An 8-year prohibition against a recidivist animal welfare offender from owning or exercising authority over animals has been upheld by the High Court and leave to appeal conviction and sentence was dismissed by the Court of Appeal in Power v Auckland SPCA [2016] NZCA 406 [26 August 2016].

Anne Power was convicted on one charge of ill-treatment of an animal under s 29(a) of the Animal Welfare Act 1999 (the Act).

In 2013, Pip, a horse in Ms Power’s care, died ill-treated and malnourished.

Ms Power was sentenced to an 8-year animal disqualification order (qualified so that she could retain ownership of a limited number of pets), and an order of reparations and costs. Ms Power has approximately 15 prior convictions relating to animal welfare and control of animals dating from 1985 to 2016.

The High Court decision (Power v Auckland SPCA [2016] NZHC 888) is significant both for its denunciation and deterrence of recidivist animal welfare offenders and also for its emphasis on the protective purpose served by disqualification and forfeiture of animals, particularly in cases such as this one, where the District Court held that Power had a delusory attitude about her ability to care for animals and a longstanding proven inability to properly care for and provide for large animals or to control dogs (Auckland SPCA v Power [2016] NZDC 1644 at [6]-[9]).

This article reviews the High Court decision and highlights the particular challenges animal welfare organisations face investigating and prosecuting recidivist animal welfare offenders. Special thanks go to John Billington QC, and to Joe Edwards, Jonathan Rea and the rest of the team at Russell McVeagh who prosecuted this case on a pro bono basis for the Auckland SPCA.

Facts

The expert evidence established that immediately before his death, Pip suffered from the following conditions:

• Severe dental wear and malocclusion with teeth out of alignment, impaction of material between teeth, periodontal disease of the gums, rotting of the bone and dental decay. Some teeth had sharp points causing lacerations to the cheeks and tongue. Pip would have suffered chronic pain from the cheek and tongue wounds, the periodontal disease, and the teeth decay. He would have been unable to eat properly and unable to obtain adequate sustenance and death through starvation was inevitable. Pip had not received dental maintenance for a number of years and his dental pathology could not be attributed solely to his advanced age.
• Both lungs contained large areas of infection resulting in inflammation, tissue destruction, fluid swelling, airway collapse and scarring. There was an abscess in the middle of the right lung and tip of the left lung.
• Nasal lesions and pneumonia which probably would have caused chronic suffering.
• Chronic parasitical worm infestation of the stomach consistent with a prolonged and high parasite burden.
• Pip’s body showed him to have been in a severely emaciated state with protruding hip bones, spine, ribs and a ewe neck, all indicating severe muscle wastage due to a lack of sustenance. On a Body Condition Scoring of Horses (based on the Carroll Huntington Method) Pip scored 0 on a scale of 0 to 5, 0 being the lowest possible score indicating the worst possible condition for a living horse.
• Pip had lost hair on all four fetlocks indicating that he had been standing in rain or mud for an extended time, and had rain scald, a bacterial skin infection, along his spine; also caused by being wet for long periods of time.
• There was no evidence of food in Pip’s stomach or small intestine indicating he had not eaten for 24 hours before his death.

The expert evidence was that while all Pip’s ailments may not have been obvious to a lay person, Pip’s overall very poor condition would have been. His dental, lung, nasal and stomach problems would have caused severe to extreme suffering which would have been for a period of at least some months.

Sentencing

In sentencing Ms Power in the District Court (Auckland SPCA v Power [2016] NZDC 1664), Judge Dawson observed:

“The paramount factor in sentencing you is the need to prevent future cruelty to animals. I remain very concerned about the delusory views you have as to your ability to properly care for animals. You have an ongoing history over many years of inadvertent cruelty to animals while believing that you properly care for them. You have also exhibited a lack of co-operation with the SPCA and you have also exhibited a lack of co-operation with this Court. … You also have a longstanding proven inability to properly care for and provide for large animals, in particular for horse and cattle, and you also have exhibited a lack of control over dogs. You have a record of convictions of your behaviour and attitudes which does not leave this Court having confidence in your properly being able to care for animals in the future. I am of the view that restriction on your ability to own and control animals is necessary to prevent future cruelty to animals by you.”

Appeal

Ms Power appealed the sentence on the grounds that it was disproportionate to the offending and the offender, and that the appellant’s conviction did not trigger the requirements of s 169 of the Act (which provides power to disqualify people from having custody of animals), and in any event, the offending was not so severe it would warrant a lengthy imposition of a disqualification across a broad range of animals.

