Solicitor-General v Maipi
[2021] NZHC 2434
•16 September 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-300
[2021] NZHC 2434
BETWEEN SOLICITOR-GENERAL
Appellant
AND
ROSEZANA MAIPI
Respondent
Hearing: 13 September 2021 Appearances:
M Davie for the Appellant L Deane for the Respondent
Judgment:
16 September 2021
JUDGMENT OF GORDON J
This judgment was delivered by me on 16 September at 3 pm
Registrar/Deputy Registrar Date:
Solicitors: Crown Law, Wellington
Public Defence Service, Auckland
SOLICITOR-GENERAL v MAIPI [2021] NZHC 2434 [16 September 2021]
Introduction
[1] The respondent, Rosezana Maipi, was sentenced in the District Court at Auckland on 24 May 2021 on one charge under s 58 of the Dog Control Act 1996 (the Act) of being an owner of a dog which caused serious injury to a person.1 The dog, Pumba, took a large piece of flesh out of the victim’s cheek, putting her in hospital for four days.
[2] Ms Maipi pleaded guilty to the charge five minutes before the jury in her trial was due to be empanelled. She did not appear at her sentencing hearing and was not sentenced until over one year later. Judge A S Singh made an order for the destruction of the dog and ordered reparation to the victim.
[3] The Solicitor-General appeals the sentence on the basis that the Judge erred in his approach to sentencing and imposed a manifestly inadequate sentence.
[4] Ms Maipi opposes the appeal and says that despite some errors in the construction of the sentence, the end sentence is not manifestly inadequate.
[5] In determining whether the sentence is manifestly inadequate, the issue comes down to whether something more than reparation is required.
The offending
[6] Pumba was a Staffordshire Bull Terrier. Ms Maipi’s son was his owner and the dog lived with Ms Maipi and her son at her property in Warkworth. On a previous occasion towards the end of 2017, a man was at Ms Maipi’s address. At that time, Pumba was chained up. Pumba approached the man, who tried to pat him. The dog then lunged at the man and tried to bite his hand. The man was able to get out of Pumba’s reach, as the chain prevented the dog from biting him. The man commented to Ms Maipi to the effect that “your dog almost got me there”. Ms Maipi responded that the dog did not like big people.
1 R v Rosezana Maipi [2021] NZDC 10101.
[7] The events that gave rise to the charge occurred on the morning of 20 January 2018. The victim was known to Ms Maipi and drove to her address for a pre-arranged visit. She was met by Ms Maipi at the gate of the property. They walked together down the driveway to the back of the property. Ms Maipi’s son was not present at the time. Ms Maipi told the victim to wait while she went inside to get some wine glasses. The victim waited by the back door near the dog, which was chained up, and at that point out of reach of the victim. The victim had interacted with the dog on three previous occasions when she had patted the dog without incident.
[8] After Ms Maipi went inside, the victim took a few steps towards the dog and went to pat it on the head. After she had patted the dog on top of its head a few times, without any warning the dog jumped up, put his front paws on the victim’s body and bit her on the left cheek causing a large wound. The dog then jumped down and walked off calmly. The victim realised she was hurt when she put her hand up to her face and saw a lot of blood on her hand.
[9] At that point, Ms Maipi came outside and saw what had happened. She ran back inside to get a towel to put over the victim’s face to stop the bleeding. Ms Maipi then took the victim back to the victim’s car and drove her to the Warkworth Medical Centre where she received initial first aid.
[10] The victim was then taken by ambulance to Middlemore Hospital for surgery and was in hospital for four days. She had to take three weeks off work. In her victim impact statement, she said she had become wary of dogs and was scared of barking dogs. She experienced difficulty sleeping and was prescribed anxiety medication.
The sentence
[11] The sentencing decision is nine paragraphs long. The Judge does not identify a starting point, nor does he cite any authority. The Judge ordered: the destruction of the dog; reparation of $1,888.50 for the victim’s medical expenses, loss of income and the cost of taking an ambulance to hospital; and $500 for emotional harm.
[12] The Judge recorded that he had taken into account the purposes and principles of sentencing, but did not identify any particular purposes and principles. The Judge
accepted the prosecution’s submission that the prior incident in 2017 was an aggravating factor, but did not accept the prosecution’s submission that an electronically-monitored sentence would be appropriate. Nor did he accept the prosecution’s alternative submission of a sentence of community work. The Judge said:2
[7] … Since no further offending has taken place after this particular offending, I am persuaded not to impose any further punitive sentence as I find that the destruction order for the dog in itself is punitive enough, especially for your son. It is important that the victim gets properly compensated, both for the actual loss she has suffered as well as in emotional reparation.
