ERICKSON v MINISTRY FOR PRIMARY INDUSTRIES [2017] NZCA 271

ERICKSON v MINISTRY FOR PRIMARY INDUSTRIES [2017] NZCA 271 [29 June 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA584/2016[2017] NZCA 271BETWEEN NOEL PIRIKA ERICKSONAppellantAND MINISTRY FOR PRIMARYINDUSTRIESRespondentHearing: 23 March 2017Court: Kós P, Miller and Brown JJCounsel: T Sutcliffe for AppellantJ E L Carruthers and K A Courteney for RespondentJudgment: 29 June 2017 at 12 noonReissued: 20 July 2017 — see recall judgment of 20 July 2017Effective dateof Judgment: 29 June 2017JUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal against sentence is allowed.C The finite sentence of two years and six months' imprisonment isquashed.D A sentence of eighteen months' imprisonment on the s 28 charges issubstituted, having regard to the home detention additionally served.E Sentences on the other individual charges are as stated at [63] (all sentences to be served concurrently).F An order is made under s 80I(2) of the Sentencing Act 2002 granting the appellant leave to apply to the District Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] What considerations determine gravity of offending in cases of wilful and reckless ill-treatment of animals — and thereby define sentencing starting points —under ss 28 and 28A of the Animal Welfare Act 1999 (the Act)?[2] Mr Erickson, a casually employed slaughterman, was imprisoned for two and a half years for wilful ill-treatment of 115 bobby calves before slaughter. He seeks leave to appeal that sentence. Leave to appeal is not opposed for two reasons. First, because it is accepted the High Court Judge erred in taking a global sentencing approach to a diverse array of charges. The consequence was that she imposed some sentences in excess of the statutory maximum. To that extent it is inevitable that the appeal must be allowed in part. Secondly, because this case is seen as providing an opportunity to give sentencing Courts guidance on the question stated above.Background[3] For three months Mr Erickson was employed as a casual slaughterman at Down Cow Ltd near Te Kauwhata in the Waikato. The business of that company is the slaughter of farm animals for pet food. Mr Erickson's role was to assist in theprocessing of bobby calves for slaughter. Bobby calves are male calves surplus to the needs of the dairy industry. They are often less than seven days old at slaughter.[4] In August 2015 an animal rights group called Farmwatch installed two hiddencameras in Down Cow's yards. What they captured on film resulted in the10 charges Mr Erickson pleaded guilty to:(a) two charges under s 28(1)(d) of the Act of wilfully treating a calf with the result that it is seriously injured or impaired (these being the most serious of the offences);(b) one charge under s 12(c) of the Act of killing a calf in such a manner that it suffers unreasonable or unnecessary pain or distress;(c) two representative charges under s 28A(1)(d) of the Act of recklessly ill-treating calves with the result they are seriously injured or impaired;(d) four representative charges under s 29(a) of the Act of ill-treating calves; and(e) one representative charge under s 12(a) of the Act of failure to comply with s 10 of the Act by failing to meet the calves' physical, health andbehavioural needs in accordance with good practice and scientific knowledge by using blunt force trauma on the calves.Lead charges: wilful ill-treatment of a calf x 2 (s 28(1)(d): maximum penalty five years' imprisonment)[5] The first of the two charges under s 28(1)(d) concerns Calf 15. Offences against s 28(1)(d) carry a maximum penalty of five years' imprisonment. When Calf15 moved away from the slaughter area, Mr Erickson was seen to pick it up, lift it to his shoulder and forcefully and deliberately drive it, head first, down towards the concrete floor. He watched the animal land, turned his back and moved to another animal. It was accepted this action would have caused significant and prolonged pain and suffering to Calf 15. Painful head trauma would have occurred, and a broken skull, broken jaw and teeth are possibilities. Had it not been slaughtered, the calf would have needed to be euthanised.[6] The second charge concerns Calf 91. Mr Erickson push-kicked the calf causing it to fall on its front limbs. He then kicked it forcefully in the side of the head causing it to fall to the ground, kicked it hard in the abdomen area and used agate to drag it across a concrete floor. The calf, which had not moved, was then given a further two hard kicks to the stomach.1 It was accepted that significant painand bruising to Calf 91's head would have been caused, and forceful kicks to the softabdomen area would have caused more severe internal injuries to the liver, gut and spleen. Euthanasia would have been a likely response had Calf 91 not been slaughtered.Secondary charges: reckless ill-treatment of calves x 2 (s 28A(1)(d): maximumpenalty three years' imprisonment)[7] The two secondary charges of recklessly ill-treating calves were brought under s 28A(1)(d) on a representative basis, and have a maximum penalty of threeyears' imprisonment. The first of these charges relates to five calves. Calf 30 wasswung using two limbs over a gate landing from a height of about two metres on heavy concrete. The calf was stunned and may have suffered significant injury —fractures and other internal injuries. It was accepted that shock, trauma, pain and suffering would have been severe. Calves 34, 35 and 36 were also thrown over a gate, by a single limb, into a collecting area. Calf 36A was lifted to head height and forcefully dumped over the gate. Mild to severe musculoskeletal injuries and concussion were likely in these cases. It was accepted the calves would have suffered extreme distress and prolonged pain as a result.