FULLER v POLICE [2019] NZHC 3503

FULLER v POLICE [2019] NZHC 3503 [23 December 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2019-419-79[2019] NZHC 3503BETWEEN KAREN ANNE FULLERAppellantAND NEW ZEALAND POLICERespondentHearing: 17 December 2019Appearances: J B Carter for AppellantA R A Pell for RespondentJudgment: 23 December 2019JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 23 December 2019 at 4:00 pmRegistrar/Deputy RegistrarSolicitors:Crown Solicitor, HamiltonIntroduction[1] On 16 June 2018, a woman was attacked by a dog when she went to a Hamiltonaddress to collect some items she had purchased from Ms Fuller (the appellant), whowas the dog's owner and who lived there. The dog was a Staffordshire Bull Terriernamed Kage. Kage chased and attacked the victim, biting her right leg and causingher serious injury. This was not the first time that Kage had attacked someone.[2] The appellant was charged under the Dog Control Act 1996 (the Act) withbeing the owner of a dog that caused serious injury,1 failing to ensure that a dangerousdog was kept secure,2 and wilful obstruction of a dog control officer.3 Following ajudge-alone trial on 26 September 2019 in the District Court at Hamilton, Judge T RIngram found the appellant guilty of all but the wilful obstruction charge.4 Thefollowing day, he sentenced her to 12 months' home detention, 200 hours' communitywork and ordered her to pay $5,000 in reparation.5[3] The appellant appeals against her sentence of 12 months' home detention,which she says is manifestly excessive. She does not appeal the other aspects of hersentence. The Crown says the 12 month home detention sentence was within range.Background[4] Between 2013–2016 Kage had on separate occasions attacked three people anda dog on or near Ms Fuller's property with increasing degrees of severity. In September2013, Kage got out of the appellant's property through an open gate, growled at a boywho was walking past and bit the dog he had with him on the face. Hamilton CityCouncil (the Council) formally warned the appellant and reminded her of therequirement to keep Kage under control at all times.[5] In August 2014, Kage again got out through the open gate at the appellant'shome chasing a cat out onto the footpath. Once out in the street Kage turned its1 Dog Control Act 1996, s 58; maximum penalty 3 years' imprisonment and/or $20,000 fine.2 Dog Control Act 1996, ss 32(1)(a) and (2); maximum penalty $3000 fine.3 Dog Control Act 1996, s 18; maximum penalty $3000 fine.4 New Zealand Police v Fuller [2019] NZDC 199492.5 R v Fuller [2019] NZDC 19522.attention to a pedestrian walking past on the footpath and ran at her and nipped herlegs. The pedestrian had to jump over a fence three or four times while Kage ranaround both sides of the fence trying to bite her again. The Council issued Ms Fullerwith an infringement notice for failing to properly control Kage. The appellantexplained that her daughter had left a door open.[6] In October 2014, once again Kage got out of the appellant's house through anopen front door and open gate and out to the footpath where he bit a pedestrian on hishand. The Council wrote a warning letter to the appellant .[7] On 13 January 2016, Kage attacked a neighbour who had come to visit theappellant. The appellant had recently returned home from shopping and had left thefront door open. The dog ran at the visitor and bit his lower leg, causing serious injury.The Hamilton City Council issued Ms Fuller with a further infringement notice andwarned her that further breaches might result in prosecution.[8] In April 2016 the Council served notice on the appellant that because of the 13January attack, it had classified Kage as a dangerous dog under s 31(1) of the Act. Theappellant had a right of objection to the classification of Kage as a dangerous dog, butdid not object to the classification. The effect of classification as a dangerous dog isthat the owner must ensure that not later than one month following their receipt ofnotice of the classification, the dangerous dog is kept within a securely fenced portionof the owner's property that it is not necessary to enter in order to access the dwelling,6and must not allow the dog to be at large in a public place without being muzzled andcontrolled on a leash.