Sanson v Ministry for Primary Industries

[2023] NZHC 947

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2023-454-4

[2023] NZHC 947

IN THE MATTER

Of an appeal against conviction and sentence

BETWEEN

RICHARD JOHN SANSON

Appellant

AND

MINISTRY FOR PRIMARY INDUSTRIES

Respondent

Hearing:	26 April 2023
Counsel:	P J Drummond for Appellant A M Barham for Respondent
Judgment:	27 April 2023

JUDGMENT OF THOMAS J

Introduction

[1]    The appellant, Richard Sanson, together with his brother Geoffrey Sanson, pleaded guilty to animal welfare charges in respect of the reckless ill-treatment of a large number of stock on the three blocks of farmland they jointly owned and managed. The Ministry for Primary Industries (MPI) had twice previously intervened following concerns about treatment of animals on the farms. Mr Sanson was also found guilty following a judge-alone trial of two charges of aggravated assault of the MPI official and veterinarian who inspected the animals. He was sentenced to a total of two years and two months’ imprisonment on all charges. He appeals his conviction and sentence on the aggravated assault charges.

SANSON v MINISTRY FOR PRIMARY INDUSTRIES [2023] NZHC 947 [27 April 2023]

Background

[2] Mr Sanson and his brother pleaded guilty to two charges of reckless ill-treatment of animals,1 seven charges of failing to comply with s 10 of the Animal Welfare Act 1999 (the Act),2 one charge of failing to comply with s 11 of the Act,3 and one charge of transporting an animal unfit for transport.4

[3]    In 2014 and again in 2016, MPI raised concerns with Mr Sanson and his brother about the treatment of animals on their farms, giving them the opportunity to rectify the problems. After the 2014 inspection, the defendants were given an official warning with further monitoring put in place. After the 2016 inspection, an instruction was issued under s 130(1)(b) of the Act requiring the defendants to engage a farm advisor to provide a feed and management plan.5 After each inspection some improvements were made but there were no substantive changes to farming practices, and conditions on the farms deteriorated again.

[4]    On 29 April 2020, an MPI animal welfare inspector and a vet visited the farms to inspect the sheep and cattle. Pasture levels on all three blocks of land were extremely low and a significant number of animals were in poor condition. The inspection was cut short as a result of Mr Sanson’s aggression towards the inspector and the vet which resulted in the aggravated assault charges.

[5]    On 6 May 2020, an MPI team arrived to carry out a full assessment of all livestock. The District Court Judge, in his sentencing decision, described the conditions on the blocks of farmland as follows:6

The failings on the farm included massive overstocking and serious underfeeding. Poor infrastructure was found together with the lack of stockproof fencing and insufficient reticulated stock water supply. Differing classes of stock were being run together with no regard for their differing

1 Animal Welfare Act 1999, ss 28A(1)(c) and (3)(a) – maximum penalty three years’ imprisonment and/or $75,000 fine.

2      Sections 12(a) and 25(a) – maximum penalty 12 months’ imprisonment and/or $50,000 fine.

3      Sections 12(b) and 25(a) – maximum penalty 12 months’ imprisonment and/or $50,000 fine.

4      Sections 23(2)(c) and s 25(a) – maximum penalty 12 months’ imprisonment and/or $50,00 fine.

5      Under s 130, an inspector may issue a notice in writing requiring the owner of an animal to take all such steps as the inspector considers necessary or desirable to prevent or mitigate the suffering of an animal. Failure to comply with an inspector’s instruction constitutes an offence under s 130(2) of the Act.

6      Ministry of Primary Industries v Sanson [2023] NZDC 3679 [sentencing decision] at [37].

physical and health needs. Animals were chronically underfed, particularly ewes and lambs. There was ineffective parasite control and diseases and injuries were not being treated. Sheep had not been culled for undershot jaws or for having low or no teeth. There was low or no fertiliser application. There was an absence of and unwillingness to have an effective means of euthanasia on the farms. Pasture levels were far higher on neighbouring properties and that was simply established by looking at those properties rather than anything more being required. Fencing, water reticulation and pasture damage reflected a history of prolonged deterioration.

