Smithey v Ministry for Primary Industries
[2023] NZHC 1607
•27 June 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-45
CRI-2023-409-46 [2023] NZHC 1607
BETWEEN REBECCA SMITHEY
Appellant
AND
MINISTRY FOR PRIMARY INDUSTRIES
Respondent
Hearing: 21 June 2023 Appearances:
A M McCormick for Appellant K A Courteney for Respondent
Judgment:
27 June 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 27 June 2023 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
SMITHEY v MINISTRY FOR PRIMARY INDUSTRIES [2023] NZHC 1607 [27 June 2023]
Introduction
[1] The appellant, Rebecca Smithey, pleaded guilty to and was convicted on one charge of ill treatment of an animal.1 She applied for a discharge without conviction and permanent name suppression. Those applications were declined by Judge Couch on 8 March 2023.2 Ms Smithey appeals both those decisions.
Facts of the offending
[2] On 25 February 2022, Ms Smithey was at the North Otago A&P show as a professional rider. She was employed to ride the horse Nobel Soul, also known as Solly. While in the oval, Ms Smithey dismounted and stood in front of the horse while holding the reins and proceeded to physically and verbally abuse the horse. She repeatedly kicked the horse in the knees, slapped him around the neck and chest with the reins, struck him in the head and jabbed him in the mouth using the bit and reins. She waved her hands in the horse’s face and shouted at him. The acts were done while walking towards the horse, forcing him to walk backwards. The incident lasted over two minutes, with one minute and 11 seconds recorded on video.
[3] The horse received no lasting injuries from the incident but displayed behaviours consistent with him experiencing pain from the blows to his body and trauma to his mouth and distress from the manner in which he was handled and shouted at.
District Court decision
[4] On 8 March 2023, Judge Couch declined Ms Smithey’s application for a discharge without conviction and sentenced her to pay a fine of $1,650 and court costs of $130. He also declined to order for name suppression which was sought on the grounds that publication would cause her extreme hardship.
[5] In assessing the gravity of the offending, the Judge traversed the summary of facts. He also added some more context which was drawn from affidavit evidence
1 Animal Welfare Act 1999, ss 29(a) and 37: maximum penalty 12 months’ imprisonment, a fine of
$50,000 or both.
2 Ministry for Primary Industries v Smithey [2023] NZDC 4321.
filed in support of Ms Smithey’s applications. He acknowledged that Ms Smithey has had a lifetime interest in horses and worked with them for most of her adult life. On the day in question, Ms Smithey had been working with Solly and he performed poorly by engaging in behaviour known as “spinning” and was getting out of control. She said she struck the horse in the various ways in an effort to regain control of him, particularly by trying to force him backwards to gain dominance.
[6] The Judge found that the following aggravating factors were applicable, following the Court of Appeal case Erickson v Ministry for Primary Industries:3
(a)causing unreasonable pain and distress;
(b)the use of violence;
(c)prolonged offending;
(d)abuse of trust in a leading role; and
(e)the impact on third parties, with the Judge pointing to the impact on bystanders and those who watched and commented on the video posted on Facebook.
[7] Overall, the Judge considered the offending was moderately serious for the offence involved.
[8] The Judge then went on to consider personal aggravating and mitigating factors. There were no personal aggravating factors. The personal mitigating factors included that the defendant entered a prompt guilty plea and so was be entitled to a 25 per cent discount on any penalty imposed. She was also genuinely remorseful, which the Judge considered warranted a 10 per cent discount. The Judge then considered that she would be entitled to a 10 per cent discount for being otherwise of good character.
3 Erickson v Ministry for Primary Industries [2017] NZCA 271, [2017] NZAR 1015.
[9] Overall, for the purposes of s 106 of the Sentencing Act 2002, the Judge found the gravity of the offending to be substantial but short of serious.
