Howard v Christchurch City Council Dog Control

[2014] NZHC 2996

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-000099 [2014] NZHC 2996

ANTHONY JOHN HOWARD Appellant

v

CHRISTCHURCH CITY COUNCIL DOG CONTROL Respondent

Hearing:	27 November 2014
Counsel:	AND Garrett for Appellant K M Paterson for Respondent
Judgment:	27 November 2014

JUDGMENT OF WHATA J

[1]      The appellant pleaded guilty to one charge of being the owner of a dog that attacked a person causing serious injury to that person under s 58(a) of the Dog Control Act 1996.

[2]      He was sentenced to 130 hours community work and a fine of $2,000 and a reparation order of $8,000 was imposed.

[3]      Mr Howard appeals against the amount of reparation.

Background

[4]      Judge Murfitt’s sentencing notes are mercifully short.  He noted:1

1      Christchurch City Council v Howard DC Christchurch CRI 2014-009-5318, 18 September 2014.

[2]       If an owner chooses to acquire a dog that has such a reputation the responsibility on the owner to keep it under control is extremely high.  This child and his mother have been put through a horrific ordeal and your negligence and the nature of your dog are responsible for that.  You failed to keep this dog under proper control. This child bears the consequences.

[3]       Aggravating  the  situation  was  your  slothful  approach  to  regain control of the dog.  I recognise that suffering a mild case of gout you were somewhat impaired in your agility but you knew that and that, too, was a circumstance that limited your ability to maintain control of your dog. Unbelievable is the level of indifference you showed to the scene that unfolded where instead of an apology you offered a recrimination telling the mother of the child, essentially, it was her fault for having the children there. It may well have been unwise for her to do that but your instinctive reaction was blame and not assuming responsibility yourself.

[4]       The purpose of sentencing includes the need to hold you accountable and it includes the need to restore to some extent and compensate for the harm done.  Given the fact you have no previous convictions of this kind, and I set to the side your list of previous convictions in the past which are unrelated, I intend to impose a relatively modest level of community work and a relatively high level of reparation.  But for the reparation award that I impose you would have been sentenced to 300 hours’ community work. Instead, you having been convicted on your plea of guilty, you are sentenced to 130 hours’ community work but you are also fined $2000, one half to be paid to the prosecution and you are to pay reparation of $8000 to the mother of the child.  That is to be paid within a month.  You do have the means to pay this.  It will require you to make further borrowings against your home but apart from a top-up loan you have certainly the equity to devote to that.

Grounds of appeal

[5]      The essential ground of appeal is that the appellant is unable to make a payment of reparation of the sum sought.   An enquiry has been made with the Westpac Banking Corporation and it has by letter dated 3 October 2014 advised that the appellant’s proposed loan application falls outside Westpac’s lending criteria.

[6]      Mr Garrett for the appellant refers to s 35 of the Sentencing Act 2002.  That section provides:

35   Taking into account financial capacity of offender

(1)   If the offender has insufficient means to pay the total value of the loss, damage, or harm, the court may sentence the offender to make-

(a)     reparation for any amount that is less than the value of the loss, damage, or harm; …

[7]      Mr Garrett notes that in the present case there was no discussion as to the

appellant’s ability to service such a significant order for reparation.  It is said that the

$8,000 award was considerably more than the amount sought by counsel for the informant.  Apparently Mr Brooks sought an award of $2,500 for emotional harm to the victim, Toby Saunders, and $1,250 for emotional harm to the victim, Caroline Saunders. There was an incidental clothing cost of $110.

[8]      It is therefore submitted by Mr Garrett that an award of $8,000 is inconsistent and out of step not only with those submissions but with the cited cases helpfully supplied by the informant for the purposes of sentencing.   He suggests that a figure of about $4,000 is in fact commensurate with Mr Howard’s ability to pay and with the offending and accepts if the reparation is reduced by that amount then an increase in  community  service  hours  is  warranted.    It  is  also  highlighted  to  me  that Mr Howard’s actions on the day can be explained by a private medical condition as evidenced by a letter from his doctor.

Submissions of Council

[9]      Ms Paterson submits that an $8,000 reparation order was not out of step with other sentences referring to for example Owen v Police which upheld a reparation order of $2,000 together with two months imprisonment.2   Reference is also made to a decision of the North Shore District Court where reparation payment of $25,000 for an emotional harm was paid albeit in relation to the killing of a woman.  It is said that Judge Murfitt’s sentence of community work was reduced from 300 hours to

130 hours because he determined reparation to be a more important aspect of the sentence.

[10]     It was also highlighted to me that the appellant owns a property with equity of some $334,000.   It is noted that the appellant has not endeavoured to obtain borrowing from another lender.  It is said that the appellant has provided a financial statement which shows that he has a car with an approximate value of $1,000 and at the time of written submissions had surplus income per fortnight ranging between

$95 and $195.   It is also noted that this surplus income is in addition to his disclosed

2      Owen v Police HC Auckland A 44/02, 13 June 2003.

alcohol costs of $100 per month and this is the information that was before the

Judge.

