Leatherby v New Plymouth District Council
[2018] NZHC 2756
•24 October 2018
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2018-443-000021 [2018] NZHC 2756
BETWEEN LUKE LEATHERBY
Appellant
AND
NEW PLYMOUTH DISTRICT COUNCIL Respondent
Hearing: 23 October 2018 Counsel:
N P Bourke for Appellant
S J Simpkin for RespondentJudgment:
24 October 2018
JUDGMENT OF COLLINS J
Introduction
[1] Mr Leatherby is the owner of a five-year-old male American Staffordshire Terrier (Titan), which weighs approximately 35 to 40 kilograms. On 14 June 2018, Mr Leatherby pleaded guilty in the District Court at New Plymouth to three charges of owning a dog that rushed at a person in a public place, endangering that person,1 as well as a charge of failing to register Titan.2 On 3 August 2018, Judge Sygrove fined
Mr Leatherby $1,100 and ordered the destruction of Titan.3 Mr Leatherby appeals the
destruction order.
1 Dog Control Act 1996, s 57A(1)(a)(i) and (2); maximum penalty $3,000 fine.
2 Section 42(1); maximum penalty $3,000 fine.
3 New Plymouth District Court v Leatherby [2018] NZDC 18442.
LEATHERBY v NEW PLYMOUTH DISTRICT COUNCIL [2018] NZHC 2756 [24 October 2018]
Background
[2] On 14 December 2017, when Mr Leatherby was moving houses, Titan escaped from his usual enclosure and made his way to a public park, along with a smaller black dog that belonged to his flatmate. Mr Leatherby’s evidence was that someone must have left the gate open during the moving process. The two dogs were with a group of children when a police constable driving past was called over by one of them. Titan charged at the constable and tried to bite his leg. The dog growled and snarled when rushing at the constable. The constable tried to kick at Titan and attempted to deploy his pepper spray. Titan then leapt up and tried to bite his arm. The constable backed away, and Titan rushed at him again. The constable then requested the assistance of Animal Control.
[3] Before Animal Control attended the scene, the father of one of the children arrived. As he approached the children, Titan rushed at him, leapt up and growled as it tried to bite his arm. The father backed away in time to avoid being bitten.
[4] Some time later, an Animal Control officer arrived at the scene. When she tried to put a lead on Titan, he growled and lunged at her before running off down the street. Titan was eventually restrained, but he continued to be aggressive. No one was injured during the incident.
[5] After the events on 14 December 2017, Titan was impounded for a period of seven months in the New Plymouth District Council kennel. A report dated 28 January
2018 from Ms Eyre, an Animal Control officer at the Council with over 10 years’ experience with dog behaviour, explained that Titan continued to exhibit aggressive behaviour towards other dogs and staff and that this indicated a lack of socialisation. Titan also failed to respond appropriately to basic commands. Staff would not take him for walks because he responded poorly to being approached with a leash.
[6] A further statement from Ms Eyre, dated 31 July 2018, explained that Titan was still aggressive, and that officers kept a safe distance from him. Titan showed no trust of staff who had been caring for him for seven months and he continued to growl at strangers as they walked past. Her conclusion was that Titan would be a “huge threat to the community if released” and that his behaviour remained unpredictable.
District Court decision
[7] When ordering the destruction of Titan, Judge Sygrove made references to the following matters:
(1) Mr Leatherby has a history of not abiding by Court orders.
(2) Titan is completely untrained and fails to obey basic commands. (3) Ms Eyre reported that Titan showed a lack of bonding.
(4)Mr Leatherby had only been to visit Titan on three occasions while he was impounded.
(5) A statement by Detective Sergeant Beattie that he would have shot
Titan if children had not been present.
(6)Titan had been impounded in the past and Mr Leatherby had not paid registration fees.
