WILLIAMS v Town of Victoria Park
[2016] WASC 124
•18 APRIL 2016
WILLIAMS -v- TOWN OF VICTORIA PARK [2016] WASC 124
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 124 | |
| Case No: | SJA:1002/2016 | 18 APRIL 2016 | |
| Coram: | MARTINO J | 18/04/16 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ASHLEY KENT WILLIAMS TOWN OF VICTORIA PARK |
Catchwords: | Criminal law Appeal Fines and order for destruction of dog |
Legislation: | Dog Act 1976 (WA) |
Case References: | House v The King [1936] HCA 40; (1936) 55 CLR 499 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
TOWN OF VICTORIA PARK
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M WHEELER
File No : PE 55995-56000 of 2015
Catchwords:
Criminal law - Appeal - Fines and order for destruction of dog
Legislation:
Dog Act 1976 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr T L Beckett
Solicitors:
Appellant : In person
Respondent : McLeods Barristers & Solicitors
Cases referred to in judgment:
House v The King [1936] HCA 40; (1936) 55 CLR 499
1 MARTINO J: By a prosecution notice lodged on 17 November 2015 the respondent, the Town of Victoria Park, charged the appellant, Mr Williams, with six offences against the Dog Act 1976 (WA) (the Dog Act).
2 The charges were in the following terms:
1. That the Accused on 30 July 2015 at Creaton Street, St James, within the district of the Town of Victoria Park, was a person liable for the control of a dog which attacked an animal, contrary to s 33D(1) of the Dog Act. AND The prosecution seeks an order for the destruction of the dog pursuant to s 39(1) of the Dog Act;
2. That the Accused on 30 July 2015 at Creaton Street, St James, within the district of the Town of Victoria Park, was a person liable for the control of a dog which was in a public place without being held by a person who was capable of controlling the dog or being securely tethered for a temporary purpose by means of a chain, cord, leash or harness of sufficient strength and not exceeding the prescribed length and not being exempt from the requirements of s 31(1) of the Dog Act by reason of s 31(2) of the said Act, contrary to s 31(3) of the said Act;
3. That the Accused on 30 July 2015 at Creaton Street in St James, within the district of the Town of Victoria Park, was a person liable for the control of a dog which was in a public place without wearing a collar to which a registration tag that complied with s 18 of the Dog Act was securely attached, contrary to s 30(2) of the said Act;
4. That the Accused on 12 October 2015 at Creaton Street, St James, within the district of the Town of Victoria Park, was a person liable for the control of a dog which attacked an animal and caused physical injury to that animal, contrary to s 33D(1) of the Dog Act. AND The Prosecution seeks an order for the destruction of the dog pursuant to s 39(1) of the Dog Act. AND The prosecution seeks an order under s 46A(2) of the Dog Act that the Accused is banned from owning or keeping a dog permanently;
5. That the Accused on 12 October 2015 at Creaton Street, St James, within the district of the Town of Victoria Park, was a person liable for the control of a dog which was in a public place without being held by a person who was capable of controlling the dog or being securely tethered for a temporary purpose by means of a chain, cord, leash or harness of sufficient strength and not exceeding the prescribed length and not being exempt from the requirements of s 31(1) of the Dog Act by reason of s 31(2) of the said Act, contrary to s 31(3) of the said Act;
6. That the Accused on 12 October 2015 at Creaton Street, St James, within the district of the Town of Victoria Park, was a person liable for the control of a dog which was in a public place without wearing a collar to which a registration tag that complied with s 18 of the Dog Act was securely attached, contrary to s 30(2) of the Dog Act.
3 On 8 January 2016 Mr Williams appeared in the Magistrates Court on those charges. He pleaded guilty. He was fined a total of $5,400 and the learned presiding magistrate made an order for the destruction of the dog.
