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

VAN DER VEEN v CHRISTCHURCH CITY COUNCIL [2021] NZHC 486 [12 March 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000169[2021] NZHC 486BETWEEN SHANE TONY VAN DER VEENAppellantAND CHRISTCHURCH CITY COUNCILRespondentHearing: 11 March 2021Appearances: Appellant in personP N M Brown for RespondentJudgment: 12 March 2021JUDGMENT OF DUNNINGHAM JThis 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 RegistrarDateIntroduction[1] Shane van der Veen pleaded guilty and was sentenced by Judge Couch forbeing the owner of a dog that attacked a domestic animal on 11 May 2020.1 An orderwas made for the destruction of the dog.21 Dog Control Act 1996, s 57(2).2 As required under s 57(3) of the Dog Control Act.[2] He appeals the conviction. This appeal is advanced in order to save the life ofthe 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. Heran past Mr van der Veen's home. Kyra was unrestrained within the property and ranalong the fence line, barking at the complainant. Kyra did not respond to her owner'scalls to desist. Instead, she pushed through the fence by pushing down the wire meshand slipping between the mesh and the top wire. Kyra latched onto Oakley's rear endand began shaking her head. Mr van der Veen jumped the fence and pulled Kyra offOakley. He knew Kyra could escape through the boundary fence.[5] Mr van der Veen was subsequently charged under s 57 Dog Control Act 1996and appeared in the District Court on 11 May 2020. He was assisted by the dutylawyer. He had already indicated in a letter to the Court that he wanted to plead guiltyto the charge. However, the Judge raised the fact that if the charge was admitted orfound to be proved, then there was a mandatory provision in the Dog Control Actrequiring the Court to make an order for destruction of the dog, unless it is satisfiedthat the circumstances of the offence were exceptional.[6] A discussion ensued about the facts of the offending and the Judge indicatedhe did not consider they disclosed exceptional circumstances, and he commented onthe difficulties of proving exceptional circumstances. The Judge noted that on thebasis of the summary of facts it would appear the attack was "readily avoidable if thefence had been properly maintained, which Mr van der Veen accepted". Followingthis discussion, the duty lawyer took further instructions from Mr van der Veen andconfirmed that a guilty plea could be entered.[7] On entry of the guilty plea, Mr van der Veen was convicted. The Judge thenmade an order for the destruction of Kyra as was required by s 57(3) of theDog 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 thedestruction order, on 1 July 2020.3Grounds of appeal[9] Mr van der Veen filed his own submissions. He submits that if his appealagainst conviction succeeds then the destruction order must be held in abeyance untiland unless he is convicted.[10] Mr van der Veen submits strict liability4 is a limitation on the fundamental rightof the presumption of innocence, and legislation that overrides fundamental rightsmust do so in clear and unambiguous wording. He submits that the Dog Control Actdoes not directly impose strict liability and therefore it should be interpreted in thecontext 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 allreasonable steps" to ensure a dog does not injure, endanger or cause distress to anotherdomestic animal. That, in his submission, only imposes liability if an owner isnegligent.[11] He says he entered his guilty plea on the mistaken assumption that the offencewas 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 convictionappeal following a guilty plea. She submits Mr van der Veen appreciated the caseagainst him, the consequences of pleading guilty and the inevitability of a destructionorder. He made an informed decision to plead guilty. Mr van der Veen also acceptedin 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 liabilityin 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 showthat a miscarriage of justice will result if the conviction is not overturned despite itfollowing his guilty plea.5 Three broad categories of circumstances leading to amiscarriage where a guilty plea was entered were discussed by the Court of Appeal inR v Le Page:6"The first where the appellant did not appreciate the nature of, or did notintend to plead guilty to, a particular charge A further category is where onthe admitted facts the appellant could not in law have been convicted of theoffence charged The third category is where it can be shown that the pleawas induced by a ruling which embodied a wrong decision on a question oflaw."[15] Other possible circumstances include entering a guilty plea following incorrectlegal advice7, a lack of capacity8, an abuse of process9 or a failure by the court toprovide opportunity to vacate a plea when imposing a sentence different to thatindicated.[16] None of these grounds are available to Mr van der Veen. He accepted the factsas alleged, and he was clearly advised the consequence of a guilty plea was that adestruction order would be made. He was also told the facts did not discloseexceptional circumstances, a finding confirmed by this Court on appeal.[17] Even if I had concerns about the circumstances in which his guilty plea wasentered, I am unable to see a miscarriage of justice has resulted, in the sense that adifferent outcome might have been achieved.[18] The Court of Appeal has said the offence under s 57(2) of the Dog Control Actis a strict liability offence and the prosecution is not required to establish any lack of5 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 andMr van der Veen's appeal must fail at this point. Even if the standard required was totake all reasonable steps, Mr van der Veen failed to meet it in that Kyra was allowedto run unrestrained in an inadequately fenced property. Mr van der Veen cannot showthat a different outcome might result if his guilty plea was set aside.[19] I acknowledge Mr van der Veen's perseverance and diligence in advancingthese appeals. He has truly left no stone unturned in his attempts to prevent thedestruction of Kyra. Unfortunately, though, the Courts are bound to apply legislationas enacted by Parliament. That legislation, and the guidance provide on itsinterpretation and application through judicial decisions, make the legal position clear.The facts, which are accepted, show an offence was committed under s 57 of theDog Control Act and the conviction was sound.Conclusion[20] Accordingly, the appeal is dismissed. The conviction stands, as does thesentence.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:Mr Van Der Veen10 Auckland Council v Hill [2020] NZCA 52 at [1].