Snodgrass v Kapiti Coast District Council
[2014] NZHC 1333
•13 June 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2013-485-53 [2014] NZHC 1333
BETWEEN JULIE ANN SNODGRASS
Appellant
AND
KAPITI COAST DISTRICT COUNCIL Respondent
Hearing: 8 April 2014 Appearances:
M Robinson for appellant
E M Light for respondentJudgment:
13 June 2014
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, Julie Snodgrass, was convicted on 17 June 2013 by Judge Hastings in the District Court at Porirua1 of being the owner of a dog (Beau) who attacked another dog (Ryder).2 Judge Hastings ordered that Beau be destroyed pursuant to s 57(3) of the Dog Control Act 1996 and sentenced Ms Snodgrass to a
$500 fine and reparation of $3484.10.3 Ms Snodgrass appeals against her conviction and sentence.
[2] Ms Snodgrass’ conviction appeal is on the basis that due to trial counsel incompetence there has been a miscarriage of justice that necessitates her conviction being set aside. Relevant good character evidence about Beau was not admitted, irrelevant and unfairly prejudicial evidence about previous incidents with Beau was admitted and not adequately challenged, and evidence from the vet that treated Ryder
was not admitted. There is a real risk that the outcome of the defended hearing
1 Kapiti Coast District Council v Snodgrass DC Porirua CRI-2012- 091-3560, 17 June 2013.
2 Dog Control Act 1996, s 57(2).
3 Kapiti Coast District Council v Snodgrass DC Porirua, CRI-2012-091-003560, 5 July 2013.
SNODGRASS v KAPITI COAST DISTRICT COUNCIL [2014] NZHC 1333 [13 June 2014]
would have been different if the good character and vet evidence was admitted and the evidence of previous incidents was not admitted or was adequately explained.
[3] Ms Snodgrass appeals against her sentence on the basis she should have received a discharge without conviction and that her sentence should not have included reparation to the Kapiti Coast District Council (the Council) for Beau’s impoundment and kennel fees.
Facts
[4] Beau is an American Staffordshire Terrier and Great Dane Cross. Ms Snodgrass also owns Sheba, Beau’s mother. On 11 September 2012, Ms Snodgrass, Beau and Sheba were at Matthews Park in Paraparaumu. Beau and Sheba were let off their leads. Ms Sutherland and her dog Ryder entered the other side of the park. Ryder too was let off his lead. Beau and Ryder saw one another, met midfield and sniffed at each other. When Beau started to growl, Ms Sutherland called Ryder back. Ryder complied and Beau chased him. As recorded by the Judge Ms Snodgrass and Ms Sutherland describe what followed differently:
…according to Ms Sutherland, [Beau] started to lunge and bite at [Ryder]. Ms Sutherland said that Beau attempted to grab Ryder’s neck, and when Ryder tripped and rolled, Beau succeeded in “locking down” and biting Ryder’s rear left leg. Ms Snodgrass said that Beau was “not snarling or biting or acting viciously” and he was not “locked onto Ryder’s leg.
[5] Both owners ran to the dogs. Ms Snodgrass kicked Beau to get him off Ryder when Beau did not respond to her verbal commands. Ms Sutherland noticed that Ryder was limping and had blood dripping from his leg.
[6] The primary issue at trial was whether the incident was appropriately
classified as an ‘attack’. Appeal against Conviction Judge Hastings’ decision
[7] Section 57 of the Dog Control Act 1996 relevantly provides:
Dogs attacking persons or animals
(1) A person may, for the purpose of stopping an attack, seize or destroy a dog if—
(a) the person is attacked by the dog; or
(b) the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.
(2) The owner of a dog that makes an attack described in subsection (1)
commits an offence and is liable on conviction to a fine not exceeding
$3,000 in addition to any liability that he or she may incur for any damage caused by the attack.
(3) If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack described in subsection (1) and that the dog has not been destroyed, 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.
