Denize Waiapu v Auckland Council
[2023] NZHC 596
•20 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-486
[2023] NZHC 596
BETWEEN DENIZE WAIAPU
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 20 March 2023 Appearances:
D Prasad and A Jordan for Appellant J Kang and C Lloyd for Respondent
Judgment:
20 March 2023
ORAL JUDGMENT OF WYLIE J
Solicitors/counsel:
Public Defence Service, Manukau Auckland Council
WAIAPU v AUCKLAND COUNCIL [2023] NZHC 596 [20 March 2023]
Introduction
[1] The appellant, Denize Waiapu, was, at all relevant times, the owner of a black male Shar Pei cross dog named Grey.
[2] On 22 November 2022, in the District Court at Manukau, Ms Waiapu pleaded guilty to and was convicted of a charge of owning a dog that had attacked a person, contrary to s 57(2) of the Dog Control Act 1996 (the Act). Ms Waiapu was sentenced by Judge Yelavich. She was fined $1,000 and ordered to make a $400 emotional harm payment to the victim of the attack. An order was made for the destruction of Grey.1
[3] On 14 December 2022, Ms Waiapu filed an appeal against sentence—in particular the Judge’s order that Grey be destroyed. Ms Waiapu argues that the Judge erred in finding that the circumstances of the offence were not exceptional.
[4] The respondent, Auckland Council (the Council), opposes the appeal and submits that the Judge was correct to make an order for Grey’s destruction.
The offending
[5] On 16 September 2021, at approximately 4.45 pm, the victim was walking through a reserve in Manurewa. A black dog walked towards her and started sniffing around her legs. She subsequently ascertained that the dog was called Grey.
[6] The victim kept on walking. She noticed a young girl calling Grey. Grey did not respond. Rather, he kept following the victim.
[7] A brown coloured dog named Clay then approached the victim from the front. Clay jumped up and bit the victim on her right hand. She screamed and tried to fend Clay off. Grey then joined the attack and Clay and Grey bit the victim on her thighs and arms.
1 Auckland Council v Waiapu [2022] NZDC 26113.
[8] The attack continued for approximately five minutes. A nearby resident heard the victim screaming and arrived with a shovel. The resident managed to scare the dogs off. Both dogs left the scene with two young children.
[9] The victim was bleeding quite badly from her injuries and her pants were almost ripped off her legs. There was blood all over her jumper. The resident who had intervened called an ambulance and the victim was taken to Middlemore Hospital for treatment. She had sustained multiple puncture wounds and grazes.
[10] Grey was seized and impounded. Ms Waiapu subsequently transferred ownership of Grey to a new owner. Grey was released to the new owner on strict conditions pending the outcome of the prosecution. The Council advised that Grey is presently in the custody of the new owner in the Taranaki district. Although counsel could not confirm the position, it seems that the new owner may be Ms Brown, who is one of Ms Waiapu’s grandchildren.
District Court judgment
[11] Judge Yelavich noted that Ms Waiapu had pleaded guilty. She set out the relevant facts, recording that the attack on the victim was unprovoked and that the injuries she suffered were moderately serious. She accepted that the offending was at a moderately serious level and that a starting point fine in the range of $1,500 to $2,000 was appropriate. She adopted a starting point of $1,800, given the aggravated features of the offending. She acknowledged that Ms Waiapu was entitled to a 25 per cent discount for her guilty plea and she rounded that sum down to reflect Ms Waiapu’s willingness to engage in the restorative justice process. The Judge further adjusted the starting point to a fine of $1,000 to recognise that she was requiring Ms Waiapu to make an emotional harm payment to the victim of $400.
[12] The Judge then considered whether to order the destruction of Grey, noting s 57(3) of the Act and the decision of the Court of Appeal in Auckland Council v Hill.2 She discussed the relevant circumstances of the offence and then considered whether those circumstances were exceptional, such that they did not warrant Grey’s
2 Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.
destruction. She referred to an affidavit which Ms Waiapu had filed and she summarised the submissions made to her by counsel. The Judge found that the fact that Grey was in Ms Waiapu’s temporary care and not in the care of Ms Brown was not an exceptional circumstance. She noted that Ms Waiapu was the registered owner of Grey at the time of the offence and that Grey had been kept on Ms Waiapu’s property for some months. She also noted Ms Waiapu’s evidence that Grey left the property in the company of two of her other grandchildren and without her knowledge. The Judge followed High Court authority and found that there was nothing exceptional in these circumstances. Rather, she focused on the circumstances of the attack and held that there was nothing exceptional in them. While she sympathised with Ms Waiapu and her granddaughter, the Judge considered that she was required to make an order for the destruction of Grey and she did so.
