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

VAN DER VEEN v CHRISTCHURCH CITY COUNCIL [2020] NZHC 1534 [1 July 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000066[2020] NZHC 1534BETWEEN SHANE TONY VAN DER VEENAppellantAND CHRISTCHURCH CITY COUNCILRespondentHearing: 1 July 2020Appearances: Appellant in person, with P Day, McKenzie friendP Leeming and V Wilson for the RespondentJudgment: 1 July 2020JUDGMENT OF DOOGUE JIntroduction[1] Mr van der Veen was convicted of being an owner of a dog that attacked adomestic animal, which is a strict liability offence under s 57(2) of the Dog ControlAct 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 thedestruction of the dog involved in the s 57(2) offence "unless it is satisfied that thecircumstances of the offence were exceptional and do not warrant destruction of thedog."[3] Mr van der Veen was ordered to pay reparation of $1234.10 for veterinarytreatment for the injured dog, "Oakley", and was fined $700.1 Police v van der Veen [2020] NZDC 9581.[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, greyand white Siberian Husky German Shepherd cross and was classified as adangerous dog under the Act on 14 March 2017.2[6] On 22 August 2019 at approximately 1.30 pm the victim was out running withhis dog Oakley, a Shetland Sheepdog. While the victim was running pastMr van der Veen's property, Kyra began barking and attempted to push through thefence. 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 ontoOakley's rear end and began shaking her head. Mr van der Veen jumped the fence andpulled Kyra from Oakley. Oakley required stitches to his rump. Mr van der Veenadmitted 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 andthat the Court must therefore make an order for the destruction of the dog unlesssatisfied the circumstances of the offence were exceptional. The Judge acceptedMr van der Veen's submissions about the character of the dog generally, but assertedthat unless those factors could be related directly to the circumstances of the offendingthey would not affect the decision.2 Dog Control Act 1996, s 31.[9] The Judge found, and Mr van der Veen accepted, there was nothingparticularly exceptional about the circumstances of the offence. The Court was thusrequired 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 theCriminal Procedure Act 2011. Under s 250, the appeal court must allow the appeal ifsatisfied that, for any reason, there is an error in the sentence imposed on convictionand that a different sentence should be imposed.[11] A sentence appeal is an appeal against a discretion, and only if the sentence ismanifestly 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, failingto take into account a relevant consideration, or if the decision was plainly wrong.3The focus is on the final sentence and whether that was in the available range, ratherthan the exact process by which it was reached.4Appellant's submissions[12] Before the Court is a letter from Mr van der Veen in which he outlines Kyra'simportance not just as a pet, but as a loved member of the family. Mr van der Veendescribes Kyra as a beautifully natured dog who is great with people, and who deservesa full life. Mr van der Veen has also provided a petition, and two letters in support ofhis 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 differentcountries. Through this petition, many people have voiced their support for Kyra,stating: "Kyra deserves a second chance with someone to rehabilitate her"; "this doggyis 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 beexplored".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 beenat 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, aresponsible dog owner with a fully fenced property. Mr Day proposes Kyra bere-homed with him, as she is not dangerous or aggressive and loves people. Mr Dayis committed to providing the right training to properly socialise Kyra. Mr Daysubmitted that Kyra has been let down by both Mr van der Veen and the ChristchurchCity Council (the Council), but she deserves another chance. Mr Day submitted theCourt should provide another chance for Kyra in a similar way in which the Courtallows for the rehabilitation of humans.[16] Mr Day also submitted that procedural issues with the Council should beconsidered. Mr van der Veen was advised he was unable to own dogs after, after aone-year delay. The incident occurred four months after Mr van der Veen wasadvised. 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 anyerror of law or improper exercise of judicial discretion which led to a sentence thatwas manifestly excessive.Respondent's submissions[18] Ms Leeming for the respondent submitted the correct approach is the two-steptest recently articulated by the Court of Appeal in Auckland Council v Hill.5 This wasthe approach adopted by the Judge. First, the relevant circumstances of the offencemust be ascertained. Secondly, the Court should consider whether the circumstancesof 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 canbe expected to behave differently in similar circumstances in the future, for example5 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 thecircumstances 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 Leemingsubmitted Mr van der Veen's actions to re-home Kyra after the event cannot form partof the circumstances of the offence and therefore cannot form part of the Court'sconsiderations.8 It is not open to Mr van der Veen to argue after the attack that the dogwill behave differently in similar circumstances.9[20] Ms Leeming submitted a one-off failure by an otherwise responsible dogowner to maintain effective control is not an exceptional circumstance and assurancesby an owner about future management are irrelevant.10 Ms Leeming submitted thecircumstances of the attack were not exceptional: Mr van der Veen knew Kyra couldescape and failed to maintain his property to a standard that would prevent Kyra'sescape. A dog owner is required by law to take precautions, and therefore there isnothing exceptional about these circumstances where Mr van der Veen failed to takethe necessary precautions.