Gwatkin v Police HC New Plymouth CRI 2011-443-005 [2011] NZHC 162 (1 March 2011)

Last Updated: 27 May 2011

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

_{CRI 2011-443-005}

BETWEEN RICHIE JAMES FREDERICK GWATKIN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 1 March 2011

Counsel: N Harding for Appellant

J Marinovich for Respondent

Judgment: 1 March 2011

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Crown Solicitor, PO Box 738, New Plymouth

_{Thomson O’Neil & Co, PO Box 22, Eltham}

GWATKIN V NEW ZEALAND POLICE HC NWP CRI 2011-443-005 1 March 2011

The appeal

[1] Mr Gwatkin appeals against an effective sentence of five months imprisonment imposed in the District Court at Hawera on 22 February 2011. The offences to which the sentence responded were one of wilfully ill-treating a dog and two of breaching community work orders.

Facts

[2] On Thursday 27 January 2011, Mr Gwatkin was at a family address in Hawera. Also present were his younger brother, his younger brother’s partner and her four month old English Bull Terrier dog, called Phoenix.

[3] During the morning, Phoenix was left at the address while they went into town to attend to some errands. Sometime after Mr Gwatkin found himself inside the house with Phoenix and several cats. There is some dispute about what actually occurred subsequently and the reasons for it. Mr Harding, for Mr Gwatkin, raised those issues with the sentencing Judge, Judge McDonald, who did not regard them as material. I take a similar view. The essence of what occurred can be summarised briefly.

[4] In whatever manner, Mr Gwatkin picked up Phoenix and threw him with sufficient force to the floor for one of his hind legs to break. Subsequently, it was necessary for the leg to be amputated. The owner of the dog naturally has been affected adversely by what has occurred.

[5] The offending relating to the community work order arose out of a sentence of 180 hours community work imposed on Mr Gwatkin on 23 November 2010, for unpaid fines. Somewhat remarkably, this young man of 17 years had accumulated fines in excess of $3500 over a period between 2008 and 2010; all in relation to traffic offences.

[6] Mr Gwatkin on two occasions breached the obligations put on him to attend for community work. That gave rise to the two charges with which he was also dealt on 22 February 2011.

Sentencing in the District Court

[7] In sentencing Mr Gwatkin, Judge McDonald regarded the offending as “callous violence against the defenceless puppy”. He took the view that a starting point of six months imprisonment was appropriate to respond to the sentencing. In reaching that conclusion he referred to Chisholm J’s decision in Ford v Royal Society

for the Prevention of Cruelty to Animals.[1]

[8] Judge McDonald gave credit for Mr Gwatkin’s age and also for his early pleas of guilty. He declined to give any discrete credit for remorse which Mr Gwatkin said he had for his offending. While giving credits for the guilty plea and age, the Judge did not identify the credit provided for each.

[9] Judge McDonald went on to regard the breach of community work as quite separate. He considered that a one month imprisonment sentence was appropriate for each of the charges. That was imposed cumulatively on the sentence of four months imprisonment on the offence under the Animal Welfare Act 1999.

[10] There is no discussion of mitigating factors in relation to the community work sentence. It must be assumed that mitigation was assessed by reference to the totality of the offending which led to an effective sentence of five months imprisonment. To get to that sentence for the totality, it would have been necessary for the Judge to start at a figure in excess of the six months articulated for the wilful

_{ill-treatment offence.}

Analysis

[11] Mr Harding has submitted that the sentence is clearly excessive. He has challenged the start point identified by the Judge and also mitigating factors; specifically the failure of the Judge to give any specific credit for either remorse or personal circumstances.

[12] I was told that the maximum penalty for the wilful ill-treatment offence is three years imprisonment when the charge is proceeded with summarily.[2] As from 6

July 2010, for a charge of that type on which a person is liable on conviction on indictment, the term of imprisonment that may be imposed is one not exceeding five years imprisonment.[3]

[13] Although the maximum to be taken into account for present purposes must be referable to the summary nature of the charge, the increase in penalties for those who are convicted on indictment is relevant to the appropriate sentencing levels to apply. In the Explanatory Note to the Bill that ultimately enacted an amendment increasing the maximum penalty to five years imprisonment, it was stated that it was intended to send a “strong signal” to sentencing Judges of the need for higher penalties to be imposed by way of community response to offending of this type.

