Full Case Name:  Joyce v Visser

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Country of Origin:  Australia Court Name:  Tasmanian Supreme Court Primary Citation:  [2001] TASSC 116 Date of Decision:  Tuesday, October 2, 2001 Judge Name:  Crawford J Judges:  Crawford J Attorneys:  J C Kitto and J P Ransom Docket Num:  LCA16/2001

The appellant was convicted of failing to provide food and water to dogs who were chained to a spot. Citing the extreme nature of the neglect and the need for general deterrence, the trial judge sentenced the appellant to three months' imprisonment. On appeal, the appellate judge found the sentence to be manifestly excessive and reduced the sentence.

1 In a court of petty sessions at Launceston, following a defended hearing, all of eight charges against the applicant were found proved. Subsequently he was convicted of them and sentenced to three months' imprisonment.

2 The charges were under the Animal Welfare Act 1993. Counts 1 and 5 related to an adult female black and white Border Collie cross. Count 1 charged him with omitting between 12 May and 12 July 1999 to do a duty which caused unreasonable and unjustifiable pain and suffering to the animal contrary to the Act, s8(1). Particulars of the charge were that he left the dog chained by the neck and failed to provide it with appropriate and sufficient food, drink and exercise. Count 5 charged him with having the care of the animal between 12 May and 12 July 1999 and using a method of management of it which was reasonably likely to result in unreasonable and unjustifiable pain and suffering to it, contrary to s7. The same particulars were provided. Counts 2 and 6 related to a male tan and white Jack Russell terrier. The charges and the particulars were the same respectively as counts 1 and 5. Counts 3 and 7 related to a female black and white Border Collie cross puppy. The charges and particulars were the same respectively as counts 1 and 5. Counts 4 and 8 related to a female tan and white puppy. Count 4 charged the applicant with omitting between 12 May and 12 July 1999 to do a duty which resulted in the death of the animal, contrary to the Act, s9. Particulars of the charge were that he left the animal chained by the neck and failed to provide it with appropriate and sufficient food, drink and exercise. The substance of the charge and its particulars in count 8 were the same as counts 5, 6 and 7.

3 The finding that the complaint was proved is attacked by the first two grounds in the notice to review, which are that the learned magistrate failed to give sufficient reasons and that the finding was unsafe and unsatisfactory.

4 Although evidence of the ownership of the dogs may have been relevant, it was not an element of any of the charges. Under the Act, s6, a person who has the care or charge of an animal has a duty to take all reasonable measures to ensure the welfare of it. To prove an offence against s7, it was necessary for the prosecution to prove (inter alia) that the applicant had the care of the dog which was the subject of the charge. To prove an offence against s8 it was necessary for the prosecution to prove (inter alia) that the applicant had possession or custody of the animal the subject of the charge. For the purpose of the offence against s9 the elements of it did not require proof that the applicant had the care, possession or custody of the animal, but in the circumstances of the case that question was the most important issue.

5 It is easier to understand the nature of the contest and of what occurred at the hearing if the evidence given by the applicant is first related. It was his defence that he did not have the care, possession or custody of the dogs. His evidence was that they were owned by his ex-wife Debra Joy Joyce, and that at the times referred to in the charges he did not live all the time at the Evandale property where the authorities found the dogs on 12 July 1999. He came and went, he said, adding that he lived at his mother's place. He did not say where that was, but I infer that it was Paper Beach because that was the address she gave when giving evidence. In his evidence-in-chief he said that he was not able to look after the dogs. On 25 May 1999 the RSPCA telephoned him to state that they were coming to get them. He told whoever telephoned that he would not be present at the house because it was not safe for him to be there. (He gave no clear evidence about that, but from statements he made during the course of the hearing it was his case that he and his son left the property as they were fearful for their safety because of threats they had received. I add that it also appeared to be his case, from statements made by him during the course of the hearing, that his ex-wife was the person who telephoned the RSPCA with a request to collect the dogs.) He said that during that telephone conversation the RSPCA said that they would be out to get the dogs and he said "I wouldn't be there, take them".

