Dunedin City Council v O'Neill [2016] NZDC 9824 (28 April 2016)

Last Updated: 18 November 2016

EDITORIAL NOTE: PERSONAL/COMMERCIAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT DUNEDIN

CRI-2015-012-003093 [2016] NZDC 9824

DUNEDIN CITY COUNCIL

Prosecutor

v

THOMAS JAMES JOSEPH O'NEILL

_Defendant

Hearing:	28 April 2016
Appearances:	K Rusher for the Prosecutor A Stevens for the Defendant
Judgment:	28 April 2016

_{NOTES OF JUDGE K J PHILLIPS ON SENTENCING}

[1] I wish to address my initial remarks to the victim of this dog attack who I understand is in Court. In making the direction that I did earlier, that the victim impact statement was not to be read, I was not in any way taking away the rights of the victim to be heard. What I was doing there was noting a number of matters. I noted the detail of the victim impact statement that I had read very carefully in preparation for this morning. I noted the content of the restorative justice report and the fact that the summary had been read at that conference and matters arising discussed fully between Mr O’Neill and the victim. The matters were, I suppose, fully discussed and apologies offered, discussions on how and what had happened; and then what had happened after the fact. I was of the view there was, therefore, no need for others to consider the victim impact statement other than me as presiding

_{Judge; no need for everybody else who is seated in Court (there are a large number}

DUNEDIN CITY COUNCIL v O'NEILL [2016] NZDC 9824 [28 April 2016]

of people here) to hear of the trial and grievous tribulations that these matters have occasioned to the victim. I will come back to that.

[2] At about 6.30 am or thereabouts on 1 December Mr O’Neill was walking his three dogs. These three dogs were Irish Wolfhounds. All were the same age. All came from the same litter. All had been through the same intensive (if I can describe it like that) training by Mr O’Neill and his family. All three dogs lived in the O’Neill house as part of the family. I have no hesitation in accepting that Mr O’Neill, his wife and family are people who are experienced in relation to dogs, their care, their training, the necessity for dog obedience, discipline and so forth.

[3] What Mr O’Neill was doing he had done on a number of occasions, and did again this particular morning, which was to take these three large dogs out on leads all together for their morning walk. I consider that had inherent risks in it from the first day he did it. All it needed was an intervening factor and disaster would take place.

[4] At about 6.20/6.30 on this morning the victim, [details deleted] saw the defendant and his dogs coming up from the driveway on the opposite side of the road. She saw that the dogs were dogs that she had seen out on the street on another occasion. She had crossed the road to the same side of the road as where the defendant had his dogs. I think it is accepted by all that at that particular point in time when she approached the dogs the defendant was distracted. He was distracted in picking up dog faeces. I have from Mrs Stevens, as counsel, photographs showing where he was positioned – just off the footpath doing that; and where the dogs were positioned – taking up the whole footpath beside him. What has occurred as a result is that Mr O’Neill, I find, was not on the required task, that is, to ensure that these three dogs, if he was going to take the risk of having them out in a public place, were totally able to be immediately controlled and not cause danger or harm to any person.

[5] The victim goes to pass the group. She says that she said something like, “Hello dogs”, her arm moved, and ‘bang’ the male dog immediately grabs her by her arm. It might be, I have read all of the papers that have been given to me by counsel

in relation to dogs and what they do when people come close to them, their protection responses and the way they instinctively react (what dogs do). That is the risk of having dogs in a public place. What this dog did was immediately grab, by biting, the victim’s arm. There was no warning, no growling, no kind of, “Move out of the space or something will happen,” type of action. An immediate bite. The victim had no time to react and she has fallen to the ground. That is quite understandable. These dogs are huge dogs. They are not small Bichons or lap dogs. They are large dogs. What then happened was the “pack mentality” took over. The other two dogs also got into the biting of the victim. In the facts summary it is described as the “ferocity of the attack” by the male dog. That is what was happening. The defendant is attempting to control his dogs having all of a sudden been brought back to the task on hand. He was finding that he could not control all three of them. He had to let the two female dogs loose by letting go of their leashes while pulling the male dog (which was the prime attacker at that point in time) and trying to get it to release its grip on the victim and get it back under control. The two dogs then released continued their attack. The victim rolled herself into a ball. She describes clearly in her victim impact statement as to what was going on and what she was thinking. Her concern was where her arms were and whether her face would be attacked. She rolled away from the dogs. She rolled down across the grass verge (there is a photograph of that) and down a small bank onto a driveway. The two dogs followed. The attack continued. Finally, the defendant managed to get both dogs back to him, regaining control. He took them away and secured them to his property close by. He then went to the aid of the victim. He had to use his belt as a tourniquet to stem the bleeding from the grievous wound she suffered to her leg. She has suffered multiple dog bites. The wound to her lower right leg was extremely serious. I will come back to that. The St John’s ambulance report says it was a laceration to the bone on the right leg with a large chunk of her right leg and calf missing. At that point in time she lay on the roadway and the ambulance staff wrote,

