Pati v Auckland Council
[2018] NZHC 3275
•12 December 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-000319
[2018] NZHC 3275
BETWEEN ROWENA MALO PATI
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 19 November and 11 December 2018 Counsel:
GM Reid for Appellant LM Mills for Respondent
Judgment:
12 December 2018
JUDGMENT OF DOWNS J
This judgment was delivered by me on Wednesday, 12 December 2018 at 1 pm.
Registrar/Deputy Registrar
Solicitors:
GM Reid, Auckland.
Auckland Council Legal Services, Auckland.
PATI v AUCKLAND COUNCIL [2018] NZHC 3275 [12 December 2018]
The appeal
[1] Ms Rowena Pati owned a Rottweiler. On 29 January 2018, it was at Ms Pati’s father’s home. The victim was out walking with his two young daughters, one of whom was in a pram. The dog rushed out. It attacked the victim. He was hospitalised for two nights. Ms Pati pleaded guilty to two charges: being the owner of a dog that attacked a person causing serious injury; and which rushed someone in a public place causing injury or endangerment. Judge C S Blackie declined to discharge Ms Pati without conviction, but imposed no other penalty.1 Ms Pati appeals. She contends the Judge erred. Ms Pati wishes to become a Police officer, and is concerned conviction may prevent that.
Background
[2] Few further facts are necessary. Ms Pati was not at her father’s home when the attack occurred. And, he had left the gate open. The dog ran towards the victim’s older daughter—who was eight years old—and jumped against her. The victim punched the dog to defend her. During this, the pram fell over. The victim raised his arm. The dog bit it. The defendant’s father intervened, but again failed to shut the gate properly. The dog again ran at the victim, but was either called off or pulled away (the summary of facts is ambiguous).
[3] As observed, the victim was hospitalised for two nights. He suffered puncture wounds and bruising to his forearm, and a laceration and abrasions to his hip. Surgery was required to clean and close both wounds. The two-year-old suffered minor bruising and abrasions to her knee when the pram tipped.
[4] An animal management officer went to the home the day after the attack. The officer noticed the dog was “very aggressive”. It had to be “poled” into the van with help from a colleague.
[5] Ms Pati was co-operative when interviewed on 1 February 2018. Her dog has since been destroyed without objection.
1 Auckland Council v Pati [2018] NZDC 19080.
Sentencing
[6] Judge Blackie noted aspects of the offence were serious. The victim received “significant injuries”, and the attack “endangered the lives of two children”.2 But, the Judge also recognised mitigating features. Ms Pati was not present when the attack occurred (she is liable because the offence is one of strict liability), is of good character, and genuinely remorseful. The Judge considered a significant sentence of community work would normally be required, but Ms Pati had already completed 120 hours of voluntary community work. This aspect and those already described persuaded the Judge no additional penalty was required.
[7] Ms Pati sought to be discharged without conviction under s 106 of the Sentencing Act 2002. The Judge dismissed the application, observing:3
I take into account your good character. You have not been in trouble before and I take into account also that the Court has had to make an order for the destruction of the dog. I am not at the point where I could say that the entering of a conviction would be out of all proportion. I consider that a conviction is required. It is required from the public policy point of view, so that people own these dangerous dogs are seen to be responsible for them, because they can inflict such serious injury and damage. On the other hand I can see that you have shown considerable remorse through the restorative justice programme and also your voluntary work through the Methodist Church.
I am not going to impose any penalty today. What I am going to do though and I think this is important from the point of view from the public interest, I am going to impose a conviction and I am going to order you to come up for sentence if called upon within six months. It simply means this if there is no further trouble, you will hear no more about it.
I am prepared to direct that a copy of what I have said to you be made available to you, so that if the police want to check up on what I have said and what happened in Court they can see what has been said. As I stated earlier this is a regulatory offence, it is not a criminal offence and I do not see that it should have the same consequence with your application to join the police force than it would have had it been a serious criminal offence.
Law
[8] A Court may discharge a defendant without conviction for an offence when satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. Consequently, a Court must identify the
2 Auckland Council v Pati, above n 1, at [11].
3 At [15]–[17].
gravity of the offence, the direct and indirect consequences of a conviction, and then determine whether the latter would be out of all proportion to the former.
[9] An appeal against the refusal of a Court to grant a discharge without conviction is an appeal against both conviction and sentence.4 Appellate intervention will occur when “a miscarriage of justice has occurred [because] of a material error by the sentencing judge in entering a conviction”, or “the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act”.5 So, appellate intervention is confined to reversible error.
A precis of Ms Pati’s argument
[10] Ms Pati contends the Judge erred in his assessment of the seriousness of the offending: he wrongly referred to the dog as dangerous, as if it were classified as so; mischaracterised the incident; and wrongly minimised the supportive view of the victim. Ms Pati also contends the Judge failed to assess the risk conviction may impede her desire to join the Police.
Analysis
[11]Judge Blackie said this about dangerousness:6
When spoken to about it, it was admitted the dog was aggressive and indeed when the Animal Management people turned up at the address the dog had to be poled with the assistance of another person because it was so aggressive. You yourself admitted that it was aggressive and said that only you and your partner could control it. So it was therefore known to you to be a dangerous dog. If one possesses dangerous dogs one has to be accountable for their actions.