[8] The second charge concerns Calves 78 and 79. The former was dragged under a gate and then kicked in its sensitive abdomen area twice while lying on its side. Calf 78 may have incurred damage to its liver, gut and spleen. Similar treatment was meted out to Calf 79. Significant and prolonged pain and suffering to both was accepted.Tertiary charges (ss 12(a) and (c) and 29(a): maximum penalty 12 months'imprisonment)[9] Four representative charges of ill-treating calves were brought under s 29(a).These offences carry a maximum penalty of 12 months' imprisonment. They concern a total of 95 calves, and involved hitting the calves' heads with an object (in1 It is an admitted fact that bobby calves, given their age, respond to pain by trying to be quiet and, where unable to get away, by lying still and not moving.one case hard enough to cause it to fall over), throwing calves over a gate, by hitting the head, dragging, throwing, dropping or kicking, dragging calves (including by their tail) and kicking fourteen calves in the head or abdomen.[10] There is a further non-representative charge under s 12(c) concerning killing a calf in such a manner that it suffered unreasonable or unnecessary pain or distress.Mr Erickson was hanging dead calves on hooks by piercing the animals' shins. Calf119, already hanging, was not dead. It could be heard to bellow loudly. Mr Erickson ignored it and continued to hang three dead animals. Another worker dispatched Calf 119 using the blunt end of an axe.[11] Finally there is a single representative charge of failing to ensure the physical health and behavioural needs of calves by the use of blunt force trauma on eight calves. This concerns the method of slaughtering the calves. The Commercial Slaughter Code, Minimum Standard 6, Stunning of Large Mammals,2 requires animals to be stunned prior to slaughter so they are rendered insensible and maintained in that state until death supervenes. Stunning is required to be used by captive bolt firearm, electrical stunner or suitable firearm. In this case the firearm method was used (and a thoracic stick then used to bleed the calves until their eventual death). Both measures are permissible. But insufficient ammunition had been supplied to Mr Erickson for this purpose. Once Mr Erickson ran out ofammunition, he instead applied a metal bar to the animals' heads to stun them. It was accepted he did not ensure the stunning had been fully effective before the thoracic stick was used. It was admitted also that blunt force trauma should only have been used in absolute emergencies where no other reasonably practicable alternative was available.3 Where ineffective it can cause significant pain and stress. If full unconsciousness is not immediately produced, the pain of the blow can be felt fully.2 Commercial Slaughter: Code of Welfare (Ministry for Primary Industries, 15 December 2016).3 Animal Welfare (Calves) Regulations 2016, reg 5(1)(b).Sentencing in the courts below[12] In the District Court Judge Burnett treated the ill-treatment charges as most serious.4 But for reasons not explained the Judge then took a global starting point(for all charges) of three years' imprisonment. She then reduced the sentence by "six to eight months" for the inadequacy of Mr Erickson's training and lack of oversightby his employer. She noted Mr Erickson's "significant remorse" but did not actuallygive any discount for it.5 It is unclear whether that was deliberate or an omission. We emphasise the need for precision in sentencing discounts. The Judge thenapplied a full 25 per cent discount for Mr Erickson's early guilty plea. The end sentence, calculated by Judge Burnett, was "approximately 22 months".6 This sheconverted to 10 months' home detention and 200 hours of community work.First appeal[13] The Ministry for Primary Industries appealed the sentence to the High Court on the ground that it was manifestly inadequate. It contended the Judge had taken too low a starting point and allowed an excessive discount for inadequate training and supervision. It sought a sentence of imprisonment.[14] Courtney J considered the Judge had erred in treating lack of supervision as a personal mitigating consideration.7 Rather it was relevant to the gravity of the offending — but then only to the tertiary charges of using blunt force trauma contrary to s 12(a).[15] Courtney J then took a global approach by fixing a starting point for thewhole offending of three years and nine months' imprisonment. She then discountedthat by three months for the inadequate training and supervision. Three years sixmonths' imprisonment.8 She noted Judge Burnett's omission to give credit for theremorse displayed by Mr Erickson, and considered that should receive a discrete five per cent credit, along with 25 per cent for the early guilty plea.9 That produced a4 Ministry for Primary Industries v Erickson [2016] NZDC 15760 at [15].5 At [19].6 At [20].7 Ministry for Primary Industries v Erickson [2016] NZHC 2635 at [20].8 At [28].9 At [29].sentence of two years and six months' imprisonment.10 Home detention was out of the question with a sentence of that duration. Because Mr Erickson had completed three months of the home detention sentence imposed in the District Court, Courtney J substituted a sentence of two years' imprisonment in total.Leave to appeal[16] Mr Erickson seeks leave to bring a second appeal against sentence on the basis it was manifestly excessive, because the Judge took too high a starting point and failed to consider home detention.[17] Section 223 of the Criminal Procedure Act 2011 provides that a second appeal is by leave only and that leave must not be granted unless the appeal involves a matter of general or public importance or a miscarriage of justice may occur unless the appeal is heard. For the reasons noted at [2] both limbs are engaged on this appeal and leave is not opposed by the respondent.