SANSON v MINISTRY FOR PRIMARY INDUSTRIES [2023] NZHC 947

SANSON v MINISTRY FOR PRIMARY INDUSTRIES [2023] NZHC 947 [27 April 2023]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2023-454-4[2023] NZHC 947IN THE MATTER Of an appeal against conviction and sentenceBETWEEN RICHARD JOHN SANSONAppellantAND MINISTRY FOR PRIMARY INDUSTRIESRespondentHearing: 26 April 2023Counsel: P J Drummond for AppellantA M Barham for RespondentJudgment: 27 April 2023JUDGMENT OF THOMAS JIntroduction[1] The appellant, Richard Sanson, together with his brother Geoffrey Sanson,pleaded guilty to animal welfare charges in respect of the reckless ill-treatment of alarge number of stock on the three blocks of farmland they jointly owned andmanaged. The Ministry for Primary Industries (MPI) had twice previously intervenedfollowing concerns about treatment of animals on the farms. Mr Sanson was alsofound guilty following a judge-alone trial of two charges of aggravated assault of theMPI official and veterinarian who inspected the animals. He was sentenced to a totalof two years and two months' imprisonment on all charges. He appeals his convictionand sentence on the aggravated assault charges.Background[2] Mr Sanson and his brother pleaded guilty to two charges of recklessill-treatment of animals,1 seven charges of failing to comply with s 10 of the AnimalWelfare Act 1999 (the Act),2 one charge of failing to comply with s 11 of the Act,3 andone charge of transporting an animal unfit for transport.4[3] In 2014 and again in 2016, MPI raised concerns with Mr Sanson and hisbrother about the treatment of animals on their farms, giving them the opportunity torectify the problems. After the 2014 inspection, the defendants were given an officialwarning with further monitoring put in place. After the 2016 inspection, an instructionwas issued under s 130(1)(b) of the Act requiring the defendants to engage a farmadvisor to provide a feed and management plan.5 After each inspection someimprovements were made but there were no substantive changes to farming practices,and conditions on the farms deteriorated again.[4] On 29 April 2020, an MPI animal welfare inspector and a vet visited the farmsto inspect the sheep and cattle. Pasture levels on all three blocks of land wereextremely low and a significant number of animals were in poor condition. Theinspection was cut short as a result of Mr Sanson's aggression towards the inspectorand the vet which resulted in the aggravated assault charges.[5] On 6 May 2020, an MPI team arrived to carry out a full assessment of alllivestock. The District Court Judge, in his sentencing decision, described theconditions on the blocks of farmland as follows:6The failings on the farm included massive overstocking and seriousunderfeeding. Poor infrastructure was found together with the lack ofstockproof fencing and insufficient reticulated stock water supply. Differingclasses of stock were being run together with no regard for their differing1 Animal Welfare Act 1999, ss 28A(1)(c) and (3)(a) – maximum penalty three years' imprisonmentand/or $75,000 fine.2 Sections 12(a) and 25(a) – maximum penalty 12 months' imprisonment and/or $50,000 fine.3 Sections 12(b) and 25(a) – maximum penalty 12 months' imprisonment and/or $50,000 fine.4 Sections 23(2)(c) and s 25(a) – maximum penalty 12 months' imprisonment and/or $50,00 fine.5 Under s 130, an inspector may issue a notice in writing requiring the owner of an animal to takeall such steps as the inspector considers necessary or desirable to prevent or mitigate the sufferingof an animal. Failure to comply with an inspector's instruction constitutes an offence under s130(2) of the Act.6 Ministry of Primary Industries v Sanson [2023] NZDC 3679 [sentencing decision] at [37].physical and health needs. Animals were chronically underfed, particularlyewes and lambs. There was ineffective parasite control and diseases andinjuries were not being treated. Sheep had not been culled for undershot jawsor for having low or no teeth. There was low or no fertiliser application. Therewas an absence of and unwillingness to have an effective means of euthanasiaon the farms. Pasture levels were far higher on neighbouring properties andthat was simply established by looking at those properties rather than anythingmore being required. Fencing, water reticulation and pasture damage reflecteda history of prolonged deterioration.[6] Of the 3,995 sheep farmed across the three blocks that were able to be assessed(of 4,251 in total), 1,965 were in unacceptable health and 460 of them were in suchpoor condition they had to be euthanised.7 Of the 126 cattle, 86 were in unacceptablehealth and four had to be euthanised.8 In total, 2,096 animals were in unacceptablecondition and 464 had to be euthanised.9[7] Prior to euthanasia, MPI gave the brothers the opportunity to seek a secondopinion. Instead, they removed five cattle in the middle of the night without MPI'sknowledge or permission. They were not considered fit to be transported. Mr Sansonfalsely informed the MPI inspector that the cattle had been shot. The five cattle wereeventually located and examined four days later. It was necessary to euthanise four ofthe five.