Fuller v Police
[2019] NZHC 3503
•23 December 2019
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2019-419-79
[2019] NZHC 3503
BETWEEN KAREN ANNE FULLER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 December 2019 Appearances:
J B Carter for Appellant
A R A Pell for Respondent
Judgment:
23 December 2019
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 23 December 2019 at 4:00 pm
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Hamilton
FULLER v POLICE [2019] NZHC 3503 [23 December 2019]
Introduction
[1] On 16 June 2018, a woman was attacked by a dog when she went to a Hamilton address to collect some items she had purchased from Ms Fuller (the appellant), who was the dog’s owner and who lived there. The dog was a Staffordshire Bull Terrier named Kage. Kage chased and attacked the victim, biting her right leg and causing her serious injury. This was not the first time that Kage had attacked someone.
[2] The appellant was charged under the Dog Control Act 1996 (the Act) with being the owner of a dog that caused serious injury,1 failing to ensure that a dangerous dog was kept secure,2 and wilful obstruction of a dog control officer.3 Following a judge-alone trial on 26 September 2019 in the District Court at Hamilton, Judge T R Ingram found the appellant guilty of all but the wilful obstruction charge.4 The following day, he sentenced her to 12 months’ home detention, 200 hours’ community work and ordered her to pay $5,000 in reparation.5
[3] The appellant appeals against her sentence of 12 months’ home detention, which she says is manifestly excessive. She does not appeal the other aspects of her sentence. The Crown says the 12 month home detention sentence was within range.
Background
[4] Between 2013–2016 Kage had on separate occasions attacked three people and a dog on or near Ms Fuller’s property with increasing degrees of severity. In September 2013, Kage got out of the appellant’s property through an open gate, growled at a boy who was walking past and bit the dog he had with him on the face. Hamilton City Council (the Council) formally warned the appellant and reminded her of the requirement to keep Kage under control at all times.
[5] In August 2014, Kage again got out through the open gate at the appellant’s home chasing a cat out onto the footpath. Once out in the street Kage turned its
1 Dog Control Act 1996, s 58; maximum penalty 3 years’ imprisonment and/or $20,000 fine.
2 Dog Control Act 1996, ss 32(1)(a) and (2); maximum penalty $3000 fine.
3 Dog Control Act 1996, s 18; maximum penalty $3000 fine.
4 New Zealand Police v Fuller [2019] NZDC 199492.
5 R v Fuller [2019] NZDC 19522.
attention to a pedestrian walking past on the footpath and ran at her and nipped her legs. The pedestrian had to jump over a fence three or four times while Kage ran around both sides of the fence trying to bite her again. The Council issued Ms Fuller with an infringement notice for failing to properly control Kage. The appellant explained that her daughter had left a door open.
[6] In October 2014, once again Kage got out of the appellant’s house through an open front door and open gate and out to the footpath where he bit a pedestrian on his hand. The Council wrote a warning letter to the appellant .
[7] On 13 January 2016, Kage attacked a neighbour who had come to visit the appellant. The appellant had recently returned home from shopping and had left the front door open. The dog ran at the visitor and bit his lower leg, causing serious injury. The Hamilton City Council issued Ms Fuller with a further infringement notice and warned her that further breaches might result in prosecution.
[8] In April 2016 the Council served notice on the appellant that because of the 13 January attack, it had classified Kage as a dangerous dog under s 31(1) of the Act. The appellant had a right of objection to the classification of Kage as a dangerous dog, but did not object to the classification. The effect of classification as a dangerous dog is that the owner must ensure that not later than one month following their receipt of notice of the classification, the dangerous dog is kept within a securely fenced portion of the owner’s property that it is not necessary to enter in order to access the dwelling,6 and must not allow the dog to be at large in a public place without being muzzled and controlled on a leash.
[9] On 16 June 2018 Kage attacked the victim when she went to the appellant’s address to collect some towels that she had purchased online from the appellant. The victim was a young mother who had driven to the appellant’s address and having got out of her car went towards the front door which was partially open. As she stepped onto the front deck, the victim heard a growl and someone calling the dog back. She retreated towards her car but before she could get into it, Kage ran out through the open front door and bit her on her right ankle and shin. The victim got back into her
6 Dogs Control Act 1996, s 32(1)(a).
car and the appellant came out of her house and provided her with wet towels to wrap around the wounds and waited with her until an ambulance arrived. The victim was in hospital for two days and required surgery to her ankle to clean and close the wound. Following the victim’s discharge from hospital there were complications and six weeks later she was readmitted to hospital for a week for a skin graft operation.
