Power v Police HC Auckland CRI-2010-404-351 [2011] NZHC 1574 (19 July 2011)

Last Updated: 20 November 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2010-404-351}

BETWEEN ANNE DE LA POER POWER Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 28 June 2011

Counsel: P J Kaye for the Appellant

F J Cuncannon for the Respondent

Judgment: 19 July 2011

_{JUDGMENT OF ELLIS J}

This judgment was delivered by me on 19 July 2011 at 1pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140

Counsel: P J Kaye, PO Box 941, Auckland 1140

POWER V POLICE HC AK CRI-2010-404-351 19 July 2011

[1] On 5 May 2010 following a defended hearing before Chief Judge Johnson, Mrs Power was convicted on four counts:

(a) Being the owner of a dog (Bear) that attacked a person in contravention of sections 57(1)(a) and 57(2) of the Dog Control Act

1996 (“the DCA”);

(b) Being the owner of a dog (Shiloh) that attacked a person in contravention of sections 57(1)(a) and 57(2) of the DCA;

(c) Being the owner of a dog (Bear) that she failed to keep under control in contravention of section 52A(2) and 52(3) of the DCA; and

(d) Being the owner of a dog (Shiloh) that she failed to keep under control in contravention of section 52A(2) and 52(3) of the DCA.

[2] The applicable penalty for an offence of failing to keep a dog under control is a fine not exceeding $3,000. The applicable penalty for an offence under s 57 is “a fine not exceeding $3000 in addition to any liability that he or she may incur for any damage caused by the attack”. In addition, the Court must, in the absence of exceptional circumstances, make an order for the destruction of the dog.

[3] When Mrs Power came up for sentence on 31 August 2010, Judge Recordon ordered the destruction of both dogs under s 57 of the DCA and, (in relation to the charge concerning the attack by Bear), that Mrs Power was to pay:

(a) reparation of $2,500 to Ms Leckner;

(b) reparation of $32,204 to the Rodney District Council for housing and other fees related to caring for the dogs for the 2 years since they were impounded; and

(c) a fine of $1000.

[5] As the result of her conviction the Rodney District Council also disqualified Mrs Power from owning dogs for a period of five years under s 25 of the DCA, effective from May 21 2010 to May 21 2015.

The decisions under appeal

[6] In terms of describing the events that gave rose to the charges and Mrs Power’s conviction, I can do no better than to quote from Judge Johnson’s judgment. In his words:

[1] At about 7 pm on Sunday, 2 March 2008 Kim Leckner was walking through the Riverhead Forest on the pathway known locally as Boundary Road or Cobber’s Lane. The tranquillity of the occasion was rudely interrupted by two dogs bounding towards her. She kept them under sight, and although the dogs were distracted they soon turned towards her barking furiously in a way which was frightening to her. She decided to keep walking. The dogs followed. She felt she dared not stare at them or run believing that this might excite them. One dog sank its teeth into her left leg and the other into the side of her right leg causing ugly punctures. Bleeding she continued past a track leading to a horse float and dog kennels and pens, making her way to a friend’s house from whence she was taken for medical assistance.

[2] Boundary Road or Cobber’s Lane was well known to Ms Leckner. She used to use it for exercising personally or horse riding, and although she had been overseas for about a year she had returned a couple of months previously and resumed her familiarity with the area. She had noticed deep in the forest adjacent to the Boundary Lane a horse float where an older woman lived with a number of small noisy dogs in pens.

[3] The dogs that attacked her were unknown to her. One she noticed was brown in colour with dark points and wiry hair. The other she considered look like a Stafford cross type dog with short hair and goldie tan in colour.

