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Wilson v Barraud[2021] QDC 223

DISTRICT COURT OF QUEENSLAND

CITATION:

Wilson v Barraud & Anor [2021] QDC 223

PARTIES:

GLENN JOHN WILSON

(Appellant)

v

MELISSA BARRAUD and DANIEL YOUNG

(Respondents)

FILE NOS:

D19/2021 (Toowoomba Registry)

DIVISION:

Appeals

DELIVERED ON:

15 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

24 May, 3 June 2021

JUDGE:

Barlow QC DCJ

ORDERS:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – defendant charged with offences under Animal Care and Protection Act 2001– defendant tried by way of summary trial – prosecution provided particulars of offences – defendant elected not to give evidence – magistrate convicted of 4 of the charges – magistrate in reasons applied principle from Weissensteiner v R – whether magistrate erred in application of Weissensteiner principle – whether particulars of offences proved – whether verdict otherwise unreasonable or insupportable having regard to the evidence.

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – defendant convicted after summary trial of 4 offences under Animal Care and Protection Act 2001 – defendant sentenced to period of imprisonment – defendant also ordered to pay costs to RSPCA under s 189 of the Animal Care and Protection Act 2001 – whether sentence of imprisonment manifestly excessive – whether order for costs under s 189 relevant consideration in sentencing.

ANIMALS – PREVENTION OF CRUELTY TO ANIMALS – OFFENCES – OTHER MATTERS – defendant convicted of offences under Animal Care and Protection Act 2001 – Royal Society for the Prevention of Cruelty to Animals (RSPCA) the prosecuting authority – RSPCA seized and cared for animals pending conclusion of proceedings – whether there is a discretion to order recovery of those costs – whether such an order is punitive or compensatory – whether costs ordered are a debt provable in bankruptcy.

Animal Care and Protection Act 2001, ss 17, 21, 182, 183, 189

Bankruptcy Act 1966 (Cth), s 82

Justices Act 1886, s 222

Braithwaite v O'Keeffe (Magistrate W J Smith, 20 November 2019), considered

Dart v Singer (unreported, Pack DCJ, District Court of Queensland, 11 December 2009), considered

Dart v Singer; Hajridin v Singer (Unreported, Durward SC DCJ, District Court of Queensland, 21 December 2012), considered

Harrison v President of the Industrial Court [2017] 1 Qd R 515, cited

Higgins, Re; ex parte Higgins (1984) 4 FCR 533, cited

House v The King (1936) 55 CLR 499, cited

Moore-McQuillan v Scott (2006) 149 FCR 486, applied

R v Doyle (2019) 3 Qd R 126, cited

R v Gaston [1971] 1 WLR 85, considered

R v Piccinato [2019] QCA 123, applied

R v Symss [2020] QCA 17, applied

RSPCA v Baskerville (Magistrate Kilmartin, 8 March 2019), considered

RSPCA v Trenear (Magistrate Bradford-Morgan, 3 July 2019), considered

Weissensteiner v R (1993) 178 CLR 217, considered

COUNSEL:

W A Seewald, for the appellant

K Gover, with her A C Braithwaite, for the respondents

SOLICITORS:

Guy Sara for the appellant

RSPCA Queensland for the respondents

Contents

Introduction1

Nature of appeal2

Background facts3

Appeal against conviction4

Charges 8 and 10 - Failure to prove particulars4

Particulars generally4

An unreasonable period of time6

Normal patterns of behaviour8

The appellant’s failure to give evidence9

Charge 14 - Failure to prove a circumstantial case10

Charge 7 – Failure to provide for treatment of Naughty13

Appeal against sentence and costs15

The hearing below15

Trenear17

O'Keeffe17

Baskerville17

Submissions on the case law18

Decision of the magistrate18

Submissions on appeal19

Consideration22

Sentence22

Recovery of RSPCA’s costs24

Conclusions26

Introduction

  1. [1]
    On 18 December 2019, in the Magistrates Court in Toowoomba, the appellant was convicted of four offences under the Animal Care and Protection Act 2001 (Act).  On 17 July 2020, he was sentenced to six months’ imprisonment and he was ordered to pay the complainants’ costs, fixed at $6,470.  He was also ordered to pay the sum of $60,000 to the Royal Society for the Prevention of Cruelty to Animals (RSPCA) toward the costs it had incurred in caring for a number of animals.[1]  On 24 July 2020, the court reopened the hearing and varied the latter order to $50,782.02.
  2. [2]
    The respondents were respectively the complainants on two complaints and summonses.  They are officers of the RSPCA and are inspectors appointed for the purposes of the Act.  They filed and prosecuted the complaints pursuant to their functions of investigating and enforcing compliance with the Act.[2]
  3. [3]
    In total, the appellant had been charged with 14 offences, but the respondents called no evidence about six charges and he was discharged on those.  He was found guilty of four of the remaining eight charges.  Those four, including the particulars of each offence, were:
    1. (a)
      charge 7:  breach of his duty of care, as a person in charge of an animal (a female pit bull terrier named “Naughty”), contrary to s 17(3)(a)(iv) of the Act, by failing to take reasonable steps to provide for the animal’s needs for treatment of disease or injury (namely, an injury causing lameness to the dog’s right hind leg) in a way that was appropriate;
    2. (b)
      charge 8 - breach of his duty of care, as a person in charge of an animal (a female pit bull terrier named “Chico”), contrary to s 17(3)(a)(ii) of the Act, by failing to take reasonable steps to provide for the animal’s needs for accommodation or living conditions in a way that was appropriate, in that he confined the dog on a chain tether for an unreasonable period of time on an area of dirt and rocks, with inadequate shelter and without providing the dog the opportunity to display normal patterns of behaviour;
    3. (c)
      charge 10 – breach of his duty of care, as a person in charge of an animal (a male pit bull terrier named “Jesus”), contrary to s 17(3)(a)(ii) of the Act, by failing to take reasonable steps to provide for the animal’s needs for accommodation or living conditions in a way that was appropriate, in that he confined the dog on a chain tether for an unreasonable period of time on an area of dirt and rocks, with inadequate shelter and without providing the dog the opportunity to display normal patterns of behaviour;
    4. (d)
      charge 14 – knowingly supplying an animal (a female pit bull terrier named “Pretty Girl”) for use in a prohibited event, namely a dog fight, contrary to s 21(1)(b)(ii) of the Act, on a date or dates unknown between 1 August 2017 and 16 August 2018, resulting in the dog incurring injuries and subsequent scarring to the head, muzzle, face and neck areas and the front legs and shoulders.
  4. [4]
    The sentences were imprisonment for one month on charge 7, two months on each of charges 8 and 10 and six months on charge 14, all to be served concurrently, with parole after three months.  As I said above, he was also ordered to pay to the RSPCA costs in the sum of $50,782.02, which was for the boarding and veterinary costs incurred by it in housing and looking after the four dogs involved from the date of their seizure to 17 February 2020.[3]  The magistrate also prohibited him permanently from possessing, purchasing or otherwise acquiring any fighting breed of dog, including any dog of the following breeds or types, or any dog of a breed crossed with any of the following breeds or types: American Pitbull Terrier, American Bully, English Staffordshire Bull Terrier and American Staffordshire Terrier.
  5. [5]
    The appellant appeals against conviction, sentence and the order that he pay the RSPCA’s costs of caring for the dogs.  The grounds of appeal are that:
    1. (a)
      the verdict in respect of each charge was unreasonable and cannot be supported having regard to the evidence;
    2. (b)
      the sentence imposed was manifestly excessive;
    3. (c)
      the principle of totality was not considered when constructing the sentence;
    4. (d)
      the magistrate erred in law by failing to take into account relevant considerations in the imposition of the order that the appellant pay costs in accordance with s 189 of the Act, namely that:
      1. the length of the period for which the animals the subject of the order were accommodated by the RSPCA was increased during the course of that period due to factors outside the appellant’s control;
      2. the appellant was found guilty of only four out of 12[4] charges on the complaint and summons; and
      3. the appellant was acquitted of all charges associated with the dog “Beetle/Beat All”.[5]

Nature of appeal

  1. [6]
    The appeal is made under s 222 of the Justices Act 1886.  The appeal against conviction and the appeal against the order for recovery of costs are appeals by way of rehearing, based on the evidence that was before the magistrate and any other evidence introduced with my leave.[6]  In considering the appeal, I am required to conduct a “real review” of the evidence and to determine whether the magistrate erred in fact or law.[7]  I must make my own determination of the facts in issue from the evidence, but giving due deference and attaching a good deal of weight to the magistrate’s view.  However, “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”[8]  In order to succeed, therefore, the appellant must establish some legal, factual or discretionary error by the magistrate.[9]
  2. [7]
    In determining the appeal, I have therefore had particular regard to those aspects of the evidence relevant to each ground of appeal.  I have taken into account the magistrate’s findings of fact although, of course, I have reviewed the relevant evidence concerning contested findings and I have made my own decisions on those facts.  I do not, of course, have the benefit (as the magistrate did) of seeing and hearing the witnesses give their evidence and therefore, where issues of credit are relevant to the grounds of appeal, I give due deference to the magistrate’s findings about the facts to which those issues relate. 
  3. [8]
    Insofar as the appeal is against the sentences imposed by the magistrate, this court’s approach must be different.  In determining a sentence, the magistrate exercises a discretion.  The result is that this court will not interfere with the sentence unless it discerns that the magistrate made an error of the types described in House v The King[10] in exercising that discretion.

