Published on www.districtscourt.govt.nz 12/07/2019
As this is copied directly from the court document, I apologise if it is hard to read.
HELEN MARGARET PEART
EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].
WHANGAREI SPCA v HELEN MARGARET PEART [2018] NZDC 14948 [20 July 2018] IN THE DISTRICT COURT
AT WHANGAREI
CRI-2017-088-001940
[2018] NZDC 14948
WHANGAREI SPCA
Prosecutor
v
HELEN MARGARET PEART, Defendant
Hearing: 20 July 2018
Appearances: K van der Plas for the Prosecutor
J Day for the Defendant
Judgment: 20 July 2018
NOTES OF JUDGE G L DAVIS ON SENTENCING
[1] Helen Peart is before the Court today for sentence. She has today pleaded
guilty to one charge, pursuant to s 29(a) Animal Welfare Act 1999, that she ill-treated
an animal, namely a thoroughbred mare known as Justy, by failing to meet its physical,
health and behavioural needs which resulted in pain or distress caused to Justy, such
that it had to be destroyed.
[2] The general background to the offending has been described by me earlier
today in a decision that I dictated, pursuant to s 9 Criminal Procedure (Mentally
Impaired Persons) Act 2003, and I repeat the summary of facts here today.
[3] The summary records that as a result of a complaint received from a member
of the public, the SPCA attended a property at which Ms Peart was living and they
observed a horse, Justy, in a distressed state. It had a wound to its left foreleg and
there were other injuries that it appeared to be suffering from and as a result of that
Justy had to be euthanised.
[4] There were questions as to how Justy received those injuries, but it appears not
to be in dispute that the injuries arrived or were sustained either by Justy being chased
through a fence by a dog or Justy being bitten directly by a stray dog. The source of
the injuries, as I signalled earlier in the day, are not important. It is the fact that Justy
was not properly treated that is the issue before the Court.
[5] Upon learning of Justy being chased through the fence or being bitten,
Ms Peart attended upon Justy. Justy was pulled out of a drain, covered in mud and it
was not apparent, it appears, that Justy had an injury to her leg and it is not clear when
that injury became apparent, suffice to say that when it did become apparent, Justy
was treated by the application of a blue paste that Ms Peart had acquired from her
daughter, who is in turn a veterinary student, and that paste that she applied was
designed as some form of anti-inflammatory treatment and some form of paste to
relieve general pain. It did not work. Eventually [a neighbour] administered a
penicillin dose to Justy, but again that did not assist in Justy being cured or the wound
healing.
[6] It appears that the time from which Justy was chased through the fence or
bitten, as the case may be, sustained the injuries, in summary, to the point at which she
was euthanised was some three weeks or thereabouts. Justy was attended on by [a
vet], on the day that Justy was euthanised and what the vet’s observations were was
that the injuries that she sustained had no hope of resolution.
[7] The infection was painful, there were joint and tendon sheaths full of pus. The
pain would have been ongoing for some time, looking at the degree of swelling and
the blood picture that was seen. Justy was also described as starving. The general
description was that both feet would have been severely painful.
[8] I have made reference to the left foreleg of Justy, but in addition to that, the
right front leg is described as having a strong digital pulse, consistent with a seedy toe.
This is where an infection has formed under the hoof wall and there is an increase in
blood flow to the area to try and resolve the infection. It is also painful as the abscess
builds up and it puts pressure on the inner structures of the foot.
[9] The feet were described by the vet as suffering from or displaying some form
of gross deformity from swelling, with the foot being offset from the centre on a front
view. The wounds had been bandaged around the fetlock and the heel area.
[10] Those are the facts that I have to proceed on in sentencing today. The
sentencing process, Ms Peart, requires the Court to look at three specific aspects.
Firstly, it has to look at the offending itself. It then has to look at your personal
circumstances and it then has to look at when a guilty plea was entered to the charge
and consider what credit should be given for that.