[10] Between 16 June and 3 August 2018, Council dog control officers went to the appellant’s address for the purpose of seizing Kage, but she refused to surrender him. On 3 August 2018 the dog control officers accompanied by Police went back to the appellant’s address with a search warrant authorizing them to search the property to look for the dog. The appellant initially denied that Kage was at the property, before ultimately giving him up to the Council’s dog control officers.
[11]Kage subsequently died of cancer while in the Council’s custody.
[12] The appellant is aged 57 and has an extensive criminal history consisting of 102 convictions since 1985. Her convictions are mainly for dishonesty offending, but she also has convictions for minor drug offending, assault and breaches of sentences, including community work. She has no previous convictions under the Dog Control Act 1966. At her sentencing for the Dog Control Act charges in September 2019, she had just completed a sentence of home detention for burglary and theft charges, relating in part to the items she had sold to the victim in the present case.
District Court decision
[13] Judge Ingram took the offence charged against the appellant under s 58 of the Act of owning a dog that had caused serious injury, as the lead offence for the purpose of sentencing. The Judge noted that the maximum penalty for the offence was three years’ imprisonment and observed that it was a relatively serious type of offence. He noted that dog bites of this nature are almost invariably serious, however he said the injuries suffered by the victim were not the most serious he had seen.7 The Judge said that the harm caused to the victim was an aggravating feature, while noting “that is a
7 At [12].
feature of the offence” with which the appellant was charged.8 The Judge also noted that as a result of her injuries the victim had been left with an “ugly scar” and was in constant pain which was likely to continue for many years if not for life.9
[14] The Judge said that the appellant’s offending was aggravated by the fact that the dog had previously injured “so many people” and by the appellant’s uncooperative attitude towards the dog control officers.10 The Judge commented that the appellant’s response when the dog control officers went to seize the dog, “speaks volumes about your attitude, which is that nobody is going to tell you what to do with your dog”.11 Judge Ingram considered that to be a serious aggravating factor.
[15] The Judge also said there was “almost nothing that could be advanced on [the appellant’s] behalf” in terms of mitigating factors.12 The appellant had not taken all steps reasonably open to her to confine Kage within the house.13 However, the Judge acknowledged that the appellant, to her credit, had called an ambulance for the victim.
[16] Judge Ingram was not persuaded that the appellant was remorseful, and he saw no realistic possibility of rehabilitation or reintegration at her age.14 He said that her extensive list of criminal convictions showed that throughout her life she had “thumbed [her] nose at the responsibilities of a citizen”,15 and that her attitude towards her dog meant that a number of people had been bitten over a period of years.16 The Judge said that the appellant’s “appalling” criminal record was an aggravating feature.17
[17] Judge Ingram rejected the prosecution’s proposed starting point of 12 months’ imprisonment. He explained that he did not consider the adoption of a 12 month starting point was an adequate response to the offending involving a dog that had previously injured a number of people and for an offender who had repeatedly
8 At [14].
9 At [13].
10 At [16].
11 At [4].
12 At [14].
13 At [6].
14 At [11].
15 At [7].
16 At [10].
17 At [14].
demonstrated an uncooperative attitude towards the dog rangers. The Judge said that he considered that the starting point should be half of the available maximum penalty and he adopted a starting point of 18 months’ imprisonment. The Judge uplifted that by three months for Ms Fuller’s criminal history. He then converted the nominal end sentence of 21 months’ imprisonment into 12 months’ home detention. More fully, he said:
[16] The prosecutor has asked me to start with a sentence of 12 months’ imprisonment. I do not think that is an adequate response to this particular set of offending with an animal that has previously injured so many people, and for someone with the attitude that you unhesitatingly demonstrated repeatedly towards the City Council dog rangers. It seems to me that a starting point in this particular case should be half of the available maximum, namely 18 months in prison.
[17] In addition to that it seems to me that I should take account of your bad attitude as demonstrated, firstly, by your bad record over such a long period of time, such consistent offending over the last decade and more, of various kinds and it seems to me that there should be an uplift in the order of three months to account for those things. That would take me to a sentence of 21 months. That could handily be converted to a sentence of home detention.
[18] In your particular case, having regard to your lack of remorse and your prior bad record, it seems to me that this is not a case where I should deal with it by way of a sentence of home detention with a straight 50 percent calculation. In your particular case I consider that a sentence of 12 months’ home detention is the bare minimum sentence that would adequately reflect the seriousness with which I consider you have infringed our laws. I consider too that it is appropriate that you pay at least something towards the costs that you have imposed on the community with your reckless disregard of the obligations upon you as an owner of a dangerous animal.
