Ministry of Agriculture and Forestry on behalf of Otago SPCA Dunedin v Thomson DC Nelson CRI-2011-012-2612 [2012] NZDC 200 (15 February 2012)

Last Updated: 20 January 2020

IN THE DISTRICT COURT AT NELSON

CRI-2011-012-002612 FINAL WARNING

MINISTRY OF AGRICULTURE AND FORESTRY ON BEHALF OF OTAGO SPCA DUNEDIN

Informant

v

JOSHUA MARC THOMSON

Defendant

Hearing: 15 February 2012

Appearances: M S Alexinas for the Informant S J Zindel for the Defendant

Judgment: 15 February 2012

NOTES OF JUDGE A A ZOHRAB ON SENTENCING

[1] Mr Thomson you are aged 25, and are for sentence having pleaded guilty to one charge of wilfully ill-treating a heifer causing the animal to be permanently disabled. The maximum penalty for that offence is a term of imprisonment of five years, or a fine not exceeding $100,000, or both.

[2] In terms of the summary of facts that you pleaded guilty to, that reads as follows. You were living on a dairy property in Outram in November 2010, working on a casual basis as a farm labourer. In the afternoon, on 22 November, you were working at the farmyards, drenching and dehorning calves. You were assisting the owner and another farm worker. One of the heifers would not turn around in the

MINISTRY OF AGRICULTURE AND FORESTRY ON BEHALF OF OTAGO SPCA DUNEDIN V THOMSON DC NEL CRI-2011-012-002612 [15 February 2012]

race. The summary describes you as becoming frustrated and angry. You have picked up a 1.3 metre length of three-quarter inch steel pipe and have hit the heifer.

[3] There is some dispute about the facts, but I will just touch on that in a moment, and how we resolve that today. The owner saw you, according to what he has told the informant, hold the pipe with two hands, swing the pipe forcefully, hitting the heifer in the face. Given your size, given the nature of the steel pipe, its length and its measurements of three-quarter inch, not surprisingly it caused injury. The owner describes seeing blood coming from the heifer’s eye, calling out to you and telling you to settle down and cut it out.

[4] The summary then describes you as immediately hitting the heifer a second time with the pipe, ignoring the call to stop your actions. You have no recall of the second strike. That, of course, is an aggravating factor to the whole incident, that there was a second strike, having been warned by the owner.

[5] How those disputes are traditionally resolved is by way of a disputed facts hearing but I am told through counsel that you do not wish to pursue that, because that would involve the matter going back down south. So you will be dealt with today on the basis that there were two strikes.

[6] On 23 November the owners lodged a complaint. A MAF inspector has inspected the injured calf. The heifer’s right eye was dislodged and was protruding, and there are photographs showing that. Upon closer inspection it was observed that the right eye was cut, and the eyeball itself had burst.

[7] Following examination, the veterinarian called to assist stated that the calf had sustained a serious injury to its right eye and was now blind in the eye, and his opinion, or her opinion, was that the animal be euthanised, given the nature of the injury to the calf, because on entry to the herd the calf is likely to be subjected to severe bullying as a two year old, given the loss of vision. The heifer’s owner was present during the examination and agreed with the veterinarian’s recommendation, and the heifer was euthanised. And the vet’s opinion also was that the animal would

have suffered severe pain and suffering from the time of the injury until it was euthanised.

[8] You were interviewed. When asked what had happened and how the calf received the injury, you admitted you were frustrated that afternoon and hit the calf with a pipe. By way of explanation, you stated you were wound up and frustrated because the owner had come down late in the afternoon wanting the calves drenched when there were more important jobs to do on the farm.

[9] You have previously appeared before the Courts, but on unrelated matters.

[10] In terms of the sentencing process, as well as taking your plea of guilty and hearing the summary of facts at sentence, I heard some preliminary submissions as to the appropriate response. The informant has filed written submissions and have advocated for a start point of a prison sentence of somewhere between 12 to 18 months. They have also suggested that there should be a disqualification from owning or exercising authority in respect of animals. They have acknowledged that home detention would be available as a sentence, and that is something up to the Court.

