A v Auckland Council

[2025] NZHC 2382

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPELLANT. SEE PARAGRAPH [99].

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-000096

[2025] NZHC 2382

BETWEEN

A

Appellant

AND

AUCKLAND COUNCIL

Defendant

Hearing:

4 August 2025

Appearances:

S M Kilian and K Bergh for the Appellant

B V Magill and T C Faumuina-Tuuga for the Respondent

Judgment:

21 August 2025

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 21 August 2025 at 4 pm Pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar Date……………………………..

Solicitors:

Kilian & Associates, Auckland Auckland Council, Auckland

A v AUCKLAND COUNCIL [2025] NZHC 2382 [21 August 2025]

[1]    Ms A appeals the ruling of Judge E P Paul given in the District Court at North Shore on 22 November 2024 in which Judge Paul dismissed Ms A’s application for a discharge without conviction after she had pleaded guilty to two charges under the Dog Control Act 1996.1 The Judge also made an order for the destruction of Ms A’s dog, Boy.

[2]The charges were:

(a)Failing to comply with s 33E(1)(a) of the Dog Control Act, under which an owner of a menacing dog must not allow the dog to be at large or in any public place without being muzzled;2 and

(b)Owning a dog that attacks a domestic animal.3

What happened?

[3]    On 9 January 2023, Boy, a male English Bull Terrier, was classified as menacing under s 33A of the Dog Control Act after attacking  a  domestic  cat. Under s 33E of the Dog Control Act, Ms A, as Boy’s owner, was required not to allow the dog to be in a public place without being muzzled.

[4]    According to the summary of facts that was the basis of Ms A’s guilty pleas, at about 9.30 am on 9 September 2023, Ms A and Boy were in Ngataringa Park in Devonport. Ngataringa Park is an on-leash, all year-round public park. Boy was off- leash and unmuzzled.

[5]    The complainant and her husband and their dog Louis, a Shih-Tzu, were also in the park. Louis was also off-leash and walking about a metre in front of the complainant and her husband. When Ms A was about 20 metres away from the complainant, she called out and said, “Don’t worry, my dog is friendly”.

1      Auckland Council v A [2024] NZDC 28142 [the Ruling].

2      Dog Control Act 1996, s 33EC. Maximum penalty of a fine not exceeding $3,000. Dog may be seized and disposed of under the Dog Control Act.

3      Dog Control Act, s 57. Maximum penalty of a fine not exceeding $3,000. Dog may also be destroyed.

The complainant, who had not seen Boy at that stage, called back, “That’s all good. Our dog is also friendly with other dogs”.

[6]    The complainant saw Boy, in a pounce position, staring at Louis. When the defendant and the complainant’s husband were about five metres apart, Boy ran at Louis, bowled him over, latched on with his jaws to Louis’ right shoulder and neck and shook Louis from side to side. The complainant’s husband kicked Boy and grabbed his collar, which snapped. The complainant also kicked Boy. Ms A grabbed Boy’s harness, at which point he released. When Boy moved to bite Louis a second time, the complainant’s husband took Louis into his arms.

[7]    Ms A apologised and gave her name, phone number and address to the complainant. She also invited the complainant to take a picture of her with Boy, which the complainant did.

[8]    Louis suffered a punctured thorax, a displaced right limb and muscle tissue injury. He has since recovered from his injuries but has a permanent disability in that he limps while walking.

[9]    Ms A later told an Auckland Council Animal Management officer Boy was registered as an emotional support dog with the Accident Compensation Corporation (ACC). She also said she had not seen any other dogs in Ngataringa Park when she let Boy off the leash and that she had removed his muzzle to allow him to sniff the flowers.

[10]Ms A was convicted and sentenced on 22 November 2024.

