Liu v Auckland Council

[2015] NZHC 2843

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000314 [2015] NZHC 2843

BETWEEN

DIANA LIU

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing:	16 November 2015
Appearances:	Appellant in Person Vernon Tamatea for the Respondent
Judgment:	16 November 2015

[ORAL] JUDGMENT OF MOORE J [Appeal against sentence]

LIU v AUCKLAND COUNCIL [2015] NZHC 2843 [16 November 2015]

Introduction

[1]      On 23 September 2015 Ms Liu pleaded guilty to a charge that on 10 March

2015 she owned a dog named Harry that attacked a person.   The charge was laid under s 57(2) of the Dog Control Act 1996 (“the Act”).

[2]      Judge Sinclair convicted Ms Liu.  She was fined $750. A reparation order for

$3,657.35 was made together with emotional harm reparation in the sum of $500. Her   Honour   ordered   that   Harry   be   destroyed   there   being   no   exceptional circumstances which would justify a departure from the mandatory requirement of a Court to make an order for destruction.

[3]      Ms Liu now appeals the order for destruction.  Her grounds are as follows:

(a)      the  District  Court  Judge  failed  to  take  into  account  and/or  give appropriate weight to the expert opinion of Mr Mark Vette who operates the animal behaviour clinic and who assessed the dog for its potential for various forms of aggression;

(b)the  District  Court  Judge  failed  to  give  appropriate  weight  to  the previous good character of the dog;

(c)       the District Court Judge did not take into account a statement of

Ann Brunton who witnessed the offence;

(d)      there  were  errors  and  mistakes  in  the  facts  referred  to  in  the

prosecuting counsel’s documents including:

(i)the claim that it was the victim who was walking his dog when, in fact, it was the appellant;

(ii)on 9 July 2015 the victim witnessed the dog being walked on Milford Beach without a lead.  The claim was that the dog was being walked by “a young lady” when, in fact, the woman walking the dog was a 40 year old female;

(iii)Ms Liu challenges the assertion that the dog was seen without a muzzle;

(e)      Ms Liu challenges that the dog bit the victim.  Instead, she claims that the injury was caused when the dog barked and the victim’s arm was caught on a jaggered canine tooth;

(f)      Ms Liu advises that ownership of the dog has been transferred to her neighbours.

[4]      The Judge’s sentencing notes are not available.  It is thus impossible to make any independent assessment of which factors were taken into account by the Judge in considering the circumstances of the offence and whether they were exceptional.

[5]      I have, however, had the opportunity to review the prosecution submissions filed in the District Court.   The prosecutor identified the following aggravating features:

(a)      Gravity of the offending and culpability:  Emphasis was placed on the injuries suffered by the victim.  The vicim sustained serious injuries to the right forearm which required surgery including skin grafts and a period in hospital.

It is evident that Ms Liu did not have control of the dog or of its leash when being walked in public.

(b)      Seriousness of the type of offence:  The maximum penalty under the

Act, including offences against s 57, were increased by Parliament in

2003  from  a  $1,500  fine  to  a  $3,000  fine  which  indicates  the seriousness of the offence.

(c)      Effect on the victim:   The photographs of the injury which I have looked at indicate the severity of the attack.  The victim spent six days in hospital and underwent three operations.  Post-operatively he was unable to use his left arm for most day-to-day functions.  He suffered

continous pain and discomfort.   He is also undertaking restorative physiotherapy so he can regain full use and strength of his hand, fingers and arm. A tendon was damaged in his wrist and there will be a permanent disfigurement in the form of a “sizeable divit” in his arm.

(d)Mitigating  and  aggravating  features:     There  are  no  mitigating features.  One relevant aggravating feature it seems is that on 1 May

2014 the dog was involved in another incident where the victim received minor injuries. An infringement notice was issued to Ms Liu for owning an uncontrolled dog.

[6]      The prosecutor also noted there were no exceptional circumstances which would justify a departure from the usual destruction order.   In advancing these arguments  the  prosecutor  referred  to  the  well-known  judgment  of  Heath  J  in Halliday v New Plymouth District Council1 where his Honour listed the non- exhaustive factors which may be relevant in determining whether exceptional circumstances  exist.   Applying those  criteria to  the present  facts  the  prosecutor submitted there were no operating exceptional circumstances for the following reasons:

(a)       The nature of the attack:  The attack was unprovoked in a public place resulting in serious injury to the victim.

