Sharma v Auckland Council
[2023] NZHC 1755
•15 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-542
[2023] NZHC 1755
BETWEEN AMITESH KUMAR SHARMA
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 5 December 2023 Appearances:
T A Hwang for Appellant J B Carter for Respondent
Judgment:
15 December 2023
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 15 December 2023 at 3.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Queen City Law, Auckland
J B Carter, Auckland Council
SHARMA v AUCKLAND COUNCIL [2023] NZHC 1755 [15 December 2023]
[1] This is an appeal against an order for destruction of a dog named Kaiser made by Judge K Tan in the Papakura District Court on 13 September 2023.1 After entering guilty pleas to two charges brought under ss 33E(1)(a) and 57(2) of the Dog Control Act 1996 (the Act), the appellant was convicted of the offences of:
(a)being the owner of a dog that attacked a domestic animal; and
(b)being the owner of a dog that failed to comply with the effects of a menacing classification.
[2]Judge Tan imposed the following sentence on the appellant:2
(a)a total fine of $675 in respect of the two charges;
(b)emotional harm reparation of $1,200 to be paid to the victim dog owner;
(c)a further sum of $498.23 to be paid as reparation for the vet expenses paid by the victim dog owner for injuries to his dog;
(d)$40 for medical bills incurred by the victim dog owner not covered by ACC;
(e)$56 for the costs of Auckland Council; and
(f)an order for the destruction of Kaiser pursuant to s 57(3) of the Act.
[3] Section 57(3) of the Act provides that if the Court is satisfied that the dog has committed an attack on a domestic animal such as described in s 57(1) and the dog has not been destroyed, the Court must make an order for the destruction of the dog unless it is satisfied the circumstances of the offence were exceptional and do not warrant destruction of the dog. Judge Tan was not satisfied that there were such exceptional circumstances.
1 Auckland Council v Sharma [2023] NZDC 20024.
2 At [8] and [34].
[4]The appellant submits that the District Court Judge:
(a)wrongly declined to consider relevant evidence that is not properly excluded under the principles discussed in Auckland Council v Hill;3
(b)wrongly applied Hill to determine that a combination of factors cannot form exceptional circumstances;
(c)erroneously ruled that “play gone wrong” cannot form exceptional circumstances; and
(d)misinterpreted and misapplied Hill and thereby failed to give effect to the statutory purposes of the Act.
[5] The appellant seeks a finding in this Court that destruction is not warranted in terms of s 57(3).
The offending
[6] Judge Tan described the circumstances of the offence and the affidavit evidence that Mr and Mrs Sharma relied upon to substantiate that there were exceptional circumstances that day.
[7] The dog in question, Kaiser, is a nine-year-old spayed female white and black-coloured Alaskan Malamute. Kaiser is a beloved dog of Mr and Mrs Sharma. They also own a male, white-coloured Siberian husky called Shady. Mr Sharma is the registered owner of both dogs.
[8] The events occurred on 17 October 2022 at approximately 5.30 pm at Turua Rise, Karaka. The complainant was 16 years old and taking his dog Mary (a 10-year-old Scottish terrier) for a walk on a leash towards Turua Rise. As he walked Mary along his driveway towards the footpath of Turua Rise, he heard shouting. When
3 Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.
he turned around, he saw Kaiser and Shady running towards him. Those dogs had escaped through the open door of their garage.
[9] There is a dispute about whether Kaiser engaged in an initial greeting or play with Mary (this was not in the summary of facts, nor was it consistent with the events as described by the complainant, but this is Mr Sharma’s allegation). Putting that to one side for now, the summary of facts records that Kaiser bit Mary on the lower part of her body and continued to attack, latching on to Mary’s rear left side. Mary rolled onto her side and yelped. The complainant went to pick up Mary around her chest area to get her away, but Kaiser was still holding on. The complainant felt pain in his right index finger but remained focused on Mary. The defendant then arrived at the scene and took control of Kaiser, returning home with both dogs.
[10] As a result of the attack, Mary received puncture wounds to her lower body that required vet treatment and stitches to the main wound area. The complainant received a bite wound to his right index finger which sustained a fracture. He also sustained a bite wound to his lower right arm and received medical treatment. Kaiser was seized and impounded, then released on strict conditions pending the outcome of the prosecution.
