Mead v Whanganui District Council

[2018] NZHC 3193

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI 2018-483-5

[2018] NZHC 3193

BETWEEN

DENISE BERYL MEAD

Appellant

AND

WHANGANUI DISTRICT COUNCIL

Respondent

Hearing:

26 October 2018

Appearances:

D M Goodlet for Appellant

A S A Hall and J A Avery for Respondent

Judgment:

6 December 2018

JUDGMENT OF MALLON J

Introduction

[1]    Ms Mead was convicted in the District Court of being the owner of a dog (Monty) that made an attack on another dog (Alfie).1 She was ordered to pay reparation of $1,890.50 for, primarily, veterinary expenses in treating Alfie’s injuries; emotional harm reparation of $350 to Ms Peet, the owner of Alfie and for whom the attack was extremely distressing; solicitor’s costs and a service fee totalling $330.50.

The District Court also made an order for the destruction of Monty.2

[2]    Ms Mead appeals her conviction and sentence. Ms Mead’s particular concern is with the destruction order. She says she did not make an informed decision when she entered a guilty plea. She does not accept the accuracy of the summary of facts on which her guilty plea was entered and did not appreciate its importance when she

1      Dog Control Act 1996, ss 57(1) and (2).

2      Section 57(3); Whanganui District Council v Mead [2018] NZDC 12323.

MEAD v WHANGANUI DISTRICT COUNCIL [2018] NZHC 3193 [6 December 2018]

entered it. She considers the circumstances might not constitute an “attack” and in any event the situation does not warrant the destruction order.

[3]    Ms Mead’s conviction appeal is filed out of time. The circumstances have been explained and an extension of time is not opposed by the Council. Leave to file the conviction appeal is granted. Ms Mead has filed an affidavit in support of her appeal. The Council does not oppose it. I will consider the affidavit in the interests of justice.3 On the same basis I will consider the affidavit filed by the Council from Mr Waugh, the duty solicitor on the day Ms Mead was sentenced.

The summary of facts

[4]    Monty is a male Pit Bull Terrier cross owned by Ms Mead. Alfie is a Jack Russell Terrier owned by Ms Peet.

[5]    On 27 October 2017, at around 2.15 pm, Ms Peet was walking with Alfie at a park. They approached the boat ramp at the park where they saw Monty, with no collar or muzzle, swimming in the river. Alfie walked towards Monty. Monty came out of the river and attacked Alfie, gripping Alfie around the neck with his jaw.

[6]    Ms Peet yelled at Monty, punched his face, tried to pry open Monty’s jaws, poked her fingers into Monty’s eyes, tried to push Monty down, and stuck her finger up Monty’s bottom. Eventually Monty released Alfie but then again gripped his jaw on Alfie’s right shoulder and shook Monty from side to side. Ms Peet put her legs around Monty’s body and her arm around his throat. During this scuffle Ms Peet was bitten on her thumb and first finger.

[7]    Ms Mead approached the scene. She shouted and pulled Monty’s tail. Monty released his grip on Alfie and Alfie fell to the ground. With Ms Peet’s  assistance,  Ms Mead grabbed Monty around the neck and led him away. Ms Mead provided her contact details to Ms Peet.

3      Criminal Procedure Act 2011, s 335.

[8]    Ms Peet and Alfie were driven to the vet by a member of the public. The vet called the dog control officer who first met with Ms Peet at around 3 pm, and then with Ms Mead at around 3.45 pm who:

… confirmed ‘Monty’ had attacked another dog at Kowhai Park. [Ms Mead] said in explanation that ‘Monty’ had a history of showing aggressive behaviour towards other dogs and that she wanted to help the victim wherever she could.

[9]    Monty was seized and impounded. Monty has since been returned to Ms Mead subject to conditions. These conditions require Monty to be kept at Ms Mead’s residential address, be muzzled and on a leash at all times when not at the property, and not placed under the care or control of any person other than Ms Mead or her husband.

[10]   Alfie required emergency surgery. This included having his jaw wired together. Alfie was bitten on the neck, chest and right front leg areas. Alfie requires full time care. This means that Alfie is in a dog care facility when Ms Peet is at work. Ms Peet feels unsafe and is unwilling to walk Alfie again. A victim impact statement provides further details about these matters.

The District Court proceeding

[11]A charge was brought by the Council under s 57(2) of the Act on 18 April 2018.

