Power v Auckland Society for the Prevention of Cruelty to Animals
[2015] NZHC 1347
•15 June 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000152 [2015] NZHC 1347
BETWEEN ANNE POWER
Appellant
AND
AUCKLAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS
Respondent
Hearing: 12 June 2015 Appearances:
D Gardiner for Appellant
J Edwards for RespondentJudgment:
15 June 2015
JUDGMENT OF WOOLFORD J
[On application to suspend sentence pending appeal]
This judgment was delivered by me on Monday, 15 June 2015 at 11:45 am pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors: N G Cooke, Auckland
Counsel: DRF Gardiner, Auckland
J Edwards, Russell McVeagh, Auckland
POWER v AUCKLAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS [2015] NZHC
1347 [15 June 2015]
Introduction
[1] Following a two day defended hearing in the North Shore District Court on
30 and 31 March 2015, Judge N R Dawson found Ms Power guilty of one charge of recklessly ill-treating a horse with the result that it died in a reserved decision dated
9 April 2015.
[2] On 3 June 2015, Judge Dawson sentenced Ms Power. He made an order for the forfeiture of all animals owned by Ms Power to the Society for the Prevention of Cruelty to Animals (SPCA), pursuant to s 172 of the Animal Welfare Act 1999 (the Act). He also made an order prohibiting Ms Power from owning or exercising authority in respect of any animals for 10 years, pursuant to s 169 of the Act. Further, he made orders that Ms Power pay expenses of $4,710.05 and legal costs of
$1,512 to the SPCA.
[3] Ms Power has appealed against both conviction and sentence. I have today set the appeal down for hearing on 10 August 2015 at 2:15 pm. Ms Power now seeks suspension of the sentence imposed by Judge Dawson pending the outcome of her appeal to this Court against conviction and sentence.
Factual background
[4] The prosecution in the District Court concerned one animal only, a horse named “Pip”. Judge Dawson held that Ms Power had recklessly ill-treated Pip, with the result that he slowly starved to death and would have been in severe pain for some months prior to his death.
[5] Ms Power has, however, had what counsel has described as a “fraught” relationship with the SPCA over a number of years. Counsel for the SPCA submits that Ms Power will not co-operate or communicate with it. Ms Power also has a number of previous animal welfare convictions, all of which bar one relate to failure to control a dog, or owning a dog which attacked a person or stock. One of these charges resulted in a fine of $200, another in a fine of $1,000. Ms Power was convicted and discharged in respect of the remainder. In addition, she was convicted
and discharged in respect of one count of cruelty or ill-treatment of animals relating to actions in 2008.
[6] There was no evidence led in the District Court trial about Ms Power’s treatment of any other animal, apart from Pip. Nor was there any evidence about the number or varieties of animals owned by her or their whereabouts or condition.
[7] Since the forfeiture order was made, the SPCA have attempted to identify all animals owned by Ms Power. They say that this has not been an easy or straightforward process because there are a significant number of animals; the animals are held at a number of properties including outside of Auckland and the SPCA’s experience is that Ms Power moves the animals to different properties. At this stage, the SPCA has been able to ascertain that Ms Power owns the following animals (currently located at a number of properties):
(a) at least 40 dogs; (b) at least 20 parrots;
(c) between 20 – 50 poultry; (d) at least 20 horses;
(e) at least 20 sheep; (f) at least 4 llamas; (g) at least 6 cats; and
(h) at least a dozen other animals of various species.
The SPCA note that it is possible that there are other animals that they have not yet been able to locate and identify.
[8] In relation to some of the animals at one property at Springs Road, Whatatiri, Whangarei, the SPCA took possession of approximately 50 cattle identified as being owned by Ms Power. The cattle were subsequently sold on 9 June 2015. No evidence has been led about their condition, but I infer from the sale of these cattle that they were in a marketable condition. The SPCA also removed two of the horses owned by Ms Power from the property as they needed veterinary treatment. These horses are now in Auckland receiving treatment. The SPCA was also informed that approximately 20 sheep had been grazing on the Springs Road property, but that the owner of the property (not Ms Power) had shifted them to a neighbouring property because of a significant overstocking issue on the property. The SPCA states that there are still 16 horses and four llama on the Springs Road property, but it believes that the grazing that is available is appropriate for this number of horses and llamas. The SPCA therefore has no intention, at this stage, of seizing those 16 horses and four llama which remain on the Springs Road property, but have been forfeited to the SPCA, because of the lack of resources and/or foster homes available for these animals. I therefore infer that the SPCA has no immediate concerns about their condition.
[9] In my view, it is important to recognise that the SPCA has no plans at present to seize all of the animals owned by Ms Power, pursuant to the order for forfeiture made by Judge Dawson. The SPCA acknowledges it does not have the resources, both in terms of finances and labour, to meet the welfare needs of the animals for an extended period of time. Accordingly, the intention of the SPCA is to assess the condition of all animals owned by Ms Power, but only to take possession of and find foster homes for the animals where appropriate, or in other words, only if the animal’s conditions means that they are unable to stay where they are.
