Van der Veen v Christchurch City Council

[2020] NZHC 1534

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000066

[2020] NZHC 1534

BETWEEN

SHANE TONY VAN DER VEEN

Appellant

AND

CHRISTCHURCH CITY COUNCIL

Respondent

Hearing:	1 July 2020
Appearances:	Appellant in person, with P Day, McKenzie friend P Leeming and V Wilson for the Respondent
Judgment:	1 July 2020

JUDGMENT OF DOOGUE J

Introduction

[1]    Mr van der Veen was convicted of being an owner of a dog that attacked a domestic animal, which is a strict liability offence under s 57(2) of the Dog Control Act 1996 (the Act). He was sentenced by Judge Couch on 11 May 2020.1

[2]    The Judge made an order for the destruction of Mr van der Veen’s dog, “Kyra”, as required by s 57(3) of the Act which states the Court must make an order for the destruction of the dog involved in the s 57(2) offence “unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.”

[3]    Mr van der Veen was ordered to pay reparation of $1234.10 for veterinary treatment for the injured dog, “Oakley”, and was fined $700.

1      Police v van der Veen [2020] NZDC 9581.

VAN DER VEEN v CHRISTCHURCH CITY COUNCIL [2020] NZHC 1534 [1 July 2020]

[4]Mr van der Veen appeals the destruction order on the basis that:

(a)due to COVID-19, he was not able to take appropriate advice;

(b)he would like to present the Court with some alternatives to destruction; and

(c)he believes the Judge erred in making the destruction order.

Facts

[5]    Mr van der Veen owns a four-year-old dog named Kyra. Kyra is a female, grey and white Siberian Husky German Shepherd cross and was classified as  a  dangerous dog under the Act on 14 March 2017.2

[6]    On 22 August 2019 at approximately 1.30 pm the victim was out running with his  dog  Oakley,  a  Shetland  Sheepdog.   While  the  victim   was  running  past   Mr van der Veen’s property, Kyra began barking and attempted to push through the fence. Mr van der Veen called Kyra away from the fence, but she did not respond.

[7]    Kyra then managed to break through the fence by pushing down the wire mesh, and slipping between the mesh and the top wire. Once through, Kyra latched onto Oakley’s rear end and began shaking her head. Mr van der Veen jumped the fence and pulled Kyra from Oakley. Oakley required stitches to his rump. Mr van der Veen admitted he knew Kyra could escape through the boundary fence.

District Court decision

[8]    The Judge held the mandatory provision in s 57(3) of the Act was engaged and that the Court must therefore make an order for the destruction of the dog unless satisfied the circumstances of the offence were exceptional.   The Judge accepted   Mr van der Veen’s submissions about the character of the dog generally, but asserted that unless those factors could be related directly to the circumstances of the offending they would not affect the decision.

2      Dog Control Act 1996, s 31.

[9]    The Judge found, and Mr van der Veen accepted, there was nothing particularly exceptional about the circumstances of the offence. The Court was thus required under s 57(3) to make the destruction order.

Approach on appeal

[10]   This  is  an  appeal  against  sentence  pursuant  to  s  244(1)  of  the   Criminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.

[11]   A sentence appeal is an appeal against a discretion, and only if the sentence is manifestly excessive or contains an error in principle should the appellate court re- exercise the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.3 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.4

Appellant’s submissions

[12]   Before the Court is a letter from Mr van der Veen in which he outlines Kyra’s importance not just as a pet, but as a loved member of the family. Mr van der Veen describes Kyra as a beautifully natured dog who is great with people, and who deserves a full life. Mr van der Veen has also provided a petition, and two letters in support of his appeal.

[13]   The petition started via Facebook, titled “Help save Kyra from Destruction”, has over 3,200 signatures from New Zealanders and from users in over 52 different countries. Through this petition, many people have voiced their support for Kyra, stating: “Kyra deserves a second chance with someone to rehabilitate her”; “this doggy is family, She is not just a pet… [she] needs another chance”; “dogs are family”; and “this is not the right or humane response to do this. Alternative options should be explored”.

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

4      Ripia v R [2011] NZCA 101 at [15].

[14]   A letter from Sharon Poulsen, a friend of Mr van der Veen, notes Kyra has been at the pound for over eight  months  waiting  for this  application  to  be resolved.  Ms Poulsen also comments that Kyra has spirit and is not vicious.