[18] The application for leave to appeal is granted.Submissions[19] For Mr Erickson, Mr Sutcliffe submitted that in contrast to prior sentencing decisions such as Godsiff v R, Ministry for Primary Industries v Erasmus andMinistry for Primary Industries v Whitelock, the offending here did not involve wanton slaughter (unlike Godsiff) or protracted cruelty by someone in a position of trust or control over stock (the defendant in Erasmus was the owner, and inWhitelock the manager).11 This was an untrained slaughterman, unsupervised and under-equipped, seriously mishandling stock in the process of slaughter. A startingpoint at the lower end of and below those cases (three years' to four years, six months' imprisonment) was appropriate. The starting point adopted by Courtney J of10 The judgment at [30] achieves that by discounting from a three years nine months starting point, but it is common ground that: (1) the actual starting point she used was the three years six months noted at [30] herein; and (2) that the discounted product, two years six months, is near enough correct mathematically.11 Godsiff v R HC Blenheim CRI 2011-406-18, 22 November 2011; Ministry for Primary Industries v Erasmus [2013] NZHC 281, [2013] NZAR 311; and Ministry for Primary Industries v Whitelock [2015] NZDC 20263.three years nine months imprisonment was too high. A starting point closer to threeyears' imprisonment would have been appropriate.[20] Discounts for early guilty plea (25 per cent) and remorse (five per cent) were accepted in the High Court sentencing.12 Mr Erickson was depressive and an insomniac. Mr Sutcliffe did not contend for greater credit. But he did submit thatwith an end sentence of two years' imprisonment, consideration needed to have beengiven to home detention coupled with community work as the least restrictive available outcome.[21] For the Ministry, Mr Carruthers submitted that this was serious violent offending against a large number of animals. The starting point was in line withGodsiff, Erasmus and Whitelock. While not as sadistic or immediately extreme asWhitelock and Godsiff it was violent nonetheless and involved more animals. The offending was comparable to that in Erasmus, although this case involved stock inherently more vulnerable (bobby calves rather than cows). Home detention wasout of the question because the sentence was not two years' but two years, sixmonths' imprisonment. It was adjusted to two years only to take into account thetime Mr Erickson had already served on home detention.Statutory framework[22] Sections 28 and 28A provide:28 Wilful ill-treatment of animals(1) A person commits an offence if that person wilfully ill-treats an animal with the result that—(a) the animal is permanently disabled; or(b) the animal dies; or(c) the pain or distress caused to the animal is so great that it is necessary to destroy the animal in order to end its suffering; or(d) the animal is seriously injured or impaired.12 Ministry for Primary Industries v Erickson, above n 7, at [29].(2) For the purposes of subsection (1)(d), an animal is seriously injured or impaired if the injury or impairment—(a) involves—(i) prolonged pain and suffering; or(ii) a substantial risk of death; or(iii) loss of a body part; or(iv) permanent or prolonged loss of a bodily function; and(b) requires treatment by or under the supervision of a veterinarian.(3) A person who commits an offence against this section is liable on conviction,—(a) in the case of an individual, to imprisonment for a term not exceeding 5 years or to a fine not exceeding $100,000 or to both:(b) in the case of a body corporate, to a fine not exceeding $500,000.28A Reckless ill-treatment of animals(1) A person commits an offence if that person recklessly ill-treats an animal with the result that—(a) the animal is permanently disabled; or(b) the animal dies; or(c) the pain or distress caused to the animal is so great that it is necessary to destroy the animal in order to end its suffering; or(d) the animal is seriously injured or impaired.(2) For the purposes of subsection (1)(d), an animal is seriously injured or impaired if the injury or impairment—(a) involves—(i) prolonged pain and suffering; or(ii) a substantial risk of death; or(iii) loss of a body part; or(iv) permanent or prolonged loss of a bodily function; and(b) requires treatment by or under the supervision of a veterinarian.(3) A person who commits an offence against this section is liable on conviction,—(a) in the case of an individual, to imprisonment for a term not exceeding 3 years or to a fine not exceeding $75,000 or to both:(b) in the case of a body corporate, to a fine not exceeding $350,000.[23] We note that "ill-treat" is specifically defined in s 2(1). It means:causing the animal to suffer, by any act or omission, pain or distress that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary[24] Before analysing those provisions, we set them in their historical context.Historical context[25] Animal cruelty legislation has existed in sporadic form since the seventeenth century.13 The first comprehensive legislation however was Martin's Act, enacted inthe United Kingdom in 1822. Imprisonment and fines became available sentences for acts of cruelty against cattle, horses and sheep. The Royal Society for the Prevention of Cruelty to Animals was formed in the wake of Martin's Act. Itsfounders included Richard Martin MP and the eminent slavery abolitionist William Wilberforce MP. Its early focus lay in inspecting markets and slaughterhouses. As it happens, exactly the context we are dealing with in this appeal.