Auckland Council v Hill

[2018] NZHC 3315

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-230

[2018] NZHC 3315

BETWEEN

AUCKLAND COUNCIL

Appellant

AND

ADRIAN ARTHUR DUNLEAVY HILL

Respondent

Hearing:

17 September 2018 and further submissions 21 September 2018

Appearances:

S Wilson for the Appellant

B J Meyer and S J Mutch for the Respondent

Judgment:

14 December 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 14 December 2018 at 1.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Meredith Connell, Auckland High Street Law, Auckland

AUCKLAND COUNCIL v HILL [2018] NZHC 3315 [14 December 2018]

Summary

[1]    Kratos, a menacing dog, was unmuzzled near the workplace of his owner, Mr Adrian Hill. Kratos attacked a person who got out of her car near him, unprovoked. He has subsequently had behavioural treatment, no longer attends Mr Hill’s workplace, is kept at home, responds well to his “meet and greets” with dogs and humans, and uses a muzzle. Under s 57(3) of the Dog Control Act 1996 (the Act), the court is required to order Kratos be destroyed unless “satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog”. The District Court was satisfied of that and did not order destruction of Kratos.

[2]    The Council appeals against sentence but I treat it as a right of general appeal against exercise of a statutory power. I consider the test is whether the court is satisfied the circumstances of the owner’s offence are sufficiently exceptional, in light of what is known about the dog’s risk of attacking again, that destruction of the dog is not warranted. Here, I consider the treatment and the comprehensive measures taken by Mr Hill are compelling reasons that rebut any assumption Kratos will attack again. In light of the treatment and measures taken, I consider the circumstances of Mr Hill’s offending can now be regarded as exceptional and do not warrant destruction of Kratos. I decline the appeal.

What happened?

[3]    Kratos is a black six-year-old Bull Mastiff Labrador cross. In May 2017, apparently after a report about an attack on another dog in a dog park, Kratos was rehomed with Mr Hill and classified as menacing under s 33A of the Act. The information available to me about this incident is sketchy and not the subject of formal evidence but it does not appear to be disputed. Mr Hill was accordingly required not to allow Kratos to be at large in a public place or private way without being muzzled.

[4]    On the morning of 5 November 2017, Kratos was outside Mr Hill’s workshop, unmuzzled and unleashed and possibly asleep. Two women pulled up in a car into what appears to have been a marked carpark with signs indicating it was private parking only, outside the workshop. When one woman got out of the car, Kratos jumped up at her, unprovoked, and bit her on the forearm.   She shouted and cried  in

shock. She sustained three nasty puncture wounds on her forearm and required medical treatment. Mr Hill came out of the workshop, apologised, secured Kratos and helped treat the wounds. He says he did not envisage a member of the public would park in a no-parking zone but accepts he should have maintained better control over Kratos.

[5]    Kratos was seized and impounded and subsequently released on strict conditions. Mr Hill took Kratos to Mr Mark Vette’s Animal Behaviour Clinic for three weeks in April 2018 where he was seen by Mr Vette, an Animal Behaviour Consultant. In his report of 23 May 2018 Mr Vette diagnosed Kratos with fear-induced aggression, dog-to-dog aggression, touch sensitivity and sensitivity to novel environments. He notes Kratos was extremely mal-socialised as a puppy and guard-trained before he was re-homed with Mr Hill and his family.

[6]    Kratos is reported to have responded well to his treatment over the three weeks with Mr Vette. He responds well to his “meet and greets” with dogs and humans, and uses a muzzle. He went home with training aids and a safe home environment was designed for him so he is not walked in upon in his private area. Mr Vette “feels confident that if the owners continue his training and generalize this well, then [Kratos] will continue to be a safe and lovely dog”. Kratos no longer goes to work with Mr Hill but stays at home with Mr Hill’s partner. I am told an Animal Management Officer has inspected Mr Hill’s fully-fenced property since the incident and found it suitable for release of Kratos there, subject to conditions.

Decision under appeal

[7]    Mr Hill pleaded guilty to being the owner of a dog that attacked a person under s 57(2) of the Act. Judge D J Sharp sentenced Mr Hill to a fine of $500, emotional harm reparation of $1,000 and court costs of $130.1 In deciding not to order destruction of Kratos Judge Sharp considered his power under “s 57(a)” was discretionary and he was required to be satisfied the circumstances were exceptional and did not justify destruction.2 He considered the steps Mr Hill had taken to ensure

1      Auckland Council v Hill [2018] NZDC 14332.

2 At [5].

there was not a repeat of the behaviour were significant enough to justify a finding of exceptional circumstances.

