Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : THE HOUSE OF RELOCATORS PTY LTD -v- GINBEY [2013] WASC 188

Criminal law - Sentencing - Animal cruelty - Whether fines manifestly excessive - Whether prohibition order manifestly excessive - Effect of plea agreement on appeal - Barbaro principle - Turns on own facts

Animal Welfare Act 2002 (WA), s 3(2), s 19, s 55, s 88

Criminal Appeals Act 2004 (WA), pt 2 div 2, s 14(2), s 18

Anderson v Moore [2007] WASC 135

Barbaro v The Queen [2014] HCA 2

Holding v Parkin [2012] WASC 113

House v The King [1936] HCA 40; (1936) 55 CLR 499

Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317; (2006) 164 IR 375

The House of Relocators Pty Ltd v Ginbey [2013] WASC 188

3 MAZZA JA: These are appeals against decisions made by McKechnie J in The House of Relocators Pty Ltd v Ginbey [2013] WASC 188.

4 The appeals are without merit and must be dismissed.

5 Mr Carter was charged by a prosecution notice in the Midland Magistrates Court with four offences of animal cruelty contrary to s 19(1) of the Animal Welfare Act 2002 (WA) (the Act). Those charges were, relevantly, in these terms:

Property 1: 218 Rigoll Road, Westdale, Western Australia

[Mr Carter] being in charge of animals, namely 36 head of cattle and 4 head of buffalo, was between 15 February 2011 and 25 April 2011, cruel to those animals contrary to section 19(1) of the [Act] in that the accused, contrary to section 19(2)(a) of the Act, ill-treated the animals.

a penalty pursuant to section 19(1) of the Act;

an order that [Mr Carter] be permanently prohibited from being in charge of any commercial animal pursuant to section 55(2)(a) of the Act;

any order that the court considers appropriate to protect the welfare, safety and health of animals pursuant to section 55(1) of the Act;

Property 2: 21 Ash Road, Beechina, Western Australia

[Mr Carter] being in charge of animals, namely 4 sheep, was between 23 March and 4 May 2011, cruel to those animals contrary to section 19(1) of the [Act] in that the accused, contrary to section 19(2)(a) of the Act ill-treated the animals.

a penalty pursuant to section 19(1) of the Act;

an order that [Mr Carter] be permanently prohibited from being in charge of any commercial animal pursuant to section 55(2)(a) of the Act;

any order that the court considers appropriate to protect the welfare, safety and health of animals pursuant to section 55(1) of the Act;

[Mr Carter] being in charge of animals, namely 16 sheep, was between 1 June and 13 July 2011, cruel to those animals contrary to section 19(1) of the [Act] in that the accused, contrary to section 19(2)(a) of the Act ill-treated the animals.

a penalty pursuant to section 19(1) of the Act;

an order that [Mr Carter] be permanently prohibited from being in charge of any commercial animal pursuant to section 55(2)(a) of the Act;

any order that the court considers appropriate to protect the welfare, safety and health of animals pursuant to section 55(1) of the Act;

[Mr Carter] being in charge of animals, namely 35 head of cattle, was between 15 July and 26 August 2011, cruel to those animals contrary to section 19(1) of the [Act] in that the accused, contrary to section 19(2)(a) of the Act ill-treated the animals.

A penalty pursuant to section 19(1) of the Act;

an order that [Mr Carter] be permanently prohibited from being in charge of any commercial animal pursuant to section 55(2)(a) of the Act;

any order that the court considers appropriate to protect the welfare, safety and health of animals pursuant to section 55(1) of the Act;

6 The fifth charge against Mr Carter was withdrawn.

7 The House of Relocators Pty Ltd was also charged by prosecution notice with one offence of animal cruelty. Relevantly, that charge read as follows:

Property: 210 Old Spencer Road, Mokine, Western Australia

[The House of Relocators Pty Ltd] being in charge of animals, namely 35 head of cattle, was between 7 March and 18 April 2011, cruel to those animals contrary to section 19(1) of the [Act] in that the accused, contrary to section 19(2)(a) of the Act ill-treated the animals.

a penalty pursuant to section 19(1) of the Act;

an order that [The House of Relocators Pty Ltd] be permanently prohibited from being in charge of any commercial animal pursuant to section 55(2)(a) of the Act;

any order that the court considers appropriate to protect the welfare, safety and health of animals pursuant to section 55(1) of the Act;

8 Mr Carter is the sole director and shareholder of The House of Relocators Pty Ltd. His interests and interests of the company are, for practical purposes, the same.

9 On 9 August 2012, following pleas of guilty to the charges, his Honour Magistrate Benn imposed the following penalties upon Mr Carter:

$30,000 fine and imprisonment for 6 months and 1 day suspended for 2 years

10 In addition, pursuant to s 55(1) of the Act, the learned magistrate ordered that Mr Carter be prohibited, personally and as the director of any corporation, from being in charge of any animal from 28 days from the date of the order, with the exception of two dogs and two cats, at any given time, providing that these animals are sterilised.

