Godsiff v R HC Blenheim CRI 2011-406-18

[2011] NZHC 1693

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2011-406-18

JASON TREVOR GODSIFF

Appellant

v

THE CROWN

Respondent

Hearing:         1 November 2011 (Heard at Wellington)

Counsel:         G Sawyer for the Appellant

J Ongley for the Respondent

Judgment:      22 November 2011

JUDGMENT OF MALLON J

Introduction

[1] Mr Godsiff appeals against his sentence of two years’ imprisonment on his conviction for wilful ill-treatment of animals (s 28(1)(b) and (3)(a) of the Animal Welfare Act 1999). The appeal is on the grounds that the sentence is manifestly excessive and that the District Court failed to consider properly whether a sentence

of home detention was appropriate.

GODSIFF v R HC BLE CRI 2011-406-18 [22 November 2011]

Circumstances of the offending

[2]      The conviction relates to the killing of 23 seals, eight of which were pups and some were just days old.[1]    The seals were part of a colony at Ohau Point, north of Kaikoura which began to establish itself in that area in about 1991. The seals in that area are much admired and are a significant tourism draw card in the area, bringing considerable benefits to the community.  The local runanga and iwi acknowledge the seals as toanga (treasured) species which have played an important part in their

history.

[1] Mr Godsiff was charged with and sentenced on the basis of these numbers although the summary of facts and victim impact statement from the Department of Conservation referred to 25 seals (two pups being found dead two days later).

[3]      There  is  no  suggestion  that  the  seals  had  caused  any  disturbance  or interference to Mr Godsiff and his associate.  Mr Godsiff and his associate (who was Mr Godsiff’s employer for a period), had spent the week of 22 November 2010 working at a salmon farm in North Canterbury.  On Friday 26 November 2010 they were on their way home to Blenheim.  In the course of the drive home they discussed killing the seals.   They discussed that the seals were pests which depleted fishing stocks, a view which they thought was held by many others who fish or hunt.  Upon arrival at Ohau Point, they took galvanised pipes out of their work vehicle.  They used the pipes to club the seals to death, apparently striking the seals’ heads quickly two to three times.  They used work head lamps, also obtained from their vehicle, to help them see as they went about killing the seals.

[4]      The  dead  seals  were  found  by  Department  of  Conservation  staff  and researchers a few days later.   There followed widespread community shock and condemnation.  The media attention led to Mr Godsiff speaking to his friends about the incident. Through talking amongst the community his name was passed on to the police.    On  24  June  2011  he  was  interviewed  by the  police.    He  immediately acknowledged his involvement.   He also informed the police of his associate’s involvement.   That same day the police interviewed Mr Godsiff’s associate who initially  denied  his  involvement.     Counsel  advise  that  upon  being  told  that

Mr Godsiff had given full details of what they had done, his associate was effectively

forced to concede his involvement (although I am also told that he has entered a not guilty plea to the charge brought against him).

Circumstances of the offender

[5]      Mr Godsiff has no previous convictions of any kind.   At the time of his offending he was 19 years old.   He is now 20.   Before his imprisonment he was serving  a  building  apprenticeship  with  another  builder.     The  builder  regards Mr Godsiff as a hard worker, with a great attitude to work, punctual, polite and honest, and well on his way to being a fine tradesman.   Mr Godsiff’s family was described  by the  District  Court  Judge  as  being  hard  working  and  law  abiding. Although he has their support, he has been made well aware by them and by his employer and social contacts of the embarrassment and distress he has caused them.

[6]      Because of the inexplicable nature of the offending, Mr Godsiff’s counsel arranged  for  Mr  Godsiff  to  be  interviewed  about  the  offending  by a  registered clinical psychologist.  The psychologist reported to the Court that the offending had occurred on the basis of Mr Godsiff having developed a belief that seals are pests, to be dispatched in common with the dispatch of pests on farms.  It was noted that on Mr Godsiff’s parents’ farm he had spent considerable time shooting pests (rabbits, possums and feral goats) and at the time saw seals in the same light.  He reported that Mr Godsiff was aware that the seals were protected but did not understand the legal significance of that.  The psychologist’s view was that the offending had been carried out with relatively little prior planning and with no apparent motive to enjoy the violence.   Rather it was the result of “ignorance, lack of thoughtfulness and impulsive actions”.

