Barnes v Ministry of Primary Industries [2015] NZHC 534 (23 March 2015)

Last Updated: 22 April 2015

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2014-454-20 [2015] NZHC 534

BETWEEN	LINCOLN BARNES Appellant
AND	MINISTRY OF PRIMARY INDUSTRIES Respondent

Hearing:	26 February 2015
Appearances:	E J Forster for appellant E M Fitzherbert for respondent
Judgment:	23 March 2015

_{JUDGMENT OF CLIFFORD J}

[1] The appellant, Lincoln Barnes, pleaded guilty to five charges under the Animal Welfare Act 1999: three of ill-treating animals¹ and two of failing to meet the physical health and behavioural needs of animals in accordance with good practice and scientific knowledge.²

[2] On 31 October 2014 Mr Barnes was sentenced by Judge Ross in the District Court at Dannevirke to a fine of $3,200 on each charge.³ Mr Barnes was ordered to pay veterinary costs of $2,646.56 and, as regards each charge, court costs of $130. Finally, the Judge disqualified Mr Barnes from owning or exercising any form of authority over sheep or beef cattle for four years.

[3] Mr Barnes now appeals against that disqualification order. He does not challenge any other aspect of his sentence.

¹ _{Animal Welfare Act 1999, s 29(a).}

² _{Animal Welfare Act 1999, s 12(a).}

³ Ministry of Primary Industries v Barnes DC Dannevirke CRI-2014-010-000176, 31 October

_2014.

BARNES v MINISTRY OF PRIMARY INDUSTRIES [2015] NZHC 534 [23 March 2015]

[4] The Judge subsequently suspended Mr Barnes’ disqualification, pending the outcome of this appeal.

Mr Barnes’ offending – the facts

[5] Mr Barnes farms four separate properties in Hawkes Bay and Manawatu, comprising 269 hectares of land in total. He fattens stock from March to November, and cuts hay and baleage during the summer months. He carries a small amount of stock through the summer.

[6] On the morning of 18 July 2013 an Animal Welfare Inspector from the respondent Ministry of Primary Industries inspected Mr Barnes’ block at Snee Road, Takapau, Hawkes Bay. At the time, Mr Barnes was grazing a mob of lambs and a mixed mob of cattle, comprising dairy cows, calves and a bull, in separate paddocks on that land. The paddocks being grazed had minimal grass cover. Others had good to adequate grass cover, suitable for grazing.

[7] Mr Barnes’ affidavit evidence at sentencing was that the lambs had been purchased, in extremely poor condition, from drought-affected farms in the central North Island. The cattle had come from a farm he had sold on 31 January 2013. They were “poor breeding stock”.

[8] The inspector noticed a number of recently dead or distressed lambs. The inspector euthanized one lamb on the farm that morning due to its extremely poor condition and very weak state. He caught two more lambs in an emaciated condition and took them to a local vet for clinical assessment. Both lambs were euthanized by the vet because of their condition. A post-mortem showed significant worm burden in both animals. The veterinary diagnosis was that the condition of the lambs resulted from “a prolonged period of under-feeding and starvation together with significant parasite burden”. Drenching of the surviving lambs was required.

[9] The inspector contacted Mr Barnes that day. Mr Barnes confirmed he was both the owner and the person in charge.

[10] The inspector returned to the property the next morning and undertook a further inspection with Mr Barnes before mustering the lambs, totalling 800 in all, into the yards.

[11] During that further inspection a number of dead and dying animals were located. Near a haystack, one calf and one lamb were found dead, caught up in baling twine from the hay bales. A second lamb was similarly entangled but was still alive, emaciated and dehydrated.

[12] Forty-four beef cattle were found in one paddock, 48 in another. The 44 were found to be in below-average to poor condition. Two were found incumbent and unable to move, and were euthanized. In a separate paddock another 48 Angus yearling steers and heifers were located. Two of those were found lying in the mud, adjacent to a dead heifer, and were subsequently euthanized.

