Waikato SPCA v Wilson [2017] NZDC 9722 (10 May 2017)

Last Updated: 25 July 2017

EDITORIAL NOTE: PERSONAL/COMMERICAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT HAMILTON

CRI-2016-019-006322 [2017] NZDC 9722

WAIKATO S.P.C.A.

Prosecutor

v

EZEKIAL JAMES CHARLES WILSON

_Defendant

Hearing:	10 May 2017
Appearances:	B Venderkolk for the Prosecutor G Prentice for the Defendant
Judgment:	10 May 2017

_{NOTES OF JUDGE K B F SAUNDERS ON SENTENCING}

[1] Mr Wilson you are for sentence on three charges of animal cruelty. They have all been laid under the Animal Welfare Act 1999. Each of the three charges has a maximum penalty of 12 months’ imprisonment and/or a substantial fine. There are two charges of ill-treating a dog, in this case a puppy, four-month old puppy called Floyd by beating him, causing him to suffer unreasonable or unnecessary pain or distress. The offending occurred on 16 June 2016 and occurred both at the Chartwell Shopping Centre carpark and at your home. There is in addition a charge that between 26 May 2016 and that June date you failed to ensure that the puppy Floyd received treatment to alleviate any unreasonable or unnecessary pain or distress suffered by him.

[2] The summary of facts records an appalling sequence of events occurring, firstly on 16 June that in turn revealed the fact that Floyd had suffered a substantial

_{injury two to three weeks prior to your violence inflicted on him on 16 June. The}

WAIKATO S.P.C.A. v EZEKIAL JAMES CHARLES WILSON [2017] NZDC 9722 [10 May 2017]

first occasion you were witnessed beating the puppy, was as I have said in the Chartwell carpark. This was witnessed by members of the public at about 9.00 am. It occurred in the back of your vehicle. You were seen holding Floyd by his throat, shaking, chocking him, throwing him twice to the side of the vehicle, throwing him into the rear of the boot and then punching his stomach with your closed fist at least

10 times. You were confronted by members of the public. One of them phoned the police. You said in explanation, “It shit all through my car.” One of the witnesses described you as pouring with sweat, looking wired and upset. That to me indicates the significant degree of force you must have used in beating the puppy that morning.

[3] Regrettably that was not the only incident that occurred on 16 June. Some four hours later at about 1.00 pm you were at home, again the police received a call from a member of the public that you were mistreating Floyd. You were seen to hold him in the air by his hind leg before dragging him into the house. You were yelling and swearing at him again in explanation saying that, “You’re cleaning the dog, it’s full of shit.”

[4] Mr Vanderkolk in his submissions pointed to what he referred to as a dispassionate observation of Floyd by a police officer when he attended your house that day. “The puppy cowered and shivered with a fearful demeanour and when the defendant was asked to bring it out and let it stand it had trouble standing on its rear legs and looked weak and distressed with its head hung low”. All of the reactions you may well think immediately flow from any type of violence to any living creature, be it animal or human.

[5] When Floyd was examined by a vet he was found to be lame in his left hind leg, there was a fracture with lots of issues with his joints and that indicated that he had been injured at least three to four weeks earlier. This as I have said aggravates your conduct on 16 June. The vet also noted that there were three fractured ribs on the puppy’s right-hand side. The vet concluded that the fractured left hind leg would have required again trauma of considerable force. The leg would have been swollen at the time of the injury so you must have known that an injury had occurred let alone the fact that Floyd was lame. It would have been apparent to you and in the

vet’s opinion Floyd would have been in considerable pain for at least three to four weeks. As to the fractured ribs she concluded they were consistent with considerable blunt trauma and of course that would be consistent with the punches seen by the members of the public.

[6] When you were asked about why you had not got treatment for the injured leg you minimised your conduct saying that the puppy had either stood on something or been stood on by someone accidentally. You also later acknowledged that he must have been in pain. You did not have the money to take him to the vet. All in all an appalling summary of violence inflicted on a four-month old puppy.

[7] I am told now that Floyd has been re-housed. He is in a home where I have every reason to believe he will be loved and cared for, as you should have done.

[8] You do have previous convictions for violence. Not directly relevant in terms of the fact that the person to whom you inflicted that violence was a human being but nevertheless it is something that is telling in your willingness to inflict violence on a human being is equally seen in your willingness to inflict violence on an animal. You were last convicted in 2012 of assault on police and were sentenced to community work and intensive supervision.

