Ingle v Auckland Council
[2020] NZHC 1164
•29 May 2020
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 had been closed and bolted when the occupants had left that morning. The prosecution conceded that the gate had been left open by a third party. Tyson had been able to leave the property in consequence. The prosecution further conceded that the circumstances of this offence “appear[ed] to be exceptional”.
District Court decision
[9] Despite the prosecution’s apparent concession, Judge Patel took the view that whether the circumstances of the offence were exceptional was a matter for the Court to determine. He also noted that sentencing of Mr Ingle had been adjourned on several occasions, in part while waiting for the Court of Appeal decision in Auckland Council v Hill.1 On the day of sentencing, a further application for an adjournment was considered by the Judge because Mr Ingle wanted to pursue an application for a discharge without conviction. The application for an adjournment was opposed by the Council.
[10] The Judge identified the first issue for consideration as the Court’s power to order destruction of Tyson if Mr Ingle were to be discharged without conviction. He noted that s 106(3)(c) of the Sentencing Act authorised a court to make any order the
1 Auckland Council v Hill [2020] NZCA 52.
court is otherwise required to make on conviction despite the discharge without conviction. Counsel for Mr Ingle submitted that a destruction order might not necessarily follow a discharge without conviction. She cited this Court’s decision in Fountain v Auckland Council2 to the effect that the mandatory order required by s 57 of the Act is subject to the discretion in s 106(3)(c). In Fountain, Wylie J concluded the Court was entitled to take into account matters after the incidents in exercising that discretion. Counsel referred to evidence of Tyson having undertaken behavioural training after the incidents. For reasons set out later in his judgment, the Judge determined that Fountain was “not applicable” and he preferred an alternative High Court decision. He refused the application for an adjournment in consequence but did hear an oral application and received written materials in support of the application.
[11] After determining the fines to be imposed, the Judge considered whether he should make a destruction order for Tyson. He noted the Court was required to make a destruction order unless satisfied the circumstances of the offence were exceptional and did not warrant the destruction of the dog. The Judge set out and applied the two step test, first by considering the circumstances of the offence (the attack), and second whether the circumstances of the offence were exceptional and did not warrant the destruction of the dog. The Judge noted that in undertaking the latter assessment, post- attack events are irrelevant. Exceptional circumstances must be sufficient to render the risk of further attack remote. The Judge noted circumstances which might be exceptional and referred to the Court of Appeal’s statement in Hill that a one-off failure to maintain effective control of a dog does not satisfy the test.
[12] The Judge considered the evidence presented on behalf of Mr Ingle in assessing the circumstances of the offences. He stated that steps taken after the first incident to confine Tyson were not to be considered as part of the circumstances of the offence. The Judge found that on both occasions, Tyson was able to leave the property. Both attacks on the victim were unprovoked. In the first incident she tried to hide behind a post and then tried to run from Tyson. Both attacks only stopped due to the intervention of others. The injuries she suffered were not insubstantial.
2 Fountain v Auckland Council [2018] NZHC 591, [2018] 3 NZLR 216.
[13] The Judge found that the circumstances of the offences were not exceptional. He noted Hill set a high bar. The first attack arose out of Mr Ingle’s failure to maintain control of Tyson while the second arose out of a failure by a third party to properly close and secure the gate. The Judge noted the Court of Appeal had specifically decided neither of those circumstances was exceptional. The evidence relating to behavioural training after the incidents was not relevant and the Judge found Tyson remained a risk.
[14] Finally, the Judge considered medical reports from three clinicians on the effect of an order to destroy Tyson on Mr Ingle. The Judge acknowledged Tyson was a much-loved family pet and the matters raised in the reports but concluded Tyson presented a continued risk to the safety of others. He ordered the destruction of Tyson under s 57(3) of the Act.
[15] The Judge went on to consider an oral application for a discharge without conviction. The ground for this application was that destruction of Tyson would cause significant hardship for Mr Ingle. The Judge considered significant hardship would not arise from conviction but rather from the destruction of Tyson. In that regard he preferred the decision of Turner v South Taranaki District Council3 to Fountain. In Turner Miller J noted that a destruction order under s 57(3) of the Act did not depend on a conviction under s 57(2). Section 57(3) refers to an “offence” but conviction of that offence was not a prerequisite to destruction. It is “circumstances” that matter.4 Judge Patel concluded that the consequences would flow from the destruction order rather than conviction and so the direct and indirect consequences of a conviction were not out of all proportion to the gravity of the offending. He declined the application for a discharge without conviction.
[16] However, if he was wrong on this point and Mr Ingle was entitled to a discharge without conviction, the Judge went on to consider the discretion Wylie J identified in Fountain under s 106(3)(c). Judge Patel was satisfied that an order for destruction should still be made. This was because Tyson had previously attacked another dog; Tyson twice attacked a person causing injuries; the dog’s attacks were only stopped
3 Turner v South Taranaki District Council [2013] NZHC 1603.
4 Turner v South Taranaki District Council, above n 3, at [22].
through the interventions of others; the attacks were unprovoked; post-attack behavioural therapy does not adequately address the further risk of an attack; and public safety is a priority.
Submissions
Submissions on behalf of Mr Ingle
[17] Ms Kim, on behalf of Mr Ingle, submits that the Judge was wrong to conclude that a destruction order under s 57(3) was not a direct or indirect consequence of a conviction. Further, she says the Judge did not undertake the three-stage analysis required under s 107 to correctly assess whether a discharge without conviction should be given under s 106.
[18] She submits that the Judge was wrong to refuse Mr Ingle’s application for discharge without conviction as the consequences of the conviction, particularly the destruction of Tyson, are out of all proportion to the gravity of the offence. In those circumstances, the Judge should have exercised the discretion in s 106(3)(c), as explained in Fountain, not to order the destruction of the dog under s 57(3).
Submissions on behalf of the Council
[19] Mr Collins, for the Council, submits the Judge made no error in concluding a destruction order is the presumptive outcome of s 57(3) whether the defendant is convicted or not. The Judge was correct in concluding that a destruction order is not a consequence of conviction. The Judge did assess the gravity of the offending for the purposes of s 107 of the Sentencing Act because no other consequences of conviction were advanced by Mr Ingle. Mr Collins further submits that the complaint the Judge did not correctly assess the application for discharge using the three-stage test is misconceived because he did so in the course of his judgment. This was an issue of structure and form rather than substance.
[20] Alternatively, Mr Collins says if conviction is a pre-requisite to making an order for destruction, a discharge without conviction is not justified because the threshold in s 107 cannot be met in a case of such serious and repeat offending.
Mr Ingle has expressed remorse but little weight can be attached to post attack activities and future undertakings about management of Tyson. Mr Ingle’s difficult personal circumstances, ordinary anxiety associated with Court appearances and concern for the destruction of a family pet, are not out of all proportion to the seriousness of the offending.
