Power v Auckland Society for the Prevention of Cruelty to Animals [2016] NZCA 406 (26 August 2016)

Last Updated: 6 September 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA206/2016 [2016] NZCA 406
BETWEEN	ANNE DE LA POER POWER Applicant
AND	AUCKLAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS Respondent

Court:	Winkelmann, Williams and Collins JJ
Counsel:	D R F Gardiner for Applicant J R Billington QC, J Edwards and J Rea for Respondent
Judgment: (On the papers)	26 August 2016 at 11.30 am

JUDGMENT OF THE COURT

1. The application for leave to appeal against conviction is declined.
2. The application for leave to appeal against sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

[1] Ms Power has applied for leave to appeal two judgments of the High Court. First, a judgment of Andrews J dated 8 September 2015.^[1] In that judgment Andrews J allowed Ms Power’s appeal from a judgment of Judge Dawson in the North Shore District Court, in which he had convicted Ms Power under s 28A(1)(b) of the Animal Welfare Act 1999 (the Act) for recklessly ill-treating her horse, Pip.^[2] Andrews J quashed that conviction and substituted a conviction under s 29(a) of the Act, which creates the offence of ill-treating an animal. The case was remitted to the District Court for Ms Power to be re-sentenced.
[2] The second judgment of the High Court which Ms Power seeks leave to appeal is that of Whata J delivered on 5 May 2016 in which he dismissed Ms Power’s appeal against sentence.^[3]
[3] We are dismissing Ms Power’s application for leave to appeal her conviction. First, we are satisfied she is in fact attempting to pursue a second appeal against conviction so leave is therefore required. Second, her proposed appeal does not meet the statutory threshold for leave: it does not involve a matter of general or public importance and there is no risk of a miscarriage of justice in declining Ms Power leave to appeal against conviction.^[4]
[4] We are also dismissing Ms Power’s application for leave to appeal against sentence because her proposed second appeal against sentence does not involve a matter of general or public importance and there is no risk of a miscarriage of justice in declining Ms Power leave to appeal against sentence.^[5]

Background

[5] Ms Power has a long history of owning and breeding horses. She has also kept a large number of other animals including cattle, sheep, llamas, dogs, cats and birds. On 11 September 2013, an inspector for the Society for the Prevention of Cruelty to Animals (SPCA) found Ms Power’s 32yearold gelding, Pip, dead in a paddock used by Ms Power. Investigations revealed that Pip had suffered severe dental wear, periodontal disease, infected lungs, nasal lesions, pneumonia and chronic worm infestation. Pip’s body was emaciated and he had lost a significant amount of his hair. There was also evidence Pip had starved. He was assessed as having suffered considerable pain during the period leading to his death.
[6] Ms Power was charged under s 28A(1)(b) of the Act with recklessly illtreating an animal. She was also charged in the alternative with ill-treating an animal contrary to s 29(a) of the Act. Ms Power was convicted of the charge under s 28A(1)(b) of the Act by Judge Dawson on 9 April 2015^[6] and sentenced by him on 3 June 2015.^[7]
[7] Ms Power appealed her conviction and sentence. Andrews J concluded that there was insufficient evidence to establish Ms Power had acted recklessly when illtreating Pip.^[8] Andrews J quashed Ms Power’s conviction under s 28A(1)(b) of the Act and substituted that conviction with one for the lesser offence of ill-treating an animal contrary to s 29(a) of the Act.^[9] Ms Power’s case was remitted to the District Court for re-sentencing.
[8] On 4 February 2016, Ms Power was re-sentenced by Judge Dawson.^[10] In his sentencing decision Judge Dawson disqualified Ms Power from owning animals, other than certain specified animals, for a period of eight years.^[11] Her other animals were forfeited to the SPCA^[12] and she was ordered to pay the SPCA $6,122.05.
[9] Ms Power appealed her sentence. That appeal was dismissed by Whata J on 5 May 2016.^[13]

Leave to bring a second appeal

[10] Section 237(2) of the Criminal Procedure Act 2011 states that the High Court or Court of Appeal must not grant leave to bring a second appeal unless satisfied that:

• (a) the appeal involves a matter of general or public importance; or
• (b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[11] An identical provision can be found in s 253 of the Criminal Procedure Act relating to applications for leave to pursue a second appeal against sentence.

