Xing v Auckland Council
[2025] NZHC 1874
•10 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-263
[2025] NZHC 1874
BETWEEN WEIWEI XING
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 30 June 2025 Appearances:
T A Hwang for Appellant B V Magill for Respondent
Judgment:
10 July 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 10 July 2025 at 12 pm.
………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
Queen City Law, Auckland Auckland Council, Auckland
XING v AUCKLAND COUNCIL [2025] NZHC 1874 [10 July 2025]
Introduction
[1] On 1 May 2025 Weiwei Xing entered a guilty plea in respect of one charge of owning a dog that attacked a person contrary to s 57(2) of the Dog Control Act 1996.1
[2] Judge K Davenport KC in the District Court discharged Mr Xing without conviction pursuant to s 106 of the Sentencing Act 2002. She ordered Mr Xing pay reparation to the victim of $60 and $2,000 to the Auckland Council. An order was made for the destruction of Mr Xing’s dog.
[3] Mr Xing now appeals against the order for destruction of the dog on the grounds that the destruction order was an error because a conviction of a dog’s owner is a precondition to an order for destruction being made under s 57(3) of the Dog Control Act.
[4] The respondent opposes the appeal and submits that jurisdiction to make the order exists pursuant to s 106(3)(c) of the Sentencing Act.
The offending
[5] The appellant, Mr Xing, was jointly responsible with his wife, Ms Yuan, for Bi Dong, a tan and white male Shiba Inu. Ms Yuan was the registered owner of Bi Dong.
[6] On 4 May 2024 at approximately 12.15 pm the complainant was walking his dog Jack in a Remuera reserve. The complainant noticed Bi Dong on the reserve apparently unaccompanied. Bi Dong then approached Jack and started growling. The complainant moved away from Bi Dong and Jack followed the complainant. Bi Dong approached Jack from behind and the dogs started growling and biting at each other’s faces. Jack was not injured. The complainant reached down to grab Jack by the collar and pull him away from Bi Dong. Bi Dong then bit the complainant on his right lower leg before running off. The complainant sustained a three-centimetre laceration to his lower right shin and three puncture wounds to the back of his lower right leg. The complainant’s leg bled heavily as a result of the bite, requiring medical treatment.
1 Auckland Council v Xing [2025] NZDC 12271.
[7] In a statement, Mr Xing acknowledged he and his wife were Bi Dong’s owners and accepted Bi Dong had escaped their property and bitten the complainant. Mr Xing did not cooperate with animal management following the incident and refused access to his property when animal management arrived to seize and impound Bi Dong. By the time police arrived to assist animal management with the seizure, Bi Dong was not able to be located. Bi Dong was subsequently located and impounded.
The sentencing decision
[8]The sentencing decision is brief making the following orders:
I have made an order under s 106, so that discharges you without conviction, Mr Xing, on the proviso that you pay $2,000 to the Council and reparation to [the complainant] of $60 and I make an order for destruction of the dog.
[9] The judgment does not discuss the legislative basis for the destruction order. It became clear in the course of the appeal hearing that this was likely because the order was by consent.
[10] At the appeal hearing the respondent sought to hand up a report of the prosecutor who appeared at the District Court hearing. That report had not been provided to Ms Xing’s counsel nor referred to in the respondent’s submissions. Before receiving the report, I stood the matter down to enable Mr Xing’s counsel to take instructions as to whether I should receive it and whether he agreed with the contents of the report. After an adjournment Mr Xing’s counsel consented to the Court receiving the report and did not dispute the accuracy of it.
[11] It transpired that at the hearing the Judge enquired with Mr Xing about Bi Dong’s current whereabouts and about whether Mr Xing was opposed to the destruction order. Mr Xing stated he had not seen Bi Dong since the day of the attack and was not opposed to the destruction order.
The approach on appeal
[12] An appellant may appeal against sentence as of right under s 244 of the Criminal Procedure Act 2011. Section 311 of the Criminal Procedure Act provides an appeal against an order made in conjunction with a discharge under s 106 is treated as
an appeal against sentence which provides that s 250 of the Criminal Procedure Act applies.
[13] Sentence appeals are governed by s 250 of the Criminal Procedure Act. The appeal must be allowed if an appellate court is satisfied that for any reason there is an error in the lower court decision and a different sentence should be imposed.2 In any other case, the court must dismiss the appeal.3 When allowing an appeal on the basis that there was an error in the sentence imposed, the appellate court may: set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate, vary the sentence or any part of the sentence or any condition of sentence, or remit the sentence to the court that imposed it.4
Discussion
[14] The appellant contends the Judge had no jurisdiction to make a destruction order in light of Court of Appeal authority which confirms that a conviction is a precondition of any destruction order made under s 57(3) of the Dog Control Act.5
[15]Section 57 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.