[8] There are thus three steps to the inquiry. First, was there an attack? If so, the owner is convicted. Second, were the circumstances of the offence exceptional? If not, destruction of the dog is mandatory. Third, if the circumstances of the offence were exceptional, is destruction of the dog unwarranted? If so, the dog may escape destruction.
[9] Judge Hastings first considered whether there was an attack. The Judge considered Ms Snodgrass’ evidence that, in her view, Beau was engaged in rough play that was similar to the way she behaves with her mother Sheba and, moreover, that Beau interacted without incident with a cat at home. Judge Hastings said Ms Snodgrass’ natural motivation to protect Beau diminished the weight of this evidence. There was also evidence from Ms Goddard, a dog trainer, that Beau was a dog that would engage in play that could be mischaracterised as an attack due to poor socialisation. The weight attached to this evidence was diminished as Ms Goddard only met Beau five months after the incident.
[10] The evidence in favour of characterising the incident as an attack was Ms Sutherland’s evidence that Beau started to growl and, when Ryder turned away with his tail between his legs, Beau gave chase, growling and baring his teeth. Beau attempted to bite Ryder on his neck and bit Ryder on the leg. Beau did not respond
to verbal commands and had to be kicked off. Ryder suffered an injury that caused him to limp and bleed and that required veterinary attention.
[11] Judge Hastings applied the criteria for determining whether there has been an attack from Jack v Manukau City Council4 and concluded that Beau had demonstrated threatening behaviour, had approached Ryder, Ryder had felt threatened and taken evasive action, and injury resulted. Judge Hastings concluded that:
The actions of Beau, although initially inquisitive, became sufficiently objectively aggressive to demonstrate an intention to cause Ryder harm, which he did. I find therefore the ingredients of an attack have been [made] out and that Beau’s behaviour went beyond rough play.
[12] Having concluded Beau attacked Ryder, the Judge considered whether the circumstances of the offence were exceptional such that the destruction of Beau was not warranted. Judge Hastings applied the factors identified by Heath J in Halliday v New Plymouth District Council.5 The Judge observed that injury had resulted and that Ms Snodgrass’ history as a dog owner, as reflected in the Council’s “Dog Owner Enquiry” records, was not positive. Those records indicate that there had been nine
dog wandering complaints, one dog fouling complaint, one dog threatening complaint, three dog attack complaints (one of which Judge Hastings said he would not consider) and several file notes and warning notices relating to Sheba and Beau being let off their leads in public, jumping the fence, not being controlled, and acting in a threatening manner. This record, the Judge said, revealed a consistent lack of control by Ms Snodgrass of her dogs.
[13] Judge Hastings also considered that Beau had behaved this way in the past. Evidence from a dog control officer, Mr Wolff, that in a 1 September 2012 incident Beau had attacked a dog in the presence of a young girl supported the view that Beau had attacked a dog before. The Judge did not consider evidence of Beau’s improved behaviour since the attack at this stage. Finally, Ms Snodgrass took no steps to prevent the attack despite being warned to keep her dogs under the control.
Judge Hastings concluded the circumstances were therefore not exceptional and it
4 Jack v Manukau City Council HC Auckland M1698/99, 14 December 1999.
5 Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005.
was not necessary to consider whether the exceptional circumstances (not found)
warranted the dog’s destruction as destruction was mandatory.
Case on Appeal
[14] Mr Robinson argues that Ms Snodgrass’ trial counsel failed to follow Ms Snodgrass’ instructions to place evidence from several witnesses before the Court or to gather certain evidence. That evidence was before me in affidavits sworn after the hearing in the District Court. To the extent that those affidavits relate to matters that had occurred before that hearing, Ms Snodgrass’ affidavit confirmed they had been available at the time of that hearing, and discussed with her counsel. In the circumstances of the respondent not having provided an affidavit from Ms Snodgrass’ counsel (see [25]), I proceed, as I said I would at the hearing, on the basis of accepting Ms Snodgrass’ account of the instructions she gave to her counsel. That evidence can be divided into three categories.