[4] The next day, 3 March 2008, Helen Reynolds, an Animal Control Officer for the Rodney District Council, went with some policemen and other dog control officers to the defendant’s property which was adjacent to Riverhead Forest and adjacent to Cobber’s Lane. This was the site with the horse float and the animal pens. There two dogs known as Bear and Shiloe similar to the description given by the complainant Ms Leckner were seized and taken to the Rodney District Council kennels. While there the officer noticed some goats contained in the dog kennel and its pen was covered with plastic sheeting. It was a hot summer’s day, the goats were panting, fully coated with no water or food. They were on straw and surrounded by flies. She was of the view that the condition was disgusting. One goat had a torn lip and another baby goat had its head stuck between some insecure wire

netting and the frame of the cage. There was no air there and some muddy water was provided from a puddle by the officers.

[5] The officer also noted an old dog pen with broken wooden flooring which would allow an animal to pass through.

[6] On 27 May 2008, Ms Leckner went to Red Vale Kennels and there she was asked to identify some dogs from a line up if they were the dogs which had bitten her. Two rows of four dogs of similar appearance were viewed by her. From the first row of dogs she picked one out as being the brown dog with the wiry hairy coat. She did not know its name. Of the other four she selected two dogs of similar appearance.

[7] We were advised by the Dog Control Officer Reynolds that the first dog was in fact Bear but of the two dogs selected in the second viewing one of them was Shiloe. As it happened Ms Leckner thought that the other dog (not Shiloe) was the more likely of the two to be the dog which attacked her.

[8] Ms Power gave evidence to the effect the dog had food and water which it only needed once a day, and that the plastic sheeting was to protect it against rain. She pointed to the puddle of water as indicating that there had been recently rain. She said the sides of the plastic sheeting came only part way down and that there was good passage of air. She said the flooring was not straw but hay, obviously edible by the goats. She denied poor treatment. She called a veterinarian who saw the goats some weeks later. He said they were in good condition. Based on her evidence that the plastic sheeting was only part way down he was of the view that they would have good circulation of air and that there was hay available for them.

[9] Constable a’Beckett gave strong evidence confirming that the Dog Control Officer’s evidence about the goats, characterising the living conditions for the goats in the pen, as disgusting. She was present when the dogs were seized by the Dog Control Officer on 3 March and said the dogs were barking and running at the side of the cage causing the cage to move.

[10] The Dog Control Officer, Ms Reynolds, told the Court that the defendant came to her office on 4 March and spoke to her at the counter. There the defendant asked her if she, the Dog Control Officer, had seen the kennel behind where Bear and Shiloe had been kept the day before, during the seizure. Ms Reynolds indicated that she had and that it had not been secure because of the broken floorboards. She said the condition was such that any animal in them could have escaped. Her evidence to the Court was that the defendant said that the reason she was asking whether the kennel had been noticed was because Bear and Shiloe must have got out of the kennel with the broken boards. The defendant volunteered that she had checked Shiloe for blood on her face and there was none. The officer said that she asked the defendant “yesterday?” to which the defendant replied “no, the day before, blood on Shiloe’s face”. She claimed the dogs as her own. The remark about checking for blood is curious in the light of the denials later made at trial.

[11] In her own evidence the defendant claimed that the dogs had been locked up when she went out and this had been the case at the time when the complainant passed by her place in the forest. She said that she had had the dogs for several months and there had been no problem with aggression.

She said the kennels were near new and in good condition and nothing was broken. She said the dogs were secured before she left the premises and were still there when she returned. She said the dogs had not been placed in the older disused kennels on the property.

[12] In response to cross examination the defendant claimed that she could not recall saying the things which Officer Reynolds had reported during their discussion at the Dog Control officer or that her remarks had been misconstrued and that the evidence of the Dog Controller should not be trusted.

[13] The prosecution had also called a dog psychologist, Simon Goodall, who examined the dogs on 4 March 2010. By this stage the dogs had been kept in the council kennels for two years. Notwithstanding what incarceration might do to dogs for that time he gave an opinion that they were aggressive dogs and would have been aggressive dogs at the time of the attacks, and indeed will be aggressive dogs in the future.

[14] Mr Kaye for the defendant very firmly challenged the evidence of identification of the dogs and was particularly critical of the result of the identification parade.

