KONDRATYEVA v ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SPCA) [2022] NZHC 449

KONDRATYEVA v ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SPCA) [2022] NZHC 449 [14 March 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2021-404-000296[2022] NZHC 449BETWEEN TATYANA KONDRATYEVAAppellantAND ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SPCA)DefendantHearing: 4 October 2021, 9 and 16 November 2021Appearances: D A Kemp for Appellant SBC O'Connor for RespondentJudgment: 14 March 2022JUDGMENT OF DUFFY JThis judgment was delivered by me on 14 March 2022 at 2.15 pm.Registrar/ Deputy RegistrarSolicitors:Crown Solicitor, AucklandD A Kemp, Barrister, Auckland[1] Tatyana Kondratyeva was disqualified under the Animal Welfare Act 1999 (the Act) from owning or exercising authority in respect of animals for 10 years commencing 19 December 2014 (the original disqualification order). 1 On 12 February 2021, she was convicted of breaching this disqualification. 2 She was subsequently sentenced to two years' intensive supervision by Judge Fitzgibbon who also made orders for forfeiture of three animals (the forfeiture order) 3 and further disqualification (the further disqualification order) 4 .[2] Ms Kondratyeva now appeals against the forfeiture order and the further disqualification order on the grounds that:(a) the Judge had no authority to order forfeiture and if she did it was wrong of her to make this order; and(b) the Judge was wrong to make a further disqualification order.Ms Kondratyeva does not challenge the sentence of intensive supervision.[3] The appeal is opposed by the Royal New Zealand Society for the Prevention of Cruelty to Animals Incorporated (SPCA).FactsThe earlier offending and the original disqualification order[4] On 15 December 2014, Ms Kondratyeva was found guilty and convicted of two charges under ss 12(a) and 12(b) of the Act by Judge Andrée Wiltens in the District Court. 5 In summary, Judge Andrée Wiltens found that Ms Kondratyeva failed to meet the physical, health and behavioural needs of 50 cats. Judge Andrée Wiltens also1 Animal Welfare Act 1999, s 169.2 Section 169B.3 Section 172. The three animals were seized by the Royal New Zealand Society for the Prevention of Cruelty to Animals Incorporated (SPCA) on 13 September 2018 during a search of the property.4 Section 169.5 R v Kondratyeva DC Auckland CRI-2011-044-4684 15 December 2014; upheld by the Court of Appeal in Kondratyeva v R [2015] NZCA 266.found that Ms Kondratyeva failed to alleviate unreasonable or unnecessary pain or distress of 22 cats.[5] On 19 December 2014, Judge Andrée Wiltens sentenced Ms Kondratyeva to 12 months' supervision and 125 hours of community work.6 Pursuant to s 169 of the Act, he also disqualified Ms Kondratyeva from owning or exercising control over any animals for 10 years.The present offending[6] On 20 February 2019, Kevin Plowright, a senior animal welfare inspector at the SPCA, filed charges under s 169B of the Act against Ms Kondratyeva for breach of the disqualification order. On 12 February 2021, the charges were subsequently amended to one representative charge to which Ms Kondratyeva pleaded guilty. The was read out as follows:Ms Kondratyeva, you are charged that between 16 December 2014 and 13 September 2018 at Auckland in contravention of a disqualification order made under s 169(3) of the [Act] you were the owner of and/or exercised control over animals.The summary of facts supporting this charge is summarised below.Summary of facts[7] Ms Kondratyeva has numerous aliases, which she has used when taking animals to veterinary clinics. These are: Tanya Kondrat, Tanya Ondrat, Tanya Knauss, Tania Kondrat, Tasha Drakon, Tania Knauss and Tasha Knauss.[8] Following the sentencing on 19 December 2014 for the earlier offending, Ms Kondratyeva entered into a relationship with Ron Knauss and they moved onto a property in Whangaripo.[9] On 7 August 2018, Inspector Plowright visited the Whangaripo property. During his inspection, Inspector Plowright observed more than thirty roosters and6 R v Kondratyeva DC Auckland CRI-2011-044-4684, 19 December 2014; upheld by the Court of Appeal in Kondratyeva v R [2015] NZCA 266.chickens free roaming over the property, three cats inside the house and more than 60 calves in the far paddock on a neighbouring property. He saw bird cages and a possum trap, bags of poultry feed and calf feed in a green shed in the front yard.[10] Inspector Plowright questioned Mr Knauss, who said that their neighbour, Greg Partington, had agreed that Mr Knauss would rehome some of his bobby calves. Mr Knauss said one of the calves had died and was still in his backyard, but the 60 calves in the far paddock had nothing to do with him. Inspector Plowright saw the dead calf, which had been left with its stomach as if an autopsy had been undertaken.[11] Ms Kondratyeva then came out of the house and told Inspector Plowright the dead calf did have a post-mortem. She said that earlier a vet had visited the property and attended to two sick calves and the dead calf on three occasions. However, she refused to tell Inspector Plowright the name of the vet.[12] Mr Knauss told Inspector Plowright he owned all the animals on the property. In response to a query about the cats on the property, Ms Kondratyeva said there were no cats there, and Mr Knauss said there were only some stray cats that "hang around".[13] Inspector Plowright offered Ms Kondratyeva a copy of Judge Andrée Wiltens' sentencing notes, which Ms Kondratyeva declined, saying that she was aware of her sentence.[14] On 13 September 2018, the SPCA executed a search warrant at the Whangaripo property. During the search, the SPCA located documents relating to animals in the name of Tatyana Kondratyeva or one of her known aliases. The SPCA found dead birds, mummified rats and mice, and a dead possum that had been left in a cupboard. Injectable sedatives for animals were also found at the property.