property. Mr Carter is the sole director or the accused.
On 11 February 2011 the RSPCA general inspector attended the property. The inspector observed that the paddocks were extremely bare with no grazing, that the water in the central dam was low and green and dirty in colour, that the second dam was slightly cleaner.
Observed 20 cattle of various breeds and ages with calves at foot. Observed one young bull with its head and ears down, sunken eyes and swollen navel. Two sucking cows in very poor body condition with significant muscle wastage over their entire body, seven cattle in poor body condition with clearly visible ribs and 22 other cattle.
The general inspector formed the view that the young bull calf was in need of immediate veterinary care. The general inspector telephoned Mr Carter and it was agreed that it was in the young bull calf's best interest to be euthanased and the local vet was called upon to do that.
On 14 February 2011 the general inspector returned to the property, observed no evidence of supplemental feed and observed cattle chewing on the bark of branches.
On 15 February 2 011 the general inspector returned to the property again. Observed 35 head of cattle comprising cows, calves and bulls and, again, no evidence of supplementary feed. On 16 February 2011the general inspector returned to the property in the company of a local vet. The general inspector observed, again, no evidence of feed.
On 21 March 2011, again, the RSPCA returned and the general inspector, on that occasion, did observe some large bales of straw and the cattle were more settled as a result. On 7 April 2011 the RSPCA returned again, observed, on that occasion, some large bales of straw but further observed, unfortunately, the water in the dam had almost dried up.
On 12 April, again, the RSPCA returned, observed the 34 head of cattle, observed that there was no water in the dam, observed the two downer cows were in an emaciated condition, one being too weak to stand. The general inspector asked the local vet to attend. The vet observed 20 cows and some calves, bare paddocks, poor quality straw. Three of the four cows were in a condition score of two. The remaining in a condition score of .5 to 1.5. A body score of two is in a very poor state of condition.
The veterinary surgeon took blood samples from the downer cow and the weak cow and then euthanased them. On 15 April the accused, being Mr Carter, agreed to surrender some of the cattle to the RSPCA and on 18 April Mr Carter surrendered the remaining cattle on that property to the RSPCA. The RSPCA alleges that the cattle on that property were illtreated.
12 Counsel for the appellant made a comprehensive plea in mitigation. Counsel advised the magistrate about Mr Carter's very difficult financial circumstances, his age and background. He told the magistrate that Mr Carter was the sole carer of his 12yearold daughter. Counsel made submissions about the pleas of guilty which were not made at the earliest opportunity.
13 At the conclusion of the hearing on 2 August 2012, the magistrate adjourned proceedings in part because the photographs tendered by the prosecution produced an emotional reaction and the magistrate wanted to be sentencing 'with a clear head' and in a 'cool, calm, and careful manner'.
14 The hearing commenced with the magistrate expressing concern about the possible ambiguity in the pleas and statements made by Mr Carter to the court.
15 The magistrate was concerned by the equivocal nature of some of the pleas and made it clear that he would not proceed on equivocal pleas of guilty. The matter was adjourned for counsel to take further instructions. Before the adjournment, the magistrate made clear his views about the agreement:
One other issue I probably need to make clear, and that is it has been put to me that the prosecution have proposed certain penalties and informed me that Mr Carter agrees with those penalties. Mr Carter needs to understand that with his pleas of guilty there is no guarantee at all that they are the penalties that I will impose, so he should not be pleading guilty on the expectation that those are the penalties he is going to walk away with.
ZIMMERMAN, MS: No, he is absolutely well aware of that.
HIS HONOUR: I have already indicated my view, that the seriousness of these matters demands that I consider very carefully whether a term or terms of imprisonment are appropriate and, if so, then I need to consider whether those terms are to be suspended.
ZIMMERMAN, MS: Yes, he has - - -
HIS HONOUR: He understands that? All right. I will stand the matters down for you to take further instructions (ts 9/8/12, page 6).