Approach on appeal
[21] An appeal against a refusal to grant a discharge without conviction is by way of rehearing. It requires the Court on appeal to make a fresh assessment in accordance with its own opinion.5
Issues
[22] There are a number of overlapping issues for consideration but all come back to the construction of s 57 of the Act and the question of whether a conviction is a necessary prerequisite for a court to exercise the jurisdiction in s 57(3) to order destruction of a dog. I will address the competing High Court decisions on this question first. It is relevant to two related issues. First, is a destruction order a direct or indirect consequence of a conviction for the purposes of s 107 of the Sentencing Act? If a destruction order can only be made if a conviction is entered, that is relevant in assessing whether the destruction order is a consequence of conviction. The destruction cannot be a consequence of conviction if a destruction order could still be made in the absence of a conviction. Second, and regardless of the outcome on the first issue, in the event of a discharge without conviction under s 106, is there a discretion available under s 106(3)(c) in relation to the making of a destruction order under s 57(3)?
[23] After determining whether or not a conviction is a necessary pre-requisite to exercise the jurisdiction under s 57(3) to make a destruction order I will address the following:
5 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
(a)On the exception in s 57(3) of the Act: are the circumstances of the offence such that there should be an exception to the rule in s 57(3) that a destruction order must be made?6
(b)On the appeal against refusal to discharge without conviction: was the Judge correct in refusing to give a discharge without conviction?
(c)On the discretion in s 106(3)(c) of the Sentencing Act:
(i)Is there a discretion under s 106(3)(c) in relation to a destruction order under s 57(3)?
(ii)If there is a discretion under s 106(3)(c), and Mr Ingle is entitled to a discharge without conviction, how should that discretion be exercised?
Is a conviction a prerequisite to an order for destruction?
[24] My starting point is the correct construction of s 57 of the Act which in relevant part provides:
57 Dogs attacking persons or animals
(1)A person may, for the purpose of stopping an attack, seize or destroy a dog if—
(a)the person is attacked by the dog; or
(b)the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.
(2)The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on conviction to a fine not exceeding
$3,000 in addition to any liability that he or she may incur for any damage caused by the attack.
(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
6 Although not a matter raised in Ms Kim’s written submissions, it was addressed by her at the hearing and I will consider this question.
the offence were exceptional and do not warrant destruction of the dog.
…
[25] As enacted in 1996, s 57(5) combined the present s 57(2) and s 57(3) in one provision:
57Dogs attacking persons or animals or rushing at vehicles
…
(5)The owner of any dog that makes any such attack commits an offence and is liable on summary conviction to a fine not exceeding $1,500 in addition to any liability the owner may incur for any damage caused by the attack; and, where the dog has not been destroyed, the Court shall, on convicting the owner, make an order for the destruction of the dog unless satisfied that the circumstances of the attack were exceptional and do not justify destruction of the dog.
…
(emphasis added)
[26] The first part of the above provision is now in s 57(2). A modified version of the second part is now in s 57(3). There has been much discussion of the alteration of the phrase “circumstances of the attack” to “circumstances of the offence” in the 2003 amendment. This change was initially addressed by Heath J in Halliday v New Plymouth District Council, who found the legislative history provided no explanation for the change,7 and then by the Court of Appeal in Auckland Council v Hill, which found the phrases were equivalent.8
[27] However, the 2003 amendment brought a second change. Under the 1996 provision, where the dog had not been destroyed, a destruction order could only be issued where the Court convicted the owner of an offence. Conviction of an offence was an express prerequisite to the exercise of the jurisdiction to order destruction under the former provision. The express requirement for a conviction was removed in the 2003 amendment. Since the amendment, some decisions of this Court have implied a prerequisite of conviction in its place.
7 Halliday v New Plymouth District Council HC New Plymouth CRI 2005-443-011, 14 July 2005 at [14].
8 Auckland Council v Hill, above n 1, at [5], [69].
[28] An example is Halliday. In that case, the appellant pleaded guilty to a charge under s 57(3) after his dog bit a person causing injury. The District Court ordered the destruction of the dog. The issue on appeal was whether the order for destruction was properly made. The conviction and sentence were not appealed. In the course of considering the phrase “exceptional circumstances of the offence”, Heath J compared the offences, penalties and other powers in ss 57, 57A and 58. Of s 57 he said:9
Section 57 of the Act is directed towards an attack by a dog on a person or on specified animals. Again the nature of the attack encompasses a wide variety of circumstances. Injury to a person or animal is not an element of the offence, though clearly it would be an aggravating factor. An attack on a person or specified animal is clearly seen by Parliament as being more serious than rushing or startling a person or animal. For that reason, destruction of the dog is mandatory on conviction of an offence under s 57, unless the District Court is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.
[29] Heath J noted that the 2003 amendment distinguished between three different types of offending. Section 57 deals with attacks on persons or animals, s 57A involves rushing at persons, animals or vehicles and s 58 relates to attacks which caused serious injury to a person or death to wildlife (or caused injuries to wildlife which require destruction owing to the suffering inflicted). Heath J noted that different language was used in the exception to a destruction order in each provision and he went on to analyse the effect of “circumstances of the offence” in s 57 and “circumstances of the attack” in s 57A.10
[30] For both, however, he was of the view that a destruction order was predicated on a conviction for an offence. I respectfully take a different view having regard to the text of the statute. As noted above, the words “on convicting the owner” were not included in the current s 57(3) when it was amended in 2003.
[31]By contrast s 58 was not amended in this way in 2003. Section 58 provides:
9 At [36].
10 I note that the effect of the Court of Appeal’s decision in Hill is to supersede Heath J’s conclusions
in Halliday on this issue. I will address this below.
58Dogs causing serious injury
…
commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years or a fine not exceeding $20,000, or both, and the court shall, on convicting the owner, make an order for the destruction of the dog unless satisfied that the circumstances of the attack were exceptional and do not justify destruction.
(emphasis added)
[32] This offence is more serious than s 57 so an order is mandatory. But there must be a conviction first.
[33] A similar point can be made in relation to s 57A. This was added as a standalone provision in the 2003 amendment but largely re-enacted a very similar existing provision in s 57(6). Section 57(6), as enacted in 1996, provided:
57 Dogs attacking persons or animals or rushing at vehicles
…
(6)Where any dog in any public place—
(a)Rushes at or startles any person or animal in such a manner that any person is killed, injured, or endangered, or any property is damaged or endangered; or
(b)Rushes at any vehicle in such a manner as to cause or be likely to cause an accident,—
the owner of the dog commits an offence and is liable on summary conviction to a fine not exceeding $1,500 in addition to any liability the owner may incur for any damage caused by the dog; and the Court may, on convicting the owner, make an order for the destruction of the dog.