[15] While at the property the SPCA seized three cats (a ginger and white neutered male named "Ginger", a ginger and white neutered male cat named "Rizhik"7 and a tabby and white neutered male cat named "Mercury") and a chicken named "Honey". The three cats and Honey were all located inside the house during the search warrant.7 Rizhik died sometime after he was seized and is therefore longer covered by the forfeiture order.There was also evidence that Ms Kondratyeva had taken the cats at various times to veterinary clinics seeking treatment for them over a period of 2014 to 2018.[16] Between 2016 and 2018 Ms Kondratyeva had also taken a variety of animals (kittens, roosters, seagulls, tui and other animals) to a range of veterinary clinics to seek veterinary treatment for each animal.[17] Further, sometime in or around July 2018, Ms Kondratyeva offered to rehome 20 of Mr Partington's calves. She acquired these calves around 1 August 2018. She arranged for the calves to live with another neighbour, but Ms Kondratyeva would feed and care for them. She told the neighbour her name was "Tasha". Ms Kondratyeva took two sick calves to her property to care for them. On 4 August 2018, the neighbour realised Ms Kondratyeva's real name and came to collect the sick calves. One of the calves had died. However, Ms Kondratyeva would not give the neighbour the calves, particularly the dead calf. Ms Kondratyeva said she would bury the calf (but she had not so when the SPCA inspected the property on 7 August 2018). Ms Kondratyeva was found in possession of antibiotics that had not been provided to her by veterinarians.[18] Ms Kondratyeva had also contacted various veterinary clinics, sanctuaries and animal-related organisations under different aliases in regard to her calf rescue "project".Entry of guilty plea[19] The guilty plea was entered on 12 February 2021 before Judge Aiken. A transcript of what occurred at the hearing records that the charges were replaced with one representative charge. 8 The wording of the charge is set out at [6] above. Because the basis on which the guilty plea was entered has become the subject of dispute on appeal, I obtained a transcript of the hearing on 12 February 2021 and the sentencing on 9 June 2021.8 Transcripts of the entry of plea hearing before Judge Aitkins and the sentencing before Judge Fitzgibbons were sent to counsel after the appeal hearing, attached to my minute: Kondratyeva v SPCA HC Auckland CRI-2021-404-296, 20 October 2021.[20] The transcript of the hearing on 12 February 2021 shows counsel discussed the reduction of the date range with the Judge and the fact there was to be one representative charge which referred generally to "animals". An amended summary of facts was in the process of being prepared. It was not available to hand to Judge Aitken, but it was to be filed later that day. Counsel advised Judge Aitken they had reached agreement on the amended summary date range for the offending, which read between 16 December 2014 and 13 September 2018. Mr R Mansfield 9 who was then acting for Ms Kondratyeva pointed out to the Judge that although the commencement date for the offending was the day after 15 December 2014, which was the day when Ms Kondratyeva was convicted of the offending for which she was sentenced by Judge Andrée Wiltens, the offending as disclosed in the amended summary of facts would cover a shorter time span than from 16 December 2014 to 13 September 2018.[21] The charge as expressed in [6] above was read to Ms Kondratyeva and she pleaded guilty to it. There is nothing in the recorded exchange between Mr Mansfield and the Judge to suggest that Ms Kondratyeva had expressly reserved the basis of her acceptance of guilt to her being no more than the person in control of the subject animals. Nor is there anything to suggest there was any remaining dispute between the SPCA and Ms Kondratyeva about the contents of the amended summary of facts on which the guilty plea was entered. In fact, Mr Mansfield confirmed that there was agreement on the summary of facts.The sentencing decision[22] Judge Fitzgibbon sentenced Ms Kondratyeva. 10 The sentencing traversed Ms Kondratyeva's prior offending, which had resulted in the original 10 year disqualification order. The Judge noted that Ms Kondratyeva accepted the SPCA's summaries of facts for earlier offending and the current offending. The Judge also noted that Judge Andrée Wiltens had ordered forfeiture of the cats on a previous occasion and had chosen to sentence Ms Kondratyeva to community work.9 In June 2021 Mr Mansfield was appointed Queens Counsel. He is an experienced criminal barrister and there has been no suggestion in the appeal that he acted in error.10 Auckland SPCA v Kondratyeva [2021] NZDC 12273.[23] Turning to the recent offending, the Judge commented that Ms Kondratyeva had breached the disqualification order "almost immediately after it was made".11Various expert reports on Ms Kondratyeva's mental state were available to the Judge. The Judge referred to a clinical assessment by Dr Rogers, a clinical psychologist, who described Ms Kondratyeva as having a hoarding disorder and obsessive compulsive personality disorder. There was also a report by Dr Chua that was issued pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.[24] Mr O'Connor, for the SPCA, submitted that an appropriate starting point was 12 months' imprisonment but acknowledged a community-based sentence would be ultimately appropriate. Mr Smith who acted at sentencing for Ms Kondratyeva submitted that a starting point of community-based sentence or a short term of imprisonment was more suitable.12 Judge Fitzgibbon noted that there were no tariff cases regarding breaching the Act. She recognised that the main aims for the SPCA were for the disqualification order to be complied with and for a forfeiture order to be made in relation to the animals that had been seized by the SPCA.13[25] Judge Fitzgibbon considered Ms Kondratyeva's breaches of the first disqualification order to be aggravating features of the offending, as was the use of multiple aliases to hide the multiple breaches of this disqualification order.14 The Judge noted that a mitigating factor was that Ms Kondratyeva had not neglected the animals; she had been taking them for veterinary attention.