[10] In terms of the consequences of this conviction, the primary concern was the consequence for Ms Smithey’s future career with horses. In that regard, the Judge noted she had supplied affidavits from people within equestrian circles who said they would still employ her. He also noted that her identity and connection with the offending were already well known within equestrian circles because of comments made on social media in response to the video. Equestrian New Zealand, the governing body of sporting horse events, had also indicated it was going to launch a disciplinary process into Ms Smithey’s actions regardless of whether she was convicted. Overall, the Judge accepted that conviction would negatively impact Ms Smithey’s future equestrian career which was very important to her. However, the extent to which her actions and identity were already known would reduce the significance of the conviction as she was likely to be judged on her actions, not the fact of conviction.
[11] In applying the test of whether the consequences of the conviction would be out of all proportion to the gravity of the offending, the Judge found they would not, and a conviction was entered. He then imposed a fine of $1,650 after making deductions for early guilty plea, genuine remorse and good character, along with an order to pay court costs of $130. The Judge also declined to make an order under s 169 of the Animal Welfare Act 1999 to restrict Ms Smithey’s future involvement with animals.
[12] The Judge then turned to Ms Smithey’s application for an order for permanent name suppression, which relied on the same evidence that was offered to support her discharge without conviction application. The Judge considered that because her actions and identity were “almost universally known in equestrian circles”, a non-publication order would be of relatively little significance.4 He acknowledged that publication of her name in mainstream media would likely cause her distress but
4 Ministry for Primary Industries v Smithey, above n 2, at [45].
considered that was the normal consequence of the offending and did not amount to extreme hardship.
Principles on appeal
[13] The court may grant a discharge without conviction under s 106 of the Sentencing Act only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.5
[14] The decision under s 107 involves a matter of fact, requiring judicial assessment. Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate court making its own assessment of whether the criteria are established.6 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.7
[15] The starting point for consideration of a suppression order is the presumption of open justice.8 The business of the courts should be conducted publicly and any departure from this general rule ought only to be “to the extent necessary to serve the ends of justice.”9 A suppression order may be made under s 200 of the Criminal Procedure Act 2011.
[16] In determining whether to exercise its discretion the court is required to undertake a two-step inquiry.10 Firstly, whether any of the threshold grounds in s 200(2) of the Act are met. Secondly, if the court is satisfied one of the that a threshold has been met, it must determine whether to exercise its discretion and forbid publication of the defendant’s details.11 The presumption of open justice is considered
5 Sentencing Act 2002, s 137.
6 H v R [2012] NZCA 198 at [35]–[36].
7 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].
8 Robertson v Police [2015] NZCA 7; D (CA443/2015) v Police [2015] NZCA 541, (2015) 27
CRNZ 614.
9 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [3].
10 D (CA443/2015) v Police, above n 8, at [10].
11 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 8; D (CA443/2015) v Police, above n 8.
at this stage. To displace the presumption, the balance must clearly favour the suppression.12
[17] The mandated two-step test must be conducted afresh. An appeal court is required to undertake its own assessment of whether the threshold test is met.13 If satisfied that the criteria at this first stage has been met, the court must then determine whether suppression should be granted or not. In doing so, the court assesses whether the Judge acted on a wrong principle, failed to account for a relevant matter, considered an irrelevant matter, or was plainly wrong.14 The first appeal court must confirm, vary or set aside the decision appealed against or make any other order it considers appropriate.15
Submissions
[18] In support of the appeal against the refusal to grant a discharge without conviction, a number of grounds were raised. Mr McCormick said the Judge overstated the aggravating features of the offending, did not acknowledge the mitigating features of the offending, did not give sufficient weight to Ms Smithey’s personal experiences with a similar incident involving another horse, and did not give sufficient weight to either the fact she lost her employment as a result of the incident or the personal condemnation she had experienced on both social media and mainstream media.
[19] In respect of the aggravating factor of the horse being caused unreasonable pain or distress, Mr McCormick submitted the Judge did not refer to the evidence of Ms Donna Edwards-Smith who said the horse did not appear obviously in pain or distressed from the video footage. The fact there were no physical injuries observed on the horse when it was examined lends credence to Ms Edwards-Smith’s opinion. Mr McCormick also submitted the Judge overstated the impact of the incident on third parties either watching at the venue or seeing the footage online.
