Pehi v Auckland Council - [2018] NZHC 2154

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-185

[2018] NZHC 2154

BETWEEN
MARY PEHI

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 21 August 2018

Appearances:

C Mitchell for Appellant

A R Govind & V L S Rewi for Respondent

Judgment:

21 August 2018

ORAL JUDGMENT OF GORDON J

Solicitors: Auckland Council, Auckland
Counsel; C Mitchell, Takapuna, Auckland

PEHI v AUCKLAND COUNCIL [2018] NZHC 2154 [21 August 2018]

Introduction

[1] On 10 April 2018, the appellant, Ms Pehi, pleaded guilty to one charge under s 57(2) of the Dog Control Act 1996 (the Act) of being the owner of a dog that attacked another dog.

[2] On 7 May 2018 in the District Court at Waitakere, Judge Jelas sentenced Ms Pehi to reparation of $4,580 and ordered the destruction of her dog, Missy.1

[3] Ms Pehi’s notice of appeal dated 2 June 2018 is expressly stated to only be against the order for the destruction of Missy. However, Ms Pehi now seeks the leave of this Court to widen the appeal to include a general appeal against conviction and she makes an application to be discharged without conviction pursuant to s 106 of the Sentencing Act 2002.

[4]The Auckland Council (the Council) opposes the appeal.

Factual background

[5] At approximately 10 am on 6 June 2017, Ms Pehi was walking her dog on a lead in a local park in Te Atatu. Missy is an American Pitbull Terrier.

[6] As American Pitbull Terriers are classified as menacing under the Act, Missy is required to wear a muzzle when in public places.2 On this occasion, Missy was not muzzled.

[7] The complainant was also walking her dog, a chihuahua called Wesley, on a lead in the same park.

[8] Upon seeing Missy, Wesley “barked a little bit”. Both Ms Pehi and the complainant lost control of their dogs. Missy attacked Wesley, holding Wesley in her mouth.

1 Auckland Council v Pehi [2018] NZDC 11910.
2 Dog Control Act 1996, s 33C(1); sch 4, pt 2; s 33E(1)(a).

[9] Ms Pehi was instrumental in ending the attack by physically disentangling Wesley from Missy’s mouth. However, the aftermath of the offending was summarised by Judge Jelas as follows:3
[4] … The victim, it would appear, was unable to take any positive steps as she was overwhelmed by the situation that was before her. The summary notes, however, after you did disentangle the two dogs and the victim’s dog was back in her arms, you then tried to throw a punch at the victim. You then shouted and swore abuse at her.

[5] The victim’s dog was severely injured. It had multiple wounds and it received veterinarian treatment overnight where it was placed in intensive care. A veterinarian bill totalling $15,000 has been incurred.

Facts in more detail

[10]The agreed summary of facts contains the following:

On 6 June 2017 at approximately 10.00 am the complainant was walking her Chihuahua “Wesley” on the lead through…

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: [2018] NZHC 2154
Decision Date: 21 August 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Pehi v Auckland Council was heard, where the appellant, Ms. Pehi, appealed against the order for the destruction of her dog, Missy, who attacked another dog. The court considered four issues: (a) whether there was jurisdiction to widen the scope of the appeal, (b) whether Ms. Pehi's affidavit should be admitted, (c) whether a discharge without conviction should be granted, and (d) whether the statutory test in s 57(3) of the Dog Control Act 1996 was satisfied. The court concluded that the appeal could be widened to include an appeal against conviction and that the affidavit should be admitted in the interests of justice. However, the application for a discharge without conviction was refused as the consequences of a conviction were not out of proportion to the gravity of the offence. Finally, the court held that the circumstances of the offence were not exceptional, and the appeal was dismissed. The order for the destruction of Missy was upheld.

Orders