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District Court of New Zealand |
Last Updated: 11 July 2024
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IN THE DISTRICT COURT AT TOKOROA
I TE KŌTI-Ā-ROHE KI TOKOROA
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CRI-2018-077-000509
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MINISTRY FOR PRIMARY INDUSTRIES
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Prosecutor
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WARREN MICHAEL GEORGE KOBERSTEIN
Defendant
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Hearing:
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2 March 2022
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Appearances:
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M Dunn for the Prosecutor P Fisher for the Defendant
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Judgment:
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2 March 2022
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NOTES OF JUDGE M A MacKENZIE ON SENTENCING
[1] Mr Warren Koberstein, today you appear for sentence in relation to three charges laid under the Animal Welfare Act 1999.
[2] The first charge is that laid under s 28A of the Act. That is a charge of reckless ill-treatment of eight sheep with the result that all eight sheep died. The maximum penalty is three years imprisonment, a fine not exceeding $75,000, and the Court can make an order for disqualification also.
MINISTRY FOR PRIMARY INDUSTRIES v WARREN MICHAEL GEORGE KOBERSTEIN [2022] NZDC 3579 [2 March 2022]
[3] Then there are two charges laid under s 12 of the Animal Welfare Act. Those charges are that you failed to prevent and treat flystrike in approximately 100 sheep. The maximum penalty is 12 months imprisonment or a fine not exceeding $50,000. Disqualification can also result.
[4] You were found guilty of the three charges at a judge-alone trial.
Principles/purposes of sentencing
[5] Firstly, I want to address the principles and purposes of sentencing. The Animal Welfare Act has a protective function. The purpose of the Act has been considered by the Court of Appeal in Balfour v R1 and Erickson v Ministry for Primary Industries.2 The purpose of the Act was to reform the law relating to welfare of animals. The new provisions of the Act were derived from internationally accepted principles known as the Five Freedoms. Of relevance to sentencing today are two of the freedoms:
- (a) the freedom from pain, injury and disease; and
- (b) the freedom from fear or distress.
[6] The Sentencing Act 2002 also applies. The relevant principles and purposes of the Sentencing Act are accountability, deterrence, and denunciation. Those principles are important because of the pain and suffering which the sheep in question must have suffered, but also accountability, deterrence and denunciation are important because, as I have said, the Animal Welfare Act has a protective function noting that animals are sentient.
[7] There is a need for a judge to impose a sentence that focuses on rehabilitation as well, is the least restrictive outcome appropriate in the circumstances, reflects the overall gravity of the offending, and is generally consistent. Because of the need to
1 Balfour v R [2013] NZCA 429.
2 Erickson v Ministry for Primary Industries [2017] NZCA 271.
be generally consistent, counsel here have referred to cases and whether they are similar or not.
Flystrike
[8] This case is about flystrike. In my judgment of 23 June 2021, I set out in detail what flystrike is, the signs of flystrike, and treatment. I do not need to go over everything I said in the judgment about flystrike. I will though, make some brief observations about flystrike. Flystrike is infestation with maggots from various different fly species, which occur commonly in sheep, where the maggots feed on the skin of the sheep or on the living tissue and cause damage and other issues which sometimes lead to death of the sheep.
[9] There is a particular risk period for flystrike. In the North Island, the risk period starts sometime in October, depending on the season, and runs to about May, dependent on the season. The high risk period is generally December to March.
[10] Temperature is very important for fly activity, but also moisture. Flies tend to be more active when it is warm and wet, which was the case in the early part of 2018.
[11] It is important to have a preventative programme for flystrike, especially in the North Island, which will involve a multifaceted approach. No preventative programme is perfect, so monitoring regularly during the flystrike season is very important, and particularly during periods of high risk.
[12] There are a number of signs of flystrike, including behavioural signs, but also physical signs, as I detail in the judgment.