[7]      The psychologist described Mr Godsiff as presenting as generally remorseful about the effects of his actions on others but as having more limited understanding or remorse about the effect of his actions on the protected species.  He was described as being fearful of the legal consequences of his actions but prepared to take responsibility for them.  He was not viewed as having any on-going psychological needs.

[8]      The pre-sentence report writer described Mr Godsiff’s risk of re-offending as low.

District Court sentence

[9]      The District Court Judge considered the aggravating factors of the offending to be that it was pre-meditated, Mr Godsiff and his associate were armed with make- shift weapons and used head lamps to see, the seals were vulnerable, the seals were found with crushed skulls and open wounds and had been callously bludgeoned to death, Mr Godsiff was a full and willing participant, and the scale of the offending was serious because of the sheer number of seals killed.  The Judge considered that the starting point for the offending should be three years’ imprisonment.

[10]     From this starting point, the Judge gave a 25 per cent discount (9 months) for Mr Godsiff’s guilty plea.  He rejected a submission from Mr Godsiff ’s counsel that there should be any further discount for Mr Godsiff’s co-operation with the police. He deducted a further three months for Mr Godsiff’s age and good character.  That meant an end sentence of two years’ imprisonment.

[11]     The Judge rejected community detention in combination with other penalties as inadequate.   He noted that home detention was not recommended by the pre- sentence  report  writer  because  Mr  Godsiff ’s  job  involved  travelling  to  various places.  The Judge’s view was that home detention was not appropriate because it “does not adequately reflect the harm done and the seriousness of it and...nothing short of imprisonment is warranted for the deliberate ill-treatment on this scale.”

Manifestly excessive

Submissions

[12]     Counsel for Mr Godsiff submits that a sentence of two years’ imprisonment

was manifestly excessive because:

(a)      The Judge over weighted the scale of the offending (ie the number of seals) and failed to have regard to the absence of sadistic features or extended cruelty (which has been present in some of the comparative cases); and

(b)The Judge failed to give sufficient weight to the mitigating factors (Mr Godsiff ’s age, his good character, the influence he was likely to be under from his employer, and his remorse and co-operation).

[13]    Counsel for the respondent submits that the aggravating features of the offending, including the scale of the offending, placed this at the middle to upper range of seriousness and as such the three year starting point was not manifestly excessive.   She submits that the Judge’s allowance for mitigating factors was appropriate.  She submits that Mr Godsiff did not claim to be under the influence of his employer, that he had not shown genuine remorse, and his co-operation was limited and was adequately accounted for in the discount that was given for the guilty plea.

Starting point

[14]     Although  the  offending  was  shocking  (causing  unnecessary  pain  and suffering and death to creatures who had done nothing to Mr Godsiff), I accept that there was no element of sadistic violence or prolonged cruelty in this case.  When that element has been present it has resulted in a starting point at around the middle

of the maximum available imprisonment term, as it then was, in one case[2] and at one

third the then maximum in another.[3]    That factor, where it is present, is seriously aggravating in a charge of his kind.[4]

[2] Hurring v Society for the Prevention of Cruelty to Animals HC Dunedin CRI-2009-412-19,

8 September 2009 where a dog was strangled with a chain, then hands and a foot, had petrol poured down its throat and was hit over the head with a spade (admittedly at the request of the owner who had decided that the dog needed to be put down), and a starting point of 18 months’ imprisonment was not viewed as manifestly excessive on appeal to the High Court.

[3] Karena v Police HC Hamilton CRI-2005-419-118, 13 October 2005 where three cats were set alight and left to burn to death inside their cage, where it appeared that the District Court Judge’s starting point was 12 months’ imprisonment and this was not viewed as manifestly excessive on appeal to the High Court.

[4] Section 2 of the Animal Welfare Act 1999 defines “ill-treat” to mean causing an animal to suffer “pain and distress, that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary.”

[15]     In this case the Judge took a starting point at more than half the maximum term of imprisonment.[5]    I have not been referred to any case which has adopted a starting point as high as this.  However there were a number of aggravating features that made this serious for offending of this kind.  In particular:

[5] The maximum penalty was increased to five years’ imprisonment in 2010 and this maximum applied to Mr Godsiff.

