WOOD v MINISTRY OF PRIMARY INDUSTRIES [2019] NZHC 3486

WOOD v MINISTRY OF PRIMARY INDUSTRIES [2019] NZHC 3486 [20 December 2019]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2019-454-27[2019] NZHC 3486MALCOLM GEORGE WOODvMINISTRY OF PRIMARY INDUSTRIESHearing (via AVL): 17 December 2019Counsel: N Jessen for AppellantS R Poulton for RespondentJudgment: 20 December 2019JUDGMENT OF CHURCHMAN JIntroduction[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 and1 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.(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 thePalmerston North District Court to two years' imprisonment, the Judge declining toexercise his discretion under s 15A of the Sentencing Act 2002 (the Act) to impose asentence of home detention.5[3] Mr Keenan appeals the imposition of a sentence of imprisonment rather thanone of home detention on the grounds that the Judge erred by focussing solely orexcessively on the seriousness of the behaviour and the sentencing purposes ofdeterrence and denunciation at the expense of other relevant factors.[4] The respondent opposes the appeal, arguing that an end sentence ofimprisonment 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. Hehad been dairy farming for approximately 40 years and was the primary person incharge 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 includedinstructions regarding:(a) specified feeding and hygiene in relation to calves;(b) euthanasia of ill or injured non-recoverable calves and cows by use ofa "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 offenceunder s 130(2).[8] Contrary to the instruction, feeding and hygiene in respect of the calvesremained at an unacceptable standard, no captive bolt or other means of euthanasiawas acquired for use on the farm and, contrary to good practice, cows were milkedtwice daily over the winter period.[9] Following a complaint, animal welfare inspectors returned to the farm on10 August 2017 to carry out an inspection. That inspection revealed significant animalwelfare issues on the farm, with animals found in extremely poor condition, manyneeding to be euthanised.[10] Despite being aware of his animals' condition, Mr Wood had done nothing toaddress their obvious suffering. His explanation for the poor welfare of his stock waspressure from the bank to produce more milk, difficulties obtaining farm labour, andbad 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 analogouscases, the sentencing Judge then looked at the role Mr Wood's mental health anddepression would have played, noting that, while there is no defence of diminishedresponsibility in New Zealand, mental health is potentially relevant to the degree ofculpability 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 Judgestating:[90] I am satisfied that your mental state was deteriorating as the pressuresof the bank, the overstocking, the fact that you had a new property and a largemortgage started to overwhelm you. I am satisfied that the effect of thoseimpaired 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 pointwhen 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 whichyou were operating at that time. But the fact that you had been put on noticeis something which I believe cannot be ignored and must go towards yourculpability in this matter also.[14] In arriving at a starting point of 42 months, which was six months less thanthat contended for by the Crown but 12 months greater than that suggested by counselfor Mr Wood, the Judge said that the Crown's approach failed to take into accountreduced culpability due to Mr Wood's mental condition.7 With five months deductedfor 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, asentence of 25½ months was reached.8 Adjusted for totality, the Judge determined thatthe appropriate end sentence should be no more than 24 months.9 This led him toconsider whether, "in all the circumstances", the sentence imposed should be one ofimprisonment or home detention.10 He concluded:[105] The position that we reach though is that the seriousness of thebehaviour, of the stress to the animals and the period of time involved it is, inmy view, inappropriate for anything other than a prison sentence to beimposed.[15] The Judge cited the Court of Appeal decision of Williamson v R in whichreference was made to the following passage of a decision of Judge Parish where asentence of 16 months' imprisonment for similar offending was imposed:11Home detention is one step down from a sentence of imprisonment. It isdesigned to hold you accountable, to deter you, to denounce your conduct andultimately, to try and hold you responsible and also to rehabilitate you. Theproblem for me though, in terms of a sentence of home detention, is that it willbring about none of those aspects. You have no remorse, you do not acceptresponsibility for this offending. The offending is grave. It is nearly at thehighest in relation to the most serious that one could see in relation to thehorses. They needed to be euthanised on the spot because of the poorcondition that they were in. You were on notice and had been on notice fornearly six months of their condition. As I said, and I am reminded by whatJustice Kós has said, there is no remorse. Home detention would not meet any7 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 of16 months' imprisonment.