[13] Treatment of flystrike is particularly important. It can progress quickly, so treatment is urgent. If it is delayed even for 12 or 24 hours, that can have a big impact on prognosis. It is a very unpleasant condition for sheep so, from a welfare perspective, immediate treatment is recommended. This is because sheep suffering from flystrike have various different physical consequences from behavioural activities, such as depression, ceasing eating, and becoming recumbent. But also,
sheep suffer various types of pain and distress. As Dr Ridler said in her report, flystrike is recognised globally as a condition that seriously compromises the welfare of sheep. The maggots feed on living tissue, resulting in significant pain and distress, but also results in depression, anorexia, dehydration, and death.
The facts
[14] In terms of the facts, two animal welfare inspectors went to your farm in February of 2018 in response to a complaint about sheep with flystrike. After a brief discussion with you, the inspectors located dead and live lambs with significant flystrike issues. The inspectors issued you with a s 130 notice and provided you with three options to treat the sheep to alleviate suffering. From the perspective of the inspectors, flystrike was obvious.
[15] The inspectors returned to the farm a few days later, on 26 February, to monitor compliance with the notice. You had complied with the notice, as a number of fly- struck sheep had been shorn.
[16] The reckless ill-treatment charge relates to eight sheep with significant flystrike that died. I found that you had recklessly ill-treated the eight sheep, causing them to suffer pain or distress that was unnecessary in its kind and degree. This was because I accepted evidence that:
- (a) Flystrike was present in the flock for a minimum of seven days.
- (b) The fact that the sheep were suffering from flystrike must have been obvious to you. You were aware that sheep can die from flystrike also.
- (c) Flystrike causes pain and suffering in sheep and badly affected sheep can die.
- (d) With regular monitoring and treatment, sheep should not get to the stage where they die from flystrike.
[17] As such, I found that you had deliberately run the risk that sheep would die as a result of ill-treatment when it was unreasonable to do so. You knew that there was flystrike on the farm, that badly affected sheep can die, and that there were steps that you could and should have taken to prevent this by treating the sheep.
[18] In terms of the s 12 offences, these two charges relate to you failing to prevent and treat flystrike. There were 100 sheep affected.
[19] I accepted that you were taking some steps in terms of prevention and treatment, but I did reject your evidence about various steps you said were taken. There was a prevention plan in place, but it was insufficient to prevent flystrike. The aspects of the treatment plan that I rejected are detailed in the judgment, but include the use of Zapp Encore in early January, that you were monitoring other sheep frequently post-15 February when flystrike was obvious, that there was increased surveillance by you and Mrs Koberstein post-15 February, and your evidence about contacting potential shearers on 18 February.
[20] I also assessed that you failed to treat 100 sheep appropriately. Urgent treatment, as I have said, is required to alleviate pain or distress.
[21] Dr Ridler’s evidence, which I accepted, was that once you were aware of flystrike on the farm in February, then you needed to take steps, including mustering the lambs, to check them and treat them for flystrike.
Approach to sentencing
[22] In terms of the approach to sentencing, it involves two steps.
[23] The first step is to set a starting point reflective of the features of the offending itself. I will also consider other cases in setting a starting point.
[24] The second step is to consider any personal factors, whether they are aggravating or mitigating. Usually a guilty plea credit is taken into account at that second step, but that does not apply here because you did not plead guilty. You were found guilty of the charges.
The starting point
[25] There is no guideline judgment for animal welfare offences. In Erickson v MPI, the Court of Appeal listed a number of factors to be considered when deciding the gravity of the offending. In terms of the factors listed in Erickson v MPI, I consider that there are two of the factors referred to in Erickson v MPI which are relevant. Firstly, the causing of significant pain and distress and, secondly, the offender taking a leading role in the offending, as opposed to being a follower or acting under direction.
[26] In terms of the submissions on the subject of a starting point, the Ministry of Primary Industries submits that a starting point fine in the vicinity of $50,000 is appropriate, after referring the Court to various cases. It is the prosecutor’s submission that the circumstances here are more serious than two cases to which they have referred me, being Ministry for Primary Industries v Henson3 and Ministry for Primary Industries v Brown.4 Mr Dunn, in his written submissions, submits that while Ministry for Primary Industries v Thompson,5 another case, involves greater numbers of animals, it is also less serious than what happened here.