Section 58
[13] Section 58 creates an offence punishable by a maximum period of three years’ imprisonment or a fine not exceeding $20,000, or both, for the owner of any dog that attacks any person or any protected wildlife and causes serious injury to any person, or the death of any protected wildlife. Section 58 is one of only two provisions in the Act to provide for a term of imprisonment.3 It follows, as Downs J said in Shepherd v Auckland Council, that the Legislature has identified dog attacks as deserving particular sanction.4
[14] The maximum penalty for an offence under s 58 had been three months’ imprisonment. However, from 1 December 2003, the maximum penalty was increased from three months to three years’ imprisonment, a 12-fold increase.5 In Day v Manukau City Council, Frater J said:6
[55] … the Hon Chris Carter, Minister for Local Government, speaking in support of the third reading of the Dog Control Amendment Bill NZPD 13 November 2003 said that the increased penalties for an offence under s 58:
“will send a very strong signal that owners must take care to make sure their dogs cannot do serious harm.”
2 R v Rosezana Maipi, above n 1, at [7].
3 The other provision is s 54 which creates an offence for a dog owner who fails to provide proper care for the dog. An offence under s 54 is punishable by a maximum term of imprisonment of three months, or a fine of $5,000.
4 Shepherd v Auckland Council [2017] NZHC 1660 at [18].
5 Dog Control Amendment Act 2003, s 37.
6 Day v Manukau City Council HC Auckland CRI-2004-092-3996, 1 July 2005 at [55].
[56] However, while the policy of Parliament, and public concern, are obviously very important considerations in determining appropriate sentences in this area (see R v Spartalis [1979] 2 NZLR 265, 267 and R v A [1994] 2 NZLR 129,131), they are not the only considerations.
[57]As Priestley J remarked in Owen:
“All sentences must be imposed in accordance with the Sentencing Act 2002.”
[58] Under that Act deterrence is only one factor to be taken into account. The hierarchy of penalties must still be considered, as must the circumstances of the offence and those of the offender.
[15]Also in this Court, in Campbell v Police, Gendall J said:7
Deterrence, both of the offender, but more in particular of others who may choose to keep breeds of dogs which are dangerous to the public, and which they know are dangerous, is crucial if the public are to be protected. If people want to own and keep this sort of animal, whether classified as dangerous or not, and whether as a status symbol or a statement or a badge, then they are entitled to do so. But the law places upon them a very high obligation, and those who possess dangerous dogs must know that if they escape from secure custody so as to cause serious injury in terms of s 58, then imprisonment may well follow.
Grounds of appeal
[16] Mr Davie, for the Solicitor-General, submits that the District Court Judge made a number of errors:
(a)The Judge failed to follow orthodox sentencing methodology setting a starting point and then adjusting it for personal aggravating and mitigating characteristics, without explaining the reason for the departure;8
(b)The Judge failed to take into account, as an aggravating feature, Ms Maipi’s decision to abscond prior to sentencing;
(c)The Judge failed to identify that deterrence was a purpose of sentencing, or, if the Judge did identify deterrence as a purpose, he erred
7 Campbell v Police HC Whanganui CRI-2008-483-13, 9 June 2008 at [23].
8 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46]. “A two-step methodology should be used …”.
by failing to impose a punitive sentence. Reparation is not punitive. The Judge was wrong in saying that the order for the destruction of the dog was punitive; 9 and
(d)The Judge referred to Ms Maipi’s employment at a petrol station. To the extent this played a part in the Judge’s decision not to impose a community-based sentence, this was an error.
[17] Mr Davie submits, as a consequence, and in any event, the sentence was manifestly inadequate.
