ETWEEN LAI JANICE TOY Appellant AND THE KING Respondent
[2024] NZCA 446
•16 September 2024 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA472/2023 [2024] NZCA 446 |
| BETWEEN | LAI JANICE TOY |
| AND | THE KING |
| Hearing: | 26 June 2024 |
Court: | Ellis, van Bohemen and Hinton JJ |
Counsel: | A J Hamblett for the Appellant |
Judgment: | 16 September 2024 at 10.00 am |
JUDGMENT OF THE COURT
A The application to adduce fresh evidence is declined.
B The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hinton J)
This is an appeal against conviction and sentence for contravening orders made under the Animal Welfare Act 1999 (the Act).
Background
On 1 November 2017, Ms Toy was found guilty of five animal welfare offences following a judge-alone trial before Judge Mabey KC.[1] The convictions related to Ms Toy’s ill-treatment and neglect of cats and a goat. For that offending, Ms Toy was made subject to a five-year disqualification order under s 169 of the Act.[2] The order disqualified Ms Toy from owning, exercising authority over, or being in charge of animals and was effective from 1 November 2017.
[1]Waikato SPCA v Toy [2017] NZDC 13795.
[2]Waikato SPCA v Toy [2017] NZDC 24951 [2017 Sentencing notes].
Between November 2017 and March 2020, the Society for the Protection of Cruelty to Animals (the SPCA) received information that Ms Toy was breaching the disqualification order. SPCA animal welfare inspectors observed animals on Ms Toy’s property on several occasions and, on 29 May 2020, the SPCA executed a search warrant at that property. Ms Toy was the only person present. The inspectors located over 100 animals on the property. Most were seized and removed.
Ms Toy was charged with one representative charge under s 169B(1) of the Act which provides that it is an offence to contravene a disqualification order.
On 6 April 2023, following a trial before Judge S Clark and a jury in the District Court at Hamilton, Ms Toy was found guilty of contravening the disqualification order.
On 21 July 2023, the Judge sentenced Ms Toy to two years’ intensive supervision and ordered her to pay $3,000 in reparation to the SPCA.[3] It was a special condition of this order that Ms Toy not be in a position of care, ownership or exercise authority over any animals at any time.
[3]R v Toy [2023] NZDC 25148 [judgment under appeal].
The Judge also made a further five-year disqualification order under s 169 of the Act.[4] That order took effect from the date of sentencing and again prohibited Ms Toy from being the owner of, or exercising authority over, or being the person in charge of, animals for a five-year period.
Grounds of appeal
[4]The 2017 order had, by then, expired.
Ms Toy’s appeal against conviction is on the basis that a miscarriage of justice occurred for three reasons:
(a)the Judge misdirected the jury on mens rea;
(b)the Judge erroneously assumed animals are not taonga protected by the Treaty of Waitangi; and
(c)the Judge wrongly excluded evidence of tikanga in relation to animal welfare.
Originally Ms Toy pursued a fourth ground of appeal, that “late evidence introduced by the Crown should not have been admitted”. That point was abandoned by memorandum dated 7 June 2024.
Ms Toy appeals against her sentence on the basis that it was manifestly excessive.
The Crown opposes both appeals.
Application to adduce fresh evidence
The notice of appeal records that Ms Toy intended to seek leave to adduce further evidence in support of her appeal. By minute dated 18 December 2023, Katz J ordered that Ms Toy was to file and serve a memorandum setting out:
(a)the particulars of that evidence; and
(b)why the evidence was not available at trial or sentencing and/or why it could not, with reasonable diligence have been called.
She was to do so by 5 February 2024. No such memorandum was filed.
Instead, Mr Hamblett, counsel for Ms Toy, filed a memorandum on 1 February 2024 advising that he was filing two reports as “background material”. One is a cultural assessment, prepared by the Department of Corrections, which details Ms Toy’s connection to animals and the hardship she faced following her husband’s death in 2019. The second is a 2021 master’s thesis about the Māori concept of animal welfare. Mr Hamblett advised that Ms Toy did not intend to “file any affidavits or attempt to adduce new evidence”.