5 Ministry for Primary Industries v Thompson [2019] NZDC 4468.
[27] MPI also seek an order disqualifying you from owning or exercising authority in relation to any ovine animal. Alternatively, the prosecutor submits that rather than a disqualification order, I could make an order to the effect that you are supervised by a veterinary for a period of three years. That could take the form of a disqualification for a period of time, unless there is a supervision arrangement in place.
[28] The rationale from MPI’s perspective is focused on animal welfare. As Mr Dunn bluntly put it in his oral submissions, MPI do not want a repeat of what happened here.
[29] Mr Fisher, on your behalf, submits that a modest fine is appropriate in the circumstances. It is his submission that a starting point fine in the vicinity of $10,000 for the reckless ill-treatment charge would be appropriate.
[30] Mr Fisher amplified his written submissions orally today by submitting that I can also potentially take into account the delays that have been involved. Mr Fisher provided the Court today with an additional timeline post the hearing in March 2021. The submission made is that a remedy other than a stay is for there to be a reduction in sentence.6
[31] Mr Fisher’s submission both in his written submissions and orally is that a s 169 disqualification order is not required. Mr Fisher has added to the written submissions in his oral submissions today. The nub of the oral submissions is that the circumstances of these charges do not reach the threshold where disqualification is required. Mr Fisher has pointed to the fact that you did take some steps, that there was a particular context which related to the unexpected weather conditions with a very warm summer and a very wet summer. But, in summary, Mr Fisher’s submission is that a disqualification order should not be made.
[32] Mr Fisher also submits that the decisions referred to by the prosecutor are distinguishable as they involve a complete abrogation of duties over a substantial period of time, which is not the case here. In his written submissions, Mr Fisher notes
that you do not accept that no effort was made to identify or manage the flystrike problem. Mr Fisher submits that it is inconsistent with the factual findings of the Court. At paragraph 4.1 of Mr Fisher’s written submissions, Mr Fisher took issue with the prosecutor’s submission as I have just outlined it and referred me to paragraph [48] of the judgment, where I acknowledged your evidence about steps you say you had taken.
[33] I just want to address Mr Fisher’s submission on this point briefly. Paragraph [48] of the judgment sets out a timeline of steps that you say you took. But I did not accept your evidence about all the steps that you say that you took and, in particular, I refer to paragraph [31] of the judgment where I took issue with your evidence about steps you said you took. I do not need to repeat those matters because they are set out in the judgment, and I have already referred to them.
[34] The lead charge here is the s 28A reckless ill-treatment charge. The aggravating features are the following:
- (a) The significant pain and distress caused to the eight sheep that died.
- (b) You are an experienced farmer and you were familiar with the relevant Code of Welfare. Therefore, you were and are on notice about signs of flystrike and what was required in terms of treatment.
- (c) The signs of flystrike must have been obvious to you. They were obvious to the animal welfare inspectors when they arrived at your property.
- (d) The steps that you did take were insufficient.
[35] In terms of the s 12 charges, the features that I consider relevant are the number of sheep affected, being 100, that you failed to take sufficient steps to prevent and treat flystrike and, in turn, that led to the pain and suffering of the animals.
[36] The overarching aggravating feature of all three charges is the factor that is mentioned in Erickson v MPI, which is that you took a lead role in the offending.
While the farming is a joint enterprise, the evidence clearly is that you were in charge of the farming operations.
[37] I do want to say something about the cases that counsel have referred to. The first case is MPI v Henson. That involved three charges; a charge of recklessly ill- treating two lambs by failing to take reasonable steps to protect them from flystrike or to treat them once they became badly fly-struck. Both lambs had to be euthanised. There were charges laid under s 12; one in relation to failing to treat 44 lambs and eight ewes badly affected by flystrike and one of failing to protect all sheep on the property from flystrike. In that case, the sheep had not been shorn, crutched, or dagged. In total, there were 52 sheep affected by flystrike. Mr Henson had not been exercising direct supervision over the 2,300 sheep on the property. It had been delegated to someone else.