2 Sentencing Act 2002, s 250(2).
3 Section 250(3).
4 Section 251(2).
5 Re Solicitor-General’s Reference from CRI-2022-404-212 ([2022] NZHC 31) [2024] NZCA 401, determining that the court was correct in Telford v Auckland Council [2023] NZHC 31.
[16]In Re Solicitor-General’s Reference from CRI 2022-404-212 ([2022] NZHC
31) the Court of Appeal resolved conflicting lines of High Court authority regarding conviction being required before making an order for destruction of a dog under s 57(3) of the Dog Control Act.
[17] However, s 106 of the Sentencing Act provides a residual discretion to consider whether a destruction order ought to be imposed following discharge without conviction.
[18] Section 106(1) empowers a court to discharge an offender without conviction. Section 106(3) provides:
A court discharging an offender under this section may— (…)
(c) make any order that the court is required to make on conviction.
[19]In Telford v Auckland Council in the High Court Fitzgerald J said:6
Telescoping to the conclusion I have reached, I find that a conviction is a precondition to the making of a dog destruction order under s 57(3) of the Act. The Judge accordingly had no jurisdiction to make the destruction order under s 57 (3). There is, however, a residual discretion to make a dog destruction order pursuant to s 106(3)(c) of the Sentencing Act 2002. This gives the court, on granting a discharge without conviction, the discretion to make any order the court is “required to make” on conviction. While I consider that a dog destruction order is one the court is “required to make” on conviction, I do not exercise my discretion to make an order in this case. The appeal must accordingly be allowed and the destruction order quashed.
[20] As set out in the Telford decision the discretionary power to make a destruction order pursuant to s 106(3)(c) is only available “if the Court had been required to make one on conviction of Mr Telford — in other words, if the circumstances of the attack were not exceptional”.7
[21]In Telford Fitzgerald J said:8
6 At [4].
7 Telford, above n 5, [90].
8 At [95].
It cannot be the case that because the proviso to s 57(3) is not made out, a destruction order ought to automatically follow under s 106(3)(c). If that were the case, there would be no rationale for the discretion under s 106(3)(c). To put the point another way, the discretion to make an order pursuant to s 106(3)(c) is only enlivened in circumstances where, but for the discharge without conviction, the court would have been required to make the order in question. For that to be the case, the court must have already concluded that any statutory exceptions to an otherwise mandatory order have not been established. The discretion contained in s 106(3)(c) must therefore enable a broader range of factors to be taken into account than those driving the conclusion that the statutory exception is not made out. Nevertheless, the reasons why the proviso to s 57(3) was not made out will, in my view, be relevant, as will the public safety purpose of s 57(3).
[22] In Fountain v Auckland Council Wylie J considered s 106(3)(c) of the Sentencing Act conferred an unfettered discretion entitling the Court to take into account a much broader assessment than the enquiry under s 57(3) of the Act which is limited to the immediate circumstances of the offence. 9
[23]Wylie J further explained:10
The Court can only consider making an order under s 106(3)( c) if the order is mandatory upon conviction - that is, it is required in every case or in the absence of any prescribed exceptions. It may not impose orders that are merely discretionary.
Section 57(3) of the Act provides that the Court must make an order for the destruction of a dog that has committed a s 57(1) attack unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog. The section does not vest a discretion in the Court. Rather, it requires the Court to determine whether or not the prescribed exception is made out.
Accordingly, and notwithstanding that Ms Fountain has been acquitted of the offences, I must consider whether or not there were exceptional circumstances in this case. Only then will I be able to consider whether or not the discretion conferred by s 106(3)(c) is open in the circumstances of this case.
[24] The approach of this Court in Fountain was endorsed by Isac J in Adams v South Taranaki District Council:11
Given the underlying public protection focus of the Act, and its focus on criminalising certain conduct by dogs owners as the mechanism to achieve public safety, it seems inescapable to me that a conviction is a precondition of a destruction order, and, of equal important in Mr Adam’s case, it also forms
9 Fountain v Auckland Council [2018] NZHC 591 at [63].
10 At [41]-[43] (footnotes omitted).
11 Adams v South Taranaki District Court [2021] NZHC 3254 at [44].
part of the direct or indirect consequences of a conviction which the Court ought to take into account under s 106. And, as Wylie J found in Fountain, the Court retains a discretion under s 106(3)(c) of the Sentencing Act whether, on granting a discharge without conviction, to make an order for destruction.