[34]The relevant part of current s 57A reads:
57A Dogs rushing at persons, animals, or vehicles
(1)This section applies to a dog in a public place that—
(a)rushes at, or startles, any person or animal in a manner that causes—
(i)any person to be killed, injured, or endangered; or
(ii)any property to be damaged or endangered; or
(b)rushes at any vehicle in a manner that causes, or is likely to cause, an accident.
(2)If this section applies,—
(a)the owner of the dog commits an offence and is liable on conviction to a fine not exceeding $3,000 in addition to any liability that he or she may incur for any damage caused by the dog; and
(b)the court may make an order for the destruction of the dog.
…
[35] Apart from changes in form and an increase in the penalties, there was one other significant change which reflected the changes to s 57(3): the words “on convicting the owner” were deleted. In ss 57 and 57A, therefore, an express precondition for making a destruction order was removed (though there is a much wider discretion in s 57A). This precondition was retained in s 58.
[36] The omission of the words “on convicting the owner” in ss 57(3) and 57A, formerly in ss 57(5) and 57(6) and still appearing in s 58, when the Act was amended in 2003, does create an important difference between the provisions. It is one which suggests a conviction is not a prerequisite to a destruction order under s 57(3). The difference in wording does not appear to have been the subject of judicial analysis.
[37] The proposition that an order for destruction under s 57(3) was contingent on a conviction was subsequently developed further by Heath J in King v South Waikato District Council.11 In that case, the appellant’s dog attacked other animals on two separate occasions. It was squarely a situation covered by s 57. The circumstances of the second attack were somewhat unique in that it occurred at the council’s facility after the dog was impounded. The appellant was convicted of an offence arising from this attack. The appeal was primarily concerned with whether a destruction order should have been made. Heath J considered this question turned on whether the owner was properly convicted and the availability of a total absence of fault defence.
11 King v South Waikato District Council [2012] NZHC 2264.
[38] The Judge addressed the proposition that the validity of the destruction order rested on the convictions. This was because “[i]t was mandatory, in the absence of exceptional circumstances, to make a destruction order if the s 57(2) offence was proved.”12 If the convictions against the appellant were not properly entered, then the destruction order could not be made. In framing the issues, I note that Heath J elides the distinction between offence and conviction: a destruction order was mandatory if the offence was proved. He equates proof of the offence with the entry of convictions.
[39] Heath J’s focus was on the nature of the offence, which determined whether a defence of total absence of fault was available where it was not expressly excluded by the statute. In the course of explaining why such a defence would conflict with the purpose of s 57, he observed:13
In a case such as this, the protection of society from a dog’s propensity to attack is the primary policy goal. The problem is that it is necessary to sheet home criminal liability to an owner before destruction of the dog can be considered.
[40]He continued:14
I acknowledge that this approach causes difficulty to what I perceive to be the most important public policy goal of s 57. Only if a conviction were secured against an owner does the Court have jurisdiction to make an order for the destruction of the dog that has committed the relevant attack. That consequence flows from the need to ensure that a person who lacks control over the dog and can prove, on a balance of probabilities, a total absence of fault on his or her part should not be made criminally responsible because the dog has made a prohibited attack.
[41] The conflict identified, as I understand Heath J, is that a dog which poses a risk to the public because it has engaged in an attack of the kind prohibited in s 57(1), cannot be destroyed because the owner has avoided conviction by proving a total absence of fault. Heath J considered this could only be remedied by Parliament:15
The answer to that dilemma may lie in the creation of a separate civil right to seek a dog destruction order if a Council can prove that a prohibited attack was made and that, applying the s 57(3) test, it is necessary to destroy the dog. That, however, is an issue for Parliament to consider. On the state of the existing law, it is not appropriate to hold an owner who has acted with a total
12 At [3].
13 At [30].
14 At [32].
15 At [33].
absence of fault criminally liable, in order to allow the Court to make a destruction order.
[42] I respectfully take issue with this: it does not follow from the terms of s 57(3), the manner in which s 57 was amended in 2003; or the different language used in the present ss 57 and 58.
[43] Just as Heath J found the legislative history of little assistance in considering the change from “attack” to “offence”, so too parliamentary proceedings provide no explanation for this change either. The 2003 amendment was initially introduced as the Local Government Law Reform Bill (No 2) in 1999. It did not contain the amendment to s 57 as enacted. It was referred to the Internal Affairs and Local Government Select Committee, which reported back later that year.
[44] No further progress was made until the bill was referred to the Local Government and Environment Select Committee in February 2003. There had recently been a serious attack by a dog on a small child in a suburban park which had generated considerable publicity.16 The committee considered both the bill and a supplementary order paper (SOP) from the Minister of Local Government. The proposal to alter s 57 was contained in cl 26 of this SOP. So far as ss 57(1) and 57(3) are concerned, the wording set out in the SOP was that adopted by the committee in its report to the House and the proposed amendment to s 57 was added to the bill at this point. These provisions had not been amended by the time they were enacted by Parliament.
[45] Neither the explanatory notes to the SOP nor the committee’s report addressed these proposed changes. Both refer to clarification of the powers of certain public officials to seize dogs on private property and increases in the penalty for an offence under the section.
[46] The reason for the express requirement for a conviction in s 58 and the absence of that precondition in s 57 is unclear. It would be consistent with the priority accorded to public safety in the amendment for the Court to have a general power to order
16 See Owen v Police HC Auckland A44/03, 13 June 2003
destruction after an attack by a dog. Section 58 says the Court “shall” rather than “must” (as in s 57(3)) order destruction unless there are exceptional circumstances. Both are mandatory words and shall and must are interchangeable, so there is no real difference between this aspect of the two provisions.
[47] What can be said with certainty is that the former s 57(5) of the Act expressly required a conviction before a court could exercise the jurisdiction to destroy a dog. Following the 2003 amendment, that precondition was removed.
[48] In Fountain, the case Ms Kim relied on in her submissions in the District Court and in this Court, Wylie J acknowledged the absence of an express reference to a conviction but not that it was removed by the 2003 amendment. He took the view that “the circumstances of the offence” could only be a reference to an offence under s 57(2). He referred to and adopted Heath J’s explanation for the legislative change in 2003. Wylie J considered “the circumstances of the offence” must mean an offence has been established and conviction entered. Alternative wording would have been used otherwise. He considered this was consistent with the purpose of the Act:17
Further, there is nothing in the purpose of the Act which suggests a different interpretation. The Act seeks to make better provision for the care and control of dogs by, inter alia, imposing on owners of dogs obligations designed to ensure that dogs do not injure, endanger, or cause distress to any stock, poultry, domestic animal or protected wildlife, and to make provision for damage caused by dogs. Obligations imposed on dog owners require them to ensure that the dog is kept under control at all times, and to take all reasonable steps to ensure that the dog does not injure, endanger, or cause distress to any stock, poultry, domestic animal or protected wildlife. The focus is on the care and control of dogs, and on the obligations of owners, not on the destruction of dogs where their owners have not committed an offence created by the legislation.