[8] The brothers pleaded guilty to the animal welfare charges following a sentenceindication of two years and ten months' imprisonment prior to consideration ofdiscounts for personal factors.[9] Mr Sanson was found guilty following a judge-alone trial of aggravated assaultof the MPI inspector and vet. This arose from events on 29 April 2020 when theywere inspecting the animals. Mr Sanson drove a utility vehicle (ute) towing a trailerinto the paddock where they were working and accelerated while driving directly atthem, forcing them to take rapid evasive action by jumping behind the MPI vehiclefor protection. Mr Sanson stopped the ute about 20 metres from the victims, got outand began to feed a bag of grain to the sheep. He did not acknowledge the victims.7 Ministry for Primary Industries v Sanson [2022] NZDC 10876 [sentencing indication], at [13].8 Sentencing indication at [14].9 Sentencing indication at [15].The vet was extremely upset and concerned for their safety and requested they leave.As they did so, the MPI inspector asked Mr Sanson why he had tried to run them down.Mr Sanson replied, "That's who I am, and that's what I do".[10] As a result of Mr Sanson's behaviour, the further inspections were carried outpursuant to a search warrant with the police present.[11] Geoffrey Sanson was sentenced to one year and ten months' imprisonment.Home detention was refused. The refusal of home detention was successfullyappealed and replaced with a sentence of nine months' home detention, recognisingthat Geoffrey Sanson had served over one month of the term of imprisonment.10[12] Mr Sanson's sentence of two years and two months' imprisonment did notpermit consideration of home detention. The longer sentence was as a result of acumulative sentence of four months' imprisonment on the two charges of aggravatedassault.[13] The brothers were both disqualified from owning or being in charge of farmproduction animals indefinitely (the Disqualification).CONVICTION APPEALIntroduction[14] Mr Sanson contends he was wrongly convicted on the aggravated assaultcharges because it could not be established beyond reasonable doubt that Mr Sansonintended to assault the victims or that he intended to obstruct them in the execution oftheir duty.Approach to appeal[15] The Court must allow an appeal against a decision of a judge in a judge-alonetrial if satisfied the judge erred in the assessment of the evidence to such an extent thata miscarriage of justice has occurred or a miscarriage has occurred for any reason.1110 Sanson v Ministry of Primary Industries [2023] NZHC 780 (judgment of Grice J).11 Criminal Procedure Act 2011, s 232(2)(b)-(c).A miscarriage of justice is any error, irregularity or occurrence in or relating to the trialthat has created a real risk the outcome of the trial was affected or has resulted in anunfair trial or a trial that was a nullity.12[16] In considering a conviction appeal from a judge-alone trial, the appellate courtmust form its own independent judgment on the merits of the appeal.13 If an appellatecourt "comes to a different view on the evidence, the trial judge necessarily will haveerred and the appeal must be allowed".14 However, the appellant bears the onus ofpersuading the court to reach a different conclusion and, in discharging that onus, mustidentify the respects in which the judgment under appeal is said to be in error.15Additionally, in determining whether the judgment was wrong, the appellate courtmust take into account any advantages a trial judge may have had.16 Where thechallenge is to credibility findings based on contested oral evidence, an appellate courtwill exercise customary caution as the trial judge has the advantage of being able toform a view of the witnesses and is better placed than an appellate judge to determinecontested questions of fact based on contested oral evidence.17AnalysisElements of the Charge[17] Section 192(2) of the Crimes Act 1961 provides:(2) Every one is liable to imprisonment for a term not exceeding 3 yearswho assaults any constable or any person acting in aid of anyconstable, or any person in the lawful execution of any process, withintent to obstruct the person so assaulted in the execution of his or herduty.[18] The District Court Judge noted that the prosecution must prove the followingessential elements beyond reasonable doubt:12 Section 232(4).13 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575, citing Austin, Nichols & Co Inc v StichtingLodestar [2007] NZSC 103, [2008] 2 NZLR 141.14 Sena v Police, above n 13, at [38].15 At [38].16 At [38].17 At [38] (citing Austin, Nichols, above n 13, at [13]), [39] and [40].