Power v Auckland Society for the Prevention of Cruelty to Animals [2016] NZHC 888 (5 May 2016)

Last Updated: 18 May 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-044-002173

CRI-2015-404-000152 [2016] NZHC 888

BETWEEN	ANNE POWER Appellant
AND	AUCKLAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS Respondent

Hearing:	14 March 2016
Counsel:	D Gardiner for Appellant J Billington QC and J Rea for Respondent
Judgment:	5 May 2016

_{JUDGMENT OF WHATA J}

This judgment was delivered by me on 5 May 2016 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...............................

_{Solicitors: Russell McVeagh, Auckland}

POWER v AUCKLAND SPCA [2016] NZHC 888 [5 May 2016]

[1] Pip, a horse in Ms Power’s care, died ill-treated and malnourished. Ms Power was convicted on one charge of ill-treatment of an animal under s 29(a) of the Animal Welfare Act 1999 (the Act). Judge Dawson imposed the following sentence for this offending:

(a) An animal disqualification order, under s 169 of the Act, prohibiting the appellant from owning or exercising authority in respect of any animals, except four horses, 11 cattle, 18 sheep, four llamas, four dogs, and up to 40 birds and four cats for eight years from the date of sentencing. In circumstances where the appellant had any excess number of animals, she was ordered to nominate the animals she wished to keep immediately;

(b) An immediate forfeiture order of all remaining animals owned by the appellant to the Auckland Society for the Prevention of Cruelty to Animals (SPCA), pursuant to s 172 of the Act;

(c) An order for reparation of expenses incurred by the SPCA of

$4,710.05 under s 173(1) of the Act; and

(d) An order for legal costs incurred by the SPCA of $1,412 under s 4 of the Costs in Criminal Cases Act 1967.

[2] Ms Power now appeals her sentence on the basis that the sentence was manifestly excessive.

Background

Conviction

[3] Ms Power was initially convicted on one charge of reckless ill-treatment of animals. This conviction was set aside by this Court and the present conviction

imposed in its place. The salient facts and findings, nevertheless, remain the same, namely:¹

[5] The expert evidence established that immediately prior to his death, the horse called Pip suffered from the following conditions:

• Severe dental wear and malocclusion with teeth out of alignment, impaction of material between teeth, periodontal disease of the gums, rotting of the bone and dental decay. Some teeth had sharp points causing lacerations to the cheeks and tongue. Pip would have suffered chronic pain from the cheek and tongue wounds, the periodontal disease and the teeth decay. He would have been unable to eat properly and unable to obtain adequate sustenance and death through starvation was inevitable. Pip had not received dental maintenance for a number of years and his dental pathology could not be attributed solely to his advanced age.

• Both lungs contained large areas of infection resulting in inflammation, tissue destruction, fluid swelling, airway collapse and scarring. There was an abscess in the middle of the right lung and tip of the left lung.

• Nasal lesions and pneumonia which would probably cause chronic suffering.

• Chronic parasitical worm infestation of the stomach consistent with a prolonged and high parasite burden.

• Pip’s body showed him to have been in a severely emaciated state with protruding hip bones, spine, ribs and a ewe neck, all indicating severe muscle wastage due to a lack of sustenance. On a Body Condition Scoring of Horses (based on the Carroll Huntington Method) Pip scored 0 on a scale of 0 to 5, 0 being the lowest possible score indicating the worst possible condition for a living horse.

• Pip had lost hair on all four fetlocks indicating that he had been standing in rain or mud for an extended time, and had rain scald, a bacterial skin infection, along his spine; also caused by being wet for long periods of time.

• There was no evidence of food in Pip’s stomach or small intestine indicating he had not eaten for 24 hours prior to his death. Some grass and sand were found in the caecum.

[6] The expert evidence is that while all Pip’s ailments may not have been obvious to a lay person, Pip’s overall very poor condition would have been. His dental, lung, nasal and stomach problems would have caused severe to extreme suffering which would have been for a period of at least some months with respect to the dental and stomach problems.

