Button v Auckland Council

[2015] NZHC 477

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-142 [2014] NZHC 477

BETWEEN

ELIJAH BUTTON

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing:

13 October 2014

Further information received 21 November 2014

Appearances:

Appellant in person
L Evile for the Respondent

Judgment:

13 March 2015

JUDGMENT OF ELLIS J

This judgment was delivered by me on 13 March 2015 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:

L Evile, Auckland Council, Auckland

Copy to Appellant

BUTTON v AUCKLAND COUNCIL [2014] NZHC 477 [13 March 2015]

[1]      Mr Button owned two dogs of the bull terrier type which attacked an elderly woman and her small terrier as they walked down the woman’s driveway.   Mr Button’s dogs killed the terrier and caused injuries to its owner.  The two dogs were subsequently destroyed.

[2]      As a result Mr Button faced two charges of owning a dog which attacked a domestic animal, and a further two charges of owning a dog which attacked a person.

[3]      Mr Button did not appear at the hearing of the charges and Judge Gittos convicted and sentenced him in his absence. The sentence imposed was:

(a)       a $300 fine on each of the two charges relating to the attack on the terrier plus court costs of $130;

(b)a $500 fine on each of the two charges relating to the attack on the woman plus court costs of $130;

(c)       reparation of $2,434, which was said to be the value of the terrier together with the cost of interment;

(d)      emotional harm reparation of $500.

[4]      A posthumous destruction order for Mr Button’s dogs was also made.

[5]      Mr  Button  sought  to  appeal  the  reparation  aspect  of  the  sentence.    His principal grounds for doing so was that he could not afford to pay, although he also referred to the value of the two dogs that had been destroyed and what he said was an absence of fault on his part for the events that gave rise to the charges.  He said he did not seek to challenge the imposition of the fines.

[6]      Ms  Evile  accepted  at  the  outset  that  there  appears  to  have  been  a mathematical error in the total amount of reparation ordered.   The victim impact statement makes it clear that the cremation costs were $234 and the price the victim had paid for the dog was $1,700.  The starting point is, therefore, that by agreement the reparation ordered should be reduced to $1,934.

[7]      After discussion with Ms Evile, I adjourned the hearing of the appeal in order that Mr Button could complete an income statement with a view to perhaps reaching some resolution of the issues.

[8]      Despite  a  number  of  promptings  from  Registry  staff  Mr  Button  did  not complete the form.  Eventually, he advised by email that he did not know how to fill out the form as he is not presently employed (although he works in return for food and board) and does not receive a benefit.  He advised that he has only recently been released from prison, is recovering from addiction and has no bank accounts.

[9]      It is unfortunate that Mr Button chose not to appear in the District Court and thus was unable to explain his circumstances to the learned Judge.  Ordinarily that would be sufficient to dispose of the appeal.  However, having had the benefit of an appearance at the appeal and the receipt of his subsequent, albeit informal, advice, I am prepared to accept that he does not have the means to meet the sentence imposed.

[10]     Section 40 of the Sentencing Act 2002 (SA) makes it clear that an offender’s means to pay is a mandatory consideration when imposing a fine.  Financial capacity is also relevant to a sentence of reparation, which may be ordered to be paid in instalments: SA s 35. The payment of reparation takes priority over the payment of a fine.

[11]     Of course, Judge Gittos was unable to take any of those matters into account when sentencing Mr Button, but in light of the information I have now received there seems merit in attempting to restructure his sentence in a way that does not set him up to fail.

[12]     Accordingly I propose to allow the appeal on the grounds of Mr Button’s inability to pay.  The sentence imposed by Judge Gittos is quashed and the following sentence is substituted.  Mr Button is to pay:

(a)       reparation to the victim of $1,000, payable by instalments of $20 a week;

(b)      court costs of $260.

[13]     Ms Evile is to notify the Court if there is any more specific direction or amendment is required in relation to the reparation order I have made.

Rebecca Ellis J