[11] The appellant seeks to rely on further affidavit evidence explaining the exceptional nature of the circumstances at that time, and the causative relationship of those circumstances with the attack. In particular:
(a)Mrs Sharma was sick that day (the sickest she had ever been in her life);
(b)Mrs Sharma was unable to walk Kaiser that day;
(c)Kaiser could not go to doggy daycare;
(d)Kaiser’s dog walker was unavailable that day to walk Kaiser;
(e)Kaiser was not walked at all, when normally she is walked twice a day;
(f)Kaiser was confined in the home all day;
(g)Mr Sharma was stuck at their café business as he was understaffed and could not walk Kaiser or take Mrs Sharma to the hospital or doctors;
(h)Mrs Sharma forgot to shut the internal garage door and does not even recall how or when it was opened;
(i)it was raining and dark which meant Kaiser could not hear Mr Sharma;
(j)when the garage door opened, Kaiser immediately ran out and found Mary and the complainant, rushed to Mary to play, but Mary became frightened because of his size, resulting in the “play gone wrong” and injuries; and
(k)the complainant, who was walking Mary, had earphones and a hoodie on and could not really see through the rain and dark. He tried to pick up his dog Mary during the “play gone wrong” and was bitten by Mary, not Kaiser.
[12] The appellant also sought to rely on other affidavits and letters in support to substantiate that Kaiser does not show, and has not shown, violent or aggressive tendencies before. Those testimonies say (with supporting photos evidence) that Kaiser is playful, well-behaved and able to be trusted with babies, family, friends, the dog walker, and at doggy daycare. This is also reflected in Kaiser’s behaviour when animal control came to seize her. She was submissive and fully compliant throughout that process.
District Court decision
[13] The Judge analysed the legislative requirements with reference to the Court of Appeal’s decision in Hill.
[14] Section 57(2) of the Act is a strict liability offence, which means the prosecution is not required to establish any lack of care on the part of the owner. The statutory requirement is that 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 in terms of s 57(3). The mandatory nature of the presumption in s 57(3) is distinguished from the discretionary nature of the decision for a charge under s 57A.
[15]As determined by the Court of Appeal in Hill, a two-step test is applied:
(a)The Court must identify the relevant circumstances of the offence/attack.4
(b)The Court must then ask whether the circumstances of the offence/attack were exceptional and do not warrant destruction of the dog.5 The second requirement informs the first — the circumstances must be exceptional in a way that means destruction of the dog is not warranted.
[16] Applying this two-stage test, the Judge outlined the circumstances of the offence, including the matrix facts on which Mr and Mrs Sharma relied on as relevant that day.6 The Judge noted that the situation as it was for Ms Sharma on the day was arguably prior to the offence, not part of the offence/attack itself.7 However, rather than determining whether or not it should be excluded at stage one, the Judge’s analysis focused on whether the circumstances could be categorised as exceptional in terms of stage two.
[17] The Judge held, applying Hill, that the history of the dog could not be considered,8 because the entire statutory focus was on the circumstances of the offence at the time. For the same reason, the Judge held she could not consider any prior bad behaviour either.9 Even though Kaiser had been declared a menacing dog, the sentencing Judge regarded that as irrelevant in terms of the test.10 Nor could the Judge take account of how Kaiser reacted after the offence, including his behaviour when he
4 Auckland Council v Hill, above n 3, at [62] and [67]–[69].
5 At [74].
6 Auckland Council v Sharma, above n 1, at [15]–[22].
7 At [22].
8 At [23].
9 At [23].
10 At [23].
was taken away by dog control.11 Applying Hill, it was clear that a one-off failure by an otherwise responsible owner to maintain effective control of a dog is not an exceptional circumstance.12
[18] Even though Mr and Mrs Sharma rely on an unusual series of events, rather than a single failure,13 the principles in Hill still applied.14 It was still tied to the actions of the owner, responsible or otherwise.15 It was not the Court’s role to delve into the psychology of the dog’s motivation for his actions.16 Play gone wrong could not itself be an exceptional circumstance,17 and there was no evidence of provocation or protection that could fall within the exceptions discussed hypothetically in Hill.18
[19] Applying these legal principles, the Judge observed she was left with little option.19 While expressing compassion and sympathy, the decision required under s 57(3) of the Act was an order for destruction of Kaiser.