(a)      The number of seals killed is aggravating.   By way of comparison, there is a District Court case which involved 32 birds who were killed by being effectively torn to pieces.   In that case the Judge accepted that the ill-treatment had not involved any extended cruelty, but balanced this against the scale of the destruction to reach a starting

point of half the then maximum term of imprisonment.[6]

[6] R v Fleming DC Timaru CRI-2009-009-14552, 28 October 2009 where the Judge took a starting point of 15 months’ imprisonment; part of the sentence imposed (not relating to the ill-treatment conviction) was appealed and considered by Fogarty J at HC Timaru CRI-2009-476-25,

16 December 2009.

(b)The  clubbing  of  the  seals  occurred  when  the  female  seals  were nurturing their newborn.   The Department  of Conservation  victim impact statement says that the female seals would have been very protective of their pups at the time they were clubbed to death.  Of the

23 seals that were killed, thirteen were adult females and eight were pups.

(c)       Regardless of Mr Godsiff’s views about seals, or others that may view

them  as  pests,  these  seals  had  done  nothing  at  all  to  provoke

Mr Godsiff or his associate, they were going about their activities in

their natural environment where they provided a source of great pleasure to many[7]  and they were defenceless to Mr Godsiff and his associate’s armed onslaught.

[7] The Department of Conservation advises that the site is visited by up to 11,800 people per month between May to September when up to 200 seal pups from the Ohau Point colony gather at the waterfall and along the stream to play and practice socialisation skills

[16]     These factors persuade me that the starting point adopted by the District Court Judge was an appropriately stern response to the offending and not outside the available range.

Mitigating factors

[17]     Mr Godsiff admitted his actions to the police when first questioned by them and entered his guilty plea at the first available opportunity.  Because of this it was appropriate to discount the sentence by 25 per cent once all other mitigating factors had been allowed for.  That was the discount the Judge applied.  However the Judge took this discount off the starting point before allowing for other mitigating factors, and in so doing gave a greater discount than would be the case had it been done in

the  correct  order.[8]      I  consider  that  the  25  per  cent  discount  adequately  covers

Mr Godsiff’s co-operation with the police.  An additional discount may have been justified had Mr Godsiff indicated a willingness to give evidence for the Crown at the trial of his associate.  I am told that he is not willing to do so.

[8] Hessell v R (2010) NZSC 135, [2011] NZLR 607 at [73]; R v Hessell [2009] NZCA 450, [2010] 2

NZLR 298 at [21].

[18]     I consider that the Judge was correct to regard Mr Godsiff as a full and willing participant even though he was with his employer who was 17 years his senior.  Mr Godsiff told the psychologist that he was not influenced by him although the pre-sentence report writer thought that Mr Godsiff looked up to him.  Any subtle influence because of the age disparity and through the employer/employee relationship is adequately accounted for via the discount that ought to be applied for Mr Godsiff’s youth.

[19]     The Judge allowed a three month (ten per cent) discount for youth and good character.  I accept the submission for Mr Godsiff that this discount for mitigating

factors other than the guilty plea was too light and resulted in an end sentence that was manifestly excessive.  I consider that a discount of around 25 per cent for youth, good character and remorse could have been allowed.[9]

[9] By way of comparison I refer to Hurring v Society for the Prevention of Cruelty to Animals HC Dunedin CRI-2009-412-19, 8 September 2009; Davis v Police HC Hamilton CRI-2007-419-55, 5

September 2009; Grimshaw-Jones v R [2010] NZCA 490; and Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868.

[20]     I note the psychologist’s view that the offending was the result of ignorance, thoughtlessness and impulsiveness.   Mr Godsiff’s relative youth helps to explain that.  The Judge rejected the psychologist’s view about this, stating that Mr Godsiff had  the  time  to  think  about  his  actions.    I  accept  that  the  offending  was  not completely impulsive in that it had been discussed in the car on the journey home. However, it cannot be said that there was much planning involved either.  Rather it appears that, in the course of a car ride, the topic came up and the pair decided to act in what they presumably thought was a good idea at the time.  From Mr Godsiff’s perspective anyway, the offending seems more due to youthful ignorance, thoughtlessness and impulsiveness by a person of otherwise good character and prospects than calculated criminal activity by a hardened offender.