The appeal
[13] The appeal is brought pursuant to s 250 of the Criminal Procedure Act 2011. It requires that the appeal must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and that a different sentence should be imposed. In all other cases, the Court must dismiss the appeal.
[14] An appellant must point to an error, either intrinsic to the Judge’s reasoning or evident as a result of additional materials submitted on appeal.3 Unless there is a material error in the sentence, the appellate court will not intervene.4 The appellate court does not start afresh nor simply substitute its own opinion for that of the court below.5
Submissions
[15] Mr Prasad, for Ms Waiapu, referred to s 57(3) of the Act and to the Court of Appeal’s decision in Hill. He submitted that the circumstances of the offence were as follows:
3 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
4 Te Aho v R [2013] NZCA 47 at [30].
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
(a)Grey was not in the care of Ms Brown at the time;
(b)Grey was in the temporary care of Ms Waiapu and was normally kept in a secure property;
(c)two young grandchildren of Ms Waiapu, who were also staying at the property, took Grey for a walk to the local park where the attack occurred; and
(d)the attack was initiated by Clay and not by Grey.
Mr Prasad submitted that, considered in their totality, these circumstances were exceptional and that the Court could be satisfied that the risk of a future attack was so unlikely that the destruction of Grey was not necessary.
[16] Mr Kang, for the Council, argued that the Judge did not err. It was argued that she correctly applied the test prescribed in Hill and that the circumstances of the attack were not exceptional. Mr Kang submitted that the circumstances identified by Ms Waiapu did not meet the high threshold such that they could be regarded as truly exceptional, or unlikely to be repeated. Accordingly, he said, the provisions of s 57(3) apply and Grey must be destroyed.
Analysis
[17]Section 57(3) of the Act provides as follows:
57 Dogs attacking persons or animals
…
(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.
[18] The leading decision on the application of the subsection is the Court of Appeal’s decision in Hill. The Court there noted that where the owner of a dog is
convicted of the strict liability offence created by s 57(2), an order under s 57(3) for the destruction of the dog will normally follow. The Court then went on to consider s 57(3) in more detail. It commented as follows:
[5] The first step in applying s 57(3) is to identify the relevant circumstances of the offence. What happened? This inquiry should focus on the immediate circumstances of the attack itself. The dog's history does not form part of the circumstances of the offence. Events that occur after the offence is complete — that is, after the attack occurs — also are not circumstances of the offence. The phrases “circumstances of the offence” and “circumstances of the attack” are equivalent in this context.
[6] The second step is for the court to ask whether the circumstances of the offence were exceptional and do not warrant destruction of the dog. Section 57(3) proceeds on the basis that the attack of itself establishes that there is a risk of the dog attacking again in similar circumstances. The focus is on whether those circumstances were sufficiently exceptional that that risk is remote, and does not justify destruction of the dog in the interests of public safety.
[7] It is not open to the dog's owner to argue that the dog can be expected to behave differently in similar circumstances in the future — for example, as a result of post-attack training. Rather, the focus is on the risk that the dog poses to people and animals assuming it can be expected to behave in the same way in similar circumstances.
[8] Nor is it open to the owner to argue that the s 57(3) test is met because the attack was caused or contributed to by a one-off failure by the owner to maintain effective control of the dog. Failures to control a dog are not exceptional circumstances of a kind that indicate that destruction of the dog is not warranted.
[9] Circumstances that were not exceptional at the time the attack occurred cannot become exceptional as a result of post-attack events. If there was nothing exceptional about the circumstances of the attack when they occurred — nothing out of the ordinary which can be identified as a relevant factor in the attack — the s 57(3) exception does not apply. In particular, assurances given by the current owner about the future management and control of the dog are not relevant to the s 57(3) inquiry.