[25] As the respondent points out, the Judge did not, in her decision purport to make an order under s 57(3) of the Dog Control Act. The only reference was to s 106 of the Sentencing Act. The Judge had jurisdiction to make an order for destruction of a dog after granting a discharge without conviction by virtue of s 106(3)(c) of the Sentencing Act providing the exceptional circumstances test in s 57(3) was not made out. No exceptional circumstances were raised in the District Court.
[26] Providing the Judge was satisfied that the destruction order was an order that the Court would have been required to make upon conviction, the order could be made as an exercise of the Judge’s discretion pursuant to s106 (3)(c). Because there was no opposition to the order for destruction, there was no evidence placed before the District Court Judge as to whether destruction should or should not be ordered. No such evidence has been placed before me either.
[27] During the appeal hearing, Mr Xing’s counsel submitted that Mr Xing did not understand that the order for destruction could be opposed or could the subject of evidence, without necessarily jeopardising the granting of a s 106 discharge without conviction. Mr Xing did not file any evidence to support that position.
[28] The situation both in the District Court and before me on appeal was unsatisfactory. Counsel for Mr Xing argued the Judge had no jurisdiction, but this argument ignored s 106(3)(c) which clearly provides jurisdiction in circumstances where a destruction order would be mandatory upon conviction — that is, where no exceptional circumstances existed. Both the respondent and appellant provided evidence from the bar. The respondent sought to rely on a hearsay report from the original prosecutor. The appellant’s counsel submitted that her client was not aware, and by inference was not advised by the duty lawyer, that he could challenge the making of a destruction order under s 106(3)(c). She submitted that Mr Xing had an apparent, and potentially incorrect assumption, that his agreement to the destruction order was required in order for him to obtain a discharge without conviction.
[29] It seems that because of that mistaken understanding, the issue of whether or not a destruction order should be made in this case was not argued and the Judge’s attention was not drawn to the need to consider whether exceptional circumstances existed in order to enliven discretion under s 106(3)(c). An order for destruction is not mandatory if there are exceptional circumstances and in such a case there is no jurisdiction to make the order under s 106(3)(c). Nor are exceptional circumstances required to avoid a dog destruction order in the context of a s 106 discharge where there is jurisdiction to make such an order. These are all matters that should have been considered, and evidence provided if Mr Xing wished to oppose the destruction order.
[30] This is not a case where the appellant is now arguing that the District Court erred. Rather the argument is that there was a miscarriage of justice for another reason.
[31] In Quinlivan v Police it was held that the principles in Sungsuwan v R are broadly applicable to an appeal against sentence.12
[32]In Sungsuwan it was held:13
Miscarriage of justice does not arise because of incidental errors or irregularities in the trial, unless they amount to denial of the right to fair trial contained in s 25(a) of the New Zealand Bill of Rights Act or unless they are significant enough in themselves to cause the appellate Court to consider the verdict to be unsafe. Where the ground of miscarriage of justice under s 385(1)(c) is made out, application of the proviso to s 385 is not likely to be appropriate. It is difficult to envisage that a verdict reached without fair trial or which is unsafe will not amount to a substantial miscarriage of justice.
Counsel error is not itself a ground of appeal under s 385(1). The inquiry is not into the competence of counsel but whether the verdict is unsafe through any deficiency in the trial, however caused. Where, as here, the basis of the ground of appeal is that relevant and admissible evidence was not called (whether because it was not reasonably available at trial or because counsel did not choose to call it), the effect of its absence will have to be assessed. The context may include the cogency of the evidence not called, the other evidence at trial, any additional evidence likely to have been elicited in response had the evidence been called, and any risk to the defence in calling the evidence.
12 Quinlivan v Police [2014] NZHC 3163 at [14].
13 Sungsuwan v R [2005] NZSC 57; [2006] 1 NZLR 730 at [6]–[7].
[33] Although the evidential position is unsatisfactory, I accept that there is a real risk that a miscarriage of justice has arisen because of a mistaken understanding by Mr Xing of the legal position.
[34] Because the consequences of such an order are final, it seems to me that the appeal must be allowed, and the matter remitted to the District Court for reconsideration of the dog destruction order on the basis that Mr Xing’s lack of opposition was based on an incorrect understanding of his legal position. It may well be that the outcome will not change, but Mr Xing should have the opportunity to present any evidence he wishes to present to the Court.
Result
[35]The appeal is allowed.
[36]The order for destruction for Bi Dong is quashed.
[37] The matter is remitted to the District Court for reconsideration of whether an order for destruction of the dog should be made pursuant to s 106(3)(c).
Wilkinson-Smith J
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