Altenburg v Invercargill City Council
[2017] NZHC 1949
•16 August 2017
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2017-425-000017 [2017] NZHC 1949
BETWEEN MATTHEW SEAN ALTENBURG
Appellant
AND
INVERCARGILL CITY COUNCIL Respondent
Hearing: 14 August 2017 Appearances:
T J McCullum for Appellant
M D Morris for RespondentJudgment:
16 August 2017
JUDGMENT OF DUNNINGHAM J
Introduction
[1] On 16 May 2017, following a guilty plea, Mr Altenburg was sentenced on charges of being an owner of a dog that has attacked a person,1 and for failing to ensure that the dog could not freely leave the property.2
[2] Under s 57(3) of the Dog Control Act 1996, the Court must make an order for the destruction of a dog that has attacked a person unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog. In this case, Judge Callaghan was unable to be satisfied that the circumstances of the offence were exceptional. He therefore ordered the destruction of the dog.
[3] The sole issue on appeal is whether the Judge erred in finding that the circumstances of the offence were not exceptional and therefore did not warrant the
destruction of the dog.
1 Dog Control Act 1996, s 57.
2 Section 52A.
ALTENBURG v INVERCARGILL CITY COUNCIL [2017] NZHC 1949 [16 August 2017]
Background
[4] Mr Altenburg is the registered of the dog which is a male Black Labrador Shar Pei cross named Deekz. He and his partner adopted Deekz in December 2014 when he was unclaimed from the Gore pound and had been given to Furever Homes to re-home. Both Mr Altenburg and his partner gave evidence that Deekz is regularly around other animals, living with two cats, and also regularly around children and that he does not normally act aggressively.
[5] The attack occurred outside the couples’ home at 54 Lithgow Place. This property is located on a corner site. While the section is fully fenced, it is a chain link fence, and the section is visible to those going past on the street. According to the appellant, Lithgow Place was a new environment for Deekz, as they had only moved there in January 2017. He and his partner say this new environment was a lot busier than Deekz was used to and he was still adjusting to it.
[6] On 6 March 2017, Deekz jumped over a fence onto Lithgow Place and attacked a passing cyclist by jumping up and biting her on her thigh. The victim said the owner of the dog was in the property and saw the dog jump the fence. He yelled at the dog and the dog went back inside the house immediately. She accepts the owner of the dog was unaware that she had been bitten. She suffered puncture wounds and bruising as a result of the attack.
District Court Decision
[7] In sentencing on these charges, Judge Callaghan accepted that, based on letters in support that had been filed, and from a DVD provided by the owners of the dog, in a controlled environment the dog seemed relatively happy and responsive. He also acknowledged the emotional issues which are prevalent in such cases and the connection people have to their pets, particularly dogs.
[8] However, applying the relevant legislative provision to the circumstances of this case, the Judge considered he was compelled to order the destruction of the dog. He noted the affidavit of Mr Peter Jones, the animal control officer which recorded that there were four complaints about this dog over the period the appellant had
owned him, the last one made just a week before the offending when Deekz jumped over the fence to aggressively confront a lady walking her dog. His Honour concluded:
[11] At the end of the day this was an unprovoked attack by a dog who jumped a fence and bit the complainant on the upper thing with two puncture marks. The defendant was there, supposedly supervising the dog and controlling the dog which he could not. I note the dog did respond immediately after. I note the defendant and his partner seem caring and generally responsible owners. But the fact the dog jumped the fence and attacked the cyclist, even as counsel suggested, possibly because the legs were moving (which would be the case if somebody was cycling) to me it cannot be described ‘out of the ordinary’. Unfortunately I cannot come to the view that the circumstances of this offence are exceptional.
[9] Accordingly the Judge ordered the dog’s destruction.
Law
[10] The relevant provisions under section 57 of the Act provides:
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.
…
[11] The issue in the present case is whether the Judge was correct to conclude that the circumstances of this attack were not exceptional in terms of s 57(3).
[12] The meaning to be given to the closing words in s 57(3) has been the subject of discussion in several decisions of the High Court.3 The term “exceptional circumstances” creates a high threshold that the owner of a dog that has attacked a person will find difficult to meet.4 As was noted in Halliday v New Plymouth District Council, the word “exceptional” means unique, or special, or substantially unusual, although the circumstances need not be extreme.5 The fact the requirement for “exceptional circumstances” is qualified by the words “and do not warrant destruction of the dog” requires the Court to undertake a predictive assessment of whether the dog is likely to behave in a similar way in the future.6 There must be something sufficiently unusual or unique in the circumstances of the offending which would displace a presumption that the dog may attack again.