Despite Mr Hamblett’s characterisation of the reports as “background material”, the cultural assessment is clearly new evidence sought to be admitted on appeal. Leave is required. The Crown opposes leave. It submits the evidence is neither fresh nor cogent.
Absent any explanation from Ms Toy as to why the material in the cultural assessment could not have been called at trial or sentencing, we agree with the Crown. Moreover, in sentencing Ms Toy, the District Court Judge expressly acknowledged:[5]
… the personal loss that you have suffered in recent years with the death of your late husband and the depression that is mentioned in the pre-sentence report and the struggles you have had since then.
[5]At [20].
The further evidence about this is neither fresh nor cogent and is therefore inadmissible.
The thesis could potentially be considered as reference material.
Pre-trial ruling and April 2023 trial
In a pre-trial ruling, Judge Clark recorded:[6]
[18] I have raised with counsel the nature of offence that is before the Court pursuant to s 169B of [the Act]. My preliminary view was this was an ordinary criminal offence which requires the Crown to prove the elements beyond reasonable doubt. All counsel agrees on that and helpfully Ms Keller has provided a decision of De Vere v Auckland SPCA.
[19] In that case Lang J discussed the elements at paragraph [15] and he listed the matters that the Crown must prove beyond reasonable doubt are:
(a) A disqualification order has been made under s 169(3).
(b) The defendant knows the order has been made.
(c) During the period specified in the order the defendant was the owner of, or exercised authority over, an animal or animals in contravention of the disqualification order.
[20] All counsel agree, those are the elements to be proved by the Crown.
[6]R v Toy [2023] NZDC 6922 [pre-trial ruling] (footnote omitted).
At trial, there was no dispute that Ms Toy was disqualified from owning animals and that she knew about that disqualification. Those matters were the subject of an agreement between counsel that was admitted under s 9 of the Evidence Act 2006. The only issue at trial was the third issue highlighted above: whether Ms Toy owned, exercised authority over, or was a person in charge of the animals — in contravention of the disqualification order.
The Crown case was that Ms Toy did exercise authority over, or was in charge of, the animals because she owned and lived alone at the property. Ms Toy had also been observed feeding the animals and was said to run a form of “animal sanctuary” on the property.
Ms Toy’s case was that she did not own or exercise control over the animals, nor was she in charge of them. She said the property was leased to a trust she had established for community purposes. The trust had several trustees (including herself) as well as volunteers and helpers/kaitiaki and the trust was responsible for the animals.
The jury rejected Ms Toy’s explanation and, in a unanimous verdict, found her guilty of the charge. This necessarily meant that the jury unanimously agreed that Ms Toy owned, exercised authority over, or was a person in charge of the animals — in contravention of the order.
Sentencing by Judge Clark
In sentencing Ms Toy, Judge Clark said his overall impression was that Ms Toy was in control of what happened on her property.[7] While others may have assisted her, it was Ms Toy who made key decisions, attended to the animals, arranged for their food and coordinated volunteers.[8] In making these statements, the Judge was recording for sentencing purposes the facts as he found them, based on the jury’s preceding guilty verdict.
[7]Judgment under appeal, above n 3, at [14].
[8]At [13(d)] and [14].
The Judge outlined the pre‑sentence report including that Ms Toy did not accept she had breached the disqualification order. As previously noted, he expressly acknowledged Ms Toy’s personal loss over the death of her late husband and consequent depression.[9]
[9]At [20]. These same matters were the subject of the report which we declined to permit to be adduced on appeal.