[9] On 16 June 2018 Kage attacked the victim when she went to the appellant'saddress to collect some towels that she had purchased online from the appellant. Thevictim was a young mother who had driven to the appellant's address and having gotout of her car went towards the front door which was partially open. As she steppedonto the front deck, the victim heard a growl and someone calling the dog back. Sheretreated towards her car but before she could get into it, Kage ran out through theopen front door and bit her on her right ankle and shin. The victim got back into her6 Dogs Control Act 1996, s 32(1)(a).car and the appellant came out of her house and provided her with wet towels to wraparound the wounds and waited with her until an ambulance arrived. The victim wasin hospital for two days and required surgery to her ankle to clean and close the wound.Following the victim's discharge from hospital there were complications and sixweeks later she was readmitted to hospital for a week for a skin graft operation.[10] Between 16 June and 3 August 2018, Council dog control officers went to theappellant's address for the purpose of seizing Kage, but she refused to surrender him.On 3 August 2018 the dog control officers accompanied by Police went back to theappellant's address with a search warrant authorizing them to search the property tolook for the dog. The appellant initially denied that Kage was at the property, beforeultimately giving him up to the Council's dog control officers.[11] Kage subsequently died of cancer while in the Council's custody.[12] The appellant is aged 57 and has an extensive criminal history consisting of102 convictions since 1985. Her convictions are mainly for dishonesty offending, butshe also has convictions for minor drug offending, assault and breaches of sentences,including community work. She has no previous convictions under the Dog ControlAct 1966. At her sentencing for the Dog Control Act charges in September 2019, shehad just completed a sentence of home detention for burglary and theft charges,relating in part to the items she had sold to the victim in the present case.District Court decision[13] Judge Ingram took the offence charged against the appellant under s 58 of theAct of owning a dog that had caused serious injury, as the lead offence for the purposeof sentencing. The Judge noted that the maximum penalty for the offence was threeyears' imprisonment and observed that it was a relatively serious type of offence. Henoted that dog bites of this nature are almost invariably serious, however he said theinjuries suffered by the victim were not the most serious he had seen.7 The Judge saidthat the harm caused to the victim was an aggravating feature, while noting "that is a7 At [12].feature of the offence" with which the appellant was charged.8 The Judge also notedthat as a result of her injuries the victim had been left with an "ugly scar" and was inconstant pain which was likely to continue for many years if not for life.9[14] The Judge said that the appellant's offending was aggravated by the fact thatthe dog had previously injured "so many people" and by the appellant's uncooperativeattitude towards the dog control officers.10 The Judge commented that the appellant'sresponse when the dog control officers went to seize the dog, "speaks volumes aboutyour attitude, which is that nobody is going to tell you what to do with your dog".11Judge Ingram considered that to be a serious aggravating factor.[15] The Judge also said there was "almost nothing that could be advanced on [theappellant's] behalf" in terms of mitigating factors.12 The appellant had not taken allsteps reasonably open to her to confine Kage within the house.13 However, the Judgeacknowledged that the appellant, to her credit, had called an ambulance for the victim.[16] Judge Ingram was not persuaded that the appellant was remorseful, and he sawno realistic possibility of rehabilitation or reintegration at her age.14 He said that herextensive list of criminal convictions showed that throughout her life she had"thumbed [her] nose at the responsibilities of a citizen",15 and that her attitude towardsher dog meant that a number of people had been bitten over a period of years.16 TheJudge said that the appellant's "appalling" criminal record was an aggravatingfeature.17[17] Judge Ingram rejected the prosecution's proposed starting point of 12 months'imprisonment. He explained that he did not consider the adoption of a 12 monthstarting point was an adequate response to the offending involving a dog that hadpreviously injured a number of people and for an offender who had repeatedly8 At [14].9 At [13].10 At [16].11 At [4].12 At [14].13 At [6].14 At [11].15 At [7].16 At [10].17 At [14].demonstrated an uncooperative attitude towards the dog rangers. The Judge said thathe considered that the starting point should be half of the available maximum penaltyand he adopted a starting point of 18 months' imprisonment. The Judge uplifted thatby three months for Ms Fuller's criminal history. He then converted the nominal endsentence of 21 months' imprisonment into 12 months' home detention. More fully, hesaid:[16] The prosecutor has asked me to start with a sentence of 12 months'imprisonment. I do not think that is an adequate response to this particular setof offending with an animal that has previously injured so many people, andfor someone with the attitude that you unhesitatingly demonstrated repeatedlytowards the City Council dog rangers. It seems to me that a starting point inthis particular case should be half of the available maximum, namely 18months in prison.