Dwyer v South Taranaki District Council

[2012] NZHC 3580

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-48 [2012] NZHC 3580

BETWEEN  SHAYLE DWYER Appellant

ANDSOUTH TARANAKI DISTRICT COUNCIL

Respondent

Hearing:         17 December 2012

Appearances: R Rai for appellant

J M Marinovich for respondent

Judgment:      21 December 2012

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 10 am on Friday 21 December 2012

Solicitors:

Till Henderson Stratford, [email protected]

C & M Legal, New Plymouth

DWYER V SOUTH TARANAKI DISTRICT COUNCIL HC NWP CRI-2012-443-48 [21 December 2012]

Introduction

[1]      The appellant appeals against a sentence of 10 months imprisonment imposed in respect of two charges of owning a dog involved in an attack causing serious injury.1     The maximum penalty for that  offence  is  a  term  of imprisonment  not exceeding three years, or a fine not exceeding $20,000.

[2]      Mr Dwyer had pleaded  guilty to one charge involving an attack on Lee Ashford, but he had defended the charge involving an attack on Karl Parker.  He had also pleaded guilty to a charge of failing to comply with the effects of classification of the dog as menacing.2   On that charge he was convicted and discharged.

[3]      In addition to the sentence of imprisonment, Judge Roberts directed that the appellant pay reparation of $1042 for the cost of impounding the dog, and to cover sustenance costs.  That amount was paid in full at the time of sentencing and there is no appeal against the order.3

Background

[4]      The dog concerned in this offending was a pit bull terrier, Monster.  It was secured on the appellant’s property by a long leash which enabled it to roam the backyard, and also to obtain access to virtually all points within his house.  The two victims were visitors, who were in the house at the time of the attack.  Although there was evidence that the dog was restrained by a long leash, Judge Roberts found that, at the time of the relevant attacks, it was effectively unrestrained.

[5]      The appellant and several associates were inside the house drinking.  Initially the dog jumped on an adult female, taking hold of her by the shoulder and endeavouring to drag her to the ground.  Mr Parker intervened. The dog latched onto

his  right  arm,  causing  a  puncture  wound  and  a  large  deep  wound  to  his  inner

1 The Dog Control Act 1996, s 58.

2 The Dog Control Act s 33EC(1).

3 South Taranaki District Council v Dwyer DC Hawera CRI-2012-021-451, 10 October 2012

forearm.   Ultimately the dog let go.   Mr Parker was taken to hospital, where his wound required surgery and 10 stitches.

[6]      Then the dog focused on Ms Ashford.  She attempted to leave the house via a window.  The dog fastened onto her left leg, causing a large puncture wound in the area of her Achilles, her ankle and her foot.  She managed to kick the dog free.  She too was taken to hospital, where she underwent surgery to repair tendon damage. Multiple stitches were required to close the puncture wounds.   She remained in hospital for two days.

[7]      Both  police  and  animal  control  authorities  were  called.    On  arrival,  the appellant was at the front of the property, holding his dog.  He made repeated threats to the police that he would release the dog from his property, and indeed, eventually he did so.   Later the dog was retrieved, but the appellant then endeavoured to frustrate police attempts to secure it by placing it over a neighbourhood fence.

[8]      Mr Dwyer accepted that he had not taken all the steps required of him by reason of the dog’s classification.   In particular, he had neglected to have the dog neutered.    He  has  also  committed  a  number  of  infringement  offences,  such  as keeping an unregistered dog, failure to keep dogs under control, and failure to supply information.   In all, fines of $2600 have been imposed upon him for those infringement matters.

District Court sentencing

[9]      Judge Roberts was furnished with several previous sentencing authorities. Greatest prominence was given to Campbell v Police.4   There, Gendall J reduced the starting point of six months imprisonment adopted in the District Court to four months imprisonment.  The end sentence was three months imprisonment.  In that case, there was only one victim whose injuries were considerably less serious than

were caused here.

4 Campbell v Police HC Wanganui CRI-2008-483-13, 9 June 2008.

[10]     In adopting a 12 month starting point in the present case, Judge Roberts took into account the following as aggravating features of the offending:

(a)       the number of people affected (three including the initial victim who was not badly injured);

(b)the severe injuries caused and the extent of the hospital treatment required;

(c)       the appellant’s failure to comply with regulatory requirements with respect to his dangerous dog;

(d)his actions afterwards in deliberately setting the dog free on a public road; and

(e)       subsequently endeavouring to ensure its escape by placing it over a neighbouring fence.

[11]     From the 12 month starting point, the Judge allowed a credit of two months to reflect the guilty plea in relation to Ms Ashford.

The appellant’s argument

[12]     On appeal, Mr Rai submits that the starting point of 12 months was too high. He argues that it ought to have been no more than six months.  There is no challenge to the level of discount for the guilty plea, nor is it contended that the Judge failed to take into account other mitigating factors.

Discussion

[13]     The challenge to the starting point necessitates a consideration of comparable sentencing authorities.  They are few in number.  Penalties were very significantly increased in 2003.  Cases prior to that are accordingly of little assistance.