Background facts

  1. [9]
    The (mostly[11]) uncontentious facts, as they were found by the learned magistrate, were as follows.  Having reviewed the evidence, I am satisfied that they are correct.
  2. [10]
    On 3 August, 2018, the respondents executed two valid warrants on the property where the appellant was residing, in Yalangur.  In executing the warrants, five dogs were seized,[12] named “Beetle”, “Naughty”, “Chico”, “Jesus” and “Pretty Girl”, along with associated items such as collars and chains, photographs, mobile telephones and other paraphernalia.
  3. [11]
    Each animal was located in a different spot on the property and they were in various states of health.
    1. (a)
      Beetle was located tethered to a raised donga at the property, in which the appellant apparently resided.  The raised nature of the donga meant that Beetle had access to some form of shelter, but it was (at the time of seizure) without access to food or water or appropriate bedding.  Beetle was diagnosed with bacterial conjunctivitis after seizure.
    2. (b)
      Naughty was located in the tray of a utility vehicle on the property, untethered. Naughty, while energetic, was identified at seizure as being lame in the right hind foot.
    3. (c)
      Each of Chico and Jesus was located in a separate enclosure of bare dirt and rocks, with what the magistrate described as “a small amount of scattered straw and inadequate shelter.”  Each of them was tethered by a heavy metal chain to an axle partly buried in the ground.[13]  Chico was also diagnosed with bacterial conjunctivitis straight after seizure and Jesus was later diagnosed with the same disease.  Both were found to have heavy scarring that the magistrate found to be consistent with participation in organised dog fighting.
    4. (d)
      Pretty Girl was located in a cage on the property and was also observed to have significant scarring that the magistrate found to be consistent with participation in organised dog fighting and inconsistent with pig hunting or unorganised fights.
  4. [12]
    The magistrate determined that the appellant was in charge of each of Beetle, Chico and Jesus at the relevant times alleged by the respondents, the appellant having already admitted that Naughty was in his care.

Appeal against conviction

  1. [13]
    The appellant made a number of submissions in the appeal against conviction, which can be summarised into the following categories:
    1. (a)
      failure to prove particulars;
    2. (b)
      failure to prove a circumstantial case and the application of the principles from Weissensteiner v R;[14] and
    3. (c)
      error in incorrectly applying the ‘reasonable person’ test in relation to any breach of the appellant’s duty of care to Naughty.

Charges 8 and 10 - Failure to prove particulars

  1. [14]
    The appellant submitted that the respondents failed to prove two different “elements” of the particulars for charges 8 (Chico) and 10 (Jesus), being the questions of:
    1. (a)
      whether the appellant had confined Chico and Jesus on a chain tether for an unreasonable period of time; and
    2. (b)
      whether the appellant had failed to provide Chico and Jesus the opportunity to display normal patterns of behaviour.

Particulars generally

  1. [15]
    The appellant’s submissions on this issue focus on the nature of particulars as they were described in Johnston v Miller:[15]

For a defendant is entitled to be appraised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.

  1. [16]
    The appellant submitted that the particulars attaching to the charges were, in effect, individual elements of the charges, each of which needed to be proved to a criminal standard.  Therefore, he submitted, the respondents had to prove, beyond reasonable doubt, each element of the particulars of each charge.  For charges 8 and 10, they had to prove that, between 22 June 2018 and 3 August 2018, the appellant, while “in charge” of each dog:
    1. (a)
      confined the dog;
    2. (b)
      on a chain tether;
    3. (c)
      for an unreasonable period of time;
    4. (d)
      on an area of dirt and rocks;
    5. (e)
      without providing the dog the opportunity to display normal patterns of behaviour.
  2. [17]
    The appellant submitted that the respondents had not proved the third and fifth of those matters and therefore the evidence was inadequate to support his conviction on those charges.
  3. [18]
    The respondents submitted that the only “elements” that need to be proved in any prosecution are the elements of the charge, not the “elements” of any particulars.  The particulars are there to put the defendant on notice of the facts alleged to prove the charges.  While the respondents accepted that the particulars limit the findings that could have been made by the magistrate, they do not all have to be proved in order to prove the charge, if the facts that are proved are otherwise sufficient.
  4. [19]
    I agree with the respondents.  Particulars are not the same as the elements of an offence.  The charge itself must satisfy the requirement that it charge an offence known to law and it is preferable that a statutory offence be pleaded in the relevant terms of the statute by which it is created.  The purpose of particulars is to enable an accused to know the nature of the charge which he or she is called on to meet.  Particulars relieve the accused of the need to investigate issues of fact not identified by the particulars and show what will be put forward as the particular acts, matters or things alleged as the foundation of the charge.[16]
  5. [20]
    The relevant question is not whether the prosecution has discharged its burden in relation to any “elements” of any particulars.  That would ascribe to particulars an importance at the same level as the elements of the charge itself.  The relevant elements of the offences alleged in this case are those prescribed in the Act, namely:
    1. (a)
      the defendant was in charge of the animal; and
    2. (b)
      the defendant breached the duty of care, by failing to take reasonable steps to provide the animal’s needs described in the section, in a way that was appropriate.[17]
  6. [21]
    It is for the prosecution to prove each element of the offences charged beyond reasonable doubt, with the particulars simply setting out the facts upon which the prosecution intends to rely in seeking, and that the magistrate may find in reaching, a finding of guilt.  The issue before this court is whether it was and is open, on the evidence, to make findings of fact, consistent with the particulars, which were and are sufficient to return verdicts of guilty – that is, whether the verdicts were unreasonable and could not be supported having regard to the evidence.  I turn now to consider the matters that the appellant contended are not proved on the evidence.

An unreasonable period of time

  1. [22]
    The appellant submitted that the prosecution has not satisfied its burden to establish that either Chico or Jesus was confined on a chain tether for an unreasonable period of time.  As stated above, the real question is whether it was open for the magistrate  (and is open for this court) to make such findings. 
  2. [23]
    The magistrate found the following in relation to the length of time Chico had been chained and collared:[18]

I accept the submissions for the complainant that Chico was tethered for an unreasonable time, as charged, for the reasons submitted by the prosecution.  I do not accept Ms Hosking’s evidence that Chico usually slept on the defendant’s bed.  Obviously she was not there on the 3rd of August 2018, which casts doubt on this aspect of her evidence.

In addition, the defendant said Chico was chained up at night.  Other evidence outlined by the prosecution also supports the view that Chico had been tethered by the heavy chain for an unreasonable period.

This is further supported by the application, in my view, of the Weissensteiner principle, which I will come to later in respect of Pretty Girl.

  1. [24]
    Ms Hosking was Simone Hosking, the defendant’s partner, who gave evidence to the effect that Chico was the appellant’s daughter’s dog and that Chico slept on the appellant’s daughter’s bed.[19]
  2. [25]
    The appellant submitted that the evidence at trial was vague as to how long each of Jesus and Chico was chained up.  Also, even the respondents’ counsel at trial did not clearly articulate what the respondents alleged was an unreasonable period of time to be chained in the manner and place in which they were located.
  3. [26]
    However, the experts’ evidence was that it was inappropriate to chain a dog – either at all or especially with such a heavy chain as those used with these dogs - for any period, but particularly for several hours, such as overnight.  Those chains would have caused considerable discomfort and the experts’ evidence was that regular chaining by such a chain could cause long term damage to a dog, including spinal damage and bow legs, as well as ongoing stress.  It would also prevent the dog displaying normal patterns of behaviour.
  4. [27]
    Perhaps the most graphic and convincing evidence to this effect was that of Ms Reever.  She said:[20]

So chaining is – is one of the most – one – one of the worst things you can do for a dog for multiple – multiple reasons. (1) animals are very social creatures. Dogs are ones that like to smell, like to roam around. When you chain an animal, it dramatically increases the chances of that dog becoming aggressive. You have to look at the chain spot, or the dirt area, in which this animal is – is housed. That basically becomes their – their bathroom. It’s their living room. It’s where they eat, breathe, sleep, their entire area. They become very territorial for that area. The constant drag on these dogs – for example, the dog in the – the upper picture here, the black and white pit bull-type dog wearing the – the collar on page 182,[21] this is going to cause a lot of stress on the dog’s neck. Constantly having this pressure and being pulled gives unnatural movement for the dogs. In fact, in 2013, we did a small study. We – we did a federal case where we seized 367 pit bulls. During this time frame, the dogs were primarily kept on chains. The veterinarians which we were working with, being federal veterinarians, they were interested in the effects of chaining. What we discovered was when x-rays were done of these animals after they were awarded to our custody, a lot of them had structural changes to the vertebrae in the neck, meaning that dogs that were not chained were free and clear of the compression of the spine, were free and clear from the pain and the – that the effects have of chaining.

  1. [28]
    Ms Reever also said that chaining a dog to an axle in the way that Chico and Jesus were found was very common in keeping fighting dogs, as it keeps them apart, assists in cleaning their enclosure by breaking up debris and faecal matter as it is dragged around and keeps the dog physically fit.[22]
  2. [29]
    Also, Dr Bronwyn Sharman, a veterinarian with the RSPCA who inspected the dogs upon their arrival at the RSPCA after seizure, when asked about extended tethering in re-examination said:[23]

It tends to be harmful, you know, from a behavioural perspective. Again, it’s sort of not allowing them to express their natural behaviour. So that would be our main concern, and then depending on what they’re tethered with and whether they’re tethered in a – a – a good spot, you know, because they don’t have that control over their environment, and whether they can move from heat to shade and – and that kind of thing. So how well that’s being provided for or how well that’s being done would be a factor in it as well.

