Department of Employment, Economic Development and Innovation v Schloss & Schloss [2012] QDC 30

1 DISTRICT COURT OF QUEENSLAND CITATION: Department of Employment, Economic Development and Innovation v Schloss & Schloss [2012] QDC 30 PARTIES: DEPARTMENT OF EMPLOYMENT, ECONOMIC DEVELOPMENT AND INNOVATION (appellant) v RUTH LURLINE SCHLOSS (respondent) DEPARTMENT OF EMPLOYMENT, ECONOMIC DEVELOPMENT AND INNOVATION (appellant) v KENNETH SCHLOSS (respondent) FILE NO/S: 7 of 2011 (Kingaroy) 8 of 2011 (Kingaroy) DIVISION: Appellate jurisdiction PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Kingaroy DELIVERED ON: 20 February 2012 DELIVERED AT: Kingaroy HEARING DATE: 15 February 2012 JUDGE: Bradley DCJ ORDER: Decisions of Magistrate confirmed Appeals dismissed CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondents pleaded guilty to charges brought under the Animal Care and Protection Act 2001 (Qld) – where respondents were sentenced by a Magistrate – where monetary fines and compensation orders were imposed, with no convictions recorded and prohibition orders on acquiring dogs for a set period – where respondent's financial circumstances were very relevant to their criminality – whether the sentence imposed was manifestly inadequate in all of the circumstances -- 1 of 16 -- 2 JUDGMENT 1 10 20 30 40 50 60 ANIMALS – VARIOUS STATUTORY PROVISIONS – PREVENTION OF CRUELTY TO ANIMALS – OFFENCES – CAUSING UNNECESSARY PAIN AND CRUELLY ILLTREATING – GENERALLY – where respondents operated commercial dog breeding business – where respondents charged with cruelty to animals in respect of particular dogs – where respondents charged with a breach of duty of care to all dogs – where first respondent charged with failing to comply with an animal welfare direction – whether Magistrate erred in fact – whether sentence imposed was manifestly inadequate Animal Care and Protection Act 2001 (Qld) Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), ss 9, 48 COUNSEL: M Nicholson for the appellant C Cuthbert for the respondents SOLICITORS: Department of Employment, Economic Development and Innovation for the appellant Woods Murdoch Solicitors for the respondents -- 2 of 16 -- 3 JUDGMENT 1 10 20 30 40 50 60 HER HONOUR: All right. Now, the purpose of today is for me to give my decision with respect to the two appeals that were heard last week in Kingaroy. I will say that I dismiss both of the appeals and I'll read now into the record my reasons for that decision. On the 12th of May 2011, each of the respondents pleaded guilty to charges brought under the Animal Care and Protection Act 2001 (“the Act”) in the Kingaroy Magistrates Court. Ruth Schloss pleaded guilty to one charge of cruelty to animals, one charge of breaching her duty of care to animals and one charge of failing to comply with an animal welfare direction without reasonable excuse. Kenneth Schloss pleaded guilty to one charge of cruelty to animals and one charge of breaching his duty of care to animals. Ruth Schloss was fined a total of $9,000 and ordered to pay $10,000 compensation. No convictions were recorded and a prohibition order was made that she not acquire any dog for a year or more than three dogs for two years thereafter. Kenneth Schloss was fined a total of $6,000 and ordered to pay $10,000 compensation. No convictions were recorded and similar prohibition orders were made against him. The appellant is the inspector appointed under the Act who brought the complaints against each of the respondents. The grounds of appeal in each case are, firstly, that the learned Magistrate erred in fact in finding that not all of the dogs -- 3 of 16 -- 4 JUDGMENT 1 10 20 30 40 50 60 seized were subject of the charges, namely charge two; and 2. The learned Magistrate erred in the exercise of his discretion in imposing sentence in that the sentence imposed was manifestly inadequate, namely in: (a) Placing too much weight on the circumstances of the defendant, particularly the financial circumstances of the defendant; (b) Placing too little weight on the injury caused to the animals subject of the charges; (c) Placing too little weight on general deterrence; (d) Failing to have regard that all of the dogs seized were subject to charge two; and (e) Finding imprisonment was not appropriate having regard to the seriousness of the offences. The respondents were sentenced in the Magistrates Court on the basis of an agreed statement of facts, which is document numbered 14 in the appeal book. It's a 13 page document and sets out in detail the background, chronology of events and facts on which the charges were based. I will not repeat those facts. But, essentially, the respondents operated a commercial dog breeding business on their property at Mondure under the name “K and R Puppies”. -- 4 of 16 -- 5 JUDGMENT 1 10 20 30 40 50 60 After an investigation into the respondents’ dog breeding facility, the appellant served an animal welfare direction notice on Ruth Schloss on the 8th of April 2009. This document contains a number of directions which needed to be followed in order for the respondents’ facility to comply with the New South