11 With respect to the charge against The House of Relocators Pty Ltd (5845 of 2012), the learned magistrate imposed a fine of $30,000 and an order was made pursuant to s 55(1) in similar terms to the order made in respect of the charges against Mr Carter.

12 The appellants appealed against the sentences that were imposed upon them to a single judge of the Supreme Court. The grounds of appeal for each appellant were, in substance, identical. It was alleged that the sentences and orders were manifestly excessive.

13 McKechnie J upheld Mr Carter's appeal in part, to the extent that he set aside the suspended imprisonment order. Mr Carter's appeal was otherwise dismissed. The appeal by The House of Relocators Pty Ltd was dismissed.

14 Each of the appellants now appeals to this court from the decision of McKechnie J. Their grounds of appeal as amended are identical. They are as follows:

1. Justice McKechnie's discretion miscarried when he determined that, in all the circumstances, the lifetime prohibition imposed on the appellant was not manifestly excessive;

1.1 The plea of guilty;

1.2 The appellant's antecedents;

1.3 The criminality involved;

1.4 The relevance of the fines imposed;

1.5 Sentences imposed in, broadly, comparable cases.

1. Justice McKechnie's discretion miscarried when he determined that, in all the circumstances, the fine imposed on the appellant was not manifestly excessive;

2.1 The plea of guilty;

2.2 The appellant's antecedents;

2.3 The criminality involved;

2.4 Sentences imposed in, broadly, comparable cases.

15 Leave to appeal has been granted in each appeal on ground 1. The question of leave on ground 2 was referred to the hearing of the appeal.

16 Before this court there was no dispute as to the facts of the offending. Those facts may be summarised in this way.

17 Mr Carter was, at all material times, the registered proprietor of two properties situated at 218 Rigoll Road, Westdale (the Westdale property) and 21 Ash Road, Beechina (the Beechina property). The House of Relocators Pty Ltd was, at all material times, the registered proprietor of a property situated at 210 Old Spencer Road, Mokine (the Mokine property or sometimes referred to in the documents as Clackline). Farm animals were kept on each of these properties. Mr Carter was responsible for their care. It was common ground that 2011 was a drought year.

18 I will deal first with the four charges relating to Mr Carter.

19 On 15 February 2011, an RSPCA inspector attended at the Westdale property. The inspector observed that there was little or no pasture in any of the paddocks, nor was there any evidence of any supplemental feeding. The inspector found 36 head of cattle and four buffalo. Four of the animals were in poor condition; 35 were assessed to be in less than reasonable condition. One cow was so emaciated it could not sit up unaided. This animal was subsequently euthanised by the RSPCA. The RSPCA's chief veterinarian, Dr Joanna Schirrman, attended the property on 17 February 2011. In a report provided to the learned magistrate she wrote:

The animals are being kept in conditions which fall well below even the most basic levels of animal husbandry. There is no pasture, poor fencing and no evidence of supplementary feed being provided.

All the animals are underweight, the least affected being the yearling calves which are still suckling from their mothers along with the younger calves. The adult calves are emaciated and starving, being best classified as skeletal and having a depressed, docile demeanour (blue/green AB 157).

20 On 18 February 2011, pursuant to s 40(1) of the Act, an RSPCA inspector issued a directive to Mr Carter to provide food and water to all the animals on the property. On 25 February 2011, an inspector observed all of the cattle eating a single large bale of straw.

21 On 17 March 2011, the inspector returned to the property and observed no evidence of supplementary feed. He observed that the cows were in a more emaciated state than previously. On 21 March 2011, large straw bales were found to be present and it was observed that the condition of the cattle had somewhat improved from the previous inspection.

22 On 12 April 2011, an inspector found that there were approximately 45 head of cattle and four buffalo on the property and that the condition of three of the cattle had significantly deteriorated.

23 On 4 May 2011, a general inspector attended at the Beechina property. There he observed what he initially thought were four dead sheep. On closer examination, he found three of the sheep were barely alive. At least one of the animals that was alive had had its eyes pecked by a bird. A veterinary surgeon was immediately summoned, but, before the vet arrived, one of the sheep died. The other two were subsequently euthanised. Photographs of the sheep taken by the inspector show the sheep to be in extremely poor condition and in obvious distress.

24 On 12 and 13 July 2011, an RSPCA inspector attended the Beechina property and noted the presence of 16 sheep. The paddocks were bare of pasture and there was no evidence of supplementary feed. The sheep were heavy in wool and had not been shorn for some time. After inspecting the sheep, and upon request by the inspector, Mr Carter surrendered the sheep to the RSPCA. The sheep were then transported to the RSPCA's headquarters in Malaga and examined by a veterinary surgeon. Two of the sheep were broken-mouthed and four had to be euthanised.