[38] A disqualification order was sought in that case, as Mr Henson was still farming for his livelihood, but the court noted that given disqualification and fines are so intertwined, the level of fines must reflect the benefit of not having a disqualification order imposed.
[39] In MPI v Henson, there was a global starting point of $40,000 and the presiding Judge declined to make a disqualification order.
[40] MPI v Thompson involved four charges. There were two charges of recklessly ill-treating sheep. The lead charge was a reckless ill-treatment charge relating to no more than 60 sheep. The animals died through the failure to adequately prevent and treat them for flystrike. There were also two s 12 charges relating to failure to prevent and treat 120 sheep with flystrike. In that case, the starting point was $42,000; $32,000 for the s 28A charge and $10,000 for the s 12 charge.
[41] Mr Thompson was an experienced, 80-year-old farmer. But he had a number of health problems. He could no longer crutch sheep. He had difficulties in finding shearers and suitable employees. He complied with the s 130 notice and particular emphasis at sentencing appears to have been on his health and other issues.
[42] Then there is MPI v Brown. Mr Brown was sentenced in relation to four charges; reckless ill-treatment of two sheep, failing to meet the needs or prevent suffering of a ewe stuck in a swamp, failing to meet the needs and failing to prevent the suffering of eight fly-struck sheep, and failing to comply with a notice to treat flyblown sheep.
[43] When MPI inspectors visited Mr Brown’s property, eight sheep were found to be suffering severe pain and distress and required urgent treatment. The sheep had not had any form of oversight in the two weeks prior. Three of the sheep had to be euthanised, as Mr Brown was unable to locate them and muster them into the yards for treatment.
[44] Judge Northwood held that the reckless offending was far less serious than MPI v Henson and indicated a starting point of $10,000. For the two s 12 charges of failing to treat a fly-struck sheep and the sheep stuck in the swamp, there was a total of $6,000. No order for disqualification was made, as it was not necessary to meet the purposes of the Act. Mr Brown had taken steps to ensure that it did not happen again and it was not viewed as serious as other cases, where no disqualification order had been made.
[45] Having looked at those cases, while no two cases are ever the same, the cases are helpful, particularly MPI v Henson. I agree that MPI v Henson is less serious than the situation here, given that involved lower animal numbers, and Mr Henson had not been exercising direct supervision over the animals and the farm. That is not the case here and, as I have said, drawing from Erickson v MPI, I consider that the fact that you were in charge of the farming operation is an important aggravating factor.
[46] MPI v Thompson did involve greater numbers involved in the reckless ill-treatment because that charge involved 60 sheep, but clearly Mr Thompson’s health circumstances were taken into account in assessing the appropriate sentence.
[47] I agree with the prosecutor’s submission that although a very helpful case,
MPI v Brown is significantly less serious than the circumstances here. That is because
MPI v Brown involves eight sheep in terms of the s 12 charges and the reckless ill- treatment charge involved two sheep.
[48] So in terms of setting a starting point, I have taken into account those three cases and I consider that MPI v Henson, while not completely factually similar, is the most comparable case. As I have said, I do not consider MPI v Brown to be particularly helpful, given that the circumstances were less serious and involved markedly lower numbers in terms of animals.
[49] As well as the cases, the factors that I consider relevant are that you were firmly in charge of the farm, that you acknowledge you were familiar with the relevant Code of Welfare regarding flystrike and you did not take sufficient steps to manage, prevent and treat the flystrike when it became obvious. Relevantly, you are clearly able to do so as you did comply with the s 130 notice. I also take into account that you did comply with the s 130 notice.
Disqualification?
[50] Before I set the starting point fine, I want to set out my findings in respect of the disqualification issue. That is relevant, as it was noted in MPI v Henson that the fines and disqualification are inextricably linked. At the time of the sentence indication hearing in MPI v Henson, Judge Edwards said at paragraph [6]:
I take the view that the wording used in s 169(3) envisages that the fine and disqualification period ought to be considered together in a situation involving a defendant who is still farming for their livelihood. The subsection refers to a disqualification order being made “in addition to or in substitution for any other penalty or order”. Also, s 169(4)(f) provides that in considering whether to make a disqualification order, the Court must have regard to “any other circumstances of the case”. This is addition to the requirement to have regard the purposes of Parts 1 and 2 of the Act, the maximum penalty for the charge, the seriousness of the offending, the character of the person and the previous offending history of the person.
