The Supreme Court on ‘exceptional circumstances’ in the Dog Control Act 1996 – Sharma v Auckland Council [2024] NZSC 141

Posted on October 30, 2024 by Vernon Tava

Introduction

Since the 2020 Court of Appeal decision of Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603, the law has been settled that convictions under section 57 of the Dog Control Act 1996 will result in mandatory destruction orders (i.e. the dog will be killed) upon conviction unless there were “exceptional circumstances of the offence” (s 57(3)) and that those exceptional circumstances will be narrowly construed. An exception can be made if the owner is granted a discharge without conviction.

This post will discuss a recent Supreme Court decision, Sharma v Auckland Council [2024] NZSC 141, appealing a dismissal of the High Court appeal in this matter, considering “exceptional circumstances of the offence.”

The facts of the case are that Mr Sharma’s dog, Kaiser, and his other dog, Shady, got out of the appellant’s property late in the day in question because the garage door was left open. The complainant and his dog, Mary, were out for a walk. Mary was on a leash. The appellant’s two dogs ran towards the complainant and his dog. Kaiser bit and latched onto Mary. The complainant went to pick up Mary and he too was bitten. Mary received puncture wounds requiring vet treatment and stitches to the main wound area. The complainant had two wounds and required hospital treatment. Mr Sharma was convicted and a destruction order made.

Mr Sharma appealed to the High Court against the order made in the District Court. The High Court dismissed the appeal. The Court of Appeal declined leave to appeal so the appellant sought leave to appeal the High Court decision directly to the Supreme Court. The Supreme Court declined leave to appeal on the basis that the facts of this case meant that it had insufficient prospects of success to justify it being a vehicle to consider the wider issue of what constitutes ‘exceptional circumstances’. The Court does, however, provide a useful summary of the area on the way through.

Auckland Council v Hill [2020] NZCA 52: ‘exceptional circumstances’

The Court of Appeal decision of Auckland Council v Hill [2020] NZCA 52 (“Hill“) sets a very high bar of ‘exceptional circumstances’ to avoid a dog destruction order issuing following a conviction for some offences against the Dog Control Act 1996. Hill is clear that nothing that happens before or after the attack is relevant to the Court’s decision to order destruction:

[9] Circumstances that were not exceptional at the time the attack occurred cannot become exceptional as a result of post-attack events. If there was nothing exceptional about the circumstances of the attack when they occurred – nothing out of the ordinary which can be identified as a relevant factor in the attack – the s 57(3) exception does not apply. In particular, assurances given by the dog owner about the future management and control of the dog are not relevant to the s 57(3) inquiry.

Two examples are given by the Court of Appeal of what may count as exceptional circumstances:

[76] … the owner of dog A was rushed or attacked by dog B, and dog A attacked dog B in order to protect its owner.

[…]

[84] … If the circumstances of the attack are exceptional, in the sense that the dog can properly be seen as not intrinsically dangerous – for example where the dog’s owner was under attack, or where the dog was provoked – then a court may be satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

So, the two most likely instances contemplated appear to be:

  1. a dog comes to the defence of its owner; or
  2. a dog is provoked

But these are not claimed to be exclusive categories so some other unusual fact situations may yet suffice as “exceptional circumstances of the offence.”

High Court – Sharma v Auckland Council [2023] NZHC 1755

The appellant relied on the following circumstances in arguing that a destruction order should not be made:

(a) Mrs Sharma was [very] sick that day;

(b) Mrs Sharma was unable to walk Kaiser that day;

(c) Kaiser could not go to doggy daycare;

(d) Kaiser’s dog walker was unavailable that day to walk Kaiser;

(e) Kaiser was not walked at all, when normally he is walked twice a day;

(f) Kaiser was confined in the house all day;

(g) Mr Sharma was stuck at their cafe business as he was understaffed and could not walk Kaiser or take Mrs Sharma to the hospital or doctors;

(h) Mrs Sharma forgot to shut the internal garage door and does not even recall how or when it was opened;

(i) it was raining and dark which meant Kaiser could not hear Mrs Sharma;

(j) when the garage door opened, Kaiser immediately ran out and found Mary and the complainant, rushed to Mary to play, but Mary became frightened because of his size, resulting in the “play gone wrong” and injuries; and

(k) the complainant, who was walking Mary, had earphones and a hoodie on and could not really see through the rain and the dark. He tried to pick up his dog, Mary, during the “play gone wrong” and was bitten by Mary, not Kaiser.

The respondent, Auckland Council, did not accept that there was any evidence that Mary, not Kaiser, bit her owner.

Applying Hill, O’Gorman J in the High Court said that to qualify as “exceptional circumstances of the offence,” the relevant events (at [37]):

… must form a proximate part of the attack, such as where the victim attacks the dog or its owner in the immediate lead-up. It does not reopen the door to consider the circumstances of the owner or the attacking dog (as opposed to the attack itself) that arose earlier in the day.

The Judge went on to say that the circumstances of the dog not being exercised that day was “something relevant to the circumstance of the attacking dog as opposed to the circumstances of the attack itself.” (at [41]). A matter is not exceptional even if it is a one-off, or not expected to occur (at [41]):

Even one-off failures by an otherwise responsible owner to maintain effective control of the dog cannot qualify as an exception, and a one-off failure to exercise the dog logically falls in the same category. A combination of factors certainly can be considered together and have been in this case. However, … such circumstances relating to the owner and/or dog may make the attack exceptional, but this does not qualify to prevent a destruction order unless they have a direct bearing on the attack itself.

