Auckland Council v Kyle
[2020] NZHC 2837
•29 October 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2020-404-000280
[2020] NZHC 2837
BETWEEN AUCKLAND COUNCIL
Appellant
AND
KYLE KYLE
Respondent
Hearing: 06 October 2020 Appearances:
D J Collins & L V Faletau for the Appellant G A Anderson for the Respondent
Judgment:
29 October 2020
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 29 October 2020 at 4.00pm
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel: Auckland Council, Auckland
G A Anderson, Barrister, Auckland
AUCKLAND COUNCIL v KYLE [2020] NZHC 2837 [29 October 2020]
Introduction
[1] Auckland Council charged Mr Kyle under s 57(2) of the Dog Control Act 1996 with being an owner of a dog that attacked another domestic animal. Under s 57(3), if the Court is satisfied that a dog committed such an attack, the Court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional.
[2] At a sentence indication hearing in the North Shore District Court on 10 June 2020 Judge Wallwork said that she believed there “may well have been” exceptional circumstances.1 On that basis the Judge indicated that she would not order destruction of Mr Kyle’s dog, but that she would fine Mr Kyle. Mr Kyle pleaded guilty at that hearing. Judge Wallwork then sentenced Mr Kyle to a fine of $1,000 and ordered reparation of $300. Her Honour did not order destruction of the dog.
[3] Auckland Council appeals against the sentence.2 The Council says the Judge failed to apply the correct legal test as to exceptional circumstances under s 57(3), and therefore erred in not ordering destruction of the dog. The Council asks that on this appeal I order destruction of the dog. The Council does not challenge the fine or reparation.
[4] Mr Kyle does not seriously dispute that the Judge erred in applying the exceptional circumstances test. But he says that in deciding to plead guilty he relied on the Judge’s sentence indication. He says, therefore, that if I am of the view that the Judge erred in her application of the exceptional circumstances test, I should remit the matter back to the District Court to allow him to withdraw his guilty plea.
[5] For the reasons set out below, in my view the Judge did err in applying the exceptional circumstances test. The key issue on the appeal, therefore, is whether I should allow Mr Kyle to withdraw his guilty plea.
1 Auckland Council v Kyle DC North Shore CRI-2019-044-003137, 10 June 2020 (sentencing indication) at [15].
2 The appeal was brought with the consent of the Solicitor-General, as required by s 246(2) of the Criminal Procedure Act 2011.
The facts
[6] A summary of facts was agreed for the purpose of the sentence indication. In brief, Mr Kyle’s dog, Simba, was with Mr Kyle at Rothesay Bay beach. The complainant and her partner were walking their dog Chiko along the same beach. They walked up a boat ramp, where they observed Simba standing on the grass area watching them. Simba was neither on a lead nor wearing a muzzle.
[7] Mr Kyle asked the complainant if he could give Chiko a treat, and the complainant agreed. Simba then came rushing over and attacked Chiko. The complainant and Mr Kyle eventually managed to get the dogs apart. Chiko suffered scratches and grazing to his left ear.
[8] Simba had previously attacked a person and was classified as a menacing dog under the Act.3 This classification meant that Mr Kyle was required to keep Simba muzzled or in a cage when in a public place.4
Exceptional circumstances under s 57(3) Dog Control Act 1996
[9] Section 57(3) provides that where the Court is satisfied that a dog has committed an attack against another dog (or has committed any other attack described in s 57(1)), the Court must make an order for destruction of the dog “unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.”
[10] The Court of Appeal has recently, in Auckland Council v Hill, determined the approach to the “exceptional circumstances” test in s 57(3).5 The Court summarised the approach as follows:
[4] Where the owner of a dog is convicted of the strict liability offence created by s 57(2), an order under s 57(3) for destruction of the dog will normally follow.
[5] The first step in applying s 57(3) is to identify the relevant circumstances of the offence. What happened? This inquiry should focus on the immediate circumstances of the attack itself. The dog’s history does not
3 Dog Control Act 1996, s 33A.
4 Section 33E.
5 Auckland Council v Hill [2020] NZCA 52.
form part of the circumstances of the offence. Events that occur after the offence is complete — that is, after the attack occurs — also are not circumstances of the offence. The phrases “circumstances of the offence” and “circumstances of the attack” are equivalent in this context.
