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Stewart v Nitkiewicz (RSPCA Inspector)[2022] QDC 256

Stewart v Nitkiewicz (RSPCA Inspector)[2022] QDC 256

DISTRICT COURT OF QUEENSLAND

CITATION:

Stewart v Nitkiewicz (RSPCA Inspector) [2022] QDC 256

PARTIES:

KYLIE MAREE STEWART

(appellant)

v

SHAREE NITKIEWICZ (RSPCA INSPECTOR)

(respondent)

FILE NO:

234/21

DIVISION:

Appeal

PROCEEDING:

Appeal pursuant to section 222 Justices Act 1886 (Qld)

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

18 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

29 July and 4 November 2022

JUDGE:

Dearden DCJ

ORDERS:

  1. Appeal granted in part.
  2. Order that the prohibition order imposed by the learned acting Magistrate at the Brisbane Magistrates Court on 27 August 2021 be amended to reduce the term of the prohibition order from five years to three years.
  3. Otherwise affirm the penalty, costs order, disposal and prohibition orders made by the learned acting magistrate at the Brisbane Magistrates Court on 27 August 2021.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant plead guilty to two charges relating to breaching her duty of care to animals contrary to section 17(3)(a) of the Animal Care and Protection Act 2001 (Qld) – where the learned acting magistrate imposed two years of probation with no conviction recorded – where the learned acting magistrate imposed a disposal order in respect of the four horses and a prohibition order against the appellant until 26 August 2026 – where the appellant was ordered to pay costs – where the appellant submits the prohibition and disposal orders are manifestly excessive – whether the sentence imposed was manifestly excessive

LEGISLATION:

Animal Care and Protection Act 2001 (Qld) ss 3, 17, 182, 183, 185

Justices Act 1886 (Qld) s 222

CASES:

Forrest v Commissioner of Police [2017] QCA 132

Fuller v RSPCA [2021] QDC 94

McDonald v Queensland Police Service [2017] QCA 255

R v Ferrari [1997] 2 Qd R 472

Smith v Ash [2011] 2 Qd R 175

COUNSEL:

E J Lewsey for the appellant

L Marshall for the respondent

SOLICITORS:

Bosscher Lawyers for the appellant

RSPCA for the respondent

Introduction

  1. [1]
    On 27 August 2021, the appellant entered a plea of guilty to the following charges in the Brisbane Magistrates Court:-
  1. Breach of duty of care to animals contrary to section 17(3)(a)(i) of the Animal Care and Protection Act 2001 (Qld) (‘ACPA’) by failing to take reasonable steps to provide for the animals’ needs for food in a way that is appropriate; and
  2. Breach of duty of care to animals contrary to section 17(3)(a)(iv) of the ACPA by failing to take reasonable steps to provide to the animals’ needs for treatment of disease or injury in a way that is appropriate.
  1. [2]
    The learned acting magistrate imposed a two-year probation order, without recording a conviction,[1] and pursuant to the ACPA, made a disposal order in respect of the four horses, and a prohibition order against the appellant until 26 August 2026,[2] (i.e. a five year prohibition order).
  2. [3]
    The appellant was ordered to pay the following costs:-
    1. (a)
      $101.60 cost of complaint and summons;
    2. (b)
      $6,000 professional costs; and
    3. (c)
      $49,055.12 being the cost of caring for the horses that were seized.[3]

Grounds of appeal

  1. [4]
    The appellant appeals on a single ground:-
  1. The penalty imposed was manifestly excessive.[4]

The law

  1. [5]
    The appeal proceeds pursuant to Justices Act 1886 (Qld) section 222(1) (‘JA’).[5]  Specifically, the appellant submits that the making of the prohibition and disposal orders renders the sentence excessive in all the circumstances (no issue being taken with the two-year probation order with no conviction recorded nor the costs order).[6]
  2. [6]
    When the matter first came before me,[7] I raised with the parties the issue of jurisdiction, given that the appeal was confined only to the making of the prohibition and disposal orders.

The law – prohibition and disposal orders

  1. [7]
    JA section 222(1) which provides:-

“222 Appeal to a single judge

  1. (1)
    If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”
  1. [8]
    JA section 222(2) provides:-

“222 Appeal to a single judge

…

  1. (2)
    However, the following exceptions apply—

…

  1. (c)
    if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”
  1. [9]
    In Smith v Ash [2011] 2 Qd R 175 [7], McMurdo P, after tracing the history of the legislative amendments to JA section 222 stated:-

“… this suggests to me that the present wording of s 222(2)(c), which is well capable of a construction that there is no appeal in respect of a costs order where a defendant has pleaded guilty to a summary offence brought on complaint, is the result of the piecemeal legislative approach to amending section 222 rather than a clearly stated legislative intent.  I have not found any relevant second reading speeches or explanatory notes to suggest to the contrary.”