[15]   The second letter provided by Mr van der Veen is from Mr Paul Day, a responsible dog owner with a fully fenced property. Mr Day proposes Kyra be re-homed with him, as she is not dangerous or aggressive and loves people. Mr Day is committed to providing the right training to properly socialise Kyra. Mr Day submitted that Kyra has been let down by both Mr van der Veen and the Christchurch City Council (the Council), but she deserves another chance. Mr Day submitted the Court should provide another chance for Kyra in a similar way in which the Court allows for the rehabilitation of humans.

[16]   Mr Day also submitted that procedural issues with the Council should be considered. Mr van der Veen was advised he was unable to own dogs after, after a one-year delay. The incident occurred four months after Mr van der Veen was advised. Mr van der Veen could have rehomed Kyra had he known earlier. Therefore, he argues that the Council have some culpability in this matter.

[17]   Mr van der Veen has not, however, filed any submissions which address any error of law or improper exercise of judicial discretion which led to a sentence that was manifestly excessive.

Respondent’s submissions

[18]   Ms Leeming for the respondent submitted the correct approach is the two-step test recently articulated by the Court of Appeal in Auckland Council v Hill.5 This was the approach adopted by the Judge. First, the relevant circumstances of the offence must be ascertained. Secondly, the Court should consider whether the circumstances of the attack were exceptional and therefore do not warrant destruction of the dog.

[19]   Ms Leeming submitted that it is not open to a dog owner to argue the dog can be expected to behave differently in similar circumstances in the future, for example

5      Auckland Council v Hill [2020] NZCA 52 at [5] and [6].

because of post-attack training, as post-attack events do not form part of the circumstances of the offending.6 The focus must be on the risk the dog poses, assuming it will behave similarly in similar circumstances in the future.7 Ms Leeming submitted Mr van der Veen’s actions to re-home Kyra after the event cannot form part of the circumstances of the offence and therefore cannot form part of the Court’s considerations.8 It is not open to Mr van der Veen to argue after the attack that the dog will behave differently in similar circumstances.9

[20]   Ms Leeming submitted a one-off failure by an otherwise responsible dog owner to maintain effective control is not an exceptional circumstance and assurances by an owner about future management are irrelevant.10 Ms Leeming submitted the circumstances of the attack were not exceptional: Mr van der Veen knew Kyra could escape and failed to maintain his property to a standard that would prevent Kyra’s escape. A dog owner is required by law to take precautions, and therefore there is nothing exceptional about these circumstances where Mr van der Veen failed to take the necessary precautions.

[21]   Ms Leeming accepted that if the circumstances of the attack are exceptional in that the dog can properly be seen as not intrinsically dangerous, the Court may be satisfied those circumstances do not warrant destructions. Examples of these exceptional circumstances include where the dog’s owner was under attack, or where the dog was provoked.11

[22]   Ms Leeming submitted that should Kyra be in a similar situation in the future, there is a real risk she will attack and therefore it is in the public interest that Kyra be destroyed.

6 At [7].

7 At [7].

8      At [7] and [77].

9      At [7] and [10].

10     At [8] and [80].

11 At [84].

Analysis

[23]   The offence provided for in s 57(2) is a strict liability offence: being the owner of a dog that makes a relevant attack. The prosecution is not required to establish a lack of care on the part of the owner. The owner of a dog may be convicted without any consideration of the precautions (if any) that were taken by the owner to prevent an attack, the reasons why those precautions failed, and whether the owner should have taken additional precautions. Indeed, the offence may be committed even if the owner did not, at the relevant time, have possession of the dog because it had been left in another person’s care for less than 72 hours.12

[24]   Where an offence has been committed under s 57(2), s 57(3) applies. An order for destruction of the dog is the normal consequence of such an attack taking place, unless a judge finds that the exception in s 57(3) applies.

[25]   This appeal therefore turns on whether the circumstances of the offence were exceptional, such that destruction is unwarranted. The Judge may only avoid ordering destruction in exceptional circumstances.13 The purpose of this section is not to punish either the dog or the owner, but to protect the public. The Court of Appeal in Auckland Council v Hill commented:14

We do not see the purpose of s 57(3) as punishment of the owner, or for that matter of the dog. Nor do we accept the Council’s submission that deterrence is a significant purpose of s 57(3). The goal of deterrence of owners is achieved by the sentence imposed under s 57(2). Section 57(3) is concerned with ensuring that there is no real risk that the dog will attack again.