[7] As indicated in the last paragraph above, Mrs Power’s defence to the charges was based squarely on the alleged mis-identification of the two dogs. As to that, Judge Johnson concluded:

[15] It is certainly true that the complainant was unable to recognise the second dog Shiloe although she had selected Shiloe along with another dog she preferred as her attacker in the parade. She had selected the dog Bear. I do not propose to examine whether there is a perfect method for identification of dogs or whether the same sort of considerations that have given rise to rules around the identification of human beings should be applied to dogs. However I have formed the view that if the prosecution relied on the identification evidence at the ID parade alone, I would not be in a sufficient position to make a finding that these were actually the dogs. But combination of the location of the attack adjacent to the defendant’s residence in her remote location in the Riverhead Forest; the description of the dogs; the fact that the dogs of that description were found located in the kennels at the part of the forest where the attack had taken place a day later; and the defendant’s admissions to the Dog Control Officer which are completely at variance to the evidence she gave before me in Court leads me to the view that the dogs were properly identified. In the light of all of those factors in combination [with] the fact that two dogs of the same description were running together at the time of the attack overcomes in my mind any doubts which otherwise might have existed about the identification parade.

Sentence

[8] Much of Judge Recordon’s sentencing notes is concerned with the destruction

issue and in particular whether there were, in terms of s 57(3), “exceptional

circumstances” which meant that destruction was not warranted. He referred in this respect to Mr Goodall’s evidence (referred to by Judge Johnson at [13] of his judgment) that the dogs were aggressive and would remain so. However he also noted:

Attached to Mr Kaye’s submission is an email from Mark Vette who is an Animal Behaviour Consultant. While it is unsigned, it is an email which, he said, he bases his report on a preliminary assessment and test of the dog’s responses to him as a stranger entering their exercise yard. He says ideally he would like to do several testings in other contexts with several people.

This is the background to his examination and he says that as far as the animals are concerned, dog Bear is “far too well socialised and solicitous to be aggressive in any context. Shiloe is a little malsocialised and when confronted by strangers shows defensive fear induced barking but when approached withdraws fearfully and even when provoked continues to vocalise but avoid and does not show even defensive biting responses.” He says as far as he is concerned, from his tests the dogs did not bite.

Not surprisingly Sergeant Leonard is concerned that goes to the heart of the decision which was that these dogs did bit, but I accept Mr Kaye’s submission that Mr Vette is trying to assess ... what the dogs are likely to do in the future ... .

[9] Judge Recordon then went on to refer to the relevant case law in relation to

“exceptional circumstances” and concluded:

On reviewing the decision, the law, the submissions, and in particular having regard to Mr Goodall’s evidence, there is in my view no exceptional circumstances here. Whatever the background to these two dogs, and I do have regard to what Mr Vette has said, these dogs bit Ms Leckner to the extent that she suffered quite severe injuries.

...

[10] He determined that the dogs were required to be destroyed accordingly.

[11] Judge Recordon’s analysis in relation to the questions of reparation and fine was brief. However it is plain that in setting the level of the fine, he took into account the quantum of reparation ordered.

Basis for appeals

[12] Mrs Power appeals:

(a) her conviction on the grounds that Chief Judge Johnson erred in finding the identification of the two dogs proved beyond reasonable doubt;

(b) her sentence on the grounds that Judge Recordon

(i) did not properly apply s 57(3) of the DCA when determining whether to order destruction of the dogs; and

(ii) imposed a final (total) sentence that is manifestly excessive.

[13] In support of her appeals Mrs Power also sought leave to adduce further evidence, being evidence of a Mr Vette, who is referred to by Judge Recordon’s notes as having formed a preliminary view that the dogs were not dangerous. It is necessarily to that application that I turn first.

Application to adduce further evidence

[14] Prior to the hearing before Chief Judge Johnson there had been some indication that Mrs Power would call evidence from an expert in animal behaviour. This indication prompted the Police to call evidence of that kind from Mr Goodall, whose brief was provided nine days before the hearing.

[15] In the event no such evidence was called by Mrs Power at trial.

