De Vere v Auckland SPCA
[2019] NZHC 2355
•18 September 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-109
[2019] NZHC 2355
BETWEEN PAMELA DE VERE
Appellant
AND
AUCKLAND SPCA
Respondent
Hearing: 16 September 2019 Appearances:
Appellant in person
O Klaassen for Respondent
Judgment:
18 September 2019
JUDGMENT OF LANG J
[on appeal against conviction and sentence]
This judgment was delivered by me on 18 September 2019 at 3.30 pm.
Registrar/Deputy Registrar Date……………
DE VERE v AUCKLAND SPCA [2019] NZHC 2355 [18 September 2019]
[1] Following a defended hearing in the District Court Judge P R Grace found Ms De Vere guilty on four charges laid by the Royal Society for the Prevention of Cruelty to Animals (SPCA) under the provisions of the Animal Welfare Act 1999 (the Act).1
[2] On 4 March 2019, the Judge sentenced Ms De Vere to 12 months supervision subject to special conditions and 80 hours community work. He also directed Ms De Vere to pay costs incurred by the SPCA totalling $6,561.62 together with costs towards the prosecution in the sum of $1,000. The Judge also made an order under s 169(3) of the Act disqualifying Ms De Vere from owning or exercising authority over any domestic pets for a period of ten years from the date of sentencing.2
[3] Ms De Vere appeals against both conviction and sentence. She contends the Judge erred factually and legally in finding the charges proved. She also contends the Judge imposed a sentence that was manifestly excessive having regard to her overall culpability.
Background
[4] Ms De Vere has a history as a breeder of purebred dogs. On 25 May 2016, however, Judge J C Down found Ms De Vere guilty on four charges laid under ss 10 and 12(a) of the Act.3 Each of the charges related to a different animal but, in summary, the charges alleged Ms De Vere was liable for shortcomings in the care of two dogs and two cats in her possession during September 2014. On 9 November 2016, Judge Down convicted and discharged Ms De Vere on each of the charges.4 In addition, he made an order under s 169(3) of the Act disqualifying Ms De Vere from being the owner of, or exercising authority over, any domestic pet for a period of three years from 9 November 2016.
[5] In January 2017 the SPCA received information suggesting that Ms De Vere had further animals in her possession. On 26 January 2017 two SPCA inspectors went
1 SPCA v De Vere [2018] NZDC 17932.
2 SPCA v De Vere [2019] NZDC 3851.
3 SPCA v De Vere [2016] NZDC 9158.
4 SPCA V De Vere [2016] NZDC 2729.
to Ms De Vere’s address at 30 John Downs Drive in Browns Bay. The inspectors knocked on the door of the address and called out to Ms De Vere but were unable to evoke any response. They then left a notice on the front door advising the occupant that they had visited the address before leaving the property.
[6] On the following day the SPCA inspectors returned to the address, this time accompanied by three police officers and a locksmith. By that stage they had obtained a search warrant authorising them to enter the address if necessary to ascertain whether any animals were inside. They obtained the warrant because, when they visited the address on the previous day, they had heard noises emanating from the address indicating that animals were inside the house. These included the sound of claws scrabbling on concrete or a hard surface. Those sounds came from a room described as a “garage type room” connected to the northern side of the house.
[7] When the inspectors went to the address on both 26 and 27 January 2017 they were equipped with body cameras that filmed the events that occurred. Redacted versions of this film footage was played at the trial in the District Court and during the hearing in this Court. This showed the inspectors knocking at the front door of the address but obtaining no response. The locksmith that attended on 27 January then gained access to the house through the sliding door to the room on the northern side of the address. When the inspectors entered the address, they encountered Ms De Vere crouched in a corner of the room holding two dogs on a leash. The first was a female Collie mix and the second was a male dog of mixed species but with poodle predominance. They subsequently learned that the female dog was named Correena and the male dog was called Sasha.
[8] After considerable discussion with Ms De Vere the officers were able to remove the two animals from the address. They took them to the SPCA offices where they were initially examined by SPCA staff. They then asked a veterinary surgeon, Ms Shalsee Vigeant, to examine the dogs more thoroughly.
