Price v Auckland Council
[2023] NZHC 1733
•5 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-317
[2023] NZHC 1733
UNDER Section 244 of the Criminal Procedure Act 2011 IN THE MATTER
of an appeal against sentence
BETWEEN
DARREN CHRISTOPHER PRICE
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 3 July 2023 Appearances:
M Taylor-Cyphers for Appellant
D Collins and B Magill for Respondent
Judgment:
5 July 2023
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Wednesday, 5 July 2023 at 2:30 pm.
Registrar/Deputy Registrar
Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: M J Taylor-Cyphers, Auckland
PRICE v AUCKLAND COUNCIL [2023] NZHC 1733 [5 July 2023]
[1] On 17 June 2021, Darren Christopher Price entered a guilty plea to a charge under s 57(2) of the Dog Control Act 1996 (the Act) for being the owner of a dog, a Labrador Retriever cross named Johnny Cash (Cash), that attacked a domestic animal, a Jack Russell Terrier named Zac.
[2] On 27 July 2022, Judge Fitzgibbon refused an application for a discharge without conviction.1 Mr Price was convicted, fined $750 (50 per cent payable to Council) and ordered to pay $715.50 in veterinary costs together with $500 in emotional harm reparation.2 The Judge also made an order under s 57(3) of the Act for the destruction of Cash.3
[3] On 6 September 2022, Mr Price filed an appeal in the High Court against the order for destruction of Cash. The appeal was called in the High Court on 23 September 2022, 17 February 2023 and 17 March 2023. On 5 May 2023, a substantive hearing was allocated for 3 July 2023.
[4] On 12 June 2023, new counsel for Mr Price advised the Court that Mr Price now wished to file an appeal against the refusal to grant him a discharge without conviction in addition to the appeal against the order for destruction of Cash filed nine months earlier. On 13 June 2023, Downs J directed Mr Price to file an amended notice of appeal and an affidavit explaining the delay in relation to the conviction appeal. Those documents were subsequently filed.
[5]I heard from the parties at a substantive hearing on 3 July 2023.
Leave to file out of time
[6] A notice of appeal against conviction must be filed within 20 working days after the date of sentence for the conviction appealed against,4 although the appeal court may extend the time allowed for filing.5
1 Auckland Council v Price [2022] NZDC 14412.
2 Auckland Council v Price [2022] NZDC 23585 at [33].
3 At [33].
4 Criminal Procedure Act 2011, s 231(2).
5 Section 231(3).
[7] Mr Price asks the Court to extend time because he says he did not receive complete legal advice. Mr Price says that his primary focus was on his dog, and he did not speak to his lawyer at the relevant time about any appeal against conviction.
[8] Mr Price says that he now understands, as he did not previously know, that his conviction might stop him from taking up work as a security guard in the future. He says it is a job he has done for a number of years and hopes to return to. In his affidavit, Mr Price attaches a printout from a website that indicates that to be a licensed security guard an applicant cannot have a criminal record. He also understands now, as did not previously, that if he had been granted a discharge without conviction, the outcome for Cash might have been different.
[9] In the circumstances, I decline to extend the time for filing an appeal against conviction. The ground relied upon by Mr Price, that he now understands that his conviction might stop him from being a security guard in the future, is not a strong one. The website printout on which he relies, is quite simply, wrong. A conviction under s 57(2) of the Act is not a disqualifying offence in terms of s 62 of the Private Security Personnel and Private Investigators Act 2010. It is a regulatory offence which does not invoke notions of violence or dishonesty, which are disqualifying.
[10] It seems that an appeal against conviction was seen as a means of challenging the dog destruction order by way of a sidewind because of High Court authority that there is no jurisdiction to impose a dog destruction order under s 57(3) if the owner is discharged without conviction of an offence under s 57(2). There are, however, no viable grounds advanced for a discharge without conviction. Leave to file out of time is declined.
Dog destruction order
[11] Under s 57(2) it is a strict liability offence to be the owner of a dog that attacks a domestic animal. Section 57(3) of the Act provides that where an offence is committed under s 57(2), the Court 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”.
[12] In her sentencing remarks, the Judge set out the two-step approach involved. That approach requires the Court to first identify the circumstances of the offence and then go on to ask if those circumstances were exceptional and do not warrant the destruction of the dog. The Judge then discussed the leading authority of Auckland Council v Hill,6 before summarising the competing submissions of the parties.
[13] The Judge found that the offending was due to a lack of control of Cash. He slipped his collar, which was not secure. That, in turn, allowed him to escape and chase Zac. He caught Zac and locked onto his back with his teeth for approximately two minutes. Cash only let go when hit by a kayak oar and a water bottle. Zac was seriously wounded and Zac’s owner also sustained scratches and lacerations. The Judge found the attack could not be regarded as having been provoked by Zac by an initial interaction between Cash and Zac in which Zac had walked up to Mr Price and his partner, who were seated on a bench outside public toilets on Waiake Beach.
[14] The Judge concluded that the circumstances giving rise to Cash’s attack on Zac did not amount to exceptional circumstances that justified a departure from the requirement to order the destruction of the dog.