6 Notwithstanding that in examination-in-chief he said that he was not able to care for the dogs, he denied having said that in cross-examination. He said "she looked after them". He did not amplify what he meant by that. He had lived at the Evandale address prior to 24 May. He had only happened to go to the property on 12 July, on the occasion when the authorities found the dogs there, because he took there one Toby Williams who was staying there and because he took a trailer back there. (Both Constable Williams and Constable Lucas denied that Toby Williams was present. When the applicant called Toby Williams as a witness he gave no evidence that he was present.) In re-examination he explained that he was unaware that the dogs were still on the property and to the best of his knowledge the RSPCA had taken them before then. It had not been safe for him and his son to be there inferring, I think, that was the reason why he had not been there and had not known that the dogs were still on the property. The only other evidence of any substance given by him consisted of a denial of admissions attributed to him by the police on 12 July, when the authorities found the dogs on the property.

7 Constable Williams gave evidence for the prosecution that on 12 July he went to the property with Constables Tyson and Lucas and an RSPCA officer, Paul Wild. On their arrival the applicant was not present. In an old stable they located the four dogs. They were all chained by the neck. The three living dogs were very skinny and appeared to have been starved. Only one had water. There was no evidence of food for the animals. The stables were in very poor condition. There was plenty of dog excrement around. The fourth dog was dead. It was still chained by the neck and was lying on top of a manger in a part of the stable. None of that evidence was challenged by the applicant. However, he denied making admissions attributed to him by Constable Williams. The officer's evidence was that upon the applicant arriving at the property that day, he informed the applicant that in his opinion the dogs had been starved, to which the applicant responded that the dogs belonged to him, that he had run out of dog food, that he had no money to buy more and that he had been feeding them scraps from the house from time to time. Concerning the dead dog, the applicant told him that he had thrown it up on top of the manger and that it had died a day or two or three before. That evidence was also denied by the applicant. Constable Williams said that he had been to the property prior to 12 July and although on those occasions he had not seen any dogs, he could hear them barking when he was at the house. He had been to the address probably four to six times over the previous two or three months.

8 Evidence was given by Constable Lucas which was essentially the same as the evidence of Constable Williams, except he said that he had been to the property three or four times over the previous 12 months and that the applicant lived there. He added that on 12 July there were no food scraps for the dogs, nor bowls from which the dogs might have been fed.

9 Evidence was also given for the prosecution by a police photographer and by the RSPCA officer, Mr Wild. He gave evidence of his observations of the dogs when he went to the property with the police officers. Generally his evidence of the condition of the dogs agreed with their evidence. The three dogs which were alive were in an extremely poor state. The general living conditions in the stables were appalling. There was a lot of rotting garbage. There was a very bad odour and in terms of general hygiene the conditions were absolutely deplorable, he said. The dogs "were very, very thin". He described the dead dog as being in extremely poor condition, "very, very thin" and also chained. He did not see the applicant that day. In cross-examination he denied any knowledge of plans having been made for the RSPCA to collect the dogs on an earlier date.

10 Evidence was also given for the prosecution by a veterinary pathologist and a veterinary surgeon. The pathologist examined the dead dog and the surgeon examined the three living dogs. The dead dog was very emaciated with no body fat apparent. The stomach was empty except for bile, mucus and small pieces of grass. The intestinal contents were also bile stained. Other internal organs appeared normal. The pathologist's opinion was that the likely cause of death was that the dog was emaciated, possibly through starvation or malnutrition. In response to a question concerning how long it would take for an otherwise healthy dog to reach that condition, he said it would take weeks.

11 The surgeon who examined the living dogs, gave evidence establishing that they were emaciated or in very thin condition. All three were under-nourished, the Jack Russell particularly so. Between them they had a moderate or heavy flea burden. In the surgeon's opinion their body condition could be ascribed to under-nutrition, and their flea burden and uncertain worming history may also have contributed to their low body weight. Asked for an indication concerning how long it would take for the dogs to reach the condition in which they were found, his evidence was that without illnesses it would take at least a month. There was no sign of other illnesses.

