MINISTRY FOR PRIMARY INDUSTRIES v McCONNELL [2023] NZHC 1342

MINISTRY FOR PRIMARY INDUSTRIES v McCONNELL [2023] NZHC 1342 [31 May 2023]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2022-488-000087[2023] NZHC 1342BETWEEN MINISTRY FOR PRIMARY INDUSTRIESAppellantAND KEVIN JOHN McCONNELLRespondentHearing: 8 February 2023Counsel: B O'Connor and P Leeming for AppellantRespondent in personJudgment: 31 May 2023JUDGMENT OF HINTON JThis judgment was delivered by me on 31 May 2023 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Marsden Woods Inskip Smith, Whangarei[1] This is a sentence appeal brought by the Ministry for Primary Industries (theMinistry) under the National Animal Identification and Tracing Act 2012 (NAIT Act).[2] Mr McConnell is a 73-year-old beef farmer based in Mangapai, Northland. Hefarms about 300 hectares of land and largely breeds his own cattle. He is a fifth-generation farmer in the area and has worked as a farmer for some 58 years.[3] The two charges under the NAIT Act are:(a) That between 3 May 2022 and 14 June 2022, Mr McConnell failed toensure that the animals in his charge were registered according to theNAIT Act.1 (This charge related to eight movements of animals and117 cattle in total. All movements were from his farm to the meatworks.)(b) That on 30 May 2022, Mr McConnell failed to ensure that animals wereregistered according to the NAIT Act.2 (This charge related to around400 cattle, being the total number of cattle on his farm at that date andinvolving no movement of animals.)[4] Mr McConnell was convicted and sentenced on 14 September 2022 by JudgeG L Davis in the Whangarei District Court. 3 He was convicted and discharged withrespect to the first charge, and a fine of $500 was imposed in respect of the secondcharge.[5] On appeal, the Ministry submits that the sentence was manifestly inadequate.The NAIT regime[6] The NAIT regime was established to identify and track individual and groupsof NAIT animals (that is cattle and deer) from birth to death or live export. Its keypurpose is to enhance biosecurity management in New Zealand. Where infectious1 National Animal Identification and Tracing Act 2012, s 31 and sch 2 cl 15(2)(b).2 Section 30 and sch 2 cl 15(2)(a).3 Ministry for Primary Industries v Kevin John McConnell [2022] NZDC 18870.disease is detected in animal populations, accurate NAIT tracing information is usedto manage and contain spread. The system is vital to protecting New Zealand's exportindustry as reflected by the increase in maximum penalties for offending under theNAIT Act from $10,000 to $100,000 in 2019, following an outbreak of mycoplasmabovis in 2017. That outbreak showed there was widespread non-compliance with theNAIT system. The increase in maximum penalties indicated a low tolerance forbreaches going forward.[7] The Organisation Supporting Primary Industries (OSPRI), through itssubsidiary NAIT Limited, is the designated organisation responsible for collection andmanagement of information and data within the digital NAIT system.[8] There are six key obligations under the NAIT Act for individuals or entitieswanting to own or manage NAIT animals. The obligations are that:(a) Individuals in charge of NAIT animals must register as a Person inCharge of NAIT Animals (PICA) with the NAIT organisation.4(b) A PICA must register every location where that person is in charge ofNAIT animals and confirm they are a PICA for the specified location.5(c) A PICA must ensure that the NAIT animals in their charge are correctlyfitted at all times with a NAIT device (Radio Frequency IdentificationDevice or "NAIT tag") and are registered with the NAIT organisation.6A PICA must not move NAIT animals from the NAIT location or otherlocation which that PICA controls unless those animals are fitted witha NAIT device and registered.(d) A PICA must declare every NAIT animal movement on or off theirNAIT location to the NAIT organisation within 48 hours after the endof the day that movement occurred.74 National Animal Identification and Tracing Act 2012, ss 26 and 27.5 Section 29.6 Section 30.7 Section 31.(e) A PICA must declare the death, loss, or intended export of NAITanimals.8(f) A PICA must provide correct and up-to-date information to the NAITorganisation as required by or under the NAIT Act.9[9] As Ms Leeming for the Ministry explained, when animals are moved off afarm, the process involves either:(a) a "one-legged movement" where cattle are moved from the farm to themeat works or to sale yards for resale; or(b) a "two-legged movement" where cattle are transported to anotherfarmer directly. Sometimes the movements are more complicated stillbut that is not relevant for present purposes.