[12] Contrary to Mr Reid’s submission, the Judge was not saying Ms Pati’s dog was classified as dangerous. Rather, the Judge was saying Ms Pati knew her dog was dangerous, or at least aggressive.
[13] As to this, Ms Pati told her interviewer the dog was “protective” of her family and “very protective” of property. Ms Pati also said the dog did not always listen to
4 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.
5 At [12].
6 Auckland Council v Pati, above n 1, at [6].
her father, and he did not have “much control” over it. Ms Pati also referred to the dog as “playful”, and as unaggressive. However, Ms Pati accepted it was large and could “pretty much bowl us over”. It follows Ms Pati’s interview supports the Judge’s observations, save perhaps for an element of overstatement (about dangerousness).
[14] Mr Reid submits Ms Pati’s dog did no more than approach the victim “to play”. Only then did things get out of hand. He observes the victim was bitten only after he had punched her dog, and when he raised his arm. It follows the Judge mischaracterised the seriousness of the incident. This was an attack, but with a small a.
[15] I disagree. Ms Pati pleaded guilty to charges she owned a dog that attacked a person causing serious injury, and which rushed someone causing injury or endangerment.7 Both capture what occurred. Ms Pati’s dog rushed the victim’s eight- year-old daughter, and jumped against her. The victim punched the dog only to protect his daughter, an action many responsible parents would take. The dog then attacked him, biting him. A frightening episode like this—involving children, actual bodily harm, and two nights’ hospitalisation—should not be diluted to “an incident” or a mere misunderstanding.
[16] This conclusion is supported by subsequent events. As will be recalled, the dog was “very aggressive” when animal management officers went to the home the day after the attack.
[17] Mr Reid’s final submission in relation to the seriousness of the offending concerns mitigating factors. Ms Pati attended a restorative justice conference with the victim, and apologised to him. She and her husband took the victim groceries, in a gesture of contrition, shortly after the attack. At the conference, the victim said he fully supported Ms Pati’s application for a discharge without conviction.
7 Dog Control Act 1996, s 58.
[18] Mr Reid contends the Judge wrongly minimised all this, particularly when remarking the victim and his two daughters “were relatively sympathetic to your case”.8
[19] In isolation, this observation does not capture the victim’s position. However, sentencing remarks must be considered in their entirety. Imprecision of expression in a busy list court is not necessarily synonymous with reversible error. Elsewhere, the Judge referred to Ms Pati’s participation at the conference, and to the victim “not even asking for compensation for medical or related expenses”, both of which the Judge said he would consider.9 The Judge also referred to Ms Pati’s “good character”, her voluntary community work, and her “considerable remorse”.10
[20] Standing back, it is clear the Judge understood the victim’s position, and was cognisant of mitigating circumstances. This explains why the Judge concluded no penalty was necessary beyond a conviction. It follows the Judge did not err when assessing the seriousness of the offence, including mitigating features.
[21] This leaves one argument: inadequate risk-assessment of the prospect conviction may compromise Ms Pati’s hoped-for Police career.
[22] Ms Pati works with young people as a truancy officer. She has wanted to be a Police officer for a long time. Ms Pati is fluent in Samoan and English, and committed to her local community. So, Ms Pati may be thought an obvious candidate for the Police. But, Ms Pati has been unsuccessful thus far. She proposes to try again. Ms Pati is concerned her intervening conviction may compromise re-application. Against this background, Mr Reid contends the Judge erred when assessing the consequences of conviction.
8 Auckland Council v Pati, above n 1, at [14].
9 Auckland Council v Pati, above n 1, at [14].
10 At [15].
[23] Evidence on this topic is a little scant.11 Open-source material from the Police website (advanced by Mr Reid) implies a conviction will not constitute a barrier, unlike a conviction for “specific drugs; dishonesty; violence … sexual crimes; [or] recent or multiple drink-driving convictions”. An email exchange with the Police (again, tendered without objection) tends to support this conclusion. In late November 2018, Mr Reid was told by Police National Headquarters each application is “dealt with on its merits”, though a recent conviction of this nature “would certainly be relevant to NZ Police progressing … an application”.
[24] On one interpretation, Ms Pati may have to wait. But again, there is no evidence a conviction of this nature is likely to be determinative. That is hardly surprising. The offending is regulatory in nature. And, different from the types of offence considered to constitute an insuperable barrier to an applicant becoming a Police officer.
[25] I am unpersuaded of error. Available evidence suggests a conviction will not disqualify Ms Pati’s from re-applying for Police, but may be relevant, especially for a time. This potential consequence is not out of all proportion to the gravity of the offending.
Result
[26]The appeal is dismissed.
Addendum
[27] This result should not be treated as adverse commentary on Ms Pati’s suitability for the Police. Everything I have read suggests Ms Pati is committed to
11 Even though I adjourned the appeal, part-heard, so Ms Pati could obtain additional evidence; see my Minute of 19 November 2018. Mr Reid invited attention to Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007. I see that case as different: Mr Waight was convicted of drink- driving while a serving Police officer.
becoming a Police officer, and an otherwise law-abiding citizen with a strong sense of civic responsibility.
……………………………..
Downs J
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