Pehi v Auckland Council
[2018] NZHC 2154
•21 August 2018
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 McLeod Park in Te Atatu South. The complainant observed the defendant’s dog sitting in the grass. The complainant’s dog Wesley saw the defendant’s dog and barked a little bit. The complainant walked close to the defendant’s dog but was scared, so picked up her pace and tried to avoid and walk around the defendant’s dog. The defendant stood close to her dog, which was on a long lead and was not wearing a muzzle.
Without warning the defendant’s dog launched itself at Wesley and attacked him, grabbing him on his back, sides and hips. The defendant’s dog held onto the complainant’s dog for a long time and would not let go. The defendant yelled at her dog to let go. The defendant grabbed the bottom of Wesley’s lead to pull Wesley out of the defendant’s dog’s mouth. When the defendant’s dog finally let go, the defendant swung the lead violently and threw Wesley at the complainant. The complainant caught Wesley in her arms. The defendant then tried to throw a punch at the complainant, but missed and only made light contact.
The defendant began shouting and swearing at the complainant saying “pick up your dog” and calling her stupid. The complainant felt intimidated and was worried about Wesley so walked away. The defendant continued yelling and swearing at the complainant.
The complainant took Wesley to AVS Vets on Great North Road for treatment. He was transferred to the Carrington Road After Hours Vets for overnight intensive care. Wesley sustained serious wounds including multiple deep puncture wounds and multiple pelvis and spinal fractures requiring surgery.
3 Auckland Council v Pehi, above n 1.
District Court decision
[11] After setting out the factual background, Judge Jelas noted that Missy is a companion to Ms Pehi’s adult son who has Down Syndrome.4 The Judge also noted that since the offending Ms Pehi had been proactive in taking Missy to a dog trainer and ensuring that she wears a muzzle when out in public places.5
[12] Ultimately, the Judge considered that there were no exceptional circumstances.6 The reasons for this were as follows:
[6] … In terms of the exceptional circumstances relating to the offence itself, I accept your dog has never previously been involved in an attack of any type upon a person or animal; however, I cannot find anything exceptional about what occurred on this day. It was simply an instance of the dog being unmuzzled out in public and, for whatever reason, attacking a smaller dog. While it is agreed that the chihuahua barked at your dog, that alone is not exceptional; it is very common for dogs to bark at each other when they are out in public for whatever purpose. The real problem here was the loss of the control of the dog and the fact the dog was not muzzled.
Issues
[13]There are four issues I must consider:
(a)Is there jurisdiction to widen the scope of the appeal so that it includes an application for a discharge without conviction when no such application was made in the District Court?
(b)Should Ms Pehi’s affidavit sworn on 31 July 2018 be admitted?
(c)If the scope of the appeal can be widened, should Ms Pehi be discharged without conviction?
(d)Is the statutory test in s 57(3) of the Act satisfied?
4 Auckland Council v Pehi, above n 1, at [6].
5 At [6].
6 At [7].
Jurisdiction
[14] Mr Mitchell, on behalf of Ms Pehi, submits that this Court can consider an application for Ms Pehi to be discharged without conviction if the interests of justice determine that this is the proper way to proceed.
[15] Mr Govind, for the Council, submits that this Court should not consider the application for a discharge without conviction as the application was never made in the District Court, and there has been no miscarriage of justice. In any event, he submits the test for a discharge is not satisfied.
[16] The question is whether it is permissible to allow Ms Pehi to appeal her conviction when she has not made a formal application. Her notice of appeal was confined to the making of the destruction order.
[17] Ultimately, I am satisfied that it is in the interests of justice to treat this appeal as encompassing an appeal against conviction and to entertain the application for a discharge without conviction. There is no prejudice to the Council. Although Mr Govind opposed such a course, he addressed the merits in his written submissions. He was not taken by surprise.
Should Ms Pehi’s affidavit be admitted?
[18] Having regard to the application for a discharge without conviction, Ms Pehi has sworn an affidavit dated 31 July 2018 in support. She also relies on the affidavit to bolster her “exceptional circumstances” submission.
[19] Section 335 of the Criminal Procedure Act 2011 (CPA) allows the Court to receive new evidence in an appeal if it considers it necessary or expedient in the interests of justice.
[20] Generally, new evidence will need to be credible and fresh.7 But the overriding criterion is the interests of justice.8
7 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2004] 1 NZLR 638 (CA) at
[22].
8 Lundy v R, above n 7, at [120]; R v Bain, above n 7, at [22].
[21] In her affidavit, Ms Pehi seeks to supplement the description of events in the agreed summary of facts. She also refers to a discussion with a Council dog ranger about the use of a muzzle for Missy which took place before the events on 6 June 2017.
