Published by the NZ Law Society 15 June 2017
A man who beat a four month old puppy in public, including throwing it against a car and punching the animal in the stomach 10 times, was convicted and sentenced to complete four months’ community detention and 200 hours of community work. The defendant was disqualified from owning an animal for four years and ordered to pay $566 reparation in veterinarian fees, and $600 in legal fees.
The defendant, Ezekial James Charles Wilson, pleaded guilty to three charges of animal cruelty pursuant to the Animal Welfare Act 1999 (“the Act”). He was prosecuted with two charges of ill-treating a puppy called Floyd by beating him, causing him to suffer unreasonable or unnecessary pain or distress. There is an additional charge that the defendant failed to ensure that the puppy, Floyd, received treatment to alleviate any unreasonable or unnecessary pain or distress that he suffered.
This article reviews the decision of Waikato SPCA v Ezekial James Charles Wilson  NZDC 9722 and questions whether the sentencing decision was adequate under the facts and circumstances of this particular case.
On 16 June 2016, members of the public witnessed the defendant beating the puppy, Floyd, in the Chartwell carpark. The beating occurred in the back of the defendant’s vehicle. The defendant was seen holding Floyd by his throat, shaking, chocking him, throwing him twice to the side of the vehicle, throwing him into the rear of the boot and then punching his stomach with a closed first at least 10 times. The defendant was confronted by members of the public. One of them phoned the police. The defendant said in explanation “It shit all through my car”. One of the witnesses described the defendant as pouring with sweat, looking wired and upset.
As a result of the call from a member of the public, who witnessed the defendant mistreating the puppy, the police showed up at the defendant’s home later that day. The defendant was at home. The defendant was witnessed holding the puppy in the air by his hind leg before dragging him into the house. The defendant was yelling and swearing at the puppy and explained that he was “cleaning the dog, it’s full of shit”.
A police officer who attended the defendant’s house that day stated “The puppy cowered and shivered with a fearful demeanour and when the defendant was asked to bring it out and let it stand it had trouble standing on its rear legs and looked weak and distressed with its head hung low.
When the puppy was examined by a veterinarian he was found to be lame in his left hind leg, there was a fracture and lots of issues with his joints that indicated that he had been injured at least three to four weeks earlier. The veterinarian also noted that there were three fractured ribs on the puppy’s right-hand side. The veterinarian concluded that the fractured left hind leg would have required trauma of considerable force. The leg would have been visibly swollen and in the veterinarian’s opinion the puppy would have been in considerable pain for at least three to four weeks. As to the fractured ribs the veterinarian concluded they were consistent with considerable blunt trauma. Floyd’s injured hind leg could not be saved and the leg had had to be amputated.
When the defendant was asked about why he had not sought treatment for the injured leg, the defendant minimised his conduct by saying that the puppy had either stood on something or been stood on by someone accidentally. The defendant later acknowledged that the puppy must have been in pain but he did not have the money to take him to the veterinarian for treatment.
The defendant has previous convictions for violence and was last convicted in 2012 of assault on police and was sentenced to community work and intensive supervision.
The Crown stated at sentencing that the totality of the manner in which the defendant inflicted cruelty upon the puppy, Floyd, warranted a full-time custodial sentence. The Judge noted at  that there was really no dispute between the Crown and Defence that the appropriate starting point should be approximately 6 months’ imprisonment.
The Defence explained that at the time of the offending the defendant was a methamphetamine addict, but that a lot had changed in the year following the offending. It was submitted that the defendant has now recovered from his addiction and is genuinely remorseful for his offending.
In sentencing the defendant, the Judge observed at  and :
“Your excuse for your conduct is simply untenable. The violence was repeated and as I have said completely and utterly without justification.
“Violence on a human being is not okay. Violence to an animal is equally not ok. It is never justified. You not only beat your puppy repeatedly on 16 June but you must have known he had been injured some weeks beforehand. He was in pain for that. You simply added to that pain in failing to get medical attention. Your conduct was cruel, it was callous and it was indifferent to the pain and distress you were causing the puppy.”
The Judge adopted a starting point of six months’ imprisonment. The Judge noted that the defendant’s previous history for violence is relevant and warranted an uplift of two months’ imprisonment. In mitigation the Judge gave credit to the fact the defendant pleaded guilty to the charges very early and was given 25 percent credit for that. The Judge then arrived back at a sentence of 6 months’ imprisonment.
