Kondratyeva v R - [2015] NZCA 266

IN THE COURT OF APPEAL OF NEW ZEALAND

CA6/2015
[2015] NZCA 266

BETWEEN	TATYANA KONDRATYEVA Appellant
AND	THE QUEEN Respondent

Hearing:	17 June 2015
Court:	Stevens, Andrews and Gilbert JJ
Counsel:	P H H Tomlinson for Appellant T A Simmonds for Respondent
Judgment:	23 June 2015 at 11.30 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Andrews J)

Introduction

Following a Judge-alone trial in the Auckland District Court before Judge Andrée Wiltens the appellant, Ms Kondratyeva, was convicted on two charges laid under ss 12(a) and 12(b) of the Animal Welfare Act 1999, in relation to 50 cats found at a property at Glenfield Rd, Glenfield, Auckland (the property).[1] She was later sentenced to 125 hours’ community work and 12 months’ supervision, and prohibited from owning or exercising authority over cats for a period of 10 years.[2]
[1]R v Kondratyeva DC Auckland CRI-2011-044-4684, 15 December 2014 [conviction decision].
[2]R v Kondratyeva DC Auckland CRI-2011-044-4684, 19 December 2014 [sentencing decision].
Ms Kondratyeva has appealed against her conviction and sentence.

Background

Ms Kondratyeva has been involved in rescuing and caring for wild and unwanted cats, and has been a member of the Auckland SPCA Cat Coalition Group. In April 2010 she moved to a new address in Glenfield, Auckland, taking a number of cats with her. The property was owned by an elderly man, Mr Cruickshank. Ms Kondratyeva occupied a downstairs unit at the property.
The relationship between Ms Kondratyeva and Mr Cruickshank deteriorated. On 17 August 2010 he served a trespass notice on her. By this time, Ms Kondratyeva had brought, in all, 50 cats onto the property. Ms Kondratyeva then moved out of the property.
On 17 December 2010, Police were called to the property, because of an incident relating to the trespass notice. Both Ms Kondratyeva and Mr Cruickshank were there. The Police officers were confronted with what they described as a horrendous smell, and saw a number of unhealthy cats housed in filthy conditions. They called the Auckland SPCA about the cats.
Two SPCA inspectors attended at the property shortly after the Police officers’ call. They found 50 cats housed in conditions that were variously described as “filthy”, “disgusting”, “horrendous”, and (by an SPCA inspector) as “the worst he had encountered while at the SPCA”. Veterinary examination disclosed that 13 cats had no concerning health issues, a further 14 had issues that were not significant, and the remaining cats required treatment for various conditions. One cat had to be euthanised.
The cats were removed. They have since been in the charge of the SPCA, which has met the cost of their ongoing care.
Both Ms Kondratyeva and Mr Cruickshank were later charged on indictment with two offences under the Animal Welfare Act, that between 17 September 2010 and 17 December 2010:
(a)Being the owner or a person in charge of animals, namely cats, they failed to comply with the obligations imposed under s 10…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kondratyeva v R

Details

AGLC: Kondratyeva v R [2015] NZCA 266
Case: [2015] NZCA 266
Decision Date: 23 June 2015 at 11.30 am

CaseChat Overview and Summary

In the case of Kondratyeva v R, the Court of Appeal of New Zealand heard an appeal from Tatyana Kondratyeva against her conviction and sentence, imposed by the Auckland District Court. Ms Kondratyeva was convicted of two charges under the Animal Welfare Act 1999, relating to the care and treatment of 50 cats found at a property in Glenfield, Auckland. The Court of Appeal was required to determine whether the District Court's findings of fact were unreasonable or not supported by the evidence, and whether the sentence imposed was appropriate.

The Court of Appeal dismissed the appeal against conviction, finding that the District Court's determination that Ms Kondratyeva was the owner and/or in charge of the cats during the relevant period was reasonable and supported by the evidence. The Court found that Ms Kondratyeva had brought all 50 cats onto the property and there was no dispute that she was the owner and in charge of the cats prior to the Trespass Notice. The Court also found that there was evidence to support the conclusion that Ms Kondratyeva retained ownership and charge of the cats after the Trespass Notice, and that she went onto the property during the period of the charges.

The Court of Appeal also dismissed the appeal against sentence, finding that the District Court's decision to prohibit Ms Kondratyeva from owning or exercising control over any animals for 10 years was appropriate, and that there was no basis to interfere with the Judge's decision. The Court found that the Judge's decision not to allow an exception to permit Ms Kondratyeva to own two or three cats was made on the basis of submissions made to him and his own assessment of Ms Kondratyeva and the circumstances of the offending from the substantive hearing.

Final Orders: The appeals against conviction and sentence are dismissed.

Orders