25 In addition to the sheep seen on 12 July 2011 at the Beechina property, the inspector saw a herd of cattle numbering approximately 35, including five seriously emaciated animals, one young bull with bottle jaw and sunken eyes, and one heifer with severe muscle loss and wobbly gait. Either on that day or the following day, the RSPCA returned to the property with six bales of hay and straw as emergency feed. Two of the animals were in such a weak and emaciated state that they had to be euthanised. On 20 July 2011, the inspector reattended the property and observed that most of the hay that had previously been supplied by the RSPCA had been consumed and that there were 15 dead animals under trees and branches. On 25 July 2011, the inspector re-attended the property and observed the cattle had been given two large bales of straw.

26 On 11 August 2011, 34 head of cattle were seen on the property. On 13 August 2011, the inspector instructed Mr Carter to feed the cattle. On 26 August 2011, the inspector observed 12 head of cattle, limited grazing and a quarter of a bale of straw.

The House of Relocators Pty Ltd - Charge 5845 of 2012

27 On 11 February 2011, an RSPCA inspector attended at the Mokine property. The inspector observed that the paddocks were extremely bare, with no pasture, and that the water in the central dam was low, green and dirty. The water in a second dam was slightly cleaner. The inspector observed 20 cattle of various breeds and ages with calves at foot. He observed one young bull with its head and ears down, sunken eyes and swollen navel. Two suckling cows were in very poor condition, with significant muscle wastage over their entire bodies. Seven head of cattle were in poor body condition with clearly visible ribs. The inspector formed the view that the young bull was in need of immediate veterinary care. The inspector telephoned Mr Carter and it was agreed that the young bull should be euthanised.

28 On 14 February 2011, the inspector returned to the property and observed no evidence of supplemental feed and saw cattle chewing on the bark of trees or bushes. The following day, and again on 16 February 2011, the RSPCA inspector and a veterinary surgeon noted no evidence of supplementary feed.

29 On 21 March 2011, the RSPCA general inspector observed some large bales of straw and that the cattle appeared more settled. However, on 7 April 2011, an inspection revealed that the water in one of the dams had almost dried up. On 12 April 2011, the inspector observed 34 head of cattle. There was no water in one of the dams and two of the cows were in an emaciated condition, one being too weak to stand. A veterinary surgeon attended and noted that, of the 20 cows he saw, three had a body condition score of 2 and the remaining had a score of between 0.5 and 1.5. A body score of 2 is a very poor state of condition. Two of the cows were euthanised. On 15 and 18 April 2011, Mr Carter agreed that all of the cattle on the Mokine property should be surrendered to the RSPCA.

30 The learned magistrate was provided with photographs taken by the RSPCA of the animals the subject of the charges. This court has seen copies of them. They make for gruesome and disturbing viewing. Speaking generally, the sheep and cattle the subject of the charges are in very poor condition, showing obvious signs of malnourishment and neglect.

31 The learned magistrate was also provided with reports written by a number of veterinary surgeons. I have already referred to the report of Dr Schirrman. With respect to the offence committed by The House of Relocators Pty Ltd, Dr P Morrell wrote that the cattle he observed on 12 April 2011 'were suffering extreme malnutrition' (blue/green AB 231). In respect of the same charge, Dr D K Hargest said of the cattle he saw on 16 February 2011:

I have been a practising veterinary surgeon who has attended livestock for over 30 years. During this time I have practised in New Zealand, Southern Africa, the United Kingdom and for the last 20 years in Western Australia.

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 condition of these animals is due to poor husbandry, lack of food, neglect and disinterest (blue/green AB 229).

Proceedings before the magistrate - 2 August 2012

32 Mr Carter appeared before the magistrate on 2 August 2012 and was represented by duty counsel, Ms Zimmerman. Mr Carter spoke on behalf of The House of Relocators Pty Ltd.

33 Before pleas were entered, prosecuting counsel advised the magistrate as follows:

The accused, I understand, will ... agree to the following penalties ... if your Honour agrees with them. In respect of charge 5840 he will agree to a fine of $14,000. In respect of 5841 he will agree to a fine of $30,000. In respect of 5842 he will agree to $14,000. 5843 he will agree to $25,000. Charge 5 is withdrawn. In respect of 5845 of 2012 he will agree to a fine of $30,000 (blue/green AB 66).

The accused will also agree to a full prohibition of being in charge of any animal effective 28 days from today with the exception of ... two dogs and two cats at any given time on the proviso that those cats and dogs are to be sterilised (blue/green AB 66).

HIS HONOUR: I take it then your submission will be that the penalties you have outlined that Mr Carter would accept, are penalties you consider appropriate in respect to the offences?

PROSECUTING COUNSEL: Yes. ... (blue/green AB 67)

34 A short adjournment then occurred to enable the court to locate written submissions which had been sent on behalf of the prosecutor. Upon the resumption of the proceedings, the following exchange took place between the learned magistrate and Mr Carter:

HIS HONOUR: Now, just before I hear from you further, I will take these pleas from Mr Carter. Now, Mr Carter, I will take your pleas now, but you need to understand that, ultimately, the decision as to penalty is one for me. I am not bound by any agreement or discussion that you have had with the prosecution in respect of the penalties that have been outlined to me.

