The Government created new anti-rustling criminal offences by adding them late in the law-making process, bypassing the normal process for public consultation. This post raises questions about the merits of the offences.

Colin Gavaghan and Simon Connell, Otago Law Faculty

This post continues our discussion of the new criminal offences aimed at livestock rustling. In the first, we raised questions about how they were passed into law. What about the actual substance of the change? Even if the proper process wasn’t followed in rushing these new crimes into law, isn’t the end result an improvement? 

To be honest, the absence of proper consultation makes it hard to know for sure. Consultation isn’t just a formality; it’s an opportunity for people to bring a whole bunch of perspectives, objections and suggested improvements to Parliament’s attention. We’re not aware of a “rustling lobby” that might have provided submissions directly in opposition to the farming lobby, but lots of people have an interest in the criminal law, including those who try to look out for the interests of people who are, or tend to be, prosecuted for criminal offences. We would very much like to have heard these sorts of perspectives. 

Even without that, there are a few aspects of the new offences that seem a bit concerning. 

 

The offence of theft of livestock or animals

The first offence states that: 

A person commits theft and is liable to imprisonment for a term not exceeding 7 years if they steal any livestock or any other animal that is the property of any other person.

In explaining the offence, Andrew Little made the rather grand pronouncement that:

Today is a new era, where we have finally classified livestock rustling as it should be – as criminal offences in our criminal code.

 From that, you might form the impression that livestock rustling wasn’t already an offence in our criminal code. Of course, stealing livestock is already a crime. True, there wasn’t a crime specifically called ‘livestock theft’, just like there isn’t a crime specifically called ‘cellphone theft’ or ‘wallet theft’, but they are all covered by the general theft provisions of the Crimes Act.

OK, though, maybe some people think there’s something sufficiently different about stealing animals that it merits its own subsection. On its own, that would be pretty innocuous. But there’s also the matter of sentences. 

 

As well be hung for a sheep as a lamb

The maximum sentence for theft depends a lot on the value of what you’re stealing. If the value of the stolen property is over $1000, then it’s treated a lot more seriously. (There’s a question about whether stealing the meagre savings of a poor person is actually less serious than stealing a rich person’s luxury goods, but we can park that one for another day.)

The maximum jail time for thefts over $1000 is 7 years. Exactly the same as in the new offence. If the goods you steal are valued between $500 and $1000, the maximum sentence is only one year. Under $500, and you’re down to 3 months.

How does this affect livestock rustling? We’re no farmers, but a glance at the prices on the beeflambnz.com website tells us that two or three cows, or maybe ten lambs, would take you over the upper limit. But lower value thefts do occur. The Ministry of Justice reports that, in 2017, there were 106 thefts of animals valued under $500.

What’s not obvious is why low-value thefts of animals should be treated as seriously as high-value thefts of anything else. Or why, uniquely in the case of animals, the value of the theft shouldn’t matter. Sure, there will probably be an element of emotional distress when a beloved pet is stolen that won’t apply to most other property. But the problem, and the new offences, are very much framed in the context of farming communities and livestock theft. Frankly, we struggle a bit to imagine farmers breeding animals for slaughter becoming quite so emotionally invested. 

What about animal welfare? Some of the stories we’ve heard involve animals being killed pretty brutally. Miles Anderson of Federated farmers spoke of “the distress of finding butchered animals left to die in paddocks.” Thankfully, it’s also already a crime in New Zealand to wilfully or recklessly ill-treat an animal, punishable with a maximum sentence of 5 years. The rationale for anti-cruelty laws doesn’t and shouldn’t depend on whether the animal is anyone else’s property. So, the new offence doesn’t seem to address any gaps in that regard.

It’s hard to see, then, what purpose the new offence is meant to serve. Interestingly, the Ministry of Justice – Andrew Little’s ministry – agreed. In their Regulatory Impact Assessment, they specifically said that the the creation of a specific offence for livestock rustling cannot be justified as necessary. 

 

A man’s home is his castle. And so is his 200, 000 hectare sheep station

What about the second offence, the one that the Ministry did favour? It looks like this:

A person commits an offence and is liable to imprisonment for a term not exceeding 10 years if they enter onto any land used for agricultural purposes, without authority and with intent to commit an imprisonable offence relating to any building or structure, livestock, animal, or machinery on that land.

What this means is that the police don’t have to wait until someone actually steals an animal; just being on the land with that intent will be enough. Andrew Little seemed to tap into childhood memories of those old westerns when he said that the new laws will give "police and the courts the tools they need to rope in the rustlers."

The thing is, there’s a pretty good reason to suspect that this was also already a crime. As well as ‘completed’ offences, our law also criminalises attempted crime. And the way our law of attempts has developed in recent years means that just being near the place where the crime is to occur, with strong evidence of intent to commit it, can be enough to constitute an attempt. 

The decided cases so far have involved people planning some pretty heinous sexual offences, but the principle seems likely to extend to other crimes as well. It can sometimes be hard to prove what someone was intending before they actually begin their attempt. But that’s as much a problem for the new offence – which also requires intent – as for the existing attempt law.

If people coming onto farm land with intend to steal were already committing a crime, why did we need a new offence? What the new provision basically does is treat this sort of offending as a form of burglary.

