GARY STEPHEN SHRAMKA AND SOUTH TARANAKI DISTRICT COUNCIL

[2024] NZHC 3064

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2024-443-000033

[2024] NZHC 3064

BETWEEN

GARY STEPHEN SHRAMKA

Appellant

AND

SOUTH TARANAKI DISTRICT COUNCIL

Respondent

Hearing:	1 October 2024
Counsel:	H W Fairey for Appellant J E Bourke for Respondent
Judgment:	18 October 2024

JUDGMENT OF BOLDT J

[1]    This case is about a black labrador/ridgeback cross named Dexter. Dexter belongs to the Shramka family, who live at a rural property near Ōpunake. The appellant, Gary Shramka, is Dexter’s registered owner.

[2]    This appeal arises because, on 20 February this year, Dexter bit a courier driver. The respondent, the South Taranaki District Council, prosecuted Mr Shramka, as Dexter’s owner, on a charge of owning a dog that attacked a person.1 Mr Shramka pleaded guilty, and on 20 August 2024 Judge Greig convicted him, fined him $500 and made an order for Dexter’s destruction.2

1      Dog Control Act 1996, ss 57(2) and (3). Maximum penalty of $3,000 fine. The court must also make an order for the destruction of the dog unless “the circumstances of the offence were exception and do not warrant destruction of the dog.”

2      South Taranaki District Council v Shramka [2024] NZDC 20161 [Decision under appeal].

SHRAMKA v SOUTH TARANAKI DISTRICT COUNCIL [2024] NZHC 3064 [18 October 2024]

[3]    Mr Shramka appeals against his sentence, arguing the circumstances of the attack were exceptional, and that an order for Dexter’s destruction was not warranted. As discussed in more detail below, at the hearing of the appeal, Mr Fairey, on behalf of Mr Shramka, made an oral  application for leave to appeal out of time against    Mr Shramka’s conviction.

Background

[4]    Dexter is 13 years old. He is a beloved family dog. Despite being relatively elderly, as dogs go, there is no record of his having attacked anyone before.

[5]    On 20 February 2024, the victim arrived at Mr Shramka’s address to deliver a parcel. The parcel was too big to fit into the letterbox, so it had to be physically delivered to the house. The victim drove her van up the track to Mr Shramka’s address, stopped at the gate and tooted the horn. Dexter was in the front section and began barking.

[6]    Mr Shramka’s  property  is  fully  fenced,  and  at  the  time  of  the  attack  Mr Shramka himself was out. But a member of his family opened the gate and walked towards the victim’s vehicle. The victim wound the window down. Dexter came running out the gate. He leapt up and bit the victim on the arm as she handed the parcel over. She received bite wounds to her right forearm.

[7]    Dexter ran back inside. The victim treated herself with a first aid kit she had in the van, and later saw a doctor who dressed the wound and gave her a tetanus shot and antibiotics. The victim reported the attack to the Council, and the next day an Animal Control Officer went to Mr Shramka’s address to uplift Dexter.

[8]    Not long afterwards — it is unclear on the material before me exactly when — Dexter was released back into the custody of the Shramka family. At the hearing of the appeal, Mr Bourke, for the South Taranaki District Council, accepted the Council would not have done this if it was concerned Dexter posed an immediate danger to the public.

[9]    Dexter’s family describe him as a good and gentle dog, but say he has become increasingly protective as he has grown older. It appears he has developed a tendency to behave aggressively towards strangers who approach the property, but that he is otherwise well-behaved. There is no suggestion he was any trouble when in the custody of the Council.

[10]   Mr Shramka promptly pleaded guilty to the charge of owning a dog that attacked a person. It is an offence of strict liability, and he had no defence. At sentencing he sought to argue there were exceptional circumstances which might make it unnecessary to destroy Dexter. He suggested the incident was a one-off. He also made an ill-advised attempt to suggest the victim had provoked the attack by “moving her arm outside the mail van’s window”, an act Dexter must have misinterpreted as a threat.