[26] New Zealand has long legislated the relationship between human and animal. By the English Laws Act 1858 New Zealand inherited the Protection of Animals Act 1835 (UK). In 1878 the Cruelty to Animals Act was then enacted. That Act made it an offence in the case of any person "cruelly beating, ill-treating, over-riding, abusing or torturing any animal or causing or procuring any animal to be cruelly13 Deborah Cao Animal Law in Australia (2nd ed, Lawbook Co, Sydney, 2015) at 58. See alsoAnnabel Markham "Animal Cruelty Sentencing in Australia and New Zealand" in Peter Sankoffand others (eds) Animal Law in Australasia (2nd ed, Federation Press, Annandale, 2013) 208 at 209–212.beaten, ill-treated, over-driven, over-ridden, abused, or tortured".14 Just two years later, the Act was repealed with the Cruelty to Animals Act 1880, simplifying the wording of the offence:15 "Any person ill-treating any animal or causing or procuring any animal to be ill-treated shall be guilty of an offence."[27] That Act was then repealed by the Police Offences Act 1884, which reverted to a cruelty offence worded similarly to the 1878 Act. The 1884 Act also added anoffence of omission to supply any animal with "proper and sufficient food, water and shelter".16 Other than the appointment of inspectors of the Society for the Prevention of Cruelty to Animals with powers of inspection, the taking of animals, and arrest of offenders, and a significant expansion in 1919 to the definition of"cruelty", the law then remained largely unchanged for many years.[28] The Animals Protection Act 1960 (which had its origins in a Member's Bill in1957) retained many of the earlier offences in relation to animal fighting and baiting, and added a number of other offences in relation to the transportation, branding and slaughter of animals. That Act was amended in 1993 increasing fines by a factor of five: fines for offences of cruelty increased from $1,000 to $5,000, and for aggravated cruelty from $2,000 to $10,000.[29] The origins of the present Act are these. In the early 1990s, the Hon Jim Sutton MP, Minister of Agriculture began work on revising the by the outdated 1960 Act. However, there was delay. In 1997 the Hon Pete Hodgson MP sought to progress with a new Bill, the Animal Welfare Bill, in his own name, essentially putting into statutory form decisions made by Cabinet in 1992.17 About 10 months later the Government introduced its own legislation, the Animal Welfare Bill (No 2).It had wider scope than Mr Hodgson's Bill:18particularly in the areas of laboratory experimentation and of ensuring that animal welfare matters in respect of those issues would be properly handled in legislation, not by a series of codes.14 Cruelty to Animals Act 1878, s 4. The Act passed through both the House of Representatives and the Legislative Council with no debate.15 Cruelty to Animals Act 1880, s 3.16 Police Offences Act 1884, s 3.17 (16 June 1999) 578 NZPD 17432.18 (16 June 1999) 578 NZPD 17433.[30] Its goal was to move from a punitive regime to one that endorsed a preventative approach setting obligations that owners and those in charge of animals have in respect of the care of those animals.19 This Government Bill overtook theneed for Mr Hodgson's Bill and eventually progressed into law in order to revise andrecalibrate the law relating to animal welfare law in New Zealand.The present Act[31] The Act has been described by this Court as the single most important piece of legislation in New Zealand relating to the protection of all kinds of animals under human control.20 The legislation has greater breadth than merely preventing cruelty.Its provisions draw on international principle and the "five freedoms of animal welfare": those freedoms are: (1) from thirst; (2) from discomfort; (3) from pain,injury and disease; (4) to express normal behaviour; and (5) from fear and distress.21[32] The primary purpose of the Act is stated in its title, parts of which read:to reform the law relating to the welfare of animals and the prevention of their ill-treatment; and, in particular,—(i) to recognise that animals are sentient:(ia) to require owners of animals, and persons in charge of animals, to attend properly to the welfare of those animals:(ii) to specify conduct that is or is not permissible in relation to any animal or class of animals:(v) to provide for the development and issue of codes of welfare and the approval of codes of ethical conduct.[33] Section 28, set out at [22] above, deals with wilful ill-treatment of animals."Wilful" speaks for itself. "Ill-treat", as we noted above at [23], is specificallydefined in s 2(1), focusing on suffering pain or distress that in form and context is19 (16 June 1999) 578 NZPD 17434.20 Balfour v R [2013] NZCA 429 at [12].21 Kevin J Stafford Animal Welfare in New Zealand (New Zealand Society of Animal Production, Cambridge, New Zealand, 2013) at 6."unreasonable or unnecessary". The thresholds for offending under s 28 arethreefold: that the conduct amounts to ill-treatment, that it is wilful, and that it causes one of four proscribed results. The latter are set out in a somewhat curious order in s 28(1): permanent disability, death, pain or distress so great that euthanising is necessary, or serious injury or impairment. The latter is separately defined in s 28(2). It is admitted the conduct in the lead and secondary charges resulted in serious injury or impairment to the nine calves concerned.