White v Auckland Council
[2023] NZHC 2080
•7 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000210
[2023] NZHC 2080
BETWEEN SHANE WHITE
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 7 August 2023 Appearances:
R J Abbott for Appellant T C Fu for Respondent
Judgment:
7 August 2023
ORAL JUDGMENT OF VAN BOHEMEN J
[appeal against sentence]
Counsel/Solicitors:
R J Abbott, Auckland Rice Speir, Auckland
WHITE v AUCKLAND COUNCIL [2023] NZHC 2080 [7 August 2023]
[1] On 24 March 2023, Shane White pleaded guilty before Judge G A Fraser in the District Court at Waitakere to two charges of owning dogs that attacked stock, specifically a cow, on a property on Redhills Road in Massey, Auckland. Mr White was convicted and sentenced on one charge and convicted and discharged on the other. He was ordered to pay a fine of $650, court costs of $130 and veterinary costs of
$272.60. Pursuant to s 57(3) of the Dog Control Act 1996 the two dogs were ordered to be destroyed.1
[2] Mr White appeals his sentence in order to challenge the orders for the destruction of his two dogs.
The offending
[3] On 6 September 2021, at approximately 7:45 am, Mr White’s two dogs, an American Staffordshire Terrier Cross named Missy and a Border Collie Cross named Ramen, were off-lead running down Morus Road, adjacent to the property where the victim’s cows were grazing. Once the dogs saw the cows, they changed direction and ran towards the victim’s boundary fence line. The victim saw Mr White and yelled out to him to make sure the dogs stayed on the other side of the fence and away from her cows.
[4] Mr White kept walking down the road with Missy and Ramen approximately 30 metres ahead of him until the victim lost sight of them. Worried that the dogs might attack her cows, the victim went into her home and turned on her security cameras which faced where the cows were feeding. She saw Missy and Ramen running up the paddock on her property. She ran outside and saw her cows panicking. One cow jumped the fence to get away from the dogs while another was bailed up against a fence. Missy and Ramen attacked that cow, with one dog biting its face and the other biting at its rear legs.
[5] After the victim’s son ran towards the dogs with a stick in hand, the dogs ran off. Mr White then called out to his dogs before they made their way back to his
1 Auckland Council v White [2023] NZDC 8379.
vehicle parked on Red Hills Road. Mr White took off as the victim yelled to him to say she was calling the Police.
[6] The cow that was attacked sustained two puncture wounds for which it received veterinary treatment. Missy and Ramen were subsequently seized and impounded at the Henderson Animal Shelter before being released to Mr White’s property on strict conditions pending the outcome of prosecution.
[7] The summary of facts states that, on 3 August 2021, Missy and Ramen were classified as menacing pursuant to s 33A of the Dog Control Act 1996 following a previous attack on a cat which resulted in the cat’s death. (I note Mr White says that it has not been established that the dogs were responsible for the cat’s death.) On 24 July 2021, Mr White was classified as a probationary owner under s 21 of the Dog Control Act because he committed three separate infringement offences within a period of 24 months. The Statement of Facts also records that, between 12 February 2021 and 24 July 2021, Mr White was issued with eight infringements, four for each dog, for failing to keep the dogs under control, and failing to keep the dogs under control in a leash in a controlled in-leash area.
District Court decision
[8] The Judge described the accepted facts and outlined the submissions of counsel, particularly on the question of whether the attack was exceptional. Referring to the High Court’s decision in Halliday v New Plymouth District Council2 and the Court of Appeal’s decision in Auckland Council v Hill3 concerning the application of s 57 of the Dog Control Act, the Judge said his focus was on whether the circumstances were sufficiently exceptional that the risk of the dogs attacking again in similar circumstances was removed and did not warrant destruction in the interests of public safety.4
[9] The Judge considered that no exceptional circumstances were made out. The dogs were off the leash in a situation where Mr White had no control or sight of them
2 Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005.
3 Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.
4 Auckland Council v White, above n 1, at [15]–[24].
and the attack was the consequence of this. The Judge said that Mr White should have known about his dogs’ propensity based on their history and referred to the previous attack on a cat and to the eight occasions where infringements were issued for failing to keep the dogs under control.5
[10]The Judge then said:
[28] For that reason, this event could well have been predicted in a situation where Mr White was potentially unaware of where stock might be and even if he was aware then the ability of the dogs to get through any fence, or get over fences, in order to engage in this sort of behaviour. As I say, propensity was clear, and it was incumbent upon Mr White to prevent any event from happening. In other words, the dogs should have been maintained on a leash, rather than running free in an area where admittedly Mr White thought the dogs were contained, but the reality is that they were not and as a result this attack occurred.