16 Counsel confirmed the pleas of guilty and further submissions in mitigation were made.
17 The magistrate gave very detailed sentencing remarks:
These offences on every possible issue, in my view, are serious and my reasons for reaching that conclusion are that there can be no question whatsoever that these animals, the subject of these charges, underwent a significant degree of suffering over an extended period of time, leading, in some cases, to the deaths of these animals. The most serious charges, charge 2, in respect to the sheep, and the suffering of these sheep is unimaginable, really, particularly when you take into account circumstances such as the three sheep which were alive had their eyes pecked out by crows and it appeared that predators had been trying to eat them.
Unbelievable level of ill treatment, if I can describe it like that, in respect to what those sheep experienced. All four sheep had a body condition score of 1 out of 5, and that theme continues throughout these charges in respect to extremely low body conditions, and I note that in some cases the comment made by Dr Hargest from the Mundaring Veterinary Hospital. He has been practising as a veterinary surgeon attending livestock for 30 years, he had practised in New Zealand, South Africa, United Kingdom, and for the last 20 years in WA, and he says:
I cannot recall over this time having encountered a group of cattle as emaciated as the 12 worst affected cows and a herd being kept in such neglectful conditions. In my opinion, the conditions of these animals is due to poor husbandry, lack of food, neglect and disinterest.
It was not just that these animals suffered from a lack of adequate food and water, your lack of care and disinterest and the issue in respect to the cruelty towards these animals extends much further than that in respect to the cattle. In that regard, I note the following: all four sheep had massive wool growth and had not been sheared for at least one to two years. In the case of the sheep, their deaths and their suffering can, in no way, be described as being quick and merciful, it clearly extended over a significant period of time. I note that it does not seem to be in dispute that the final stages of the sheep went for some three or four days, but clearly the photos indicate, and the trenches dug in front of the sheep, that they had been lying down for some time kicking, trying to stand until their deaths.
I note that it would have taken more than a month with no food available for the sheep to reach that physical condition. In respect to charge 4, I note that the cattle had a body score of 1 to 2 out of 5, they were suffering from starvation and it would have taken at least two months for the cattle to reach that condition. I also note, coming back to my comments that this was not just about lack of food and water, but that it seems he did not have any breeding plan in respect to the animals. As a result, the cattle were always breeding, the cattle were becoming pregnant at too young an age and carcasses were not disposed of properly, and in circumstances where the failure to properly dispose of those carcasses would have resulted in further distress to the animals left alive.
I also note that in respect to the nutrition the cattle required, you were not weening the calves from the cows at an appropriate age, and that also had an impact on the nutrition and dietary requirements of these animals which were not being met. I note that on a number of occasions the RSPCA gave you clear directions to properly care for these animals, and the end result was, in the face of all of that, these charges to which you have now pleaded guilty. I accept that the period over which these offences are said to occur were the subject of a serious drought, and I accept that you had significant financial difficulties in respect to your own personal circumstances and the proper management of these animals.
But at the end of the day, Mr Carter, this was, even though on a relatively small scale, a commercial enterprise and these animals, which were part of that commercial enterprise, were entirely reliant upon you for their care and for their welfare, and you failed miserably in respect to your duties towards the animals. There were options, Mr Carter, that you had to prevent these animals suffering and that included, at the very least, the option of euthanasing these animals in a quick and humane manner.
I appreciate that there was, clearly, no malice on your part in respect to the suffering that these animals experienced, that you found yourself, from your point of view, in something of a dilemma; do you continue to push through and allow these animals to continue suffering, and, in some cases, die what was, clearly, a slow and painful death or do you put them out of their suffering humanely by euthanasing them.
You failed to take the proper decision in that regard, Mr Carter. At best these offences arose out of a reckless disregard by you to what should have been done in respect to the proper care of these animals that resulted in their cruelty and ill-treatment. However way you cut it, Mr Carter, whether you purposely intended that cruelty and ill-treatment - and I do not say for a moment that you did. I have said there was, clearly, no malice in respect to your actions, but cruelty and ill-treatment is what occurred as a result of your failure, your reckless disregard, I think at the very best, in properly caring for these animals.
