NAIK v AUCKLAND COUNCIL [2020] NZHC 2877

NAIK v AUCKLAND COUNCIL [2020] NZHC 2877 [3 November 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-335[2020] NZHC 2877BETWEEN ELIZABETH NAIKAppellantAND AUCKLAND COUNCILRespondentHearing: 2 November 2020Appearances: No appearance by or on behalf of appellantV-L Schaaf for RespondentJudgment: 3 November 2020JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 3 November 2020 at 12:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:V-L Schaaf, Auckland Council[1] Ms Elizabeth Naik (the appellant) appeals against an order made by Judge A CRoberts in the District Court at Auckland on 3 July 2020 for the destruction of theappellant's male Mastiff-cross dog named "Juno".1Background[2] On 25 August 2018, at approximately 11.30 pm, the complainant woke to thesound of dogs barking outside her bedroom window. The complainant looked out thewindow and saw the appellant at the bottom of the driveway yelling at the barkingdogs. The complainant could not see the dogs, but she could hear the sound of thedogs attacking something. When she heard a cat's scream, she ran outside. She sawJuno underneath her truck and the other of the appellant's dogs circling her truck,barking. The complainant and her husband tried yelling at the dogs in an attempt tobreak off the attack. After several minutes both of the dogs retreated back down thecomplainant's driveway. The complainant then found her cat under the truck, severelyinjured, but still breathing.[3] The complainant immediately took her cat to a veterinary clinic for urgentattention. However, the severity of the injuries it had sustained as a result of Juno'sattack were such that it was beyond treatment and had to be euthanised. Juno wasseized and impounded but subsequently released on strict conditions relating to hismanagement. The appellant was charged with owning a dog that attacked a domesticanimal under s 57(2) of the Dog Control Act 1996 (the Act):257 Dogs attacking persons or animals(2) The owner of a dog that makes an attack [on a domestic animal interalia] commits an offence and is liable on conviction to a fine notexceeding $3,000 in addition to any liability that he or she may incurfor any damage caused by the attack.(3) If, in any proceedings under subsection (2), the court is satisfied thatthe dog has committed an attack described in subsection (1) and thatthe dog has not been destroyed, the court must make an order for thedestruction of the dog unless it is satisfied that the circumstances of1 Auckland Council v Naik [2020] NZDC 12733.2 Dog Control Act 1996, s 57(2); maximum penalty fine not exceeding $3,000 in addition to anyliability incurred for any damage caused by the attack and mandatory destruction of the dog.the offence were exceptional and do not warrant destruction of thedog.Procedural history[4] On 3 July 2018, the appellant made her first appearance in the District Courtat Auckland in relation to the charge. She was remanded without plea so as to enableher to obtain legal advice and obtain full prosecution disclosure, before entering a plea.The matter was adjourned to 17 July 2018.[5] When the appellant did not appear on 17 July 2018, the matter was furtheradjourned and subsequently proceeded by way of a formal proof hearing on 7 August2018. In the appellant's absence on that date the charges were found proven, and thematter was adjourned for sentencing on 7 September 2018, to afford the appellant theopportunity to file submissions regarding penalty and the mandatory destruction orderpursuant to s 57(3).[6] On 7 September 2018, the appellant appeared with counsel. The matter wasthen further adjourned to allow her counsel to obtain instructions and was thereafteradjourned on multiple occasions at the request of the appellant due to her health relatedissues and to await the Court of Appeal's decision of Auckland Council v Hill.3[7] On 22 May 2019, the matter was further adjourned so as to allow the appellantto file an application for discharge without conviction pursuant to s 106 of theSentencing Act 2002.[8] The sentencing finally proceeded on 3 July 2020 in the District Court atAuckland. Judge Roberts declined the appellant's application for a discharge withoutconviction and, noting the appellant's concession that the circumstances of Juno'sattack were not exceptional, he made an order for Juno's destruction. He also orderedthe appellant to pay the complainant $300 for emotional harm, and $111.37 for theveterinarian's account.3 Auckland Council v Hill [2020] NZCA 52.[9] The appellant filed her Notice of Appeal in the High Court at Auckland on 31July 2020. The appeal is against the District Court Judge's decision to make an orderfor Juno's destruction.[10] The appellant endeavoured to appear via audio visual link (AVL) at the calloverhearing on 28 August 2020, but this proved unsuccessful when difficulties with theconnection were encountered. Justice Downs then set the appeal down for hearing on2 November 2020 and issued a Minute advising the appellant that irrespective ofwhether she appeared by telephone or AVL at the hearing of her appeal, she wasdirected to file her written submissions with the Court by 12 October 2020, explainingwhy the dog should not be destroyed and also to serve a copy of her writtensubmissions on the Auckland Council.Approach on appeal against sentence[11] An appeal against sentence is governed by the Criminal Procedure Act 2011.Section 250(2) provides that the Court must allow an appeal against sentence ifsatisfied that for any reason, there is an error in the sentence imposed on conviction,and a different sentence should