4 Mr Williams appeals against those decisions by appeal notice filed on 12 January 2016. The appeal notice contains the following appeal details:
1. The appellant applies to the Court for leave to appeal against the above conviction.
2. The appellant applies to the Court for leave to appeal against the above sentence.
3. The appellant applies to the Court for leave to appeal against the above order made as a result of a conviction or acquittal.
4. The appellant applies to the Court for leave to appeal against the above decision.
5 The appeal came before me for directions on 6 April 2016. At that directions hearing Mr Williams informed me that he was guilty of the six offences with which he had been charged, but that he disputed some of the material facts that were provided to the learned magistrate. I listed the application for leave to appeal and the appeal to be heard on 18 April 2016.
6 The appeal came on for hearing today. Mr Williams applied for an adjournment of the hearing of the appeal to adduce further evidence. He handed up material today on that application. That material was a report on the dog attacked in the first attack, some photographs of that dog's injuries, an extract of a report on the dog attacked in the second attack, some information about the pug breed of dog which was the dog attacked in the second attack and the witness statements of the two complainants.
7 I refused the application for the adjournment of the appeal for reasons which I gave. In summary I did not consider that the adjournment would result in the production of further material relevant to the hearing of the appeal.
Need for leave to appeal
8 Mr Williams requires leave for each of his grounds of appeal.1
9 Leave to appeal on a ground cannot be granted unless the Supreme Court is satisfied that the ground has a reasonable prospect of succeeding.2
10 Unless the Supreme Court gives leave to appeal on at least one ground of appeal, the appeal is to be taken to have been dismissed.3
The hearing before the learned magistrate
11 At the hearing on 8 January 2016 the learned magistrate read each of the charges to Mr Williams, including the orders that the Town of Victoria Park was seeking on the first and fourth charges. After the learned magistrate read the fourth charge counsel for the Town of Victoria Park informed his Honour that the town was no longer seeking an order under s 46A(2) of the Dog Act. His Honour asked counsel if the town was still seeking an order for destruction. Counsel informed his Honour that it was.
12 Mr Williams pleaded guilty to each charge.
13 Counsel for the Town of Victoria Park then informed his Honour of the facts of the offending.
14 The facts provided to his Honour were that Mr Williams was the owner of a male bull terrier dog by the name of Charlie which was kept at Mr Williams' property.
15 On 30 July 2015, the complainant in the first, second and third charges was walking his two dogs on a leash along Creaton Street. As he walked past Mr Williams' property, he saw Mr Williams' dog standing in the front yard of the property.
16 Mr Williams' dog was not being held by a lead and was not wearing a collar. Mr Williams' property had a low brick wall at the front, approximately 30 cm high. The complainant continued walking along the footpath trying not to provoke Mr Williams' dog, which he was familiar with. Mr Williams' dog jumped over the front fence and without any provocation charged at and attacked the complainant's labrador retriever dog.
17 Mr Williams' dog bit the complainant's dog on the left rear leg and dragged the dog along while holding it to the ground. As this was occurring, the complainant's other dog ran off. Mr Williams was watching the incident from his front yard. The complainant's labrador dog was on the ground yelping as Mr Williams' dog continued to attack it. After some time had elapsed, Mr Williams came out to the front of the property and pulled his dog off the complainant's dog.
18 After being pulled off, Mr Williams' dog escaped Mr Williams' grasp and again attacked the complainant's dog. Mr Williams removed his dog a second time.
19 The complainant's dog suffered significant injuries as a result of the attack and required veterinary treatment which he received at the Murdoch University Veterinary Hospital. The injuries suffered by the dog included various puncture wounds which required stitching and the insertion of a drain. The dog spent three days in the intensive care section of the veterinary hospital at which he was treated. The complainant incurred more than $3000 in veterinary bills.
20 Mr Williams contacted the complainant on numerous occasions after the incident and attempted to persuade him not to report the incident to the Town of Victoria Park.
