Application for discharge without conviction — ill-treating an animal — animal cruelty — Animal Welfare Act 1999, ss 29 & 169 — Sentencing Act 2002, s 106 — Erickson v Ministry for Primary Industries [2017] NZCA 312 — Waikato SPCA v Wilson [2017] NZDC 9722 — Rahim v R [2018] NZCA 182. The defendant had pleaded guilty to one charge of ill-treating an animal under s 29 of the Animal Welfare Act, a charge carrying a maximum sentence of 12 months' imprisonment or a $50,000 fine. The defendant sought a discharge without conviction. He had been filmed kicking and hitting his dog on one occasion; he claimed it was a one-off incident as he had become frustrated at the dog for repeatedly urinating in her cage. His partner corroborated his claim. A vet and animal behaviourist reviewed the footage and concluded that the defendant had used significant force as a way of punishing the dog and will cause confusion, fear and anxiety in the dog and make the dog anxious in the presence of men. In assessing whether to grant a discharge without conviction, a court has to be satisfied that the consequences of a conviction would be all out of proportion with the gravity of the offending. The Judge noted that there were no specific guideline cases on how a person ought to be punished under s 29 but considered, based on a Court of Appeal case stating principles to be taken into account, that the relevant factors were causing significant pain or distress; using extreme violence; premeditation and planning; repetition; and whether the defendant took a lead role in the offending. Here, it was a one off incident, albeit one where significant force was used but which did not amount to extreme violence. The Judge assessed it in the lower end of the range. The Judge considered the defendant's personal circumstances: he was in New Zealand on a visa studying, and a conviction would mean there was a real and appreciable risk that his visitor's visa would be revoked and he would be deported. The defendant had no prior convictions and was otherwise of good character. The Judge considered that the consequences of a conviction would be all out proportion with the gravity of the offending, and determined that a discharge without conviction was appropriate. The Judge noted that had a conviction been entered, an order could have been made to disqualify the defendant from owning an animal, but was statutorily barred from doing so if a discharge without conviction was granted. However, a discharge without conviction was not a means to avoid punishment. The Judge discharged the defendant without conviction on the charge and imposed reparation of $2000 to be paid in weekly installments of $30. Judgment Date: 21 July 2020