[6]    Of the 3,995 sheep farmed across the three blocks that were able to be assessed (of 4,251 in total), 1,965 were in unacceptable health and 460 of them were in such poor condition they had to be euthanised.7 Of the 126 cattle, 86 were in unacceptable health and four had to be euthanised.8 In total, 2,096 animals were in unacceptable condition and 464 had to be euthanised.9

[7]    Prior to euthanasia, MPI gave the brothers the opportunity to seek a second opinion. Instead, they removed five cattle in the middle of the night without MPI’s knowledge or permission. They were not considered fit to be transported. Mr Sanson falsely informed the MPI inspector that the cattle had been shot. The five cattle were eventually located and examined four days later. It was necessary to euthanise four of the five.

[8]    The brothers pleaded guilty to the animal welfare charges following a sentence indication of two years and ten months’ imprisonment prior to consideration of discounts for personal factors.

[9]    Mr Sanson was found guilty following a judge-alone trial of aggravated assault of the MPI inspector and vet. This arose from events on 29 April 2020 when they were inspecting the animals. Mr Sanson drove a utility vehicle (ute) towing a trailer into the paddock where they were working and accelerated while driving directly at them, forcing them to take rapid evasive action by jumping behind the MPI vehicle for protection. Mr Sanson stopped the ute about 20 metres from the victims, got out and began to feed a bag of grain to the sheep. He did not acknowledge the victims.

7      Ministry for Primary Industries v Sanson [2022] NZDC 10876 [sentencing indication], at [13].

8 Sentencing indication at [14].

9 Sentencing indication at [15].

The vet was extremely upset and concerned for their safety and requested they leave. As they did so, the MPI inspector asked Mr Sanson why he had tried to run them down. Mr Sanson replied, “That’s who I am, and that’s what I do”.

[10]   As a result of Mr Sanson’s behaviour, the further inspections were carried out pursuant to a search warrant with the police present.

[11]   Geoffrey Sanson was sentenced to one year and ten months’ imprisonment. Home detention was refused. The refusal of home detention was successfully appealed and replaced with a sentence of nine months’ home detention, recognising that Geoffrey Sanson had served over one month of the term of imprisonment.10

[12]   Mr Sanson’s sentence of two years and two months’ imprisonment did not permit consideration of home detention. The longer sentence was as a result of a cumulative sentence of four months’ imprisonment on the two charges of aggravated assault.

[13]   The brothers were both disqualified from owning or being in charge of farm production animals indefinitely (the Disqualification).

CONVICTION APPEAL

Introduction

[14]   Mr Sanson contends he was wrongly convicted on the aggravated assault charges because it could not be established beyond reasonable doubt that Mr Sanson intended to assault the victims or that he intended to obstruct them in the execution of their duty.

Approach to appeal

[15]   The Court must allow an appeal against a decision of a judge in a judge-alone trial if satisfied the judge erred in the assessment of the evidence to such an extent that a miscarriage of justice has occurred or a miscarriage has occurred for any reason.11

10     Sanson v Ministry of Primary Industries [2023] NZHC 780 (judgment of Grice J).

11     Criminal Procedure Act 2011, s 232(2)(b)-(c).

A miscarriage of justice is any error, irregularity or occurrence in or relating to the trial that has created a real risk the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.12

[16]   In considering a conviction appeal from a judge-alone trial, the appellate court must form its own independent judgment on the merits of the appeal.13 If an appellate court “comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed”.14 However, the appellant bears the onus of persuading the court to reach a different conclusion and, in discharging that onus, must identify the respects in which the judgment under appeal is said to be in error.15 Additionally, in determining whether the judgment was wrong, the appellate court must take into account any advantages a trial judge may have had.16 Where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise customary caution as the trial judge has the advantage of being able to form a view of the witnesses and is better placed than an appellate judge to determine contested questions of fact based on contested oral evidence.17

Analysis

Elements of the Charge

[17]Section 192(2) of the Crimes Act 1961 provides:

(2)Every one is liable to imprisonment for a term not exceeding 3 years who assaults any constable or any person acting in aid of any constable, or any person in the lawful execution of any process, with intent to obstruct the person so assaulted in the execution of his or her duty.