[13] The inspector returned shortly after 1.00 pm, accompanied by a vet. By then Mr Barnes and a farm worker were drenching the lambs. The vet subsequently separated the lambs into two mobs, dependent on their condition. The mob of poorer condition, lighter lambs numbered 466. The lambs in that mob were lethargic and described by the vet as quite lifeless. Three of those lambs were euthanized on the spot. Again, a high parasite count was found in both the living and dead lambs.

[14] The vet’s opinion was that both the sheep and the cattle had been neglected for a period considerably longer than two weeks. They had effectively been starved. In association with the high parasite count, that contributed significantly to the unacceptable losses and suffering of the sheep and cattle.

[15] By way of explanation Mr Barnes said that he had been let down by employees who had been sacked or who had resigned. He acknowledged he had been unable to keep up with the work required to feed and properly look after the lambs. He said it was not all his fault – reference no doubt to his view of his former employees. But he accepted full responsibility.

[16] Mr Barnes was cooperative throughout his dealings with the Ministry. He took remedial steps immediately, including drenching the animals as required.

[17] As a result of these matters Mr Barnes faced:

(a) two charges of reckless ill-treatment of animals⁴ as regards: (i) the four cattle; and

(ii) the six lambs that were euthanized, three following the first inspection and the further three when the poorer condition lambs were separated out.

(b) one charge of ill-treatment of animals⁵ as regards the one calf and two lambs found entangled in baling twine by the haystack; and

(c) charges of failing to meet the needs⁶ of:

(i) the 44 cattle found in poor condition; and

(ii) the 463 poor condition lambs.

The sentencing decision

[18] On the day of sentencing, the two intentional charges of reckless ill-treatment were reduced to strict liability, ill-treatment charges and the number of lambs the subject of that charge were reduced from six to three. It is accepted that the prosecution and defence submissions at sentencing on the issue of disqualification did not address the implications of that change in charge.

[19] The power to disqualify is set out in s 169 of the Animal Welfare Act as follows:

169 Court may disqualify person from owning or exercising authority in respect of animals

(1) A court may (in addition to or in substitution for any other penalty) disqualify a person for any period that it thinks fit from being the owner of, or exercising authority in respect of, an animal or animals

⁴ _{Animal Welfare Act 1999, s 28A.}

⁵ _{Section 29(a).}

⁶ Section 12(a).

of a particular kind or description where the court convicts that person of an offence against—

(a) section 28 or 28A; or

(b) any section in Part 1 or 2 and the person has previously been convicted of an offence against—

(i) any section in Part 1 or 2; or

(ii) any of sections 3, 4, and 16(3) of the Animals

Protection Act 1960; or

(c) any section in Part 1 or 2 and the court considers that by reason of the serious nature of the offence the person should be disqualified under this section; or

(d) section 152(1); or

(e) section 169B(1).

(2) In making an order under subsection (1), the court may also specify a minimum disqualification period.

[20] Given the charges Mr Barnes ultimately faced, and his lack of any previous convictions under the Animal Welfare Act, Mr Barnes could only be disqualified on the basis of s 169(1)(c).

[21] The Judge dealt with disqualification in paragraphs [25] to [27] of his sentencing notes as follows:⁷

[25] Then I turn to the question of disqualification.

[26] I hear the position clearly from your counsel and what is seen to be a substantial loss to you so far as any disqualification order is concerned. Equally, the impression that one is left with at the end of the day is that in some respects you have been too busy to deal with the farming operation in Snee Road and have placed too much reliance on staff members who have not been adequately supervised or replaced in time.

[27] Again, my assessment is that this is a function of your busyness, not only with the other properties which are or have been farmed by you, but with the other ventures which are referred to in your affidavit, ironically a stock feed venture, the farm contracting business, and also the firewood business which you were hoping to build up for reasons which are explained in the affidavit. The firewood business appears now to have gone by the way but, in my view, the making of a disqualification order under s 169 of the Act will not be depriving you of a livelihood in respect of the other strings to your bow from a business point of view. It is an appropriate case to add to the penalties which I have already imposed by way of underlining

⁷ Ministry of Primary Industries v Barnes, above n 3.

the need for deterrence, if not for yourself in view of a disqualification order, but certainly in view of other farmers. It does place an emphasis on the need to take proper care of livestock which are in their realm to look after and sends a message of the consequences lest they fail to meet the appropriate standard.

