Hiha v Wairarapa SPCA [2014] NZHC 390 (6 March 2014)

Last Updated: 2 April 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-485-2 [2014] NZHC 390

RITA NGAWAI HIHA Appellant

v

WAIRARAPA SPCA Respondent

Hearing: 25 February 2014

Counsel: J K W Blathwayt for Appellant

S A Bishop for Respondent

Judgment: 6 March 2014

_{JUDGMENT OF SIMON FRANCE J}

[1] Ms Hiha pleaded guilty to one charge of failing to ensure an ill animal received treatment so as to alleviate the animal’s distress.¹ She was sentenced to

300 hours community work, and ordered to pay $66 reparation to SPCA, and $500 solicitor’s costs. In addition Ms Hiha was prohibited from owning a companion animal for 10 years.² Ms Hiha appeals her sentence, the focus being on the amount

_{of community work.}

¹ _{Animal Welfare Act 1999, s 12(b).}

2. Wairarapa SPCA v Hiha DC Masterton CRI 2013-035-000988, 29 November 2013, Judge Hastings.

HIHA v WAIRARAPA SPCA [2014] NZHC 390 [6 March 2014]

Facts

[2] The SPCA received a complaint about the condition of a dog at Ms Hiha’s property. The dog was tethered outside and in poor condition. It was underfed, and suffering a significant complaint in its rectal and vaginal areas. The dog was humanely destroyed.

[3] Ms Hiha was originally charged with two offences – one relating to the dog’s general condition and alleging a failure to provide food and water. The second charge related to the dog’s physical complaint and alleged a failure to get treatment.

[4] Concerning the vaginal prolapse, this was a recurring issue for the dog. It occurred when she came on heat. Ms Hiha had twice before taken the dog to the vet for treatment of the problem. The vet recommended having the dog spayed. However, Ms Hiha did not do so as she could not afford it.

[5] On the present occasion, Ms Hiha says she noticed the condition about five days earlier but the dog had immediately run off. It was returned to her by a friend, and she accepts she knew it was underfed and in poor shape. Ms Hiha accepts that she should have taken the dog to the vet at that point but she still owed the vet money from the last visits, and she felt she could not go there. Soon after the SPCA inspector must have arrived, and taken control of the dog.

[6] Ms Hiha denied the failing to provide a proper diet charge, attributing the dog’s poor condition to its five day absence. She pleaded guilty to the failure to obtain treatment charge, and the prosecution dropped the other charge. However, the agreed summary of facts included reference to the general condition of the dog and to this being caused by an inadequate diet.

[7] Ms Hiha was a first offender. The sentencing Judge accepted she was remorseful, and could call in aid her community contributions in areas such as relief work at kindergarten and helping provide breakfast at an adult learning centre. No starting point was identified but given the final sentence of 300 hours, the maximum of 400 must have been taken. If that is so, at most 25 per cent was then given for all

mitigation including the guilty plea. Other sentences either more serious

(community detention) or less serious (fine) were not expressly considered.

[8] On appeal Mr Blathwayt submits the sentence is manifestly excessive given the circumstances. It is submitted the cases relied on by the Judge were not comparable. Further, the Judge wrongly treated the dog’s malnourishment as an aggravating factor even though that charge had been dropped.

[9] For the respondent, Ms Bishop points to the inclusion of the fact of malnourishment in the agreed summary of facts and submits it was open to the Judge to give weight to it. In relation to the starting point, emphasis was given to the fact that the maximum penalties had been doubled in 2010.³ The cases being referred to were prior in time, and so needed to be assessed against the new maximum.

Decision

[10] I am of the view that the appeal must be allowed. First, I consider the starting point is too high for the facts of Ms Hiha’s case. Second, more credit was due Ms Hiha for the mitigation package she presented.

[11] In relation to the starting point, it is important to recognise this was a single offence of relatively short duration relating to a single occasion and concerning one animal. It was not an example of prolonged lack of care but rather involved a poor decision not to obtain treatment for a dog with a condition causing distress and needing management. A starting point apparently at or near the maximum permissible community work sentence is too high for this offence. That is not in any way to belittle the seriousness of these types of offence but all sentencing is comparative.

[12] A review of other decisions confirms the starting point is too high, and also confirms that this offending is at the lower end of the range of conduct found within

_{these offences. In Balfour v R the two defendants were each fined $12,500 for two}

³ Section 25 of the Animal Welfare Act 1999 was amended in 2010 to increase the maximum permissible term of imprisonment from six months to 12, and doubling the maximum permissible fine for an individual to $50,000.

representative charges of failing to ensure proper care in relation to 87 dogs and

161 cats, and one representative charge of ill treating cats (the same 161).⁴ The offending had carried on for some time. In Kunicich v RSPCA a fine of $15,000 was upheld for serious mistreatment of a flock of 356 sheep.⁵ In Green v SPCA the offending concerned 21 cats kept in terrible condition, as were 23 dogs.⁶ Many were suffering from serious health conditions, particularly ear and eye infections necessitating the immediate destruction of many. The sentence imposed was

300 hours, reduced from an identified starting point of 400 hours. The sentence was described in this Court as stern. Finally, reference can be made to R v Albert where total fines of $13,000 were imposed on two counts concerning poor treatment and care of 12 horses.⁷

[13] The District Court cases relied on by the informant each had a penalty of

150 hours community work plus other sanctions.⁸ All occurred prior to the increase in statutory maximums. The cases were legitimately relied on in that they involved one or two charges in relation to a single animal. However, in each case the offending was characterised by a much longer period of neglect or ill-treatment than is the case here.

[14] Given these cases, and even allowing for the increase in maximum penalties, the starting point for this offending, which falls at the bottom end of seriousness, could have been no more than 150 hours community work. Doubling the statutory maximum does not lead to an automatic doubling of penalties⁹ and it would be wrong to simply increase previous penalties in that way. In setting the starting point at 150 hours for this case it is important to keep in mind the one-off nature and short duration of the offending. In not proceeding with the charge of failing to provide proper care and nourishment, the informant accepted Ms Hiha’s culpability was

_{significantly reduced. The end sentence must reflect that.}

⁴ _{Balfour v R [2013] NZCA 429.}

⁵ _{Kunicich v RSPCA HC Whangarei CRI 2008-488-67, 13 October 2009.}

⁶ _{Green v SPCA HC New Plymouth CRI 2006-443-12, 18 October 2006.}

⁷ _{R v Albert CA126/03, 19 December 2003.}

⁸ Auckland SPCA v Taki DC Auckland CRI 2008-004-015941, 12 February 2010; SPCA v Taua DC Manukau CRI 2008-092-000988, 9 December 2008; and Wellington SPCA v McGovern DC Wellington CRI 2009-085-000237, 25 August 2009.

⁹ Te Kahu v R [2012] NZCA 473.

[15] Concerning mitigation, Ms Hiha acknowledged the conviction offence immediately. She was a genuinely remorseful first time offender entitled to positive credit for her community work. A total discount of 50 hours is merited leaving a final sentence of 100 hours community work. The other aspects of the sentence are unaffected.

Conclusion

[16] The appeal is allowed. The sentence of 300 hours’ community work is

quashed and in its place a sentence of 100 hours’ community work is imposed.

_{Other aspects of the sentence are unaffected.}

_{Simon France J}

Solicitors:

WCM Legal, Solicitors, Carterton

Luke Cunningham & Clere, Crown Solicitors, Wellington