[18]   The District Court Judge noted that the prosecution must prove the following essential elements beyond reasonable doubt:

12     Section 232(4).

13     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575, citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

14     Sena v Police, above n 13, at [38].

15 At [38].

16 At [38].

17     At [38] (citing Austin, Nichols, above n 13, at [13]), [39] and [40].

(a)that Mr Sanson assaulted the victims;18

(b)that the victims were persons lawfully executing a process;

(c)that Mr Sanson knew they were acting in the lawful execution of a process or was wilfully blind or indifferent to those facts; and

(d)that Mr Sanson intended to obstruct the victims in the lawful execution of the process.

[19]   At trial, Mr Sanson accepted the victims were carrying out a process pursuant to Act but contended the prosecution had not proved he knew they were executing a process or was wilfully blind or indifferent to those facts. That issue was not pursued on appeal.

[20]As to whether Mr Sanson assaulted the victims:19

assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose; and to assault has a corresponding meaning

[21]   As noted by the Court of Appeal in R v Simpson,20 a charge of aggravated assault under s 192(2) of the Crimes Act requires proof of two separate intents: the ordinary intent involved in the definition of assault as set out above; and the further intent that the assault was with the intent to obstruct the person so assaulted in the execution of their duty. It is not a compound offence governed by a single intent.21

[22]   The issues on appeal are confined to whether Mr Sanson intentionally threatened to apply force to the victims and whether he intended to obstruct them in the lawful execution of their duty.

18     The victims were “complainants” until such time as the charges were found proved.

19     Crimes Act 1961, s 2.

20     R v Simpson [1978] 2 NZLR 221 (CA).

21     At page 223.

Intentional threat to apply force

[23]   The allegation was that Mr Sanson threatened to apply force by driving aggressively and at speed towards both victims.

[24]   On the day in question, the MPI inspector and vet went to the first block of farm land where Mr Sanson’s brother was present. They carried out their inspection and then moved to the second block where Mr Richard Sanson was present. The MPI inspector said that Mr Sanson yelled and swore at them, telling them not to enter the property or he would call the police. It seems Mr Sanson calmed down somewhat and the inspection was carried out. It was at the third block that the assault occurred.

[25]   In her evidence, the vet described Mr Sanson’s ute travelling at a slow steady speed when he drove down the driveway but that the engine was revved aggressively, creating a lot of noise, when he entered the paddock. The vet described a noticeable change in speed, saying that Mr Sanson “definitely planted his foot” and the ute travelled quickly in a straight line towards the victims.

[26]   Mr Sanson maintained that he was simply driving in the paddock for the purposes of feeding his sheep. That was rejected by the Judge, who was satisfied that the manner of driving had nothing to do with the ultimate task of feeding the sheep, noting the vet’s evidence that, when driving towards animals with the intention of feeding them, the driver would tend to slow down so as not to frighten them.

[27]   The Judge noted the prosecution case was that the act of deliberately driving the ute at the victims amounted to the assault. He addressed the evidence of the two victims which he described as compelling and consistent.

[28]The Judge said:22

I find this limb proved beyond reasonable doubt. I find that Mr Sanson threatened to apply force to the complainants by aggressively driving his vehicle at them. It is clear on the evidence that both [the MPI inspector] and [the vet] were caused to believe, on reasonable grounds, that Mr Sanson had the ability to effect his purpose, being the threat to apply force to them. They

22     Ministry for Primary Industries v Sanson [2022] NZDC 3547 [conviction decision] at [28].

retreated for cover behind the MPI vehicle and were so shaken that they ended their enquiry at the property early.

[29]   In Mr Drummond’s submission, for Mr Sanson, while the Judge considered the actus reus of the driving, he omitted to consider Mr Sanson’s mens rea. In his submission, there was no evidence of any threatening statement by Mr Sanson either before, during or after the driving incident suggestive of an intention to threaten to apply force to the victims.