12 I have related the evidence of the applicant. In an attempt to establish that the dogs were not in his care, possession or custody, that he did not know that they were on the property and that he was at all material times living with his mother, he called a number of witnesses, the evidence of some of whom provided little support for his case and the evidence of others positively harmed it. His good friend, Mr Stuart Reynolds, gave evidence that was plainly inadmissible as hearsay, that the applicant's wife owned the dogs. He accepted that she had not told him that and did not give evidence of his source of knowledge. He had never visited the Evandale property since the applicant and his wife had parted. He was unable to say what type or breed of dogs were on the property. He did not know whether the dogs he believed were owned by the applicant's ex-wife were in fact the dogs which were found on the property by the authorities. The learned magistrate correctly referred to Mr Reynolds' evidence as weak.

13 The applicant called Mr Bruce Mann to the witness stand. He gave evidence of having rented the property to the applicant. He said that there were a number of small dogs on the property which the applicant's ex-wife had once said to him were owned by her and there were also a couple of bigger dogs which he believed were owned by the applicant. He also said that Toby Williams was at the property on and off, "sometimes he'd be there right through to June, May, June, July". In cross-examination he said that Toby Williams was there a couple of times and that it was roundabout halfway through 1999. He was unaware of anyone coming to the property to look after the dogs.

14 The applicant's mother, Una Joyce, gave evidence. Although she described some dogs as having been owned by the applicant's wife, she did not know what dogs were on the Evandale property or whether in fact there were any dogs on it. She said that the applicant came to stay with her from 24 May onwards. Her hearsay evidence that the applicant's ex-wife told her by telephone on 2 June and again on 14 June that she was sending the RSPCA to the property to collect the dogs, and other hearsay evidence, was correctly rejected by the learned magistrate as inadmissible. In re-examination she agreed with the leading question from the applicant that from 24 May he spent most of his time living at her residence. In his reasons, the learned magistrate mentioned that her evidence however, allowed for the fact that he also spent time elsewhere.

15 A most important witness, from the applicant's point of view, might have been thought to be his ex-wife, Mrs Debra Joyce, and she was called to give evidence by him. Rather than assist his case, she did it substantial harm. Asked who was responsible for the dogs on the property, she replied "all of us really". She said that she did not contact the RSPCA to ask for the dogs to be collected. Instead she telephoned the applicant and asked if he could "put the dogs in a good home or put an ad in the paper", to which he replied that he wanted to keep them, to look after them. She insisted that she had telephoned the applicant and not the RSPCA.

16 The hearing extended over nine days. It was only on the ninth that the applicant was represented by a legal practitioner. On that day he called Toby Williams to give evidence. The evidence was that in 1999 he stayed at the Evandale property. He could not remember when he left but he thought it was around about the middle of 1999. There were dogs on the property. He understood they were owned by Debra Joyce and he considered that they were being properly cared for up until when he left the property. When he did so, the applicant and his son remained on it (which was contrary to the applicant's case), along with the dogs which were then in good health. The learned magistrate, in his reasons for finding the complaint proved, stated that the implication from Mr Williams' evidence was that it was the applicant who took the responsibility for caring for the dogs. I do not understand why Mr Williams was called to give evidence. In a seemingly desperate attempt to salvage the wreckage, the applicant sought to give further evidence. The learned magistrate generously allowed him to do so. He said that he left the property before Toby Williams.

17 In his reasons for finding the complaint proved, the learned magistrate related much of the evidence and made the comments to which I have referred. His Worship concluded that "the conduct of the defence has seen the defendant ducking and weaving, even to the point of exhibiting frustration at his own witness' answers or finally taking the extraordinary step of contradicting a witness in order to escape liability". The learned magistrate said that the evidence was overwhelming that it was the applicant who had the statutory duty of care for the dogs. He accepted the police evidence that when first confronted at the property the applicant acknowledged his duty of care to the police and went on to explain why he had not been feeding the dogs except for table scraps. The learned magistrate then concluded:

"I am satisfied on the whole of the evidence that it was the defendant and no other who had the care or charge of these animals and who consequently had the statutory duty to take all reasonable measures to ensure their welfare. It took in the order of a month for these animals to be starved into the condition in which they were found and for one to be starved to death. For that situation the evidence precludes any finding other than it was the defendant who was responsible under the statute for their care and for their ultimate fate."