[22] Mr Mitchell makes an oral application to admit the affidavit. He relies on the interests of justice. He also tells the Court that the substance of what is now in Ms Pehi’s affidavit was before the District Court by way of submission.
[23] Mr Govind opposes the admission of the affidavit on the basis that it is not fresh evidence.
[24] The evidence appears to be credible. It is arguably evidence that was before the District Court, albeit by way of submission. It could with reasonable diligence have been advanced by way of affidavit in the District Court. However, I admit the evidence in the interests of justice.
[25] There is the following evidence in Ms Pehi’s affidavit in relation to the circumstances of the offence:
I would like to clarify what happened on the day of the attack. The other dog was yapping at Missy as both dogs came together. They passed without any problems occurring. The other dog then came back on its lead towards Missy who was beside me. I was holding onto Missy by her lead. The owner of the other dog let go of her lead causing her dog to run past us in a big circle. Missy took off after her causing the lead to seriously restrict and compress my hand causing me to let go of the lead. The attack occurred. I ran up to both dogs, grabbed Missy’s lead and I screamed to the lady owner of the other dog, ‘grab the lead, grab the lead’ – referring to the dog’s lead.
The Chinese owner froze and covered her eyes with her hands. I then grabbed her dog’s lead as well and I ended up holding both leads and keeping both dogs apart. I went up to the other owner and I shouted to her, ‘grab the lead’ as I struggled up to her with both dogs in tow. She was just screaming with her hands over her eyes and I waved the lead in front of her face and she snapped out of her temporary paralysis and grabbed her dog’s lead.
Should a discharge without conviction be granted?
[26] The jurisdiction of the Court to discharge without conviction is conferred by ss 106 and 107 of the Sentencing Act, which relevantly provide as follows:
106 Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2)A discharge under this section is deemed to be an acquittal.
(3)A court discharging an offender under this section may—
(a)make an order for payment of costs or the restitution of any property; or
(b)make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
(i)loss of, or damage to, property; or
(ii)emotional harm; or
(iii)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property
(c)make any order that the court is required to make on conviction
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[27] In deciding to discharge a defendant without conviction, a three-step analysis is required:9
(a)Assessing the gravity of the offending. That means first looking at all the relevant circumstances of the offending and of the offender, and then standing back and deciding how serious the offending is;
(b)Determining the direct and indirect consequences of a conviction for the offender; and
(c)Determining whether those consequences are out of all proportion to the gravity of the offending.
9 Z (CA447/12) v R [2012] NZCA 599 at [8]-[9].
[28] Mr Govind submits that Ms Pehi is seeking a discharge without conviction in an attempt to get around the mandatory destruction order, based on the judgment of Wylie J in Fountain v Auckland Council.10 In that case, the appellant had been granted a discharge without conviction in the District Court. The District Court Judge also made a destruction order. In the High Court, Wylie J found that there were no exceptional circumstances of the offence.11 Wylie J then said:
[62] It follows that, were I considering Bear’s fate following a conviction of Ms Fountain as his owner under s 57(2) of the Act, I would be required, pursuant to s 57(3), to order Bear’s destruction.
[63] This brings me back to s 106(3)(c) of the Sentencing Act. That provision confers a discretion on the Court. As a result of the discharges without conviction, the otherwise mandatory orders the Court would have been required to make in this case are overlaid with a discretion. The discretion is unfettered, and the Court is entitled to take into account events which have occurred since Bear attacked the cat and the chickens. It cannot consider those matters under s 57(3) because the enquiry called for under that provision is limited to the circumstances of the offence.
[29]On all the evidence, Wylie J was:
[65] … persuaded that I should exercise my discretion under s 106(3)(c) not to make the order for Bear’s destruction that I would otherwise have been required to make given my view as to the absence of exceptional circumstances. I am not persuaded that an order for Bear’s destruction is either appropriate or necessary …
[30] I accept that in the grand scheme of things, the dog attack in this case is not the most serious of offending when compared to other sorts of offending. That is reflected in the maximum penalty for the charge.12 However, the injuries to Wesley were significant as is apparent both from the description in the summary of facts of those injuries and also from the size of the veterinary surgeon’s account, namely $15,000. This all occurred as a consequence, as Judge Jelas said, of a situation where Ms Pehi lost control of her unmuzzled dog which then attacked a smaller dog.
[31] Mr Mitchell submits that the crux of the application is that Missy is the best friend and guardian of Ms Pehi’s 32-year-old son who has Down Syndrome. In her
10 Fountain v Auckland Council [2018] NZHC 591.
11 At [61].
12 Dog Control Act, s 57(2).
affidavit, Ms Pehi says Missy plays a huge role in her son’s life. Mr Mitchell submits that the effects of losing his best friend will be nothing less than devastating for him.
