Decke v New Plymouth District Council
[2024] NZHC 3195
•31 October 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-443-000038
[2024] NZHC 3195
RUSSELL KEITH DECKE v
NEW PLYMOUTH DISTRICT COUNCIL
Hearing: 30 October 2024 Counsel:
A R Laurenson for Appellant J E Bourke for Respondent
Judgment:
31 October 2024
JUDGMENT OF GRAU J
[Sentence appeal]
[1] On 12 September 2024 in the New Plymouth District Court,1 Judge Grieg sentenced the appellant, Mr Decke, to pay a fine of $250 and ordered that Mr Decke’s dog, Taika, be destroyed following his guilty pleas to three charges under the Dog Control Act 1996 (the Act) of failing to comply with a menacing dog classification by allowing Taika to be in a public place without being muzzled,2 failing to register Taika for the year 2023 to 2024,3 and being the owner of Taika when he rushed at a man and his dog.4
1 New Plymouth District Council v Decke [2024] NZDC 22058.
2 Dog Control Act 1996, ss 33E(1)(a) and 33EC(1) (maximum penalty of fine not exceeding
$3,000).
3 Dog Control Act, s 42(1) (maximum penalty of fine not exceeding $3,000).
4 Dog Control Act, s 57A (maximum penalty of fine not exceeding $3,000, court may make an order for the destruction of the dog).
DECKE v NEW PLYMOUTH DISTRICT COUNCIL [2024] NZHC 3195 [31 October 2022]
[2] Mr Decke appeals the order for the destruction of Taika but takes no issue with the fine of $250. The respondent, the New Plymouth District Council (the Council), says the order for destruction was appropriate and the appeal should be dismissed.
Circumstances of the offending
[3] The following offending is drawn from the summary of facts that was accepted as the basis for the guilty pleas to the charges.
[4]Mr Decke is the owner of Taika, a brindle male Bull Mastiff cross.
[5] On 18 May 2023, the Council classified Taika as a menacing dog as a result of Taika aggressively rushing off Mr Decke’s property at members of the public who were walking along the footpath.
[6] On 18 December 2023, the complainant was walking his dog on a leash in the area of the Bell Block beach. The complainant sat at a bench to rest, with his dog sitting next to him on the leash.
[7] Mr Decke and his wife were also walking in the area with Taika and another unidentified dog. Mr Decke had Taika, while Mrs Decke had the lead for the unidentified dog. As a menacing dog, Taika was required to be muzzled. He was not.
[8] As Mr and Mrs Decke neared the complainant, the unidentified dog growled and ran towards the complainant. Mrs Decke was unable to keep hold of this dog. Taika then broke free from Mr Decke’s grip and followed after the unidentified dog. The unidentified dog ran towards the complainant, bit him on the knee and then started attacking the complainant’s dog. Taika also rushed towards the complainant and his dog, but a member of the public was able to grab him and prevent him from joining the attack.
[9] Mr and Mrs Decke managed to regain control of Taika and the unidentified dog with the assistance of members of the public. Mr and Mrs Decke then returned home with the dogs.
[10] The complainant’s dog required veterinary treatment for multiple bite wounds to his legs. The complainant contacted the Council about the incident.
[11] On 19 December 2023, Animal Control officers visited the Deckes’ address to seize Taika, but Mr Decke refused to hand the dog over. On 28 March 2024, Animal Control officers returned. With the assistance of Police who executed a search warrant, they seized and impounded Taika, who was unregistered for the 2023 to 2024 dog registration year.
District Court sentencing decision
[12] Judge Greig began by setting out the charges Mr Decke had pleaded guilty to under the Act. Of note, he described the third charge as, “[Mr Decke] was the owner of Taika when it attacked another domestic animal … and that he was the owner of Taika when the dog rushed at a man … and attacked [his dog]”.5 I observe here the first half of the Judge’s description of this charge was incorrect. The charge had originally been that Mr Decke was the owner of a dog that “attacked a domestic animal, namely another dog…”.6 It was amended to “… rushed at [a man and his dog] in a manner that caused them to be endangered”.
