Gromchenko v Brisbane City Council
[2024] QDC 211
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- Unreported Judgment
- Gromchenko v Brisbane City Council[2024] QDC 211
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Gromchenko v Brisbane City Council[2024] QDC 211
Gromchenko v Brisbane City Council[2024] QDC 211
DISTRICT COURT OF QUEENSLAND
CITATION: | Gromchenko v Brisbane City Council; Gromchenko v Brisbane City Council [2024] QDC 211 |
PARTIES: | Elena Gromchenko (Appellant) v Brisbane City Council (Respondent) Yevgeniy Eugene Gromchenko (Appellant) v Brisbane City Council (Respondent) |
FILE NOS: | 1412 of 2024 1413 of 2024 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Brisbane Magistrates Court |
DELIVERED ON: | 9 December 2024. |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 November 2024. |
JUDGE: | Byrne KC DCJ |
ORDERS: | In Appeal 1412 of 2024:
In Appeal 1413 of 2024:
|
CATCHWORDS: | MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where Mr Gromchenko was found guilty after trial of an offence pursuant to section 191(1) of the Animal Management (Cats and Dogs) Act 2008 and Mrs Gromchenko was acquitted of the same offence – where both appellants pleaded guilty to four other offences pursuant to sections 97(1) and 137(1) of the same Act – where Mr and Mrs Gromchenko received fines totalling $16,500 and $12,500 respectively and no convictions were recorded – where the appellants appeal their respective sentences pursuant to section 222 of the Justices Act 1886 – where the respondent concedes that the sentencing Magistrate did not give consideration to differences in the respective culpability of the appellants –where the sentencing Magistrate was not informed that the complainant was paid compensation – where there was no reasoning given for the fines imposed – whether the Magistrate erred and the error caused the sentences to be excessive. MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where both appellants filed their Notices of Appeal outside the time limit for appealing – where both appellants apply for an extension of time to appeal the orders made by the sentencing Magistrate – where the respondent does not oppose the application – whether it is in the interests of justice to grant the extension. MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where both appellants seek leave to adduce additional evidence, namely affidavits testifying to the reasons for delay in filing their respective Notices of Appeal and their personal circumstances which were not placed before the sentencing Magistrate – whether the evidence shows that a different sentence is warranted. |
LEGISLATION: | Animal Management (Cats and Dogs) Act 2008 (Qld) ss. 97, 137, 191. Justices Act 1886 (Qld) s. 222. Justices Regulation 2014 sch 2. Penalties and Sentences Act 1992 (Qld) s. 48. |
CASES: | Chakka v Queensland Police Service [2024] QCA 213. DU v Jackson (DCJ) [2024] QCA 122. House v The King (1936) 55 CLR 499. Kentwell v The Queen, (2014) 252 CLR 601. Lovell v Lovell (1950) 81 CLR 513. Lukacs v Townsville City Council [2017] QDC 271. Norbis v Norbis (1986) 161 CLR 513. R v Goodwin; ex parte Attorney-General (Qld) (2014) 247 A Crim R 582. R v Hodges [2023] QCA 126. R v Maniadis [1997] 1 Qd R 593. R v Tait [1999] 2 Qd R 667. Walker v Maroney [2015] QDC 87. |
COUNSEL: | Ms. K. Juhasz for the appellants. Ms. J. Crane (sol) for the respondent. |
SOLICITORS: | Guest Lawyers for the appellants. City Legal for the respondent. |
Introduction
- [1]The husband and wife appellants were jointly prosecuted by the respondent for five alleged breaches of the Animal Management (Cats and Dogs) Act 2008 (“the Act”). On 23 April 2024 Mr Gromchenko was convicted after trial of one offence, and Mrs Gromchenko was acquitted of the same offence. Both appellants entered pleas of guilty to the remaining four charges, and were sentenced that same day.
- [2]Mr Gromchenko appealed his conviction, but that appeal was ultimately not pressed. It is appropriate that it be dismissed. He has otherwise appealed against the various sentences imposed.