  1. [10]
    McMurdo P went on to identify:-

“… s 222(1) confers, in general terms, jurisdiction on the District Court to hear appeals from final orders made by magistrates in a summary way on complaints for an offence or breach of duty.  A costs order is a final order: Colburt v Beard [1992] 2 Qd R 67, 68: Coulter v Ryan [2007] 2 Qd R 302, 304, [9].  Section 222(2)(a)-(c) limits that jurisdiction in specified ways.  Legislative provisions limiting jurisdiction are narrowly construed (Magrath v Goldsborough, Mort & Co Ltd (1932) 47 CLR 121, 134; Shergold v Tanner (2002) 209 CLR 126, [136].  I consider that if the legislature intended s.222(2)(c) to restrict the District Court’s appellate jurisdiction conferred by s 222(1) by prohibiting appeals in respect of costs orders where a person pleaded guilty or admitted the truth of a complaint, it would clearly have stated as much.”[8]

  1. [11]
    McMurdo P noted further that “the fact that … costs orders can be substantial, strongly suggests that the legislature, in the absence of unequivocal language, is unlikely to have intended section 222(2)(c) to exclude a party from the opportunity of an appeal in respect of a costs order.”[9]  McMurdo P concluded that:-

“I consider that s 222(2)(c) should be construed as prohibiting an appeal from the Magistrates Court to the District Court only in respect of finding some guilt or convictions where a defendant has pleaded guilty to or admitted the truth of the complaint.  It should not be construed as prohibiting appeals to the District Court from a magistrate’s cost order in those circumstances.”[10]

  1. [12]
    Chesterman JA, after reviewing the law in respect of the “literal meaning” of legislation, concluded that he did not consider the result of construing section 222(2)(c) literally, in denying a right of appeal against an order for costs, was irrational, but stated:

“I do consider that such a result would be anomalous … and as giving rise to injustice if, in a case such as the present, there was no right to appeal.  A court is therefore entitled to depart from the literal meaning.”[11]

  1. [13]
    In R v Ferrari [1997] 2 Qd R 472, McPherson JA stated:-

“… if one thing is clear about a compensation provision like [Penalties & Sentences Act] s 35(1), it is that an order under it, although part of the ‘sentence’ or judgment, is not a form of punishment.”[12]

  1. [14]
    In Fuller v RSPCA [2021] QDC 94, Smith DCJA, although not explicitly considering the issue of jurisdiction, stated:-

“As was noted by the High Court in Rich v ASIC [2004] HCA 42; (2004) 220 CLR 129, orders of disqualification both have a punitive and protective effect.”[13]  His Honour was in that case considering a prohibition order and concluded that in the particular circumstances of that matter, the five-year order made by the magistrate at first instance was manifestly excessive, and reduced it to a three-year order instead.”[14]

  1. [15]
    The appellant submits,[15] and the respondent agrees,[16] that this court has the power under JA section 222(2)(c) to hear an appeal against the making of both the prohibition and disposal orders, relying on the authorities that I have outlined above.
  2. [16]
    I accept that joint submission, in the light of those authorities, referred to above, and conclude that I have jurisdiction on this appeal to consider whether the making of a disposal order, and a five-year prohibition order, were, in context, together with the two-year probation order, “manifestly excessive”.

The law - appeals

  1. [17]
    In McDonald v Queensland Police Service [2017] QCA 255 [47], Bowskill J (as she then was) stated:

“It is well-established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.  Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error” [citations omitted].

  1. [18]
    In Forrest v Commissioner of Police [2017] QCA 132, Sofronoff P stated:

“… an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case.”[17]

The facts

  1. [19]
    The appellant has comprehensively summarised the facts, which at sentence were placed before the learned acting magistrate by way of a 44 page agreed schedule of facts, complete with illustrations.[18]
  2. [20]
    That summary of the facts is set out in the appellant’s outline of submissions:-[19]
  1. “[12]
    The appellant was 50 years old at the time of sentence and had no prior criminal history.
  2. [13]
    The appellant entered pleas of guilty to two offences between 1 April 2019 to 16 May 2019.
  3. [14]
    It was submitted on behalf of the respondent that the pleas of guilty were not early pleas of guilty.
  4. [15]
    A 44-page schedule of facts was tendered… The schedule is lengthy and belabours a range of matters not the subject of the charges including the appellant’s general history with the RSPCA, previous complaints made to the RSPCA in relation to her, and other animals in relation to which no breach of the Animal Care and Protection Act 2001 (Qld) (‘ACPA’) was alleged.
  5. [16]
    This schedule of facts was agreed upon by the parties.
  6. [17]
    The first charge, relating to failure to take reasonable steps to provide for the animals’ needs for food in a way that is appropriate between 1 April 2019 and 16 May 2019, concerned the following horses:
  1. (i)
    ‘Cookie’ a chestnut Quarter Horse gelding;
  1. (ii)
    ‘Rosie’ a bay Thoroughbred mare;
  1. (iii)
    ‘Gabby’ a grey Percheron mare;
  1. (iv)
    ‘Ebonie’ a black Percheron mare;
  1. (v)
    ‘Poncho’ a bay Thoroughbred mare;
  1. (vi)
    ‘Minx’ a black Shire filly; and
  1. (vii)
    ‘Red’ a chestnut Thoroughbred gelding.
  1. [18]
    The second charge, relating to failure to take reasonable steps to provide for the animals’ needs for treatment of disease or injury in a way that is appropriate between 9 May 2019 and 14 May 2019, concerned the following horses:
  1. (i)
    ‘Cookie’ a chestnut Quarter Horse gelding;
  1. (ii)
    ‘Ebonie’ a black Percheron mare; and
  1. (iii)
    ‘Roy’ a bay Stockhorse gelding.
  1. [19]
    There were several other horses described in the statement of facts as well as various dogs and cats which were not the subject of any charges.
  2. [20]
    The disposal order sought by the RSPCA involved the following horses:
  1. (i)
    ‘Gabby’ a grey Percheron mare;
  1. (ii)
    ‘Minx’ a black Shire filly;
  1. (iii)
    ‘Annabel’ a chestnut Percheron filly; and
  1. (iv)
    ‘Mannie’ a grey double Percheron stallion.
  1. [21]
    The appellant had a history with the RSPCA, and the RSPCA had received six animal welfare reports in relation to the appellant’s care of animals between August 2010 and September 2018.
  2. [22]
    On 23 April 2019, the RSPCA received a report in relation to a number of underweight horses and other animals being housed inappropriately at the appellant’s property. A further four reports were received by the RSPCA between 13 and 14 May 2019.
  3. [23]
    On 15 May 2019, RSPCA inspectors executed a search warrant on the appellant’s properties. As a result of the condition of the animals and evidence obtained, the appellant was charged with the two subject offences.