[26] Regarding Ms Kondratyeva's personal circumstances, the Judge reviewed Dr Chua's report, which referred to other expert opinions of Dr Amanda Renfree and Dr Olivera Djokovic that Ms Kondratyeva does not suffer from a major mental illness. The Judge agreed with the SPCA that a sentence of intensive supervision with special conditions would address Ms Kondratyeva's mental health and behavioural issues.11 At [7].12 The identity of counsel for Ms Kondratyeva is taken from the transcript of the sentencing before Judge Fitzgibbon. This shows Mr Smith to have been present and to have appeared on behalf of Mr Mansfield. The formal sentencing notes refer to Mr Mansfield as her counsel. I consider the transcript provides the more accurate record of who appeared at sentencing.13 Auckland SPCA v Kondratyeva, above n 10, at [9].14 The summary of facts records the breaches commencing in 2015 when Ms Kondratyeva took a cat named Mercury to Lynch Veterinary Clinic on 30 January 2015, which is one month following the disqualification order made by Judge Andrée Wiltens.[27] In considering whether to impose a further disqualification order, the Judge acknowledged Ms Kondratyeva's concern with the order. However, Ms Kondratyeva's failure to comply with the earlier disqualification order caused the Judge to think a further 10 year disqualification order was required. The Judge noted that Ms Kondratyeva would have the opportunity to seek review of the order.[28] The Judge therefore made a further 10 year disqualification order, and also made an order for forfeiture in relation to the seized animals.Approach on appeal[29] Section 250 of the Criminal Procedure Act 2011 provides that this Court must allow an appeal against sentence if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.15 In deciding whether to impose a different additional sentencing order, this Court does not substitute its own view for that of the original sentencing Judge.16 Rather, it must be shown that the sentence imposed is manifestly excessive or wrong in principle.Grounds of appeal[30] Mr Kemp, on behalf of Ms Kondratyeva, submits the following grounds of appeal. First, the Judge erred in respect of the disqualification order by failing to consider (a) relevant mitigating factors to the offending, such as Ms Kondratyeva's lesser culpability in controlling the animals (rather than owning or neglecting them) and (b) the increased severity of further disqualification on Ms Kondratyeva given matters addressed in her psychological reports. Second, the Judge erred in ordering forfeiture by failing to consider (a) the views of Mr Knauss, who was the owner of the animals and (b) matters set out in Mr Knauss' affidavit which clarify the limited control Ms Kondratyeva had over the animals at the relevant time. Third, the additional orders' combined effect renders the sentence manifestly excessive in Ms Kondratyeva's particular circumstances. An appropriate sentence would be intensive supervision with community work and an order to return the pets to Mr Knauss' care.15 Criminal Procedure Act 2011, s 250(3).16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].SubmissionsAppellant's submissions[31] Mr Kemp submits the Judge erred in respect of the forfeiture order by failing to consider the views of Mr Knauss that were set out in his affidavit before the Court before making the order. Mr Kemp further submits the order should be quashed and the animals should be returned to Mr Knauss. Mr Kemp contends that had the Judge appropriately considered Mr Knauss' affidavit alongside other considerations, forfeiture would not have been ordered.[32] Referring to Mr Knauss' affidavit, Mr Kemp says that it demonstrates Mr Knauss was the owner of the animals. He says Mr Knauss paid for the animals' upkeep and the animals lived on his property. He says Ms Kondratyeva's breaches were in relation to her temporarily controlling the animals.[33] Mr Kemp says that s 172 is clear that orders for forfeiture can only be made where the offender is the relevant owner of the animal/s. He contends that s 169B criminalises both ownership and exercising control over animals when subject to s 169 disqualification orders. He argues that Ms Kondratyeva's guilty plea and conviction were on the basis that she had unlawful control of the animal, not ownership. Accordingly, if the Judge accepted Ms Kondratyeva "merely controlled" the animals, forfeiture under s 172 was unavailable.[34] In the alternative, Mr Kemp submits that s 24(2) of the Sentencing Act 2002 required the SPCA to disprove Mr Knauss's assisted ownership of the animals and the SPCA should have requested a disputed fact hearing. It was incumbent on the Judge to adjourn the matter to clarify the dispute under s 24 of the Sentencing Act or to consider Mr Knauss' affidavit alongside relevant prosecution evidence and then to determine the matters on the papers. Here the Judge erred, because she failed to pursue either option.[35] In regard to the disqualification order, Mr Kemp submits Ms Kondratyeva had a lesser culpability than comparable cases. He refers to two authorities De Vere vAuckland SPCA and SPCA Waikato v Genet.17 In those cases, further disqualification was warranted because the cases involved further animal neglect and ownership. Mr Kemp submits those cases are distinguishable because Ms Kondratyeva's breaches were in relation to instances of temporary control with good intentions of caring for the animals.[36] Mr Kemp further submits that the matters canvassed in Dr Rogers' report demonstrate that further disqualification was inappropriate. The Judge failed to consider the "extraordinary significance" that further disqualification will have on Ms Kondratyeva. He argues that whilst the Judge appropriately acknowledged Mr Rogers' diagnosis that her prior traumatic experiences have caused her animal hoarding disorder, the Judge did not consider the heightened hardship she experiences without the ability to care for animals. Mr Kemp accepts the original disqualification order appropriately protects animals from the harmful effect of Ms Kondratyeva's condition while she seeks rehabilitation. However, he submits the Judge's decision gives insufficient weight to the effect of a further disqualification order on her.