[6] The second step is for the court to ask whether the circumstances of the offence were exceptional and do not warrant destruction of the dog. Section 57(3) proceeds on the basis that the attack of itself establishes that there is a risk of the dog attacking again in similar circumstances. The focus is on whether those circumstances were sufficiently exceptional that that risk is remote, and does not justify destruction of the dog in the interests of public safety.
[7] It is not open to the dog’s owner to argue that the dog can be expected to behave differently in similar circumstances in the future — for example, as a result of post-attack training. Rather, the focus is on the risk that the dog poses to people and animals assuming it can be expected to behave in the same way in similar circumstances.
[8] Nor is it open to the owner to argue that the s 57(3) test is met because the attack was caused or contributed to by a one-off failure by the owner to maintain effective control of the dog. Failures to control a dog are not exceptional circumstances of a kind that indicate that destruction of the dog is not warranted.
[9] Circumstances that were not exceptional at the time the attack occurred cannot become exceptional as a result of post-attack events. If there was nothing exceptional about the circumstances of the attack when they occurred — nothing out of the ordinary which can be identified as a relevant factor in the attack — the s 57(3) exception does not apply. In particular, assurances given by the current owner about the future management and control of the dog are not relevant to the s 57(3) inquiry.
The District Court decision
[11] Mr Kyle pleaded guilty as soon as he was given the sentence indication, and Judge Wallwork then immediately sentenced Mr Kyle. The Judge’s reasons for sentence are, accordingly, found in her Honour’s sentence indication notes – there are no notes of the sentencing itself.
[12] The Judge set out the exceptional circumstances test, referred to some of the circumstances of the offence, and then said:6
[14] I am not completely satisfied that the attack occurred in truly exceptional circumstances, but I do believe that the offence was minor and that it could have been prevented.
6 Auckland Council v Kyle DC North Shore CRI-2019-044-003137, 10 June 2020 (sentencing indication).
[15] On those circumstances I believe that there may well have been exceptional circumstances unlikely to be repeated and so I will not be making a destruction order.
Did the Judge err in applying the exceptional circumstances test?
[13] The Council submits that the passages that I have just quoted from the Judge’s decision show that her Honour was not satisfied that there were exceptional circumstances such that destruction was unwarranted. I agree. The Judge said she was not “completely satisfied” that the circumstances were exceptional. She said merely that “there may well have been” exceptional circumstances. A mere possibility of exceptional circumstances is not sufficient.
[14] The Council next submits that where a Judge is not satisfied that there are exceptional circumstances, the Judge has no choice but to make a destruction order. There is no residual discretion available to a Judge to refrain from making such an order. Again, I agree. Section 57(3) is clear: the Court “must” make an order for destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional.
[15] The Judge did not explicitly refer to exercising such a discretion. But, given that her Honour was not satisfied that the circumstances of the offence were exceptional, her decision not to order destruction can only be explained on the basis of the exercise of a residual discretion. That was an error.
[16] Finally, the Council submits that the circumstances of this attack cannot be characterised as exceptional. I accept that submission. The fact that the attack was contributed to by Mr Kyle’s failure to have Simba muzzled or on a leash is not an exceptional circumstance, as the Court of Appeal emphasised in Hill.7 The fact that the injuries to Chiko were minor does not render the circumstances of the attack exceptional. The fact that Mr Kyle had given a treat to Chiko (which may have triggered Simba to attack) is not exceptional.
7 Auckland Council v Hill [2020] NZCA 52 at [8].
[17] As I noted earlier, Mr Kyle did not seriously dispute that the Judge had erred in declining to order destruction of Simba. Mr Anderson, counsel for Mr Kyle, said in his written submissions that Mr Kyle accepted that the Judge’s notes were not an accurate reference to established legal principle “and that accordingly this Court may easily accept that an error in law has been articulated.”
[18] I find that, based on the summary of facts that had been agreed for the purposes of the sentence indication, the Judge erred in her sentencing. An order should have been made for destruction of Simba.