“Immediate threat to her life.” She was transported to the Dunedin Public Hospital.

[6] This was an attack by all three dogs, although the male dog was the leader. The pack mentality took over. The dogs, through the efforts of Mr O’Neill, were immediately euthanized. I accept that that has caused emotional upset to the O’Neill family.

[7] So what we have is a man who is an experienced “dog man” taking three large dogs out onto a public footpath. He would I think, if he had looked at it in an objective way, realised the danger in doing that. If one dog acts in the way that the male dog here did he would not have the ability to control all three of these dogs because of their size and because of the ferocity of them when they returned to their natural reactions when this type of thing occurs. He would be well aware of that. I am sure he has read the history relating to Irish wolfhounds as I have. As I have said she suffered greatly. The victim suffered severe injury. The major wound to her right leg was right through into the bone and muscle and tissue was missing from it. This no more than five minutes totally changed her life. She was under attack lying on the ground, three large dogs over her biting ferociously, screaming for help, bleeding badly. She spends two weeks in hospital. She has had to have skin grafts; two major surgeries up to six hours at a time; permanent loss of flesh from her body; permanent scarring; permanent nerve damage; major ongoing physical difficulties; constantly in pain. Some of the impacts – she has ongoing lack of sleep; she has nightmares about what she saw was happening to her as she lay on the roadside; because of an inability to earn income she lost the tenanted premises she had; major financial impacts have been compounding and imploding on her. She has had to sell [details of property deleted] incurring costs and bank fees she never anticipated having to meet. Her finances have fallen into total disorder. That together with the emotion and the trauma that she suffered has all built in to where she really is in a state of despair. Her job prospects are weak. She could meet weekly mortgage payments on [details of property deleted]. She has incurred rates she cannot pay. She cannot make payments on her personal debts. In summing it all up and having again, as I have said, considered her victim impact statement it has been totally life changing for her.

[8] I take into account in assessing matters here that there was a successful restorative justice conference with apologies made on both sides. The victim was aware, she said, of the impact on the defendant of the loss of the three dogs. That, I think, assesses her in my view as the type of person she is. She is thinking about Mr O’Neill and his family at a time when her own life was no longer where it was prior to the attack. I have considered detailed information finally received in relation to reparation in the material supplied. The victim has discussed her financial losses.

She notes that she received a $2000 payment while in hospital from the defendant. I also have regard to the emotional trauma. I note that the defendant is willing to make other payments for financial losses. I understand that he is also aware of the emotional harm and the losses of income which are hard to calculate in respect of the victim. His income is in a negative position. I note his asset position is positive.

[9] I have received detailed submissions from counsel for the informant, the Dunedin City Council. The Council seeks a penalty of a fine and an order for reparation. The submission made is that there is a high degree of care required from the owners of dogs out on the public street. The offenders lack of due diligence has resulted in a serious impact on the victim and overall puts it at the serious end of the scale of this type of offending. The consequences, though not intended says Ms Rusher, could have been avoided – the three large dogs on a leash with the defendant and muzzled. There had been no forethought of the dogs reacting unexpectedly. It is noted by the Council that the defendant had all three dogs euthanized immediately. What Ms Rusher is seeking is reparation to return the victim to a financial position where she is less vulnerable. She accepts the totality of the fine and the reparation cannot be out of proportion to the offending. She seeks a fine at the upper end of the scale. The upper end of the scale here is $20,000. Quite simply, that type of fine is not available to me taking into account the defendant’s actual income and financial circumstances.