[16] The decision continued:[107] Here I have a pre-sentence report which makes it clear that you wereunable to fully accept your responsibility for what occurred and had a slightlycavalier approach to it. Whether that was part of your mental difficulties ornot, I do not know, but the situation is that with the number of animalsinvolved and the prolonged suffering is such that in my view there cannot bea deterrence as is required under the Sentencing Act 2002 for anything otherthan a prison sentence to be imposed.[17] Accordingly, Mr Wood was sentenced to two years' imprisonment.12Approach to appeal[18] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion and must only be allowed ifthe Court is satisfied that, for any reason, there was an error in the sentence imposedand a different sentence should have been imposed.13 The focus is on the finalsentence and whether that was in the available range, rather than the exact process bywhich it was reached.14Home detention[19] Where an end sentence falls at or below two years' imprisonment, it is open tothe Court to impose a sentence of home detention in place of imprisonment pursuantto s 15A of the Act.[20] With regard to the process of determining whether to impose imprisonment orhome detention, the Court of Appeal in Fairbrother v R held:15 the judge must make a considered and principled choice between the twoforms of sentence, recognising that both serve the principles of denunciationand deterrence, and identifying which of them better qualifies as the leastrestrictive sentence to impose taking into account all the purposes ofsentencing.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:16In our view the critical point is that the sentencing decision as betweenimprisonment or home detention involves a discretionary exercise thatnecessarily engages all of the principles and purposes in ss 7 and 8 in theSentencing Act. Those provisions of the Sentencing Act do not accord greaterweight to factors such as denunciation or deterrence than the personalcircumstances of the offender. The relative weight to be given to the principlesand purposes of the Act is left to be determined by the sentencing judge in allthe circumstances of the case.[22] A useful summary of the principles concerning home detention were set out inBrittin v Police:17(a) Imprisonment is a measure of last resort.(b) A sentence of home detention is a severe sentence, second only to asentence of imprisonment in the hierarchy of offences in s 10A of theSentencing Act.(c) When considering the imposition of a sentence of imprisonment, theCourt must have regard to the desirability of keeping offenders in thecommunity as far as that is practicable and consonant with the safetyof the community.(d) When a Court is considering sentencing for the purposes ofdeterrence, accountability and denunciation, amongst other purposes,it must not impose a sentence of imprisonment unless it is satisfiedthat those purposes cannot be achieved by a sentence other thanimprisonment and no other sentence would be consistent with theapplication of the principles in s 8 of the Act.(e) A sentence of home detention carries with it in considerable measurethe principles of deterrence and denunciation.(f) It is an error of law if the purpose of deterrence has been givencomplete priority without regard to any of the countervailing purposesof sentencing.(g) One of the purposes of sentencing is to assist in the offender'srehabilitation.(h) The judge must make a considered and principled choice between thetwo forms of sentence, recognising that both serve the principles ofdenunciation and deterrence, and identifying which of them betterqualifies as the least restrictive sentence to impose taking into accountall 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 orexcessively on the seriousness of the behaviour and the sentencing purpose ofdeterrence and denunciation, incorrectly regarding deterrence as a requirement of theAct, as opposed to one of several relevant considerations. This excessive focus is saidto have come at the expense of other relevant factors, in particular the principles atss 8(g) and (h). While the Judge found that Mr Wood's mental state was causallylinked to the offending such as to affect his culpability,18 Mr Jessen contends that hisdepression persists as a relevant personal circumstance and the Judge should have, butdid not, consider whether a sentence of imprisonment would be disproportionatelysevere considering his depression. Mr Wood's ongoing battle with depression isaddressed in the psychological report, with the recommendation of a community-based sentence made in part so that Mr Wood could receive ongoing treatment for hisdepression.[24] Mr Jessen notes that remorse is also relevant to the consideration of homedetention or imprisonment. It is submitted that the Judge, in evaluating Mr Wood'sremorse:(a) relied on the pre-sentence report that had been contested by Mr Woodas seriously flawed, without considering his submissions in respect ofthe report;(b) entirely overlooked an assessment by a clinical psychologist thatincluded consideration of Mr Wood's mental health, expressions ofremorse, and professional opinion in relation to opportunities forMr Wood to effectively rehabilitate and receive treatment through acommunity-based sentence; and18 Ministry for Primary Industries v Wood, above n 5, at [90].