[12]   Ms Mead’s first appearance was on 17 May 2018. She attended on that day before a Justice of the Peace. The Justice of the Peace advised she was unable to deal with the matter. It was adjourned to 29 May 2018 before a District Court Judge.

[13]   Ms Mead attended on 29 May 2018 at around 9 am. She advised the Registrar that she would be entering a guilty plea.  The Registrar stood the matter down for  Ms Mead to appear before the Judge at 10 am. At that time Ms Mead entered her guilty plea and the Judge stood the matter down. It was called again at 11.45 pm. The Judge referred to a fine and started to say something about destruction of the dog.  Ms Mead protested.

[14]   The Judge suggested that Ms Mead speak to the duty lawyer, Mr Waugh. The matter was again stood down to enable her to do so. Ms Mead discussed the matter with Mr Waugh. The affidavits from Ms Mead and Mr Waugh about this are discussed further below. When the matter came back before the Judge later that day, the Council’s lawyer advanced submissions for a destruction order. Mr Waugh made submission on Ms Mead’s behalf opposing the order.

[15]   The Judge followed the approach taken in Selwyn-Mallison v Rotorua Lakes Council.4 His assessment of the relevant factors was as follows:

(a)The nature of the attack: the dog was swimming unrestrained and unmuzzled; the other dog approached the boat ramp but did not go into the water “and certainly did not go towards [Monty] whilst in the river; Monty came out of the water and “attacked swiftly and severely”; Monty’s owner “was a distance away”; the owner of the attacked dog “had to use significant effort to try and prise Monty off the attacked dog.”

(b)The history of the owner of the dog: Ms Mead had not been before the Court before.

(c)The dog’s history: Monty had not attacked previously.

(d)The steps taken by the owner to prevent the attack occurring: There were none. The dog was unrestrained, unmuzzled, and not being marked closely by his owner.

(e)The reasons why those steps were not successful: As no steps were taken, there was no assessment to be made of their lack of success.

4      Selwyn-Mallison v Rotorua Lakes Council [2016] NZHC 1437. He also referred to Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 14 July 2005; Power v New Zealand Police HC Auckland CRI-2010-404-351, 19 July 2011; and Orr-Walker v Auckland District Council [2013] NZHC 1541.

[16]   The Judge considered the focus needed to be on the offence. He regarded the circumstances of the offence as reflecting what happens when an unrestrained dog is a distance away from its owner in a public area and carries out an attack. The Judge contrasted the case with a situation where people or animals stray onto the territory of an animal. The starting point is mandatory destruction which was premised on the notion that a dog which has attacked previously will attack again. Exceptional circumstances set a high threshold because of this. They were not present in this case.

Ms Mead’s affidavit

[17]   Ms Mead’s affidavit for this appeal provides further detail about Monty, the attack, the steps taken after the attack and the District Court proceeding.

[18]   Ms Mead has owned Monty since he was a puppy. He is now seven years old. Ms Mead owned a muzzle for Monty but he was not wearing it when this incident occurred. She had taken Monty down to the river for a swim. When she first got there, no-one else was around. She threw a stick into the river four or five times for Monty to bring back to her. She then told Monty it was time to go and they started to head back to the car.

[19]Ms Mead’s account of what happened next is as follows:

As were walking back to the car a little dog rushed up to Monty. Monty grabbed the little dog. It was on the side of Monty’s bad eye. By this I mean when Monty was a puppy he was down at the beach and a metal stake tore his left eye.

Since then Monty’s left eye has been droopy and the vet told us at the time that he wouldn’t be able to see out of it properly.

The little dog approached Monty from his left-hand side. The little dog’s owner didn’t call her dog back as it approached us. That dog wasn’t on a leash either.

I believe that the little dog approaching Monty from that side gave Monty a fright and contributed to him grabbing the little dog.

The little dog’s owner and I pulled the two dogs apart. After we did that I told her I would pay for the vet bill and told her I was very sorry.

[20]   Ms Mead gave her contact details to the person who took the little dog’s owner to the vet. She took Monty home. Later that afternoon she was contacted by a dog

ranger from the Council. Monty was in their fully fenced backyard at this time. Monty was taken to the pound. Ms Mead asked the ranger if the owner of the little dog would want to meet with her so she could say sorry and find out how her dog was doing. The ranger did not think the owner would want to do that.