[14] Both Mr Harding and Mr Marinovich, for the Crown, have referred me to a number of authorities dealing with sentencing levels in cases such as this. Most of the cases are significantly more serious than the present. The sentencing approaches were reviewed in a decision of Fogarty J in Hurring v Society for Prevention of Cruelty to Animals[4] given on 8 September 2009. In that case, for a much more serious offence following which the dog died, a starting point of 18 months was approved on appeal.

[15] The starting point taken in the present case was one of six months imprisonment. I do not consider that it can properly be said that a starting point of

that length was excessive or inappropriate, although perhaps it is at the upper reaches of starting points for offences of this type, if one works on a maximum penalty of three years.

[16] However, I do think it is difficult to justify a higher starting point than six months to reflect the totality of the offending. I regard the community work offences as ones which should be incorporated within the six month starting point which can then be used for an effective sentence.

[17] The primary issues of mitigation that require consideration are those relating to youth and the guilty pleas.

[18] I agree with Judge McDonald that remorse could not be established sufficiently to be regarded as a discrete mitigating factor. There is nothing in Mr Gwatkin’s conduct, either before or after the offending, that would suggest he is remorseful for what he has done. Indeed, he has shown a casual, if not disdainful, attitude towards the need for him to respond to Court sanctions or to attend to meet charges brought against him.

[19] Similarly, I do not have sufficient information to consider personal circumstances as giving rise to an additional mitigating credit. Certainly Mr Gwatkin cannot be put forward as a person who has prior good character and, out of fairness to Mr Harding, he did not suggest that was the case.

[20] In relation to youth, there is a significant body of scientific evidence to demonstrate that adolescents’ brains are not fully developed by the age of 17. Indeed, there is an absolute prohibition on sending a young person to prison who is under the age of 17 years when charged with an offence which is not purely

indictable.[5] While Mr Gwatkin’s acts were serious and showed no sensitivity or

compassion, the District Court Judge was, I consider, required to make a greater allowance for his youth than he did. In my view, something in the order of two months ought to have been allowed for youth alone.

[21] Guilty pleas must then be assessed by reference to Hessell v R. These were early guilty pleas and required a credit of 25%.[6] On that basis, the sentence ought to have been three years imprisonment, on the Animal Welfare Act charge.

[22] As for the community work sentences, a sentence of imprisonment was inevitable. Disrespect was shown for the judicial process and the inability for the Court to have confidence that a community based sentence would be obeyed, left no practical alternative. However, in my view, the sentence ought to have been concurrent rather than cumulative. Overall, in respect of a 17 year old who has committed the offences involved, I consider that an effective sentence of three months’ imprisonment responds adequately to the totality of the offending.

Result

[23] The appeal against sentence is allowed. The sentence of five months imprisonment on the Animal Welfare Act offence is set aside and one of three months substituted. The one month imprisonment sentence on each of the community work offences remains, except it will be concurrent on the sentence of three months imprisonment rather than cumulative.

_{[24] All other aspects of the sentence imposed by the District Court Judge stand.}

P R Heath J

---

[1] Ford v Royal Society for the Prevention of Cruelty to Animals HC Christchurch CRI 2004-409-149,

9 September 2004.

[2] _{Query: see s 7(1)(a) Summary Proceedings Act 1957.}
[3] _{Animal Welfare Act 1999, s 28(1)(a), as amended by s 5 Animal Welfare Amendment Act 2010.}
[4] Hurring v Society for Prevention of Cruelty to Animals HC Dunedin CRI 2009-412-0019, 8 September 2009.

[5] Sentencing Act 2002, s 16 and R v C-W [2007] 3 NZLR 797 (CA).

[6] Hessell v R [2010] NZSC 135 at [75].