Charge 1

  1. [24]
    This charge relates to seven horses (Cookie, Rosie, Gabby, Ebonie, Poncho, Minx and Red).  Inspectors alleged that no supplementary feed was located on the property for the horses, nor were there sufficient feed buckets to provide for all horses.  There were no remnants of a round bale having been on the property.
  2. [25]
    Whilst inspectors were present at the Upper Caboolture property, they met with Siobhan Joly, an acquaintance of the appellant, who was there to meet with a veterinarian she had arranged to see one of the horses, Ebonie.  Joly told inspectors that she had come to the property two days earlier to check on the welfare of the animals after the appellant had posted on social media that two of her horses (DD and Poncho) had died.  Ebonie was observed by Joly as needing urgent medical attention.
  3. [26]
    The inspectors had a discussion with the appellant about the horses and agreed that several were underweight and stated that this was due to not having “paddock feed” (grass) at the previous property (the Summerholm property), hence the move to the property at Upper Caboolture.
  4. [27]
    The appellant also stated that she had directed her employed stable hand, Elisha Flach, to feed the horses (Ebonie, Cookie, Mannie, DD and Poncho) supplementary feed, including hay and grains.  Ms Flach denied that she had been feeding the horses.
  5. [28]
    The appellant told inspectors that her daughter, Rahni Stewart was feeding the horses.  Ms Stewart denied this and advised that she had only started to provide feed to the horse Ebonie two days ago.
  6. [29]
    Veterinary assessments were conducted upon the animals on 15 and 16 May 2019.
  7. [30]
    The horses subject of Charge 1 were found located in various paddocks, but with little access to grass for consumption or grazing.  Water was accessible via a dam and there was little natural shelter.
  8. [31]
    Ebonie was located in a small dirt paddock with no grass for consumption, dirty water accessed via a blue bucket and no natural shelter.
  9. [32]
    In relation to the horse Cookie, the examining veterinarian noted:
  1. (i)
    Cookie was extremely emaciated, with a body score of 1 out of 9 on a scale where one is emaciated and nine is obese.
  1. (ii)
    It was observed that his spine, ribs, tail head, points of hip and buttocks [were] projecting prominently; the bone structure of the withers, shoulders and neck was easily noticeable, and no fatty tissue could be felt.
  1. (iii)
    Cookie was observed to have a number of other health issues – the subject of Charge 2.
  1. (iv)
    Cookie was suffering from dehydration, muscle wastage and infection and hospitalisation was recommended.
  1. [33]
    In relation to the horse Rosie, the examining veterinarian noted:
  1. (i)
    Rosie was in poor condition, underweight and was suffering from rain scald.  She appeared to be a filly due to her very small size.
  1. (ii)
    Rosie was observed to be very thin, with a body score of 2 out of 9 meaning emaciated, slight fat covering over base of spine, ribs, tail head, points of hips and buttock prominent; withers, shoulders and neck structure faintly discernible.
  1. [34]
    In relation to the horse Gabby, the examining veterinarian noted:
  1. (i)
    Gabby was underweight with overgrown hooves; and
  1. (ii)
    Gabby was observed to be very thin with a body score of 2/9 on a scale where 1 is emaciated and 9 is obese.
  1. [35]
    In relation to the horse Ebonie, the examining veterinarian noted:
  1. (i)
    Ebonie was located emaciated, lethargic and obviously unwell;
  1. (ii)
    Ebonie had a number of serious health conditions – the subject of Charge 2;
  1. (iii)
    Ebonie was emaciated with a body score of 1 out of 9 on a scale where 1 is emaciated and 9 is obese; and
  1. (iv)
    The skin tent test was performed, which is a test performed to check dehydration, and provided a score of five seconds.  This indicated the horse may be suffering from serious dehydration.
  1. [36]
    In relation to the horse Poncho, the examining veterinarian noted:
  1. (i)
    Poncho was located deceased partly submerged in the middle of a dam, partly covered by plants;
  1. (ii)
    Poncho was said to be housed in the same paddock as the majority of the other horses and was not being fed any additional food other than what grass was available; and
  1. (iii)
    The appellant accepted that Poncho was in a very poor body condition on the day of death – said to be 8 May 2019.
  1. [37]
    In relation to the horse Minx, the examining veterinarian noted:
  1. (i)
    Minx was very thin, with a body score of 2 out of 9, meaning that she was emaciated, with slight fat covering over base of spine, ribs, tail head, points of hips and buttock prominent; withers, shoulders and neck structure faintly discernible.
  1. [38]
    RSPCA inspectors also executed a search warrant on 15 May 2019 at the appellant’s property at Regency Downs.  The occupier one Teniell Stewart Palmer advised inspectors that four of the horses, Roy, Red, Zara and Asha belonged to the appellant.
  2. [39]
    The appellant was charged in respect of the condition of only one of the horses present – Red – and [that] is reflected in Charge 1.
  3. [40]
    In relation to the horse Red, the examining veterinarian noted:
  1. (i)
    Red was observed to be in a particularly poor condition and had rain scald;
  1. (ii)
    the horse was dull and severely underweight with a body condition score of 2 out of 9.
  1. [41]
    On 17 May 2019 inspectors re-attended the Upper Caboolture property and removed horses Cookie, Mannie, Ebonie, Rosie and Minx.
  2. [42]
    On 21 May 2019, inspectors returned to the Upper Caboolture property and removed horses Gabby and Annabel.
  3. [43]
    On 28 May 2019, the appellant travelled to RSPCA Wacol and anticipated in a record of interview.

