Erickson v Ministry for Primary Industries - [2017] NZCA 271

IN THE COURT OF APPEAL OF NEW ZEALAND

CA584/2016
[2017] NZCA 271

BETWEEN	NOEL PIRIKA ERICKSON Appellant
AND	MINISTRY FOR PRIMARY INDUSTRIES Respondent

Hearing:	23 March 2017
Court:	Kós P, Miller and Brown JJ
Counsel:	T Sutcliffe for Appellant J E L Carruthers and K A Courteney for Respondent
Judgment:	29 June 2017 at 12 noon
Reissued:	20 July 2017 — see recall judgment of 20 July 2017
Effective date of Judgment:	29 June 2017

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted.
BThe appeal against sentence is allowed.
CThe finite sentence of two years and six months’ imprisonment is quashed.
DA sentence of eighteen months’ imprisonment on the s 28 charges is substituted, having regard to the home detention additionally served.
ESentences on the other individual charges are as stated at [63] (all sentences to be served concurrently).
FAn order is made under s 80I(2) of the Sentencing Act 2002 granting the appellant leave to apply to the District Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

What considerations determine gravity of offending in cases of wilful and reckless ill-treatment of animals — and thereby define sentencing starting points — under ss 28 and 28A of the Animal Welfare Act 1999 (the Act)?
Mr Erickson, a casually employed slaughterman, was imprisoned for two and a half years for wilful ill-treatment of 115 bobby calves before slaughter. He seeks leave to appeal that sentence. Leave to appeal is not opposed for two reasons. First, because it is accepted the High Court Judge erred in taking a global sentencing approach to a diverse array of charges. The consequence was that she imposed some sentences in excess of the statutory maximum. To that extent it is inevitable that the appeal must be allowed in part. Secondly, because this case is seen as providing an opportunity to give sentencing Courts guidance on the question stated above.

Background

For three months Mr Erickson was employed as a casual slaughterman at Down Cow Ltd near Te Kauwhata in the Waikato. The business of that company is the slaughter of farm animals for pet food. Mr Erickson’s role was to assist in the processing of bobby calves for slaughter. Bobby calves are male calves surplus to the needs of the dairy industry. They are often less than seven days old at slaughter.
In August 2015 an animal rights group called Farmwatch installed two hidden cameras in Down Cow’s yards. What they captured on film resulted in the 10 charges Mr Erickson pleaded guilty to:
(a)two charges under s 28(1)(d) of the Act of wilfully treating a calf with the result that it is seriously injured or impaired (these being the most serious of the offences);
(b)one charge under s 12(c) of the Act of killing a calf in such a manner that it suffers unreasonable or unnecessary pain or distress;
(c)two representative charges…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZCA 271
Decision Date: 29 June 2017 at 12 noon

CaseChat Overview and Summary

Noel Pirika Erickson was employed as a slaughterman and was convicted for causing serious injury or impairment to 115 bobby calves by wilful and reckless ill-treatment. The key legal issue the Court had to decide was what considerations determine the gravity of offending in cases of wilful and reckless ill-treatment of animals under ss 28 and 28A of the Animal Welfare Act 1999, and thereby define sentencing starting points. The Court identified the following primary aggravating considerations for sentencing: causing significant pain or distress, using extreme violence, premeditation and planning, repetitive offending, and the offender taking a leading role. Secondary aggravating considerations included the means of commission, abuse of a position of trust, and impact on third parties. Mitigating considerations were the obverse of aggravating ones, with the Court noting impulsive or reactive behaviour and mental disturbance as potentially mitigating. The Court held that in this case, primary aggravating considerations were the causing of significant pain and distress and repetitive offending. The Court took the view that a starting point of no more than two years and six months’ imprisonment on each charge could be justified for the lead charges, eighteen months’ imprisonment on each of the two s 28A charges, and eight months’ imprisonment on the six charges under ss 12 and 29. The Court quashed the finite sentence of two years and six months’ imprisonment, substituted a sentence of eighteen months’ imprisonment on the s 28 charges, and made an order granting the appellant leave to apply to the District Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention.

Orders