  1. [30]
    Finally, when the warrant was executed and the appellant was asked about the location of the ‘other dogs’ (presumably referring to dogs other than Naughty), he responded by saying they were “chained up at night or whatever”.[24]  This appears to contradict the statement by Ms Hosking that Chico normally slept on the defendant’s daughter’s bed.  It was open to the magistrate to reject Ms Hosking’s evidence in that regard, which he did.  I pay due regard to his Honour’s finding and, with respect, I agree with it.
  2. [31]
    To focus on what was a reasonable period of time for the dogs to be chained in the manner and location they were found is, in one sense, a distraction.  The issue was (and is) whether, by chaining the dogs in that manner and location, the applicant did not take reasonable steps to provide, relevantly, their needs for accommodation and living conditions in an appropriate way.
  3. [32]
    The appellant did not take issue, in the appeal, with the magistrate’s finding that there was inadequate shelter in the enclosures in which Chico and Jesus were found.  For completeness, however, I record that photographs in evidence[25] showed that at least one of the dogs had a rough form of shelter comprising a plastic drum with a hole cut into its side (for entry and exit) and straw inside.  Instead of a roof, some sort of board was on top of it that would have provided some shelter, but it did not cover the whole of the top of the drum.  I agree with the magistrate that it was inadequate.
  4. [33]
    I am satisfied that the evidence demonstrates, beyond reasonable doubt, that it was at all times and for all periods inappropriate to chain the dogs in that manner and location.  The chains were potentially harmful to the dogs, both physically and psychologically.  Even if chained only overnight, but regularly so (which I find to be the case), those harmful effects will accumulate.  Also, the areas in which they were kept were not appropriate accommodation or living conditions.  The appellant therefore failed to take reasonable steps to provide for those dogs’ needs for accommodation and living conditions in a way that was appropriate.
  5. [34]
    This ground of appeal therefore fails.

Normal patterns of behaviour

  1. [35]
    The appellant’s submissions about this issue were similar to those in relation to the question of whether the dogs were tethered for an unreasonable period of time.  The appellant submitted that the evidence of Ms Reever and Dr Sharman was in response to questions about extended tethering and did not provide any answer about routine short periods.  Therefore, the appellant submitted, there was no evidence either way about whether the dogs were denied the opportunity to display normal patterns of behaviour and the magistrate was in no position to determine that point beyond reasonable doubt.
  2. [36]
    The respondents did not specifically address this issue, though the evidence to which they referred in relation to whether the dogs were tethered for an unreasonable period of time is also relevant to this question, particularly the evidence of Dr Sharman.  In essence, the submission is that the tethering of the dogs, and the conditions of their enclosure, were such that they were prevented from engaging in normal patterns of behaviour, even if only (or predominantly) at night.
  3. [37]
    The evidence of Dr Sharman and Ms Reever was very clear, that tethering a dog by a chain, especially a heavy chain, will prevent and, at least over time, alter the dog’s normal patterns of behaviour.  It tends to make the dog aggressive and territorial over the area of the chain’s radius, a heavy chain affects and restricts the dog’s ability to move around without considerable effort, it prevents the dog roaming around and smelling and when unchained the dog will tend to be aggressive toward handlers and other dogs, rather than to submit easily to being rechained.
  4. [38]
    The experts’ evidence was not tested in cross-examination by, for example, putting that short or intermittent periods of chaining or other tethering, or doing so overnight, would not affect a dog’s ability to display normal patterns of behaviour.  It is therefore speculative to suggest that, if the dogs were chained irregularly or for only short periods, that would not affect their behaviour.  But in any event, that proposition depends on the dogs having been tethered for only short and intermittent periods.  The evidence in this case was sufficient to demonstrate that, in fact, the dogs were tethered by the heavy chains and in the enclosed areas for long periods – at least overnight.[26]
  5. [39]
    The appellant submitted that, without a determination of how long the dogs were tethered, the magistrate was in no position to assess whether or not they were denied the opportunity to display normal patterns of behaviour.  Moreover, his Honour was in error in failing to address this element of the charge at any stage in his decision and, without a finding positively that this element has been established beyond a reasonable doubt, the charge must necessarily fail.
  6. [40]
    As to the first of these submissions, the magistrate found that the appellant chained up both Chico and Jesus at night when they were at his property.  The evidence supported such a finding.  As I have found, that is inadequate and unreasonable.  As to the second, it is correct that the magistrate did not make an express finding on whether the manner in which the appellant kept those dogs meant that the appellant did not take reasonable steps to provide for their needs in this respect.  However, in my view the evidence proved that to be the case and I have found to that effect.  Therefore, even though the magistrate erred in not making such findings, if he had dealt with the issue fully, he would have reached the same conclusion. 
  7. [41]
    I consider that the evidence was sufficient to support the magistrate’s finding that the appellant was guilty of this charge.  To tether a dog in the manner that Chico and Jesus were tethered, even if only overnight, did not provide for the animals’ needs to display normal patterns of behaviour in a way that was appropriate.  Therefore the applicant did not take reasonable steps to provide for those needs.
  8. [42]
    Subject to the next issue, this ground of appeal therefore also fails.

The appellant’s failure to give evidence

  1. [43]
    In determining the charges concerning Chico and Jesus, the magistrate relied, in part, on the appellant’s failure to give evidence about the manner and conditions in which he normally kept those dogs, as supporting the inference that the magistrate drew from the evidence before him, to the effect that he ordinarily (at least overnight) kept them in the conditions in which the respondents found them.  In that respect, the magistrate said expressly that he relied on the principles established in Weissensteiner.[27]
  2. [44]
    The appellant submitted that his Honour erred in that regard because the particulars of the charges did not specify how long the dogs were confined in that manner and location.  In the absence of the period being specified in the particulars, the appellant could not know at trial what burden he might need to overcome by giving evidence, for example, of the circumstances in which the dogs were ordinarily kept by him.
  3. [45]
    I disagree with that submission.  The appellant knew that the charges relied, in part, on the allegation in the particulars that the dogs were chained for an unreasonable period of time.  He heard the evidence on which the respondents relied.  That evidence included his statement that he chained the dogs at night,[28] as well as other evidence about the dogs’ condition and locations that was consistent with prolonged chaining.  On the basis of that evidence, there was no reasonable hypothesis consistent with the defendant’s innocence in the absence of evidence by the appellant that might give rise to such an hypothesis.  The appellant’s failure to give any evidence of any such facts made it easier for the magistrate to accept the inferences that the respondents sought to have drawn from the evidence that they had called.
  4. [46]
    Accordingly, the appeal against conviction on charges 8 and 10 fails.