[14]     By far the worst case was Owen v Police, where the attack to the head and face of a child resulted in horrendous life threatening injuries requiring 23 hours of remedial surgery and further reconstructive surgery to the child’s face over a period of two years.5   There, a sentence of two years imprisonment was imposed, two thirds of  the  maximum  available.    It  was  a  much  more  serious  case  than  this  and accordingly has to be put to one side.

[15]     Campbell, to which I have referred earlier, was less serious, in that there was only one victim and more limited injuries.

[16]     In Day v Manukau City Council a sentence of four months imprisonment had been imposed in the District Court for an attack by a pit bull terrier on an elderly person on a footpath.6   The victim lost a portion of her left ear, suffered two puncture wounds to the right forearm, and to her right thigh.  She remained in hospital for two days.   There was a slow convalescence.   Frater J considered the sentence of four months imprisonment to be manifestly excessive and reduced it to 150 hours community work.

[17]     In MacKenzie v Auckland City Council, Courtney J considered an appeal from a sentence of six months imprisonment for an attack by two dogs on a visitor to the appellant’s home.7   Very serious injuries resulted in the victim being hospitalised. There had been a similar conviction involving the same dogs on an earlier occasion. On appeal, the Judge substituted a non-custodial sentence of community work.

[18]     In Bartlett v Police, two bull mastiffs owned by the appellant had attacked a retiree, inflicting several puncture wounds, causing a large laceration and heavy bruising to her right arm.8   The injuries required medical treatment for several weeks because of infection.  There was a degree of permanent scarring and the attack had a significant impact on the victim’s emotional wellbeing.  The dogs had subsequently rushed at police officers.  The dogs were later removed from the pound unlawfully,

but there was no evidence that the appellant was responsible for that.  Aggravating

5 Owen v Police HC Auckland AP44/02, 13 June 2003

6 Day v Manukau City Council HC Auckland CRI-2004-092-3996, 1 July 2005.
7 MacKenzie v Auckland City Council HC Auckland CRI-2006-404-343, 6 December 2006.

8 Bartlett v Police HC Invercargill CRI-2009-025-20, 22 September 2009.

factors identified were the attack by two dogs, and the absence of any muzzle, leash or other restraining apparatus.  The vulnerability of the victim was also taken into account.

[19]     French J dismissed an appeal from a sentence of 375 hours community work imposed in the District Court, observing that, even allowing for certain identified mitigating factors, an appropriate starting point could well have been a short term of imprisonment.

[20]   In most of these comparator cases, there were mitigating features that undoubtedly affected the ultimate outcome.   For example, in  Day the appellant owner had not been in New Zealand at the time of the attack.   She voluntarily returned from Australia to face the Court.  Plainly she did not have physical control of the dog at the material time.

[21]     In MacKenzie, there was evidence that the owner had taken considerable steps to ensure the security of the dogs by providing effective fencing and using padlocks, but the dogs were being moved to another location and transitional arrangements were in place.

[22]     In Bartlett the injuries were less serious than here.   The same is true of Campbell where there was only one victim.  The selected starting point in this case seems to have been higher by a comfortable margin than in any previous case of which the Court is aware, except for Owen.

[23]     A passage from the judgment of Gendall J in Campbell is often cited, because it provides a convenient summary of the relevant policy considerations and the consequences likely to ensue where there is a breach.  Gendall J said:9

Deterrence, both of the offender, but more in particular of others who may choose to keep breeds of dogs which are dangerous to the public, and which they know are dangerous, is crucial if the public are to be protected.   If people want to own and keep this sort of animal, whether classified as dangerous or not, and whether as a status symbol or a statement or a badge, then they are entitled to do so.  But the law places upon them a very high obligation, and those who possess dangerous dogs must know that if they

escape from secure custody so as to cause serious injury in terms of s 58, then imprisonment may well follow.

[24]     Judge Roberts paraphrased this passage in his judgment.10

[25]     This was a bad case which justified a starting point higher than those selected in all the cases to which I have referred, except Owen.  But the starting point of 12 months adopted by the Judge seems to me to be out of line, in that it exceeds by a very considerable margin the starting point in cases which were less serious than this, but not to such a degree as to justify such a substantial starting point disparity.

[26]     Mr Rai urges me to substitute a starting point of six months imprisonment, and to reduce it by two months in order to take account of mitigating factors.

[27]     In my view, that would produce an altogether too lenient outcome for the appellant.    Judge Roberts  was  fully entitled  to  take account  of  the aggravating features here, including in particular the appellant’s anti-social attitude towards dog ownership and responsibility and his outrageous conduct in letting loose on a public road a dog which had so severely mauled two victims just minutes earlier.

[28]     I consider the starting point ought to have been eight months imprisonment. From that I deduct one month for mitigating factors.  They are confined to the single circumstance that Mr Dwyer pleaded guilty to two of the offences.

Result

[29]   The appeal against sentence is allowed.   The sentence of ten months imprisonment imposed upon the appellant on two charges of owning a dog involved in an attack causing serious injury, is quashed.   I substitute a sentence of seven months imprisonment on each of those two charges, to be served concurrently.

C J Allan J