[17] In addition to that it seems to me that I should take account of yourbad attitude as demonstrated, firstly, by your bad record over such a longperiod of time, such consistent offending over the last decade and more, ofvarious kinds and it seems to me that there should be an uplift in the order ofthree months to account for those things. That would take me to a sentence of21 months. That could handily be converted to a sentence of home detention.[18] In your particular case, having regard to your lack of remorse and yourprior bad record, it seems to me that this is not a case where I should deal withit by way of a sentence of home detention with a straight 50 percentcalculation. In your particular case I consider that a sentence of 12 months'home detention is the bare minimum sentence that would adequately reflectthe seriousness with which I consider you have infringed our laws. I considertoo that it is appropriate that you pay at least something towards the costs thatyou have imposed on the community with your reckless disregard of theobligations upon you as an owner of a dangerous animal.[18] Judge Ingram said that he could not order Ms Fuller to pay reparation becauseshe did not have the means and that "the best thing I can do is ensure that you are keptout of public view for as long as possible".18 Nevertheless the Judge ultimatelyordered the appellant to pay $5000 in reparation. He also noted the Council had spent$14,000 in legal fees and $8000 in costs in relation to Kage and $1000 trying to savethe dog's life.[19] Judge Ingram convicted and discharged the appellant on the charge of failingto ensure Kage was kept in a secure portion of the appellant's property.1918 At [8], [10].19 At [5].Approach on appeal against sentence[20] Under the Criminal Procedure Act 2011, the Court must allow the appeal ifsatisfied that, for any reason, there is an error in the sentence imposed on conviction,and that a different sentence should be imposed.20[21] In deciding whether to impose a different sentence, the Court does notsubstitute its own view for that of the original sentencing Judge.21 Rather, it must beshown that the sentence is manifestly excessive or wrong in principle.22 The focus ison the end result rather than the process by which the sentence was reached.23Submissions[22] Mr Carter, for the appellant submits that the Judge's starting point, uplift andend sentence were all manifestly excessive. He submits:(a) The starting point is inconsistent with previous sentences forcomparable offending. Mr Carter relies on decisions where startingpoints of between four and eight months' imprisonment were adopted(where starting points were identified).24(b) The three-month uplift for prior offending should not have been appliedbecause the prior offending had no relationship to offences under theDog Control Act 1996.(c) The Judge failed to take into account several mitigating factors,including that Ms Fuller rendered first aid, called an ambulance, andconceded several facts before trial. Mr Carter submits these actionsshow the appellant did accept responsibility for her offending, althoughhe accepts that any reduction to the starting point on account of thesematters, would be minor.20 Criminal Procedure Act 2011, s 250(2).21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].22 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R, above n 21, at [30]–[35].23 Tutakangahau v R, above n 21, at [36].24 Campbell v Police HC Invercargill CRI-2009-425-20, 22 September 2009; Dwyer v SouthTaranaki District Council [2012] NZHC 3580.(d) The Judge was wrong to find there was no realistic possibility ofrehabilitation and re-integration. Mr Carter submits the appellant haddemonstrated remorse by rendering first aid, and that the Council hasexercised its power to disqualify the appellant from owning a dog forfive years, which removes any risk of re-offending during that period.(e) The Judge placed excessive weight on the costs incurred by the Councilfor Kage. The Judge did not take into account the $1309.20 theappellant had repaid to the council from a total owing of $9722.39.