[32]I accept that a dog destruction order is a likely consequence of conviction.
[33] Unfortunately, it cannot be said that effects on family members are out of all proportion to the gravity of the offending. There is no evidence to suggest that Missy is a registered companion or therapy dog or a certified disability assist dog. In the end, every family whose dog is destroyed following a conviction is likely to suffer a sense of loss and grief.
[34] The application for a discharge without conviction is refused. The appeal against conviction is dismissed.
Exceptional circumstances?
[35] Mr Mitchell submits that the facts involving Missy and the incident involving Wesley are unusual. He says that the circumstances were impossible to prevent.
[36] Mr Mitchell also submits that Ms Pehi did not muzzle Missy on that day because she had been advised by the Council dog ranger that the muzzle was unsuitable, and she was threatened by the officer with prosecution. Mr Mitchell notes that Missy had not previously bitten any animal or human up until the time of the incident.
[37] Mr Govind submits that Judge Jelas was correct to conclude that the circumstances of the offence were not exceptional.
The law
[38] This is a general appeal. Ms Pehi is entitled to judgment in accordance with the opinion of this Court.13
[39]Section 57(3) of the Act provides:
13 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
(3)If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack described in subsection (1) and that 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.
[40] The Court is, therefore, compelled to make an order for destruction of the dog unless:14
(a)The circumstances of the offence were exceptional; and
(b)The circumstances do not warrant destruction of the dog.
[41] This is a two-stage test. In Halliday v New Plymouth District Council, Heath J commented that the term “exceptional” creates “a very difficult test for a dog owner to surmount and requires the circumstances to be unique, special or substantially unusual, though not necessarily extreme”. 15 Heath J identified the following factors as relevant to this issue:16
(a)The nature of the attack (including the fact that injury resulted);
(b)The appellant’s history as an owner of the dog;
(c)Whether the dog had behaved in this way in the past;
(d)The steps taken by the appellant to prevent such an attack from occurring; and
(e)The reason why the steps taken did not prevent such an attack occurring on the occasion in question.
14 Anand v Auckland Council [2013] NZHC 445 at [12].
15 Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005 at [40].
16 At [48].
[42] These factors are not exhaustive. But, events which post-date the offence cannot be taken into account at this stage because the circumstances of the offence cannot include circumstances that have not yet occurred.17
[43] In Easthope v Auckland Council, the Court of Appeal recently commented that “we doubt that any greater assistance can be provided to first instance courts in assessing exceptional circumstances than via the non-exhaustive list of indicative factors in Halliday”.18
[44] If exceptional circumstances do exist, however, the second stage of the test involves considering whether these circumstances mean that the destruction of the dog is not warranted. This involves a predictive assessment of whether the dog is likely to behave in a similar way in the future.19 As Brewer J explained in Xu v Auckland Council, this enquiry focuses “on the dog’s situation after the attack and, in particular, on whether the dog is likely to behave in a similar way in the future”.20
Discussion
[45] Ms Pehi has the burden of satisfying the Court that the circumstances were exceptional.
[46] Ms Pehi has not discharged that burden. I am satisfied that the circumstances of the offence were not exceptional.
[47] I accept that Missy has no history of behaving in this manner. Ms Pehi does not have previous infringement notices in relation to Missy. But a situation where an unmuzzled dog attacks another dog in a park without warning cannot be said to be exceptional. Ms Pehi took no steps to prevent the attack from occurring. She did not muzzle Missy, as she was required to do.
[48] I note that in her affidavit Ms Pehi makes a statement that arguably contradicts part of the summary of facts that Ms Pehi accepted when she pleaded guilty. In the
17 At [43].
18 Easthope v Auckland Council [2018] NZCA 234.
19 Easthope v Auckland Council [2017] NZHC 3142 at [9].
20 Xu v Auckland Council [2015] NZHC 3024 at [11].
agreed summary of facts, there is no reference to Wesley’s owner letting go of his lead, whereas in her affidavit Ms Pehi deposes that “The owner of the other dog let go of her lead causing her dog to run past us in a big circle.” Even accepting the statement in Ms Pehi’s affidavit, it does not assist her in relation to the circumstances of the offence.
[49] In relation to the muzzle, Ms Pehi’s explanation was that she was told by the Council dog ranger not to put the muzzle on Missy. That is not what the Council records say. Mr Pehi was told not to put a tight nylon muzzle on Missy and not to exercise her excessively when the muzzle is on, as Missy would not be able to breathe properly. Ms Pehi should have used another muzzle.
[50] Having regard to my decision that the circumstances of the offence were not exceptional, it is not necessary to consider the second step.
Result
[51]The appeal is dismissed.
Gordon J
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