(a) that Mr Sanson assaulted the victims;18(b) that the victims were persons lawfully executing a process;(c) that Mr Sanson knew they were acting in the lawful execution of aprocess or was wilfully blind or indifferent to those facts; and(d) that Mr Sanson intended to obstruct the victims in the lawful executionof the process.[19] At trial, Mr Sanson accepted the victims were carrying out a process pursuantto Act but contended the prosecution had not proved he knew they were executing aprocess or was wilfully blind or indifferent to those facts. That issue was not pursuedon appeal.[20] As to whether Mr Sanson assaulted the victims:19assault means the act of intentionally applying or attempting to apply force tothe person of another, directly or indirectly, or threatening by any act orgesture to apply such force to the person of another, if the person making thethreat has, or causes the other to believe on reasonable grounds that he or shehas, present ability to effect his or her purpose; and to assault has acorresponding meaning[21] As noted by the Court of Appeal in R v Simpson,20 a charge of aggravatedassault under s 192(2) of the Crimes Act requires proof of two separate intents: theordinary intent involved in the definition of assault as set out above; and the furtherintent that the assault was with the intent to obstruct the person so assaulted in theexecution of their duty. It is not a compound offence governed by a single intent.21[22] The issues on appeal are confined to whether Mr Sanson intentionallythreatened to apply force to the victims and whether he intended to obstruct them inthe lawful execution of their duty.18 The victims were "complainants" until such time as the charges were found proved.19 Crimes Act 1961, s 2.20 R v Simpson [1978] 2 NZLR 221 (CA).21 At page 223.Intentional threat to apply force[23] The allegation was that Mr Sanson threatened to apply force by drivingaggressively and at speed towards both victims.[24] On the day in question, the MPI inspector and vet went to the first block offarm land where Mr Sanson's brother was present. They carried out their inspectionand then moved to the second block where Mr Richard Sanson was present. The MPIinspector said that Mr Sanson yelled and swore at them, telling them not to enter theproperty or he would call the police. It seems Mr Sanson calmed down somewhat andthe inspection was carried out. It was at the third block that the assault occurred.[25] In her evidence, the vet described Mr Sanson's ute travelling at a slow steadyspeed when he drove down the driveway but that the engine was revved aggressively,creating a lot of noise, when he entered the paddock. The vet described a noticeablechange in speed, saying that Mr Sanson "definitely planted his foot" and the utetravelled quickly in a straight line towards the victims.[26] Mr Sanson maintained that he was simply driving in the paddock for thepurposes of feeding his sheep. That was rejected by the Judge, who was satisfied thatthe manner of driving had nothing to do with the ultimate task of feeding the sheep,noting the vet's evidence that, when driving towards animals with the intention offeeding them, the driver would tend to slow down so as not to frighten them.[27] The Judge noted the prosecution case was that the act of deliberately drivingthe ute at the victims amounted to the assault. He addressed the evidence of the twovictims which he described as compelling and consistent.[28] The Judge said:22I find this limb proved beyond reasonable doubt. I find that Mr Sansonthreatened to apply force to the complainants by aggressively driving hisvehicle at them. It is clear on the evidence that both [the MPI inspector] and[the vet] were caused to believe, on reasonable grounds, that Mr Sanson hadthe ability to effect his purpose, being the threat to apply force to them. They22 Ministry for Primary Industries v Sanson [2022] NZDC 3547 [conviction decision] at [28].retreated for cover behind the MPI vehicle and were so shaken that they endedtheir enquiry at the property early.[29] In Mr Drummond's submission, for Mr Sanson, while the Judge considered theactus reus of the driving, he omitted to consider Mr Sanson's mens rea. In hissubmission, there was no evidence of any threatening statement by Mr Sanson eitherbefore, during or after the driving incident suggestive of an intention to threaten toapply force to the victims.[30] Mr Drummond responsibly conceded that Mr Sanson had previously made itclear he did not want the victims on his farm and that was relevant context to provethe two intentions. Mr Drummond's real complaint was that the Judge did not in termsdiscuss whether Mr Sanson intended to threaten to apply force to the victims. Heaccepted, however, that the evidence was such that it was open to the Judge to findintent.