Hetherington v Manukau City Council HC Auckland CRI 2010-404-277

[2010] NZHC 1741

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-277

CRAIG HETHERINGTON

Appellant

v

MANUKAU CITY COUNCIL

Respondent

Hearing:         27 September 2010

Appearances: Appellant in person

Mr S Corlett for Respondent

Judgment:      27 September 2010

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors:

Brookfields, Auckland
Copy to:

Mr C Hetherington, Manukau

HETHERINGTON V MANUKAU CITY COUNCIL HC AK CRI-2010-404-277  27 September 2010

[1]      Mr Hetherington is the owner of a Bull Mastiff dog named Phoenix.  Phoenix resides with Mr Hetherington and his family at 15 Olive Crescent, Papatoetoe.

[2]      On 9 October 2009 Mr Hetherington was convicted under s 57(2) of the Dog Control Act 1996 after Phoenix attacked another dog.  No order for the destruction of Phoenix was made at that time.  Then, on 25 December 2009, Phoenix was seen to enter a property down the road.  There she mauled and killed a kitten that had been given to one of the occupants of that address as a Christmas present.  The attack on the kitten was witnessed by the owner’s 11 year old son.

[3]      When the occupants of the address saw what was happening, they screamed at Phoenix.  This caused her to drop the kitten and run back to Mr Hetherington’s property.   The occupants of the kitten’s address followed Phoenix back there, and found nobody present at Mr Hetherington’s house.

[4]      The incident on 25 December 2009 led to another charge being laid against Mr Hetherington under s 57(2) of the Act.  The essence of the charge was that Mr Hetherington was the owner of a dog that attacked a domestic animal, namely the kitten.

[5]      The informant sent out a summons to Mr Hetherington in the usual way.  A summary of facts was enclosed with the summons.   This set out the factual basis upon  which  the  charge  had  been  laid.     It  also  pointed  out  that  one  of  the consequences of conviction was that an order could be made for the destruction of the dog.

[6]      When the matter was called in the Manukau District Court on 5 May 2010, Mr Hetherington did not appear.  As a result, the matter was adjourned until 9 June

2010  when  the  prosecuting  authority,  the  Manukau  City Council,  presented  the presiding Judge with formal proof evidence.  This consisted of affidavits from the process server who had delivered a copy of the summons and summary of facts to Mr Hetherington’s address, an affidavit from the owner of the kitten and her son and evidence from the dog control officer who attended the complainant’s home of the day of the attack.

[7]     After reading the evidence, His Honour Judge Gibson convicted Mr Hetherington in his absence and fined him $750.  In addition, he made an order for the destruction of Phoenix.   Mr Hetherington now appeals against the order for destruction that the Judge made.

Grounds of appeal

[8]      Mr Hetherington’s submissions in support of the appeal can be summarised as follows:

a)       When he and his family went out on Christmas Day, they left Phoenix secured on a chain in the yard of their property.   At about 1.30 pm Mrs Hetherington returned home and Phoenix was still secure on her chain at that time.  Mr Hetherington and his family have no idea how Phoenix could have broken free from her chain so that she could attack the kitten.

b)Mr Hetherington denies any suggestion that Phoenix is a danger to other animals in the neighbourhood.

c)       He points out that since this incident he and his family have securely fenced the property, so that the kind of incident that occurred on this occasion could not occur in the future.

d)Phoenix is a much loved member of Mr Hetherington’s family.  He and his children will miss their dog enormously if she is put down.

e)       Mr  Hetherington  says  that  he  has  spoken  to  the  prosecutor  who appeared at the Court when the Judge made the order for destruction. He says that the prosecutor told him that she did not intend to seek an order for destruction of the dog, and that she was shocked when the Judge made the order.

The Act

[9]      I turn now to the Act.  Once a conviction is entered under s 57(2), the Judge is required to make an order for the destruction of the dog unless he or she is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog: s 57(3).

[10]     This  Court  has  confirmed  on  two  occasions  that  s  57(3)  requires  the sentencing Court  to  adopt  a  two-stage  process.    First,  the Court  must  ascertain whether the circumstances of the offence were extraordinary.   If it concludes that they were not, the Court is required to make an order for the destruction of the dog. If, however, the Court is satisfied that the circumstances of the offence were exceptional, the Court must go on to consider whether or not those circumstances do not warrant destruction of the dog:  Halliday v New Plymouth District Council HC New Plymouth, CRI- 2005-443-011, 14 July 2005; Jorion v Kapiti Coast District Council HC Palmerston North CRI-2010-454-22, 4 August 2010 at [12].

[11]     Because the focus under the first step is on the circumstances of the offence, events that occurred prior to the offence and those which occur after the offence are not relevant.   The Court can only consider the circumstances that occurred at the time that the offence took place.   If, however, the Court considers that those circumstances were extraordinary, it can go on to consider other matters, including events that occurred prior to the offence and those that occurred after it.

Decision

[12]     There is nothing about the circumstances of the offence in the present case to suggest that they were extraordinary.  Mr Hetherington says that he has no idea how Phoenix escaped but, in the end, this is a simple case of a dog breaking free of its restraint and leaving the property in which it should be secured.   As I think Mr Hetherington now accepts, following the incident in October 2009 he should have ensured that his property was properly fenced so that even if Phoenix broke free of her chain she could not leave his property.  For that reason I consider that the Judge in the present case had no option but to make the order that he did.

[13]     The fact that the property may now be fenced, and the effect that the order for destruction will have on Mr Hetherington’s family, are not matters that the Judge could have taken into account in making the order that he did.  I have no means of ascertaining  whether  Mr  Hetherington’s  conversation  with  the  prosecutor  is accurately reported, but the prosecutor’s view would not have been relevant either given the mandatory terms of s 57(3).

[14]     For   these   reasons,   although   I   have   considerable   sympathy   for   Mr Hetherington and his family, there is no basis upon which I can disturb the order for destruction that the Judge made.  The appeal is accordingly dismissed.

Lang J