Turning to the starting point, the Judge noted there is no guideline judgment for this type of offending.[10] He referred to Auckland SPCA v Kondratyeva where Ms Kondratyeva was sentenced to two years’ intensive supervision and was disqualified from owning animals for 10 years under s 169.[11] The Judge considered Kondratyeva analogous to the extent that it involved the deliberate disregard of a disqualification order.[12] He considered the aggravating features of this case included that Ms Toy acted contrary to the disqualification in a deliberate and wilful manner.[13]
[10]At [30].
[11]Auckland SPCA v Kondratyeva [2021] NZDC 12273, aff’d Kondratyeva v Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA) [2022] NZHC 449.
[12]Judgment under appeal, above n 3, at [32].
[13]At [32].
The Judge held that two years’ intensive supervision was appropriate. He imposed a special condition that Ms Toy was not to be in a position of care or ownership of, or exercise authority over, any animals at any time.[14]
[14]At [34].
As to ancillary orders, the SPCA sought reparation of $17,617.25. Taking into account Ms Toy’s limited means, the Judge set reparation at $3,000 on a pro rata basis.[15]
[15]At [35].
The SPCA sought a disqualification of 10 years. The Judge agreed with submissions made for Ms Toy that animal welfare was not seriously an issue. However, he noted the distinct lack of feed at the property on the day of the search warrant and the 2017 convictions which related to the care and welfare of animals.[16] The Judge characterised the real issue as whether “a further disqualification [should] be imposed given that Ms Toy has acted in a deliberate flouting of [the 2017] disqualification”.[17]
[16]At [41] and [43].
[17]At [43].
The Judge considered the evidence demonstrated Ms Toy was committed to continuing to have animals at her property. Although the Judge accepted Ms Toy was well‑intentioned and well-meaning, he said she had effectively acted as if the disqualification did not apply.[18] The Judge therefore imposed a five-year disqualification order.[19] He did not limit the order to any particular class of animals.[20]
[18]At [44].
[19]At [45].
[20]At [46].
The Judge declined to make a forfeiture order over two horses on Ms Toy’s property. Although there was evidence the horses may have been in poor condition, the evidence was that these horses were owned by a third party.[21]
The test on appeal
[21]At [39].
Ms Toy appeals her conviction and sentence under ss 229 and 244 of the Criminal Procedure Act 2011.
To succeed in her conviction appeal, Ms Toy must demonstrate that a miscarriage of justice has occurred. For the purposes of a conviction appeal, a miscarriage of justice is defined as:[22]
… any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[22]Criminal Procedure Act 2011, s 232(4).
In respect of the appeal against sentence, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.[23] For the Court to intervene in a sentence imposed, the sentence must be shown to be wrong in principle or manifestly excessive.[24] The focus is on the sentence imposed, rather than the process by which the sentence is reached.[25] Ordinarily, the Court will not intervene where an end sentence is within a range that can be properly justified by accepted sentencing principles.[26]
Conviction appeal
Misdirection of jury on mens rea
[23]Section 250(2).
[24]Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
[25]Tutakangahau v R, above n 24, at [36].
[26]At [36].
Mr Hamblett’s argument on the appeal against conviction was focused firmly on a submission that the Judge misdirected the jury on mens rea. He says that to be found guilty of the charge of contravening a disqualification order under s 169B(1), Ms Toy had to have intentionally breached the disqualification order. He submitted it is not enough for Ms Toy to have accidentally or inadvertently breached the order.
As we understood it, this argument is predicated on Ms Toy’s belief that she was not in contravention of the order, either because:
(a)animals are taonga that cannot be “owned”; or
(b)the interposition of both the trust as occupier of the land and the involvement of others as kaitiaki put sufficient distance between Ms Toy and the animals so as not to breach the order.
We are unable to accept that argument. What the Crown had to prove was accepted by the parties and set out in the passage of Judge Clark’s pre-trial ruling quoted above at [19]. The relevant mens rea was that Ms Toy knew of the existence (and currency) of the earlier disqualification order. That knowledge of a disqualification order is the mens rea for a charge of breaching that order was confirmed (albeit in a disqualified driving context) by this Court in Millar v Ministry of Transport.[27]
[27]Ms Toy might, accordingly, have had a defence if she genuinely had believed the order had expired at the relevant time: Millar v Ministry of Transport [1986] 1 NZLR 660, (1986) 2 CRNZ 216 (CA).