[37] Mr Kemp contends that, as Ms Kondratyeva is subject to psychological treatment for 24 months as part of the intensive supervision sentence, the intensive supervision, coupled with the original disqualification order appropriately addresses concerns for other animals' safety. He says further disqualification was unnecessary and manifestly excessive. He proposes a sentence of 80 hours' community work would satisfy the need for a punitive element to Ms Kondratyeva's sentence.Respondent's submissions[38] Mr O'Connor, for the SPCA, submits that no material error has been identified in the sentencing Judge's decision, nor should a different outcome have resulted. Mr O'Connor submits the appeal should be dismissed.[39] In respect of Mr Kemp's submissions on the forfeiture order, Mr O'Connor submits that a forfeiture order was open to the sentencing Judge because Ms Kondratyeva was correctly regarded as an owner of the seized animals. Mr O'Connor17 De Vere v Auckland SPCA [2019] NZHC 2355; and SPCA Waikato v Genet [2016] NZDC 26065.submits that the Act does not define "owner" exhaustively, other than to state it is someone who "owns" an animal and specifically includes the parents of a person under the age of 16 who owns an animal. He submits ownership may be established by matters of fact, such as whether an animal has been in a person's possession and whether they have exercised control over that animal on a permanent or semi- permanent basis.18 He notes that s 2 of the Act, and the Act generally, do not compel the conclusion that two or more people cannot be the co-owners of an animal at the same time.[40] Mr O'Connor relies on the fact that during the relevant times Ms Kondratyeva has represented herself as "the owner and person in charge" of the animals which she took to a number of veterinary clinics. Ms Kondratyeva authorised the treatment for the animals, not Mr Knauss. Two of the cats subject to the forfeiture order (Ginger and Mercury) were in Ms Kondratyeva's permanent care on the Whangaripo property from early 2015 until they were seized in September 2018.[41] Mr O'Connor refers to the occasion when the SPCA inspected the Whangaripo property in August 2018. There, Mr Knauss made the bare assertion that all animals were owned by him while also attempting to deceive the inspector by saying there were no cats on the property, only stray cats. Mr O'Connor also refers to Mr Knauss's assertions that he had an agreement with the Mr Partington to rehome some bobby calves. However, Mr O'Connor submits it was Ms Kondratyeva that approached the neighbour and brokered that agreement. Mr O'Connor submits those misrepresentations cast doubt on the veracity of Mr Knauss' claim that he owns the animals.[42] Mr O'Connor also submits that it was open to the Judge to consider Ms Kondratyeva an owner of the seized animals. He contends that Ms Kondratyeva came into possession of them at the same time as Mr Knauss, lived with them for over three years, took responsibility for all medical trips and treatment, and exercised control over them on a permanent basis with many other animals. He submits that the18 Neil Wells and M B Rodriguez Ferrere Wells on Animal Law (online ed, Thomson Reuters, Wellington, 2018) at [5.8.4].clear reason Mr Knauss asserts ownership over all the animals is to avoid the adverse consequences of breaching the disqualification order for Ms Kondratyeva.[43] Overall, Mr O'Connor submits the Judge did not err in ordering the forfeiture order of the animals.[44] In response to Mr Kemp's submission that the Judge should have adjourned sentencing to clarify the facts or consider the affidavit of Mr Knauss, Mr O'Connor argues that the Judge concluded Ms Kondratyeva met the definition of "owner" of the animals under the Act. Therefore, the Judge was not obliged to set out why she placed less or no weight on Mr Knauss' evidence or adjourn the matter for further consideration.[45] Regarding the disqualification order, Mr O'Connor submits the Judge considered all the factors required by the Act. He submits there was no material error in reaching the conclusion that a further term of disqualification was appropriate. Mr O'Connor contends that the Judge was alive to the significance of a further term of disqualification when she commented: 19I note your concern about a further disqualification order. However, from the summary of facts, it appears that the original disqualification order has not been complied with from almost day one, and so I do note what you say about your age, but a further disqualification order is imposed for 10 years. You have got the ability to seek a review of that order, but unless it is complied with, it is very unlikely that the disqualification order will be altered.[46] Mr O'Connor submits it is clear the principal rationale for the further disqualification order was that the original order was effectively ignored by Ms Kondratyeva. He contends that the same risk Ms Kondratyeva posed to animals and the reasons for the original order remain relevant. He further contends that the Judge properly identified that it would be available to Ms Kondratyeva to apply to have the disqualification order altered in the future, but she would first need to demonstrate compliance before such alteration was made. Mr O'Connor submits that the length of the order is in line with comparable authorities and should not be disturbed.19 Auckland SPCA v Tatyana Kondratyeva, above n 10, at [19].