(c) appears to draw comparison between Mr Wood's expression of remorseand the incomparable complete lack of remorse shown by thedefendants in Williamson v R.19[25] Mr Jessen states that the two reports before the Court on the question ofremorse and the prospects of effective rehabilitation through a community-basedsentence, the pre-sentence report and the psychological report, are in conflict, withdifferent conclusions and giving different sentencing recommendations. He submitsthis called for consideration of both and an evaluation of which report was morecompelling, particularly when the flaws in the pre-sentence report had been directlyaddressed for Mr Wood in written submissions.[26] For the respondent, Ms Poulton submits that the extensive analysis of theaggravating and mitigating factors of the offending and of Mr Wood, and the use ofthe phrase "all the circumstances", lends itself to the conclusion that the Judge tookinto 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 theend sentence he saw fit after this weighting exercise was carried out. Ultimately, theJudge found that the seriousness of the offending, including the stress caused to theanimals, 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 sentenceof imprisonment.[27] Ms Poulton notes that the principles and purposes of sentencing referred to inss 7 and 8 of the Act may not always accord with one another and it is for thesentencing Judge to weigh them on a case by case basis. She submits that theoffending in this case was extremely serious as is evident from the high starting pointof 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 theharm and suffering cause to his cattle since the visit that year by MPI inspectors. TheJudge viewed the seriousness of this offending as a primary consideration and it issubmitted 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 areat odds as to the remorse and responsibility shown by Mr Wood but submits that it wasopen to him to prefer one report over another where the two conflicted. She arguesthat it is clear from the earlier reference to the psychologist's report, and the relianceplaced 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 matterfor the Court to determine and should not be disturbed.[29] It is also accepted that the Judge did not explicitly consider what the leastrestrictive sentence in the circumstances would be, but he did find that the seriousnessof the offending could only warrant a starting point of imprisonment. Ms Poultonsubmits that a sentence of imprisonment is the least restrictive outcome in thecircumstances, the seriousness and the gravity of the offending warranting sufficientdenunciation and deterrence.[30] As to Mr Wood's mental health, Ms Poulton suggests it can be treated in prisonand there are no other personal circumstances pointing to a sentence of anything otherthan imprisonment. Although Mr Wood's mental state was not expressly referred towhen considering whether to impose a sentence of home detention and this is apersonal circumstance which may go to assessing whether a particular sentence isdisproportionately severe, his mental health was considered elsewhere. While it mayhave been more comprehensive for the Judge to turn his mind to the psychologist'sreport and the analysis of Mr Wood's mental state at this point in the sentencingexercise, that he did not does not change the safety of the end sentence. The greatestweight was simply given, arguably appropriately, to the seriousness of the offending.[31] In terms of rehabilitation, both the pre-sentence report and the psychologist'sreport refer to Mr Wood's need for treatment for his depression and stress. Ms Poultondoes not dispute that rehabilitative mechanisms and treatment programmes should bemade available to Mr Wood as part of his sentence but, again, she notes that suchrehabilitation can be provided while he is carrying out a prison sentence. It isaccordingly submitted that the sentencing purpose of rehabilitation can be met by asentence 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 hadreferred to " the level of animal cruelty through persistent use of violence andneglect". Further he said:The key factors assessed as contributing to Mr Wood's offending are, apropensity to violence and inability to cope with stress, poor decision-makingskills, 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 evidenceof persistent and serious neglect which caused significant adverse effects on the stockinvolved, there is no evidence of violence, at least as that term is commonlyunderstood.[34] The assumption in the report that violence was involved appears to havestrongly influenced the report writer's conclusion that home detention was notappropriate and that prison was appropriate.