Charge 14 - Failure to prove a circumstantial case

  1. [47]
    The respondents’ case that the appellant had provided Pretty Girl for dog fights was entirely circumstantial, given that there was no direct evidence that he did so.  The respondents relied on a number of pieces of evidence as leading to the inference that the defendant supplied her for that purpose and contended that, in the light of that evidence, there was no reasonable hypothesis in favour of his innocence.  Furthermore, his failure to give evidence of any other explanation for her scars (which, the respondents contended, occurred while she was in the appellant’s charge), or about who, other than he, might have had charge of her over the relevant period, made it easier for the magistrate to be satisfied of the facts that the respondents submitted he could find based on the circumstantial evidence.
  2. [48]
    The particulars of this charge were that the defendant supplied Pretty Girl for use in one or more dog fights between 1 August 2017 and 16 August 2018, resulting in her incurring injuries and subsequent scarring to the head, muzzle and neck areas and to the front legs and shoulders.
  3. [49]
    In brief, the evidence on which the magistrate relied in reaching the conclusions that the appellant was persistently involved in dog fighting and had supplied Pretty Girl for dog fighting was the following.
    1. (a)
      Photographs in evidence, taken from the appellant’s records, showed Pretty Girl on 20 December 2017 with no scars;[29] on 20 January 2018[30] with significant fresh scars around the muzzle that were consistent with dog fighting injuries; and on 10 April 2018[31] in which the muzzle scars had mostly healed, but other scars, about a month old, were evident on her front right leg in particular and were consistent with dog fighting.[32]
    2. (b)
      On 3 August 2018, the respondents found Pretty Girl in a cage on the property.  At the time she had significant scarring that, the experts said, was only consistent with injuries sustained in organised dog fights and was not consistent with the types of injuries that might be sustained in unorganised fights or yard fights.[33]
    3. (c)
      The respondents tendered a large number of social media posts by the appellant[34] in which he used language that the experts said was consistent only with the terminology used by experienced dog fighters.  He also posted photographs of dogs in fighting poses or with scarring consistent with dog fighting and he described animals he had previously owned using names and titles used by dog fighters.
    4. (d)
      Equipment found on the property where the appellant resided and in his vehicle was consistent with dog fighting, such as a “break stick” that would be used to separate fighting dogs by inserting it into a dog’s mouth and levering it open, and a treadmill with a lead attached to it, which the expert evidence said was a common method of training a fighting dog.
    5. (e)
      The appellant’s partner said that the appellant had a habit of running dogs along the highway next to his vehicle, again consistent with a common method of training a fighting dog.  This was supported by some of his Facebook posts.
    6. (f)
      Straws of semen, labelled as from a dog fighting animal named Snores, were kept at a veterinary surgery on behalf of the appellant and he advertised them for sale, posting the pedigree of the dog tracing it back to a famous fighting dog in the United States of America.
    7. (g)
      The appellant’s niece gave evidence[35] that, on one occasion in January or February 2018, he had told her that he was “a dirty old dog fighter.”  She said that he was not being sarcastic in saying that.  It was not put to her that he did not say it.  The magistrate accepted her evidence in this respect.
  4. [50]
    The magistrate found – and I agree – that that evidence, together with the evidence of the two experts, raised the very strong inference that the defendant had supplied Pretty Girl for dog fighting, on more than one occasion. 
  5. [51]
    The appellant submitted to the magistrate that there were nevertheless other inferences or hypotheses consistent with his innocence.  He may have supplied the dog to someone else, who then supplied her for a dog fight without the appellant’s knowledge or consent; or he may have supplied her to someone else for a purpose other than dog fighting; or if she was in a dog fight it was not within the period alleged; and the appellant may have been an enthusiast of dog fighting without being a supplier of a dog to such events and simply cared for dogs that had been in fights, without himself supplying them for fights.  The magistrate rejected each of those as unreasonable or inconsistent with the evidence.
  6. [52]
    In part, the respondents and the magistrate, in rejecting the “innocent” hypotheses, relied on the fact that the defendant did not himself give evidence of facts that might cast reasonable doubt on the inference raised by the evidence to which I have referred and might support an innocent explanation.  In that respect, they relied on the principle in Weissensteiner.  The alternative hypotheses could have been supported only by evidence that was within the appellant’s knowledge.  In the absence of any evidence from him to that effect, it was easier to accept the inference consistent with his guilt and to reject as unreasonable any of the alternative hypotheses.
  7. [53]
    The appellant relied in part on evidence from his partner, Ms Hosking, that she was aware of Pretty Girl (although she had previously said she did not know any dogs other than Chico and Naughty), she thought Pretty Girl was owned by someone named Georgia (whom she did not know) and she thought that the appellant may have collected Pretty Girl, with other dogs, from Childers a couple of weeks before 3 August 2018. 
  8. [54]
    The magistrate rejected the submission that Ms Hosking knew much, if anything, about the ownership and control of Pretty Girl.  He found that her “main knowledge” was in relation to Chico and Naughty and that her evidence in relation to Pretty Girl was “quite unsatisfactory.”[36]  Having reviewed the transcript of her evidence, I can see no reason to disagree with his conclusion, particularly in the face of other evidence (such as the photographs to which I have referred) that indicated that the dog was in the appellant’s possession on at least several occasions, before and after fighting, over the charged period.  Ms Hosking’s evidence was really just speculative and hearsay conjecture.
  9. [55]
    The Magistrate concluded that the questions of the control of Pretty Girl and the source of the injuries were within the peculiar knowledge of the appellant and, in the absence of evidence from the appellant, his Honour could more readily draw an inference consistent with that which the prosecution sought at trial; that is, that the only reasonable inference on the evidence was that the defendant supplied Pretty Girl for fights on at least two occasions during the relevant period. 
  10. [56]
    The respondents submitted that the appellant must have known if Pretty Girl was not under his care for periods of time between December 2017 and April 2018, particularly if she had been returned to him with visible injuries.  On that basis, they submit, the magistrate was correct in more readily accepting the inference of facts pointing to his guilt.
  11. [57]
    The appellant conceded that there were matters which were peculiarly within the knowledge of the defendant, such as the dates of the photos on social media.  He also conceded that, taken as a whole, the evidence does point to an inference that the appellant had, at the highest, some involvement in dog-fighting to an unestablished extent.  However, the appellant maintained that the evidence was not sufficient to prove beyond reasonable doubt that he had supplied Pretty Girl specifically for dog fighting, nor to exclude other hypotheses consistent with his innocence.
  12. [58]
    In considering whether there is an inference consistent with innocence open on the evidence, it is necessary to bear in mind that an alternative hypothesis must be a reasonable one, not just “logically open in theory,” but in the sense that it rests on something more than a theoretical possibility or mere conjecture.  It must be based upon evidence.  Hypotheses consistent with innocence cease to be reasonable when there is no evidence to support them, particularly when that evidence, if it exists, must be within the knowledge of the accused.[37]
  13. [59]
    I agree with the magistrate that the evidence raises a strong inference that the appellant supplied Pretty Girl for dog fighting.  In the absence of evidence from the appellant, or on his behalf, that explains or contradicts that inference and raises another reasonable hypothesis consistent with his innocence of the charge, I am satisfied that the magistrate made no error in finding the inference proved beyond reasonable doubt.  I agree that the evidence leads to that inference.  I agree that Ms Hosking’s evidence was vague and there is no reason to disagree with the magistrate’s rejection of it as insufficient to raise a reasonable doubt that Pretty Girl was in the appellant’s charge during the relevant period and that he knowingly supplied her for the purpose of dog fighting during that period.  There is no reasonable inference available on the evidence that is consistent with the appellant’s innocence of this charge.
  14. [60]
    The appeal on charge 14 therefore fails.

Charge 7 – Failure to provide for treatment of Naughty

  1. [61]
    The evidence about the injury to Naughty was principally given by Dr Sharman, a veterinary surgeon who saw the dog upon its arrival at the RSPCA’s premises on 3 August 2018.
  2. [62]
    The magistrate summarised the evidence about that injury in the following way.[38]

Dr Sharman gave evidence that upon intake on the 3rd  of August 2018 she noted limping in the right hind leg, despite Naughty being super bouncy and super excited. Dr Sharman said the lameness would have been obvious to a lay person prior to seizure, particularly at the time of the injury, which I take it to mean at the time of the injury the pain would have been greater and with greater consequences.

Ms Hosking gave evidence that she saw a cow kick Naughty in the upper leg the day before the warrant was executed; however, X-rays of the leg showed callous formation of the two fractured toes, which means that that injury would not have resulted from an injury the day before. I also should interpolate there that the fracture was of the toes and Ms Hosking gave evidence that the cow kicked the upper leg, which I would imagine is not the toe.

Dr Sharman was of the opinion that the injury that caused the fractured toes would have occurred towards the end of a 14-day period prior to the X-ray.[39] That is, callous formation for fractured toes takes some time to develop and certainly would not have been developed after an alleged incident on the 2nd of August 2018. If there was an incident on the 2nd of August 2018, that was not the cause of the fractured toes with the callous formation.

Further, Dr Sharman said that fractures can be serious and affect growth plates, although that did not occur here, but this can only be determined on Xray.

  1. [63]
    Dr Sharman gave evidence of the treatment that she gave to Naughty once the fractures were confirmed by x-ray.  She said:[40]

We gave Naughty pain relief and cage rest from the moment of intake.  …  And when we reviewed the X-rays, we decided that this was gonna work because of the nature of the fracture that we could see on the X-ray. We didn’t feel that it needed any further surgical intervention or anything like that.

  1. [64]
    Dr Sharman was also asked about the appropriate treatment.  She said:[41]

Well, first of all, you have to X-ray it before you decide it. The – we need to give pain relief and cage rest at a minimum, because it’s painful and because we don’t want the injury to worsen itself with any running around or anything like that. So that would be the minimum starting point, and then you’d have to take the X-rays to find out whether anything more needed to be done.

  1. [65]
    Finally, she was asked what outcome she would expect if Naughty had not been treated and had been left to wander around.  She said:[42]

I think that, in this case, the danger would be that the fracture – the more movement it has, the more likely it is not to heal, so that that bone becomes a non-union. In this case, because of the splinting, you might have got away with it. I think what we are concerned with puppies is, if there’s a fracture in the growth plate. So there’s quite a lot of growth plates in that area, which may have been affected, and we know – without the X-rays, we don’t know. If there’s a growth plate affected, then that can cause developmental abnormality as the puppy grows. So they can end up with shortened limbs or that kind of thing.