- [3]Mrs Gromchenko filed a Notice of Appeal that erroneously appealed her conviction. That aspect of the appeal should be dismissed. She too has otherwise appealed the sentences imposed.
- [4]Each appellant’s Notice of Appeal was filed on 28 May 2024, and so was a few days outside the time limit for appealing. Accordingly, each has sought an extension of time. The respondent has, appropriately, conceded that according to the usual principles,[1] an assessment of the prospects of success is an appropriate measure against whether the extension should be granted. As each appellant succeeds on their appeal, an extension is appropriate in each case.
- [5]The issues raised on the appeals are closely related in each appeal, and the appellants have the same legal representatives. It is appropriate to deal with the appeals together.
The nature of the appeal.
- [6]An appeal brought pursuant to s. 222 of the Justices Act 1886 is by way of a rehearing on the record.[2] Section 223(2) of the Justices Act allows for leave to be given to adduce fresh, additional or substituted evidence if the Court is satisfied there are special grounds for giving leave. Whether further or additional evidence is to be admitted will depend on its cogency to the issues under consideration. On an appeal against sentence, the Court will receive further evidence if that evidence shows that a different sentence is warranted, even if the evidence was available at the time of sentencing.[3]
- [7]In this appeal, each appellant seeks to have admitted an affidavit of their own, testifying to the reasons for the delay in filing their respective Notices of Appeal, and also to their respective personal circumstances, which were not placed in any detail before the sentencing Magistrate. It is appropriate that these affidavits are received for the purposes of the respective appeals.
- [8]Given the wording of s. 222(2)(c), it is open to each appellant to demonstrate that there has been specific error, or that the sentence imposed is excessive in the relevant sense. That is, it must be demonstrated that there has been an error in the exercise of the discretion of the kind contemplated by House v The King.[4]
- [9]Where specific error is established, an appellant will only succeed if they satisfy the appellate judge that absent the error a lesser sentence would have been, or should have been, imposed. Put another way, specific error alone is not sufficient to establish a ground of appeal under s. 222(2)(c), but it will suffice if the error can be shown to have caused the sentence to be excessive.[5]
- [10]A sentence will be excessive if it is “unreasonable or plainly unjust”. A conclusion to that effect will not be made simply because the appellate Court, if in the position of the primary judge, would have taken a different view.[6] It is sometimes said that to establish relevant excess, it must be shown that no reasonable decision maker could have reached the conclusion that is being appealed. I may only intervene if I conclude that the sentence falls outside the permissible range of sentences in light of all of the relevant circumstances including the circumstances pertaining to the offender and to the offence itself.[7] Mere numerical difference with other cases is irrelevant. An appellate Court will not interfere unless the error in the exercise of discretion below is clear.[8]
The sentences imposed.