Supreme Court – Sharma v Auckland Council [2024] NZSC 141

Sharma v Auckland Council [2024] NZSC 141Download

The Court noted that ‘[a]t its heart … the proposed appeal challenges the approach of the Court of Appeal in Hill to what constitutes “exceptional circumstances of the offence.”‘ (at [8]).

At [9]-[11] of the decision the Court re-iterates the two-stage inquiry of Hill. The first stage is “what happened?” The second stage is whether what happened was exceptional – “an unusual or one-off occurence that is most unlikely to be repeated” – and whether in light of the exceptional nature of what occurred, the Judge is satisfied destruction is not necessary to remove the risk of a future attack.

In terms of the second step, the Court held first that the circumstances have to be exceptional in a way that means destruction of the dog is “not warranted.” Second, the Court of Appeal in Hill continued:

[75] This test requires the Court to focus on the circumstances of the offence/attack, and the risk that similar circumstances will occur in the future. It does not require the Court to undertake the difficult, if not impossible, task of inquiring into the psychology of the dog and making predictions about how the dog is likely to behave in the future. The inquiry contemplated by the Act is in our view much simpler. Section 57(3) proceeds on the basis that the previous attack establishes that there is a risk of the dog attacking again in similar circumstances. So the focus is on whether those circumstances were sufficiently exceptional that that risk is remote and does not justify destruction of the dog in the interests of public safety.

The Supreme Court declined Mr Sharma’s application for leave to appeal (at [12]):

The correctness of this approach to what constitutes exceptional circumstances in s 57(3) of the Act may raise a question of general or public importance. But we consider that resolution of the appeal will largely be governed by the specific facts of this case. As to those facts, nothing advanced by the applicant suggests there was an error in the assessment of the High Court that the, essentially mitigating, factors advanced by Mr Sharma were not the exceptional circumstances contemplated by the text and purpose of the Act. Accordingly, we do not see this case as an appropriate one to address the wider issue given the case has insufficient prospects of success. Against this background, nor is there an appearance of a miscarriage of justice.

Although the decision is a decline of leave to appeal, it is nonetheless useful guidance from the most senior court on an area with a paucity of definition at this level.

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Golriz Ghahraman: Appeal (Dismissed) of Declined Discharge Without Conviction

Posted on October 23, 2024 by Vernon Tava

Former Green Party MP, Golriz Ghahraman, pleaded guilty to two charges of theft over $1,000, one of theft between $500 and $1,000 and one of theft under $500 for theft of clothing on four separate occasions to a total value of just under $9,000. These thefts were committed while she was a sitting Member of Parliament.

She appealed the decision of Judge Jelaš in the District Court to decline her application for a discharge without conviction. Justice Venning in the High Court dismissed the appeal in a decision released on 17 October 2024.

Apart from the obvious wider interest, there are two interesting legal aspects of this decision:

  1. The discussion of the evidence that is required of causal impact of mental health on the offending to establish reduced culpability; and
  2. The Court’s consideration of the recent Supreme Court decision of Bolea v R in this context.

The judgment is below:

GOLRIZ-GHAHRAMAN-v-NEW-ZEALAND-POLICE-—-BC202463561Download

Discharge without conviction

A discharge without conviction under sections 106 and 107 of the Sentencing Act 2002 is a sentencing option that allows a defendant to avoid the entry of a criminal conviction on their record. It is deemed to be an acquittal.

Section 107 formulates a balancing test in which the following questions are asked:

  1. What is the gravity of the offending?
  2. What are the direct and indirect consequences of conviction?
  3. Are the consequences out of all proportion to the gravity of the offending?

If the consequences are found to be out of all proportion to the gravity of the offending, the sentencing Judge has the discretion to grant a discharge without conviction.

Impact of Mental Health on Culpability and Gravity of the Offending

The Judge in the District Court did not accept the submission on behalf of Ms Ghahraman that her poor mental health was a substantive or operative cause of the offending. She did accept that Ms Ghahraman was suffering from mental health issues at the time of the offending as a direct result of past and ongoing exposure to trauma – noting that, as a public figure, she had been subject to a level of harassment and threats that were at a high level in both volume and severity.

In support of this submission a report by a clinical psychologist was provided in which Ms Ghahraman was diagnosed as having Post Traumatic Stress Disorder (“PTSD”).

In considering the consequences of conviction, the Judge was not satisfied that there was evidence of a real and appreciable risk that Ms Ghahraman’s mental health would be further negatively impacted if a conviction was entered. The Judge went on to say that a number of the mental health issues arose from the offending itself and what followed, not the entry of convictions.

The Crown referred to the cases of R v Sabuncouglu [2008] NZCA 448 at [27] and Wheeler v R [2017] NZCA 193 at [15] in support of the proposition that ‘persuasive and independent evidence is required of the causal impact of mental health on the offending to establish reduced culpability.’ (at [23]).

On appeal, Venning J considered the psychologist’s report to be “equivocal” on whether there was a causative link between the appellant’s mental health condition and the offending. He went on to say (at [26]):

… Even if the report had not been equivocal, while the opinion of medical professionals deserves respect and must be considered, the Court need not defer to them, and ultimately it is for the sentencing judge to assess whether there is such a causative link having regard to all the circumstances.

Judge Jelas said that (at [30] of the DC decision, [27] of this decision):

I consider her mental health to be a feature contributing to the offending but not necessarily causative of it. Her mental health has made her more vulnerable to offend.

This treatment of the matter was accepted by Venning J (at [28]):

On the basis that offending of this nature could be categorised as falling within bands expressed as low, moderate and serious, Ms Ghahraman’s offending on the bare facts would be regarded as within the low end of the serious band … Taking account of Ms Ghahraman’s personal circumstances reduces the gravity of the offending overall to the lower end of the moderate band as the Judge concluded.