(f) The Judge should have taken into account that the appellant had onlyjust completed a sentence of home detention and remained undersupervision.(g) The Judge arrived at an end sentence on the basis there would be noreparation, but then imposed reparation.Analysis[23] Section 58 of the Dog Control Act 1996 initially provided for a maximumpenalty of three months' imprisonment or a $5000 fine. In 2003 this was increased byParliament to three years' imprisonment or a $20,000 fine in order to "expresssociety's concern at the serious consequences of dog attacks".25 In Shepherd vAuckland City Council, Downs J reviewed a number of prosecutions brought under ss57 or 58 of the Act, noting that few cases had reached the High Court and that a clearmajority had attracted non-custodial sentences.26 He observed that there was doubt asto whether current sentencing levels reflected Parliament's intention as expressedthrough the substantial uplift of the maximum penalty in 2003.27[24] Of the decisions cited by counsel I consider that Dwyer v South TaranakiDistrict Council and Shephard v Auckland City Council are the most comparable.2825 MacKenzie v Auckland City Council HC Auckland CRI-2006-404-343, 6 December 2006 at [25].26 Shepherd v Auckland City Council [2017] NZHC 1660 at [20].27 At [20].28 Dwyer v South Taranaki District Council [2012] NZHC 3580; Shepherd v Auckland City Council,above n 26.The other decisions cited are less helpful either because they do not identify a startingpoint, do not feature a combination of aggravating features as serious as the presentcase, or because the adopted starting point was not the focus of the appeal.[25] In Dwyer, an eight-month starting point was adopted on appeal where the dogattacked three visitors inside a house causing injuries similar to the present case. Theowner threatened Police and dog control officers, released the dog to attack them, andobstructed Police as they tried to seize it. In Shepherd, the High Court on appealconsidered that a starting point of 12–15 months' imprisonment was required wherea dog attacked the face and head of its owner's four-year-old son, who underwentemergency surgery and spent a fortnight in hospital.29 Mr Shepherd had been warnedby the previous owners of his dog not to leave it alone with his son. The attackoccurred while the boy was outside playing with the dog while Mr Shepherd wasinside. His Honour referred to that starting point as being "deliberately conservative".Downs J held the aggravating features were that the owner had been warned the dogcould be dangerous with children, the injuries were serious, the victim was especiallyvulnerable and the owner appeared to take pride in the dog's dangerous character in aFacebook post.[26] In the present case the appellant had previously been warned by the Council ofthe need for her to keep her dog under control, and despite being required to keep Kagewithin a secure area that was not required to be entered in order to access the house,she had disregarded that obligation and had allowed Kage to roam freely inside herhouse, and thus be able to exit the house via the front door when it was left open. Asthe appellant had arranged to sell the items to the victim, the appellant must haveanticipated that the victim would be calling around to her house to collect the items.Given Kage's history of attacking people in the vicinity of the house, the appellant'sfailure to ensure that he was secured and that any visitors would be safe from beingattacked informs my assessment of the gravity of her offending.29 However, the Court did not ultimately adopt that starting point because of the "unusualcombination of factors" including the length of time since the offence occurred and the effect aprison sentence would have on the offender's relationship with his son.[27] Moreover, the nature of Kage's attacks on people had escalated, and theappellant consequently well knew that Kage was capable of inflicting serious injuryto anyone he attacked. That certainly proved to be the case with the victim spendingtwo days in hospital initially and then a further week because a skin graft was required.In her victim impact statement in September 2019, the victim described how her injuryhas continued to ache, and has exacerbated an existing condition, which means thatshe cannot walk with her children as much as she would like.[28] While the appellant did call for an ambulance, provided towels, and stayedwith the victim following the attack her other actions following the attack aggravatedher offending. She repeatedly refused to surrender Kage and misled the dog controlofficers as to his whereabouts, thus putting the Council and Police to additional effortand expense.