- [11]The following sentences were imposed:
Yevgeniy Eugene Gromchenko
Charge No. | Offence | Date of Offence | Maximum penalty | Sentence imposed |
Relevant person must ensure dog does not attack or cause fear – s. 191(1) of the Act | 4/12/2021 | $6,892.50 | $4,000 | |
Fail to comply with permit conditions for declared dangerous dog – s. 97(1) of the Act. | 14/10/2022 | $10,781.25 | $4,000 | |
Obstruction of authorised person – s. 137(1) of the Act. | 25/10/2022 | $7,187.50 | $2,500 | |
Fail to comply with permit conditions for declared dangerous dog – s. 97(1) of the Act. | Divers dates b/w 7/3/2023 and 15/3/2023 | $10,781.25 | $6,000 in total for charges 4 and 5 | |
Fail to comply with permit conditions for declared dangerous dog – s. 97(1) of the Act. | Divers dates b/w 8/3/2023 and 24/5/2023 | $10,781.25 | ||
Total | $16,500 |
Elena Gromchenko
Charge No. | Offence | Date of Offence | Maximum penalty | Sentence imposed |
Relevant person must ensure dog does not attack or cause fear – s. 191(1) of the Act | 4/12/2021 | $6,892.50 | N/a | |
Fail to comply with permit conditions for declared dangerous dog – s. 97(1) of the Act. | 14/10/2022 | $10,781.25 | $4,000 | |
Obstruction of authorised person – s. 137(1) of the Act. | 25/10/2022 | $7,187.50 | $2,500 | |
Fail to comply with permit conditions for declared dangerous dog – s. 97(1) of the Act. | Divers dates b/w 7/3/2023 and 15/3/2023 | $10,781.25 | $6,000 in total for charges 4 and 5 | |
Fail to comply with permit conditions for declared dangerous dog – s. 97(1) of the Act. | Divers dates b/w 8/3/2023 and 24/5/2023 | $10,781.25 | ||
Total | $12,500 |
- [12]The charge numbers in the tables above are used only for ease of reference in these reasons. They were not used below. Charge 1 is the charge of which Mrs Gromchenko was acquitted. Charges 4 and 5 were committed after proceedings had been commenced for charges 1-3 inclusive by way of complaint and summons. No conviction was recorded for any offence.
Factual Summary
- [13]On 4 December 2021 the appellants took their German Shepherd dog, Raptor, to an off-leash dog park at Bulimba. One of the reasons that they had bought Raptor, and another dog, in the first place was that they had been the victims of a home invasion style offence about 14 months earlier, in the course of which Mr Gromchenko was seriously physically injured. The dogs provided comfort to them and their young children, as well as a sense of security and safety.
- [14]Upon their entry into the off-leash part of the enclosure, Raptor was released unrestrained. There was a divergence in the evidence as to the time they arrived, varying from 5.00pm to 7.00pm and hence affecting the extent of the lighting available.
- [15]At the time of their arrival, the complainant was sitting under a shelter – sometimes referred to in evidence as a rotunda – with her husband, two friends and her small dog, River, in her arms. Some few weeks earlier, there had been a physical altercation between Raptor and River, and consequently words exchanged between Mr Gromchenko and the complainant at a different dog park. Mrs Gromchenko was not shown to have been aware of that incident on 4 December 2021. Mr Gromchenko’s account was to the effect that since that earlier incident he wanted to avoid the complainant and River when he had Raptor with him. He stated that he checked who was in the park on this day, and did not see either the complainant or River before Raptor was unleashed. There were reasons in the evidence to doubt the extent of the checks he made.
- [16]Upon becoming unrestrained, Raptor effectively went straight to the shelter. It was an admitted fact at the trial that Raptor “attacked” the complainant, and that she suffered wounds and lacerations to her arm. It was open on the evidence to find that Raptor in fact went to attack River, and in the course of doing so inflicted those injuries. (Charge 1)
- [17]The injuries were described in the admissions at trial as being multiple deep puncture wounds and lacerations to the complainant’s right forearm, and amounted to bodily harm. They were treated by debridement and closure.
- [18]As a result of this incident, the appellants were given notice that the respondent proposed to make a dangerous dog declaration. They sent a submission, which the Magistrate found had been authored by Mrs Gromchenko. The declaration was made on 6 January 2022, and the appellants unsuccessfully sought a review of the declaration. They were both aware of the declaration.
- [19]Relevantly, the declaration contained certain conditions:
- a)Raptor was to be usually kept at the address stated in the registration notice;
- b)An enclosure for Raptor had to be maintained at that address;
- c)A declared dog sign had to be placed and maintained at or near each entrance to that address; and
- d)Any change of address had to be notified within 7 days of the change.
- [20]On 14 October 2022 a council officer attended the registered address to check on compliance. He spoke with Mr Gromchenko who lied and said he had written approval from Council that the yard at the premises was approved as the relevant enclosure. It was also noted that there was no dangerous dog sign on display. Mr Gromchenko said it had been stolen. When told that there was no approval and it was intended to seize Raptor due to non-compliance, Mr Gromchenko loaded the dog into a vehicle and drove off. Both the failure to get approval for an enclosure and the failure to maintain a dangerous dog sign were the basis for each defendant to be charged with Charge 2.