[31] In any event, as noted by Ms Barham for the respondent, the languageemployed by the Judge made it clear that he was satisfied to the requisite standard ofMr Sanson's intention to threaten to apply force to the victims. The Judge said he wassatisfied that Mr Sanson drove his vehicle in an aggressive and determined waydirectly at them, as evidenced by the extremely loud revving of the vehicle and rapidacceleration in speed, and that he deliberately chose to drive where he did so as tofacilitate the assault.23Intent to obstruct the victims in the lawful execution of duty[32] Mr Drummond submitted that the assault must be intended to obstruct theperson assaulted in the execution of their duty, not simply impede them in whateverthat person is doing.24[33] In Mr Drummond's submission, Mr Sanson's action took place over a matterof a few seconds and momentarily took the victims away from their task in hand. Thefact they elected to leave because at least one of them was frightened and fearful for23 Conviction decision, above n 22, at [37].24 R v Simpson, above n 20.their safety did not mean that Mr Sanson intended to obstruct them in the execution oftheir duty.[34] In my assessment, there was sufficient evidence before the Judge to enable himto be sure that Mr Sanson intended to obstruct the victims in the execution of theirduty. While Mr Sanson may not have intended actually to strike the victims, hedeliberately drove directly at them, at speed, in an aggressive way when they were inthe course of lawfully carrying out their inspection of the sheep. The MPI inspectordescribed being at significant risk of being run down had they not moved and usedtheir own vehicle as protection. Mr Sanson intentionally obstructed them.Result[35] For the reasons given, the appeal against conviction is dismissed.SENTENCE APPEALIntroduction[36] Mr Sanson appeals his sentence on the grounds that it was manifestly excessiveand wrong in principle because the Court failed to take into account all mitigatingfactors and failed to have sufficient regard to the totality principle.Judge's decision[37] At sentencing, the Judge had before him a presentence report recommending asentence of home detention, a number of personal references attesting to his characterand farming practices, and a psychological report. That evidence spoke ofMr Sanson's circumstances at the time of the offending – the recent death of hismother, his brother's and sister's health problems and an injury suffered by his partner.Mr Sanson himself was in poor health and the offending took place around the time ofthe first COVID-19 lockdown in 2020.[38] The Judge sentenced both brothers together and did not distinguish betweentheir culpability although there was evidence that Mr Sanson dominated his brother tosome extent.[39] The Judge described the animal welfare offending as within the most seriouscategory of its kind. He noted that, although the brothers were charged withrecklessness, the facts of the offending made the totality of the case very serious andat the upper range of seriousness. He noted that the defendants were on notice thatthey were to improve conditions on the farms, but they did not. He rejected theargument that the conditions on the farms were brought on by drought or COVID-19lockdown restrictions, referring to the strong and substantial pasture growth inadjoining farms. In any event, he observed that the brothers had an obligation toremove stock if they were unable to care for them and, even if unaware that COVID-19restrictions did not preclude stock sales, they were obliged humanely to euthanise theanimals rather than leaving them to starve.[40] The Judge addressed the prosecutor's request for the Disqualification andconsidered it was a clear case for such a disqualification, which he made on anindefinite basis.[41] The Judge then returned to his sentence indication of a starting point of twoyears and ten months' imprisonment on the animal welfare charges and applied a25 per cent discount for the guilty plea.[42] The Judge then addressed the two charges of aggravated assault faced byMr Sanson but not his brother. He considered there was a degree of vulnerability foran animal welfare inspector and a civilian vet which could not be equated with a policeofficer who was appropriately trained and equipped to deal with aggressive behaviour.He noted that, had Mr Sanson miscalculated or one of the victims tripped, direconsequences could have resulted. Mr Sanson successfully thwarted the investigationthat day because the victims left the farm out of fear for their safety.[43] The Judge was satisfied a cumulative sentence was required in respect of thetwo aggravated assaults and adopted a starting point of four months' imprisonment onthem.[44] The Judge addressed totality prior to considering any further reductions,saying, "the end point" was not wholly out of all proportion to the gravity of theoffending.25[45] The Judge described the submissions seeking a reduction in sentence on thegrounds of good character as challenging. He noted Mr Sanson was well thought ofin his community, referring to the references filed in support of Mr Sanson. Hedescribed the brothers' history as farmers prior to 2020 as "dreadful". He said that,whilst MPI sought to use alternative means of improving the brothers' behaviour shortof prosecution, the absence of a conviction did not mean he should disregard whathappened prior to 2020. He referred to a 2014 photograph of a pile of dead animals,describing the brothers as "appalling farmers" who "deeply maltreated" their animals.He said:[62] That factor overrides the otherwise legitimate submission aboutyour good character. That good character is seriously compromised whenlooked at in the way you farmed which I am told closely defines you, yourplace in the community and your family.