[18] Judge Ingram said that he could not order Ms Fuller to pay reparation because she did not have the means and that “the best thing I can do is ensure that you are kept out of public view for as long as possible”.18 Nevertheless the Judge ultimately ordered the appellant to pay $5000 in reparation. He also noted the Council had spent
$14,000 in legal fees and $8000 in costs in relation to Kage and $1000 trying to save the dog’s life.
[19] Judge Ingram convicted and discharged the appellant on the charge of failing to ensure Kage was kept in a secure portion of the appellant’s property.19
18 At [8], [10].
19 At [5].
Approach on appeal against sentence
[20] Under the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.20
[21] In deciding whether to impose a different sentence, the Court does not substitute its own view for that of the original sentencing Judge.21 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.22 The focus is on the end result rather than the process by which the sentence was reached.23
Submissions
[22] Mr Carter, for the appellant submits that the Judge’s starting point, uplift and end sentence were all manifestly excessive. He submits:
(a)The starting point is inconsistent with previous sentences for comparable offending. Mr Carter relies on decisions where starting points of between four and eight months’ imprisonment were adopted (where starting points were identified).24
(b)The three-month uplift for prior offending should not have been applied because the prior offending had no relationship to offences under the Dog Control Act 1996.
(c)The Judge failed to take into account several mitigating factors, including that Ms Fuller rendered first aid, called an ambulance, and conceded several facts before trial. Mr Carter submits these actions show the appellant did accept responsibility for her offending, although he accepts that any reduction to the starting point on account of these matters, would be minor.
20 Criminal Procedure Act 2011, s 250(2).
21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
22 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R, above n 21, at [30]–[35].
23 Tutakangahau v R, above n 21, at [36].
24 Campbell v Police HC Invercargill CRI-2009-425-20, 22 September 2009; Dwyer v South Taranaki District Council [2012] NZHC 3580.
(d)The Judge was wrong to find there was no realistic possibility of rehabilitation and re-integration. Mr Carter submits the appellant had demonstrated remorse by rendering first aid, and that the Council has exercised its power to disqualify the appellant from owning a dog for five years, which removes any risk of re-offending during that period.
(e)The Judge placed excessive weight on the costs incurred by the Council for Kage. The Judge did not take into account the $1309.20 the appellant had repaid to the council from a total owing of $9722.39.
(f)The Judge should have taken into account that the appellant had only just completed a sentence of home detention and remained under supervision.
(g)The Judge arrived at an end sentence on the basis there would be no reparation, but then imposed reparation.
Analysis
[23] Section 58 of the Dog Control Act 1996 initially provided for a maximum penalty of three months’ imprisonment or a $5000 fine. In 2003 this was increased by Parliament to three years’ imprisonment or a $20,000 fine in order to “express society’s concern at the serious consequences of dog attacks”.25 In Shepherd v Auckland City Council, Downs J reviewed a number of prosecutions brought under ss 57 or 58 of the Act, noting that few cases had reached the High Court and that a clear majority had attracted non-custodial sentences.26 He observed that there was doubt as to whether current sentencing levels reflected Parliament’s intention as expressed through the substantial uplift of the maximum penalty in 2003.27
[24] Of the decisions cited by counsel I consider that Dwyer v South Taranaki District Council and Shephard v Auckland City Council are the most comparable.28
25 MacKenzie v Auckland City Council HC Auckland CRI-2006-404-343, 6 December 2006 at [25].
26 Shepherd v Auckland City Council [2017] NZHC 1660 at [20].
27 At [20].
28 Dwyer v South Taranaki District Council [2012] NZHC 3580; Shepherd v Auckland City Council, above n 26.
The other decisions cited are less helpful either because they do not identify a starting point, do not feature a combination of aggravating features as serious as the present case, or because the adopted starting point was not the focus of the appeal.
[25] In Dwyer, an eight-month starting point was adopted on appeal where the dog attacked three visitors inside a house causing injuries similar to the present case. The owner threatened Police and dog control officers, released the dog to attack them, and obstructed Police as they tried to seize it. In Shepherd, the High Court on appeal considered that a starting point of 12–15 months’ imprisonment was required where a dog attacked the face and head of its owner’s four-year-old son, who underwent emergency surgery and spent a fortnight in hospital.29 Mr Shepherd had been warned by the previous owners of his dog not to leave it alone with his son. The attack occurred while the boy was outside playing with the dog while Mr Shepherd was inside. His Honour referred to that starting point as being “deliberately conservative”. Downs J held the aggravating features were that the owner had been warned the dog could be dangerous with children, the injuries were serious, the victim was especially vulnerable and the owner appeared to take pride in the dog’s dangerous character in a Facebook post.
