Regtien v Auckland Council - [2020] NZHC 2474

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…

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: [2020] NZHC 2474
Decision Date: 22 September 2020

CaseChat Overview and Summary

The appeal in this case is brought by Geraldus Cornelius Regtien against the Auckland Council. The subject of the appeal is a dog destruction order imposed on Mr Regtien following a guilty plea to an offence under the Dog Control Act 1996. The dog, Bro, attacked a domestic animal, resulting in fatal injuries. The appeal focuses on whether the circumstances of the attack were exceptional, thereby warranting a departure from the mandatory destruction order. The court had to determine if the lower court correctly applied the law when it found that the circumstances of the attack were not exceptional, leading to the imposition of the destruction order.

The primary legal issue the court addressed was whether the destruction order was appropriate under section 57(3) of the Dog Control Act 1996. This section mandates the destruction of a dog involved in an attack unless the court finds the circumstances of the offence to be exceptional. The court had to consider whether the attack's circumstances were indeed exceptional and if the lower court's findings were legally sound. Specifically, the court examined whether the attack's circumstances, including the dog being on a lead and the other dog not being on a leash, were exceptional enough to justify not ordering the dog's destruction.

The court held that the destruction order was correctly imposed. It found that the lower court correctly applied the legal principles established in Auckland Council v Hill. The court followed a two-step analysis, first examining the circumstances of the attack and then determining if these circumstances were exceptional. The court concluded that Bro's attack on another dog, despite being on a lead, indicated a lack of control by Mr Regtien. The court found that the circumstances were not exceptional because the risk of future attacks remained, and the unique factors cited by the appellant did not sufficiently mitigate this risk. Therefore, the court upheld the lower court's decision and dismissed the appeal.

The final orders of the court were to dismiss the appeal against the sentence, specifically the destruction order. The court found no error in the lower court's application of the law and its determination that the circumstances of the attack were not exceptional. The court's decision ensures that the mandatory destruction order was correctly imposed to protect public safety.

Orders