Toki v Porirua City Council

[2025] NZHC 2468

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2025-485-38

[2025] NZHC 2468

IN THE MATTER

of an appeal against conviction and sentence

UNDER

the Criminal Procedure Act 2011

BETWEEN

JAMIE-LEE TOKI

Appellant

AND

PORIRUA CITY COUNCIL

Respondent

Hearing:

13 August 2025

Appearances:

V I Tava for Appellant

H P Harwood and O C Wilson for Respondent

Judgment:

28 August 2025

JUDGMENT OF McQUEEN J

[1]    On 9 June 2025, in the Porirua District Court,1 Judge Crowley ordered that Ms Toki’s dog, Lucius, be destroyed following her guilty plea to a charge of being the owner of a dog who attacked and injured a person.2 Ms Toki was also ordered to pay emotional reparation of $1,500 to the victim.

[2]    The focus of Ms Toki’s appeal is to avoid the destruction of Lucius. She seeks a discharge without conviction on appeal, and in the alternative, appeals the sentence on the basis there are exceptional circumstances which do not warrant the destruction

1      Porirua District Council v Toki [2025] NZDC 15426.

2      Dog Control Act 1996, s 57: maximum penalty of fine not exceeding $3,000. Under subs (3) 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.

TOKI v PORIRUA CITY COUNCIL [2025] NZHC 2468 [28 August 2025]

of Lucius. Porirua City Council (the Council) submit that the appeal should be dismissed.

[3]For the reasons below, Ms Toki’s appeal is dismissed.

The offending

[4]    The following offending is drawn from the summary of facts that was accepted as the basis for the guilty plea to the charge.

[5]    Ms Toki is the owner of Lucius, an American Pit Bull Terrier cross breed. Lucius was nearly two years’ old in July 2024.

[6]    On 9 July 2024 the victim, an 11-year-old boy, and his family were walking from their home to their car parked on the road outside of their property. The victim had his family dog on a lead.

[7]    At that time, Lucius came off his property and rushed up the street in pursuit of another individual. The victim called out to his mother saying “Mum, it is that dog”. Lucius then rushed across the road and directly at the victim. The victim passed his family’s dog towards his mother while Lucius charged him. The victim was then attacked by Lucius while he had his back turned. Lucius bit the victim three times on the side and back of his right thigh. The victim collapsed to the ground, as Lucius’ owners rushed over from their property, picked up Lucius, and dragged Lucius away.

[8]    On 10 July 2024, Lucius was seized with Police assistance and is currently held at the Porirua City Council dog pound.

[9]    It is recorded that flesh from the victim’s thigh was scattered in chunks on the ground around him, and the largest of those parts of his thigh measured about six by three centimetres. The victim was taken to hospital and required immediate medical treatment. He sustained eight puncture wounds, requiring 16 stitches and 15 steri strips to close, and was prescribed a range of pain relief and antibiotics. The wound did not heal as expected which meant the victim required further treatment, including more

antibiotics and visiting the Orthopaedics Unit every week for 12 weeks to have the wound treated. The healing process was lengthy and difficult for the victim.

[10]   The victim has suffered major physical and psychological damage. He is left with considerable scarring on his leg. The attack affected his attendance at school and meant that he could not participate in any sport or social activities for 14 weeks. The psychological damage extended to members of his family who witnessed the attack, and the victim’s parents have had to take significant time off work to care for him.

Decision under appeal

[11]   The Judge recorded the charge and the summary of facts before turning to address whether a fine was appropriate. In all the circumstances, the Judge considered a fine was not appropriate, but made an order for emotional harm reparation to the victim of $1,500. The key issue identified by the Judge was that an order for the destruction of Lucius must be made unless there are exceptional circumstances in the case, as provided under s 57(3) of the Dog Control Act 1996.

[12]   Relying on the Court of Appeal decision in Auckland Council v Hill, the Judge identified that in deciding whether there are exceptional circumstances, the task was first to decide what happened and, second, inquire as to whether the circumstances were exceptional and do not warrant the destruction of the dog.3 In particular, this involved asking whether it was an unusual or one-off occurrence that is most unlikely to be repeated, and whether the Judge could be satisfied that the destruction of the dog is not necessary in order to remove the risk of a future attack.