Mr Hamblett nonetheless appears to submit that the Crown also needed to prove that Ms Tot intentionally breached the order and that, on the facts here, it could not do so because of her belief as to the matters referred to above. In making that submission he relied, in particular, on Woolmington v Director of Public Prosecutions and the recent decision of this Court in Coleclough v R.[28]
[28]Woolmington v Director of Public Prosecutions [1935] AC 462 (HL); and Coleclough v R [2024] NZCA 80.
In our view, however, neither of those cases assist. Woolmington famously established that the Crown bears the burden of proving all elements of an offence.[29] In that case, Mr Woolmington was charged with the common law offence of murder, the elements of which included malice: a wrongful act, done intentionally, and without just cause or excuse. And as Cooke P further explained in Millar:[30]
The famous “golden thread” speech of Viscount Sankey LC in Woolmington, although general in its language, was delivered in a case focussed on the common law crime of murder. It resolved in favour of the accused a long-standing obscurity regarding the burden of proof of matters going to a complete defence or to reduction of the crime to manslaughter, such as absence of intention to kill or cause grievous bodily harm and provocation. The historical survey in the speech did not touch on the considerations arising in the interpretation of modern statutes creating and defining new offences, save only that the proposition that it is the duty of the prosecution to prove the prisoner’s guilt was said to be subject to the defence of insanity and “any statutory exception”.
[29]Woolmington, above n 28, at 481–482.
[30]Millar, above n 28, at 665 (emphasis added).
And Coleclough involved a prosecution for theft in a special relationship under s 220 of the Crimes Act 1961.[31] Section 220(2) expressly requires proof of intention. There is no such express requirement here.
[31]Coleclough v R, above n 28, at [33].
Nor do we think it is possible to argue that a requirement for an intentional breach can be implied into s 169B(1). As noted already, the broadly analogous offence of driving while disqualified was held by this Court in Millar to require only knowledge of the existence and currency of the disqualification order. And as this Court noted in Cameron v R, moral blameworthiness does not always require subjective knowledge of all the elements of a particular offence or all the circumstances making up the actus reus.[32] Here, to interpret s 169B(1) as requiring proof of an intentional breach of the order would, in our view, frustrate its purpose.
[32]Cameron v R [2016] NZCA 48, (2016) 27 CRNZ 700 at [88].
It may be that what Mr Hamblett was suggesting was that there should be a defence of total absence of fault available to the breach aspect of the s 169B(1) offence. The availability of such a defence in relation to so-called “strict liability” offences was discussed by this Court in Millar, although notably the offence of driving while disqualified was not regarded as a strict liability offence.[33] Moreover, ss 13 and 30 of the Act expressly provide for a total absence of fault defence in relation to other, specified, strict liability offences under the Act.[34] The logical interpretive inference to be drawn is that Parliament did not intend such a defence to be available in relation to s 169B.
[33]As noted already, it was found to be an offence requiring mens rea: knowledge of the disqualification order.
[34]See also s 168A, which relates to the burden of proof for such defences.
Lastly, and in any event, it is clear to us that total absence of fault could not be established on the facts of Ms Toy’s case. It would not suffice for her simply to say that she believed she was not breaching the disqualification order because she had taken the steps she thought appropriate to distance herself from the animals or the land. The defence requires all reasonable steps to be taken to avoid a breach. Associating herself in any way with the care of the animals would not meet that standard.
For the reasons we have given, we consider the Judge’s directions on mens rea were unimpeachable.