[9] The prosecution alleged, based on the observations made by both the SPCA officers and Ms Vigeant, that both dogs were suffering from signs of neglect. Ms Vigeant also considered that both dogs displayed significant behavioural issues.
They were extremely stressed and anxious and it took a considerable time to calm them down sufficiently to the point where they could be examined. Ms Vigeant considered this was likely to have been caused by lack of sufficient stimulation or exercise to enable them to become accustomed to interaction with both humans and other dogs.
[10] Correena was also found to have overgrown nails together with a long coat. Ms Vigeant considered the overgrown nails suggested Correena was not getting sufficient exercise outdoors. Sasha’s coat was extremely long and very matted. The mats were pulling at his skin and he had to be shaved thoroughly to alleviate the issue. He also smelt strongly of urine because much of his matted coat was towards his rear and the mats were coated in urine. Sasha also had urine staining and evidence of urine scald on his body.
[11] This series of events led the SPCA to charge Ms De Vere under s 169B(1) of the Act with contravening the terms of the order Judge Down had made on 9 November 2016 disqualifying her from exercising authority over domestic pets. In addition, the SPCA charged her with failing to comply with ss 10 and 12(a) of the Act by failing to ensure the physical, health and behavioural needs of the dogs had been met in a manner that accorded with good practice and scientific knowledge.
A The appeal against conviction
The hearing in the District Court
[12] At the hearing in the District Court the SPCA inspectors who had been involved in the events giving rise to the charges gave evidence. The prosecution also called Ms Vigeant, the veterinary surgeon who examined the two dogs after they had been taken to the SPCA offices. Ms De Vere questioned these witnesses but elected not to give evidence herself.
[13] Ms De Vere defended the charges laid under s 169B(1) of the Act on the basis that she already had the two dogs in her possession when Judge Down made the disqualification order on 9 November 2016. She argued that this meant the order did not apply to them. Not surprisingly, the Judge rejected this submission. He held that,
once the disqualification order was made, Ms De Vere was required to divest herself of any domestic pets over which she was exercising authority at that time. The Judge accepted Ms De Vere would not have been required to do so instantaneously, but said she would be required to find the dogs another home “over a relatively short and reasonable period of time”.5 Given the fact that Ms De Vere was still in possession of the dogs on 27 January 2017 the Judge considered she had not taken any steps to divest herself of them. He therefore found the elements of these charges proved beyond reasonable doubt.
[14] Ms De Vere defended the remaining charges on the basis that she disputed the evidence given by the prosecution witnesses, and Ms Vigeant in particular, regarding the condition of the two dogs on 27 January 2017. The Judge rejected this argument in the following passage of his decision:6
[30] What is clear is that you were …in charge of the animals at the time that they were taken into care, and when one then looks at the evidence of the vet who was an experienced vet, the evidence became somewhat concerning. She was quite clear that the cause of the long nails on the dog, Correena, were due to a lack of exercise. She described the way the nails grow and that would only occur if a dog has not had sufficient exercise. The matting on the dog, Sasha, could only have been due to a failure to groom the dog appropriately. The smell of urine and the fact that Sasha potentially had urine scalding is also a matter of concern.
[31] Ms De Vere did not produce any evidence to the contrary, so on the face of it I am satisfied that the various elements required from the informant have been established to the necessary standard. The question then is whether or not any of the defences set out in s 13 are available to Ms De Vere. As I say, she served a notice, and I have given her leave to put that in late. The only possible excuse that would be available to Ms De Vere in my view is the argument on stress, but that is the stress or any emergency on the part of Ms De Vere. That relates to her being a lonely woman who looks to her dogs for companionship. The stress covered by the legislation is stress at a level that prevents the person concerned from exercising the duties and objectives of the Code, not the stress raised by a defendant of a wish to own dogs for companionship reasons.
5 Auckland SPCA v De Vere, above n 1, at [24].
6 Auckland SPCA v De Vere, above n 1.
Decision
The charges laid under s 169B(1) of the Act
[15] Section 169B(1) provides that a person commits an offence if he or she contravenes a disqualification order made under s 169(3) of the Act. In order to prove a charge under this section the prosecution needs to establish the following matters beyond reasonable doubt:
(a)A disqualification order has been made under s 169(3).
(b)The defendant knows the order has been made.