[10] In the case of a one-legged movement, registration of the movement is handledby the meat works or the sale yards when the animals arrive. Under a two-leggedmovement, registration of the movement is required both on departure from theholding farm by the PICA and again on arrival at the receiving farm by the receivingPICA.[11] The farmer pays for tags and attaches them, but they are not tagged to aparticular animal until scanned and thereby registered. There is no cost involved inregistering animals or their movements. That is a data exercise only. Obviously, thereis time and attention involved.[12] There has been, although it should no longer hold true, a widespreadmisunderstanding among farmers, stock agents and meat processing facilities thatwhere animals are only going to the meat works, there was no need to register them,on the basis that providing they were tagged they would automatically be logged inthe NAIT system upon receipt at the works. Many farmers also considered that8 Section 32.9 Section 33.purchasing tags and applying them to their cattle would amount automatically toregistration of the animal and its movements. It may be that the system will evolveand simplify in that way.[13] It seems that until around 2017 when there was the outbreak of disease, theregime, although it had been in force since 2012, was only loosely policed. As notedabove, since the outbreak the fines have significantly increased and enforcement hasbeen stricter.[14] The Ministry has set up a helpline where people can call for assistance andregister animals manually if they are having difficulty with electronic registration. TheMinistry has also undertaken extensive education initiatives over the years.Background[15] Mr McConnell has been registered as a PICA since 2012 and his farmland isregistered under the NAIT Act as a NAIT location.[16] Mr McConnell has also always tagged all of his animals with a locating device.[17] He also always completed the animal declaration cards required when animalsare moved.[18] However, as noted above, once tagged, animals are to be registered withOSPRI and since 2012 Mr McConnell has failed to register a large number of animalsborn on his farm. No official action was taken by NAIT Ltd until 2019. In May 2019,he received a notice from NAIT Ltd reminding him of his obligations under the NAITAct. On 16 July 2020, he received a warning letter from the Ministry as a result ofmoving unregistered NAIT animals from his farm on 17 April 2020.[19] Further infringement notices were issued by the Ministry in relation to threegroups of unregistered cattle being moved from Mr McConnell's farm between 5 May2020 and 10 March 2022. These went unheeded and additional breaches wererecorded by the Ministry.[20] The current charges were then laid and on 14 September 2022, without havingbeen in touch with the Ministry beforehand and at a first call of the charges,Mr McConnell appeared before Judge Davis represented by a duty solicitor. Heentered guilty pleas in respect of both charges.[21] Counsel appearing for the Ministry requested that sentencing be adjourned sothat submissions could be filed. Judge Davis decided to proceed and Mr McConnellwas thereafter convicted of both charges and ordered, as noted above, to pay the $500fine in respect of the second charge and discharged in respect of the first charge.[22] On 26 October 2022, the Ministry submitted a memorandum to Judge Davisunder s 180 of the Criminal Procedure Act 2011. It sought correction in respect ofMr McConnell's sentencing on the basis that:(a) the Judge erred in entering convictions for the relevant charges as thesewere category one offences which do not carry convictions; and(b) the fine of $500 and discharge were manifestly inadequate for theoffending, diverging significantly from sentencing in similar cases.[23] Judge Davis acknowledged the convictions were entered in error and set bothaside. He declined to alter the fine or discharge saying that a rehearing would not beappropriate as Mr McConnell had not had any opportunity to respond and, as the finehad already been imposed, he did not consider it appropriate to recall under s 180.The test on appeal[24] This appeal is brought pursuant to s 246 of the Criminal Procedure Act 2011under which a prosecutor may appeal against a sentence proposed for an offence unlessthe sentence is fixed by law. The Ministry had to obtain, and did obtain, the consentof the Solicitor-General. The appeal is to be determined in line with s 250 whichprovides that a first appeal court must allow an appeal if satisfied that for any reasonthere is an error in the sentence imposed on conviction and a different sentence shouldbe imposed.