[26]   There has been some uncertainty in the case law as to whether post-attack offers of rehabilitation, rehoming or training can factor into the analysis of “exceptional circumstances” that mitigate the risk posed by the dog and therefore enable avoidance of a destruction order.15 Ms Leeming has helpfully directed the Court to the most relevant recent case law from the Court of Appeal on this issue. The Court established that events following an attack cannot be taken into consideration

12 At [47].

13     Orr-Walker v Auckland Council [2013] NZHC 784 at [20].

14     Auckland Council v Hill (CA), above n 5, at [66].

15     Korewha v Whangarei District Council [2017] NZHC 3178; Mead v Whanganui District Council

[2018] NZHC 3193.

when undertaking a s 57(3) analysis.16 In particular, the reference to the circumstances of the offence in s 57(3) cannot be read as including a reference to precautions taken by the owner after the attack.17 This means that while Mr van der Veen’s efforts to re- home and socialise Kyra are commendable, they cannot be used to circumvent Parliament’s requirements under section 57(3). Assurances given by Mr van der Veen about the future management and control of the dog are not relevant to the s 57(3) inquiry. Such assurances are not enforceable. There is no way of checking that a dog’s management is sustained over time. The ownership of the dog may change. The owner will at times be dependent on others to take responsibility for the dog, for example during holidays and other absences from home.

[27]   The circumstances of the offence must be exceptional (meaning unique, special, or substantially unusual) although the circumstances need not be extreme.18 The Court of Appeal in Auckland Council v Hill held exceptional circumstances include those where the dog’s owner was under attack, or where the dog was provoked.19 The Court noted there is nothing exceptional about precautions being omitted,  or  failing,   even   where   those   precautions   are   required   by   law.20  Mr van der Veen himself has acknowledged these circumstances were not exceptional. It is accepted Kyra was neither provoked, nor was Mr van der Veen under attack. This is a case where Mr van der Veen failed to maintain effective control. A one-off failure to maintain effective control will not amount to exceptional circumstances.21 Kyra ignored commands to return to her owner. This was an unprovoked attack on another dog in a public place.22

[28]   In summary, circumstances that were not exceptional at the time of an attack cannot retrospectively become exceptional as a result of post-attack events. The language of s 57(3) suggests that the question is whether the circumstances were exceptional at the time of the attack. That approach is consistent with the focus,

16     Auckland Council v Hill (CA), above n 5, at [7].

17 At [73].

18     Pomana v Police HC Dunedin AP8/97, 8 April 1997.

19     Auckland Council v Hill (CA), above n 5, at [84].

20 At [80].

21     At [8] and [80].

22     Evans v Queenstown Lakes Council [2012] NZHC 2963 at [23].

described, above on the likelihood of the circumstances in which the attack occurred being repeated.

[29]   It follows that the s 57(3) test is not met by Mr van der Veen promising to take exceptional precautions to keep the dog under control in the future and establishing that if such precautions are taken another attack is unlikely. If anything, the need for such precautions suggests that there was nothing exceptional about the circumstances of the offence and that an attack is a real risk in ordinary circumstances (that is, absent the necessary precautions having been taken). The observation of Judge Matheson in another s 57 case that the post-attack steps taken in that case “to my mind, simply underline how dangerous this dog is” is apposite.23

[30]   The Judge was correct to find that exceptional circumstances as required by   s 57(3) do not exist in this case, so the Court had to impose a destruction order.

[31]   I note the Council have unnecessarily extended Kyra’s suffering, as she has been held in a pound for approximately eight months. Mr van der Veen has also had to deal with unnecessary uncertainty through the Council’s significant delays in prosecuting this case.

[32]   I acknowledge all the sentiments expressed in the petition and the letters before me. It is clear that they are genuine and heartfelt. It is also clear that there is support for an alternative response to offending of this type. However, this is not the correct forum to address these concerns. I am bound to follow the legislation as enacted by Parliament, and it is to Parliament that the concerns expressed in the petition ought to be addressed.

Conclusion

[33]The appeal is dismissed.

Doogue J

23     Wanganui District Council v Reweti [2018] NZDC 3208 at [25].

Solicitors:

Christchurch City Council, Christchurch