(c)During the period specified in the order the defendant was the owner of, or exercised authority over, an animal or animals in contravention of the disqualification order.
[16] In the present case the sealed disqualification order was produced as an exhibit. Ms De Vere also acknowledged she was present in Court on 9 November 2016 when Judge Down made the order. There is therefore no doubt both that a disqualification order was made and Ms De Vere knew it had been made. She therefore knew she was not permitted to own or exercise authority over any domestic pet for a period of three years commencing on 9 November 2016.
[17] Ms De Vere denies she was the owner of the two dogs found in her possession on 27 January 2017. When the inspectors arrived on 27 January 2017 she told them the dogs belonged to her daughter, who was in Canada at that time. Ms De Vere maintained her stance on this point during the hearing before me.
[18] I find Ms De Vere’s claim that her daughter was the owner of the two dogs inherently improbable for several reasons. First, the evidence establishes that Sasha was purchased from an Animates Store in Albany on 11 September 2015. Correena was purchased from the same store on 14 September 2016. Sasha’s purchaser told the store her name was “Ella Devere”, whilst Correena’s purchaser said her name was
“Pam Hender”. Both of those names have an obvious similarity to Ms De Vere’s names.
[19] Sasha was then registered with the Auckland Council by a person called Ella Hender, whilst Correena was subsequently registered with the name Pam Hender being given as the primary contact. In the case of Sasha, the person registering the dog gave the address 12B Glencoe Road, Browns Bay whilst the person who registered Correena gave the address Unit B, 30 John Downs Drive, Browns Bay. Both addresses have been found not to exist. The fact that Ms de Vere resides at 30 John Downs Drive in Browns Bay provides a further obvious connection to her. I consider it to be very likely that she was the person who purchased both dogs and then registered them with the Auckland Council.
[20] Whether or not Ms De Vere was the owner of the two dogs does not matter in the present context. It was sufficient for the prosecution to prove she was exercising authority over them on 27 January 2017. To prove this the prosecution could point to the fact that she was found holding both dogs on a leash when the inspectors entered her house on that date. Furthermore, she has acknowledged being in possession of the dogs since at least 9 November 2016. In those circumstances the prosecution plainly proved beyond reasonable doubt that Ms De Vere was exercising authority over the two dogs as at 27 January 2017. She was doing so in knowledge of the fact that she had been disqualified from exercising authority over any domestic pets for three years from November 2016.
[21] As the Judge observed, Ms De Vere was required to divest herself of the animals as soon as was reasonably practicable after the order was made on 9 November 2016. The fact that she was still in possession of them as at 27 January 2017 shows she had failed to take such steps. The prosecution therefore proved all of the elements required to establish the charges under s 169B(1) beyond reasonable doubt.
The charges laid under ss 10 and 12(a) of the Act
[22]Section 10 of the Act provides:
10Obligation in relation to physical, health, and behavioural needs of animals
The owner of an animal, and every person in charge of an animal, must ensure that the physical, health, and behavioural needs of the animal are met in a manner that is in accordance with both—
(a)Good practice; and
(b)Scientific knowledge.
[23]Section 12(a) of the Act provides:
12 Animal welfare offences
A person commits an offence who, being the owner of, or a person in charge of, an animal,—
(a) Fails to comply, in relation to the animal, with section 10; or
…
[24] The definition of “physical health and behavioural needs” is contained in s 4 of the Act, which provides:
4 Definition of “physical, health, and behavioural needs”
In this Act, unless the context otherwise requires, the term “physical, health, and behavioural needs”, in relation to an animal, includes—
(a)proper and sufficient food:
(ab) proper and sufficient water:
(b)adequate shelter:
(c)opportunity to display normal patterns of behaviour:
(d)physical handling in a manner which minimises the likelihood of unreasonable or unnecessary pain or distress:
(e)protection from, and rapid diagnosis of, any significant injury or disease,—
being a need which, in each case, is appropriate to the species, environment, and circumstances of the animal.