The Judge referred to the need for deterrence and denunciation of this kind of treatment to animals and to hold the defendant accountable. The Judge then stated at :
“I need to now have regard Mr Wilson to whether the purpose of sentencing you today can be met by the imposition of a non-custodial sentence being the least restrictive sentence available. I am satisfied notwithstanding the particular indifferent callous cruelty here that I can and the balancing factor for me Mr Wilson is you are no longer a meth addict. I acknowledge that takes some determination and self-will.”
The Judge then convicted and sentenced the defendant to complete four months’ community detention and 200 hours of community work. The defendant was disqualified from owning an animal for four years and ordered to pay $566 reparation in vet fees, and $600 in legal fees.
The sentencing judgment is silent on the issue of the imposition of home detention.
Andrea Midgen, Chief Executive of the SPCA has made the following comments on the sentence:
This case involved an act of serious violence against an animal and as such our expectation, given this was serious aggravated offending, was that a custodial sentence of approximately six to twelve months’ imprisonment would be imposed together with a four to eight year disqualification from owning animals. Clearly the Judge in this case has taken into account the mitigating factors in terms of the defendant’s recovery from drug addiction and adjusted the sentence accordingly. The concern I have is that many of our animal welfare prosecutions involve young men and violence and I wonder whether the current sentencing regime actually addresses the causal factors and brings about any change in behaviour for these offenders.
While on the low side, the starting point of six months’ imprisonment is within the range available for this type of offending and in my opinion it was appropriate that the Judge provided a two months’ imprisonment uplift for the defendant’s previous convictions.
With regard to the end sentence it would have been desirable, in my respectful submission, if the Judge had explained that a nominal end sentence of six months’ imprisonment required the Court to consider whether to commute the sentence to one of home detention (as another possible sentencing option). Notwithstanding , the Judge still is entitled to continue down the sentencing hierarchy below home detention, as section 8(g) of the Sentencing Act 2002 requires imposition of the least restrictive outcome reasonable in the circumstances, and so the Court may have reached the same sentencing outcome regardless (given the Judge’s focus on the personal circumstances of the defendant).
What is clear in this case, is that the Court has given significant weight to the defendant’s recovery from methamphetamine addiction and has exercised its discretion, as it is entitled to do so, to impose a non-custodial sentence. As such, the sentence is within the range available to the Court to impose and it therefore is unlikely to be viewed as manifestly inadequate in terms of the test an appellate court must consider.
That being said, this is a case of serious violence against a defenseless animal and greater weight should have been placed, in my opinion, on denouncing and deterring this offending. There is now a body of case law being developed where terms of imprisonment are being imposed in cases of serious violence against animals. This includes such cases as R v McIvor (DC Nelson CRI-2013-042-00182, 4 March 2017) where the defendant was sentenced to 19 months’ imprisonment for the ill-treatment and killing of a kitten (the offending arose in a domestic violence context); New Zealand Police v Growcott (DC Greymouth, CRI-2-14-018-000013 (20 November 2014) where the defendant was sentenced to two years’ and five months’ imprisonment for the ill-treatment, torture and killing of two cats (the offending arose in the context of the defendant being a methamphetamine addict and the Court expressed its view in that case that the defendant required serious psychological intervention); and New Zealand Police v Heka (DC Whangarei, CRI-2014-088-000013, 8 May 2014) where the defendant was sentenced to two years’, two months’ imprisonment for ten charges of ill treatment and torture of possums (notwithstanding the defendant’s mental health issues and other mitigating factors).
It must be remembered that the gravity or seriousness of animal welfare offending was increased in 2010 by doubling the maximum penalty. Animal welfare offending must be taken seriously. While the Judge in this case is to be commended for acknowledging [at 14] “[C]ruelty to any living creature is simply unacceptable and members of the community will not accept it” and at  that “Violence on a human being is not okay. Violence to an animal is equally not ok. It is never justified”, it is disappointing that the Judge did not give teeth to those comments by exercising her discretion in favour of a custodial sentence. The Courts’ decisions and the message it sends out in cases of serious violence against animals, together with the need to denounce and deter the individual, could only be met in this case, in my respectful opinion, by a sentence of imprisonment.
To end on a brighter note, the SPCA can advise that Floyd has been rehomed with a loving family, with another dog for comfort.
Anita Killeen is a barrister at Quay Chambers in Auckland. She is a Director of the Auckland SPCA and established and chairs the Pro Bono Panel of Prosecutors for the SPCA Auckland. She is also an international associate member of the American Bar Association Animal Law Committee.