Natasha Robins v New Plymouth District Council

[2024] NZHC 2942

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2024-443-000035

[2024] NZHC 2942

NATASHA ROBINS

v

NEW PLYMOUTH DISTRICT COUNCIL

Hearing:	8 October 2024
Counsel:	E Pointon and B H Woodhouse for Appellant J Bourke for Respondent
Judgment:	10 October 2024

JUDGMENT OF GRAU J

[Sentence appeal]

An appeal against a dog destruction order

[1]                 Ms Robins appeals against a decision of the New Plymouth District Court to order the destruction of her dog as part of her sentencing on charges of being the owner of a dog that rushed and caused injury, and failing to register a dog.1

[2]                 The basis of the appeal is that the sentencing Judge erred in his assessment of the seriousness of the offending, which Ms Robins says was at the “low end of moderate”. It is also contended he erred in his assessment of the ongoing

1      New Plymouth District Council v Robins [2024] NZDC 20949 (Notes of Judge G F Hikaka on Sentencing) [Decision on appeal]. The charges are under the Dog Control Act 1996, s 57A (maximum penalty of $3,000 fine, court may make order for destruction of the dog) and s 42 (maximum penalty of $3,000 fine). There is no appeal against the $150 fine imposed on each charge and the $300 reparation ordered to be paid to the victim.

ROBINS v NEW PLYMOUTH DISTRICT COUNCIL [2024] NZHC 2942 [10 October 2024]

dangerousness of the dog, with the result that he did not impose the least restrictive outcome that was appropriate in the circumstances. Ms Robins argues that instead of ordering destruction, a dangerous dog classification is available, which will ensure the dog’s behaviour is not repeated. Ms Robins can transfer ownership to a whānau member with a fully fenced property, who will ensure this well-loved elderly family pet can live out the rest of her life within the family, and with increased oversight to further mitigate any risks to the community.

[3]                 The respondent, the New Plymouth District Council (the Council), says the Judge was correct to order destruction given the nature of the offending and its consequences, the ongoing dangerousness of the dog, and Ms Robins’ poor history of compliance with dog ownership  obligations.  The  Council  also  points  out  that  Ms Robins is now disqualified from dog ownership for four years, and the proposed new owner also has a history of poor compliance with ownership obligations, such that the Court cannot be satisfied that the ongoing risks this dog poses to the community would be sufficiently mitigated.

The circumstances of the offending

[4]                 On 24 October 2023, the primary victim, Mr King, and his friends were cycling around the area where Ms Robins lives.2 When the group approached Ms Robins’ address, Indy, her black and tan female rottweiler, appeared and began barking aggressively. As the group got closer, Indy rushed from the property towards the cyclists, causing some members of the group to crash. Mr King fell from his bike and landed on the handlebars of another bike which caused him significant pain and injury.

Two other cyclists in the group suffered minor injuries. The dog ran off.3

[5]                 Dog Control officers and an ambulance were contacted. Ms Robins came out of her address and asked which dog had caused the crash. When Dog Control officers attended Ms Robins’ address, she was not home. They returned on 8 November 2023, seized the unregistered Indy, and impounded her.4

2      Decision on appeal, above n 1, at [3].

3 At [3].

4 At [6].

[6]                 Mr King was transferred by ambulance to the Taranaki Base Hospital Emergency Department and admitted to the ICU. He was in significant pain, having suffered six fractured ribs. A spinal catheter was necessary for pain management, which was a painful procedure requiring him to be heavily sedated. While in ICU, he suffered a number of incidents of atrial fibrillation, a condition he had suffered from in the past, but which had been under control following treatment in 2011. Co- incidental to his treatment for atrial fibrillation, he suffered a collapsed lung, requiring a procedure to insert a chest drain through his chest wall.5 He spent at least four days in ICU before being transferred to a ward for around two days, then he was discharged home. Soon after his discharge, he returned to the Emergency Department with chest pain, suffering from an upper respiratory tract infection. Mr King has described that his ongoing recovery took some time. As an active person it was hard on him to be unable to undertake his normal daily life and participate in activities. The whole experience was also difficult for his wife and family.6 He has expressed that he had always been wary of dogs, but the incident increased his concerns and awareness around uncontrolled dogs.