[47] In addition, Mr O'Connor submits that the Judge properly identified the mitigating factors of Ms Kondratyeva's offending and personal circumstances in recognising the absence of neglect and various psychological factors discussed by the doctors in the relevant reports. Nonetheless the Judge reached the view that there was reason for the disqualification order. Thus, no error in her approach is made out.Discussion[48] I shall deal with the forfeiture order first. The appeal raises two issues: (a) did the Judge have authority to make the order; and (b) if she did, was it appropriate to do so? Whether the Judge had authority to make the forfeiture order turns on whether Ms Kondratyeva is an "owner" of the seized animals for the purposes of the Act. The answer to this question is not straightforward in this case because the Act does not provide a clear-cut definition of "owner".What is the meaning of "owner" under the Act?[49] The Act extends "owner" to mean the parent or guardian of a person under the age of 16 years who owns the animal and lives with and is dependent on the parent or guardian. Otherwise the word "owner" has its ordinary meaning. It is therefore necessary to look at the ordinary meaning of this word how it has been applied to animals under the common law.[50] A dictionary definition of "owner" is a person who owns something. 20 In a legal sense, ownership may be legal or beneficial. Ownership is not limited to one person but can include joint owners.[51] The common law treats animals as property that is capable of being owned by persons. 21 This view is drawn from ancient Roman law. 22 Animals could be the object of acquisition, transfer and theft amongst other things, and could also give rise to various rights and liabilities. 23 Roman law distinguished between wild animals and20 Graeme Kennedy and Tony Deverson The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005).21 Deborah Cao, Katrina Sharman and Steven White Animal Law in Australia (2nd ed, Law Book Company, Sydney, 2015) at [3.50].22 At [3.80].23 At [3.50].domestic animals, and this distinction has been maintained under the common law view of animals as property.24 Here, the animals subject to the forfeiture order (two cats and a hen) are domestic animals. As a general proposition, at common law domestic animals are said to belong to someone. This is in contrast with wild animals which are owned by no-one.25[52] Thus, domestic animals are regarded as the property of humans whether they are companion animals, animals used in scientific research, animals used in entertainment and sports, or farm animals.26 As part of these property rights, the owner of domestic animals can maintain a claim for their detention or conversion or for trespass to goods in respect of them, and retains property in them if they stray or are lost.[53] However, animals are clearly treated differently than inanimate property under the law. For example, in the family law context, household pets are "family chattels" but the welfare and best interests of the pet are the primary considerations for the court when deciding which partner it should go with during separation. 27 The purpose of the Act is to "recognise that animals are sentient". 28 The Act is not concerned with a property rights regime for animals, rather ensuring that animals are treated properly both by the people to whom they belong and to others who may temporarily be in charge of them. 29 In this context, "owner" properly means the person/s ordinarily responsible for the welfare of an animal.[54] The New Zealand Text Wells on Animal Law states that: 30Ownership can be established by matters of fact: the person has purchased the animal and therefore is the owner of the animal; an animal has been in a particular person's possession and that person has exercised control over that animal on a permanent or semi-permanent basis.24 At [3.60].25 At [3.110].26 At [3.110].27 Property Relationships Act 1976, s 2 definition of "family chattels" para (a)(vi); O'Brien v Tuer DC Waitakere FP 090-327-03, 9 September 2003; and Sydney v Sydney [2012] NZFC 2685.28 Animal Welfare Act 1999, long title subs (i).29 See Animal Welfare Act 1999, long title subs (ia).30 Neil Wells and M B Rodriguez Ferrer Wells on Animal Law (2nd ed, Thomas Reuters, Wellington, 2018) at [5.8.4].[55] Further insight into the meaning of "owner" under the Act can be gained from contrasting this term with the meaning of a "person in charge" of an animal. Sections 10 and 11 of the Act respectively impose obligations on the "owner" and the "person in charge of" an animal to ensure the physical, health and behavioural needs of that animal; and to alleviate pain or distress if the animal is ill or injured. The Act defines "person in charge" as including a person who has the animal in that person's possession or custody, or under that person's care, control or supervision. 31[56] Wells notes that the use of "persons in charge" is designed to extend responsibility for an animal's welfare to those who do not own the animal but are nonetheless responsible for the animal for some reason. The Act thus prevents the pernicious effect of escape from liability simply by virtue of lack of ownership. Wellsstates that a person in charge status can change as circumstances change. For example, a particular family member may be primarily responsible for the welfare of a companion animal, and thus be considered its owner, whereas other members of the family are responsible as persons in charge. Additionally, person in charge can be applied to persons who have responsibility for the welfare of an animal on a temporary basis. For example, where the companion animal is left for treatment at a veterinary clinic, then the veterinarian and all clinic staff become the persons in the charge.[57] In Kunicich v Royal Society for the Prevention of Cruelty to Animals, this Court determined how to approach who is a person in charge. 32 Mr Kunicich argued that he was not a person in charge of neglected sheep as they were in the sole ownership and control of his wife. This was rejected by the Court which found that he, by being on the property where the sheep were kept, and with his farming knowledge, was someone who had assumed control of the sheep because there was no one else to do so, it being clear to the Court that his wife knew nothing about farming. This Court found that who is the person in charge of an animal is a factual question that is to be decided on the evidence before the trial judge, and in that case the trial judge was properly satisfied that there was ample evidence to show Mr Kunicich was the person in control.31 Animal Welfare Act 1999, s 2 definition of "person in charge".32 Kunicich v Royal Society for the Prevention of Cruelty to Animals HC Whangarei CRI-2008-488- 67, 13 October 2009.