[21]   On the day of the attack, the Whanganui District Council issued Ms Mead with a notice of seizure and removal. This notice advised that Monty had been uplifted under s 52A(4)(a) (failure to keep a dog controlled or confined) and s 57(5)(a) (dog has attacked person, stock, poultry, animal or protected wildlife). This was followed by a notice of impounded dog dated 29 October 2017, which advised that Monty had been uplifted under s 57(5)(a) for an attack; and a notice of retention of a dog threatening public safety dated 29 October 2017, which advised that Monty was retained under s 71(2) until prosecution against Ms Mead for an offence under ss 57, 57A or 58.   It also advised that Ms Mead could apply for release of Monty under     s 71(4).

[22]   Ms Mead visited Monty while he was in the Council’s custody. She had good communication with the two rangers. She understood from them that she would have to go to court but the likely penalty would be a fine and not being allowed to have any other dog for five years. She was told Monty could be destroyed but this was unlikely because it was a first offence.

[23]   One of the rangers suggested that Ms Mead get some help from the Community Law Centre. She and her husband did this. They received some help from the Centre about applying for the return of Monty. They were told it was possible that Monty could be destroyed but it was unlikely because it was his first time in trouble. Over the next few weeks they worked hard on increasing the security of their house. They installed a second gate and added netting along the length of the fence.

[24]   On 12 November 2017 Ms Mead and her husband applied under s 71(4) to have Monty released. The application set out the proposed conditions on which he would be under their control. It also said that: Monty had never been a problem before; Monty had filled a void in their life because they could not have children; and, while they understood the seriousness of the situation, they felt the newspaper had made

them out to be bad dog owners and this was far from the truth. The two rangers inspected the property prior to the Council’s determination on the application.

[25]   On 27 November 2017 the Council issued its determination. This recorded that the matter was being prepared for prosecution under s 57 and the conditions were proposed “for the period of time until prosecution is determined by the Court”. The determination stated:

It is clear in the request, Jason and Denise are willing to work with Council to appease any concerns if he was released. Jason has indicated he is open to restricting Monty to the confines of his fenced property and although I appreciate the effort, I do not see it necessary.

I do however believe if Monty was released, certain conditions are required to eliminate the threat Monty poses to public safety. I therefore propose the following conditions and if met, will satisfy [the Council] that Monty will no longer pose a threat to the safety of any person, stock, poultry, domestic pet, or protected wildlife.

[26]   The Council determined to release Monty on the conditions noted above.5 On the same day the Council also issued a notice classifying Monty as a menacing dog under s 33C(1) of the Act. This was on the basis that Monty belonged to a breed or type of dog listed in Schedule 4 to the Act. Monty has been in the care of Ms Mead and her husband since his return from the Council. There have been no issues.

[27]   Ms Mead was served with the charging document and the summary of facts on 26 April 2018, along with a letter encouraging her to seek legal advice. The charge described the offence as: “[b]eing the owner of a dog known as ‘Monty’ which attacked a domestic animal”. The maximum penalty was described as a $3,000 fine. It did not refer to the possibility of a destruction order. Similarly, the summary of facts described the penalty as a $3,000 fine. It also stated that reparation was sought. It made no mention of the possibility of a destruction order.

[28]   Ms Mead noticed the Court documents she was served with referred to a fine but not a destruction order. This fitted with what she understood from the dog rangers and Community Law Centre. When she went to Court she did not speak to a lawyer. She pleaded guilty without appreciating that a destruction order might be part of the

5      At [9] of this judgment.

sentence. When the Judge started talking about a destruction order she said “no” and was given the opportunity to speak to the duty solicitor.

[29]   Ms Mead told Mr Waugh that Monty had not left their house since the incident. She told him he had never been aggressive before. She did not have the paperwork and photographs with her to show Mr Waugh how he was now kept. She did not tell Mr Waugh about Monty’s bad eye or that the little dog had rushed up to him from that side. She had told the Council in her statement on 27 October 2017 that it was the little dog that had come up to Monty, the owner did not have control of her dog and he was not a lead. She thinks she told Mr Waugh that she did not agree with what was read out in Court about Monty having a history of aggression and nor that Monty had come out of the river and attacked the smaller dog.

[30]   Ms Mead said she did not realise that when she entered her guilty plea she was accepting the summary of facts. She did not have a copy of the Council’s memorandum for sentencing. She did not think Mr Waugh saw it either. Had she seen it, she would have sought legal advice.

Mr Waugh’s affidavit

[31]   Mr Waugh confirmed that Ms Mead did not agree with the part of the summary of facts that said that Monty had come out of the river and approached the other dog. She had told him “the little dog had come up to her dog first, after her dog had come out of the river”. Ms Mead accepted her dog had attacked the other dog, which is why she entered a guilty plea.