[34] In applying s 28 we consider context is important. Since amendments made in 2015, pt 2 of the Act does draw a distinction between wild and domesticated animals. That distinction is not material to this appeal. Amongst domesticated animals it does not distinguish between farm herd, working or companion animals. But it is inevitable by context alone that conduct appropriate to farm herd animals, for instance, will differ from that appropriate to a single urban companion animal. Their circumstances are quite different. The objects they are kept for are different. So too will be what is reasonable or unreasonable in conduct towards them. Thedefinition of "ill-treat" reflects the need for such contextual consideration.22 Realism is necessary and rational differences must be acknowledged. But while context is important, the high order of consequence criminalised in ss 28 and 28A may diminish legally consequential differences between animal type.[35] In the case of an individual defendant the maximum penalty for an offenceagainst s 28 is five years' imprisonment, a fine of up to $100,000 or both.23 An amendment in 2010 increased the maximum penalty for wilful ill-treatment fromthree years' imprisonment or a fine up to $50,000 or both. The explanatory note to that Bill stated the increase was to deter offenders and "send a strong signal to the judiciary that the Government and general public wish to see heavier penalties forthis type of offending." 24[36] The secondary charges in this appeal concern reckless ill-treatment under s 28A. That provision was introduced in the 2010 amendment. This new offence was intended to sit between the existing wilful ill-treatment offence and the lesser ill-22 See [23] above.23 A body corporate may be fined up to $500,000: s 28(1)(b).24 Animal Welfare Amendment Bill 2010 (118-1) explanatory note at 3.treatment offence in terms of seriousness.25 It was noted the former was proving difficult to establish because of its intent element. But the latter did not properly reflect the seriousness of all other offending.26 The same considerations noted above at [34] apply also to s 28A reckless ill-treatment, with the obvious difference in the mental intent element.[37] The Act also provides for codes of welfare. Section 68 of the Act stipulates that codes of welfare — as distinct from codes of ethics under ss 87 to 97 — have the purpose of establishing minimum standards of practice and recommendations on best practice. Commercial slaughter and the care of bobby calves both are subject to such codes.27 For several offences under the Act, proof that a code of welfare existed at the time of alleged offending and that minimum standards were not complied with constitutes rebuttable evidence the person contravened a particular section. This is available for s 29(a), but not ss 28 or 28A.[38] Under the Commercial Slaughter Code, the proper procedure for killing large mammals, which includes calves, is that they must be stunned using either a captivebolt firearm, an electric stunner, or a "suitable" firearm rendering the animal insensible. Blunt force trauma is not a permissible method of stunning. The animal must then be bled out. Minimum Standard 10 states an animal must not be bled or manipulated ready for bleeding out unless it has been effectively stunned. To bleed out a stunned animal, the slaughterperson must either use a thoracic stick to severe the major arterial and venous blood vessels of the anterior thorax or apply a transverse incision in the neck that severs both carotid arteries.[39] The Ministry also has the ability to regulate various areas of animal welfare. The Animal Welfare (Calves) Regulations 2016 for example create an offence ofkilling a calf by using blunt force to the head unless the calf requires "immediate humane destruction" and there is no reasonably practicable alterative.28 An individual who contravenes the regulation is liable to a fine of up to $3,000.25 (18 February 2010) 660 NZPD 9073.26 (18 February 2010) 660 NZPD 9073. As to the application of s 28A see for example Power v Auckland Society for the Prevention of Cruelty to Animals [2015] NZHC 2159.27 Commercial Slaughter: Code of Welfare, above n 2, and Sheep and Beef Cattle: Code of Welfare(Ministry for Primary Industries, 15 December 2016).28 Animal Welfare (Calves) Regulations, reg 5.[40] We turn now to consider relevant prior sentencing decisions under ss 28 and 28A.Sentencing principles for wilful and reckless ill-treatment of animals[41] Decisions concerning ss 28 and 28A have not yet attempted to set out a series of organising principles for sentencing. This decision will make a start by identifying the considerations relevant to gravity of the offending, and thus the sentencing starting point, for these offences. But we do not intend to go beyond that to propose sentencing bands, such as in R v Taueki.29 That is a matter, perhaps, for a future decision where broader submissions focused on such a task can be considered.Prior sentencing decisions under the Act[42] In Taueki this Court clarified the sentencing process under the Sentencing Act 2002. First, a starting point is ascertained reflecting the gravity of the offending, taking account of aggravating and mitigating futures of the offending itself, but including the degree of culpability of the offender.30 This is the sentence"considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial".31 Secondly, and usually separately,mitigating and aggravating factors relating to the offender's personal circumstancesare considered. Finally, an overall discount is then applied for a guilty plea where one has been entered.32[43] We address now the first of those steps, by reference to previous sentencing decisions under s 28, particularly those since the 2010 amendments to sentence levels. We focus on cases involving large-scale (rather than one-off) wilful ill- treatment of animals. There are no relevant decisions under s 28A.