Kondratyeva v R [2015] NZCA 266 (23 June 2015)

Last Updated: 29 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA6/2015 [2015] NZCA 266
BETWEEN	TATYANA KONDRATYEVA Appellant
AND	THE QUEEN Respondent

Hearing:	17 June 2015
Court:	Stevens, Andrews and Gilbert JJ
Counsel:	P H H Tomlinson for Appellant T A Simmonds for Respondent
Judgment:	23 June 2015 at 11.30 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Andrews J)

Introduction

[1] Following a Judge-alone trial in the Auckland District Court before Judge Andrée Wiltens the appellant, Ms Kondratyeva, was convicted on two charges laid under ss 12(a) and 12(b) of the Animal Welfare Act 1999, in relation to 50 cats found at a property at Glenfield Rd, Glenfield, Auckland (the property).^[1] She was later sentenced to 125 hours’ community work and 12 months’ supervision, and prohibited from owning or exercising authority over cats for a period of 10 years.^[2]
[2] Ms Kondratyeva has appealed against her conviction and sentence.

Background

[3] Ms Kondratyeva has been involved in rescuing and caring for wild and unwanted cats, and has been a member of the Auckland SPCA Cat Coalition Group. In April 2010 she moved to a new address in Glenfield, Auckland, taking a number of cats with her. The property was owned by an elderly man, Mr Cruickshank. Ms Kondratyeva occupied a downstairs unit at the property.
[4] The relationship between Ms Kondratyeva and Mr Cruickshank deteriorated. On 17 August 2010 he served a trespass notice on her. By this time, Ms Kondratyeva had brought, in all, 50 cats onto the property. Ms Kondratyeva then moved out of the property.
[5] On 17 December 2010, Police were called to the property, because of an incident relating to the trespass notice. Both Ms Kondratyeva and Mr Cruickshank were there. The Police officers were confronted with what they described as a horrendous smell, and saw a number of unhealthy cats housed in filthy conditions. They called the Auckland SPCA about the cats.
[6] Two SPCA inspectors attended at the property shortly after the Police officers’ call. They found 50 cats housed in conditions that were variously described as “filthy”, “disgusting”, “horrendous”, and (by an SPCA inspector) as “the worst he had encountered while at the SPCA”. Veterinary examination disclosed that 13 cats had no concerning health issues, a further 14 had issues that were not significant, and the remaining cats required treatment for various conditions. One cat had to be euthanised.
[7] The cats were removed. They have since been in the charge of the SPCA, which has met the cost of their ongoing care.
[8] Both Ms Kondratyeva and Mr Cruickshank were later charged on indictment with two offences under the Animal Welfare Act, that between 17 September 2010 and 17 December 2010:

• (a) Being the owner or a person in charge of animals, namely cats, they failed to comply with the obligations imposed under s 10 of the Animal Welfare Act, in that they failed to ensure that the physical, health and behavioural needs of the animals were met in a manner that is in accordance with good practice and/or scientific knowledge.^[3]
• (b) Being a person in charge of animals, namely cats, that were ill or injured, failed to comply with the obligations imposed under s 11 of the Animal Welfare Act, in that they failed to ensure that the animals received treatment to alleviate any unreasonable or unnecessary pain or distress.^[4]

[9] Both Ms Kondratyeva and Mr Cruickshank pleaded not guilty to both charges. Mr Cruickshank subsequently pleaded guilty and was sentenced.^[5] Ms Kondratyeva’s trial proceeded from 10–14 November 2014. After hearing the evidence and counsel’s submissions, the Judge issued a reserved decision, in which he found both charges proved beyond reasonable doubt.^[6]

The conviction decision

[10] The critical issue at trial was whether Ms Kondratyeva was the owner of the cats, or otherwise the person in charge of them, during the period from 17 September 2010 to 17 December 2010. She did not dispute that the care and treatment of the cats was inadequate. Nor did she dispute that prior to her being served with the trespass notice, she was the owner, or in charge, of the cats. However, she argued that from the time she was trespassed from the property, she no longer owned or was in charge of the cats, and did not have sufficient access to the cats to care for them. She further argued that the proper owner was Mr Cruickshank, so she was not responsible for their care. Ms Kondratyeva also raised as a defence that, given the trespass order, she had taken all reasonable steps to care for the cats.
[11] Ms Kondratyeva gave evidence that she was not allowed to go onto the property. She also said that she had been abused by Mr Cruickshank, and had made calls to the Police seeking assistance. She also said that she had done what she could to take care of the cats, including taking them for veterinary treatment. She called evidence from Mr Steven Lothian in support.
[12] Ultimately, the Judge’s decision came down to a question of his assessment of the evidence and the credibility of the different witnesses. The Judge’s conclusions were set out at the end of the conviction decision:^[7]

[47] I considered there was conclusive proof of the Trespass Notice having been served; but also, by admission, that the Notice had been breached by Ms Kondratyeva on a regular basis. I considered, further, that relations between [Mr Cruickshank] and Ms Kondratyeva were inharmonious and on occasions volatile. However, I was sure the situation was not as dire as attested to by Ms Kondratyeva and Mr Lothian. I did not accept that Ms Kondratyeva had only intermittent, restricted access. I did not accept that [Mr Cruickshank] abused Ms Kondratyeva to the extent that she would depart the premises leaving the cats in the perilous state she appreciated.