[19] I will therefore allow the Council’s sentence appeal, and order destruction of Simba. But, given that Mr Kyle pleaded guilty on the basis of the Judge’s sentence indication, I also need to consider whether I should allow Mr Kyle to withdraw his guilty plea.
Should I allow Mr Kyle to withdraw his guilty plea?
Guilty pleas and sentence indications under the CPA
[20] The effect of a sentence indication, when a defendant pleads guilty as a result of the indication, is set out in s 116 of the CPA. This provides:
116 Effect of sentence indication
(1)This section applies to a sentence indication given under section 61 if the defendant pleads guilty to the offence in respect of which it was given within the period that it has effect.
(2)The sentence indication is binding on the judicial officer that gave it unless—
(a)information becomes available to the court after the sentence indication was given but before sentencing; and
(b)the judicial officer is satisfied that the information materially affects the basis on which it was given.
(3)The sentence indication is not binding on a judicial officer other than the judicial officer who gave the indication.
[21] Section 116(3) means not only that a sentence indication is not binding on a different Judge at the same level, but also that it is not binding on an appellate Court.
[22] Section 115 of the CPA allows a defendant to withdraw a plea of guilty, with the leave of the Court, before being sentenced. Section 115 does not apply in this case, Mr Kyle already having been sentenced. But s 115 provides context to the provision that does apply, so I set it out in full:
115 Plea of guilty may be withdrawn by leave of court
(1)A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.
(2)The court must grant leave to a defendant to withdraw a plea of guilty referred to in section 116(1) if—
(a)the court, presided over by the judicial officer that gave the relevant sentence indication, indicates that the circumstances described in section 116(2) apply and it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication; or
(b)the court, presided over by a judicial officer other than the one that gave the relevant sentence indication, indicates that it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication.
[23] The first instance Court therefore must grant leave to the defendant to withdraw the guilty plea if the Court proposes, in either of the circumstances set out in s 115(2), to impose a more severe sentence than that indicated. In other words, if a more severe sentence is proposed, leave is automatic. This is in contrast to the position that prevails where an appellate Court proposes to impose a more severe sentence. That situation is governed by s 252 of the CPA, which provides:
Except with the leave of the appeal court if that court considers it is in the interests of justice, a defendant who has received a sentence indication is not entitled to withdraw his or her guilty plea if a more severe sentence than that indicated is imposed on appeal.
[24] Under s 252 leave to withdraw the guilty plea is not automatic. Leave depends on the interests of justice. That is a highly fact-specific inquiry. To assist in that inquiry I will consider the background to s 252, as that gives some guidance on the intention behind the “interests of justice” test.
The background to s 252
[25] Before the CPA, the Courts had developed informal sentence indication procedures. In 2005 the Law Commission, as part of its report Criminal Pre-Trial Processes: Justice Through Efficiency, recommended that those procedures be formalised in legislation. In respect of Crown sentence appeals after a defendant had pleaded guilty following a sentence indication, the Law Commission said:8
Finally, there is concern about the injustice that might result if a defendant pleads guilty on the basis of a sentence indication, and the sentence is then overturned following a Crown appeal on the grounds that it is manifestly inadequate. The injustice arises from the fact that the defendant has altered his or her position in the expectation of a sentence that is different from the one eventually imposed.
[26] The Law Commission recommended the approach that had been taken in New South Wales (in R v Glass9) to such cases: the defendant ought to be given the opportunity to file an appeal against conviction, vacate his or her guilty plea, and have the case remitted back to the first instance Court for trial.10
[27] Not long after the Law Commission’s recommendation, but before it was given legislative effect, the New Zealand appellate Courts developed an approach similar to that recommended by the Commission. The approach was summarised by the Court of Appeal in 2008 in R v Smail:11
The approach endorsed by the Supreme Court of New Zealand to Crown appeals against sentence is that, where a court increases a sentence on a Crown appeal (as it did in this case), the person who pleaded guilty must be given the opportunity to reconsider his or her plea (R v Edwards [2006] 3 NZLR 349n (SCNZ)). The Supreme Court in Edwards also made it plain that the accused must swear an affidavit attesting to reliance on the sentencing indication in entering a guilty plea and confirming that he or she will elect to replead if the Court increases sentence.
