By Alysha Byrne, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.   

Citation: Joyce v Visser [2001] TASSC 116

Court – Supreme Court of Tasmania
Judge – Crawford J
Date of Judgment – 2 October 2001

FACTS OF THE CASE

On 12 July 1999, Constables Williams, Tyson and Lucas entered the property of Joyce, the appellant, at Evandale with an RSPCA officer. Joyce was not present. On the property they located four dogs who were all chained by the neck. One of the dogs appeared to be dead. Constable Williams noted that there was no evidence of food or water for the dogs and that the area where they were kept was in a very poor condition.

A veterinary pathologist and a veterinary surgeon examined the four dogs. The pathologist found that the deceased dog was emaciated. The dog’s stomach was empty with evidence only of bile, mucus and pieces of grass. The pathologist concluded that the likely cause of death was emaciation; it would have taken weeks for the dog to reach this condition. The surgeon examined the remaining three dogs concluding that they were also emaciated and suffering from a moderate to heavy flea burden. It would have taken at least one month for the dogs to reach such a state.

Joyce was consequently charged under ss 7, 8 and 9 of the Animal Welfare Act 1993 (Tas), with eight charges relating to the animals under his care. Under s 7, Joyce was charged with having the care of animals and using a method of management, which likely resulted in unreasonable and unjustifiable pain and suffering. Under s 8, he was charged with omitting to do a duty, which caused unreasonable and unjustifiable pain and suffering to the animals. Under s 9, he was charged with omitting to do a duty, which resulted in the death of the animal.

The case was initially heard in a Court of Petty Sessions, and the Magistrate found all eight charges proved against the Joyce. He was sentenced to three months’ imprisonment, and prohibited for a period of 10 years from having the care or charge of any domestic animals. Joyce appealed.

THE ISSUES

  • Whether the Magistrate provided sufficient reasons for his Worship’s decision.
  • Whether the Magistrate’s finding was unsafe and unsatisfactory, given Joyce’s psychiatric condition.
  • Whether the penalty imposed was excessive.

THE DECISION

Crawford J set aside the judgment, and decided to re-sentence Joyce after review of the case.

Adequacy of reasons for decision

Crawford J dismissed Joyce’s claim that the Magistrate did not provide sufficient reasons for his decision. The Magistrate noted that the evidence against Joyce was overwhelming, and did not support Joyce’s defence that he did not have the care, possession or custody of the dogs.

Crawford J referred to the evidence put forward by Constable Williams. Constable Williams recalled Joyce arriving at the property, whereby he claimed that the dogs belonged to him, that he had allegedly run out of dog food and that he had been feeding the dogs food scraps. In relation to the deceased dog, Joyce indicated that he knew the dog had died “a day or two or three before.” In addition, the landlord of the property gave evidence that he was unaware of anyone, other than Joyce, caring for the dogs. Joyce’s wife also told the Court that she had previously asked the appellant to put the dogs in a home, but he declined to do so, claiming that he wanted to keep the dogs. Accordingly, both Crawford J and the magistrate found that Joyce was in the care and charge of the animals.

Satisfactoriness of the decision

Crawford J also dismissed Joyce’s submission that the Magistrate’s finding was unsafe and unsatisfactory. Counsel for Joyce argued that before the Magistrate convicted Joyce, Joyce should have been psychiatrically assessed. However, Joyce did not make such a submission prior to the complaint being proved on the evidence. Thus, Crawford J concluded that the Magistrate was justified in his findings.

Penalty

Joyce also argued that the penalty imposed by the Magistrate was manifestly excessive. Joyce’s counsel put forward that Joyce was 52 years of age and had his nine-year son living with him. He was on the pension, had no prior convictions and had received limited schooling. The Magistrate found that despite these mitigating factors, the case deserved the application of a deterrent penalty, to demonstrate the law’s intolerance of cruelty to animals. Crawford J agreed that the treatment of the animals was serious, observing that Joyce’s “neglect of them was extremely cruel and uncaring”. Notwithstanding this, his Honour determined that the penalty imposed was too severe in the circumstances. He stated that the Magistrate should have taken into account the absence of prior convictions and lack of substantial education. Crawford J adjourned the case to re-sentence Joyce, suggesting that “[a] short period of imprisonment, up to one month in all, would not have offended principle but I think three months did so”. The subsequent sentencing decision does not appear to be reported.

COMMENTARY

This case demonstrates the breadth of the concept “care, possession or control” of an animal by a person. It also examined the reasonableness of convictions, and the need to take into account mitigating factors. However, in finding the original penalty too severe, it calls into question whether penalties in animal cruelty cases are too lenient. Notably, Crawford J identified that although this was one of the “worst cases of animal cruelty” to have come before the Magistrate, “it is not difficult to imagine worse cases involving deliberate acts of cruelty to animals, such as deliberate and extreme violence or torture”. This factor, amongst others, impelled Crawford J to recommend that three months was an excessive penalty, suggesting that the law’s conceptualisation of the severity of animal cruelty is contextualised according to the worst kinds of mistreatment, rather than to the suffering experienced by the animal in question.

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