The sentencing decision

[7]                 The Judge began by setting out the facts of the offending before moving on to consider Ms Robins’ position that a destruction order should not be made.

[8]                 Ms Robins had advised she had set up an automatic payment to cover registration fees for Indy and the other dog at her property. However, the Council had been unable to find confirmation of either the automatic payment or whether overdue registration fees had been paid.7

[9]                 The Judge then noted the letters of support and Ms Robins’ evidence that detailed her affection for her dog, as well as how Ms Robins came to be in possession of the dog after her mother’s passing. The Judge noted too that Indy now requires medical attention, and that each time Ms Robins visits her in the pound her condition deteriorates, impacting Ms Robins in turn. His Honour noted the pleas that the dog

5 At [11].

6 At [12].

7      Decision on appeal, above n 2, at [8].

not be put down as a result of the incident.8 However, his Honour also recorded that in all of those pleas, what had not been adequately addressed was “the significant impact on the person injured as a result of the chaos this dog caused when it ran at the group of cyclists”.9

[10]              The Judge then recorded Ms Robins’ version of events, being that she believed the gate to her property was closed when she let the dogs out to a yard while she had a shower, coming out to find that there had been an  incident  involving  Indy.10 Judge Hikaka commented that this needed to be put “in the context of the Council’s records of [Ms Robins] and the way [she] look[s] after dogs on [her] property”.11 In particular, the Judge noted the following events:12

(a)On 18 December 2017, a complaint of two dogs rushing out of your property getting amongst a group of cyclists. That occurred on 15 December 2017. You were given two infringement notices for failure to register the dogs at that time.

(b)Then, 18 February 2018, a complaint again about two dogs rushing from your property getting amongst a group of cyclists. This time it is noted the dogs were acting aggressively, growling and barking. There was an attempt to seize the dogs, but it says: “The dog owner refused to hand over the dogs.” It does not make clear whether that was you but that is an available inference, but I do not necessarily attach it to you because it goes on to refer to the dog owner and her partner being verbally abusive to the Dog Control people. That led to the issue of four infringement notices.

(c)The next day there was a complaint about two dogs rushing out and chasing two cyclists the day before. It appears from the record, that that was a separate incident from the one that I have already referred to from 18 February 2018, because the notation says: “As a result of the last two complaints a search warrant was obtained, the dogs seized”. During the time of that attendance there was a lot of abuse from the dog owners.

(d)Finally, 26 April 2018, a complaint about two dogs from your property rushing out, chasing two cyclists riding down the road. Again, it led to the dogs being seized and abuse from the dog owners.

8 At [9].

9 At [12].

10 At [13].

11 At [13].

12 At [14].

[11]              While the Judge acknowledged these incidents were five years old, he said that it nonetheless indicated an approach to managing dogs that was far from satisfactory.13 He commented it was arguable the Council had not done Ms Robins a favour by not prosecuting her previously, as it may have made her more diligent about the care of her dogs.14 The Judge also acknowledged Ms Robins’ hope to have Indy spend her final year or so at home and that Ms Robins would be happy to have Indy classified as a dangerous dog.15 However, he also noted that Ms Robins had already had issues about paying registration fees and Indy was not registered at the time of the rushing.16

[12]              Judge Hikaka then applied the test set out in Slater v Police to determine whether a destruction order should be made.17 He noted that the offending involved a dog loose in the front area of the property with an open gate, rushing at the group causing significant disruption and significant injuries to the victim. The consequences were those injuries and that a number of others also fell from their bikes. The Judge then turned to assess ongoing dangerousness, noting Ms Robins’ evidence that she had fenced the section, and the gate would be closed. That was undermined, however, by evidence from the Council that, the day before sentencing, a Council officer passed the address and the front gate was open. In addition, the other dog at the property was still unregistered (although he gave Ms Robins the benefit of the doubt as to the dog being inside the house, as was said for Ms Robins).18