¹ Auckland SPCA v Power [2015] NZDC 533.

[4] Judge Dawson concluded:

[14] Miss Power’s reckless ill treatment of Pip includes the failure to:

• Check on his condition by regularly looking under his horse cover thereby not noticing his severely emaciated condition.

• Properly worming him, at a time of the year when parasites are most abundant.

• Checking to see that he had adequate grazing and failing to notice that the gate to the top paddock was closed.

• Never having had his teeth properly checked.

• Failing to notice the rain scald and loss of hair to all four fetlocks.

As an experienced horse owner Miss Power knows very well that these checks and treatments are a necessary part of caring for a horse. Had Miss Power done any of these checks then even with her delusory views about how well she cared for Pip, even she would have known he needed urgent treatment. She had cared for horses for many decades and has called upon veterinarians in the past when her animals have required attention. This Court therefore finds that the mens rea element of s 28A(1)(b) has been established and she is guilty of the offence under the section accordingly.

[5] In setting aside the conviction, Andrews J found:²

... that the Judge could not have found that Ms Power consciously appreciated a risk of Pip’s dying, or indeed a risk that Pip might be suffering pain or distress unnecessarily. The subjective element of the test for recklessness has not been established.

[6] But Andrews J agreed that the evidence before the Judge provided a sufficient basis for a finding that ill-treatment was a substantial and operative cause of death.³

The matter was referred back to Judge Dawson for resentencing.

Sentencing

[7] In resentencing, Judge Dawson observed:⁴

[3] I have considered the factors in favour of not restricting your ownership of animals and they include the submission that you have learnt a lesson from this case and it should not happen again. You also clearly love animals and you try and care for them and you have spent a considerable

² _{Power v Auckland SPCA [2015] NZHC 2159 at [31].}

³ _{At [38].}

⁴ Auckland SPCA v Power [2016] NZDC 1664 at [3]–[9].

amount of money upon those animals, including on veterinary care for the animals you have had in your care over the years.

[4] You also now own two properties which from the affidavit evidence and photos that have been provided to the Court appear to be well fitted out for the care of animals which you presently have. You did not have all of those facilities available to you before this case arose.

[5] The factors against your having ownership of animals include that the present facilities that you have are a snapshot of what is available at this point in time. That does not mean to say that those facilities will continue in the future. Once sentencing has taken place, the Court has no control over what future facilities you would have available.

[6] The paramount factor in sentencing you is the need to prevent future cruelty to animals. I remain very concerned about the delusory views you have as to your ability to properly care for animals. You have an ongoing history over many years of inadvertent cruelty to animals while believing that you properly care for them. You have also exhibited a lack of co- operation with the SPCA and you have also exhibited a lack of co-operation with this Court. You have been less than frank about what animals you own and/or control and where they are kept. I adjourned sentencing to give you the opportunity to confirm in an affidavit and state what animals you own, their description, their numbers, where they are placed, and confirm that that list was a complete list of all animals that you own and over which you have control or responsibility and that was the purpose of adjourning that sentencing for that affidavit to be provided.

[7] That affidavit does give information about the properties, animals, and numbers, but does not unequivocally say that those cover all the animals over which you have responsibility or control and ownership. It is a continuation of your evasiveness in providing information to the Court.

[8] You also have a longstanding proven inability to properly care for and provide for large animals, in particular for horse and cattle, and you also have exhibited a lack of control over dogs. You have a record of convictions of your behaviour and attitudes which does not leave this Court having confidence in your properly being able to care for animals in the future. I am of the view that a restriction on your ability to own and control animals is necessary to prevent future cruelty to animals by you. I have considerable misgivings about you owning or controlling or having responsibility for animals.

[9] In sentencing you I need to balance the humanity to you because you love animals and want to have them in your life but I have to balance that against the safety to any animals under your control in the future.