[11] And, as part of the sentencing process, they have provided me with a number of decisions, some which predated the increase in maximum penalty, some which have post-dated the increase. In particular, the Godsiff v R HC Blenheim CRI-2011- 406-18, 22 November 2011 decision where a sentence of imprisonment was imposed for a young man who had been involved in the killing of a significant number of seals. There were 23 seals which were killed by him and an associate by the striking with a metal pipe. He was sentenced to two years’ imprisonment and, on appeal, a sentence of home detention was thought more appropriate.

[12] I have a probation officer’s report which tells me about your background and circumstances. The recommendation is a sentence of home detention. I have heard submissions today from Mr Zindel. He advocates for a lower start point of nine months’ imprisonment, and asks that, after the appropriate credits are given, that a sentence of home detention be imposed. He accepts the reparation figure

advocated for on behalf of the informant. He has also provided references as well from employers. You are currently employed as a contract apple picker, an apple pruner, and you have been involved in the junior management of the business where you are working. They believe that you are reliable, hard-working, punctual, and they value you as an employee.

[13] I also have a reference from a former employer where you worked on a 420 cow dairy farm during the spring and summer of the 2010/2011 season. You are described as a hard worker, showing initiative, having natural ability when working with stock, especially while milking or working with cows in the yards. You are described as being relaxed in their presence, never showing any anger towards the animals, and treating them with respect.

[14] In terms of the sentencing process, as far as the sentencing submissions are concerned, I have been reminded of the appropriate sentencing principles which apply. Here, they have to be accountability for harm done to the community, promotion of a sense of responsibility on your part for that, and there is an issue there in terms of whether or not you are responsible for what has happened in terms of whether you have a sense of responsibility. The report writer seems to suggest that you do not show remorse. Mr Zindel, on your behalf, contends that you do show remorse.

[15] The other factors I need to take into account are denunciation of your conduct, deterrence both specific and general, meaning for you and also for other persons who are dealing with animals.

[16] The other factors I need to take into account are assessing your blameworthiness. I need to assess the seriousness of this offending. I also need to make sure that I deal with you in a fashion which, as best I can, is consistent with how others have been dealt with, and that is why both lawyers have referred me to other sentencing cases for ill-treatment of animals.

[17] I also need to take into account your situation, and impose the least restrictive outcome. And that is part of the reason why Mr Zindel has advocated that a sentence of home detention is the appropriate response.

[18] The informant has identified a number of aggravating, those are factors which make your offending worse. There was actual violence and the use of a weapon, and that is undoubted here when we have someone, such as yourself, striking an animal that is unable to defend itself, with a 1.3 metre length of three-quarter inch steel pipe. The only purpose for striking an animal in that way, with a weapon like that, can be to subject it to injury, and it is hardly a surprise that there was an injury.

[19] A further aggravating factor is the extent of loss, damage, or harm resulting from the offence. The calf’s right eyeball was burst. It caused blindness, pain, and suffering. Your lawyer points out that the death did not result directly, as it were, from the strike in that you did not strike it and it therefore died, but in many respects that is really semantic because there were two strikes, it burst its eyeball, it suffered severe pain, and it was a humane thing, in my view, to have the animal euthanised rather than to have to try and struggle with one eye and any subsequent pain.

[20] There is cruelty and, once again, it is a hard thing to work out how cruel it is when one compares the different cases, but anybody striking a sentient being such as a cow, with a 1.3 metre length of three-quarter inch steel, there is obviously a degree of cruelty involved in it, and for many people they would find it hard to imagine that anybody could strike an animal such as that with a 1.3 metre length of three-quarter inch steel when it is unable to protect itself. But, I suppose, given what I see, day in and day out in the Courts, it is probably not that surprising, more especially when you see what people do to other people, especially to people that they love on many occasions. But there is a degree of cruelty here when anyone strikes a defenceless animal with a length of steel.

[21] You were also in a position of responsibility or authority, and I think it entirely appropriate that the informant records the animal as being entirely at your mercy and unable to defend itself or escape.

[22] In terms of mitigating factors, I am referred to your age. They acknowledge credit for a plea of guilty. What they contend though is that, whilst you have pleaded guilty, you continued to blame the calf’s owner for this, because if he had not wound you up, then none of this would have happened, so that obviously is of concern, because it seems to me that there is still an element, on your part, of minimisation of responsibility.