[44] Ministry for Primary Industries v Erasmus is the decision most relevant to this appeal.33 That case involved three representative charges under s 28. The respondent owned a dairy herd of some 135 cows. Of that herd, 115 had suffered29 R v Taueki [2005] 3 NZLR 372 (CA).30 Sentencing Act 2002, s 8(a); and Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [45].31 R v Mako [2000] 2 NZLR 170 (CA) at [34].32 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.33 Ministry for Primary Industries v Erasmus, above n 11.broken tails and many suffered from having been hit forcefully using a heavy steel bar by the respondent while they were confined in the stalls of a milking shed: 27 animals had to be put down when an inspection revealed the injuries. Priestley J took a starting point of four years' imprisonment. Factors relevant to the startingpoint identified by the Judge were the number of animals harmed, the fact that the offending stretched over a number of weeks (rather than being a one-off event) and that the suffering inflicted on the animals was severe.34[45] Godsiff v R is the other relevant High Court decision.35 The animals there were wild, rather than domesticated farm herd animals. The appellant had killed 23 seals, eight of which were pups, at the Ohau Point colony near Kaikoura. Althoughthe District Court sentence of two years' imprisonment for wilful ill-treatment wasquashed and replaced with a sentence of eight months' home detention, Mallon Jagreed with the District Court Judge that a starting point of three years'imprisonment was correct.36 Aggravating features of the offending included the scale of the offending, the fact the clubbing occurred when the female seals were nurturing infants, and the absence of any element of provocation or disturbance by the animals.37 This decision was borne in mind by Priestley J in setting a higher starting point in Erasmus.[46] Ministry for Primary Industries v Whitelock is a District Court decision.38 It involved 152 cows and 57 heifers with broken tails out of a total herd of 1100 or so. The defendant was the manager responsible for running the farm. It was not clear precisely how many of the broken tails he was responsible for; under his management other employees had done the same. It appears two of the injured cows had to be euthanised. In addition to the broken tails, he had also shot a cow that was due to be euthanised in the leg and encouraged another person to do the same. Astarting point of four and a half years' imprisonment was adopted. Aggravating34 At [26].35 Godsiff v R, above n 11.36 At [16].37 At [15].38 Ministry for Primary Industries v Whitelock, above n 11.features of the offending identified included that it was pre-meditated, involved use of a weapon, was of a significant scale, and involved breach of trust.39[47] Finally, we refer to Ministry for Primary Industries v Smith, another District Court decision involving tail-breaking of dairy cows.40 The defendant was a farm hand who pleaded guilty to wilfully ill-treating 154 dairy cows in that manner.A starting point of two and a half years' imprisonment was adopted. Aggravatingfactors identified were the deliberate cruelty inflicted and seriousness of the injuries(the equivalent of deliberately breaking a person's finger, though unlike in Erasmusit appeared none of the animals needed to be euthanised as a result).United Kingdom Sentencing Council guidelines[48] The primary provision in the United Kingdom animal welfare legislation is s 4 of the Animal Welfare Act 2006 (UK). It creates an offence if a person causes a protected animal unnecessary suffering where the person knew or ought reasonably to have known that his or her act or omission would have that effect or be likely tohave that effect. A "protected animal", essentially, is a domestic animal. Thepenalty imposable is a maximum term of imprisonment of 51 weeks or a fine not exceeding £20,000 or both.41[49] The United Kingdom Sentencing Council has issued guidelines for sentencing under s 4.42 Factors indicative of high culpability are a deliberate or gratuitous attempt to cause suffering, prolonged or deliberate ill-treatment or neglect, ill-treatment in a commercial context and taking a leading role in illegal activity. Factors indicative of greater harm are death or serious injury or harm to the animal, and a high level of suffering caused.39 At [18].40 Ministry for Primary Industries v Smith DC Ashburton CRI 2013-003-388, 14 October 2013.41 There is a Members' Bill presently before the House of Commons proposing a maximum penalty of five years' imprisonment — similar to New Zealand. It was due to receive its second reading in the House of Commons in May 2017, but the business of the House was interrupted by the United Kingdom general election.42 United Kingdom sentencing Council Animal Cruelty (Revised 2017) (effective from 24 April 2017).[50] Factors indicative of low culpability (on the other hand) are well intentioned but incompetent care and mental disorder or learning disability where linked to the commission of the offence.Taueki[51] Counsel were agreed that some guidance could be taken from the decision of this Court in R v Taueki.43 That case provides sentencing guidelines for crimes of serious violence. We acknowledge some limited guidance can be gained from that decision. But there are two fundamental points of distinction. First, s 28 offending involves not only acts of violence to animals but also (because of the definition of"ill-treat") omissions causing unnecessary or unreasonable pain or distress, with the proscribed consequences in s 28(1).44 Secondly, vulnerability of the victim (a consideration in Taueki that applies in particular to children or where a disparity in size or strength exists between an attacker and victim) is not a distinguishing consideration in ss 28 and 28A offending. That is because in almost every case, and certainly this one, the vulnerability of a victim animal may be taken as granted. It is a premise