Judge Paul’s ruling

[11]   After summarising what happened at Ngataringa Park, the Judge noted that, in accordance with the decisions of the Court of Appeal in Auckland Council v Hill and this Court in Telford v Auckland Council,4 the Court was required to identify the circumstances of the attack and consider whether the circumstances were exceptional

4      Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603; Telford v Auckland Council

[2023] NZHC 31.

and did not warrant a destruction order.5 However, the defence had conceded the circumstances were not exceptional and the Judge entirely agreed; there was nothing exceptional about a dog that rushed toward and then attacked another dog while being walked off-leash. He said it was also concerning Ms A had failed to keep Boy muzzled in an obviously public area—Ngataringa Park.6

[12]The Judge summarised submissions by:7

(a)counsel for Ms A, which were that there was a unique relationship between Ms A and Boy. Given Ms A’s anxiety and depression, as discussed in a report from a psychologist, Nicola Mitchell, the impact of destroying Boy could be significant such that a destruction order would be out of all proportion to the level of offending and, even if     s 106 was met, the Court should not exercise its residual discretion under s 107 of the Sentencing Act 2002;8 and

(b)counsel for the Auckland Council (the Council), which were that the Council accepted Ms A’s sense of loss and grief might be elevated given her difficult circumstances but destruction was the consequence of conviction and Boy was not a certified disability dog.

[13]   The Judge said the attack by Boy must be assessed as moderately serious given the attack itself, the significant efforts made to stop the attack and the not insignificant injuries to Louis. Also, he could not ignore that, had Ms A followed the requirements for controlling a menacing dog, the level of harm would not have occurred. However, because Ms A had paid $2,000 towards the veterinary bill of $4,692.82 for Louis, had offered to pay a further $500 and had pleaded guilty at an early stage, he was satisfied the gravity of the offending could be assessed as moderate.9

5 The Ruling, above n 1, at [8].

6 At [9].

7      At [11]–[15].

8      It is apparent the Judge was intending to refer to both ss 107 and 108 of the Sentencing Act 2002.

9      At [12], [17]–[18].

[14]   Nonetheless, having regard to the High Court’s decision on Pehi v Auckland Council, where the relationship between a child with Down syndrome and a dog who was his best friend was not an impediment to finding that destruction was not disproportionate to the gravity of the offending, the Judge could not see how he could take a different approach, even in Ms A’s circumstances as he heard them.10

[15]   Accordingly, the Judge did not accept the consequence of a destruction order was out of all proportion to the gravity of the offending and declined the application for a discharge under s 106. The Judge did not order a fine but ordered payment of

$500 by way of further reparation.11

What happened next?

[16]   At 4.52 pm on Friday, on 20 December 2024, Ms A first filed a notice of appeal in the High Court. However, the notice was not accepted for filing by the High Court registry until 8.07 am on Monday 23 December 2024.

[17]   On 17 February 2025, counsel for Ms A, on Ms A’s instructions, filed a notice of abandonment of appeal.

[18]   On 19 February 2025, the Court issued a minute confirming the appeal was abandoned.

[19]   On 21 February 2025, counsel for Ms A re-filed the notice of appeal following instructions from Ms A that her instructions to abandon her appeal had been given while intoxicated.

[20]   On 13 March 2025, Andrew J set down the appeal for hearing on 10 June 2025 and made timetable directions, under which Ms A was to file an application to adduce new evidence by 11 April 2025 and to file her submissions by 17 April 2025.12

10 At [19]. Pehi v Auckland Council  [2018] NZHC 2154. Although the Judge referred to a child with Down syndrome in Pehi,  in  fact  the  attachment  was  between  a  32-year-old  with  Down syndrome and the dog; see Pehi at [31].

11 At [20]–[21].

12 A v Auckland Council HC Auckland  CRI-2025-404-000096,  13  March  2025  (Minute  of  Andrew J).

[21]Andrew J also directed:13

The hearing is to address the application for leave to extend time for filing a notice of appeal, the legal consequences of the original appeal having been abandoned, and the merits of the appeal itself.

[22]   Ms A did not comply with the directions for the filing of an application to adduce new evidence or for the filing of submissions.

[23]   On 6 May 2025, then counsel for Ms A apologised for non-compliance with the timetable directions, advised the Court counsel had been unwell for a sustained period and sought leave to withdraw.