[49] Wylie J concluded that the Court had no jurisdiction to order destruction under s 57(3) where the owner of the dog was not convicted of an offence under s 57(2).
[50] The contrasting view on the meaning of “the circumstances of the offence” is that expressed by Miller J in Turner v South Taranaki District Council.18 He interpreted s 57(3) to mean that in the absence of exceptional circumstances, a
17 Fountain v Auckland Council, above n 2, at [37].
18 Turner v South Taranaki District Council [2013] NZHC 1603.
prohibited attack by a dog must lead to the destruction of that dog. Miller J noted the change in language in the 2003 amendment from “attack” to “offence” and suggested it “allows a court to take into account circumstances not only of the attack but also of the owner and the dog.”19 The focus of the inquiry is the circumstances, not the offence (Wylie J responds that this ignores the words “the offence”). A conviction is therefore not a necessary prerequisite to either a destruction order or the inquiry. The effect was to broaden the scope of the inquiry, so far as the exception was concerned, though that inquiry could only consider matters up to the time of the offence and not beyond.
[51] Woodhouse J agreed with this approach in Epiha v Tauranga City Council.20 He added that an interpretation otherwise would be inconsistent with a primary objective of the Act, which is to deal with dangerous dogs. Woodhouse J further observed that liability arising from a failure to discharge the obligations placed on a dog owner by the Act is independent of the requirement for the destruction of a dog which has demonstrated it is a danger.
[52] This brings me to the recent judgment of the Court of Appeal in Auckland Council v Hill. In that case, the dog owner was convicted. In consequence, the Court of Appeal’s focus was on the circumstances of the offence and whether they were exceptional. This is relevant later in my judgment but the Court of Appeal’s general discussion of s 57(3) is relevant to the matter I am addressing now.
[53] First, the Court of Appeal says the initial step in applying s 57(3) is “to identify the relevant circumstances of the offence”.21 This is described in two ways: “what happened” and “the immediate circumstances of the attack itself”.22 This step is concerned to establish a sequence of facts or events. Although in the case before the Court of Appeal conviction was established, the analysis focuses on “circumstances” rather than “offence”. The Court of Appeal emphasises this point by describing “circumstances of the offence” and “circumstances of the attack” as equivalent. The analysis contradicts Heath J’s assessment that the former is a much broader inquiry
19 At [23].
20 Epiha v Tauranga City Council [2017] NZHC 979.
21 Auckland Council v Hill, above n 1, at [62].
22 At [5], [64].
than the latter.23 It is a logical inference to draw from the entirety of s 57: the fact of an attack described in s 57(1) establishes the offence in s 57(2):24
Where an offence has been committed under s 57(2) — in other words, where a relevant attack has occurred — s 57(3) applies. An order for destruction of the dog is the normal consequence of such an attack taking place, unless a judge finds that the exception in s 57(3) applies.
[54] The Court of Appeal’s analysis of the second step further emphasises this approach. The focus is on the circumstances: were the circumstances exceptional; is there a risk of another attack in similar circumstances; there is an assumption that the dog will behave in the same way in similar circumstances.
[55] Second, the Court of Appeal identifies a clear purpose for s 57(3). As noted above, Wylie J considered the purpose of the Act was the care and control of dogs and the obligations of owners. In contrast, the Court of Appeal considers the purpose of this provision at least is public safety:25
That reading is consistent with the purpose of the provision: to protect public safety, by ensuring that the dog does not commit future attacks. The reason for a default rule that the dog should be destroyed is that the Act proceeds on the basis that where a dog has attacked once, there is a risk that the dog will behave in the same way again in similar circumstances. That risk must be removed by destruction of the dog, unless the risk is immaterial because the circumstances of the attack were exceptional and a repeat of those circumstances is most unlikely.
[56] An interpretation of s 57(3) which would permit the owner of a dog which has attacked a person to avoid the consequences of that attack because, for quite unrelated reasons connected with the personal circumstances of the owner and wholly unconnected to the risk the dog presents of a further attack, the owner has not been convicted of an offence under s 57(2), cannot be consistent with the public safety purpose of the provision.
[57] The Court must be satisfied the dog has committed a prohibited attack. This will arise in the course of enforcement proceedings. The attack establishes the factual basis for the mandatory order to destroy a dog. This part of the provision cannot be
23 At [67]-[68], [71].
24 At [48].
25 At [65].
predicated on conviction; the text is clear. This interpretation is confirmed by the 2003 amendments, which removed the express precondition of conviction.
[58] This does not ignore the words “the offence” but recognises that the inquiry must be focused on circumstances which justify an exception. The words “the offence” define the scope of the inquiry. The inquiry is not a broad and general one concerning the behaviour and management of the dog by its owner but a narrower one focused on the circumstances of the offence.
[59] This interpretation is consistent with the Court of Appeal’s conclusion that s 57(3) requires an inquiry into the “immediate circumstances of the attack itself” and that “circumstances of the offence” and “circumstances of the attack” are equivalents in this provision. The inquiry into the exception cannot be predicated on a conviction, because that would likely lead to inconsistent outcomes, and the reference to “offence” (which is the equivalent of “attack”) defines the scope of the inquiry rather than requiring a conviction before the inquiry can be undertaken.
[60] I therefore adopt Miller J’s approach in Turner. A conviction is not a precondition to the jurisdiction to order destruction of a dog under s 57(3). If there is an attack, and the dog has not already been destroyed, then an order must be made in the course of enforcement proceedings under s 57(2) unless the circumstances of the offence (or attack) are exceptional. I respectfully decline to follow Fountain.26 The express requirement for a conviction was removed from s 57(3) in the 2003 amendment and I do not consider it consistent with the public safety purpose of the provision to imply one. I agree with Miller J that there will be circumstances where the owner can establish a total absence of fault (and therefore will not have committed an offence) but the dog still presents a risk to public safety which requires it be destroyed.27 I will consider the consequences of this conclusion below in relation to the specific issues in dispute in the appeal.
26 I have previously followed Fountain in Pehi v Auckland Council [2018] NZHC 2154. However, it was an oral decision following a hearing in which I did not have the benefit of competing submissions on this issue. It also preceded the Court of Appeal’s decision in Hill.
