Nelson City Council v Lam [2016] NZDC 21524 (27 October 2016)

Last Updated: 2 February 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT NELSON

CRI-2016-042-000785 [2016] NZDC 21524

NELSON CITY COUNCIL

Prosecutor

v

BUNRA LAM

_Defendant

Hearing:	27 October 2016
Appearances:	A Besier for the Prosecutor Defendant appears in Person
Judgment:	27 October 2016

_{NOTES OF JUDGE A A ZOHRAB ON SENTENCING}

[1] Mr Lam, you are before the Court today having pleaded guilty to a number of charges laid under the Dog Control Act 1996.

(a) The first charge is one that you were the owner of a dog called Bailey which attacked Ms Grinsted on 7 March 2016.

(b) Then there is a charge of failing to comply with the requirements of s

31(1) of the Act, by not ensuring that your dog, Bailey, which had previously been classified as a dangerous dog, was kept within a securely fenced portion of your property.

(c) There is a charge also that being the owner of a dog called Fox which rushed at Ms Grinsted on a footpath adjacent to Waimea Road in a

_{manner that endangered Ms Grinsted on 7 March 2016.}

NELSON CITY COUNCIL v BUNRA LAM [2016] NZDC 21524 [27 October 2016]

(d) Another charge of being the owner of a dog called Star which rushed at Ms Grinsted at the same time.

(e) Also being the owner of a dog called Fox and a dog called Star which were both unregistered at the time.

[2] The maximum penalty for each of these offences is a fine of $3000. The Council characterises this as serious offending and they seek a fine of at least $2500. The Council also seeks an order for the destruction of Bailey.

[3] Although Fox and Star were involved in this incident, and they both rushed at Ms Grinsted and also her grandson, orders are not sought in relation to those dogs for their destruction because they have been separated and re-homed and are not deemed to be a threat to members of the public.

[4] In terms of sentencing today, I have been provided with written submissions from the informant. You have also provided me with a written submission by way of email dated 18 October. I have given you the opportunity to address me as to matters, in particular why there should not be an order for Bailey’s destruction.

[5] In terms of the offending, what happened was that on Monday 7 March 2016 the three dogs concerned, Bailey, Fox and Star were running free on your property. Bailey is a large German Shepherd dog and that dog and two smaller dogs, Fox and Star, left the property on Waimea Road and they ran out on to the footpath as Ms Grinsted was walking past with her one year old grandson.

[6] All the dogs were acting in an aggressive manner. They were barking and growling at Ms Grinsted. She picked up her grandson. She was scared for herself and also for the grandson. She continued walking. Unfortunately, the dogs caught up to her and Bailey bit her below her right buttock. She carried on walking with her grandson and the dogs eventually retreated.

[7] I have seen photographs of the injury and it looks pretty painful. Ms Grinsted has read her victim impact statement in Court today. It seems she was having a

pleasant morning until she was confronted by these dogs. She is a dog-lover herself. She was surprised that a dog would act in that way towards her given that they were simply out for a walk and were not posing a threat. They were not invading their territory, so here they are happily going for a walk. She is a bit older, and she is with her one year old grandson and she is incredibly frightened by what had happened. There was no one around to help them and she felt it was up to her to protect her grandson.

[8] She describes the bite as being very painful at the time, and for at least a week afterwards. It resulted in a huge bruise extending right across the back of her thigh on to her sides. It took a couple of months to clear up completely. She sought medical advice and made sure that her tetanus injection was up to date. She is now nervous and distrustful of dogs. She does not wish to pass on her fear of dogs to her grandson, but naturally she is affected by what has happened.

[9] She would not want anybody else to suffer how she suffered by being attacked by this dog. She assesses the dog as being dangerous. Obviously there is a significant impact on her.

[10] In terms of sentencing, I have been reminded of the purposes and principles of sentencing which have to be to make you accountable for the harm done to the victim. I need to consider providing for her interests, and also whether or not reparation is appropriate. I also need to denounce your conduct and also send out the message to others to deter you and others from behaving in this fashion. What I mean by, whilst you obviously were not involved in the biting, your lack of proper arrangements for the care of the dog and the securing of the dog, have obviously contributed to what happened.

[11] What the informant submits is that the attack was caused by your carelessness, and a complete lack of regard towards your obligations as a dog owner. You failed to keep them under control and when the dog control officers visited the property the day after the attack, they found that the perimeter fence was still in a state of disrepair and all the dogs at the property could freely come and go.

[12] In terms of aggravating factors of the offending, the aggravating factors are of course that you were well aware of Bailey’s aggressive character. He had been classified as a dangerous dog under s 31 of the Act in 2013. That was as a consequence of him attacking a member of the public.

