Demertjis v R [2022] NSWDC 572

District Court New South Wales

Medium Neutral Citation: Demertjis v R [2022] NSWDC 572 Hearing dates: 2 August 2022 Date of orders: 2 August 2022 Decision date: 02 August 2022 Jurisdiction: Criminal Before: Neilson DCJ Decision: See par [14]. Catchwords: CRIME – APPEALS – SEVERITY OF SENTENCE – Conviction recorded under pet regulatory scheme – Whether recording of a conviction and an 18 month Conditional Release Order too severe – Whether Appellant entitled to the benefit of their prior good character - Sophie the "menacing" Chihuahua-cross. Legislation Cited: Companion Animals Act 1998 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Nil. Texts Cited: Nil. Category: Sentence Parties: Appellant – Charles Demertjis Respondent – Bayside Council Representation: Appellant – Self-represented Respondent – Mr Schneider File Number(s): 2021/00336265 Publication restriction: Nil. Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Crime Date of Decision: 05 July 2022 Before: Carney LCM File Number(s): 2021/00336265

Judgment 1. HIS HONOUR: This is an appeal against a conviction recorded and sentence imposed by Carney LCM sitting in the Local Court at Sutherland on 5 July 2022. By Court Attendance Notice filed on 26 November 2021, Bayside Council accused the Appellant of failure to comply with a Menacing Dog Control Order, the failure occurring on 3 August 2021 at 5.01pm in Jacobson Avenue, Kyeemagh. 2. The dog in question was identified in the Court Attendance Notice as a crossbreed dog (part of that cross being a Chihuahua), and the statutory provision relied upon was s 51(2) of the Companion Animals Act 1998. The maximum penalty for an offence contrary to that provision is 150 penalty units. Her Honour recorded a conviction and required the appellant to enter into a conditional release order for a period of 18 months commencing on 5 May 2022. 3. The Appellant has two dogs: (1) Nugget, who I assume is a male, and (2) Sophie, a female. Sophie is described as a Chihuahua crossbred dog, shaded tan and white. Sophie was born on 1 November 2010. At the time of the offence alleged, she was ten years old. 4. The menacing dog declaration was made by Sunjid Hider, a senior ranger with the Bayside Council on 23 June 2021. That followed upon this incident according to the menacing dog declaration: "On Tuesday 1st June 2021 approximately 8:30am Dog name Sophie Microchip Number [redacted] rushed and attacked a Dog name Ralph on a public footpath outside 23 Jacobson Avenue Kyeemagh. Impact caused the dog leash to be flown away from the in charge of the dog. On the same day Victim Dog was taken to the Kogarah Vet Centre and required Medical Surgery." I assume the penultimate sentence, which is hardly English at all, is supposed to mean that Sophie pulled away from the gentleman walking her, who I assume was the Appellant, allowing Sophie to make contact with Ralph. The Appellant tells me today that he paid the veterinarian's bill of $90, but could not tell me what attention Ralph actually needed, whether he required stitching or medication, I do not know. 1. As a result of the menacing dog declaration, the Appellant was required by law to fit Sophie with a distinctive collar when outside his residence. The distinctive collar is described in cl 27 of the regulations made pursuant to the Companion Animals Act 1998 in this fashion: "It consists of red stripes alternatively spaced with yellow stripes, each being a width of 25 mm and set diagonal to the rim of the collar at an angle 45 degrees and at least one of the two colours is required to reflect light in the dark." The Appellant was also required to muzzle Sophie when she was being walked or otherwise managed in a public place. 1. The Appellant was at all material times a resident of Jacobson Avenue, Kyeemagh. 23 Jacobson Avenue, Kyeemagh was in fact the residence of the Appellant's daughter. Another resident of that street was Ms Sharan Culter, who lived on the same side of Jacobson Avenue as did the Appellant but a number of houses away from his, closer to the Appellant's daughter's residence which was on the opposite side of Jacobson Avenue. Importantly, also in Jacobson Avenue, Kyeemagh, is the Kyeemagh Public School. 