R v Albert CA126/03

[2003] NZCA 349

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/03

THE QUEEN

v

GEORGE ALBERT

Coram:  Keith J

Tipping J Anderson J

Appearances:  P Kaye for the Appellant A Markham for the Crown

Judgment (on the papers): 19 December 2003

JUDGMENT OF THE COURT DELIVERED BY KEITH J

[1]     This appeal against conviction and sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Background

[2] The appellant was convicted following a jury trial in the District Court at Kaikohe on one count of failing to meet his obligations as owner or person in charge of 12 horses in relation to their physical, health, and behavioural needs under s12(a) of the Animal Welfare Act 1999, and one count of wilful ill-treatment of an animal under s28(1)(b). He was acquitted on a number of other counts brought under the

R V GEORGE ALBERT CA CA126/03 19 December 2003

Animal Welfare Act. The District Court Judge imposed a fine of $5000 in respect of the first count and a fine of $8000 in respect of the second. The Judge also prohibited the appellant from having custody of any horse or horses for a period of 18 months.

[3]    The appellant initially appealed against both his conviction and his sentence. Although not formally abandoning the appeal against conviction, Mr Kaye, for the appellant, acknowledged in his written submissions that he could not realistically advance submissions in that area. We consider that concession properly made and accordingly dismiss the appeal against conviction. The appeal against sentence is brought on the ground that the sentence imposed was manifestly excessive.

[4]    The indictment in this case was originally filed in the name of William James Boyd, a warranted inspector under the Animal Protection Act. Inspectors are specifically authorised to lay informations and conduct prosecutions by s168 of the Act. Mr Boyd is associated with the RSPCA, an approved organisation under s189(1). Because the RSPCA could not afford to take the matter on appeal, the respondent is represented on this appeal by the Crown Law Office.

The facts

[5]    For several years the appellant grazed horses and other stock on a parcel of land at Mangamuka. The land is situated on the eastern side of State Highway 1 and consists of approximately 50 acres.

[6]    On 17 August 2001, acting on information received from a MAF inspector who had driven past the property and observed a number of horses in poor condition, a RSPCA inspector visited the property. There she located a severely emaciated chestnut stallion (known as Redman) standing stationary in boggy ground near the fenceline. The inspector assessed the stallion on the established Carroll and Huntington body condition scale at 0. On the Carroll and Huntington scale 5 is  “very fat”, 3 is “optimal” and 0 is “very poor”.

[7]    The inspector left a written notice and that evening telephoned the appellant and ordered him to remove Redman from the property within 72 hours. The appellant agreed to do so the following day, a Saturday. The Judge accepted that the appellant in fact did remove a horse from the property on Saturday believing it to be the one in respect of which the complaint had been made. However, no steps were taken to deal with Redman.

[8]    On 20 August, the inspector returned to find Redman had deteriorated. The weather had been poor over the weekend. The stallion’s head was hanging and he was holding one foreleg off the ground. There was no grazing in the area. The inspector called a veterinarian who inspected Redman. The veterinarian described the horse’s condition as “grave”. He concluded that euthanasia was the best option and the horse was destroyed.

[9]    The inspector returned to the property on 28 August, accompanied by the veterinarian and a constable. Some 43 horses were seen on the property in poor to average condition. Twelve horses were identified as being below acceptable condition and were either emaciated or bordering on emaciation (scoring a 1 on the Carroll and Huntington scale). The ground was waterlogged, with exposed wires strewn about. Veterinary opinion was that the property could support no more than 20 horses, pasture levels being well below an acceptable level for grazing horses. There were no signs of supplementary feeding.

The District Court sentence

[10]   The sentencing Judge accepted that the offending occurred at a difficult time for people who had responsibility for stock, due to a hard and wet winter. The conduct of the appellant in managing those difficulties however left much to be desired. While this was not a case of premeditated cruelty, in that the starvation of the animals was unplanned, it was the result of a regime of negligence that had gone on for a long time. It would have taken weeks, if not months, the Judge considered, for the horses to get into the state in which they were found. The appellant was not a person who strayed into this default in ignorance. He had been involved with horses for a long time and was aware of their needs.

[11]   The Judge noted that the appellant had also been made subject to civil orders as a result of mistreatment of other stock animals on other properties owned by him during the period broadly covered by the prosecution. The Judge considered this an aggravating feature of the appellant’s case, in that it indicated that the present case was not an isolated incident of neglect and mistreatment.

