Wood v Ministry of Primary Industries
[2019] NZHC 3486
•20 December 2019
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2019-454-27
[2019] NZHC 3486
MALCOLM GEORGE WOOD v
MINISTRY OF PRIMARY INDUSTRIES
Hearing (via AVL): 17 December 2019 Counsel:
N Jessen for Appellant
S R Poulton for Respondent
Judgment:
20 December 2019
JUDGMENT OF CHURCHMAN J
Introduction
[1]The appellant, Malcolm George Wood, pleaded guilty to the following charges:
(a)wilful ill-treatment of an animal (x7);1
(b)reckless ill-treatment of an animal (x4);2
(c)ill-treatment of an animal (x2);3 and
1 Animal Welfare Act 1999, s 28(1)(b); maximum penalty five years’ imprisonment and a fine of
$100,000.
2 Section 28A(1)(c); maximum penalty three years’ imprisonment and a fine of $75,000.
3 Section 29(a); maximum penalty 12 months’ imprisonment and a fine of $50,000.
WOOD v MINISTRY OF PRIMARY INDUSTRIES [2019] NZHC 3486 [20 December 2019]
(d)failing to comply with s 10 of the Animal Welfare Act 1999 (x3).4
[2] On 26 November 2019, Mr Wood was sentenced by Judge Smith in the Palmerston North District Court to two years’ imprisonment, the Judge declining to exercise his discretion under s 15A of the Sentencing Act 2002 (the Act) to impose a sentence of home detention.5
[3] Mr Keenan appeals the imposition of a sentence of imprisonment rather than one of home detention on the grounds that the Judge erred by focussing solely or excessively on the seriousness of the behaviour and the sentencing purposes of deterrence and denunciation at the expense of other relevant factors.
[4] The respondent opposes the appeal, arguing that an end sentence of imprisonment was open to the Court to impose, and it was appropriate to do so.
Factual background
[5] Mr Wood, along with his wife, owned a dairy farm near Palmerston North. He had been dairy farming for approximately 40 years and was the primary person in charge of running the farm.
[6] In September 2015, his farm was inspected by Ministry for Primary Industries (MPI) animal welfare officers, that inspection revealing many cows in poor condition. An instruction was issued under s 130 of the Animal Welfare Act, which included instructions regarding:
(a)specified feeding and hygiene in relation to calves;
(b)euthanasia of ill or injured non-recoverable calves and cows by use of a “captive bolt”; and
(c)stock number to be reduced to 400-420 milkers within 10 days.
4 Sections 10 and 12(a); maximum penalty 12 months’ imprisonment and a fine of $50,000.
5 Ministry for Primary Industries v Wood [2019] NZDC 23899.
[7] The instruction included advice that failure to comply with it was an offence under s 130(2).
[8] Contrary to the instruction, feeding and hygiene in respect of the calves remained at an unacceptable standard, no captive bolt or other means of euthanasia was acquired for use on the farm and, contrary to good practice, cows were milked twice daily over the winter period.
[9] Following a complaint, animal welfare inspectors returned to the farm on 10 August 2017 to carry out an inspection. That inspection revealed significant animal welfare issues on the farm, with animals found in extremely poor condition, many needing to be euthanised.
[10] Despite being aware of his animals’ condition, Mr Wood had done nothing to address their obvious suffering. His explanation for the poor welfare of his stock was pressure from the bank to produce more milk, difficulties obtaining farm labour, and bad weather over the winter. He also stated that he was stressed and depressed.
District Court decision
[11] Having set out Mr Wood’s offending in great detail and considered analogous cases, the sentencing Judge then looked at the role Mr Wood’s mental health and depression would have played, noting that, while there is no defence of diminished responsibility in New Zealand, mental health is potentially relevant to the degree of culpability of the offending, which, in turn, is relevant to the gravity of the offending.6
[12] Reference was made to a psychological report at [82]-[86], with the Judge stating:
[90] I am satisfied that your mental state was deteriorating as the pressures of the bank, the overstocking, the fact that you had a new property and a large mortgage started to overwhelm you. I am satisfied that the effect of those impaired your decision-making and that it had an effect on your culpability. It is a matter which I take into account in setting the appropriate starting point when comparing the decisions which I have referred to from Erickson and on.
6 Ministry for Primary Industries v Wood, above n 5, at [80].
[13]He continued:
[94] I see that your depression may well have influenced the way in which you were operating at that time. But the fact that you had been put on notice is something which I believe cannot be ignored and must go towards your culpability in this matter also.