When you think of burglary, you probably think of breaking into houses. That’s absolutely where burglary’s common law origins lie. In 1641, Lord Coke’s defined a burglar as:

a felon, that in the night breaketh and entreth into a mansion house of another, of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not.

Under our law, though, burglary is a good deal wider than Coke’s idea. For one thing, it doesn’t require any breaking. Fair enough; there’s probably no good reason why climbing in through an open bedroom window shouldn’t count as burglary. It’s also easy to see why Coke’s restriction to nocturnal activities was abandoned, although it might well be true that the kind of burglaries that most people worry about do take place while they are tucked up in bed.

Neither is burglary today limited to people’s homes (far less their mansions!). Our current burglary law applies to any building or ship. ‘Building’ is defined pretty broadly, and extends to things like tents and caravans, but also to enclosed yards and tunnels. 

The last aspect of our burglary law that might surprise some people is that it doesn’t just apply to entering with intent to steal. Any imprisonable offence will suffice. Greenpeace activists boarding an oil drilling ship to protest probably isn’t the first thing that comes to mind when we think of burglary, but that’s what Lucy Lawless and her fellow activists were originally charged with in 2012.

Someone convicted of burglary can face up to 10 years in prison. That’s a fairly big deal, and a lot more serious than the penalty for attempted theft. Actually, it’s a fair bit heavier than the maximum penalty even for a completedtheft (7 years if it’s over $1000). By the time you’ve entered the building (or ship!) with intent to steal, you’ve already done the worst part as far as our law is concerned; actually making away with the goods is the lesser part of the offending. 

Why do we treat burglary so seriously? There doesn’t seem to be a definitive statement about that anywhere. One article from 1951 claimed that “the original purpose of the law of burglary is lost in antiquity. Its purpose today is at best obscure.” The article goes on, though, to offer some reasons why we might treat burglary as we do:

First, every person should enjoy privacy in his home, and must therefore be able to choose who shall enter. Second, a trespassory entry in a dwelling is likely to raise fear in the inhabitants. Third, since a man commonly believes that his home is his castle, invasion of it by another is apt to lead to violence. 

Leaving aside the rather archaic language, there seems to be something to this. 

The element of intrusion into what should be a safe and personal space might provide a reason to treat burglary as a separate and more serious crime than attempted theft. People who’ve been burgled sometimes talk of a sense of violation, and of being left with lasting feelings of fear and insecurity. (It’s interesting that Andrew Little, when speaking about the new laws, referred to “rural people's livelihoods and their right to be safe in their homes.”)

Can the same be said of all the ways burglary can be committed? Specifically, does entering a building where no-one lives raise the same kind of concerns as entering a dwellinghouse? That seems questionable. But, the definition has kept widening down the years, seemingly without much in the way of stopping to think about what it is that makes burglary a very particular type of wrong. The offence was widened in 2013, and at that time too, there was a concern that had all been rushed through without much thought or consultation.

While we can see the case for extending the crime to cover the likes of tents and caravans and maybe even enclosed yards if they’re adjacent to people’s homes, the extension to all buildings and enclosures seems more questionable. And the latest expansion seems like another step away from the reasons for treating burglary as a distinct and very serious crime. Yes, coming onto someone’s small lifestyle block to steal their chickens might create some of the same sense of violation and fear as more conventional burglaries. But can the same be said for setting foot anywhere on agricultural land? Some of the bigger farms in New Zealand cover massive areas. The largest is over 180,000 hectares. Is intruding anywhere on that really the same sort of thing as entering someone’s home? According to the new law change, it will be treated as if it is.

The MoJ’s impact assessment referred to a ‘gap’ in the law of burglary ‘which means the underlying principle in the offence of burglary, protection of personal property, will not always apply to the same extent for individuals who live in rural environments.’ But it’s far from clear that the underlying principle of burglary is protection of personal property. The Law Society, in contrast, suggested that:

Part of the reason it is considered to be a serious offence arises from the fact that burglary currently requires the offender to enter a building (or other enclosed space). Such conduct is considered inherently more serious than mere trespass or unlawful entry on to (essentially) open land or fields. That rationale does not apply in the case of agricultural land which may be significantly remote from any building or other enclosed space.

Furthermore, the general theft provisions cover the protection of personal property. The crime of burglary must be doing something else. Figuring out precisely what that something is, and whether there really is a gap that needs filled rather than a principled difference, will mean consulting a bit more widely and thinking a bit more carefully. 

 

Conclusion 

So we now have 2 new crimes. One doesn’t seem to change anything with regard to large-scale livestock thefts, but has the effect of treating small thefts of livestock the same as large thefts of anything else. The other potentially expands the crime of burglary even further away from where it started out, treating even enormous farms in the same way as dwelling-houses. Maybe strong arguments can be made for either or both of these. But neither seems such an obviously good idea that it should have been rushed through without a proper chance to consider and debate its merits. 

 The law is a serious business, the criminal law in particular. Creating new offences with much heavier penalties is one part where short-cuts should be avoided. Who knows, maybe exactly the same outcome would have followed if Parliament had followed their normal process. Since they didn’t, we’re left with a whole bunch of questions that aren’t only unanswered, but appear not even to have been asked.