[13] The factors identified in Halliday that might be relevant to determining whether there were exceptional circumstances that did not require a destruction order included:
(a) the nature of the attack (including the fact that injury resulted); (b) the owner’s history as owner of the dog,
(c) whether the dog had behaved this way in the past;
(d) the steps taken by the owner to prevent such an attack occurring; and
(e) the reasons why the steps taken did not prevent the attack on the occasion in question.
[14] However, as noted in Halliday, these factors are not exhaustive.
3 See for example: Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-
011, 14 July 2005; Orr-Walker v Auckland District Council [2013] NZHC 1541; Jorion v Kapiti
Coast District Council HC Palmerston North CRI-2010-454-022, 4 August 2010.
4 Te Kahu v Police HC Invercargill AP23/99, 1 September 1999; Peteru v Manukau City Council
HC Auckland A70/00, 6 July 2000; Halliday v New Plymouth District Council, above n 3.
5 At [40].
6 Halliday v New Plymouth District Court, above n 3, at [41].
Discussion
[15] In terms of the nature of the attack, it was an unprovoked attack by a dog that caused injury to a stranger. She suffered a puncture wound and significant bruising. The wound required medical attention and she was given antibiotics. There is nothing in this factor which would displace the presumption that the dog should be the subject of a destruction order.
[16] As Judge Callaghan accepted, the appellant and his partner are responsible owners. The dog is registered and micro-chipped and, since moving to this new property, they say they kept the dog inside during the day when they are working because they are aware it has been an adjustment for the dog to live in this more public location.
[17] However, in respect of the past history of the dog, he has been the subject of four prior complaints, although none of them ever culminated in an attack. On two separate occasions in April 2015, Deekz was seen wandering beyond the property and his owner was spoken to and advised to keep his property secure.
[18] In September 2015, the Council received a complaint from a driver of a car that thought she had hit the dog. She said the dog came running at her car and when they visited the property, the dog acted very aggressively to them.
[19] On 4 March 2016, there was a further complaint about the dog wandering and being aggressive towards two primary school aged children. Finally, only a week before the attack, a complaint was received about a black Labrador dog jumping out of its section. It approached a lady and her dog walking along the road and was aggressive. Again, the owner was reminded of the need to keep the dog secure.
[20] Ms McCullum emphasised that none of these incidents amounted to a physical attack by the dog, and to that extent this incident was out of character. However, the evidence that the dog has behaved aggressively towards strangers in the past, sufficient to warrant a complaint to dog control officers, points against the circumstances of the offence being so exceptional that they do not warrant the destruction of the dog.
[21] In terms of the steps taken to prevent such an attack from happening, the appellant points to the fact that the section Deekz lives is fully fenced. However, it is clear the owners knew that the fence was not dog proof and there had already been a complaint about the dog jumping out of the property and approaching a lady and her dog aggressively. Furthermore, while he was in the front yard with the appellant, and he was readily called back after the attack, this was clearly insufficient to stop him leaving the property in the first place.
[22] The appellant sought to explain the dog’s behaviour as an aberration caused by the fact that the day before the attack an unknown person had entered the appellant’s property and opened the door, allowing the dog to come out. Fortunately, the appellant’s sister lives across the road from the appellant, had noticed the dog come out the open door and had taken him across the road to her house. In submissions for the appellant, it was suggested that this change from the dog’s normal routine made the dog act differently from how he would normally act, and should be treated as contributing to this being exceptional circumstances.
[23] The appellant then raised other factors as contributing to the assessment. These included the fact that the dog “had a hard start in life” and may have been the subject of ill-treatment in its first few months. This dog was still getting used to the new environment at Lithgow Street. The Council initially informed the appellant’s partner that the dog would be returned if they co-operated and voluntarily brought him to the pound, which transpired to be incorrect. Finally, the victim did not stop, call out or indicate in any other way to the appellant that she had been bitten and the injuries appeared to have no ongoing impact on the victim. Looked at in totality, the appellant submits that these factors constitute exceptional circumstances warranting the quashing of the destruction order.