18 The evidence against the applicant establishing that he was responsible for the care of the dogs and that they were in his charge was overwhelming, as the learned magistrate said. The only witness to say that was not so was himself. The evidence against him included his admissions to Constable Williams and Constable Lucas; his presence at the Evandale property on the day the authorities visited it and discovered the dogs; his own evidence that he came and went to the property (if so it is unlikely that he was unaware that the dogs were there); the evidence of his witness, Mr Mann, that the applicant was the tenant of the property and that Mr Mann was not aware of anyone else coming to look after the dogs; the evidence of the applicant's witness Debra Joyce that she asked him to put the dogs in a home but he declined to do so, saying that he wanted to keep them (the learned magistrate said that she gave every impression of being truthful in her responses); and the evidence of the applicant's witness Toby Williams that when he left the property in 1999 the applicant and his son remained on it with the dogs. The applicant's witnesses Stuart Reynolds and Una Joyce did not assist his case that the dogs were not in his care and charge. Whether or not he was living most of the time with his mother would not, in the circumstances, have changed that.

19 In his submissions in support of the first ground of the motion to review, that the learned magistrate failed to give sufficient reasons for finding the complaint proved, counsel for the applicant referred to the frequently cited passage in Pettitt v Dunkley [1971] 1 NSWLR 376 at 382, where Asprey JA said that in the usual case the findings of fact and reasons for the decision are essential for the purpose of enabling a proper understanding of the basis upon which the case was decided, and the person acting judicially has a duty to state the findings and the reasons for the decision adequately for that purpose. Having regard to those principles I am satisfied that in this case the learned magistrate complied with that duty. He related much of the evidence and commented on some of it, in the ways I have mentioned. He found the evidence against the applicant overwhelming and his reasons for concluding that are obvious. He did not deal with all of the evidence in detail, stating as he did so whether he accepted or rejected it and giving his reasons in that regard, but he was not obliged to do so. In my view, in all the circumstances the published reasons were adequate for the purpose of understanding the basis upon which the case was decided.

20 The submissions of counsel for the applicant concerning the second ground, that the finding that the complaint was proved was unsafe and unsatisfactory, were not lucid. He argued that before proceeding to convict the applicant the learned magistrate should have had the applicant psychiatrically assessed. At the same time he disavowed an argument that the learned magistrate should have had the applicant psychiatrically assessed before determining whether the complaint was proved on the evidence. The submissions did not address the second ground of the motion at all and in fact they were contrary to it. I have no hesitation in concluding that the finding that the complaint was proved was not unsafe or unsatisfactory. The learned magistrate was justified in concluding that the evidence was overwhelmingly in favour of making that finding.

21 The third and final ground of the motion to review is that the penalty imposed was manifestly excessive. In his submissions in mitigation, the applicant's legal practitioner advised the learned magistrate that the applicant was 52 years of age and separated with a son aged nine years living with him. He was a disability support pensioner receiving $260 per week. He had no prior convictions for offences of the same type. He had received limited schooling to the age of 13 years. He had served in the army in Vietnam on active duty. He had experienced a variety of employment.

22 In his comments on passing sentence, the learned magistrate said:

"I won't go into the detail again of your management, more properly mismanagement of these animals. I have been through it sufficiently in giving the reasons for my decision. Let it be said, however, that this is an horrendous case of cruelty to animals and the evidence that was given of their discovery, of their later veterinary examination and of the post-mortem was quite harrowing. Your knowledge of the condition of these animals extended over the period of at least one month on the evidence of the time it took for them to get into their poor condition, and in all of that time you did nothing but on your own account feed them table scraps. And they were starving by the day. One animal starving by the day sufficient so that it in fact died and when it was dead you threw it up on top of the cupboard. The agony these dogs had gone through can only be imagined. One was starved to death as I say, with your knowledge of their deteriorating condition, and the others were in the process of starvation and no doubt suffering the agony that would have accompanied that. It is one of the worst cases of animal cruelty to have become before this court. It is a case deserving of a clear deterrent penalty. The message needs to be got out and should be made plain that cases such as this will not be tolerated. I take into account as much as I can your personal circumstances but the deterrent aspect overrides any consideration of individualised treatment. You are convicted upon the complaint as a whole and you are sentenced to a term of three months' imprisonment. The defendant will pay the costs of $246.65. And I allow the claim for veterinary treatment of $90. ... The defendant should be disqualified for a substantial time from the care or charge of any domestic animals and that will be for a period of 10 years."