[51] The subsection refers to a disqualification order being made in addition to or in substitution for any other penalty or order. Also, s 169(4)(f) provides that in considering whether to make a disqualification order, the Court must have regard to any other circumstances of the case. This is in addition to the requirement to have
regard to the purposes of Parts 1 and 2 of the Act, the maximum penalty for the charge, the seriousness of the offending, the character of the person, and the previous offending history of the person.
[52] The power to make a disqualification order is contained in s 169 of the Animal Welfare Act. As noted in MPI v Henson, s 169(4) sets out the factors that the Court must have regard to. These are the purposes of Parts 1 and 2, the maximum penalty specified for the charge, the seriousness of the offending, including the nature and gravity of the harm, the number of animals involved, and the frequency of the offending, the character of the person, the previous history (if any) of the person, and any other circumstances of the case.
[53] I have reviewed a High Court decision on the issue of disqualification, Barnes v Ministry of Primary Industries.7 In that case, Clifford J did not think that Mr Barnes’ conduct approached the level of seriousness where a disqualification order was required. Clifford J considered another case, R v Collins,8 where a defendant continued to ill-treat his horses, notwithstanding an inspection of his property, a s 130 notice, a further period of ill-treatment where the animals continued to decline in condition. R v Collins involved horses. In that case, a term of disqualification of two years was held. The defendant, the Court of Appeal said in R v Collins, had failed to fully appreciate the basic needs of dependent animals.
[54] Barnes v MPI involved three charges of ill-treating animals and two of failing to meet the physical health and behavioural needs of animals. It related to stock on a farm being in very poor condition, including a number of dead or distressed animals.
[55] It is a matter of deciding whether a disqualification order is required to meet the circumstances contained in s 169(4). The focus on the Animal Welfare Act is protective and to ensure the Five Freedoms of animals.
[56] Is a disqualification order, taking into account the purposes of the Animal Welfare Act, appropriate or is it disproportionately severe, taking into the account the
7 Barnes v Ministry of Primary Industries [2015] NZHC 534.
8 R v Collins [2008] NZCA 235.
factors in subs (4)? While the reckless ill-treatment charge is serious, given that eight sheep died in circumstances where they must have suffered greatly, the number of animals involved in respect of all three charges in the grand scheme of things is not high and this particular set of circumstances is a one-off. It is not a situation where the ill-treatment and the failure to prevent and treat went on for a lengthy period of time. Also, Mr Koberstein did comply with the s 130 notice.
[57] In terms of character, you have no previous convictions. You do have some warnings, namely two, issued. This was considered in MPI v Brown. Judge Northwood in MPI v Brown accepted the submission that the warnings given by MPI cannot be elevated to the status of previous convictions and thereby impacting on Mr Brown’s previous character to the point that a reduction for good character is unavailable, but it is also relevant to the question of disqualification.
[58] In terms of the previous offending history, there is none.
[59] I also take into account any other circumstances of the case. The weather conditions are something of a double-edged sword. If anyone knows anything about flystrike, it is particularly obvious that a particular risk factor for flystrike is wet and warm conditions. I appreciate that you could not have predicted what the weather was going to be like in the early parts of 2018, but you should have been on notice once you were aware that it was hot and that it was very wet that you needed to be extra vigilant. But I accept that the weather conditions had a part to play.
[60] Also relevant is the fact that you have sought professional advice about a preventative plan. That preventative plan is annexed to Mr Fisher’s written submissions. In my view, that falls to be considered at subparagraph 4(f). You have sought specific advice from King Country Vets and, as the vet noted, flystrike prevention is a dynamic situation that must be monitored and adapted depending on multiple factors, particularly application methods and environment conditions.