[15] The appeal against the dog destruction order is an appeal against sentence. The appeal court must allow the appeal if satisfied:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.7
[16] Counsel for Mr Price invites the Court to find the circumstances of the offence exceptional and the destruction of Cash unwarranted. She submits that what happened before the attack was important. Zac was off-lead and Mr Price had several times asked its owner to call him away. She submits that the purpose of the Act is deterrence
6 Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.
7 Criminal Procedure Act, s 250(2).
of irresponsible behaviour of dog owners and here there was no such behaviour on the part of Mr Price. Further, there is no history that Cash has attacked before.
[17] Counsel seeks to place blame on Zac’s owner for letting him run off-leash and failing to comply with reasonable requests to call him away. She submits this is exceptional and the Judge fell into error in not recognising there was, in fact, fault on both sides.
[18] I am of the view that the Judge did not fall into error. The leading authority is Auckland Council v Hill.8 The Court of Appeal confirmed the focus of s 57(3) is to prioritise public safety and prevent dog attacks on the public.9 It outlined the approach to take as follows:
[4] Where the owner of a dog is convicted of the strict liability offence created by s 57(2), an order under s 57(3) for destruction of the dog will normally follow.
[5] The first step in applying s 57(3) is to identify the relevant circumstances of the offence. What happened? This inquiry should focus on the immediate circumstances of the attack itself. The dog’s history does not form part of the circumstances of the offence. Events that occur after the offence is complete — that is, after the attack occurs — also are not circumstances of the offence. The phrases “circumstances of the offence” and “circumstances of the attack” are equivalent in this context.
[6] The second step is for the court to ask whether the circumstances of the offence were exceptional and do not warrant destruction of the dog. Section 57(3) proceeds on the basis that the attack of itself establishes that there is a risk of the dog attacking again in similar circumstances. The focus is on whether those circumstances were sufficiently exceptional that that risk is remote, and does not justify destruction of the dog in the interests of public safety.
[19] The Court held that what is exceptional is “an unusual or one-off occurrence that is most unlikely to be repeated”.10 The Court provided the following guidance on what circumstances could be considered exceptional:
[75] This test requires the court to focus on the circumstances of the offence/attack, and the risk that similar circumstances will occur in the future. It does not require the Court to undertake the difficult, if not impossible, task of inquiring into the psychology of the dog and making predictions about how the dog is likely to behave in the future. The inquiry contemplated by the Act
8 Auckland Council v Hill, above n 6.
9 At [65].
10 At [64].
is in our view much simpler. Section 57(3) proceeds on the basis that the previous attack establishes that there is a risk of the dog attacking again in similar circumstances. So the focus is on whether those circumstances were sufficiently exceptional that that risk is remote and does not justify destruction of the dog in the interests of public safety.
[76] If for example the owner of dog A was rushed or attacked by dog B, and dog A attacked dog B in order to protect its owner, a Judge might well conclude that the circumstances were exceptional and do not warrant the destruction of dog A.
[77] It is not open to the dog’s owner to argue that the dog can be expected to behave differently in similar circumstances in the future — for example, as a result of post-attack training. Rather, the focus is on the risk that the dog poses to people and animals assuming it can be expected to behave in the same way in similar circumstances in the future.
[78] Nor is it open to the owner to argue that the test is met because the attack was caused or contributed to by a one-off failure by an otherwise responsible owner to maintain effective control of the dog. Failures to control a dog are not exceptional circumstances of a kind that indicate that destruction of the dog is not warranted. The case law under the Act is replete with examples of precautions that ought to have been taken but were omitted, or were undermined by the actions of innocent third parties (failing to properly shut doors or gates is a common theme), or that failed for a host of other reasons … It would be inconsistent with the scheme of the Act and the purpose of s 57(3) to treat such failures as a justification for not making an order for destruction of a dog.
[20] The Judge appropriately characterised the attack as being caused by Mr Price’s failure in allowing Cash to slip from his collar and attack Zac. The Judge was also correct to characterise the circumstances of the offence as falling short of the conduct required to meet the high threshold of provocation.
[21] There was an initial interaction between Cash and Zac before Zac was retrieved by his owner from outside the toilet block where Mr Price and his partner were seated with Cash. Zac’s owner then put Zac down on the sand and they both walked away towards Waiake Street. Zac and his owner had walked approximately 15 metres away before the attack occurred. This cannot be exceptional. A dog approaching a person at a beach, being retrieved by its owner and then walking off down the beach falls short of an unusual or one-off occurrence that is most unlikely to be repeated.
[22] Mr Price complains that Zac was off-leash, but the Auckland Council Policy on Dogs, which is applicable to Waiake Beach, allows dogs to be off-leash at that time of year, being outside the summer season.
[23] Cash’s conduct and behaviour prior to or after the attack must also be put to one side as it is not relevant to the circumstances of the offence. The owner’s attachment to the dog is also not relevant to the statutory test.
[24] Some people may view the statutory test as harsh and consider that both the dog’s behavioural history and the owner’s attachment to it should be able to be taken into account, but that is not the pathway Parliament has chosen to deal with dogs who attack persons or domestic animals.
[25]The appeal against the dog destruction order must be, and is, dismissed.
Woolford J