[15] First, there is rough play evidence. Toni Sinclair, Ms Snodgrass’ former flatmate, provides evidence as to Beau’s general tendency to rough play and that the incident on 1 September 2012, which Judge Hastings said involved Beau attacking another dog, was not an attack. Ms Sinclair says Beau escaped from the property due to an issue with a new fence and ran over the road excitedly to play with another dog that was being walked by a woman and her children. The woman’s dog cowered away from Beau and the woman tried to kick the dog away. Ms Sinclair “thought [the woman’s] actions were extreme towards Beau and was surprised that Julie was not more upset at the women”. Ms Sinclair gives additional evidence, as do Nigel Hopkins, Dewi Bone and Ripeka Pritchard - acquaintances of Ms Snodgrass – to the effect that Beau and other dogs, particularly Sheba, engaged in play that involved nipping and barking at each other while growling and wrestling. This is described as rough play and not aggression. That evidence was based on experience of Beau before the attack on 11 September 2012. Based on that experience, they also give generic good character evidence to the effect that Beau gets on well with other dogs, children, people and animals and was friendly, non-threatening and gentle.
[16] Similar generic good character evidence is also provided by David Scott, Elinor Reading, Judith Morley-Hall and Ms Goddard who met Beau after the incident. In addition, Nigel Hopkins says that Beau, contrary to evidence at the hearing, was well liked by staff at the pound. Ms Goddard had additional footage of Beau which would demonstrate that Beau does not exhibit aggression.
[17] Third, there is the possibility that evidence, if obtained, from the vet that treated Ryder would have confirmed that the injury suffered by Ryder was not inconsistent with rough play. No affidavit from the vet is provided.
[18] Ms Sinclair says her trial counsel erred by not seeking the admission of this evidence. If admitted, the evidence could have led to a more favourable outcome as the evidence could have bolstered Ms Snodgrass’ credibility, underscored the defence theory of rough play and undermined the evidence that Beau was dangerous rather than good natured.
[19] Ms Snodgrass also challenges the admission of the “Dog Owner Enquiry” file as containing irrelevant, prejudicial and inadmissible hearsay evidence. Judge Hastings relied upon evidence on the file to assess Ms Snodgrass’ credibility and to determine whether Beau had previously behaved in a similar way. Ms Snodgrass says this was not permissible.
[20] In the alternative, if the “Dog Owner Enquiry” file was admissible, Ms Snodgrass says her counsel failed to show her the file or follow her instructions by addressing its contents adequately in evidence. Ms Snodgrass says that many of the incidents did not relate to her dogs and that the Council had not spoken to her in relation to many of the incidents. If her trial counsel had adequately addressed this, the outcome of the proceeding may have been different.
Discussion
[21] Ms Snodgrass’ right to appeal arises under s 115 of the Summary Proceedings
Act 1957. Under s 119 of the Summary Proceedings Act 1957 such appeals are to be
by way of rehearing. The general approach on such appeals is now settled by the
Supreme Court decision in Austin, Nichols and Co Inc v Stichting Lodestar.6
[22] That is, the appellate Court is to come to an independent conclusion in the proceedings. There is, therefore, no presumptive level of deference to the first instance decision. Nevertheless, and as White J stated in Timoti v Police:7
This Court is required to reach its own view on the merits of the appeal. In deciding whether it has been persuaded that the decision under appeal is wrong, this Court must form its own opinion as to the acceptability and weight to be given to the evidence. In forming its own opinion on the evidence, this Court may recognise the advantage that a District Court Judge had in seeing and hearing the witnesses when an issue of credibility arises and may hesitate to conclude that the Judge's findings of fact or fact and degree were wrong.