[13]              The Judge said a $150 fine for each charge and $300 in reparation was warranted.19 His Honour then referred to his assessment that Ms Robins had very poor compliance with registration requirements and keeping her dogs properly confined, when there was a track record of dogs rushing out. He was also concerned at the abusive response to Council representatives (although accepting Ms Robins’ personal circumstances at the time may explained this response).20 The overall picture was a repeated failure to comply, meaning this dog had again rushed out and “caused

13 At [15].

14 At [15].

15     Indy is nine years old. The general life expectancy of a rottweiler is about 10 years.

16 At [18].

17     At [19]; Slater v Police [2015] NZHC 707.

18 At [22].

19 At [23].

20 At [24].

significant disruption to the health and well-being of the person badly injured as a result of the crash he was involved with”. Accordingly, his Honour believed he should exercise his discretion to order destruction of the dog given the overall circumstances of the incident and in the context of Ms Robins’ management of her dogs.21

Approach on appeal

[14]              An appeal against a dog destruction order is an appeal against sentence.22 Section 250(2) of the Criminal Procedure Act 2011 provides that a court must allow a sentence appeal if satisfied that:

(a)for any reason there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[15]              In all other cases, the court must dismiss the appeal.23 An appeal against sentence is not an appeal de novo; absent any error, the appellate court may not simply substitute its own opinion for that of the court below.24

Fresh evidence on the appeal

[16]              By the time of the hearing of the appeal, Ms Robins had provided affidavits from herself and her brother-in-law’s partner, who was proposed as a new owner for Indy. The Council also filed an affidavit from its Animal Control Supervisor:

(a)Ms Robins’ second affidavit (her first having been filed in advance of her sentencing) again sets out the steps she has taken to secure her property, by installing chicken wire, a new gate which fastens with a chain, and “shut the gate” signs. She said she would agree to any conditions to allow Indy to come home and she would comply with

21     At [26]–[28].

22     Auckland Council v Hill [2019] NZCA 296 at [10].

23     Criminal Procedure Act 2011, s 250(3).

24     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

those conditions. She says Indy is already over nine years old, does not have much life left in her, and all she wants is for Indy to return home.

(b)Ms Robins’ third affidavit attaches her notice of disqualification from dog ownership for four years based on her convictions. Ms Robins deposes that she will object to the notice. She contacted her whānau for support and her brother-in-law’s partner (Ms Ropitini) agreed to take ownership of Indy. Ms Ropitini is said to have a fully fenced property and no pets. She and Ms Robins would share the costs of food and fees. Ms Robins deposes she has already organised for fees to be paid. She knows Indy would be cared for and Ms Robins would be able to visit her.

(c)Ms Ropitini has deposed that she is willing and able to take over ownership of Indy. She confirms her property is fully fenced and says she is certain there is no risk of Indy causing any trouble or running from the address. She is willing for the Council to visit her property to ensure there is no risk of escape. Ms Ropitini acknowledges she has had previous issues with Dog Control, around two years ago. She has said that, if she was unable to continue to care for Indy, she would advise Dog Control. She is willing to do whatever it takes to support Indy to live out the rest of her life surrounded by love and care, knowing how much Indy means to Ms Robins.