[21]     I also consider that Mr Godsiff ’s remorse needs to be taken into account. The Judge rejected that genuine remorse had been shown because Mr Godsiff told the probation officer that his view was that the seals were pests and that he and his associate thought that there would be plenty more left.  As against that, because of the response to the offending, Mr Godsiff is reported to be well aware that those views are not shared by many others including his family and friends.   The psychologist reported that Mr Godsiff’s “feelings of remorse with respect to the effects of his actions on others presented as genuine”.  Having held a strong view that seals were such pests that it would be fine to kill a number of them, the direction of Mr Godsiff’s remorse (that is, towards the embarrassment he has caused to his family and friends rather than to the seals) is perhaps not surprising.  I note that Mr Godsiff offered to make amends by carrying out community work with the Department of Conservation. Although the Judge saw this differently, I consider that

this offer was an indication of an acceptance of responsibility and was intended as a

constructive way through which Mr Godsiff could have made some amends and at the same time learned more about conservation values.

End sentence

[22]     Taking the District Court Judge’s three year starting point, a 25 per cent discount  for  youth,  good  character  and  remorse  brings  the  sentence  down  to

27 months’ imprisonment. Applying a 25 per cent discount for the guilty plea brings

the sentence down to around 20 months’ imprisonment.

Home Detention

[23]     The  reason  the  pre-sentence  report  writer  recommended  against  home detention was not a relevant reason.  The question of whether Mr Godsiff can work when on such a sentence is a question for the probation officer having regard to the practicalities.    It  is  not,  however,  relevant  to  whether  home  detention  is  the appropriate sentencing response.

[24]     The Judge rejected a sentence of home detention because of the seriousness of the offending.  While that was a relevant consideration, there were others.  As the Court of Appeal has said, whether a short-term sentence of imprisonment should be commuted engages all the principles and purposes of sentencing as set out in ss 7

and 8 of the Sentencing Act.[10]   In failing to refer to other considerations it appears

[10] Doolan v R [2011] NZCA 542 at [37] referring to R v Vhavha [2009] NZCA 588 per William Young P (dissenting judgment) at [29] and Osman v R [2010] NZCA 199 at [20].

that the Judge has rejected home detention solely on the basis that it would “not give

the  right  message”  in  terms  of  accountability,  denunciation  and  deterrence.[11]

However, if that was the Judge’s approach there is a need to be “cautious about doing so.”[12]

[11] Vhavha per William Young P at [36].

[12] Vhavha per William Young P at [36].

[25]     Here the “giving the right message” factors are all relevant at the first stage

of the sentencing process when determining that a starting point of three years’

imprisonment was appropriate.  That starting point shows that this kind of offending

is completely unacceptable and is to be denounced.  Such offending will lead to not insignificant imprisonment terms unless there are other compelling factors present which outweigh the factors which support imprisonment.   It is not clear, however, whether   the   Judge   considered   that   accountability,   denunciation   and   general deterrence  (which  were  relevant  in  setting  the  starting  point)  remained  more important than other sentencing principles and purposes at the second stage of the sentencing process (ie whether to commute the sentence to home detention) and if so why he had that view.  It therefore cannot be assumed that the appropriate caution has been exercised.

[26]     Particularly relevant here were Mr Godsiff ’s relative youth and rehabilitation prospects.   He is in all respects a suitable candidate for home detention.   He is a hard-working young man who will contribute better to society the sooner he is back working as a builder.  It seems that he has learnt from the reaction to his offending that his behaviour was unacceptable.  He is viewed as having a low risk of offending. Imprisonment is not therefore necessary in order to achieve specific deterrence and as such it is not the least restrictive sentence that is appropriate in the circumstances. Taking into account these principles and purposes of sentencing, as well as the seriousness of the offending, I consider that the sentence of imprisonment should have been commuted to home detention.

[27]     I therefore consider that the Judge erred in not imposing a sentence of home detention.  Mr Godsiff has already served over two months in prison.  Taking this into  account  I  consider  that  the  two  year  sentence  of  imprisonment  should  be quashed and replaced with a sentence of eight months’ home detention.  I understand the home detention address will be the address referred to in the pre-sentence report. The report does not set out any recommended conditions.   Counsel are asked to submit an agreed statement of the proposed conditions as soon as possible.

Result

[28]     The  appeal  is  allowed.    The  sentence  imposed  by  the  District  Court  is quashed and is replaced with a sentence of eight months’ home detention to take

effect as soon as I have reviewed the proposed conditions and arrangements can be made to release Mr Godsiff from prison to serve the home detention sentence.

Mallon J