[13] His Honour then set out the circumstances of offending as recorded in the agreed summary of facts. Those facts did not include that Taika had attacked any person or dog, rather, as above, described that Taika rushed towards the complainant and a member of the public prevented Taika joining in the attack on the complainant and his dog.7
[14] After describing the offending, the Judge indicated that, upon conviction, the Court may make an order for the destruction of the dog.8 That consequence of the correct charge, was, therefore correctly set out.
5 New Plymouth District Council v Decke, above n 1, at [4].
6 Dog Control Act, s 57.
7 At [5]–[11].
8 At [12].
[15] Next, Judge Greig referred to the receipt of an affidavit from Mr Decke, and that Mr Decke’s counsel had urged the Judge to proceed to sentencing as the dog had now been in the pound for six months.9
[16] Judge Greig then set out Mr Decke’s explanation that he and his wife had decided to contest the menacing dog classification because they did not believe it was fair, and that is why they had not paid the registration fee. Mr Decke had also said he did not believe his dog was aggressive, although he accepted other people may interpret him that way. Mr Decke said Taika was not a violent dog that fights. He said they had never had problems looking after dogs. They had muzzles for Taika and generally put one on, but on this occasion they simply forgot.10
[17] The Judge also set out Mr Decke’s explanation that they had not gone out with the other dog, but they had encountered it and thought they would see if they could find its owners, so they took it on a lead with them. That dog was generally friendly, but it had also caused problems in Bell Block. Mr Decke had explained how the other dog slipped its collar and his wife tried to stop it attacking the complainant’s dog. Taika appeared to be scared Mrs Decke might get hurt and appeared agitated. He slipped his harness, but he had never slipped it before. Mr Decke had also described Taika’s distress at being impounded.11
[18] The Judge observed he would have to put the matter off for several months to consider in the way the prosecutor wanted him to do, and he was not prepared to do that.12
[19] Judge Greig concluded that the summary of facts to which Mr Decke had pleaded guilty “speaks for itself”. Mr Decke had been ordered to muzzle the dog and failed to do so. It behaved in an aggressive way. The summary suggested that Mr Decke is not responsible when it comes to keeping the dog. Regardless of whether
9 At [13].
10 At [14].
11 At [15]–[17].
12 At [17].
Mr Decke was contesting the menacing dog classification, he was required to keep the dog muzzled, and it should also have been registered.13
[20] In the circumstances, the Judge considered that a minimal fine of $250 was appropriate and he made an order for the destruction of the dog. In light of the advice that an appeal would be filed, the Judge stayed the destruction order.14
[21]The Judge added an addendum to his sentencing notes which states:15
Ms Hicklin is concerned that I may have referred to matters that have now been withdrawn. I have made my decision based on the summary of facts that I have been presented with, not anything else.
Amendment to charge
[22] Central to this appeal is that one of Mr Decke’s original charges was amended on the day of sentencing. The charging document dated 29 April 2024 indicates that Mr Decke was charged with being an owner of a dog that attacked a domestic animal, namely another dog. The charge is under s 57(1)(b) and subs (2) of the Act. However, there is a handwritten amendment on the charging document which changes the charge to being the owner of a dog that rushed at a man and his dog in a manner that caused them to be endangered. The amendment was dated 12 September 2024 and initialled. The applicable section was not amended on the charging document, but the summary of facts clarifies that the charge on which Mr Decke was being sentenced was now under s 57A of the Act.
[23] This amendment is important because, where a person is convicted of an offence under s 57, 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.16 In contrast, under s 57A, the Court may make an order for the destruction of the dog.17 On appeal, it is contended that the Judge was unclear as to what charges Mr Decke faced.
