Karekare v Police HC Hamilton CRI 2011-419-000067
[2011] NZHC 2071
•3 November 2011
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2011-419-000067
SHANE KAREKARE
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 22 September 2011
Appearances: S K Green for Appellant
T V Clark for Respondent
Judgment: 3 November 2011
JUDGMENT OF KEANE J
This judgment was delivered by on 3 November 2011 at 10am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
Solicitors:
Crown Solicitor, Hamilton
Counsel:
S K Green, Hamilton
SHANE KAREKARE V NEW ZEALAND POLICE HC HAM CRI 2011-419-000067 3 November 2011
[1] On 5 July 2011 in the District Court, Te Awamutu, Judge Ruth sentenced
Shane Karekare to 18 months imprisonment for wilfully ill treating a kitten on 5
January 2011, by kicking it and throwing it and causing it to die. He required Mr Karekare to be assessed on release and, if need be, treated and counselled for issues with alcohol, drugs and anger.
[2] The Judge characterised Mr Karekare's offence as 'an appalling act of cruelty', more especially because he had ended the kitten's life in front of his five year old granddaughter whom, the Judge said, would 'no doubt ... have nightmares (for) the rest of her life'. The Judge more than once emphasised how cruel he considered Mr Karakare's offence to have been. 'I can hardly think', he said, 'of a more serious and cruel act'.
[3] The Judge contrasted two duties imposed by the Sentencing Act 2002, the duty to impose a sentence at or near the maximum prescribed in the most serious cases against the duty to impose a sentence with the least restrictive outcome. Despite that latter duty, he said, he had come to the clear view that Mr Karekare had to be sentenced to imprisonment.
[4] The Judge noted that the penalty for the offence had recently been increased from three to five years; an indication, he said, that 'Parliament now regards cruelty to animals of this nature to require a more stern response from the courts than was previously the case'. All but one of the sentencing decisions to which he had been referred, he said, had been given before the increase came into effect.
[5] In sentencing Mr Karekare to imprisonment the Judge took a starting point of
18 months. He increased that by six months because of Mr Karekare's record of violent offending, which he regarded as 'appalling'. He discounted it to credit Mr Karekare for his early plea. The one cancelling out the other, the Judge's starting point became his end point. He imposed the sentence now under appeal.
[6] Mr Karekare appeals that sentence as manifestly excessive. He does not contend the Judge was wrong to imprison him. He does contend that the length of
the sentence imposed is altogether disproportionate to his offence. His sole concern, he contends, was to end the kitten's life. Though he accepted by his plea that this involved ill treatment, he did not set out, he contends, to be gratuitously cruel.
Sentencing materials
[7] The summary of facts on the basis of which the Judge imposed sentence was very succinct. It said this:
CIRCUMSTANCES
At about 8pm on the 5th January 2011 the defendant KAREKARE arrived at the complainant's address after drinking with the neighbours.
The defendant walked up the steps to the back door and as he opened the back door one of the complainant's 12 week old kitten walked toward him.
The defendant picked the kitten up and threw it out the back door onto the concrete path in front of the complainant and her 5 year old daughter.
The complainant screamed at the defendant to stop, he replied 'I don't care, I'll kill it.'
The defendant picked the kitten up by the neck and threw it again onto the concrete path.
The kitten stopped moving, the complainant's 5 year old daughter began crying.
The defendant kicked the kitten to the head.
He picked it up and put it into the incinerator at the rear of the premise covered it with cardboard and lit it on fire.
The defendant walked to the front of the property allowing the complainant time to remove it from the incinerator and call police.
INJURIES TO VICTIM
The kitten died as a result of the incident.
DEFENDANT'S COMMENTS
In explanation the defendant stated he didn't care.
[8] The statement continued to say that Mr Karekare had previously appeared before the Court.
[9] In her victim impact statement the kitten's owner, Mr Karekare's 21 year old daughter, said that after he killed the kitten, she had not been able to speak to him for a month. They only reconciled after family members brought them together and he apologised. But her distress was still evident. She said this:
He did not have permission to kill the kitten and there was no reason for the kitten to be killed. I can't believe that he did that, the kitten didn't do anything to him. I know he got angry with the fact that I fed the cats inside and baby used to get into their food or occasionally they would jump on the bench and steal food, but it is my house and they are my cats.