[35] The report also noted:Should the Court wish to extend leniency, Home Detention is available andwill be recommended as an option as a punitive consequence to hold Mr Woodaccountable for his actions while allowing him to undertake rehabilitativeprogrammes in the community. Home detention would provide the oversightrequired to monitor the rehabilitative intervention. It would also provide theopportunity for Mr Wood to work with the Probation Officer on a preventivestrategy and problem solving skills in order to furnish him [sic] to make betterdecisions.[36] The reference to extending "leniency" is concerning. For the reasons set outin the decision of Brittin v Police, as set out in [22] of this decision, a sentence ofHome Detention, is not to be seen as a lenient sentence as compared to prison.20 It isan alternative sentence and one which the Courts have acknowledged "carries with itin considerable measure, the principles of deterrence and denunciation".2120 Brittin v Police, above n 17.21 At [55].[37] The Provision of Advice to Courts report is dated 17 June 2019 and the detailedpsychological report is dated 15 July 2019. Therefore, the PAC report writer wouldnot have had available to him the views of the psychologist as to the significance ofMr Wood's mental health issues on this offending. It may well be that had thepsychological report been available, the PAC report writer may have expressed hisconclusions differently.[38] Finally, on the topic of violence, I note that Mr Wood has no other convictionsof 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 ismandatory that the Court have regard to the desirability of keeping offenders in thecommunity as far as that is practicable and consonant with the safety of thecommunity.[40] In the present case, the psychological report explained why a community-basedsentence was preferable to imprisonment. The writers concluded:This would enable effective rehabilitation and ongoing treatment to take placeas 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 depressionincluding therapy.[42] In terms of the issue of "the safety of the community", the particular risk thatMr Wood presented was in relation to the safety of animals. As he is no longerfarming, there would not appear to be any issue of safety to the community that wouldarise 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 unableto fully accept your responsibility for what occurred and had a slightly cavalierapproach to it. But whether that was part of your mental difficulties or not, Ido not know, but the situation is that with the number of animals involved andthe prolong suffering as such that in my view there cannot be a deterrence asis required under the Sentencing Act 2002 for anything other than a prisonsentence 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 seemsto have had little understanding of the full impact of Mr Wood's mental health issueson 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 neglectof his stock coincided with the onset of his mental health issues.[46] I draw the conclusion that the mental health issues were directly causative ofhis behaviour in relation to the treatment of animals. Within a few years he had gonefrom caring for his stock to such an extent that he won prizes for them to simply notbeing able to look after them.[47] As the Court of Appeal in Brittin v Police noted, one of the purposes ofsentencing is to assist in the offender's rehabilitation. Even without the benefit ofpsychological report, the PAC report writer, in the passages quoted above, recognisedthat "Home Detention would provide the oversight required to monitor therehabilitative intervention".[48] I am satisfied that there is a genuine and realistic prospect of rehabilitation andaccept the views of the psychologists that home detention will facilitate thatrehabilitation.[49] That finally leaves the issue of deterrence which seems to have been the factorthat 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 calledfor a sentence of both deterrence and denunciation. The real issue is whether asentence 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 ofdeterrence and denunciation, and also that, in this case, imposing a sentence ofimprisonment for the purposes of deterrence would be to give that factor completepriority without regard to any of the countervailing purposes of sentencing. A term ofimprisonment 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 homedetention is more consistent with the principles of sentencing than a sentence ofimprisonment.Result[53] The sentence of imprisonment is quashed and replaced with a sentence of homedetention. In recognition of the time spent by Mr Wood in prison, a sentence of11 months' home detention is substituted for 24 months' imprisonment. The sentencewill be served at the address specified in the PAC report dated 17 June 2019 and, inaddition to the standard conditions, will have the following conditions:(a) Mr Wood engage with Mental Health Services for assessment followedby any recommended treatment, and to complete such, to thesatisfaction of the probation officer and/or the service provider; and(b) Mr Wood is to attend any counselling/treatment/programme as directedby a probation officer.Churchman JSolicitors:Cooper Rapley Lawyers, Palmerston NorthBVA The Practice, Palmerston North