Stratford District Council v Fraser [2019] NZDC 2868 (11 February 2019)

Last Updated: 3 September 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT HAWERA I TE KŌTI-Ā-ROHE KI HĀWERA

CRI-2018-021-000697

[2019] NZDC 2868

STRATFORD DISTRICT COUNCIL

Prosecutor v

MURRAY FRASER Defendant

Hearing:	11 February 2019
Appearances:	J Bourke for the Prosecutor Defendant appears in Person
Judgment:	11 February 2019

NOTES OF JUDGE L HARRISON ON SENTENCING

[1] Mr Fraser, you have pleaded guilty and you have been convicted of two charges laid under the Dog Control Act 1996. The first charge being a person who owns a male golden Labrador retriever, “Comet” that attacked a dog, “Tess”, a female fox terrier cross and the second charge again being the person who owns Comet attacked a person, Tess’ owner, [the victim].

[2] Both charges attract a maximum fine of $3000 but one of the things I need to consider today is whether or not I order the destruction of Comet and I have to give consideration to that because I must order destruction of that dog unless I am satisfied that the circumstances of the offence were exceptional. I again want to acknowledge

STRATFORD DISTRICT COUNCIL v MURRAY FRASER [2019] NZDC 2868 [11 February 2019]

the submissions that have been filed on behalf of the Stratford District Council and the testimonials and information that you have given to me as well.

[3] Briefly the facts are that Tess was being walked along [a road] in Stratford roughly opposite where Comet lives. You were at the property with two dogs, Sophie, a Rottweiler and Comet the golden Labrador retriever and as the complainants walked their dog past your property Sophie ran across the road and sniffed at Tess. You were holding on to Comet, but the dog has broken away and he has run across the road. As soon as he gets across the road he has bitten Tess around the neck, started shaking her in a rag doll type motion and one of the complainants grabbed Tess out of Comet’s mouth and Tess then ran away down the road and while he was wrestling with Tess to get out of Comet’s mouth he was also bitten on the hand. Passer-bys, people travelling in another vehicle, they stopped to assist the complainants. You managed to regain control of the dogs, you returned them home. Tess has left the scene by then and was taken to the vet and she had two wounds to the left side of her neck. The top wound was a skin tear of about six centimetres deep, five centimetres wide and the bottom tear was about four centimetres by four centimetres and it had done damage to the muscle. Tess required sedation. Her wounds and muscles were sutured and closed.

[4] Now in respect of sentence today Mr Bourke is submitting that a fine in the vicinity of around $500 is appropriate. He has given me some case law which guides me in respect of that amount. In addition to that there would be reparation of the vet fees and it is open for me to make an emotional harm payment for Tess’ owners.

[5] Significantly for me the Council is neutral, does not take a position for or against the destruction of Comet and I am helped enormously by the submissions that have been made in that regard. When I consider whether or not the circumstances of the offence were exceptional I need to note that you are the person with the responsibility to make out exceptional circumstances and it is a high test, a high threshold to get over.

[6] I take in account that Comet committed a deliberate and aggressive attack on Tess, that he was not properly contained, he was not in his usual enclosure, he had been let out, albeit you were there supervising, and you have attempted to restrain him.

I note that he did not have his collar on. You have taken hold of Comet. You have not had a collar to rely on and you have simply been unable to restrain him from advancing across the road. The attack was entirely unprovoked by the little dog and there has been substantial injury, albeit more minor injuries for the owner when attempting to rescue Tess. Of significance to me is that you do not have any negative history with the Stratford District Council in regards to your dog ownership and you have been described as being co-operative throughout this ordeal and Comet has no negative history with the District Council either.

[7] I appreciate that you have taken steps to ensure that the rear of the property is now fully enclosed, and I am grateful to the photographs you have submitted. I note that you have been dog owners for a long period of time, you are not novices and that golden retrievers are not usually a breed of dog that we would associate with being anti-social, in fact they are dogs that are regularly owned by families because of their nature. So, I accept that this was totally out of character and a one-off for your dog.

[8] In the circumstances I find the circumstances of the offending to be exceptional and I do not order the destruction of Comet. Even if I did find them exceptional as Mr Bourke said I still have a discretion to order destruction or not and I am satisfied that Comet will now be classified as a dangerous dog by the Council and that will mean that he will have to be kept securely fenced within your property, he will have to be muzzled when he goes out in public, he will need to be neutered if he has not been, you will now pay more of the registration fees, 150 percent of the registration fees and he will not be able to be sold or transferred to another owner without the consent of the Council.

[9] So, for the record in terms of penalty, I sentence you with regard to the charge the attack on Tess you are convicted and fined $500, you are to pay Court costs of

$130. You are also convicted and sentenced to pay reparation for the vet fee of $619.10 and for the other charge in respect of the attack on [the victim], you are convicted and fined $500. Court costs of $130 are payable and I am also going to have you make an emotional harm payment of $850 to [the victim]. I have no doubt that what he went through was absolutely terrifying for him and as I say you will get to continue to enjoy

Comet’s company but there will be now conditions imposed by the council about how you do that.

Judge LC Harrison

District Court Judge

Date of authentication: 21/02/2019

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.