[61] There is a plan that is set out in the report of the veterinarian, Anna Martin. Dr Martin is clear that there are a number of steps that can be taken as per the prevention plan. Dr Martin also suggests additional methods to reduce flystrike and
set them out in the ultimate paragraph of her report. It is a good and comprehensive plan, after having listened to the evidence during the judge-alone trial about flystrike.
[62] All in all, taking all the relevant factors into account, but particularly that without diminishing the pain and suffering of the animals, it did not ultimately involve a high percentage of the flock. You do not have any previous offending history. You complied with the s 130 notice, so you have an ability to do what is necessary but, more particularly, there is the flystrike prevention plan.
[63] So, I do not consider that a disqualification order is required, even though I do take the protective purposes of the Animal Welfare Act into account. I agree and endorse the sentiments of Mr Dunn, the prosecutor, that MPI do not want a repeat of this and I am sure you do not either, Mr Koberstein.
[64] The defining factor which compelled me to not exercise my discretion to impose a disqualification order is the flystrike advice and prevention plan which has been put in place. Of course, once sentencing is concluded, the Court will not know whether you carry on with that plan, but it is clear, Mr Koberstein, that you now understand the need for a fulsome prevention plan and the type of factors which can make for a significant flystrike problem. It is your willingness to learn from this incident and consult a veterinarian and put in place this plan, ultimately, which tipped the scales in terms of whether I exercise my discretion to make a disqualification order under s 169. I am aware that it would have a severe impact on you, given that farming is your livelihood and that is a factor which I considered also, but that has to be balanced with the purposes of the Animal Welfare Act. But ultimately, although a finely balanced matter, I make no disqualification order.
Adjusted starting point fine
[65] I return to setting the fine, then. I deliberately dealt with the disqualification prior to setting the fine because I agree with the view taken by Judge Edwards in MPI v Henson that the two are inextricably linked.
[66] Given that I have not made a disqualification order and given that I assess the situation here to be more serious than MPI v Henson, I have decided to adopt a global starting point slightly above MPI v Henson and that global starting point is $45,000 in relation to all three charges.
Mitigating personal factors
[67] I turn to the second step, which is to consider any matters of personal mitigation. I say matters of personal mitigation, because there are no aggravating personal factors. You have had the two warnings to which MPI refer, but they should not be elevated to previous convictions. Previous convictions are personal aggravating factors.
[68] In terms of matters of personal mitigation, Mr Fisher has referred in his written submissions to various matters, including the steps that you have taken since to put in place a comprehensive flystrike prevention plan and the stigma for you in terms of living within a small rural community of a conviction of this nature.
[69] I consider that the provisional starting point should be reduced in two ways. Firstly, in relation to matters of personal mitigation. I intend to reduce that provisional starting point fine by $5,000 or just over 10 per cent to take into account the measures that you have taken to put in place a prevention plan and your otherwise good character.
[70] The credit might have been higher for the measures that you have put in place but for the fact that they were a critical element of my decision not to impose a disqualification order. So that would reduce the fine provisionally to $40,000.
[71] I have also decided to reduce the fine again for the matter referred to by Mr Fisher relating to the stay. The caselaw is clear that a remedy short of a stay can be a reduction in sentence. Whilst I did not grant the stay, there is no doubt that it has been a long time between charging and sentencing. Those issues have not been caused by you. They have not been caused, in my view, by anyone in particular. They are what I would describe as broadly systemic issues in combination with the effect of the
pandemic.9 But, nevertheless, it is a long time to have all of this hanging over your head and in that regard, I reduce the sentence by a further $5,000, so that will result in a global end fine of $35,000.
Sentence
[72] I will impose the fines as follows:
- (a) In relation to the ill-treatment charge, I will record a fine of $25,000.
- (b) In relation to the s 12 charges, there will be fines of $5,000 on each of those charges, which is how the $35,000 is arrived at.
Judge MA MacKenzie
District Court Judge | Kaiwhakawā o te Kōti ā-Rohe
Date of authentication | Rā motuhēhēnga: 16/03/2022
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