Koberstein v The King - [2025] NZCA 185

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA563/2024
[2025] NZCA 185

BETWEEN	WARREN GEORGE MICHAEL KOBERSTEIN Appellant
AND	THE KING Respondent

Hearing:	25 March 2025
Court:	Ellis, Dunningham and Harvey JJ
Counsel:	P J Morgan KC for Appellant A L McConachy for Respondent
Judgment:	22 May 2025 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal against sentence is dismissed.
BMr Koberstein must surrender himself to the Prison Director at Tongariro Prison (or such other location as may be directed by Corrections in writing) by 10 am within two days from the release of this judgment to complete the sentence of imprisonment imposed by Judge Snell.

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REASONS OF THE COURT

(Given by Harvey J)

Introduction

Warren Koberstein is a 76-year-old farmer with over 40 years’ experience working on his sheep and beef farm in Mangakino. However, he has had ongoing and serious animal welfare issues with the Ministry for Primary Industries (MPI) concerning his treatment of both sheep and cattle.[1] On 22 March 2024, he was convicted on a representative charge of wilful ill-treatment of an animal, in relation to 33 ewes;[2] five charges of wilful ill-treatment of five separate ewes; a charge of reckless ill-treatment of one ewe;[3] a charge of keeping an animal alive when it was suffering unreasonable or unnecessary pain or distress, in relation to one ewe;[4] and three representative charges of failing to comply with animal welfare obligations in relation to 834 ewes, 30 heifers and a further 86 cattle.[5]
[1]This includes Mr Koberstein’s convictions for animal welfare offending in relation to events on the farm in 2018: Ministry for Primary Industries v Koberstein [2021] NZDC 3549; and Koberstein v R [2024] NZHC 316.
[2]Animal Welfare Act 1999, s 28(1)(c) and (3)(a). Maximum penalty: five years’ imprisonment and/or a $100,000 fine.
[3]Section 28A(1)(b) and (3)(a). Maximum penalty: three years’ imprisonment and/or a $75,000 fine.
[4]Sections 14(1)(a) and 25(a). Maximum penalty: 12 months’ imprisonment and/or $50,000 fine.
[5]Sections 10, 12(a) and 25(a). Maximum penalty: 12 months’ imprisonment and/or $50,000 fine.
On 9 August 2024, Judge Snell sentenced Mr Koberstein to two years and four months’ imprisonment for this offending, which occurred in 2019.[6] The Judge also imposed an indefinite disqualification order prohibiting Mr Koberstein from owning or exercising control over farm animals.[7]
[6]R v Koberstein [2024] NZDC 18924 [judgment under appeal].
[7]At [52]–[59] and [77].
Mr Koberstein appeals this sentence on three grounds.[8] First, that the starting point adopted by the Judge was too high. Second, that the four-month reduction for the impacts of the disqualification order was insufficient. Third, that the end sentence was manifestly excessive. In short, Mr Morgan KC argued that Mr Koberstein should have been sentenced to home detention. The Crown oppose the appeal. Ms McConachy submitted that, in the circumstances, the end sentence (including the reductions made for Mr Koberstein’s disqualification order, the delay before trial and personal factors) was “extremely generous”.

The offending

[8]Mr Koberstein originally also sought to…

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.

Continue reading Koberstein v The King

Details

AGLC: Koberstein v The King [2025] NZCA 185
Case: [2025] NZCA 185
Decision Date: 22 May 2025 at 10.00 am

CaseChat Overview and Summary

In Koberstein v The King, the Court of Appeal of New Zealand considered an appeal against the sentence imposed on Mr Warren Koberstein for serious animal welfare offences. Mr Koberstein, a farmer with over 40 years of experience, was convicted on multiple counts of wilful and reckless ill-treatment of animals, as well as failing to comply with animal welfare obligations. The Court was required to determine whether the sentence imposed was manifestly excessive or whether there had been an error in the sentencing process. The appellant argued that the starting point for the sentence was too high, the reduction for the disqualification order was insufficient, and the final sentence was manifestly excessive. The Crown, on the other hand, contended that the sentence, including reductions for various factors, was generous and appropriate.

The Court found that the starting point adopted by the Judge was within the appropriate range and that there was no error in the Judge's approach to determining the appropriate starting point. The Court also held that the four-month reduction for the disqualification order was sufficient and that the principles of denunciation and deterrence were adequately considered. Finally, the Court concluded that the end sentence was not manifestly excessive, as the Judge had made generous reductions for various factors and had appropriately considered the purposes and principles of sentencing.

Accordingly, the appeal was dismissed, and Mr Koberstein was required to surrender himself to the Prison Director at Tongariro Prison to commence his sentence of imprisonment.

Orders