Auckland City Council v Luani [2022] NZDC 13466 (18 July 2022)

Last Updated: 6 November 2023

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

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

CRI-2020-092-011005

[2022] NZDC 13466

AUCKLAND CITY COUNCIL

Prosecutor v

SALOME LUANI Defendant

Hearing:	18 July 2022
Appearances:	M Spear for the Prosecutor N Tupou for the Defendant
Judgment:	18 July 2022

NOTES OF JUDGE J C MOSES ON SENTENCING

[1] Salome Luani has pled guilty to a charge that she owned a dog, namely a tan coloured female Staffordshire Bull Terrier cross named Carly Junior or Rhyhno, that attacked a person on 7 September 2020. That is a charge which was laid under s 57(2) of the Dog Control Act 1996 for which the maximum penalty is a fine not exceeding

$3,000 and compensation for the damage caused by the dog. There is mandatory destruction of the dog unless there are exceptional circumstances.

[2] This matter has been put off on a number of occasions for a variety of reasons. On the last occasion Ms Luani was unwell and her attendance was excused. Counsel had sought an adjournment on that date to obtain a psychological report. I had indicated to counsel on that occasion that it was difficult to see how a psychological

AUCKLAND CITY COUNCIL v SALOME LUANI [2022] NZDC 13466 [18 July 2022]

report would assist in my determination of the issue of destruction which was and is the matter being opposed. The matter, however, was adjourned until today’s date and in addition to additional submissions that have been filed by counsel, I have received a cultural report filed by counsel.

[3] The brief facts are that Ms Luani is the owner of a tan coloured female Staffordshire Bull Terrier cross named Carly Junior or Rhyhno. On 7 September 2020 at approximately 11 am the victim left the property she had been visiting and walked to her car which was parked on the street. The defendant’s dog ran out from her property towards the victim growling and barking. The victim turned to head back to the property she had just left but the defendant’s dog chased her and bit the back of her left leg just below the knee. The victim started yelling and kicked at the defendant’s dog.

[4] Shortly after this the defendant’s son called the dog and it ran back to him. The victim yelled at the defendant’s son informing him that the defendant’s dog had bitten her. The defendant’s son then began beating the defendant’s dog and stayed on his property. The defendant’s daughter then came out of the property and talked to the victim, apologising and told the defendant’s son to stop hitting the dog. The victim showed the defendant’s daughter her injury and the defendant’s daughter gave her the name of a nearby clinic. The victim drove to Westcare White Cross for treatment. She sustained a bite wound from behind her knee on her left leg and a photograph of the injury has been produced to the Court.

[5] The defendant’s dog was seized and impounded and subsequently released on strict conditions pending the outcome of this prosecution.

[6] Mr Tupou for the defendant has filed more than one set of submissions addressing the issue as to whether the circumstances amount to exceptional circumstances such that the Court did not have to order the destruction of the dog. Mr Tupou has provided some background circumstances of the defendant who is a lecturer or tutor at the Te Wananga O Aotearoa. She had at the time of the attack, seven children. [Details deleted].

[7] The facts that Mr Tupou put forward are that on the day in question both the defendant and her husband were away at work as they are both in full-time employment. There were only two people at the property, the defendant’s son [person 1] and their daughter [person 2].

[8] The gate had been opened by [person 1] to allow him to drive out of the property but after opening the gate the dog ran out of the property and escaped into the neighbourhood. [Person 2] at that stage was asleep in the house. As the summary indicates, [person 2] subsequently came out and apologised to the victim and gave the victim the name and location of a clinic nearby for assistance.

[9] Mr Tupou puts forward the following matters in support of there being exceptional circumstances. Firstly, that there has subsequent to the offence taking place been an improvement of the fencing inside the property at [location deleted]. The Luani family have now installed higher fencing around the inside of the property prohibiting the dog from jumping or running out of the property.

[10] A brief update on that today from Mr Tupou is that the family have in fact sold the property involved and are moving to a new address.

[11] There is some history to the defendant and the dog. The defendant in September 2017 had been fined $1,000 for failure to control her dog and a further

$1,000 on 1 June 2018 for failure to keep the dog under control on a leash in a controlled on-leash area. The defendant was also fined on 21 June 2018 for failing to control her dog.

[12] Mr Tupou submits that whilst it is accepted that the injuries were not minor to the victim, the circumstances of the offence were exceptional. He submits that there are a number of issues that Mr and Mrs Luani have had to deal with concerning their children. As I understand the situation three of their children have a condition or disorder which means that they suffer from [details deleted]. The defendant’s son [person 1] has also been diagnosed with schizophrenia. There had been a concern in 2020 he had in fact suffered from cannabis and alcohol use disorder. Apparently [person 1] is currently on medication and has mood swings and delusional traits.

[13] As I have already referred to briefly, the defendant’s daughter [person 2] at the time also suffered from significant mental health issues and attached to counsel’s submissions for an earlier hearing on 19 November 2021, were letters from a psychiatrist indicating that it was the opinion of the psychiatrist that the dog would be an invaluable assistance to [person 2]’s recovery if it could be spared. Sadly, even with the presence of the dog, [person 2]’s situation changed. [Details deleted].

[14] Counsel has submitted that the dog had been let loose because [person 1] did not have the ability on the day in question to make important and rational decisions and to be careful that the dog would not escape from the property. Though no medical evidence as to what had occurred that particular day has been provided, I do accept that [person 1] has had long-term and at times significant mental health issues.