Approach on appeal
[20] The Court of Appeal in the Hill leave decision confirmed that an appeal against a dog destruction order is an appeal against sentence.20 Section 250(2) of the Criminal Procedure Act 2011 provides that the court must allow the appeal if satisfied that:
(a)for any reason there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
11 At [23].
12 At [24].
13 At [25].
14 At [26].
15 At [26].
16 At [27]–[28].
17 At [29]–[30].
18 At [31].
19 At [33].
20 Auckland Council v Hill [2019] NZCA 296 at [9]–[10].
[21] In any other case, the court must dismiss the appeal.21 Absent an error, the appellate court does not start afresh or simply substitute its own opinion for that of the court below.22
Submissions
[22] Ms Hwang for the appellant submits that the circumstances were truly exceptional, due to the number of unusual cumulative factors that existed on that day. It was a unique myriad of these combined factors that led to the attack occurring. These combined factors would be very unlikely to be repeated, so a non-destruction order is warranted. Kaiser is not a “bad” or uncontrollable, aggressive dog that would warrant destruction.
[23] Counsel for the appellant says the first error was to exclude pre- and post-attack evidence, which she says is an unwarranted and over-literal application of the Court of Appeal’s comments in Hill. The comments of the Court of Appeal decision23 were intended to address a floodgate risk of owners of bad/aggressive dogs seeking to assert that the misbehaviour could be corrected by subsequent training. An unduly rigid rejection of any pre- and post-attack evidence would exclude evidence that is logically relevant to assessing the question of public safety and the risk of further similar behaviour. In Ding v Auckland Council, Fitzgerald J specifically endorsed the view that the Court of Appeal’s judgment in Hill does not entirely preclude expert evidence in a dog destruction case.24
[24] Second, counsel for the appellant contends that the sentencing Judge was wrong to conclude that the combination of factors was equivalent to the one-off problem of an owner forgetting to shut the door. A unique matrix of combined factors can make the incident unusual, in a way that is distinguished from mere owner error.
21 Criminal Procedure Act 2011, s 250(3).
22 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
23 Auckland Council v Hill, above n 3, at [71]–[72].
24 Ding v Auckland Council [2022] NZHC 45 at [39].
[25] Third, counsel for the appellant says that it is wrong to say that “play gone wrong” cannot constitute an exceptional circumstance as a matter of law. On the facts advanced in Mr Sharma’s evidence, Kaiser’s case involved “play gone wrong”, which is exceptional because of the other matrix factors that cumulatively would not be repeated and warrant an order that Kaiser not be destroyed.
[26] Fourth, in terms of legislative intent, counsel for the appellant submitted that the purpose of the Act is to protect the public. The Court of Appeal in Hill was critical of cases that retrospectively sought to absolve past attacks by correcting future behaviour. However, counsel says that intent does not require punishing well-behaved dogs, even when there is evidence that the circumstances were truly exceptional and unlikely to be repeated. While public safety is of the utmost priority, this does not need to be at the expense of dogs that do not pose any realistic risk.
Analysis
[27] Like the District Court, this Court is bound by the Court of Appeal’s decision in Hill. The task is therefore to interpret the legislative provisions, guided by that case, and other decisions of this Court where the Hill principles have been applied.
[28] In respect of the two-step test, the Court of Appeal provided the following guidance:
(a)The “circumstances of the offence” are equivalent to the “circumstances of the attack”.25
(b)The circumstances of the offence include the (immediate) circumstance that caused or contributed to the attack.26
(c)As the offence does not depend in any way on the history of the dog, it is irrelevant to consider the pre-attack history of the dog.27
25 Auckland Council v Hill, above n 3, [22] and [69].
26 At [67].
27 At [71].
(d)The circumstances of the offence cannot extend beyond the time of the offence itself.28 It cannot include precautions taken after the attack.29
(e)The second stage of the test requires the Court to focus on the circumstances of the offence/attack and the risk that similar circumstances will occur in the future.
(f)The second stage does not require enquiring into the psychology of the dog and making predictions about how the dog is likely to behave in the future.30 Rather, s 57(3) proceeds on the basis that the attack establishes that there is a risk of the dog attacking again in similar circumstances.