[10] Mrs Stevens has provided me also with detailed written submissions, two sets of them. I do not argue with her about the fact the defendant has an unblemished character, is hard-working and responsible, a good husband and a family man but this is not all about that. I accept the three dogs were schooled, obedient and of a nature where they had not, prior to 1 December, excited any form of concern. I accept the defendant pleaded guilty at the first reasonable opportunity; that he went through a positive restorative process; and that his wife went as well. I accept his weekly income is restricted. Mrs Stevens’ view is that in the end there should be an order for reparation only. She points out that there were no prior acts of aggression, which I answer by saying there was also a risk in one man taking three large dogs on a leash of a dog escaping control. I accept there were no prior acts of aggression. I have read what Mrs Stevens has given me as to information about Irish Wolfhounds,

their nature and whether these dogs have a nature that was aggressive or dangerous and holding the view that Irish Wolfhounds are not such animals. I am prepared to accept that these particular dogs had been trained, schooled and brought into a home and had not exhibited any prior acts of aggression or danger to people. I have to take into account, however, that it is inherent in any animal descending from a wolf that there are risks of aggression. That is for any animal, any dog. I accept there is no need for personal deterrence.

[11] So we have a defendant who is a responsible dog owner. I have and accept that these three Irish Wolfhounds are dogs that had given no problem. I accept what Mr Wylie says about Irish Wolfhounds, he is the president of the Irish Wolfhound Society, Irish Wolfhounds in general. I note that like all dogs, strangers need to understand approaching a dog is risky. I note all the many, many references that I have read and considered. I have read the decisions of Fairweather. I take due note of ss 7 and 8 Sentencing Act 2002. I have had to come to a decision because that is my task in relation to this sentencing to assess what is the appropriate response by the community to this kind of prosecution.

[12] I have no doubt that this is a serious case of its kind. A woman was grievously attacked by three large dogs. The word ‘ferocious’ has been used in the summary of facts. From what I have described and read that the animals were ferocious is well-established, indeed, with the benefit of hindsight, and the serious injury suffered by the victim it is inarguable. I find that the defendant was distracted from the control that he must have known he had to exert at all times in relation to these dogs by a secondary duty as a public fair-minded citizen to pick up the dog droppings. The victim’s arrival at the same time by the dogs is unfortunate. The defendant is bent over and distracted. That is not her fault whatsoever. I note that the defendant then had to let two female dogs loose while he tried to control the male dog that was out of his control. As a result, the two female dogs continued their attack. I have gone through the injuries suffered by the victim and the life-changing nature of this incident. I have to also note that it is impossible in a real sense for me to return her to the position she was before she crossed the street on 1 December. These matters are continuing and will continue to have an ongoing financial impact; a major emotional impact; a major physical impact.

[13] The maximum penalties available in the terms of the law, and I have again read submissions made when the law was put in place and what was being said by the politicians who were putting the law in place about the level of penalties and so forth – the maximum penalty here is a term of imprisonment not exceeding three years, a fine not exceeding $20,000 or both. I need not consider as regards to the destruction of the dogs. They have been euthanized.

[14] Ms Rusher does not seek a term of imprisonment. Otherwise, Mr O’Neill, I would have had to give consideration to a much more serious penalty. I put it to one side. Your income position does not support a fine. Your finances need to be rearranged in order that you can pay the maximum sum of reparation to your victim. I note the assets that are available. I note that they are described as dilapidated (some of them).

[15] When I consider the penalty, the denunciation and deterrence, I think there is a combination required here. A balancing exercise. I am not prepared just to impose an amount of reparation upon you as a penalty. I consider you should, in the circumstances, be giving something back to the community that you endangered by your actions in taking these dogs onto the street, particularly in relation to the victim. I consider that an appropriate level, after considering all matters, is you be sentenced to community work. You will undertake 150 hours of community work.

[16] I move on to consider reparation. It is difficult to quantify emotional harm reparation other than the way that I have attempted to do in these sentencing remarks. I cannot fully quantify it. I consider when I looked at it overall that a sum, total sum of $10,000 would equate as a step towards advancing the position of the victim somewhat. I note that you have paid $2000 voluntarily. I give you credit for that. As part of the sentencing process today I order that you will pay emotional harm reparation to the victim in the sum of $8000 by a lump sum payment no later than 1 July.

K J Phillips

District Court Judge