Bolea v R

Ms Ghahraman had applied for a position at the International Criminal Court as an ‘International Cooperation Adviser’. It was submitted on her behalf in the District Court that a person with a serious criminal or disciplinary offence would not meet the criteria for admission. Furthermore, to take up this position she would need to have a current practising certificate issued by the New Zealand Law Society.

Counsel for Ms Ghahraman raised the recent Supreme Court case of Bolea v R (which I have written about in detail here) in support of the submission that, in considering the impact of convictions on the Law Society’s assessment of whether Ms Ghahraman is a fit and proper person, and – therefore – risk to her future employment, these risks were a consequence of the offending rather than the convictions. The submission was that the Supreme Court had rejected such an approach in Bolea when it stated:

[41] Our view is that where, as here, there is unchallenged evidence that the issue of a deportation liability notice will “almost certainly” occur, then (in the absence of other evidence) both the liability for deportation and the risk of actual deportation should be treated as consequences of conviction under s 107. It follows that we do not agree that, for persons in Ms Bolea’s position, the process followed by the immigration authorities means that the “usual” position is that the prospect of deportation will be a consequence of the offending rather than the conviction.

Reasoning by analogy, counsel submitted that the risk to her future employment was a consequence of the convictions, not the offending. This was rejected by Venning J on two bases; first, that Bolea was specific to deportation matters (at [34]):

[W]ith respect to the appellant’s reliance on the Bolea decision, it must be seen in the context of its own particular facts. The Supreme Court confirmed as much in its introductory comments when stating that the appeal concerned how a sentencing court was to treat “the risk the defendant will be deported when considering an application for a discharge without conviction.”

Secondly, that in any event the requisite certainty of the consequence was lacking. Bolea had turned on the fact that there was unchallenged evidence that the issue of a deportation liability notice would “almost certainly” occur on conviction (at [37]):

Ms Ghahraman’s case is different. In her case, there was no evidence before the Judge that the Law Society would “almost certainly” not approve her application for a practising certificate if she was convicted.

The Court concluded that the entry of the convictions will not expose Ms Ghahraman to any additional liability as she will have to account to the Law Society for her conduct in relation to the offending itself.

The Court also gave short shrift to the submission that the effect on Ms Ghahraman’s mental health from the shame, stress and media intrusion should be treated as a consequence of conviction (at [43]):

However, with respect that is an unrealistic submission in the circumstances of the case. Once Ms Ghahraman’s offending became public it created a media storm which undoubtedly would have had an impact on Ms Ghahraman’s mental state even before she was charged. It also led to her resignation as a Member of Parliament even before conviction. A conviction entered some months later would add little to the stress engendered by the earlier publicity following the discovery of her offending.

Venning J concluded that the consequences of conviction fall within the low band, although at the higher end of that low band. Given this, he concluded that consequences of the convictions were not “out of all proportion” to the gravity of the offending and dismissed the appeal.

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Capping sentencing discounts at 40 per cent – the Sentencing (Reform) Amendment Bill 2024

Posted on October 3, 2024 by Vernon Tava

The Sentencing (Reform) Amendment Bill 2024, which had its first reading on 24 September 2024, proposes to:

  1. give priority to the needs of victims and communities over offenders
  2. include a victim working sole charge, or where a victim’s dwelling adjoins a targeted business, as an aggravating factor in sentencing
  3. cap sentence discounts at 40 per cent [with a supplementary proposal from the Minister of Justice to introduce a sliding scale for early guilty plea discounts]
  4. prevent offenders from receiving sentence discounts for youth or remorse more than once, and
  5. remove concurrent sentencing for those who commit offences while on parole, on bail or whilst in custody.

These reforms will inevitably increase the prison population and keep prisoners there for longer. The Statement estimates that the total cost after 10 years will be approximately $150 million, resulting from the addition of approximately 1,350 to the prison population (the total prison population as at 30 June 2024 is 9,638). There is a good summary of the ‘moral and fiscal failure’ of prisons in this context in a recent piece by Professor Kris Gledhill.

In this post I focus on the proposal to cap sentence discounts at 40 per cent.

Nowhere is it made clear why 40 per cent has been nominated as the limit for mitigating factors. It appears that this number ‘feels right’ as a limit on judicial leniency.

How it applies

The Court of Appeal set out the approach to calculating sentences in criminal matters in Moses v R [2020] NZCA 296. This decision set out a two-step methodology:

  1. the first step, following R v Taueki [2005] 3 NZLR 372 (CA), calculates the “adjusted starting point”, incorporating aggravating and mitigating features of the offending;
  2. the second step incorporates all the aggravating and mitigating factors personal to the offender, including any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.

The Court of Appeal then said that “the court fixes all second-step uplifts and discounts by reference to the adjusted starting point under this methodology.”

This means that sentencings should follow a structure as follows:

  1. arrive at the adjusted starting point;
  2. apply any discounts to that starting point (this is the part that is proposed to be capped at 40%);
  3. then add to the discounted adjusted starting point any uplifts for aggravating factors personal to the offender.

(I have written more about sentence calculation here.)

“Manifestly unjust” caveat

The Court would only be able to depart from the cap to prevent “manifestly unjust” outcomes.

Sentencing Judges will need to record in their sentencing notes both the capped and uncapped sentence as a reference point for any subsequent appeals. This will make sentencing more complex and it is likely to be an option that is employed frequently, particularly in view of the Sentencing Act’s mandatory requirements to impose the ‘least restrictive outcome’ (s 8(g)); ‘take into account any particular circumstances of the offender that mean that a sentence … that would otherwise be appropriate would, in the particular instance, be disproportionately severe’ (s 8(h)); ‘take into account the offender’s personal, family, whanau, community and cultural background in imposing a sentence … with a partly or wholly rehabilitative purpose’ (s 8(i)); and, ‘take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur’ (s 8(j)).