[48] The vet receipts she proffered to demonstrate taking reasonable steps were for an earlier period in time, namely 2009 to early 2010 – and given there were 50 cats were clearly insufficient. Those receipts also ... flew in the face of what Dr McQueen found when he examined the cats, and what he had to do to treat them.

[49] I found that Ms Kondratyeva did not contact the Police on the occasions she suggested; nor did she contact the SPCA as she testified.

[50] There is no question that anyone visiting the premises would have been immediately aware of the obvious problems with the sanitary arrangements and the health and welfare of the cats. To suggest in those circumstances that Ms Kondratyeva had complied with her statutory obligations in having taken all reasonable steps is contrary to all logic and flies in the face of the evidence I accepted. I do not accept that contention.

L. Findings

[51] There is a preponderance of evidence showing that:

- Ms Kondratyeva owned the 50 cats found and removed from the property at 323 Glenfield Road, Glenfield.

- Ms Kondratyeva was also the person “in charge” of those cats — Mr Cruickshank’s position in relation to this was immaterial.

- The 50 cats were accommodated at that address in wholly unsanitary conditions, which adversely affected their physical health and behavioural needs.

- There was gross cat over-crowding.

- 22 of the cats had significant health concerns that required treatment — they could properly be classed as ill or injured. Those concerns were obvious, and were long-standing; and involved skin issues due to fleas, eye issues and some conjunctivitis, some had gingivitis, and many were infectious.

- The state of the property and the health and well-being of the cats was obvious to anyone chancing upon the circumstances as the Police Officers did when responding to the Trespass call-out — no expertise was required to make such an evaluation. Conversely, neither is it feasible to contend that it was possible to not see the true situation — to overlook reality; and

- Ms Kondratyeva did not take all reasonable steps to comply with either s 10 or s 11 of the Act. I have not set out the steps she might have taken — they are obvious, and should have started with complaints to the SPCA and/or the Police, and should have ended by removal of her cats from the unacceptable environment. She had ample opportunity and ability to do that, but spurned those potential remedies.

13. Conclusion

[52] For the reasons provided above, both charges have been proved beyond reasonable doubt.

District Court sentencing

[13] At sentencing, the Judge had before him a pre-sentence report and reports setting out information as to Ms Kondratyeva’s health issues.
[14] The Judge observed that Ms Kondratyeva owned the animals, and was also in charge of looking after them. She had not done so. He said that:^[8]

... it would be completely wrong and a disregard of your conduct to allow you to own or exercise control over any animals in the future.

[15] For that reason, the Judge made an order that Ms Kondratyeva was not to own or exercise control over any animals for 10 years. He said:^[9]

The power that I have is to restrict your ability to do that for 10 years and I am doing that. It seems to me that you should not own or exercise control over any animals for that period of time. And I do that for the benefit of the animals because I do not think that you looked after these 50 cats, any of them, very well at all. So that is the first part of this second bite at sentencing, having already ordered forfeiture of the cats on the previous occasion.

[16] The Judge stated that community work was “the best option here and the least restrictive outcome available in all the circumstances”.^[10] The Judge initially considered that 250 hours of community work was the appropriate sentence, but reduced that to 125 on the basis of the medical reports. The Judge further ordered supervision for 12 months, with a special condition that Ms Kondratyeva attend any counselling or programmes as identified by the Probation Service as being suitable.^[11]