[16] Prior to sentencing, however, Mr Kaye filed a memorandum in which he stated that he intended “to have a report from a behavioural specialist, Mr Mark Vette as to the general behaviour of the two dogs in question available for Your Honour at sentencing”. Annexed to the memorandum was the email from Mr Vette dated 28 August 2010 referred to by Judge Recordon in which he said that he had conducted a “preliminary assessment and test” of the dogs and that although he wished to do further testing his initial findings were that the dogs were not aggressive, “did not bite” and that in his view there had been a case of misidentification.

[18] No further report or formal brief of evidence from Mr Vette was, however forthcoming.

[19] When Mrs Power’s notice of appeal was filed on 9 September 2010, Mr Kaye signalled that she wished to adduce further evidence on appeal. Then, on

15 February 2011 he advised that no fresh evidence was to be offered. However the possibility was raised again by him on 15 June 2011 and he was told by the Crown that unless appropriate protocols were proposed and could be agreed any further testing would need to take place at the pound, for security reasons. On 22 June 2011

Mr Kaye advised he was seeking further instructions and the following day he said that it would be possible for the testing to be undertaken at the pound.

[20] By the time of the hearing before me no further testing had taken place. Instead Mr Vette had sworn an affidavit in which he repeated more or less verbatim the preliminary views expressed in his August 2008 email. Again, he said that further assessment and testing was desirable.

[21] In light of the history of this matter I am in no doubt that Mrs Power should not be permitted to adduce evidence from Mr Vette in this appeal. With no criticism of Mr Kaye intended (it is clear he has been placed in a difficult position) Mrs Power plainly has an interest in delaying this matter as long as possible. The hearing of the appeal has already been adjourned once. And in fact, steps had been taken to procure the proposed evidence before the trial over a year ago and again, just prior to sentencing. For whatever reason Mrs Power simply chose not to pursue those steps to a conclusion. Similarly, she had ample time to secure the assistance of Mr Vette prior to the hearing of the appeal. The inference I draw from her prevarication is that she merely seeks to achieve further delay in the resolution of this matter.

[22] The application is declined accordingly.

[23] As indicated above the only argument advanced on behalf of Mrs Power in relation to her conviction was that Judge Johnson was wrong to find that it had been proved beyond reasonable doubt that the two dogs were correctly identified as Shiloh and Bear. In support of this contention, Mr Kaye took me carefully through his criticism of each of the five strands of circumstantial evidence relied on by Judge Johnson at [15] of his judgment.

[24] With all due respect to Mr Kaye (who advanced his arguments as attractively as possible, in the circumstances) I do not accept any of his criticisms.

[25] First, he said that the learned District Court Judge’s reliance on the fact that the attack occurred close to Mrs Power’s remote residence in the forest was overstated because her residence was not “that” remote. In my view that point has no substance. While there may be academic arguments to be had about degrees of remoteness, and the apparent existence of neighbours, Mrs Power’s residence is plainly comparatively isolated and it is undoubtedly very near where the attack took place.

[26] Secondly, Mr Kaye submitted that there was problem with Judge Johnson’s reliance on Ms Leckner’s description of the two dogs because one of those descriptions was much better (i.e. closer to the canine reality) than the other. That of course was also reflected in the results of the “line up”.

[27] But while I accept that Ms Leckner’s description of one of the dogs was less accurate than her description of the other, even the less accurate account was far from being plainly wrong. And it is of course in the nature of circumstantial evidence that it is the combination of the descriptions with the fact that the clearly described dog was found housed, and had been seen running in the forest, with a dog that was similar to the one that was less clearly described that begins to lead inexorably to a finding of proof beyond reasonable doubt.

[28] Thirdly, Mr Kaye said that the fact that dogs of that “description” were located a day later in the kennels at the part of the forest where the attack had taken place was based on the evidence he had heard from Mr Goodall to which the learned District Court Judge had referred two paragraphs earlier. He said that the word “description” must be taken to mean not only their physical appearance but also their behaviour. On that basis, he said that the foundation for that conclusion was contradicted by the evidence he now sought to have admitted from Mr Vette because Mr Vette had formed the (preliminary) view that Shiloh and Bear did not bite.