Despite the existence of the drought, you should have known better. You had previously been convicted of two sets of similar offences. I appreciate they were under a different Act but in very similar circumstances to which you had received fines. Now, I accept that they were sometime ago in 2000 and 1999, a similar situation, I am told, in respect to a drought, but those convictions should have put you on notice to ensure that nothing similar even happened again.
In terms of sentencing, while you are certainly not to be punished again for those matters, the existence of those prior convictions are relevant. They are relevant in terms of these penalties making it crystal clear to you that this kind of offending cannot happen again and also you cannot be afforded the sort of leniency that would usually flow to someone without any prior record.
The existence of those prior convictions are relevant in the sense of those convictions showing ongoing conduct by you that led to these animals suffering. Now, again, in saying that, I note the length of time that has passed and I note the drought conditions. I will not take that any further. I also note your personal circumstances and your limited financial means, although I note that two of these properties are unencumbered, so you do have the means, at least on the face of it, of paying significant fines, even if it means selling these properties. I also note that you are the sole carer for your 12-year-old daughter.
There needs to be penalties today, Mr Carter, that make it clear to you, you cannot conduct yourself in a way that leads to the commission of these offences again and I know that the prosecution are saying that the prohibition order and the penalties they have proposed in respect to these matters are such as to give them confidence that you are unlikely to offend like this again, but I do not know, Mr Carter.
The fact is that despite these prior convictions in1999 and 2000, you have offended again in what could be described as a similar manner and despite the requests by the RSPCA to address the situation that was developing on your properties you committed these offences. In those circumstances, even with the prohibition order, I still think that the penalties for these matters needs to carry a level of personal deterrence.
Also there needs to be a penalty that takes into account general deterrents. Now, general deterrents should not override the individual circumstances of these offences, such as to result in a penalty that is disproportionate to the seriousness of these matters, but there does need to be a dimension to these penalties that makes it clear to others in the community, where this kind of commercial enterprise is carried on in a large scale in this state, that offences of this nature will result insignificant and severe penalties to dissuade others from going down the track you have gone down in regard to these matters.
Also there needs to be a penalty for these matters that properly reflects and provides for punishment for what are, as I have said, very serious matters and where there is a punishment that properly reflects the legitimate abhorrence and condemnation by the community for this kind of behaviour that leads to this kind of suffering and cruelty.
Having said all that it is my view that the penalties proposed by the prosecution do, to a degree, properly reflect the relative seriousness of these matters having regard to the scale of offending. In my view, a number of these matters certainly do come towards the upper level of offending in respect to this type of offending, and, in particular, the charge number 2 in regard to the sheep.
The maximum penalties provide for fines and imprisonment, and, in my view, having regard to the seriousness nature of charge number 2, I am not of the view that a fine adequately itself addresses the penalty in regard to that matter and having carefully considered all the matters that have been put to me, both by your counsel and the prosecution, I am of the final view that in respect to charge number 2 there should also be a term of imprisonment.
However, I am prepared, in all the circumstances, to suspend that term of imprisonment. So in respect of penalties I now deal with you as follows: in regard to the offence in respect of The House of Relocators, that is, the sole remaining charge in respect to that company, there will be a fine of $30,000. In respect to the charges against you, for charge number 1 there will be a fine of $14,000; in respect to charge number 2 a fine of $30,000 and the suspended term of imprisonment, I have already referred to.
In respect to charge number 3, a charge of $14,000. In respect to charge number 4, a fine of $25,000 and charge 5 is dismissed for want of prosecution under section 25 of the Criminal Procedure Act. In respect to those matters, there will be one order in respect to you for costs in the sum of $50,000 and that reflects both the costs of the RSPCA in dealing with these matters and legal costs.
There will also be an order in respect to you and I am more than satisfied that it is appropriate in all the circumstances to make this order having regard to the nature of these offences and your prior record. The order will be that you are prohibited personally and as the director of any corporation from being in charge of any animal from 28 days from the date of this order with the exception of two dogs and two cats at any given time providing that such animals are sterilised.