[13]   Counsel for the Council gave examples of circumstances that would be considered exceptional: where an owner of a dog was being attacked by another dog and that person’s dog was going to protect the owner, or where a person may have had their dog under control and been walking it, but had fainted or lost consciousness in some way, which might be upsetting to the dog and unusual in that way. Another example was where a person entered a property and baited or intimidated a dog which

3      Auckland Council v Hill [2020] NZCA 52.

was tied or chained up in that property, so that the dog’s protective instinct took over and it attacked the person entering the property.

[14]   The Judge did not consider the argument put forward for Ms Toki meant the situation could be characterised as exceptional circumstances, namely that someone else entered her house (where Lucius was secured) and attempted to take the dog for a walk (having never done that before) and subsequently lost control of Lucius when the harness broke. While accepting that Lucius was a beloved pet to which Ms Toki is very attached and regards as more than a pet and central to her mental health, the Judge did not find it plausible that a person would go into Ms Toki’s house and release Lucius without taking proper care to restrain him.

[15]   The Judge noted that it would have been vastly preferable to have an affidavit from that person explaining their actions, which were extremely unusual. Even if that information was available, the Judge stated that the circumstances do not amount to what is exceptional. The fact was that once Lucius had the opportunity to go out the front door he immediately attacked the victim who was with their smaller dog, and who presented absolutely no threat or provocation to Lucius whatsoever. There was no guarantee that Lucius, who is a young dog at only two years of age, would not become free again in this way. This is so even if Lucius was to be relocated to a rural area, as Ms Toki had proposed. Finally, the Judge rejected Ms Toki’s argument that Lucius was not aiming at the victim but at the dog, given the victim sustained multiple bite wounds. All of the bites were aggressive and attacking. The Judge said even if it was accepted Lucius was trying to get to the dog, that does not assure the Judge that Lucius would not attack another human in a similar way were he to get free again.

[16]   The Judge considered that Lucius attacking a child in this unprovoked way demonstrates an extremely high risk of harm and ordered the destruction of Lucius.

The appeal

[17]   Ms Toki initially filed a notice of appeal against conviction and sentence. The grounds identified were that the conviction is appealed to allow an application for

discharge without conviction to be made within the appeal process and that the sentence is appealed as the destruction component was not properly considered.

[18]   Ms Toki then sought an adjournment of the hearing of the appeal on the basis no application for discharge without conviction was made in the District Court and that this changed the grounds of appeal from an appeal against conviction and sentence to one against conviction. She also raised the possibility of an application to vacate her guilty plea based on trial counsel error. The Council opposed the adjournment.

[19]   I issued a minute referring to Court of Appeal authority that an appellate court has jurisdiction to consider an appeal against conviction and sentence on the grounds the offender should have been discharged without conviction where there is a change of circumstance or where fresh evidence becomes available, even if there was no such application at first instance.4 I declined the adjournment on the basis that the grounds of appeal specified in the appellant’s notice of appeal sufficiently identified the appellant’s intention to pursue a discharge without conviction within the appeal and so it was in the interests of justice for the appeal to proceed. Submissions and further evidence sought to be adduced were filed by the parties in accordance with timetable directions.

[20]   The hearing before me proceeded on the basis that I should consider whether a discharge without conviction should be granted to Ms Toki and whether the Judge erred in finding there were not exceptional circumstances.5

[21]   The two grounds of appeal are therefore as follows. First, that Ms Toki should be discharged without conviction, with the consequence of this being that, as no conviction would be entered, an order for destruction of Lucius under s 57(3) of the Dog Control Act could not be made by the Court.6 The second ground is that the circumstances of the offence were exceptional and do not warrant destruction of Lucius under s 57(3).