Charge 2

  1. [44]
    This charge related to the failure to obtain treatment for disease or injury of horses Cookie, Ebonie and Roy.
  2. [45]
    Veterinary assessments were conducted on these horses and several observations were noted.
  3. [46]
    In relation to the horse Cookie, the examining veterinarian noted:
  1. (i)
    Cookie was emaciated and lethargic.  His hooves were cracked and overgrown and he had nasal discharge suggestive of infection.  He had a visible sore under his chin which was weeping and had dry crusty matter around the wound.
  1. (ii)
    It was observed that the horse’s nose had bilateral serous nasal discharge, likely to have been present for a few days and a Grade 4 (the number 4) heart murmur was detected.
  1. (iii)
    Cookie’s feet were also noted to require attention, as they were overgrown.
  1. (iv)
    Cookie was suffering from dehydration, muscle wastage and infection and hospitalisation was recommended.
  1. (v)
    Cookie was transported to the Dakabin RSPCA facility on 17 May 2019 and subsequently euthanised on humane grounds due to his extremely poor prognosis, his combination of health issues including emaciation, and no likelihood of successful treatment.
  1. [47]
    In relation to the horse Ebonie, Flach advised inspectors that she had aborted a foal on 13 May 2019.  Joly had observed Ebonie’s deteriorating health and had made arrangements for a veterinarian to assist her.
  2. [48]
    The appellant stated that she did not call for the assistance of a veterinarian claiming it was too late in the evening.
  3. [49]
    In relation to the horse Ebonie, the examining veterinarian noted:
  1. (i)
    Ebonie was located emaciated, lethargic and obviously unwell.
  1. (ii)
    Ebonie was emaciated with a body score of 1 out of 9 on a scale where 1 is emaciated and 9 is obese.
  1. (iii)
    A paralysis tick was located near her anus.
  1. (iv)
    The horse was observed to have a Capillary Refill Time (CRT) of four (4) seconds, and a CRT in a healthy horse should be one to two seconds.  A prolonged CRT suggests poor blood pressure and circulatory function, loss of fluid and is an indicator the horse could be going into shock.
  1. (v)
    The skin tent test, a test performed to check dehydration provided a score of five seconds.  This indicated the horse may be suffering from serious dehydration.
  1. (vi)
    It was difficult to hear Ebonie’s lungs due to her emaciated condition.
  1. (vii)
    The vagina was expelling a pus-like substance.
  1. (viii)
    Ebonie was treated with a non-steroidal anti-inflammatory drug, to treat pain and reduce fever or inflammation, and antibiotics, and her uterus was flushed.
  1. [50]
    In relation to the horse Roy, the examining veterinarian noted:
  1. (i)
    Roy was underweight with a body condition score of 3 out of 9;
  1. (ii)
    The horse was observed to have a large granulomatous lesion on the back of his left-fore pastern that was infested with maggots.
  1. (iii)
    His hooves were overgrown and could benefit from farrier attention;
  1. (iv)
    The veterinarian cleaned the lesion but removal under general anaesthetic was required due to the risk of ongoing trauma and infection.  In the meantime, the wound required daily cleaning and application of antibiotic spray.