Respondent’s response
[18]In response, Ms Deane, for Ms Maipi, submits:
(a)Although the Judge did not use orthodox sentencing methodology, and there is no reference to the delay caused by Ms Maipi’s failure to appear, neither of those errors is fatal because they did not lead to a manifestly inadequate end sentence;
(b)The Judge referred to “the purposes and principles of sentencing”.10 The Judge therefore turned his mind to deterrence even if that was not expressly stated. Deterrence is but one of a number of purposes and principles of sentencing;
(c)The respondent accepts that the Judge’s view that the destruction of Pumba was punitive is, at law, incorrect. It is also accepted, at law, reparation is not considered punitive. However, in a practical sense, both of those matters have a significant effect on Ms Maipi. The lack of a clear punitive element does not constitute an error. It was open to the Judge to focus on other purposes and principles of sentencing; and
9 Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603 at [66].
10 R v Rosezana Maipi, above n 1, at [8].
(d)The Judge’s reference to Ms Maipi’s employment was said in the context of the Judge considering that a community-based sentence would delay Ms Maipi’s ability to pay the victim the reparation ordered.
Discussion
[19] On appeal the Court focuses on the end result rather than the process by which the sentence was reached.11 However, given the acceptance on behalf of the respondent that the Judge did not follow orthodox sentencing methodology, I will test the end sentence by applying the correct process but bearing in mind that sentencing is a discretionary exercise.
[20] There are also principles to be borne in mind that are applicable to a Solicitor-General appeal against sentence. A Court will only increase a sentence on a Solicitor-General appeal where it is clear that the sentence is manifestly inadequate, even after taking due consideration of a sentencing Judge’s right to exercise mercy in appropriate cases, and responsibility, where appropriate, to promote the offender’s rehabilitation.12 When an appeal is allowed, the Court will only increase the sentence to the lowest level available.13
[21] In this case, counsel for the Solicitor-General submits the least restrictive sentence which is appropriate is community detention in the range of four to six months combined with community work.
Starting point
[22] The submission for the prosecution in the District Court and again for the Solicitor-General in this Court is that the starting point should have been between six and nine months’ imprisonment. Mr Davie refers to two decisions of this Court, which he says support such a starting point. Both of those decisions helpfully discuss a number of other decisions of this Court involving appeals against sentence where the appellant had been charged under s 58.
11 Kumar v R [2015] NZCA 460 at [81] citing Kahui v R [2013] NZCA 124 at [25]; and Houston v R [2013] NZCA 581 at [11].
12 R v Donaldson (1997) 14 CRNZ 537 (CA) at 549–550.
13 R v Xie [2007] 2 NZLR 240 (CA) at [31], citing R v Urlich [1981] 1 NZLR 310 (CA) at 311.
[23] Ms Deane submits a starting point of around six months’ imprisonment is appropriate.
[24] In Campbell v Police,14 the appellant’s dog escaped her property and attacked a young girl. The Judge on appeal did not describe the injuries. He recorded the defence submission that the injuries were “relatively minor”.15 However, while the Judge appeared to accept that characterisation of the injuries, he also noted that s 58 refers to causing “serious injury”.16 After the attack the appellant made efforts to conceal the dog. The dog had previously been classified as a dangerous dog, not because it had bitten anyone, but apparently because it had been in the company of another dog where an attack had taken place. On appeal, the High Court held that a starting point of no more than four months’ imprisonment was appropriate.17
[25] Mr Davie submits that the offending in this case is more serious than in Campbell, as the injuries to the victim in this case are more serious and the 2017 incident is an aggravating factor. Ms Deane submits that the circumstances of Campbell are more serious due to the vulnerability of the young victim and because the incident occurred when the dog escaped its property and was unrestrained in a public place. She submits the offending was further aggravated by the dog’s previous classification. However, Ms Deane does accept that the injuries in the present case appear to be more serious.
[26] In Dwyer v South Taranaki District Council,18 the appellant’s dog attacked three adult visitors to the appellant’s property where the dog was secured by a leash but which was long enough to enable the dog to roam the back yard and also to obtain access to virtually all parts of the house. The male victim sustained injuries to his arm, which required surgery. The female victim sustained injuries to her foot and was in hospital for two days. The appellant did not cooperate with the police and released the dog onto the road and put it over a fence. The dog was classified as a menacing
14 Campbell v Police, above n 7.
15 At [10].
16 At [10].
17 At [21].
18 Dwyer v South Taranaki District Council [2012] NZHC 3580.
dog. On appeal, the High Court held that a starting point of eight months’ imprisonment was appropriate.19
[27] Mr Davie submits the offending in this case is comparable to that in Dwyer. He says while in Dwyer there were two charges, the injuries to the victims sustained to their arm and leg respectively, were less serious than the present case involving an injury to the victim’s face, and requiring four days in hospital. Ms Deane submits that the offending in Dwyer is more serious as it involved two charges, three victims and because Mr Dwyer’s conduct towards authorities following the incident was threatening and uncooperative.