27 At [22].
[61] There is one final point to address arising out of Hill. In granting leave,28 the Court of Appeal was required to consider whether a prosecution under s 57 of the Act was a criminal or civil matter. The High Court had dealt with the appeal from the District Court as a general appeal against the exercise of a statutory power.29 This was relevant to the question of leave because if the appeal to the High Court was a general one, then an appeal from that decision to the Court of Appeal was via s 60 of the Senior Courts Act 2016. That required leave either from the High Court or, if the High Court refused leave, from the Court of Appeal. Leave had not been obtained. Instead, the Council had brought its appeal under s 253(2) of the Criminal Procedure Act 2011. In determining this was the correct approach, the Court of Appeal remarked:30
The opening words of s 57(3), “[i]n any proceedings brought under subsection (2)”, make it clear that a dog destruction order can only be made in the context of those criminal proceedings. It follows that an order made under s 57(3) is criminal in nature. In addition, a dog destruction order falls within the definition of a sentence in s 212 of the CPA, being a “method of disposing of a case following conviction”.
[62] However, this does not preclude a destruction order being a method of disposing of a case in the absence of conviction.
[63] The Court of Appeal went on to note that dealing with an appeal against a destruction order as a civil rather than criminal appeal would be problematic where there was an appeal against conviction and the destruction order. This is because two separate appeals would be required in this situation: one under the Criminal Procedure Act against conviction and another under the Senior Courts Act against the destruction order. The Court of Appeal described this as “impractical” but might also “have the potential for inconsistent outcomes, given that a dog destruction order can only stand if there is a conviction”.31 The Court of Appeal cites Fountain for this proposition.
[64] Mr Collins referred to this comment at the hearing and submitted it was obiter, as the Court of Appeal was concerned with a procedural matter (the provision under which the appeal could be brought). I accept this submission. The Court of Appeal
28 Auckland City Council v Hill [2019] NZCA 296.
29 At [10].
30 At [10].
31 At [11].
cited but did not discuss Fountain. The statement was made by the Court of Appeal in the context of discussing a specific point relating to the procedure for an appeal. Nor is there any discussion of the exercise of the power to order destruction of a dog under s 57(3).
Exceptional circumstances?
[65] As I have noted, s 57(3) requires the making of an order for destruction of a dog which has committed an attack described in s 57(1) unless the circumstances of the offence/attack were exceptional and do not warrant the destruction of the dog. This is a two-stage test. Until Hill, the test generally adopted was that which was set out in Halliday. However, Hill has re-articulated and refined the test, particularly as to the matters to be reviewed in undertaking the assessment.
[66] In applying s 57(3), a two-step process is required. First, it is necessary to identify the relevant circumstances of the offence. The Court of Appeal says this inquiry “should focus on the immediate circumstances of the attack itself”.32 The Court of Appeal states “circumstances of the offence” and “circumstances of the attack” are “equivalent in this context.”33
[67] The immediate circumstances of the offence (or the attack) are all the factors which caused or contributed to the attack, at the time of the attack.34 The dog’s behaviour prior to the attack is not part of the immediate circumstances of the offence.35 Nor are matters after the attack relevant; the circumstances of the offence cannot extend beyond the attack. They must be complete when the attack ends.36 The Court of Appeal draws particular attention to any activities by the owner after the attack which might be relevant to a discharge without conviction. These cannot be described as circumstances of the offence.37
32 At [5], [67].
33 At [5], [69].
34 At [67].
35 At [71].
36 At [72].
37 At [73].
[68] The second step in the process is to assess whether the circumstances were exceptional such that the destruction of the dog is not warranted.38 The Court of Appeal observes that s 57(3) presumes that a dog attack establishes a risk of a further attack in similar circumstances.39 The focus is whether the circumstances of the attack were exceptional and thereby rendering the presumed risk to be lower, or at least the risk of a further attack to be remote. This reduction in risk must be sufficient so that the destruction of the dog in the interests of public safety is unjustified.40 A dog protecting its owner from an attack by another dog or a situation where a dog is provoked are two examples given by the Court of Appeal which might render the circumstances of the offence exceptional.41 Exceptional circumstances are those “unlikely to be repeated” because, otherwise, a dog remains at risk of a further attack.
[69] The Court of Appeal identified the types of circumstances which are not relevant to this inquiry. Three of those were as follows. The first is that a dog owner cannot claim a dog can be expected to behave in a different way in similar circumstances in the future.42 Intervention through behaviour management cannot reduce the risk because the risk analysis assumes the dog will continue to behave in that way. Second, a one-off failure by the owner to maintain control of the dog is not an exceptional situation.43 Third, circumstances which are not exceptional at the time of the attack cannot become exceptional through post-attack interventions.44 The Court of Appeal particularly notes that assurances given by the owner after the attack about the future management and control of the dog are not relevant to the inquiry as they are unenforceable. Indeed, “the need for such precautions tends to suggest that there was nothing exceptional about the circumstances in which the attack took place, and that an attack is a real risk in ordinary circumstances”.45
[70] There were two separate attacks in this case. I consider each must be assessed separately and, although I do not need to decide this point, it seems to me that an
38 At [74].
39 At [75].
40 At [6].
41 At [84].
42 At [77].
43 At [78].
44 At [79].
45 At [81].
absence of exceptional circumstances in one but not the other would be not be sufficient to engage the exception in s 57(3).
[71] As to the first attack, Ms Kim points to the landscaping work on the property which did not properly contain the dogs and permitted Tyson to escape and attack the victim. However, the Court of Appeal specifically states in Hill that a one-off failure by the owner to maintain control of the dog is not exceptional. The exception cannot apply in relation to the first attack.
[72] In relation to the second attack, Ms Kim identifies two matters for consideration. One is the Council’s concession that the circumstances of the second event “appear to be exceptional”. The Judge stated that whether the circumstances of the attack were exceptional was a matter for him to determine. I agree. In any case, that concession does not accord with the law. A third party leaving a gate open comes within the scope of a one-off failure to maintain the control of the dog so is not exceptional. In oral submissions Ms Kim conceded that was so. Alternatively, that the gate was open, and that Tyson was able to leave his enclosure, is not a circumstance of the attack in that his leaving the property was a prelude to but not part of the immediate circumstances of the attack on the victim.
[73] I find that the circumstances of the offence/attack were not exceptional. Applying s 57(3), the Judge was therefore correct to make an order for the destruction of Tyson.
Discharge without conviction
[74] As noted above, I have undertaken the assessment required by s 57(3) because it is narrower in scope. While Ms Kim raised other points in her submissions addressing the impact of an order for destruction on Mr Ingle’s mental health, his remorse and commitment to behaviour improvement and control of Tyson, she did not press these in relation to the exception. I need to consider whether they are relevant to a discharge without conviction and the matters which flow from a possible discharge. I turn then to the appeal against the refusal of the application for discharge without conviction.