[21] Ms Leeming accepted that if the circumstances of the attack are exceptional inthat the dog can properly be seen as not intrinsically dangerous, the Court may besatisfied those circumstances do not warrant destructions. Examples of theseexceptional circumstances include where the dog's owner was under attack, or wherethe 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 bedestroyed.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 ownerof a dog that makes a relevant attack. The prosecution is not required to establish alack of care on the part of the owner. The owner of a dog may be convicted withoutany consideration of the precautions (if any) that were taken by the owner to preventan attack, the reasons why those precautions failed, and whether the owner shouldhave taken additional precautions. Indeed, the offence may be committed even if theowner did not, at the relevant time, have possession of the dog because it had been leftin 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 orderfor 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 wereexceptional, such that destruction is unwarranted. The Judge may only avoid orderingdestruction in exceptional circumstances.13 The purpose of this section is not to punisheither the dog or the owner, but to protect the public. The Court of Appeal inAuckland Council v Hill commented:14We do not see the purpose of s 57(3) as punishment of the owner, or for thatmatter of the dog. Nor do we accept the Council's submission that deterrenceis a significant purpose of s 57(3). The goal of deterrence of owners isachieved by the sentence imposed under s 57(2). Section 57(3) is concernedwith 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-attackoffers of rehabilitation, rehoming or training can factor into the analysis of"exceptional circumstances" that mitigate the risk posed by the dog and thereforeenable avoidance of a destruction order.15 Ms Leeming has helpfully directed theCourt to the most relevant recent case law from the Court of Appeal on this issue. TheCourt established that events following an attack cannot be taken into consideration12 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 circumstancesof the offence in s 57(3) cannot be read as including a reference to precautions takenby 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 circumventParliament's requirements under section 57(3). Assurances given by Mr van der Veenabout 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 adog's management is sustained over time. The ownership of the dog may change. Theowner will at times be dependent on others to take responsibility for the dog, forexample 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.18The Court of Appeal in Auckland Council v Hill held exceptional circumstancesinclude those where the dog's owner was under attack, or where the dog wasprovoked.19 The Court noted there is nothing exceptional about precautions beingomitted, or failing, even where those precautions are required by law.20Mr 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. Thisis a case where Mr van der Veen failed to maintain effective control. A one-off failureto maintain effective control will not amount to exceptional circumstances.21 Kyraignored commands to return to her owner. This was an unprovoked attack on anotherdog in a public place.22[28] In summary, circumstances that were not exceptional at the time of an attackcannot retrospectively become exceptional as a result of post-attack events. Thelanguage of s 57(3) suggests that the question is whether the circumstances wereexceptional 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 occurredbeing repeated.[29] It follows that the s 57(3) test is not met by Mr van der Veen promising to takeexceptional precautions to keep the dog under control in the future and establishingthat if such precautions are taken another attack is unlikely. If anything, the need forsuch precautions suggests that there was nothing exceptional about the circumstancesof the offence and that an attack is a real risk in ordinary circumstances (that is, absentthe necessary precautions having been taken). The observation of Judge Matheson inanother s 57 case that the post-attack steps taken in that case "to my mind, simplyunderline how dangerous this dog is" is apposite.23[30] The Judge was correct to find that exceptional circumstances as required bys 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 hasbeen held in a pound for approximately eight months. Mr van der Veen has also hadto deal with unnecessary uncertainty through the Council's significant delays inprosecuting this case.[32] I acknowledge all the sentiments expressed in the petition and the letters beforeme. It is clear that they are genuine and heartfelt. It is also clear that there is supportfor an alternative response to offending of this type. However, this is not the correctforum to address these concerns. I am bound to follow the legislation as enacted byParliament, and it is to Parliament that the concerns expressed in the petition ought tobe addressed.Conclusion[33] The appeal is dismissed.Doogue J23 Wanganui District Council v Reweti [2018] NZDC 3208 at [25].Solicitors:Christchurch City Council, Christchurch