They may be more, they may be less, they may be those penalties, I do not know, but you cannot be pleading to the matters thinking these are the penalties you will definitely get. You understand?

CARTER, MR: Yes, your Honour (blue/green AB 69).

35 The learned magistrate then proceeded to take pleas from Mr Carter. After each charge was read, Mr Carter prevaricated to some extent, but ultimately pleaded guilty.

36 The prosecutor then recited the facts (blue/green AB 72 - 79).

37 Ms Zimmerman then delivered a plea in mitigation in which she made the following points:

1. Mr Carter was, at the time of sentencing, 65 years of age.
2. He is responsible for the care of his 12-year-old daughter.
3. Mr Carter served as a national serviceman in Malaysia where he saw active service. As a result of this service and possible exposure to chemicals, he returned to Australia a 'different' person.
4. He established a house relocation business which no longer operates.
5. He set up 'a little farm' with 'a few cattle'.
6. Mr Carter suffers from depression and anxiety.
7. In relation to the offences, '[h]e got into difficulties and just found it very hard to get out'.
8. He was unable to afford the cost of feed.
9. Although the condition of the animals was such that Mr Carter should have shot them, he could not bring himself to do it.
10. He felt sorrow and remorse for what had happened to the animals.

38 Defence counsel put to the learned magistrate that Mr Carter believed that the four sheep the subject of count 2 had died from ryegrass toxicity in the hay they had been fed and that the cattle (it is not clear to which cattle defence counsel was referring) were poisoned by a tree.

39 The prosecutor did not accept that any animals had been poisoned.

40 The learned magistrate did not sentence the appellants on 2 August 2012. He adjourned the proceedings for a week so that he could, among other things, consider the material, including Mr Carter's prior record of convictions which revealed that he had been convicted of relevant prior offences. On 5 October 1999, Mr Carter was fined $10,000 for 60 offences of failing to supply an animal with proper and sufficient feed, contrary to s 4 of the now repealed Prevention of Cruelty to Animals Act 1920 (WA), and on 11 December 2000 he was fined a total of $1,400 for seven counts of failing to supply an animal with proper and sufficient food.

Proceedings in the Magistrates Court on 9 August 2012

41 When the proceedings resumed on 9 August 2012, the learned magistrate expressed concerns that the pleas of guilty that had been entered were 'somewhat equivocal' (blue/green AB 88). He also said that he was not prepared to accept a submission that the animals were poisoned, without the issue being tried.

42 The proceedings were temporarily adjourned to allow Ms Zimmerman time to take instructions. Upon the resumption of the proceedings, Ms Zimmerman told the learned magistrate that Mr Carter no longer maintained the position that the animals had been poisoned and that the pleas of guilty were unequivocal. No issue was taken before McKechnie J or in this court about these matters. Ms Zimmerman made further submissions in mitigation. She said that Mr Carter denied 'purposefully' wanting to harm the animals in his care. She submitted that he 'was way out of his depth [and] that he did not have sufficient understanding of proper animal husbandry procedures and practices' (blue/green AB 93). She said that Mr Carter acknowledged that he failed to protect his animals from drought and that 'he took on much more than he could handle'.

43 With respect to his prior convictions, Ms Zimmerman explained that they were committed, like the present offences, in drought years (blue/green AB 94).

44 The learned magistrate accepted that the offences were committed during a serious drought and at a time when Mr Carter was in significant financial difficulty. He further accepted that the appellant did not act with malice towards the animals.

45 His Honour said that the animals in Mr Carter's care were entirely reliant upon him for their care and welfare and that he 'failed miserably' in the discharge of those duties. His Honour put it this way:

At best, these offences arose out of a reckless disregard ... 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 that 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.

46 The learned magistrate took into account Mr Carter's prior convictions as being relevant to personal deterrence and that he could not be sentenced as a first offender. The learned magistrate said that the offences were very serious and that the penalties he was obliged to impose must provide general deterrence and 'properly [reflect] the legitimate abhorrence and condemnation by the community for this kind of behaviour' (blue/green AB 98).

47 The learned magistrate had regard to the pleas of guilty entered on behalf of each of the appellants. He noted that they were not early pleas, but acknowledged that a reason for the delay was the necessity to obtain legal advice. The learned magistrate observed that the pleas of guilty were entered, as he put it, in the face of 'inevitable conviction' (blue/green AB 99 - 100).

48 With respect to the offences committed by Mr Carter personally, the learned magistrate regarded charge 2 (in respect of the four sheep) as the most serious. He considered that a fine did not, by itself, constitute sufficient penalty. He ordered, in addition to a fine of $30,000, a term of suspended imprisonment.

49 With respect to the other offences committed by Mr Carter and in respect of the offence committed by The House of Relocators Pty Ltd, the learned sentencing judge regarded that fines were appropriate.

50 His Honour said that he was 'more than satisfied' that it was appropriate to make permanent prohibition orders against the appellants.

51 In the appeal to a single judge, it was not alleged that the learned magistrate had committed any express error. Rather, it was alleged that the suspended imprisonment order, the quantum of the fines and the permanent prohibition orders were manifestly excessive.