[32]   Mr Waugh advised Ms Mead that it was likely a destruction order would be made based on the summary of facts. He could argue there were exceptional circumstances but he was unlikely to be successful. Ms Mead asked Mr Waugh to argue this, to try and avoid the destruction order.

[33]   Over an adjournment period of three to four hours Mr Waugh researched the case law. He advised Ms Mead the threshold for exceptional circumstances was high and a destruction order was the likely outcome. He said he could seek an adjournment so that she could instruct a lawyer and get further advice. Ms Mead said she could not

afford a lawyer and could not take more time off work. She wanted to get the matter dealt with that day.

[34]   Mr Waugh received a copy of the submissions for the Council which he understood had been prepared over the adjournment. When the matter was called he made submissions that there were exceptional circumstances. As part of those submissions, he:

… clarified with the Court that Ms Mead’s position was that her dog had not come out of the water to approach the other dog, but that the other dog had come up to the water, where Ms Mead’s dog was swimming.

The conviction appeal

[35]   Ms Mead submits she did not fully appreciate the merits of her position and did not make an informed decision when she entered a guilty plea. She does not accept the accuracy of the summary of facts and contends that, when the factual position is considered, the charge may not have been out and the correct charge may instead been one of rushing.6

[36]   An appeal against conviction is allowed if the Court is satisfied a miscarriage of justice has occurred. A miscarriage of justice means any error, irregularity or occurrence at trial which creates a real risk of the outcome being affected or an unfair or nullified trial.7 The Council submits this does not arise if Ms Mead did not understand the mandatory nature of the destruction order when she entered her guilty plea but does not challenge the elements of the offence or that her acknowledgment of guilt was anything other than genuine.

[37]   The Council relies on Allen v Manukau City Council where a similar argument was unsuccessful in the context of a dog destruction order in similar circumstances, except that Mr Allen had received advice from the duty solicitor before entering his plea.8 Ms Mead entered her guilty plea without the benefit of full legal advice (beyond the assistance the Community Law Centre had earlier provided). She challenges the

6      Section 57A.

7      Criminal Procedure Act 2011, s 232.

8      Allen v Manukau City Council HC Auckland, CRI-2009-404-330, 15 December 2009 at [31]-[33].

accuracy of the summary of facts and contends the offence may not have been made out. If this is a possibility leave to withdraw her guilty plea might be given.

[38]   However the problem for the conviction appeal is that this is not a realistic possibility. Ms Mead disputes how the attack came about, not the essential facts that constitute an attack. Ms Mead has accepted throughout that there was an attack. She may have matters she can advance about the circumstances of that attack, but she does not dispute that her dog bit Alfie (Alfie’s injuries are confirmation of this) and that Alfie had to be forcibly freed from Monty’s grasp. As her appeal counsel accepts, the circumstances she wishes to advance are more relevant to her sentence appeal.9

The sentence appeal

[39]   Ms Mead contends that, given her challenge to the accuracy of the summary of facts, she should have been given the opportunity for an adjournment for a disputed facts hearing. Mr Waugh said Ms Mead wanted to have the matter dealt with that day for the reasons that she explained.

[40]   However the Sentencing Act 2002 prescribes the procedure when facts are in dispute which are not essential to the guilty plea but may be relevant to the sentence or other disposition of the case.10 If a fact is relevant to the determination of a sentence or other disposition of the case, which is asserted by one party and disputed by the other, the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case.11 The prosecutor must prove beyond reasonable doubt the existence of any disputed aggravating fact, and must negate beyond reasonable doubt any disputed mitigating fact raised by the defence that relates to the offence and which is not wholly implausible or manifestly false.12

9      Initially the conviction appeal was put forward on the basis that a discharge without conviction would be sought. This was to seek to avoid the destruction order. There is conflicting High Court authority about whether a conviction is required before a destruction order becomes mandatory subject to the circumstances of the offence being exceptional and not warranting destruction. See, for example, Fountain v Auckland City Council [2018] NZHC 591 compared with Turner v South Taranaki District Council [2013] NZHC 1603.

10     Sentencing Act 2002, s 24.

11     Sentencing Act, s 24(2)(a).

12     Section 24(2)(c).

[41]   Here the Council alleged that when Alfie approached the boat ramp, Monty had come out of the water and attacked Alfie. In other words, Monty’s aggression was entirely unprovoked. If correct this was an aggravating feature of the attack. As set out above, the Judge discussed this when describing the nature of the attack. He proceeded on the basis that Alfie went to the boat ramp, and that Monty had come out of the water and attacked Alfie swiftly and severely.