[11] In light of that conclusion, the Judge said that where the attack was not in exceptional circumstances, the consequence of a dog destruction order was mandatory.6 The Judge concluded by recording his view that it was wrong for the dogs to have been returned to Mr White in a situation where a destruction order would be sought.7
Approach on appeal
[12] Mr White’s appeal against the dog destruction orders under s 57(3) of the Dog Control Act are appeals against sentence. This Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.8 Otherwise, it must dismiss the appeal.9
[13] Mr White must point to an error, either intrinsic to the Judge’s reasoning or evident as a result of additional materials submitted on appeal.10 Unless there is a material error in the sentence, the appellate Court will not intervene.11 The appellate
5 At [26]–[27].
6 At [29].
7 At [33].
8 Criminal Procedure Act 2011, s 250(2).
9 Section 250(3).
10 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
11 Te Aho v R [2013] NZCA 47 at [30].
Court does not start afresh or simply substitute its own opinion for that of the Court below.12
Dog Control Act 1996
[14]Section 57 of the Dog Control Act relevantly provides:
(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.
[15] The approach to the application of s 57 of the Dog Control Act was explained by the Court of Appeal in Auckland Council v Hill.13 The Court said:
[4] Where the owner of a dog is convicted of the strict liability offence created by s 57(2), an order under s 57(3) for destruction of the dog will normally follow.
[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
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
13 Auckland Council v Hill, above n 3.
is remote, and does not justify destruction of the dog in the interests of public safety.
[16] In the body of its decision, the Court of Appeal explained the application of these steps.
Submissions
[17] Ms Abbott, counsel for Mr White, submits that the attack was exceptional for the purposes of s 57 and takes issue with the Judge’s characterisation of the dogs as having a propensity to attack. She says the attack was exceptional because it was a one off, isolated incident that can be prevented from happening again in the future by Mr White never returning back to the site of the attack, and that it would not have happened had Mr White kept the dogs leashed. Ms Abbott accepts that complaints have been made about these dogs before, but says that there is no evidence that these dogs have been involved in previous attacks. She submits that destruction is not warranted in these circumstances.
[18] Ms Fu, for Auckland Council, submits that the Judge correctly applied the test in Hill to find that the circumstances of the attack were not exceptional and says that the dogs do, in fact, have a previous history of attacks. She says that the Judge’s consideration of this history was directly relevant to the immediate circumstances as it related to those dogs, and to Mr White’s responsibility for controlling them. Ms Fu also says there is nothing exceptional about a one-off failure by an otherwise responsible dog owner and that the lack of any incidents since the attack is not relevant to whether there were exceptional circumstances at the time of the offending. She says that the grounds submitted by Mr White have no material impact on the end result and that this result was clearly the correct decision.
Analysis
[19] It appears that the dogs do have a history of attacking animals previously, while I take again note of what Mr White says about the cat. It is also apparent that Mr White has a history of failing to keep the dogs under control. Nonetheless, in accordance with the Court of Appeal’s directions in Hill, that history does not form part of the
circumstances of the offending for which Mr White was convicted.14 In that respect, the Court of Appeal in Hill specifically differed from the approach of the High Court in Halliday.15
[20] For these reasons, I accept that the District Court Judge erred in taking the dogs’ prior history and Mr White’s prior history into consideration.
[21] However, it is also clear from the Court of Appeal’s directions in Hill that it is not open to Mr White to argue that the dogs can be expected to behave differently in similar circumstances in the future.16 Nor is it open to Mr White to argue that he will not allow his dogs to be in similar circumstances in the future.17 The Court of Appeal has 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.18 Similarly, the Court of Appeal has made it clear that it is not open to Mr While to argue that the test of what constitutes exceptional circumstances is met because the attack was caused or contributed to by a one-off failure to maintain effective control of the dog.19
[22] In short, all of the submissions advanced by Ms Abbott in support of a finding that the attack was the result of exceptional circumstances run directly contrary to and are excluded by the Court of Appeal’s decision in Hill.
[23] As the Court of Appeal said in Hill, s 57(3) proceeds on the basis that the previous attack establishes that there is a risk of the dog attacking again in similar circumstances.20 The Court directed that, when considering the application of s 57(3), it is necessary to establish the relevant circumstances and then establish whether those circumstances were exceptional and were such that they do not warrant destruction of the dogs.
14 At [5].
15 At [71].
16 At [77].
17 At [80].
18 At [77].
19 At [78].
20 At [75].
[24] The relevant circumstances are that Mr White was walking with the dogs off the 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. I accept that Mr White had an injury that it impeded his ability to regain control of the dogs but that does not make the circumstances exceptional.
[25] Plainly, these are not exceptional circumstances. It is not unusual that dogs will attack livestock when not controlled on a leash or by some other means. There is clearly a risk of the dogs attacking again in similar circumstances, irrespective of past history and irrespective of any steps Mr White might take to avoid similar circumstances in the future. There is no basis, therefore for the Court to find that the circumstances were exceptional and were such that they do not warrant destruction of the dogs.
[26] For these reasons, Mr White’s appeal against the order for destruction of the dogs must fail.
Result
[27]Mr White’s appeal is dismissed.
[28] Like Judge Fraser, I record my view that it was not appropriate for the dogs to have been returned to Mr White in a situation where a destruction order was likely, given the terms of s 57(3). The delay between the return of the dogs and the disposition of this appeal will inevitably make the loss of the dogs that much more difficult for Mr White and his daughter.
[29] Finally, and on a personal note, I have also had to have a dog destroyed once for biting a child, so I understand how difficult these situations are.
G J van Bohemen J
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