[23] In the context of an appeal against conviction on the grounds of counsel incompetence, Tipping J held in Sungsunwan v R that a “real risk [of a miscarriage of justice] arises if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong”.8
[24] The Supreme Court emphasised in Sungsuwan v R the need to retain focus on whether a miscarriage of justice has occurred rather than on shortcomings in counsel’s performance when considering an appeal on the basis of counsel incompetence.9 Gault J, in the majority judgment, reasoned that:
…while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate Court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
[25] The usual course is to first consider the reasons that trial counsel gives to explain his or her conduct of the proceeding and assess whether those reasons meet
6 Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
7 Timoti v Police HC Auckland CRI-2009-404-320, 17 December 2009 at [19].
8 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
9 At [70].
an objectively reasonable standard of competence. 10 Trial counsel’s reasons for not admitting the additional evidence are not however available. It is the Crown’s responsibility to obtain an affidavit from trial counsel,11 but this was not done. The focus here must therefore be on whether, putting issues of competence to one side, there is a real concern for the safety of Ms Snodgrass’ conviction due to trial counsel’s failure to lead the additional evidence.
[26] No such concern exists. There is no real risk that the additional evidence
Ms Snodgrass seeks to have called could have affected the outcome of her hearing.
The additional evidence
[27] The additional evidence may have been relevant at three stages:
(a) when determining whether to characterise the incident as an ‘attack’;
(b)when determining whether the circumstances of the offence were exceptional; and
(c) when determining whether the exceptional circumstances, if found, do not warrant the destruction of the dog.
[28] I consider each in turn.
Relevance to whether there was an attack
[29] The ‘rough play’ evidence has limited relevance or probative value on the question of whether the incident was an attack. Justice Miller described the requirements of s 57 as follows:12
“Committed” suggests purposeful action. “Attack” is undefined, but the Act distinguishes among attacks and “rushing at” and worrying, and it insists that dogs that have attacked be muzzled in public, suggesting as one would expect that attacks usually involve actual or attempted biting. Physical contact between dog and victim will suffice so long as it results from deliberate aggressive action. The legislation thus recognises that dogs are
10 At [80].
11 Sullivan v R [2011] NZCA 366 at [5].
12 Turner v South Taranaki District Council [2013] NZHC 1603, [2013] NZAR 1046 at [21] (footnotes omitted).
sentient creatures, and that from a dog's perspective contact need not always signify hostility. There may also be explanations for an attack; the dog may have acted from defensive or protective causes, or bad handling. The owner often pleads, as Mr Turner did, that the dog did not attack in earnest or without cause, or that it was somehow not at fault. But although s 57(3) requires an attack, it prefers the perspective of the general public to that of the dog or its owner: absent exceptional circumstances the attack must lead to the death of the [attacking] dog.
[30] A dog that accidentally injures another dog whilst engaged in mutual rough play would not therefore have attacked the dog. The ‘rough play’ evidence is relevant on this point. However, the primary focus remains on the question of whether there were objective indicators of deliberate aggressive action. The rough play and generic good character evidence would be of very limited probative value given that the ultimate question of whether the particular incident was an attack relies on an objective analysis of the way in which that particular incident played out. On this the witnesses cannot speak.
[31] This issue is heightened in respect of the generic good character evidence that Ms Snodgrass sought to have admitted. Generic ‘good character’ evidence about humans charged with crimes is rarely relevant,13 and similarly, generic good character evidence about a dog would rarely be relevant to the question of whether an ‘attack’, on a particular occasion, occurred.
[32] Judge Hastings rightly did not focus on the ‘bad character’ evidence,
including the 1 September incident, when deciding whether an ‘attack’ occurred.14
The focus should be, and was, on an objective analysis of the dog’s actions rather than on the dog’s past behaviour except to the extent that that behaviour can shed light on what occurred on that day.