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.

53 However, McKechnie J concluded, having regard to the fines, the lack of malice or intention on Mr Carter's part and his personal circumstances, in particular that he was the carer of his 12-year-old child, that the imposition of the sentence of suspended imprisonment was manifestly excessive and he set it aside.

54 With respect to the prohibition order, his Honour observed that the appellant had agreed to it. His Honour rejected the submission that s 55 of the Act should be construed to find a Parliamentary intention not to permanently deny a person's right to derive income from animals, except in the most extreme circumstances. He also rejected a submission that Parliament would not have intended that a person convicted of offences in respect of particular animals should be prohibited from being in charge of all animals.

55 His Honour held that a prohibition order was imposed primarily to ensure the future safety of animals and that, in the circumstances of the case, the permanent prohibition orders were appropriate.

56 With respect to the plea agreement, his Honour referred to the principles set out by Le Miere J in Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317; (2006) 164 IR 375 [53]. His Honour said that he applied those principles. He concluded:

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 [23].

57 The grounds of appeal speak of McKechnie J's discretion miscarrying. Of course, McKechnie J was not exercising a sentencing discretion. He was exercising appellate jurisdiction pursuant to pt 2 div 2 of the Criminal Appeals Act 2004 (WA). Unless the appellant demonstrated that the magistrate at first instance had erred in the exercise of his sentencing discretion, McKechnie J had no entitlement to interfere with the sentences and orders he made.

58 As I apprehend the grounds of appeal, they allege that his Honour erred by failing to conclude that the quantum of the fines and permanent prohibition orders were manifestly excessive. In other words, that they were unreasonable or plainly unjust and accordingly a substantial wrong had occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

Ground 2 - Were the fines manifestly excessive?

60 To determine whether the fines were manifestly excessive, it is appropriate to examine them from the perspective of the maximum sentence prescribed by law for the offence; the standards of sentencing customarily observed with respect to it; the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed; and the personal circumstances of the offender.

61 The minimum penalty for an offence contrary to s 19(1) of the Act, when committed by an individual, is a fine of $2,000 and the maximum penalty is a fine of $50,000 and imprisonment for 5 years. In the case of a corporation, s 88 of the Act provides:

A body corporate that is convicted of an offence is liable to a penalty of -

(a) if a minimum penalty is specified in relation to that offence, not less than 5 times that minimum penalty; and

(b) in any event, a maximum penalty of not more than 5 times the maximum penalty specified in relation to that offence.

62 Thus, in case of The House of Relocators Pty Ltd, the minimum fine that could be imposed upon it for each offence was $10,000 and the maximum fine was $250,000.

63 It is significant to note that the Act, which came into operation on 4 April 2003, significantly increased the maximum penalty for animal cruelty offences when compared to its predecessor, the Prevention of Cruelty to Animals Act 1920 (WA). The maximum penalty under the repealed Act was a fine of $5,000 or 12 months' imprisonment. This increase must be taken as being an indication that the legislature viewed offences of this type as being serious and that previous maximum penalties were inadequate: Holding v Parkin [2012] WASC 113 [23] (Hall J).

64 The only comparable case cited by the appellants in support of this ground was Anderson v Moore [2007] WASC 135. It is difficult to understand how this case could be of any assistance. It is an appeal against conviction and not sentence. Holding v Parkin was an appeal against sentence, but the issue there was whether a term of immediate imprisonment was appropriate.

65 In Holding v Parkin, Hall J set out the factors which, in his opinion, were relevant to the assessment of the circumstances of an offence of animal cruelty. His Honour said:

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:

1. the nature of the harm inflicted on the animal (see definition of 'harm' in s 5);
2. the length of time during which the animal suffered;
3. the amount of suffering caused, that is the extent of any injury or the degree of pain or the amount of distress;
4. the vulnerability of the animal, both in general and in relation to the particular offender;
5. whether the conduct that caused the harm was a single act or a course of conduct; and
6. whether the conduct was deliberate, intentional or planned, or was neglect of a duty to animals (one will not necessarily be more serious than another, it will depend upon the circumstances).

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].

66 I respectfully adopt what his Honour has said, although, I do not understand his Honour to be suggesting that the six factors he referred to are an exhaustive list of relevant factors.

67 Having regard to the factors referred to by Hall J in Holding v Parkin, it becomes immediately apparent that each of the offences was very serious. I will not repeat the facts of each offence. They speak for themselves. It is sufficient to say that in each case the appellant's neglect and ill-treatment caused a great deal of prolonged and unnecessary suffering to the animals concerned. In some cases, the animals were surrendered to the RSPCA, but in others the animals had to be put down. All of the animals in Mr Carter's care were completely helpless and dependent upon him. While it must be accepted, having regard to the learned magistrate's findings, that Mr Carter did not act out of malice, his level of neglect in failing to provide an even basic level of care and animal husbandry and to, in effect, allow them to starve, was indicative of a high level of culpability.