The Court of Appeal in Smail explained the rationale for this approach:
[18] The rationale behind this approach, followed in other parts of the British Commonwealth (see, in New South Wales, R v Glass (1994) 73 A Crim
8 Law Commission Criminal Pre-Trial Processes: Justice Through Efficiency (NZLC R89, 2005) at [339].
9 R v Glass (1994) 73 A Crim R 299 (NSWCCA).
10 Criminal Pre-Trial Processes: Justice Through Efficiency at [340] and recommended at [R50].
11 R v Smail [2008] NZCA 6, [2008] 2 NZLR 448 at [17]. R v Edwards was also reported in partial form as Sipa v R (2006) 22 CRNZ 978 (SC).
R 299), is that the accused has pleaded guilty on the basis of a particular “expectation” which has not been met. As a matter of common justice, he or she should therefore be permitted to reconsider his or her position.
[29] In May 2009 the Law Commission and the Ministry of Justice issued a discussion document for the formalisation of a sentence indication regime.12 The discussion document proposed that the regime should codify the approach taken to successful Crown sentence appeals in R v Edwards and R v Smail: the defendant should have the right to have the case remitted to the trial Court to enter a not guilty plea, but only “if they give evidence that they made their guilty plea in reliance on the sentence indication, and that if the matter is remitted to the court of hearing they intend to plead not guilty”.13
[30] After receiving submissions on the discussion document, the Law Commission and Ministry of Justice changed their view on the approach to successful Crown sentence appeals following a sentence indication. In a consultation paper in December 2009 they explained:14
132.The discussion document proposed that, if on a Crown appeal against sentence, the Court intends to impose a more severe sentence than that indicated, the defendant has the right to have the case remitted to the court of hearing so that a not guilty plea may be entered.
133.Following submissions on the discussion document, we now propose that where a sentence indication is given and relied upon by a defendant in pleading guilty, successful Crown appeals against sentence (on the basis that it is manifestly inadequate) will not result in an ability for that convicted person to vacate his or her plea.
134.This is on the basis that it must be assumed that any plea given is genuine and informed. As part of making an informed decision about plea, we expect that defendants would be advised that a sentence indication may not be final, including that it would not be possible for a plea to be vacated if a more severe sentence was imposed on appeal.
[31] The Commission and Ministry invited comment on whether “a defendant should not be able to vacate his or her plea on the basis that a more severe sentence to
12 Ministry of Justice and Law Commission Discussion Document: Development of a formalised sentence indication scheme (May, 2009). This was one of several such documents issued as part of their joint Criminal Procedure (Simplification) Project. That Project eventuated in the Criminal Procedure Act 2011.
13 At [80].
14 Ministry of Justice and Law Commission Criminal Procedure (Simplification) Project: Reforming Criminal Procedure (21 December 2009).
that indicated was imposed on appeal.” There is no document from the Commission and Ministry recording the outcome of their further consultation. But their proposal did not find itself enacted in s 252.
[32] A Cabinet Business Committee minute of a 30 August 2010 meeting records that the Committee agreed various proposals regarding sentence indications, including that “where a sentence, which was imposed after the giving of a sentence indication, is appealed by the Crown, and the appellate court is considering imposing a more severe sentence, the court will be able to give leave to the defendant to vacate their guilty plea, if it is in the interests of justice to do so”.15 This was the proposal enacted in s 252. The Committee’s minute does not elucidate when it might be in the interests of justice to grant leave. There is no further enlightenment in Hansard or other Parliamentary materials on the legislative intention behind the interests of justice test in s 252.
Observations on s 252
[33]I make the following observations on s 252.
[34] The legislature did not codify the approach taken in R v Edwards and R v Smail. But one should not overstate the differences between that approach and s 252:
(a)It is true that under s 252 a defendant does not have a right to withdraw a guilty plea when a more severe sentence is imposed on appeal. But nor did a defendant have such a right under the earlier approach. Under R v Edwards and R v Smail the defendant could only withdraw the guilty plea if they provided an affidavit deposing to having relied on the sentence indication in pleading guilty.