[25] While s 250 refers to a conviction, infringement offences are captured asconvictions for the purposes of the Criminal Procedure Act, where the Court may orderthe defendant to pay a fine and costs in respect of that infringement.[26] Section 251 outlines the powers given to a first appeal court under s 250,including the ability to set aside a sentence, impose another sentence, or vary theexisting sentence. The effect of this approach was clarified in Tutakangahau v R10where the Court of Appeal held that an appeal court should only intervene where thereis a "material error in the sentencing process" which requires correction on appeal.[27] As noted by the Court of Appeal in R v Wilson,11 whether a sentence ismanifestly inadequate will be determined with reference to the maximum sentence foran offence and any comparable sentences but will ultimately turn on "the totality ofthe offending and the culpability of the offender in the particular case".The arguments on appealThe Ministry[28] The Ministry says there were material errors in the sentencing process.Without the benefit of submissions, Judge Davis imposed a sentence well outside theexpected range for similar offending. He had not adopted the required approach of astarting point, uplifts and discounts, and had taken no account of the correct NAITprocedure.[29] Further, the Ministry says the fine of $500 for the second charge was manifestlyinadequate and that this was compounded by the discharge of the first charge. Giventhe charges relate to different animals, there is no reason that offending related to onegroup should be reflected in sentencing but not offending related to the other group.[30] The Crown submit that on the basis of the post-2019 District Court casesreflecting the new maximum penalty under the regime, the starting point for the twocharges combined should be $40,000.10 Tutakangahau v R (2014) 27 CRNZ 29.11 R v Wilson (2004) 21 CRNZ 56.[31] They accept that discounts for mitigating factors may be applicable.Mr McConnell[32] Mr McConnell had not taken any steps in respect of the appeal but, as happenedwith the first call of the charges before Judge Davis, he appeared at the hearing. Hegave, as did the Crown, very helpful submissions. He explained that he is a soleoperator in respect of his holding, which he views as a medium-sized farm. He mostlybreeds his own cattle and seldom purchases cattle. As stated above, he has farmed forsome 58 years now. He is computer illiterate.[33] Mr McConnell said that his animals are bred on the farm and are only evermoved from the farm to the meat works. He is not obligated to register thosemovements, as noted above, and thought (at least earlier on) that compliance wouldbe achieved when the meat works did so. Mr McConnell says further that he sends atruck to the meat works containing his cattle only, so they do not come into contactwith other cattle en route.[34] Mr McConnell expressed some frustration with the Ministry and the NAITsystem. He says that the Ministry failed to act quickly during the mycoplasma bovisoutbreak of 2017, which resulted in widespread loss for farmers. He does not seem tobe alone in expressing dissatisfaction with the Ministry and the NAIT system.[35] In response to questioning, Mr McConnell addressed various personalcircumstances which I address below.AnalysisStarting point[36] The charges are brought under sch 2 cl 15 of the NAIT Act, which is a strictliability offence. For the reasons stated earlier, enforcement of the NAIT Act isimportant.[37] Having reviewed the cases and the legislation, I agree with the Crown that thestarting point for sentencing in NAIT cases should be fixed on a global basis withparticular reference to:(a) the number of unregistered animals;(b) the number of movements;(c) the places and number of locations to which the animals were moved;(d) the overall extent of the PICA's failure to engage in the NAIT scheme;(e) the biosecurity risk involved; and(f) efforts to cooperate and comply with NAIT.[38] In MPI v Richmond,12 Judge Krebs listed a number of other factors that heconsidered could be helpful in determining culpability but these related more to thesecond stage of sentencing, for example, whether any remorse had been demonstratedby the PICA.[39] Judge Krebs also said it was relevant to culpability whether the PICA was onnotice of registration obligations, but the regime has now been in effect for some11 years, and it has been rigorously applied and advertised for over three years. Noticeof registration and other obligations under the NAIT Act must be taken as a given. Itwould be a rare case where that is not so. Similarly, generic complaints about theMinistry and/or the NAIT system will seldom be relevant at this stage.