13 At [18].
14 At [19]–[20].
15 At [21].
16 Dog Control Act, s 57(3).
17 Dog Control Act, s 57A(2)(b).
Approach to appeal
[24] The Court of Appeal has confirmed that an appeal against a dog destruction order is an appeal against sentence.18 Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. For Mr Decke to succeed on appeal, the Court must be satisfied that there was an error in the sentence imposed upon conviction and a different sentence should be imposed.19 In all other cases the Court does not retain any discretion and must dismiss the appeal.20 An appeal against sentence is not an appeal de novo; absent any error, the appellate court may not simply substitute its own opinion for that of the court below.21
Relevant principles under the Dog Control Act
[25] Section 5 of the Act sets out a number of obligations for dog owners, which include requirements for registration and keeping dogs under control at all times. The underlying focus of the Act is the protection of the public, and criminalising certain conduct by dog owners is the Act’s mechanism by which the Act aims to achieve public safety.22
[26] When a dog has been classified as a “menacing dog” under ss 33A or 33C, further obligations are imposed on dog owners. For example, the dog owner must not allow the dog to be at large or in any public place without being muzzled in such a manner as to prevent the dog from biting.23 A failure to comply is an offence, attracting a fine not exceeding $3,000.24
[27] As indicated above, s 57A provides that, where a dog is in a public place and rushes at any person or animal in a manner that causes and person to be injured or endangered, or any property to be damaged, the owner is liable on conviction to a fine not exceeding $3,000 and the Court may make an order for the destruction of the dog. This provision has been said to reflect Parliament’s assessment that dogs which
18 Auckland Council v Hill [2019] NZCA 296 at [10].
19 Criminal Procedure Act 2011, s 250(2).
20 Section 250(3).
21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
22 Adams v South Taranaki District Council [2021] NZHC 3254 at [44].
23 Dog Control Act, s 33E(1)(a).
24 Section 33EC(1).
actually attack present a greater future danger than those that only rush or startle. The former are generally liable for destruction on conviction of the owner. For the latter, there is judicial discretion.25
[28] In Slater v Police, Ellis J set out relevant matters that the Court could take into account when considering destruction under s 57A, including:26
(a)the quality and severity of the “offending”—by which is meant the circumstances and factual detail of the “rushing” or “startling”; and/or
(b)the nature and severity of the consequences (which in many “rushing” cases may well be a matter of happenstance); and/or
(c)an assessment of the ongoing dangerousness of the dog concerned and any available measures that exist to ensure that similar “offending” does not occur in future.
Further evidence on appeal
[29] No formal application was made to adduce further evidence on appeal, but an updating affidavit by Mr Decke, dated 3 October 2024, has been filed in support of the appeal. Mr Decke’s affidavit sets out his perspective on whether the Judge read and sufficiently considered his affidavit that he says was filed 10 minutes before the hearing. In his view, the Judge had not read his affidavit and he believes it is unlikely he would have had any opportunity to do so. He also considers the Judge was unclear about what he had pleaded guilty to. Mr Decke goes on to explain that, following the hearing, a Ms Price, who had been at the back of the court room, approached him, said that she lived in Bell Block, and that she knew about the dog that had attacked the complainant’s dog as being the dog that had previously attacked and killed her cat. Mr Decke indicates that Ms Price agreed to prepare an affidavit confirming this, but there is no such affidavit before the Court. Instead, a witness statement is attached from a person who appears to be one of the members of the public who intervened in the fracas and grabbed Taika to stop him joining in the attack.
25 See Auckland Council v Hill [2020] NZCA 52; [2020] 3 NZLR 603 at [32].
26 Slater v Police [2015] NZHC 707 at [18].
Positions of the parties
Mr Decke
[30] For Mr Decke, Mr Laurenson submitted that the sentencing Judge failed to exercise his discretion pursuant to s 57A(2)(b) of the Act in that the Judge:
(a)was unclear as to what charges Mr Decke faced, specifically, whether Mr Decke had been charged with attacking under s 57 or rushing under s 57A or both;
(b)had not read Mr Decke’s affidavit in support of his sentencing submissions;
(c)failed to provide an opportunity for counsel for Mr Decke to make oral submissions at sentencing; and
(d)refused to give the matter proper consideration.
[31] Mr Laurenson observes that the Council had sought an adjournment to consider Mr Decke’s affidavit, but he said he advised the Court Mr Decke wished to have the matter resolved as soon as possible. However, the Judge’s failure to read and give proper consideration to the affidavit evidence was a serious breach of natural justice. Mr Laurenson submits the Judge was effectively refusing to exercise a discretion because he could not do so without being in possession of (and having considered) all of the facts and all of the evidence. Instead, it is open to conclude the Judge had made up his mind before he entered court, when if he had properly considered all matters, including that Taika has never attacked a person or a dog and did not instigate this attack, the Judge would not have made an order for destruction.