[29] That submission has in part been answered by my refusal to permit evidence from Mr Vette to be adduced in this appeal. But even if I had not come to that conclusion I would not have accepted Mr Kaye’s submission. There is nothing in paragraph [15] that suggests to me that Judge Johnson was referring to anything other than the physical description of the dogs to which he had just referred. In my view, although Judge Johnson referred in passing to Mr Goodall’s evidence, that reference forms part of the narrative, not his reasoning. I do not consider that Judge Johnson placed any weight on that evidence when considering the key issue of identification.

[30] Fourthly, Mr Kaye said that Judge Johnson was wrong to regard the inconsistency between Mrs Power’s admissions to the Dog Control Officer and the evidence given by her in the District Court as one of the threads of circumstantial evidence leading to his conclusion that Mrs Power’s dogs were responsible for the attack. I accept that if that was an accurate representation of what the learned District Court Judge had said, that point might have some force. However in my view that is not a fair reading of Judge Johnson’s words. It is quite clear that he is merely noting that he prefers the evidence of the Dog Control Officer (about what Mrs Power said to him) to Mrs Power’s revisionist account before him. He quite properly then has regard to her admission to the Officer about the loose floorboards on the cage and the blood on Shiloh’s mouth as adding to the critical mass of circumstantial evidence he is considering.

[31] The submission in relation to the last “thread”, namely the fact that two dogs of the same “description” were running together at the time of the attack, was

essentially a combination of those already addressed above and thus cannot be sustained for the reasons already given.

[32] In my view Judge Johnson’s analysis was impeccable. There is no basis upon which to conclude that he erred in any way. Mrs Power’s appeal against conviction must be dismissed accordingly.

Appeal against Sentence

[33] The appellant essentially submits that:

(a) In relation to the destruction order Judge Recordon failed properly to consider whether there were exceptional circumstances relating to the offence that meant that destruction was not warranted.

(b) In relation to the reparation and fines the total sentence imposed by the learned District Court Judge was manifestly excessive.

[34] Although Mr Kaye also submitted that the amount of reparation ordered was well beyond Mrs Power’s ability to pay, no evidence of her means was before me and it is not my understanding that she is legally aided. I therefore do not intend to deal with that matter further.

Discussion

Order for destruction

[35] Because Mrs Power was convicted of an offence under s 57(2) of the DCA , s 57(3) applies. That subsection provides:

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

[36] This subsection was the subject of analysis by Heath J in Halliday v New Plymouth District Council.[1] Noting that it focuses on exceptional circumstances relating to the “offence” rather than the “attack”, he said that it required a broad assessment of the likelihood that the dog would behave in a similar way in the future, based on unusual or unique circumstances arising out of the particular offence. He identified a non-exhaustive list number of factors that might be relevant

to that inquiry, including:

(a) the nature of the attack (including whether injury had resulted); (b) the history of the dog’s owner;

(c) whether the dog had behaved that way in the past;

(d) steps taken by the owner to prevent such an attack occurring; and

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

[37] Heath J’s approach was endorsed in Allen v Manukau City Council[2] by Allan J who observed that cases in which the Court declines to make a destruction order where there has been a conviction under s 57 will be relatively rare. Similarly Gendall J said in Milner v Hastings District Council:[3]

...there has to be special or substantially unusual circumstances existing before the Court can exercise the power not to justify destruction. That is what exceptional means. The standard is not necessarily one of reasonableness of steps taken by the owner to secure the dog because otherwise the word “exceptional” would not have been used by the Legislature.

[38] In ordering the destruction of Shiloh and Bear Judge Recordon referred to the

Halliday factors and determined that no exceptional circumstances exist in this case. I agree.

[39] More particularly, and in terms of the factors identified in Halliday I consider that:

(a) the nature of the attack was serious and injury resulted;

(b) Mrs Power has a poor history in terms of her ownership of animals.