[33] Ms Snodgrass’ credibility was a matter best assessed by the trial judge and there is no risk that the additional evidence from Ms Sinclair would impact upon that credibility assessment. Ms Sinclair’s recollection is clearly coloured by her affection for Beau which arises from having lived with Beau since birth. Ms Sinclair describes an objectively worrying incident in which Beau, a dog who appears
menacing, escaped Ms Sinclair’s property, approached a woman, her children and
13 Gharbal v R [2010] NZCA 45; R v Alletson [2009] NZCA 205.
14 Kapiti District Council v Snodgrass, above n 1, at [23]-[25].
her dog and acted in a way that scared both the woman and the dog. Ms Sinclair’s reaction to that situation was that she was surprised Ms Snodgrass was not more upset at the woman for having kicked Beau away. Whether the incident is described as an ‘attack’, or simply as the worrying encounter Ms Sinclair describes, is not significant. Ms Sinclair’s evidence does not rehabilitate Ms Snodgrass’ credibility. Nor, in any event did Judge Hastings rely on this incident when determining whether an attack had occurred.
[34] Moreover, Ms Snodgrass herself noted that Beau’s behaviour was not consistent with his usual play. She observed that “I thought he was too rough so I went up and I shoved him with my foot. I gave him a bit of a kick to distract him.” She also observed “I think I said I might have to put [Beau] down because I’d never seen him hurt a dog. I’ve seen him tackle and wrestle, that’s his normal play but he’s never hurt another animal.” When Ms Snodgrass herself admitted that the incident was of a different nature to what she was accustomed to, evidence from people who had not witnessed the incident of Beau’s usually harmless play and good character would have little probative value as to what occurred on that particular occasion.
[35] There was ample evidence on which Judge Hasting could conclude that Beau attacked Ryder and there is no risk that the good character evidence Ms Snodgrass sought to have admitted would have affected his decision.
[36] It is not possible to conclude that there is a real risk that Judge Hastings’ decision could have been different if evidence was obtained from the vet as this evidence has not been obtained. It is not known whether the vet would confirm that the injuries were not inconsistent with rough play or state that the injuries were consistent with an attack. Thus there is no basis upon which to conclude that there is a real risk this evidence could have affected the outcome of Ms Snodgrass’ hearing. Relevance to whether the circumstances were exceptional
[37] Heath J in Halliday v New Plymouth District Council set out a non- exhaustive list of factors that one should consider when determining whether the
circumstances of the offence were exceptional. 15 These were identified as:16
15 Halliday v New Plymouth District Council, above n 5.
(a) the nature of the attack (including the fact that injury resulted); (b) [the owner’s] history as an owner of the dog;
(c) whether the dog had behaved this way in the past;
(d) the steps that had been taken by [the owner] to prevent such an attack occurring, and
(e) the reason why the steps taken by [the owner] did not prevent an attack on the occasion in question.
[38] Factors which post-date the offence are not to be considered at this stage as “the circumstances of the offence cannot include any circumstance that has not yet occurred.”17 The good character evidence from Mr Scott, Ms Reading and Ms Morley-Hall is not therefore relevant at this stage. The other generic good character evidence along with the evidence of ‘rough play’ and of Ms Snodgrass controlling and not controlling the dogs is however relevant.
[39] Evidence of Beau’s bad character, particularly the 1 September incident, was considered by Judge Hastings at this stage. Evidence of Beau’s good character would have similarly been relevant. However, Dobson J in Jorion v Kapiti Coast District Council18 observed that:
… [the dog's] apparently benign nature, her role as a family pet and confirmation of her friendly interaction with children cannot count for a lot.
… Nor is the absence of any history of attacks by the dog likely to constitute an exceptional circumstance. The Act does not contemplate dogs being given a second chance.
[40] Moreover, much of the evidence in the affidavits is also damaging to Ms Snodgrass. The evidence that Beau likes to ‘rough play’ is disadvantageous here as it suggests there was nothing particularly unusual or unique in Beau running at another dog and biting at or near its back legs. As Salmon J said in Hedges v Whangarei District Council19 the focus of the Dog Control Act is ensuring that dogs are controlled. A dog that has a tendency to ‘rough play’, including with dogs who
are fearful of it, is not well controlled. Although the affidavits as to Beau’s gentle
16 At [48].
17 Whangarei District Council [2014] NZHC 424 at [14]; Orr-Walker v Auckland Council [2013] NZHC 784 at [22]; Halliday v New Plymouth District Council, above n 5, at [43].