[13] As the owner of a dangerous dog you are required to ensure that the dog was kept within a securely fenced portion of their property and that when the dog is in public it is completely confined in a vehicle or cage or is muzzled.

[14] You said to me that you locked the dogs inside, and that it must have been your brother or someone else who had let the dogs out, but that is an entirely foreseeable thing that would happen, that a dog being kept inside would want to go outside, at the very least for toileting. So, you have enabled this situation to occur by having dogs, particularly a dog which had been classified as a dangerous dog and you say that you were not able to afford to fence the section. Well, if that is the case, you should not have had a dog in those circumstances nor, more particularly, should you have had a dog which had been classified as a dangerous dog.

[15] So it is an aggravating feature in my view that you knew that Bailey could be aggressive, that you knew that she had a tendency to attack people because he had done it before, and you had failed to comply with your obligations under s 31 of the Act.

[16] Also, other aggravating matters relied upon by the informant include your previous dealings with the authorities in relation to dogs. As far as your involvement with Bailey is concerned you have had an infringement notice previously for failure to implant a microchip transponder in them and I am told that was for financial reasons.

[17] You have obviously had the dangerous dog classification, the earlier attack on a member of the public and then according to the record, it seems that there was a barking notice in June 2015 in relation to Bailey, though you dispute whether or not it was Bailey.

[18] The informant tells me though you have had 12 infringement notices issued to you for past breaches of the Act. I have been handed a hard copy of your dealings with the dog control officers and what it demonstrates, and you are not at fault for all of these, is that there are 158 notifications. A large number of them are obviously complaints by neighbours about barking dogs, but the property has been visited on a number of occasions with respect to various occupants of the address, some relatives of yours, in relation to various dogs, and there have been a number of issues in relation to the property.

[19] A recent inspection has been undertaken by Council and the notice to fix that was imposed on 10 March 2016, a notice to fix the fence, it still has not yet been complied with in this photograph taken 25 October, which shows that there are some fencing or early stages of a fence, but clearly any dogs on that property would be free to come and go on an unimpeded basis.

[20] In terms of mitigating factors, the Council acknowledge that you pleaded guilty, albeit at a late stage.

[21] I have been referred to authorities for fixing the levels of fines for each of these offences. It is suggested that $3200 in fines plus some reparation would be appropriate. On a totality basis $2500 is deemed appropriate.

[22] I have been able to obtain from the registrar a printout of your fines. There is

$3665 of outstanding fines that you owe dating back to 2007. So I need to take that into account.

[23] I understand that you have been assessed as being able to pay $40 per week, so I have got to be realistic in being able to impose a fine which can be realistically paid by you.

[24] These are fine-only matters and so whilst I accept the range of fines sought by way of start point by the informant, I have got to fix a figure which is realistic given your income, your outstanding fines already and also the need to order reparation as far as Ms Grinsted is concerned and the key thing about reparation is

that it takes priority over fines. So any payment of reparation made to her will be paid first, before the fines are paid. I have no issue with the start points sought by the informant in terms of the fines, but as I say I have got to be realistic.

[25] Looking at the totality of the offending, looking at it as a job lot, and taking into account that there is reparation and there are also kennel fees sought as well, the penalties that I am going to impose as far as fines, are as follows:

(a) As far as the fine for the dog attack is concerned, I am going to fine you $750.

(b) With respect to the fine for the offences relating to Fox and Star rushing, is $250 in relation to each of those. So that is two lots of

$250.

(c) As far as the failing to register dogs, there are two lots of $150.

(d) In relation to the failing to meet requirements of the dangerous dog classification, that is a serious case of its type, there is a $700 fine.

[26] As I said, I accepted the start points advocated for by the informant, but realistically when one adds those totals up it comes to a significant amount of money. It is going to take a significant amount of time for you to pay those.

[27] There is reparation to be paid to Ms Grinsted for the emotional harm she suffered. That is graphically outlined in her victim impact statement which she read to the Court today. I am going to order the sum of $400 to be paid to her by way of emotional harm reparation.

[28] Because the dog Bailey has been in the Council’s pound for 235 days, you owe the kennel fees and the seizure fee; and there is a total sought of $3593. The Council seeks an order that you pay that amount. Once again, I have got to make an order which is realistic given your financial circumstances.

[29] What I am going to do is, order you to pay the sum of $2500 by way of contribution towards those.

[30] In fixing that figure I take into account the amount sought, and also the fines imposed, and also the reparation. I then move on to the destruction of the dog which follows automatically unless there are exceptional circumstances.