There have been other incidents. As well, the evidence was that other animals in her care at the time of the instance attack were in need of care; and

(c) the disrepair of the cage in which Shiloh and Bear were housed was the cause of their escaping and therefore of the attack. Mrs Power therefore failed to take adequate or reasonable steps to prevent such an attack occurring.

[40] There were no exceptional circumstances and therefore no basis upon which the appeal against the destruction order could be allowed.

Reparation and fine: manifestly excessive?

[41] As I have said it is to the total amount, or combination, of the reparation and fine ordered that Mrs Power takes exception. However I am satisfied that her position has no merit, for the reasons that follow.

[42] Mr Kaye quite properly accepted that both the $2500 reparation ordered to be paid to Ms Leckner and the fine of $1000 could not be objected to either separately or together. It was the $32,000 “reparation” that was ordered to be paid to the Rodney District Council that tipped the balance and it was in that respect (he said) that the learned District Court Judge should have ordered a lesser amount to be paid in that regard.

[43] The reality is, however, that this figure merely represents the amount that is owed by Mrs Power to the Council; all Councils charge impounding fees, which include a daily sustenance charge. The Council is empowered to set such fees by

s 68 of the DCA and the Council must be entitled to recover those fees from

Mrs Power as a debt.

[44] In my view Mrs Power has a civil liability to pay that amount that is quite separate from any sentence of reparation. The fact that there is a civil debt owed by Mrs Power to the Council means that the prerequisites to the imposition of a sentence of reparation set out in s 32(1) of the Sentencing Act 2002 are not met; the existence of a debt owed to the Council cannot be said to constitute “loss or damage to property” that has been suffered by the Council.

[45] I note that s 32(3) of the Sentencing Act requires a Court considering making a reparation order to take account of any right available to the person suffering the loss or damage to bring proceedings in relation to that loss or damage. However in my view that subsection does not apply here because it is Ms Leckner who is the beneficiary of the reparation order but it is the Council that has the right to sue. To that extent I respectfully disagree with what was said by Frater J at [41] in the

(remarkably similar) case of Smith v Auckland City Council[4] that the debt owed to

the Council is a matter which the Court is bound to take into account on sentencing. I accept that different questions would arise if Mrs Power’s financial capacity were at issue, but it is not.

[46] Accordingly, I consider that Judge Recordon was wrong to order Mrs Power to pay “reparation” to the Council. The amount is owed but it cannot form part of the sentence at all. For that reason it should not have been taken into account when setting Mrs Power’s fine or when ordering her to pay reparation to Ms Leckner.[5] It follows that any appeal based on an alleged manifest excessiveness of the total sentence must fall away.

[47] Because I have formed the view that the debt owed to the Rodney City

Council is not a matter that can or should be dealt with by way of sentence, that

_{aspect of Mrs Power’s appeal against sentence must be allowed. That does not mean}

that Mrs Power is excused from paying the money she quite plainly owes to the Council, in full. But it may be that the Council will need separately to pursue Mrs Power for that debt if it experiences difficulties in recovering it.

Result

[48] In summary:

(a) Mrs Power’s appeal against conviction is dismissed.

(b) The order for the destruction of the dogs Shiloh and Bear is confirmed.

(c) Mrs Power’s appeal against sentence is allowed to the extent that the order made in relation to the payment of reparation to the Rodney District Council is quashed. The order relating to the payment of

_{reparation to Ms Leckner stands, as does the fine.}

Rebecca Ellis J

---

[1] _{HC New Plymouth CRI-2005-443-11 14 July 2005.}
[2] _{HC Auckland CRI-2009-404-330, 15 December 2009.}
[3] HC Napier AP5/04 1 April 2004; [2004] BCL 444.
[4] _{Smith v Auckland City Council HC Auckland CRI 2005-404-010, 20 July 2005.}

[5] Section 32(3) of the Sentencing Act requires a Court considering making a reparation order to take account of any right available to the person suffering the loss or damage to bring proceedings in relation to that loss or damage. In my view that subsection does not apply here because it is Ms Leckner who is the beneficiary of the reparation order but it is the Council that has the right to sue.