[14] In arriving at a starting point of 42 months, which was six months less than that contended for by the Crown but 12 months greater than that suggested by counsel for Mr Wood, the Judge said that the Crown’s approach failed to take into account reduced culpability due to Mr Wood’s mental condition.7 With five months deducted for Mr Wood’s lack of prior convictions, three months deducted for remorse (“though limited and late”), and a discount of 8½ months for his guilty pleas, a sentence of 25½ months was reached.8 Adjusted for totality, the Judge determined that the appropriate end sentence should be no more than 24 months.9 This led him to consider whether, “in all the circumstances”, the sentence imposed should be one of imprisonment or home detention.10 He concluded:
[105] The position that we reach though is that the seriousness of the behaviour, of the stress to the animals and the period of time involved it is, in my view, inappropriate for anything other than a prison sentence to be imposed.
[15] The Judge cited the Court of Appeal decision of Williamson v R in which reference was made to the following passage of a decision of Judge Parish where a sentence of 16 months’ imprisonment for similar offending was imposed:11
Home detention is one step down from a sentence of imprisonment. It is designed to hold you accountable, to deter you, to denounce your conduct and ultimately, to try and hold you responsible and also to rehabilitate you. The problem for me though, in terms of a sentence of home detention, is that it will bring about none of those aspects. You have no remorse, you do not accept responsibility for this offending. The offending is grave. It is nearly at the highest in relation to the most serious that one could see in relation to the horses. They needed to be euthanised on the spot because of the poor condition that they were in. You were on notice and had been on notice for nearly six months of their condition. As I said, and I am reminded by what Justice Kós has said, there is no remorse. Home detention would not meet any
7 At [97].
8 At [100]-[102].
9 At [103].
10 At [104].
11 At [106]; Williamson v R [2015] NZCA 621 at [84].
of those principles and purposes of sentence, so the sentence is one of 16 months’ imprisonment.
[16]The decision continued:
[107] Here I have a pre-sentence report which makes it clear that you were unable to fully accept your responsibility for what occurred and had a slightly cavalier approach to it. Whether that was part of your mental difficulties or not, I do not know, but the situation is that with the number of animals involved and the prolonged suffering is such that in my view there cannot be a deterrence as is required under the Sentencing Act 2002 for anything other than a prison sentence to be imposed.
[17]Accordingly, Mr Wood was sentenced to two years’ imprisonment.12
Approach to appeal
[18] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and 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.13 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.14
Home detention
[19] Where an end sentence falls at or below two years’ imprisonment, it is open to the Court to impose a sentence of home detention in place of imprisonment pursuant to s 15A of the Act.
[20] With regard to the process of determining whether to impose imprisonment or home detention, the Court of Appeal in Fairbrother v R held:15
… the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
12 At [108].
13 Tutakangahau v R [2014] NZCA 279.
14 Ripia v R [2011] NZCA 101 at [15].
15 Fairbrother v R [2013] NZCA 340 at [30].
[21]In Doolan v R, the Court of Appeal held:16
In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.
[22]A useful summary of the principles concerning home detention were set out in
Brittin v Police:17
(a)Imprisonment is a measure of last resort.
(b)A sentence of home detention is a severe sentence, second only to a sentence of imprisonment in the hierarchy of offences in s 10A of the Sentencing Act.
(c)When considering the imposition of a sentence of imprisonment, 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.
(d)When a Court is considering sentencing for the purposes of deterrence, accountability and denunciation, amongst other purposes, it must not impose a sentence of imprisonment unless it is satisfied that those purposes cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with the application of the principles in s 8 of the Act.
(e)A sentence of home detention carries with it in considerable measure the principles of deterrence and denunciation.
(f)It is an error of law if the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.
(g)One of the purposes of sentencing is to assist in the offender’s rehabilitation.
(h)The judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
16 Doolan v R [2011] NZCA 542 at [38] (citations omitted).
17 Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55] (citations omitted).
Discussion
[23] Mr Jessen for Mr Wood argues that the Judge erred by focusing solely or excessively on the seriousness of the behaviour and the sentencing purpose of deterrence and denunciation, incorrectly regarding deterrence as a requirement of the Act, as opposed to one of several relevant considerations. This excessive focus is said to have come at the expense of other relevant factors, in particular the principles at ss 8(g) and (h). While the Judge found that Mr Wood’s mental state was causally linked to the offending such as to affect his culpability,18 Mr Jessen contends that his depression persists as a relevant personal circumstance and the Judge should have, but did not, consider whether a sentence of imprisonment would be disproportionately severe considering his depression. Mr Wood’s ongoing battle with depression is addressed in the psychological report, with the recommendation of a community- based sentence made in part so that Mr Wood could receive ongoing treatment for his depression.