[46] The Judge did not accept that Mr Sanson had displayed remorse, seeing onlyminimisation, denial and a belief that MPI was on some sort of vendetta. He referredto the offer of $2,000 for each victim by way of emotional harm payments. The Judgewas unable to accept Mr Sanson's expression of remorse and made no reduction inthat regard.[47] The Judge reduced the starting point by 10 per cent in respect of Mr Sanson'spoor health and the rigours a sentence of imprisonment would impose, noting he wasin his 60s with health issues.[48] Mr Sanson was sentenced to one year and ten months' imprisonment on thecharge of recklessly ill-treating animals, with concurrent sentences of eight months onthe charges of failing to alleviate their pain or distress, transporting an animal unfit fortransport and breaching animal welfare obligations. A cumulative sentence of four25 Sentencing decision, above n 6, at [56].months' imprisonment was imposed on the two aggravated assault charges. He wasordered to pay $9,054 in costs.Issues[49] Mr Drummond explained that Mr Sanson's appeal against sentence wassomewhat constrained, given the reasoning of Grice J in his brother's appeal.26 Grice Jhad rejected Mr Sanson's brother's submissions that the discount for mitigating factorswas inadequate. Mr Sanson's appeal against sentence was therefore focused on howthe sentence for the aggravated assaults was arrived at.[50] The issues for consideration are:(a) Was the starting point within range?(b) Were the discounts for mitigating factors too small?(c) Should the sentences for aggravated assault have been concurrent ratherthan cumulative or reduced to reflect totality?Approach to appeal[51] An appeal against sentence must only be allowed if the Court is satisfied that,for any reason, there was an error in the sentence imposed and a different sentenceshould have been imposed.27 The Court must dismiss the appeal in any other case.28[52] An appellate court will not intervene unless a sentence was outside the rangeavailable to the sentencing Judge.29 The focus is on the final sentence and whether itwas in the available range, rather than the exact process by which it was reached.30An appellate court must therefore exercise an appropriate degree of restraint and will26 Judgment of Grice J, above n 10.27 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [18] and [26]–[27].28 Criminal Procedure Act 2011, s 250(3).29 Tutakangahau v R, above n 27, at [36].30 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau v R, above n 27, at [36].intervene only when the sentence imposed is "manifestly excessive" on the basis ofsome material error so that a different sentence should be imposed.31AnalysisStarting point[53] Mr Drummond referred to other cases, principally involving police officersassaulted in the execution of their duty. The case of Freer v New Zealand Policeinvolved Mr Freer biting a constable, who was tackling him, on the hand, leaving threedistinct puncture marks.32 He later attempted to bite the same constable on the leg.On appeal, Lang J accepted the starting point of six months' imprisonment adopted inthe District Court was outside the available range and considered that the authoritiesdemonstrated a starting point of around four months was justified on the charge ofaggravated assault under s 192(2).33 The end result was the imposition of a communitydetention sentence, coupled with intensive supervision.[54] In Mr Drummond's submission, the fact the present case involves two chargesdoes not materially affect the starting point, given the decision in Kumar v Policewhere the defendant also faced two charges and the Court held the appropriate startingpoint was four months.34[55] I am satisfied the starting point on the aggravated assault charges of fourmonths' imprisonment was within range. The Judge was correct to note that the twovictims were in a more vulnerable situation than appropriately trained and equippedpolice officers. The Sentencing Act 2002 provides that the fact the victim wasparticularly vulnerable is an aggravating factor which must be taken into account insentencing.35 Furthermore, Mr Sanson drove at the two victims in a car, a potentiallylethal weapon.31 Kumar v R [2015] NZCA 460 at [81]; and Tutakangahau v R, above n 27, at [32].32 Freer v New Zealand Police [2019] NZHC 337.33 At footnote 9.34 Kumar v Police [2014] NZHC 1659.35 Section 9(1)(g).Personal circumstances[56] Mr Drummond stressed the number of significant events which had taken placein Mr Sanson's life at the relevant time. In his submission, a combination ofMr Sanson's background and lack of awareness, together with his impaired emotionalrecognition ability as attested to by a consultant clinical psychologist, resulted inMr Sanson acting in an irrational manner on the day.