[8] The Judge acknowledged an offer by Mr Leatherby’s parents to assume care of Titan and the option of classifying him as a dangerous dog under s 31 of the Dog Control Act 1996 (the Act). He also acknowledged that no one was bitten or injured. Ultimately, the Judge made a destruction order, primarily relying on:
(1) Ms Eyre’s statement that Titan was untrained;
(2) the fact that Titan had been unregistered; and
(3) the fact Titan had previously come to the attention of the authorities. The Judge also made reference to the annual cost of caring for a dog, which he
estimated to be around $1,686.
Approach on appeal
[9] An appeal against a destruction order is an appeal against sentence. Section 250 of the Criminal Procedure Act 2011 requires the Court to allow an appeal against sentence if:
(1) for any reason, there is an error in the sentence imposed on conviction;
and
(2) a different sentence should be imposed.
[10] The Court of Appeal has explained that:4
The discretion to vary [a] sentence [on appeal] is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”.
Dog Control Act 1996
[11] Section 57A provides a court with a discretion to order the destruction of a dog that has been involved in an offence under that section. This section can be compared with the more serious offences under ss 57 and 58, which significantly confine the court’s discretion in relation to destruction orders. The factors relevant to the exercise of the discretion under s 57A were helpfully outlined by Ellis J in Slater v Police:5
(a)the quality and severity of the “offending” — by which is meant the circumstances and factual detail of the “rushing” or “startling”; and/or
(b) the nature and severity of the consequences (which in many “rushing”
cases may well be a matter of happenstance); and/or
(c)an assessment of the ongoing dangerousness of the dog concerned and any available measures that exist to ensure that similar “offending” does not occur in future.
[12] Ellis J noted that the last consideration is likely to be the most important.6
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [29], citing R v Shipton [2007] 2
NZLR 218 (CA) at [138].
5 Slater v Police [2015] NZHC 707 at [18].
6 At [19].
Grounds of appeal
[13] Mr Leatherby claims that Judge Sygrove erred by:
(1)overstating the severity of the offending by taking into account irrelevant considerations;
(2) failing to carry out an assessment of the ongoing dangerousness of
Titan;
(3)breaching natural justice by failing to request submissions on the ongoing dangerousness issue despite conflicting evidence; and
(4)failing to consider alternative measures to ensure similar offending would not occur in the future.
First ground of appeal — severity of offending
[14] Mr Bourke, counsel for Mr Leatherby, submits that Judge Sygrove was significantly influenced by the following statement from Detective Sergeant Beattie, who was present at the scene of the attack on 14 December 2017 alongside the constable who was attacked:
[The father] pulled his arm back and avoided injury. I was concerned at that point that the dog would continue to attack passers-by. I considered shooting it on the spot but there was too much traffic around and there were too many children present. In different circumstances I would have shot the dog.
[15] Mr Bourke submits that this statement is irrelevant and inappropriately inflammatory, and that it excessively influenced the Judge’s view on the severity of the offending. The statement was not included in the agreed summary of facts to which Mr Leatherby pleaded guilty. In those circumstances, Mr Bourke submits the Court should not have gone beyond the statement of facts by referring to it.7 Mr Bourke also submits that had he been given notice that the Judge would rely upon the statement, he would have sought to cross-examine the Detective Sergeant to establish that his
7 Referring to R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494; and Pokai v R [2014] NZCA 356 at [30].
comment involved exaggeration. The Council submits that the statement was properly filed and contained admissible and relevant facts for the purpose of sentencing.
[16] Mr Bourke submits that the offending was of moderate severity, and did not involve actual biting. He further submits that Titan was out of his comfort zone and that the offending would not have occurred but for the gate being left open by the movers. He advances the theory — offered by Mr Leatherby and his supporters in their letters — that Titan was attempting to protect the children or was reacting out of stress. Mr Bourke emphasises these were not random unprovoked attacks.