[11]   Judge Greig convicted Mr Shramka and turned his mind to whether the circumstances of the attack were exceptional. He concluded the attack could not really be described as a one-off. The Judge relied on testimonials tendered by members of Mr Shramka’s family. For example, Mr Shramka’s partner said Mr Shramka had had to tell “countless” people to remain inside their vehicles until someone came out because Dexter had become “more protective” as he got older. She said Dexter is “very [wary] of people who he [doesn’t] know”, though she added Dexter is a gentle dog who only reacted as he did because he thought the victim was trying to hurt the person collecting the package.

[12]   In reliance of those statements, the Judge concluded the attack was not unusual or exceptional. The Judge concluded Dexter had become dangerous and made an order for his destruction.

The appeal

[13]   As already noted, Mr Shramka brought the appeal in reliance on the exception set out in s 57(3) of the Dog Control Act 1996. It provides:

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.

[14]   In his written submissions, Mr Fairey argued the circumstances were properly characterised as exceptional because the attack would not be repeated, Dexter is not a threat to the public, Dexter was provoked and Mr Shramka had taken steps to avoid the attack which were reasonable in the circumstances.

[15]   As I advised Mr Fairey at the commencement of the appeal, the submission that Judge Greig made an error when he decided the attack was not exceptional was doomed to fail. Even if it could properly be construed as a one-off, there is ample authority that the mere fact a dog has not attacked anyone before does not, on its own, qualify as an exceptional circumstance for the purposes of s 57(3).3

[16]   Genuine provocation may be an exceptional circumstance.4 But there can be no suggestion the victim provoked this attack. She was simply doing her job and did nothing more provocative than wind her window down to hand over a package. I have no doubt Judge Greig was right to conclude the circumstances of the attack were unexceptional and, on the material before him, that Dexter’s destruction was required under s 57(3).

[17]   That is not the end of the matter, however. Between Mr Shramka’s sentencing and the appeal, the Court of Appeal released a decision which clarified a long-outstanding question about s 57 of the Dog Control Act. That question concerned the relationship between a conviction under s 57(2), the (near) mandatory destruction provision in subs (3) and the Court’s power to discharge a defendant without conviction under s 106 of the Sentencing Act 2002.

3      See Auckland Council v Hill [2020] NZCA 52 at [8].

4 At [84].

[18]   In Solicitor-General’s Reference from CRI-2022-404-212 (2022 NZHC 31), the Court of Appeal set out to determine whether entry of a conviction is a necessary pre-requisite to an order for destruction under s 57(3).5 The issue arises primarily in cases where the Court is inclined to discharge the defendant without conviction. In practical terms, the question was whether the dog must still be destroyed under s 57(3) if the Court decides a discharge under s 106 of the Sentencing Act is appropriate. There were conflicting High Court authorities.

[19]   The Court of Appeal concluded a destruction order is only required if a conviction is entered. The Court acknowledged its decision would introduce an element of discretion into an exercise which, at least on one reading of Parliament’s intention, was designed to make destruction orders almost automatic. The Court observed:6

[64]  It is an answer that may be greeted with dismay by regulators.  But if so, the remedy lies with the legislature. Given its subject matter, the Act should be particularly clear and certain — however, the number of occasions it has come before the senior courts for interpretation suggests otherwise.

[20]   The Court of Appeal’s confirmation that a conviction is a prerequisite for a destruction order changes the assessment for sentencing Judges, and opens a pathway by which dogs may be spared from destruction even if there are no exceptional circumstances.

[21]   An order discharging a defendant without conviction may be made under s 106 of the Sentencing Act. Section 107 provides the statutory gateway. It reads:

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[22]   In a case like the present, destruction of the dog is a direct consequence of conviction. Criminal convictions always carry indirect consequences over and above the penalty the Court may impose — convictions must be declared on job applications,

5      Solicitor-General’s Reference from CRI-2022-404-212 ([2022] NZHC 31) [2024] NZCA 401.

6 At [64].

may carry publicity and will often lead to public opprobrium. But if an owner is convicted under s 57(2) of the Dog Control Act, subs (3) also means the dog will be destroyed unless there are exceptional circumstances.