- [21]Subsequently, council officers obtained a warrant to seize Raptor. They attended the address on 25 October 2024. No one was at home. Officers placed a catchpole over the fence and put a noose around Raptor’s neck. At some point Mrs Gromchenko arrived home. She refused to open the gate when requested and then grabbed the catchpole that was being used to secure the dog in an attempt to remove it. (Charge 3 – Mrs Gromchenko)
- [22]Sometime later, Mr Gromchenko also arrived home. He jumped the fence and also grabbed the catchpole in an attempt to remove it. Police officers, who had been called to assist, took Mr Gromchenko aside to speak with him, but he again returned and attempted to remove the catchpole from the dog. (Charge 3 – Mr Gromchenko)
- [23]Raptor was returned three days later after officers had approved an enclosure that had been constructed.
- [24]In December 2022 an email was sent to the appellants by email reminding them of their obligations, including notifying any change of address and their obligations concerning an enclosure.
- [25]On 16 January 2023, the appellants purchased a different property, in Belmont. Once Council became aware of that, they were informed that the dog had been given to someone living in Coffs Harbour. That was not correct.
- [26]On 8 March 2023, a council officer inspected the property from the neighbouring property and saw that Raptor was roaming around the yard. There was no approved enclosure attached to the property. That was still the case on 15 March 2023 when Raptor was again seized under a warrant. (Charge 4) The failure to notify the change of address is the basis of the last charge. (Charge 5)
Analysis
- [27]The respondent acknowledges that the Magistrate did not make the mandatory enquiries outlined in s. 48(1) of the Penalties and Sentences Act 1992. It is an accurate observation, but the error is not one that can be shown to have caused the sentences to be excessive in the Chakka v Queensland Police Service sense. In any event, the affidavits now admitted on the appeal establish that each appellant has the capacity to pay a fine.
- [28]The respondent also concedes that the Magistrate did not give consideration to differences in the respective culpability of the appellants. That is, her Honour did not have regard to issues requiring a difference in the sentences to be imposed. This is a proper and relevant concession in the circumstances, and it was not brought to her attention by either advocate.
- [29]As to the obvious differences in culpability, the offences committed by Mrs Gromchenko occurred over a roughly 7-month period, as opposed to Mr Gromchenko’s over a roughly 17-month period and, in respect of charge 2, he lied to council officers about an approval having been given and then removed the dog from the premises before it could be seized. In respect of charge 3, Mr Gromchenko attempted to remove the dog from the catchpole twice, whereas Mrs Gromchenko’s liability arose out of one such attempt.
- [30]The only complaint about Mr Gromchenko’s sentences is excess, and therefore it is necessary to reach a view on that before considering the appropriate level of Mrs Gromchenko’s sentences.
- [31]There were no comparable authorities placed before her Honour, but the parties accept that only two are able to be located. Each has notable distinguishing features. Nonetheless, the lack of comparable authority does not absolve the sentencer from acting according to principle and does not leave open a wider range of permissible sentences than would otherwise be the case.[9] Factors such as the available maximum penalty and the nature of the proven culpability are important features, which in turn brings into focus the competing aggravating and mitigatory features.
- [32]The fines imposed were those suggested by the prosecutor. There was no expressed basis for why those fines were appropriate, and her Honour did not express any reasoning herself.
- [33]There were a number of aggravating circumstances. The complainant suffered real harm in charge 1, and it must have been a terrifying incident at the time.
- [34]The aggravating circumstances concerning Mr Gromchenko in charges 2 and 3 are noted above. Both appellants were well aware that Raptor had been declared a dangerous dog at that time, but had not taken the necessary steps to protect the community, as required.