(g)So, the focus is on whether those circumstances were sufficiently exceptional that the risk is remote and does not justify destruction of the dog in the interests of public safety.31 An example would be if the owner of dog A was rushed or attacked by dog B, and dog A acted to protect its owner.32
(h)It is not 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.33
(i)Assurances about the future management and control of the dog are also irrelevant to the inquiry.34
28 At [72].
29 At [73].
30 At [75].
31 At [75].
32 At [76].
33 At [78].
34 At [81].
[29] Effectively, the outcome of Hill has been to revert to a narrow interpretation of the “circumstances of the attack” applied prior to the 2003 amendments, as discussed in Milner v Hastings District Council:35
Unless the circumstances of the attack (to be contrasted to those of the owner or the attacking dog) are exceptional an order for destruction of the dog is mandatory. It may be that there are circumstances relating to the owner, or dog, which make the attack exceptional but they must have direct bearing on and be related to the attack. Simply by way of example, a person may have a dog securely under their control whilst walking it. But they faint because of some medical condition so that the dog escapes their grasp and attacks another animal. There might be circumstances where, for example, a person enters someone else’s property and baits or intimidates a dog which is tied or chained up so that it attacks and causes serious injury (s 58). Such circumstances could well be exceptional so as not to justify destruction. But if a dog escapes from its owner’s property and as a result attacks stock or any other person, or seriously injures any person, (in terms of s 58) by virtue of that attack, then there has to be special or substantially unusual circumstances existing before the Court can exercise the power not to justify destruction. That is what exceptional means.
[30] In Ding, Fitzgerald J dismissed an appeal by the owner of a dog called Rocky, seeking to overturn a destruction order.36 The attack occurred at a reserve in Bayview. The victim dog, Vinnie, was being walked on a lead. In an initial encounter, Vinnie met another dog called Summer, and nothing untoward happened. Some 30 minutes later, Summer and Rocky were running off-leash together. They both came rushing down the hill towards Vinnie, then Rocky attacked Vinnie. On appeal, Rocky’s owner sought to adduce new evidence from an animal behavioural specialist, and factual evidence to show that Rocky was chasing a ball that rolled towards Vinnie. The two dogs had initially sniffed each other, then Vinnie growled and showed his teeth, provoking Rocky’s attack. Fitzgerald J declined the application to adduce the new evidence because it could not have affected the outcome (it could not establish exceptional circumstances).37 This was because there will always be a range of dogs with various “meet and greet” styles, including some in a more aggressive manner. Even if such aggressive behaviour is undesirable, this normal range of behaviour could not qualify as exceptional circumstances.38 It was in that context that Fitzgerald J found that the evidence of the animal behavioural specialist was irrelevant on the
35 Milner v Hastings District Council HC Napier AP 5/04, 1 April 2004 at [9]. This case was referred to in Auckland Council v Hill, above n 3, at [53].
36 Ding v Auckland Council, above n 24, at [42].
37 At [36].
38 At [37].
approach in Hill, but that was not to say that such expert evidence could never be relevant and helpful.39
[31] In Auckland City Council v Paul, Davison J allowed Auckland Council’s appeal and made an order for the destruction of a dog called Zeus.40 The complainant had visited a work premises where the dog owner worked. The dog was free to roam within the office. On entry, the complainant bent down and played with the dog, scratching him. When the dog brought the complainant a shoe, the complainant went to take it, but the dog growled. So, the complainant did not take the shoe, but kept rubbing the dog. The complainant then discussed business with the owner but, while the owner made a phone call, the complainant went back to pat the dog who was lying down. The dog jumped up and bit and latched on to the complainant’s right hand. The owner yelled at the dog, at which point Zeus let go and backed away. Both the District Court and the High Court accepted that the “circumstances of the offence” included relevant events occurring during the immediate lead up to the attack. On the facts, that was from the time the complainant entered the premises.41 Overturning the District Court, Davison J found that the act of attempting to pat Zeus was not a provocation.42 Davison J was also critical of delving into the psychology of the dog, when that is not the focus of the test articulated in Hill.43
[32] In Luani v Auckland Council, Davison J dismissed an appeal by the owner of a dog called Rhyno, seeking to overturn a destruction order. He held that the history of the dog does not form part of the proximate circumstances of the offence.44 Similarly, assurances given by the dog’s owner regarding the future management and control of the dog are irrelevant to the s 57(3) inquiry.45 In that case, the only tenable submission was whether exceptional circumstances existed at the time of attack, namely whether the dog’s aggressive behaviour towards the victim was to protect owners who were home on their own, suffering mental health issues. The Court held that it was not unusual or exceptional for a dog to be left at its owner’s home. On