[75] The jurisdiction of the Court to discharge without conviction is conferred by ss 106 and 107 of the Sentencing Act, which relevantly provide:
106Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2)A discharge under this section is deemed to be an acquittal.
(3)A court discharging an offender under this section may—
(a)make an order for payment of costs or the restitution of any property; or
(b)make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
(i)loss of, or damage to, property; or
(ii)emotional harm; or
(iii)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property
(c) make any order that the court is required to make on conviction
107Guidance 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.
[76] The starting point is s 107. In deciding to discharge a defendant without conviction, a three-step analysis is required:46
(a)Assessing the gravity of the offending. That means first looking at all the relevant circumstances of the offending and of the offender, and then standing back and deciding how serious the offending is;
(b)Determining the direct and indirect consequences of a conviction for the offender; and
46 Z (CA447/12) v R [2012] NZCA 599 at [8]-[9] and Taulapapa v R [2018] NZCA 414 at [22]-[23].
(c)Determining whether those consequences are out of all proportion to the gravity of the offending.
[77] Only if the threshold in (c) above is met can the Court move to consider the residual discretion under s 106.47 There must be a “real and appreciable” risk that any given consequence will happen.48 This standard recognises that the Court is assessing the likelihood of something that may happen in the future.49 Once the s 107 test is satisfied this will normally result in a discharge.
[78] Ms Kim submits that Judge Patel did not undertake this analysis. Mr Collins responds that the three stages were dealt with in the judgment but at different points and Ms Kim’s submission goes to the form of the judgment rather than the substance.
Gravity of offending
[79] Ms Kim submits that the offending was moderate: Tyson has received extensive training since the incidents; family members described significant improvement in behaviour; and the efforts of Mr Ingle and his family demonstrated their commitment to improve and manage Tyson’s behaviour.
[80] Further in relation to the gravity of the offending, Ms Kim appears to suggest, with reference to an earlier Council file summary, that in one of the incidents the victim provoked the dogs by attempting to move them on when they approached her and that an earlier attack by Tyson on another dog may also have been provoked by the other much smaller animal. She also points to the absence of further incidents since the April 2017 attack. She says claims by Mr Ingle about the consequences of the destruction of Tyson are supported by the reports given by medical practitioners which diagnose serious health conditions. They are also supported by the statements of his family. Ms Kim submits the Judge placed too much emphasis on the seriousness of the offending and failed to adequately take account of the absence of further attacks and the effect of destruction on Mr Ingle.
47 Z v R, above n 46, at [27]; Taulapapa v R, above n 46, at [22].
48 DC (CA4712013) v R [2013] NZCA 255 at [43] and Taulapapa v R, above n 46, at [22].
49 Taulapapa v R, above n 46, at [22].
[81] In my view, both attacks, which can be assessed together for the purposes of this exercise, should be seen as moderate to serious and towards the upper end of that range. The attacks were unprovoked. Provocation cannot be inferred from an effort by the victim to avoid contact with a dog approaching her. I reject Ms Kim’s submission on this point. The victim suffered puncture wounds and lacerations on two occasions. She received medical treatment in response to the first and did not seek further medical treatment following the second because she had already received a tetanus injection following the initial attack. The attacks only stopped due to the intervention of others. There was also a previous infringement arising out of an earlier attack by Tyson on another dog.
[82] In assessing the gravity of the offending, I can take into account broader matters relating to Mr Ingle. There are, therefore, other aggravating and mitigating factors. Both attacks were possible because Mr Ingle did not properly secure Tyson. That there was work being done on his property at the time of the first attack does not relieve Mr Ingle of responsibility for effectively securing his dog. That a third party apparently opened a gate through which Tyson escaped for the second attack does not either. By then it was clear Tyson was a dangerous dog who would attack innocent members of the public without provocation. That the gate could be opened by a third party to release Tyson is a matter which goes to Mr Ingle’s lack of care. These are both aggravating factors.
[83] Ms Kim placed particular emphasis on what she called “extensive training” for Tyson with a “positive outcome.” She referred to the report of Mark Vette, an animal behaviour consultant, and also cites comments from Mr Ingle’s family members about improvements in Tyson’s behaviour. The difficulty with these submissions, and I emphasise that I am engaged in a broader assessment here than that required for the exceptional circumstances in s 57(3), is that predicting future animal behaviour is extremely difficult, if not impossible. Any attempt to do so will be severely qualified and limited in force. However, Mr Vette’s reports suggest that whatever progress has been made, Tyson remains a dog at high risk of further attack as the recommendation is that he must always be muzzled and kept strictly under the control of a handler.
[84] Continuing high risk was recognised in Hill and this sort of evidence was excluded as irrelevant for these reasons. Moreover, as in Hill, I am inclined to the view that behaviour management activities and undertakings about future control of the dog go to the risk of another attack by Tyson as much as Mr Ingle’s commitment to avoid a future attack. At best, this evidence must be treated as neutral rather than mitigating as Ms Kim contends.
[85] I accept that Mr Ingle’s commitment to behaviour improvement training and effective management demonstrates remorse, though I have not seen any evidence to suggest Mr Ingle has expressed his remorse to the victim for the injuries caused to her by Tyson. This is, nevertheless, a mitigating factor.
[86] I do not consider Mr Ingle’s mental health a mitigating factor in this first step of the test. Mental health factors can be relevant in an assessment of the gravity of offending where they contribute to, or are causative of that offending. As the Court of Appeal has noted, a diagnosed mental health condition may “diminish” moral culpability for offending.50 However, I do not see any connection between the offence committed by Mr Ingle, namely, the attacks by Tyson on the victim, and his mental health. The latter did not contribute to, or was not causative of, the offending.
[87] Taking all these factors into account, and standing back to assess the gravity of the offending, I am satisfied that, on a spectrum from moderate to serious, this was offending towards the serious end. I reject Ms Kim’s submission that the offending was moderate.
Direct and indirect consequences
[88] I have concluded above that a conviction is not a precondition to making an order for destruction of a dog. The consequences which flow from a destruction order are therefore not the consequences of a conviction. Ms Kim’s submissions focus on the claims by Mr Ingle about the consequences of the destruction of Tyson. She says these consequences are supported by the reports given by medical practitioners which
50 Nelson v R [2014] NZCA 121 at [22], affirmed in Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [50]. See also Orchard v R [2019] NZCA 529.
diagnose serious mental health conditions on the part of Mr Ingle. Such circumstances are also supported by the statements of his family. However, there is no suggestion that Mr Ingle will suffer significant deterioration of his mental health and be at risk of self-harm if he were convicted of an offence under s 57(2). It is the destruction order which would cause these outcomes (if they are established to the requisite level). The Judge was correct on this issue.