(b)History  of  dog  owner:    Ms  Liu  had  a  previous  relevant  adverse finding with the infringement notice issued in relation to Harry on

1 May 2014.

(c)       Past behaviour of the dog:   This is the second aggressive incident

Harry has been involved in.  Both incidents appear to have involved the attacking of a person.

1      Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 14 July 2005.

(d)Steps taken to prevent an attack occurring:  The dog was on a leash at the time of the attack.  Ms Liu failed to sufficiently control the dog. After the previous attack in 2014 the dog should have been subjected to remedial training to prevent a recurrence.   The dog had been released to Ms Liu.

[7]      Despite this constellation of factors which would ordinarily easily defeat a claim that the circumstances of the offence were exceptional, Mr Tamatea, for the Auckland Council, submits that the appeal should be allowed and the matter remitted back to the District Court for a disputed facts hearing to take place and for the issue of the destruction order to be re-argued and determined.

[8]      He  submits  that  there  is  evidence  which  suggests  the  attack  may  have occurred in the fashion described by Ms Liu, namely that the dog barked and the victim caught his forearm on one of the dog’s jagged teeth.  While the cogency of this account, at first glance, fits uncomfortably with the description of the victim’s injuries, Mr Tamatea submits that a statement by a Ms Brunton dated 23 October

2015 appears to support Ms Liu’s account.

[9]      I do note that the present account being advanced by Ms Liu and apparently supported by Ms Brunton, is in stark contrast to Ms Liu’s statement made to council officers on 13 April 2015 when she said:

“I saw a man walking towards me away from Milford Beach.   Harry was paying no attention to him but as the man went to pass me he was very close and before I knew it Harry jumped up and bit him on the right forearm.  It happened so fast I was unable to stop Harry but pulled him with his lead …”

[10]     Mr Tamatea observes that Ms Liu never disputed the facts at the sentencing hearing and did not make submissions on the matters referred to in Ms Brunton’s statement.  He submits that crucial factors are in dispute which would have assisted the Court to determine whether the circumstances of the offence were exceptional.

[11]     Mr Tamatea submits the present situation is similar to that which confronted Heath J in Tamsin Orr-Walker v Auckland Council2  where his Honour remitted the case back to the District Court for the destruction order to be considered following a disputed facts hearing.  His Honour observed:3

“[25]    I am faced with a situation in which the Judge sentenced on the basis of facts he believed had been agreed but were the subject of dispute, without advising  counsel  for  Ms  Orr-Walker  of  the  weight  he  might  attach  to disputed facts. … However, in the absence of evidence about the disputed facts, it was not appropriate for the Judge to determine outcome on the basis of the summary.”

[12]     While I am unconvinced that the present case is truly comparable to the situation which Heath J encountered in Orr-Walker, I am satisfied that a relevant issue to the making of the destruction order may not have been advanced at the hearing.   Why and how this situation could have arisen is obscure.   Ms Liu was represented by counsel.

[13]     It will be for the sentencing Judge to determine whether the present account advanced by Ms Lui is reasonably possibly and, if so, whether it has a material effect on the question of exceptional circumstances.

[14]     Not without some reservations, I make the following orders:

(a)      the destruction order is quashed and the appeal is allowed; and

(b)the matter is remitted back to the Distict Court at North Shore for a disputed facts hearing and a reconsideration of the destruction order.

[15]     Mr Tamatea has undertaken to liaise with the District Court at North Shore with a view to having this matter set down either for a nominal date to fix a disputed facts hearing or for the disputed facts hearing date to be fixed in consultation with

Ms Liu.

2      Tamsin Orr-Walker v Auckland Council [2013] NZHC 1541.

3      Tamsin Orr-Walker v Auckland Council n above 2 at [25].

[16]     I also direct that the victim in this matter be provided with a copy of this judgment and if he is not to be called as a witness at the disputed facts hearing, he is

to be advised of the date of that hearing.

Moore J

Solicitors:
Auckland Council, Auckland

Copy to:
The Appellant