[25] Sections 4 and 10 are cast in broad terms. Under Part 5 of the Act, however, the Minister of Agriculture may publish by Notice in the New Zealand Gazette a code
of welfare for the care of specified animals.7 One of the purposes of such a code is to establish minimum standards with regard to the way in which persons care for such animals and conduct themselves towards such animals.8 The Act contemplates that a code will generally be developed by the Minister in association with the National Animal Welfare Advisory Committee.9 A code can therefore be expected to provide valuable practical guidance as to how the needs of animals can be met in accordance with both good practice and scientific knowledge as required by s 10.
[26] The provisions of s 13 of the Act serve to require compliance with the minimum standard of a code. They establish that offences against s 12 are assessed on a “strict liability” basis:
13 Strict Liability
(1) In a prosecution for an offence against section 12, it is not necessary for the prosecution to prove that the defendant intended to commit an offence.
(1A) In a prosecution for an offence against section 12 committed after the commencement of this subsection, evidence that a relevant code of welfare was in existence at the time of the alleged offence and that a relevant minimum standard established by that code was not complied with is rebuttable evidence that the person charged with the offence failed to comply with, or contravened, the provision of this Act to which the offence relates.
…
[27] Subsection (1) establishes that it is not necessary for a prosecutor to prove that a defendant actually intended to commit an offence for them to be found guilty. Subsection (1A) directly links the codes to the Act, by providing that a failure to comply with the minimum requirements of the relevant code will be taken as rebuttable evidence of a breach of the requirements in s 10, and therefore as a breach of s 12. Equally, under s 13(2)(c), a defendant will have a defence against a prosecution under s 12 if they can demonstrate that they equalled or excelled the minimum standards established by the relevant code.
7 Animal Welfare Act 1999, s 75.
8 Section 68(b).
9 Animal Welfare Act 1999, s 70(1).
[28] At trial the prosecution produced a copy of the Animal Welfare (Dogs) Code of Welfare 2010. This is a code of welfare published in the New Zealand Gazette on 10 June 2010 by the Honourable David Carter as Minister of Agriculture. The code came into force on 11 June 2010 and has remained in force since that time. It applies to all persons responsible for the welfare of dogs and sets minimum standards for the care and management of dogs.
[29] The SPCA alleged Ms De Vere failed to meet several of the minimum standards prescribed by the code. In particular, it alleged she failed to comply with Minimum Standard No 4, which provides that dogs must not be contained or tethered in a way that causes them injury or distress. Information provided in the code relating to this standard states that long term confinement with minimal provision for exercise or social interaction can contribute to behaviour problems.10
[30] The SPCA also alleged Ms De Vere failed to comply with Minimum Standard No 12, which relates to the care of claws and coat. It provides as follows:
(a)The coats of long-haired dogs must be groomed and/or clipped at a frequency that will prevent suffering and distress due to matting or infestation by parasites.
(b)Claws must be clipped when necessary to avoid penetration of the skin and/or foot pads.
[31] In addition, the prosecution contended Ms De Vere had failed to comply with Minimum Standard No 13, which provides:
(a)Dogs must receive daily exercise sufficient to maintain their health and well-being.
…
The code suggests in relation to this requirement that dogs should have at least 60 minutes every day off the lead or out of the run, with freedom to explore their immediate environment.
10 Animal Welfare (Dogs) Code of Welfare 2010, Minimum Standard 4.
[32] Ms De Vere appeals against the Judge’s decision on the basis that there was an insufficient factual foundation to enable him to make the findings set out above at [14]. As she did in the District Court, Ms De Vere points out that both dogs had adequate food, water and shelter. She was also present at the address to care for them at all times. Ms De Vere disputes Ms Vigeant’s evidence regarding the condition of both dogs and says they are not borne out by the body camera film footage. Ms De Vere goes so far as to say she cannot even tell whether the photographs purportedly of Sasha that were produced at the trial were in fact photographs of Sasha.
[33] These submissions face the obvious hurdle that the undisputed evidence at trial was that the SPCA officers took both dogs from Ms De Vere’s property directly to the SPCA offices where they were examined. Photographs were taken at that time. Ms Vigeant’s evidence was to the effect that both dogs were in a state indicating they had not been properly cared for. This related both to their obvious distress and the physical symptoms of neglect displayed by both dogs.