[89] At the hearing, Ms Kim raised a further point which she said Mr Ingle had just mentioned to her. She submitted that Mr Ingle’s employment may be affected by convictions for these offences. She indicated that among his employer’s clients were schools, which require disclosure of convictions before his employer’s workers are able to work on site at the schools. I gave leave for further evidence to be filed subsequent to the hearing on this specific issue.51 Three affidavits were filed from:
(a)Samantha Edwards-Ingle (Mr Ingle’s daughter);
(b)Daryl Edwards (Mr Ingle’s wife); and
(c)Geoff Butler (Carpentry Manager at Form Building & Developments Ltd).
[90] Ms Edwards-Ingle’s evidence is entirely outside the scope of the leave granted and is not admitted. Ms Edwards’ evidence in paragraphs (1) to (5) arguably falls within the area of evidence for which leave was granted and is admitted. The balance is outside the scope of the leave granted and is not admitted. Mr Butler’s evidence is admitted.
[91] Ms Edwards is a long-haul flight attendant employed by Air New Zealand. Demand for international air travel has declined sharply due to the COVID-19 epidemic and control measures which have been implemented by governments in response. Air New Zealand is preparing to restructure as a result and Ms Edwards indicates redundancies were to be announced by Friday, 22 May 2020. Her evidence is that her husband’s employment will be crucial for their family. She also says it will
51 Criminal Procedure Act 2011, s 385.
affect her family emotionally and psychologically as well as detrimentally affect her husband’s vulnerable mental health if he were to lose his job.
[92] Mr Butler describes Mr Ingle as a valuable employee at Form Building & Developments Ltd and speaks generously of his work and the positive feedback Mr Butler has received from the firm’s clients. Mr Ingle is a Fit Supervisor/Foreman and is presently employed on a residential development. Once that is completed he will be moved to another site involving the construction of a school. It is not clear from Mr Butler’s evidence whether it is a new school build, where no students are present, or alterations to an existing school, where students could or will be present. But he says police vetting will be necessary as a condition of the firm’s contract with the Ministry of Education. Mr Butler further states that gaining site access is at the discretion of the Ministry but that his experience is that convictions within the last five years “are not looked on favourably.” While he refers to “clients” generally in this regard, rather than the Ministry specifically, I assume this is his experience of working with the Ministry too.
[93] Mr Butler says he is aware of Mr Ingle’s earlier convictions, which do not have an impact on his current work for the firm. He concludes any further conviction would “severely restrict” Mr Ingle’s employment opportunities for the firm. I cannot accept this proposition can extend to a conviction for a regulatory offence under the Act. Nor, I note, does Mr Butler suggest that it would. He does not address the specific conviction which will arise in this case but refers only to convictions generally.
[94] Finally, at the hearing Ms Kim referred to a much older assault conviction which she suggested Mr Ingle would have to disclose if he were convicted on this offence. However, that is not Mr Butler’s evidence. As I have noted, Mr Butler says his firm’s clients are concerned about convictions within the last five years. As I understood Mr Kim’s submission, the earlier conviction is well outside that timeframe.
[95] On the question of the consequences of conviction on Mr Ingle’s employment, I find that there is no “real and appreciable” risk that his employment will be affected. I acknowledge Ms Edwards’s evidence that her employment situation is more precarious because of the present COVID-19 pandemic. However, the evidence I have
seen indicates that convictions for these offences, which is the focus of my assessment, will not affect Mr Ingle’s employment.
Proportionality
[96] Finally, I am required to consider whether any identified consequences are out of all proportion to the gravity of the offending. It is not enough that the consequences of a conviction approximate or even weigh more heavily than the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the Court has the jurisdiction to grant a discharge without conviction.52
[97] As these remarks suggest, the threshold is a high one. I have found that the offending was towards the serious end of the spectrum and that there is little likelihood of any serious consequences on Mr Ingle’s employment following conviction for these offences. It cannot therefore be said that the consequences of conviction would be out of all proportion to the gravity of the offending. Accordingly, the threshold for a discharge without conviction is not met.
[98] However, this assessment is on the basis of my decision that the destruction order is not a consequence of conviction, because a conviction is not a pre-requisite to making a destruction order. If I am on wrong on this point, and the destruction order is a consequence of conviction, I will now consider how this would affect the outcome of Mr Ingle’s application for discharge.
If a destruction order is a consequence of conviction
[99] Ms Kim’s submission is that the reports provided by the medical practitioners and the statements from Mr Ingle’s family members establish a real and appreciable likelihood that Mr Ingle’s well-being will be affected by destruction of Tyson. Further, she says the symptoms of his diagnosed mental health condition will worsen putting him at increased risk of self-harm.
52 R v Smyth [2017] NZCA 530 at [12].
[100] I have particular regard to a discharge summary report of Consultant Psychiatrist Dr Pavagada prepared for Mr Ingle’s GP on 16 July 2018. Although now nearly two years old, this report is the most recent and most detailed clinical assessment of Mr Ingle’s mental health condition available. Prior to Dr Pavagada’s report, a Counties Manukau District Health Board referral form dated 5 March 2018 refers to previous (seemingly unrelated) suicide attempts and records a high risk of self-harm.
[101] Four months later Dr Pavagada records a diagnosis of post-traumatic stress disorder and major depressive disorder which he describes as severe but without psychotic symptoms. Mr Ingle had been stable for five years but Dr Pavagada noted a relapse in symptoms which he attributed to the enforcement proceedings. The report notes Mr Ingle’s self-described relationship with Tyson and his feelings arising from the possibility that Tyson could be destroyed. Mr Ingle told Dr Pavagada that he would not be unable to cope if this occurs. Dr Pavagada notes “occasional suicidal thoughts” but “no plan or intent” and that “[g]oing to work helps him with his low mood”.
[102] In Dr Pavagada’s opinion, Mr Ingle’s symptoms were likely to worsen during the course of the proceedings. Destruction of Tyson is also likely to worsen his symptoms, which may increase Mr Ingle’s risk to himself. Dr Pavagada’s opinion was that Mr Ingle should be referred back to mental health services during the proceedings or if a destruction order were made. Medication was to be continued and Dr Pavagada recommended psychological treatment. Mr Ingle was to contact the mental health service directly if his symptoms worsened.
[103] As noted earlier, I first need to consider whether there is a real and appreciable risk that a destruction order will adversely affect Mr Ingle’s well-being or increase the likelihood of self-harm. It is clear from Dr Pavagada’s report that Mr Ingle’s symptoms are likely to worsen and this may increase the risk of self harm if there is an order for destruction of Tyson. There is, therefore, a real and appreciable risk that Mr Ingle’s well-being will be affected. I am not so certain that the evidence goes so far as to support a finding of a real and appreciable risk of self-harm. Dr Pavagada simply says that the risk of self harm “may” increase.