4      Bedford v R [2021] NZCA 395 at [18], citing Ho v R [2016] NZCA 229.

5      See, for example, Shramka v South Taranaki District Council [2024] NZHC 3064; and

Decke v New Plymouth District Council [2024] NZHC 3195.

6      Re Solicitor-General’s Reference from  CRI-2022-404-212  (Telford  v  Auckland  Council [2022] NZHC 31) [2024] NZCA 401, [2024] 3 NZLR 656.

[22]The Council submits the appeal should be dismissed because:

(a)The direct and indirect consequences of a discharge without conviction would not be out of all proportion to the gravity of the offending. The offending was serious, being an unprovoked attack on a child that caused significant physical and psychological damage. Ms Toki’s loss of her pet through a destruction order would not be out of all proportion with the gravity of the offending.

(b)The circumstances of the attack were not exceptional, and a destruction order is necessary to protect public safety. Without a destruction order, there is a high risk that Lucius would attack again.

Adducing further evidence on appeal

[23]   Ms Toki relies on her affidavit filed in advance of sentencing and seeks to adduce two affidavits on appeal. The first is from Evan Hawil (the person who says he took Lucius out of the house) and the second from Lorraine Toki (Ms Toki’s mother, who was also present at the house when Lucius was released). The Council says the affidavits are neither fresh, cogent nor credible. Counsel for Ms Toki, Mr Tava, was not counsel at sentencing. He submits it is preferable for the Court to have this direct evidence available to it rather than hearsay from Ms Toki and notes that there were difficulties in locating Mr Hawil and getting an affidavit from him, including as it had to be prepared in two languages. The Council has filed an  affidavit  from  an  Animal Control Officer, Veronica Cross, that responds to some of the matters covered by the evidence filed for Ms Toki. There is no objection from Ms Toki to that evidence being adduced.

[24]In all the circumstances, I allow the new evidence to be adduced on appeal.

Application for discharge without conviction

[25]   I turn now to decide whether I should discharge Ms Toki without conviction pursuant to s 106 of the Sentencing Act 2002. Such a discharge is deemed to be an acquittal.7

[26]   Section 107 of the Sentencing Act requires that a court may only discharge a defendant without conviction if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. Therefore, in considering whether to discharge a defendant without conviction the Court should follow a three-step process:8

(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;

(b)identification of the direct and indirect consequences of conviction; and

(c)determination of whether those consequences are “out of all proportion” to the gravity of the offence.

[27]   If the Court decides that the consequences of conviction are out of all proportion to the gravity of the offending, it may still decline to exercise its discretion to grant a discharge, although it would be rare to do so.9

[28]   It is not in dispute between the parties that the gravity of the offending is high. I agree with the parties’ assessment in this regard. The injuries sustained by the victim are serious.

[29]   This is also the second time that Lucius has left the property rushing towards a person and their dog. In her affidavit, Ms Cross indicates that the Council has on record that on 10 February 2024 Lucius has left the property and rushed towards

7      Sentencing Act 2002, s 106(2).

8      Prasad v R [2018] NZCA 537 at [11].

9      Datt v R [2024] NZCA 297 at [9].

another person and their dog. Lucius missed the person’s skin but grabbed her towel instead, ripping a large hole in it before Ms Toki came out and called Lucius back. Following this incident the Council issued a warning to Ms Toki notifying her that Lucius was classified as a menacing dog under s 33C(1) of the Dog Control Act.   Mr Tava was not aware of this until Ms Cross’ affidavit was filed in this appeal.

[30]   Ms Toki says the consequences of the conviction is the emotional loss of Lucius, who she says is more than a pet.10 Ms Toki deposes in her affidavit that Lucius has supported her through trauma, mental health struggles and has always made her feel safe. In addition, Lucius’ seizure by the Council has caused her extreme distress, appetite loss, depression and constant emotional suffering. Ms Toki’s mother reiterates the emotional importance of Lucius to Ms Toki. Ms Toki says her emotional suffering is out of all proportion to the gravity of the offending.

[31]   The Council acknowledges the connection between Ms Toki and Lucius but submits that is a factor that is likely to be present in most, if not all, dog attack cases and does not render a conviction out of proportion with the offending in this case.