[31] You have submitted that there are exceptional circumstances in this case. It seems that a number of the issues that you have had as far as your inability to be able to properly care for the dogs in your care, have them registered and microchipped, and properly fence the section, and these all seem to be financially driven. I am now told that you are in a position to be able to properly provide for any dogs on the property, particularly Bailey, and that you would undertake to have a new fence built to keep her on the property, and you would muzzle her 24/7 if she were to get a second chance.

[32] The Council, not surprisingly, have some misgivings about that, given the dangerous dog classification issued previously, and your failure to comply with that, given that the notice was issued on 10 March to properly fence the section, and despite that notice having been issued, despite potential destruction of your dog, you still have not complied with that.

[33] In terms of concluding whether or not the circumstances of your offending were exceptional, there is some judicial guidance from a number of cases. I have looked at the cases of Halliday v New Plymouth District Council1,

_{Orr-Walker v Auckland Council}2 _{and Jorion v Kapiti Coast District Council}3_.

[34] What Lang J observed in the Bonnie Jonelle Selwyn-Mallinson4 case was that these and earlier cases establish that the words “exceptional circumstances” create a high threshold that the owner of a dog that has attacked the person or another dog

_{will find difficult to meet.}

1 _{Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005}

2 _{Orr-Walker v Auckland Council [2013] NZHC 1541}

3 _{Jorion v Kapiti Coast District Council HC New Plymouth CRI-2010-454-22, 4 August 2010}

4 Bonnie Jonelle Selwyn-Mallinsonv Rotorua Lakes Council [2016] NZHC 1437

[35] Indeed, in Jorion v Kapiti Coast District Council, Dobson J observed at para [12] as follows:

[12] It is implicit in Heath J’s analysis of s 57(3) that the two sets of considerations require the sequential. First, a dog owner resisting an order where a relevant attack has occurred must establish that the circumstances of the offence were exceptional. If that test is satisfied, then it is necessary to go on and consider whether those circumstances do not warrant destroying the dog. This means that, however exceptional the circumstances, if there remains a prospect that the dog would attack again, then its destruction would be warranted.

[36] Heath J in Halliday v New Plymouth District Council provided a non- exhaustive list of factors that should be considered in determining whether or not the circumstances of the offence are exceptional. Factors therefore I need to consider include as follows:

(a) The nature of the attack and whether any injury resulted. (b) Your history, as the owner of the dog.

(c) Whether the dog has behaved in this way in the past.

(d) The steps taken by you to prevent such an attack occurring.

(e) The reasons why the steps taken did not prevent such an attack occurring on the occasion in question.

[37] So these factors are basically a useful framework for me assessing whether or not the circumstances of your offence were exceptional.

[38] I need to consider the nature of the attack. It was a totally unprovoked attack where these three dogs have rushed out at Ms Grinsted and also her grandson. She has tried to take evasive action, she has done so in a non-threatening way, and she has been bitten, and it was incredibly frightening for her and her grandson. The bite was incredibly painful, it resulted in extensive bruising and it took a couple of months to clear up.

[39] As to your history, as an owner of the dog, your dog had bitten someone previously and had been classified as a dangerous dog. You had also failed to microchip it in the past, and according to the Council records, though you dispute it, there have been issues with it barking in the past.

[40] Then moving on to whether or not Bailey had behaved in this way in the past. Yes, Bailey had behaved in this way in the past, and that is why she had been classified as a dangerous dog.

[41] The steps taken by you to prevent such an attack occurring, involved your locking the dog inside while you are at work, and it was not a sufficient step to take. You were required really to ensure that the section was properly fenced so the dog could not get out and to rely upon someone keeping it inside during the day, is insufficient. So the steps taken by you were not in compliance with your obligations to care for a dog classified as dangerous.

[42] Then, moving on to the reasons why the steps taken did not prevent such an attack occurring on the occasion in question, I think I have already dealt with that. The steps that you took were inadequate. Of course the dogs would want to go outside, they are going to need to go outside to toilet themselves at the very least, so they were not going to be prevented from leaving the section that was not properly fenced, so they would be free to come and go as they have done in the past.

[43] So clearly, when I consider all of those matters, this is not a case of exceptional circumstances. This is a case where the dog will have to be destroyed. I am not to blame for that, the dog control officers are not to blame for that, Ms Grinsted and her grandson are not to blame for that, Bailey is not to blame for that, the fault and the blame rests solely with you, Mr Lam. You have taken a cavalier attitude to your responsibilities as a dog owner. The history of previous dealings with the Council graphically displays your total inability to be able to properly care for dogs, you have been unable to afford to care for them, you have created a nuisance to neighbours, and you have created danger to innocent members of the public.

[44] It is completely inappropriate for this dog to not be destroyed. Put another way, as I say, the circumstances are not exceptional. There will be an order for the destruction of the dog.

A A Zohrab

District Court Judge