[23]   Sometimes destruction will plainly be a proportionate consequence. Where an attack is particularly serious or there are reasons to expect further attacks may occur in the future, destruction will usually be appropriate. The Dog Control Act is designed to protect the public, and the important public policy underpinning s 57(3) must always be borne in mind.

[24]   But the Court of Appeal’s decision ensures a destruction order need not be made if it would be genuinely disproportionate to the gravity of the offence. It is no small thing to destroy a beloved family dog, particularly one which generally has a gentle nature and has reached an advanced age without harming anyone before.

[25]   Adams v South Taranaki District Council was part of the line of cases ultimately affirmed by the Court of Appeal; Isac J agreed s 57(3) could only apply if he concluded the appellant should not receive a discharge without conviction.7 He observed:

[44]     … it seems inescapable to me that a conviction is [a] precondition of a destruction order, and, of equal importance in Mr Adams’ case, it also forms part of the direct or indirect consequences of a conviction which the Court ought to take into account under s 106. …

[26]   In applying the s 107 test, Isac J took careful account of the consequences a conviction would have on the defendant, including, and most particularly, that a destruction order would deprive the elderly appellant of a beloved friend and companion.8 He held, however, that destruction was not out of all proportion to the gravity of the offence.9 In Adams the dog, Rastus, had bitten a courier driver as Dexter did in the present case. But the attack on the courier driver was only one of three attacks before the Court. As Isac J noted, Rastus had “form”.10

7      Adams v South Taranaki District Council [2021] NZHC 3254.

8 At [18].

9      At [46]–[48].

10 At [46].

[27]   The evidence in Adams also revealed a lack of insight on the part of the appellant and a tendency to blame others, including the victims of the attack, for Rastus’s behaviour. In those circumstances, the Judge concluded he could have no confidence the appellant would ensure his dog did not attack others in the future. A future attack on a vulnerable victim may be far more serious.

[28]   Nonetheless, the approach in Adams, recently affirmed by the Court of Appeal in the Solicitor-General’s Reference, means the issue that arises for determination is whether the direct and indirect consequences of a conviction, including Dexter’s destruction, would be out of all proportion to the gravity of the offence.

Discussion

[29]   As already noted, Mr Shramka’s submission that there were exceptional circumstances surrounding the attack was bound to fail. The attack itself was unprovoked and unremarkable. It is fortunate the victim did not sustain more serious injuries. She was entitled to feel safe inside her courier van; indeed she was entitled to feel safe from attack by a dog no matter where she was. It is part of a courier’s job to visit unfamiliar addresses. They are entitled to go about their business without being attacked or threatened.   It follows, but for the question of a s 106 discharge, that   Mr Shramka’s appeal could not succeed.

[30]   Mr Fairey has sought leave to appeal out of time against conviction. He submits a discharge without conviction would be appropriate. Judge Greig was not asked to consider a s 106 discharge, but it is appropriate, in light of the Court of Appeal’s recent clarification of the law, to consider Mr Shramka’s conviction afresh. When Mr Shramka was sentenced it was widely understood that a destruction order was mandatory whether or not a conviction was entered. It follows there were good reasons why Mr Fairey did not seek a discharge without conviction at sentencing, and why the appeal was initially confined to the destruction order.

[31]   I issued a brief minute a few weeks before the appeal alerting counsel to the Court of Appeal’s decision and inviting submissions about it. As a result Mr Bourke was well prepared to argue the point. No prejudice has arisen from the late pivot to

an appeal against conviction. Accordingly, I grant Mr Shramka leave to appeal out of time against his conviction.

[32]   An appeal which seeks a discharge without conviction is a composite appeal against conviction and sentence. The decision to enter a conviction is the principal focus.11

[33]In R v Taulapapa, the Court of Appeal observed:12

[22] It is settled law that a court considering a discharge should: examine  the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; identify the direct and indirect consequences of conviction; and consider whether those consequences are “out of all proportion” to the gravity of the offence. Only then does it move to considering the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen: this standard recognises that the court is assessing the likelihood of something that may happen in the future.

[34]   My first task is to examine the gravity of the offence. Section 57(2) of the Dog Control Act provides that the owner of a dog which attacks a person is liable on conviction to a fine not exceeding $3,000, in addition to any liability he or she may incur for damage caused by the attack.