39 At [39].
40 Auckland Council v Paul [2022] NZHC 1898.
41 At [39].
42 At [43].
43 At [44] and [46].
44 Luani v Auckland Council [2022] NZHC 2940 at [24].
45 At [24].
those facts, there were no exceptional circumstances that could lead the Court to find that destruction of the dog was unwarranted.
[33] In White v Auckland Council, van Bohemen J dismissed an appeal by the owner of two dogs called Missy and Ramen, seeking to overturn a destruction order. He held that a dog’s history (including whether it had attacked before) does not form part of the circumstances of the offending for which Mr White was convicted, therefore it should not have been considered.46 It was not open to Mr White to argue that the dogs could be expected to behave differently in similar circumstances in the future, or that the owner would not allow his dogs to be in similar circumstances in the future. This was because the Court of Appeal made it clear that the court’s focus must be on the risk that the dogs pose to people and animals assuming they can be expected to behave in the same way in similar circumstances in the future.47 The relevant circumstances were that Mr White was walking with the dogs off-leash down a public road in an area where livestock were present. The dogs got ahead of Mr White and out of his sight. Before he could intervene, they attacked and caused injury to a cow. Mr White had an injury that impeded his ability to regain control of the dogs, but that did not make the circumstances exceptional.
Exclusion of matrix evidence
[34] On the first appeal point, I do not agree that the Judge excluded pre- and post-attack evidence in the sense of failing to consider it. As referred to above, it is evident from the sentencing notes that the Judge carefully read and considered the evidence but held that it did not ultimately change the narrow scope of what constitutes the “circumstances of the offence” in terms of tests under s 57(3). The Judge made no error in taking that approach.
[35] The Court of Appeal’s approach in Hill was not limited to addressing a floodgate issue of whether subsequent behaviour training could rescue a “bad dog”. Rather, it narrowed the proper analysis to the circumstances of the attack, without considering whether the dog could be classified as “good” or “bad” based on past
46 White v Auckland Council [2023] NZHC 2080 at [19].
47 At [21], referencing Auckland Council v Hill, above n 3, at [77].
behaviour or the dog’s psychology. The appellant’s submission cannot be reconciled with the much broader guidance set out at [28] above, which excludes the history of the dog as irrelevant and observes that the test does not require analysis of the psychology of the dog. As observed in Milner, the circumstances of the attack are to be contrasted with those of the owner or the attacking dog. Similarly, the Court of Appeal’s exclusion of post-attack evidence is not restricted to corrective training. It also excludes evidence of non-aggressive behaviour post-attack. All of the cases in this Court listed in paras [30]–[33] apply the Hill principles in this way.
[36] Counsel for the appellant argues that Fitzgerald J left the door open in Ding for expert behavioural evidence to be adduced. However, the Judge was clear that such evidence will only be relevant if it addresses the circumstances of the attack within the scope discussed in Hill. For example, such evidence may assist the court to assess whether there has been provocation of the dog or its owner that would quality as exceptional.
[37] Counsel for the appellant also suggested that there was scope to extend the immediate circumstances of the attack, as applied in Paul, to events that are logically relevant earlier in the day. I do not agree that this is a permissible interpretation of the words “circumstances of the offence”. To so qualify, those events must form a proximate part of the attack, such as where the victim attacks the dog or its owner in the immediate lead-up. It does not reopen the door to consider the circumstances of the owner or the attacking dog (as opposed to the attack itself) that arose earlier in the day.
[38] Counsel for the appellant alleged that the sentencing Judge had erroneously failed to consider circumstances leading to the classification of Kaiser as menacing, in the sense of the Judge taking into account the classification without examining whether it was justified on the facts and in the wider context of Kaiser’s previous good behaviour and gentle personality. As referred to at [17] above, on my reading of the sentencing notes, the Judge did not consider the prior behaviour, including the menacing classification. That is also consistent with the approach taken in White, which I consider to be correct.