There is also a long list of mandatory mitigating considerations at s 9(2) of the Act. It is entirely unclear how factoring these in properly can be reconciled with an arbitrary limit to the total percentage that can be allocated.

Regulatory impact

The Ministry of Justice (“MoJ”) Regulatory Impact Statement (“the Statement”) observes that ‘[b]road limitations on judicial discretion and blanket limitations on sentence discounts are inconsistent with the purposes and principles of sentencing, which require that the sentencing judge takes account of all the relevant circumstances of a case. Some of the planned law changes also present potential inconsistencies with the New Zealand Bill of Rights Act (NZBORA), for example due to the risk of disproportionately severe penalties’ and that ‘[a] more evidence-based approach, which addresses concerns about leniency in relation to specific offence types, would have greater legitimacy from a rights perspective.’

Sentencing-Reform-RIS-and-SARDownload

Because of the manual nature of searching sentencing decisions to analyse discounting trends, MoJ officials instead reviewed 190 District and High Court cases that concluded in 2021 and 2022 to divine sentencing trends. This showed that 18 per cent of cases received a total discount greater than 40 per cent. The largest total discount was 69.4 per cent, which consisted of: 11.1% for time on EM bail; 50% for youth; and, 8.3% for rehabilitation.

Feedback from the judiciary raised potential unintended consequences, including:

  1. prescribing the sentencing process in legislation creates the risk of more appeals based on incorrect procedure, which could lead to a need for additional court resources; and
  2. potential constitutional issues may arise from interfering with the exercise of the judicial function in individual sentencing decisions.

Time on EM Bail

The Ministry proposes that, if the proposal proceeds, ‘the cap specifically excludes section 9(2)(h) “that the offender spent time on bail with an EM [electronically monitored] condition.”‘ This makes sense because it recognises the restrictive nature of this type of bail and given that the period of time on EM bail is determined by time on remand – a factor that is often beyond the control of the defendant – including EM bail could result in cases exceeding the cap without accounting for other mitigating factors.

Conclusions

My clients routinely, and unsurprisingly, ask what their sentence is likely to be if they plead guilty to charges rather than going to trial. If I have to advise them that a sentence of imprisonment is more likely, and will be for longer, than it would have been previously, more of them will opt to go to trial rather than plead guilty. This calculation is the reason why we have discounts for guilty pleas and other mitigating factors; capping them will only add to the strain on an already stressed system.

In short: this proposal is a blunt instrument, creating an internal contradiction within the Sentencing Act, that will manifestly fail to allow for the multifarious fact scenarios and types of defendant that only broad judicial discretion can take into account; it appears to be the product of a politics of catharsis rather than a reasoned approach to how to achieve the most appropriate sentencing outcomes.

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No sentencing discount for remorse for mere willingness to participate in restorative justice

Posted on September 22, 2024 by Vernon Tava

A discount for remorse (usually of the order of about 5-10%) can be available for Restorative Justice with the victim of the offending. However, it requires both parties to be willing to participate and it is not uncommon that a victim does not wish to participate in the process.

Is a discount for remorse still available if the defendant is willing to participate but the complainant is not? This question was recently dealt with in Pene v R [2023] NZHC 1234 in which Radich J held at [27] that (emphasis added):

I recognise that remorse is a separate mitigating factor that may be taken into account where there is something more than the bare acceptance of responsibility inherent in the guilty plea. I do not consider that a willingness to engage in restorative justice is enough in itself to justify a separate discount for remorse when unbundled from other genuine expressions.

The footnote to this passage sets out examples of genuine expressions of remorse (fn 26) that would justify a discrete discount:-

Rowles v R [2016] NZCA 208 at [18]: genuine expression of accompanied by payment of reparation = discount of eight per cent;

A v R [2018] NZHC 543: remorse demonstrated thorough an “utmost effort” to participate in restorative justice, acceptance of offending, engagement with counselling, early guilty plea and efforts to combat alcohol use = discount of 16 per cent.

C v R [2022] NZHC 1807: remorse demonstrated by tangible changes to lifestyle, including ceasing the use of intoxicating substances, engagement with counselling, offer to participate in restorative justice, apology to victim, and offer of emotional harm repayment – discount of eight per cent.

Pene v R [2023] NZHC 1234Download

The reasoning in Pene was followed by Woolford J in Johnson v Police [2023] NZHC 3302 at [16] and Hood J in Blackbourn v Police [2023] NZHC 3271 at [24].

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Discounting Time on Electronically-Monitored Bail at Sentencing

Posted on September 18, 2024 by Vernon Tava

Since electronically-monitored bail (“EM bail”) was introduced in New Zealand in 2006, varied approaches have been taken to accounting for this time at sentencing.

Prior to 2006, it was not usual to make deductions for time on ‘non-EM’ bail although it was possible. Mandatory consideration of time spent on EM bail as a mitigating factor was inserted into the Sentencing Act 2002 in sections 9(2)(h) and 9(3A) in September 2013.

Section 9(3A) states that:

In taking into account that the offender spent time on EM bail with an EM condition under subsection 2(h), the court must consider —

(a) the period of time that the offender spent on bail with an EM condition; and

(b) the relative restrictiveness of the EM condition, particularly the frequency and duration of the offender’s authorised absences from the electronic monitoring address; and

(c) the offender’s compliance with the bail conditions during the period of bail with an EM condition; and

(d) any other relevant matter.