[29] Accordingly while the victim in the present case was not as vulnerable as thechild in Shepherd, and her injuries were less severe than those suffered by the child inthat case, the appellant had a much greater awareness of the danger Kage posed tovisitors to her home as he had previously shown by his earlier attacks and yet she hadrepeatedly failed to act.[30] Having considered the gravity of the appellant's offending and compared itwith the offending in the cases I have mentioned, I consider the 18-month startingpoint adopted by the Judge was too high and outside the available range. In my viewit ought not have exceeded 15 months' imprisonment.[31] I also consider that the Judge erred in applying a three-month uplift for theappellant's criminal history. Section 9(1)(j) of the Sentencing Act 2002 requires asentencing judge to take into account the number, seriousness, date, relevance, andnature of any previous convictions of the offender. The judge may uplift a sentencewhere the previous convictions of an offender indicates a predilection to commit theparticular type of offence of which he or she is convicted.30 In such cases theadditional punishment serves a preventive purpose. That rationale does not apply tothe appellant here. She has no previous convictions under the Dog Control Act.30 R v Casey [1931] NZLR 594 (CA) at 597; R v Ward [1976] 1 NZLR 588 (CA) at 589–590.[32] Nevertheless, a judge may consider an offender's criminal history to establishtheir character and to assist in the determination of an appropriate punishment. Theappellant's extensive criminal history is therefore relevant to the type of sentence thatshould be imposed on her, but it does not of itself warrant an uplift. As Myers CJ saidfor the Court of Appeal in R v Casey:31The Court should always be careful to see that a sentence of a prisoner whohas been previously convicted is not increased merely because of thoseprevious convictions. If a sentence were increased merely on that ground itwould result in the prisoner being, in effect, sentenced again for an offencewhich he has already expiated. We agree that the sentence passed ought to bearsome relation to the intrinsic nature of the offence and gravity of the crime.But it by no means follows that the previous convictions must be ignored. Itis necessary to take them into consideration, because the character of theoffender frequently affects the question of the nature and gravity of the crime,and a prisoner's previous convictions are involved in the question of hischaracter. the previous convictions may be looked at for the purpose ofestablishing the prisoner's character and assisting to determine the punishmentthat is appropriate to the case of a man of that character for the particularoffence for which he is to be sentenced.[33] The other grounds of appeal need only be addressed briefly. It is incorrect tostate the Judge relied solely on a recent pre-sentence report prepared for the appellant'sprevious sentence. The Judge also sought and considered an updating memorandumfrom Corrections. The appellant's counsel did not object to the use of the pre-sentencereport, and indeed relied on sections of it in his own submissions on sentence.[34] As for the sentencing process itself, the appellant's admission of severalseemingly incontestable facts and her immediate actions following the attack whichare to her credit, do not in my view entitle her to any discounts, as they can becontrasted with her delay in finally surrendering Kage. I also agree with the Judgethat because of her extensive criminal history, her repeated failure to secure Kage andher lack of demonstrated remorse the appellant's prospects for rehabilitation andreintegration are poor. Further, the Judge was not required to reduce the sentencebeing imposed because the appellant had just completed serving an earlier sentencefor unrelated offending and I do not consider the Judge's approach to be contrary tothe totality principle.31 At 597.[35] Finally, on the matter of reparation, I accept that the Judge appears to havechanged his mind during the sentencing about whether to order reparation. But, giventhe appellant is to receive a lighter sentence, and does not appeal the order forreparation, that order will stand.[36] The result therefore is a notional end sentence of 15 months' imprisonmentwhich is commuted to a sentence of eight months' home detention.Result[37] The appeal is allowed.[38] The sentence of 12 months' home detention is quashed.[39] A sentence of eight months' home detention is substituted in its place.[40] The sentences of 200 hours' community work and $5000 reparation imposedby the District Court Judge are unchanged._____________Paul Davison J