Brotherston v Royal Society for the Prevention of Cruelty to Animals (SPCA)

[2019] NZHC 3423

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-404-000504

[2019] NZHC 3423

BETWEEN

MICHA BROTHERSTON

Appellant

AND

ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SPCA)

First Respondent

AND

NEW ZEALAND POLICE

Second Respondent

Hearing:

17 December 2019

Appearances:

D P Hoskin for the Appellant

S B O’Connor for the Respondents

Judgment:

19 December 2019

JUDGMENT OF GWYN J

This judgment was delivered by me on 19 December 2019 at 9.30am

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

D P Hoskin, Barrister, Auckland Steindle Williams Legal Limited Meredith Connell, Auckland

BROTHERSTON v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SPCA) [2019] NZHC 3423 [19 December 2019]

Background

[1]    Micha Brotherston pleaded guilty to three charges that arose out of his wilful mistreatment of two  dogs.  On  25  October  2019,  Judge  PJ  Sinclair  sentenced  Mr Brotherston to 26 months’ imprisonment, ordered that he be disqualified from owning an animal for seven years and ordered him to pay reparations. Mr Brotherston now appeals against that sentence.

Offending

[2]Mr Brotherston pleaded guilty to the following charges:

(a)Wilful ill-treatment of an animal that resulted in death;1

(b)Wilful ill-treatment of an animal that resulted in serious injury;2 and

(c)Possession of an offensive weapon.3

[3]    Mr Brotherston rented a property at 1286 Dairy Flat Highway. The complainants in this matter, Mr Johandre (Jack) Vanbiljon and Ms Casey Halpin, were Mr Brotherston’s flatmates.

[4]    On 5 February 2018, Mr Brotherston and a number of his associates confronted the complainants and accused them of stealing his property. He then ordered them to leave the address. The complainants began to pack the car with their belongings, including their two dogs, Turbo and Nova. Upon returning to the car with more belongings Ms Halpin saw Mr Brotherston near the driver’s door of her vehicle holding a skinning knife with a 30cm long blade. Ms Halpin yelled at Mr Brotherston “what are you doing?”.

[5]    While the complainants had been away from the car Mr Brotherston had cut Turbo’s throat right across the front of the dog’s neck. He had also started to cut

1 Animal Welfare Act 1999, s 28(1)(b). Maximum penalty five years’ imprisonment and/or a fine of up to $100,000.

2 Section 28(1)(d). Maximum penalty five years’ imprisonment and/or a fine of up to $100,000.

3      Crimes Act 1961, s 202A(4)(b). Maximum penalty 3 years imprisonment.

Nova’s throat but had been interrupted by Ms Halpin. When Ms Halpin approached the vehicle, she saw blood everywhere and Turbo jumped from the vehicle with blood pouring from his neck. Mr Vanbiljon ran out of the house and Turbo collapsed in front of him. At this point Mr Brotherston was holding the knife and smiling, and he then pointed the knife at Mr Vanbiljon. Mr Brotherston went back inside the house and the complainants fled the property.

[6]    Turbo was found dead in a ditch near Mr Brotherston’s property. Nova survived the injuries inflicted by Mr Brotherston, suffering a cut that stretched halfway across the dog’s throat.

[7]    On 11 February 2019, Mr Brotherston sought a sentencing indication, however he declined the indication.

[8]In August 2019, Mr Brotherston pleaded guilty to all three charges.

Sentencing

[9]    Judge Sinclair, although having previously given Mr Brotherston a sentencing indication, addressed the matter afresh.4

[10]   In determining the appropriate starting point Judge Sinclair noted that due to the varied offending covered by the charges faced by Mr Brotherston, there was no tariff case or guideline decision to apply. However, Judge Sinclair considered the recent Court of Appeal decision, Erickson v Ministry of Primary Industries, where the Court acknowledged that the maximum penalty for this offending had increased from three years to five years’ imprisonment, and where the Court had set out a number of principles for sentences regarding the ill-treatment of animals. These principles included five primary aggravating features, three secondary aggravating features and potential mitigating circumstances.5

[11]   Applying the principles outlined in Erickson, Judge Sinclair found that the offending involved significant distress to both Turbo and Nova, extreme violence and

4      Police v Brotherston [2019] NZDC 21340.

5      Erickson v Ministry for Primary Industries [2017] NZCA 271.

an element of cruelty and callousness. The Judge also regarded the dogs as having been in a vulnerable position as they were trapped in the car and could not get away from Mr Brotherston. The Judge also went on to find that Mr Brotherston executed the offending with degree of premeditation and sadism. The Judge noted that “to kill or maim an animal in front of their owner has a sinister aspect to it.”6 Judge Sinclair had regard to the profound impact this offending had on the complainants and that it occurred in the context of seeking retribution or revenge against them.