- [35]Charges 4 and 5 were committed after proceedings had been commenced for charges 1to 3 inclusive. The decision to not notify the Council of the change of address could have precluded it from exercising the appropriate degree of supervision over Raptor, and thereby presented a potential danger to members of the community. It must be taken to be a deliberate attempt to conceal the dog.
- [36]The appellants’ Counsel submits that the reason for getting Raptor in the first place, and the sense of security he provided the family shows why Mr Gromchenko removed the dog on the occasion of charge 2 and why both appellants reacted the way they did on the occasion of charge 3. It is said that it explains why they would have been desperate to ensure that the dog was not removed from them by Council. On one view, that may provide some context for those offences, but it is not a full explanation. It provides no explanation at all for the non-compliance aspect of the offending in charge 2, and no explanation at all for the offending the subject of charges 4 and 5. It also tends to show a belligerent attitude to non-compliance. Even assuming the dangerous dog sign had been ripped off at the first premises, the failure to replace it speaks to that belligerence. They could have ensured the dog would not be removed by adhering to the conditions.
- [37]Although pleas of guilty were entered for charges 2 to 5 inclusive, they were late. That, and the course of the appellant’s conduct over a period justified the Magistrate’s conclusion that there is a lack of remorse on account of both appellants. Mr Gromchenko, in essence, blaming the complainant in charge 1 for the fact she was injured also did him no favours.
- [38]There are some mitigatory features. The offence in charge 1 was an offence of reckless omission, rather than deliberate conduct, and it occurred when there was doubt as to how easily the area could be inspected through the natural lighting, or lack of it. This was not expressly referred to by either the prosecutor or the Magistrate.
- [39]Mr Gromchenko was aged 38 years at the time of the appeal, and his wife 41 years. Neither have any criminal history. They are both gainfully self-employed.
- [40]The complainant was paid $30,000 compensation under an insurance policy. The only direct financial burden on the appellants was the payment of the undisclosed excess. Nonetheless, the complainant did receive financial compensation. The Magistrate was not informed of this and so could not take it into account.
- [41]I accept the respondent’s submission that general deterrence is an important feature in sentencing for these types of offences.[10] Nonetheless, the non-compliance offences had to be dealt with on the basis that they provided a potential for harm, rather than in fact resulting in harm, which would be a more serious form of the offence.
- [42]Two comparable sentence judgments have been relied on; Lukacs v Townsville City Council[11] and Walker v Maroney. Both are factually distinguishable. Lukacs is a case of far less determined and persistent offending, where the fine imposed below was simply found to not be manifestly excessive. In Walker a heavy fine was imposed where the appellant had made a deliberate decision to not comply with a condition of a dangerous dog declaration and as a result grievous bodily harm was occasioned to an elderly man. The fine mooted by her Honour must be seen on those far more serious circumstances.
- [43]In respect of charge 1, and although it is a rough measure, it is excessive to impose a fine that is almost 60% of the available maximum in all of the circumstances. A first offender in Mr Gromschenko’s position who had been convicted of assault occasioning bodily harm caused by criminal negligence could safely anticipate a notably lesser fine if charged under the Criminal Code, even though higher maximum penalty would be available.
- [44]I am also satisfied that to was excessive to have fined Mr Gromchenko a total of $16,500. Accordingly, I must consider the appropriate sentences to be imposed in the remaining charges.
- [45]The imposition of one fine for charges 4 and 5 was appropriate. They could have been charged as one compendious offence, as occurred with charge 2 which also had two components to it.