[24]   On 9 May 2025, Andrew J gave leave to Ms A’s counsel to withdraw, vacated the hearing set down for 10 June 2025, set down the hearing for 4 August 2025 and made revised timetable directions, under which Ms A was to file an application to adduce new evidence by 20 June 2025.14

[25]   On 1 July 2025, Ms A’s counsel filed an application for leave to adduce as fresh evidence a psychological assessment of Ms A dated 26 June 2025 by Dr David Jones, a registered clinical psychologist.

Questions for determination

[26]In light of the above history, the following questions require determination:

(a)Should Ms A be granted leave to extend time for filing the original notice of appeal?

(b)Should leave be granted to adduce the evidence of Dr Jones?

(c)Should the notice of abandonment of the original appeal be set aside?

(d)Is there merit in Ms A’s appeal?

13 At [4]. In his minute, Andrew J recorded that the original notice of appeal had been filed on 23 December 2024, at [3].

14     A v Auckland Council HC Auckland CRI-2025-404-000096, 9 May 2025 (Minute of Andrew J).

(e)Should Ms A be granted a discharge without conviction?

[27]   If the answer to question (e) is yes, there is the further question of whether the Court should exercise its residual discretion under s 106(3)(c) of the Sentencing Act.

[28]   Before considering those questions, it is useful to set out the relevant provisions of the Dog Control Act and the Sentencing Act.

Relevant statutory provisions

Dog Control Act 1996

[29]Section 33E provides:

33E     Effect of classification as menacing dog

(1)If a dog is classified as a menacing dog under section 33A or section 33C, the owner of the dog—

(a)must not allow the dog to be at large or in any public place or in any private way, except when confined completely within a vehicle or cage, without being muzzled in such a manner as to prevent the dog from biting but to allow it to breathe and drink without obstruction; and

…

[30]Section 33EC provides:

33EC Offence to fail to comply with section 33E(1) or 33EB

(1)Every person who fails to comply with section 33E(1) or 33EB commits an offence and is liable on conviction to a fine not exceeding

$3,000.

…

[31]Section 57 provides:

57       Dogs attacking persons or animals

(1)A person may, for the purpose of stopping an attack, seize or destroy a dog if—

(a)the person is attacked by the dog; or

(b)        the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.

(2)The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on conviction to a fine not exceeding

$3,000 in addition to any liability that he or she may incur for any damage caused by the attack.

(3)If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack described in subsection (1) and that the dog has not been destroyed, the court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

…

Sentencing Act 2002

[32]Section 106 provides:

106Discharge without conviction

(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2)A discharge under this section is deemed to be an acquittal.

…

[33]Section 107 provides:

107Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[34]Section 108 provides:

108Conviction and discharge

(1)If a person is convicted of an offence, a court before which the offender appears for sentence may, instead of imposing sentence, direct that the offender be discharged, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2)A court discharging an offender under this section may—

…

(c)       make any order that the court is required to make on conviction.

[35]   It is also relevant to recall the reason Ms A and others who have pleaded guilty to or who have been found guilty of an offence under s 57(2) of the Dog Control Act seek to be discharged without conviction is the decision of the Court of Appeal that conviction of a dog’s owner is a necessary pre-condition to an order for destruction being made under s 57(3) of the Dog Control Act.15

Should Ms A be granted leave to extend time for filing the appeal?

[36]   The Council does not oppose leave because the appeal was filed within the original 20 working day period provided for in r 20.4(2)(b) of the High Court Rules 2016 (the Rules) and administrative oversight led to the notice of appeal being recorded as filed on 23 December 2024.

[37]I am satisfied the appeal was filed within time and leave is not required.

[38]Under r 20.6 of the Rules, an appeal is brought when the appellant:

(a)files a notice of appeal in the court; and

(b)files a copy of the notice of appeal in the administrative office; and

(c)serves a copy of the notice of appeal on every other party directly affected by the appeal.

[39]   Under r 3.1 of the Rules, the court’s registries must be open from 9 am to 5 pm on every day that is not a court holiday. Friday, 20 December 2025 was not a court holiday. It was a working day, as that term is defined under r 1.3 of the Rules.

[40]   It follows that the notice of appeal was filed on a working day, during the hours the Court registry was required to be open. Unsurprisingly, given the time of filing and the time of year, the notice was not processed the day it was received. But it was still filed within time. Accordingly, leave is not required.