[12]   Considering the features of the offending Judge Sinclair noted that in similar cases starting points ranged from eight months to three years’ imprisonment. The Judge then adopted a global starting point of three years and three months’ imprisonment to reflect all three charges. Judge Sinclair did not impose an uplift for prior offending or for any other factors.

[13]   The Judge then granted a deduction of six months to reflect the time that Mr Brotherston had spent on EM bail but declined to grant deductions for a range of personal factors, remorse and good character. A deduction of 20 per cent was then awarded to reflect Mr Brotherston’s guilty pleas. This resulted in an end sentence of 26 months’ imprisonment.

[14]   Judge Sinclair also made an order that Mr Brotherston be disqualified from owning or having authority over animals for seven years, allowed costs of $1,000 to the SPCA and awarded expenses of $1472.46 for the veterinarian costs for Nova, as well as $500 to each of the complainants for emotional harm.

Submissions

Appellant

[15]   Mr Hoskin, for the appellant, contends that the end sentence imposed by Judge Sinclair was manifestly excessive and makes a number of submissions identifying alleged errors made by the sentencing Judge.

6 At [12].

[16]   Mr Hoskin submits that Judge Sinclair adopted a starting point that was too high, and that a starting point of two years would have been appropriate to reflect all three charges. He says that when adopting this starting point Judge Sinclair misinterpreted the sequence of events in a manner that made the offending appear more callous and serious. He also says that the Judge incorrectly applied the aggravating features identified in Erickson, failed to have regard to the differences in penalty for each of the ill-treatment charges, and failed to consider that the appellant had been provoked. Mr Hoskin also makes reference to a number of comparator cases to support his contention that the starting point adopted was too high.

[17]   Mr Hoskin also submits that Judge Sinclair gave too little weight to mitigating factors. In particular, the Judge declined to give a discount for remorse or prior good character. On top of this, he says that the Judge failed to give an adequate deduction for time spent on restrictive EM bail conditions.

[18]   Last, Mr Hoskin submits that a sentence of home detention ought to have been imposed as it is the least restrictive sentence that would hold the appellant accountable for his actions.

[19]   In regard to the disqualification order, reparations and costs awarded at sentencing, Mr Hoskin says that these awards were inappropriate in the circumstances and ought to be quashed.

Approach on appeal

[20]   Under s 250(2) of the Criminal Procedure Act 2011 the Court must allow an appeal against sentence if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[21]In any other case, the Court must dismiss the appeal.7

[22]   The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.8 What must be shown is that the sentence is “manifestly excessive”.9 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

Relevant law

[23]   Although there is no guideline or tariff judgment for sentencing involving the ill-treatment of animals, the Court of Appeal in Erickson outlined a number of aggravating and mitigating factors that are to be considered in offending under ss 28 and 28A of the Animal Welfare Act 1999.10

[24]The primary aggravating features were identified to be:

(a)Causing significant pain or distress;

(b)Using extreme violence;

(c)Premeditation and planning;

(d)Repetitive offending; and

(e)The offender taking a lead role in the offending.

[25]The secondary aggravating considerations include:

7      Section 250(3).

8      Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27].

9      At [26]–[27].

10     Erickson v Ministry of Primary Industries, above n 5, at [53] – [56].

(a)Means of commission of the offending to the extent that they enlarge the fear experienced by the animal;

(b)Abuse of a position of trust; and

(c)Impact on third parties.

[26]   The Court in Erickson declined to identify the range of possible mitigating factors, but noted that impulsive behaviour or mental illness will qualify as mitigating factors where present.

Analysis

[27]   The appellant contends that the sentence imposed by the District Court was manifestly excessive, adopting a starting point that was too high and failing to apply appropriate deductions.

Starting point

[28]   Judge Sinclair adopted a starting point of three years and three months’ imprisonment to reflect the three charges to which Mr Brotherston pleaded guilty. In setting an appropriate starting point the Court is to have regard to the purposes and principles of sentencing, including that the sentence must hold the offender accountable, denounce the offending conduct and deter the appellant and others from committing similar offending. The Court must also have regard to aggravating factors relating to the offending, including those outlined in Erickson.