[24] Mr Jessen notes that remorse is also relevant to the consideration of home detention or imprisonment. It is submitted that the Judge, in evaluating Mr Wood’s remorse:
(a)relied on the pre-sentence report that had been contested by Mr Wood as seriously flawed, without considering his submissions in respect of the report;
(b)entirely overlooked an assessment by a clinical psychologist that included consideration of Mr Wood’s mental health, expressions of remorse, and professional opinion in relation to opportunities for Mr Wood to effectively rehabilitate and receive treatment through a community-based sentence; and
18 Ministry for Primary Industries v Wood, above n 5, at [90].
(c)appears to draw comparison between Mr Wood’s expression of remorse and the incomparable complete lack of remorse shown by the defendants in Williamson v R.19
[25] Mr Jessen states that the two reports before the Court on the question of remorse and the prospects of effective rehabilitation through a community-based sentence, the pre-sentence report and the psychological report, are in conflict, with different conclusions and giving different sentencing recommendations. He submits this called for consideration of both and an evaluation of which report was more compelling, particularly when the flaws in the pre-sentence report had been directly addressed for Mr Wood in written submissions.
[26] For the respondent, Ms Poulton submits that the extensive analysis of the aggravating and mitigating factors of the offending and of Mr Wood, and the use of the phrase “all the circumstances”, lends itself to the conclusion that the Judge took into account all information when considering the appropriateness of home detention. She argues that it was open to the Judge to weigh up the information and impose the end sentence he saw fit after this weighting exercise was carried out. Ultimately, the Judge found that the seriousness of the offending, including the stress caused to the animals, the number of animals concerned and the period of time of the offending, meant that the principles and purposes of sentencing could only be met with a sentence of imprisonment.
[27] Ms Poulton notes that the principles and purposes of sentencing referred to in ss 7 and 8 of the Act may not always accord with one another and it is for the sentencing Judge to weigh them on a case by case basis. She submits that the offending in this case was extremely serious as is evident from the high starting point of 3½ years’ imprisonment against a maximum penalty of five years’ imprisonment. This offending had been ongoing since 2015, Mr Wood having been on notice of the harm and suffering cause to his cattle since the visit that year by MPI inspectors. The Judge viewed the seriousness of this offending as a primary consideration and it is submitted that he was right to do so.
19 Williamson v R, above n 7.
[28] Ms Poulton accepts that the pre-sentence report and the psychologist report are at odds as to the remorse and responsibility shown by Mr Wood but submits that it was open to him to prefer one report over another where the two conflicted. She argues that it is clear from the earlier reference to the psychologist’s report, and the reliance placed on it, that the Judge was aware of its contents and satisfied as to its reliability. That greater weight was attached to the pre-sentence report, she submits, was a matter for the Court to determine and should not be disturbed.
[29] It is also accepted that the Judge did not explicitly consider what the least restrictive sentence in the circumstances would be, but he did find that the seriousness of the offending could only warrant a starting point of imprisonment. Ms Poulton submits that a sentence of imprisonment is the least restrictive outcome in the circumstances, the seriousness and the gravity of the offending warranting sufficient denunciation and deterrence.
[30] As to Mr Wood’s mental health, Ms Poulton suggests it can be treated in prison and there are no other personal circumstances pointing to a sentence of anything other than imprisonment. Although Mr Wood’s mental state was not expressly referred to when considering whether to impose a sentence of home detention and this is a personal circumstance which may go to assessing whether a particular sentence is disproportionately severe, his mental health was considered elsewhere. While it may have been more comprehensive for the Judge to turn his mind to the psychologist’s report and the analysis of Mr Wood’s mental state at this point in the sentencing exercise, that he did not does not change the safety of the end sentence. The greatest weight was simply given, arguably appropriately, to the seriousness of the offending.
[31] In terms of rehabilitation, both the pre-sentence report and the psychologist’s report refer to Mr Wood’s need for treatment for his depression and stress. Ms Poulton does not dispute that rehabilitative mechanisms and treatment programmes should be made available to Mr Wood as part of his sentence but, again, she notes that such rehabilitation can be provided while he is carrying out a prison sentence. It is accordingly submitted that the sentencing purpose of rehabilitation can be met by a sentence of imprisonment.
[32] Counsel for Mr Wood made a number of criticisms of the contents of the pre- sentence report. In that report, under the heading “Key considerations”, the writer had referred to “… the level of animal cruelty through persistent use of violence and neglect”. Further he said:
The key factors assessed as contributing to Mr Wood’s offending are, a propensity to violence and inability to cope with stress, poor decision-making skills, over-confidence, sense of entitlement and poor problem solving skills.
[33] The reference to violence and particularly the description of it as a “key factor” is impossible to reconcile with the summary of facts. While there was ample evidence of persistent and serious neglect which caused significant adverse effects on the stock involved, there is no evidence of violence, at least as that term is commonly understood.
[34] The assumption in the report that violence was involved appears to have strongly influenced the report writer’s conclusion that home detention was not appropriate and that prison was appropriate.