[30]   Mr Drummond responsibly conceded that Mr Sanson had previously made it clear he did not want the victims on his farm and that was relevant context to prove the two intentions. Mr Drummond’s real complaint was that the Judge did not in terms discuss whether Mr Sanson intended to threaten to apply force to the victims. He accepted, however, that the evidence was such that it was open to the Judge to find intent.

[31]   In any event, as noted by Ms Barham for the respondent, the language employed by the Judge made it clear that he was satisfied to the requisite standard of Mr Sanson’s intention to threaten to apply force to the victims. The Judge said he was satisfied that Mr Sanson drove his vehicle in an aggressive and determined way directly at them, as evidenced by the extremely loud revving of the vehicle and rapid acceleration in speed, and that he deliberately chose to drive where he did so as to facilitate the assault.23

Intent to obstruct the victims in the lawful execution of duty

[32]   Mr Drummond submitted that the assault must be intended to obstruct the person assaulted in the execution of their duty, not simply impede them in whatever that person is doing.24

[33]   In Mr Drummond’s submission, Mr Sanson’s action took place over a matter of a few seconds and momentarily took the victims away from their task in hand. The fact they elected to leave because at least one of them was frightened and fearful for

23     Conviction decision, above n 22, at [37].

24     R v Simpson, above n 20.

their safety did not mean that Mr Sanson intended to obstruct them in the execution of their duty.

[34]   In my assessment, there was sufficient evidence before the Judge to enable him to be sure that Mr Sanson intended to obstruct the victims in the execution of their duty. While Mr Sanson may not have intended actually to strike the victims, he deliberately drove directly at them, at speed, in an aggressive way when they were in the course of lawfully carrying out their inspection of the sheep. The MPI inspector described being at significant risk of being run down had they not moved and used their own vehicle as protection. Mr Sanson intentionally obstructed them.

Result

[35]For the reasons given, the appeal against conviction is dismissed.

SENTENCE APPEAL

Introduction

[36]   Mr Sanson appeals his sentence on the grounds that it was manifestly excessive and wrong in principle because the Court failed to take into account all mitigating factors and failed to have sufficient regard to the totality principle.

Judge’s decision

[37]   At sentencing, the Judge had before him a presentence report recommending a sentence of home detention, a number of personal references attesting to his character and  farming  practices,  and  a  psychological  report.  That  evidence   spoke  of   Mr Sanson’s circumstances at the time of the offending – the recent death of his mother, his brother’s and sister’s health problems and an injury suffered by his partner. Mr Sanson himself was in poor health and the offending took place around the time of the first COVID-19 lockdown in 2020.

[38]   The Judge sentenced both brothers together and did not distinguish between their culpability although there was evidence that Mr Sanson dominated his brother to some extent.

[39]   The Judge described the animal welfare offending as within the most serious category of its kind. He noted that, although the brothers were charged with recklessness, the facts of the offending made the totality of the case very serious and at the upper range of seriousness. He noted that the defendants were on notice that they were to improve conditions on the farms, but they did not. He rejected the argument that the conditions on the farms were brought on by drought or COVID-19 lockdown restrictions, referring to the strong and substantial pasture growth in adjoining farms. In any event, he observed that the brothers had an obligation to remove stock if they were unable to care for them and, even if unaware that COVID-19 restrictions did not preclude stock sales, they were obliged humanely to euthanise the animals rather than leaving them to starve.

[40]   The Judge addressed the prosecutor’s request for the Disqualification and considered it was a clear case for such a disqualification, which he made on an indefinite basis.

[41]   The Judge then returned to his sentence indication of a starting point of two years  and ten months’ imprisonment on the animal welfare charges and  applied a  25 per cent discount for the guilty plea.

[42]   The Judge then addressed the two charges of aggravated assault faced by    Mr Sanson but not his brother. He considered there was a degree of vulnerability for an animal welfare inspector and a civilian vet which could not be equated with a police officer who was appropriately trained and equipped to deal with aggressive behaviour. He noted that, had Mr Sanson miscalculated or one of the victims tripped, dire consequences could have resulted. Mr Sanson successfully thwarted the investigation that day because the victims left the farm out of fear for their safety.