  1. [66]
    The appellant did not challenge the evidence that Naughty’s limp would be obvious to a lay person, nor Dr Sharman’s evidence about Naughty’s injury, its possible consequences and the appropriate treatment.
  2. [67]
    The appellant submitted that the magistrate failed to have regard to the care and treatment that Naughty in fact received once the injury was diagnosed.  He submitted that, because Naughty did not receive significant treatment beyond pain relief and rest, the appellant did not fail to provide reasonable treatment for the injury.  At trial, he submitted that it was appropriate also to consider that, given his financial means, it was reasonable for him not to have taken Naughty to a veterinarian to check his injury.
  3. [68]
    The respondents submitted that diagnosis is a critical aspect of treatment within the meaning of s 17(3)(a)(iv) of the Act.  The fact that, in this particular case, the only treatment required was pain relief and cage rest does not change the fact that an injury with similar or even identical symptoms could have resulted in serious deformation of the animal’s limbs.  The respondents also submitted that the fact that Naughty had been allowed to run around the appellant’s farm could have exacerbated any injury.
  4. [69]
    The magistrate rejected the submission that the financial means of the appellant were to be taken into account, noting that there was no evidence of what those means were.[43]  The magistrate determined that, on the evidence of Dr Sharman that fractures like those observed in Naughty can be serious and affect growth plates (causing permanent disability) and that the seriousness of any such fracture could only be determined after an X-ray, the appellant breached his duty of care by failing to take Naughty to a veterinarian. No finding was made on whether allowing Naughty to run around on what was later determined to be a fractured toe was also a breach.
  5. [70]
    The fact that the only treatment that was in fact necessary in this case was rest and pain relief does not determine whether the appellant failed to take reasonable steps to provide appropriately for the dog’s needs for treatment of the injury.  The fact that she was injured was obvious from her limp.  When a dog, particularly a puppy, has an obvious limp, that is a sign that it has been hurt.  While it may be reasonable to see whether the limp resolves within a short period, when it does not the obvious, reasonable and appropriate step is to have it reviewed by a veterinary surgeon, who could then determine what, if any, investigation (such as an x-ray) and treatment were necessary.
  6. [71]
    Ms Hosking’s evidence that the dog had been kicked in its upper leg by a cow the day before was irrelevant to the injury to the foot.  Dr Sharman’s evidence was that the injury to the foot was probably about two weeks old.  Clearly, therefore, the appellant had not taken any steps to have that injury treated in that time.  That delay was not reasonable. 
  7. [72]
    I agree with the magistrate that the appellant’s failure to seek veterinary assistance, investigation, diagnosis and treatment was a failure to take reasonable steps to provide Naughty’s needs for treatment of her injury in a way that was appropriate.
  8. [73]
    Therefore, the appeal concerning charge 7 fails.

Appeal against sentence and costs

  1. [74]
    I now turn to the appeal against sentence, the grounds for which are set out above.  The appellant appeals against the sentence generally, including the period of imprisonment, which the appellant has already served.  However, the main thrust of the grounds (and thus, the submissions of the parties) were on the costs awarded under s 189 of the Act.  I shall deal with both aspects in issue, despite the fact that the question of imprisonment is now moot.

The hearing below

  1. [75]
    Ms Gover, who also appeared for the respondents at the sentence hearing, submitted to the magistrate that a head sentence of six months, with a parole release date set at the halfway point,[44] was appropriate.  Ms Gover noted that the defendant did have criminal history in both Queensland and the Northern Territory, but there were no entries for similar offending.  There were convictions for violent offences in 2000 and 2012.
  2. [76]
    Ms Gover described the appellant as lacking any remorse for his actions, to the point of harassing a prosecutor within the RSPCA via text and social media, including after his conviction.  She submitted that the injuries to the dogs were significant and the appellant’s conduct had caused significant behavioural issues in them.  She also submitted that there was a need for both general and specific deterrence in the manner of sentencing.
  3. [77]
    The respondents had also sought a disposal order for each of the dogs (including Beetle),[45] an order prohibiting the appellant from owning dogs,[46] an order for the recovery of costs in relation to the seizure and maintenance of the dogs for the purposes of these proceedings[47] and legal professional costs.  In relation to the recovery of the seizure and maintenance costs, the respondents provided a schedule of the costs (exhibit 9) and noted that in other cases they had not been disputed.[48]  Ms Gover submitted that those costs could be ordered in relation to Beetle and another dog, BJ, even though the defendant was not convicted of any offence in relation to Beetle and there were no findings in relation to BJ, because the power under s 189 is not tied to any findings at a trial.
  4. [78]
    Mr Davis, who appeared for the appellant at the sentencing hearing, submitted that the appropriate penalty would have been a probation order.  Mr Davis submitted that the appellant (at the time) was unemployed with two children and would suffer potential hardship if ordered to pay the RSPCA’s costs under s 189. This was, Mr Davis submitted, exacerbated by the circumstances around the COVID-19 pandemic.  He submitted that a community-based order that would allow the appellant to continue to search for work was preferable. Mr Davis also noted that the appellant’s criminal history was limited and did not include any like offending.
  5. [79]
    In relation to the order for costs under s 189, Mr Davis submitted that the principle of totality was relevant.  He submitted that imprisonment and other orders under the Act were factors that the magistrate should take into account, as the power to grant the order was discretionary.  He submitted that the addition of a bill that at the time was in the realm of $60,000 was a factor that would render the overall punishment[49] “crushing”.  He also took issue, in some respects, with the amount of the claimed costs.  There was a further issue about whether there was sufficient evidence to support the making of an order, but it does not appear that this was pressed.
  6. [80]
    Neither party was able to refer to any appellate decisions of this court or any other court, to assist the sentencing magistrate.  They did refer to three decisions of magistrates in similar matters to assist in sentencing the appellant.  They were RSPCA v Trenear (Magistrate Bradford-Morgan, 3 July 2019) (Trenear), Braithwaite v O'Keeffe (Magistrate W J Smith, 20 November 2019) (O'Keeffe) and RSPCA v Baskerville (Magistrate Kilmartin, 8 March 2019).  I shall summarise them in turn.

Trenear

  1. [81]
    In Trenear, the defendant was convicted after pleading guilty to three charges of breach of duty of care under s 17 of the Act, six charges of supplying a dog for a prohibited event (dogfighting), one charge of supplying premises for a prohibited event and one charge of allowing an animal to injure another.  Mr Trenear had kept a number of fighting dogs in what the magistrate described as “appalling conditions”[50] to increase their aggression for dogfighting.  Mr Trenear also owned various pieces of dog-fighting paraphernalia.
  2. [82]
    Mr Trenear was sentenced to imprisonment for six months, with the magistrate accepting that a term of imprisonment was required for the purposes of general and specific deterrence.  The magistrate ordered a parole release date on 31 July 2019, so Mr Trenear served less than a month of that head sentence.  Mr Trenear also consented to the making of other orders, such as an order prohibiting him from owning dogs or poultry unless approved by the RSPCA and an order disposing of the dogs and the paraphernalia.  Relevantly to this appeal, Mr Trenear also consented to the making of costs orders, both generally and under s 189 of the Act, which were substantially less than the costs awarded in this matter.

O'Keeffe

  1. [83]
    In O'Keeffe, the defendant was convicted after pleading guilty to two counts of supplying an animal for a prohibited event (also a dogfight).  Mr O'Keeffe had a criminal history of violent offences in both Queensland and New South Wales and, with the exception of the plea of guilty, was found not to have shown any remorse for his actions.  Mr O'Keeffe had claimed to inspectors that he was training the dogs to hunt pigs but, similarly to the findings in this case, there was expert evidence that the injuries were “clearly not from chasing pigs.”[51]
  2. [84]
    The magistrate sentenced Mr O'Keeffe to six months’ imprisonment, with a parole release date after two months.  The magistrate also made disposal and prohibition orders, though limited the prohibition order to four breeds of dog.  The magistrate ordered him to pay the prosecution’s legal and professional costs, but made no order for costs under s 189 (at least at the time of the sentence).

Baskerville

  1. [85]
    In Baskerville, the defendant was convicted after pleading guilty to 13 breaches of the duty of care in s 17 of the Act, one charge of possession of prohibited spurs[52] and one count of supply for a prohibited event.  Despite the fact that animal cruelty, which is a separate offence under s 18 of the Act, was not charged, the magistrate described this case as “one of the most disturbing animal cruelty cases that the court has come across.”[53]
  2. [86]
    Despite that statement, the magistrate sentenced Mr Baskerville to three years’ probation.  The magistrate recorded that Mr Baskerville was suffering from several medical issues, including orthopaedic injuries, and had recently suffered a bereavement with the death of his child.  In those circumstances, the magistrate reduced the sentence to probation, noting that he would otherwise have ordered actual imprisonment.  The magistrate went so far as to suggest that this sentence should not be treated as indicative of the way these sorts of offences should be treated, given the heavy influence of those personal circumstances.[54]

Submissions on the case law

  1. [87]
    Ms Gover submitted that O'Keeffe was the most comparable case to this, in terms of both the scale of the offending and the way Mr O'Keeffe engaged with the investigation.  One notable exception, which I consider later, was the fact that Mr O'Keeffe agreed to surrender the dogs early in the proceeding, whereas the appellant here refused to do so at any point.
  2. [88]
    Ms Gover sought to distinguish Baskerville on the basis that (as the magistrate in that case stated) the decision was heavily influenced by the personal circumstances of the defendant.  Additionally, she noted, the defendants in all three matters pleaded guilty, demonstrating a remorse not shown by the appellant at any stage.  Even though Mr Trenear received a similar sentence to the appellant here, despite what was objectively much more serious offending, she submitted that that reflected a reduction due to his co-operation and his consent to the other orders. 
  3. [89]
    Mr Davis submitted that the sentence should be on the basis of the actual offending and, given that Mr Trenear received a six month head sentence for worse offending, that should be an indication that the appellant should receive a lesser sentence.  He submitted, in essence, that the relevance of the guilty plea was to the actual time served by Mr Trenear, rather than the head sentence.
  4. [90]
    In relation to the disposal and prohibition orders, Mr Davis referred to O'Keeffe and noted that a prohibition order should be limited to the breeds of dog commonly considered “fighting” dogs, as was done in that case.