be imposed. In any other case, the Court must dismissthe appeal.4[12] The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was notintended to change the approach previously taken by the courts under the SummaryProceedings Act 1957.5 As such, the measure of error that must be shown, is that thesentence is "manifestly excessive".6 The High Court will not intervene where thesentence is within the range that can properly be justified by accepted sentencingprinciples. Whether a sentence is manifestly excessive is to be examined in terms ofthe sentence given, rather than the process by which the sentence was reached.4 Criminal Procedure Act 2011, s 250(3).5 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26] – [27].6 At [26] – [27].SubmissionsFor the appellant[13] The appellant did not file any written submissions notwithstanding Downs J'sdirections in his Minute dated 28 August 2020. Furthermore, the appellant did notappear at the hearing of her appeal on 2 November 2020.[14] As I earlier noted, the appellant's Notice of Appeal, filed on 31 July 2020,states that she appeals the decision of Judge Roberts to order Juno's destruction. Inher briefly stated grounds of appeal, the appellant disputes whether the Judge hadreasonable grounds to make the order, and requests that consideration be given to analternative sentence, such as an order that Juno be muzzled whenever he is out in apublic place.For the respondent[15] Ms Schaaf, for Auckland Council, submits that it was appropriate for JudgeRoberts to make a destruction order in this case, as the circumstances of the offencewere not exceptional.[16] Ms Schaaf notes that the leading authority on the s 57(3) assessment as towhether the circumstances of a dog attack are exceptional is the Court of Appealjudgment in Auckland Council v Hill in which the Court said:7[5] The first step in applying s 57(3) is to identify the relevantcircumstances of the offence. What happened? This inquiry should focus onthe immediate circumstances of the attack itself. The dog's history does notform part of the circumstances of the offence. Events that occur after theoffence is complete — that is, after the attack occurs — also are notcircumstances 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 ofthe offence were exceptional and do not warrant destruction of the dog.Section 57(3) proceeds on the basis that the attack of itself establishes thatthere is a risk of the dog attacking again in similar circumstances. The focusis on whether those circumstances were sufficiently exceptional that that riskis remote, and does not justify destruction of the dog in the interests of publicsafety.7 Auckland Council v Hill [2020] NZCA 52.[17] Ms Schaaf notes the Court of Appeal's definition of "exceptional" as being "anunusual or one-off occurrence that is most unlikely to be repeated".8 An example ofan exceptional circumstance might be where dog B attacks dog A, and dog A thenattacks dog B to protect dog A's owner.9 An argument that an attack was the result ofa one-off failure of an otherwise responsible dog owner to control their dog will notamount to an exceptional circumstance.10 The Act requires dog owners to maintaincontrol of their dogs at all times.11 The assumption behind the statute is that:12Where a dog has attacked once, there is a risk that the dog will behave in thesame way again in similar circumstances. That risk must be removed bydestruction of the dog, unless the risk is immaterial because the circumstancesof the attack were exceptional and a repeat of those circumstances is mostunlikely. Lesser precautions — classification of the dog as menacing ordangerous, with the constraints that imposes — will usually be inadequate toremove the risk of a future attack.[18] In respect of the second step described in Hill, Ms Schaaf submits that therewas nothing exceptional about the circumstances of the offence because the appellantfailed to maintain any form of control over Juno. She refers to the Court of Appeal'sobservation regarding the utility of "lesser precautions" and submits that imposing acondition such as requiring Juno to be muzzled when in a public place, would notadequately mitigate the risk of a future attack occurring.Discussion[19] Applying the Court of Appeal's description in Hill, as to what will amount tocircumstances of an offence which are exceptional for the purposes of s 57(3), it isclear that the circumstances of Juno's attack on the complainant's cat, do not amountto exceptional circumstances falling within the scope of s 57(3). The circumstancesof the attack show that Juno's tendency to aggressive behaviour is unpredictable andthat he is capable of causing serious harm to other domestic animals. Havingdemonstrated this tendency towards unpredictable aggressive and dangerousbehaviour, there is a real risk of it being repeated with the potential for Juno to cause8 Auckland Council v Hill [2020] NZCA 52 at [64].9 Auckland Council v Hill [2020] NZCA 52 at [76].10 Auckland Council v Hill [2020] NZCA 52 at [78].11 Section 5(1)(b).12 Auckland Council v Hill [2020] NZCA 52 at [65].serious injury to any domestic animal or person against whom his aggressivebehaviour is directed.[20] Any steps that the appellant proposes to take regarding undertaking a dogowner's course of training or by ensuring Juno is kept muzzled while in public, arenot relevant to the issue of whether the circumstances of this attack amount toexceptional circumstances in terms of s 57(3).Result[21] The appeal against sentence is dismissed. The District Court order for thedestruction of Juno is upheld and confirmed._____________Paul Davison J