[9] Mr Vanderkolk for the prosecution does not shy away from a submission that the totality of the manner in which you inflicted cruelty on Floyd warrants a full-time custodial sentence. He has commended the public for being vigilant and for contacting the police. I agree with him. Your excuse for your conduct is simply untenable. The violence was repeated and as I have said completely and utterly without justification.

[10] Deterrence is an important component in terms of sentencing you and Mr Prentice on your behalf does not shy away from that either. In fact there is really no dispute between both Mr Prentice and Mr Vanderkolk about the appropriate starting point of imprisonment for about six months.

[11] Mr Prentice on your behalf acknowledges the appalling cruelty that you inflicted that day and indeed for the three weeks prior to that when Floyd was injured to his hind leg. He explains your offending on the fact that you were a meth addict. That may explain the conduct, it does not justify it at all Mr Wilson. However I do accept that Mr Prentice says a lot has happened and a lot has changed in a year. The most significant fact that has changed for you is that you are no longer a meth addict. It is a pernicious drug, it does lead to people doing and saying the most appalling things. Nevertheless it does not excuse your responsibility. You are I am told also now genuinely remorseful.

[12] I turn now to consider the appropriate sentence and I need to say this first and foremost to you Mr Wilson. Violence on a human being is not okay. Violence to an animal is equally not okay. It is never justified. You not only beat your puppy repeatedly on 16 June but you must have known he had been injured some weeks beforehand. He was in pain from that. You simply added to that pain in failing to get medical attention. Your conduct was cruel, it was callous and it was indifferent to the pain and distress you were causing your puppy.

[13] The two separate incidents on 16 June could only be described as particularly vicious. To do it once is bad enough, to continue to do it twice simply just highlights the indifference you must have felt to that living creature. You caused real hurt and harm to Floyd and as I have said the only comfort I take from this is that he now is in a good caring home environment.

[14] The purpose of sentencing you today is to hold you accountable. It is to deter you. It is to denounce your conduct. Together with specific deterrence a message needs also to be sent to members of the public. As I have said cruelty to any living creature is simply unacceptable and members of the community will not accept it. That is highlighted in this case by the very commendable actions of the members of the public who saw you beating Floyd. Your offending bears all the hallmarks of a prolonged consistent period of violence using blunt force trauma. You ought to have cared for this four-month old puppy. As I have said it is clear that your addiction played a part in your offending and indeed that is referred to in the pre-sentence reports. As I have said that in no way justifies your conduct.

[15] In mitigation I do have regard to the fact that you pleaded guilty to these three charges very early and give you 25 percent credit for that. There is no tariff for this type of offending and sentences do reflect the full range from non-custodial through to custodial sentences. I agree with the prosecution that the two charges of ill-treatment do reflect a greater culpability because that deals with specific conduct on your part. The specific acts of violence that you deliberately inflicted. The other charge is one based on your omission to act.

[16] As I have said there really is no dispute between counsel that an appropriate starting point for me is one of six months’ imprisonment and that is the starting point I adopt. I do not intend to treat any of the three charges differently and I look at sentencing on a totality basis. Your previous history for violence is relevant because it shows all too well how easily you resorted to violence in the past. That does warrant an uplift and I would take an uplift of two months for that. A sentence therefore starting of around eight months’ imprisonment. Giving you 25 percent credit for a guilty plea that for all intents and purposes gets me back to a sentence close to the six-month range.

[17] I need to now have regard Mr Wilson to whether the purpose of sentencing you today can be met by the imposition of a non-custodial sentence being the least restrictive sentence available. I am satisfied notwithstanding the particular indifferent callous cruelty here that I can and the balancing factor for me Mr Wilson is you are no longer a meth addict. I acknowledge that takes some determination and self-will for you.

[18] In respect of all of the three charges you are convicted and you are sentenced to community detention for a period of four months. The community detention is to be served at the [address deleted]. The curfew is 9.00 pm through to 6.00 am and that is seven days a week. You are to be present at the home for the first curfew period to start today.

[19] In addition you are also sentenced to community work for 200 hours.

[20] I make an order under s 169 disqualifying you from having custody of an animal for the next four years.

[21] You are also ordered to pay reparation of veterinary expenses of $566.74. That is payable at $50 a week. The first payment to be made within seven days.

[22] You are also ordered to pay a contribution of $600 towards legal fees.

[23] I also make an order that my notes on sentencing be transcribed and be made available as soon as possible.

K B F Saunders

District Court Judge