EDITORIAL NOTE: NO SUPPRESSION APPLIED. IN THE DISTRICT COURT AT NELSON CRI-2016-086-000112 [2016] NZDC 24925 MINISTRY FOR PRIMARY INDUSTRIES Prosecutor v WARREN MCNABB Defendant Hearing: 7 December 2016 Appearances: J A Wooton for the Prosecutor M J Logan for the Defendant Judgment: 7 December 2016 NOTES OF JUDGE I G MILL ON SENTENCING [1] Mr McNabb, you are here for sentence on two charges which you have pleaded guilty to. [2] The first charge is a charge of recklessly ill-treating an animal, namely two dairy cows, by breaking their tails with the result that the animals were seriously injured or impaired. That charge carries a maximum penalty of three years imprisonment and a fine not exceeding $75,000. As you can appreciate that can cover a whole range of activity. [3] The second charge which you pleaded guilty to was failing to ensure animals, namely dairy cows, received treatment that alleviated unnecessary pain being suffered by the animal. There the maximum penalty is 12 months imprisonment and a fine not exceeding $50,000. MINISTRY FOR PRIMARY INDUSTRIES v WARREN MCNABB [2016] NZDC 24925 [7 December 2016]
[4] These are serious matters. [5] The summary of facts has been read this morning and I just want to briefly refer to some parts of that to put my sentencing in context. In this case you are the manager; you run the farm, Karamu Farms in Karamea. The farm, I am told, is 460 hectares and the prosecution say that this is a well-run farm where some 450 cows are milked. [6] You run the property on behalf of a family trust and you have done this for approximately four years since your father died and there are several other staff on the property. [7] On 17 November last year, inspectors carried out an inspection. These were inspectors from the Ministry of Primary Industries. They were assisted in this inspection by an experienced veterinarian and each animal was inspected during milking. Of the 446 cows examined 210 of the animals that is 47 percent of the herd was found to have broken tails. [8] The veterinarian described the scale of the breakages to be systemic or prolonged animal abuse. Two cows had multiple breaks, 75 were classified as moderate and 15 breaks that occurred within the previous 12 weeks. [9] No treatment had been administered for the broken tails and the scientific research indicates that there is a significant level of pain suffered by a cow who has a broken tail. [10] As far as the first charge is concerned, the one of reckless ill-treatment, several witnesses were interviewed and described two instances where you ill-treated the stock. On one occasion the cow s tail was bent in a U shape and it snapped. On the other occasion the witness described walking into the cow shed just after a cow s tail snapped, observing blood on the floor and observing a compound fracture and a bone freshly protruding from the tail of the cow.
[11] You at first denied any knowledge of this, but later acknowledged that you did break two of the cows tails yourself. So you were subsequently charged with recklessly doing so. [12] You also said to the Ministry representatives that you took some responsibility for what had happened as you were the farm manager. You told the investigators that you were under severe stress and I accept that that was the case and it was apparent in fact to the investigators that you were under pressure and that probably applied to everyone on the farm. You were co-operative with the investigation. [13] You have no previous convictions, you are 58 years of age, you are still employed as a farm manager on the farm and no further matters have arisen through further inspections by inspectors on the farm. You have facilitated those visits also. [14] In this case I may disqualify you from being involved with animals and I have been asked to do so and I will refer to that during my sentencing. [15] The prosecution have also attached a schedule to the summary of facts from Richard Laven, an associate professor from Massey University who has outlined in that schedule that a dairy cattle s tail is a very important and sensitive organ. The tail may be used to control the animal, if it is gently moved it can control the cow, lifting it may cause the cow to move forward and bending it one way or the other may cause the cow to move in one direction or the other. [16] To keep a cow standing still I understand that in the milking shed this could be done where the tail is lifted straight up. The professor is of the opinion that none of this should require much force. The professor goes on to say that bony fractures tend to occur from trapping or being hit by a large object rather than twisting or bending a tail. If twisting or bending of the tail is used, excessive force will usually result in breaking the connections between the vertebrae, tearing the ligaments and the cartilage rather than injuring the bone. He likens the injury to somewhat akin to a human dislocating their finger, except he says it requires significant force to break the tail.