15     Solicitor-General’s reference from CRI-2022-404-212 ([2022] NZHC 31) [2024] NZCA 401.

Should leave be granted to adduce the evidence of Dr Jones? Should the notice of abandonment of the original appeal be set aside?

[41]   It is convenient to consider these questions together because Ms A’s counsel rely on Dr Jones’s report in support of their submission that the notice of abandonment should be set aside.

Relevant legal principles

[42]In Lundy v R, the Privy Council held that:16

… the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.

[43]   Section 337 of the Criminal Procedure Act 2011 provides an appellant may abandon an appeal by filing a notice advising that they do not intend to prosecute the appeal. Rule 35 of the Court of Appeal (Criminal) Rules 2001 provides to similar effect.

[44]   In R v Cramp, the Court of Appeal held it had the power to set aside a notice of abandonment in exceptional circumstances, having regard to the importance of finality in criminal cases; the circumstances in which the notice of abandonment was given; the necessity for an applicant for such an order; and if the interests of justice so require.17

Submissions on behalf of Ms A

[45]   Mr Kilian, counsel for Ms A, says Dr Jones’s evidence should be admitted because there were no such reports before Judge Paul that addressed the detail of

16     Lundy v R [2013] UKPC 28, 2 NZLR 273 at [120].

17     R v Cramp [2009] NZCA 90 at [26]; citing R v Bridgeman CA87/04, 10 November 2005 at [9]; and R v Curtis CA288/04, 17 February 2005 at [34].

Ms A’s mental health issues. He also says the report establishes there are exceptional circumstances for setting aside Ms A’s notice of abandonment.

[46]   Mr Kilian draws attention, in particular to the following section of Dr Jones’s report:

26.Ms A’s clinical profile reveals a complex and severe presentation, consistent with multiple co-occurring difficulties. Most prominently, she shows indications of severe anxiety-related pathology, including phobic avoidance, obsessive-compulsive tendencies, and marked ruminative worry. She reports trauma-related symptoms consistent with post-traumatic stress disorder, and her responses suggest continued emotional dysregulation and re-experiencing of past traumatic events. There are marked elevations suggestive of a major depressive episode, with prominent hopelessness, anhedonia, disturbed sleep, and low self-worth.

27.Substance-related issues are also prominent, with results strongly indicating severe alcohol use disorder, including repeated failed attempts at sobriety and significant life disruption. Drug use is also acknowledged and appears to have contributed to interpersonal and possibly legal or health problems.

[47]   Mr Kilian submits this diagnosis would have been relevant to counsel when taking the instructions to abandon the appeal. He submits the lack of understanding of Ms A’s mental state, as set out in Dr Jones’s report, is an exceptional circumstance that led to an incorrect notice of abandonment being filed. Mr Kilian also says it is in the public interest to have these issues addressed, although he acknowledges there is no independent evidence to establish Boy is a service dog.

[48]   Mr Kilian says Dr Jones’s report expands on the information before the Court and places a more direct emphasis on the key effect that destruction of Boy would have on Ms A. He notes the following passage in Dr Jones’s report:

41.Ms A presents with significant suicide risk that is directly linked to   the potential loss of Boy. She has articulated a specific and plausible plan to end her life should Boy be destroyed. Given her history of suicide attempts, this risk should be taken seriously. Any decision regarding Boy’s future should include comprehensive safety planning and crisis intervention resources. Mental health services should be immediately engaged if separation from Boy becomes necessary.

[49]The details of the plan were recorded in Dr Jones’s report.

Submissions on behalf of Auckland Council

[50]   Ms Magill for the Auckland Council says the information in Dr Jones’s report is not fresh and is not cogent because it would not have affected the outcome if it had been before Judge Paul.