I also make a prohibition order in respect to The House of Relocators Pty Ltd, that corporation is prohibited from being in charge of any animal from 28 days from the date of this order. I have noted your pleas of guilty, Mr Carter, and taken those into account in terms of sentence. They are not what could be described as early pleas of guilty.
They follow earlier pleas of not guilty, however I do understand the delay necessarily involved in you seeking legal advice, particularly having regard to the serious nature of these matters, but having regard to the submissions by the prosecution and the evidence that would have been led at trial, it is my view that they are pleas of guilty that were, in the face of, it seems, inevitable conviction.
However, I have taken into account the pleas of guilty, to some degree at least, in respect to my consideration of those penalties. I have also taken into account your age and the financial impact upon you of the prohibition orders in respect to the business that you have been endeavouring to carry on albeit in regard to these offences fairly unsuccessfully.
I do accept that there were a number of animals that did make it through this period and are now in a much better condition. That does not justify or make amends for the suffering that these animals went through during the period of their ill-treatment, the subject of these charges. No animal should have to experience that level of ill-treatment and suffering when completely reliant upon you or any others for their care throughout any period of their lives, in my view (ts 9/8/12, pages 9 - 14).
18 Shortly before the trial was due to commence on 2 August 2012 the prosecution and defence, through counsel, entered into negotiations that resulted in a plea agreement which was handwritten and signed by the appellant and the solicitor:
Joint & several costs
$50,000
$163,000.00
Full prohibition on all animals effective 28 days from today, except 2 dogs and 2 cats at any given time.
* all cats and dogs to be sterilised
* charge over Westdale to secure $50,000 costs. If within 6 months not sold and money paid then can enforce charge.
* charge over remaining $113,000 if state requires
* RSPCA to be permitted to inspect any dog or cat within 14 days of today.
19 It also agreed that the appropriate penalty would be a fine and not a term of imprisonment.
20 Plea agreements can facilitate the course of justice and will generally involve concessions on either side.
21 In Australia plea agreements do not bind the judicial officer. The principles have been gathered together by Le Miere J in Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317; (2006) 164 IR 375 [53]:
In Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 the Full Federal Court set out principles to be applied by a court in considering what penalties to impose where the parties proposed an agreed amount to be imposed as a penalty pursuant to s 13 of the Petroleum Retail Marketing Sites Act 1980 (Cth). In my view, those principles apply to this case. The relevant principles enunciated by the Court at par 53 include the following propositions the Court considered emerged from NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285:
(i) It is the responsibility of the court to determine the appropriate penalty to be imposed under [the Act] in respect of a contravention of the [Act].
(ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another.
(iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravener have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed.
(iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise ... will usually be given greater weight than its views on more 'subjective' matters.
(v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so.
(vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range [53].
23 A party to a plea agreement should normally be held to the bargain they have made. Therefore, providing the fines imposed or sentence are within a range that would be applicable to the offences, and the court sentences on that basis, it will be difficult to show either a wrong exercise of discretion or a miscarriage of justice.
24 Animal Welfare Act 2002 (WA) relevantly provides:
(1) A person must not be cruel to an animal.
Penalty: Minimum - $2 000.
(2) Without limiting subsection (1) a person, whether or not the person is a person in charge of the animal, is cruel to an animal if the person -
(e) in any other way causes the animal unnecessary harm.
(3) Without limiting subsection (1) a person in charge of an animal is cruel to an animal if the animal -
(d) is not provided with proper and sufficient food or water;
(e) is not provided with such shelter, shade or other protection from the elements as is reasonably necessary to ensure its welfare, safety and health;
(j) is, in any other way, caused unnecessary harm (s 19)
25 In relation to The House of Relocators - a body corporate that is convicted of an offence is liable to a penalty not less than five times that minimum penalty.