Other information – uncharged acts

  1. [51]
    The statement of facts contained a comprehensive outline of the appellant’s interactions with RSPCA and previous complainant prior to the offending period.
  2. [52]
    It contained a significant amount of other detail in relation to other animals observed during the execution of the warrant.
  3. [53]
    The schedule of facts contained an assessment on the following horses not subject to charges:
  1. (i)
    Annabel;
  1. (ii)
    Mannie;
  1. (iii)
    DD;
  1. (iv)
    Asha;
  1. (v)
    Zara;
  1. (vi)
    Argie; and
  1. (vii)
    Ruth.”[20]
  1. [21]
    As both the appellant and respondent identify, the substantive penalty imposed (a probation order for two years with no conviction recorded) was a sentencing outcome advocated for by both the respondent and the appellant.[21]  Similarly, the costs sought on behalf of the respondent were not in dispute.[22]
  2. [22]
    The contested issue at both the Magistrates Court level, and on this appeal, was the application by the respondent for a disposal order;[23] and a prohibition order.[24]
  3. [23]
    As outlined above, I am persuaded that the orders for disposal and prohibition by the learned acting magistrate form part of the “punishment” and it is therefore open to this court, on appeal, to consider whether the overall penalty is “manifestly excessive”, given the imposition of those orders.

The hearing

  1. [24]
    The appellant and the respondent were each represented at the hearing, with no dispute as to the substantive penalty (two years’ probation with no convictions recorded).
  2. [25]
    The respondent relied on the statement of facts;[25] the decision of Fuller v RSCPA [2021] QDC 94;[26] an interim schedule of costs,[27] and an affidavit of RSPCA Inspector, Cherie McKaowich.[28]
  3. [26]
    During the hearing, submissions were made in respect of the appellant’s interactions with the RSPCA in relation to animals not the subject of any charge, but (it was submitted) relevant to the imposition of the prohibition and disposal orders.[29]  The appellant surrendered a number of horses to the RSPCA during the investigation but did not surrender the horses Mannie, Minx, Annabel and Gabby, which were the subject of the disposal order.
  4. [27]
    The respondent’s counsel identified for the learned acting magistrate’s attention the relevant provisions of the ACPA, being sections 182, 183 and 185.[30]  The respondent also relied on the comments of Judge Smith in Fuller v RSPCA [2021] QDC 94 [114] where he stated:

“[114] I have regard to the schedule tendered below as MFI  E. My overwhelming impression is that generally five year orders are made where there are a number of animals or where for example [an] animal is euthanised.  More often one to three year orders are made where one animal is involved.  I note in Penny four years was imposed and that case was more serious than the present.”

  1. [28]
    The respondent identified that the appellant had been known to the RSPCA since 2010; that there had been previous concerns about underweight horses; that the best predictor of future behaviour was past behaviour; and that there was little evidence to demonstrate any changes in the appellant’s behaviour.[31]
  2. [29]
    The appellant’s counsel tendered an affidavit under the hand of the appellant dated 27 August 2021,[32] and a Horse Care Plan.[33]
  3. [30]
    The learned acting magistrate’s reasons for making the disposal order and the prohibition order in the terms of the draft order produced by the respondent were as follows:-

“The reasons for [making the disposal order and the prohibition order] are, as per the agreed statement of facts … there has been a significant build up of the offending and of concern from RSPCA and other persons.  So offending is the wrong word there, but there has been a build up of the situation regarding the horses and whilst, as [the appellant’s solicitor] Ms Townsend rightly pointed out, the offending period in question was all approximately a month and a half, the numerous visits, as outlined in the agreed statement of facts, indicates that there were concerns for a very long time.

There have been two horses who have died, apparently due to starvation and neglect.  The emaciated condition of a number of the other horses, registering 1 to 2 on a scale of 1 to 9, indicates to me that that has taken some time for that to occur.  That is the reasons for my making the orders, and I am not convinced – this is apart from those reasons – I am not convinced of the defendant’s current ability to feed the horses, given her financial situation, given what apparently is quite a significant cost associated with feeding horses.  I note that she has got the horses – or intends to agist the horses at a particular place, however the costs will be on her still to feed those horses.  But again, I go back to my primary reasons.  That is what’s happened to those horses when they were in the care of Ms Stewart, and it’s for those reasons that I make that order.”[34]

Legislation – Prohibition and Disposal orders

  1. [31]
    ACPA section 3 sets out the objects of the Act, in the following terms:-

“3 Purposes of Act

The purposes of this Act are to do the following—

  1. (a)
    promote the responsible care and use of animals;
  1. (b)
    provide standards for the care and use of animals that—
  1. (i)
    achieve a reasonable balance between the welfare of animals and the interests of persons whose livelihood is dependent on animals; and
  1. (ii)
    allow for the effect of advancements in scientific knowledge about animal biology and changes in community expectations about practices involving animals;
  1. (c)
    protect animals from unjustifiable, unnecessary or unreasonable pain;
  1. (d)
    ensure the use of animals for scientific purposes is accountable, open and responsible.”
  1. [32]
    ACPA section 183 empowers the court to make a prohibition order, and states:-