[17] He goes on to summarise that breaking of the tail by bending or twisting will cause immediate severe pain and distress, if untreated the pain will continue and veterinary advice should always be sought if a broken tail is detected. [18] He goes on to say that the injury is not common, he would expect to see several broken tails in a herd, once there were 10 or more then he thinks there would be a serious issue over animal welfare. [19] He says it is likely, and this is only his opinion of course, that most tails are broken through anger and frustration because the cow is not doing what it is asked to do. [20] He goes on to say that cows tails can be broken accidentally, particularly if force is applied directly to the base of the tail, it is lifted straight up or if the tail is twisted around with force and this generally occurs because staff have not had sufficient training in doing this. [21] The prosecution in this case have filed written submissions and I wish to refer to some of those. They point out of course, and this is important, that the purpose of the provisions that I am concerned with is to ensure that owners of animals and persons in charge of animals attend properly to the welfare of those animals. [22] In the submissions I have been referred to several cases by both the prosecution and your defence and these cases are helpful, but in the end each case rests on its own facts and I must in the end come back to the facts of your offending, how culpable, that is blameworthy you are, and what the suitable penalty would be. [23] I have been referred to cases that are said to be similar. In some respects they are, in other respects it seems some of the injuries to the cows was intentional rather than reckless. But, all I can say is that I have considered those cases. [24] The prosecution submit to me that because of the significant number of cows injured in this way, that is an aggravating factor. That you were in a position of trust
so far as these animals were concerned and they were dependent on you and they were vulnerable because they have no way of avoiding any ill-treatment. [25] The prosecution say it was a deliberate nature in the way you broke the tails, but I have to say that you are not charged with intentionally doing so, but you are charged with recklessness and I will come back to that. [26] The number of the animals, the large proportion of the herd, the fact that you were responsible and the reckless nature of your actions are all aggravating factors. [27] I am asked to consider a penalty which has a deterrence for you and others, makes you accountable for what you have done and they suggest a starting point of imprisonment of 12 months is appropriate. [28] They accept, of course, that there is a number of mitigating factors. You were under a good amount of stress, though that is not an excuse. You have pleaded guilty at an early time, you have got prior good character and I have to say an important matter in this case is the steps that have been taken since the investigation. [29] The family trust, I understand your brother-in-law is the principal party in that, installed cameras. The footage is available for anyone, I include inspectors to view and that is important. You have completed an anger management course through an approved provider. [30] For some period of time you had no involvement in the milking of the cows and that was a trust decision, but around August or September of this year you became involved again, mainly through fiscal considerations and lack of staff and you have now been milking again. [31] That is essentially what the prosecution say to me. [32] On your behalf I have received an affidavit which I have read carefully. I want to refer to several parts of that affidavit. You grew up of course on a dairy farm; you left at a fairly early age to go to a dairy factory. You have had various
other occupations including owning small businesses in the meantime. You returned to work on the family farm in 2000. It was a smaller herd then. The herd increased. [33] You left for a period of time because of the relationship with your father. You came back in the spring of 2011 and you have been there full-time essentially since then and manager for the last few years. [34] You are still employed as the farm manager. Your brother-in-law is an experienced farmer and regularly visits the property and has not raised any issues with you about the welfare of the animals. There are some full-time employees, but it has generally been one less than it used to be since you have been back on the farm and you work on a roster so that you are in the milking shed for part of the time. [35] At the beginning of the season in particular I understand that there can be a number of people required for milking because of the animals not being familiar with the process. But, your role on the farm is very wide. You perform all other functions and I understand do so very well. [36] The stock is otherwise in good condition and I accept that and that the inspectors commented on that. [37] You have not had a lot of experience, you say, working with dairy cows that have tails because the usual practice previously was to dock the tails of the cows. You never intended to cause pain you say to the cows, really your intention was to distract them and you picked up the practice by observing others doing it, of using the tail to steer or control the cow. You received no training in this. It seemed to be quite effective, but on the two occasions you broke the tail of the cow. [38] You did not deliberately do that, you say you were surprised and shocked and that you would never now use that method again after the second occasion. [39] On the second occasion you applied a rubber ring to the tail to dock the tail and that is a constant reminder to you now that you have done this to two cows, every time you see that particular cow.
[40] You express remorse; you said you were stressed at the time as was everyone else. It was a hectic time, difficult time, and that there had been no extra employed staff at the time because of the decision made by the family company. Of course the milk returns were down. Times were tough. [41] You deny any injury to any of the other cows being caused by you and you say that you simply did not know and had it been obvious you would have done something. [42] You are appalled about what has happened and as I understand your evidence, you say that because of the position that you may have been in the milking shed you would not have seen what others were doing and whether tails were broken. [43] So you have done quite a bit so far as your own conduct is concerned and you want to be able to continue to do everything on the farm that is required of you, including the milking. You are concerned whether you will retain your employment if you are not able to be a relief milker and you seek not to be banned from that role which is what the prosecution seek. That really is at the mercy of the trust so far as your employment is concerned. [44] You and your wife are reasonably comfortable financially, you could pay a fine. [45] Well the probation report is the final document that I will refer to and just briefly it says that you have no previous convictions, your risk is assessed as low for re-offending. No community sentence that normally would be appropriate can be imposed in this case because of the location of the farm and a fine is recommended. [46] The probation officer says something quite surprising to me, but I take into account, I doubt that he or his staff will ever mistreat animals in this manner in the future. Which is a pretty strong statement by the probation officer. At the time you were under stress, you have taken steps now to address the issues and this has met with some success. So, a financial penalty is recommended by probation.