[28] I accept Ms Deane’s submission that in Campbell, the factors of: the dog having escaped from the property and being unrestrained in a public place; and the vulnerability of the young victim make the offending more serious than in the instant case. On the other hand, in the instant case the injuries to the victim were more serious and the event in 2017 was an aggravating factor.
[29] In relation to Dwyer, I also accept Ms Deane’s submission that the offending in that case was more serious because of the three victims and the appellant’s behaviour after the attack. I consider an appropriate starting point in this case, based on Campbell and Dwyer and the other cases discussed in Campbell and Dwyer, would have been six months’ imprisonment.
Uplift for personal aggravating features
[30] Mr Davie submits an uplift of one to two months is appropriate to recognise Ms Maipi’s decision to abscond, which required the adjournment of sentencing on 21 January 2020, so that the sentencing did not take place at all in 2020.
[31] Ms Deane submits that a two month uplift for Ms Maipi’s failure to appear is disproportionately high when compared to a modest starting point. She also suggests there is no evidence to establish Ms Maipi was actively avoiding Police. Rather, it was a failure to appear. She submits that the maximum uplift should be one month. I
19 At [28].
agree with Ms Deane that a one month uplift would have been appropriate when account is taken of both the starting point and the failure to appear (as opposed to actual absconding).
Discount for personal mitigating features
[32] Mr Davie submits that Ms Maipi is not entitled to a discount for prior good character. Ms Deane accepts that.
[33] As to remorse, Mr Davie submits that Ms Maipi’s decision to abscond and her comments to the pre-sentence report writer are inconsistent with a claim to remorse.
[34] Ms Deane submits that Ms Maipi’s comments to the pre-sentence report writer about the victim being intoxicated were made to explain the dog’s background, that is that the previous owner had warned them that the dog did not like intoxicated people. She submits it was not victim blaming. She submits that the assistance Ms Maipi provided to the victim after the incident supports a discount for remorse.
[35] I do not accept that submission. First, it is not uncommon for an offender to render assistance following an attack in such a case. Such assistance is not necessarily an indication of remorse. But more significantly, Ms Maipi’s actions in failing to appear for over a year before sentence are inconsistent with a suggestion of remorse.
[36] Finally, on the discount for a guilty plea, Ms Deane submits a discount of 10 per cent for personal mitigating factors, including the guilty plea, is appropriate. It follows from that submission that Ms Maipi must accept that something less than 10 per cent is appropriate for a guilty plea (given that she includes remorse as a mitigating factor).
[37] Mr Davie submits the discount for a guilty plea should have been at the low end, no more than five per cent.
[38] I accept that submission. First, the guilty plea was entered only on the morning of the trial, immediately before the jury was to be empanelled. The second reason is
the strength of the Crown case.20 Under s 58, all that the Crown is required to prove is: that Ms Maipi was the dog’s owner;21 the dog attacked the victim; and this caused serious injury to the victim. Section 58 of the Act does not have a mens rea element.22
Notional sentence of imprisonment
[39] On the above analysis, the Judge should have reached a notional sentence of six and a half months’ imprisonment.
Type of sentence
[40] The characterisation of sentencing as discretionary recognises that to reach the end result, the sentencing Court must balance a number of sometimes conflicting considerations and that the range of outcomes within which reasonable disagreement is possible can be wide.23 It follows that it is open to a sentencing judge to emphasise particular principles and purposes of sentencing. However, in emphasising reparation, that does not mean the Judge may overlook other principles that are important in relation to a particular statutory provision. Rather, the issue is one of balancing the various considerations. Section 58 is an expression of society’s concern at the serious consequences of dog attacks.24 The primary purpose of the provision is to protect the public and deterrence is crucial.25
[41] The Judge should have reflected on these purposes. He should have expressly identified that community protection and deterrence were purposes of sentencing in a sentence under s 58. The Judge should then have gone on to consider whether there was anything in the circumstances of the offending or the offender that meant that community protection and deterrence could assume lesser importance in this case. Ms Deane makes a submission that the Judge appropriately focused on reparation. In this context she submits the Judge’s comment noting that Ms Maipi was about to start a new job at a service station which would require her to work long hours, were not said because the Judge considered home detention or community detention would
20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].