21 The facts of the other three matters were that on 12 October 2015 the complainant was walking her 12-week old puppy on a lead past Mr Williams' property in Creaton Street. As she did so, Mr Williams' dog jumped over the front fence and without any provocation charged at and lunged at the complainant's dog. Mr Williams' dog had been unrestrained in the front yard of his property. Mr Williams was also at the front of his property. Mr Williams' dog latched on to the puppy's snout and proceeded to swing the dog around in an aggressive manner. The complainant tried to grab the puppy and attempted to get Mr Williams' dog to release her dog. Mr Williams' dog was not wearing a collar or harness and the complainant was unable to get a hold to restrain the dog.
22 After approximately one minute of the attack continuing, Mr Williams casually approached his dog and the dog ceased the attack immediately. The complainant picked up her dog and ran off towards a nearby property where she was visiting friends, and as she did so, Mr Williams followed her and began to abuse her, saying that, 'The dog is not dead. Let me see him. Let me see him'. The complainant put her puppy on the front verandah seat at that property. It died moments later.
23 Mr Williams then approached the complainant and said to her that as she had only had the dog for 12 weeks she could not be attached to him. He also said that it was not like it was a child. The complainant told Mr Williams to leave her alone. Mr Williams left, but came back shortly afterwards. He offered to buy her a new puppy and asked whether it was a pure-bred dog. The complainant was extremely distraught as a result of the attack on her dog.
24 The complainant's dog was taken to a veterinary surgeon. It weighed approximately 3.5 kg. It suffered multiple rib fractures and appeared to have suffered a fractured spine. The injuries were consistent with death caused by the trauma of being shaken by another dog.
25 The Town of Victoria Park obtained a warrant to seize Mr Williams' dog. It has been held by the town since 14 October 2015.
26 Counsel for the Town of Victoria Park then informed his Honour that the prosecution position was that the offences were at the upper end of the scale having regard to the significant injuries caused by Mr Williams' dog. He said that Mr Williams' dog was a bull terrier which, he said, was known in the area for its propensity to attack and cause injury. In the first attack it had caused significant and life-threatening injuries, and the second attack resulted in the death of the complainant's puppy.
27 He submitted that on each occasion, Mr Williams did not appear to show any remorse.
28 Counsel for the Town of Victoria Park then informed his Honour that Mr Williams had an extensive record of offences under the Dog Act. He was convicted of three offences under the Act in 2004, leading to his previous dog being declared as a dangerous dog in November of 2004. That dog was then involved in further attacks in February and March 2010, leading to a further dangerous dog declaration. After that dangerous dog declaration, Mr Williams failed to comply with the requirements of the declaration and he was prosecuted once again. On 14 November 2011 Mr Williams was convicted of five further offences under the Act, with the court imposing penalties and costs totalling some $5,500. Counsel for the Town of Victoria Park informed his Honour that while the dog the subject of those previous prosecutions and dangerous dog declarations was not the same dog as the dog which was the subject of the proceedings before his Honour the town's position was that Mr Williams has shown a consistent disregard for the requirements of the Dog Act in repeatedly failing to exercise proper responsibility as a dog owner. Furthermore, counsel said, after the serious attack of 30 July 2015, Mr Williams had continued to allow his dog to remain in the front yard of his property without being properly controlled, which in turn has resulted in the fatal attack on the second complainant's dog.
29 Counsel submitted that significant deterrent penalties were appropriate. He also informed his Honour that the prosecution sought an order under section 39 of the Act for the destruction of Mr Williams' dog. He submitted that it had been involved in two separate serious attacks within a short space of time. He informed his Honour that the town was concerned that if the dog were to return to Mr Williams, a further attack was inevitable.
30 On one occasion while counsel for the Town of Victoria Park was reading the facts to his Honour Mr Williams asked if he could butt in. The learned magistrate informed Mr Williams that he could not interrupt, but that he would be able to explain in a moment.
31 After counsel for the Town of Victoria Park had addressed the learned magistrate his Honour asked Mr Williams if there was anything he wished to say about the matters.