Discounts for this time as high as 100 per cent of the period spent on EM bail have been made in the High Court in two decisions of Justice Powell (R v Walker-Haturini [2021] NZHC 1208 and R v Macfarlane [2021] NZHC 1332) although these are superseded by the definitive statement of the Court of Appeal decision of Paora v R in which the Court held that:

There is no guideline about the discount which should be afforded to a defendant for time spent on EM bail in New Zealand, although percentages ranging between 30 and 50 per cent are often used, and this Court recently noted that an allowance of up to 50 per cent is not uncommon. That is not an upper limit. As we have explained, the assessment of credit is an evaluative decision to be made having regard to the restrictiveness and duration of EM bail conditions in each case. Courts have sometimes considered it appropriate to award a discount of more than 50 per cent of time spent on EM bail to reflect its restrictive conditions.

Paora v R [2021] NZCA 559 at [53]

The relevant discussion in Paora (embedded below) is at [40]-[54].

Paora v R [2021] NZCA 559Download

Ranges of discount from the Court of Appeal

In Paora, a discount of 70 per cent was granted. This was for 14 months on ‘very restrictive’ EM bail, the first 10 months of which were on conditions of a 24-hour curfew, payment of a $100,000 surety (only available in High Court matters), not to meet with any person at the address (apart from his wife and children, and legal or medical practitioners) other than in the company of one or more of the residents (all of whom were family members), not to possess or use any cellphone or device capable of connecting to the internet, and to be supervised by one or more of the residents of the address at all times. After ten months his curfew was varied to 7 pm to 7 am, he was permitted to use a laptop for pre-approved purposes under the direct supervision of one of two relatives with controls placed on internet access, and exempted from curfew to attend a gym at approved times. He remained on these terms for another four months. There were no breaches of bail for this entire period. This first 14 months is the period of EM bail to which the 70 per cent discount was applied. Mr Paora then moved to another location but at that address there was fresh offending and serious breaches of bail conditions so he received no credit for this time.

The Court in Paora cited the example of Hohipa v R [2015] NZCA 485 (also celebrated for its holding on full credit for guilty pleas being available in instances of resolution with significant movement on summaries of facts and/or charges) in which a 12-month discount was given for 14 months on highly-restrictive conditions of EM bail, an 86 per cent discount. The conditions were 24-hour curfew with exceptions only to leave the property to attend court, his lawyer’s office, and to buy food once a week. He had an approved absence to be away from the bail address for 24 hours once in the 14 months. There were no issues with compliance.

In the Court of Appeal case of Shramka v R [2022] NZCA 299, a 30 per cent discount was made for 19 months on EM bail. The first two-and-a-half months were on standard conditions of 24-hour curfew for seven days a week, not to leave the address without the approval of the Department of Corrections’ EM bail team, not to possess, consume or use alcohol or drugs. Then the conditions were varied slightly to allow him to travel to a supermarket and gym and to attend employment appointments. 11 months later the conditions were varied again to allow him to be away from the address between 7 am and 7 pm for two days a week on the condition that he not travel more than two kilometres from the address. A month later conditions were varied again to allow him to work. In that time he breached conditions only once for consuming alcohol. The Court considered the discount of 30 per cent to be appropriate “given the progressive relaxation of Mr Shramka’s confinement.” (at [65])

To summarise the above:-

Paora: 14 months | 10 months on highly-restrictive, supervised 24-hour curfew| four months on 7-7 curfew, still closely supervised | No breaches = 70 per cent discount

Hohipa: 14 months | highly-restrictive 24-hour curfew | minimal exemptions | No breaches = 86 per cent discount

Shramka: 19 months | 2.5 months 24-hour curfew | then exemptions for gym attendance and shopping | at 11 months 7-7 curfew for 2 days per week | at 12 months exemption for work | one (relatively minor breach) = 30 per cent discount

Comparing these authorities it appears that the major determinant for a reduction in discount is the relaxation of conditions over the period of EM bail. A more usual discount in most cases can be surmised to be ~50 per cent, the midway point between the poles of 70 percent in Paora and 30 percent in Shramka, and as stated at [53] of Paora: ‘an allowance of up to 50 per cent is not uncommon.’

Although, an important consideration not dealt with substantially in the above cases is compliance with the conditions which is a mandatory consideration under s 9(3A)(c). Not only is poor compliance often, in practice, a major cause of erosion of what would be otherwise healthy discounts, it can also impact on sentencing options; as the Court says at [42]: “Compliance evidences rehabilitative success or potential.”

The temptation of an arithmetical approach

The Court of Appeal has consistently held that there is no arithmetical formula to be applied in determining an appropriate discount for time on EM bail and the level of discount is ultimately within the discretion of the sentencing Judge (Tamou v R [2008] NZCA 88 at [19]; Keown v R [2010] NZCA 492 at [12]; and Rangi v R [2014] NZCA 524 at [10]).

For instance, Paora notes at [46], citing Tamou, that:

[N]one of the cases had adopted an arithmetical approach to credit for restrictive bail conditions, noting that it is difficult to equate time on restrictive bail with time spent as a remand prisoner. The Court held that what is required is an evaluative assessment of all the circumstances.

Nonetheless, an arithmetical approach is tempting and has been attempted in a 2022 paper by District Court Judge David Harvey who seeks to offer more definition to the “evaluative decision”, entitled “Discounting EM Bail – Developing the Evaluative Approach”.

Harvey on EM BailDownload

This paper is embedded as, inter alia, it contains a useful summary of the High Court decisions of Walker-Haturini and Macfarlane advocating for a 1:1 discount for time on EM bail and the approach of Paora.