[10] Especially distressing, Mr Karekare's daughter said, was that he killed the kitten in front of the children living in the house. Her five year old was particularly upset. A month later when Mr Karekare visited the house, her five year old upbraided him and warned him not to touch her kittens.
Pre-sentence report
[11] Though this was Mr Karekare's first conviction for such an offence, his pre-sentence report said, he did have a significant history of violent offending. He showed no insight into his offending or its consequences. He justified and minimised it.
[12] Mr Karakare maintained that he only committed the offence out of concern for his granddaughter and the other children in the house. His daughter, he said, was then taking better care of her animals than she was of them. He could not understand why his granddaughter might have been distressed to see him kill the kitten. He did not display any remorse.
[13] Mr Karekare was assessed to be at high risk of re-offending. He had not responded to sentences within the community. He had a history of breaches of supervision, of conditions on release and of community work. He had alcohol misuse and anger issues that could be met locally but was was thought unlikely to respond.
[14] Mr Karakare's report recommended that he be sentenced to imprisonment and that, on release, he be assessed and then, if need be, counselled or treated for issues with alcohol and violence; the recommendation the Judge adopted in the sentence he imposed.
Submissions
[15] On this appeal Mr Karekare's counsel, Ms Green, who was not his counsel on sentence, has taken issue with the summary of facts which, she submits, both understates and overstates what happened.
[16] Just before the incident, she says, Mr Karekare had cut his daughter's lawn. He had returned the lawnmower to neighbours and had a drink with them. When he returned to his house, he found the kitten eating food from a plate on the table at which the children were eating. He was already concerned about the number of cats in the house and their state of health - some had worms and fleas. He may well have said he intended to kill the kitten. But he reacted on the instant.
[17] The Judge went too far, Ms Green submits, when he described Mr Karekare's offence as the most extreme of its kind. He also erred, she submits, when he aligned it with the only other instance of offending since the maximum penalty was increased of which he was made aware. That involved a more serious offence. There the animal was malnourished and was beaten to death. Mr Karekare, by contrast, ended the kitten's life swiftly.
[18] For the Crown Ms Clark submits that the Judge was right to regard the offence as serious. Mr Karekare deliberately killed the kitten and it is not clear how long the kitten took to die. The Judge was obliged to take account, as he did, of the increase in penalty. And he did not align this case with the only one other since the increase in penalty. He took a lesser starting point.
[19] The Judge was certainly right in one sense to say that the offence was the worst of its kind. Wilful ill treatment of an animal is the most serious offence that the Animal Welfare Act 1999 creates. It is an offence reserved to stigmatise those acts or omissions that cause severe injury or death, that are accompanied by unnecessary or unreasonable pain or distress, and that are wilful.
[20] First, the consequences suffered by animals for which the offence is reserved could not be more harmful or potentially painful or distressing. They are, as set out in s 28(1) which creates the offence, those where:
(a) the animal is permanently disabled; or
(b) the animal dies; or
(c) the pain or distress caused to the animal is so great that it is necessary to destroy the animal in order to end its suffering; or
(d) the animal is seriously injured or impaired.
[21] As equally graphic is s 28(2)(a), which defines when an animal is 'seriously injured or impaired'. As well as calling for the one or the other to require treatment by or under the supervision of a veterinarian,[1] the animal must have suffered:
[1] Animal Welfare Act 1999, s 28(2)(b).
(i) prolonged pain and suffering; or
(ii) a substantial risk of death; or
(iii) loss of a body part; or
(iv) permanent or prolonged loss of a bodily function;
[22] Secondly, those consequences must have resulted from acts or omissions that involved 'ill treatment'; acts or omissions that caused the animal:[2]
... to suffer ... pain or distress that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary:
[2] Section 2.
[23] Thirdly, the ill treatment must have been 'wilful' and that can only mean fully and consciously deliberate. Conduct with the identical consequences that is 'reckless' is a distinct offence that was introduced on 7 July 2010.[3]
[3] Animal Welfare Act 1999, s 28A.
[24] The difference between these two offences is marked by the maximum penalties they attract. A person guilty of wilful ill treatment is liable on conviction on indictment to five years imprisonment or to a fine not exceeding $100,000 or both. In the case of reckless ill treatment the maximum term on conviction on indictment is three years and the fine is $75,000.
