Evans v Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA)
[2024] NZHC 1729
•27 June 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-529
[2024] NZHC 1729
BETWEEN COLIN FREDERICK EVANS
Appellant
AND
THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SPCA)
Respondent
Hearing: On the papers Counsel:
A Simperingham for Appellant R W Belcher for Respondent
Judgment:
27 June 2024
FINAL JUDGMENT OF LANG J
[sentence adjustment]
This judgment was delivered by Justice Lang On 27 June 2024 at 11.00 am
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Luke Cunningham Clere, Wellington Woodward Chrisp, Gisborne
EVANS v THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SPCA) [2024] NZHC 1729 [27 June 2024]
[1] On 14 June 2024, I issued a supplementary judgment in which I held that the convictions entered on seven of the charges that were laid against Mr Evans should remain intact.1 The convictions and sentences imposed on the remaining 23 charges were set aside.2
[2] The trial Judge, Judge N R Dawson, imposed concurrent sentences of 160 hours community work on the 30 charges on which Mr Evans was originally convicted.3 The Judge also ordered Mr Evans to pay the sum of $16,909.12 towards the costs of the prosecution.4 In addition, the Judge made an order under s 169 of the Animal Welfare Act 1999 (the AWA) disqualifying Mr Evans from owning or exercising control over any horses for a period of seven years commencing on 31 July 2018.5 This was the date on which SPCA inspectors entered Mr Evans’ property and uplifted the horses.
[3] It is now necessary for me to adjust the sentences imposed on the seven remaining charges to reflect the fact that Mr Evans has now only been convicted on seven charges rather than 30 as was previously the case. I have received written submissions from both counsel setting out the sentences and orders that they contend should now be imposed.
Approach
Section 236 of Criminal Procedure Act 2011 provides as follows:
Confirmation or substitution of sentence for another offence
(1)This section applies if—
(a)a first appeal court allows a convicted person’s appeal against conviction for one offence (offence A); and
(b)the sentencing court took the sentence it imposed for offence A into account in imposing sentence for a conviction for a
1 Evans v The Royal New Zealand Society for Prevention of Cruelty to Animals (SPCA) [2024] NZHC 1567 at [28].
2 At [29].
3 The Royal New Zealand Society for Prevention of Cruelty to Animals (SPCA) v Evans [2023] NZDC 18281 at [14].
4 At [15].
5 At [16].
different offence (offence B) and the convicted person remains convicted of offence B.
(2)The first appeal court may—
(a)confirm the trial court’s sentence for offence B; or
(b)substitute any sentence that is allowed by law; or
(c)remit the proceeding to the court that imposed the sentence for offence B and direct that court to take any action of a kind described in paragraph (a) or (b).
[5] In the present case there was no appeal by either party against the sentences and orders the Judge imposed on the 30 charges on which Mr Evans was originally convicted. Judge Dawson held that a starting point of six months imprisonment was justified to reflect Mr Evans’ culpability on all charges.6 However, he considered imprisonment was not an appropriate sentencing option given Mr Evans’ lack of previous convictions and the lack of utility to the community of such a sentence. He therefore selected a starting point of 180 hours community work.
[6] The Judge reduced the starting point by five per cent to reflect Mr Evans’ previous good character and five per cent to reflect the time he had spent on bail prior to trial. This produced the end sentence of 160 hours community work.
[7] The issue for present purposes is the extent to which the sentence of community work should be reduced to reflect the fact that Mr Evans has now been convicted on seven charges rather than 30. It is also necessary to re-consider the order for costs and the disqualification order given that 23 of the convictions have now been set aside.
[8] This is not a numerical or mathematical exercise in which the sentence is reduced by 75 per cent to reflect the fact that the convictions on 23 out of 30 charges have now been set aside. Rather, the Court must endeavour to ascertain the seriousness and culpability of the remaining charges and to impose a sentence that reflects those issues as well as the fact that Mr Evans is not now being sentenced on the charges for which convictions have been set aside. In undertaking this exercise, however, the
6 At [13].
Court proceeds on the basis that 180 hours community work was an appropriate starting point on all charges.
The remaining charges
[9] The seven remaining convictions comprise two convictions under s 29(a) of the AWA (ill-treatment of animals) and five convictions under ss 10 and 12 of the AWA (neglect of animals). The maximum penalty for each offence is 12 months imprisonment and/or a fine of up to $50,000.
[10] There is no dispute as to the factual findings the Judge made regarding the condition of the six horses that are the subject of the remaining convictions:
(a)AR1 — this horse had overgrown hooves with multiple cracks and splits in the hooves. Thrush and white line disease were also present, and this added to the horse’s discomfort.
(b)JP1 — this horse had deeply cracked and overgrown hooves. She also had an abscess in her front near hoof as well as bruising, causing pain and distress to the horse. In addition, the horse had a sharp overgrowth of teeth that had caused deep lacerations to her cheek.
(c)HP3 — this horse had extremely long overgrown hooves indicating that they had not been attended to for several months.
(d)GR5 — this horse had a sharp overgrowth of teeth causing painful mouth lacerations and ulcers.
(e)BR2 — this horse had overgrown hooves and loose shoes, indicating a lack of farrier attention and basic hoof husbandry.