(b)In R v Smail the Court of Appeal explained that, where there has been such reliance on a particular sentence expectation, and that expectation has no longer been met, as a matter of “common justice” the defendant should be permitted to reconsider their position. It is difficult to discern
15 Cabinet Business Committee (Minute of Decision) “Proposals to Simplify Criminal Procedure: Reform Package (Paper One)” (30 August 2010) CBC Min (10) 10/3 at [24].
any difference between something being a matter of “common justice” and something being in the “interests of justice.”
[35] In my view, therefore, if the appeal Court is satisfied that the defendant relied on the sentence indication in pleading guilty, that will go a long way towards the Court concluding that it is in the interests of justice to allow the defendant to withdraw their plea. Any other approach would be contrary to the Court of Appeal’s reasoning in Smail. Conversely, if the appeal Court is not satisfied that the defendant relied on the sentence indication, it is difficult to imagine any circumstances in which it would be in the interests of justice to allow the plea to be withdrawn.
[36] However, the legislature cannot have intended that leave to withdraw a guilty plea be granted in every case where there was reliance on the sentence indication. If that had been the intention, the legislature would have adopted the proposal made by the Law Commission and Ministry of Justice in their May 2009 discussion document (namely, to codify the Edwards and Smail approach). This is reinforced by the contrast with s 115 (under which leave to withdraw must be given by the trial Court if a more severe sentence is proposed).
[37] The legislature’s decision not to adopt the May 2009 proposal, and instead enact an “interests of justice” test, suggests that the Court should look beyond the mere fact of the defendant’s reliance on the sentence indication, and consider all relevant circumstances. There may therefore be cases where, despite the defendant having relied on the sentence indication, it will not be in the interests of justice to allow the defendant to withdraw their guilty plea. An example might be where, although the appeal Court proposes a more severe sentence, it is not markedly more severe.16
16 In R v Lawrie [2017] NZHC 781 Muir J held that the extent of the disparity between the sentence indicated (and imposed) and the sentence proposed on appeal (an uplift of one year and three months’ imprisonment on a sentence of six years, or just under 21 per cent) was such that it was in the interests of justice to grant leave under s 252.
The interests of justice in this case
[38] I am satisfied that Mr Kyle pleaded guilty in reliance on the sentence indication. That is plain from the fact that he pleaded guilty immediately after the indication was given.
[39] There is a marked disparity between the sentence indicated below and the sentence that I will impose. This is not a case where the more severe sentence merely involves (say) a higher fine. It is a binary choice between destruction and no destruction. This in my view weighs heavily in favour of granting leave.
[40] Mr Collins, who appeared as senior counsel for the Council, submitted that there were several factors against granting leave. These included:
(a)There was no indication of Mr Kyle not understanding the charge or that a destruction order was a potential outcome. I disagree. Mr Kyle entered his plea on the basis of the Judge’s indication that a destruction order was not a potential outcome.
(b)The offence is strict liability, the prosecution case is strong, and the respondent has not advanced any viable defence. I think it would rarely, if ever, be appropriate (or possible) to examine the merits under s 252, given that the prosecution case and the defence will not have been tested. I accept that the parties agreed a summary of facts below. But that summary is agreed merely for the purpose of the sentencing indication.17
(c)There is limited scope to waive the presumption of a destruction order, and therefore the outcome is very likely to be the same. The limited scope for overcoming the presumption of a destruction order arises only if Mr Kyle is guilty of the offence. This point therefore requires an examination of the merits, which is not appropriate.
17 Criminal Procedure Act 2011, s 61(3)(a).
(d)The matter has already been concluded in the mind of the complainant (and other witnesses) who are not anticipating having to return to Court to give evidence. I accept that in some circumstances a complainant or witnesses might have relied on the defendant’s guilty plea, and that that reliance might be relevant to a determination of the interests of justice under s 252. But there is no suggestion that the complainant or other witnesses are going to now have any difficulty in coming to Court.
[41] I conclude that, in all the circumstances, it is in the interests of justice to grant leave under s 252 to Mr Kyle to withdraw his guilty plea.
Result
[42] I allow the Council’s appeal against sentence. The sentence is to also include an order for destruction of Simba. But I also grant Mr Kyle leave to withdraw his guilty plea. I remit the matter to the District Court for Mr Kyle to re-plead to the charge.
Campbell J
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