Jurisdiction

[8] I may allow an appeal against sentence if I find that the Judge has materially erred. A sentence that is manifestly excessive may be set aside pursuant to this jurisdiction.⁵

Appellant’s case

[9] Mr Gardiner submits that the sentence was disproportionate to the offending and the offender, noting:

(a) While Pip was vulnerable because of his age, Ms Power did not appreciate that the horse was suffering from some of the medical conditions which exacerbated the risk of problems with dental disease and the horse not receiving nutrition;

(b) This is not a case where a defendant intentionally or deliberately

ignored the animal’s condition;

(c) Ms Power was not carrying out a commercial operation – she was seeking to look after her animals, including Pip, out of love for them;

(d) Ms Power’s five previous convictions for neglecting to provide proper care and attention and failing to supply proper and sufficient food, water and shelter on 27 February 1998 and 11 March 1998 were imposed nearly 18 years ago, and her two convictions for causing unnecessary pain and suffering were imposed in 2001; and

(e) At the time of the offending, 54 of Ms Power’s cattle had been seized,

enhancing her ability to manage the remainder of her animals.

[10] Mr Gardiner also seeks to avoid disqualification, it appears, by submitting that the previous version of s 169 applied. If I understand his argument correctly, he

_{contends that:}

⁵ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33] and [35].

(a) Ms Power was convicted on 9 April 2015, prior to the current s 169 coming into effect;

(b) Andrews J quashed the conviction of reckless ill-treatment and entered a conviction for ill-treatment, pursuant to s 29(a);

(c) The former version of s 169(1) is more restrictive in its scope; and

(d) The qualifying conditions for disqualification under the former version of s 169 were not met.

[11] Overall, Mr Gardiner submits that the appellant’s conviction did not trigger the requirements of s 169 and, in any event, was not of a type of severity of offending that would warrant a lengthy imposition of a disqualification across a broad range of animals.

[12] Mr Gardiner further contends that forfeiture was unnecessary, given the removal of the 54 cattle.

SPCA

[13] Mr Billington QC contends, in short, that, having regard to the circumstances of the offending, Ms Power’s prior conviction history and lack of remorse or insight, the sentence imposed is, if anything, manifestly inadequate. Mr Billington also emphasised that the protective purpose served by disqualification and forfeiture was a driving consideration in this case, especially in the light of the Judge’s finding that the defendant had a delusory attitude about her ability to care for animals.

The frame

[14] Section 29(a) states:

29 Further offences

A person commits an offence who—

(a) ill-treats an animal; ...

[15] The wider statutory frame for the present offending was recently explained by the Court of Appeal in Balfour v R:⁶

[12] The AWA is the single most important piece of legislation in New Zealand relating to the protection of all kinds of animals under human control. It replaced earlier legislation, which had focussed principally on prohibiting cruelty to animals, with new provisions derived from internationally accepted principles known as the “Five Freedoms” of animal welfare, namely:

(a) Freedom from thirst — by ready access to fresh water and a diet to maintain full health and vigour.

(b) Freedom from discomfort — by providing a suitable environment including shelter and a comfortable resting area.

(c) Freedom from pain, injury and disease — by prevention or rapid diagnosis and treatment.

(d) Freedom to express normal behaviour — by providing sufficient space, proper facilities and company of the animal's own kind.

(e) Freedom from fear and distress — by ensuring conditions which avoid mental suffering.

[13] The AWA imposes core obligations on persons responsible for the care of animals, and provides for codes of welfare establishing minimum standards, and promoting best practice and appropriate behaviour. As subpara (1)(a) of the AWA's long title states, there is a duty of care on owners of animals and persons in charge of animals to attend properly to the welfare of those animals.

[14] The particular purpose of pt 1 of the AWA is to require owners of animals, and persons in charge of animals:

... to take all reasonable steps to ensure that the physical, health, and

behavioural needs of the animals are met in accordance with both —

(i) good practice; and

(ii) scientific knowledge;

The expression “the physical, health, and behavioural needs” of animals is defined in s 4. We refer to relevant aspects of that definition later in this judgment.