[29]   Judge Sinclair identified a number of aggravating features that the appellant raises objections to on appeal. First, the Judge identified that the offending had caused pain and suffering to both Turbo and Nova. Mr Hoskin takes issue with this proposition as he says that the Judge failed to have adequate regard to the fact that the injuries suffered by Nova were much less serious than those suffered by Turbo, and that the pain relief administered by the veterinarian to Nova was over cautionary. I am not swayed by this submission. As noted by the respondent, Judge Sinclair did have regard to these features and considered Nova’s wound to be less serious than that

of Turbo, but she remained convinced that Nova suffered significant distress. Mr Hoskin also says that Judge Sinclair should have taken into account the fact that Turbo’s death was not prolonged. That submission has no regard to the degree of pain and distress that would nevertheless have been caused to Turbo. In my view the pain and suffering to both dogs was appropriately considered to be an aggravating feature of Mr Brotherston’s offending.

[30]   The appellant also took issue with the identification of extreme violence as a further aggravating feature of the offending. Mr Hoskin made reference to a number of comparator cases11 that he says exhibit much higher levels of violence than the “execution” type exercise undertaken by the appellant. In his submission this difference in violence ought to have been reflected in the starting point. Again, I am not persuaded by this submission. The respondent correctly notes that although the violence used in the current offending falls below the level of violence exercised in the other cases cited by the appellant, the fact that the level of violence is not at the most extreme end of the spectrum does not mean that the Court may not regard the violence involved in the offending as significant.

[31]   Counsel for the respondents points to Police v Witehira12 as the only or certainly the most directly comparable case because it involved both the use of a weapon and a retributive motive. The sentence starting point in Witehira was two years six months. Mr O’Connor’s submission was that the higher starting point here of three years three months can be justified by reference to four factors: (1) the offending involved two animals; (2) there was an additional charge of possession of an offensive weapon; (3) there was an aspect of implied threat; and (4) there was more than one third party or victim.

[32]   I agree that in many respects Witehira is an analogous case but that the difference in starting point is explicable by the factors raised by counsel for the respondents. I also agree with Judge Sinclair that here the nature of the attack on the

11 See Growcott v R [2015] NZHC 920; Hurring v Society for Prevention of Cruelty to Animals HC Dunedin CRI-2009-412-000019, 8 September 2009; Karekare v Police, HC Hamilton CRI-2011- 419-000067, 3 November 2011.

12 Police v Witehira [2017] NZDC 16476, [2018] DCR 638.

dogs had a sinister aspect to it. The pre-sentence report13 refers to Mr Brotherston saying “the only thing they [the complainants] valued was their animals. That is why I did it. It was the only way I can hurt them, I was livid.”

[33]   Judge Sinclair identified premeditation as a relevant aggravating feature, and this factor is also disputed by the appellant. Mr Hoskin says that Mr Brotherston acted spontaneously in “the heated circumstances of the complainants being asked to leave the property” and that his actions cannot be characterised as premeditated. That submission does not assist Mr Brotherston. He acted in the course of what appears to have been a threatening confrontation, initiated by him and/or his associates. The complainants were attempting to pack their belongings and leave the property as quickly as possible. It was in that context that Mr Brotherston returned to the house to retrieve a knife which he then used to attack Turbo and Nova. This conduct is illustrative of a degree of premeditation.

[34]   In the last of the aggravating factors identified by Judge Sinclair, the appellant also objects to the Judge’s assessment of the impact of the offending on the dogs’ owners. Mr Hoskin says that having regard to similar cases it cannot be said that the impact falls toward the upper end of the spectrum. I do not accept that submission. There is no doubt that watching Turbo die and going through the stress of additional injury to Nova, the complainants’ pets and companion animals, would have had a significant impact on them. I note the reference in Mr Vanbiljon’s Victim Impact Statement to the SPCA receipt of the autopsy report for Turbo, about which he says “They told me that Turbo had died in an agonising way and that he was probably still alive when we left the house … the thought of him dying a really painful death without me there is really hard to cope with.” Ms Halpin’s Victim Impact Statement too makes plain the distress she suffered at the time and subsequently.

[35]   Mr Brotherston cannot have it both ways. His own statement was that he attacked the dogs in order to hurt the complainants, knowing what the dogs meant to them.14 It does not sit well for him now to attempt to minimise the impact on the complainants.