32 Mr Williams informed his Honour that the previous incidents had concerned another dog. His Honour informed Mr Williams that had been said. Mr Williams said that the previous incidents were totally irrelevant. The learned magistrate informed Mr Williams that the previous incidents were irrelevant as far as the dog was concerned, but not as far as Mr Williams was concerned.
33 Mr Williams informed his Honour that he had an animal behaviourist prove that the first dog was not dangerous. His Honour informed Mr Williams that what was a dangerous dog was defined by the Act.
34 Mr Williams then turned to the facts of the offences. He showed his Honour a photograph of his fence on his computer. His Honour said that obviously the dog could get over the fence. Mr Williams said that the fence was not 30 centimetres high.
35 Mr Williams informed his Honour that the dog owned by the complainant on the first three charges was not a labrador retriever, but was a 'Kelpie/Koolie' (sic - Kelpie/Collie).
36 Mr Williams said that the complainant saw Mr Williams' dog untethered in the front yard and was familiar with Mr Williams' dog. Mr Williams said that rather than as a duty of care to avoid putting his dogs in harm's way, the complainant chose to continue to walk along the footpath trying not to provoke his dog. Mr Williams informed his Honour that it would seem that the complainant had prior knowledge of something that could occur. Mr Williams said that the complainant was familiar with Mr Williams' dog and, therefore, obviously conscious of what could occur.
37 Mr Williams said that he did not know that the complainant was leading dogs. Mr Williams was closing and locking his garage doors when his dog saw the complainant, walked over to the fence and followed him side-by-side for a distance, of approximately 10 m. Mr Williams said that his dog did not know that there were two dogs directly on the other side of the fence and that Mr Williams did not know if the dogs caught scent of each other. Mr Williams said that there seemed to be a momentary hesitation which provoked his dog to put his front feet at the top of the fence. This gave him full vision of the complainant's dogs which provoked Mr Williams' dog's natural instinct to protect his territory and jump the fence. Mr Williams said that though the dog was wrong in doing so, that was what happened. The complainant who, Mr Williams thought was just a passer-by without any dogs, shouted in panic.
38 Mr Williams said that he 'responded immediately and intelligently' by separating his dog's hold on the complainant's dog's hind leg. Mr Williams said that it was not true that he only came out to the fence after some time.
39 He also said that it was not true that the complainant's other dog had run away. That dog was standing approximately three metres away on the verge. Mr Williams said that the complainant's male kelpie collie responded instinctively, taking multiple bites at Mr Williams' dog's face just missing his eyes, while Mr Williams was separating the dogs by holding his dog's left hind leg.
40 Mr Williams said that he was bitten on the right hand by the complainant's dog, causing blood to stream down his fingers. Mr Williams said that the complainant's dog was not on the ground yelping.
41 Mr Williams informed his Honour that his reaction to the situation was immediate. The bites to his dog's face had resulted in his dog trying to retaliate, which broke Mr Williams' hold. Mr Williams was able to grab his dog and toss him over the fence to prevent any further attack. The complainant returned home, some 300 metres away. The complainant took his dog to the Murdoch University Veterinary Hospital.
42 Mr Williams said that approximately two hours later he attended the complainant's house again and the complainant was very apologetic to him for the way that he had spoken to Mr Williams at the time of the incident. Mr Williams said that the dog having puncture wounds would be a common occurrence with a bite, but the complainant's dog had a pre-existing disability. The three days in intensive care were not a result of the injury caused by Mr Williams' dog. The need for stitches was the result of his dog, but the draining of the dog and the intensive care were due to the dog having a blood and bone disorder. Mr Williams also said that the dog was insured and that the cost of treatment was not $3000 but was $2400.
43 His Honour informed Mr Williams that the matters that he was raising were not to the point. He said that Mr Williams had an obligation to ensure that his dog did not get out of his property. His Honour said a disagreement about the cost of treatment might be relevant in a civil action, but was not of concern to him.
