IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2020-404-335
[2020] NZHC 2877	

BETWEEN	ELIZABETH NAIK
Appellant	
AND	AUCKLAND COUNCIL
Respondent	

Hearing:	2 November 2020	
Appearances:	No appearance by or on behalf of appellant V-L Schaaf for Respondent	
Judgment:	3 November 2020	

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 3 November 2020 at 12:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
V-L Schaaf, Auckland Council

NAIK v AUCKLAND COUNCIL [2020] NZHC 2877 [3 November 2020]

[1]	Ms Elizabeth Naik (the appellant) appeals against an order made by Judge A C Roberts in the District Court at Auckland on 3 July 2020 for the destruction of the appellant’s male Mastiff-cross dog named “Juno”.1

Background

[2]	On 25 August 2018, at approximately 11.30 pm, the complainant woke to the sound of dogs barking outside her bedroom window. The complainant looked out the window and saw the appellant at the bottom of the driveway yelling at the barking dogs. The complainant could not see the dogs, but she could hear the sound of the dogs attacking something. When she heard a cat’s scream, she ran outside. She saw Juno 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 to break off the attack. After several minutes both of the dogs retreated back down the complainant’s driveway. The complainant then found her cat under the truck, severely injured, but still breathing.

[3]	The complainant immediately took her cat to a veterinary clinic for urgent attention. However, the severity of the injuries it had sustained as a result of Juno’s attack were such that it was beyond treatment and had to be euthanised. Juno was seized and impounded but subsequently released on strict conditions relating to his management. The appellant was charged with owning a dog that attacked a domestic animal under s 57(2) of the Dog Control Act 1996 (the Act):2
57	Dogs attacking persons or animals

…

(2)	The owner of a dog that makes an attack [on a domestic animal inter alia] 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

1	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 any liability incurred for any damage caused by the attack and mandatory destruction of the dog.

the offence were exceptional and do not warrant destruction of the dog.

Procedural history

[4]	On 3 July 2018, the appellant made her first appearance in the District Court at Auckland in relation to the charge. She was remanded without plea so as to enable her 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 further adjourned and subsequently proceeded by way of a formal proof hearing on 7 August 2018. In the appellant’s absence on that date the charges were found proven, and the matter was adjourned for sentencing on 7 September 2018, to afford the appellant the opportunity to file submissions regarding penalty and the mandatory destruction order pursuant to s 57(3).

[6]	On 7 September 2018, the appellant appeared with counsel. The matter was then further adjourned to allow her counsel to obtain instructions and was thereafter adjourned on multiple occasions at the request of the appellant due to her health related issues 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 appellant to file an application for discharge without conviction pursuant to s 106 of the Sentencing Act 2002.

[8]	The sentencing finally proceeded on 3 July 2020 in the District Court at Auckland. Judge Roberts declined the appellant’s application for a discharge without conviction and, noting the appellant’s concession that the circumstances of Juno’s attack were not exceptional, he made an order for Juno’s destruction. He also ordered the appellant to pay the complainant $300 for emotional harm, and $111.37 for the veterinarian’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 31 July 2020. The appeal is against the District Court Judge’s decision to make an order for Juno’s destruction.

[10]	The appellant endeavoured to appear via audio visual link (AVL) at the callover hearing on 28 August 2020, but this proved unsuccessful when difficulties with the connection were encountered. Justice Downs then set the appeal down for hearing on 2 November 2020 and issued a Minute advising the appellant that irrespective of whether she appeared by telephone or AVL at the hearing of her appeal, she was directed to file her written submissions with the Court by 12 October 2020, explaining why the dog should not be destroyed and also to serve a copy of her written submissions 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 if satisfied 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 dismiss the appeal.4

[12]	The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended to change the approach previously taken by the courts under the Summary Proceedings Act 1957.5 As such, the measure of error that must be shown, is that the sentence is “manifestly excessive”.6 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the 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].

Submissions

For the appellant

[13]	The appellant did not file any written submissions notwithstanding Downs J’s directions in his Minute dated 28 August 2020. Furthermore, the appellant did not appear 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. In her briefly stated grounds of appeal, the appellant disputes whether the Judge had reasonable grounds to make the order, and requests that consideration be given to an alternative sentence, such as an order that Juno be muzzled whenever he is out in a public place.

For the respondent

[15]	Ms Schaaf, for Auckland Council, submits that it was appropriate for Judge Roberts to make a destruction order in this case, as the circumstances of the offence were not exceptional.

[16]	Ms Schaaf notes that the leading authority on the s 57(3) assessment as to whether the circumstances of a dog attack are exceptional is the Court of Appeal judgment in Auckland Council v Hill in which the Court said:7
[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 is remote, and does not justify destruction of the dog in the interests of public safety.

7	Auckland Council v Hill [2020] NZCA 52.

[17]	Ms Schaaf notes the Court of Appeal’s definition of “exceptional” as being “an unusual or one-off occurrence that is most unlikely to be repeated”.8 An example of an exceptional circumstance might be where dog B attacks dog A, and dog A then attacks dog B to protect dog A’s owner.9 An argument that an attack was the result of a one-off failure of an otherwise responsible dog owner to control their dog will not amount to an exceptional circumstance.10 The Act requires dog owners to maintain control of their dogs at all times.11 The assumption behind the statute is that:12

Where a dog has attacked once, there is a risk that the dog will behave in the same way again in similar circumstances. That risk must be removed by destruction of the dog, unless the risk is immaterial because the circumstances of the attack were exceptional and a repeat of those circumstances is most unlikely. Lesser precautions — classification of the dog as menacing or dangerous, with the constraints that imposes — will usually be inadequate to remove the risk of a future attack.

[18]	In respect of the second step described in Hill, Ms Schaaf submits that there was nothing exceptional about the circumstances of the offence because the appellant failed to maintain any form of control over Juno. She refers to the Court of Appeal’s observation regarding the utility of “lesser precautions” and submits that imposing a condition such as requiring Juno to be muzzled when in a public place, would not adequately mitigate the risk of a future attack occurring.

Discussion

[19]	Applying the Court of Appeal’s description in Hill, as to what will amount to circumstances of an offence which are exceptional for the purposes of s 57(3), it is clear that the circumstances of Juno’s attack on the complainant’s cat, do not amount to exceptional circumstances falling within the scope of s 57(3). The circumstances of the attack show that Juno’s tendency to aggressive behaviour is unpredictable and that he is capable of causing serious harm to other domestic animals. Having demonstrated this tendency towards unpredictable aggressive and dangerous behaviour, there is a real risk of it being repeated with the potential for Juno to cause

8	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 aggressive behaviour is directed.

[20]	Any steps that the appellant proposes to take regarding undertaking a dog owner’s course of training or by ensuring Juno is kept muzzled while in public, are not relevant to the issue of whether the circumstances of this attack amount to exceptional circumstances in terms of s 57(3).

Result

[21]	The appeal against sentence is dismissed. The District Court order for the destruction of Juno is upheld and confirmed.

Paul Davison J