Appeal against conviction

[17] Mr Tomlinson submitted that the Judge’s finding that Ms Kondratyeva was the owner and/or in charge of the cats was unreasonable, or could not be supported by the evidence. In particular, he submitted that the evidence did not support a finding that Ms Kondratyeva had ownership, or was in charge of the cats, after the Trespass Notice was served on 17 August 2010. Rather, he submitted, any ownership or charge she had before that date was wrested from her by Mr Cruickshank.
[18] The Supreme Court in Owen v R set out the approach to be taken to an argument that a verdict is unreasonable or not supported by the evidence.^[12] The appellate court is performing a review function; it is not a matter of the appellate court substituting its own view. The appellate review gives appropriate weight to such advantage as the fact-finder had in, for example, assessment of the honesty and reliability of witnesses.
[19] Mr Tomlinson accepted that this was not a case where there was no evidence of Ms Kondratyeva having ownership or charge of the cats, but he submitted that for the post-August 2010 period, the only evidence was what were said to have been admissions made by Ms Kondratyeva. He submitted that the claimed admissions were not admissions of ownership or being in charge, but were statements consistent with Ms Kondratyeva’s denial of each of them. He further submitted that, even if it were the case that Ms Kondratyeva had gone onto the property on occasion after August 2010, it was intermittent, at Mr Cruickshank’s whim, and it did not involve her being given access to attend to the cats.
[20] We are not persuaded that the Judge’s findings were either unreasonable or not supported by the evidence, for the reasons set out below.
[21] First, Ms Kondratyeva accepted that she had brought all 50 cats onto the property. There was no dispute that prior to the Trespass Notice she was the owner, and was in charge of the cats. Secondly, there was evidence on which the Judge could reasonably conclude that Ms Kondratyeva retained ownership and charge of the cats after the Trespass Notice, and that she went onto the property during the period of the charges:

• (a) Ms Kondratyeva produced a bundle of veterinary invoices. All were addressed to her. Although all but one related to dates preceding service of the Trespass Notice, one was dated 31 August 2010, it was addressed to Ms Kondratyeva, and it was noted as having been paid.
• (b) On 17 December 2010, at about 2:00 pm, a SPCA dispatcher received the initial call from the Police officers. She recognised Ms Kondratyeva’s name as a member of the Cat Coalition Group. She then telephoned Ms Kondratyeva, to ask who would be attending to the cats, as Ms Kondratyeva had been removed from the property. She said that Ms Kondratyeva said that she would be allowed onto the property to clean and feed the cats, and asked for any inspection to be in two weeks’ time, as she wanted to clean the property and finish building a fence at the property.
• (c) When the SPCA inspectors arrived at the property at about 2:20 pm, Ms Kondratyeva was inside the premises. The inspectors’ evidence was that she came to the door after Mr Cruickshank answered it, and she was observed to have wet hair, with shampoo evident in it.
• (d) Ms Kondratyeva had and eventually produced to the inspectors the key to a padlocked gate to the downstairs area of the premises.
• (e) When the inspectors returned to the property on 18 December 2010, Ms Kondratyeva arrived shortly thereafter, and again produced the key to the locked area.
• (f) Ms Kondratyeva was interviewed under caution on 22 December 2010, and acknowledged that she owned and was the caregiver for all of the cats.
• (g) Ms Kondratyeva said in an affidavit affirmed on 26 April 2011 that she had taken the cats to the property, and that they were in her care.

[22] The Police officers and SPCA inspectors gave evidence and were crossexamined. Ms Kondratyeva also gave evidence and was cross-examined. We reject the submission from Ms Kondratyeva that the Judge’s findings were unreasonable or not supported by the evidence. They were both reasonable and supported by the evidence.
[23] Accordingly, the appeal against conviction is dismissed.

Appeal against sentence

[24] The focus of Ms Kondratyeva’s appeal against sentence was the order banning her from owning animals for 10 years. Mr Tomlinson submitted that Ms Kondratyeva should have been treated in the same way as Mr Cruickshank. Although in his case an order was made prohibiting him from owning or being in charge of cats for 10 years, that order was subject to an exception in respect of three cats currently owned by him, unrelated to the 50 cats found in December 2010. He was permitted to retain those cats, subject to his complying with conditions as to the cats being micro-chipped, and his permitting inspections by the SPCA.
[25] We are not persuaded that we should interfere with the Judge’s prohibition order. We were advised by Mr Simmonds at the appeal hearing that an oral submission was made at the sentencing hearing by Ms Kondratyeva’s then counsel (not Mr Tomlinson) that she be permitted to have two or three cats, but that was opposed by the Crown. The Judge’s decision not to allow an exception to permit Ms Kondratyeva to own two or three cats was, therefore, made on the basis of submissions made to him, and his own assessment of Ms Kondratyeva and the circumstances of the offending from the substantive hearing. There was no basis on which we could conclude that he erred.
[26] Accordingly, the appeal against sentence is dismissed.

Result

[27] The appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Kondratyeva DC Auckland CRI-2011-044-4684, 15 December 2014 [conviction decision].

^[2] R v Kondratyeva DC Auckland CRI-2011-044-4684, 19 December 2014 [sentencing decision].

^[3] Animal Welfare Act 1999, s 12(a).

^[4] Section 12(b).

^[5] SPCA v Cruickshank DC Auckland CRI-2011-044-4684, 17 October 2014.

^[6] Conviction decision, above n 1.

^[7] Conviction decision, above n 1, at [47]–[52].

^[8] Sentencing decision, above n 2, at [2].

^[9] At [3].

^[10] At [4].

^[11] At [5].

^[12] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37, endorsing the approach taken by this Court in R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.