[32]   For the direct or indirect consequences of a conviction to be material, there must be a real and appreciable risk they would occur should the conviction stand.11 I accept that as a consequence of conviction and the subsequent order for destruction of Lucius, there is a real and appreciable risk that Ms Toki will be deprived of a much- loved pet.

[33]   However, I am not satisfied that the consequences of conviction for Ms Toki are out of all proportion to the gravity of the offending in this case. I agree with the Council that the loss and grief that Ms Toki will face will be the same as that likely to be suffered by most people whose dog is destroyed following conviction for an offence under the Dog Control Act. A discharge without conviction is not appropriate in the circumstances.

10     Ms Toki does not advance an argument that a conviction under s 57 of the Dog Control Act would materially affect her career or travel prospects.

11     Sok v R [2021] NZCA 252 at [41].

[34]   Counsel addressed whether an order for destruction under s 106(3)(c) could still be made in the event that the Court finds a discharge without conviction is appropriate.12 As I have concluded a discharge without conviction is not appropriate, it is not necessary to address these arguments.

[35]Accordingly, I decline to discharge Ms Toki without conviction.

Was there an error in the sentencing decision?

[36]   The alternative ground of appeal challenges the order for destruction of Lucius. Ms Toki says that the Judge erred in finding there were not exceptional circumstances. Ms Toki says the circumstances were exceptional, such that an order for destruction was not warranted under s 57(3).

[37]   An appeal against a dog destruction order under s 57(3) of the Dog Control Act is an appeal against sentence.13 Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. For Ms Toki to succeed on appeal, the Court must be satisfied that there was an error in the sentence imposed on conviction and a different sentence should be imposed.14 In all other cases the Court does not retain any discretion and must dismiss the appeal.15 An appeal against sentence is not an appeal de novo; absent any error, the appellate Court may not simply substitute its own opinion for that of the court below.16

[38]   The Judge correctly identified the requirements for considering whether there are exceptional circumstances. The Judge relied on the Court of Appeal decision in Hill; after determining that the s 57(1) requirements are met, and a conviction should be entered, the purpose of s 57(3) is concerned with ensuring that there is no real risk that the dog will attack again.17 The Court of Appeal set out a two-step process to

12     See Telford v Auckland Council [2013] NZHC 31. This issue was not the subject of the appeal in

Solicitor-General’s reference from CRI-2022-404-212) [2024] NZCA 401.

13     Auckland Council v Hill [2019] NZCA 296 at [10].

14     Criminal Procedure Act 2011, s 250(2).

15     Section 250(3).

16     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

17     Auckland City Council v Hill, above n 3, at [66].

determine whether there were exceptional circumstances under s 57(3).18 The steps were summarised as follows:

[5]        The first step in applying s 57(3) is to identify the relevant circumstances of the offence. What happened? This inquiry should focus on the immediate circumstances of the attack itself. The dog’s history does not form part of the circumstances of the offence. Events that occur after the offence is complete — that is, after the attack occurs — also are not circumstances of the offence. The phrases “circumstances of the offence” and “circumstances of the attack” are equivalent in this context.

[6]        The second step is for the court to ask whether the circumstances of the offence were exceptional and do not warrant destruction of the dog. Section 57(3) proceeds on the basis that the attack of itself establishes that there is a risk of the dog attacking again in similar circumstances. The focus is on whether those circumstances were sufficiently exceptional that that risk is remote, and does not justify destruction of the dog in the interests of public safety.

[39]   In terms of the first step of the inquiry, the Judge clearly set out what the circumstances of the offending were. The Judge stated:19

I am satisfied that, in this case, what happened was that Lucius got free. He was faced with no threat, was simply out of his property. I am satisfied that the young boy who was walking his own much smaller dog presented no threat to Lucius. And as I said, I accept that he had his dog on a lead.