[11] In looking at the offending itself, the Court is required to undertake an
assessment of the culpability of the offending, as it is described, and in doing so the
Court has to bear in mind some of the principles and purposes set out in the
Sentencing Act 2002.
[12] Those include, amongst other things, holding you accountable for what has
occurred, sending very clear messages out to the public at large and to you personally
about the importance of maintaining and ensuring the appropriate care of animals, also
ensuring that where sentences are imposed, they are consistent between offenders,
such that there can be no criticism that there are individuals who have received
favouritism by the Court in a particular circumstance.
[13] The other thing that the Court has when it is dealing with animal welfare
matters is the Animal Welfare Act to consider. In a recent decision of the New Zealand
Court of Appeal, Erikson v Ministry for Primary Industries1
, the Court of Appeal took the occasion to look at the Animal Welfare Act and sentencing in the District Court,
where it primarily takes place, and to provide some guidelines for Judges to consider.
[14] It is important to repeat here the definition of ill-treatment, which is described
as causing an animal to suffer by any act or omission, any pain or distress that in its
1 Erikson v Ministry for Primary Industries [2017] NZCA 271.
kind or degree or in its object or in the circumstances in which it is inflicted is
unreasonable or unnecessary.
[15] At paragraph 31 of that decision, the Animal Welfare Act has been previously
described by the Court as the single most important piece of legislation in
New Zealand relating to the protection of all kinds of animals under human control.
The legislation had greater breadth than merely preventing cruelty. Its provisions draw
on international principles and the five freedoms of animal welfare, which include
freedoms from thirst, from discomfort, from pain, injury and disease, to express
normal behaviour, and from fear and distress.
[16] The Act itself sets out as its primary purpose as being an Act to recognise that
animals are sentient, require owners of animals and persons in charge of animals to
attend properly to the welfare of those animals, and to specify conduct that is or is not
permissible in relation to animals or any class of animals, and to provide for the
development of codes of welfare and improve codes of ethical conduct. It is a
powerful piece of legislation and arguably the only piece of legislation that is on the
statute books that speaks specifically to the protection of animals generally.
[17] What the Courts have also made clear is that recent amendments to the
Animal Welfare Act have increased the penalties imposed for those instances where
ill-treatment of animals has taken place. The purpose behind that, I infer, is to sheet
home the significance of the legislation in the first instance and to sheet home to
owners of animals and those who have as their responsibility the primary care of the
animals, the significance of the obligations that they have.
[18] What is clear to me is that Justy’s injuries were sustained in one incident, but
they were longstanding. What is also clear from the evidence that I have seen is that
Justy required specific and dedicated treatment. I am of the view that the intervention
of a vet was required early on in the piece. Had a vet come early on in the piece and
a treatment regime put in place, one can only speculate what the outcome for Justy
would have been, but I am satisfied that the regime that ought to have been put in place
by a prudent and responsible owner of Justy or person in charge of Justy simply was
not there to meet her needs.
[19] In those circumstances, the Court would take the view, given the pain that she
was in over the sustained period of time, which I am of the view would have been a
matter of weeks, that a starting point of a term of imprisonment is appropriate.
[20] The prosecution have submitted that a starting point of imprisonment of
between six and eight months is appropriate. The maximum penalty that the charge
before me carries is one year imprisonment. Recent decisions of the District Court
provide some guidance. As an example, a recent decision from the District Court in
Kaikohe, Police v Witehira2 , the facts of which are different from yours, which
involved a man deliberately striking a dog to the head with a hammer about six times.
The dog did not die, but it was required to be euthanised, resulted in an end sentence
of two years’ imprisonment.
[21] I signal to you that the facts of that case bear no resemblance to yours, but the
important message is to highlight the significance of the penalties that can be imposed
here.
[22] Mr Day on your behalf has not challenged the range that is submitted by the
SPCA, except I infer of course he would be submitting that the range should be at the
lower end of the six to eight months, rather than the higher end.