[34] It is difficult to make any definitive findings about the condition of the dogs solely from the film footage because they were filmed only briefly and in poor light. The best evidence comes from the subsequent examination undertaken by Ms Vigeant and the photographs taken at the SPCA offices. If Ms Vigeant’s evidence is accepted Ms De Vere clearly breached her obligations under s10 because their level of distress suggests the dogs had been denied the opportunity to display normal patterns of behaviour as required by s 4(c) of the Act.
[35] The issues relating to the length of Correena’s nails and the length and matting of Sasha’s coat do not fit neatly within any of the matters listed in s 4. The wording of the section makes it clear, however, that those matters are not an exclusive list of factors defining the physical, health and behavioural needs of animals. Rather, those needs “include” the factors set out in s 4 but these are made expressly subject to context.
[36] Minimum Standard 12(a) of the code11 expressly states that the coats of long haired dogs must be groomed and/or clipped to prevent suffering and distress caused
11 Set out at [30].
by matting. Minimum Standard 12(b) states that claws must be clipped when necessary to avoid penetration of the skin and Minimum Standard 13 provides that dogs must receive sufficient daily exercise to maintain their health and wellbeing. I consider that breaches of these standards also indicate a breach of the requirements under s 10.
[37] There is no reason to believe the SPCA has substituted another animal for Sasha for the purposes of taking photographs for evidential purposes. Even to a lay person the photographs demonstrate that Correena’s nails were extremely long and the photographs of Sasha’s coat were equally telling.
[38] Correena is likely to have suffered significant discomfort from the fact that her nails were so long. Sasha would also have suffered discomfort from the matting in his coat and the associated urine staining and scald. In addition, the level of stress exhibited by both dogs supports the vet’s view that they are unlikely to have had much experience of interaction with humans or other dogs.
[39] The Judge was entitled to give weight to the fact that the vet had considerable relevant experience and was well qualified to comment on the overall condition of each dog and the likely reasons for the symptoms they displayed. Given her uncontradicted evidence I have no reason to differ from the Judge’s conclusion. Ms De Vere’s assertions in both the District Court and this Court remain just that. They are not supported by any evidence.
[40]The appeal against conviction fails as a result.
B Appeal against sentence
[41] Ms De Vere maintains that the gravity of her offending was low and warranted a lesser sentence than that imposed by the Judge. She bases this submission largely on her own view of the facts as set out in her submissions relating to the conviction appeal. As will already be apparent I do not accept her version of the facts.
[42] This was obviously not the worst case of offending of its type. Given the condition of each dog as described by the vet, however, I do not consider a sentence
of 12 months supervision can be described as manifestly excessive. It was a rehabilitative sentence that included conditions designed to assist Ms De Vere to undergo counselling and treatment for issues identified in a report from a psychologist that was available to the Judge on sentence.
[43] The sentence also needed to have a punitive and deterrent element, particularly given the fact that this is the second occasion on which Ms De Vere’s conduct towards domestic pets has been before the courts. I do not consider a sentence of 80 hours community work to be manifestly excessive for that reason.
[44] Ms De Vere did not address submissions to me regarding the term of the disqualification order the Judge made under s 169(3) of the Act. The prosecution had sought a disqualification order for a period of 20 years, but the Judge considered that to be excessive. The order needed to take into account the fact that Ms De Vere had already demonstrated a disregard for the disqualification order imposed in November 2016. This fact, coupled with her lack of insight into her offending, means a significant period of disqualification was required. Although it may be regarded as being towards the top of the available range I do not consider the ten year period the Judge imposed to be manifestly excessive.
[45] Ms De Vere did not advance any submissions to me during the hearing relating to the orders for costs that the Judge imposed. On that issue s 173(1) of the Act provides that all expenses reasonably incurred in exercising powers under the Act, including the costs of any veterinary treatment reasonably required in respect of an animal, are recoverable from the owner or person in charge of the animal. Where that person is convicted of an offence under the Act in relation to the animal, the Court has the power under s 173(3) to assess such expenses and they are recoverable in the same manner as a fine. In the absence of any evidence that the expenses claimed by the SPCA were unreasonable I do not consider it appropriate for this Court to revisit the issue of costs in its appellate jurisdiction.
Result
[46]The appeal against conviction and sentence is dismissed.
Lang J
Solicitors:
Crown Solicitor, Auckland Copy to: Appellant
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