Genet v Royal Society for the Prevention of Cruelty to Animals
[2021] NZCA 277
•29 June 2021 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA598/2020 [2021] NZCA 277 |
| BETWEEN | MARTINE GENET |
| AND | THE ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS |
| Court: | Miller, Venning and Peters JJ |
Counsel: | Appellant in Person |
Judgment: | 29 June 2021 at 2.00 pm |
JUDGMENT OF THE COURT
The application for an extension of time to appeal is declined.
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REASONS OF THE COURT
(Given by Venning J)
Following a trial by jury Ms Genet was found guilty of two charges of contravening an order disqualifying her from owning animals[1] and 10 charges of failing to ensure the health and behavioural needs of an animal.[2]
[1]Animal Welfare Act 1999, s 169B.
[2]Section 12(a).
On 8 December 2016 Ms Genet was sentenced in the District Court at Manukau to two years’ intensive supervision.[3] Judge Earwaker also disqualified her under s 169 of the Animal Welfare Act 1999 (the Act) for a period of 10 years from being the owner of or from exercising authority over animals generally. The Judge stated the disqualification was to be concurrent with a (then) current order of disqualification which had been imposed on 1 April 2008.
[3]SPCA Waikato v Genet [2016] NZDC 25065.
Ms Genet now seeks to appeal against both her conviction and sentence. The notice of appeal was filed on 16 October 2020, almost four years after her sentencing. She seeks an extension of time to bring her appeal.[4]
[4]Criminal Procedure Act 2011, s 231(3).
Ms Genet has filed an affidavit to support her application for an extension of time. In it she offers the following reasons for failing to bring the appeal before now:
(a)she had filed the appeal on her sentencing date, 8 December 2016, at Manukau and it was ignored;
(b)she and her lawyer at the time chased the Court up numerous times over one and a half years to no avail;
(c)in October 2018 “we” (presumably Ms Genet and her lawyer) chased the Court up. It was ignored; and
(d)another lawyer wasted six months again trying to get an appeal done.
Ms Genet’s various explanations for her failure to bring the appeal before now are neither compelling nor convincing. Any valid appeal document would have to be filed with this Court rather than the District Court at Manukau. There is no record of any appeal being filed with this Court.
Further, Ms Genet’s assertions that she and a lawyer followed the matter up are not supported by any evidence from the lawyers that she says were involved or even by any documentary record of communications to the Court by her or her lawyer.
Consideration of the merits of the proposed appeal do not support the application for an extension either. Ms Genet says that the SPCA kept changing the charges and animals each day to different ones and her lawyer kept telling her to plead guilty. The record discloses that a number of charges were withdrawn after the jury was empanelled. The trial ran for several days. The Judge’s summing-up was comprehensive. Ms Genet also says she told her lawyer to play a video she took on the day the police took her from the library and seized the cats. She suggests that the video she took shows the cats that were taken from her car were different from the ones that she was charged with failing to care for.
To the extent it could have been relevant, any video that Ms Genet had of the incident when she was arrested would have been available to her at the time of her trial. It is not fresh evidence. Ms Genet faces a further difficulty. If Ms Genet wished to criticise her counsel’s conduct, she would need to provide a waiver of privilege to enable her trial lawyer to respond to her complaints. She has not done so despite the fact the appeal document was lodged with the assistance of counsel.
Finally, Ms Genet’s sentence of supervision has expired. The only remaining sentence is that of disqualification, which we deal with below.
Given the failure to provide an adequate explanation for the delay and the apparent lack of merit in the appeal the interests of justice do not support an extension of time being granted for Ms Genet to appeal.
The remaining issue is the period of disqualification. Ms Genet seems to consider that the period of disqualification has expired.
The sentence imposed by the Judge was 10 years’ disqualification which was to be concurrent with the existing sentence of disqualification. Ms Genet takes the view that the disqualification expired with the first sentence of disqualification on 31 March 2018.
The issue is how the two separate sentences of disqualification under the Act are to interact as concurrent sentences.
Part 8 of the Act provides for offences and penalties. Section 169 of the Act provides for the power to make a disqualification order. Section 169A provides for the power to review, remove or vary such an order, and s 169B provides for the offence of breach of a disqualification order and resultant penalties.
The Act provides no indication as to how concurrent orders for disqualification are to interact. That can be contrasted with the provisions of the Sentencing Act 2002 which specifically address the circumstances where a person is sentenced for more than one offence and how sentences for more than one offence, and concurrent sentences in particular, should interact. There is also an interrelationship with the Parole Act 2002. None of those statutory provisions are applicable to a disqualification under the Act.
The imposition of a term of disqualification under s 169 of the Act is discretionary. The nature of the discretion to be exercised in fixing a period of disqualification was considered by this Court in R v Collins:[5]
… a sentencing Judge has a wide discretion to impose a disqualification within the total sentence, especially where he or she is satisfied that the term of disqualification is of a length necessary to meet the statutory principle of deterrence.
[5]R v Collins [2008] NZCA 235 at [98].
In the absence of clear statutory direction, the ordinary meaning of concurrent should apply to the sentences of disqualification to ensure they meet the purpose of the Act which is the proper welfare of animals.[6]
[6]Animal Welfare Act, s 9.
The relevant ordinary meaning is:[7]
Running together … going on side by side, as proceedings; occurring together …
The two periods of disqualification can run together and be served concurrently in the sense they are served at the same time for the period of any overlap in their effect. That overlap expired when the first period of disqualification ended. Thereafter the second period of disqualification ran on and remains operative until 7 December 2026.
[7]Oxford English Dictionary, (online ed) noting concurrent lease is a lease made before another has expired and so existing for part of the time side by side with the other.
That result best meets the purpose of the Act.
To the extent Ms Genet is able to rehabilitate herself she may apply under s 169A for the removal or variation of the disqualification as two years has passed from the date the second disqualification order was imposed.
Result
For the above reasons the application for leave to extend the time to appeal is declined.
Solicitors:
BVA The Practice, Palmerston North for Respondent
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