13     Provision of Advice to Courts, 18/10/19, at 2.

14     See above n 13.

[36]    It is also relevant that during the offending the appellant pointed the knife at one of the complainants and carried out the attack against the animals in a retributive manner. This adds to the impact the appellant’s conduct would have had on the complainants. Further, and as noted by the respondent, the fact that other cases have had a greater impact on the owners of the animal does not negate the trauma experienced by the complainants in this case.

[37]   Mr Hoskin also made the submission that Judge Sinclair misinterpreted the summary of facts in a manner that made the offending appear more callous and serious than it actually was. The Judge stated that Ms Halpin came out to see the appellant holding the knife, and that after this he proceeded to say “ha, this is what you deserve” and then attacked Turbo and Nova. She also in several places misidentified the knife as a filleting knife, although I note that the first reference in the judgment correctly refers to it as a skinning knife.15 In the context of the judgment overall I do not believe these errors had any significant impact on the Judge’s assessment of the severity or callousness of the offending, and it has not impacted on my assessment of the offending on appeal.

[38]   Having regard to each of the aggravating factors identified and to the comparative cases provided by counsel, my view is that Judge Sinclair did not err in adopting a starting point of three years and three months imprisonment. Nor do I think that the starting point requires adjustment to reflect provocation, as submitted on behalf of the appellant. As the Crown points out, the provocation referred to by the Court of Appeal in Erickson is provocation or disturbance by the mistreated animal.16 There is no question here of provocation by the dogs – on the contrary, as the Judge found,17 they were vulnerable, effectively trapped in the car and unable to get away.

[39]   The appellant’s submission is that there was a degree of provocation by the complainants, in that the appellant believed they had stolen his property. This is a factor properly considered under “impacts on a third party”18 but in any event the appellant’s actions in attacking the dogs were wholly disproportionate to any alleged

15 At [2].

16     Erickson, above n 5, at [45].

17 At [15].

18     Erickson, above n 5, at [54].

dispute between him and Turbo and Nova’s owners. It is plain that, whatever motivation sat behind it, the threatening confrontation was initiated by Mr Brotherston and/or his friends. The complainants were the passive and fearful victims of that confrontation.

Mitigating factors

[40]   The appellant submits that Judge Sinclair failed to provide adequate deductions for Mr Brotherston’s remorse, previous good character and time spent on EM bail.

[41]   Judge Sinclair declined to provide a deduction for Mr Brotherston’s remorse despite the appellant being willing to engage in restorative justice processes and having written a letter of apology to the complainants. As the Supreme Court said in Hessell, “… a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse”.19 I acknowledge those two steps by Mr Brotherston, but I have also had regard to the pre-sentence report which notes that he was not remorseful and lacked insight into his offending. Mr Hoskin says that report does not accurately reflect Mr Brotherston’s state of mind but, without further evidence, I remain unconvinced that Mr Brotherston is truly remorseful. Accordingly, no deduction on account of this factor is warranted.

[42]   Judge Sinclair also declined to grant a deduction for good character on account of the appellant’s prior convictions. I am satisfied this was the correct approach.

[43]   The appellant contends that Judge Sinclair gave insufficient credit for the time Mr Brotherston spent on EM bail. Mr Brotherston was on EM bail for a period of approximately 16 months from 25 June 2018 to 25 October 2019, and during this time he says that he was subject to a restrictive regime of Police visits. For this, Judge Sinclair gave a deduction of six months. In arriving at this figure Judge Sinclair had regard to the fact that there is no mathematical formula in determining the appropriate deduction for time spent on EM bail, and that the assessment to be made is an evaluative one. Judge Sinclair also had regard to the fact that Mr Brotherston had apparently breached bail on six occasions, although it was clear on the material before

19     Hessell v R [2010] NZSC 135, at [64].

her that she knew Mr Brotherston disputed some of those alleged breaches. Weighing up these factors a deduction of six months was within the range available to the Judge and I see no reason to disturb this calculation.

[44]   Accordingly, I am satisfied that the Judge was correct in adopting a starting point of three years and three months, and subsequently allowing a six month deduction for time on bail and a further 20 per cent deduction for the appellant’s guilty pleas. This resulted in an end sentence of 26 months’ imprisonment. I am not convinced that the Judge made an error in any respect and see no reason to vary the sentence she imposed. As the end sentence is greater than 24 months there is no need to address the appellant’s submission regarding home detention.

[45]   I also see no reason to disturb the additional orders made by the Judge. The orders for costs, reparations and a disqualification from owning animals for seven years were appropriate in the circumstances.

Result

[46]The appeal is dismissed.

Gwyn J