[8]    The Auckland Council appeals the District Court’s decision not to destroy Kratos under s 246 of the Criminal Procedure Act 2011. This is the first case I can identify of a prosecution appeal of a decision not to destroy a dog where the owner was convicted and fined. Section 246 empowers a prosecutor to appeal against a sentence imposed for an offence with the consent of the Solicitor-General, which has been given here. Section 250 requires a judge to allow such an appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.

Relevant law of destruction of dogs

[9]The objects of the Act, under s 4, are:

(a)to make better provision for the care and control of dogs—

(i)by requiring the registration of dogs; and

(ii)by making special provision in relation to dangerous dogs and menacing dogs; and

(iii)by imposing on the owners of dogs, obligations designed to ensure that dogs do not cause a nuisance to any person and do not injure, endanger, or cause distress to any person; and

(iv)by imposing on owners of dogs obligations designed to ensure that dogs do not injure, endanger, or cause distress to any stock, poultry, domestic animal, or protected wildlife; and

(b)to make provision in relation to damage caused by dogs.

[10]   Section 5 imposes obligations on dog owners including, at (f), “to take all reasonable steps to ensure that the dog does not injure, endanger, intimidate, or otherwise cause distress to any person”.

[11]   If a dog is classified as menacing, s 33E requires the owner not to “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”.

Section 2 provides “private way” is defined according to s 315(1) of the Local Government Act 1974, but nothing turns on that here.

[12]   Section 52 requires the owner of any dog to keep that dog under control at all times. Sections 57 and 57A of the Act provide for situations where dogs attack or rush people or animals. Relevantly, s 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.

[13]   In Easthope v Auckland Council, the Court of Appeal characterised the two required elements in s 57(3), whether the circumstances of the offence are exceptional and the destruction of the dog is warranted, as “cumulative”.3

[14]   Section 57(5) provides for a dog control officer, who has reasonable grounds to believe such an offence has been committed under subs (2), to seize and take custody of a dog or, if that is not practicable, to destroy the dog. Section 57 attacks are more serious than dogs “rushing” or startling a person or animal causing a person to be killed, injured or endangered, under s 57A, where a court “may” (rather than “must”) order destruction of the dog. But s 57 attacks are less serious than dogs attacking a person or protected wildlife and causing serious injury under s 58 where the court “shall, on convicting the owner, make an order for the destruction of the dog

3 At [13].

unless satisfied that the circumstances of the attack were exceptional and do not justify destruction”.

[15]   In Halliday v New Plymouth District Council, Heath J observed that the language “circumstances of the offence” in the subs (3) proviso had been amended in 2003 from the previous version which referred to “circumstances of the attack”.4 Regarding the new s 57(3), he held:

(a)As cited approvingly by the Court of Appeal in Easthope, “[t]he term exceptional creates a very difficult test for a dog owner to surmount and requires the circumstances to be unique, special or substantially unusual, though not necessarily extreme”.5

(b)“The qualifying phrase ‘and do not warrant the destruction of the dog’ focuses attention on the need for a predictive assessment of whether the dog is likely to behave in a similar way in the future. Destruction of a dog which has attacked or caused serious injury to a person will be unwarranted only if the Court were satisfied that the dog was unlikely to attack or cause serious injury again.”6

[16]   Heath J considered the underlying principle is now that “once a dog has attacked it will be assumed it will attack again unless there are compelling reasons justifying an alternative view”.7 Regarding the change in language in 2003, he held the law no longer focussed on the attack but considered “[w]hat is now required is a broader assessment of the likelihood that the dog will behave in a similar way in the future, based on the unusual or unique circumstances arising out of the particular offence”.8 He considered the prior history of the dog and the way the owner controlled the dog at the time of the attack might be relevant to the evaluation of the circumstances of the offence,9 but events which post-date the offence are not.10

4      Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005 at [13].

5 At [40]. Endorsed in Easthope v Auckland Council [2018] NZCA 234 at [4].

6 At [41].

7 At [44].

8 At [47].

9 At [42].

10 At [43].

[17]   Heath J identified the following list of non-exhaustive indicative factors relevant to determining whether there are exceptional circumstances, which has recently been endorsed by the Court of Appeal in Easthope:11

(a)the nature of the attack (including the fact that injury resulted);

(b)the history of the dog owner;

(c)whether the dog had behaved this way in the past;

(d)the steps that had been taken by the owner to prevent such an attack occurring; and

(e)the reason why the steps taken by the owner did not prevent an attack on the occasion in question.