Decision of the magistrate

  1. [91]
    The magistrate sentenced the appellant to six months’ imprisonment, with parole after three months.  That sentence attached to the most serious charge, supply for dog-fighting, with the other charges attracting sentences of one and two months’ imprisonment respectively, all to be served concurrently.  The magistrate also made a prohibition order identical to that made in O'Keeffe and a disposal order for all five dogs and the paraphernalia.  Finally, the magistrate made orders for both legal costs and costs under s 189 of the Act.
  2. [92]
    The magistrate found that the appellant lacked any remorse for, or insight into, his offending.  He considered each of the relevant factors under ss 9 and 11 of the Penalties and Sentences Act 1992 and determined that both specific and general deterrence were relevant to the sentence that should be imposed.  Each of the dogs, on inspection by the RSPCA, showed serious medical and behavioural issues.  Those issues were consistent with, and the magistrate inferred they arose from, those dogs being trained and used for dog-fighting.
  3. [93]
    The magistrate also considered each of the cases outlined above and distinguished them generally, on the basis of the guilty pleas and cooperation with authorities that demonstrated a level of remorse and insight not found in the appellant.  In those circumstances, he considered that a sentence of imprisonment was appropriate.  Notably, the term was consistent with the sentences in Trenear and O'Keeffe.
  4. [94]
    The magistrate accepted that it was appropriate to make an order for the payment of the boarding and veterinary fees for the dogs that were seized.  His Honour did not make any findings about (nor appear to consider) whether such an order should affect the totality of the sentence.  However, he did limit the amount by rejecting claims for the following:
    1. (a)
      no costs were allowed in relation to BJ, as his Honour had made no findings about BJ’s ownership;
    2. (b)
      no vet fees were allowed after 17 February 2020, on the basis that the prosecutors had already limited their claim for boarding fees to that date;[55] and
    3. (c)
      no costs were allowed between the end of the trial, 26 July 2019, and 30 November 2019, shortly before the date on which the decision on conviction was handed down, as the magistrate did not consider the appellant should “wear” those costs because of the court’s delay.[56]
  5. [95]
    The total of the s 189 costs, once the calculations were corrected on 24 July 2020, was $50,782.02.

Submissions on appeal

  1. [96]
    The appellant made a number of separate submissions on each of the grounds of appeal.  Nonetheless, many of the submissions overlapped between the grounds.
  2. [97]
    The appellant submitted that, comparing this case with the others referred to above, the sentence was manifestly excessive.[57]  The appellant’s counsel particularly focused on the comparison between the offending in this case and in Trenear, noting that Mr Trenear’s offending was of a greater magnitude and, unlike the appellant, Trenear had previously been imprisoned for other offences.  Counsel also noted that the appellant was only convicted of four charges and thus the trial was necessary to put the Crown to proof on the other charges.
  3. [98]
    Furthermore, the appellant submitted that the magistrate did not consider or take into account the appellant’s prospects of rehabilitation and whether a period of probation with a wholly suspended sentence would have better satisfied the principles of specific and general deterrence.  The magistrate also failed to consider the fact that the sentence was imposed in the context of the costs order.
  4. [99]
    The appellant appeared to accept that the order for costs under s 189 of the Act did not form part of the sentence imposed by the magistrate.  However, counsel submitted that, nonetheless, the magistrate was aware of the fact that he would make a costs order and therefore should have considered the impact of that order on the totality of the sentence in any event.  He submitted that the impact of the costs order on the appellant meant that he would be likely to be paying it over a substantial period of time.
  5. [100]
    The appellant submitted that the totality principle should not be limited purely to the accumulation of any terms of imprisonment or other punishment for various offences.  It should, he submitted, apply to any orders for costs sought in addition to those sentences, even though those costs orders are separate from the sentence.
  6. [101]
    The other two grounds of appeal against sentence relate to the amount of the costs order and whether it was excessive in the context of the proceeding.  The appellant submitted that there were delays other than just the delay in judgment, including a comparable delay in receiving a trial date.  That delay was not the fault of the appellant and the magistrate should have applied the same logic he applied when making the reduction outlined at [94](c) above.  Furthermore, he submitted, costs should not have been awarded in respect of Beetle, as Beetle was not the subject of any conviction.  Counsel submitted that these costs are analogous to defendants in other criminal matters being ordered to pay the costs of a police prosecution.
  7. [102]
    The appellant relied upon a decision of the English Court of Appeal[58] in which the appeal was allowed against an order imposing costs upon a legally aided defendant who was also sentenced to a term of imprisonment.  Lord Parker CJ, who gave the judgment of the court, held that the order had been made “without any inquiry as to means” and that it was not appropriate to make an order for costs when also ordering a considerable custodial sentence, unless the defendant also has private capital.[59]  That decision has seen little judicial consideration in Australia, though it was recently cited in the Supreme Court of Queensland[60] in support of a proposition that liability for costs may be taken into account in reduction of a term of imprisonment or a fine that may otherwise have been imposed.
  8. [103]
    In relation to the s 189 costs, the respondents submitted that the appellant had been given multiple opportunities to surrender the animals and to avoid those costs, but had declined to do so.  From a public policy perspective, the respondents also submitted that the RSPCA is primarily funded through donations and that the award of costs under s 189 is “necessary for the organisation to continue its enforcement role under the Act.”  These costs, they submitted, are of a compensatory nature and are not punitive and they reflect Parliament’s intention that the RSPCA be funded in part by costs awarded under this section.
  9. [104]
    The respondents submitted that the appellant has failed to demonstrate any error in the exercise of the magistrate’s discretion in ordering costs.[61]  Furthermore, the respondent submitted that, in summary proceedings, while costs do not necessarily follow the event, successful parties can have a “reasonable expectation” of obtaining an order for payment of costs because it is just and reasonable.[62]
  10. [105]
    The respondents were only able to direct me to two appellate decisions of this court that dealt with an award of costs under s 189.[63]  In Dart 2009, the defendants were charged with 131 breaches of s 17(2) of the Act, when an inspection of their properties revealed numerous animals living in unsanitary and overcrowded conditions.  Relevantly, the sentencing magistrate in that case ordered that costs of $57,161.30 be recovered pursuant to s 189.  On appeal, that was reduced by consent, but only to subtract any additional amount charged after the date of sentence had been adjourned to about a month later than originally listed due to the unavailability of counsel for the respondent.  Pack DCJ found that the methodology of calculation did not give rise to any unfairness towards the appellants in that case, even though there was evidence of impecuniosity.  The costs incurred were, in his Honour’s opinion, in the interests of the animals’ welfare.
  11. [106]
    In Dart 2012, the same appellants as in Dart 2009 were once again convicted of breaches of the Act, namely breaches of the prohibition order which had also been imposed in the decision that was the subject of the appeal in Dart 2009.  Within days of the prohibition order, an inspection found more dogs being kept by the appellants.  The appellants appealed both conviction and sentence.  Durward SC DCJ found that the costs in that case continued to accrue until the issues associated with contested ownership were determined by completion of the prosecution proceedings.  His Honour was satisfied that it was open on the evidence for the magistrate to make those orders and there was sound reason to do so, again clearly not considering the impecuniosity of the appellants to be a relevant factor.  His Honour also confirmed that costs under s 189 are compensatory rather than punitive. 
  12. [107]
    The respondents here submitted that, because the appellant refused to agree to surrender the dogs, the costs of looking after them continued to accrue until the prosecution was concluded, the sentence was passed and the disposal order was made.  The RSPCA should not, they submitted, be forced to pay the costs of compliance with the duty of care under the Act: costs that should rightly have been borne by the appellant, whose actions meant that the RSPCA had to step in.  Furthermore, they submitted, impecuniosity should not be considered a bar to the recovery of costs.[64]
  13. [108]
    On the grounds of appeal relating more to totality and manifest excess, the respondent submitted that they are essentially the same ground – whether, considering the whole of the sentence (including the costs orders), the sentence was manifestly excessive and unjust.  They again noted that the decisions in Trenear, O'Keeffe and Baskerville were all guilty pleas and otherwise had distinguishing features that minimised their utility in establishing an appropriate range for sentence.
  14. [109]
    Counsel for the respondent did draw my attention to the decision of the Court of Appeal in R v Ferrari [1997] 2 Qd R 472, where McPherson JA considered that the compensation provision in s 35(1) of the Penalties and Sentences Act 1992 and other ‘like’ provisions did form part of the sentence but did not form part of the punishment.[65]  That, in my opinion would clearly relate to compensation under s 190 of the Act.  The question is whether that principle extends to an order for recovery of costs under s 189, which would render the costs order part of the sentence and therefore something that rightly should be taken into account in sentencing.

