Ransom v Police

[2020] NZHC 2867

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-000076

[2020] NZHC 2867

BETWEEN

HARLEY KIRK CLARENCE RANSOM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	2 November 2020
Counsel:	SF Gilbert for Appellant` CK Whyte for Respondent
Judgment:	2 November 2020

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Hamilton. SF Gilbert, Hamilton

RANSOM v POLICE [2020] NZHC 2867 [2 November 2020]

[1]        Harley Ransom was convicted of one charge of ill-treating his dog, Sabbath, a black Labrador cross. He appeals conviction and sentence.

[2]        The circumstances are simple. On 26 October 2019, Mr Ransom was walking Sabbath with a lead around the dog’s neck. A veterinarian happened to be nearby. He saw Mr Ransom lift the dog off the ground by the lead. Mr Ransom held Sabbath off the ground—by the lead around the neck—for at least two seconds. Mr Ransom was clearly agitated. Mr Ransom then put Sabbath on the ground. He hit the dog twice with a plastic tennis ball thrower. The witness said the dog then flattened itself in a defensive position.

[3]        The witness confronted Mr Ransom. Mr Ransom was abusive and aggressive. The witness called Police. Mr Ransom told the attending Constable to “fuck off”, and he had no reason to speak with him. The officer arrested Mr Ransom. He denied wrongdoing in a brief statement.

[4]        The charge was tried by Judge N D Cocurullo on 23 June 2020. His Honour found the charge proved. At the hearing, Police sought to amend the charge to include the hitting of Sabbath with the tennis ball thrower. The Judge declined the amendment, observing Police had seven months or so to identify their case. The Judge was troubled a late amendment might compromise Mr Ransom’s right to a fair trial.

[5]        Mr Ransom testified. He said that Sabbath had been nipping people that morning. Mr Ransom acknowledged being agitated or aggressive.

[6]The Judge found the facts as I have outlined them.

[7]        The Judge imposed a sentence of nine months’ supervision. He also imposed a term of 140 hours’ community work. Mr Ransom was already serving a sentence of supervision. The Judge quashed that. Mr Ransom was also already serving 200 hours’ community work. The Judge made the 140-hour term cumulative.

[8]        On behalf of Mr Ransom, Ms Gilbert contends justice miscarried. She argues the Judge wrongly took into account the tennis ball thrower sequence when that formed no part of the charge.

[9]There is nothing in this point. The Judge said this at the end of his decision:1

I am utterly convicted that Mr Derewlany’s evidence of this young puppy Sabbath being hung from a lead attached to a collar around its neck momentarily for a couple of seconds and I find that there was no fully body harness or harness at all and that this dog was wearing a collar as attested by Mr Derewlany and to an extent the constable.

The final issue that I need to consider is this aspect of ill-treatment. I indicated in submissions a focus on distress. The circumstances here were little. This was an eight to nine month old puppy the defendant tells me who was nippy and apparently for that reason he needed to leave the address. The circumstances here are not an explosive situation but for the bad day and the aggravated position the defendant was in.

I look here to Mr Derewlany’s observation of the dog hanging cowering then in some distress and for the moment put aside the aspect of hitting the dog that part not being charges as a narrative in my refusing leave out of fairness to the defendant to include.

I have a clear view beyond doubt that what has happened here is that through the defendant’s action Sabbath has suffered at least distress from Mr Ransom lifting him by the lead attached to the collar around the neck whereupon Sabbath has covered down in a distressed state and in that kind or degree and in the circumstances in which that was inflicted I have a clear view that when judging that as unreasonable or unnecessary that it was both. In fact both unreasonable and unnecessary.

This is a strict liability offence. I do not have to consider an intention to do so. I find that Mr Ransom caused this suffering of distress in these circumstances as I have set out and the information is proved.

[10]It is clear the Judge excluded from his assessment the hitting of the dog.

[11]      This leaves Ms Gilbert’s allied and more significant point. She contends because Sabbath cowered after being hit with the tennis ball thrower—and that aspect did not form part of the charge—the prosecution could not establish ill-treatment.

[12]Section 2(1) of the Animal Welfare Act 1999 defines this as follows:

1      Police v Ransom [2020] NZDC 16853 at [37]–[41], emphasis added.

ill-treat, in relation to an animal, means causing the animal to suffer, by any act or omission, 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.

[13]Ms Gilbert argues the evidence could not establish this definition.

[14]      On behalf of the respondent, Mr Whyte contends hanging a dog by a lead off the ground for at least two seconds—when the lead is around the dogs’ neck, and therefore around or about its airway— unquestionably causes suffering and distress, and the surrounding circumstances established that distress was unnecessary and unreasonable.

[15]      I agree with Mr Whyte. Self-evidently what Mr Ransom did was ill-treatment of Sabbath in terms of the definition. I observe Mr Ransom denied Sabbath had a conventional collar around his neck. He contended there was a body harness—the implication being this action would not have caused distress. The witness said Sabbath had a collar around his neck. So too the attending Constable. The Judge found that was so. Again, ill-treatment was plainly established in the circumstances.

[16]      This leaves the most important aspect of the appeal, the sentence imposed, a proposition Ms Gilbert acknowledged during argument. She and Mr Whyte were unable to find a case quite like this. The most similar is Royal New Zealand Society for the Prevention of Cruelty to Animals v Landy.2 However, that case involved a charge with a higher maximum penalty and more serious offending.

[17]      I consider the sentence manifestly excessive. I also consider another sentence should be imposed. I acknowledge an element of impression to this conclusion absent case law. But, the imposition of 140 hours’ community work to an existing sentence of 200 hours’ community work is a long sentence. I quash it. I substitute a term of 40 hours’ community work. That is additional to the existing 200 hours of community work. I maintain the sentence of supervision. It is appropriate.

[18]The appeal against conviction is dismissed.

2      Royal New Zealand Society for the Prevention of Cruelty to Animals v Landy [2019] NZDC 19187.

[19]The appeal against sentence is allowed in the manner identified.

…………………………..

Downs J