[40]   The Judge then turned to the second step of the inquiry. Ms Toki’s counsel at sentencing put forward that she had safeguards in place to ensure Lucius would not get out of the property, including having the property fenced. Ms Toki said that a car had damaged the fence, and she took steps to keep Lucius inside at all times. The Judge noted Ms Toki’s position was that her friend had gone into the house, decided to take Lucius for a walk without her consent or knowledge, and Lucius slipped the harness and got free. All of which Ms Toki says amounts to exceptional circumstances.

[41]   On appeal, Ms Toki relies on the further affidavit evidence to support her position advanced at sentencing. Mr Havil confirms that he went into Ms Toki’s house while she was not there and without her knowledge. He says he was let in by her mother. Mr Havil decided on his own motion to take Lucius for a walk. He removed Lucius from Ms Toki’s bedroom, put him in a harness and led him to the front door of

18     Auckland City Council v Hill, above n 3, at [62]–[66].

19     Porirua District Council v Toki, above n 1, at [10].

the house. Mr Havil says the harness “unexpectedly broke” allowing Lucius to escape through a gap in the fence.

[42]   Ms Toki’s mother says in her affidavit that she knows Lucius to be a “gentle, affectionate and playful” dog. She says she was preoccupied with packing for a trip away and let Mr Havil into the house expecting that he would wait for Ms Toki’s return. She believes that Lucius became overstimulated by being handled by someone he was not familiar with.

[43]   Ms Toki deposes that she had built a secure fence to keep Lucius contained but that, just before the incident, a car had crashed through a section of the fence leaving it open to the street. Ms Toki submits this chain of events constitutes exceptional circumstances that are not likely to be repeated.

[44]   Counsel for the Council submits that the Judge was correct to find that there were no exceptional circumstances of the offence. Their position is that a dog unprovokedly attacking a child in the manner that occurred demonstrates an extremely high risk of harm and a destruction order is necessary.

[45]   I see no error in the Judge’s assessment that the circumstances were not exceptional. Information available on appeal also supports this conclusion. Ms Cross’ evidence is that the front part of the property was never fully fenced. She knows this from regular patrols of the areas, and has provided photographs of Ms Toki’s property, including from the day Lucius was collected. It is clear that regardless of the damage to the fence caused by the car, the property was not fully fenced. Ms Cross says that both before and after the fence was damaged by the car, once Lucius was out the front door, he had a free path to go up the driveway and off the property.

[46]   The new evidence on appeal for Ms Toki essentially advances an argument that Lucius escaped solely because of Mr Havil’s actions. The Court of Appeal has made clear in Hill that an explanation of how the dog escaped does not amount to an exceptional circumstance.20 Rather, the Court of Appeal explained that what may amount to an exceptional circumstance would be a situation where the owner of dog A

20     Auckland City Council v Hill, above n 3, at [78].

was rushed or attacked by dog B and dog A acted to protect its owner.21 This of course is not what happened in the present case. Accordingly, I do not need to reach comprehensive conclusions about the evidence from Mr Havil and Ms Toki’s mother. However, I note that Mr Havil says that Lucius ran through a gap in the fence and, at the least, I do not accept that this is an accurate description of what happened, given Ms Cross’ evidence in relation to the open nature of the front section of the property.

[47]   In addition, as already mentioned, Ms Cross’ affidavit illustrates that this was not the first time that Lucius has left the property and rushed towards another person and their dog. All of this suggests that there remains a risk Lucius may attack another person in a similar way if he were to get free from the property. Ms Cross’ evidence also indicates that Lucius has displayed aggressive behaviour on multiple occasions while in possession of the Council in the pound and extra protection measures have had to be taken as a result.

[48]   I agree with the Judge that a dog attacking a child in an unprovoked way demonstrates an extremely high risk of harm in the future and threat to public safety. The Judge correctly ordered destruction of Lucius under s 57 of the Dog Control Act.

[49]Accordingly, this ground of appeal is not made out.

Result

[50]For the reasons above, the appeal is dismissed.

McQueen J

Solicitors:

Simpson Grierson, Wellington for Respondent

21     Auckland City Council v Hill, above n 3, at [76].