“183 Prohibition order

  1. (1)
    The court may order (a prohibition order) that a person convicted of an animal welfare offence must not possess or purchase or otherwise acquire—
  1. (a)
    any animal; or
  1. (b)
    a stated type of animal; or
  1. (c)
    any animal, or a stated type of animal, for trade or commerce or another stated purpose.
  1. (2)
    A prohibition order may be made permanently or for a stated period.”
  1. [33]
    ACPA section 182 empowers the court to make a disposal order, in the following circumstances:

“182 Disposal order

  1. (1)
    The court may order (a disposal order) the disposal or forfeiture of any of the following things that a person convicted of an animal welfare offence owns—
  1. (a)
    the animal or anything else that was the subject of, or used to commit, the offence;
  1. (b)
    another animal;
  1. (c)
    another thing the court considers is likely to be used in committing a further animal welfare offence.
  1. (2)
    If a disposal order orders the sale of an animal, the order may direct—
  1. (a)
    the way in which the sale is to take place; or
  1. (b)
    how the proceeds of the sale are to be distributed.”
  1. [34]
    ACPA section 185 sets out the criteria for making prohibition and disposal orders and provides:-

“185 Criteria for making disposal or prohibition order

  1. (1)
    The court may make a disposal or prohibition order against a person only if the court is satisfied, on the balance of probabilities, it is just to make the order in the circumstances.
  1. (2)
    In considering whether it is just to make the order, the court must consider each of the following—
  1. (a)
    the nature of the animal welfare offence to which the hearing relates;
  1. (b)
    the effect of the offence on any animal that was the subject of, or used to commit, the offence;
  1. (c)
    the welfare of the animal and any other animal owned by the person;
  1. (d)
    the likelihood of the person committing another animal welfare offence;
  1. (e)
    if an interim prohibition order is in effect against the person—the person’s compliance or otherwise with the order.
  1. (3)
    Subsection (2) does not limit the matters the court may consider.
  1. (4)
    The court may make the order, to the extent it relates to an animal, whether or not it considers another animal welfare offence is likely to be committed in relation to the animal.”
  1. [35]
    The appellant submits:-

“… that when all the matters relevant to the sentencing process are considered (such as the appellant’s personal circumstances, lack of prior criminal history, plea of guilty, the nature of the offences and relevant sentencing principles) the sentence would be considered to be manifestly excessive when viewed in its entirety.”[35]

  1. [36]
    The appellant further submits:-

“(i) The magistrate made no differentiation between the facts pertaining to the charges and the additional material contained within the Statement of Facts;

  1. (ii)
    It is necessary when assessing the length of a prohibition order to balance personal hardship for the defendant against the public interest;
  1. (iii)
    The magistrate erred by failing to consider the length of the prohibition order and by failing to consider the punitive effect of prohibition and disposal orders;
  1. (iv)
    In making his decision regarding the prohibition and disposal orders, the magistrate noted that he was not convinced regarding the appellant’s ability to care for the horses but did not appear to have considered whether those circumstances put forward by the appellant may have warranted a prohibition order for less than five years;
  1. (v)
    While the magistrate gave some consideration to the totality principle, there should have been greater consideration given to the principle and the appropriateness of a probation order, coupled with a prohibition order, a disposal order and an order for costs cannot be considered in isolation.”[36]
  1. [37]
    The appellant submits that the learned acting magistrate erred by failing to consider the length of the prohibition order and by failing to consider, in context, the punitive effect of both the prohibition and disposal order.[37]
  2. [38]
    During submissions at the sentence, the appellant indicated that she was prepared to submit to a prohibition and disposal order in respect of other horses but wished to maintain ownership and care of the four horses named in the disposal order.[38]  In that respect the appellant provided a Horse Care Plan and an affidavit outlining how her circumstances had changed and her plan regarding care of the animals in the future.[39]  As extracted in the reasons quoted above, the learned magistrate, in concluding that both a disposal order and the prohibition order should be made, relied on the concerns identified in the agreed schedule of facts which had been “concerns for a very long time”; the death of two horses which had died “apparently due to starvation and neglect”; and the emaciated condition of a number of the other horses.  The learned acting magistrate then indicated that he was “not convinced of the defendant’s current ability to feed the horses, given her financial situation, given what apparently is quite a significant cost associated with feeding horses.”[40]
  3. [39]
    In reaching that conclusion, however, the learned acting magistrate did not identify the basis for the length of the prohibition order imposed, i.e. five years.
  4. [40]
    The appellant submits, on this appeal, that the totality of the sentence, coupled as it was with a probation order, and with insufficient regard for the appellant’s personal circumstances, lack of prior criminal history, plea of guilty, the nature of the offences and relevant sentencing principles, resulted in an overall sentence which was “manifestly excessive” in its entirety.[41]
  5. [41]
    The respondent submits, in respect of the disposal order, that there had been a lengthy history of underweight horses, there was evidence of the appellant’s lack of financial ability to care for the horses, the appellant’s status as a bankrupt, and in those circumstances, argues that the learned acting magistrate was correct to be concerned about the appellant’s ability to feed the horses, particularly given that the horses the subject of the disposal order were “heavy breed” horses, expensive to care for and feed; that the offending (both failure to feed and failure to treat) were caused in part by the appellant’s financial difficulties; and although the appellant deposed to having a new fulltime job, she did have a fulltime job at the time of the offending but still could not appropriately feed or care for the horses, and did not, in the alternative, sell or otherwise surrender the horses.

