MARTINE GENET v THE RSPCA [2021] NZCA 277

MARTINE GENET v THE RSPCA [2021] NZCA 277 [29 June 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA598/2020[2021] NZCA 277BETWEEN MARTINE GENETApplicantAND THE ROYAL SOCIETY FOR THEPREVENTION OF CRUELTY TOANIMALSRespondentCourt: Miller, Venning and Peters JJCounsel: Appellant in PersonGJC Carter for RespondentJudgment:(On the papers)29 June 2021 at 2.00 pmJUDGMENT OF THE COURTThe application for an extension of time to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] Following a trial by jury Ms Genet was found guilty of two charges ofcontravening an order disqualifying her from owning animals1 and 10 charges offailing to ensure the health and behavioural needs of an animal.21 Animal Welfare Act 1999, s 169B.2 Section 12(a).[2] On 8 December 2016 Ms Genet was sentenced in the District Court atManukau to two years' intensive supervision.3 Judge Earwaker also disqualified herunder s 169 of the Animal Welfare Act 1999 (the Act) for a period of 10 years frombeing the owner of or from exercising authority over animals generally. The Judgestated the disqualification was to be concurrent with a (then) current order ofdisqualification which had been imposed on 1 April 2008.[3] Ms Genet now seeks to appeal against both her conviction and sentence.The notice of appeal was filed on 16 October 2020, almost four years after hersentencing. She seeks an extension of time to bring her appeal.4[4] Ms Genet has filed an affidavit to support her application for an extension oftime. In it she offers the following reasons for failing to bring the appeal before now:(a) she had filed the appeal on her sentencing date, 8 December 2016, atManukau and it was ignored;(b) she and her lawyer at the time chased the Court up numerous times overone and a half years to no avail;(c) in October 2018 "we" (presumably Ms Genet and her lawyer) chasedthe Court up. It was ignored; and(d) another lawyer wasted six months again trying to get an appeal done.[5] Ms Genet's various explanations for her failure to bring the appeal before noware neither compelling nor convincing. Any valid appeal document would have to befiled with this Court rather than the District Court at Manukau. There is no record ofany appeal being filed with this Court.3 SPCA Waikato v Genet [2016] NZDC 25065.4 Criminal Procedure Act 2011, s 231(3).[6] Further, Ms Genet's assertions that she and a lawyer followed the matter up arenot supported by any evidence from the lawyers that she says were involved or evenby any documentary record of communications to the Court by her or her lawyer.[7] Consideration of the merits of the proposed appeal do not support theapplication for an extension either. Ms Genet says that the SPCA kept changing thecharges and animals each day to different ones and her lawyer kept telling her to pleadguilty. The record discloses that a number of charges were withdrawn after the jurywas empanelled. The trial ran for several days. The Judge's summing-up wascomprehensive. Ms Genet also says she told her lawyer to play a video she took onthe day the police took her from the library and seized the cats. She suggests that thevideo she took shows the cats that were taken from her car were different from theones that she was charged with failing to care for.[8] To the extent it could have been relevant, any video that Ms Genet had of theincident when she was arrested would have been available to her at the time of hertrial. It is not fresh evidence. Ms Genet faces a further difficulty. If Ms Genet wishedto criticise her counsel's conduct, she would need to provide a waiver of privilege toenable her trial lawyer to respond to her complaints. She has not done so despite thefact the appeal document was lodged with the assistance of counsel.[9] Finally, Ms Genet's sentence of supervision has expired. The only remainingsentence is that of disqualification, which we deal with below.[10] Given the failure to provide an adequate explanation for the delay and theapparent lack of merit in the appeal the interests of justice do not support an extensionof time being granted for Ms Genet to appeal.[11] The remaining issue is the period of disqualification. Ms Genet seems toconsider that the period of disqualification has expired.[12] The sentence imposed by the Judge was 10 years' disqualification which wasto be concurrent with the existing sentence of disqualification. Ms Genet takes theview that the disqualification expired with the first sentence of disqualification on31 March 2018.[13] The issue is how the two separate sentences of disqualification under the Actare to interact as concurrent sentences.[14] Part 8 of the Act provides for offences and penalties. Section 169 of the Actprovides for the power to make a disqualification order. Section 169A provides forthe power to review, remove or vary such an order, and s 169B provides for the offenceof breach of a disqualification order and resultant penalties.[15] The Act provides no indication as to how concurrent orders for disqualificationare to interact. That can be contrasted with the provisions of the Sentencing Act 2002which specifically address the circumstances where a person is sentenced for morethan one offence and how sentences for more than one offence, and concurrentsentences in particular, should interact. There is also an interrelationship with theParole Act 2002. None of those statutory provisions are applicable to adisqualification under the Act.[16] The imposition of a term of disqualification under s 169 of the Act isdiscretionary. The nature of the discretion to be exercised in fixing a period ofdisqualification was considered by this Court in R v Collins:5 a sentencing Judge has a wide discretion to impose a disqualification withinthe total sentence, especially where he or she is satisfied that the term ofdisqualification is of a length necessary to meet the statutory principle ofdeterrence.[17] In the absence of clear statutory direction, the ordinary meaning of concurrentshould apply to the sentences of disqualification to ensure they meet the purpose ofthe Act which is the proper welfare of animals.6[18] The relevant ordinary meaning is:75 R v Collins [2008] NZCA 235 at [98].6 Animal Welfare Act, s 9.7 Oxford English Dictionary, (online ed) noting concurrent lease is a lease made before another hasexpired and so existing for part of the time side by side with the other.Running together going on side by side, as proceedings; occurring togetherThe two periods of disqualification can run together and be served concurrently in thesense they are served at the same time for the period of any overlap in their effect.That overlap expired when the first period of disqualification ended. Thereafter thesecond period of disqualification ran on and remains operative until 7 December 2026.[19] That result best meets the purpose of the Act.[20] To the extent Ms Genet is able to rehabilitate herself she may apply unders 169A for the removal or variation of the disqualification as two years has passedfrom the date the second disqualification order was imposed.Result[21] For the above reasons the application for leave to extend the time to appeal isdeclined.Solicitors:BVA The Practice, Palmerston North for Respondent