In a recent animal welfare prosecution, New Zealand Police v Hanuere Paul Witehira [2017] NZDC 16476, the court sentenced an offender to two years’ and five months’ imprisonment for bashing a puppy eight times on the head with a hammer, resulting in its death. The offending occurred in a family violence context and there was a sadistic element to the offending, as it was a form of punishment directed at the defendant’s son.

The District Court decision in Witehira is significant both for its denunciation and deterrence of serious animal welfare offending and also for its acknowledgment that the resulting pain, distress and suffering experienced by animals is a relevant factor to be taken into account at sentencing. Importantly, the decision places a renewed emphasis on the totality principle when sentencing animal cruelty offending. Judges have a positive obligation to review the aggregate sentence and ensure that it is proportionate to the overall level of criminality. Furthermore, the decision acknowledges that cases involving animal cruelty can warrant the imposition of penalties commensurate with comparable crimes against humans.

This article reviews the District Court decision of Witehira and its application of the Court of Appeal’s guidelines (espoused in Erickson v Ministry for Primary Industries [2017] NZCA 271) for sentencing animal welfare offenders. It also highlights the link between animal cruelty and family violence in New Zealand.

Background

Hanuere Paul Witehira pleaded guilty to one charge of wilfully ill-treating an animal, a brindle puppy, by hitting it with a blunt instrument. The pup’s injuries were so severe it had to be put down.

On 8 July 2017, the defendant was in Kaikohe. He was upset with his son, as the food his son wanted to have for lunch was not available. Mr Witehira told the boy “I’m going to kill your dog” and took out a pen hammer from a toolbox. A pen hammer is 40cm long with a 4cm wide face. He went to the backyard where Valley, a five-month-old cross-bred brindle puppy was tied up, and hit the dog eight times with the weapon. Valley was taken to the Bay of Islands Veterinary Clinic where she was euthanised. Valley had sustained multiple fractures to the head, severe swelling to the brain, bruising to the eyes, a fractured tooth and was bleeding heavily from the nose and mouth. When the police spoke to Mr Witehira he denied hitting the dog, saying she was already dead when he got home.

Sentencing

In sentencing, Judge Davis noted that the lead charge was the wilful ill-treatment of the dog charge and referred to the recently released Court of Appeal decision in Erickson. While not a tariff decision as such, Erickson goes through the history of the Animal Welfare Act 1999 and its predecessor legislation and sets out guidelines to assist courts with the approach to be taken at sentencing for these types of offences.

The Animal Welfare Act itself states its primary purpose as being an Act to reform the law relating to the welfare of animals and the prevention of their ill-treatment and in particular:

• To recognise that animals are sentient.
• To require owners of animals and persons in charge to attend properly to the welfare of those animals.
• To specify conduct that is not permissible in relation to any animal or class of animals.
• To provide for the development and issue of codes of welfare and approval of codes of ethical conduct.

The Court of Appeal in Erickson described the Act [at 31] as being “the single most important piece of legislation relating to the protection of all kinds of animals under human control”. The Court of Appeal then went on to set out a framework for dealing with these charges and said, “The Court must analyse the offending by looking at three considerations,” that it described as primary aggravating considerations, secondary aggravating considerations and thirdly, mitigating considerations.

The primary aggravating considerations included the following factors:

• The causing of significant pain or distress (and that requires an assessment as to how extensive and how extended the pain and distress is).
• Whether there was extreme violence assessed by the nature of the actions taken, rather than their effect.
• Whether there was any premeditation and planning to cause significant pain or distress, particularly of a sadistic nature as opposed to impulsive or reactive behaviour.
• Whether there is any repetitive offending, including the number of victim animals concerned.
• Whether the defendant took a leading role in the offending as opposed to being a follower or acting under the directions of another person.

Secondary aggravating considerations include:

• The means of commission of the offending, such as the use of weapons, attacking the head or multiple offenders.
• Whether there was abuse of a position of trust, such as a managerial responsibility or something of that nature.
• The impact on third parties such as members of the public who witnessed the offending or its consequences.

Mitigating considerations include:

• Impulsive or reactive behaviour but not involving sadistic intent.
• A mental disturbance, short of insanity.

Applying the Court of Appeal’s guidelines to the Witehira case, Judge Davis noted [at 13] regarding the primary aggravating factors, that firstly, this was an attack that involved eight blows to the head of a puppy and that “there is no question that it caused significant pain and distress to the dog as evidenced by the multiple fractures to the head, the severe swelling to the brain, the bruising to the eye, the fractured tooth and the blood that was discharging from the nose and mouth”. Secondly, the court noted there was extreme violence. Thirdly, the court noted there was premeditation and planning. Fourthly, the court noted there was no question that the defendant played the lead role in the offending.

With respect to the secondary aggravating features, Judge Davis noted [at 15]:

“[T]here were weapons involved, there were multiple attacks to the head. You were in a position of trust vis-à-vis your son and the dog. The impact on the third parties can only be described as one which resulted in members of the public alerting the police. It must in my view have been horrific for him to have witnessed or to be in the proximity of that.”

