Van Der Veen v Christchurch City Council

[2021] NZHC 486

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000169

[2021] NZHC 486

BETWEEN

SHANE TONY VAN DER VEEN

Appellant

AND

CHRISTCHURCH CITY COUNCIL

Respondent

Hearing:

11 March 2021

Appearances:

Appellant in person

P N M Brown for Respondent

Judgment:

12 March 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 12 March 2021 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Introduction

[1]    Shane van der Veen pleaded guilty and was sentenced by Judge Couch for being the owner of a dog that attacked a domestic animal on 11 May 2020.1 An order was made for the destruction of the dog.2

1      Dog Control Act 1996, s 57(2).

2      As required under s 57(3) of the Dog Control Act.

VAN DER VEEN v CHRISTCHURCH CITY COUNCIL [2021] NZHC 486 [12 March 2021]

[2]    He appeals the conviction. This appeal is advanced in order to save the life of the dog, Kyra.

Background

[3]Kyra was classified a dangerous dog on or around 15 March 2017.

[4]    On 22 August 2019 the complainant was out running with his dog, Oakley. He ran past Mr van der Veen’s home. Kyra was unrestrained within the property and ran along the fence line, barking at the complainant. Kyra did not respond to her owner’s calls to desist. Instead, she pushed through the fence by pushing down the wire mesh and slipping between the mesh and the top wire. Kyra latched onto Oakley’s rear end and began shaking her head. Mr van der Veen jumped the fence and pulled Kyra off Oakley. He knew Kyra could escape through the boundary fence.

[5]    Mr van der Veen was subsequently charged under s 57 Dog Control Act 1996 and appeared in the District Court on 11 May 2020. He was assisted by the duty lawyer. He had already indicated in a letter to the Court that he wanted to plead guilty to the charge. However, the Judge raised the fact that if the charge was admitted or found to be proved, then there was a mandatory provision in the Dog Control Act requiring the Court to make an order for destruction of the dog, unless it is satisfied that the circumstances of the offence were exceptional.

[6]    A discussion ensued about the facts of the offending and the Judge indicated he did not consider they disclosed exceptional circumstances, and he commented on the difficulties of proving exceptional circumstances. The Judge noted that on the basis of the summary of facts it would appear the attack was “readily avoidable if the fence had been properly maintained, which Mr van der Veen accepted”. Following this discussion, the duty lawyer took further instructions from Mr van der Veen and confirmed that a guilty plea could be entered.

[7]    On entry of the guilty plea, Mr van der Veen was convicted. The Judge then made an order for the destruction of  Kyra  as  was  required  by  s  57(3)  of  the  Dog Control Act. He also sentenced Mr van der Veen to pay a fine of $700 and

$1234.10 for Oakley’s veterinary treatment.

[8]    Mr van der Veen unsuccessfully appealed his sentence, focusing on the destruction order, on 1 July 2020.3

Grounds of appeal

[9]    Mr van der Veen filed his own submissions. He submits that if his appeal against conviction succeeds then the destruction order must be held in abeyance until and unless he is convicted.

[10]   Mr van der Veen submits strict liability4 is a limitation on the fundamental right of the presumption of innocence, and legislation that overrides fundamental rights must do so in clear and unambiguous wording. He submits that the Dog Control Act does not directly impose strict liability and therefore it should be interpreted in the context of its objects and obligations as expressed by Parliament. He refers to s 5(1)(a) of the Dog Control Act which imposes on dog owners the obligation to “take all reasonable steps” to ensure a dog does not injure, endanger or cause distress to another domestic animal. That, in his submission, only imposes liability if an owner is negligent.

[11]   He says he entered his guilty plea on the mistaken assumption that the offence was a strict liability offence when that was not the case. If his conviction is unsafe, and set aside, he argues that logically, the destruction order must also be set aside.

Respondent’s submissions

[12]   Ms Brown, for the respondent, referred me to the authorities on a conviction appeal following a guilty plea. She submits Mr van der Veen appreciated the case against him, the consequences of pleading guilty and the inevitability of a destruction order. He made an informed decision to plead guilty. Mr van der Veen also accepted in open court there were no exceptional circumstances relevant to the attack.

3      van der Veen v Christchurch City Council [2020] NZHC 1534.

4      He uses the words “absolute liability” but I take this phrase to be synonymous with strict liability in the context of these submissions.

[13]   There was therefore no grounds for vacating the guilty plea and the conviction, with its inevitable consequences, must stand.

Analysis

[14]   The only basis on which his appeal can succeed is if Mr van der Veen can show that a miscarriage of justice will result if the conviction is not overturned despite it following his guilty plea.5 Three broad categories of circumstances leading to a miscarriage where a guilty plea was entered were discussed by the Court of Appeal in R v Le Page:6

“…The first where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge … A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged … The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law.”

[15]   Other possible circumstances include entering a guilty plea following incorrect legal advice7, a lack of capacity8, an abuse of process9 or a failure by the court to provide opportunity to vacate a plea when imposing a sentence different to that indicated.

[16]   None of these grounds are available to Mr van der Veen. He accepted the facts as alleged, and he was clearly advised the consequence of a guilty plea was that a destruction order would be made. He was also told the facts did not disclose exceptional circumstances, a finding confirmed by this Court on appeal.

[17]   Even if I had concerns about the circumstances in which his guilty plea was entered, I am unable to see a miscarriage of justice has resulted, in the sense that a different outcome might have been achieved.

[18]   The Court of Appeal has said the offence under s 57(2) of the Dog Control Act is a strict liability offence and the prosecution is not required to establish any lack of

5      R v Proctor [2007] NZCA 289 at [4].

6      R v Le Page [2005] 2 NZLR 845 at [17-19].

7      Watts v R [2011] NZCA 41.

8      Gardiner v Levin District Court HC Palmerston North CIV-2006-454-630, 24 November 2006.

9      Wilson v R [2015] NZSC 189 at [104].

care  on  the  part  of  the  owner.10  That  decision  is  binding  on  this  court  and  Mr van der Veen’s appeal must fail at this point. Even if the standard required was to take all reasonable steps, Mr van der Veen failed to meet it in that Kyra was allowed to run unrestrained in an inadequately fenced property. Mr van der Veen cannot show that a different outcome might result if his guilty plea was set aside.

[19]   I acknowledge Mr van der Veen’s perseverance and diligence in advancing these appeals. He has truly left no stone unturned in his attempts to prevent the destruction of Kyra. Unfortunately, though, the Courts are bound to apply legislation as enacted by Parliament. That legislation, and the guidance provide on its interpretation and application through judicial decisions, make the legal position clear. The facts, which are accepted, show an offence was committed under s 57 of the  Dog Control Act and the conviction was sound.

Conclusion

[20]   Accordingly, the appeal is dismissed. The conviction stands, as does the sentence.

Solicitors:
Raymond Donnelly & Co., Christchurch

Copy To:

Mr Van Der Veen

10     Auckland Council v Hill [2020] NZCA 52 at [1].