[11]     A revised statement of means, however, now suggests that Mr Howard has a disposal  income  of  about  $59  per  week.    Ms  Paterson  notes  nevertheless  that Mr Howard retains significant equity in his property and therefore has the capacity to pay a reparation sum.  She accepts, however, that a longer period to pay might be appropriate.

Jurisdiction

[12]     Section 250(2) of the Criminal Procedure Act 2011 states:

250     First appeal court to determine appeal

…

(2)      The first appeal court must allow the appeal if satisfied that-

(a)      for any reason, there is an error in the sentence imposed on conviction; and

(b)      a different sentence should be imposed.

[13]     It is now settled that there must be a material error before the appellate Court will form its own view on the appropriate sentence.  A sentence which is manifestly excessive, or wrong in principle, or flawed on its face, may be corrected on appeal.3

Assessment

[14]     The Judge’s sentence must be seen both in its factual context and within the scheme of the Dog Control Act 1996.  I will come to the facts shortly, but it has to be said at the outset that it was available to the Judge to impose a variety of types of sentence, including a maximum sentence of three years imprisonment or a fine not exceeding  $20,000  or  both.    The  quantum  of  the  fine  therefore  needs  to  be understood by reference to the significantly more punitive consequences available to a Judge depending on the circumstances, including imprisonment.

[15]     Turning then to the salient facts, the appellant was the owner of a black and tan coloured Rottweiler called Buster.  The dog circled the two victims in this case, Ms Saunders and her children.  Two of the children, Toby and George, were standing on the ground within arm’s reach of Ms Saunders.  The defendant stood at a distance of approximately 50 metres watching his dog circle Ms Saunders and her two children.  Ms Saunders picked up George and then turned to pick up Toby when she saw Buster on top of Toby mauling him while Toby was lying on the ground. Ms Saunders tried to lift Toby off the ground, but Buster would not let go of Toby’s legs and buttocks.  Ms Saunders eventually got Toby off the ground and up in her arms.  However, Buster the dog jumped up at Toby again, latching onto his lower right leg. The appellant continued to stand at a distance and did not call off Buster or take any other action to call off the attack.

[16]     A nearby woman  intervened  and  managed  to  get  Buster  off Toby.    The appellant did not apologise but rather said that the children should not be in the dog park.

[17]     Toby  required  urgent  medical  attention.    He  had  received  multiple  deep puncture wounds and lacerations on his buttocks and thighs and his right calf.  I have viewed the photographs of the injuries and they were serious.

[18]     Against this backdrop, it is not difficult to see why the Judge sought to reflect in sentence the need to deter and denounce the appellant’s conduct and to affirm the need for persons who own potentially dangerous dogs to keep them under control. He also plainly had in mind the need to ensure that the least restrictive sentence be imposed in the circumstances and the basic need for commensurateness as between the nature of the offending and the form, type and scale of any sentence.

[19]     At first blush, however, the sentence does appear to be on the harsh side.  By comparison in circumstances not dissimilar to the present, the High Court imposed a sentence of 150 hours community work in Day v Manukau City Council4 and a fine of $800 in Georgiou v Police.5    But unlike those cases, the appellant appeared to

show almost callous disregard for the harm caused by the dog.  This was no doubt in the Judge’s mind a significantly aggravating feature that justified a sterner sentence to  reflect  and  properly  embrace  the  Court’s  concern  about  the  nature  of  the offending.    Similar  conduct  saw  the  imposition  of  terms  of  imprisonment  in Campbell v New Zealand Police6 and a very substantial sentence of community work

of 375 hours in Bartlett v Police.7    The victim impact statement also provides an

insight into the seriousness of the scale of the harm caused, both physical  and emotional.

[20]     Returning then to the sentence imposed by Judge Murfitt, I consider it to be within the range of available sentences reflecting both the nature of the harm and the culpability of the appellant.

[21]     I should add that I have evidence before me now that Mr Howard’s medical condition  including  a  longstanding  knee  injury  may  explain  in  part  his  slow reactions.

[22]     I also accept that the ability to pay a fine is a relevant consideration and on the information now available before me and not before the Judge, I consider that a modified approach is necessary.    The reality is that Mr Howard is of very limited means.  He is a pensioner who has $59 disposal income per fortnight.  An order then of $8,000 cannot realistically be met in a reasonable timeframe.

[23]     I propose therefore that the order be changed to reduce the reparation as suggested to $4,000 in light of Mr Howard’s financial circumstances.   But I also consider that an uplift in the period of community work to 300 hours is necessary to signal the Court’s ongoing concern about the offending.   The time to make the payment will be extended to a period of 24 months, again to reflect Mr Howard’s financial circumstances at present.

Result

[24]     Given  the  new  information  before  me,  particularly  as  to  Mr  Howard’s financial circumstances, the appeal is allowed only to the extent that the reparation is reduced to $4,000 and to enlarge the time to make reparation.  The appellant shall have two years from the date of this judgment to make the reparation.    But I also uplift the period of community work to 300 hours, as I say to signal the Court’s ongoing concern about the offending.

[25]     The balance of the orders, of course, will remain in place.

Solicitors:

AND Garrett, Christchurch

Buddle Findlay, Christchurch