[40] The following list, largely provided by the Crown, sets out a range of post-2019 District Court cases that reflect the "new" maximum penalty under the regime.The Crown's list referred only to the starting point, number of charges and number ofanimals. I have added the number and type of movements, which I consider, and theCrown accepts, is material:12 MPI v Richmond [2022] NZDC 7697.(a) MPI v Donaldson - $35,000 starting point for three charges involving atotal of 352 animals and three movements (farm to sale yard);(b) MPI v Bell - $35,000 starting point for two charges involving a total of362 cattle and 12 movements (farm to works in two locations);(c) MPI v O'Leary - $52,000 starting point for 13 charges involving a totalof 476 cattle and 13 movements (farm to works on eight occasions,others not specified);(d) MPI v Banicevich - $40,000 starting point for one charge involving nofewer than 500 cattle (several movements captured by a representativecharge, where all were farm to works). However, the starting point wasreduced to $20,000 for NAIT administration issues; and(e) MPI v Richmond - $20,000 starting point for one representative chargeinvolving 524 deer (seven movements all farm to works).[41] In assessing liability under sch 2 cl 15, the Judges have placed emphasis ondifferent factors.[42] In MPI v Banicevich,13 Judge Tomlinson emphasised the total number ofunregistered animals as being important to the functioning of the NAIT regime, butacknowledged that where large groups of animals are involved a global approach tosentencing would be more apt. The defendant in Banicevich had failed to registersomething over 500 animals which was the subject of one representative charge and astarting point of $40,000 was adopted to reflect the risk posed by this large population,but as noted the starting point was reduced in that case. The judgment does not referto the number of movements involved but it is clear that all movements were just tothe meat works.13 MPI v Banicevich [2021] NZDC 20753.[43] In MPI v O'Leary,14 Judge Matheson focused on the total number ofmovements rather than the number of unregistered animals in determining the severityof offending. In that case, a global starting point of $52,000 was adopted in respect of13 separate movements by around 476 cattle over a nine-month period. The Judgeconsidered that the number of infringements – for which the defendant was on notice,having received warnings from the Ministry – showed a pattern of non-compliance.In addition, the discrete movements by unregistered animals were consideredparticularly dangerous in terms of biosecurity, and contrary to the purposes of theNAIT Act.[44] In MPI v Richmond,15 Judge Krebs adopted a starting point of $20,000. Henoted that Mr Richmond had experienced administration issues with NAIT as hadMr Banicevich. The defendant in that case had failed to register around 524 deer.Seven movements were recorded over a one-month period. While the number ofunregistered animals and movements was relatively high, Judge Krebs considered itrelevant that those movements were all to one location and that the defendant hadaccompanied the animals during transit. This, in his estimation, diminished thebiosecurity risk posed by the unregistered animals and justified a lower starting point.[45] Turning to the present case, on the second charge, while 400 animals areinvolved, they are all animals that had never moved anywhere. They had been born,tagged and remained on Mr McConnell's farm. There is nonetheless, quite apart froma clear obligation to register, a risk of animals being up against fences of neighbouringfarms or bulls coming onto Mr McConnell's farm. However, the Ministry acceptedthat the biosecurity risk would be minimal.[46] In terms of the much smaller number of cattle relating to the first charge, thoseeight movements were all movements solely to the meat works. Mr McConnell wasunder no obligation to register the movement as that was for the meat works to do. Ineach case the meat works picked up on non-registration of the cattle when they wentto register the movement. As far as is known, in each instance the cattle were notmixed with other animals. There is still a risk in those cases because disease can be14 MPI v O'Leary [2022] NZDC 3868.15 MPI v Richmond [2022] NZDC 7697.spread where the same truck is subsequently used by other farmers to transport theiranimals, but again the risk is low.[47] The key factors here are therefore:(a) Mr McConnell's wholesale non-compliance with the registration of hiscattle, albeit that he had tagged them all and otherwise met therequirements of the NAIT Act.