12 D (CA443/2015) v Police, above n 8, at [17].
13 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
14 O v R [2014] NZCA 579 at [21].
15 Criminal Procedure Act, s 287.
[20] In respect of the mitigating features of the offending, Mr McCormick submitted the Judge did not assess the mitigating features outlined in the affidavits of Ms Smithey and of Mr Andrew Scott. Mr Scott said he undertook a coaching session with Ms Smithey and the horse, and thought the horse to be dangerous at that stage of his development. In addition, Ms Smithey deposed to the circumstances of the incident, including the horse’s behaviour on the day which prompted her response, albeit she accepts her response was an overreaction. Mr Scott also offered an opinion that the behaviour Ms Smithey reported the horse displaying on the day was among the most dangerous and uncontrollable a horse can exhibit.
[21] Mr McCormick submitted that the Judge had not taken into account the horse’s behaviour leading up to and at the show as contributing to Ms Smithey’s reaction and subsequent behaviour.
[22] Finally, although the Judge afforded credit to Ms Smithey for the timing of the guilty plea, her genuine remorse and good character, Mr McCormick submitted the Judge did not take into account Ms Smithey’s previous injury and trauma from a similar incident, nor the subsequent media attention she has suffered. In respect of the previous injury and trauma, Ms Smithey gave affidavit evidence of suffering a traumatic head injury from being thrown to the ground and kicked by a horse which was performing in the same way as the horse was performing on the day in question. Her actions that day were in part driven by her fear that she would be injured in the same way as she had been in the previous incident.
[23] With respect to the media attention, Mr McCormick referred to Facebook messages that contained abusive and offensive comments directed towards Ms Smithey by people completely unknown to her. This level of public comments was also directed to Ms Smithey’s employer, including sponsors threatening to withdraw their financial support for her business, which led Ms Smithey to resign from her employment.
[24] As a consequence of not taking these factors into account, Mr McCormick submitted the Judge’s assessment of the offending as being “substantial but short of
serious” overstated the gravity of the offending. Instead, the offending should be in the range of “moderate at worst”.
[25] In terms of his assessment of the consequences of conviction, Mr McCormick said the Judge disregarded the evidence of Mr Scott who said that, in his view, an employer faced with two equal applicants would inevitably choose the one without a conviction. While Mr Scott and Ms Edwards-Smith said they would employ Ms Smithey, they caveated their opinions on the basis they would do so having known her. The Judge did not take into account the fact that an employer who does not know Ms Smithey would be unlikely to look beyond the fact of her conviction.
[26] In respect of permanent name suppression, Mr McCormick only seeks that as an adjunct to a discharge without conviction. Mr McCormick submitted that if it is appropriate for Ms Smithey to be discharged, but her name is published, then the risk to her given the social media backlash she has already experienced is that the effect of her discharge would be rendered nugatory, and this would amount to extreme hardship to her.
Discussion
[27] In terms of assessing the gravity of the offending, the primary evidence was obviously contained in the summary of facts which was before the Judge. This describes Ms Smithey’s actions, saying she “repeatedly kicked the horse in the knees, hit him in the chest with her hands, slapped him about the neck and chest with the reins, struck him in the head and jabbed him in the mouth using the bit and reins” and the incident “lasted over two minutes”. The summary of facts acknowledged that the horse sustained no lasting physical injuries but also said, “during the incident he displayed behaviours consistent with him experiencing pain from the blows to his body and the trauma to his mouth, and distress from the manner in which he was handled and shouted at”. The summary of facts concludes by saying Ms Smithey’s behaviour was “a significant departure from the standard of horsemanship expected of a rider and caused the horse to suffer unreasonable and unnecessary pain and distress”.
[28] To the extent the affidavit evidence sought to challenge the description of the offending contained in the summary of facts, the Judge was clearly correct to put it to
one side. It is clear he had read all the further evidence as he made direct reference to some of the further background material Ms Smithey filed. In reaching his conclusion on the level of pain and distress the horse suffered, he acknowledged there was no sign of ongoing injury and pain, but he clearly accepted the prosecutor’s expert evidence presented by Dr Vaughan and Mr Turner which was consistent with the summary of facts.