The SPCA submitted that given the circumstances of the offending and Ms Power’s prior conviction history and lack of remorse or insight, the sentence imposed was, if anything, manifestly inadequate. For the SPCA, Mr Billington also emphasised that the protective purpose served by disqualification and forfeiture was a driving consideration, especially in the light of the District Court’s finding that the defendant had a delusory attitude about her ability to care for animals.

Justice Whata concluded the circumstances of the offending and the offender meant the 8-year disqualification was not obviously wrong. While the sentence was harsh, the principles of deterrence and protection were fully engaged in this case and the multiple prior convictions were an aggravating factor. Justice Whata noted:

“The defendant does not appear to be able to objectively self-evaluate her capacity to care for a large number of animals. In short, Ms Power presents a real risk of ongoing harm to the animals under her control.

“Ms Power’s multiple prior convictions are a significant factor, demanding additional caution. I accept that the historic nature of some of the prior offending is a relevant consideration. But the clear policy of the Animal Welfare Act is that offending of this type, involving significant harm and cruelty to animals, whether intentional or otherwise, is to be avoided, particularly where the circumstances of the offending are unexceptional.”

“Recidivist offenders are typically the most challenging ‘client’ that an SPCA inspector will deal with,” says Greg Reid, Chief Inspector of the Auckland SPCA.

“They typically resist the involvement of an inspector in their affairs, occasionally becoming quite obstructive. They often have delusional views around welfare standards for animals, are in complete denial and in extreme cases will attempt to manipulate other people in order to secure support for their actions. Their refusal to co-operate and the impact they have on animals typically results in complex and lengthy litigation and occasionally this can also impact on the welfare of animals that may be at the core of the situation.

“While most experienced inspectors become conditioned to the often bizarre behaviour of recidivist animal abusers, and the complex approaches required to address their offending, it is still a challenge to secure a timely resolution. The Animal Welfare Act provides for convicted animal welfare abusers to be disqualified from owning animals which is really the only outcome that can have an impact but monitoring recidivist offenders is a challenge, particularly for some offenders who will go to considerable lengths to stay under the radar,” Mr Reid says.

“Anne Power is one of the worst recidivist offenders the Auckland SPCA has had to deal with and this particular prosecution has been an active file since 2013.

“Frankly if it were not for the amazing support and commitment of our pro bono partners at Russell McVeagh and particularly John Billington QC we would simply be unable to take on a case like this, which we knew at the very start would be argued to the bitter end.

“As this article goes to print, the Auckland SPCA is investigating Anne Power for further alleged breaches of the Animal Welfare Act relating to a number of animals.”

“I am pleased to have been able to assist the SPCA,” Mr Billington says. “As a member of the Pro Bono Panel of Prosecutors for the SPCA Auckland it is a privilege to be able to act for the SPCA but I could not have done it without the skill and massive time contribution of Joe Edwards and his team at Russell McVeagh”.

Comment

As I noted in issue 880 of LawTalk, there is increasing evidence of a psychological and neurological component in animal hoarding and recidivist animal welfare offending behaviour, which might involve dementia, obsessive-compulsive disorder, post-traumatic stress disorder and attention-deficit hyperactivity disorder. Typically, experts recommend a combination of cognitive behavioural therapy and psychopharmacological intervention.

Because of high recidivism rates, many experts maintain that traditional means of punishment (such as fines and imprisonment) are insufficient on their own to combat hoarding.

The recidivism rate for animal hoarders is nearly 100% (based on statistics from the Humane Society of the United States), with hoarders beginning to collect more animals almost immediately after being charged with hoarding or having their animals removed by animal control agencies (Lisa Avery, From Helping to Hoarding to Hurting: When the Acts of “Good Samaritans” Become Felony Animal Cruelty, 39 Val. U, L. Rev. 815, (2005)).

In order to reduce recidivism, experts advocate that courts ban convicted hoarders from contact with animals permanently, or for as long as the law will allow. Furthermore, convicted animal hoarders should be sentenced to mandatory psychological evaluation and treatment and that if a permanent ban is not imposed that they be restricted to owning a very small number of animals. A lengthy probation period, during which the hoarder must agree to periodic, unannounced visits from animal control and social service agencies to ensure compliance, is vital.

The Power case presents as a good example of an animal welfare prosecution moving through the legal system over four years, with appeals, a final positive outcome but with a new investigation already under way for alleged further offending.

While the outcome of the most recent Power prosecution was one that the SPCA was pleased with, this type of offending is of concern to the animal welfare community and to society in general.

Anita Killeen is a barrister at Quay Chambers in Auckland. She is a Director of Auckland SPCA and established and chairs the Pro Bono Panel of Prosecutors for SPCA Auckland. She is also an international associate member of the American Bar Association Animal Law Committee.