Power v Auckland Society for the Prevention of Cruelty to Animals

[2016] NZHC 249

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-0035 [2016] NZHC 249

BETWEEN

ANNE POWER

Applicant

AND

AUCKLAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS

Respondent

Hearing:	22 February 2016
Appearances:	D R F Gardiner for Applicant J Edwards and J P Rea for Respondent
Judgment:	23 February 2016

JUDGMENT OF M PETERS J

This judgment was delivered by Justice M Peters on 23 February 2016 at 5 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Russell McVeagh, Auckland

Counsel:            D R F Gardiner, Auckland

POWER v AUCKLAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS [2016] NZHC

249 [23 February 2016]

[1]      On 4 February 2016, the Applicant was sentenced by Judge Dawson in the

District Court at Auckland on one charge of ill-treatment of an animal (a horse).1

[2]      The following day the Applicant filed an appeal against sentence and an application for a suspension of sentence pending determination of the appeal.2   The appeal has been set down for hearing on 14 March 2016.  The Respondent (“SPCA”) opposes the application for suspension and I heard the matter yesterday.3

[3]      Woolford J granted a similar application, also opposed by the SPCA, in June

2015.4     On that occasion, the Applicant was seeking a suspension pending determination of her appeal against conviction and sentence on a charge of reckless ill-treatment of an animal causing its death.5     Judge Dawson had convicted the Applicant of that offence following a defended hearing on 30 March 2015.

[4]      Andrews J subsequently allowed the Applicant’s appeal against conviction, substituted a conviction on the charge of ill-treatment to which I have referred and remitted the matter back to the District Court for re-sentence, being the sentence now subject to appeal.6

[5]      There is no dispute as to the principles to be applied on the application for suspension, as to which see Woolford J’s decision of June 2015.   The issue is whether  the  application  for  suspension  should  be  granted,  having  regard  to  all relevant matters.

Sentence

[6]      In sentencing the Appellant on 4 February 2016, the Judge:7

1 Animal Welfare Act 1999, s 29(a).

2      Criminal Procedure Act 2011, s 343.

3      Application for Suspension of Sentence Pending Decision on Appeal Against Sentence dated 5

February 2016; and Notice of Opposition for Stay of Execution of Judgment dated 15 February

2016.

4      Power v Auckland Society for the Prevention of Cruelty to Animals [2015] NZHC 1347.

5 Animal Welfare Act 1999, s 28A(1)(b).

6      Power v Auckland Society for the Prevention of Cruelty to Animals [2015] NZHC 2159.

7      Auckland SPCA v Power [2016] NZDC 1664 at [11] – [13].

(a)      made  an  order  disqualifying  the  Applicant  for  eight  years  from owning or exercising authority or being in charge of any animals other than 4 horses, 11 cattle, 18 sheep, 4 llamas, 4 dogs, up to 40 birds, and

4 cats;8 and

(b)directed that any remaining animals be forfeited to the Respondent (“SPCA”) immediately.9     The Judge also directed the Applicant to nominate those animals she wished to keep, to the extent she had more than the permitted number, failing which the SPCA was empowered to select those it would take.  The Judge also directed the SPCA to sell or dispose of those forfeited and made orders as to the

application of the proceeds of sale.

[7]      On 9 February 2016, the SPCA seized 39 dogs from the Applicant’s property. There is some dispute as to whether the Applicant had an opportunity to nominate those she wished to retain but that is immaterial to the determination of the application before me.

Discussion

[8]      I am satisfied that I should suspend the sentence until 14 March 2016.  My reasons are as follows.

[9]       First, as I have said, the appeal against sentence is to be heard in three weeks.

[10] Secondly, I accept that the SPCA’s priority is the welfare of animals and it considers there are reasons to believe the welfare of those animals is or may be in jeopardy. Counsel also referred me to the purposes of the Animal Welfare Act 1999 which, inter alia, include the prevention of ill-treatment of animals.

[11]   Counsel for the SPCA referred me to a signed witness statement of a veterinarian, Dr Shalsee Vigeant, dated 16 February 2016.10     Dr Vigeant recently

8 Animal Welfare Act 1999, s 169.

9      Section 172.

10     Supplementary Affidavit of K R Plowright sworn 18 February 2016 at KRP2-1.

examined the 39 dogs referred to above.  In her statement Dr Vigeant says she has yet to make a full assessment but her examinations to date indicate that only two of the animals do not have physical signs of neglect or ill-treatment.

[12]     In  addition,  aside  from  the  conviction  to  which  I  referred  above,  the Applicant has other relevant convictions.  I accept the submission of counsel for the Applicant that those convictions are largely historic.

[13]     Counsel for the SPCA also noted that the very basis of the conviction entered by Andrews J was her determination that the evidence at first instance was sufficient to establish:11

[38]     … malnutrition resulting from periodontal disease was a substantial and operative cause of Pip’s death.  That conclusion does not preclude old age also being a contributing cause of death.  However, I am satisfied that the evidence before the Judge was a sufficient basis for finding that ill- treatment was a substantial and operative cause of death.

[14]     Thirdly, the SPCA seeks to retrieve any animals to be forfeited, but it does not propose to sell or dispose of them pending determination of the appeal against sentence.  Accordingly, no permanent loss would be caused to the Applicant prior to appeal.

[15]     Counsel for the Applicant disputes that there is any imminent risk to the welfare of any animals in the charge of the Applicant.   Counsel put before me a report  from  Dr  David  Cairns,  a  veterinarian  in  practice  in  Whangarei,  dated

17 February  2016.12      This  report  concerns  animals  situated  at  one  of  the  two

properties  owned  by  the  Applicant.    In  so  far  as  it  concerned  those  animals

Dr Cairns’ opinion was to the effect that there is no immediate need for intervention.

[16]     I also take into account that, even on the sentence imposed by the Judge, the

Applicant is entitled to retain a significant number of animals – this is not a case of an outright ban but of a limitation.  Also, as counsel for the Applicant submits, the

11     Power v Auckland Society for the Prevention of Cruelty to Animals, above n 6, at [38].

12     Second Memorandum for Applicant in  Support of Application for  Suspension of Sentence

Pending Decision on Appeal Against Sentence dated 17 February 2016 at “C”.

SPCA’s relocation of the dogs will inevitably have reduced the demands on the

Applicant.

[17]     This matter is finely balanced but for me the proximity of the hearing of the appeal is a compelling factor.   Having taken all matters into account, I make the order sought at [6] of the application for suspension dated 5 February 2016, subject to the SPCA retaining the 39 dogs to which I have referred.  This order is to subsist until 14 March 2016.

[18]     I  am  grateful  to  both  counsel  for  their  helpful  and  well  considered submissions.  I make no order as to costs.

..................................................................

M Peters J