POWER V AUCKLAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS [2016] NZCA 232

POWER V AUCKLAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS [2016] NZCA 232 [27 May 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA206/2016[2016] NZCA 232BETWEEN ANNE DE LA POER POWERApplicantAND AUCKLAND SOCIETY FOR THEPREVENTION OF CRUELTY TOANIMALSRespondentCounsel: D R F Gardiner for ApplicantJ Edwards and J Rea for RespondentJudgment:(On the papers)27 May 2016 at 2.30 pmJUDGMENT OF STEVENS JThe application for suspension of sentence pending determination of the application for leave to bring a second appeal is granted.____________________________________________________________________REASONSIntroduction[1] Ms Power was found guilty by Judge Dawson in the North Shore District Court of one charge of recklessly ill-treating an animal with the result that the animal died. She was ordered to forfeit all animals owned by her to the Society for the Prevention of Cruelty to Animals (SPCA) and banned from owning animals for 10 years. She was also ordered to pay reparation and legal costs. Ms Power appealed the conviction to the High Court, where Andrews J allowed the appeal, substituted the conviction for one of ill-treatment of an animal and remitted the caseback to the District Court for sentencing on the lesser charge. Judge Dawson banned Ms Power from owning any animals for a period of eight years with the exception of a listed number of animals. The reparation and costs orders remained. Ms Power appealed against that sentence to the High Court. Whata J dismissed the appeal.[2] Ms Power has now filed an application for leave to bring a second appeal against conviction and sentence to this Court. She has also filed an application seeking suspension of the sentence pending the determination of the appeal.Background[3] Ms Power owned an aged gelding named Pip who was found dead by an SPCA inspector on 11 September 2013. She was charged with reckless ill-treatment of an animal with the result that the animal died (under s 28A(1)(b) of the Animal Welfare Act 1999) or, in the alternative, with ill-treatment of an animal (under s 29(a) of the Animal Welfare Act). Expert evidence established that Pip suffered from severe dental problems that would have left him unable to eat properly. He also had an infection in his lungs, pneumonia, a chronic parasitical worm infestation and was in a severely emaciated state. Judge Dawson was satisfied Ms Power had recklessly ill-treated Pip with the result that he slowly starved to death and would have been in severe pain for months prior to his death.1 The Judge thus found Ms Power guilty of the offence under s 28A(1)(b) of the Animal Welfare Act.2[4] At sentencing Judge Dawson noted Ms Power had five previous convictions relating to animal welfare and control of animals.3 He made an order forfeiting all animals she owned to the SPCA and an order banning her from owning or exercising control over any animal for 10 years.4 He also made an order for reparation for the expenses incurred by the SPCA of $4,710.05 and for legal costs of $1,512.51 Auckland Society for the Prevention of Cruelty to Animals v Power [2015] NZDC 5331 [Conviction judgment] at [12].2 At [14].3 R v Power [2015] NZDC 9783 [First sentencing judgment] at [3].4 Pursuant to ss 169 and 172 of the Animal Welfare Act 1999.5 Pursuant to s 173(1) of the Animal Welfare Act.[5] Ms Power appealed against both conviction and sentence to the High Court.6The sentence was suspended pending the appeal, although the SPCA had already taken possession of, and sold, 50 head of cattle belonging to Ms Power.7 On appeal, Andrews J was satisfied Ms Power had ill-treated Pip, but considered the element of recklessness had not been established.8 The Judge therefore quashed the conviction under s 28A(1)(b) of the Animal Welfare Act.9 However, because the proven facts clearly established the elements necessary to prove the offence of ill-treatment of an animal (such that Ms Power could have been found guilty of this offence at trial), a conviction under s 29(a) of the Animal Welfare Act was substituted.10 The case was remitted back to the District Court for sentencing.[6] On re-sentencing Judge Dawson banned Ms Power from owning any animals for eight years, with the exception of four horses, 11 cattle, 18 sheep, four llamas, four dogs, 40 birds and four cats.11 All other animals were to be forfeited to the SPCA immediately. She was again ordered to pay legal costs of $1,512 and reparation of $4,710.05.12[7] Ms Power appealed against this sentence to the High Court on the basis it was manifestly excessive.13 Whata J concluded the circumstances of the offending and the offender meant the eight year disqualification was not obviously wrong.14Whilst the sentence was harsh, the principles of deterrence and protection were fully engaged in this case and the multiple prior convictions were an aggravating factor.156 Power v Auckland Society for the Prevention of Cruelty to Animals [2015] NZHC 2159 [Conviction appeal].7 Power v Auckland Society for the Prevention of Cruelty to Animals [2015] NZHC 1347 [Suspension of sentence].8 Conviction appeal, above n 6, at [31].9 At [39].10 At [43].11 Auckland SPCAv Power [2016] NZDC 1664 [Second sentencing judgment].12 At [14].13 A further stay of sentence was granted: Power v Auckland Society for the Prevention of Cruelty to Animals [2016] NZHC 249.14 Power v Auckland Society for the Prevention of Cruelty to Animals [2016] NZHC 888 [Sentence appeal].15 At [20].Application for suspension of sentenceThe law[8] A judge alone may consider the application and make an order suspending a sentence pending the determination of an appeal.16 Under s 343 of the Criminal Procedure Act 2011 (CPA), no sentence is suspended just because a person files an application for leave to appeal unless the appeal court expressly directs the sentence be suspended or an enactment provides for the sentence to be suspended in that case. The Animal Welfare Act does not provide for the sentence to be automatically suspended pending an appeal.