[23] I am of the view that it is apparent that a starting point of imprisonment is
appropriate and that starting point would in my view be fixed for this charge at six
months’ imprisonment. I now turn to consider your personal circumstances. I do not
have a pre-sentence report in front of me, but what I do have in front of me is a
considerable volume of information. They include two reports from Dr Duff and Dr Petai from the Waitemata District Health Board, they have been prepared for the
purposes of assessing or determining whether you are fit to enter pleas and to stand
trial for these charges.
[24] They describe you as being 62 years of age. You have not previously come to
the Court’s attention at all. Further to that, you are currently on a job seeker’s
allowance and living temporarily with your daughter.
2 Police v Witehira [2017] NZDC 16476.
[25] I am told today, and it is not challenged, that the living arrangement is to come
to an end because with the entry of a conviction your daughter’s tenancy prohibits her
having a person who has a criminal conviction at the residence that she lives at. That
is going to render you homeless in the short term.
[26] In addition to that, material before the Court makes it very clear that you have
fallen on particularly hard financial times. There are, in addition to the criminal
proceedings that are before the Court, civil proceedings arising out of the loss of your
home and the loss of land in what appears to be some unscrupulous behaviour by
others who have taken advantage of you, and I make those comments, however,
without knowing the particulars, but it does not appear again as though those personal
circumstances are being challenged.
[27] You are described in the reports as being in a high state of stress and distress,
having lost your home, your business, your reputation and your future financial
stability. As I have signalled, questions as to your ability to enter pleas and to stand
trial have been raised.
[28] When one looks at all of those circumstances, the Court must look at a sentence
that is cognisant of your personal circumstances and impose the least restrictive
sentence in accordance with the hierarchy of sentences. I acknowledge that at 62 years
of age you have spent your life living around, working with horses. I acknowledge
also that this is the first instance, as I have signalled, that you have come before the
Court for this type of offending.
[29] Given those circumstances, I am of the view here that they are somewhat
unusual and somewhat unique. There is no prospect in the short term of an
electronically monitored sentence being imposed. Given the medical reports that I
have, there is no benefit directly to society, in my view, or to you personally in a
punitive sanction being imposed.
[30] The circumstances here are such that I see very little precedent value in this
decision, because these circumstances are unlikely to come before the Court again, in
my view.
[31] I am of the view that given the issues that are significant and that have been
raised in the reports from the Waitemata District Health Board, the least restrictive
sentence that can be imposed in accordance with the hierarchy of sentences is one of
supervision. I am directing therefore that a conviction be entered today and a sentence
of nine months’ supervision be imposed today. It is on the basis that you are to attend
such counselling, treatment and programmes to the satisfaction and as directed by a
probation officer.
[32] That, in my view, should include, but I do not wish to fetter the discretion of
the probation officer in any way:
(a) Budgeting assistance.
(b) Counselling of a general nature to assist Ms Peart with the stresses that
are described in great detail in the reports of Dr Petai and Dr Duff.
[33] I am directing that copies of those reports are to be released to the Community
Mental Health Services and to the Community Probation Service to assist in the
designing of a specific supervision sentence that addresses the needs that I have
touched on.
[34] In addition to that, reparation is being sought by the SPCA. The reparation
being sought is for the veterinarian costs that have been imposed on the SPCA. The
SPCA quite properly acknowledge that Ms Peart is not in a financial position to make
a contribution to their costs, as would normally be sought by the SPCA, and they do
not seek those costs. They acknowledge the strained circumstances that Ms Peart finds
herself under.
[35] I am of the view that it is appropriate in this instance that reparation be limited
to the veterinary costs that have been incurred. They are $618.20, they are to be repaid
to the SPCA at a rate of $10 per week, beginning 10 August 2018.
[36] In addition to that, there is an order being sought that would prohibit Ms Peart
from owning any horses for a period of five years, in accordance with s 169
Animal Welfare Act. I am satisfied that that order is appropriate, it is made by consent
today that Ms Peart will be prohibited from owning any horses for five years. I am
making the order today that Ms Peart is not to own any horses for a period of five
years. I am not making the order that prohibits you from continuing on with your
other equine activities.