[42]   Ms Mead disputes this. Her version of events is quite different. She says she and Monty were on the way back to Ms Mead’s car when Alfie approached Monty on the side of his bad eye. On this version, Monty’s aggression was a response to being frightened by another, unrestrained, animal straying into his personal space by surprise. Ms Mead conveyed something of this to Mr Waugh as his affidavit confirms. However Ms Mead’s instructions about this appear not to have been clearly conveyed to Mr Waugh. That is because both he and the Judge appear to have understood that the issue was about whether the attack occurred as a result of Alfie approaching Monty when Monty was in the river.13 In fact, Ms Mead says the attack occurred only once Monty was out of the river and was returning to the car and Alfie approaching him then.

[43]   Had matters proceeded in the way they ought to have, the Judge would have indicated the weight he would likely attach to this factual dispute, and it would have been for the Council to prove beyond reasonable doubt, that Monty had come out of the water to swiftly attack Alfie in response to Alfie approaching the boat ramp, if the Council wished to rely this. That Ms Mead had not had the benefit of legal advice before she entered her guilty plea likely contributed to this procedural irregularity.

[44]   I consider Ms Mead’s version of events is potentially material to the assessment of whether exceptional circumstances were present. On her version, the attack was by a startled dog on another, unrestrained, dog. Although Ms Peet was bitten in trying to free Alfie from the attack, it seems that this occurred incidentally. The focus of Monty’s attack was and remained on Alfie even though Ms Peet (understandably and bravely) took aggressive action on Monty.

13 See [15] and [34], as compared with [31] of this judgment.

[45]   There is a further issue. The Judge acknowledged Monty had not attacked anyone or any person before and Ms Mead has not been before the Court before. He did not place weight on those factors because of the nature of the attack and his focus on the offence. Consistent with a line of authority in this Court, he did not consider events that post-date the offending in concluding that the circumstances were not exceptional.14

[46]There  is  an alternative view.    In Korewha v Whangarei District Council

Woodhouse J took the following view:15

[40]       … In my judgment, the “circumstances of the offence” should not be limited in that way. The cases, including those endorsing this limit, extend “circumstances of the offence” to take account of what amount to circumstances of the offender and relevant information relating to the general behaviour of the dog. There seems no reason why relevant information arising from conduct or behaviour after the attack, both of the offender and of the dog, should not be taken into account. This is the approach on the application of   s 107 of the Sentencing Act 2002, directed to the question whether an offender should be discharged without conviction and requiring the Court to have regard to the “gravity of the offence”. This may include consideration of relevant purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act, which include events occurring after commission of the offence. In principle, a similar approach should apply when considering what amounts to sentencing under s 57(3) of the Act, and there does not appear to be anything in the Act to preclude that approach.

[41]      It has also been suggested in some cases that particular matters arising before or up to the end of the attack should not be considered to be, or at least are unlikely to be, exceptional circumstances. For example, in Jorion v Kapiti Coast District Council, Dobson J was of the opinion that “the absence of any history of attacks by the dog [is not] likely to constitute an exceptional circumstance”. And in McClintock v Taupo District Council Katz J said that a “momentary or short dog attack is not exceptional”.

[42]      In my opinion, there is nothing in s 57(3), construed in the context of the Act as a whole, which means that certain matters should automatically be excluded from consideration to determine whether there are exceptional circumstances. The weight to be attached to particular circumstances is a different matter, but the weight of particular circumstances is likely to depend on those circumstances considered in the context of all relevant circumstances. These observations apply, in particular, to the circumstances of the attack. The fact that there has been an “attack” is the single circumstance which is central to s 57, but the bare fact of an attack, irrespective of its nature, should not be given disproportionate weight in an assessment of all relevant circumstances of the offence. If an attack by a dog can properly be described as minor, and

14 See, for example, Halliday, above n 4, at [43]; Selwyn-Mallison, above n 4, at [17]; Anand v Auckland Council [2013] NZHC 445 at [14]; Evans v Queenstown Lakes District Council [2012] NZHC 2963 at [9]; and McClintock v Taupo District Council [2017] NZHC 58 at [9].