[51]   Ms Magill says, while Dr Jones’s report was not before Judge Paul, other medical evidence, including Ms Mitchell’s report, was before the Judge. Ms Magill notes that, in her report dated 8 January 2024, Ms Mitchell recorded that Ms A had been diagnosed in the past with depression and anxiety, had reported not sleeping well and had numerous hospitalisations, including some for attempted suicide. It also reported Ms A had been functioning poorly, barely left the house without support, feared for  her  life  and  did  not  work.  Ms  Magill  points  to  other  sections  of  Ms Mitchell’s report, including self-reporting behaviours indicating a severe diagnosis of post-traumatic stress disorder (PTSD) and a clinically significant score for depression.

[52]   Ms Magill also notes Judge Paul had before him a medical certificate dated 28 November 2023 from the  Clinic that stated Boy’s main role in Ms A’s life was as an emotional support dog to help with her mental health, that he made a big positive difference to her mental wellbeing and asked the Court to consider avenues other than destruction.

[53]   Accordingly, Ms Magill submits the Judge had the relevant information before him. She also notes Ms A has not provided an affidavit herself in support of the appeal or provided any information to support the suggestion her counsel erred in implementing her instructions.

[54]   Ms Magill also says there is no independent evidence to support Ms A’s statements to the Auckland Council Animal Management officer and to Dr Jones that Boy was an ACC registered emotional support dog, nor any evidence to suggest he was registered as a disability assist dog under sch 5 of the Dog Control Act.

[55]   Even so, Ms Magill accepts the Court will want to assess the merits of the appeal before deciding whether to set aside the notice of abandonment.

[56]Ms Magill is correct. For that reason, I give my analysis on questions (b) and

(c) later in this judgment.

Is there merit in Ms A’s appeal?

[57]Ms A’s appeal is an appeal against conviction.

[58]   Under s 232(2) of the Criminal Procedure Act, the Court must allow an appeal against conviction if a miscarriage of justice has occurred for any reason. Otherwise, the Court must dismiss the appeal. A miscarriage of justice includes any error, irregularity or occurrence in the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.18

Submissions on behalf of Ms A

[59]   Mr Kilian says Judge Paul placed insufficient weight on the consequences of conviction for Ms A and submits that, if sufficient weight had been placed on this consideration, he would have concluded the consequences of conviction disproportionately outweighed the gravity of the offending.

[60]   Mr Kilian says, despite Ms Mitchell’s report, the Judge did not have before him an assessment that highlighted the actual risks of Boy’s destruction to Ms A. Even so, he says Ms Mitchell’s report indicated clinically significant symptoms of anxiety arousal, depression, intrusive experiences, avoidant behaviours, dissociation and suicidality. He says these matters should have raised concern as to the effect an order for the destruction of Boy could have on Ms A.

[61]Mr Kilian submits the decision in Pehi is distinguishable:

(a)Boy is more than a family pet; a factor that seems to have been overlooked when considering Ms A’s psychological symptoms.

18     Criminal Procedure Act 2011, s 232(4).

(b)The gravity of the offending in Pehi was higher. Accordingly, the consequences of conviction needed to be more significant to establish they were disproportionate to that gravity.

(c)The emotional consequence for the son of the defendant in Pehi were sadness and the loss of a best friend, whereas in these circumstances, there is a risk of suicide or self-harm should an order be made for destruction.

Submissions on behalf of Auckland Council

[62]   Ms Magill submits Judge Paul carefully considered whether a destruction order was out of proportion to the gravity of the offending in light of the information before him. She says Judge Paul correctly assessed the gravity of the offending as moderate and correctly concluded that a destruction order was not out of all proportion to that moderate gravity.

[63]   Ms Magill says Parliament has directed that a destruction order be made where an offence under s 57(2) has been made out, unless the Court is satisfied the circumstances of the offence were exceptional and do not warrant destruction of the dog. Accordingly, a destruction order is an inevitable and ordinary consequence of the offence.

[64]   Ms Magill says both Pehi and the present case concerned owners of menacing dogs who failed to comply with the obligations of that classification, which resulted in attacks on domestic animals. She says the offending in this case is comparable to that in Pehi because both victims of the attacks received serious injuries. Ms Magill acknowledges the emotional distress of a destruction order but notes that destruction orders were made in Luani v Auckland Council and Wilson v Auckland Council, were similar issues arose.19

19     Luani v Auckland Council [2022] NZHC 2940; Wilson v Auckland Council [2024] NZHC 646.

Analysis

[65]   The following discussion is relevant to the questions of whether Dr Jones’s report should be admitted in evidence, whether the notice of abandonment should be set aside and the merits of the appeal.