Wales Animal Welfare Code of Practice. On the 9th of September 2009, a search warrant was executed on the respondents’ property, following which 246 dogs were seized and taken into the care of the RSPCA. The search and seizure of the dogs was a complicated and expensive exercise. The RSPCA set up a temporary veterinary triage and processing centre and the operation lasted for three days. Five dogs were sent away for emergency veterinary treatment and two died. The particulars of the cruelty to animals charge were that in relation to 14 particular dogs, they were caused pain due to the respondents’ failure to seek or provide appropriate treatment for their veterinary conditions. The particulars of the breach of the duty of care to the animals were that the respondents failed to take reasonable steps to provide treatment with respect to particular dogs for dental disease and ear infection or control of parasites, particularly fleas and ticks. And further, that they failed to provide appropriate accommodation or living conditions with respect to all of the dogs. -- 5 of 16 -- 6 JUDGMENT 1 10 20 30 40 50 60 With respect to the failure to comply with the animal welfare direction, the particulars are that appropriate standards were not complied with with respect to kennels, environment, hygiene, the stacking of cages and the maintenance of records. The Act provides a maximum penalty of 1000 penalty units ($100,000) or two years imprisonment for animal cruelty, 300 penalty units ($30,000) or one year imprisonment for breach of duty of care and 100 penalty units ($10,000) or one years imprisonment for failing to comply with an animal direction. In the Court below, fines in the range of 30 to 40 thousand dollars for Ruth Schloss and in the range of 20 to 30 thousand dollars for Kenneth Schloss were contended for by the prosecution. Alternatively, if the respondents were unable to pay fines of that magnitude and "having regard to the totality of the offending", a wholly suspended term of imprisonment of between 12 and 18 months was contended for in the prosecution's written submissions. The prosecution did not, however, ask for the recording of convictions. The prosecution particularly emphasised the seriousness of the offences and the need for both personal and general deterrence. The prosecution referred particularly to the large number of dogs involved and that the facts indicated that the respondents "had little to no regard for the welfare of the dogs". It was submitted that the respondents’ level of culpability was high and that the breaches of the Act were "by -- 6 of 16 -- 7 JUDGMENT 1 10 20 30 40 50 60 persons that were involved in the business of breeding and selling dogs". The prosecution contended that "no productive steps" had been taken to improve the living and welfare conditions of the dogs following the service of the animal welfare direction on the 8th of April 2009. The prosecution tendered a Profit Projection of the respondents’ business which indicated a substantial annual projected profit for “K and R Puppies”. It was argued there was potential for the respondents to make "significant profit from the dogs in their possession". Expert opinion was referred to that the number of dogs that can be looked after by one person should not exceed 30, and in a situation such as that found at the respondents’ property even fewer. In addition to the fines, the prosecution also sought reimbursement from the respondents for the costs of accommodation, food, rest, water and living conditions incurred by the RSPCA of $381,468.44 and for veterinary and other treatment of $169,356.82. A video taken during the execution of the warrant illustrating the conditions under which the dogs were kept was tendered below. I have viewed that video. It does demonstrate very poor living conditions for the dogs; including a number of cages stacked on top of each other, dog faeces around the property and much bare dirt. Drinking water is stagnant and -- 7 of 16 -- 8 JUDGMENT 1 10 20 30 40 50 60 there is little shade or shelter. Most dogs look badly groomed. The prosecution conceded that the respondents had made some attempt to improve conditions, but that those attempts were inadequate in the circumstances. Ruth Schloss was 55 years of age and Kenneth Schloss 63. Neither has any criminal history. They have three adult children and one daughter aged 16. Their property is a dairy farm of 310 acres which currently supports about 125 head of dairy cows. They had been breeding dogs for some time, but the detrimental financial impact of long-term drought on their farm and a demand for particular types of dogs led to the growth of the breeding concern. In good times their property can support up to 200 head of dairy cattle. But as a result of drought, numbers had been reduced to 40. They were forced to buy feed for the cows and were paying a considerable amount for their water allocation despite there effectively being no water. The annual income from the dog breeding, which was between 25 and 50 thousand dollars, was used for living and farm expenses. In the final 12 months of the