[47] Essentially what you have said is that you accidentally broke the tail of two cows as a result of not being experienced in what you were doing and using more force that you realised. On the second time you took action to dock the tail to avoid the suffering of the cow and you have desisted in the future from that practice. [48] It suggests that on that occasion the force used may have been excessive because of the stress and frustration that you were experiencing with too many cows and too few to do the work and the financial pressure that was on the operation. In my view that is all too familiar in the circumstances that prevail in the dairy industry in recent times. It does not justify ill-treatment, it simply provides an explanation. [49] I repeat that this is a charge of recklessness and you have pleaded guilty to that. But, recklessness infers a degree of understanding of what you are doing, that is the force that you were using may well result in injury, but you take that risk regardless. It is not an innocent accident. I find that you have tended to minimise your actions in that respect, especially given what the witnesses have said as reported in the summary of facts, but I accept it was not intentional, but it was much more than simple carelessness. I note that you denied doing it at all for a start, but at least you admitted it shortly afterwards. [50] As to the charge in respect of the herd as a whole, you claimed never to have seen others in the milking shed snap a cow s tail. Perhaps you were obscured from view at the time is what I am told and you claim you only knew about this after the inspection. [51] Well I must say I find that hard to believe, but there is no other evidence to say that you were aware. But you were in the milking shed at the time, which is where most of this manipulation would have taken place. You are the manager of the farm and whether you were aware or not you should have been aware that there was excessive force and suffering on the part of the animals and in my view there must have been some signs, at least in some animals, of the injuries.
[52] I come to the conclusion in respect of that charge you were very negligent in your management in that particular way and it resulted in the unnecessary suffering of a large number of animals. No one has admitted to any of this ill-treatment. [53] While you experiencing stress and frustration may have contributed to your reckless behaviour in charge 1 your negligence contributed to charge 2. [54] A short term of imprisonment could be a starting point, but I am not going to send you to prison. It is serious offending of course. I note that otherwise your work on the farm is described as very good. A very well run farm the summary of facts says. You have got a previous faultless record over many years and to some extent there was pressure on you that caused you to offend. [55] Importantly I note there are steps taken by the trust and you following the investigation. You have addressed your anger as I said. The camera has been installed and cows I believe are no longer being manipulated in this way. [56] You were excluded from the milking shed for a period time and that was a responsible thing in my view, but you have now been reinstated again I think because of financial constraints and low staff members. [57] A community-based sentence is not viable and in my view the only sentence that I can impose in the circumstances is a fine. I find that is appropriate to do so. I am reassured that it is not likely to happen again and your management is otherwise good. [58] There is absolutely no guidelines in the cases as to what the fine should be, but the maximum fines are quite high, $75,000 in one case and $50,000 in another. As a first offender with a previous good record, in my view the appropriate penalty is as follows: (a) On charge 1, that is the reckless charge, you are convicted and fined $10,000 together with Court costs of $130 to pay. (b) Reparation of $1651.70 is to be paid, which is the veterinary fees.
(c) Solicitor s fee of $250. (d) On charge 2, you are convicted and fined $5000 with Court costs of $130. [59] I now must consider the question of disqualification. As I said I have taken into account the steps the trust and you have made. You are back milking now. Guidelines under the section which is relatively new are that in considering whether to impose a disqualification, I must take into account the purposes of the Act which I have already referred to. [60] The maximum penalty for the charge, particularly the first charge, is considerable; the seriousness of the offending is obvious because of the harm done, the number of animals involved and the number of times on which the ill treatment must have occurred. [61] I put that against your character, your lack of previous offending and the other circumstances in the case, I believe a disqualification of some sort is required and appropriate, but it is mitigated by the matters I have outlined. [62] I disqualify you from having any involvement in the milking of cows for a period of six months from 21 December 2016, which I understand would be approximately the balance of the present season. I start that on 21 December to give the trust some time to rearrange matters. [63] The question as to whether that would affect your employment has been considered by me, but this is a farming operation. Any farming operation has to accommodate things that may or may not occur during a season, there are many challenges and inevitably simply the operation must adjust and prioritise matters month-to-month if not season-to-season. I G Mill District Court Judge