44 Mr Williams said that he did visit the complainant on numerous occasions but that he did not try to convince him not to make a complaint. He just wanted to ask the complainant if he had not made a complaint whether he would not make one to prevent any further hardship. He told his Honour that he had a copy of the letter in his bag. His Honour said that he was not interested in the letter.
45 Mr Williams informed his Honour that rangers came to his home on two occasions. They told him that there would be no further correspondence and that the matter was at the stage of prosecution. Mr Williams said that no safeguard was put in place to prevent or reduce any further injury occurring.
46 His Honour said that he did not understand that submission. Mr Williams said that it was the rangers who did not take any measure to put in any safeguard against his dog. His Honour said that Mr Williams was required to make sure his dog did not get out in a public place.
47 Mr Williams informed his Honour that he had put up a barricade since the incident and had increased the height of the fence. He said that there were two unfortunate occasions that he was guilty of.
48 Mr Williams informed his Honour that he had been provided with false information. His Honour asked what part of the information was false.
49 Mr Williams said that the dog was incorrect, the height of the fence was incorrect, the cost of treatment was incorrect and his coming out to the property for a longer period of time was incorrect. He informed his Honour that there were 22 mistakes in the information that had been provided to him.
50 His Honour said that the fence was easily jumpable and that Mr Williams was not allowed to permit his dog to escape.
51 Mr Williams said that he was not denying that, but that there seemed to be false and misleading information provided to generate some form of sympathy.
52 There was further exchange between Mr Williams and his Honour in which his Honour took time to explain to Mr Williams that he was responsible for his dog.
53 Mr Williams informed his Honour that the second complainant had been talking on a telephone and so was taken by surprise and that her dog did not weigh three and a half kilos but barely weighed a kilo. He said that he was being made to sound like 'the big bad boy'.
54 His Honour said that there would have been a subjective element in the complainant seeing her dog killed by his dog and that there might be some slight exaggeration. His Honour said that he accepted that Mr Williams did not act in a cavalier fashion, but attempted to rescue the situation.
55 His Honour said that he would sentence Mr Williams on the basis that he was not being callous, but he wanted to know what mitigating circumstances Mr Williams said existed.
56 Mr Williams said that he was seeking to have his dog not destroyed and that he was a responsible dog owner.
57 His Honour said that Mr Williams was not a responsible dog owner. His Honour pointed to Mr Williams' prior convictions, to his low fence, that there were two occasions in 2015 when his dog escaped and that on the second occasion his dog had killed a small puppy.
58 Mr Williams repeated some of the matters that he had already raised. He said he had contained his dog for eighteen months until July 2015. He said that he was a pensioner and that he lived in a privately rented home which he had occupied for 16 years. He lived on a modest income and he asked that the penalties under the 'Modified Penalties Act' apply.
59 His Honour then delivered his sentencing remarks. He described the incidents as being two particularly serious dog matters. He said that dog owners are responsible for their dogs. He said that Mr Williams had prior convictions for similar, but different offences.
60 His Honour said that there were two occasions on which Mr Williams' dog had escaped and attacked dogs and on the second occasion it had killed the dog.
61 He said that he had to take into account Mr Williams' financial circumstances. He said that the statement of material facts would have been prepared on the basis of what the prosecutor was told by people whose dogs were attacked and would have been very emotional leading to the imputation of Mr Williams being callous or having bad motives. His Honour said that he disregarded some of the more pejorative aspects of the facts presented to him, but that these were serious cases of their type.
62 His Honour noted that Mr Williams opposed an order for destruction of the dog. His Honour said that the dog had attacked two dogs and killed one of them. This was due, his Honour said, to the dilatory performance of Mr Williams in making his premises safe resulting in his dog getting out.
63 His Honour imposed a fine of $2,000 on the first charge, $200 on the second charge, $500 on the third charge, $2,000 on the fourth charge, $200 on the fifth charge and $500 on the sixth charge.