on which animal cruelty sentencing proceeds in any event.Our analysis[52] We divide the list of considerations relevant to gravity of the offending, and thus the sentencing starting point, for ss 28 and 28A offences into three parts:(a) primary aggravating considerations;(b) secondary aggravating considerations; and(c) mitigating considerations.In doing so we follow, to an extent, the approach taken in the United Kingdom.43 R v Taueki, above n 30.44 See [23] above.Primary aggravating considerations[53] We consider the following are primary aggravating considerations in ss 28 and 28A offending:(a) causing of significant pain or distress (assessed by how acute it is, how extensive it is, and how extended its duration is);45(b) using extreme violence (assessed by the nature of the actions taken, rather than their effect — which is the first consideration);(c) premeditation and planning to cause significant pain or distress, particularly of a sadistic nature (as opposed to impulsive or reactive behaviour);(d) repetitive offending (including the number of victim animals concerned, although we bear in mind that sentencing is not a matter of mathematics but is an evaluative exercise in which the totality of the offending is considered together with the objective seriousness of theoffending and the offender's personal culpability); and(e) offender taking a leading role in the offending (as opposed to being a follower, or acting under direction). Secondary participation in offending may well diminish the personal culpability of the offender, and thereby the gravity of the offending for which he or she is being punished.46Secondary aggravating considerations[54] Secondary aggravating considerations in ss 28 and 28A offending include:4745 Recognising thresholds expressed in ss 28(1)–(2) and 28A(1)–(2).46 Sentencing Act 2002, s 8(a); Shailer v R, above n 30, at [46].47 This does not purport to be a complete list.(a) means of commission of the offending (such as use of weapons, attacking the head or multiple offenders) to the extent they enlarge the fear experienced by the victim animal;(b) abuse of a position of trust (such as a managerial responsibility); and(c) impact on third parties (such as on members of the public who witness the offending or its consequences).[55] We do not follow the United Kingdom Sentencing Guidelines in treating offending occurring in a commercial context as an aggravating factor in its own right. We are conscious that charging in such cases will primarily be against an individual. We do not think a commercial context necessarily points towards aggravation of individual offending. In a number of cases it may of course be probative of culpability, because defined standards are imposed in codes of welfare. But that is a different consideration from whether the commission of an animal cruelty offence in such a context is per se worse than one committed in a domestic context. We are not persuaded that it is. We would allow, however, as Mr Carruthers suggested, that a secondary aggravating consideration would be the offender profiting by adopting techniques amounting to ill-treatment. That would likely only occur in a commercial context. But the context itself is not aggravating.Mitigating considerations[56] Mitigation considerations tend to be the obverse of those aggravating, listed above. It is unnecessary to list them, as their content is obvious. We identify just two that call for further comment:(a) impulsive or reactive behaviour, not involving a sadistic intent but perhaps involving instead a degree of provocation or unthought response to an unexpected situation may mitigate the gravity of the offending; and(b) experience suggests that animal welfare offending frequently involves offenders suffering some degree of mental disturbance short of thedefence of insanity. While there is no defence of diminished responsibility in New Zealand, as this Court observed in Shailer v R,"the gravity of the offending is affected by the degree of culpability of the offender — and mental health is potentially relevant to that".48The United Kingdom Sentencing Guidelines recognise well- intentioned but incompetent care and mental disorder or learning disability linked to the commission of the offence as mitigating considerations. So too does this Court.[57] For completeness, we state that we do not regard the imminent fate of farm herd animals destined for slaughter in the ordinary course of events as a mitigating consideration, other than in terms of the actual extent of pain and distress suffered by the animal. Community expectations do not accord with a diminished expectation of humanity in the treatment of such animals.Application of sentencing principles in this appeal[58] Primary aggravating considerations present in this appeal were twofold:(a) The causing of significant pain and or distress. We have set the details out earlier in this judgment and need not repeat them here.Calves 15 and 91 were seriously injured by Mr Erickson's actions andwould have needed to be euthanised. Nine other calves suffered serious and prolonged shock, trauma, pain and suffering.(b) This is a case of repetitive offending. But in setting the sentence, initially, for the lead offending it must be kept in mind that two calves only were the subject of s 28 wilful ill-treatment attracting amaximum penalty of five years' imprisonment. The s 28A reckless ill-treatment charges concern seven other calves. Another 96 calves are the subject of the tertiary ill-treatment charges, but those attract amaximum sentence of 12 months' imprisonment. Neither the primary48 Shailer v R, above n 30, at [45].nor secondary offending were as extended and repetitive as that inErasmus, for instance.49[59] As to other potential primary aggravating considerations:(a) the violence used against the victim animals, while nasty and unquestionably criminal in nature, was not extreme;(b) the offending, while protracted over the course of two evenings, does not appear to have been motivated by premeditated, sadistic intention; and(c) to a significant degree Mr Erickson's offending was attributable to alack of direction and appropriate equipment. We do not consider the aggravating consideration in [54](e) above applicable here.