Fuller v Police - [2019] NZHC 3503

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Fuller v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZHC 3503
Decision Date: 23 December 2019

CaseChat Overview and Summary

The appeal in Fuller v Police was against the sentence imposed by Judge Ingram of the District Court at Hamilton, who found the appellant guilty of being the owner of a dog that caused serious injury, and failing to ensure that a dangerous dog was kept secure. The appellant was sentenced to 12 months’ home detention, 200 hours’ community work, and ordered to pay $5000 in reparation. The appellant appealed the sentence of home detention, arguing it was manifestly excessive. The Crown defended the sentence, stating it was within range. The appeal raised issues about the starting point for sentencing, the uplift for prior offending, the weight given to the costs incurred by the Council, and the Judge’s finding that there was no realistic possibility of rehabilitation and reintegration. The court found that the starting point was too high and outside the available range. It also found that the uplift for prior offending was not justified, as the appellant had no previous convictions under the Dog Control Act. The court also found that the Judge was not required to reduce the sentence because the appellant had just completed serving an earlier sentence for unrelated offending and it did not consider the Judge’s approach to be contrary to the totality principle. The court concluded that the sentence of 12 months’ home detention was quashed and a sentence of eight months’ home detention was substituted in its place. The sentences of 200 hours’ community work and $5000 reparation imposed by the District Court Judge were unchanged.

Orders