Consideration

  1. [110]
    In considering an appeal against sentence on the basis that it is manifestly excessive, an appellate court may only reach that conclusion and alter the sentence if it concludes that there was, or must have been, some misapplication of principle, having regard to all of the relevant sentencing factors, including the degree to which the sentence in question differs from sentences that have been imposed in comparable cases.[66]  If the sentence is unreasonable or plainly unjust, the Court will infer that the court below has failed to exercise the discretion properly.[67] 

Sentence

  1. [111]
    I deal first with the appellant’s submission that the sentence of six months’ imprisonment was excessive, having regard in particular to the sentences in the three comparable cases to which I was referred. 
  2. [112]
    A court is not bound to fix a sentence by direct comparison with sentences in other like cases.  There is no single correct sentence in any one case.  So long as all relevant principles and factors are given due attention, the discretionary character of sentencing inhibits appellate interference.[68]  There is always a range of sentences that are properly within the sentencing court’s discretion and an appellate court will not interfere with a sentence simply because it considers that a lower sentence may be within range. 
  3. [113]
    It is not sufficient to show that the sentence is markedly different from sentences in other cases.[69]  To succeed in an appeal based in part on a discrepancy between the sentences in the case at hand and other comparable sentences, an appellant must establish that the sentence imposed is so different from other comparable sentences that there must have been a misapplication of principle or that the sentence imposed is unreasonable or plainly unjust.  In determining whether the applicant is able to establish those matters, regard must be had to the principle that comparable authorities do not establish the outer bounds of a sentencing judge’s permissible discretion with numerical precision.[70]
  4. [114]
    The maximum sentence for an offence is relevant, but the maximum is reserved for cases where the offending behaviour is in the worst category. 
  5. [115]
    A sentencing court must look at the totality of the criminal behaviour constituted by all of the offences when regarded together and then consider what is the appropriate sentence for all the offences.  This totality principle applies whether the penalty takes the form of a fine or a term of imprisonment or, indeed, whatever might be the form of punishment.  It will apply whether the resulting accumulation of punishments is relatively light, such as a series of fines or several cumulative short terms of imprisonment, or whether it is severe.  The principle is very much concerned with the concept of proportionality that pervades so many facets of the system of law.[71]  In some of its applications it reflects the prohibition against double punishment which is a risk when several offences committed at the same time contain elements that are all proved by the same fact.[72]
  6. [116]
    Even where the totality principle does not justify a reduction in total sentences, the harshness of otherwise justifiable sentences may be ameliorated so that the overall sentence is not “crushing”.  That concept “is generally conceived of as one that is imposed in such a way that it would provoke a feeling of helplessness in the applicant if and when he is released or as connoting the destruction of any reasonable expectation of useful life after release.”[73]  Effect may be given to this principle even in cases in which the offender may be, in some ways, undeserving because it is invoked by shared values of the community which do not countenance either cruelty in punishment or a total abandonment of hope, even for the worst kind of offender.[74]
  7. [117]
    The principal issue here concerns the sentence of six months for supplying a dog for a prohibited event.  The maximum penalty for that offence is 12 months’ imprisonment, or 300 penalty units.[75]  The magistrate, of course, sentenced the appellant to a period of imprisonment equalling half the maximum, but the appropriateness of a particular sentence is not to be approached by a mathematical comparison of the particular offence with an offence in the worst category.
  8. [118]
    The magistrate considered and took into account the relevant sentencing principles set out in s 9 of the Penalties and Sentences Act.  He took into account the appellant’s lack of remorse and insight and lack of cooperation, the need for both personal and general deterrence, the nature and extent of the appellant’s conduct comprising the offences and the effects of his conduct on the animals concerned.  He also took into account the comparable sentences to which he was referred and the personal matters concerning the defendant.  He was correct in doing so.  He concluded that an appropriate sentence was six months’ imprisonment.
  9. [119]
    The appellant submitted that the magistrate did not take into account the appellant’s prospects of rehabilitation.  In my view, he did in considering his lack of insight into his offences.  There was nothing that indicated that, absent a custodial sentence, the appellant would be unlikely to commit further offences, given in particular his lack of insight and his ongoing abuse of officers of the RSPCA, even after his conviction.  In other words, there were no demonstrated prospects of rehabilitation that might mitigate an otherwise appropriate sentence.
  10. [120]
    The appellant submitted that, in determining the penalty to impose, the magistrate ought to have taken into account the proposed order for recovery of the RSPCA’s costs of keeping the animals.  It is clear that he did not take that order into account, as he dealt with the sentences for the offences separately from and prior to dealing with the respondents’ application for recovery of the costs.
  11. [121]
    I disagree that the order for recovery of the costs was a factor in sentencing the appellant for the offences.  It was not concerned with the offences themselves and was not an aspect of punishment for the offences.  It was a separate remedy that did not even depend on the appellant having been convicted.  The fact that, during and after his release, the appellant would owe such a debt is simply a result of the particular right and obligation given by the Act separate to and discrete from the criminal penalties for which the Act provides.  Indeed, the RSPCA could have sought to recover those costs in a separate civil proceeding, rather than as an adjunct to the criminal proceeding.[76]  I consider that it was therefore not relevant to the sentence.
  12. [122]
    In my view, the magistrate made no error of principle in his reasoning.  Furthermore, the sentence of six months’ imprisonment was well within an appropriate range, having regard to all the factors to which he referred.  In my view, general deterrence is likely to (and properly did) loom large with this type of offence, as it is highly likely that knowledge of the sentences given for these types of offence will spread, irrespective of media reports, particularly through that part of the community who involve themselves in conduct of this nature.  Personal deterrence was also particularly relevant here, given the appellant’s lack of insight or remorse and his behaviour after his conviction. 
  13. [123]
    There was also no particular feature that must have led the magistrate to fix a parole date earlier than after serving half of that term. 
  14. [124]
    I am not satisfied that the sentence was manifestly excessive, nor that his Honour’s discretion miscarried in some other way.
  15. [125]
    Therefore, insofar as the appeal is as to the sentence of imprisonment, it should be dismissed.   There is no appeal from the order for costs of the proceeding.

Recovery of RSPCA’s costs

  1. [126]
    The order to repay the RSPCA, having been made under s 189, was not made in order to punish the appellant.  It was an order for the recovery of the costs it had incurred in caring for the relevant animals pending the determination of the proceeding.  Subsection 189(2) gives the RSPCA a right to recover those costs from an animal’s owner.  That right is different to the separate power in a court, to order a person convicted of an animal welfare offence to pay compensation to persons other than the State and a prescribed entity, that is available under s 190.  Tellingly, s 192(2) permits a court to order payment of compensation only if it is satisfied that it is just to make the order in the circumstances of the particular case.  That requirement does not apply to an order for the recovery of costs incurred by a prescribed entity. 
  2. [127]
    A court must, of course, act judicially in considering an application for an order for recovery of costs by a prescribed entity.  But, in doing so, its task is not to consider whether it is just in the circumstances to make the order.  Rather, it is to consider whether the entity has demonstrated an entitlement to recover the costs.  The entity will do so if it demonstrates, on the balance of probabilities, that it incurred the costs in doing one or more of the things listed in s 189(1) and the costs were necessary and reasonable (relevantly) in the interests of the animal’s welfare, as required by s 189(2)(a).
  3. [128]
    The costs claimed by the RSPCA in this case concerned six dogs that it had seized under its power to do so.  The magistrate disallowed all the costs for one dog (BJ) and reduced the costs allowed for the other five, as I have explained above at [94]
  4. [129]
    These costs are not analogous to costs of a prosecutor:  those are legal costs.[77]  The discretionary power to order those costs arose under s 157 of the Justices Act 1886, which provides that, in cases of summary convictions:

the justices making the same may, in their discretion, order by the conviction … that the defendant shall pay to the complainant such costs as to them seem just and reasonable. [Emphasis added.]

  1. [130]
    In contrast, these costs arise under a discrete entitlement specifically provided for by s 189(2) of the Act.  Indeed, given that the Act provides for that entitlement, there is no discretion in a magistrate to reduce the amount ordered to be recovered below the amount of the costs that have been proved and have been shown to meet the criteria of the section (being necessary and reasonable in the interests of the animals’ welfare).  Having regard to these matters, the magistrate’s decision to reduce the costs would have been made in error, beyond his power, except that the RSPCA conceded that they were appropriate reductions and thereby abandoned its claim for recovery of those items.  The power to make an order for the recovery of costs once proved is not a discretionary power.  However, as I said, the RSPCA did not submit to the contrary before his Honour and (not surprisingly, given its concessions below) it has not cross-appealed from that decision.
  2. [131]
    If it were within his power to reduce the amount of costs awarded, then it would not have been an error in the exercise of that discretion not to reduce them for the period to trial.  Delay to trial is not unusual and, as the respondents submitted, the appellant could have surrendered the dogs at any time, which would immediately have stopped his liability for their ongoing care.
  3. [132]
    The appellant’s alleged impecuniosity (about which there was minimal evidence) was not relevant to the RSPCA’s entitlement to recover the costs under s189.  The cases relied on by the appellant (and Attorney-General (Qld) v Mathews) concerned costs of a proceeding, not costs under a separate statutory entitlement and are not relevant.  Contrary to an early submission on the appellant’s behalf,[78] an order under s 189 is not a “[penalty or fine] imposed by a court in respect of an offence against a law” that is not provable in bankruptcy.[79]  It is a debt arising under s 189(2), which the court has enforced by its order.  While the costs of a criminal proceeding have been held to constitute a “penalty” for the purpose of that section,[80] where a statutory provision under which costs are awarded appears to be compensatory rather than punitive in nature, the order to pay those costs is not punitive in nature and the debt resulting from that order is provable in bankruptcy.[81]  The RSPCA’s entitlement to recovery of its costs under s 189(2) is clearly compensatory, not punitive.
  4. [133]
    The facts that the appellant was found guilty of only four out of 14 charges and that he was acquitted of the charges concerning Beetle are also not relevant to the RSPCA’s entitlement to recover costs under s 189.  It would be a matter for the legislature to have made conviction for an offence a relevant criterion in determining the right to recovery of costs.  It did not.  To the contrary, the absence of that criterion in s 189 contrasts with its presence as a necessary criterion for an order for compensation under s 190.  That contrast indicates a clear intention of Parliament that conviction or otherwise is irrelevant to the right to an order under s 189.  Therefore, I reject those grounds of appeal.
  5. [134]
    Finally, I agree with submissions by the respondents that the RSPCA has an obligation to maintain custody of a seized animal until its application for a disposal or prohibition order is concluded,[82] the very nature of s 189 costs is that they accumulate during the period between seizure and completion of such an application and s 189 expresses a legislative intention that the RSPCA be able to recover the costs it incurs in caring for such animals during the course of proceedings brought by it concerning an animal welfare offence.  This also reflects the fact that the costs incurred by it are for carrying out, in the public interest, the duty of care to the animal that would otherwise have been carried out by the defendant.
  6. [135]
    In my view, therefore, the magistrate made no error contrary to the appellant’s interests in deciding to order that the appellant pay the sum ordered in favour of the RSPCA.