At the conclusion of the piece, Harvey arrives at a proposed formula for calculating the discount of TD = (TP – AE). Where TD is the Total Discount; TP is the Total Period spent on EM bail; and, AE is Approved Exceptions.

A shortcoming of this formula is that it does not engage at all with compliance which is a mandatory criterion in s 9(3A) of the Sentencing Act.

The calculation is also predicated on the assumption that the starting point is 100 per cent (i.e. 1:1) and the deductions are made from there. This criticism is acknowledged in the final paragraph of the article but that does not make it any less significant.

Having made clear in the article that the 1:1 discount held in the High Court decisions of Walker-Haturini and Macfarlane is not authoritative in view of the Court of Appeal decisions of Paora and Shramka, which are not only from a senior court but also post-date the High Court decisions, it seems odd to adopt that superseded position as the core assumption.

Perhaps the formula could be elaborated upon to include compliance but does this really bring “science” to the decision or is it just a re-iteration of the s 9(3A) factors in a different format? For instance, how is ‘AE’ empirically derived? Is it possible to factor in the many and varied ways in which compliance may not have been met?

In any event, given the preponderance of Court of Appeal authority on the topic, the evaluative approach to discounts – bounded generally in a range of 30 per cent to close to 90 per cent; more usually about 50 percent – is clearly the established approach.

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A Common Error in Sentence Calculation

Posted on September 11, 2024 by Vernon Tava

The Court of Appeal set out the approach to calculating sentences in criminal matters in Moses v R [2020] NZCA 296. This decision set out a two-step methodology:

  1. the first step, following R v Taueki [2005] 3 NZLR 372 (CA), calculates the “adjusted starting point”, incorporating aggravating and mitigating features of the offending;
  2. the second step incorporates all the aggravating and mitigating factors personal to the offender, including any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.

The Court of Appeal then said that “the court fixes all second-step uplifts and discounts by reference to the adjusted starting point under this methodology.”

This means that sentencings should follow a structure as follows:

  1. arrive at the adjusted starting point;
  2. apply any discounts to that starting point;
  3. then add to the discounted adjusted starting point any uplifts for aggravating factors personal to the offender.

A common error in District Court sentencings is for the starting point and uplifts for personal aggravating factors to be added together and then the discount for personal mitigating factors such as guilty pleas is taken from that total. According to the Moses methodology this is clearly wrong but the practice persists.

A useful analysis of this common error is undertaken by Becroft J in the case of Mo’unga v R [2023] NZHC 1967 in which a 42-month starting point was uplifted by four months for aggravating personal factors and a 35% discount (20% for guilty plea, 15% for personal factors outlined in a s 27 Sentencing Act 2002 report) was applied to the 46 months.

Mo’unga v R [2023] NZHC 1967Download

Becroft J considers from whence this mistaken practice originates:

[30] It might be that the use of the words ‘adjusted starting point’ in Moses is causing some confusion. This is a relatively new phrase. In some cases, clearly there has been a (mistaken) understanding that the ‘adjusted starting point’ results from the uplifts for personal aggravating factors such as offending while on bail or previous convictions being added to the starting point. In my experience, it is this very misunderstanding which appears to have contributed to the widespread District Court practice of subtracting discounts for personal mitigating factors from the ‘starting point’ of the sentence plus any uplifts for personal aggravating factors…

The logic of the Moses approach is summarised in the passage below which is worth quoting at length [emphasis in bold added]:

[36] Leaving aside the reasons why Moses is not always being followed correctly, the short point is that because it is authority from the Court of Appeal it must be followed in the lower courts. And there is a logic to the methodology – it ensures that defendants who receive uplifts for personal aggravating factors do not illegitimately obtain a benefit by that uplift being reduced by the application of a discount to it.

[37] With respect, the proper methodology in this case was to subtract the 35 per cent reduction the Judge allowed from the 42-month figure, not from the uplifted 46-month figure. Had the Court done so, the sentence would have been calculated as follows:

(a) The start point of 42 months would be reduced by 35 per cent to reflect the discounts provided to Mr Mo’unga. 35 per cent of 42 months is 14.7 months, which I would round to 15 months for the benefit of the defendant. Subtracting that 15 months from the 42 month figure results in 27 months.

(b) The total 4-month uplift should then have been applied to the resulting 27-month sentence.

(c) An end sentence of 31 months’ imprisonment, or two years and seven months’ imprisonment, should have been reached. This is a month longer than the sentence of two years and six months’ imprisonment that was calculated by the Judge.

This is not a big difference but it is significant. The core logic holds that the discount should not apply to personal aggravating factors.

For example: a 10-year adjusted starting point and a four-month uplift would work out as 120 months (the adjusted starting point) + 4 months (uplift) = 124 months -35% (43.4 months) = 80.6 months which would be rounded-up to 81 months.

By the Moses method: 120 months – 42 months (35% discounts) = 78 months + 4-month uplift = 82 months

Some mitigating factors, such as credit for time on electronically-monitored bail, are applied directly to the end sentence. This is dealt with in Moses at [48]:

This methodology does not preclude credit for some mitigating factors being assessed by reference to what would otherwise be the end sentence (that is the product of step 2), where that is appropriate. For example, credit for time spent on electronically monitored bail is commonly calculated in that way.

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The Court of Appeal upholds Telford v Auckland Council: a conviction is a pre-condition for a dog destruction order

Posted on August 27, 2024 by Vernon Tava

[1] Is the conviction of a dog’s owner for an offence under s 57(2) of the Dog Control Act 1996 (the Act) a precondition for making an order for the destruction of the dog under s 57(3)?

