Leatinutu v Auckland Council
[2013] NZHC 3489
•19 December 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000224 [2013] NZHC 3489
BETWEEN SINA LEATINU'U Appellant
ANDAUCKLAND COUNCIL Respondent
Hearing: 17 December 2013
Appearances: V Letele for Appellant
V J Tamatea for Respondent
Judgment: 19 December 2013
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 19 December 2013 at 3.30 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date………………………
LEATINU'U v AUCKLAND COUNCIL [2013] NZHC 3489 [19 December 2013]
Introduction
[1] Following a trial before Judge Andree Wiltens in the District Court at
Manukau, Sina Leatinu’u was convicted of owning a dog that attacked a person.1
The charge arose from an incident in which a dog that Mrs Leatinu’u’s husband had taken in as a stray a few months before bit a12 year old boy. The offence carries a maximum sentence of a fine not exceeding $3,000. The Judge determined that convicting Mrs Leatinu’u was a sufficient sentence, and she was discharged without further penalty.2
[2] Mrs Leatinu’u appeals against her conviction. In her notice of appeal, Mrs Leatinu’u asserted that the Judge made the following errors:
(a) Refused her an adjournment on the day of the trial following the withdrawal of her counsel;
(b) Finding that she was an “owner” for the purposes of the Act; and
(c) Not considering a discharge without conviction under s 106
Sentencing Act 2002 (“Sentencing Act”).
[3] At the appeal Ms Letele, for Mrs Leatinu’u limited her grounds to the Judge’s failure to consider a s 106 discharge. That ground overlaps with the Judge’s refusal to grant an adjournment. The Crown does not oppose the appeal brought on this ground.
[4] Ms Letele sought leave to adduce further evidence. She did not have an affidavit but did seek to produce a signed statement by Ms Leatinu’u and an email from the Manukau Institute of Technology. There was no opposition to the evidence being tendered in that form and, having considered Mrs Leatinu’u’s circumstances explained by Ms Letele, I accepted the evidence in that form.
[5] On an appeal against conviction in a Judge-alone trial, this Court is required to consider whether the trial Judge erred in his or her assessment of the evidence to
such an extent that a miscarriage of justice has occurred.3 An appeal against
1 Sections 57(1)(a) and 57(2) Dog Control Act 1996.
2 Auckland City Council v Leatinu’u DC Manukau CRI-2012-092-013378, 5 August 2013.
3 Criminal Procedure Act 2011, s 232(2)(b) and (4).
conviction is a general appeal. The appellate Court is to make its own assessment of and form its own opinion on the facts.4 In coming to its own judgment, the appeal court should pay appropriate deference to findings made by a Judge who had the advantage of hearing the witnesses on questions of credibility, but it must nevertheless review the evidential basis for factual findings carefully.5
What happened in the District Court
[6] Mrs Leatinu’u had been expecting a lawyer from Otara Community Law Centre to appear for her, but the lawyer withdrew on the day of the hearing. There was no evidence as to the reason. Mrs Leatinu’u did receive some assistance from the duty lawyer prior to the hearing, but she was then left alone to conduct the hearing herself. In her statement she explained that she felt nervous and confused. She did not know what to do.
[7] There is no record of Mrs Leatinu’u applying for an adjournment but Mr Tamatea, for the Crown, did not challenge her assertion that she sought an adjournment so that she could obtain representation and was refused.
[8] The Crown case comprised the Dog Control Officer’s evidence of attending the scene, taking photographs (which were produced) of the boy concerned and speaking to Mrs Leatinu’u. The photograph showed a single puncture wound and some bruising. The boy did not give evidence. The only evidence about the incident came from what Mrs Leatinu’u reportedly said to the officer, which was that:
... the dog had jumped the fence of the property, jumped into her car, she didn’t want it in the car so she let it out. The dog went up to the boy that was on the statement, she thought it was just going to play with him because the boy has patted the dog before in the past, but then it bit him.
[9] Mrs Leatinu’u had no effective cross-examination. She called her husband as a witness. He said that the dog had been a stray that his wife did not want but that he did want and he kept it. The reason he wanted to keep it was to deter burglars because he worked long hours. He said that the dog had lived at the property for two
or three months.
4 Austin, Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR 141 at [16].
5 O’Neill v Police HC Auckland CRI-2007-404-405, 9 October 2008 at [5].
[10] The Judge made short work of the matter, finding that:
Well, unfortunately even though your husband says it is his dog, the fact remains that you were in “possession” of the dog at the time that it attacked the young boy and under the definition of the Act, that means that you were in the position of an owner of the dog.