Combination of factors
[39] Counsel for the appellant criticises the approach taken by the sentencing Judge regarding the matrix of factors equivalent to a failure to shut the garage door, whereas it is the unusual combination of factors operating together that make the circumstances exceptional.
[40] I consider the approach taken by the sentencing Judge described at [18] above correct. The Judge did take into account the full combination of factors relied on by the appellant but held that this did not establish an exception of the nature discussed in Hill. As listed at [11] above, there are some 11 factors that comprise the exceptional circumstances relied on by the appellant. These can be grouped in three categories:
(a)reasons why Kaiser had not been exercised that day;
(b)reasons why Kaiser escaped and was not under control at 5.30 pm that evening; and
(c)what occurred between the time of Kaiser escaping from the garage and biting Mary.
[41] Whilst the particular combination of factors leading to the above three things might be very unusual and not expected to repeat, I agree with the District Court Judge that they do not fall within the type of exceptional circumstances of the offence/attack discussed in Hill that would justify a non-destruction order. The circumstance of the dog not being exercised that day (for whatever reason) is something relevant to the circumstance of the attacking dog as opposed to the circumstances of the attack itself. Like the strict liability of failure to keep a dog controlled, it is not treated as exceptional for the purposes of s 57(3) even if it is not expected to occur. Even one-off failures by an otherwise responsible owner to maintain effective control of the dog cannot qualify as an exception, and a one-off failure to exercise the dog logically falls in the same category. A combination of factors certainly can be considered together and have been in this case. However, as discussed in Milner, such circumstances relating to the owner and/or dog may make the attack exceptional, but this does not qualify to prevent a destruction order unless they have a direct bearing on the attack
itself. Counsel for the appellant complains that this draws an artificial and unfair line. It is nevertheless a distinction required by the wording of the legislation, as interpreted in Hill.
Play gone wrong
[42] Counsel for the appellant argues that the case of Ding is not authority that “play gone wrong” can never constitute exceptional circumstances. In this case, it is the combination of the defensive reaction by Mary that led to the attack when considered with the other matrix of facts.
[43] I consider that the sentencing Judge correctly applied the principles discussed in Ding. The fact that Mary may have been intimidated by Kaiser’s size and reacted defensively falls within the normal range of behaviour that may occur when dogs meet or pass each other in a public area. On its own, it is hard to contemplate that this could ever satisfy the requirements in Hill. When taken into account in combination with the fact Kaiser was unexercised and uncontrolled at the time of the attack, the combined circumstances still do not constitute exceptional circumstances of the offence/attack in terms of s 57(3) within the principles discussed in Hill.
Parliamentary intent
[44] In respect of this ground, counsel for the appellant again argued that Hill was focused on addressing a floodgate problem of owners seeking to evade destruction of dogs by corrective training. As discussed above, the analysis of Hill was much wider than that. The legislation prioritises the interests of public safety, based on an assumption that the attack itself establishes a risk of the dog attacking again in similar circumstances. Narrowing the ability to raise exceptional circumstances solely to the circumstances of the offence/attack does have the effect that some dogs will be destroyed, even if they had no prior history of aggression, and even if the wider circumstances impacting the owner and the dog might explain why the event occurred and would be very unlikely to happen again. The structure of the test does not incorporate any question of whether the owner or the dog is “good” or “bad”. As summarised in Milner, “the Legislature has so decreed that there be protection provided to the public in its widest forms and the feelings and considerations of owners
of dogs who attack have to take second place to the dominant consideration of the legislation”.48
[45] I acknowledge that the test is very strict and will result in harsh outcomes. I also acknowledge the immense sadness that Mr and Mrs Sharma will feel about the outcome for their beloved dog.
Result
[46] However, for the reasons outlined above, no error has been established on the part of the sentencing Judge, so Mr Sharma’s appeal against the order for destruction of the dog must fail.
[47]Mr Sharma’s appeal is dismissed.
O’Gorman J
48 Milner v Hastings District Council, above n 35, at [14]. See also Price v Auckland Council [2023] NZHC 1733 at [24].
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