(f)IP4 — this horse had a sharp overgrowth of teeth causing a painful abrasion in the mouth and an additional cheek tooth. Mr Evans had failed to ensure that annual checks were carried out to detect dental conditions that might cause the horse pain.
The arguments
SPCA
[11] For the SPCA, Mr Belcher accepts that the remaining charges do not involve allegations that Mr Evans inflicted physical harm on the six horses that are the subject of the remaining charges. However, he points out that the six horses suffered because of Mr Evans’ neglect and ill-treatment. After being uplifted from his property they required invasive and repeated corrective treatment by experts over a significant period of time. The horses were also vulnerable because they were dependent entirely on Mr Evans for their care.
[12] Mr Belcher points out that Mr Evans persistently failed to engage with the SPCA’s inspectors when they offered to provide him with assistance. He submits there were elements of contempt in the way Mr Evans failed to address the issues the SPCA raised with him. He refused to accept that his care and treatment of the horses was inadequate, and demonstrated no insight into, or remorse about, the offending and its effects on the horses.
[13] Mr Belcher submits that a starting point of 120 hours community work is appropriate and that the order for costs should remain largely intact. He contends that the period of disqualification should be reduced to two years rather than seven as ordered by the Judge.
Mr Evans
[14] On Mr Evans’ behalf Mr Simperingham accepts that the offending had several aggravating features. These included the fact that it occurred over a reasonably lengthy period of time and caused physical harm and suffering to the horses in question. He also accepts that Mr Evans was solely responsible for caring for the horses during this period and that he ignored the concerns put to him by SPCA inspectors on several occasions.
[15] Mr Simperingham points out that the 30 charges on which Mr Evans was originally convicted related to 13 horses in his care rather than six as is now the case.
Mr Simperingham also relies on the fact that the offending does not involve allegations of physical abuse or cruelty. Rather, he says it involves neglecting to care properly for the six horses to which the remaining charges relate. Mr Simperingham therefore submits that the remaining charges are the least serious of those on which Mr Evans was originally convicted.
[16] These factors prompt Mr Simperingham to contend that a sentence of no greater than 40 to 45 hours community work is justified. Mr Evans has already served
42.5 hours of the original sentence.
[17]Mr Simperingham also submits that the costs award should be reduced to
$2,000. He says this reflects the fact that the bulk of the time at trial was occupied by evidence relating to the 23 charges on which convictions have now been set aside.
[18] Finally, Mr Simperingham submits that the period of disqualification should be reduced to 12 months.
Analysis
[19] The Judge assessed the gravity of the offending as being at the medium level for sentencing purposes.7 However, I accept it can now be categorised as medium to low in terms of culpability. Although it contains the aggravating features both counsel have identified, it involved neglect rather than deliberate physical abuse or cruelty. Further, although the horses uplifted from Mr Evans’ property needed treatment, none had to be euthanised.
[20] The Judge heard the evidence over an extended period and would have been in a much better position than me to compare the relative seriousness of the seven charges for which convictions now stand. However, I note that the greatest concern of the SPCA inspectors from the outset related to the level of nutrition the horses were receiving and this is not reflected in any of the charges for which convictions remain intact. Some of the charges for which convictions have been set aside also involved allegations of physical violence, albeit at a lower level. That is not now the case.
7 At [4].
[21] I have concluded that the starting point of 180 hours community work should be reduced to 80 hours. This is a reduction of approximately 55 per cent. In my view this is an appropriate reduction to reflect Mr Evans’ overall culpability on the seven remaining charges. It takes into account the fact that the offending occurred over a reasonably lengthy time and that it resulted in significant harm to the six horses involved. A starting point at the level suggested by Mr Simperingham may have been appropriate if Mr Evans had accepted responsibility for his offending and displayed insight into it. However, that is not the case.
[22] It is still necessary to apply discounts totalling ten per cent to reflect the mitigating factors personal to Mr Evans that the Judge identified. This produces an end sentence of 72 hours community work.
[23] It is not possible for me to identify what proportion of the SPCA’s witness and legal costs applied to the seven remaining charges. I therefore consider the order requiring Mr Evans to contribute to the SPCA’s costs should be reduced by approximately the same proportion as the sentence of community work. It will therefore be reduced to the sum of $7,000.
[24] An order for disqualification remains necessary to ensure horses are protected from further offending by Mr Evans in the future. I agree with the SPCA, however, that the period of disqualification should run from the date on which Mr Evans was sentenced rather than the date on which the horses were uplifted from his property. Further, one years’ disqualification as sought by Mr Simperingham would not be sufficient to reflect the fact that Mr Evans failed to recognise the fact that his horses were not being properly cared for. The period of disqualification will accordingly be reduced to two years but will run from 24 August 2023.
Result
[25] The sentences and other orders imposed on the seven charges for which convictions remain in place are set aside.
[26] In their place I impose concurrent sentences of 72 hours community work on each charge. I make an order that Mr Evans is to contribute to the costs of the
prosecution in the sum of $7,000. I also make an order under s 169 of the AWA disqualifying Mr Evans from owning, exercising authority over or being the person in charge of horses for a period of two years from 24 August 2023.
Lang J
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