[23] It was not the owner that hit the heifer. It was you that hit the heifer. You made the conscious decision to pick up a metal pipe. I have worked on farms. I have seen farm owners get frustrated and kick sheep, and kick cattle, when they have been driven to frustration, but I have never seen anybody strike an animal in the head with a metal bar.

[24] You have got previous convictions but they are not relevant, as such, save for the fact that it is not possible to claim that you have led a blameless life and that can be something that could be taken into account, unlike, for example, the Godsiff case where there was a young man with no history.

[25] In terms of reparation, there is $743 sought, which seems entirely appropriate. I am told that you take no issue with that.

[26] In terms of the case law, I have been referred to a number of decisions, Hurring v Society for Prevention of Cruelty to Animals HC Dunedin CRI 2009-412-19, 8 September 2009, Gwatkin v Police HC New Plymouth CRI-2011-443-5, 1 March 2011, Godsiff v R, and Karekare v Police HC Hamilton CRI-2011-419-67, 3 November 2011. Mr Zindel has very helpfully sought to differentiate those cases and, it seems to me, that really I need to take a start point which takes account of the aggravating factors identified by the Crown.

[27] It seems to me, based on the submissions that I have heard, and the cases which are all different, there are variations that predate the increase, post-date the increase, there are different aspects of cruelty. Some of these animals were killed directly as a result of what the people did. Yours was not one of those cases.

[28] But I would have thought, taking into account the aggravating factors identified by the Crown, that a 12 month start point is appropriate for your offending, by way of a prison sentence. That would acknowledge, as I say, the aggravating factors, the two strikes, the defenceless animal, the aspect of cruelty and matters of that sort, and the actual violence and use of a weapon.

[29] You are entitled to your credit for your plea of guilty which takes me to nine months’ prison. Can I give you credit for any other matters? I do not think that I can. It seems to me that there is little in the way of remorse from you that I can use to justify a further decrease.

[30] The issue then becomes whether or not the aims and objectives of sentencing in cases such as this can be met by anything other than a full-time sentence of imprisonment. The factors identified by the Crown, which are applicable here, are accountability, promotion of a sense of responsibility, denunciation, deterrence both specific and general, but also I have got to impose a sentence which is consistent with the sentence imposed on others, and in the Godsiff v R case, the High Court thought that home detention was appropriate in a case where someone has killed 23 seals, striking them with a metal pipe. And, given the facts of your case, I think it would be inconsistent with that case if I was to sentence you to imprisonment. So it seems to me that the aims and objectives of sentencing in a case such as this can be met by a sentence of home detention, coupled with community work.

[31] So you will be sentenced to home detention for a period of four months and two weeks, which is basically half of the length of time of imprisonment. It is a condition of release today that you report to the Services immediately after sentencing, you travel directly to the address that has been approved and await the arrival of a probation officer and security officer. You are to live within the monitoring boundaries of that property and not move without the prior written approval. Also, you are to report to the probation officer as directed.

[32] Given that your sentence of community detention is about to end, as a matter of administrative convenience, I am going to cancel the balance of the sentence of community detention so that the sentence of home detention takes primacy.

[33] You are also required to do community work as well, and there will be 120 hours of community work.

[34] As far as the other matter is concerned, in terms of the disqualification from owning or exercising authority in respect of animals, the informant asks that that happen. I think that is entirely appropriate. The minimum period, in terms of the legislation, is two years, so there is such an order made. The reason why I do that is because there were two strikes. You became incredible frustrated, and it is hard to fathom how somebody, who has worked with animals, could behave in such a manner and strike a defenceless animal in the head with an iron bar. And it seems to suggest to me that there are some underlying issues there. Regrettably I do not have the power or ability to be able to deal with that by imposing any counselling or anything of that sort.

[35] And there is also the reparation as well. That is to be paid within three weeks, that is the sum of $743, and that gets paid to the Court.

[36] And obviously, what you need to understand, Mr Thomson, is that the words “final warning” appear on your record. If there had been any inkling in your prior history of offending such as this, a prison sentence would be the appropriate response. If you were to strike an animal again, prison would undoubtedly follow. Do you understand that warning?

A A Zohrab

District Court Judge