[43]   The Judge was satisfied a cumulative sentence was required in respect of the two aggravated assaults and adopted a starting point of four months’ imprisonment on them.

[44]   The Judge addressed totality prior to considering any further reductions, saying, “the end point” was not wholly out of all proportion to the gravity of the offending.25

[45]   The Judge described the submissions seeking a reduction in sentence on the grounds of good character as challenging. He noted Mr Sanson was well thought of in his community, referring to the references filed in support of Mr Sanson. He described the brothers’ history as farmers prior to 2020 as “dreadful”. He said that, whilst MPI sought to use alternative means of improving the brothers’ behaviour short of prosecution, the absence of a conviction did not mean he should disregard what happened prior to 2020. He referred to a 2014 photograph of a pile of dead animals, describing the brothers as “appalling farmers” who “deeply maltreated” their animals. He said:

[62] … That factor overrides the otherwise legitimate  submission about  your good character. That good character is seriously compromised when looked at in the way you farmed which I am told closely defines you, your place in the community and your family.

[46]   The Judge did not accept that Mr Sanson had displayed remorse, seeing only minimisation, denial and a belief that MPI was on some sort of vendetta. He referred to the offer of $2,000 for each victim by way of emotional harm payments. The Judge was unable to accept Mr Sanson’s expression of remorse and made no reduction in that regard.

[47]   The Judge reduced the starting point by 10 per cent in respect of Mr Sanson’s poor health and the rigours a sentence of imprisonment would impose, noting he was in his 60s with health issues.

[48]   Mr Sanson was sentenced to one year and ten months’ imprisonment on the charge of recklessly ill-treating animals, with concurrent sentences of eight months on the charges of failing to alleviate their pain or distress, transporting an animal unfit for transport and breaching animal welfare obligations. A cumulative sentence of four

25     Sentencing decision, above n 6, at [56].

months’ imprisonment was imposed on the two aggravated assault charges. He was ordered to pay $9,054 in costs.

Issues

[49]   Mr Drummond explained that Mr Sanson’s appeal against sentence was somewhat constrained, given the reasoning of Grice J in his brother’s appeal.26 Grice J had rejected Mr Sanson’s brother’s submissions that the discount for mitigating factors was inadequate. Mr Sanson’s appeal against sentence was therefore focused on how the sentence for the aggravated assaults was arrived at.

[50]The issues for consideration are:

(a)Was the starting point within range?

(b)Were the discounts for mitigating factors too small?

(c)Should the sentences for aggravated assault have been concurrent rather than cumulative or reduced to reflect totality?

Approach to appeal

[51]   An appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.27 The Court must dismiss the appeal in any other case.28

[52]   An appellate court will not intervene unless a sentence was outside the range available to the sentencing Judge.29 The focus is on the final sentence and whether it was in the available range, rather than the exact process by which it was reached.30 An appellate court must therefore exercise an appropriate degree of restraint and will

26     Judgment of Grice J, above n 10.

27     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [18] and [26]–[27].

28     Criminal Procedure Act 2011, s 250(3).

29     Tutakangahau v R, above n 27, at [36].

30     Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau v R, above n 27, at [36].

intervene only when the sentence imposed is “manifestly excessive” on the basis of some material error so that a different sentence should be imposed.31

Analysis

Starting point

[53]   Mr Drummond referred to other cases, principally involving police officers assaulted in the execution of their duty. The case of Freer v New Zealand Police involved Mr Freer biting a constable, who was tackling him, on the hand, leaving three distinct puncture marks.32 He later attempted to bite the same constable on the leg. On appeal, Lang J accepted the starting point of six months’ imprisonment adopted in the District Court was outside the available range and considered that the authorities demonstrated a starting point of around four months was justified on the charge of aggravated assault under s 192(2).33 The end result was the imposition of a community detention sentence, coupled with intensive supervision.