[25] When the lesser offence was introduced on 7 July 2010, moreover, the maximum penalties for wilful ill treatment were also increased. Until then they had been three years imprisonment and a fine of $50,000. The intent of that increase, the explanatory note to the Bill introduced into the House said emphatically, was to bring about an actual increase in penalties imposed. Greater penalties were called for, it said, both to mark the seriousness of the offence and to deter potential offenders.
[26] The maximum penalties prescribed in s 28(3) assume, of course, as I have said, a conviction on indictment and Mr Karekare was convicted summarily. However, that makes no real difference. Mr Karekare was able to be charged with the offence summarily;[4] and within the summary jurisdiction the maximum term of imprisonment the Judge was able to impose was also five years.[5]
Two relevant cases
[4] Summary Proceedings Act 1957, s 6; Schedule 1.
[5] Section 7.
[27] In submissions both counsel compared and contrasted a number of sentencing decisions, all but two in the District Court, and all but one under the old maxima. Of
these I need refer to two only.
[28] The first on which the Judge relied in fixing his starting point was a decision of this Court on appeal, Hurring v Society for Prevention of Cruelty to Animals.[6]
There a dog was killed by a series of acts involving a chain, bare hands, a foot and then petrol down the dog's throat, and a spade, extending for perhaps as much as half an hour. The Judge took a starting point of 18 months imprisonment discounted to 12 months for plea.
[6] Hurring v Society for Prevention of Cruelty to Animals HC Auckland CRI 2009-412-19, 8 September 2009.
[29] On the appeal Fogarty J endorsed the starting point taken, though as he said it stood significantly higher than others until then taken. But he considered the offender had been entitled to a distinct 15% discount for the fact that he was young,
19 years, had not previously appeared and had a number of personal deficits. He reduced the sentence to 10 months.
[30] The second decision to which the Judge referred, New Zealand Police v George,[7] was the only one involving an offence after the penalty was increased. There a dog that had been previously ill treated was beaten to death with a golf club, after it had bitten the offender. The offender was also sentenced cumulatively for threatening behaviour and possession of an offensive weapon.
[7] New Zealand Police v George DC Te Kuiti CRI 2011-019-001837, 29 June 2011.
[31] Apart from the fact that the dog had been ill treated before it died, Judge Riddell held, it was all too clear that the offender had killed it deliberately. He had kept hitting it until it died and that might have taken five - ten minutes. After having regard to Hurring, and to the increase in penalty since, the Judge took a starting point for this offence of two years.
Conclusions
[32] On the uncontested narrative of facts on which Judge Ruth was entitled, indeed obliged, to sentence Mr Karekare, and even accepting his counsel's gloss on what happened, Mr Karekare set out deliberately to kill his daughter's kitten and did
so by throwing it down twice and stamping on it. His intent might have been to kill it
swiftly but the Judge was entitled to conclude that he had caused it to suffer needless pain and distress.
[33] On the facts as they were, and they were stated very succinctly, it is not possible to say how long the kitten took to die. Its death may have been as rapid as Mr Karekare says it was, or it might not have been. There is nothing to say. Nor did the Judge take any position as to that. He did not, for instance, assume that the kitten might have been alive when Mr Karekare put it in the incinerator. His focus was on what Mr Karekare actually did.
[34] The Judge may have overstated the seriousness of Mr Karekare's offence when he described it as amongst the most serious of its kind. It was not. But that did not lead him to impose a sentence at or near the maximum. To the contrary, the starting point that he adopted, measured against the maximum penalty, lay just outside the lowest quartile.
[35] Nor did the Judge align Mr Karekare's offending with that in Hurring or George; each an instance, on the face of it, of significantly more prolonged offending. Rather, the starting point he took reflected, and necessarily, the recent
2010 increase in penalty. That led him to take the same starting point as was endorsed in Hurring but a starting point six months less than that taken in George.
[36] The uplift the Judge imposed for Mr Karekare's previous offending was fairly open to him, and there can be no criticism of the adequacy of the discount he allowed for Mr Karekare's plea. The sentence he imposed, together with the conditions on release, reflects fairly also, I consider, the factors identified in Mr Karekare's pre-sentence report.
[37] For these reasons I find that in sentencing Mr Karekare to 18 months imprisonment with conditions on release, as he did, the Judge made no error of principle. The length of the sentence he imposed lay within his discretion. It was not
manifestly excessive. The appeal will be dismissed.
P.J. Keane J
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