Submissions

[22] For Mr Barnes, Mr Forster submitted that the Judge had imposed the disqualification order by reference to the need for deterrence. He had not considered whether disqualification was called for because of the serious nature of the offence. He had therefore erred in law. Whilst the welfare charges involved a reasonably large number of animals, the harm they suffered was, Mr Forster suggested, comparatively minimal. The fact that animals had died and/or been euthanized added to the seriousness of the offending. There were, however, mitigating factors. The stock had been in relatively poor condition when brought to the farm. In terms of Mr Barnes’ farming operation, the animal welfare issues were limited to the Snee Road farm. The problems had been contributed to by the unexpected loss of workers. Mr Barnes had cooperated with the Ministry of Primary Industries, and had carried out remedial work. As the Judge had acknowledged, the position was “brought to rights” quickly. The consequences of disqualification were severe. Forty seven per cent of Mr Barnes’ gross income was from sheep and cattle farming. Accordingly, the appeal should be allowed and the disqualification order quashed.

[23] For the Crown, Ms Fitzherbert submitted that, whilst the Judge had not referred to the issue of seriousness when considering disqualification, his sentencing notes showed that he did regard the offending as being serious. He had, for example, referred to the charges as all being “of some seriousness as the maximum penalties

will show”.⁸ The Judge had accepted that the informant’s description of the case, as

being one of “grave neglect”, was hard to resist.⁹ The Judge had accepted that Mr Barnes had, up to a point, cared for the animals properly. But, whether or not by reason of employees being sick or leaving his employment, there must have been days, and perhaps days on end, when the stock was not inspected so that their deteriorating condition was not addressed. The Judge recognised that Mr Barnes was a busy farmer, and that he had, once the inspection process had got underway,

immediately drenched the beasts. Notwithstanding those mitigating factors, the

matter was still “a serious matter from the point of view of animal welfare”.¹⁰

[24] The order of disqualification could, Ms Fitzherbert submitted, properly be seen as being based on the Court’s consideration of the serious nature of Mr Barnes’ offending. Ms Fitzherbert, referring to the words used in s 169(1)(c) “the serious nature of the offence”, submitted that after offences under ss 28 and 28A are excluded, the “offence in the present case” was the most serious offence in Part 1 or Part 2 of the Animal Welfare Act.

Analysis

[25] Parts 1 and 2 of the Animal Welfare Act regulate the care of animals and conduct towards animals respectively.

[26] The purpose of Part 1 is to ensure that owners and persons in charge of animals attend properly to the welfare of those animals. Section 10 imposes a general obligation on owners and carers of animals in the following terms:

10. Obligation in relation to physical, health, and behavioural needs of animals

The owner of an animal, and every person in charge of an animal, must ensure that the physical, health, and behavioural needs of the animal are met in a manner that is in accordance with both—

(a) good practice; and

(b) scientific knowledge.

[27] The term “physical, health, and behavioural needs” is defined for the

purposes of the Act in s 4 which provides:

4 Definition of “physical, health, and behavioural needs”

In this Act, unless the context otherwise requires, the term physical, health, and behavioural needs, in relation to an animal, includes—

(a) proper and sufficient food and water: (b) adequate shelter:

(c) opportunity to display normal patterns of behaviour:

(d) physical handling in a manner which minimises the likelihood of unreasonable or unnecessary pain or distress:

(e) protection from, and rapid diagnosis of, any significant injury or disease,—

being a need which, in each case, is appropriate to the species, environment, and circumstances of the animal.

[28] Section 12, under which Mr Barnes faced two charges, creates what are

known as “animal welfare offences”. Section 12(a) provides:

12 Animal welfare offences

A person commits an offence who, being the owner of, or a person in charge of, an animal,—

(a) Fails to comply, in relation to the animal, with section 10; or

...

[29] Pursuant to s 13, it is not necessary for the prosecution to prove that the defendant intended to commit an offence. Accordingly, an offence under s 12 attracts strict liability. Under s 13(2) a defendant may advance a defence to a charge under s 12(a) if the defendant provides that he or she took all reasonable steps to comply with s 10. No such defence was mounted in the present case.

[30] Part 1 creates the further animal welfare offences of keeping an animal alive, or selling it other than for the express purpose of being killed, when the animal is suffering unreasonable or unnecessary pain or distress;¹¹ and of deserting an animal

without reasonable excuse without making provision for its needs.¹² The Part also

creates the more specific offences, namely what are known as surgical procedure offences¹³ and animal transport offences.¹⁴

[31] The purpose of Part 2 is to state conduct that is or is not permissible in relation to a species of animal or animals used for certain purposes. It does so by

_{prohibiting certain types of conduct, criminalising what are known as animal}

¹¹ _{Section 14(1).}

¹² _{Section 14(2).}

¹³ Section 21.

fighting ventures¹⁵ and controlling the use and sale of traps and devices used to kill, capture or manage animals.¹⁶ Sections 28(1) and 28A(1) and 29(a) create the general offences of wilful ill-treatment, reckless ill-treatment and ill-treatment of an animal respectively. Sections 28(1) and 28A(1) are intentional offences; s 29(a) is a strict

liability offence. Section 29(b) to (h) creates specific treatment offences – for example animal baiting.¹⁷ Sections 34 and 35 create specific offences relating to the use and sale of prohibited and restricted devices.

[32] The phrase “ill-treat” is defined in s 2(1):

Ill-treat

... in relation to an animal, means causing the animal to suffer, by any act or omission, pain or distress that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary:

[33] In addition, ss 28(1) and 28A(1) require proof that an animal is ill-treated in such a way that:

(a) the animal is permanently disabled; or

(b) the animal dies; or

(c) the pain or distress caused to the animal is so great that it is necessary to destroy the animal in order to end its suffering.

[34] Those ill-treatment offences, where committed by an individual, attract the following maximum penalties:

(a) wilful, s 28(1): imprisonment for a term not exceeding five years or a fine not exceeding $100,000 or

_both;¹⁸

¹⁵ _{Section 31.}

¹⁶ _{Section 27.}

¹⁷ _{Section 29(c), (d) and (e).}

¹⁸ Section 28(3)(a).

(b) reckless, s 28A(1): imprisonment for a term not exceeding 3 years or a fine not exceeding $75,000 or both;¹⁹ and

(c) strict liability, s 29(a): imprisonment for a term not exceeding 12 months or a fine not exceeding $50,000, or both.²⁰

[35] The other welfare offences created by Part 1, when committed by an individual, also attract a maximum penalty of a term of imprisonment not exceeding

12 months, or a fine not exceeding $50,000, or both.²¹ So too do the ss 31, 34 and

35 conduct offences.

[36] It is well-established law that the failure by a judge to explicitly refer to a required element of an offence, or to a pre-condition for a particular type of sentence, will not necessarily constitute an error of law such as to require the court on appeal to undertake the sentencing exercise again. As in all things, the law prefers a substantive approach to an overly technical one. A helpful example of that principle, in this context, can be found in the decision of the Court of Appeal in R v Collins.²²

There, as here, a judge ordered a person convicted of an offence of ill-treating

animals under s 29(a) to a period of disqualification. The Judge did not expressly state that Mr Collins should be disqualified because of the serious nature of his offence. Given, however, that the Judge had referred in his sentencing notes to s 169(1)(c) suggested, the Court of Appeal found, “that he was conscious of the jurisdictional threshold”.²³

[37] Here the position is not as clear. The charges as laid, and the prosecution and defence sentencing submissions as filed before the sentencing hearing, proceeded on the basis that the jurisdictional threshold would be met by Mr Barnes’ guilty plea to the charges he faced of reckless ill-treatment. In sentencing Mr Barnes, the Judge has neither referred to that jurisdictional threshold specifically, nor indeed to

_{s 169(1)(c) at all. In that context I do not think it is proper to infer that the Judge had,}

¹⁹ _{Section 28A(3)(a).}

²⁰ _{Section 37(a).}

²¹ _{Section 25.}

²² _{R v Collins [2008] NZCA 235.}

²³ At [95].

in fact, reached – as is required as a matter of law – the necessary “seriousness” conclusion in terms of s 169(1)(c). His references to the seriousness and gravity of the offending do not, in these circumstances, satisfy me that he had done so. Rather, they are more general assessments of Mr Barnes’ criminality. Given:

(a) the structure of s 169;

(b) the hierarchy of seriousness of both welfare and ill-treatment offences

– especially as reflected in their maximum sentences; and

(c) the relativity in the seriousness of Part 2 strict liability welfare offences as opposed to Part 1 strict liability ill-treatment offences,

together suggest to me that where the jurisdiction to disqualify relies on a specific assessment of relative seriousness, judges should refer to the subsection and carry out that assessment explicitly.

[38] In these circumstances, therefore, I consider that the Judge did err in law in the way he would appear to have reached his conclusion. I therefore will undertake that aspect of the sentencing exercise afresh.

[39] There is no question, in my mind, that the circumstances involving Mr Barnes and his stock at the Snee Road property caused serious animal welfare consequences. But I am required to assess the criminality of Mr Barnes’ offending. Given that he was charged with offences under both Parts 1 and 2, I cannot make that assessment, as Ms Fitzherbert appeared to submit, by in some way assessing the seriousness of the offence as created in the statute book.

[40] Given that these are strict liability offences, the fact that fault may have lain with Mr Barnes’ employees is no defence. At the same time, however, whether or not that was the case can go to the seriousness of his offending. That would, in the circumstances, need to be assessed by reference to the degree to which he had, over time, properly discharged his duties, and to his role as the person ultimately responsible for these animals and to the particular circumstances which occurred when his employees resigned unexpectedly or took sick leave. I can only infer that

the reduction in charge, from reckless ill-treatment to ill-treatment simpliciter, reflected some acknowledgement by the Crown of those circumstances.

[41] I think it is relevant, moreover, that these events only occurred at one of the properties Mr Barnes was responsible for. He immediately accepted responsibility, and took appropriate steps to address the problem that had arisen.

[42] By contrast, in Collins the defendant continued to ill-treat his horses notwithstanding an inspection of his property, service of a notice under s 130 of the Animal Welfare Act requiring him to take specific steps to address a lack of feed and a further period of ill-treatment, during which the horses continued to decline in condition. There, a term of disqualification of two years was upheld. The defendant, the Court of Appeal found, had failed to fully appreciate the basic needs of dependent animals. He had wilfully failed to provide them with minimum levels of supplementary feed. That suggested a disturbing indifference to their welfare.

[43] I do not think Mr Barnes’ conduct approaches that level of seriousness. Rather, Mr Barnes – when he realised what had happened (for which he must accept responsibility) – responded immediately and took appropriate steps to address the needs of the animals in his care. The four year period of disqualification is considerable. If the argument had been put to me, I may have considered substituting a shorter period of disqualification. But the Crown made no such submission, nor did it provide me with any case authority supporting a period of disqualification of that length. Mr Barnes has been fined a total of $16,000. He has been ordered to pay vet fees of some $2,600 and Court costs of $650. In these circumstances, I think that is sufficient penalty to recognise the seriousness of his offending.

[44] Accordingly, I allow this appeal and quash the period of disqualification of four years imposed by the District Court Judge.

“Clifford J”

Solicitors:

E J Forster, Barrister, Hastings for appellant

Crown Solicitor, Palmerston North for respondent.