The Council
[32] In response, Mr Bourke for the Council submits that the sentencing of Mr Decke must be considered in the context of a busy District Court list day. Whilst the decision refers to a guilty plea to the attack charge, the Judge ultimately referred to the correct summary of facts and that destruction is discretionary for a rushing
charge. Mr Bourke says that Mr Decke was not unfairly prejudiced by the way in which sentencing occurred and therefore the appeal should be dismissed.
[33] The Judge had received Mr Decke’s affidavit and had an opportunity to read it as he references it in his sentencing decision. The Judge had written submissions from defence counsel and therefore, even if no oral submissions were made on the day, the Court was aware of the defence position.
[34] Mr Bourke notes that the Judge’s comments about not being prepared to put the matter off are more likely due to the fact that there are significant delays in getting sentencing dates in the New Plymouth District Council, submitting that if the matter had been adjourned, then the earliest sentencing date would have been in December.
[35] Mr Bourke submits that, overall, the nature of the offending, the nature of the consequences, and the ongoing dangerousness of Taika meant destruction was the appropriate outcome. In comparison, classification of Taika as a dangerous dog would not reduce the risk to the public given Mr Decke’s compliance issues.
Analysis
Was there an error in the sentencing decision?
[36] The first error the Judge is said to have made is that he was unclear as to what charge Mr Decke was being sentenced for.
[37] I accept that there appears to be some initial confusion in sentencing decision. However, I do not consider the Judge was confused, because the Judge soon clarified the position by reference to the summary of facts which correctly stated that Taika did not attack anyone. His Honour also explicitly stated that the decision to order the destruction of the dog was discretionary. The charging document had also clearly been amended to describe a rushing, as opposed to an attack, notwithstanding the section had not been altered.
[38] The second error alleged is the Judge’s failure to read Mr Decke’s affidavit. That submission is simply untenable when throughout the sentencing decision the
Judge has referred to Mr Decke’s affidavit and on one occasion directly quoted from it. He could not have done so if he had not read it. And contrary to Mr Decke’s belief, it is not at all unusual for a District Court Judge to read and digest such material very shortly before a sentencing hearing, or when the hearing is underway. It is also abundantly clear from the sentencing decision that the Judge understood the essence of Mr Decke’s affidavit and his argument. That position is reinforced by a consideration of the submissions filed for Mr Decke at sentencing which did not contain the detail that is in the affidavit.
[39] The third alleged error is that the Judge gave no opportunity for Mr Decke’s counsel to make oral submissions at the sentencing hearing. I agree that it would have been preferable for the Judge to hear oral submissions before proceeding to sentence. At the appeal hearing I asked Mr Laurenson what he would have said in oral submissions. He said he would have made oral submissions in relation to Mr Decke’s affidavit. That may be so, but Mr Bourke is also correct that Mr Decke’s position was evident in his affidavit and in the written submissions filed in advance of sentencing. The grounds that were put forward for saying that destruction should not be ordered were very clear.
[40]The final alleged error is a refusal to give the case proper consideration.
Mr Decke highlights that the Judge said:27
[Mr Decke] talks about the distress that Taika has suffered being impounded. I note that I would have to put this matter off for several months in order to consider it in the way that Ms Hicklin wants me to consider it. I am not prepared to do that.
[41] I do not accept the Judge’s comment stands for the proposition contended for it. Instead, I agree with Mr Bourke’s submission that the Judge’s comments concern the significant delays in getting future sentencing dates. Contrary to Mr Laurenson’s suggestion that the case should instead have been placed in a list court in a week or two, this was a sentencing matter, and if it had not been dealt with on the day (at the request of Mr Decke’s counsel) it would appropriately have been put off to a sentencing list date, with the attendant delay. The Judge had referred to the concerns
27 New Plymouth District Council v Decke, above n 1, at [17].
about Taika being impounded, given by that stage the dog had been impounded for six months. Therefore, the comments reflect the need to bring finality to the matter for all concerned, including for the dog’s welfare.