[54]   In Mr Drummond’s submission, the fact the present case involves two charges does not materially affect the starting point, given the decision in Kumar v Police where the defendant also faced two charges and the Court held the appropriate starting point was four months.34

[55]   I am satisfied the starting point on the aggravated assault charges of four months’ imprisonment was within range. The Judge was correct to note that the two victims were in a more vulnerable situation than appropriately trained and equipped police officers. The Sentencing Act 2002 provides that the fact the victim was particularly vulnerable is an aggravating factor which must be taken into account in sentencing.35 Furthermore, Mr Sanson drove at the two victims in a car, a potentially lethal weapon.

31     Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau v R, above n 27, at [32].

32     Freer v New Zealand Police [2019] NZHC 337.

33     At footnote 9.

34     Kumar v Police [2014] NZHC 1659.

35     Section 9(1)(g).

Personal circumstances

[56]   Mr Drummond stressed the number of significant events which had taken place in Mr Sanson’s life  at  the  relevant  time.  In  his  submission,  a  combination  of Mr Sanson’s background and lack of awareness, together with his impaired emotional recognition ability as attested to by a consultant clinical psychologist,  resulted in  Mr Sanson acting in an irrational manner on the day.

[57]   In my assessment, the Judge dealt with these matters appropriately, rejecting the submission in respect of the impact of the drought and COVID-19 lockdown, and recognising the impact of other matters on Mr Sanson. While the 10 per cent discount in respect of such matters might be considered at the modest end of the scale, it does not warrant interference.

Good character

[58]   Mr Sanson is 63 years old with one minor conviction almost 40 years ago which can be put to one side.

[59]   In Mr Drummond’s submission, Mr Sanson should have been treated as a first offender. He accepted a good character discount was not available in relation to the animal welfare charges but said the discount should have been given on the two charges of aggravated assault.

[60]   I agree with the Judge that Mr Sanson was not entitled to a discount for good character  in  respect  of  any  of  the  charges,  despite  Ms  Barham   supporting    Mr Drummond’s submissions on this point. The Judge’s analysis was correct. I would only add that, although Mr Sanson had no prior animal welfare convictions, in 2016 he was issued with an instruction pursuant to s 130(1)(b) of the Act, requiring him to take steps to mitigate the suffering of animals on his properties.36 If a defendant does not qualify for a discount for past good character in respect of one set of offending, he cannot qualify for it in respect of another.

36     Such instructions are legally enforceable and failure to comply is an offence under s 130(2) of the Act.

Reparation

[61]   The Sentencing Act provides that in sentencing or otherwise dealing with an offender, the court must take into account any offer of amends, whether financial or by other means, made by the offender to the victim.37 In deciding to what extent such an offer should be taken into account, the court must take into account whether the offer was genuine and capable of fulfilment and whether or not it has been accepted by the victim as expiating or mitigating the wrong.38

[62]   Although the Judge referred to Mr Sanson’s offer of reparation, he did not reflect the offer in his sentence calculation. He should have done so.

[63]   It is not possible to take into account the victims’ views of the offer as there were no victim impact statements. However, the offer was genuine and capable of fulfilment. Mr Sanson was, and continues to be, able to offer $2,000 immediately to each victim. Even though he is described as displaying little remorse, he has recognised the emotional harm they suffered and offered an immediate reasonably substantial payment to each of the victims. Taking that into account would result in a reduction in sentence of around 15 to 20 per cent on the four month starting point.

Totality and effect of Disqualification

[64]Section 85 of the Sentencing Act provides:

85       Court to consider totality of offending

(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent

37 Sentencing Act 2002, s 10(1) and (3).

38 Section 10(2).

sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)If only concurrent sentences are to be imposed,—

(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)each of the lesser offences must receive the penalty appropriate to that offence.

[65]   The Judge was correct that the sentence on the aggravated assault charges should have been cumulative as the assault charges were different in kind from the animal welfare charges.39 However, the Judge erred in his assessment of totality in respect of which he made no adjustment. The Judge considered totality after setting the starting point, whereas it should have been addressed at the end of the exercise.