breeding enterprise however, no profit was made as a number of puppies had acquired a disease which the respondents worked with a vet to overcome. Efforts were made by the respondents to comply with the animal welfare direction, according to submissions made on their -- 8 of 16 -- 9 JUDGMENT 1 10 20 30 40 50 60 behalf, but these were hampered by Kenneth Schloss suffering from depression. Eventually, after the involvement of the Salvation Army with the family, and about 12 months prior to sentencing, Mr Schloss commenced appropriate treatment for his condition. It was submitted that when in 2009 they found themselves with 246 dogs, the breeding enterprise was too much for them to manage properly. The respondents engaged in the breeding enterprise out of need rather than greed and the cruelty was as a result of neglect rather than deliberate. It was pointed out, on the respondents’ behalf, that the number of dogs particularised in the cruelty charge and those suffering dental disease, ear infections and significant tick burdens, represented about 17 per cent of the total number of dogs of 246. Although it was conceded before me that the excessive flea infection and deficiencies in the accommodation and living conditions affected all 246 dogs. Since the seizure of the dogs and with flooding occurring more recently, which had damaged much infrastructure on the farm including dams and fences, the respondents have become dependent on food vouchers from the Salvation Army and the Country Women's Association in order to survive. Their financial situation was such that, despite still operating as a dairy farm, they were entitled to Centrelink benefits and they had significant large debts. There were however, it was submitted, prospects of financial improvement over time. -- 9 of 16 -- 10 JUDGMENT 1 10 20 30 40 50 60 It was submitted that fines of the magnitude submitted for by the prosecution would "simply break" the respondents. It was submitted that combined fines of $10,000 would be appropriate in the circumstances and that the respondents had no capacity to pay any of the compensation or costs sought. The sentencing Magistrate acknowledged that the offending was "a bad case of animal cruelty and failure to comply with directions and breaches of duty of care," which was obvious from the conditions displayed on the video. He acknowledged the respondents’ pleas of guilty and that they had created "no impediment to the investigation." He noted that the 246 dogs the respondents had on their property "far exceeded the number of dogs that you had the ability to care for" and that theirs was a "commercial concern to generate profit." The sentencing Magistrate referred to the reduction in the respondents dairy herd as a result of drought and that the motivation for the dog breeding was "an endeavour to meet feed, water and other outlays in relation to your diary farming activities." The sentencing Magistrate noted that imprisonment is a sentence of last resort in these circumstances and concluded that imprisonment was not called for with respect to either of the respondents. He went on "the combined actions of two individuals with unblemished records caught in a drought situation who have become overwhelmed by the task of adequately caring for animals they believed would assist their situation by sale -- 10 of 16 -- 11 JUDGMENT 1 10 20 30 40 50 60 should not be met with a term of imprisonment suspended or otherwise." He told the respondents "were you of means and had there been no compelling extenuating circumstances to weigh against the gravity of your offending behaviour individual fines and total compensation orders in the range the complainant seeks would have been imposed." The Magistrate conceded that general deterrence may not be achieved by the penalty that he intended to impose, but he noted that sentencing is a complex exercise to be applied to the particular circumstances of each individual case. A schedule of comparative penalties for offences under the Act prepared by the prosecution, is of little assistance as they relate mainly to charges of breaches of duty of care and include no case involving a commercial dog breeding facility. Turning to the grounds of appeal, the sentencing Magistrate did state in his sentencing remarks "not all dogs taken were subject to the charges and that's another relevant factor”. On the other hand, he also noted that the respondents were unable to care for the 246 dogs found on their property. It is the case that particulars were given regarding individual dogs which were cruelly treated and others for which the respondents had not provided appropriate treatment for their veterinary conditions. The substandard accommodation and general living conditions applied to all the dogs. -- 11 of 16 -- 12 JUDGMENT 1 10 20 30 40 50 60 In his sentencing remarks, it is clear that the Magistrate understood how the charges related to the individual dogs and that the respondents had failed in their duty of care to all 246 of them, which was part of the basis for the second charge. The Magistrate did not therefore make an incorrect finding of fact or