15     Korewha v Whangarei District Council [2017] NZHC 3178.

there are other circumstances supporting a conclusion that there should be no order for destruction, all of those circumstances put together might amount to exceptional circumstances. Or a minor attack together with other circumstances which in themselves are exceptional, may lead to a conclusion that there should be no order for destruction on application of both parts of the test in s 57(3).

[47]   I agree with this view. It is an ordinary and natural meaning of “circumstances of the offence” to take into account whether the offence was out of character for the dog. The alternative line of authority accepts the prior history of the dog is relevant. The dog’s prior history can only be relevant to demonstrate whether the offence was out of character. Events after the attack may equally bear on that assessment.

[48]   The alternative line of authority views the dog’s subsequent behaviour as potentially relevant to whether the Court is satisfied that the circumstances “do not warrant the destruction of the dog”. It is said that this involves a predictive assessment of whether the dog is likely to behave in this way in the future.16 On this approach, the dog’s subsequent conduct is relevant only if it is first established that the circumstances of the offence were exceptional.17

[49]   I do not agree with this view. The test is whether “the circumstances of the offence” were “exceptional and do not warrant the destruction of the dog”. The “circumstances of the offence” are relevant to both limbs. There is therefore no basis to say the “exceptional” limb focuses on “the offence” so conduct post-dating the offence is not relevant, but the “do not warrant the destruction of the dog” limb does not focus on the offence and is concerned with a predictive assessment so conduct after the offence is relevant.

[50]   The purpose of the exception to the otherwise mandatory nature of the destruction order is to recognise that, without such an exception, the legislation would operate unfairly. As it was put in Hamilton City Council v Fairweather, it recognises that “dogs are living creatures of greater significance than mere chattels”.18 All factors that bear upon the circumstances of the offence should be considered to determine

16     Halliday, above n 4, at [41].

17 For example, Evans, above n 14, at [24] where it was held that if the circumstances of the offence are not exceptional, then there is nothing to be gained by inquiring into matters such as whether the dog poses a risk in the future and how that risk might be managed.

18     Hamilton City Council v Fairweather [2002] NZAR 477, cited in Halliday, above n 4, at [27]-[28].

whether the dog must be destroyed. As Woodhouse J said, this is similar to the “gravity of the offence” limb of s 107 of the Sentencing Act. That involves a consideration of all aggravating and mitigating factors of the offence and the offender.

[51]   The public safety purpose of the Act is met by requiring the “circumstances of the offence” to be exceptional. As is discussed in Halliday, this was altered from “circumstances of the attack” as part of amendments made in 2003.19 It contrasts with the broader direction for a rushing offence under s 57A, and the more restricted discretion under s 58 where the offence involves a dog causing serious injury to a person or protected wildlife and the exceptional circumstances must relate to the “attack”. The circumstances of the offence may be exceptional because the dog has acted out of character in unique, special or substantially unusual circumstances that are unlikely to arise again. If that is so, there will be no ongoing threat to public safety and the destruction of the dog would not be warranted.

[52]   In this case, Monty has been returned to his owners. That occurred only because the Council was satisfied Monty was not a threat to public safety on the conditions that applied to Monty’s release. The Council was satisfied that Ms Mead and her husband would adhere to the conditions it imposed for Monty’s return to their care. The information before the Court is that Monty’s first and only attack took place when he was seven years old and there have been no issues since Monty’s return to his owners. The attack was directed at another dog, not a person. Monty’s owner has not been before the Court before and has no prior history of being an irresponsible dog owner. She immediately acknowledged her dog had attacked the other dog, apologised for it, provided her contact details and offered to pay the vet costs. She subsequently sought to meet with Ms Peet, if Ms Peet had wanted that.

[53]   In light of all these relevant circumstances, and if Ms Mead’s account of what occurred is correct, the offence could be viewed as exceptional and not warranting the dog’s destruction. The Judge did not approach the matter in this way, in part because he did not have all the evidence that is now before me and in part because he followed a line of authority that I consider to be in error. It is not appropriate, however, for me

19     Halliday, above n 4, at [12].

to make a final determination about whether the circumstances of the offence were exceptional and do not warrant Monty’s destruction when the Council may wish to contest Ms Mead’s account and Ms Mead accepts a disputed facts hearing may be necessary.

Result

[54]   The appeal against conviction is dismissed. The appeal against sentence is allowed to the extent that the destruction order is set aside. The proceeding is remitted back to the District Court for the destruction order to be reconsidered. If agreement is not reached on the summary of facts, it may be necessary for a disputed facts hearing to take place before that reconsideration takes place.

Mallon J