18 Jorion v Kapiti Coast District Council HC Palmerston North CRI-2010-454-22, 4 August 2010.
19 Hedges v Whangarei District Council HC Whangarei AP8/98, 5 May 1998.
character and friendly interaction with animals are relevant, as Dobson J said in Jorion, this cannot count for a lot when an attack has been established and Ms Snodgrass took no steps to ensure the attack did not happen prior to kicking her dog off Ryder when she realised the incident was too rough.
[41] The evidence Ms Snodgrass seeks to have admitted demonstrates overall that Ms Snodgrass had a generally affable and friendly dog that liked to rough play and which Ms Snodgrass allowed to run free around other dogs and children as a matter of course. There is no real risk that this evidence would have led to a more favourable result on the exceptional circumstances test. The hallmarks of cases in which dogs escape destruction are very responsible dog owners with dogs that are ordinarily controlled who, for understandable reasons, lost control of the dog on a
particular occasion.20
Relevance to whether destruction is warranted
[42] The assessment at this stage is a “predictive assessment of whether the dog is likely to behave in a similar way in the future.”21 It is only necessary to consider the question of whether destruction is warranted if a defendant establishes that the circumstances were exceptional. There is no real risk that Ms Snodgrass would have reached this stage of the enquiry even if her additional evidence was admitted.
The “Dog Owner Enquiry” file evidence
[43] Evidence of a dog’s past behaviour and a defendant’s history as a dog owner is relevant to the questions of whether the circumstances of the offence were exceptional and, if so, whether destruction is unwarranted.22 The evidence is also relevant to an assessment of Ms Snodgrass’ credibility. Prejudice that arises from this proper use of the evidence is a result of the evidence’s probative value and is not
improper.
20 Claridge v Auckland Council [2013] NZHC 1806; Nicol v Whakatane District Council [2012] NZHC 727; Tekotia v Manakau City Council HC Auckland CRI-2010-404-234, 24 August 2010.
21 Halliday v New Plymouth District Council, above n 5, at [41].
22 Halliday v New Plymouth District Council, above n 5 at [48].
[44] If used to prove the truth of its contents, the evidence is, however, hearsay. Judge Hastings said he ascribed very little weight to two earlier complaints about Beau as they were hearsay,23 but used the 1 September 2012 incident as proof the incident had occurred and Beau had previously attacked a dog.24 The justification for using the evidence in this way given by Judge Hastings was that Mr Wolff, the
dog control officer complained to, was available to give evidence.
[45] Mr Wolff did not have firsthand knowledge of the events of 1 September
2012 and accordingly the evidence remained hearsay. Judge Hastings should not have relied upon that evidence as proof that the 1 September 2012 incident occurred as described. Judge Hastings’ did not however place excessive weight on his conclusion that the 1 September 2012 incident was an ‘attack’ and there were permissible uses of the evidence that mean there is no risk that its admission led to a miscarriage of justice.
[46] The evidence was admissible to demonstrate that on previous occasions members of the public had found Beau’s behaviour sufficiently worrying that they had made complaints and described Beau’s behaviour as an attack. Ms Snodgrass accepts, in substance, that the earlier incidents occurred but maintains they were not attacks and that Beau was behaving in a friendly manner. The evidence thus demonstrates that Beau behaved in ways that worried members of the public, that Ms Snodgrass’ and Ms Sinclair’s view of those incidents differed from the views that members of the public had and that despite these incidents and Ms Snodgrass’ knowledge of these reports, Beau was still allowed off the leash in public and to play with unfamiliar dogs. This is more than sufficient to demonstrate that the circumstances of the attack were not exceptional and there is accordingly no real risk that the improper use of the evidence affected the outcome of Ms Snodgrass’ hearing. Nor is there a real risk that the proper use of this evidence would have led to a more favourable assessment of Ms Snodgrass’ credibility.
