Please note that the following article contains explicit details of a violent attack on an animal and the suffering caused.

In a recent animal welfare prosecution, (Auckland Royal New Zealand Society for the Prevention of Cruelty to Animals v Serrin Rawiri Rickard MacPherson [2019] NZDC 4102) the court sentenced an animal welfare offender to 12 months’ imprisonment with leave to apply for home detention, disqualified him from owning animals for six years, and ordered him to pay $1,780 in reparations for a sustained and violent attack against a dog.

The District Court decision in MacPherson is significant both for its denunciation and deterrence of serious animal welfare offending and also for its acknowledgment that animals are sentient beings – that is, they have the ability to feel, perceive, be conscious, or to experience subjectivity – and 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. A judge should first consider the sentence for each individual offence and then determine whether the circumstances call for a concurrent or cumulative sentence, and whether the sentence as an aggregate is ultimately a fair one.

This article reviews the District Court decision of MacPherson 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.

The facts

Mr MacPherson pleaded guilty to one charge of wilful ill-treatment of an animal pursuant to s 28(1)(d) of the Animal Welfare Act 1999, which carries a maximum penalty of five years’ imprisonment (the lead offence) and one charge of failing to ensure the animal received treatment to alleviate any unreasonable and unnecessary pain and distress it was suffering pursuant to s 11 of the Act.

On 9 November 2017, the defendant let his dog Rocka outside his address in Papakura. Rocka, along with a second dog, travelled to a neighbouring property and attacked livestock. When the defendant caught Rocka he repeatedly punched, kicked and slammed the dog to the ground. Mr MacPherson used such force that Rocka suffered considerable haemorrhaging and a broken leg. A witness saw the dog screaming the entire time. That witness tried to intervene by shouting at the defendant, however, Mr MacPherson did not respond and continued his attack.

The defendant was aware that Rocka’s leg was injured yet he failed to take any steps to get veterinary treatment, even after he was told to do so by his father.

The following day, the defendant went to his father’s house again. His father told him again to get veterinary treatment for the dog, but the defendant again failed to act on that advice. On that same day the defendant was visited by animal management officers. He claimed to have euthanised Rocka and disposed of him. Rocka, however, was in the defendant’s custody and still had not received treatment. The SPCA inspector also visited the defendant that day. The inspector could not locate Rocka at that stage and left the property to make enquiries. Later that evening the SPCA inspector went back to the defendant’s property with a second inspector. Mr MacPherson admitted that he had attacked the dog, and also, eventually, admitted that Rocka was in his vehicle, was injured, and had not received treatment.

Upon inspecting Rocka, the inspectors immediately noticed his right hind leg was extremely swollen and that Rocka could not place weight on it. Rocka was surrendered into the care of the inspectors, and was seen by a veterinarian at about 7.30pm. The fracture to the dog’s femur was confirmed.

On 11 November, another veterinarian examined Rocka and concurred the femur had fractured into pieces and that Rocka would have suffered severe pain at the time of the fracture and up until the point he was treated.

A decision was made to euthanise Rocka due to the extent of his injuries and temperament. The post-mortem confirmed that the femur was broken in several places. It also revealed widespread haemorrhaging consistent with blunt trauma. In the veterinary pathologist’s opinion, the injuries and lack of treatment would have caused Rocka severe pain, distress and suffering.

On 21 November, Mr MacPherson was interviewed by the SPCA inspectors where he admitted attacking the dog as punishment. The defendant believed he had caused Rocka’s leg to break and he acknowledged that he ought to have provided veterinary treatment to the dog but failed to do so.

Sentencing

In sentencing, Judge Cathcart referred to the Court of Appeal decision Erickson v Ministry for Primary Industries [2017] NZCA 271. 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 issues of code 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 in New Zealand 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, which it described as primary aggravating considerations, secondary aggravating considerations and finally, mitigating considerations (at [52]).

The primary aggravating considerations include the following factors (at [53]):

• Whether the defendant caused significant pain or distress and how extensive and extended that pain or distress was.
• 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 not involving sadistic intent.
• A mental disturbance, short of insanity.

Applying the Court of Appeal’s guidelines to the MacPherson case, Judge Cathcart noted at [17] regarding the primary aggravating factors, that Rocka suffered significant pain and distress:

“The femur was fractured into pieces and I accept that conclusion the dog would have suffered severe pain at the time. Also, given you did not call for medical aid that pain would have continued up until the point the dog was looked at by the veterinarian. And the dog suffered considerable haemorrhaging consistent with blunt trauma because of your attack.”

While the defendant’s offending did not operate as the immediate cause of Rocka’s death (as Rocka had been euthanised) Judge Cathcart determined that the offending led to that outcome and was still very serious, but not at the top of the spectrum.

Furthermore, Judge Cathcart noted at [19] that the defendant used sustained and extreme violence:

“Also I accept the level of violence inflicted on the dog was sustained. You punched, kicked and slammed the dog to the ground repeatedly. I know from the dock you said there was not a witness present. But I am required to accept that there was on the undisputed summary of facts. The witness saw Rocka screaming the entire time and I am told was shouting at you to stop but you did not respond. You did not desist despite the plea of that person. Your violence was at a heightened level and sustained. And in my view, it fits within the concept of extreme violence as understood under the legislation … What you did by way of punishment was wholly unacceptable.”

Judge Cathcart adopted a starting point of 16 months’ imprisonment on the lead offence and uplifted that by a further period of two months’ imprisonment, having adjusted it for totality, to arrive at an overall figure of 18 months’ imprisonment. The judge noted at [32] there was little remorse shown, however, and found that the defendant’s character and previous offending history were more in his favour:

“There is nothing to suggest you had this general attitude towards animals. There is nothing in your offending history that gives any clue of a propensity to violence or anything of that nature. So, I take those favourable factors into account also.”

The judge discounted 25% from the starting point for the early guilty pleas and arrived at an end sentence of 12 months’ imprisonment with leave to apply for home detention. The defendant was disqualified from owning animals for six years and ordered to pay $1,780 in reparations for veterinary costs, SPCA costs, and pathology costs.

Reaction

The SPCA’s CEO, Andrea Midgen said following the judgment: “This type of offending is particularly horrific as the offender not only violently attacked his own animal, he failed to provide critical medical care after the fact, and lied about it to authorities, leading to a huge amount of suffering for Rocka.

“We are pleased that the court has recognised the significant pain and distress and extreme violence in this case, and this is reflected in the imprisonment sentence handed down. Let this be a warning: anyone who treats their animals in such a way will be prosecuted by the SPCA to the full extent of the law.”

The decision in MacPherson 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. MacPherson reflects both society’s and Parliament’s denunciation of this type of offending.

Anita Killeen anita.killeen@xtra.co.nz 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.