68 There were mitigating factors in respect of each offence, the most significant of which was the plea of guilty. Although the pleas were not made at an early stage in the proceedings and were made in the face of a strong prosecution case, they were mitigatory. Other than the pleas of guilty, there was little to be said in favour of the appellants. Although Mr Carter was faced with drought, precious little was done to alleviate the animals' suffering.

69 Mr Carter's prior convictions were relevant. While he was not to be punished a second time for what he had done in the past, they underscore the need for personal deterrence. Further, Mr Carter was unable to make any legitimate claim to prior good conduct in respect of his care of animals.

70 I am far from persuaded that any of the fines imposed upon the appellants were manifestly excessive. Each offence involved significant ill-treatment of animals. Apart from the plea of guilty in each case, there was very little by way of mitigation. Personal and general deterrence were the dominant sentencing factors. Having regard to all of the circumstances, none of the individual fines that were imposed upon the appellants were unreasonable or plainly unjust. McKechnie J did not err in his conclusion that the fines imposed by the learned magistrate were not manifestly excessive.

71 Although Mr Carter did not allege a breach of the totality principle, I have considered whether the total fine imposed upon Mr Carter infringed that principle. The total fine imposed upon him as an individual was $83,000.

72 In my opinion, that sum properly reflects the overall criminality having regard to all of the circumstances of the case taken as a whole, including those referable to Mr Carter personally. This was neglect on a very serious scale which caused much suffering to a substantial number of animals over a significant period of time. It warranted a substantial financial penalty. There has been no breach of the totality principle.

73 In each appeal, ground 2 has no reasonable prospect of succeeding. I will not grant leave to appeal in respect of it. I now turn to ground 1.

Ground 1 - Were the permanent prohibition orders manifestly excessive?

74 Section 55 of the Act is relevantly in these terms:

(1) A court convicting a person of an offence under this Act may, in addition to imposing a penalty, make any other orders against the offender that the court considers appropriate to protect the welfare, safety and health of an animal, a group of animals or animals in general.

(2) Without limiting subsection (1) a court may -

(i) being in charge of; or

(ii) having contact with,

a specified animal, an animal of a specified kind, or an animal of any kind -

(iii) for a period the court thinks fit (which may be permanently); and

(iv) either absolutely or unless specified conditions are satisfied;

75 It is apparent from the words in s 55(1) that the purpose of a prohibition order is 'to protect the welfare, safety and health of an animal, a group of animals or animals in general'.

76 This purpose is entirely consistent with the intention of the Act generally as expressed in s 3(2), in these terms:

(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.

77 In my opinion, the primary purpose of a prohibition order is to protect animals and not to punish an offender, although, the imposition of a prohibition order may well have adverse consequences to the offender in addition to the penalty imposed for an offence.

78 There is no doubt that pursuant to s 55(2) of the Act, a court has the power to prohibit an offender from being in charge of 'an animal of any kind' and that the period of such a prohibition may be permanent.

79 The appellant submitted that the permanent prohibition imposed upon the appellant was neither appropriate nor necessary. The appellant contended that it had not been made out that a permanent prohibition was necessary for the protection of animals in the future. The appellant argued that 'a temporary or a conditional prohibition' were more appropriate dispositions. Further, it should not have been expressed to prohibit the appellant from being in charge of 'any animals'.

80 The discretion to make a prohibition order is enlivened by the conviction of a person for an offence under the Act and is in addition to the imposition of a penalty for such an offence. As I have said, the primary purpose of a prohibition order is to protect the welfare, safety and health of an animal or animals in the future. The discretion given to the court to make an order is wide. Of course, it must be exercised judicially. A court considering whether to make a prohibition order and its terms should give consideration to all of the factors relevant to the imposition of the penalty, as well as any other factors which it may consider relevant to the exercise of that discretion, including whether the appellant has prior convictions for offences under the Act. In my opinion, if made, a prohibition order should be no more onerous in its length and conditions than is required to achieve the aim of animal protection.

81 It is unnecessary to repeat what I have already said about the seriousness of the offending in this case. I regard it as a very bad case of animal cruelty. It shows that the appellant is utterly unable to properly care for farm animals. The offences were not isolated or out of character. Unfortunately, Mr Carter has a track record of similar offending. Contrary to the submission put on behalf of the appellant, the prior convictions did not occur so long ago as to be of little weight.

82 Although the appellant's offences occurred during times of drought, droughts are a relatively common phenomenon in this State. It is patently clear that the appellant is unable to look after animals even in a most basic way in drought. His conduct is of such seriousness that it is reasonable to infer that he should not be permitted to keep animals generally. A permanent prohibition was appropriate in order to protect animals. It is relevant that the appellant agreed to the imposition of the permanent prohibition. In my opinion, the imposition of the permanent prohibition was not unreasonable or plainly unjust. The learned magistrate did not err in making such an order in respect of each appellant, and McKechnie J was right to so find.