ADJOURNMENT TAKEN
[37] Earlier this afternoon I have dictated a sentencing note in respect of Ms Peart,
which has imposed a sentence of supervision on Ms Peart and ordered reparation.
Discussions have now been held as to whether it is appropriate that an order be made
under s 169 Animal Welfare Act disqualifying Ms Peart from owning or exercising
authority or being the person in charge of any horse, and if so, for how long.
[38] In fairness to the SPCA, and in my view appropriately, the SPCA seek to limit
the disqualification to Ms Peart being the owner of any horse. They have also sought
orders seeking forfeiture of any horses that are in Ms Peart’s ownership or that she has
authority over. Whether there are any horses in Ms Peart’s ownership or that she has
authority over has itself been the subject of some dispute.
[39] The Court may only order a person be disqualified from owning or exercising
authority over or being a person in charge of any animal if certain preconditions are
met. The first precondition is that a person must be convicted of an offence under
either Part 1 or Part 2 of the Animal Welfare Act or s 152 or 169B of the Act.
[40] I am satisfied that the conviction that I have entered today in respect of the
charge that Ms Peart ill-treated an animal, namely Justy, has been made under s 29
Animal Welfare Act and that falls within the provisions of Part 1 of the Act.
[41] Whether the Court then chooses to make an order sought in s 169(3) of the Act
must fall on whether or not the Court, having regard to the purposes of Part 1 and
Part 2 of the Act, the penalty specified from the charge from which the conviction
arose, the seriousness of the offending, the character of Ms Peart herself and previous
offending history and any other circumstances of the case are such that the order
should be made.
[42] In my sentencing decision, I touched on the purposes of Part 1 and Part 2,
which are primarily to ensure the appropriate welfare of animals in general is
maintained and that appropriate standards are kept and set.
[43] The maximum penalty in this instance was one year imprisonment or a $50,000
fine. While I indicated that a starting point of imprisonment was appropriate, given
Ms Peart’s personal circumstances and with credit for guilty pleas and the like, I am
of the view that the Court was able to step back from a term of imprisonment and
impose, as the least restrictive outcome, a sentence of supervision.
[44] The offending in my view was serious. The harm, the suffering that Justy was
put to in my view was significant and it was prolonged. Ms Peart I described as being
a person who had not otherwise appeared before the Court, but it is relevant in my
view in considering whether she ought to be disqualified to note that in 2013, 2014,
Ms Peart’s care of another horse, Soon, was drawn to the SPCA’s attention and
Ms Peart was in that instance the subject of a warning from the SPCA.
[45] I have made reference to the fact she has not previously appeared before the
Court in any way, shape or form. I am also told by Mr Day that the order that Ms Peart
not own any horses is one that can be made by consent. I am satisfied, having
considered the matters set out in s 169(4) Animal Welfare Act that it is appropriate that
an order be made disqualifying Ms Peart from owning any horse for a period of five
years.
[46] I am equally satisfied that it is not necessary for the order to extend to a
situation where Ms Peart could not exercise authority over any horse or be a person in
charge of any horse. I accept her longstanding relationship with horses. I have made
reference to a significant number of stressors in her life which I infer recreational
activities with horses form an important part of Ms Peart’s life. I also understand her
professional association with horses as a Bowen therapist is such that she should not,
in my view, be prohibited from continuing her professional occupation and
endeavours, should that opportunity present itself.
[47] The order will accordingly be limited to Ms Peart’s ownership of horses for a
period of five years. I am told there is one horse Ms Peart may have ownership of
now and which may be the subject of a lease arrangement to a person in Hikurangi. It
is not clear whether or not Ms Peart owns that horse of whether ownership of it has
been transferred to [name deleted]. I will invite the SPCA to make the appropriate
inquiries and ensure that the appropriate transfer of ownership of that horse is attended
to in the appropriate fashion.
G L Davis
District Court Judge