Conclusion

  1. [42]
    With respect, given the criteria that the learned acting magistrate was obliged to be satisfied of, on the balance of probabilities, it is clear that the disposal order was justified, given the very serious nature of the circumstances in which the relevant animals were located, the very poor health in which they were located, the inability at the time for the appellant to provide appropriately for the welfare of the animals, and her apparent lack of ability and capacity to care for those horses at that time.[42]  In all of those circumstances, it was clearly open for the learned acting magistrate to conclude, on balance, that the animals the subject of the disposal order should not be returned to the appellant.
  2. [43]
    The issue though, with respect, is more complicated regarding the prohibition order.  Although the criteria for making a prohibition order is the same criteria as for making a disposal order,[43] and despite the reliance at sentence on the observation by Smith DCJA in Fuller v RSPCA [2021] QDC 94,[44] that “generally five-year orders are made where there are a number of animals or where for example [an] animal is euthanised”, it must still be necessary for the prohibition order, if made, to meet the specific circumstances of the offender in a way that is “just … in the circumstances”. [45]
  3. [44]
    In this case, the appellant had undoubtedly been suffering from significant financial pressures, had a number of health issues, had dependent children, had a partner with unreliable and inconsistent work, and had been the subject of a number of complaints to the RSPCA, as well as becoming bankrupt in 2019, shortly after the RSPCA seized the horses. However, this needed to be balanced against the appellant’s plea of guilty, her lack of criminal history, her willingness to undertake a probation order for two years (which required her consent), in circumstances where there was at least some reasonable expectation that the appellant’s capacity to appropriately care for animals in her possession, both financially and personally, would significantly improve before the conclusion of a five year prohibition period.
  4. [45]
    In those circumstances, and given that the learned acting magistrate did not, in any way, identify the reasoning behind a prohibition order of five years, rather than a shorter period, it is appropriate, I consider, to impose a prohibition order, but for a period that extends only some time past the expiration of the probation order, and recognises the steps that the appellant has taken (and will take, during the probation period) to personally and financially cope with caring for animals in the future. It follows that I conclude that the learned acting magistrate erred in the exercise of the discretion to impose a prohibition order, but only in respect of the length of that order.
  5. [46]
    In those circumstances, I consider that the appropriate order would be a prohibition order in the terms handed down by the learned acting magistrate, but for a period of three years rather than five years. This would allow for the completion of the probation order and provide the opportunity for the appellant to achieve a level of insight, as well as sufficient personal and financial stability, to resume the care of animals. Of course, given the terms of the order, it would be open for the appellant to seek an approval, in writing, prior to the expiration of the order,  from the RSPCA Qld Chief Inspector to possess, purchase or otherwise acquire horses.[46]
  6. [47]
    Accordingly, I conclude that the appeal should be granted in part, by amending the term of the prohibition order from five years to three years.
  7. [48]
    Orders
  1. Appeal granted in part.
  1. Order that the prohibition order imposed by the learned acting magistrate at the Brisbane Magistrates Court on 27 August 2021 be amended to reduce the term of the prohibition order from five years to three years.
  2. Otherwise affirm the penalty, costs orders, disposal and prohibition orders made by the learned acting magistrate at the Brisbane Magistrates Court on 27 August 2021.
  1. [49]
    I will hear the parties on costs.

Footnotes

[1]Decision p.2, ll 9-10.

[2]Decision p.3, ll 1-2.

[3]Decision p.3, ll 24, 33, 39-40.

[4]Notice of appeal filed 7 September 2021.

[5]Justices Act 1886 (Qld) (‘JA’) s 222(1).

[6]Exhibit 1 – outline of submissions on behalf of the appellant, [72].

[7]29 July 2022.

[8]Smith v Ash [2011] 2 Qd R 175 [8] (per McMurdo P).

[9]Smith v Ash [2011] 2 Qd R, 175 [9].

[10]Smith v Ash [2011] 2 Qd R 175 [11].

[11]Smith v Ash [2011] 2 Qd R 175 [80].

[12]R v Ferrari [1997] 2 Qd R 472 477.

[13]Fuller v RSPCA [2021] QDC 94 [112].

[14]Fuller v RSPCA [2021] QDC 94 [117]-[118].

[15]Exhibit 4 – further outline of submissions on behalf of the appellant [25].