Relatedly, Mr Hamblett objected to several paragraphs of the Judge’s summing up where the Judge told the jury that their verdict was not dependent on what Ms Toy believed but on what the jury believed. However, these statements were appropriately made by the Judge. They were necessary to correct Mr Hamblett’s submission to the jury that Ms Toy had to have a guilty mind. Again, the jury simply had to be satisfied that Ms Toy had contravened the order. That was a straightforward matter of fact — whether Ms Toy had a “guilty mind” or not was irrelevant, for the reasons we have explained.
For completeness we also record, as we apprehend some confusion in this regard, that the jury only had to be satisfied that Ms Toy was either the owner of, or exercised authority over, or was in charge of an animal or animals, in contravention of the disqualification order, not all of these.
There is no error on the part of the Judge in regard to this key aspect of the appeal.
Assumption by the Judge that domestic animals are not taonga and wrong exclusion of evidence of tikanga
Mr Hamblett’s submissions were brief on these points of appeal. As noted, he placed considerable reliance on the first point above.
There is no dispute that Ms Toy has Māori heritage. We were also advised by Mr Hamblett of Ms Toy’s strong view that animals are taonga and also that she thought she had put kaitiaki in place to “work around” the disqualification order.
We agree with the Crown that both these points of appeal must fail. Ms Toy has not provided any evidence that shows domestic animals are taonga, nor any evidence that identifies either relevant tikanga or the impact on the matters at issue here. Moreover, the trial Judge, Judge Clark (who is a former Judge of the Māori Land Court) was well placed to make an assessment of the tenability of such an argument.
The thesis provided to us, while proceeding on the widely-accepted basis that there are “taonga species”, did not suggest that non-indigenous domestic animals fall within that category. Moreover, it remains far from clear (in the absence of any submissions on the point) how tikanga might operate to assist Ms Toy’s position here. No specific submission was made addressing this question.
It is insufficient to state repeatedly that the animals were taonga, as Ms Toy did at trial and before us. As we have explained above, Ms Toy’s subjective belief is not relevant in this context. As to the presence of other kaitiaki, the jury plainly considered that, whatever arrangements were put in place, Ms Toy had breached the disqualification order.
To conclude, we are not satisfied that there was a miscarriage of justice. The appeal against conviction is dismissed.
Sentence appeal
Ms Toy says her sentence was manifestly excessive. She says all orders should be quashed or, at most, her disqualification should be limited to goats and cats — those being the subject of the 2017 convictions.
The Crown submits the sentence was well within the available range and consistent with the principles and purposes of sentencing.
We turn first to the disqualification order. Section 169(3) of the Act empowers the court to disqualify a person from owning or exercising authority in respect of animals if they are convicted of a relevant offence, including a breach of a disqualification order. Under s 169(3) the disqualification may be for any period the Court thinks fit. Section 169(5) authorises the imposition of a minimum period of disqualification.[35] Section 169(4) lists factors the court must have regard to in determining whether to impose a disqualification order. Those factors are:
(a) the purposes of Parts 1 and 2; and
(b) the maximum penalty specified for the charge from which the conviction arose; and
(c)the seriousness of the offending, including (without limitation) the nature and gravity of the harm, the number of animals involved, and the frequency of the offending; and
(d) the character of the person; and
(e) the previous offending history (if any) of the person; and
(f) any other circumstances of the case.
[35]No minimum period was imposed in Ms Toy’s case.
In R v Collins, this Court noted that “a sentencing Judge has a wide discretion to impose a disqualification within the total sentence, especially where he or she is satisfied that the term of disqualification is of a length necessary to meet the statutory principle of deterrence”.[36] Collins was not, however, concerned with a disqualification for breaching a previous order.
[36]R v Collins [2008] NZCA 235 at [98], referring to R v Albert CA126/03, 19 December 2003 at [18] and [19].
