B v Police HC Blenheim CRI-2004-406-1568

[2006] NZHC 313

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2004-406-1568

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Counsel:         Appellant in person

R G Marshall for Respondent

Judgment:      31 March 2006

SECOND SUPPLEMENTARY JUDGMENT OF BARAGWANATH J

Solicitors:

Pitt & Moore, Nelson for Respondent

Copy to:

Mr and Mrs B  , RD1 Waikouaiti, Otago

B V NEW ZEALAND POLICE HC BLE CRI-2004-406-1568  31 March 2006

[1]      By memorandum of 27 March 2006 Mrs B   has drawn to my attention that my supplementary judgment of 13 June 2005 deals only with appeal against conviction and that the appeal against sentence has not been determined.

[2]      As she correctly points out, in my interim judgment of 10 December 2004 at para [2] I accepted that the fine of $2,000 on each three charges  exceeded the statutory maximum of $1,500.  The maximum fine is therefore $1,500 on each of the three charges.  The remaining question is what revised penalty is appropriate.

[3]      In her submissions as to sentence Mrs B   first submitted that since the learned Judge had been unable to determine how many sheep had been killed by the dogs the scale of the offending did not warrant placing it at the high end of the scale.

[4]      Secondly, she submitted that her previous good record is of relevance.

[5]      Thirdly, she submitted that the statutory penalties relate to attacks on people as well as on animals and that offending against animals should be viewed as of lesser moment.

[6]      I do  not  accept  Mrs B  ’s  submission  on  the  first  point.    For  reasons recorded in para [20] of the supplementary judgment of 13 June 2005 I did not accept Mrs B  ’s challenge to the Judge’s acceptance of the evidence of Mr Foote Senior that no fewer than 17 sheep died on the first occasion and at least ten on the second.

[7]      The fact that Mrs B   is of previously good character is a factor to be taken into account in her favour.   But while the offending related to animals rather than humans the large scale of the damage makes the offending serious.   It is the case with relatively low penalties that they will be reached with relatively little difficulty and compression of penalties for relatively more and less serious offending is inevitable.   The consequence, that more serious offending, such as offending that seriously injures a child, may not be sufficiently punished is unavoidable.   It has indeed led to a change in the law which is, however, of no present relevance.

[8]      I take into account that two informations related to what was first offending on 23 May 2004. The presence of more than one dog is an aggravating feature warranting two charges but the fact that they relate to a single transaction requires care to be taken to ensure proportionality.

[9]      The relatively low maximum penalty of $1500 per charge is an appropriate starting point for offending on such a scale.  I reduce the $1500 to $1000 per charge to recognise Mrs B  ’s good character and to achieve proportionality against the fact that there are two charges rather than one in relation to what was a single transaction.

[10]     For the further offending there is no justification for any discount.   The original fine of $2,000 on that charge will be replaced by one of $1,500.  The total amount of the fines will therefore be $3,500.

[11]     The order for costs of a further $2582.64 will stand.

W D Baragwanath J