[60] No secondary aggravating considerations were brought into play by the offending here.[61] We do not consider that there is material before the Court on which to infer any directly mitigating consideration diminishing the gravity of the offending itself. There is some suggestion in the probation report of Mr Erickson suffering depression during the course of his employment (and as a result of his loss of it). However, we consider the evidence of mental impairment too diffuse to be treated as mitigating the gravity of the offending. Similarly it is too diffuse to justify a discount as a mitigating consideration concerning the offender personally. But we do accept that the lack of direction and instruction, and the provision of inadequate equipment by his employer, is a mitigating factor in relation to Mr Erickson personally.[62] The maximum penalty for offending under s 28, the two lead offences, is fiveyears' imprisonment. Given the aggravating factors applicable here, we take theview that a starting point of no more than two years and six months' imprisonmenton each charge could be justified for each charge (to be served concurrently). We49 See [44] above.consider that sentence would maintain broad consistency with prior sentencing decisions. In particular the s 28 offending alone was significantly less extensive and serious than in Erasmus and Godsiff, which received starting points of four years andthree years respectively. So two years six months' imprisonment is the starting point we would adopt on the lead offences.[63] We consider sentences of eighteen months' imprisonment on each of the twos 28A charges would be appropriate (again to be served concurrently). The six charges under ss 12 and 29, concerning 96 calves, five of which are representativeand each of which attracts a maximum of twelve months' imprisonment, call for a sentence of eight months' imprisonment (again to be served concurrently).[64] The approach we have taken thus far is conventional. In doing so we depart from the global approach which commended itself to Courtney J, but resulted in some sentences beyond the statutory maxima. First, each charge must be the subject of a sentence not more than the statutory maxima. Secondly, the sentences, all arising from a single enterprise, should be served concurrently. But it is proper in this case that an uplift apply to the sentencing for the lead charges to reflect the totality of the offending. In our view a further nine months would be in order,producing a total starting point of three years and three months' imprisonment.Again we consider that in line with the result in Erasmus and Godsiff. This was materially less serious offending than in Erasmus in particular, quite properly attracting less serious charging by the prosecutor. The overall starting point must therefore be more lenient than in Erasmus.[65] Our starting point assessment is some six months less than the starting point adopted by Courtney J. We agree however with the discounts that she then applied.First, three months for Mr Erickson's inadequate training. While an offender musttake personal responsibility for offending of this kind, it is as evident to us as it was to the Judges before us that Mr Erickson was placed in a deeply invidious situation: inexperienced with livestock yet engaged as a slaughterman, badly trained, not inculcated in the relevant codes of welfare, given inadequate equipment and essentially left to his own devices without supervision or support. Responsibility for these matters, and for workplace culture generally, lies ultimately with an employer.We might have allowed a slightly greater discount than three months, but it is not manifestly inadequate. Secondly, a further three months discount for Mr Erickson'sdemonstrative remorse. A reduction then of six months.[66] To that product, two years nine months' imprisonment, a 25 per cent early guilty plea discount must be applied. Rounding down in Mr Erickson's favour, thatis a further discount of nine months.[67] Mr Erickson's finite sentence on the s 28 charges should therefore have beentwo years' imprisonment rather than two years and six months' imprisonment. Theappeal against sentence accordingly must be allowed.[68] Mr Erickson has now served a total of three months home detention plusseven months' imprisonment. Consistent with R v Fidow, the home detention component is equivalent to six months served.50 That period must be deducted from the final sentence. We point out, however, that the effective sentence for thisoffending remains two years' imprisonment.Result[69] The application for leave to appeal is granted.[70] The appeal against sentence is allowed.[71] The finite sentence of two years and six months' imprisonment is quashed.[72] A sentence of eighteen months' imprisonment on the s 28 charges issubstituted, having regard to the home detention additionally served.[73] Sentences on the other individual charges are as stated at [63] (all sentences to be served concurrently).50 R v Fidow [2013] NZCA 209 at [46].[74] An order is made under s 80I(2) of the Sentencing Act 2002 granting the appellant leave to apply to the District Court for cancellation of the sentence of imprisonment and substitution of a sentence of home detention.Solicitors:Crown Law Office, Wellington for Respondent