[35]The report also noted:
Should the Court wish to extend leniency, Home Detention is available and will be recommended as an option as a punitive consequence to hold Mr Wood accountable for his actions while allowing him to undertake rehabilitative programmes in the community. Home detention would provide the oversight required to monitor the rehabilitative intervention. It would also provide the opportunity for Mr Wood to work with the Probation Officer on a preventive strategy and problem solving skills in order to furnish him [sic] to make better decisions.
[36] The reference to extending “leniency” is concerning. For the reasons set out in the decision of Brittin v Police, as set out in [22] of this decision, a sentence of Home Detention, is not to be seen as a lenient sentence as compared to prison.20 It is an alternative sentence and one which the Courts have acknowledged “carries with it in considerable measure, the principles of deterrence and denunciation”.21
20 Brittin v Police, above n 17.
21 At [55].
[37] The Provision of Advice to Courts report is dated 17 June 2019 and the detailed psychological report is dated 15 July 2019. Therefore, the PAC report writer would not have had available to him the views of the psychologist as to the significance of Mr Wood’s mental health issues on this offending. It may well be that had the psychological report been available, the PAC report writer may have expressed his conclusions differently.
[38] Finally, on the topic of violence, I note that Mr Wood has no other convictions of any sort and there is no suggestion of any issue of violence in any aspect of his life.
[39] When considering whether or not home detention should be imposed, it is mandatory that the Court 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.
[40] In the present case, the psychological report explained why a community-based sentence was preferable to imprisonment. The writers concluded:
This would enable effective rehabilitation and ongoing treatment to take place as well as being subject to the sanctions that Court sees as appropriate.
[41]And:
It is recommended that Mr Wood continues to receive treatment for depression including therapy.
[42] In terms of the issue of “the safety of the community”, the particular risk that Mr Wood presented was in relation to the safety of animals. As he is no longer farming, there would not appear to be any issue of safety to the community that would arise from the imposition of a sentence of home detention.
[43]At [107] of the judgment under appeal, the Judge said:
Here, I have a pre-sentence report which makes it clear that you were unable to fully accept your responsibility for what occurred and had a slightly cavalier approach to it. But whether that was part of your mental difficulties or not, I do not know, but the situation is that with the number of animals involved and the prolong suffering as such that in my view there cannot be a deterrence as is required under the Sentencing Act 2002 for anything other than a prison sentence to be imposed.
[44] Once again, these comments need to be read in light of the fact that the pre- sentence report writer did not have the benefit of the psychological report and seems to have had little understanding of the full impact of Mr Wood’s mental health issues on his behaviour.
[45] The psychological report is unequivocal that during the relevant period, Mr Wood suffered from a major mood disorder and that the uncharacteristic neglect of his stock coincided with the onset of his mental health issues.
[46] I draw the conclusion that the mental health issues were directly causative of his behaviour in relation to the treatment of animals. Within a few years he had gone from caring for his stock to such an extent that he won prizes for them to simply not being able to look after them.
[47] As the Court of Appeal in Brittin v Police noted, one of the purposes of sentencing is to assist in the offender’s rehabilitation. Even without the benefit of psychological report, the PAC report writer, in the passages quoted above, recognised that “Home Detention would provide the oversight required to monitor the rehabilitative intervention”.
[48] I am satisfied that there is a genuine and realistic prospect of rehabilitation and accept the views of the psychologists that home detention will facilitate that rehabilitation.
[49] That finally leaves the issue of deterrence which seems to have been the factor that most influenced the sentencing Judge’s reject of home detention.
[50] There is no doubt that the facts of this offending were very serious and called for a sentence of both deterrence and denunciation. The real issue is whether a sentence of home detention can achieve those objectives.
[51] Guided by the observations in Brittin v Police, I am satisfied that, in this case, a sentence of home detention will convey in considerable measure the principles of deterrence and denunciation, and also that, in this case, imposing a sentence of
imprisonment for the purposes of deterrence would be to give that factor complete priority without regard to any of the countervailing purposes of sentencing. A term of imprisonment is not the least restrictive sentence that can appropriately be imposed.
[52] As set out above, I have discussed a number of reasons why a sentence of home detention is more consistent with the principles of sentencing than a sentence of imprisonment.
Result
[53] The sentence of imprisonment is quashed and replaced with a sentence of home detention. In recognition of the time spent by Mr Wood in prison, a sentence of 11 months’ home detention is substituted for 24 months’ imprisonment. The sentence will be served at the address specified in the PAC report dated 17 June 2019 and, in addition to the standard conditions, will have the following conditions:
(a)Mr Wood engage with Mental Health Services for assessment followed by any recommended treatment, and to complete such, to the satisfaction of the probation officer and/or the service provider; and
(b)Mr Wood is to attend any counselling/treatment/programme as directed by a probation officer.
Churchman J
Solicitors:
Cooper Rapley Lawyers, Palmerston North BVA The Practice, Palmerston North
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