Blowing Off Some Steam about Wellsford and Politicians

There’s a lot to be angry about these days.  Ever since a couple of lunatics decided to commit the ‘Wellsford Massacre’, by emptying their shotguns into a shed full of puppies, the media has been alight with stories about animal welfare.  In one sense, that’s good.  We certainly need to be paying more attention to what is, sadly, a prevalent problem.  Nonetheless, there’s a lot to get angry about from the media coverage as well.  I’m not sure whether it’s the media, the killers up in Wellsford, some lady calling me a dick-head, or a combination of all these things, but I’m feeling pretty steamed.  Rather than attempt a coherent blog in this state, I’ll throw out a few points on the ‘things that are making me mad’, and hope it makes some degree of sense in the end.

Disclaimer
Before doing so, a disclaimer.  I worry some times that people read parts of my comments rather than the whole.  So let me state this loud and clear: I am not against punishing people who commit cruelty against animals.  Far from it.  I’ve done as much to try and get sentences fairly applied as anyone, and have written legal articles, drafted submissions to Parliament and worked with prosecutors to bolster sentences for animal abusers.  It is, to be sure, a component of what needs to happen in order to have a country that treats animals better than it currently does.  Nonetheless, as you’ll see from my comments below, I have serious reservations about the way this has suddenly become ‘the answer’ to our problems.

My Talk with Simon Bridges, MP
A few weeks before he introduced his new Bill to raise the maximum penalty for wilful ill-treatment to animals causing death from three to five years, Simon Bridges called me to see what I thought.  I told him I thought it would do absolutely nothing for animals, and might even set back the cause.  I think he was taken aback, as my position seemed both counter-intuitive and contrary to the ‘animal lover’ position.  So I explained.   The problem, as I see it, is not the maximum sentence for the single most serious crime relating to animals.   A three year maximum, believe it or not, is fairly high by New Zealand standards.  Sure, judges rarely impose the maximum, but that’s true for all crimes.  Nonetheless, the three year maximum is not out-of-whack with other jurisdictions, and gives plenty of room to get jail time for those who commit horrid acts.

But that wasn’t my concern.  I’m happy to raise the maximum, but what I asked Bridges – and what I ask all of those people, like the Sunday Star Times, for example, who want to make the move – is what are you trying to achieve?  Anyone?  Let’s hear from Bridges, from today’s Sunday Star Times:

Parliament had a duty to protect all living beings from acts of cruelty… The judiciary requires a strong message from Parliament about sentencing levels.  Going to five years is the least we can do.

Correct, actually – on both counts.  Parliament does have a duty to protect all living beings from acts of cruelty, and going to five years is the absolute, very least you can do.

What are you trying to achieve?
Again, what are you trying to achieve?  The goal, according to the Sunday Star Times, is that ‘those who mistreat animals should face much longer sentences’.  Well, there are several problems with this statement.  Leaving aside entirely the serious problems with New Zealand’s burgeoning prison population, and the well-established principle that higher penalties do not really deter people from committing crimes (and whether we should be using jail to deal with crimes generally), there’s no reason to believe a jump from three to five years will do anything at all.

But how can that be?  Quite simple, really.

In 2000, the AWA raised the maximum penalty for animal cruelty from three months imprisonment to its current level of three years.  Did sentences go up?  Not one bit.  Some argued they even went down.  You need to do more than simply raise the max to get sentences to go up, and even if judges were more responsive – and I’ve argued that judges were insufficiently responsive to the legislative increase last time around – the move is probably not significant enough to bump sentences up in any serious way.

Downsides of the Easy Answer
Moving the maximum is, to be sure, the easiest thing Parliament can do, and sadly, it’s a reflex action that is used far too often in response to all sorts of crimes.  But it doesn’t really target the problem, and will do little to fix it.

Moreover, there are a few downsides to moving maximums up.   It heightens the stakes.   Ever wonder why murder trials take so long?  Why we spend so much money on ensuring that every conviction is well-founded and properly heard?  It’s because of a little thing we like to call ‘due process’, or ‘natural justice’.  The basic principle – a sensible one at that – is that as the stakes in a proceeding rise, so do the protections.  Keep moving animal cruelty maximums higher (What’s next?  Seven years?  Ten?) and these trials will be heavily defended, difficult to prosecute, and very, very costly.

It Misses the Real Problem
Let me repeat.  I’m not against raising the maximum, per se.   As I indicated above, I don’t think it will do much, and it may – albeit marginally – raise the stakes in a way that’s problematic.  But at the end of the day, I’m not ‘opposed’ to raising penalties.  Worst offenders – like the bozos in Wellsford – should be put away, as I indicated in my last blog.