(b) The total number of cattle involved, which is in the top bracket of thecases noted above.(c) The movements being one-legged only.(d) A relatively low biosecurity risk.[48] I note further that Mr McConnell was on notice of his offending, havingreceived a warning letter and six infringement fines prior to being charged. It isreasonable to expect that he should have taken steps to complete registration or reachout to NAIT for further information on how to fulfil his obligations if he was unsure.[49] I assess Mr McConnell's level of culpability as moderate, particularly becauseof the relatively low risk to biosecurity.[50] In my view, the offending here is somewhat akin to that in MPI v Richmond.There is a similar number of animals and movements, and low biosecurity risk. InRichmond there was no charge laid for non-registration of deer remaining on the farmbut it seems highly likely those deer were also not registered. Materially, there was alevel of cooperation on the part of Mr Richmond which has not applied here and JudgeKrebs considered there had been failures on the part of NAIT, which is not the casehere.[51] Having regard to all the above, I would set the starting point forMr McConnell's sentence for the two charges at $30,000. I consider that to be broadlyin line with the previous District Court cases. If the movements had been morecomplex and the risk higher, I would agree with the Ministry that, given the numberof animals involved and the level of non-compliance, a starting point of $40,000 wouldhave been more appropriate.Personal circumstances[52] There are no personal aggravating factors. I have taken the level of prior noticeand infringements into account in setting the starting point.[53] In terms of mitigating factors, Mr McConnell is entitled to a 25 per centdiscount for his guilty pleas. It should be noted, as Judge Davis did in his initialsentencing, that Mr McConnell acted quickly in responding to the charges. Also, it isthrough no fault of his that the matter had to be taken on appeal. Arguably, given thenature of the charges under the NAIT Act, counsel for the Ministry should be ready toproceed at the first call. In this case they were relying on Crown Law – that shouldnot be necessary now.[54] The Ministry accepts that Mr McConnell can receive a discrete further discountof 5 to 10 per cent for the steps taken by him to attend Court and have the firstappearance date brought forward for the entry of plea. I allow a discount of 5 per centin this regard.[55] There is no question as to Mr McConnell's general good character. He has noprevious convictions and his only issue is with regard to the NAIT breaches. However,I cannot allow for a discount given the number of warnings and notices Mr McConnellreceived in relation to the regime. I agree with Judge Krebs in Richmond that,unfortunately, a discount is not available in these circumstances.[56] Mr McConnell is 73 years old and manages the farm on his own. For the lastthree years he has also been a full-time carer for his partner who had a stroke andcannot talk. He is working day and night. He has no children or staff to support him.He is completely unfamiliar with computer systems and does not have a mobile phone,let alone a computer. He relies on a relative who lives nearby when he needs to accessthe internet. He was for some time, as it seems other farmers facing NAIT chargeshave been, uncertain about the functioning of the NAIT system, in particular in termsof how and when registration takes place. It is understandable for an older person inMr McConnell's situation that he would have been confused and perhaps a bitoverwhelmed by the system. I consider a discount of 20 per cent is applicable forMr McConnell's significant personal difficulties.[57] I also note that Mr McConnell says he is in a position to pay a fine but saysthat he is making virtually no profit out of farming now and he sees no future in it fora purchaser. I take it therefore that any fine would have to come out of capital.[58] These discounts amount to a 50 per cent reduction on the starting point of$30,000, leaving a consequential fine of $15,000.Result[59] There is no question but that the sentences imposed were manifestlyinadequate.[60] The fine and the discharge are both set aside. Mr McConnell is ordered to paya total fine of $15,000 in respect of the two charges.Postscript[61] Farmers in Mr McConnell's position must avail themselves of the Ministry'sNAIT helpline and if they have difficulty in doing so, record their attempts. Awarranted NAIT officer, Mr Solomon, attended the hearing before me and was helpfuland constructive, as were counsel. Mr Solomon was to remain in liaison withMr McConnell._______________________Hinton J