Application for leave to appeal conviction

[12] It is submitted on behalf of Ms Power that she may be able to appeal as of right the judgment of Andrews J. This submission is based on the suggestion Ms Power is not pursuing a second appeal against conviction.
[13] We are satisfied Ms Power is attempting to pursue a second appeal against conviction. Her first appeal was heard and determined by Andrews J. The fact that Andrews J substituted Ms Power’s conviction under s 28A(1)(b) of the Act with a conviction for the lesser offence under s 29(a) of the Act does not alter the obvious conclusion that Andrews J heard and determined Ms Power’s first appeal. It follows she is now seeking to pursue a second appeal against conviction.
[14] The application to appeal against conviction is based on the submission that the District Court and High Court made errors of fact concerning the causes of Pip’s death and these errors either raise a matter of general or public importance or may have caused a miscarriage of justice.
[15] While we accept that the conviction is a matter of considerable importance to Ms Power, we can see no issue of general or public importance, or any possible miscarriage of justice, relating to the way Andrews J considered and determined Ms Power’s appeal against conviction. Ms Power continues to dispute the cause of Pip’s death. That issue was, however, not relevant to Andrew J’s decision. Section 29(a) of the Act governs the ill-treatment of animals and may be engaged regardless of whether or not the animal dies. Although Andrews J held Judge Dawson did not err in finding that ill-treatment caused Pip’s death,^[14] that finding was ancillary to the entering of the s 29(a) conviction. The factual dispute which Ms Power wishes to pursue is therefore not relevant to her conviction under s 29(a) of the Act.
[16] The grounds set out in the application for leave to appeal conviction do not satisfy the criteria in s 237(2) of the Criminal Procedure Act.

Application for leave to appeal sentence

[17] The application for leave to appeal sentence is based on the following contentions:

(1) The effects of the forfeiture order raise matters of general or public importance because of the number of animals that are the subject of the forfeiture order.

(2) The sentence was unduly influenced by Judge Dawson’s view that Pip died of starvation and this may have caused a miscarriage of justice.

[18] Whata J carefully examined the basis upon which Judge Dawson sentenced Ms Power. He recognised that the eight-year period of disqualification was at the upper end of the spectrum of sentences of this kind.^[15] Whata J assessed all relevant circumstances and determined that Ms Power’s lack of insight into the nature of her offending, her multiple prior convictions and the likelihood of her reoffending justified the sentence imposed by Judge Dawson.^[16]
[19] We have carefully reviewed Judge Dawson and Whata J’s decisions concerning the sentence imposed upon Ms Power. We can find no issue of general or public importance or any potential miscarriage of justice in the reasoning of Whata J.
[20] The grounds set out in the application for leave to appeal the sentence do not therefore satisfy the criteria in s 253(3) of the Criminal Procedure Act.

Result

[21] The applications for leave to appeal conviction and sentence are declined.

Solicitors:
Nigel G Cooke, Auckland for Applicant
Russell McVeagh, Auckland for Respondent

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^[1] Power v Auckland Society for the Prevention of Cruelty to Animals [2015] NZHC 2159.

^[2] Auckland Society for the Prevention of Cruelty to Animals v Power [2015] NZDC 5331 at [14].

^[3] Power v Auckland Society for the Prevention of Cruelty to Animals [2016] NZHC 888 at [27].

^[4] Criminal Procedure Act 2011, s 237(2).

^[5] Section 253(3).

^[6] Auckland Society for the Prevention of Cruelty to Animals v Power, above n 2.

^[7] R v Power [2015] NZDC 9783.

^[8] Power v Auckland Society for the Prevention of Cruelty to Animals, above n 1, at [33].

^[9] At [39] and [43].

^[10] Auckland Society for the Prevention of Cruelty to Animals v Power [2016] NZDC 1664.

^[11] Animal Welfare Act 1999, s 169.

^[12] Section 172.

^[13] Power v Auckland Society for the Prevention of Cruelty to Animals, above n 3.

^[14] Power v Auckland Society for the Prevention of Cruelty to Animals, above n 1, at [38].

^[15] Power v Auckland Society for the Prevention of Cruelty to Animals, above n 3, at [19].

^[16] At [21]–[24].