(d)The Council’s Animal Control Supervisor, Mr Goldfinch, discusses Ms Robins’ proposed transfer of ownership of Indy to Ms Ropitini if she is successful in her appeal. Mr Goldfinch sets out Ms Ropitini’s history of dog control related matters, which includes the seizure of her dog in late 2022, and the dog’s eventual destruction after Ms Ropitini made no contact with the Council. In addition, in 2019, Ms Ropitini was issued with infringements for her unregistered dog, and for failing to keep her dog confined and microchipped. Another infringement followed in 2022 for failing to comply with a barking dog abatement notice. Only one of the 2019 infringements was paid. Mr Goldfinch

also advises that Indy would be classified as a dangerous dog if the order for destruction is quashed, and a change in ownership of a dangerous dog requires the consent of the Council, who do not consider Ms Ropitini to be a responsible dog owner.

Discussion

The law

[17]              The objects of the Dog Control Act 1996 (the Act) are set out in s 4 of that Act. The Act seeks to make better provision for the care and control of dogs:

(i)by requiring the registration of dogs; and

(ii)by making special provision in relation to dangerous dogs and menacing dogs; and

(iii)by imposing on the owners of dogs, obligations designed to ensure that dogs do not cause a nuisance to any person and do not injure, endanger, or cause distress to any person; and

(iv)by imposing on owners of dogs obligations designed to ensure that dogs do not injure, endanger, or cause distress to any stock, poultry, domestic animal, or protected wildlife; and

(b)       to make provision in relation to damage caused by dogs.

[18]              Section 5 sets out the obligations of dog owners imposed by the Act in order to achieve those objects:

5        Obligations of dog owners

(1)The obligations imposed on dog owners by this Act require every owner of a dog—

(a)to ensure that the dog is registered in accordance with this Act, and that all relevant territorial authorities are promptly notified of any change of address or ownership of the dog:

(b)to ensure that the dog is kept under control at all times:

(c)to ensure that the dog receives proper care and attention and is supplied with proper and sufficient food, water and shelter:

(d)to ensure that the dog receives adequate exercise:

(e)to take all reasonable steps to ensure that the dog does not cause a nuisance to any other person, whether by persistent and loud barking or howling or by any other means:

(f)to take all reasonable steps to ensure that the dog does not injure, endanger, intimidate, or otherwise cause distress to any person:

(g)to take all reasonable steps to ensure that the dog does not injure, endanger, or cause distress to any stock, poultry, domestic animal, or protected wildlife:

(h)to take all reasonable steps to ensure that the dog does not damage or endanger any property belonging to any other person:

(i)to comply with the requirements of this Act and of all regulations and bylaws made under this Act.

(2)Nothing in this Act limits the obligations of any owner of a dog to comply with the requirements of any other Act or of any regulations or bylaws regulating the control, keeping, and treatment of dogs.”

[19]              As has been discussed by this Court previously, protection of the public is the underlying focus of the Act, and criminalising certain conduct by dog owners is the Act’s mechanism to achieve public safety.25

[20]              Section 57A of the Act confers a broad discretion on the court as to whether or not to make a destruction order.26 The factors relevant to the exercise of that discretion are not limited to the words of the statute because the breadth of activity that could be caught by s 57A requires a wide discretion.27 That being said, Ellis J in Slater v Police described the matters that can be legitimately considered when exercising the discretion under s 57A to include:28

(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.

25     Adams v South Taranaki District Council [2024] NZHC 3254 at [44].

26     Slater v Police, above n 17, at [17(c)].

27     Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 14 July 2005 at [35].

28     Slater v Police, above n 17, at [18].

[21]              Justice Ellis explained that the last of these three considerations is likely to be particularly important.29

[22]              Section 57A, which replaced s 57(6) as originally enacted in 1996, has been said to reflect Parliament’s assessment that dogs which actually attack present a greater future danger than those that only rush or startle. The former are generally liable for destruction on conviction of the owner. For the latter, there is judicial discretion.30

[23]              A dog must be classified as a “dangerous dog” in accordance with ss 31 and 32 of the Act if its owner has been convicted of an offence under s 57A but no order for destruction is made. A dog may also be classified as dangerous if the territorial authority has, on the basis of sworn evidence attesting to aggressive behaviour by the dog on one or more occasions, reasonable grounds to believe that the dog constitutes a threat to the safety of any person, stock, poultry, domestic animal, or protected wildlife.31 A “dangerous dog” is subject to a number of restrictions. For example, it needs to be muzzled and leashed in any public place or private way (unless confined in a vehicle or cage), it must be neutered, and it needs to be kept in a securely fenced part of the owner’s property that it is not necessary to enter to access at least one door of the dwelling. Registration fees also increase significantly.32

Application to this case

[24]I cannot identify any error in Judge Hikaka’s decision.