[29] The Judge’s conclusion that the violence upset third parties was also based on the evidence before him. This included both the audible comments captured on video from bystanders who witnessed the assault, as well as the fact that the publication of the video online carried a warning that it could upset some viewers. Furthermore, the online comments made by viewers demonstrated that some of them found it upsetting. I am satisfied these were findings open to him on the evidence which was before him.
[30] While Ms Smithey argues that a mitigating factor is her previous experience of a horse behaving in a similar way resulting in her getting an injury, the Judge was clearly appraised of that, having referred to it in the first half of the judgment. However, as Ms Courteney submitted, Ms Smithey accepted her behaviour overstepped the mark. Furthermore, it occurred after she had dismounted and when there was no risk of her being dumped and hurt while on the ground. Given Ms Smithey is a professional rider, who could be expected to deal with misbehaving horses in a measured way, there was no reason to acknowledge this as a mitigating factor.
[31] In terms of the submission that the Judge erred by not taking into account Ms Smithey’s previous injury and trauma and the abuse from social media comments that she endured, I am satisfied the Judge did have regard to Ms Smithey’s previous experience, but for the reasons already given in [30] above, this did not excuse her overreaction, which she acknowledged was a significant departure from the standard of horsemanship expected of a rider and caused unnecessary pain and distress to the horse.
[32] I also do not consider that experiencing negative comments on social media is properly described as a personal mitigating factor. It may, though, be relevant to the
consequences of conviction for the purpose of s 106 or to the evaluation of hardship a defendant might suffer if name suppression was lifted.
[33] I accept the offending is not serious, nor did the Judge assess it as such. The relatively modest penalty imposed reflects this. Furthermore, the Judge acknowledged it fell short of serious offending and I proceed on that basis.
[34] The next aspect of the appeal relates to the consequences of conviction, where Mr McCormick’s primary submission is that the Judge failed to consider the evidence of Mr Scott. He said that as an employer, if he received two applications and one person did not have convictions, he would consider the person with a conviction be at a “significant disadvantage”. He also feared that this sort of conviction will get her banned from a racetrack.
[35] However, this evidence must be read alongside the other affidavits, including of Ms Edwards-Smith and Ms Land, who both said they would be prepared to employ Ms Smithey despite the offending. While Mr McCormick emphasised that this is because they already know her, their willingness to employ her must still be taken into account when assessing the consequences of a conviction. In that regard, there is not a real and appreciable risk that Ms Smithey would not be able to get work in the industry with a conviction, given there are people willing to hire her because of their confidence in her skills. The risk is that someone who does not know Ms Smithey would not hire her. However, it is not clear how much of an additional impact a conviction would have on her career given this appears to be a close community where a lot of people are aware of her involvement in this incident. As Ms Edwards-Smith says, “most of the people in the national eventing community know [Ms Smithey] is the person in the video so her privacy is largely comprised”. I also agree with the Judge that where someone does not know Ms Smithey, she is more likely to face problems with employment based on the video footage of her actions, rather than the fact she was subsequently convicted for them.
[36] Given that the entry of a conviction will only have a limited effect on Ms Smithey’s employment prospects in the equestrian world, as those prospects are already affected either by knowledge of her actions, I do not think this case meets the
high threshold of the consequences of publication being “out of all proportion” of the gravity of the offending.
Name suppression
[37] The name suppression appeal is dependent on Ms Smithey being granted a discharge without conviction. As I have not granted that, it follows that I see no basis for granting name suppression. In any event, there is no evidence that publication of Ms Smithey’s name would reach the threshold of causing her “extreme hardship”.16 The hardship she has experienced, including of being the subject of adverse comments on social media, and feeling duty bound to relinquish her employment with Ms Land, has occurred because of her treatment of the horse, not because of her conviction.
[38] Finally, it is difficult to see that publication of Ms Smithey’s name would give rise to the adverse consequences she says, when her involvement with this incident is already well publicised. The impact of publication must inevitably have a lesser impact when her connection with the events circulated on the video are already well known in the equestrian community.
Conclusion
[39]For these reasons, the appeal is dismissed.
Solicitors:
Brandts-Giesen McCormick, Rangiora Raymond Donnelly & Co., Christchurch
16 Criminal Procedure Act, s 200(2)(a).
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