[47] Ms Snodgrass argues that her counsel did not adequately inform her that this evidence would be led or adequately address the evidence at the hearing. The impact
23 Kapiti Coast District Council v Snodgrass, above n 1, at [28].
24 At [28].
on the outcome of Ms Snodgrass’ hearing of Ms Snodgrass’ denial that some of these incidents involved her dog would have been negligible. Ms Snodgrass does not deny that Beau has “jumped the fence a couple of times”, that if she notices her dogs are over at the park she immediately goes and brings them home, or that she has received an infringement notice concerning her dogs being over at the park chasing each other. Nor does Ms Snodgrass deny that at least three previous incidents had occurred where her dog behaved in a way that concerned other owners and left their dogs shaken, that her dogs don’t respond to her “sometimes when they’re really excited and, you know, wanting to greet another dog”, or that she had been informed her dogs should be kept on a leash but she let them off. These behaviours are at the essence of the complaints in the Dog Owner Enquiry file.
Result
[48] I therefore dismiss Ms Snodgrass’ appeal against her conviction.
Appeal against Sentence
[49] This is an appeal against sentence under s 115 of the Summary Proceedings Act 1951. As such it is a general appeal. Relevantly, if the High Court is satisfied that a sentence involves an error of law or principle and a different sentence should be imposed, the High Court may quash the sentence in its entirety and impose a sentence it thinks appropriate, quash any invalid part of the sentence that is severable from the sentence as a whole or vary within the limits warranted in law the sentence or any part of it.
Discharge without conviction
[50] Ms Snodgrass argues that the possibility of her receiving a discharge without conviction was not considered and it ought to have been. Ms Snodgrass’ conviction has damaged her prospects of finding employment and accordingly this was an appropriate case for a discharge without conviction to be granted.
[51] Section 11(1) of the Sentencing Act 2002 provides:
11 Discharge or order to come up for sentence if called on
(1) If a person who is charged with an offence is found guilty, or pleads guilty, before entering a conviction and imposing a sentence the court must consider whether the offender would be more appropriately dealt with by—
(a) discharging the offender without conviction under section 106;
or
(b) convicting and discharging the offender under section 108; or
(c) convicting the offender and ordering the offender, under section
110, to come up for sentence if called on.
[52] Ms Snodgrass says her counsel did not discuss with her the possibility of a discharge without conviction and nor is there any indication in Judge Hastings sentencing notes that a discharge without conviction was considered as required by s 11. There is thus no evidence that s 11 was complied with. This is an error. I therefore consider the matter afresh.
[53] Section 106(1) provides that:
If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
[54] An offender cannot be discharged without conviction if the Court is required to impose a minimum sentence for the offence. The term “minimum sentence” can be contrasted with the term “minimum penalty” under the previous enactment, s 19 of the Criminal Justice Act 1985, and is coloured by s 106(3)(c) which now provides that a court imposing a discharge without conviction can “make any order that the court is required to make on conviction”. In consequence, White v Wellington City Council, in which Ellis J held that a discharge without conviction was not available for an offence pursuant to s 57 of the Dog Control Act is no longer a correct
statement of the law.25 In White, Ellis J held that s 57 of the Dog Control Act
imposed “as a minimum penalty the destruction of the dog where there are no exceptional circumstances” meaning discharge without conviction was not
25 White v Wellington City Council HC Wellington AP192/00, 4 December 2000.
available.26 The change in terminology from “minimum penalty” to “minimum sentence” and the express recognition that an order, such as for destruction, can accompany a discharge without conviction means this is no longer the correct approach. Consistent with the approach to driving offences in which a mandatory minimum period of disqualification does not preclude the availability of a discharge without conviction,27 the mandatory requirement under s 57(3) that a dog be destroyed does not preclude the availability of a discharge without conviction. An order for destruction of a dog can, pursuant to s 106(3)(c), accompany a discharge
without conviction.