[2] That is the key issue before us for determination. It is an issue on which there is a conflict of High Court authority, with five decisions holding that conviction is a necessary precondition, and four holding that it is not. As we shall explain, the division of opinion turns very much on the significance (if any) to be attached to a 2003 amendment to s 57.

Solicitor-General’s Reference from CRI-2022-404-212 ([2023] NZHC 31) [2024] NZCA 401 [22 August 2024]

Introduction

Section 57(2) of the Dog Control Act 1996 (“the Act”) makes it an offence for a dog to attack a person or animal. Under s 57(3) the Court must order the destruction of the dog on conviction unless exceptional circumstances exist relating to the attack.

The High Court decision of Telford v Auckland Council [2023] NZHC 401, which I have written about before in detail, held that dog destruction orders under s 57(3) of the Act only become mandatory upon conviction and that this consequence can therefore, in some cases, be avoided if the owner is granted a discharge without conviction under sections 106 & 107 of the Sentencing Act 2002.

An order for destruction cannot be made under s 57(3) without a conviction but the absence of a conviction does not preclude a destruction order being made under s 106(3)(c) of the Sentencing Act 2002. The power under s 106(3)(c) is discretionary and it is open to the Court to not make that order if the Judge concludes that public safety concerns do not require it.

Auckland Council v Hill [2020] NZCA 52: ‘exceptional circumstances’

If a discharge without conviction is not granted to the owner of the dog, the Court of Appeal decision of Auckland Council v Hill [2020] NZCA 52 (“Hill“) would apply setting a very high bar of exceptional circumstances to avoid a dog destruction order issuing. Hill is clear that nothing that happens before or after the attack is relevant to the Court’s decision to order destruction:

[9] Circumstances that were not exceptional at the time the attack occurred cannot become exceptional as a result of post-attack events. If there was nothing exceptional about the circumstances of the attack when they occurred – nothing out of the ordinary which can be identified as a relevant factor in the attack – the s 57(3) exception does not apply. In particular, assurances given by the dog owner about the future management and control of the dog are not relevant to the s 57(3) inquiry.

Two examples are given by the Court of Appeal of what may count as exceptional circumstances:

[84] … If the circumstances of the attack are exceptional, in the sense that the dog can properly be seen as not intrinsically dangerous – for example where the dog’s owner was under attack, or where the dog was provoked – then a court may be satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

Solicitor-General’s Reference

Because Auckland Council did not have a right to appeal the High Court decision of Telford, the Council asked for a Solicitor-General’s Reference to clarify what has become a complex and unsettled area of the law.

A Solicitor-General’s Reference is a provision of the Criminal Procedure Act 2011 (s 313(3)) by which the Solicitor-General may, with leave of the Court of Appeal, refer a question of law to that court if the High Court was the first appeal court and it allowed the appeal, and the prosecutor has no right of appeal against that court’s determination.

The Solicitor-General sought and obtained leave to refer the following question:

Was the High Court correct to conclude that conviction of the dog’s owner is a precondition to an order for destruction being made under s 57(3) of the Dog Control Act 1996?

The Court of Appeal concluded that the High Court in Telford was correct.

There are three particularly interesting aspects of this decision:

  1. The approaches taken in the High Court and Court of Appeal are noticeably different. Justice Fitzgerald in the High Court provided a close textual analysis of the conflicting lines of authority in that court and much was made of the change from ‘exceptional circumstances of the attack’ to ‘exceptional changes of the offence’ which did not feature largely in the Court of Appeal’s analysis. The Court of Appeal’s approach is primarily statutory interpretation (similar to that of Heath J in Halliday (the first of the now-affirmed line of cases) but more wide-ranging) probing the internal consistency of the Act subsequent to the 2003 amendments that have put the interpretation of s 57(3) in issue;
  2. The Court of Appeal restricted its analysis to the interpretation of s 57(3) of the Dog Control Act 1996 and did not look at the next step in Telford in relation to s 106(3)(c) of the Sentencing Act 2002, which enables a court to “make any order a Court is required to make on conviction” and therefore allows a judge to make a dog destruction order even if the owner is granted a discharge without conviction.
  3. Following on from the previous point, shifting the Court’s consideration from the narrow mandatory standard of exceptional circumstances under s 57(3) Dog Control Act to a more wide-ranging analysis under s 106(3) Sentencing Act effectively side-steps the Court of Appeal’s narrow casting of exceptional circumstances in Hill.
S_G Reference_TelfordDownload
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Posted in Animal Law, Discharge without conviction, Dog Control Act 1996, Law, Sentencing | Tagged , , , , , , , , , , , , , , , | 2 Comments

Failing to stop or remain stopped – disqualification and confiscation

Posted on August 21, 2024 by Vernon Tava

The offence of failing to stop a vehicle or remain stopped is a common criminal offence that often accompanies other traffic charges. A conviction for this offence can result in a lengthy period of disqualification from holding or obtaining a driver’s licence.

As of 1 March 2024 it can also result in the forfeiture of the vehicle driven; mandatorily in the case of repeat offenders.

Failing to stop / failing to remain stopped – Land Transport Act 1998

A driver commits an offence under s 52A(1) or (2) if they fail to stop their vehicle when signalled to stop (s 114(1)); or when a siren is sounded; or red and blue (or just blue) lights are flashed (s 114(2)).

The penalties are:-

First offence: maximum fine of $10,000

First offence + speeding or driving dangerously: $10,000 maximum fine and mandatory six month disqualification from holding or obtaining a licence

Second offence: $10,000 maximum fine and disqualification between one and two years

Third or subsequent offence: maximum of 3 months’ imprisonment and two year disqualification

These disqualifications are cumulative on any other disqualification imposed on the same set of facts (s 52A(6)).