[66]   Furthermore, the fact of the Disqualification should have been taken into account. It was considered by Grice J to be relevant when it came to assessing whether Mr Sanson’s brother should have received a sentence of home detention. In my view it should be taken into account earlier than that. In this case, because the sentence appeal was confined to the sentence on the aggravated assault charges, Mr Sanson did not include this factor as a ground of appeal. However, he could legitimately raise it in respect of whether the Judge erred in his assessment of the totality of the sentence. I therefore address it in this way, leaving open the question of whether it should have been taken into account earlier in respect of sentencing on the animal welfare charges.

[67]   At 63 years old and having lived and worked on the farm for his entire life, Mr Sanson always imagined that he would do so almost until the very end of his life, just as his father had. There is no doubt that the Disqualification is a severe punishment for him and one that acts as a deterrent for him and generally. Indeed, the Disqualification can be considered the most severe punishment of all. It should therefore have been taken into account in assessing whether the total period of imprisonment was wholly out of proportion to the gravity of the overall offending.

39     Sentencing Act 2002, s 84(1).

[68]    I have therefore concluded that there were two errors in the sentence imposed, namely the failure to take into account the offer of reparation and the failure properly to consider totality and the effect of the Disqualification. I therefore proceed to consider what sentence should have been imposed.

[69]   The sentencing calculation is slightly unusual in that it needs to be approached in two stages, the guilty plea discount being available in respect of the animal welfare charges only and the reparation discount in respect of the aggravated assault charges only. From the starting point of 34 months on the animal welfare charges, the guilty plea and personal circumstances discounts result in a period of 22 months’ imprisonment. Taking the starting point of four months on the aggravated assault charges, a reduction of around 30 per cent should be made to recognise the discounts for personal factors and the emotional harm payment. That leaves a little over two and a half months to be added to the 22 months.

[70]   Taking into account totality and the effect of the Disqualification but bearing in mind issues of parity with Geoffrey Sanson, I conclude that a sentence of 23 months’ imprisonment should have been imposed.

Home detention

[71]   This then brings me to a consideration of whether home detention should be imposed rather than a sentence of imprisonment. Ms Barham responsibly concedes this point.

[72]   A home detention sentence was recommended by the presentence report writer. The address remains available.

[73]Section 16 of the Sentencing Act provides:

16       Sentence of imprisonment

(1)When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

(2)The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a)a sentence is being imposed  for all or any of the  purposes  in section 7(1)(a) to (c), (e), (f), or (g); and

(b)those purposes cannot be achieved by a sentence other than imprisonment; and

(c)no other sentence would be consistent with the application of the principles in section 8 to the particular case.

…

[74]   There is nothing to suggest that it would not be consonant with the safety of the community were Mr Sanson kept in the community. I am satisfied that the purposes and principles of sentencing can be met by a sentence of home detention plus reparation and the Disqualification.

[75]   A home detention sentence is not an easy one. It is appropriate in my assessment for it to be combined with community work which will enable Mr Sanson to give something back to the community. Mr Sanson has served two months in prison and I take that into account when calculating the period of home detention and community work.

Result

[76]The appeal against conviction is dismissed.

[77]   The appeal against sentence is allowed. The sentence of two years and two months’ imprisonment is quashed and replaced by a sentence of eight months’ home detention, 150 hours of community work, reparation of $2,000 to each victim to be paid in full by 5 May 2023, the Disqualification and costs:

(a)on the charges of recklessly ill-treating an animal – 8 months’ home detention;

(b)on the charges of failing to alleviate pain or distress pursuant to s 11 of the Act, transporting an animal unfit for transport and breaching animal

welfare obligations – 4 months’ home detention on each charge to be served concurrently;

(c)on the charges of aggravated assault – 1 month home detention to be served concurrently, $2,000 reparation for each of the two victims, and 150 hours’ community work.

[78]   The home detention is to be served at the address specified in the presentence report and is subject to the conditions specified therein. The post-detention condition expires six months from detention end date.

Thomas J

Solicitors:
BVA The Practice, Palmerston North for Respondent