Citation: Demertjis v R [2022] NSWDC 572
Court: District Court of New South Wales
Date: 2 August 2022
Judge: Neilson DCJ
Background
The appellant, a 76-year-old pensioner, was the owner of Sophie, a Chihuahua-cross dog declared "menacing" by Bayside Council in June 2021 following an incident in which Sophie attacked another dog on a public footpath. As a consequence of that declaration, the appellant was required under the Companion Animals Act 1998 (NSW) to fit Sophie with a prescribed red-and-yellow striped collar and a muzzle whenever she was walked in a public place.
On 3 August 2021, a neighbour observed the appellant walking Sophie along Jacobson Avenue, Kyeemagh, without the required collar or muzzle. The neighbour photographed the dogs and reported the incident to Bayside Council. Sophie was on a lead and wearing a different collar at the time. The council issued the appellant with an electronic penalty notice for $1,760. When the notice went unpaid, the matter was referred to the Local Court at Sutherland.
The Local Court (Carney LCM) recorded a conviction and imposed an 18-month Conditional Release Order. The appellant appealed to the District Court on the ground that the sentence was too severe, relying in particular on his previously unblemished record.
Legal Issues
- Whether the recording of a conviction and the imposition of an 18-month Conditional Release Order was manifestly excessive in the circumstances
- Whether the appellant was entitled to the benefit of his prior good character as a mitigating factor
- Whether extenuating circumstances existed that justified disposing of the matter without recording a conviction, under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
Decision
Neilson DCJ found that the offence was explicable by extenuating circumstances and was, in substance, close to trivial on the facts. The appellant had only recently obtained the muzzle, Sophie had vomited into it, and the appellant had removed it to wash it. His Honour regarded this as a reasonable and understandable explanation for the non-compliance on the day in question.
His Honour also noted that the appellant was entitled to the full benefit of his good character, having reached the age of 77 without any prior conviction. The significance of avoiding a first conviction for a person of that age and history weighed heavily in the appellant's favour.
His Honour was critical of Bayside Council's decision to issue a $1,760 penalty notice against an elderly pensioner without apparent regard to the individual circumstances. Neilson DCJ found the council had been "lacking in objectivity" in that approach.
Taking into account the appellant's age, health, good character, and the extenuating circumstances surrounding the muzzle, his Honour was satisfied it was appropriate to deal with the matter under s 10(1)(b) without recording a conviction. The original conviction and sentence were set aside and replaced with a three-month Conditional Release Order.
Orders Made
- The conviction recorded and penalty imposed by the Local Court at Sutherland on 5 May 2022 were set aside
- In lieu thereof, the appellant was released on a Conditional Release Order for a period of three months from 2 August 2022, pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), without a conviction being recorded
- Conditions: the appellant was not to commit any offence during the term of the order, and was to appear before the court if called upon to do so
Key Takeaways
- The District Court held that a defendant's prior good character, particularly a complete absence of convictions over a long life, can weigh substantially in favour of a non-conviction order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Extenuating circumstances, even relatively modest ones, may support the view that an offence under the Companion Animals Act 1998 (NSW) should be resolved without a conviction, where the non-compliance had a practical and reasonable explanation.
- Under s 51(2) of the Companion Animals Act 1998 (NSW), failure to comply with a Menacing Dog Control Order carries a maximum penalty of 150 penalty units, but the sentencing court retains full discretion to impose a non-conviction order where circumstances warrant.
- In dismissing the original sentence as excessive, Neilson DCJ emphasised that enforcement bodies issuing penalty notices ought to take account of an offender's individual circumstances, including age, financial position, and the context of the alleged breach.
- Sufficient extenuating circumstances existed on these facts to distinguish a technical breach of a regulatory dog-management order from conduct warranting the stigma of a recorded criminal conviction.
Legislation and Cases Referenced
Legislation:
- Companion Animals Act 1998 (NSW), s 51(2) and associated regulations (cl 27)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(b)
Cases cited: None cited in the judgment.