Warren George Michael Koberstein, a 75-year-old farmer of 40 years, was sentenced to two years and four months in prison inAugust. He was also ordered by Judge Tony Snell not to own farm animals or be in charge of anyone who looks after farm animals again.
Koberstein on Tuesday appealed his prison sentence in the Court of Appeal in Wellington before Justices Rebecca Ellis, Rachel Dunningham and Layne Harvey.
Koberstein’s lawyer, Philip Morgan, KC, appealed on the grounds the prison sentence was in his view excessive given he was also banned from farming. He asked a home detention sentence be imposed instead.
Warren Koberstein has appealed a jail sentence for ill-treating his animals. Photo / Andrew Warner
Koberstein is on bail pending the outcome of the appeal.
A jury found Koberstein guilty of 11 charges in March last year. The charges were laid by the Ministry for Primary Industries following a complaint and subsequent search of his farm in July 2019.
He was found to have wilfully ill-treated 33 sheep that had to be destroyed, and failed to ensure proper and sufficient food for 834 pregnant sheep, 86 cattle and 32 heifers.
Other charges related to sheep stuck on their backs with their eyes pecked out by hawks, one with a neck too deformed to eat properly, and another with an injured foot seen walking on its knuckle.
Judge Snell said at sentencing the offending was serious as it involved hundreds of animals in very poor to extensively poor body condition, suffering over a lengthy time.
Despite numerous warnings and previous convictions for similar offending, Koberstein “buried his head in the sand”. Judge Snell said Koberstein was “unrepentant”.
Judge Snell gave a prison starting point of three years and two months, which he discounted by four months to account for the impact of disqualifying Koberstein from farming.
That gave a reduced starting point of two years and 10 months in prison. He discounted it a further six months (or 17%), including 5% each for Koberstein’s age and good character and 7% for procedural delays in the case, mainly due to the Covid-19 pandemic.
Why Koberstein is appealing
At appeal, Morgan said Judge Snell should have reduced the sentence by 12 months, not four months, for the lifetime farming ban.
Morgan said disqualifying Koberstein from farming effectively meant his life’s work was lost.
“With the stroke of a pen, it is all gone.”
He also argued Judge Snell’s prison starting point was too high, given Koberstein’s age and the fact he did not mean to starve the animals.
“This is not a case of someone setting out to deliberately cause animals suffering.”
Morgan said Koberstein had a financial interest in ensuring his stock was well fed, but he “got it badly wrong”.
“He has spent his life farming this piece of land for 40 years. He is proud of his efforts to breed sheep and cattle.”
Crown argues judge got it right
Crown prosecutor Anna McConachy said Judge Snell’s sentence was appropriate and should be upheld.
She said the 17% discount was generous, given the circumstances.
She highlighted Koberstein’s lengthy history of Ministry for Primary Industries interventions before the 2019 offending. She said this history showed Koberstein was farming animals with poor body conditions in 2013, 2016 and 2018.
In 2016, a farming consultant officially warned him but Koberstein’s response was the consultant was “an idiot”.
Given his eight previous animal-related convictions and ministry interventions, as well as a previous assault conviction, McConachy said a 5% good-character discount was “generous”.
She said at the age of 75, Koberstein was coming to the end of his farming career and therefore a farming disqualification had less impact than it would for a younger farmer.
The impact of a tax burden of $33,000 to $45,000 that Koberstein now had since not being able to earn an income from farming was simply a consequence of his offending, according to McConachy.
She noted the farm had stock worth about $1 million and he still owned the farm, which was valued at about $5 million.
The justices reserved their decisions.
Kelly Makiha is a senior journalist who has reported for the Rotorua Daily Post for more than 25 years, covering mainly police, court, human interest and social issues.