2. On 22 August 2021, Ms Sharan Culter gave a statement of evidence to a council ranger. That was in response to her sending a text message to the council ranger on 4 August 2021 about Sophie's behaviour on 3 August 2021. Why it took Ms Culter a day to send a text message, I know not, nor do I know why there was a delay between 4 and 22 August 2021 in the council obtaining a statement from Ms Culter. Part of the statement is this: "3. On Tuesday, 3rd August 2021 at 5.01pm, I was driving in a northerly direction along Jacobson Avenue Kyeemagh. 4. I then observed Mr Demertjis walking his two dogs on lead (Sophie - tan & white & a long haired Chihuahua) along Jacobson Ave outside Kyeemagh Public School. 5. Since dog Sophie was not wearing a muzzle and an orange/white collar as stated in a menacing dog order declared by Bayside Council, I pulled over and took one photo showing this. 6. Then I observed Mr Demertjis crossing the road with his dogs and walking towards his daughter home at No. 23 Jacobson Ave, Kyeemagh. 7. I then drove home..." 1. As a result of that, Bayside Council caused to be sent to the Appellant an electronic penalty notice. The sum claimed for the offence reported by Ms Culter was $1,760. At the time of the offence, the Appellant was 76 years old. He is now 77 years old. How anyone would expect a pensioner to pay a fine of $1,760 for this offence is beyond common sense and reality. As the Appellant did not pay the penalty notice, the Court Attendance Notice was issued by the Bayside Council returnable before the Local Court at Sutherland, which led the Magistrate to impose the penalty which she did. 2. Her Honour recorded a conviction, as I said, and ordered the Appellant to enter into a Conditional Release Order for a period of 18 months. The Appellant asked me to set aside the conviction because he has previously not had any conviction recorded against him. One can understand a man who has survived in our society for 77 years without a conviction not wanting one to be recorded. He is entitled to the benefit of his prior good character. 3. In any event, the offence was, in my opinion, explicable by extenuating circumstances, and one might think it could be almost described as trivial. A 76-year old man was walking his dogs along the street in which he lived, past a school but well outside school hours. Sophie was not wearing the collar and muzzle that she was supposed to wear. She was, however, wearing another collar and she was being walked on a leash. That is clear from the photograph taken by Ms Culter. 4. The Appellant tells me that after the making of the menacing dog declaration on 23 June 2021, he was given a period of time in which to obtain the necessary collar and muzzle. He was given some four weeks. This offence occurred on 3 August 2021 six weeks after the making of the order. 5. The Appellant told me that Sophie had only been wearing the collar and muzzle in question for up to two weeks at the time of the offence alleged. Sophie did not take kindly to the muzzle and she had vomited into it. The Appellant had removed it in order to wash it and one can understand not wanting a dog wearing a muzzle into which it had vomited. 6. That, in my view, provides for a finding of extenuating circumstances. The Appellant assures me that Sophie is now used to the muzzle and is walked with the muzzle and the collar in question. In my view, the Respondent to this appeal has been lacking in objectivity when issuing the electronic penalty notice which it issued, and has not taken into account the circumstance of the Appellant and his dog when the offence was committed. 7. For those reasons, I set aside the conviction recorded and penalty imposed by the Local Court at Sutherland on 5 May 2022. In lieu thereof, under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to a conviction but having regard to the good character and age and health of the Appellant and the extenuating circumstances, I am satisfied that it is expedient to release the Appellant on a Conditional Release Order. I order the Appellant be released on a Conditional Release Order for a period of three months from today. Conditions of the order are as follows: 1. you are not to commit any offence; and 2. you are to appear before the Court if called upon to do so at any time during the term of the Conditional Release Order. 1. Any other orders sought? SCHNEIDER: No, your Honour. HIS HONOUR: Thank you.