[18]   In Korewha v Whangarei District Council, Woodhouse J differed from Heath J in considering anything occurring after a dog’s attack should not be excluded from “the circumstances of the offence”.12 Analogising with the principles of the Sentencing Act 2002, he considered there was no reason why relevant information arising from conduct or behaviour after the attack, both of the offender and of the dog, should not be taken into account.13 Similarly, Brewer J in Xu v Auckland Council considered it was putting the exceptional circumstances test too narrowly to preclude consideration of behaviour after the attack altogether but considered it was most relevant to whether destruction of the dog is warranted.14  In several judgments Katz J in the High Court considered events post-dating the offence could not be taken into account in relation to whether the circumstances were exceptional but could be taken into account in considering whether the circumstances warrant destruction of the

11     At [48] endorsed by Easthope v Auckland Council, above n 5, at [4].

12     Korewha v Whangarei District Council [2017] NZHC 3178 at [40].

13 At [40].

14     Xu v Auckland Council [2015] NZHC 3024 at [11].

dog.15 In Easthope, the Court of Appeal noted the different approaches taken to this issue but did not find them necessary to address, for the purposes of that case.16

[19]   Varying judicial views have been expressed as to the meaning of the proviso conferring a discretion in s 57(3): “unless it is satisfied that the circumstances of the offence were exceptional and do not warrant the destruction of the dog”. Like Heath J in Halliday, I agree the purpose of Parliament’s wording is to require a broader assessment than under the previous statutory regime of the likelihood the dog will attack again in future, based on the unusual circumstances of the offending.17 I do not consider that purpose is best achieved by conceptualising a two-stage test in which one stage is directed at an abstract concept of “exceptional”. What is exceptional must be read in light of the risk-prevention purpose of the discretion, as must what warrants destruction of the dog.

[20]   I consider the resulting cumulative test is whether the circumstances of the owner’s offence are sufficiently exceptional, in light of what is known about the dog’s risk of attacking again, that destruction of the dog is not warranted.

[21]   That is to be assessed by reference to the factors identified by Heath J and the additional factor of the post-attack circumstances of the dog. Like Woodhouse J in Korewha and Brewer J in Xu, I do not consider s 57(3) requires a Court necessarily to disregard relevant considerations that post-date the attack. Post-attack circumstances can clearly bear on whether destruction of the dog is warranted. And assessment of whether the circumstances of the owner’s offence were “exceptional” also requires reference to some comparator. If the circumstances of an owner’s offence were exceptional in the sense they are highly unlikely to happen again, given the owner’s remorse and risk-prevention measures taken, that must be a relevant consideration in achieving Parliament’s purpose. So, I can see no reason the assessment of exceptionalism should exclude circumstances after the owner’s offending. Rather, it should include them if they are relevant to prevention of further attacks.

15 Easthope v Auckland Council [2017] NZHC 3142 at [9]. And see McClintock v Taupo District Council [2017] NZHC 58, [2017] NZAR 272; Anand v Auckland Council [2013] NZHC 445, [2013] NZAR 285.

16     Easthope v Auckland Council, above n 5, at [9]–[10].

17     Halliday, above n 4, at [47].

[22]   At the hearing, I asked counsel whether any animal rights jurisprudence bears on any of the legal issues here. I subsequently received a joint memorandum from them advising, after researching the issue, they were not aware of any authorities that would substantially assist the Court.

Am I satisfied Kratos should not be destroyed?

Submissions

[23]   Ms Wilson, for the Council, submits the Judge erred in law in applying s 57(3) by: incorrectly assessing the unprovoked nature of the attack: over-estimating the extent to which post-attack factors could be taken into account; and placing insufficient weight on Kratos previously having been classified as menacing. She submits the Judge appears to have conflated the discretionary power to order destruction under s 57A with the mandatory requirement to order destruction under s

57. She submits there are no exceptional circumstances and, even if there were, the Judge failed to assess correctly the ongoing risk to public safety posed by Kratos. She submits I should order Kratos be destroyed under s 57(3).

[24]   Mr Meyer, for Mr Hill, submits there are exceptional circumstances and I can be satisfied Kratos is unlikely to behave in a similar manner in future. He submits Mr Hill is remorseful, willing to pay reparation and wished to engage in restorative justice. He submits Kratos has been fully secured at Mr Hill’s property since the incident, with no further concerns and points to Mr Vette’s report. He submits the Judge’s decision on whether the circumstances warrant the destruction of the dog is a discretionary decision and there are no grounds to interfere with it.