[58] Another example of what is described in Wells as an expansive approach to the meaning of "person in charge" is taken from Ms Kondratyeva's earlier appeal against her conviction. In Kondratyeva v R Ms Kondratyeva argued that she was not the person in control of the numerous cats on a property where she had been living after the property owner had served her with a trespass order and required her to move out of the property.33 She argued that because she was trespassed from the property she no longer owned or was in charge of the cats and did not have sufficient access to them to care for them. The Court of Appeal rejected that argument dismissing her appeal, finding there were numerous factual connections that she still retained to the property. In this regard the Court of Appeal stated: 34[21] First, Ms Kondratyeva accepted that she had brought all 50 cats onto the property. There was no dispute that prior to the Trespass Notice she was the owner, and was in charge of the cats. Secondly, there was evidence on which the Judge could reasonably conclude that Ms Kondratyeva retained ownership and charge of the cats after the Trespass Notice, and that she went onto the property during the period of the charges:(a) Ms Kondratyeva produced a bundle of veterinary invoices. All were addressed to her. Although all but one related to dates preceding service of the Trespass Notice, one was dated 31 August 2010, it was addressed to Ms Kondratyeva, and it was noted as having been paid.(b) On 17 December 2010, at about 2:00 pm, a SPCA dispatcher received the initial call from the Police officers. She recognised Ms Kondratyeva's name as a member of the Cat Coalition Group. She then telephoned Ms Kondratyeva, to ask who would be attending to the cats, as Ms Kondratyeva had been removed from the property. She said that Ms Kondratyeva said that she would be allowed onto the property to clean and feed the cats, and asked for any inspection to be in two weeks' time, as she wanted to clean the property and finish building a fence at the property.(c) When the SPCA inspectors arrived at the property at about 2:20 pm, Ms Kondratyeva was inside the premises. The inspectors' evidence was that she came to the door after Mr Cruickshank answered it, and she was observed to have wet hair, with shampoo evident in it.(d) Ms Kondratyeva had and eventually produced to the inspectors the key to a padlocked gate to the downstairs area of the premises.(e) When the inspectors returned to the property on 18 December 2010, Ms Kondratyeva arrived shortly thereafter, and again produced the key to the locked area.33 Kondratyeva v R [2015] NZCA 266.34 At [21].(f) Ms Kondratyeva was interviewed under caution on 22 December 2010, and acknowledged that she owned and was the caregiver for all of the cats.(g) Ms Kondratyeva said in an affidavit affirmed on 26 April 2011 that she had taken the cats to the property, and that they were in her care.The Court of Appeal concluded this evidence was sufficient for the Judge at first instance to consider her "the owner and/or in charge of the cats".[59] Additionally, the purpose of the specific forfeiture order provision should be considered. The court convicting an offender under the Act may order forfeiture "if it thinks it desirable for the protection of the animal or animals in question".35Additionally, the court may order the forfeiture of the animal/s to which the charge relates and of which the person is an owner, and any other animals owned by the offender. Clearly the purpose of the section is to protect animals by removing them from the care of persons who are not fit to be responsible for their welfare. A narrow interpretation of "owner" in this section would defeat its very important purpose.[60] The Courts have given an expansive meaning to "person in charge" that is informed by all the relevant facts. I consider that the same should be done for "owner". There is no legal requirement for registration of ownership for all domestic animals (for example, cats), and they can come into the permanent or long-term possession of persons in variable ways. A strict property-rights approach is therefore inappropriate in the context. An expansive and factually informed view of "owner" is required for the Act to operate effectively.[61] At the hearing Mr O'Connor argued that what can start out as having control of an animal can over time turn to ownership. In this sense Mr O'Connor is arguing that anyone who is seen to have permanent rather than temporary control of an animal can become its owner under the Act. I agree. The degree and temporality of responsibility and control will be relevant to the assessment.35 Animal Welfare Act 1999, s 172(1)(a).Was Ms Kondratyeva an owner of the seized animals?[62] Here the amended summary of facts sets out a factual scenario that is consistent with Ms Kondratyeva being the owner of the seized animals. First, the seized animals were found inside the house where Ms Kondratyeva resides with her partner. This is consistent with the animals being companion animals that are ordinarily in the care of Ms Kondratyeva, Mr Knauss, or both. Second, there are the multiple documented visits to veterinary clinics between 2015 and 2018 with the seized cats where on each occasion Ms Kondratyeva has been recorded as the owner and person in control of those cats. This strongly suggests that she has represented herself to those clinics as the owner of those animals, which is conduct that is consistent with her actually being their owner. It demonstrates that at the very least Ms Kondratyeva is considered one of the owners.