23 For the four offences against s7, the maximum prescribed penalty for each was a fine not exceeding $2,000 or imprisonment for six months, or both. For the three offences against s8, the maximum for each was a fine not exceeding $5,000 or imprisonment for 12 months, or both. For the offence against s9, the maximum was a fine not exceeding $10,000 or imprisonment for 18 months, or both. Counsel accepted that no sentencing tariff has been established by courts with respect to offences of the nature of these.

24 The sections of the Act creating the offences span a very wide range of factual situations and create a very wide range of penalties. The applicant's offences were relatively serious examples of cruelty to four animals. Because they were chained up, the dogs could not seek help by going to other humans or by foraging for food and water. They were entirely dependant on the applicant and for a long period of time extending over a number of weeks, he did little for them by way of providing food except for some table scraps. When the three living dogs were discovered only one had water. He was aware of the death of the fourth dog, probably two or three days before the arrival of the authorities, and yet it appears that he did nothing to alleviate the suffering of the other dogs. His neglect of all of them was extremely cruel and uncaring. Although this is a case of neglect rather than deliberate acts of cruelty such as deliberate and extreme violence or torture, the only conclusion reasonably open is that his neglect of the dogs was a conscious one. He must have known that the dogs, for which he was responsible, were starving.

25 The learned magistrate's view was that the need for general deterrence in this case overrode any consideration of individualised treatment. Counsel for the respondent submitted that the Court ought to hold the view that reasonable members of the public would rightly be outraged and revolted by the offences. I agree.

26 When dealing with an appeal from a sentence imposed by a magistrate I must have regard to the principles enunciated by Burbury CJ in Whittle v McIntyre [1967] Tas SR 263 (N C 6):

"It is necessary to say emphatically that a police magistrate in deciding what the appropriate penalty is for an offence, is entrusted by the law with a very wide discretion. An appellant is not entitled to ask the Supreme Court to substitute its opinion for that of the police magistrate. The appeal against sentence is a limited appeal. The Supreme Court can only properly allow an appeal against sentence if it plainly appears that the police magistrate made some error in the exercise of his discretion or that a sentence imposed is so manifestly excessive that it is only explicable upon the view that the police magistrate did err in some way. Indeed, it is of great importance that a police magistrate should have a wide discretion in the delicate and anxious task of sentencing - so long as he takes into account all proper factors it is for him to determine what weight should be attached to each."

27 Reflection on those principles has caused me to hesitate concerning the proper outcome for this appeal. Eventually I have come to the conclusion that the penalty of three months' imprisonment was manifestly excessive in all the circumstances of the case. Although the learned magistrate described the case as one of the worst cases of animal cruelty to have come before him, and I know nothing of his Worship's experience in that regard, it is not difficult to imagine much worse cases involving deliberate acts of cruelty to animals, such as deliberate and extreme violence or torture. The applicant was entitled to some benefit from his apparent lack of prior convictions at the age of 52 years. The learned magistrate ought to have considered, I think, that he was dealing with a plainly unsophisticated and uneducated man who at the relevant time was likely to have been living in extremely poor circumstances and to have lacked some of the personal qualities which most members of the community have and which, if he had them, would have better fitted him to care appropriately for the animals. A short period of imprisonment, up to one month in all, would not have offended principle, but I think one of three months did so.

28 Because it is my judgment that the penalty was manifestly excessive, it will be set aside. It is appropriate that I re-sentence the applicant. However, before proceeding to do so, I will hear further from counsel and particularly from the applicant's counsel who confessed that by reason of his personal incompetence he failed to obtain and present a necessary psychiatric report. The applicant, through his counsel, will be given the opportunity to remedy that omission.

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