Regtien v Auckland Council
[2020] NZHC 2474
•22 September 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000302
[2020] NZHC 2474
BETWEEN GERALDUS CORNELIS REGTIEN
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 21 September 2020 Appearances:
Joanne Price for the Appellant
David Collins and Lanu Faletau for the Respondent
Judgment:
22 September 2020
JUDGMENT OF MOORE J
[Appeal against sentence]
This judgment was delivered me on 22 September 2020 at 2:00 pm
Registrar/ Deputy Registrar Date:
REGTIEN v AUCKLAND COUNCIL [2020] NZHC 2474 [22 September 2020]
Introduction
[1]This is an appeal against a dog destruction order.
[2] On 12 February 2020, Mr Regtien pleaded guilty to being the owner of a dog that attacked a domestic animal under section 57(2) of the Dog Control Act 1996 (“the Act”).
[3] A disputed facts hearing took place in the North Shore District Court to ascertain whether the appellant’s dog had been provoked. On 7 July 2020, Judge A-M J Bouchier rejected Mr Regtien’s version of events and found the facts in the summary of facts were proved.1 She sentenced Mr Regtien to a fine of $550 and reparations of $171.40. She also ordered that his dog be destroyed.
[4] Mr Regtien appeals the sentence, specifically the destruction order, on the basis that counsel had no opportunity to file written submissions in relation to s 57(3) of the Act and the Judge applied the wrong approach to this section.
Facts
[5] On 27 June 2019, Mr Regtien was running with his dog, a husky named Bro. Bro was on a 2.5 m lead. They passed the front of Mr Wallace’s property. Mr Wallace’s small dog was in the driveway. Bro went onto the driveway and seized the other dog in his mouth. Mr Wallace ran toward them and tried to intervene. Bro released Mr Wallace’s dog. Both Mr Regtein and Bro then continued on their way. Because its injuries were unsurvivable, Mr Wallace’s dog was put down later that evening.
[6] At the disputed facts hearing, Judge Bouchier found that during the attack the lead attached to Bro was slack and Bro was not restrained by Mr Regtien.
1 Council v Regtien [2020] NZDC 13214.
Approach to appeal
[7] I must allow the appeal against sentence if I am satisfied that there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.2
District Court decision
[8]On the question of whether the dog should be destroyed, the Judge referred to
Auckland Council v Hill.3 She found that the circumstances were not exceptional:
“[10] The circumstances here are that whilst the dog was on a lead which was clipped to the defendant the dog still managed to, despite that, get to the smaller dog and cause injuries which led ultimately to it having to be put down. That is a situation which because no control was exerted I am of the view, despite counsel’s submissions to me that the other dog was not on a lead, that dog was on its own property and the larger dog, owned by the defendant, went onto the property and commenced the attack. So, despite the fact that it may be unusual for the dog to be tethered to the owner it is still a situation where no control was properly exercised and therefore the circumstances of this case cannot be exceptional.”
Submissions
Appellant submissions
[9] Ms Price, for Mr Regtien, submits that the circumstances of the offence were exceptional, given that Bro was on a lead and Mr Wallace’s dog was not, and it was Mr Wallace’s dog that approached Bro. Because the circumstances were exception it was wrong in law to order destruction.
[10] Further, Ms Price claims that the Judge failed to expressly address the remoteness of risk and the interests of public safety in the future when assessing whether the circumstances of the attack were exceptional. She submits that the likelihood of a repetition, given the unusualness of the circumstances of the attack, are sufficiently remote as to meet the exceptionality test. This was not a failure to leave a gate open or not fit a muzzle, nor was it a failure to take a necessary precaution. Ms Price also emphasises the fact that Bro was subsequently assessed by a dog
2 Criminal Procedure Act 2011, s 250.
3 Auckland Council v Hill [2020] NZCA 52.
behaviourist and trainer. He did not lunge at passing animals or people and listened to commands during the assessment. In the absence of further training, it is submitted that he is likely to behave as he did in the assessment and that his behaviour does not cause concern for public safety.
Respondent submissions
[11] Mr Collins, for Auckland Council, submits that the Judge was entitled to decline to waive the destruction order, given the clear failure of the appellant to exert control over his dog such that the lead was kept slack allowing him to enter Mr Wallace’s property and attack a much smaller dog. The fact that Mr Wallace’s dog was not on a leash at the time is not material given the circumstances and therefore does not render the circumstances exceptional.