Failing to stop – Search and Surveillance Act 2012

There is, however, a provision under s 177 of the Search and Surveillance Act 2012 making it an offence to fail to stop ‘when required to do so by an enforcement officer exercising a power to stop and search a vehicle’ (s 177(1)). The maximum sanction for this charge is three months’ imprisonment and does not provide for disqualification.

This would appear to cover the situations that would normally attract a charge under s 52A of the Land Transport Act 1998 for not complying with the s 114 power to require a driver to stop and give name, address and other limited details. It also expands the ambit to include the power to search a vehicle. It does not cover a situation in which a siren is sounded or red and blue (or just blue) lights are flashed.

It is not uncommon for years-long disqualifications to result from a tranche of driving-related offending (see s 52A(6)) so this provision could be a useful substitute for a s 52A Land Transport Act 1998 charge for the purposes of resolution discussions in order to minimise the period of disqualification. There is a public interest purpose in minimising the high likelihood of further offences of driving while disqualified that tend to flow from very lengthy disqualifications.

Forfeiture of vehicle used in offence of failing to stop / remain stopped – s 142AAB Sentencing Act 2002

As of 1 March 2024, s 142AAB of the Sentencing Act 2002 allows the Court to make an order upon conviction that the vehicle used in the offending is forfeited to the Crown as long as the Court is satisfied that the driver owns or has an interest in that vehicle.

The mechanics of these orders are dealt with in s 128(3A) to (5) (for confiscation) and s 142AAF (for forfeiture).

Discretionary confiscation of motor vehicle for first offence

For a first offence the power is discretionary and the Court must have regard to undue hardship to the offender, undue hardship to any other person who otherwise use the vehicle on a regular basis, and the nature and extent of the offender’s interest in the vehicle (s 128(5) Sentencing Act 2002).

Mandatory confiscation of motor vehicle for second or subsequent offence

For a second or subsequent offence against s 52A(1)(a) or (b) of the Land Transport Act 1998, the Court must make a confiscation order under s 129(3) Sentencing Act 2002 or order that the vehicle is forfeited to the Crown under s 142AAB.

Section 129(1) outlines the offences to which this applies and that the subsequence lasts for a period of four years after the first offence.

The standard of hardship to which the Court must have regard before making the forfeiture order becomes ‘extreme hardship for the offender or undue hardship for any other person’ (s 129(4)(a)).

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Consideration of the Impact of Imprisonment on Children in Sentencing: recent New Zealand Supreme Court and Court of Appeal cases

Posted on August 20, 2024 by Vernon Tava

The Supreme Court and Court of Appeal have, in recent decisions, explicitly recognised the impact of imprisonment of parents of young children; both on their children and on the prisoners’ own rehabilitative prospects.

The cases discussed here are:

Philip v R [2022] NZSC 149

Sweeney v R [2023] NZCA 417

Milne v R [2023] NZCA 491

C (CA153/2023) v Police [2024] NZCA 136

Ah Tong v R [2024] NZCA 144

Overview

Discounts of between six and 20 per cent for this factor can be found in the following decisions, although they tend to settle at about 10 per cent.

Discounts for the wellbeing of an offender’s children reflects s 8(h) and (i) of the Sentencing Act 2002 and gives effect to the United Nations Convention on the Rights of the Child and the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders.

The effect on prisoner’s rehabilitative prospects, as distinct from the care and welfare of the children, is recognised in Sweeney (at [27]) and Ah Tong (at [15]).

Sweeney, drawing on the UK case of Petherick, cites with approval the passage that ‘it will be especially where the case stands on the cusp of custody that the balance is likely to be a fine one. In that kind of case the interference with the family life of one or more entirely innocent children can sometimes tip the scales and means that a custodial sentence otherwise proportionate may become disproportionate.’ Misconceptions that this factor only applies when a matter is on that cusp, and/or that some crimes are of too high a level of seriousness for the interests of the child to be considered, are corrected by the Court of Appeal in C v Police. Seriousness of offending not being a bar to consideration of this factor is also dealt with in Philip at [56].

It is not a given that consideration of the interests of the child or rehabilitative prospects of parents will tip the balance to home detention; see below: Sweeney, Milne and Ah Tong. But those cases all include explicit recognition that periods of imprisonment should be minimised to allow parents to be at home with their children sooner.

Case-by-case summaries follow:

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Telford v Auckland Council [2023] NZHC 31: exceptions to mandatory dog destruction orders

Posted on August 12, 2024 by Vernon Tava

UPDATE: This decision has been upheld in a Solicitor-General’s Reference. I have written about that here.

Introduction

Since the 2020 Court of Appeal decision of Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603, the law has been settled that convictions under section 57 of the Dog Control Act 1996 will result in mandatory destruction orders (i.e. the dog will be killed) upon conviction unless there were ‘exceptional circumstances’ at the time of the attack (s 57(3)) and that those exceptional circumstances will be narrowly construed.

But a recent High Court decision, Telford v Auckland Council [2023] NZHC 31 (judgment date: 27 January 2023), holds that these destruction orders only become mandatory upon conviction and that this consequence can therefore be avoided if the owner is granted a discharge without conviction under sections 106 & 107 of the Sentencing Act 2002. Though more than the bare fact of a discharge without conviction will be necessary to prevent the issue of a dog destruction order as there is still a residual discretion to make a dog destruction order pursuant to s 106(3)(c) of the Sentencing Act 2002. However, the grounds for an exception to the order appear to be wider when being considered under s 106(3)(c) than they would be under s 57(3).

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Posted in Animal Law, Dog Control Act 1996, Law, Sentencing | Tagged , , , , , , | 1 Comment