[24] In support of this submission, Ms McCullum pointed to the fact that a number of cases involved dogs with a worse track record. For example, in Walker v Nelson City Council, the High Court rejected an appeal of a destruction order where the dog in question had bitten people on at least nine previous occasions.7 Similarly
in Snodgrass v Kapiti Coast, a dog attacked another dog when both dogs were at the
7 Walker v Nelson City Council [2017] NZHC 750.
park off their leads.8 The dog was known to have a history of “rough housing” and had received infringement notices on at least three occasions where the dog had behaved badly. In the present case, Ms McCullum emphasised that, notwithstanding the complaints, the dog had never been the subject of any formal action by Council, such as an infringement notice, and had never actually bitten anyone before.
[25] However, in my view, there is no requirement for the dog to have a history of poor behaviour before an order for destruction is made. It simply reinforces the appropriateness of that when there is a prior history. The presumption in the legislation is that the dog is destroyed after one attack and there must be something special to displace that presumption. Here, the history of reports of wandering and of aggressive behaviour supports, rather than counters, the statutory presumption.
[26] The appellant also pointed to decisions where orders for destruction were not made and sought to draw comparisons with those. In particular, the decision in Nicol and Tekotia were relied on.9 Nicol involved a dog which was seven years old at the time. When a meter reader came to Ms Nicol’s property to read the meter, the dog appeared from the rear of the house and was acting in an aggressive manner advancing towards the meter reader. The meter reader swung his handheld reader at
the dog and backed away. Unfortunately, while backing away, he tripped injuring his ankle. The dog then approached him and bit him on the wrist, albeit there was no evidence that the skin was broken. However, the meter reader suffered significant injuries as a result of his fall. As soon as Ms Nicol appeared, she called the dog off. Although he did not respond immediately, he did then retreat to her.
[27] In deciding that the circumstances were exceptional, the Judge noted that the circumstances of the attack were extremely unusual. There was no suggestion that the dog ran at the meter reader or was barking or growling, and the attack may have been a response to the commotion of the meter reader falling. There was also no evidence that the wrist bite was at all serious or required any specific medical attention. The Judge took into account Ms Nicols’ history as a responsible dog
owner for 19 years with the fact that this dog, nor any other dog owned by the
8 Snodgrass v Kapiti Coast [2014] NZHC 1333.
9 Nicol v Whakatane District Council [2012] NZHC 727; Tekotia v Manukau City Council
HC Auckland CRI-2010-404-234, 24 August 2010.
appellant, had been the subject of a complaint in the past. Ms Nicol had her property fully fenced and normally ensured that she kept a record of when the meter reader was due so that her dogs could be kept inside. It was only because she was particularly unwell on the day and had gone home from work that she had left the back door open, enabling the dog to leave the house. Finally, the dog did respond to the command of the appellant, albeit not immediately. Given all these factors, the incident on that day was considered exceptional and the dog’s destruction not warranted.
[28] Similarly in the case of Tekotia, Mr Tekotia was held to be a responsible dog owner, but the attack on the other dog occurred when the dog had been taken for a walk without his permission. It was that unusual factor, and not the fact that the dog had never been the subject of a complaint before, which swayed the Judge that, in combination with Mr Tekotia’s history of responsible ownership, it warranted the order for destruction being set aside.
[29] In the present circumstances, the only factors which are relied on as being “exceptional circumstances” appear to be the combination of the dog still adjusting to the busier neighbourhood after the shift two months earlier, and the supposedly unsettling nature of someone opening the front door allowing the dog to get out on the previous day. Neither of these factors in my view, either viewed separately or together, constitute exceptional circumstances. The dog had had a number of weeks to adjust to the new property so if it was still liable to be excited by passing people and traffic such that it would jump the fence, then this was a factor the owners needed to take into account. It cannot compensate for the fact the dog was responsible for an unprovoked attack on a passing cyclist.
[30] Furthermore, the incident on the previous day of an unknown person coming on to the property and opening the door does not, in my view, explain the dog’s attack on a cyclist the next day. This was not a case of another stranger coming on to the property, but of the dog leaving the property and attacking a stranger. Nothing in that account explains the unprovoked attack the following day on someone who was no threat to the dog or the property.
[31] The fact the attack occurred when the dog was in the company of his owner sets it aside from a case such as Tekotia. The evidence that a similar incident had happened just the week before, where the dog had jumped the fence and approached another stranger and her dog, points to, and not against, a destruction order being made.
[32] For all these reasons, I am satisfied that the Judge was inevitably bound by this statutory direction in s 57 to the make the destruction order. None of the factors raised by the appellant, either alone or in combination, establish exceptional circumstances in terms of s 57(3).
[33] The appeal is, accordingly, dismissed and the order for destruction stands.
Solicitors:
Southern Law, Invercargill
Michael Morris at Invercargill City Council, Invercargill
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