[17] I accept that the statement from Detective Sergeant Beattie was not particularly relevant to assessing the seriousness of the offending, as it involved a hypothetical scenario and in any case merely conveyed his opinion on how best to deal with such a situation. The statement is only indirectly probative of the seriousness of the offending.
[18] When viewed objectively, the seriousness of the offending in this case can be properly described as moderate. On the scale of offences under the Act, the offence of rushing is the least serious. In this case, Titan did not connect with any person, nor was anyone inadvertently injured. Nevertheless, Titan engaged in repeated aggressive behaviour against three different people, including attempting to bite them. Undoubtedly, this was frightening for all involved, especially given the size and breed of Titan.
Second and third grounds of appeal — ongoing dangerousness
[19] It is convenient to address the second and third grounds of appeal together.
Mr Bourke submits that there was clearly a disputed fact as to whether Titan was still dangerous. Judge Sygrove relied upon the reports from the Council kennel, while
Mr Bourke made submissions before the Judge that those reports were contrary to the affidavit of Mr Leatherby, and the three handwritten letters attached to that affidavit written by his supporters, who are familiar with Titan.
[20] Mr Bourke refers to s 24(2)(c) of the Sentencing Act 2002, which requires the prosecution to prove beyond reasonable doubt any disputed aggravating fact. In his
submissions, the dangerousness of Titan was a disputed aggravating fact, and it was not proven beyond reasonable doubt because of the evidence presented by
Mr Leatherby and his supporters. Mr Bourke submits that, at the least, the Judge should have held a disputed-fact hearing to allow Ms Eyre to be cross-examined about the inconsistencies between her letter and Mr Leatherby’s affidavit.
[21] The Council submits that the Court had been provided with balanced information upon which to make a decision, and that no objection had been raised to the process before Judge Sygrove. It submits that Titan is currently dangerous, as evidenced by the opinion of Ms Eyre, and that the comments by Mr Leatherby and his supporters all relate to the period prior to the offending, which is less relevant.
[22] In his affidavit, Mr Leatherby says that Titan is “very obedient”, “responds to commands with no issues” and that he has never seen Titan “be aggressive with a person or an animal”. Mr Leatherby also says that he was “really surprised” to hear that Titan had been aggressive. He says that Titan was likely “anxious and stressed and not used to being out without someone who he knows”. He adds that Titan was “raised from a puppy around kids” and has always “been very good with children”. Mr Leatherby says he is confused by the statements that Titan has been aggressive while in the Council kennel, but admits that Titan “does bark when he is at home when someone comes to the property — particularly men or another dog”.
[23] The first letter attached to Mr Leatherby’s affidavit was written by
Ms McCartney, Mr Leatherby’s step-mother. She explains that she is doing a dog training course and would like to take over caring for Titan. She also says Titan is “lovely natured”.
[24] The second letter was written by Ms Buchanan, Mr Leatherby’s former neighbour. She says that Titan is a “loving and kind soul” and that while she lived nearby he never bothered her two cats and was “always well behaved” when he came over to visit.
[25] The third letter was written by Mr Leatherby’s father. He says that Titan has “never shown any signs of aggression” around his children, his cats and other dogs. He also refers to Titan as a “beautiful natured dog who loves kids”.
[26] All of the comments made by Mr Leatherby and his supporters are very general in nature and none of them refute the central proposition put forward by Ms Eyre that Titan is currently aggressive to strangers, particularly men. A lot of the comments made by Mr Leatherby and his supporters reflect an emotional attachment to Titan rather than evidence of his current level of dangerousness.
[27] I also accept the Council’s submission that Ms Eyre’s letter provides the most recent and accurate information about the current aggressiveness of Titan, with all the evidence from Mr Leatherby and his supporters being at least close to a year old. I also note that Mr Leatherby has apparently only visited Titan on three occasions since he was impounded and is therefore likely to be less familiar than Ms Eyre with his current level of dangerousness.