The medical evidence

[66]   I agree Ms A’s mental health issues were before the Court in Ms Mitchell’s report and also, more briefly, in the medical certificate from the

Clinic.

[67]   As Ms Magill says, Ms Mitchell’s report recorded that Ms A had been diagnosed in the past with depression and anxiety and had been hospitalised numerous times, including for suicide attempts. The report records that Ms A scored clinically significant levels on a scales assessing critical issues in relation to her mental health, which may require professional interference. So, Ms A’s past history and potential future behaviours were known to Judge Paul. Moreover, he noted Ms Mitchells’ report in his assessment.

[68]However, there are significant differences between the two reports.

[69]   Without engaging with the detail of the two psychological assessments, it is apparent the differences between them relate to the fact the reports were prepared for different purposes. Ms Mitchell practises in Western Australia. While the report was drafted in January 2024 based on an interview in December 2023, Ms Mitchell was asked to assess Ms A for any psychological injury relating to personal injuries she suffered as a result of her former partner’s domestic abuse between 1 April 2019 and 28 May 2020. This is a period that predated Boy’s attack and relates to the time Ms A was living in Western Australia with her former partner.

[70]   By contrast, Dr Jones’s report was addressed specifically to assessing Ms A’s mental state and the likely impact on her functioning that would result from a destruction order. In the report, Boy was described as Ms A’s emotional support animal. Dr Jones recorded the specifics of the attack, as stated in the summary of

facts, where Ms A usually resided and the impact on Ms A and Boy of the conditions of her bail, which required that Boy not leave the property. And, as recorded above, Dr Jones stated specifically that Ms A presented with significant suicide risk directly linked to the loss of Boy.

Should Dr Jones’s report be admitted in evidence?

[71]   I accept Dr Jones’s report is credible. There is no reason to doubt the doctor’s professional competence.  His analysis and  findings are consistent with those of   Ms Mitchell, even if they are more focused and specific.

[72]   However, the evidence is not fresh, based on the test in Lundy as to whether the evidence could have been obtained with reasonable diligence.20 A report on the possible impact of Boy’s destruction could have been obtained before Ms A was sentenced. There were 22 months between the attack and Ms A’s appearance before Judge Paul, and 11 months between Ms Mitchell’s report and the appearance before Judge Paul. Ms Mitchell’s report was prepared during a period when Ms A was aware a destruction order could be made. Ms A addressed that question directly in her affidavit sworn on 4 April 2024 to which she exhibited Ms Mitchell’s report.

[73]   Because the evidence is credible but not fresh, I am required to assess its strength and its potential impact on the safety of Judge Paul’s ruling.

[74]   Dr Jones’s report states directly that Ms A presents with a significant suicide risk directly linked to the potential loss of Boy and that she has articulated a specific and plausible plan to commit suicide should Boy be destroyed.

[75]   That is a serious assessment and must be considered carefully. For that reason, alone, I am satisfied Dr Jones’s report may have an impact on whether Judge Paul’s ruling that the destruction of Boy would not be out of all proportion to the gravity of offending and should be admitted.

20     Lundy v R, above n 16, at [120].

Should the notice of abandonment be set aside? / Is there merit in the appeal?

[76]   However, that does not mean Ms A has established the notice of abandonment of the appeal should be set aside or that Ms A’s appeal should be granted.

[77]   As the Court of Appeal said in D (CA433/2015) v Police, albeit in the context of an application for name suppression:21

The possibility of self-harm or suicide always gives a court cause for anxious consideration. Suicide would be a devastating and unacceptable consequence of publication and it cannot always be assumed that an at-risk person will behave rationally.

[78]   The same must apply when considering whether the consequences of imposing a dog destruction order outweigh the gravity of the offending. I accept the reports provided to the Court posit the risks of suicide and self-harm as potential consequences of such an order.