[104] However (even accepting there is a real and appreciable risk of both consequences) I am also satisfied on the evidence before me, from both his medical practitioners and his family, that those risks can be effectively managed. Mr Ingle was medicated for his mental health condition and there is nothing to suggest this course of treatment has not been successful. Dr Pavagada has also recommended psychological treatment to assist Mr Ingle in managing the stress. There is a clear treatment plan in place to support Mr Ingle. Such stress is not surprising in enforcement proceedings of this kind and they have continued over an extended period. Moreover, any proceedings involving the future of a beloved family pet will always be stressful. The evidence also records that Mr Ingle’s household includes a second dog, so the destruction of Tyson will leave him the canine companionship which is important for the stability of his mental health. Finally, the statements from Ms Edwards and his children indicate Mr Ingle is well supported by a loving family.
[105] Moving to the final stage of the analysis, because the identified risks can be managed, and taking into account the seriousness of the offence, it cannot therefore be said, as a result, that, even if a destruction order is a consequence of conviction, a conviction would be out of all proportion to the gravity of the offence.
[106] Finally, I agree with Ms Kim that Judge Patel did not undertake the three-step analysis under s 107 even in substance. However, that was because the Judge considered a destruction order was not a consequence of conviction. He was correct in that regard. In any event, I have made a fresh assessment. The Judge was correct not to grant a discharge without conviction.
Discretion in s 106(3)(c)
[107] I have found that Mr Ingle is not entitled to discharge without conviction, whether or not the destruction order is a consequence of conviction. However, if I am wrong on this point, I will consider whether I should exercise the discretion said to be available in s 106(3)(c) regarding a destruction order under s 57(3). I will first address whether there is such a discretion.
Is there a discretion under s 106(3)(c) in relation to an order under s 57(3)?
[108] The question of whether s 106(3)(c) applies to s 57(3) was considered in Fountain. As Wylie J observes, the order must be one the Court is required to make.53 He acknowledges that an order which is “merely discretionary” could not be made under s 106(3)(c). He analyses s 57(3) in these terms:54
Section 57(3) of the Act provides that the court must make an order for the destruction of a dog that has committed a s 57(1) attack unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog. The section does not vest a discretion in the court. Rather, it requires the court to determine whether or not the prescribed exception is made out.
[109] An order is mandatory unless the Court decides there should be an exception. It is one the Court must make in most cases but there may be exceptions so it will not be made in all cases. This does not appear to be an order that the court is required to make.
[110] An analogy is a helpful way of dealing with this issue. The cases cited by Ms Kim relate to orders for disqualification from driving following conviction for certain offences. Such orders are generally considered to come within the scope of s 106(3)(c) and the discretion not to make orders for disqualification is usually because the defendant is employed as a driver and they would otherwise have no means of earning income without a licence. Section 65 of the Land Transport Act 1998 is an instructive example. It applies to certain driving related offences defined in that Act (including drink driving and causing injury or death). A court must make certain types of orders if the statutory criteria are met. There are no exceptions and no discretion in making these orders. The court is required to do so.
[111] This contrasts with s 57(3) where an order must be made unless the exception is satisfied. A destruction order is not one the Court is required to make. It is one the Court can make and usually will make, unless there are exceptional circumstances. But unlike s 65 of the Land Transport Act, it is not an order a court must make. In my
53 Fountain v Auckland Council, above n 2, at [41]. See also Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Thomson Reuters) at [SA106.08].
54 At [42].
view, even if a conviction was not a prerequisite, s 106(3)(c) does not confer a discretion in making an order under s 57(3) following discharge without conviction.
Application of s 106(3)(c) to this case
[112] However, even if I am wrong on this point, and an order for destruction under s 57(3) is an order a court is required to make, I would not exercise the discretion by not making a destruction order. This case can be distinguished from Fountain. In particular, these were two unprovoked attacks on a member of the public which left her with significant injuries. I recognise the effort Mr Ingle has put into addressing Tyson’s behaviour and management since the attack, and the remorse his activities demonstrates, but Mr Vette’s reports only go to emphasise the continuing risk Tyson represents to the general public.
[113] In this regard, I place particular emphasis on the Court of Appeal’s remarks in Hill, in a different context but still relevant, that such activities demonstrate the continuing danger of the dog. That there have been no further attacks by Tyson is an important consideration but is not a particularly compelling indicator of risk. Absence of attack is an indicator of behaviour change, but is not determinative. Mr Ingle’s mental health condition is also a relevant consideration but, as I have already found, any risk can be managed through treatment, counselling and other support.
[114] Wylie J described the discretion in s 106(3)(c) as “unfettered”. On that basis I consider it appropriate to have regard to the purpose of the Act in conferring the power to make destruction orders. The Court of Appeal has said that s 57(3) is concerned with the protection of public safety. This is another relevant factor and I do not consider public safety would be satisfactorily protected were I to decide that a destruction order should not be made.
[115] On balance, I cannot be satisfied that there is little risk of Tyson attacking again. I would not overturn the order for destruction.
Appeal against sentence
[116] Finally, I note that the appeal against the refusal to grant an application for discharge without conviction is an appeal against both conviction and sentence.
[117] The Judge took into account the fact that there were two separate occasions when there were unprovoked attacks and that the victim’s injuries were not insignificant. He also took into account an incident on 3 June 2016 when Tyson was involved in an attack on another dog. He set a starting point of $1000 for each charge involving the attacks by Tyson and reduced that to $900 on the basis of totality of the offending. The starting point for the offence involving Leksi was $750. For the first charge, the Judge gave a full discount for guilty plea of 25 per cent and acknowledged steps taken by Mr Ingle to reduce the likelihood of a further attack by Tyson as a mitigating factor by giving a further 10 per cent discount. For the second charge, the guilty plea was later so the discount was set lower, at 15 per cent.
[118] Ms Kim did not make any submissions on sentence. Mr Collins says the sentence was appropriate given the gravity of the offending and consistent with the principles and purposes of the Sentencing Act.
[119] The total fines imposed were $1,925 (of which $1,365 was to be paid to the victim as a payment for emotional harm). The maximum penalty is a fine not exceeding $3,000.55 A comparison with other cases involving offences under s 57(2) where the dog attack was on a person in a public place would indicate the fines imposed were not manifestly excessive.56
Result
[120]The appeal is dismissed.
Gordon J
55 Dog Control Act 1996, s 57(2).
56 See Penazzi v Auckland City Council [2019] NZHC 1288; Auckland Council v Hill [2018] NZHC 3315; Walker v Nelson City Council [2017] NZCA 526; Power v R [2015] NZCA 397.
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