[16]Exhibit 5 – further submissions on behalf of the respondent, [45].

[17]Forrest v Commissioner of Police [2017] QCA 132, 5.

[18]Sentence Exhibit. 1.

[19]Exhibit 1 – outline of submissions on behalf of the appellant [12]-[53].

[20]The respondent implicitly accepts the summary of the facts extracted at length from the appellant’s submission – see Exhibit 2 (outline of submissions on behalf of the respondent) [27].

[21]Exhibit 1 – Outline of Submissions on behalf of the appellant, [56]; Exhibit 2 – Outline of Submissions on behalf of the respondent, [24].

[22]Exhibit 1 – Outline of Submissions on behalf of the appellant, [58].

[23]ACPA s 182.

[24]ACPA s 183; Appeal transcript T1-3 ll1-11.

[25]Sentence – Ex. 1.

[26]Sentence – Ex. 2.

[27]Sentence – Ex. 3.

[28]Sentence – Ex. 4.

[29]Sentence transcript p.1-11, ll 3-4.

[30]Animal Care and Protection Act 2001 (Qld) (‘ACPA’) ss 182, 183, 185.

[31]Sentence transcript p.1-19, ll 14-23.

[32]Sentence – Exhibit. 5.

[33]Sentence – Exhibit. 6.

[34]Decision p.3, ll 1-20.

[35]Exhibit 2 – Outline of Submissions on behalf of the respondent [33].

[36]Exhibit 2 – Outline of Submissions on behalf the respondent, [34].

[37]Exhibit 1 – Outlines of Submissions on behalf of the appellant [81].

[38]Exhibit 1 – Outline of Submissions on behalf of the appellant [82]; T1-22, ll 26-28.

[39]Exhibit 1 – Outline of Submissions on behalf of the appellant, [83]; T1-22, T1-23; sentence exhibits 5&6.

[40]Decision p.3, ll 1-16.

[41]Exhibit 1 – Outline of Submissions on behalf of the appellant [84]-[86], [89]-[91].

[42]ACPA s 185(1)&(2)(a)-(d).

[43]ACPA s 185.

[44]Fuller v RSPCA [2021] QDC 94 [114].

[45]JA s 185(1).

[46]Prohibition order re Kylie Stewart 27 August 2021.

Close

Editorial Notes

  • Published Case Name:

    Stewart v Nitkiewicz (RSPCA Inspector)

  • Shortened Case Name:

    Stewart v Nitkiewicz (RSPCA Inspector)

  • MNC:

    [2022] QDC 256

  • Court:

    QDC

  • Judge(s):

    Dearden DCJ

  • Date:

    18 Nov 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Colburt v Beard [1992] 2 Qd R 67
1 citation
Jump To
Cite 1 - [1992] 2 Qd R 67
Coulter v Ryan[2007] 2 Qd R 302; [2006] QCA 567
1 citation
Jump To
Cite 1 - [2007] 2 Qd R 302
Forrest v Commissioner of Police [2017] QCA 132
3 citations
Jump To
Cite 1 - [2017] QCA 132
Cite 2 - [2017] QCA 132
Cite 3 - [2017] QCA 132
Fuller v RSPCA [2021] QDC 94
8 citations
Jump To
Cite 1 - [2021] QDC 94
Cite 2 - [2021] QDC 94
Cite 3 - [2021] QDC 94
Cite 4 - [2021] QDC 94
Cite 5 - [2021] QDC 94
Cite 6 - [2021] QDC 94
Cite 7 - [2021] QDC 94
Cite 8 - [2021] QDC 94
Magrath v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121
1 citation
Jump To
Cite 1 - (1932) 47 CLR 121
McDonald v Queensland Police Service[2018] 2 Qd R 612; [2017] QCA 255
2 citations
Jump To
Cite 1 - [2017] QCA 255
Cite 2 - [2017] QCA 255
R v Ferrari [1997] 2 Qd R 472
3 citations
Jump To
Cite 1 - [1997] 2 Qd R 472
Cite 2 - [1997] 2 Qd R 472
Cite 3 - [1997] 2 Qd R 472
Rich v Australian Securities and Investments Commission [2004] HCA 42
1 citation
Jump To
Cite 1 - [2004] HCA 42
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129
1 citation
Jump To
Cite 1 - (2004) 220 CLR 129
Shergold v Tanner (2002) 209 CLR 126
1 citation
Jump To
Cite 1 - (2002) 209 CLR 126
Smith v Ash[2011] 2 Qd R 175; [2010] QCA 112
6 citations
Jump To
Cite 1 - [2011] 2 Qd R 175
Cite 2 - [2011] 2 Qd R 175
Cite 3 - [2011] 2 Qd R 175
Cite 4 - [2011] 2 Qd R 175
Cite 5 - [2011] 2 Qd R 175
Cite 6 - [2011] 2 Qd R 175

Cases Citing

Case NameFull CitationFrequency
Stewart v Nitkiewicz (RSPCA Inspector) (No. 2) [2022] QDC 2685 citations
1

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