McLaughlin v Rotorua Lakes Council
[2021] NZHC 845
•21 April 2021
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 the dogs. The same test applied for the failure to comply with the obligations associated with Bubba’s classification as a dangerous dog.
[8] The Judge then considered the circumstances relating to the offence, including:10
(a)The nature of the attack, being the mauling of a domestic cat on a nearby street.
(b)Ms McLaughlin’s history as owner of the dogs. Bubba has previously attacked and killed a cat. Eleven months later, he attacked a person and was declared a dangerous dog. Gypsy was also involved in both of these attacks and was declared a menacing dog. The dogs therefore have an apparent history of joint attacks. Ms McLaughlin was also
6 Rotorua Lakes Council v McLaughlin [2021] NZDC 3140.
7 Auckland Council v Hill [2019] NZCA 296 at [9]-[13].
8 Criminal Procedure Act 2011, s 250(2).
9 Section 250(3).
10 I note that these factors were set out by Heath J as an indicative, but non-exhaustive, list in Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005 at [48].
given two warnings on 23 May 2019 and 21 January 2020 for Gypsy roaming.
(c)The fact that the dogs have behaved in the same manner as the present offending on prior occasions.
(d)That there was little evidence of the steps taken by Ms McLaughlin to prevent such attacks from happening, despite her deposing that she has been extremely careful to keep the dogs locked in at her address.
(e)The reason that the steps taken did not prevent an attack. The Judge considered that the circumstances were “unusual but not exceptional”. The gate could be left swinging in circumstances of panic or simply as the result of a mistake. His Honour expressed surprise that the gate was not a sprung or self-closing gate.
[9] The Judge considered these circumstances on a conjunctive basis and found that they were not exceptional. He accordingly ordered the destruction of the dogs.
Did the Judge err in ordering the destruction of the dogs?
Relevant law
[10] Section 57 of the Act provides that in any proceeding where a dog attacks a domestic animal and 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 the offence were exceptional and do not warrant destruction of the dog.11
[11] In Auckland Council v Hill, the Court of Appeal set out a two-stage test under s 57(3) of the Act:12
[5] The first step in applying s 57(3) is to identify the relevant circumstances of the offence. What happened? This inquiry should focus on the immediate circumstances of the attack itself. The dog’s history does not form part of the circumstances of the offence. Events that occur after the offence is complete — that is, after the attack occurs — also are not
11 An identically worded test applies under s 32(3) in respect of the offence of being the owner of a dangerous dog (Bubba) and failing to comply with the effects of that classification.
12 Auckland Council v Hill [2020] NZCA 52.
circumstances of the offence. The phrases “circumstances of the offence” and “circumstances of the attack” are equivalent in this context.
[6] The second step is for the court to ask whether the circumstances of the offence were exceptional and do not warrant destruction of the dog. Section 57(3) proceeds on the basis that the attack of itself establishes that there is a risk of the dog attacking again in similar circumstances. The focus is on whether those circumstances were sufficiently exceptional that that risk is remote, and does not justify destruction of the dog in the interests of public safety.
[12] The Court rejected the approach that treats post-attack events as forming part of the circumstances of the offence.13 Nor is it open to the dog’s owner to argue that the dog can be expected to behave differently in similar circumstances in the future.14 In particular, assurances given by the owner are irrelevant to the inquiry.15 Similarly, the pre-attack history of the dog does not form part of the circumstances of the offence.16 The focus is the risk that the dog poses to people and animals assuming it can be expected to behave in the same way in similar circumstances.17
What were the relevant circumstances of the offence?
[13] Given the Court of Appeal’s decision in Hill, I accept the respondent’s submission that the Judge erred in considering the history of the dogs (two prior attacks in which both dogs were involved) at the initial stage of his analysis, (as detailed at [8](b)-[8](d) of his judgment). As set out in Hill, the focus must be on the “immediate circumstances of the attack itself.”
[14] Mr Hall submitted, in effect, that the relevant circumstances should be viewed through a narrow lens. Viewed in that way, the relevant circumstances here were that the police came to the door to arrest someone who was at the house. That person then panicked and fled out the gate, leaving it open. Obviously, those specific circumstances are unlikely to arise again.
13 At [10].
14 At [7].
15 At [9].
16 At [71].
17 At [7].
[15] In my view, however, the relevant circumstances must be considered somewhat more broadly. In Hill, the Court of Appeal explained that the rationale for the default rule that a dog be destroyed is that:18
… 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.
[16] Hence the focus must be on the specific aspects of the circumstances that enabled the attack to occur. Here, the key factors were that:
(a)a visitor to the property carelessly (rather than deliberately) left the gate open; and
(b)despite the fact that the dogs had a history of attacks and had been declared dangerous (Bubba) and menacing (Gypsy), no extra protective measures had been put in place by their owner. These could have included such things as keeping the dogs penned in a separate section of the property, putting a self-closing mechanism on the gate, keeping the dogs tied up when not under direct supervision, or having them wear a muzzle to ensure that if they did escape they could not attack a person or animal.
Were those circumstances exceptional, such that destruction of the dogs was not warranted?
[17] The key issue is whether the circumstances of the attack were exceptional, such that a repeat of those circumstances is most unlikely. As the Court of Appeal noted in Hill, s 57(3) proceeds on the basis that the attack of itself establishes that there is a risk of the dog attacking again in similar circumstances. The focus is on whether those circumstances were sufficiently exceptional that that risk is remote, and does not justify destruction of the dog in the interests of public safety.
18 At [65].
[18] Mr Hall, submitted that the circumstances were exceptional as the gate was serving its purpose until the appellant’s partner fled from police and left the gate open. His acts were said to be a novus actus interveniens. It was therefore not the fault of Ms McLaughlin or the dogs that the attack occurred.
[19] In Hill the Court of Appeal stated that it is not open to the owner of a dog to argue that the attack was caused or contributed to by a one-off failure by the owner to maintain effective control of the dog.19 Failures to control a dog are not exceptional circumstances.20 Similarly, in Easthope v Auckland Council, this Court observed that the circumstances of an attack, insofar as they involve a dog escaping an open gate and attacking another animal, are generally unexceptional.21 While there were no fixed rules as to when third party carelessness might constitute an exceptional circumstance, a spectrum exists.22 At the exceptional end of the spectrum would be a burglar entering a property in the owner’s absence, cutting off a lock on a gate and allowing a dog to escape.23 At the unexceptional end would be a teenage child coming home from school and carelessly leaving a gate open, or an adult visitor thoughtlessly doing the same.24
[20] In this case the person who carelessly left the gate open was a person fleeing police. That person, however, did not break open a lock, batter down the gate, or do anything of a similar nature. They simply carelessly left the gate open. There are a wide range of people who could carelessly leave a gate open including family members, invited guests, official visitors (such as police, meter readers and so on), delivery drivers, and so on. Here, if the gate is left open for any reason, the dogs present a high risk of escaping and harming a person or animal.
[21] In my view the Judge did not err in concluding that the exceptional circumstances threshold was not met and that the Act therefore required that an order for the destruction of the dogs be made.
19 At [8].
20 At [78].
21 Easthope v Auckland Council [2017] NZHC 3142 at [16].
22 At [17].
23 At [17].
24 At [18].
Result
[22]The appeal is dismissed.
Katz J
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