[57] In my assessment, the Judge dealt with these matters appropriately, rejectingthe submission in respect of the impact of the drought and COVID-19 lockdown, andrecognising the impact of other matters on Mr Sanson. While the 10 per cent discountin respect of such matters might be considered at the modest end of the scale, it doesnot warrant interference.Good character[58] Mr Sanson is 63 years old with one minor conviction almost 40 years agowhich can be put to one side.[59] In Mr Drummond's submission, Mr Sanson should have been treated as a firstoffender. He accepted a good character discount was not available in relation to theanimal welfare charges but said the discount should have been given on the twocharges of aggravated assault.[60] I agree with the Judge that Mr Sanson was not entitled to a discount for goodcharacter in respect of any of the charges, despite Ms Barham supportingMr Drummond's submissions on this point. The Judge's analysis was correct. I wouldonly add that, although Mr Sanson had no prior animal welfare convictions, in 2016he was issued with an instruction pursuant to s 130(1)(b) of the Act, requiring him totake steps to mitigate the suffering of animals on his properties.36 If a defendant doesnot qualify for a discount for past good character in respect of one set of offending, hecannot qualify for it in respect of another.36 Such instructions are legally enforceable and failure to comply is an offence under s 130(2) of theAct.Reparation[61] The Sentencing Act provides that in sentencing or otherwise dealing with anoffender, the court must take into account any offer of amends, whether financial orby other means, made by the offender to the victim.37 In deciding to what extent suchan offer should be taken into account, the court must take into account whether theoffer was genuine and capable of fulfilment and whether or not it has been acceptedby the victim as expiating or mitigating the wrong.38[62] Although the Judge referred to Mr Sanson's offer of reparation, he did notreflect the offer in his sentence calculation. He should have done so.[63] It is not possible to take into account the victims' views of the offer as therewere no victim impact statements. However, the offer was genuine and capable offulfilment. Mr Sanson was, and continues to be, able to offer $2,000 immediately toeach victim. Even though he is described as displaying little remorse, he hasrecognised the emotional harm they suffered and offered an immediate reasonablysubstantial payment to each of the victims. Taking that into account would result in areduction in sentence of around 15 to 20 per cent on the four month starting point.Totality and effect of Disqualification[64] Section 85 of the Sentencing Act provides:85 Court to consider totality of offending(1) Subject to this section, if a court is considering imposing sentences ofimprisonment for 2 or more offences, the individual sentences mustreflect the seriousness of each offence.(2) If cumulative sentences of imprisonment are imposed, whetherindividually or in combination with concurrent sentences, they mustnot result in a total period of imprisonment wholly out of proportionto the gravity of the overall offending.(3) If, because of the need to ensure that the total term of cumulativesentences is not disproportionately long, the imposition of cumulativesentences would result in a series of short sentences that individuallyfail to reflect the seriousness of each offence, then longer concurrent37 Sentencing Act 2002, s 10(1) and (3).38 Section 10(2).sentences, or a combination of concurrent and cumulative sentences,must be preferred.(4) If only concurrent sentences are to be imposed,—(a) the most serious offence must, subject to any maximumpenalty provided for that offence, receive the penalty that isappropriate for the totality of the offending; and(b) each of the lesser offences must receive the penaltyappropriate to that offence.[65] The Judge was correct that the sentence on the aggravated assault chargesshould have been cumulative as the assault charges were different in kind from theanimal welfare charges.39 However, the Judge erred in his assessment of totality inrespect of which he made no adjustment. The Judge considered totality after settingthe starting point, whereas it should have been addressed at the end of the exercise.