[42] Overall, I cannot identify any error in Judge Grieg’s sentencing decision. His Honour was faced with an unregistered, unmuzzled “menacing” dog that was not kept under sufficient control, allowing it to rush at another person with a dog. It was only a matter of good luck that a passerby was able to restrain him so that he did not join in the attack by the other dog that the Deckes had unwisely included in their walk.
[43] I also observe that Taika has previously rushed at people walking past the Decke’s property on two separate occasions; in October 2022, where Mr Decke received a warning from the Council, and again in April 2023, which resulted in Taika (who was not registered) being classified as a menacing dog and an infringement for failure to register. That behaviour tends to suggest this relatively young dog is likely to behave in a similarly aggressive manner in future.28 There are no other measures, such as classifying Taika as a dangerous dog, that would sufficiently reduce the risk of a repeat. Such restrictions are only effective in protecting the public if the dog owner strictly complies with the conditions. Sadly, Mr Decke has demonstrated an inability to comply with the strictures of owning a dog that had been classified as menacing. It is evident he does not agree with that classification. That inability to recognise the effect of the dog’s behaviour on others also increases the risk of future issues arising.
[44] Mr Decke has indicated he would comply with any restrictions or requirements. Indeed, at the hearing I was told that the Deckes would even go to the extent of selling their property and buying a rural property so that Taika could properly be exercised. However, I agree with Mr Bourke’s submission that promises of future compliance must be viewed against the background of failures to comply with the general obligations of dog ownership and the menacing classification. As already mentioned, this is Taika’s third incident of rushing at people.
28 Auckland Council v Hill, above n 25, at [77].
[45] It follows I do not consider Judge Greig erred in making an order for destruction.
Application for discharge without conviction
[46] However, that is not the end of the matter. Towards the end of Mr Laurenson’s submissions in support of the appeal, he said that, in the alternative, he sought leave to appeal the conviction out of time, and he made an oral application for a discharge without conviction. The application was made in reliance on a recent decision of Boldt J, in which his Honour discharged an appellant without conviction, thus avoiding the generally mandatory order for destruction of a dog whose owner has been convicted of a charge under s 57(2) of the Act.29
[47] The application for a discharge was made without any notice to the Court or to the respondent. That is not a course to be encouraged. However, I was willing to deal with it, given Mr Bourke was well able to provide a response.
[48] I note here that Boldt J’s decision followed the recent release of the Court of Appeal’s decision which clarified that a conviction is a prerequisite for the making of a destruction order under s 57(3).30 In that case, the Court also addressed s 57A, which it considered as “strongly suggesting” that consideration of whether to make a destruction order necessarily follows conviction.31
[49] The assessment for considering a discharge without conviction involves a three-step process.32 First, the gravity of the offending is determined, with a consideration of all the aggravating and mitigating features of the offence and the offender. Next, the identification of the direct and indirect consequences of conviction is required. There must be a “real and appreciable risk” that the identified consequences will occur. The nature, seriousness, and degree of likelihood of the identified consequences is material.33 The third step is to evaluate whether those consequences are out of all proportion to the gravity of the offence. If the Court
29 Shramka v South Taranaki District Council [2024] NZHC 3064.
30 Re Solicitor-General's Reference from CRI-2022-404-212 ([2022] NZHC 31) [2024] NZCA 401.
31 At [55].
32 Prasad v R [2018] NZCA 537 at [11].
33 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [82].
decides that they are out of all proportion it must still consider, as a matter of residual discretion, whether to grant a discharge without conviction (although it would be rare to decline to do so).34
[50] As Boldt J set out in Shramka, in a case such as the present, destruction of the dog is a direct consequence of the conviction, given my finding that there was no error made by Judge Grieg in the exercise of his discretion to order destruction.35 As Boldt J also pointed out (although in the context of a dog that had attacked), sometimes destruction will plainly be a proportionate consequence, for example, where an attack is particularly serious or there are reasons to expect further attacks may occur in future.36 I consider the same applies to the offence under s 57A as it relates to a dog that rushes. I also agree that the public protection policy underpinning the Act and the offences provided as the mechanism to achieve public safety must be borne in mind.
