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Crown seeks jail for men convicted of not caring for horse

Mar 24 2012

The Crown is seeking jail sentences for two men convicted of failing to provide sufficient care for an old horse, before hanging it from an excavator.

In December, Victoria provincial court Judge Sue Wishart found David Whiffen and Clayton Cunningham guilty of not providing enough food to 27-year-old Jalupae, an Appaloosa horse. Wishart found the two men allowed the horse to starve in June and July 2009.

However, Wishart acquitted them of killing the horse, ruling that there was not enough evidence to prove the horse suffered before its death.

The case, described by the B.C. SPCA as a shocking case of animal abuse, continues to stir up public outrage. Again on Friday, people carrying placards protested Jalupae’s treatment outside the Victoria Courthouse. One woman carried a toy horse suspended from a pole.

Inside, at Whiffen and Cunningham’s sentencing hearing, prosecutor Catherine Murray asked Wishart to impose a jail sentence of 45 to 90 days on Whiffen, followed by six to nine months of probation. She also asked for a restitution order in the amount of $297 to Elk Lake Veterinary Clinic.

For Cunningham “who is less morally culpable,” Murray asked for a conditional sentence of 45 to 90 days, followed by nine to 12 month’s probation with conditions to attend drug and alcohol counselling and do community service.

She asked the judge to impose a 10-year prohibition from owning any animal on both offenders.

Whiffen’s defence lawyer Bill Heflin argued that a period of probation is adequate. However, if the judge feels a jail sentence is necessary, it would be appropriate for Whiffen to serve it in the community, he said.

Cunningham, who is representing himself, told Wishart he did not think any sentence was necessary.

Wishart will deliver her decision March 30.

In an ususual twist, both men left the hearing on the morning break before it had concluded. Because Cunningham’s address is unknown, Wishart issued a bench warrant for his arrest so he can be informed of the new sentencing date.

In her submissions, Murray told the court Whiffen never properly cared for Jalupae.

“Even when Jalupae’s deteriorating condition was brought to his attention, he said he was not about to spent any money on an old horse. He allowed Jalupae to continue starving and suffering.”

It was clear to everyone Jalupae was dying but Whiffen didn’t care, said Murray. His moral culpability is very high.

Cunningham, an alleged alcoholic, was not capable of caring for the horse, said Murray. When a veterinarian came to euthanize the horse, Cunningham took Jalupae away.

“He walked that starving, weak horse nine or 10 kilometres and placed him on another property,” said Murray. “It was a cruel act, but in a twisted way, made with good intent.”

Cunningham’s actions were not callous, but ignorant and hampered by his addiction, she said.

Heflin said Whiffen, as owner of the horse, was responsible. He was not deliberately cruel and thought he was exercising reasonable care.

“It was clear, it was dying, but nothing could be done with its teeth,” said Heflin.

On the morning break, Whiffen approached a group of reporters, telling them he didn’t even know Jalupae was his horse.

“The horse was not mine,” he said.

Whiffen insisted he was set up. He claimed the case is an Internet scam and that two Crown witnesses lied to the judge.

ldickson@timescolonist.com

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