Ingle v Auckland Council - [2020] NZHC 1164

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-114

[2020] NZHC 1164

BETWEEN
STEVEN ALLAN INGLE

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 18 May 2020

Appearances:

H Kim for the Appellant

D Collins for the Respondent

Judgment:

29 May 2020

JUDGMENT OF GORDON J

This judgment was delivered by me on 29 May 2020 at 3 pm

Registrar/Deputy Registrar Date:

Solicitors: Auckland Council, Auckland Counsel: H Kim, Manukau City

INGLE v AUCKLAND COUNCIL [2020] NZHC 1164 [29 May 2020]

Introduction

[1] On 27 June 2018, the appellant, Steven Ingle, pleaded guilty to three charges under the Dog Control Act 1996 (the Act) arising from two incidents. The charges were:

(a)Being the owner of a dog (Tyson) that attacked a person (s57(2)), 21 June 2016;

(b)Being the owner of a dog (Leksi) that rushed a person (s57A), 21 June 2016;

(c)Being the owner of a dog (Tyson) that attacked a person (s57(2)), 17 April 2017.

[2] On 17 March 2020, in the District Court at Manukau, Judge Patel sentenced Mr Ingle to total fines of $1,925 of which $1,365 was to be paid to the victim for emotional harm. The Judge also ordered the destruction of Tyson. An application for a discharge without conviction under ss 106-107 of the Sentencing Act 2002 (the Sentencing Act) was declined.

[3] Mr Ingle appeals against the destruction order and the decision refusing his application for a discharge without conviction.

[4]Auckland Council (the Council) opposes the appeal.

Factual background

[5] Tyson is a black male Bull Mastiff cross. Leksi is a tan male Bull Mastiff cross. They are both owned by Mr Ingle.

[6] In the first incident, on 21 June 2016, at approximately 10.30 am, the victim was visiting her daughter. She saw Mr Ingle’s dogs on the footpath outside his property. They approached her. Tyson bit the victim on her left thigh. The dogs were chased away by members of the public and retreated to Mr Ingle’s property. The bites

inflicted by Tyson caused bleeding and received medical attention. The dog was seized and impounded. He was subsequently released subject to strict conditions.

[7] In the second incident, on 17 April 2017, at approximately 12.50 pm, the same victim was walking her daughter’s dog. When she passed Mr Ingle’s property, Tyson approached her. Tyson bit her on the right leg. The victim fell to the ground and screamed, alerting a neighbour to the situation who chased the dog back onto the property. The victim did not seek medical attention but photographed her wounds. She suffered at least two puncture wounds and several deep lacerations. Tyson was seized and impounded and later released subject to strict conditions.

[8] In relation to the second incident, the animal management officer who attended observed that the gate to Mr Ingle’s property was open. He also noted that the gate required heavy lifting to open or close it. Mr Ingle told the animal management officer that the gate…

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.

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Details

Case: [2020] NZHC 1164
Decision Date: 29 May 2020

CaseChat Overview and Summary

The appeal was brought by Steven Ingle against the decision of the District Court to order the destruction of his dog, Tyson, following a conviction for Tyson's attacks on members of the public. Mr Ingle also appealed against the District Court's refusal to grant him a discharge without conviction. The District Court's decision was upheld by Gordon J. The first issue before the Court was whether a conviction was a necessary prerequisite to ordering the destruction of a dog under s 57(3) of the Dog Control Act 1996. Gordon J concluded that the express requirement for a conviction had been removed in a 2003 amendment to the Act and that there was no justification for implying one. The second issue was whether the District Court had correctly exercised its discretion in declining to make a destruction order for Tyson in the event of a discharge without conviction. Gordon J found that there was no such discretion available under s 106(3)(c) of the Sentencing Act 2002. Even if such a discretion existed, Gordon J found that it would not have been exercised in the circumstances of this case. The final issue was whether the sentence imposed by the District Court was manifestly excessive. Gordon J found that it was not.

Orders