[63] Third, the amended summary of facts does not only refer to the seized animals. Some of the other animals include the calves which the SPCA inspector found on the property. These calves were owned by a neighbour but under the care of Ms Kondratyeva. Some of the other animals she took to veterinary clinics included seagulls and tui, which are wild birds and therefore are legally owned by no one. 36The reference to a wide variety of animals in the amended summary of facts together with the single representative charge required the charge to refer to her as someone who was the owner and/or the person in care of the animals. It is inferentially clear from the description of the offending in the amended summary of facts that for some animals she was the owner and for others she was no more than the person in control. Moreover, the description of the offending relating to the seized animals is consistent with Ms Kondratyeva being the owner of those animals.[64] Then there are the circumstances in which the guilty plea and conviction were entered. Close to the date of the trial, Ms Kondratyeva chose to change her plea following legal advice from Mr Mansfield. Had she wanted to reserve her position and argue she was guilty solely as someone who was in control of the seized animals she could have done so. However, the recorded exchanges between her then counsel36 There is no absolute property in wild animals while living: S McCabe and M Jur Laws of New Zealand Animals (online ed) at [10].Mr Mansfield and Judge Aiken on the day the guilty plea was entered do not show the plea being entered on that basis. It was for Ms Kondratyeva to make clear to the Court and to the SPCA any reservations she sought to place on her change of plea. The move to a representative charge and an amended summary of facts gave her and Mr Mansfield ample opportunity to take that step had that been their intent.[65] Whether the SPCA would have been prepared to accept a guilty plea based on Ms Kondratyeva only being a person in control of animals is another matter. The SPCA have been holding the seized animals since their removal from the subject property in September 2018. As an entity that regularly brings prosecutions under the Act, it can be expected to know when forfeiture is legally possible and when it is not. It knew it was holding seized animals and it wanted a forfeiture order. Given those circumstances it was hardly likely to agree to accept a guilty plea based on Ms Kondratyeva only being a person in control of the animals. That the SPCA continued to seek a forfeiture order is conduct consistent with the guilty plea and conviction being for both ownership and control of animals.[66] I have considered whether the fact the amended summary of facts was not filed in Court until after the guilty plea might change matters. But I find it does not. The transcript of the hearing before Judge Aiken reveals that defence counsel had reached a satisfactory agreement with the prosecution and there was a clear mutual understanding at the time the plea was entered as to what the amended summary of facts would say. Mr Mansfield expressly assured Judge Aiken of this.[67] Accordingly, I find there is nothing to support Mr Kemp's submission that the change of plea to guilty was only entered on the basis Ms Kondratyeva was a person in control of animals. This submission is rejected. Nor do I accept Mr Kemp's supplementary submissions which were made in response to the transcript of the hearing before Judge Aiken being circulated to counsel. Mr Kemp argues that this transcript does not clarify the issue of ownership and that the charge as put to Ms Kondratyeva was ambiguous. The transcript makes it clear there were no substantive changes to the amended summary of facts, which were to be filed later that day. The summary of facts set out a factual narrative that is clearly consistent with Ms Kondratyeva being the owner of the domestic animals found on the property whereshe lived and the person in control of the farm animals expressly identified as belonging to another person and the wild animals she took to the various veterinary clinics. It cannot be read any other way. Taken together with the single representative charge and the absence of any reservation by Ms Kondratyeva or her counsel Mr Mansfield regarding the issue of ownership, there is no question that Ms Kondratyeva pleaded guilty on the basis she was the owner of the seized animals.[68] At the sentencing, which was before a different Judge and with Ms Kondratyeva now represented by Mr Smith there appears to have been an opportunistic attempt to argue that Ms Kondratyeva was not the owner of the animals on the subject property. This is apparent from reading the transcript of the sentencing and from the written submissions Mr Smith filed for the sentencing. This attempt was properly disregarded by Judge Fitzgibbon because Ms Kondratyeva had plead guilty to the accepted summary of facts.[69] At sentencing Mr Smith also sought to rely on an affidavit sworn by Mr Knauss in which he claimed to be the owner of the animals. 37 However, this assertion is contrary to the amended summary of facts to which Ms Kondratyeva pleaded guilty. In that summary it is recorded that Mr Knauss and Ms Kondratyeva were asked by Inspector Plowright about the cats on the property and Ms Kondratyeva said there were none while Mr Knauss said there were only some stray cats that "hang around." I consider, therefore, that it was open to Judge Fitzgibbon to disregard the affidavit of Mr Knauss insofar as he claimed to be the owner of the cats.[70] Moreover, Mr Knauss' assertion that he owns the animals found on the property does not necessarily exclude Ms Kondratyeva from being their owner as well. The affidavit of Mr Knauss, on which Ms Kondratyeva relies, states that couple had been living together since August 2016 at the property where the animals were found. The affidavit shows Ms Kondratyeva to be a permanent occupant of this property. This is relevant regarding the chicken Honey. References in the summary of facts are consistent with her being an owner of the chickens found on the property, including Honey. These references are to: (a) the chickens found at the property; (b) Ms37 The transcript incorrectly spells Mr Knauss's name as Mr Nels.Kondratyeva's permanent occupation of this property and (c) her taking chickens to veterinary clinics.Conclusion on the forfeiture order[71] I am satisfied there was no error at the sentencing regarding the availability of the jurisdiction to make forfeiture orders. Judge Fitzgibbon correctly recognised Ms Kondratyeva was the owner of the seized animals and treated her as such.