Nonetheless, what bugs me is that there are real things to fix in the Animal Welfare Act, and sadly, no one’s interested.  Instead, we’re spending all of our legislative capital – what little there is – on fixing something that, if it is a problem at all, is the tiniest part of the problem.   It makes for nice yelling though (Let’s raise penalties!  Let’s send those bastards to jail!).

John Key, Phil Goff and politicians from all over have spoken up in favour of the measures as a way of ‘ensuring we have appropriate measures to deal with these issues’ (Key’s spokesman).  Or as Phil Goff said, ‘there is a human obligation to treat animals humanely and we need to do everything we can to stop these appalling acts’ (Note on Goff:  I have a long memory when it comes to animal welfare, and Goff, like all politicians, likes to speak rather than act.  In 2002, when people were complaining about low sentences, Phil Goff was Justice Minister, and his response was (along the lines of) ‘we can’t interfere with the judiciary.  It’s up to them to set the sentences.’   Sadly, I’m not kidding.  My response then: ‘Actually, Phil – there’s plenty you can do to influence sentences.  You’re the government, remember?’).

What will you achieve?
We get it.  Everyone wants to send offenders to jail.  Great.   But again I ask, will raising the maximum do this?  What will you achieve?

Other Approaches
Personally, I think it misses the point, and I can easily come up with three better suggestions – all of which I passed on to Simon Bridges – to get sentences higher, and more animal abusers punished:

1. Impose specific guidelines for animal cruelty offences: The truth is, like Parliament, and the rest of the public, judges don’t get it when it comes to animals.  They look at the victims and have trouble figuring out what the fuss is about.  They draw comparisons to human victims and think, well, this isn’t as bad as that (See the article I linked to above, where all of this is explained in greater detail).  Animal cruelty offences require a different set of guidelines to explain what constitutes real harm, and why that harm is meaningful.  It’s possible to do.  It’s just not as ‘sexy’ as yelling: raise the penalty!
2. Create a tiered system of animal cruelty offending: As I’ve suggested above, the problem isn’t with the three year maximum for the most serious types of animal cruelty offending.  The problem is that once you’re out of that crime – wilful cruelty causing death – you’re stuck with less serious offences, for which the maximum is six months.  As you create sentence disparity for animal cruelty offending, you increase the likelihood of offenders pleading out for the lower crime (especially when the prosecuting agency has a massive incentive, see below, to accept the plea).  In fact, most animal offences are treated as ‘ill-treatment’ and not ‘wilful ill-treatment’, because the offender will happily plead to the lesser offending and take the community service punishment that inevitably results.  Why?  There’s no middle tier.  Consider the following example.  Let’s assume that those idiots in Wellsford did their shooting but the dogs miraculously escaped and recovered.  Or let’s take a real example: Smokey the terrier who in 2002 had his ears cut off by a saw blade by some a-hole who wanted his dog ‘to look cool’.  Horrible acts, yes?  Well, since the animals didn’t die, or weren’t ‘permanently disabled’ (which legally means couldn’t walk, etc.), s 28 was inapplicable, and the most you could impose was six months in prison.  We need a better structured act, not just higher penalties.
3. Fund Animal Prosecutions: I keep hearing politicians of all stripes talk about how much they care about animal cruelty.  Great.  How about you properly fund the prosecutions instead of relying upon the public to donate money to the SPCA so that this can happen?  Again, if you keep raising penalty maximums, the costs of running prosecutions will go up as well.   Where’s the money?  Where are the prosecutions?  Did you know that the government does not provide one freaking dollar to run prosecutions against domestic animals?  It’s an absolute disgrace, if you ask me.  Of course, we could also be asking questions – good ones – about why the government doesn’t prosecute offenders and leaves it all to the SPCA. David Tong already has, so I’ll leave this point.

The Hypocrisy
I’m sorry.  I really wanted to avoid hitting on this point, but I just can’t help it.  I’ve come this far setting out quotes from politicians about how much they hate animal cruelty without once pointing out that they really only hate some kinds of animal cruelty, and are perfectly happy to promote other types.  To start with, where was the outrage when Mark Spitz was sentenced to 250 hours of community service for starving hundreds of cattle to death in early January?  Let’s review the facts briefly, shall we:

Spitz was visited by a Ministry of Agriculture and Forestry (MAF) animal welfare investigator in July 2007 after a complaint was received about dead and starving cattle on properties in the Rotorua area that he farmed.

