McLaughlin v Rotorua Lakes Council - [2021] NZHC 845

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-13

[2021] NZHC 845

BETWEEN
DANIELLE MCLAUGHLIN

Appellant

AND

ROTORUA LAKES COUNCIL

Respondent

Hearing: 13 April 2021

Counsel:

D Hall for appellant

S H Eldridge for respondent

Judgment:

21 April 2021

JUDGMENT OF KATZ J

[Appeal against sentence]

This judgment was delivered by me on 21 April 2021 at 10:00 am

Registrar/Deputy Registrar

Solicitors: Progressive Legal, Rotorua
Tompkins Wake, Rotorua

MCLAUGHLIN v ROTORUA LAKES COUNCIL [2021] NZHC 845 [21 April 2021]

Introduction

[1] Danielle McLaughlin is the owner of two dogs, Bubba and Gypsy. Bubba, a male Mastiff cross, has previously been declared a “dangerous dog” as a result of an attack on a person.1 Gypsy, a female Pitbull cross, has previously been declared a “menacing dog” for attacking and killing a domestic cat.2

[2] On 19 March 2020, Ms McLaughlin, her ex-partner, Bubba and Gypsy were at Ms McLaughlin’s home address in Rotorua. The police came to the address to locate Ms McLaughlin’s partner, for the purpose of executing a warrant for his arrest. He panicked and fled, running out the back gate to the property. In his haste, he left the back gate open.

[3] Bubba and Gypsy escaped out the back gate. The dogs were later seen mauling a domestic cat on a nearby street. The cat was severely injured and treated at a veterinary clinic for seven days. Unfortunately, due to the severity of its injuries the cat could not be saved and had to be euthanised.

[4] Ms McLaughlin pleaded guilty to four charges under the Dog Control Act 1996 (the “Act”):

(a)two charges that Bubba and Gypsy, respectively, attacked a domestic animal;3

(b)one charge of being the owner of a dangerous dog and failing to comply with the effects of that classification, in relation to Bubba;4 and

(c)one charge of being the owner of a menacing dog and failing to comply with the effects of that classification, in relation to Gypsy.5

1      Dog Control Act 1996, s 31(1)(c).
2      Section 33C.
3      Section 57.
4      Section 32.
5      Section 33EC(1).

[5] Judge G C Hollister-Jones made orders for the destruction of Ms McLaughlin’s dogs and the payment of reparation representing the veterinary costs resulting from the dog attack.6 Ms McLaughlin now appeals against the orders for the destruction of the dogs. She does not appeal against the reparation order.

Approach on appeal

[6] An appeal against an order for the destruction of a dog is an appeal against sentence.7 The Court must allow the appeal if it is satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed.8 Otherwise, the appeal must be dismissed.9

District Court decision

[7] Judge Hollister-Jones noted that he was required to make an order for the destruction of the dogs unless he was satisfied that the circumstances of the offence were exceptional and do not warrant the destruction of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 845
Decision Date: 21 April 2021

CaseChat Overview and Summary

Danielle McLaughlin appeals against the orders for the destruction of her dogs, Bubba and Gypsy, following an attack on a domestic cat. The respondent, Rotorua Lakes Council, submits that the appeal should be dismissed. The appeal raises questions about the application of the test for determining whether an order for the destruction of a dog should be made under section 57 of the Dog Control Act 1996. The central issue is whether the circumstances of the attack were exceptional and did not warrant the destruction of the dogs. The Court found that the test set out in Auckland Council v Hill applies, whereby the first step is to identify the relevant circumstances of the offence, which must focus on the immediate circumstances of the attack itself, and the second step is to ask whether the circumstances of the offence were exceptional and do not warrant the destruction of the dog. The Court held that the District Court Judge erred by considering the history of the dogs when determining the relevant circumstances of the offence. The relevant circumstances were that a visitor to the property carelessly left the gate open and, despite the dogs having a history of attacks and being declared dangerous and menacing, no extra protective measures had been put in place by their owner. The Court concluded that the exceptional circumstances threshold was not met and that the Act required an order for the destruction of the dogs to be made. The appeal is dismissed.

Orders