26 In Holding v Parkin [2012] WASC 113, Hall J conducted a review of other cases involving animal cruelty noting however that the Animal Welfare Act 2002 (WA), which came into operation on 4 April 2003, significantly increased the maximum penalty for cruelty offences so that cases in Western Australia prior to that date are of little assistance regarding current sentencing standards.
27 After analysing other authorities from [26] to [33], Hall J set out the relevant factors in assessing the circumstances of an offence of animal cruelty pursuant to the Animal Welfare Act s 19:
Section 6 of the Sentencing Act 1995 (WA) requires that sentences be commensurate with the seriousness of the offence. This requires consideration of the circumstances of the commission of the offence. In my view, the relevant factors in assessing the circumstances of an offence of animal cruelty pursuant to s 19 of the Animal Welfare Act are:
Of course in any particular case it will also be necessary to take into account any mitigating factors, including those factors that are personal to the offender [41] - [42].
28 The pleas of guilty came on the date fixed for trial allocation. They were not pleas made at the earliest opportunity. Neither were they very late pleas. The pleas had a utilitarian value: Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656. The magistrate took the pleas of guilty into account as set out earlier.
29 It was not obligatory for the magistrate to specifically nominate a percentage reduction for the pleas of guilty.
30 The magistrate's comments were appropriate and indicate that he gave weight to the pleas of guilty.
31 It is clear from the magistrate's remarks that he was acutely aware of the appellant's circumstances and antecedents.
32 The appellant argues that the inevitable forced sale of the appellant's properties to pay the fines and the permanent ban on being in charge of animals in effect denies the appellant the ability to earn an income from the only type of business to which he is accustomed.
33 This is correct. The prohibition order was imposed to prevent the appellant having control over animals in the future. The consequence is that the appellant must find a different source of income.
34 The magistrate recognised this in his sentencing remarks. The appellant's counsel conceded a prohibition order may have been appropriate though for a significantly shorter period. Any prohibition order would have an immediate effect on the appellant's future employment.
35 The magistrate found that on every possible view the offences were serious. That finding is not challenged. He found an unbelievable level of illtreatment in respect of charge 5481/12. That finding is not challenged.
36 He found, despite the serious drought, the appellant failed miserably in his duties towards the animals. That finding is not challenged.
37 He found that the offences arose out of a reckless disregard as to what should have been done for the proper care of the animals. This finding is challenged. In the context of the facts the finding was open. As the magistrate found, cruelty and illtreatment occurred as a result of the appellant's reckless disregard in circumstances where he had the choice of humane euthanasia.
38 The magistrate's conclusion as to the level of criminality in the light of the largely uncontested statement of facts is open and appropriate.
Ground 1.4 - Sentences imposed in, broadly, comparable cases
39 In addition to Holding v Parkin, the appellant referred to Stefani v Ostle [2010] WASC 350. The appellant in that case was convicted of cruelty to a cat, fined $2,500 and prohibited from being in charge of any animal for five years. Leave to appeal was refused due to a lack of merit.
40 In Anderson v Moore [2007] WASC 135 the appellant was convicted of six charges of being cruel to an animal, fined $25,000 and prohibited from being in charge of sheep for 10 years. The appeal against conviction was dismissed.
41 The prohibition power is in s 55 of the Animal Welfare Act.
42 None of the cases cited by the appellant are precisely or even reasonably comparable with the factual circumstances of the present case.
43 The respondent submits that it would have been open for a charge to be laid in respect of each animal - a total of 130. It submits that it would assist the court to consider the relative fine per animal which range from $350 in charge 5840/12 through to $7,500 in charge 5841/12. The other charges were all below $1,000 per animal.
44 With respect, I find the argument unpersuasive. Attention must always focus on the overall criminality and whether the total penalty bears a proper relationship to that criminality. The number of animals involved in an offence is a factor, but only one.
45 The magistrate's careful sentencing remarks outlined all the factors both in aggravation and mitigation which he took into account before reaching the penalty.
46 Manifest error is a conclusion. I am not persuaded that the fines exceeded what would be an appropriate range of penalties for the extreme neglect established. Moreover, they are within the range. In fact exactly the same as those specified in the plea agreement.