64 His Honour again reviewed the facts of the attacks and said that there were two occasions on which Mr Williams' dog had attacked other dogs. He said that in his opinion that the circumstances of the case were such that an order for destruction of the dog should be made and he so ordered.
Grounds of appeal
65 The notice of appeal lists seven grounds of appeal, however the seventh ground does not raise a ground of appeal, it is a request that the previous six grounds be considered suitable for the dog not to be destroyed. The grounds of appeal are:
1. the Magistrate was purposefully read false and misleading information by the prosecuting party
2. the facts were not wholly and honestly presented by the prosecuting party to allow the Magistrate to fairly and appropriately determine and moderate the penalty applicable to each charge worthy as of mitigation and equivalent to, as is provided within the modified penalties Act, pursuant to the Dog Regulations of W A
3. the Magistrate did not determine and/or give any consideration whatsoever towards granting a reprieve against the proposal for destruction of my dog which is neither a dangerous dog breed nor declared as a dangerous dog
4. the Magistrate failed to consider wholly what were sincere mistakes on my part and not in any way malice as compared to that what has been inflicted upon me and my dog since being seized and incarcerated on the 14th October 2015 and me being deprived the right of visitation
5. the Magistrate refused to accept that the Town were remiss for not applying any safeguard as a measure to prevent or reduce the likelihood of my dog causing any further injury following the first incident which occurred on the 30th July 2015 and thereby, 'avoiding' what occurred on the 12th October 2015, the accidental death of a 12wk old Pug, smaller than a rabbit seen like as a mouse to a cat in the dark, attached to a long lead being walked along the footpath at the front of my home without being provided as a duty of care, like as if a parent would to a child, appropriate and adequate protection
6. I have since the 12th October 2015 following the second incident, erected a taller fencing to ensure that I can contain my dog within the confines of the entire yard front and rear to prevent any further incident from occurring; therefore, it would seem unfair that what is pursuant to Section 40.1(b)&(d) of the Dog Act not be applied whereby under strict conditions, the order for destruction of my dog be remitted to allow for appropriate training and that he be controlled in a specified manner whereby he is always attached to a lead whenever in the front yard space as is separate from the rear yard of my home and that whenever in a public place he is always wearing a collar fitted with a necessary registration tag, and is attached to a lead and too, is appropriately muzzled
7. May these grounds be suitable that my dog be reprieve. Amen.
66 By the first two grounds of appeal Mr Williams contends that the facts provided to the learned magistrate were incorrect.
67 In the third ground of appeal Mr Williams contends that the learned magistrate erred in failing to determine or give consideration to not granting the Town of Victoria Park's application for destruction of the dog.
68 The fourth ground of appeal contends that the learned magistrate erred in failing to consider that the mistakes on Mr Williams' part were not the result of malice and that the destruction of the dog is disproportionate to the mistakes made by Mr Williams.
69 By the fifth ground of appeal Mr Williams contends that the learned magistrate failed to consider that the Town of Victoria Park was remiss in failing to apply safeguards following the attack by his dog on 30 July 2015.
70 In the sixth ground of appeal Mr Williams contends that he has taken steps following the second attack, by erecting a taller fence and requests that the order for destruction be set aside so that Mr Williams' dog can be trained and controlled by a lead, a collar fitted with a registration tag and a muzzle.
Provisions of the Dog Act
71 The maximum penalty for each of the two offences against s 33D(1) of the Dog Act was a fine of $10,000, for each of the two offences against s 31(3) of the Dog Act the maximum penalty was a fine of $5,000 and for each of the two offences against s 30(2) of the Dog Act the maximum penalty was a fine of $5,000.
72 Sections 39 and 40 of the Dog Act provides for an order being made for destruction of a dog.
Appeal that the facts provided to the learned magistrate were incorrect (grounds 1 and 2)
73 By the first two grounds of appeal the appellant contends that the facts provided to his Honour were not correct. The learned magistrate gave the opportunity to Mr Williams to present his case. Mr Williams clearly appreciated this and he did so. Mr Williams informed his Honour that the earlier incidents for which he had been prosecuted concerned another dog. The learned magistrate acknowledged this was so, and explained the relevance of the previous convictions.