[11] Given the evidence Ms Letele was right not to challenge the Judge’s finding that the offence had been proved. It is not likely that even if Ms Leatinu’u had been represented, the outcome would have been different.
[12] The Judge proceeded to convict Mrs Leatinu’u and sentenced her as follows:
...well, you are discharged without penalty; the conviction by itself is sufficient.
Did the Judge make errors in proceeding with the trial and in not considering a discharge without conviction?
[13] Section 11(1) of the Sentencing Act 2002 provides:
If a person who is charged with an offence is found guilty, or pleads guilty, before entering a conviction and imposing a sentence the Court must consider whether the offender would be more appropriately dealt with by –
(a) discharging the offender without conviction under s 106; or
(b) convicting and discharging the offender under s 108; or
(c) convicting the offender and ordering the offender, under s 110, to come up for sentence if called on.
[14] Mrs Leatinu’u was not asked to and did not make any submissions as to sentence. There is no indication in the sentencing notes or the notes of evidence whether the Judge considered the possibility of a discharge without conviction under ss 106 as required by s 11. Given the lack of any reference to it and the absence of any reference to factors that might have been relevant to consideration of it, I must assume that no consideration was given to the possibility of a discharge without conviction. It can reasonably be assumed that if Mrs Leatinu’u had been represented the issue would have been raised.
[15] Where counsel withdraws at a late stage, such as happened here, the right to a fair trial usually requires the Judge to allow an adjournment to seek further advice. In R v Pue the Court of Appeal considered that in such circumstances:6
If the trial proceeds with the defendant unrepresented and the outcome is a conviction the ultimate question on appeal will always be whether the way in which the trial judge dealt with the situation gives rise to a substantial possibility of there having been a miscarriage of justice.
[16] In this case, I consider that it was an error on the Judge’s part to proceed without allowing Mrs Leatinu’u the chance to obtain replacement counsel. Had Mrs Leatinu’u been represented the question of a discharge without conviction would, or should, have been raised. For the reasons I consider next, I am satisfied that this is a case in which a discharge without conviction would properly have been granted.
[17] Under s 106 the Court may discharge an offender without conviction. However, s 107 provides that the Court must not do so unless satisfied that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.” The correct approach is to consider, first, the gravity of the offence, secondly, the consequences of conviction and, thirdly, whether those
consequences would be out of all proportion to the gravity of the offence.7
[18] In considering the gravity of the offence, the Court should consider all aggravating and mitigating factors relating to both the offending and the offender. Ms Leatinu’u’s counsel submits that the gravity of the offending was low. At the time the incident occurred Mrs Leatinu’u was sitting in her car outside her property. The dog jumped over the fence and entered the vehicle. Ms Leatinu’u let it out and the attack occurred almost immediately. The victim suffered puncture wounds and bruises, was taken to the Manukau Medical Centre and received a tetanus injection. So Mrs Leatinu’u was not directly involved, the attack was not prolonged and the injuries not serious. Secondly, Mrs Leatinu’u was cooperative, pleaded guilty at a
very early stage and was obviously remorseful.
6 R v Pue CA 78/04 19 May 2005
7 Z v R [2012] NZCA 599.
[19] The dog should have been more securely contained. But looking at the circumstances overall, I consider the gravity of Ms Leatinu’u’s offending to be only low to moderate.
[20] The consequences of conviction addressed by Ms Leatinu’u’s counsel related mainly to her employment prospects. In her statement Ms Leatinu’u explained that she is studying fulltime toward a bachelor of applied social work and she is close to completing the degree. She was to be put into a placement earlier in March or April
2013 as part of that degree but because a police check disclosed that she had a “conviction pending” she was told that the placement would be put on hold until the outcome of the court process. The email from Mr Nuia-Tofa, the Practicum Co- ordinator, confirmed that and noted that Mrs Leatinu’u would need to write to the Programme Committee to consider her situation, which may affect the practicum paper.
[21] Many applications for discharges without conviction are based on the possibility of repercussions from a conviction. In this case, there has been an actual consequence, in the form of delay in Mrs Leatinu’u being able to complete her degree. I am satisfied, too, that a conviction is likely to have ongoing repercussions in terms of her future employment.
[22] Mrs Leatinu’u is 48 years old. She has no previous convictions of any kind. She has made a significant effort to return to education at a late stage in her life. I consider that this conviction has and will continue to have consequences that would be out of all proportion to the gravity of the offence.
Result
[23] The appeal is allowed. The conviction is quashed. There will be an order
under s 106 that Mrs Leatinu’u is discharged without conviction.
P Courtney J
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