[25]              First, I do not accept the submission for Ms Robins that the offending and its consequences in this case can be described as being at the “low end of moderate”. Ms Robins, who had a dog which had previously rushed out at passing cyclists, took insufficient care to ensure her dog did not do so again. The consequences of her failure to comply with her obligations as a dog owner were very serious indeed. It is no answer to assert that the most serious injuries or conditions were secondary to the broken ribs suffered as a result of the rushing incident. The broken ribs were

29 At [19].

30     See Auckland Council v Hill [2020] NZCA 52; [2020] 3 NZLR 603 at [32].

31     Dog Control Act, s 31(1)(b).

32     Section 32.

themselves serious. The other injuries or conditions resulted from, or coincided with, the treatment required for the injuries caused as a result of the dog’s behaviour. The victim was otherwise healthy and active before the incident. He was not afterwards, for a significant time, and there have been ongoing effects.

[26]              Nor do I accept this case is less serious than Leatherby in which an appeal against a destruction order was successful, and on which Ms Robins relies.33 While in that case—which was described as “moderate”—the dog acted aggressively towards several people, including attempting to bite them, the dog did not bite anyone and no one was injured in any way. I also consider the present case involved aggression by the dog, perhaps as a territorial response, but the consequences were severe for the victim. Put simply, if death is at the most serious end of the spectrum, then hospitalisation of a victim, including the necessity for treatment in ICU, and ongoing emotional and psychological harm, must elevate the offending at least to a level that can be described as serious.

[27]              Nor do I consider the Judge erred in respect of his assessment of ongoing dangerousness. It is said on appeal there is no evidence to support the finding that Indy would remain as a threat to the community. There is, however, no evidence she would not, and her past behaviour, particularly her record of rushing at cyclists, is therefore the best predictor of her future behaviour.

[28]              Although Ms Robins deposed that she had fenced her property and installed a new gate, I consider it inevitable, given the Judge’s assessment of Ms Robins’ history of non-compliance, that a classification as a dangerous dog was not a viable alternative to destruction.

[29]              Nor is it a viable option now. I am unable to accept that ongoing dangerousness is further mitigated by the transfer of ownership to Ms Ropitini. There is no evidence beyond her own assertion that her property is securely fenced, let alone in a manner that would meet the requirements for a dangerous dog. I also agree with the respondent that classification as a dangerous dog would only be a viable alternative if there could be confidence that the owner would comply with the strict conditions that

33     Leatherby v New Plymouth District Council [2018] NZHC 2756.

apply to that classification. Unfortunately, Ms Ropitini’s dog ownership history is also a checkered one.

[30]              Although made in the context of s 57 of the Act, the Court of Appeal’s general comments in Auckland Council v Hill relating to assurances by dog owners about future management and control of a dog remain apposite, to the extent that there is no mechanism for checking that such assurances are consistently implemented over time.34 I have significant doubts that Ms Ropitini, despite her best endeavours, would be able to comply with the conditions of ownership of a dangerous dog. A change of ownership to Ms Ropitini is also likely to be an unfeasible option, given the Council’s reservations.

[31]              I have found no error by Judge Hikaka in ordering the destruction of the dog in this case. Nor does the proposal to transfer ownership satisfy ongoing safety concerns.

[32]Accordingly, the appeal must be dismissed.

Grau J

Solicitors:
Crown Solicitor, New Plymouth

34     Auckland Council v Hill, above n 30, at [80].