DPP v Kavanagh

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 10 April 2019
• Neutral Citation: [2019] IECA 110
• Docket Number: [29/19]
• Court: Court of Appeal (Ireland)
• Date: 10 April 2019

[2019] IECA 110

THE COURT OF APPEAL

Birmingham P.

Birmingham P.

Edwards J.

McCarthy J.

[29/19]

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

JAMES KAVANAGH

APPELLANT

Sentencing – Causing or permitting unnecessary suffering to or endangering the health and welfare of an animal – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Kavanagh, was sentenced on 22nd February 2019 to a term of three years imprisonment, having entered pleas of guilty to twenty counts of causing or permitting unnecessary suffering to or endangering the health and welfare of an animal contrary to s. 12 of the Animal Health and Welfare Act 2013, and ten counts of failing to protect animal welfare contrary to s. 11 of the 2013 Act. The pleas were entered and accepted on a “full facts basis” in a situation where there were one-hundred and twenty-six counts contrary to the 2013 Act on the indictment. When imposing sentence, the Circuit Court judge imposed a disqualification under s. 58 of the 2013 Act, disqualifying Mr Kavanagh from any involvement with dogs or horses for life. In addition, the judge ordered that Mr Kavanagh pay a sum of €35,000 as a contribution towards the outlay incurred by the ISPCA in relation to the case which was measured at €59,149. Mr Kavanagh appealed to the Court of Appeal against the severity of the sentence imposed and sought, and was granted, a priority hearing for his appeal.

Held by the Court that in selecting the sentence that he did, the Circuit Court judge was imposing a sentence that was within the available range.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 10th day of April 2019 by Birmingham P.

1 James Kavanagh was sentenced on 22nd February 2019 to a term of three years imprisonment, having entered pleas of guilty to twenty counts of causing or permitting unnecessary suffering to or endangering the health and welfare of an animal contrary to s. 12 of the Animal Health & Welfare Act 2013, and ten counts of failing to protect animal welfare contrary to s. 11 of the Animal Health & Welfare Act 2013. The pleas were entered and accepted on a ‘full facts basis’ in a situation where there were one-hundred and twenty-six counts contrary to the Animal Health & Welfare Act 2013 on the indictment. When imposing sentence, the Circuit Court Judge imposed a disqualification under s. 58 of the Animal Health & Welfare Act 2013, disqualifying James Kavanagh from any involvement with dogs or horses for life. In addition, the Judge ordered that Mr. Kavanagh pay a sum of €35,000 as a contribution towards the outlay incurred by the ISPCA in relation to the case which was measured at €59,149.

2 Mr. Kavanagh has now appealed against the severity of the sentence imposed and sought, and was granted, a priority hearing for his appeal. Unusually, much of the focus of attention in the context of an application for bail, or alternatively, a priority hearing, and indeed at the hearing itself, was on matters that occurred subsequent to the imposition of sentence. The prosecution had its origin in a search, under warrant, of premises at Raheenleigh, Myshall, County Carlow, the business premises of the appellant: James Kavanagh, carried out on 14th April 2015 by members of An Garda Síochána and officers of the ISPCA. The premises were licensed as a dog breeding centre. However, the main activity carried on there was in the nature of a dog rescue centre which involved dogs being brought onto the premises, kept there for a period, and then dispatched to different locations, in particular, locations in England.

3 It should be explained that the appellant's wife: Mrs. Jenny Kavanagh, who was a co-accused who received a suspended sentence, was licenced under the Dog Breeders Establishment Act 2010 to operate a dog breeding establishment, having been licenced for that purpose by Carlow County Council. The licence permitted Mr. Kavanagh to keep a maximum of ninety bitches over six months old. However, the nature of his business evolved somewhat, in that he discovered that it was financially more rewarding to take in and transport dogs. Indeed, it appears that in 2014, he had applied to Carlow County Council for a rescue licence, but this was refused. Nonetheless, he continued to take in dogs, both from individual owners and from dog breeding establishments, and then transported these to dog rescue centres in England. These centres paid a fee of the order of €40 to €50 per dog and also covered the cost of travel expenses and a travel passport for each dog.

4 The sentence hearing heard from Garda Catriona Denneny, the investigating Garda, and also from Mr. Conor Dowling of the ISPCA. The scene encountered by the Gardaí and the ISPCA party was a truly shocking one. Later in the course of his sentencing remarks, the Circuit Court Judge would describe it as ‘like something biblical’. The premises were in a truly appalling condition. In total, three hundred and forty dogs and eleven horses had to be removed from the premises over a number of days. In addition, twenty dogs and four horses were euthanised because of their condition.

5 In the course of the sentence hearing, a booklet of photographs was produced and the Garda and ISPCA witnesses gave their evidence by reference to these photographs. In addition, the Court viewed a video. At this stage, perhaps the best account is to be found in the probation report.

6 This report records the fact that during the search of the premises, Gardaí and ISPCA personnel discovered atrocious levels of animal neglect and cruelty. The removal of the animals took place over a period of eleven days. The worst of these cases were removed immediately. However, some animals were less fortunate and had to be euthanised on site for humane reasons. A number of dead dogs were discovered, some of which had apparently been killed and partially eaten by other dogs. The premises were strewn with skeletal remains, dead sheep, and rotting horse carcasses. Gardaí witnessed dogs eating dog and horse carcasses as it appeared that this was their only source of food. A total of four horse carcasses were found in separate dog enclosures.

7 According to information contained in the Book of Evidence, the horses did not show any signs of being shot or given lethal injections (as this would have poisoned the dogs), and it was stated that the horses had died shortly before or after being fed to...