[12] The Judge acknowledged that there was no established tariff for this type of offending under the Animal Welfare Act. The Judge noted, however, that the maximum penalties available under the Animal Welfare Act for mistreatment of animals represented a considerable enhancement on the penalties available under previous legislation. On the count of failure to meet animals’ needs the Judge, taking into account the number of animals involved and the lack of any wilfulness, imposed a fine of $5000. The Judge noted a similar case of neglect albeit in relation to one animal where a $10,000 fine was imposed. On the count of wilful ill- treatment, the Judge considered that a fine of $8000 was appropriate, having regard to the totality of the offending. The Judge took into account the higher statutory penalty for wilful mistreatment, and the fact that the animal was starved virtually to death.

[13]   The Judge then considered whether to impose a prohibition on the appellant from owning horses. The Judge indicated that, had the appellant been an  active horse trader, the order would have had drastic consequences. However, then-counsel for the appellant had indicated that the appellant was seeking, and expected to receive, employment as a driver. In those circumstances, the Judge considered a prohibitory order appropriate to ensure that there was no repetition of the offending and to properly make the deterrent aspect of the sentencing felt. Accordingly, the appellant was prohibited from having custody of any horse for a period of 18 months.

Submissions

[14]   Mr Kaye, for the appellant, made two principal submissions. First,  in  relation to the level of fines imposed, Mr Kaye submitted that the sentencing Judge failed to adequately consider that the appellant had no previous convictions for

offending of a similar type. Second, Mr Kaye submitted that in imposing the prohibition against having custody of horses for 18 months, the sentencing Judge failed to give sufficient weight to the references provided in support of the appellant. Those references, according to Mr Kaye, indicated the high regard in which the appellant is held as a horseman and the generally good condition of the horses he sold. Mr Kaye also submitted that the sentencing Judge placed too much weight on counsel’s concession that the appellant was seeking other employment away from the horse trading industry in determining that the prohibition period would not be detrimental to the livelihood of the appellant.

[15] Ms Markham, in her detailed submissions for the respondent, submitted that the fines imposed and the prohibition order were not manifestly excessive when viewed against the culpability of the appellant and the increased penalties for animal mistreatment contained in the Animal Welfare Act. Ms Markham further submitted that the appellant’s sentence was consistent with sentences imposed under the Animal Welfare Act in relation to the mistreatment of farm animals.

Discussion

[16] While the sentencing Judge did not, in his sentencing notes, explicitly refer to the appellant’s lack of previous convictions for similar offending, we do not consider that the Judge erred in this respect. Although the appellant has no previous convictions for similar offending that could be regarded as an aggravating factor under s9(1)(j) of the Sentencing Act 2002, the Judge was entitled to conclude that the appellant could not claim previous good character in mitigation. The appellant has a number of convictions including firearms charges, threatening, contravening a protection order and assault. And, as noted by the Judge, evidence of similar misconduct in relation to the care of animals over a significant period of time was accepted by Judge Everitt in making civil orders against the appellant under the Animal Welfare Act: Bay of Islands RSPCA v Albert DC KAIT NP12/02, 31  January 2003.

[17]   This was a serious case of mistreatment of a number of animals over a period of time by a person whose experience with horses meant that, in the words of the

sentencing Judge, he ought to have known better. Given the significant increases in maximum sentences available for offences against animals under the Animal Welfare Act, the fines imposed cannot be said to be manifestly excessive.

[18] Similarly, we do not consider that the Judge erred in making an order prohibiting the appellant from having custody of horses for a period of 18 months. Such orders are available under s169 of the Animal Welfare Act “in addition or substitution for any other penalty”. There are no particular statutory criteria for the imposition of prohibitory orders: the imposition falls to be considered as part of the overall sentencing determination in accordance with the purposes and principles of sentencing set out in ss7 and 8 of the Sentencing Act. The Judge clearly had such purposes, particularly those in paras 7(1)(f) and (g), in mind when imposing the order.

[19]   The limited weight the Judge placed on the references provided by the appellant must been seen against this background. Again, there was evidence before the Judge that the mistreatment of animals by the appellant was not an isolated occurrence. This, taken with the lack of remorse shown by the appellant entitled the Judge to conclude that it was appropriate to impose a deterrent sentence.

[20]   Nor do we consider that the Judge placed too much weight on the appellant’s concession that he was not active in horse trading when imposing the order. The effect of that concession was simply to remove the concern that a prohibitory order would be disproportionately severe on the appellant. While Mr Kaye asserted that the order would nonetheless be detrimental to the livelihood of the appellant, he referred us to no evidence that suggested that the detriment was such that the sentence imposed would for this reason be manifestly unjust.

[21]The appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington