Minister For Primary Industries v Erickson [2016] NZHC 2635 (7 November 2016)

Last Updated: 1 December 2016

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-000049 [2016] NZHC 2635

BETWEEN	MINISTRY FOR PRIMARY INDUSTRIES Appellant
AND	NOEL PIRIKI ERICKSON Defendant

Hearing:	28 October 2016
Appearances:	L Dunn and T Needham for Appellant T Sutcliffe for Defendant
Judgment:	7 November 2016

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 7 November 2016 at 2.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date.............................}

MINISTRY FOR PRIMARY INDUSTRIES v ERICKSON [2016] NZHC 2635 [7 November 2016]

Introduction

[1] In 2015 Noel Erickson was employed as a slaughterman at Down Cow Limited in the Waikato, which supplies pet food or meat for processing into pet food. Over a two-day period in August 2015 covert filming by an animal rights group captured Mr Erickson ill-treating bobby calves. He pleaded guilty to eight charges of ill-treating the animals and was sentenced to 10 months’ home detention and 200 hours community work.¹

[2] The Ministry for Primary Industries (MPI) appeals the sentence on the ground that it was manifestly inadequate as a result of the Judge taking too low a starting point and allowing an inappropriate and/or excessive discount for inadequate training and supervision.² It seeks to have the sentence set aside and substituted with one of imprisonment.

The offending

[3] Mr Erikson’s job was to assist with the processing of bobby calves, a few days old and destined for slaughter. Specifically, he was required to unload the calves from transport into an enclosure, shift them to a gated slaughter area, stun and slaughter them and hang the carcasses for further processing. This work was subject to legislative control under the Animal Welfare Act 1999, the Animal Welfare (Commercial Slaughter) Code of Welfare 2010 (Commercial Slaughter Code), the Code of Welfare for Dairy Cattle (the Dairy Cattle Code) and the Animal Welfare (Transport Within New Zealand) Code of Welfare.

[4] The charges to which Mr Erickson pleaded guilty were:

(a) Two charges under s 28(1)(d) Animal Welfare Act 1999 of wilfully ill- treating a calf with the result that it is seriously injured or impaired.

1. Ministry for Primary Industries v Erickson [2016] NZDC 15760. Mr Erickson was also disqualified from owning or exercising authority over any animal for a period of three years.

² The Solicitor-General has consented to the appeal pursuant to s 246 Criminal Procedure Act

2011.

The maximum penalty is five years’ imprisonment or a maximum fine

of $100,000 or both;

(b) One charge under s 12(c) Animal Welfare Act 1999 of killing a calf in such a manner that it suffers unreasonable or unnecessary pain or distress. The maximum penalty is 12 months’ imprisonment or a maximum fine of $50,000 or both;

(c) Two representative charges under s 28A(1)(d) of the Animal Welfare Act 1999 of recklessly ill-treating calves with the result that they are seriously injured or impaired. The maximum penalty is three years’ imprisonment or a maximum fine of $75,000 or both;

(d) Four representative charges under s 29(a) Animal Welfare Act 1999 of ill-treating calves. The maximum penalty is 12 months’ imprisonment or a maximum fine of $50,000 or both;

(e) One representative charge under s 12(a) Animal Welfare Act 1999 of failing to comply with s 10 of that Act by failing to meet calves’ physical, health and behavioural needs in accordance with good practice and scientific knowledge by using blunt force trauma on calves. The maximum penalty is 12 months’ imprisonment or a maximum fine of $50,000 or both.

[5] The offences under s 12(a) and 12(c) come within Part 1 of the Animal Welfare Act 1999. Section 10 requires the owner and any person in charge of an animal to “ensure that the physical, health and behavioural needs of the animal are met in a manner that is in accordance with both ... good practice; and scientific knowledge.”

[6] The offences under ss 28, 28A and 29 fall within Part 2 of the Animal

Welfare Act, the purpose of which is to “state conduct that is or is not permissible in

relation to a species of animal or animals used for certain purposes ... by prohibiting certain types of conduct.”³

[7] Mr Erickson accepted on sentencing that bobby calves are particularly vulnerable animals because:

(a) they respond to noxious stimuli by trying to get away from the stimulus. If that is not possible they will lie still and not move;

(b) they do not respond to pain by obvious vocalisation or movement but by trying to be quiet;

(c) they feel blows that would cause little pain to a cow but cause significant pain and discomfort to a bobby calf because of their lower body muscle and bone density;

(d) their limbs are more prone to trauma such as muscle and nerve damage and tearing when picked up by a single limb or by a fore limb and hind limb on the same side. The risk increases when the animal is swung or thrown from that position.

Wilful ill-treatment of a calf – s 28(1)(d)

[8] These two charges were the most serious. The first related to an occasion when Mr Erickson lifted a calf to shoulder height and then deliberately threw it down head first, with force, towards the concrete floor. The impact, directly to the calf’s head, would have caused significant prolonged pain and suffering.

[9] The second occasion involved Mr Erickson forcefully kicking a calf in the side of the head causing it to fall to the ground and then kicking it in the abdominal area before dragging it to the slaughter area. The motionless calf was then kicked twice more. These actions would have caused significant and prolonged pain and

_{suffering to the calf.}

³ Animal Welfare Act 1999, s 27(a).

Reckless ill-treatment – s 28A(1)(d)

[10] These two representative charges related to the treatment of seven calves. One was lifted by two of its limbs and forcefully thrown to a height of approximately two metres over the gate to the slaughter area, where it landed heavily on its side. Three of the calves were dragged by one or two limbs before being thrown over the gate into the slaughter area. All of these incidents would have risked muscle and nerve damage and tearing.

[11] The fifth incident related to Mr Erickson dumping a calf from head height over the gate to the slaughter area. This would likely have resulted in temporary unconsciousness, internal injuries and muscular-skeletal injuries, distress and pain.

[12] The last two incidents involved calves which were already weak and recumbent being kicked in the collecting area, being dragged under the gate and kicked again in either the head or abdomen. This would have caused significant and prolonged pain and suffering.

Ill-treatment of calves – s 29(a)

[13] These four representative charges involved hitting 12 calves on the head with containers filled with stones that were intended to rattle to attract the calves’ attention. In one instance the calf was hit with enough force to knock it over. Forty calves were thrown or dropped over the gate into the slaughter area. Twenty-nine calves were dragged in various ways into the slaughter area including using the metal gate to push them in, jamming or trapping limbs under the gate. Finally, 14 calves were kicked in various parts of their body including the abdomen and head.

Using blunt force trauma – s 12(a)

[14] The Commercial Slaughter Code requires that animals be stunned so that they are immediately rendered insensible and maintained in that state until death supervenes. The Code requires that stunning be applied by use of a captive bolt firearm or electric stunner or suitable firearm, with an effective back-up stun method in the event that the primary apparatus fails.

[15] Blunt force trauma is not an approved method of stunning. Moreover, Mr Erickson’s use of a metal bar to inflict blunt force trauma on seven animals was done without care and attention; in at least two and possibly four cases the calves were not rendered unconscious and for these animals the pain and distress would have been severe.

Sentencing in the District Court

[16] At sentencing Mr Erickson asserted, and the Crown appears to have accepted, that he was inadequately supervised and the sentencing proceeded on this basis.⁴ In particular, Mr Sutcliffe submitted, without objection, that the following factors had not been in dispute at sentencing: Mr Erickson had no previous experience with stock and was given no training; initially he was required to use a stun gun to stun the animals before slaughter but was not trained in this action and when bullets ran out was instructed to use a metal bar to stun the animals; superiors who were present observed his actions but did not intervene.

[17] No guideline judgment exists for offences of this kind. Judge MLSF Burnett referred to the limited number of previous cases involving comparable offending: Ministry for Primary Industries v Erasmus, Ministry for Primary Industries v Whitelock and Godsiff v R. She identified the ill-treatment charges as the most serious and took a starting point of three years’ imprisonment. Her reasoning was as follows:⁵

The ill-treatment charges are the most serious charges. They are the most serious because whilst you, in my view, were given quite inadequate training and quite inadequate supervision and this was for a short period of time, nevertheless the ill-treatment and cruelty was outside of any job description and I think you have come to fully appreciate this.

... I identify the aggravating features as the scale of the offending. The unnecessary cruelty was outside the job description and I have already made that point. The period of time was a short period of time, two days. ...

You were inadequately supervised and you were inadequately instructed from what I can understand. The specific acts of cruelty I have already referred to. The use of the weapons, there was use of weapons but that was

⁴ _{Charges are pending against the company and the farm manager in relation to the offending.}

⁵ Ministry for Primary Industries v Erasmus [2013] NZHC 281; Ministry for Primary Industries v

Whitelock [2015] NZDC 20263; Godsiff v R HC Blenheim CRI-2011-406-18, 22 November

2011.

the striking on the head with the containers with the gravel in it and you were instructed also that you could use blunt force to hit on the head and that this was an acceptable method. The vulnerability of the animals of course is that they were effectively newborn and defenceless in this way.

Looking at all of those matters which I have taken into account and including everything prosecution have written and submitted and what has been said in Court today, Mr Todd, on your behalf has reminded the Court that you were a casual worker, the level of training that you were given and the lack of instructions that you failed to receive but ought to have received, that you have no prior experience with livestock as such and you were not told about the correct procedures of the Animal Welfare Code.

... Taking the actual offending itself, the level of culpability, I would take a

starting point of three years’ imprisonment.

[18] The Judge then allowed discrete discounts for Mr Erickson’s guilty plea and

the lack of training and supervision:

I am reminded of your significant remorse and your guilty plea. ... Now I reduce [the starting point] by six to eight months for the inadequacy of your training and your lack of oversight.

You also get a full 25 per cent discount for your early guilty plea. This brings the end sentence down to approximately 22 months, between 21 and

22 months’ imprisonment. I have already said to you that home detention

was the least restrictive outcome and it is the appropriate end sentence and I

am willing to settle on an end sentence of 10 months’ home detention and

200 hours community work and this quite a lot of community work. It is a significant amount of community work and if you were willing to do another

100 hours of community work I reduce that end sentence of home detention

down to nine months’ home detention.

Appeal

[19] I consider both grounds of appeal together because they both relate to the starting point; although the MPI asserts that the starting point was too low, it also asserts that any recognition for inadequate training and supervision should have been reflected in the starting point, rather than as a separate mitigating factor. So the issues are (1) whether the lack of training and supervision should have been factored into the starting point and (2) whether the six to eight months allowed by the Judge in recognition of this factor was too much.

[20] I accept the Crown’s submission that lack of training and supervision goes to gravity of the offending rather than mitigation. However, because the Judge referred to this factor in her discussion regarding the starting point as well as in relation to

mitigation, it is unclear whether the starting point reflected the lack of training and supervision (in which case there must have been a degree of double counting) or whether she took it into account only in mitigation (which would have been an error). I therefore approach the appeal on the basis that the Judge did make an error in her treatment of this factor and turn to consider the sentence afresh.

[21] Both counsel accepted that the Erasmus and Whitelock decisions, in which starting points of four years and four-and-a-half years respectively were taken, were relevant. Ms Dunn, for the MPI, submitted that Godsiff, which involved an isolated instance of clubbing 23 (protected) seal pups to death, for which a starting point of three years was taken, was also relevant but less serious than the present offending. She argued that Erasmus and Whitelock and the present case all involved a sustained course of action involving a large number of animals in a commercial setting where the mistreatment resulted in unnecessary suffering and distress. Therefore a starting point of four to four-and-a-half years was an appropriate range.

[22] Mr Sutcliffe, for Mr Erickson, argued that the present offending was less serious than Erasmus and Whitelock and that Godsiff was not relevant at all because it involved offending of a quite different kind against protected animals. He submitted that the three year starting point was within the available range.

[23] In Erasmus the owner of a dairy herd faced three charges of wilful ill- treatment of dairy cows under s 28 of the Animal Welfare Act. Some 80 per cent of the 135 strong herd showed obvious signs of physical injury. There were 115 cows found to have broken tails. The other charges related to hitting cows when they were confined in stalls in the milking shed with milking steel caps and a steel bar. As a result, the animals sustained broken legs, compound fractures and haematomas which were infected and abscessed. No veterinary treatment had been sought. On appeal by the MPI Priestley J considered that the three-and-a-half year starting point taken by the District Court Judge had been inadequate and that four years was the appropriate starting point. Rejecting any comparison with Godsiff, Priestley J identified as relevant the number of animals involved, the duration of the offending which stretched over a number of weeks and the severe suffering inflicted on the animals.

[24] Whitelock involved sustained offending by a farm manager against 152 cows. The offending included widespread tail breaking and conduct that the sentencing Judge described as sadistic, including the shooting of a cow that was to be euthanised in the leg and instructing others to do so before euthanising it. The sentencing Judge took a starting point of four-and-a-half years for the totality of the offending.

[25] There are similarities between this case and Whitelock and Erasmus. But there are also significant differences. Mr Erickson’s offending lacks the sadistic element present in Whitelock or the sustained suffering of the animals in both Whitelock and Erasmus. It is more serious than Godsiff because the offending continued over a longer period and involved many more animals.

[26] It is undeniable that Mr Erickson’s offending was callous and brutal and caused suffering to very young and vulnerable animals. The fact that the animals were destined for slaughter within a very short time (in some cases literally minutes) did not minimise the nature of the offending. But there is a legitimate distinction between this situation and cases where animals have been left to suffer terribly for long periods of time. Subject to the issue of inadequate training and supervision I consider that a starting point of three years nine months would have fairly reflected the nature and extent of the offending in comparison to the other three cases.

[27] Ms Dunn submitted that the inadequacy of training and supervision applied only to the blunt force trauma charge and that, even allowing for the fact that Mr Erickson had been told he could use this method, he did so without care and without ensuring that it was effective; at least twice the blunt force trauma was unsuccessful which severely increased the pain and distress inflicted on the animals. The remaining charges simply involved the infliction of violence on vulnerable animals and could not be said to be affected by any lack of training. It was simply a cruel disregard for the animals’ welfare.

[28] I accept both these points. Mr Erickson’s culpability was less by reason of the lack of training and supervision, but not markedly so. A reduction of three months would have been adequate to recognise this factor. I therefore consider that

the proper starting point for this offending was three years and six months’

imprisonment.

[29] The Judge allowed a 25 per cent deduction for Mr Erickson’s guilty plea. Although she also noted Mr Erickson’s remorse she did not give a discount for it. Ms Dunn pointed out at that the PAC report did not support an assertion of remorse. There was, however, other information in the PAC report that would, in my view, have justified an additional, modest, discount. Mr Erickson may not have been remorseful regarding his offending but the PAC report suggests that this was most likely because he was depressed during his employment and suffering from insomnia, both of which worsened significantly after his employment was terminated and to the point where he considered taking his own life. In these circumstances I consider that a further discrete reduction of five per cent would have been justified, in addition to the 25 per cent reduction for the guilty plea.

[30] The mitigating factors would therefore see the adjusted starting point of three years nine months reduced to two years six months. Inevitably, this means that a term of imprisonment rather than home detention was the appropriate sentence.

[31] Mr Erickson has now completed three months’ home detention of his ten month sentence. Allowing for that time I consider that a sentence of two years is appropriate.

Result

[32] The sentence of home detention and community work is quashed and

substituted with a sentence of two years’ imprisonment.

[33] Mr Erickson is to present himself at the Hamilton Police Station at midday on

_{11 November 2016.}

P Courtney J