[10] The only evidence before this Court of the condition of the remaining animals is an affidavit sworn by Mr G J Reid, the Animal Welfare Chief Inspector of the Auckland SPCA. He states:
6.The SPCA’s position is that it has a number of concerns in relation to the welfare of the animals owned by the Applicant. This is evidenced by:
(a) two horses requiring treatment;
(b) the Springs Road property being significantly overstocked due to the number of animals previously on that property;
(c) the Applicant’s history of animal neglect;
(d) the events which led to the conviction currently being appealed.
[11] While the two horses mentioned are now undergoing treatment, the SPCA clearly no longer has concerns about overstocking on the Springs Road property as it has chosen to leave the horses and llamas there.
[12] The SPCA offer an undertaking that it will exercise its rights in relation to the forfeiture order made by Judge Dawson in accordance with the following terms:
(a) The SPCA will be responsible for the welfare of all animals subject to the forfeiture order;
(b)The SPCA will retain ownership of the animals pending the outcome of the appeal against conviction and sentence;
(c) The SPCA will not permanently re-home, dispose of, or sell the animals prior to the determination of the appeal;
(d)The SPCA will carry out its obligations as the owner of the animals in accordance with the Animal Welfare Act 1999, including the provision of any treatment or other steps it deems to be appropriate to meet such obligations.
[13] The terms on which this undertaking is offered include, however, that Ms Power will cover the costs of the SPCA retaining ownership of and being responsible for the welfare of the animals pending the determination of the appeal. They seek payment from Ms Power of $6,564 per week, which include costs of $105 per week for each of the 40 dogs owned by Ms Power; $105 per week for each of six cats owned by her and $35 per week for each of the 20 parrots and 20 - 50 poultry owned by her. These costs of $6,564 per week do not include unforeseeable costs such as veterinary bills if any of the animals require treatment.
Legal Principles for Suspension of Sentence
[14] Section 343 of the Criminal Procedure Act 2011 provides:
No sentence may be suspended just because a person files a notice of appeal or notice of an application for leave to appeal under this Part, unless –
(a) The appeal court expressly directs that the sentence be suspended; or
(b) An enactment provides for the sentence to suspended in that case.
[15] In the time available, counsel have been unable to find any authorities for suspension of sentences imposed in animal welfare or similar cases. Nonetheless, I have been referred to the requirements for a stay of execution of judgment pending an appeal, which are set out in the Court of Appeal decision in Keung v GBR
Investment Ltd as follows:1
(a) Whether the appeal may be rendered nugatory by the lack of a stay; (b) The bonda fides of the applicant as to the prosecution of the appeal; (c) Whether the successful party will be injuriously affected by the stay; (d) The effect on third parties;
(e) The novelty and importance of questions involved; (f) The public interest in the proceeding; and
(g) The overall balance of convenience.
This list does not include the apparent strength of the appeal, but that has been treated as an additional factor.
[16] In my view, the principles in Keung are not directly applicable as it is a civil case, but some guidance may be available from it.
Discussion
[17] In the circumstances of this case, I am of the view that the primary concern of the Court on an application for suspension of sentence should be the welfare of the animals which are owned by Ms Power. If there was any cogent evidence of the
poor condition of the animals owned by Ms Power, then I would not have allowed
1 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17.
the application. However, there is no such cogent evidence. The sole evidence is contained in paragraph 6 of the affidavit sworn by Mr G J Reid (quoted above in [10]).
[18] Other factors I take into account are:
(a) The prosecution and conviction of Ms Power related to one horse only. There was no evidence led in the District Court about the number of other animals owned by Ms Power, where the animals were located, or their condition. It was not the prosecution of a farmer in respect of all his sheep, for instance. Judge Dawson therefore made the forfeiture order without knowing the extent of the order.
(b)The SPCA does not have the resources, both in terms of finances and labour, to meet the welfare needs of all of the animals owned by Ms Power for an extended period of time, so is not planning to seize the animals pursuant to the forfeiture order. It plans to assess the condition of all of the animals owned by Ms Power, but only to take possession of and find foster homes for the animals where appropriate and certainly not in every case.
(c) The SPCA retains the statutory power to enter onto private property and seize any animal if it has been ill-treated. The SPCA acknowledges that the two horses taken from the Springs Road property for veterinary treatment could have been seized pursuant to its statutory powers. The order for forfeiture need not have been relied upon in those circumstances.
(d)The undertaking offered by the SPCA is only on the basis that Ms Power pay $6,564 per week to the SPCA, which sum Ms Power is unable to afford.
(e) The appeal will be heard in eight weeks time. If during that time the
SPCA has concerns over the condition of any of the animals owned by
Ms Power, it is able to exercise its statutory powers under the Animal Welfare Act to serve the appropriate notice or seize the animal. It will therefore not be prejudiced in its role as an animal welfare organisation.
(f) According to her counsel, Ms Power regards the care of her animals as her mission in life or her reason to live. If forfeited, the SPCA is within its rights to put the animals down, to sell them or otherwise dispose of them, such that the animals will not be able to be restored to Ms Power. The appeal against sentence would therefore be rendered nugatory.
[19] In all the circumstances, there will be an order pursuant to s 343 of the Criminal Procedure Act suspending the sentence imposed by Judge Dawson in the North Shore District Court, pending the determination of the appeal in this Court. The proceeds of sale of the 50 cattle are also to be deposited by the SPCA into the trust account of Ms Power’s solicitors, to be held by them in an interest bearing account pending the determination of the appeal in this Court.
……………………………….
Woolford J
2