21 An expansive definition of “owner” is set out at s 2 of the Act.
22 Shepherd v Auckland Council, above n 4.
23 Kumar v R, above n 11, at [81].
24 McKenzie v Auckland City Council HC Auckland CRI-2006-404-343, 6 December 2006 at [25].
25 Campbell v Police, above n 7, at [23].
make it difficult for her to work, but because a community-based sentence would be counter-productive, in that it would delay or impair the payment of reparation to the victim. Ms Deane submits that was a fair position for the Judge to take focusing on the practical realities.
[42] I do not accept that submission. I do not consider that reparation for the victim, which is of course important, means that community protection and deterrence should assume less importance. The Courts routinely impose sentences of community detention and community work on people who hold employment. R v Hona is an example of a sentencing decision in this Court where the Judge took account of the pre-sentence report which noted that a sentence of home detention would mean that the defendant would lose his employment.26 The Judge accepted the suggestion in the pre-sentence report of a combination of community detention, community work and supervision, accepting that such a sentence would enable the defendant to continue working.
[43] I do not accept that a sentence in this case of community detention and community work would have impacted on Ms Maipi’s ability to make reparation to the victim. The Judge should therefore have gone on to impose a sentence incorporating a punitive and deterrent aspect.
[44] In Shepherd v Auckland City Council,27 in a schedule to his judgment, Downs J compiled a table of sentences imposed for offending against s 58 of the Act. In only two of the decisions did the sentencing Court or the High Court, on appeal, impose a sentence less restrictive than community work. The first, Georgiou v Police,28 pre-dates the increase in penalty in 2003. In Button v Auckland Council,29 it appears that the offence was under s 57(2) of the Act, which is a fine-only offence. It is apparent from the schedule that the Court’s ordinary response to offending against s 58 of the Act is imprisonment, home detention or community work.
26 R v Hona [2014] NZHC 12 at [19].
27 Shepherd v Auckland City Council, above n 4.
28 Georgiou v Police HC Wellington, AP89/97, 21 May 1997.
29 Button v Auckland Council [2014] NZHC 477.
[45] Ms Deane refers to a further case, Auckland Council v Lauluai,30 where a District Court Judge ordered only destruction of the dog and emotional harm reparation of $2,000. However, the focus of the decision, save for the last paragraph, was on whether “exceptional circumstances” existed so that the destruction of the dog was not warranted. The Judge addressed sentence in only one paragraph of his judgment without citing any authorities.
[46] I accept that there is a material error in the sentence imposed by the Judge. The Judge was incorrect in his view that the order for the destruction of the dog was the punitive element of the sentence and he failed to consider deterrence. The end result was a sentence that was manifestly inadequate.
[47] Where the Court on appeal considers a different sentence should have been imposed, the Court will normally substitute its own opinion for that of the sentencing Judge. Having regard to the cases referred to, I consider a sentence of community detention of four months combined with community work would have been the appropriate sentence together with the other orders made by the Judge. A less restrictive outcome would not be adequate to send a deterrent message in light of the gravity of the offending. A less restrictive outcome would also not reflect Ms Maipi’s culpability, which can be seen in the notional sentence of six and a half months’ imprisonment.
[48] But there is a difficulty with imposing a sentence of community detention. One of the three occupants of Ms Maipi’s address (it is not clear if that is her brother or her son) would not speak to Probation regarding Ms Maipi completing an electronically- monitored sentence at the address. In those circumstances, the Court cannot impose a sentence of community detention.31
[49] The Court is therefore left with a sentence of community work. The maximum number of hours that may be imposed is 400 hours.32 I will impose the maximum number of hours because the least restrictive sentence, which I consider is appropriate,
30 Auckland Council v Lauluai [2017] NZDC 17926.
31 Sentencing Act 2002, s 69C(2)(a)(ii).
32 Section 55(2).
namely four months’ community detention combined with community work, is not available to the Court.
Result
[50] I allow the appeal and impose a sentence of 400 hours community work together with the other orders made by the District Court Judge. Ms Maipi’s sentence is:
(a)400 hours community work;
(b)Reparation of $1,888.50 to the victim;
(c)Emotional harm reparation of $500 to the victim; and
(d)Order for destruction of the dog.
Gordon J
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