[72] I also consider Judge Fitzgibbon was right to exercise the discretion in favour of making the forfeiture orders. Following the orders made earlier by Judge Andrée Wiltens, there was blatant disregard of those orders by Ms Kondratyeva. The circumstances described in the amended summary of facts show her to be someone who should not be able to own animals. She lacks insight into her actions and the reasons why she was earlier barred from owning animals. As to the latter she has consistently and intentionally used false names when taking animals to veterinary clinics which suggests an intent to avoid discovery. That she has attempted to counter such an outcome by reference to how animals help mitigate her psychological problems is itself indicative of why she should not be permitted to own animals in her care. The Act recognises animals as sentient beings. 38 They should not be left in the ownership of someone the Court has found to be unsatisfactory because it might be helpful to her psychological wellbeing. Her psychological problems may explain why she treats animals as she does, but that does not excuse her conduct or justify allowing her to have ownership of them.[73] Further, it is difficult to see how a forfeiture could be refused when to order the return of the seized animals to Mr Knauss would at the very least effectively place them on a property where they remained under the control of Ms Kondratyeva. This is something that is presently prohibited by the disqualification order imposed by Judge Andrée Wiltens in 2014.38 Animal Welfare Act 1999, long title.The disqualification order[74] Regarding the further 10 year disqualification order, I do not consider it manifestly excessive in the circumstances. Ms Kondratyeva has shown no insight into her offending. Nor is she remorseful. She disregarded the original disqualification order imposed by Judge Andrée Wiltens almost from the outset. She has sought to avoid the effect of the forfeiture order imposed by Judge Fitzgibbon through running an arid argument that she is not the owner of the seized animals. She has unlawfully and dishonestly sought to maintain ownership of and control over numerous animals.[75] In De Vere v Auckland SPCA, Ms De Vere was convicted under s 169B of the Act for breaching a disqualification order and two charges under ss 10 and 12(a) of the Act. 39 Ms De Vere claimed that the gravity of her offending was low and warranted a lesser sentence than imposed by Judge Grace in the District Court. A key difference between this offending and De Vere v Auckland SPCA is that Ms De Vere neglected the animals in her ownership. The vet described the animals at issue in De Vere v Auckland SPCA as "suffering from signs of neglect" with "significant behavioural issues" and were "extremely stressed and anxious".40 I acknowledge there is no evidence that the animals in the present case were neglected. Nonetheless, the same disregard for an earlier disqualification order and lack of insight into offending is present here. The circumstances Inspector Plowright found on the subject property (as described in the amended summary of facts) are unusual and disturbing. By pleading guilty and informing Judge Aiken the amended summary was agreed, Ms Kondratyeva accepted them.[76] In De Vere v Auckland SPCA in regard to the disqualification order, Lang J said that: 41Ms De Vere did not address submissions to me regarding the term of the disqualification order the Judge made under s 169(3) of the Act. The prosecution had sought a disqualification order for a period of 20 years, but the Judge considered that to be excessive. The order needed to take into account the fact that Ms De Vere had already demonstrated a disregard for the disqualification order imposed in November 2016. This fact, coupled with her lack of insight into her offending, means a significant period of39 De Vere v Auckland SPCA, above n 17.40 At [9].41 At [44].disqualification was required. Although it may be regarded as being towards the top of the available range I do not consider the ten year period the Judge imposed to be manifestly excessive.[77] In SPCA Waikato v Genet, Ms Genet was convicted of two charges of contravening an order made under s 169 of the Act and 10 charges of failing to ensure the health and behavioural needs of an animal. That order disqualified Ms Genet from owning or exercising authority in respect of animals for 10 years.[78] Judge Earwaker considered a further disqualification under s 169. The Judge said "[i]n my view it is not appropriate, given what I heard at the trial and the material before me, for Ms Genet to own or exercise authority over any animal and so in my view taking into account the factors in s 169 it is appropriate to have a further period of disqualification." 42 The same can be said of Ms Kondratyeva. In that case, Judge Earwaker imposed a further 10 year disqualification order. 43 He said the disqualification was to be concurrent with the current order of disqualification that had been imposed on 1 April 2008.44[79] Put shortly, I do not consider the combined effect of the forfeiture order and the disqualification order to be manifestly excessive. Such effect may appear stern in its totality, but it is well within the range of sentencing orders for this type of offending. There is no challenge on appeal to the sentence of intensive supervision.Result[80] The appeal against the imposition of the forfeiture order and the disqualification order imposed by Judge Fitzgibbon in the District Court is dismissed.Duffy J42 SPCA Waikato v Genet above n 17, at [21].43 At [23].44 At [23].