...

[16] Part 2 of the AWA then contains provisions prohibiting and allowing particular types of conduct in relation to species of animals or animals used

⁶ Balfour v R [2013] NZCA 429.

for certain purposes. Among the provisions in pt 2 is s 29(a) which makes it an offence for any person to ill-treat an animal. The offence is also one of strict liability subject to a similar statutory defence.

Assessment

[16] I agree with Mr Billington that there are a number of aggravating factors in this case, including:

(a) The gravity of the offending and the extent of harm is at the serious end of the spectrum – an animal has died ill-treated and malnourished;

(b) The level of culpability is medium to high (though not the worst of its kind) – Pip was poorly cared for, as noted at [3] above, his body score was 0 out of 5, the worst possible condition for a horse;

(c) Ms Power lacks remorse – I was not taken to any statement by Ms Power expressing remorse and her affidavit filed in support of her sentence does not mention Pip at all;

(d) Ms Power has multiple convictions, in short, for mistreatment of animals – 15 in total, though I accept that the present offending is the worst;

(e) I also accept that this is not a case of intentional or reckless harm and that Ms Power loves animals, but her attitude to their care is, as the Judge found, “delusory”.

[17] Given these core facts, I consider that the circumstances of the offending and the offender fully engage the the clear legislative policy of the Act to deter ill treatment of animals and that a period of eight years’ disqualification is not obviously wrong.

_{[18] I have tested this outcome in light of the authorities cited to me.}⁷

7. The s 29(a) authorities cited to me were: R v Collins [2008] NZCA 235; RSPCA v Anderson DC Dunedin CRI-2012-012-3228, 20 December 2012; SPCA v Patterson DC Waitakere CRI-2012-

090-6770, 17 January 2014; R v Bramley DC Wellington CRI-2009-078-542, 28 July 2009; NZ

[19] I accept that the end period of disqualification appears to be the highest for cases of offending of this specific type (s 29(a) offending) involving the death of one animal. Counsel cited examples of end disqualification pursuant to s 29(a) of between 2 years and 5 years involving the death of one animal,⁸ but as high as 10 years involving the death of more than one animal.⁹ There is an instance pursuant to s 12(b), which, like s 29(a), is a strict liability offence,¹⁰ where a disqualification of

10 years was imposed for failing to ensure that an animal received medical treatment.¹¹ But in that case there was an element of subjective intent, which was an aggravating feature and is not directly applicable to the present facts. On that basis, and having regard only to the circumstances of the offending, a disqualification period of eight years is harsh.

[20] But the assessment in terms of disqualification must involve a composite inquiry, with very careful consideration given to the personal circumstances of the offender. In this regard:

(a) The principles of deterrence and protection are fully engaged in this case. The defendant does not appear to be able to objectively self- evaluate her capacity to care for a large number of animals. In short, Ms Power presents a real risk on ongoing harm to the animals under her control.

(b) Ms Power’s multiple prior convictions are a significant factor, demanding additional caution. I accept that the historic nature of some of the prior offending is a relevant consideration. But the clear policy of the AWA is that offending of this type, involving significant harm and cruelty to animals, whether intentional or otherwise, is to be

_{avoided, particularly where the circumstances of the offending are}

Police v Teriaki DC Oamaru CRI-2010-045-293, 2 February 2011; Wellington SPCA v Chin DC Wellington CRI 2007-091-1067, 26 September 2007; Balfour v R, above n 6. Counsel also cited to me the following s 12(a) and 12(b) authorities: R v Albert CA126/03, 19 December 2003; Auckland SPCA v Taki DC Auckland CRI 2008-004-15941, 12 February 2010; Ford v RSPCA HC Christchurch CRI-2004-409-149, 9 September 2004; Hiha v Wairarapa SPCA [2014] NZHC 390; SPCA v Howarth DC Kaikohe CRI-2007-027-1993, 17 October 2008.