Ms Toy submits her offending was less serious than that in
R v Kilsby-Halliday,[37] Ministry of Primary Industries v Henson,[38] Kondratyeva v SPCA,[39] De Vere v Auckland SPCA,[40] and SPCA Waikato v Genet.[41] She points out that in Kilsby-Halliday and Henson, no disqualification order was made. She also submits it is significant that the only charge against her was for contravention of the disqualification order and there was no charge against her for mistreating or neglecting animals. She says that the photos the SPCA provided showed the animals on her property were healthy and well-cared for.[37]R v Kilsby-Halliday [2023] NZDC 8885.
[38]Ministry of Primary Industries v Henson [2020] NZDC 23601.
[39]Kondratyeva v SPCA, above n 11.
[40]De Vere v Auckland SPCA [2019] NZHC 2355.
[41]SPCA Waikato v Genet [2016] NZDC 25065.
Ms Toy further says that to deprive her of “her natural inclination to care for animals is cruel punishment for what was a harmless, well meaning, charitable exercise which was for the benefit of animals generally, and for the benefit of the community”.
This submission misses the point, however. Ms Toy was sentenced was doing something a court had prohibited her from doing. Whether or not the animals she cared for when committing that breach were harmed or neglected is largely immaterial: the dominating purpose of such an offence is to ensure enforcement of court orders.
We also agree with the Crown that the cases referred to by Mr Hamblett are distinguishable. While no disqualification order was made in Henson, this was because the offender relied on farming for his livelihood and the offending was attributable to a lack of supervision of a young worker.[42] Similarly, in Kilsby-Halliday, the offending was very much out of character.[43] Kondratyeva is most comparable to the present case. In both that case and this, the offending was aggravated by deliberate disregard of a disqualification period almost immediately after it was imposed, and the offending spanned several years.[44] In each case the appellant continued to unlawfully maintain ownership or control over a range of animals despite knowing the disqualification order prohibited them from doing so. Neither Ms Kondratyeva nor Ms Toy showed any insight into, nor remorse for, their offending.
[42]Ministry of Primary Industries v Henson, above n 38, at [6] and [12].
[43]R v Kilsby-Halliday, above n 37, at [35].
[44]Kondratyeva v SPCA, above n 11, at [5]–[18].
These factors are all relevant under s 169(4) of the Act and justify the five-year disqualification — a period which is significantly less than the 10-year disqualification imposed in Kondratyeva. The five-year term appropriately reflects the reality that Ms Toy failed to comply with the original five-year term almost from the outset. Ms Toy’s suggestion that the disqualification order could be limited to certain species of animals is neither appropriate nor practical in the present case. Ms Toy’s offending against the disqualification order involved many types of animals and has not been confined to certain species.
While we accept that the disqualification order may have a significant impact on Ms Toy and her lifestyle, we agree with the Crown that these factors do not outweigh the countervailing reasons justifying a disqualifying order — even when accounting for both her age and the world in which she lives. This is particularly so in circumstances where the original order was put in place in response to ill‑treatment and neglect of animals.
As to the sentence of intensive supervision, we agree with the Crown that it was appropriate and consistent with s 54C of the Sentencing Act 2002, the aim being to reduce the likelihood of Ms Toy further offending. After a three-day trial, the Judge was well-placed to assess Ms Toy’s rehabilitative needs and risk of further offending. We accept that intensive supervision was necessary to promote compliance with the further disqualification order given Ms Toy’s previous non-compliance.
Last, we consider the reparation order of $3,000 was more than fair in the circumstances. The SPCA incurred and claimed costs of $17,627.25. Absent any suggestion that those costs were unreasonable, Ms Toy faced potential liability for the entire amount.[45] When ordering reparation of only $3,000, the Judge plainly took account of Ms Toy’s limited financial means. We note in this regard, Mr Hamblett’s submission that animals taken from the farm had value which the SPCA had not accounted for. However, the Crown advised that any net proceeds of sale would be credited to Ms Toy.
[45]Animal Welfare Act, s 173.
In its individual components, and overall, the sentence imposed was not manifestly excessive.
Result
The application to adduce fresh evidence is declined.
The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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