[79]   As the Court in D (CA433/2015) went on to say, the Court cannot adopt the stance that any risk is unacceptable. It noted s 200(2) of the Criminal Procedure Act requires the Court to be satisfied the risks identified in the section are “likely”, that is, a real and appreciable possibility.22 The Court went on to observe:23

Judges know that people may experience suicidal ideation when confronted with criminal proceedings, which are immensely stressful, but very seldom, if ever, act upon it.

[80]   Section 107 of the Sentencing Act does not use the term “likely”.  However,  I consider it inherent in the assessment required under the section that the Court must be satisfied an asserted consequence of conviction is likely; that is, a real and appreciable possibility, before it can be satisfied such an outcome is out of proportion to the gravity of the offending. The Court cannot take the approach that any level of risk is sufficient to justify from refraining from making a dog destruction order that is directed by statute.

21     D(CA433/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 at [30(a)].

22     At [30(a)].

23     At [30(b)].

[81]   I am not satisfied on the basis of the evidence that there is a real and appreciable possibility of suicide or self-harm if a destruction order is made.

[82]My reasons are as follows.

[83]   First, it is clear from the reports of Ms Mitchell and Dr Jones that Ms A has threatened suicide before and has previously attempted to commit suicide. While there is no information about the nature and seriousness of any attempt to commit suicide, there is no suggestion an attempt was motivated solely by the loss of a dog. While  Dr Jones’s report refers to a reported suicide attempt that occurred after Boy had been abducted, this was at the same point in time that Ms A had been assaulted. She reported traumatic memories associated with her assault and Boy’s abduction, rather than relating to Boy in isolation. Further, Dr Jones’s report speaks to recent actions taken by Ms A to address her trauma and that she has begun to socialise in her community, feeling a duty to help others. She also reports engaging in regular ACC counselling. These circumstances indicate growing support mechanisms for Ms A, which may assist in dealing with the negative consequences of a destruction order.

[84]   Secondly, I note Dr Jones’s report suggests self-reporting by Ms A which is marked by negative distortion and potential over-reporting. I accept, as the doctor did, that this pattern in the reporting does not exclude the existence of genuine areas of concern. However, as recommended by Dr Jones, this inflation should be taken into account when interpreting clinical evaluations.

[85]   Thirdly, I consider it significant there is no reference to Boy in Ms Mitchell’s report. An explanation might be that the report was prepared for a different purpose and about a situation that had not involved Boy. However, it is notable that Boy is not mentioned, given the assessment was undertaken in January 2024, a year after the attack, in the period before Ms A’s sentencing and at a time she must have known a destruction order was likely.

[86]   Fourthly, it is apparent from Dr Jones’s report that Ms A travelled to Turkey earlier this year. Dr Jones records that he interviewed Ms A on 10 June 2025 by video for an hour while she was in Turkey. As her counsel confirmed at the hearing, Ms A

did not take Boy, who was left in care. While I do not place significant weight on this factor, I consider it relevant that Ms A felt sufficiently assured to travel without Boy’s presence and support.

[87]   For these reasons, I am not persuaded the risk of suicide or self-harm is a real and appreciable possibility if a destruction order is made.

[88]Accordingly, I do not consider the merits of Ms A’s appeal are strong.

[89]   Nor do I accept there are exceptional circumstances warranting setting aside the notice of abandonment or that it is in the interests of justice that the notice be set aside. Having regard to the importance of finality in criminal cases; the fact a report by Dr Jones or another psychologist could have been obtained before the sentencing hearing; the further fact there is no evidence from Mr A to explain the circumstance that led to her instructions to abandon the appeal; and given my assessment of the merits of Ms A’s appeal, I see no case for the Court to set aside the notice of abandonment.

[90]Strictly, that is sufficient to dispose of Ms A’s appeal.

[91]   However, for the avoidance of doubt I record that, even if the appeal had not been abandoned, it would not have succeeded. Because I am not persuaded the risk of suicide or self-harm is a real and appreciable possibility if a destruction order is made, I am also not persuaded the consequences of a destruction order are out of all proportion to the gravity of the offending.

[92]In that regard, I note the following.