[12] Mr Collins notes that s 57(3) of the Act proceeds on the basis that an attack itself establishes a risk that the dog might attack again in similar circumstances. The Judge appropriately applied the test in Hill and did not need to expressly state that there is a risk of a future attack, particularly where that risk is self-evident given the occurrence of the attack which is the subject of the prosecution.
[13] As was observed in Hill, even a one-off failure by an otherwise responsible dog owner is all too common and does not render the circumstances of the attack exceptional.
Discussion
[14] Section 57(3) provides that where an offence is committed under s 57(2), 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.
[15] The correct approach to s 57(3) was resolved by the Court of Appeal in Hill. It involves a two-step analysis. First, the circumstances of the attack itself should be considered. The circumstances do not extend beyond the time of the attack. Secondly, the court must ask whether the circumstances of the offence were exceptional and do
not warrant destruction of the dog. The Court is not required to engage in the difficult, if not impossible, task of enquiring into the psychology of the dog and predicting future behaviour. The attack of itself establishes that there is a risk of the dog attacking again in similar circumstances; the question is whether the risk is immaterial because the circumstances of the attack were exceptional and a repeat of those circumstances is most unlikely.4 An example of exceptional circumstances was given by the Court. Exceptionality might arise if the dog was protecting its owner against the attack of another dog. However, the Court expressly observed that a “one off” failure by an otherwise responsible owner to maintain effective control of a dog is not an exceptional circumstance.5
[16] Circumstances which were not exceptional at the time of an attack cannot retrospectively become exceptional as a result of post-attack events. Thus the s 57(3) test cannot be met by the owner assuring the Court they will take extra steps to control or train the dog in future.6 The purpose of the provision is to protect public safety by ensuring that the dog does not commit future attacks.
[17]Circumstances which have been found not to be exceptional following Hill
include:
(a)a dog’s partial blindness and the neighbour letting him out of his property, where the blindness and neighbourly dispute was ongoing;7 and
(b)a dog escaping its owners’ property when under construction and when the gate was left open by a third party.8
[18]I now apply those principles to the facts as found by the Judge.
4 Auckland Council v Hill, above n 3, at [65] and [75].
5 At [78]
6 At [80].
7 Risdom v Auckland Council [2020] NZHC 905.
8 Ingle v Auckland Council [2020] NZHC 1164.
Step one: What happened?
[19] First, the Judge found that Bro was the aggressor in that he entered Mr Wallace’s property and attacked Mr Wallace’s dog resulting in serious and fatal injuries. Implicitly, if a dog on a leash is able to attack another animal it cannot be said to be under control. Having heard the evidence, the Judge was best placed to take the view that despite the use of a lead, Mr Regtien failed to exert sufficient control to prevent Bro from entering Mr Wallace’s property and attacking his dog.
Step two: Are those circumstances exceptional such that they do not warrant destruction of the dog?
[20] In this case, there are no exceptional circumstances. Bro went onto another’s property. Despite the appellant’s assurances, I do not consider the way that Bro behaved during the behaviour assessment to be relevant. This is comparable to the retrospective event the Court of Appeal determined could not meet the exceptionality test.
[21] I also cannot accept Ms Price’s submission that the circumstances surrounding the fatal attack are so unique that there is no realistic prospect they will never again be repeated. The factors she asked me to take into account on this point included that it was dark, Bro was on a tight lead, the other dog approached Bro and the substantial size differential between the two dogs. None of these factors, either on their own or in combination, are in my view so unlikely to be repeated that the circumstances are exceptional. As the Court said in Hill:9
“… unless the Court is satisfied that the attack occurred in truly exceptional circumstances that are unlikely to be repeated, a destruction order is required.”
[22] Taking into account all of the circumstances I cannot be satisfied that Bro would not harm another animal in the same or similar circumstances. I consider it is not “most unlikely” that Bro would act in the same way if he encountered (or was approached by) another smaller domestic animal whilst not being effectively controlled. The risk is maintained.
9 Auckland Council v Hill, above n 3, at [84].
[23] For these reasons and despite Ms Price’s forceful submissions to the contrary, I find that the Judge was correct to determine that the circumstances were not exceptional and that the destruction order was properly made.
Result
[24]The appeal is dismissed.
Moore J
Solicitors:
Ms Price, Auckland Auckland Council, Auckland
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