[9] The CPA gives no guidance as to when an appeal court should direct that a sentence be suspended. In the first application for a suspension of sentence in the High Court, Woolford J referred to the requirements for a stay of execution of judgment pending a civil appeal, but did not see the principles as directly applicable.17 These principles include whether the appeal will be rendered nugatory by the lack of a stay, the bona fides of the applicant in pursing the appeal, whether the successful party will be injured by a stay, the public interest in the proceeding, and the overall balance of convenience.18 The strength of an appeal has been regarded as an additional factor.19[10] There have been several appellate decisions on suspension relating to a sentence of home detention.20 A person seeking suspension of their home detention sentence is required to apply for bail, and thus the application for suspension is treated in a similar way, applying the test relevant to an application for bail.21 When considering where the interests of justice lie, the following may be taken into account: the strength of the grounds of appeal; the length of the sentence imposed; the likely length of time that will pass before the appeal is heard; the personal16 Criminal Procedure Act 2011, s 333(4). Applications for bail coupled with the suspension of sentence have been dealt with by a judge alone previously: see Colbert v R [2013] NZCA 681; and Wong v R [2014] NZCA 155.17 Suspension of sentence, above n 7, at [15].18 Keung v GBR Trustees Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].19 Ibid.20 See Din v R [2013] NZCA 610, [2014] 2 NZLR 445; Harris v R [2013] NZCA 611; andColbert v R, above n 16.21 Din v R, above n 20, at [3]. Bail must not be granted unless the court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.circumstances of the appellant and their immediate family; and any other considerations the court considers relevant.22 I consider similar factors are applicable when deciding whether or not to suspend a sentence in circumstances such as the present.Submissions[11] Ms Power has not clearly articulated the reasons why a suspension should be granted. The application merely sets out the background of the proceedings and applies for a stay of execution of the sentence pending the outcome of the application for leave to appeal.[12] However, the respondent does not oppose the stay being granted. Concerns remain regarding the welfare of the animals in Ms Power's possession. There arealso issues with the costs being incurred by the SPCA in holding and caring for a number of Ms Power's dogs (uplifted by the forfeiture order) and the risk thatresources devoted to these dogs mean other animals in need are not being cared for. The SPCA considers that the most efficient way to resolve the matter is not to oppose the application in the hope that the application for leave to appeal can be considered as soon as possible.Analysis[13] On a preliminary assessment the application for leave to appeal does not appear particularly meritorious. Ms Power must satisfy the Court there is a matter of general or public importance or that a miscarriage of justice has occurred or may occur.23 At this stage there is a bare assertion the appeal involves a matter of general or public importance, and that her sentence was too severe.24 It is not certain how long it will be until the application for leave to appeal can be heard. This is the type of case that ought to be heard at the earliest opportunity. The Fixtures Manager is requested to consider allocating a hearing date as soon as possible.22 Bail Act 2000, s 14(3).23 Criminal Procedure Act, ss 237 and 253.24 Ms Power has provided a letter from a veterinarian that she submits contradicts the finding that death was attributable to starvation.[14] An important consideration must be the welfare of the animals at issue, as this is the focus of the Animal Welfare Act. There is nothing in the material before the Court to suggest the animals yet to be forfeited have been ill-treated or are in poor condition. Counsel for the SPCA refers to the fact it does not have adequate resources to continue housing Ms Power's dogs, but do not oppose the application on this basis. The impact on the SPCA is a relevant factor and also supports a suspension of the sentence being granted.ResultThe application for suspension of sentence pending determination of the application for leave to bring a second appeal is granted.Solicitors:Russell McVeagh, Auckland for Respondent