proceed on the wrong basis. The sentencing Magistrate rightly stated that a sentence of imprisonment in this case is one of last resort and he was entitled to come to the conclusion that a sentence of imprisonment was not called for in the circumstances. Indeed, the appellant's argument regarding penalty is somewhat inconsistent. The primary submission was that a heavy fine with no convictions recorded was appropriate. But that if the financial circumstances of the respondents were such that they could not pay a fine of the quantum submitted for, then a wholly suspended term of imprisonment should be imposed. A term of imprisonment, even if wholly suspended, must, of course, result in convictions being recorded. Section 48 of the Penalties and Sentences Act provides: 1. If a Court decides to fine an offender then, in determining the amount of the fine and the way in which it is to be paid, the Court must as far as practicable take into account: (a) The financial circumstances of the offender; and -- 12 of 16 -- 13 JUDGMENT 1 10 20 30 40 50 60 (b) The nature of the burden that payment of the fine will be on the offender. Subsection (3) provides: In considering the financial circumstances of the offender, the Court must take into account any other order that it or another Court has made or that it proposes to make: (a) Providing for the confiscation of the profits of the crime; or (b) Requiring the offender to make restitution or pay compensation. -- 13 of 16 -- 1-14 JUDGMENT 1 10 20 30 40 50 60 Subsection 4 provides: If the Court considers that it would be appropriate both to impose a fine and to make a restitution or compensation order; and b - the offender has not enough means to pay both, the Court must in making its order give more importance to restitution or compensation, though it may also impose a fine. Here, the appellant was seeking a very large order for compensation of over half a million dollars. Once the decision was made that the appropriate penalty was one of a fine and a compensation order, and that convictions should not be recorded, the Magistrate was bound to consider the respondent's financial circumstances and give preference to the compensation order; this he clearly did. It would have been an incorrect exercise of the sentencing discretion to come to the conclusion that as these particular respondents could not afford to pay a fine or compensation of the magnitude sought by the appellant, then an order for imprisonment should be made. This is a case of disturbing cruelty to animals, the respondents grossly breached their duty of care. The conditions demonstrated on the video are most concerning, and the evidence of the suffering of particular dogs is distressing. This is apparently the first prosecution in Queensland of persons involved in a commercial dog breeding enterprise. Clearly, general deterrence is an important factor in sentencing these respondents. It was a commercial -- 14 of 16 -- 1-15 JUDGMENT 1 10 20 30 40 50 60 enterprise, and the number of dogs involved is quite shocking. The Magistrate's sentencing remarks indicate that he took into account the gravity of the offending. The sentencing Magistrate was clearly aware of this, but the sentencing Magistrate also was obliged, as he did, to consider all of the purposes for which sentences may be imposed as outlined in section 9 of the Penalties and Sentences Act. On the other hand, it was a case of neglect rather than deliberate cruelty, and the breeding and sale of the puppies was engaged in more out of need than greed. The business could not be described as a "high value commercial enterprise", which is a quote taken from the second reading speech when the Act was introduced to Parliament as the sort of enterprise particularly targeted by the offence provisions. The respondent's financial circumstances were very relevant to their criminality as well as to the assessment of the appropriate fines and compensation orders. The combined financial burden imposed on the respondents as a family is $35,000. Given the respondents’ particular financial circumstances, that is a considerable amount. It is also an amount which may well deter others in similar situations from breaking the law. Such things are of course hard to judge. In all the circumstances I cannot be satisfied that the sentencing Magistrate's discretion miscarried, or that the ultimate penalty imposed on each of the respondents was -- 15 of 16 -- 1-16 JUDGMENT 1 10 20 30 40 50 60 inadequate, and each of the appeals is therefore dismissed. Anything further, Ms Cuthbert? MS CUTHBERT: No, thank you, your Honour. HER HONOUR: Mr Nicolson? MR NICOLSON: No, thank you, your Honour. HER HONOUR: Okay. Mr Nicolson, you did ask my Associate about publication, and once the transcript is provided, this will go on the Court's website. MR NICOLSON: I see, that's okay. So, your Honour's - the transcript will be available as your Honour's judgment? HER HONOUR: Yes. MR NICOLSON: Thank you very much, your Honour. HER HONOUR: Yes. Okay. Well, thank you, you can both hang up. MS CUTHBERT: Thank you. MR NICOLSON: Thank you. ----- -- 16 of 16 --