[93]   First, s 57(3) of the Dog Control Act requires the Court to make an order for the destruction of a dog in Boy’s situation unless satisfied the circumstances of the offence were exceptional and do not warrant destruction of the dog. As was accepted before Judge Paul, the circumstances of the offence were not exceptional. Accordingly, the statutory direction to order the destruction of the dog applies.

It would be a rare that compliance with a statutory direction could produce a result disproportionate to the gravity of the offence that triggers such a direction.

[94]   Secondly, while Judge Paul was prepared to accept the gravity of the offending had been reduced from moderately serious to moderate as a consequence of Ms A’s efforts of reparation, I consider that assessment to be generous. This was not a first offence: Boy had already killed another domestic animal and, as a consequence, had been classified as menacing. Despite that classification, Ms A allowed Boy to be unmuzzled and off the leash in a public park where she could expect to encounter people and other domestic animals. It was inappropriate and irresponsible for Ms A to have allowed that to happen. It was even more inappropriate that she did not immediately take steps to put Boy back on the leash and put the muzzle back on when she saw Louis and his owners approaching. Instead of taking those simple precautionary measures, she assured Louis’ owners that Boy was friendly. That was wrong and she ought to have known that was wrong, particularly given his classification as menacing. I acknowledge Ms A’s efforts of reparation. However, for these reasons, I consider the gravity of the offending to be serious, and not just moderately serious.

[95]   Thirdly, I do not accept the offending that led to the dog destruction order in Pehi was more serious than the present case. The two attacks are very similar: a larger unmuzzled menacing dog attacked a smaller dog in the park and caused significant injury. But the dog in Pehi was classified menacing because of his breed, not because he had attacked previously, as Boy had. That was an aggravating feature not present in Pehi. In that respect,  the offending in Ms A’s  case was more serious.  The fact  Ms Pehi behaved badly after freeing the complainant’s dog from her dog’s mouth was not an element of the offence that led to the dog destruction order.

[96]   These circumstances also cannot be distinguished from Pehi on the basis of Boy’s classification. Ms A claims that Boy had been registered as a support dog; a claim she made to the Auckland Council Animal Management officer and Dr Jones and her previous counsel, who included that information in submissions to Judge Paul, while acknowledging they had not sighted any evidence in support. As Mr Kilian now accepts, there is no evidence Boy is registered as a support dog, as is clear from the

affidavit of Ms Alice Atkinson, who made extensive inquiries to try to determine if and when Boy was registered. Therefore, while I accept Ms A has a strong connection to Boy, Pehi cannot be distinguished on the basis of an incorrect assertion of Boy’s registration as a support dog.

[97]   For all these reasons, I am satisfied Ms A’s appeal must fail and the order for the destruction of Boy must stand. Because I have reached that conclusion, there is no need for me to consider whether to exercise the residual discretion in s 106(3)(c) of the Sentencing Act. However, I record that, had I concluded a dog destruction order was out of all proportion to the gravity of the offending because of the risks posited by the psychologist reports, I would not see any sound basis for exercising the residual discretion and ordering the destruction of the dog regardless.

[98]   I acknowledge Boy is precious to Ms A and has provided her with support throughout the years. While these circumstances do not render the order to be out of proportion with the gravity of the offending, I have sympathy for the reality of this situation and the difficulties in which these orders result.

Suppression order

[99]   Although no application for suppression has been made and although I am not persuaded the risk of suicide or self-harm is a real and appreciable possibility if a destruction order is made, I have decided, in the exercise of the powers inherent in the High Court, to suppress Ms A’s name and to anonymise the name of her dog. Given Ms A’s past issues, I consider it is in the interests of her safety that she is not named. I am also satisfied the public interest lies principally in knowing the destruction order has been confirmed rather than knowing the identity of the person whose offending led to the order.

Result

[100]Leave is not required to extend time for filing the appeal.

[101]Leave is granted to adduce the report of Dr Jones in evidence.

[102]The notice of abandonment of appeal is not set aside.

[103]The appeal against conviction is dismissed.

[104]The dog destruction order made in the District Court stands.

[105]Ms A’s name is suppressed, and the name of her dog is to be anonymised.

G J van Bohemen J