[66] Furthermore, the fact of the Disqualification should have been taken intoaccount. It was considered by Grice J to be relevant when it came to assessing whetherMr Sanson's brother should have received a sentence of home detention. In my viewit should be taken into account earlier than that. In this case, because the sentenceappeal was confined to the sentence on the aggravated assault charges, Mr Sanson didnot include this factor as a ground of appeal. However, he could legitimately raise itin respect of whether the Judge erred in his assessment of the totality of the sentence.I therefore address it in this way, leaving open the question of whether it should havebeen taken into account earlier in respect of sentencing on the animal welfare charges.[67] At 63 years old and having lived and worked on the farm for his entire life,Mr Sanson always imagined that he would do so almost until the very end of his life,just as his father had. There is no doubt that the Disqualification is a severepunishment for him and one that acts as a deterrent for him and generally. Indeed, theDisqualification can be considered the most severe punishment of all. It shouldtherefore have been taken into account in assessing whether the total period ofimprisonment was wholly out of proportion to the gravity of the overall offending.39 Sentencing Act 2002, s 84(1).[68] I have therefore concluded that there were two errors in the sentence imposed,namely the failure to take into account the offer of reparation and the failure properlyto consider totality and the effect of the Disqualification. I therefore proceed toconsider what sentence should have been imposed.[69] The sentencing calculation is slightly unusual in that it needs to be approachedin two stages, the guilty plea discount being available in respect of the animal welfarecharges only and the reparation discount in respect of the aggravated assault chargesonly. From the starting point of 34 months on the animal welfare charges, the guiltyplea and personal circumstances discounts result in a period of 22 months'imprisonment. Taking the starting point of four months on the aggravated assaultcharges, a reduction of around 30 per cent should be made to recognise the discountsfor personal factors and the emotional harm payment. That leaves a little over twoand a half months to be added to the 22 months.[70] Taking into account totality and the effect of the Disqualification but bearingin mind issues of parity with Geoffrey Sanson, I conclude that a sentence of 23 months'imprisonment should have been imposed.Home detention[71] This then brings me to a consideration of whether home detention should beimposed rather than a sentence of imprisonment. Ms Barham responsibly concedesthis point.[72] A home detention sentence was recommended by the presentence report writer.The address remains available.[73] Section 16 of the Sentencing Act provides:16 Sentence of imprisonment(1) When considering the imposition of a sentence of imprisonment forany particular offence, the court must have regard to the desirabilityof keeping offenders in the community as far as that is practicable andconsonant with the safety of the community.(2) The court must not impose a sentence of imprisonment unless it issatisfied that,—(a) a sentence is being imposed for all or any of the purposesin section 7(1)(a) to (c), (e), (f), or (g); and(b) those purposes cannot be achieved by a sentence other thanimprisonment; and(c) no other sentence would be consistent with the application ofthe principles in section 8 to the particular case.[74] There is nothing to suggest that it would not be consonant with the safety ofthe community were Mr Sanson kept in the community. I am satisfied that thepurposes and principles of sentencing can be met by a sentence of home detention plusreparation and the Disqualification.[75] A home detention sentence is not an easy one. It is appropriate in myassessment for it to be combined with community work which will enable Mr Sansonto give something back to the community. Mr Sanson has served two months in prisonand I take that into account when calculating the period of home detention andcommunity work.Result[76] The appeal against conviction is dismissed.[77] The appeal against sentence is allowed. The sentence of two years and twomonths' imprisonment is quashed and replaced by a sentence of eight months' homedetention, 150 hours of community work, reparation of $2,000 to each victim to bepaid in full by 5 May 2023, the Disqualification and costs:(a) on the charges of recklessly ill-treating an animal – 8 months' homedetention;(b) on the charges of failing to alleviate pain or distress pursuant to s 11 ofthe Act, transporting an animal unfit for transport and breaching animalwelfare obligations – 4 months' home detention on each charge to beserved concurrently;(c) on the charges of aggravated assault – 1 month home detention to beserved concurrently, $2,000 reparation for each of the two victims, and150 hours' community work.[78] The home detention is to be served at the address specified in the presentencereport and is subject to the conditions specified therein. The post-detention conditionexpires six months from detention end date.Thomas JSolicitors:BVA The Practice, Palmerston North for Respondent