[26] In the present case the appellant had previously been warned by the Council of the need for her to keep her dog under control, and despite being required to keep Kage within a secure area that was not required to be entered in order to access the house, she had disregarded that obligation and had allowed Kage to roam freely inside her house, and thus be able to exit the house via the front door when it was left open. As the appellant had arranged to sell the items to the victim, the appellant must have anticipated that the victim would be calling around to her house to collect the items. Given Kage’s history of attacking people in the vicinity of the house, the appellant’s failure to ensure that he was secured and that any visitors would be safe from being attacked informs my assessment of the gravity of her offending.
29 However, the Court did not ultimately adopt that starting point because of the “unusual combination of factors” including the length of time since the offence occurred and the effect a prison sentence would have on the offender’s relationship with his son.
[27] Moreover, the nature of Kage’s attacks on people had escalated, and the appellant consequently well knew that Kage was capable of inflicting serious injury to anyone he attacked. That certainly proved to be the case with the victim spending two days in hospital initially and then a further week because a skin graft was required. In her victim impact statement in September 2019, the victim described how her injury has continued to ache, and has exacerbated an existing condition, which means that she cannot walk with her children as much as she would like.
[28] While the appellant did call for an ambulance, provided towels, and stayed with the victim following the attack her other actions following the attack aggravated her offending. She repeatedly refused to surrender Kage and misled the dog control officers as to his whereabouts, thus putting the Council and Police to additional effort and expense.
[29] Accordingly while the victim in the present case was not as vulnerable as the child in Shepherd, and her injuries were less severe than those suffered by the child in that case, the appellant had a much greater awareness of the danger Kage posed to visitors to her home as he had previously shown by his earlier attacks and yet she had repeatedly failed to act.
[30] Having considered the gravity of the appellant’s offending and compared it with the offending in the cases I have mentioned, I consider the 18-month starting point adopted by the Judge was too high and outside the available range. In my view it ought not have exceeded 15 months’ imprisonment.
[31] I also consider that the Judge erred in applying a three-month uplift for the appellant’s criminal history. Section 9(1)(j) of the Sentencing Act 2002 requires a sentencing judge to take into account the number, seriousness, date, relevance, and nature of any previous convictions of the offender. The judge may uplift a sentence where the previous convictions of an offender indicates a predilection to commit the particular type of offence of which he or she is convicted.30 In such cases the additional punishment serves a preventive purpose. That rationale does not apply to the appellant here. She has no previous convictions under the Dog Control Act.
30 R v Casey [1931] NZLR 594 (CA) at 597; R v Ward [1976] 1 NZLR 588 (CA) at 589–590.
[32] Nevertheless, a judge may consider an offender’s criminal history to establish their character and to assist in the determination of an appropriate punishment. The appellant’s extensive criminal history is therefore relevant to the type of sentence that should be imposed on her, but it does not of itself warrant an uplift. As Myers CJ said for the Court of Appeal in R v Casey:31
The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner's previous convictions are involved in the question of his character. … the previous convictions may be looked at for the purpose of establishing the prisoner's character and assisting to determine the punishment that is appropriate to the case of a man of that character for the particular offence for which he is to be sentenced.
[33] The other grounds of appeal need only be addressed briefly. It is incorrect to state the Judge relied solely on a recent pre-sentence report prepared for the appellant’s previous sentence. The Judge also sought and considered an updating memorandum from Corrections. The appellant’s counsel did not object to the use of the pre-sentence report, and indeed relied on sections of it in his own submissions on sentence.
[34] As for the sentencing process itself, the appellant’s admission of several seemingly incontestable facts and her immediate actions following the attack which are to her credit, do not in my view entitle her to any discounts, as they can be contrasted with her delay in finally surrendering Kage. I also agree with the Judge that because of her extensive criminal history, her repeated failure to secure Kage and her lack of demonstrated remorse the appellant’s prospects for rehabilitation and reintegration are poor. Further, the Judge was not required to reduce the sentence being imposed because the appellant had just completed serving an earlier sentence for unrelated offending and I do not consider the Judge’s approach to be contrary to the totality principle.
31 At 597.
[35] Finally, on the matter of reparation, I accept that the Judge appears to have changed his mind during the sentencing about whether to order reparation. But, given the appellant is to receive a lighter sentence, and does not appeal the order for reparation, that order will stand.
[36] The result therefore is a notional end sentence of 15 months’ imprisonment which is commuted to a sentence of eight months’ home detention.
Result
[37]The appeal is allowed.
[38]The sentence of 12 months’ home detention is quashed.
[39]A sentence of eight months’ home detention is substituted in its place.
[40] The sentences of 200 hours’ community work and $5000 reparation imposed by the District Court Judge are unchanged.
Paul Davison J
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