[35]   It would not be appropriate to reason, from the fact the maximum penalty is only a modest fine, that offending under s 57(2) is always minor, and easily outweighed by the loss of a treasured family pet. The Dog Control Act is designed to protect people and animals from dangerous dogs, and a conviction will be the normal consequence of such an attack.

[36]   Instead, it is appropriate to examine the seriousness of the offending relative to others of its type. If an attack is a serious one there will generally be little possibility of a s 106 discharge. If the attack is relatively minor, the Court can proceed to examine other aspects of the offending.

11     Jackson v R [2016] NZCA 627 at [15]–[16].

12     R v Taulapapa [2018] NZCA 414 citing Z(CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142

at [27]. Footnotes omitted.

[37]   I regard the attack in the present case as one of moderate seriousness. Obviously, it was not in the worst category, and involved only a single bite to the victim’s forearm which does not appear to have caused lasting injury. At the same time, it was undoubtedly a terrifying attack on a vulnerable victim. As already noted, courier drivers and other workers who have to visit properties as part of their job are entitled to be protected.

[38]   At the same time, there were a number of mitigating factors. The evidence shows the Shramkas are a responsible dog-owning family. Mr Bourke volunteered that the property is well-fenced. Dexter was only able to attack the victim because of a moment’s carelessness on the part of one of the occupants, who left the gate open when going to meet the courier. Mr Shramka himself was not even home.

[39]   Moreover Dexter, unlike Rastus, who was ultimately destroyed in the Adams case, has a good record. There appears no dispute he is generally a well-behaved dog. As noted above, Mr Bourke confirmed the Council would not have allowed Dexter to return home if it regarded him as dangerous. A dog, like a person, is entitled to credit for a lifetime of good behaviour. The fact Dexter is a first offender mitigates the seriousness of the offending. My reading of Adams indicates Rastus may well have been spared if the same could be said of him.

[40]   Mr Shramka is also of good character. He has one conviction, from 20 years ago, for breaching community work. Mr Shramka has long been eligible, under the Criminal Records (Clean Slate) Act 2004, to treat that conviction as expunged.

[41]   The relatively low-level nature of Mr Shramka’s offending is evident from the fact Judge Greig selected a fine of only $500.

[42]   Turning to consequences, Mr Shramka’s conviction will result in the destruction of a much-loved family dog who has reached the age of 13 without hurting anyone before. Mr Shramka is a farm worker, and he has children and young grandchildren who adore Dexter. In addition, as Mr Bourke very fairly pointed out, entry of a fresh conviction means Mr Shramka will 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.13

[43]   Considering all these factors together, I consider the consequences of a conviction, including Dexter’s destruction, would be out of all proportion to gravity of the offence. Accordingly, the appeal will be allowed.

[44]   It is critical Dexter’s owners take particular care with him in the future, especially if his agitation towards visitors does not dissipate as he gets older still. But the evidence shows the Shramkas are responsible dog owners, and that this was a momentary lapse.

Conclusion

[45]   As already noted, it is important the public safety imperative underpinning the Dog Control Act is always kept in mind, and I am acutely conscious of the position of the victim and others who may have occasion to visit the property. Nonetheless, in this case a series of case-specific factors have combined to persuade me a conviction, accompanied by an order for destruction, would be disproportionate.

[46]   Thanks to the Court of Appeal’s recent decision, Dexter has had a lucky escape. It scarcely needs to be said he will not get another chance if he behaves aggressively again, whether towards a person or another animal.

Result

[47]   Mr Shramka’s application for leave to appeal out of time against conviction is granted.

[48]   The appeal against conviction is allowed, and I make an order discharging  Mr Shramka under s 106 of the Sentencing Act.

[49]The order for Dexter’s destruction is quashed.

13     Criminal Records (Clean Slate) Act 2004, s 8(1).

[50]   In lieu of the $500 fine, I make an order, under s 106(3) of the Sentencing Act, that Mr Shramka must pay $500 to the victim in recognition of the emotional harm she suffered as a result of the attack.

Boldt J

Solicitors:
Crown Solicitor, New Plymouth for Respondent