Shepherd v Auckland Council - [2017] NZHC 1660

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000057 [2017] NZHC 1660

BETWEEN
ORLANDO SHEPHERD

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing: 17 July 2017

Counsel:

CG Tuck for Appellant
RJA Marchant for Respondent

Judgment:

19 July 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 19 July 2017 at 3 pm.

Registrar/Deputy Registrar

Solicitors/Counsel: CG Tuck, Tauranga.
RJA Marchant, Auckland.

SHEPHERD v AUCKLAND COUNCIL [2017] NZHC 1660 [19 July 2017]

The appeals

[1] Mr Shepherd’s dog savagely attacked his four year old son, causing serious injury. Mr Shepherd pleaded guilty to a charge reflecting as much under s 58 of the Dog Control Act 1996. He was sentenced to 300 hours’ community work and
12 months’ supervision.1 Mr Shepherd appeals conviction on the basis he was

wrongly advised the offence was one of strict liability. Auckland Council, with leave of the Solicitor-General, appeals sentence on the basis the sentence was manifestly inadequate. It seeks a term of imprisonment.

Background

[2] In July 2014 Mr Shepherd acquired a male Bullmastiff cross. The dog’s previous owners told him not to leave it alone with his son. Mr Shepherd later posted a picture of the dog on Facebook with the observation: “Mess with me, I’ll eat you alive, peace ho”.

[3] On the afternoon of 2 August 2014, Mr Shepherd was at home cooking dinner with his mother. His son was outside playing with the dog. Mr Shepherd heard his son scream. He ran outside to find his son lying on the garage floor. The dog was attacking his face and head. Mr Shepherd picked up his son. The dog lunged aggressively at both. Mr Shepherd hit the dog several times with a hoe until it fled. It was later destroyed. The victim underwent emergency surgery for extensive injuries to his face and scalp. He spent a fortnight in hospital.

[4] Mr Shepherd was charged on 4 September 2014. He pleaded guilty on 3 March

2016. Mr Shepherd later sought leave to vacate his plea on the basis he had been misadvised the offence was one of strict liability. On 18 October 2016, Judge Eivers dismissed that application. Sentencing did not occur until 2 March 2017. Both appeals
were filed later that month.

1 Auckland Council v Shepherd [2017] NZDC 4354. The Judge also directed Mr Shepherd to undertake counselling, a parenting course and pay Court costs of $130.

The appeal against conviction

[5] Section 58 of the Dog Control Act provides:

58 Dogs causing serious injury

The owner of any dog that attacks any person or any protected wildlife and causes—

(a) serious injury to any person; or

(b) the death of any protected wildlife; or

(c) such injury to any protected wildlife that it becomes necessary to destroy the animal to terminate its suffering,—

commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years or a fine not exceeding $20,000, or both, and the court shall, on convicting the…

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: [2017] NZHC 1660
Decision Date: 19 July 2017

CaseChat Overview and Summary

In Shepherd v Auckland Council, Mr Shepherd's dog attacked his four-year-old son causing serious injuries. Mr Shepherd pleaded guilty to a charge under the Dog Control Act 1996. He was sentenced to 300 hours of community work and 12 months of supervision. Both Mr Shepherd and the Auckland Council appealed against the conviction and sentence respectively. Mr Shepherd's appeal against conviction was based on the argument that he was wrongly advised the offence was one of strict liability. The Auckland Council's appeal against sentence was based on the argument that the sentence was manifestly inadequate and sought a term of imprisonment. The court dismissed both appeals. In relation to the appeal against conviction, the court held that the provision in question created strict liability and the argument was unsustainable. In relation to the appeal against sentence, the court held that while the sentence was manifestly inadequate, the case was at the cusp for curial intervention because of the unusual combination of factors, including the passage of time since the attack and the lack of evidence of permanent scarring or ongoing psychological harm to the victim.

Orders