[19]The Court observed in relation to the second step:
[75] This test requires the court to focus on the circumstances of the offence/attack, and the risk that similar circumstances will occur in the future. It does not require the Court to undertake the difficult, if not impossible, task of inquiring into the psychology of the dog and making predictions about how the dog is likely to behave in the future. The inquiry contemplated by the Act is in our view much simpler. Section 57(3) proceeds on the basis that the previous attack establishes that there is a risk of the dog attacking again in similar circumstances. So the focus is on whether those circumstances were sufficiently exceptional that that risk is remote and does not justify destruction of the dog in the interests of public safety.
[20] I ask—first what were the relevant circumstances of the offence—what happened? I have already summarised the factual background above. It is accepted by Ms Waiapu. As the Judge noted, the attack was unprovoked. Grey joined Clay in attacking the victim. The attack went on for some minutes and was only stopped when a resident with a shovel managed to intervene and scare off the dogs.
[21]Ms Waiapu submitted that the following are part of the relevant circumstances:
(a)Grey was in her temporary care. Grey was normally in the care of Ms Brown and Grey had played an important role in assisting Ms Brown recover from addiction;
(b)while in Ms Waiapu’s temporary care, Grey was normally kept on a secure property;
(c)Ms Waiapu’s two young grandchildren had taken Grey out for a walk without her knowledge; and
(d)the attack was initiated by Clay.
[22] I do not consider that (a) and (b) are part of the immediate circumstances of the attack itself. Arguably, (c) and (d) are. In any event, I now turn to the second step
—are the circumstances exceptional, so as not to warrant Grey’s destruction?
[23] The Judge found that there was nothing exceptional about a dog being in the temporary care of a person who does not normally care for the animal. I agree with that finding. Ms Waiapu was the registered owner of Grey and Grey had been kept at her property for some months prior to the commission of the offence. A person in possession of a dog is deemed by the Act to be its owner, unless the person possesses the dog for less than 72 hours for a variety of purposes which are set out in the definition of the word “owner” contained in s 2 of the Act. The Court of Appeal has held that even a dog walker, who is in possession of a dog for less than 72 hours, falls within the definition of an owner for the purposes of the Act.6
6 Low v New Plymouth District Council [2022] NZCA 612 at [35].
[24] Nor is the fact that Grey was usually kept in a secure property an exceptional circumstance. As Mr Kang pointed out, the Act requires all dog owners to ensure that the dog they are responsible for is kept under control at all times.7 Ms Waiapu’s assertion that Grey was usually kept secured on her property cannot amount to an exceptional circumstance. It is simply a record of Ms Waiapu’s compliance with the legal requirement that applies to all dog owners.
[25] Nor does the fact that Ms Waiapu’s two grandchildren took Grey for a walk without her knowledge amount to an exceptional circumstance. As this Court has held, there is nothing exceptional about a dog leaving a property without an owner’s knowledge; nor is there anything exceptional about a young person connected to an owner taking a dog for a walk contrary to the owner’s instructions or without the owner’s knowledge.8 As was noted in Hill, case law under the Act is replete with examples of precautions that ought to have been taken but were omitted or were undermined (including by the actions of innocent third parties—for example failing to properly shut doors or gates) or that failed for a variety of other reasons.9
[26] I acknowledge that Ms Waiapu has deposed that Grey has provided companionship and emotional support for Ms Brown. Whilst an order for Grey’s destruction in these circumstances is regrettable, this fact cannot amount to an exceptional circumstance. Most dog owners, and their family members, derive companionship and on occasion emotional support from their dogs. Companionship (and emotional support for those who need it), is one of the advantages of dog ownership.
[27] Nor does the fact that the attack on the victim was initiated by Clay and not by Grey, amount to an exceptional circumstance. There is nothing exceptional about an uncontrolled dog joining another uncontrolled dog in an attack.
7 Section 5(1)(b).
8 Selwyn-Mallinson v Rotorua Lakes Council [2016] NZHC 1437; Cross v Auckland Council [2022] NZHC 1243; Turner v South Taranaki District Council [2013] NZHC 1603.
9 Auckland Council v Hill, above n 2 at [78].
[28] I am not persuaded that the circumstances of the offence, either singularly or in combination, were exceptional, so as not to warrant Grey’s destruction. I cannot see that the Judge erred when she reached this conclusion.
[29]Accordingly, the appeal is dismissed.
Wylie J
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