Being kind to the cruel: the animal welfare sentencing problem

Animal cruelty sentencing demonstrates a mercy not shown by the offenders to their furry victims. The offenders have something to say too, about all of us

Old dog Lincoln—the bandy, bewildered old soul who hit the headlines early this year, when he was kidnapped for fighting bait—will have his day in court on Friday.

The sadness is twofold. This case does not in fact stand out, in terms of the degree of cruelty demonstrated, and it is likely to receive a similarly unremarkable sentence.

It also tells us something we need to hear. Whatever your views about the relative culpability of offending against animals, or the merits of a punitive response, it is a category of offending that ought to be taken seriously. Social scientists and social services know that animal cruelty is a precursor to, and correlated with, a wider pattern of abusive antisocial violent criminal behaviour. It is a marker of social well being. Child Youth and Family and the SPCA have an information-sharing working arrangement, recognising that, where one is involved, the other may also have an interest.

To recap, for those unfamiliar with the case: Lincoln was picked up from a disputed location—the offender, Campbell, says he was on the street, his owner that he was stolen from home— and driven to a park, where two pit bulls were set on him. When the old dog tried to defend himself, Campbell attempted to break his legs by pulling them apart. Lincoln ran for his life; the SPCA found him later, hiding and bleeding in a nearby public toilet.

Campbell pleaded guilty a couple of months ago to seven charges laid under the Animal Welfare Act. His sentencing is on Friday. The maximum penalty is six months’ imprisonment; imprisonment is “on the table” according to the sentencing judge.

Campbell is charged with ill treating an animal. That is a lower level charge; under the Animal Welfare Act, an aggravated charge of wilful ill treatment with a three-year maximum penalty is also available, for cases in which the animal is permanently disabled, or dies, or has to be destroyed. Due to the (fortuitously) happy outcome that Lincoln was able to escape, his is not such a case.

Hurring v SPCA (September 8, 2009) is the most recently sentenced case of wilful ill treatment. The owner of a Jack Russell terrier had decided her dog needed to be put down; it had bitten a child. There was some evidence that it had been recently teased by children, including attaching a vacuum cleaner pipe to the animal’s testicles.

The appellant offered to do the job for her. He took the dog into the garden shed, and tried to strangle it using a chain, his bare hands, and one foot. After half an hour the dog was still alive, and had bitten him. He poured petrol down its throat. After that, the dog was still able to swallow, so he hit it on the head with a spade, breaking its jaw. It died shortly after.

A sentence of 12 months’ imprisonment was imposed, reduced to 10 months on appeal. Factors relevant to sentence included the appellant’s early guilty plea. He was a young man, 19 years old, with no previous offending history. He was assessed, in one of those dry judicial understatements, as “being somewhat naive” and “someone who would benefit from psychological intervention”.

Hurring’s sentence was influenced by the sentences imposed in other cases of wilful ill treatment.

In Williams (four months’ imprisonment), the offender had struck his fiancee’s small dog repeatedly with a metre-long metal pipe, before coaxing it out from under the house where it had taken refuge, and strangling it to death. He then laid the dead dog in its basket, and tried to pretend it had died when he was “helping” it out from beneath the house. In Karena and Papa (nine months’ imprisonment, with leave for one of the offenders to apply for home detention due to his youth), the offenders had found three wild cats in a trap. They poured flammable solvent over the cats, and set them alight. In Sharp (eight months’ imprisonment) the offender had dragged a stolen pet goat behind his car until it died. He did it again, to a different goat, later in the day, and tried again with a third, before somebody intervened.

For any of these cases in which the sentence is less than two years (that is, all of the above cases), under the Parole Act, the offender will serve only half of it.

Under the Sentencing Act, the judge must impose the maximum penalty prescribed for the offence if the offending is among the worst cases of that type, and a penalty near to the maximum for cases that are “nearly the worst”, unless circumstances relating to the offender make that inappropriate.

It makes you wonder quite what you would have to do, to be among the worst cases, and warrant the maximum sentence or something close to it. In all of the cases above, the maximum was three years. In Hurring, the judge’s “starting point” (before discounting for mitigating factors, such as the early guilty plea) was 18 months.

In sentencing Mr Campbell, the judge will be conscious of the importance of treating like offenders alike. Because this is ill treatment, with a six-month maximum, the sentence will be rather less than those imposed on Hurring and the others.

Counsel for the defence will have no shortage of material to draw on in illustrating that Campbell’s behaviour was not among the worst of its type. This week the SPCA released its annual “list of shame”: 52 cases, averaging one a week.

Few were punished by imprisonment. In part, that may reflect the fact that not everyone was caught (A cat is discovered dead on the side of the road in Kerikeri after it was tied to a car and dragged by the neck until it died …” “SPCA officers in Christchurch find a dead tabby with a number of nails in its head … At least fourteen 85 millimetre nails had been used on its body”). Reading between the lines, it seems some of the culprits may have been young children (“A mother arrives at a Wellington cat foster home with a kitten in agony, after its tail had been all but cut off by children, using either using scissors or a knife …” “Two children aged under 10, with their parents, drop off two tiny kittens with horrific injuries at the Wellington Cats Protection League. The kittens’ paws have been severed off …”).

Like Hurring, Campbell has pleaded guilty early. The discount applied for an early guilty plea (by convention, up to one-third, depending on the timing of the plea), will be a factor in his case, as will other “circumstances relating to the offender” (special pleading about remorse and so forth), as envisaged in the Sentencing Act.

None of that is unusual or improper. It is the generosity of the starting points that is hard to understand—why they fall so far short of three years in the serious cruelty cases. Although “the victims are only animals”, arguably warranting less severe intervention than crimes against humans, Parliament has supervened in setting the maximum penalty. That is what must guide sentencers in determining relative culpability. The Sentencing Act requires it.

In Campbell’s case, there may be something sensible to be said about the big gap between the three-year and six-month penalties. Parliament is saying that one offence is a lot less culpable than the other. Whilst debatable, in cases such as this that have more to do with the animal’s smarts or good luck, that is the current law.

The SPCA says both maxima should be increased. For wilful ill treatment, at least, I’m not sure the maximum penalty is the problem. Other conflicting Sentencing Act imperatives make these cases hard for judges.

A judge must have regard to the desirability of keeping offenders in the community, if that can be reconciled with the safety of the community. (They came round a few years ago to the view that the safety of the community extends to animals living in it—as it should, given the social science mentioned earlier.) He or she must be satisfied that prison is the only sentence that will meet the purposes for which the sentence is being imposed.

Where the weight of argument leans towards a very short sentence, it raises valid questions about whether it is really worthwhile sending the offender to prison for a matter of weeks—whether that would in fact meet the sentencing purposes of denunciation, deterrence, rehabilitation, and so on. In such cases, it’s not hard to see how a judge might find that a non-custodial sentence is better, in everybody’s interests, perhaps accompanied by other orders such as destruction of a vicious dog, or a prohibition on owning animals.

When Campbell’s sentence makes the news on Friday, we might consider a larger question, too. What is going wrong with us, when our small children can muster the brutality and sadistic resolve needed to cut off kittens’—plural—paws?