47 I dismiss the appeal so far as it relates to the fines.
The prosecution's position in relation to imprisonment
As for the position with respect to incarceration, my instructions are this: we understand that Mr Carter is the sole care provider to an 11-year-old girl. We are aware that the gravity of the situation could be such that your Honour could form the view that it warrants a term of imprisonment, but we would ask your Honour not to do that on this occasion because of the particular circumstances of this accused. It's not the position of the RSPCA that they wish to seek a penalty which, in effect, would deprive a child of its primary care giver
...
My instructions are to leave that to your Honour. What we say is that the purposes in this instance of the Act can largely, if not, solely be provided for by ensuring that Mr Carter is never in charge of animals, which, effectively, apart from the domestic pets, which, again, the RSPCA is putting to you on the basis that we understand that the daughter goes between the father and the mother and there is likelihood that the pets can be protected, and, indeed, part of the arrangements in place of providing for that are subject to what we ask your Honour for is for an ability for the RSPCA to inspect those animals.
We say on the proviso that, on this occasion, Mr Carter is prohibited from ever being put in a position where he can do this to animals again, the RSPCA can achieve its objectives by that order and the fines (ts 2/8/12, pages 16 - 17).
48 In conformity with its position in the primary court, the respondent made no submissions as to the imposition of a term of imprisonment.
49 The magistrate imposed a fine because of the serious nature of the charge 5841/12 involving four sheep. The magistrate found there was no malice on the part of the appellant although the offences arose out of a reckless disregard. He found that the appellant did not purposely intend cruelty and illtreatment.
50 There were powerful matters of mitigation, in particular the fact that the appellant was the carer of a 12yearold daughter at the time of sentence.
51 A court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. The discretion to suspend the sentence only arises after the decision has been made that imprisonment is the only available option.
52 Having regard to the amount of the fines imposed, the lack of malice or intention, the age and personal circumstances of the appellant, the decision to impose a sentence of imprisonment was an error. I set aside the sentence.
53 The appellant agreed to the prohibition order. The magistrate was empowered to impose a permanent prohibition: Animal Welfare Act s 55(2)(a).
54 In setting a permanent prohibition the previous convictions were relevant as was the nature and extent of the offending behaviour before the magistrate.
56 There is no reason to construe the Animal Welfare Act to find a Parliamentary intention not to permanently deny a person's right to derive income from accustomed means except in the most extreme circumstances. The discretion in s 55 is to be exercised judicially but is unconstrained and Parliament specifically acknowledged the possibility of a permanent prohibition order.
57 Nor is a permanent ban on all animals inconsistent with the purposes of the Animal Welfare Act. The intent of the Act set out in s 3(2):
(a) promote and protect the welfare, safety and health of animals;
(b) ensure the proper and humane care and management of all animals in accordance with generally accepted standards; and
(c) reflect the community's expectation that people who are in charge of animals will ensure that they are properly treated and cared for.
58 The basis for a prohibition order is to protect the welfare, safety and health of an animal, a group of animals or animals in general: s 55(1).
59 There is no warrant to limit the intent of the Animal Welfare Act to protecting animals the like of the condemned conduct rather than broadly applying to all animal species. Factual circumstances will vary but it is possible that a person may be cruel or neglectful across many species of animals. Section 55 is wide enough to protect against future offending by denying access to any animal.
60 A prohibition order is imposed to ensure future safety of animals, not principally as a punitive measure, even though it may seem that way to an offender. This conclusion is supported in s 55(1): 'A court ... may, in addition to imposing a penalty, make any other orders'.
61 In any event, I am not persuaded that the whole sentencing disposition of fines and prohibition is so manifestly excessive as to justify interference.
62 For these reasons the appeal against sentence of 6 months and 1 day suspended is allowed and the sentence set aside. The appeals as they relate to the fines and prohibition order are dismissed.
(2006) 164 IR 375
(1996) 71 FCR 285
(1998) 194 CLR 656