⁸ _{R v Collins, above n 7; RSPCA v Anderson, above n 7; R v Bramley, above n 7.}

⁹ _{NZ Police v Teriaki, above n 7; Wellington SPCA v Chin, above n 7.}

¹⁰ _{Balfour v R, above n 6, at [15]–[16].}

¹¹ Hiha v Wairarapa SPCA, above n 7.

unexceptional. Indeed, the reverse is true; the offending involved the everyday husbandry of animals where proper care is to be expected (as distinct from, say, extreme drought conditions where some hardship might be caused to the animals beyond the immediate control of the owners).

(c) Notably also, previous lesser sentences imposed on Ms Power have been ineffective in securing the requisite level of care and protection required.

[21] It is difficult to ascribe an uplift for these personal factors, but that the statutory policy is clear – a cautious approach is required. I am therefore in agreement with the Judge that a lengthy period of 8 years disqualification is reasonably necessary to achieve the requisite deterrence, and more importantly, protection of animals, demanded by the Act.

[22] I have also considered mitigating personal factors and, in particular, Ms Power’s desire to care for animals. But I think this factor is more relevant to the type of sentence imposed, rather than the period of disqualification – which is about achieving the legislative policy of protection. Furthermore, the disqualification is a qualified one – it does not involve the wholesale removal of all animals in Ms Power’s care or any particular class of animal. This, I think, reflects a proportionate approach, cognisant of Ms Power’s love of animals.

[23] Finally, I am not satisfied that the Judge erred by not taking an even more refined approach to the disqualification. As Ms Power has not accepted responsibility for her offending, or identified the causes for it, other than to refer to the scale of her animal ownership as now being much reduced in light of the forfeiture of the cattle, I have no clear reason to depart from the evaluation undertaken by the Judge.

[24] Accordingly, the foregoing factors in combination justify, in my view, a disqualification period of eight years. For the same reasons, I am satisfied that the forfeiture order was necessary and not manifestly excessive.

[25] It is unnecessary for me to address the SPCA’s evidence about subsequent conduct¹² and the claims that Ms Power was elusive about her animal ownership. I respond, however, for completeness, to Mr Gardiner’s submissions that the former s

169 applied. Even if that version of the section applied, it is plainly engaged in terms of s 169(1)(c), which reads:

(1) A Court may (in addition to or in substitution for any other penalty) disqualify a person for any period that it thinks fit from being the owner of, or exercising authority in respect of, an animal or animals of a particular kind or description where the Court convicts that person of an offence against –

...

(c) Any section in Part 1 or 2 and the Court considers that by reason of the serious nature of the offence the person should be disqualified under this section ...

(Emphasis added)

[26] Mr Gardiner’s suggestion that the offending was not of a serious nature reflected, in my view, Ms Power’s underlying lack of willingness to accept the gravity and seriousness of her offending.

Decision

_{[27] Given the foregoing, the appeal is dismissed.}

¹² Written submissions for the SPCA referred to an affidavit by Mr Plowright detailing various steps taken by the SPCA in relation to Ms Power’s animals which are said to indicate ongoing neglect. Mr Gardner also tabled letters from veterinarians David Cairns and DB Bond in support of Ms Power. Mr Cairns noted that, for a diagnosis of death by starvation, animals need to be emaciated, not just thin, and horses can be in good body condition with periodontal disease. Mr Bond says that he has attended Ms Power’s premises on several occasions and visited the SPCA premises in Mangere which was housing dogs uplifted from Ms Power’s premises. He said that no major health concerns were noted and the animals were well socialised with both their canine contacts and Ms Power. As all of this material was produced after sentence, I am not minded to have regard to it and it is not, in any event, determinative as it does not relate to the offending. It has some marginal relevance to my assessment of Ms Power, but it is unnecessary for me to dwell on its probative value, as there is no challenge to the factual findings made by Judge Dawson. His sentencing notes relate to the cause of Pip’s death and his assessment of Ms Power’s attitude to animals.