[28] Further, as noted by Judge Sygrove, the complaint history file for Titan indicates several previous incidents involving him. Titan was impounded in August
2013 because he had been found continually roaming on someone else’s property without any form of identification. There was a further incident where Mr Leatherby was found on a beach with Titan, although this is of minimal relevance. Finally, in addition to the two incidents referred to by Judge Sygrove, there was a report of Titan being aggressive to police officers in August 2016, although Mr Leatherby disputes this was in fact Titan.
[29] When all relevant evidence is taken into account, I am satisfied Titan is dangerous and poses a current threat to the safety of the public. I am also not convinced that the process adopted by Judge Sygrove in any way breached
Mr Leatherby’s right to natural justice. Although there were differences of opinion between Ms Eyre and Mr Leatherby and his supporters, these differences were able to be satisfactorily resolved on the evidence presented to the Judge.
Fourth ground of appeal — alternative protective measures
[30] Mr Bourke submits that there were two key alternative measures available that the Judge failed to give adequate consideration to:
(1)section 31(1)(a) of the Act would require the Council to classify Titan as a “dangerous dog”, which imposes strict obligations on the owner in relation to fencing, muzzling and leashing, neutering and reporting to the territorial authority;8 and
(2)that Mr Leatherby’s father and step-mother had agreed to assume care for Titan at their fenced Auckland property.
[31] Mr Bourke challenges the relevance of the Judge’s observation that
Mr Leatherby has a record of failing to comply with court-imposed conditions, given that Titan would be released to his father and step-mother.
[32] The Council submits that Judge Sygrove specifically turned his mind to the possibility of Mr Leatherby’s parents assuming care of Titan, but, when considered in light of his previous failures to comply with court orders, concluded that this factor did not outweigh the need for a destruction order.
[33] Placing to one side the offer from Mr Leatherby’s parents to assume care for Titan, I accept that it was open to the Judge to dismiss the “dangerous dog” classification as a viable alternative to a destruction order in light of Mr Leatherby’s criminal history. Mr Leatherby has one previous conviction for making a false statement, one for breach of supervision, seven for breach of community work, one for breaching bail, one for breaching a protection order, one for resisting arrest, three for driving while disqualified, along with another five convictions for dishonesty offences. It is clear that Mr Leatherby is a not a person who abides by legal conditions, such as those he would be subject to under s 32 of the Act if a “dangerous dog” classification was made. This is further supported by the fact he failed to register Titan
for four years, and, in the past, has failed to place identifications on him. In those
8 Dog Control Act 1996, s 32.
circumstances, it was entirely reasonably for Judge Sygrove to dismiss this course of action as viable alternative means of protection.
[34] The offer, however, by Mr Leatherby’s parents to assume care for Titan alleviates this concern as there is no suggestion they have any history of disobeying the law. Mr Bourke refers to them as having a “stable lifestyle”. Their Auckland property is also fully fenced. The skills Ms McCartney is gaining from her dog training course may also be relevant.
[35] I was advised during the hearing that if the appeal succeeds Titan would be classified as a “dangerous dog” by the Council and that the ownership of Titan would be transferred to Ms McCartney.
[36] Unfortunately, Judge Sygrove does not appear to have had this option fully explained to him, and as a consequence, it was not the subject of analysis in the Judge’s decision.
[37] While I am very concerned Titan may continue to be a dangerous dog, I have decided, by the narrowest of margins, that the appropriate course is for Titan to be classified as a “dangerous dog”, subjecting him to the consequences and restrictions set out in s 32 of the Act and for the ownership of Titan to be transferred to Ms McCartney. That outcome is the least restrictive one that is reasonably available in the circumstances.
Result
[38] The appeal against the destruction order is allowed.
[39] Titan is to be transferred immediately to the ownership of Ms McCartney and is to be relocated to her care in Auckland.
D B Collins J
Solicitors:
Crown Solicitor, New Plymouth for Respondent
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