Conclusions

  1. [136]
    The appellant has failed on each of his grounds of appeal.
  2. [137]
    The appeal will be dismissed.

Footnotes

[1]  Under s 189 of the Act.

[2]  Act, s 115.

[3]  That date was chosen by the respondents, for reasons that are explained below at footnote 55.

[4]  As I have said, there were, in fact, 14 charges.  Twelve were on one complaint and two on the other.

[5]  It is unclear what the exact name of the dog was. The dog’s name was pronounced both ways during trial. This was how the dog’s name appeared in the amended grounds of appeal. I will, for the purposes of this judgment, refer to the dog as “Beetle”.

[6]  Neither party sought leave to tender additional evidence.

[7] Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679, 686-687.

[8] Allesch v Maunz (2000) 203 CLR 172, [23]; Teelow v Commissioner of Police [2009] QCA 84, [4].

[9] McDonald v Queensland Police Service [2018] 2 Qd R 612, [47].

[10]  (1936) 55 CLR 499, 504-505; Commissioner of Police v Punchard [2021] QCA 166, [36].

[11]  The magistrate’s findings, referred to below, that scarring was consistent with dog fighting and that the appellant was in charge of three dogs, were contentious at trial but were not challenged on appeal.

[12]  Presumably pursuant to one of the powers in division 4, subdivision 4 of the Act. There is no issue about the validity of either the warrants or the seizure.

[13]  The chain securing Chico was later weighed and was 2.05kg.  The chain and collar securing Jesus together weighed 3.6kg.

[14]  (1993) 178 CLR 217 (Weissensteiner).

[15]  (1937) 59 CLR 467, 489 (Dixon J).

[16] Harrison v President of the Industrial Court [2017] 1 Qd R 515, [165] per Jackson J (McMurdo P and Morrison JA agreeing) and the cases cited there.

[17]  Act, s 17(3)(a).

[18]  Transcript of decision, T14:7-18 (18 December 2019).

[19]  Trial transcript, Day 2 (23 July 2019), T1-119:11.

[20]  Trial transcript, Day 1 (22 July 2019), T1-90:28-47.

[21]  That is, of exhibit 23.

[22]  Trial transcript, Day 1 (22 July 2019), T1-91:2-17.

[23]  Trial transcript, Day 3 (26 July 2019), T3-19:36-43.

[24]  Exhibit 5, page 3.

[25]  Exhibit 23, pages 1-7.  The dog in that enclosure appears to be Chico.

[26]  For example, the appellant admitted to chaining the dogs overnight (although not expressly by those chains).  The condition of the enclosures also indicated their regular use and the chains were fixed within the enclosures. 

[27]  I shall discuss that case in dealing with charge 14.

[28]  Although he did not say that he chained them in those enclosures:  he appeared to say that they slept under the donga (the “same place” as Naughty slept).  But on the morning of 3 August 2018 only Beetle was just near the donga, tied by a rope:  trial transcript, day 1, T1-40:1-12; T1-46:34 to T1-47:3; exhibit 1.  Chico and Jesus were in their respective enclosures.  A reasonable inference was that they had been chained there overnight and that was what the appellant was alluding to.

[29]  Exhibit 15, pages 2-3.

[30]  Exhibit 13, page 238.

[31]  Exhibit 15, pages 1, 4.

[32]  The evidence that her injuries were consistent with dog fighting was from Ms Reever and Dr Sharman.

[33]  Exhibit 23, pages 16-46; trial transcript, day 2, T1-9:7 to T1-12:44.

[34]  The bundle formed exhibit 13 and is 256 pages long. The magistrate found that they were the appellant’s posts.  That finding is not challenged in this appeal.

[35]  Trial transcript, day 2, T1-84:44-45.

[36]  Transcript of decision, T27:16-26.

[37] R v Doyle (2019) 3 Qd R 126, [29], [31].

[38]  Transcript of decision, T11:32-T12:6.

[39]  The magistrate and Dr Sharman clearly meant “towards the beginning.”  Dr Sharman’s evidence of this was that an x‑ray would not show a callous on a broken toe until 7 to 14 days after the fracture and the level of callousing indicated it was toward the end of that period when the x-ray was taken (which was 5 days after seizure):  trial transcript, day 2, T1-134:29 to T1-135:22.  That would indicate that the injury had occurred about 9 days before seizure and was left untreated for that period.

[40]  Trial transcript, day 2, T1-136:4-9.

[41]  Trial transcript, day 2, T1-136:11-16.

[42]  Trail transcript, day 3, T3-4:27-35.

[43]  Transcript of decision, p 12:8-19.

[44]  Referring to the common practice in sentencing after being convicted at trial; see Corrective Services Act 2006, s 184(2).

[45]  Act, s 182; these are simply orders transferring the ownership and control of the dogs to the RSPCA, not to be confused with destruction which is the process of euthanising the animal.

[46]  Act, s 183.

[47]  Act, s 189.

[48]  No affidavit evidence was put on about these costs, but the basis for the amount itself is not in dispute, rather the total amount.

[49]  Mr Davis referred to the “sentence”, which I take to mean punishment for the offences.

[50] Trenear, T2:42.

[51] Braithwaite, T2:35.

[52]  Act, s 34.

[53] Baskerville, T2:18-19.

[54] Braithwaite, T2:30-33.

[55]  The claim was limited by the RSPCA to 17 February 2020 on the basis that that was the date the sentence was originally listed to be heard, but it had been adjourned to a later date for the RSPCA’s convenience. For obvious reasons, the appellant did not quarrel with such a limitation.

[56]  His Honour explained this in his re-sentencing remarks on 24 July 2020:  effectively he allowed 18 days as a reasonable time to deliver his verdicts.

[57]  In the manner described by Hayne J in AB v The Queen (1999) 198 CLR 111, 160.

[58] R v Gaston [1971] 1 WLR 85.

[59]  Applying R v Judd [1971] 1 WLR 89.

[60] Attorney-General (Qld) v Mathews (2020) 284 A Crim R 415 (Jackson J), 431 [74].  That decision is only of marginal relevance, as it concerned conviction and punishment for contempt of court.

[61]  Of the kind referred to in House v The King (1936) 55 CLR 499, 505.

[62] Smith v Ash [2011] 2 Qd R 175, [100].

[63] Dart v Singer (unreported, Pack DCJ, District Court of Queensland, 11 December 2009) (Dart 2009) and Dart v Singer; Hajridin v Singer (Unreported, Durward SC DCJ, District Court of Queensland, 21 December 2012) (Dart 2012).

[64] Northern Territory v Sangare (2019) 265 CLR 164, 175 [32].

[65] R v Ferrari [1997] 2 Qd R 472, 477.

[66] R v Pham (2015) 256 CLR 550, [28].

[67] Hili v The Queen (2010) 242 CLR 520, [58]-[59].

[68] Markarian v R (2005) 228 CLR 357, [133].

[69] R v Potts (2019) 88 MVR 156, [37].

[70] R v Piccinato [2019] QCA 123, [20] and the cases referred to.

[71]  As to proportionality in cases of animal cruelty, see Wolf, Bagaris and Kotzmann, Towards a Coherent Sentencing Jurisprudence for Animal Cruelty Offences (2021) ALJ 368.

[72] R v Symss [2020] QCA 17, [22].

[73] R v Beck [2005] VSCA 11, [19]; adopted in R v Symss, [27].

[74] R v Symss, [32]-[33].

[75]  300 penalty units totalled $37,545 in the year to 30 June 2018 and $39,165 in the following year.

[76]  See s 192(1).

[77]  The magistrate ordered the appellant to pay those costs in this case – an order that is not a subject of the appeal.

[78]  “Appellant’s written outline of argument – costs order of $57,000 is manifestly excessive”, 13 April 2021.  This outline was, in any event, superseded by the amended grounds of appeal and the submissions made at the hearing of the appeal.  I deal with the issue for completeness and as a guide for the future.

[79] Bankruptcy Act 1966 (Cth), s 82(3).

[80] Re Higgins; ex parte Higgins (1984) 4 FCR 533.

[81] Moore-McQuillan v Scott (2006) 149 FCR 486, [22]-[23].  This applies even to orders for restitution made against criminal offenders under s 35 of the Penalties and Sentences Act 1992:  Moore-McQuillan, [18]-[20] and the cases referred to.

[82]  Act, s 152(3)(b).

Close

Editorial Notes

  • Published Case Name:

    Wilson v Barraud & Anor

  • Shortened Case Name:

    Wilson v Barraud

  • MNC:

    [2021] QDC 223

  • Court:

    QDC

  • Judge(s):

    Barlow QC DCJ

  • Date:

    15 Sep 2021

Appeal Status

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