Barbaro v The Queen [2014] HCA 2

84 I have referred to the plea agreement reached between the prosecution and the appellants and how the prosecutor dealt with it on 2 August 2012. The circumstances in which that agreement was reached and its precise terms were set out by McKechnie J as follows:

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:

1. $14,000
2. $30,000
3. $14,000
4. $25,000
5. Withdrawn

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.

It also agreed that the appropriate penalty would be a fine and not a term of imprisonment [18] - [19].

85 The proceedings before the learned magistrate and McKechnie J occurred prior to the delivery of the High Court's decision on 12 February 2014 in Barbaro v The Queen [2014] HCA 2.

86 During the hearing of this appeal, the court alerted counsel to the decision and sought the parties' submissions in respect of it. The parties made submissions. The appellants did not submit that they had suffered any miscarriage of justice as a result of the plea agreement, or as a result of the prosecution's submission to the learned magistrate that penalties in accordance with the plea agreement should be imposed.

87 In Barbaro, the plurality, French CJ, Hayne, Kiefel and Bell JJ, held that it is wrong in principle for a prosecutor to submit to a sentencing judge its view of the bounds of the range of sentences which may be imposed on an offender, and that a prosecutor should not be permitted to do so [6], [23]. Their Honours held that it is not the role of a prosecutor to proffer a statement of the bounds of the available range of sentences [29]. The plurality said:

The statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process. If a judge sentences within the range which has been suggested by the prosecution, the statement of that range may well be seen as suggesting that the sentencing judge has been swayed by the prosecution's view of what punishment should be imposed. By contrast, if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable [33].

88 Their Honours emphasised that plea agreements or a 'settlement' of matters cannot obscure these three fundamental propositions, namely:

1. It is for the prosecution alone to decide what charges are to be preferred against an accused person.
2. It is for the accused person alone to decide whether to plead guilty to the charges preferred. That decision cannot be made with any foreknowledge of what sentence will be imposed.
3. It is for the sentencer alone to decide what sentence will be imposed [47].

89 The sentencing proceedings before the learned magistrate were conducted in a way which was contrary to the principles laid down in Barbaro, in that the prosecutor submitted to the court, albeit with the apparent consent of the appellants, his view as to the sentences which should be imposed on the appellants. This said, the learned magistrate informed the parties that he was not bound by any agreement reached by them. He expressly told the appellants this prior to the pleas of guilty being entered. The appellants nevertheless proceeded to enter guilty pleas. With respect to the quantum of the fines, I note they are the same as set out in the plea agreement.

90 Although the proceedings before the learned magistrate were conducted in an irregular way having regard to what was said by the plurality in Barbaro, I would not allow the appeals as a consequence because I consider that no substantial miscarriage of justice has occurred: s 14(2) read with s 18 of the Criminal Appeals Act. In my opinion, the fines, both individually and collectively, and the prohibition orders that were made in respect of the appellants were entirely appropriate having regard to the circumstances of the case, ignoring, as I do, the plea agreement and the submissions as to the bounds of any penalty or order. In other words, were I to exercise the power to resentence the appellants, I would not have imposed any different sentences or orders.

91 In each appeal, the grounds of appeal have not been made out. The appeals must be dismissed

92 I would make the following orders on each appeal:

1. Leave to appeal on ground 2 is refused.
2. The appeal is dismissed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE HOUSE OF RELOCATORS PTY LTD -v- GINBEY [2014] WASCA 94 (S)

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : THE HOUSE OF RELOCATORS PTY LTD -v- GINBEY [2013] WASC 188

Criminal law - Appeal against sentence - Application for costs - Turns on own facts

Animal Welfare Act 2002 (WA), s 19(1), s 55(1)

Criminal Appeals Act 2004 (WA), s 14, s 18, s 19(2)(b), s 20

Barbaro v The Queen [2014] HCA 2

The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94

Wilson v McDonald [2009] WASCA 39 (S)

1 REASONS OF THE COURT: On 2 May 2014, this court dismissed the appellant's appeals against decisions made by McKechnie J: The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94. The only issue which remains is the question of costs, both in the single judge appeal and in the appeal to this court. The parties agreed that the issue should be decided on the papers. Each party has taken the opportunity to file written submissions which have been carefully considered.

2 The relevant background is as follows. The House of Relocators Pty Ltd is a company owned and controlled by Phillip William Carter. Mr Carter pleaded guilty in the Midland Magistrates Court to four counts of animal cruelty contrary to s 19(1) of the Animal Welfare Act 2002 (WA). The House of Relocators Pty Ltd pleaded guilty to one count of animal cruelty.

3 On 9 August 2012, his Honour Magistrate Benn fined Mr Carter a total of $83,000 and made an order that he be imprisoned for 6 months and 1 day suspended for 2 years. He also ordered, pursuant to s 55(1) of the Animal Welfare Act and subject to certain exceptions, that Mr Carter be permanently prohibited from being in charge of any animal. The learned magistrate fined The House of Relocators Pty Ltd $30,000 and made a prohibition order in similar terms to the order made in respect of Mr Carter.