[55] A court may only discharge an offender under s 106 of the Sentencing Act, however, if satisfied that, in terms of s 107, “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”. This requires consideration first of the gravity of the offence, second of the consequences of conviction and, third of whether those consequences would be out of all proportion to the gravity of the offence.28 In considering the gravity of the offence, the Court should consider all aggravating and mitigating factors relating to both the offending and the offender.29
[56] Ms Snodgrass owns a dog who is excitable and was raised rough playing with other dogs. Ms Snodgrass was aware that others perceived her dog as menacing, that multiple complaints had been made about Beau and that Beau had behaved towards other dogs and people in a way that frightened them. Ms Snodgrass took her dog in public, let it out of her control and allowed it to play with and chase another dog who ran away, scared, and was injured when her dog attacked it. The injury was relatively minor but Ms Snodgrass had to kick her dog off Ryder as Beau did not comply with her commands. Thus although the injury that resulted was not particularly serious, and the attack was not prolonged, Ms Snodgrass’ culpability is
relatively high. Overall, the gravity of the offending is moderate.
26 At [14].
27 Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007; Police v Stewart (2004) 22
CRNZ 35.
28 Z (CA447/12) v R [2012] NZCA 599 at [8].
29 At [27].
[57] The consequences of conviction addressed by Ms Snodgrass’ counsel are said to be that Ms Snodgrass would suffer an impediment in her attempts to gain full time employment. Further, Ms Snodgrass had been through several years of depression and just as she was emerging from a difficult period she was prosecuted and her much loved dog Beau was ordered to be destroyed. Ms Snodgrass appends a letter from Global Personnel Ltd informing Ms Snodgrass that “generally a conviction of any type will affect your chances of securing an administrative role”. Ms Snodgrass does however note that she may still pick up smaller pieces of contract work though she observes that this “is less helpful in re-establishing my career”.
[58] I am simply not persuaded that a conviction of this nature will have any particular material consequences for Ms Snodgrass. It reflects badly on her, in terms of her control of her dog. It is difficult to see how such a conviction would have any particular consequences, outside perhaps circumstances relating to control of dogs. But there, the consequences of the conviction are likely to be proportionate.
[59] Ms Snodgrass’ appeal against her sentence on this ground fails.
Reparation
[60] Ms Snodgrass’ sentence included reparation of $60 for Beau’s impoundment fee and $3,287 for Beau’s accommodation at the pound. Ms Snodgrass’ counsel submits that this civil debt to the Council is not recoverable as reparation.
[61] Section 32(1) of the Sentencing Act 2002 provides:
(1) A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer—
(a) loss of or damage to property; or
(b) emotional harm; or
(c) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.
[62] In Power v Police Ellis J said:30
[43] The reality is, however, that this figure merely represents the amount that is owed by Mrs Power to the Council; all Councils charge impounding fees, which include a daily sustenance charge. The Council is empowered to set such fees by s 68 of the DCA and the Council must be entitled to recover those fees from Mrs Power as a debt.
[44] In my view Mrs Power has a civil liability to pay that amount that is quite separate from any sentence of reparation. The fact that there is a civil debt owed by Mrs Power to the Council means that the prerequisites to the imposition of a sentence of reparation set out in s 32(1) of the Sentencing Act 2002 are not met; the existence of a debt owed to the Council cannot be said to constitute “loss or damage to property” that has been suffered by the Council.
[63] Ms Snodgrass’ appeal on this ground is allowed. The impoundment and sustenance fees are civil debts and not the appropriate subject of a reparation order.
[64] The question of costs is reserved. If the parties are unable to agree, they may file submissions within three weeks of today’s date: first the respondent Council, then Ms Snodgrass. Neither party’s submissions are to exceed five pages in length.
“Clifford J”
Solicitors:
The Crown Solicitor, Wellington
Public Defence Service, Wellington
30 Power v Police HC Auckland CRI-2010-404-351, 19 July 2011.
7
8
0