MAF said the investigator’s first visit found animals in poor condition with insufficient feed available, and two recently dead beef cattle. Many animals had a body condition score (BCS) of three or less on a scale of 1-10.

Spitz was given written notice to improve animal welfare conditions on his properties. The notice included requests to get a veterinarian to assess stock and to meet the animals’ nutritional needs.

Between July and September 2007 MAF animal welfare investigators visited Spitz’s properties and issued further formal notices under the Animal Welfare Act, because he had done very little, if anything, to alleviate the growing concern over his stock, MAF told the court.

There was ongoing concern about pasture coverage of grazing paddocks, and a lack of supplementary feed. An independent farm consultant’s assessment concluded that feeding levels over the properties could be termed “controlled starvation.

“Most animals were in very poor body condition as there was very little feed available and some animals had died while others subsequently had to be euthanased by MAF investigators.”

In September 2007, MAF obtained a temporary enforcement order that directed Spitz to comply with the instructions given by MAF investigators. A follow up visit showed Spitz to be substantially in breach of that order, leaving MAF Investigators with no choice but to obtain a further court order to de-stock his properties.

MAF enforcement acting director Jacqui Pate said Spitz not only repeatedly ignored court orders and requests from inspectors but also made the situation more difficult for inspectors by continually moving stock between properties.

“If he had taken the advice and support offered by MAF staff and veterinarians, and accepted that his animals were in a bad state, he may not be in this position now,” she said.

Great story, isn’t it?   Leaving aside the ridiculously low sentence, let’s look at these facts!   Over a period of at least three months, Spitz slowly starved hundreds of cattle to death.  Was he alone in this act?  Hell, no.  The Ministry of Agriculture (MAF) stood by and watched!  In July, they come to the farm and see animals dying – three on a body score of 1-10 is pretty darn low, those animals were suffering, believe me.  Do they shut him down?  Hell, no.  They give out ‘notices’.   So, next up, MAF checks out the farm for three months, and guess what.  He’s still starving the animals.

Do they shut him down?  Nah.  Let’s just let the animals die.

It takes months longer, and some final follow-up visits before they finally take over the farm, shoot most of the remaining animals and take Spitz to trial.  Despite the fact that he ignored court orders (contempt), tried to deceive investigators, and let hundreds of animals suffer, Spitz walks away with 250 hours community service.  Not only did the politicians not complain, they failed to notice that the government allowed much of it to happen!

Am I missing something?  Not to make light of what happened in Wellsford – it was heinous! – but wasn’t what happened here in Rotorua at least comparable?  Wellsford lasted 10-15 minutes.  Spitz starved his animals for months.  Strangely, Simon Bridges wasn’t up demanding action.   Nor was the Sunday Star Times.

Sadly, the hypocrisy doesn’t end there.  What forced me to write this blog – and almost made me lose my brunch – was that in the same issue of the Sunday Star Times today, in the Focus section, is a long article about heli-hunting, which involves taking people by helicopter for money to shoot Himalayan Tahr.  Oh, it’s legal, and despite all the protests by Goff, Key, Collins et al about ‘being humane to our animals’, there are no moves to regulate or stop this activity any time soon.  Here’s an excerpt:

The video shows a Himalayan Bull Tahr being herded from the air, shot and wounded, and eventually taking refuge in a small cave in the South Island’s mountain wildnerness…

Filmed from the chopper, the video… shows the American being set down near the cave mouth, pointing his rifle into the darkened entrance and firing.  “It’s so dark in here, I pretty much pointed where I thought he was gonna be”…

[A]nimals are driven to exhaustion by the helicopter, and guides have been known to use shotguns to “sting” animals and drive them towards waiting clients.

Great stuff, isn’t it.   Where are the cruelty prosecutions?   Where’s the outrage?   I’ll spare you the rest, and conclude with one point.  By all means, let’s make sure the Wellsford boys are prosecuted properly.  And sure, let’s “do something” to rectify animal cruelty.  But for God’s sake, let’s stop pretending we care about animals being cruelly treated unless we’re actually willing to mean it.  This can’t just be about dogs, can it?

Final Point
I’ll end this note on a final point about Wellsford.  On page A2, the Sunday Star Times revealed that there was a ‘new twist in the Wellsford Massacre’, noting that the neighbour, Russell Mendoza, may not have committed the killings.  It now reports that the killings were done by a truck driver friend, Tony Campbell, though Mendoza loaded the shotguns.  Apparently, Mendoza is making these claims in an attempt to minimize responsibility.  It shouldn’t matter though.  Any way you slice it, he was a party to the killings, and under normal principles of criminal law, he’s liable for the acts, along with any other perpetrators.