Condign sentences – a strong message to those who abuse animals
Anita Killeen reports on the first case prosecuted by the Pro Bono Panel of Prosecutors for the SPCA Auckland

On 12 February 2010, Judge Wade sentenced Paulette Taki to a total of three months’ imprisonment. Taki was also ordered to pay reparation in the sum of $3,938.13 to the Auckland SPCA and was prohibited from owning or being a caregiver for any dog pursuant to section 169 of the Animal Welfare Act 1999 for a period of five years.

Taki had previously pleaded guilty to two charges under section 12(a) of the Animal Welfare Act for: (1) failing to provide an animal with proper and sufficient food and water; and (2) failing to provide an animal with protection from, and rapid diagnosis of, any significant injury or disease (see Auckland Society for the Prevention of Cruelty to Animals v Paulette Taki (12 February 2010, District Court, Auckland CRI-2008-004-15941, Judge Wade). The maximum penalty for an offence under section 12(a) of the Animal Welfare Act is a $25,000 fine and/or six months’ imprisonment (section 25 of the Animal Welfare Act). As well as the two Animal Welfare Act charges, Taki was also sentenced on two charges of breaching a community work order.

Factual background
An SPCA inspector received information from a member of the public that a very thin dog had been found locked under a house. The finder had already removed the dog from under the house to give her water.

The inspector was shown a female tan and white Staffordshire terrier cross in an emaciated state, with her ribs, spine, hips, and pelvic bones all clearly visible. There was also obvious extreme muscle wastage over her entire body.

The finder showed the inspector the area under the house where the dog had been found. The area was littered with masses of old faeces and empty bowls.

Veterinary reports confirmed the dog was in an emaciated condition and was suffering from anaemia due to the extreme flea burden on the dog literally draining the blood from her. Her body weight when found was 10 kg, approximately half her normal body weight. The dog could barely lift her head to acknowledge the inspector’s presence.

After a regime of good quality dog food, de-worming, and de-fleaing, the dog’s condition rapidly returned to normal.

A follow-up veterinary report concluded that the clinical symptoms, laboratory findings, and subsequent rapid recovery were consistent with inadequate nutrition being the primary cause of the emaciation, and the flea burden the cause of the anaemia. Veterinary opinion also concluded that if the dog had been left under the house for another 48 hours, she would have died.

On 15 July 2008, the ownership of the dog was forfeited to the SPCA.

Purposes and principles of sentencing
The Sentencing Act 2002 requires the Court to keep in mind a number of purposes and principles when deciding on the appropriate sentence. The Court must have regard to:

• The need to hold the prisoner accountable for the harm done to the victims of the offending.
• The need to promote a sense of responsibility for, and acknowledgement of, that harm.
• The need to provide for the interests of the victims of the offending.
• The need to denounce the offending and deter others from committing the same or similar offences.
• The need to assist in the prisoner’s rehabilitation and reintegration into society.

The Court must also have regard to the following principles:

• The gravity of the offending in the particular case, including the degree of culpability of the offender (section 8(a) of the Sentencing Act). It was submitted for the SPCA that had it not been for the intervention of the finder in this case, the dog would have died. Taki was the owner of the dog, and therefore had full responsibility for her welfare.
• To impose a penalty near to the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate (section 8(d) of the Sentencing Act). It was submitted for the SPCA that this offending was within the most serious of cases for which the penalty is prescribed. The length of time the dog was neglected, and the state the dog was in when found, demonstrate the seriousness of the offending.

Sentencing approach
Judge Wade determined that a sentence of imprisonment was the only appropriate sentence, and that a condign sentence had to be passed to reflect the seriousness of the offending. Judge Wade rejected the possibility of community work being imposed, first, because Taki had breached community work orders on four previous occasions, and secondly, because it was clear this dog was not just neglected for a few days, but for a very substantial period of time. As Judge Wade stated at [10] of his sentencing notes, “This was a poor dog within 48 hours of dying, due entirely to your absolute total neglect.”

The Court of Appeal in R v Taueki [2005] 3 NZLR 372 establishes the orthodox approach to sentencing: the Court must first set the starting point based on the features of the offending, and then adjust that starting point according to any mitigating and aggravating features relating to the offenders.

With respect to Taki, Judge Wade noted at [11]:

“In my judgment, this offence is so serious that a community based sentence is simply not appropriate even if you were personally suitable for such a sentence. In this type of offending in particular, there is a need for general deterrence so that dog owners may know that they have serious responsibilities to look after their animals and that if they do not do so, condign punishment will follow as a matter of course and, if I were to deal with this case simply by way of the imposition of a community based sentence, in my judgment there would be no feature of general deterrence. I repeat, because of your personal track record of failing to comply with community based sentences, even if that were an available option, in theory it would be absolutely inappropriate in your case.”

Judge Wade had regard to the need to impose the least restrictive outcome, but in his view, the outcome could not be anything less than a term of imprisonment. He selected a starting point of three months’ imprisonment concurrently on each of the animal welfare charges, but reduced this to two months (concurrent with each other), in light of Taki’s early guilty plea and her lack of previous convictions in relation to animals. With respect to the two charges of breaching community work orders, Taki was sentenced to one month’s imprisonment on each of the two charges to be concurrent with each other, but cumulative to the two months imposed for the animal welfare offending, making a total sentence of three months’ imprisonment.

By way of ancillary orders, Judge Wade ordered Taki to pay reparation to the Auckland SPCA in the sum of $3,938.13. Judge Wade noted at [14]: “It is plain from the circumstances of your offending that you are totally unfit to have control of animals and I make an order under [section] 169 disqualifying you from having any right of ownership of any dog for a period of five years.”

Comment
As submitted for the SPCA at the sentencing hearing, a term of imprisonment will send a strong message to the community that this type of cruelty to animals is not acceptable. It is hoped such a sentence will prevent future offences. David Jones QC stated:

“Owners of animals have a unique responsibility as their obligations to provide their pet with the necessaries of life is comprehensive. The animal relies absolutely on their owner for their very survival. The annual list of shame over the last seven years shows that, if anything, this type of offending has become more prevalent in both the Auckland region and nationally. For this reason, and those above, the Informant submits that a tough stance needs to be taken with respect to this type of offending.”

“The sentencing remarks of Judge Wade indicate a growing awareness by the judiciary of the seriousness of animal cruelty, and a willingness to hand down sentences that will deter this type of unacceptable offending in the future,” says Bob Kerridge, Executive Director SPCA Auckland. “It is timely indeed that the Government has responded to Simon Bridges’ Private Members Bill to increase penalties for wilful ill treatment by presenting to the House a proposal to increase animal offending across the board, and this will provide the judiciary with the ability to issue more appropriate sentences to those who abuse animals. The Auckland SPCA is fortunate to have its impressive Pro-Bono Panel of Prosecutors who will assist the Courts in reaching fair justice for animals.”

This case was prosecuted for the SPCA Auckland by David Jones QC (from the Pro-Bono Panel of Prosecutors for the SPCA Auckland), with assistance from Miss Erin McGill (from the Russell McVeagh Briefing Panel).

Anita Killen is the Chief Prosecutor of the Serious Fraud Office, and is on the Board of Directors for SPCA Auckland.