- [46]In my view, the following are the appropriate fines to be imposed on Mr Gromchenko:
Charge No. | Offence | Date of Offence | Maximum penalty | Sentence imposed first instance | Sentence imposed on appeal |
Relevant person must ensure dog does not attack or cause fear – s. 191(1) of the Act | 4/12/2021 | $6,892.50 | $4,000 | $2,000 | |
Fail to comply with permit conditions for declared dangerous dog – s. 97(1) of the Act. | 14/10/2022 | $10,781.25 | $4,000 | $2,000 | |
Obstruction of authorised person – s. 137(1) of the Act. | 25/10/2022 | $7,187.50 | $2,500 | $1,500 | |
Fail to comply with permit conditions for declared dangerous dog – s. 97(1) of the Act. | Divers dates b/w 7/3/2023 and 15/3/2023 | $10,781.25 | $6,000 in total for charges 4 and 5 | $4,000 in total for charges 4 and 5 | |
Fail to comply with permit conditions for declared dangerous dog – s. 97(1) of the Act. | Divers dates b/w 8/3/2023 and 24/5/2023 | $10,781.25 | |||
Total | $16,500 | $9,500 |
- [47]In my view, it follows that the appropriate sentences, in light of all circumstances relevant to Mrs Gromchenko’s circumstances, are:
Charge No. | Offence | Date of Offence | Maximum penalty | Sentence imposed first instance | Sentence imposed on appeal |
Fail to comply with permit conditions for declared dangerous dog – s. 97(1) of the Act. | 14/10/2022 | $10,781.25 | $4,000 | $1,000 | |
Obstruction of authorised person – s. 137(1) of the Act. | 25/10/2022 | $7,187.50 | $2,500 | $1,000 | |
Fail to comply with permit conditions for declared dangerous dog – s. 97(1) of the Act. | Divers dates b/w 7/3/2023 and 15/3/2023 | $10,781.25 | $6,000 in total for charges 4 and 5 | $4,000 in total for charges 4 and 5 | |
Fail to comply with permit conditions for declared dangerous dog – s. 97(1) of the Act. | Divers dates b/w 8/3/2023 and 24/5/2023 | $10,781.25 | |||
Total | $12,500 | $6,000 |
- [48]It was appropriate that no convictions were recorded against either appellant.
Costs
- [49]The appellants seek costs on the standard basis. It is argued costs should follow the event. The respondent resists this.
- [50]It is true that the Mr Gromchenko only abandoned his appeal against conviction after the filing of outlines, and so some unnecessary costs were incurred by the respondent. However, Mr Gromchenko has, even including that aspect of the filed appeal, substantially succeeded on his appeal, and Mrs Gromchenko has completely succeeded.
- [51]In circumstances where the errors in the sentencing were largely the result of the submissions made below as to the quantum of the respective fines and where those submissions did not recognise the need for differentiation between the two appellants, it is appropriate that the respondent bear the costs of each appellant.
- [52]Notably, the respondent sought legal costs from each appellant below. I cannot see a reason to deny them the advantage of reclaiming some of the costs of their own success on the appeals. They should be paid according to the scale in Schedule 2 of the Justices Regulation 2014, for each appellant.
Footnotes
[1]R v Tait [1999] 2 Qd R 667, [5].
[2]Although some doubt was expressed about that proposition by Dalton JA in DU v Jackson (DCJ) [2024] QCA 122 at [73]-[76], her Honour’s observations were obiter only and so should not be understood as changing the long-held view as to the nature of an appeal such as this, at least until formally adopted by the Court.
[3]R v Maniadis [1997] 1 Qd R 593.
[4](1936) 55 CLR 499, 504-505.
[5]Chakka v Queensland Police Service [2024] QCA 213, [87], [89]-[91].
[6]House v The King, ibid; Norbis v Norbis (1986) 161 CLR 513, 518-519; R v Hodges [2023] QCA 126, [9].
[7]Kentwell v The Queen, (2014) 252 CLR 601, [35].
[8]Lovell v Lovell (1950) 81 CLR 513, 519, 533 – 534.
[9]R v Goodwin; ex parte Attorney-General (Qld) (2014) 247 A Crim R 582, [5], [38]-[44].
[10]Principally relying on observations of Clare SC DCJ in Walker v Maroney [2015] QDC 87.
[11][2017] QDC 271.