Decision

[25]   Dogs have an ambivalent place in New Zealand culture as both favoured friends and threats to safety.18 The Act deals primarily with the control of dogs and, in the context of this case, imposes obligations to ensure they do not injure people. The Act’s regime for dealing with attacks by dogs in ss 57, 57A and 58 is relatively

18 David Tong and Vernon Tava “Moral Panic and Flawed Laws: Dog Control in New Zealand” in Peter Sankoff, Steven Whiter and Celeste Black (eds) Animal Law in Australasia (2nd end, The Federation Press, Sydney, 2013) 104 at 109.

stern. By contrast, for example, most Australian jurisdictions confer a discretion to destroy a dog where it has attacked; none impose a presumption of destruction.19

[26] Although animal welfare is not a noticeable feature of the Act’s scheme and purpose, it is appropriate to note its statutory context, the Animal Welfare Act 1999, which does have that purpose. Both Acts currently seek to achieve their purposes by placing legal obligations on the owners of animals as property, rather than any alternative conception of animal-human relationships, such as trying and sentencing dogs as legal persons as was apparently done in old English times.20 But, as Baragwanath J wrote in Hamilton City Council v Fairweather, in a comment approved in Halliday, the context of the Act suggests “recognition that dogs are living creatures of greater significance than mere chattels”.21

[27]   As it is, the legal nature of a court’s ability to order destruction of a dog for rushing, attacking or attacking causing serious injury under ss 57A(2)(b), s 57(3) and 58 is a power, duty and duty respectively, with the duties being subject to provisos containing powers. These are powers a court is required to consider exercising in a prosecution of an owner for committing a related offence. A destruction order in respect of a dog is not part of a sentence of the owner, but a concomitant decision to be made for the purpose of risk management. Dobson J has stated s 57(3) “can only be seen as having a preventative motive, rather than any punitive one”.22 As Jagose J stated in Pukepuke v Auckland Council:23

For what it is worth, destruction orders should not be seen as part of any sentencing process, but as a separate risk avoidance mechanism. Nothing in a dog’s destruction should reflect principles of sentencing as may affect its owner. It is wrong in principle to kill a dog to punish the person charged with its control, care and protection: s 5.

[28]   It follows that, strictly speaking, I do not consider appeal of a dog destruction decision is an appeal of the owner’s sentence, under s 246 of the Criminal Procedure

19     Tong and Tava, above n 18, fn 127 at 123.

20     Tong and Tava, above n 18, at 109.

21     Hamilton City Council v Fairweather [2002] NZAR 477 at [37], cited in Halliday, above n 4, at [27]–[28].

22     Jorion v Kapiti Coast District Council HC Palmerston North CRI-2010-454-22, 4 August 2010 at [9].

23     Pukepuke v Auckland Council [2018] NZHC 1361 at fn 22.

Act 2011. As Heath J stated in Halliday, in effect, an appellant “is challenging the order on behalf of the dog”.24 It is an appeal of a concomitant statutory power. It therefore falls under the general right of appeal in s 124 of the District Court Act 2016. But the appeal route makes little difference, except the Solicitor-General’s consent is not required. I do not accept Mr Meyer’s submission that the question of whether destruction of a dog is warranted is a matter of judicial discretion. That question involves the application of legal criteria, as illustrated by the factors Heath J has identified as relevant. As a general appeal, the appellant is entitled to judgment in accordance with the opinion of this Court.25

[29]   Here, the nature of the attack does not inspire confidence in Kratos’s future. Kratos was required to be muzzled and on a leash because he is menacing and in a private way. He was neither muzzled nor on a leash. Mr Hill could not reasonably rely on no one straying onto a marked carpark just because there was a no-parking sign. But there is no evidence before me that Mr Hill has a history of neglecting his duties as a dog-owner otherwise or that Kratos had attacked people before. It appears he attacked another dog in May 2017, but I have little information about that incident and, in any event, circumstances have changed since then.

[30]   Mr Hill is remorseful and has offered reparation and to engage in restorative justice. Most importantly, Mr Hill has taken comprehensive responsible measures to ensure the circumstances of his previous offending do not happen again: Kratos no longer comes to work with him but stays at Mr Hill’s fully-fenced property inspected by an Animal Management Officer, where he cannot be surprised by visitors; and there are indications from Mr Vette, the Animal Behaviourist, that Kratos has responded well to treatment of his behaviour and is now working with a muzzle. I consider the treatment and the comprehensive measures taken by Mr Hill are compelling reasons that rebut any assumption Kratos will attack again.

[31]   On the basis of these factors, and particularly the measures now taken by Mr Hill to comply with his obligations as a dog owner, I consider the circumstances of Mr Hill’s offence can now be regarded as exceptional and do not warrant destruction of

24     Halliday, above n 4, at [9].

25     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

Kratos. Even if he inadvertently cited the wrong section of the Act, I do not consider Judge Sharp was wrong not to order destruction of Kratos. Neither was he wrong to emphasise that any repeat behaviour is likely to have the opposite result.

Result

[32]I decline the appeal.

Palmer J