The court then referred to the High Court decision Karekare v Police [2011] NZHC 2017. In that case Mr Karekare arrived at an address after drinking. A kitten came to the door. He picked it up and threw it out the back door onto a concrete path in front of the complainant and her five-year-old daughter. The complainant screamed “stop” but Mr Karekare then picked the kitten up by the neck again and threw it onto the concrete path. The kitten stopped moving and the girl began crying. He kicked it in the head, put it in an incinerator and set it on fire. The High Court imposed an end sentence of 18 months’ imprisonment in that case.

The court in Witehira distinguished the Karekare decision, noting that it was decided without the benefit of the Court of Appeal decision in Erickson and without an analysis as to whether or how it fitted within the constructs that the Court of Appeal has recently provided. Judge Davis noted [at 18]:

“I take the view Mr Witehira that this offending is worse than that in the Karekare case. That is because of the weapon involved; that is because of the sadistic element involving the punishment to your son; that is because of the nature of the injuries and the suffering that the dog would have endured. I take the view that a stern response is needed by the Court to ensure that the appropriate message is sent to the public that this sort of behaviour cannot be tolerated. The starting point, in my view, of two years’ and six months’ imprisonment is the appropriate starting point”.

The court then noted there should be an uplift of 14 months’ imprisonment for separate driving charges (one charge of driving with excess breath alcohol on a third or subsequent occasion and one charge of driving whilst disqualified) which would be served cumulatively on the 30 months’ imprisonment on the animal cruelty charge resulting in a total of 44 months’ imprisonment. The court then reduced the sentence from 44 months’ imprisonment by six months’ to take into account the defendant’s personal factors (a recent broken leg and the fact that a term of imprisonment will be difficult for him to serve due to gastrointestinal issues). The court also gave the defendant the maximum credit for entry of a guilty plea and the court ultimately arrived at an end sentence of two years’ and five months’ imprisonment; with respect to the animal cruelty charge the Court convicted and sentenced the defendant to two years’ imprisonment.

Comment

Judge Davis’ decision in Witehira is notable for reflecting the change in societal attitudes towards offending against animals. It responds to Parliament’s view that cruelty to animals is abhorrent and its clear intention through the unanimous passage of the Animal Welfare Amendment Act 2010 to ensure that animal cruelty is to be treated seriously by the courts. It also signifies the emerging empirical evidence, both nationally and internationally, that supports the proposition that cruelty against animals is often part of a wider pattern of offending.

A New Zealand study conducted by Michael Roguski (2012, Pets as Pawns: The Co-Existence of Animal Cruelty and Family Violence), looked specifically at the co-existence of family violence and cruelty to animals with a particular focus on whether actual or threatened companion animal abuse acts as a barrier to women and children extricating themselves from violent family situations.

The objectives of this research (commissioned by Women’s Refuge and the SPCA) included understanding the role of companion animals and the incidence of animal cruelty in the New Zealand family, and also to provide an evidence base from which interventions can be developed to allow victims to be extricated from violent situations in a timely manner and in a way that prevents actual or potential cruelty to animals. A common feature arising from Dr Roguski’s study is the perpetrators’ use of threats and actual harm to animals as a mechanism to attain and maintain control over the family.

The Women’s Refuge survey participants were asked whether a family member or partner had ever threatened to injure or kill one of their pets and whether or not a family member or partner had injured or killed an animal. Of the 203 survey respondents, 54.7% stated that, at some point, either a family member or partner had threatened to kill an animal. Of these 111 respondents, 79% stated that at least one threat had occurred within the last two years. About one third of respondents reported an animal had been injured or killed at some point during their relationship.

The majority of respondents reported that it was their partners who had either threatened to harm or injured and/or killed an animal. Approximately 90% of threats and actual harm to an animal were made by partners.

Of the 159 participants with children, 32.7% stated that one or more of their children had witnessed their partner or a family member who lived in the home threaten to injure or kill a pet. A further 24.5% had witnessed someone in the family injure or kill an animal. The majority of threats of abuse witnessed by children were made by the women’s partner. About one third of survey respondents reported having stayed in the relationship for fear that their partner would injure their animal.

The SPCA’s chief executive, Andrea Midgen, said of the Witehira case:

“New Zealand research has proven the strong link between animal cruelty and family violence. The research found that women delay leaving violent relationships because they fear that their pets will be killed or tortured. Sadly, as in this case, we also know that children often witness violent attacks on animals.

The sentence in this case reflects an understanding of the link between animal cruelty and family violence.”

The decision in Witehira is particularly significant in that it recognises that animals are sentient beings and that cases involving animal cruelty can warrant the imposition of penalties commensurate with comparable crimes against humans. Witehira reflects both society’s and Parliament’s denunciation of this type of offending as well as viewing animal cruelty within the broader context of family violence.

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.