74 Mr Williams then turned to the facts of the offences. I have set out earlier in these reasons the matters raised by Mr Williams and his Honour's responses and sentencing remarks. I will not repeat them. His Honour's responses were, in my view, entirely appropriate. His Honour accepted many of the facts put forward by Mr Williams. His Honour also pointed out, correctly in my view, that the important factual matters were that on two separate occasions Mr Williams had allowed his dog to escape and to attack other dogs, with the first dog being injured and the second dog being killed.
75 Today Mr Williams has submitted that the second dog was not killed by the attack and he has referred to the material on the second dog to which I have referred. In my view there is no substance to that submission. The extract from the report shows that the injuries were consistent with death being caused by significant trauma, namely shaking by another dog.
76 In my view there has been no error in the facts found by the learned magistrate. The first two grounds of appeal have no reasonable prospect of success. I refuse leave to appeal in respect of them.
Appeal that the learned magistrate failed to take into account that the Town of Victoria Park failed to take steps (ground 5)
77 In the fifth ground of appeal Mr Williams contends that the Town of Victoria Park was remiss following the first attack by his dog. This was a matter raised before his Honour. His Honour informed Mr Williams that he was required to make sure his dog did not get out in a public place. His Honour was correct. This ground of appeal has no reasonable prospect of success.
Appeal against exercise of discretion (grounds 3, 4 and 6)
78 In the third and fourth ground of appeal Mr Williams complains about the learned magistrate's order for destruction of the dog. In his sixth ground of appeal he contends that he has taken steps following the second attack, by erecting a taller fence and requests that the order for destruction be set aside so that Mr Williams' dog can be trained and controlled by a lead, a collar fitted with a registration tag and a muzzle.
79 Mr Williams' dog had attacked two dogs and caused injury or damage to them. The learned magistrate had a discretion as to whether to order the destruction of the dog.
80 In considering the exercise of that discretion it is not enough that an appeal court may have made a different decision. It must appear that some error has been made in the exercise of the discretion,4 for example by acting on a wrong principle, taking into account an irrelevant consideration or failing to take into account a relevant consideration. In some cases it may not appear how a decision has been reached but the result is unreasonable or plainly unjust and it can be inferred that there has been an error in the exercise of discretion.
81 In this case there is nothing to indicate any error in the exercise of discretion to order destruction of the dog. It had attacked two dogs. It had injured the first dog and killed the second dog it attacked. In his explanations to Mr Williams and his reasons for ordering destruction of the dog his Honour clearly considered whether or not to make the order for destruction of the dog. His Honour had regard to relevant considerations, including his finding that Mr Williams has not been callous and the steps that he had taken since the second attack.
82 Mr Williams complains that the complainants were at fault. I do not accept that. The fault lies with him. It was his dog which escaped and attacked the complainants' dogs.
83 In his submissions to me Mr Williams complains that the learned magistrate failed to give consideration to providing for the remission of the order for destruction of the dog. In my view there was no basis on which the learned magistrate could have so ordered, in the circumstances where a second attack had occurred and the complainant's dog had been killed in that second attack.
84 In the circumstances not only do I consider that there was no error in the exercise of discretion it is my view that there was a correct exercise of discretion.
85 Mr Williams has provided photographs of his dog to me. Mr Williams was and is clearly attached to his dog. However in my view the learned magistrate made the correct decision.
86 These grounds of appeal have no reasonable prospect of success.
Conclusion
87 None of Mr Williams' grounds of appeal have any prospect of success. I refuse leave to appeal on all grounds and I dismiss the appeal.
1Criminal Appeals Act 2004 (WA) s 9(1).
2Criminal Appeals Act 2004 (WA) s 9(2).
3Criminal Appeals Act 2004 (WA) s 9(3).
4House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.
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