[15] Counsel referred to the Court of Appeal’s decision of Auckland City Council v Hill. Mr Tupou submits that there may be circumstances related to the owner of a dog which make the attack exceptional but that they must have a direct bearing on or be related to the attack.1 It is submitted that I take a broader assessment of the likelihood that the dog would behave in a similar way in the future based on the unusual or unique circumstances arising out of the particular offence.

[16] Counsel then went on to refer to a decision of the Auckland City Council v Watts which is a District Court decision, which of course is not binding on me and finally a decision of Sevi v Manukau City Council, a decision of the High Court at Auckland in 2008 where on appeal the High Court decided that the destruction of the dog was harmful to the wife of the defendant who had mental health problems and the appeal was allowed.2 The order for the destruction of the dog had been quashed.

[17] Counsel submits that the combination of the impact of the issue of [detail deleted] on the children and the ongoing mental health of the defendant and her family, particularly now that [person 2] has died amount to exceptional circumstances which the Court should take into account and that the Court should not order the dogs’

1 Auckland City Council v Hill [2020] NZCA 52.

2 Auckland City Council v Watts [2017] NZDC 639; and Sevi v Manukau City Council High Court Auckland CRI-2008-404-000166, 11 August 2008.

destruction. It is Mr Tupou’s submission that if the dog was to be destroyed it would cause further havoc and devastation to the family.

[18] As I have indicated to counsel during argument and as counsel have referred to, there has been guidelines from the Court of Appeal in the Hill decision as to what amounts to exceptional circumstances. To that end I note that the decision referred to by counsel of Sevi v Manukau City Council, a decision from 2008, needs to be read in light of the Hill decision.

[19] The Court in Hill held that where a defendant elects to make submissions in support of exceptional circumstances the relevant enquiry is limited to the circumstances of the attack itself and cannot include pre and post attack conduct. The Court created a two-step approach. Firstly, where the owner of a dog is convicted of a strict liability offence an order for the destruction of the dog will normally follow.

[20] The first step in applying s 57(3), namely whether there are exceptional reasons, are to identify the relevant circumstances of the offence, namely what happened. This enquiry should focus on the immediate circumstances. 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, are not circumstances of the offence.

[21] The second step is for the Court to ask whether the circumstances of the offence were exceptional and do no 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 therefore is for me to look at those circumstances and decide whether they were sufficiently exceptional that the risk is remote and does not justify destruction of the dog in the interests of public safety.

[22] To that end I note that the submissions by Mr Tupou that the fence has been built higher subsequent to this attack are not relevant to my consideration. Furthermore, I note that that property the dog escaped from is not the property that the defendant is going to be moving to.

[23] The Court held in Hill that what is exceptional is “An unusual or one-off occurrence that is most unlikely to be repeated.” The Court went on to give examples as to what sort of circumstances might be considered exceptional. One of those was an example where the owner of a dog A was rushed or attacked by dog B and dog A attacked dog B in order to protect its owner. The Court said in those circumstances a judge might well conclude the circumstances were exceptional which did not warrant the destruction of the dog. The Court also said:

Nor is it open to the owner to argue that the test is met because the attack was caused or contributed to by a one-off failure by an otherwise responsible owner to maintain effective control of the dog. Failures to control a dog are not exceptional circumstances of the kind that indicate that destruction of the dog is not warranted. The caselaw under the Act is replete with examples of proportions that ought to have been taken but were omitted or were undermined by the actions of innocent third parties (failing to properly shut doors or gates is a common theme) or that failed for a host of other reasons.

[24] Furthermore, the Court went on to say:

Assurances given by the current owner about the future management and control of the dog are not relevant to the s 57(3) enquiry. Such assurances are not enforceable. There is no mechanism for checking that they are consistently implemented over time. The ownership of the dog may change. The owner will at times be dependent on others to take responsibility for the dog. For example, during holidays and other absences from home. And as noted there is nothing exceptional about precautions being omitted or failing even where those precautions are required by law.

Dog owners are required to maintain control of their dog at all times. The failure of the defendant to maintain adequate control of their dog compromised the safety of the public.

[25] The circumstances of this case are unexceptional. The facts of the matter before the Court are that on the date of the offence the defendant’s dog escaped from her property and without provocation attacked the victim. Sadly, there is nothing exceptional about those facts. I find that there is nothing exceptional in a situation where a dog escapes from its confinement and attacks another person.

[26] Furthermore, this dog has a roaming and aggressive history so the behaviour displayed by the dog at the time was not exceptional or unusual. I am aware that the dog is a loved member of the family and has provided and continues to provide comfort to members of the family. However, that is not the test that I must as a judge apply. I take into account the defendant’s early guilty plea and her financial

circumstances and I am aware from one of the reports that I have read that the defendant and her husband did take a good deal of time off work to care for their daughter [details deleted] and that has added to financial concerns the family have.

[27] I have decided to fine the defendant the sum of $500. There will be an order for emotional harm reparation to be paid to the victim for $650. Fifty per cent of the fine is to be paid to the Auckland Council in accordance with s 77 of the Dog Control Act 1996. There are court costs of $130. For the reasons given I find there are no exceptional circumstances and therefore I make an order for the destruction of the dog known as Carly Junior or Rhyhno.

Judge J C Moses

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 26/07/2022