4 The appellants appealed against the sentences imposed upon them to McKechnie J. Each appellant's grounds of appeal were, in substance, identical. It was alleged that the sentences and orders were manifestly excessive. McKechnie J upheld Mr Carter's appeal in part, to the extent that he set aside the suspended imprisonment order. Mr Carter's appeal was otherwise dismissed. The appeal by The House of Relocators Pty Ltd was dismissed. His Honour gave liberty to the parties to file written submissions as to the costs of the appeals. A perusal of the relevant files has revealed that no submissions were filed. The certificates of conclusion in each appeal make no mention of any costs order. Accordingly, the question of costs in the proceedings before McKechnie J was not dealt with.

5 Each of the appellants then appealed to this court. Their grounds of appeal were identical. Ground 1 alleged that the permanent prohibition imposed was manifestly excessive. Ground 2 alleged that the fines imposed on each appellant were manifestly excessive. Leave to appeal was granted in respect of ground 1. The question of leave on ground 2 was referred to the hearing of the appeal. This court found that there was no merit in either ground in each appeal. Accordingly, the appeals were dismissed.

6 The respondent seeks an order that the appellants pay his costs in respect of each appeal to the single judge and to this court. The appellants submitted that no order for costs should be made in the appeals.

7 Mr Carter submitted that in the single judge appeal he was largely successful because the learned judge set aside the suspended imprisonment order. The respondent submitted that, while the suspended imprisonment order was set aside, he conceded the point prior to the hearing, and that the real issue to be determined by his Honour was whether the fines and prohibition order were manifestly excessive. As to these issues, the appellant failed.

8 Otherwise, the submissions of Mr Carter and The House of Relocators Pty Ltd as to costs were identical. They submitted that no order as to costs should be made because:

1. of the alleged public interest in the appeals insofar as they 'clarified and elucidated on points of law';
2. in the proceedings before this court, leave to appeal was granted on ground 1; and
3. each appellant will suffer hardship if costs orders are made.

9 There is no issue that this court has the power to make a costs order in respect of the proceedings before the single judge (s 18 of the Criminal Appeals Act 2004 (WA) read with s 14 of that Act) and of the appeal to this court (s 19(2)(b) of the Criminal Appeals Act). The power to award costs pursuant to these provisions is constrained by s 20 of the Criminal Appeals Act, but that section does not apply to these proceedings.

10 In Wilson v McDonald [2009] WASCA 39 (S) [10], Martin CJ, with whom Beech AJA agreed, held that the provisions of the Criminal Appeals Act with respect to costs should not be construed as importing a general rule to the effect that costs should ordinarily follow the event. Outside the specific topics covered by s 20 of that Act, the Act should be construed as conferring a general and unconstrained discretion with respect to costs to be exercised with reference to all relevant circumstances, including any relevant aspect of the public interest.

11 In the present case, the following factors are relevant to the exercise of that discretion:

(1) Mr Carter succeeded in his single judge appeal to the extent that the suspended imprisonment order was set aside. However, he did not succeed on the question of the quantum of the fines or the imposition of a permanent prohibition order.

(2) The House of Relocators Pty Ltd failed in its appeal to the single judge.

(3) Both appellants failed in their appeals to this court.

(4) None of the appeals involved matters of exceptional public importance. The appeals did not concern the construction of the Animal Welfare Act. Rather, the appeals were determined on their particular facts in the light of well-established general principles concerning appeals against sentence. The appellants noted, in their written submissions, the reference in the reasons of this court to the High Court's recent decision in Barbaro v The Queen [2014] HCA 2. Barbaro was not raised by the appellants. Rather, the bench raised it. This court has done no more than apply the principles set out by the majority in that case.

(5) None of the appellants' arguments were accepted in this court. The fact that leave to appeal was granted on ground 1 is of little weight. The threshold justifying a grant of leave is relatively low. A decision about leave, made as it was in this case on the papers, is made in the absence of written submissions from the respondent and without full argument. In this case, once the written submissions of the respondent were considered and the oral argument heard, it was apparent that there was no merit in ground 1.

12 As to the issue of hardship, assuming it to be a relevant factor, the evidence before this court was insufficient to demonstrate the hardship asserted by the appellant.

13 In our opinion, the respondent should have his costs in the appeal to this court to be taxed. In respect of the proceedings before McKechnie J, as the appellant Mr Carter was partially successful in that appeal, the appropriate order is that there be no costs in respect of it. However, the respondent should have his costs in respect of the appeal by The House of Relocators Pty Ltd to be taxed.

1. The House of Relocators Pty Ltd shall pay the respondent's costs in CACR 121 of 2013 to be taxed if not agreed.
2. Phillip William Carter shall pay the respondent's costs in CACR 122 of 2013 to be taxed if not agreed.
3. There will be no order as to costs in respect of SJA 1102 of 2012 between Phillip William Carter and the respondent.
4. The House of Relocators Pty Ltd shall pay the respondent's costs in respect of SJA 1100 of 2012 to be taxed if not agreed.