[51] In Shramka, his Honour was satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offending.37 There his Honour regarded the attack (biting a courier on the arm when she was delivering a package) was moderately serious, but the evidence demonstrated the dog’s owners were a responsible dog-owning family, the property was well fenced, and the attack was only made possible from a moment’s carelessness by an occupant in leaving a gate open when meeting the courier, when the owner himself was not even home. The dog had a “good record”. The owner was himself of good character. The consequences were the destruction of a “much-loved” 13-year-old family dog who had never hurt anyone before. A conviction also meant the owner, who only had a historic conviction, would no longer be entitled to the benefit of the clean slate regime, and both his present conviction and his historic conviction would have to be declared.38
[52] In contrast, in Adams v South Taranaki District Council,39 Isac J took into account that the consequences of a conviction would deprive the elderly appellant of a beloved friend and companion, but nevertheless destruction was not out of all
34 Datt v R [2024] NZCA 297 at [9].
35 Shramka, above n 29, at [22].
36 At [23].
37 At [43].
38 At [37]–[42].
39 Adams v South Taranaki District Council, above n 22.
proportion to the gravity of the offending.40 The dog in that case had also bitten a courier, but that was only one of three attacks before the court, thus the dog had “form”. As well, the owner lacked insight and had a tendency to blame others, including the victims, for the behaviour of the dog.41 In those circumstances the Judge had no confidence the appellant would ensure his dog did not attack others in the future, when a future attack on a vulnerable victim might be far more serious.42
[53] I agree with Mr Bourke that the gravity of the offending in this case is moderate. The injuries to the complainant and his dog cannot be attributed to the rushing by Taika, but there are other aggravating factors, most particularly, that this is the third time this young dog has rushed. The first time resulted in a warning, the second in a classification as a menacing dog, and yet he was still able to rush again after his classification as a menacing dog because his owners did not exercise the necessary care to have him properly restrained. Nor was Taika muzzled or registered as required.
[54] I accept a dog destruction order is a consequence of a conviction. The Deckes will be deprived of a much-loved pet. But they are not “an elderly couple” (despite Mr Laurenson’s description of them as such) who have had this dog for a very long time, as appeared to be the case in Adams. Nor is the dog an elderly dog who has reached an advanced age without any previous issues, as in Shramka. The dog does not have a “good record”. Instead, he has “form”.
[55] The prospect of publication was also raised as a consequence of conviction, but as publication may equally be a consequence of any decision to discharge without conviction, I do not consider it is particularly relevant.
[56] Nor am I am satisfied that the consequence, being a destruction order, is out of all proportion to the gravity of the offending in this case, which is far more comparable to Adams than Shramka. I accept the Deckes will be devastated. But loss and grief is
40 At [48].
41 At [46].
42 At [47].
likely to be suffered by most people whose dog is destroyed following a conviction for an offence under the Act.
[57] It is also evident the Deckes lack insight. They appear unable to accept that their dog has significant issues that cause others in the community to suffer fear and have the potential to cause harm. They do not agree their dog should have been classified as a menacing dog. That lack of insight may come from their deep affection for the dog, but nevertheless it is concerning and, in common with Isac J in Adams, it means that I can have no confidence the necessary steps would be taken to prevent any repeat and the potential for more serious harm.
[58] I acknowledge this offence of rushing under s 57A is less serious than the offence under s 57 of attacking. But it is no answer to say that the dog has never attacked anyone so that an order for destruction should not follow, when Parliament has made it an offence to own a dog that rushes, which can itself result in a destruction order.
[59] Accordingly, I decline the application for leave to appeal out of time against conviction and to be discharged without conviction.
Result
[60] The appeal against the dog destruction order is dismissed. The application to be discharged without conviction is declined.
[61] I stay the order for 20 working days from the date of this decision, to enable Mr and Mrs Decke to consider whether they wish to file an application for leave to bring a second appeal.
Grau J
Solicitors:
Crown Solicitor, New Plymouth
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