Logan v Whangarei District Council [2014] NZHC 424 (11 March 2014)

Last Updated: 20 March 2014

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2014-488-000001 [2014] NZHC 424

BETWEEN PAUL LOGAN Appellant

AND WHANGAREI DISTRICT COUNCIL Respondent

Hearing: 10 March 2014

Appearances: P Logan Appellant in person

R Harte for Respondent

Judgment: 11 March 2014

JUDGMENT OF ANDREWS J [Reasons for oral judgment of Andrews J]

This judgment is delivered by me on 11 March 2015 at 11:30am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitor:

Rob Harte Lawyer, Whangarei

LOGAN v WHANGAREI DISTRICT COUNCIL [2014] NZHC 424 [10 March 2014]

Introduction

[1] On 25 November 2013 the appellant pleaded guilty to two charges of being the owner of a dog that attacked a person, and one charge of being the owner of a dog that attacked a person and caused serious injury. On 24 January 2014, the appellant was sentenced by Judge G Davis in the District Court at Whangarei.¹ The appellant was sentenced to home detention for four months and ordered to pay reparation of $500 to the victim of the offending. The Judge also made an order for

the destruction of one of the dogs, “Misty”.

[2] The appellant has appealed against the order for the destruction of Misty. At the conclusion of the appeal hearing I advised the appellant that the appeal was dismissed. I now set out my reasons for that decision.

Background

[3] On 16 July 2013, Misty and another dog “Luna” were at the appellant’s property. The dogs were not restrained in any way, and the property was not completely fenced. At about 10.20 am the victim, a mental health worker, came to the property by arrangement to visit a tenant. The arrangement had been made some seven days earlier, in the appellant’s presence, and the victim had telephoned the appellant during the week about the visit.

[4] The victim entered the property. As she came up the driveway towards the house, Luna jumped up from the porch, ran towards and then past the victim, and attacked the victim from behind, knocking her to the ground. Misty joined the attack, and the victim described both dogs biting her at the same time, tugging and pulling at her with their teeth. The victim was subjected to a prolonged attack, and received severe injuries to her head, arms, legs, and back. Her injuries might have been even more severe, but the appellant placed himself on top of her, to protect her from the dogs. He was also bitten. The appellant’s actions stopped the attack

_{sufficiently, so that he and a neighbour could restrain both dogs.}

¹ Whangarei District Council v Logan District Court Whangarei CRI-2013-088-2659, 24 January

2014.

[5] When dog control officers arrived, the appellant handed Luna over, and authorised his immediate destruction. The appellant said that Misty had not bitten the victim.

District Court judgment

[6] The Judge considered that it was an aggravating factor of the offending that the appellant had known the victim would be visiting, and that the victim suffered serious injuries. The Judge was not prepared to draw any adverse inference from the appellant’s statement that Misty had not attacked the victim. He observed that in the mêlée, the appellant may simply not have seen Misty.

[7] The Judge considered that the appellant’s actions, which had brought the attack to an end and had put his own life in peril, were a significant mitigating factor.

[8] Pursuant to s 57(3) of the Dog Control Act 1996, the Judge was required to make an order for Misty’s destruction (as being a dog that had attacked a person) unless he was satisfied that the circumstances of the offence were exceptional, and that destruction was not warranted.

[9] In considering this issue the Judge recorded that he had heard nothing in the way of special circumstances that would mean that he ought not to order destruction. The Judge made an order for destruction but at the same time effectively stayed the order pending this appeal.

Relevant law

[10] Pursuant to s 250 of the Criminal Procedure Act 2011, an appeal against sentence must be allowed if the appellate Court is satisfied that:

(a) For any reason, there is an error in the sentence imposed upon conviction; and

(b) a different sentence should be imposed.

In any other case, the Court must dismiss the appeal.

[11] In Anand v Auckland Council, Katz J summarised the relevant case law under s 57(3), as follows:²

[12] It is now commonly accepted that the decision in [Halliday v New Plymouth District Council]³ is the leading authority on the interpretation of the destruction rest under s 57(3). That case clearly set out that there is a two stage test to determine that destruction should not be ordered:

(a) The appellant must establish that the circumstances of the offence were exceptional; and

(b) The appellant must establish that the circumstances do not warrant destruction of the dog.

[13] At [48] of Halliday, Heath J suggested a list of non-exhaustive factors that might be relevant to determining whether the circumstances are exceptional:

(a) The nature of the attack (including the fact that injury resulted); (b) The appellant’s history as an owner of the dog;

(c) Whether the dog had behaved in this way in the past;

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

and

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

[14] A further important principle from Halliday is that events which post-date the offence ought not to be taken into account in the first stage. That is because the circumstances of the offence cannot include any circumstance that has not yet occurred.

[15] ... Further, in Jorion v Kapiti Coast District Council, Dobson J

stated:

[the dog’s] apparently benign nature, her role as a family pet and confirmation of her friendly interaction with children cannot count for a lot. ... Nor is the absence of any history of attacks by the dog likely to constitute an exceptional circumstance. The Act does not contemplate dogs being given a second chance.

[12] I note that in Orr-Walker v Auckland Council, Heath J repeated and affirmed the approach he had taken in Halliday.⁴ In Allen v Manukau City Council, Allan J

² _{Anand v Auckland Council [2013] NZHC 445, [2013] NZAR 285 at [12]–[15].}

³ _{Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 14 July 2005.}

⁴ Orr-Walker v Auckland Council [2013] NZHC 784.

observed that the cases in which the Court declines to make a destruction order despite conviction under s 57 will be rare.⁵

[13] As noted above, if the first stage of the test is satisfied (that is, if it is established that there are exceptional circumstances), the Court must then go on to consider the second stage (whether destruction of the dog is warranted). Even if there are exceptional circumstances, if there is a chance that the dog may attack again, destruction will be warranted.

Appeal submissions

[14] As noted by the Judge in the District Court, no submissions were made in the District Court as to the circumstances of the offences being exceptional. In this Court, Mr Logan submitted that Misty had not in fact attacked the victim. He said that the victim had not said that she saw Misty attack her. He said that when he arrived on the scene (which he said as seconds after the attack began), he did not see Misty attacking the victim and he said that a neighbour, who had also arrived very quickly, had said that Misty was “in the background”.

[15] Mr Logan next noted that the victim had been to the property before, and had had no problem with Misty. He further said that the victim had walked into the driveway, then turned so as to approach the porch area (which is not the front door of the house). He said that if she had gone directly up the drive to the front door, the attack would never have happened.

[16] Mr Logan also presented a bundle of documents which included a letter dated

5 September 2013, headed “Application to have dog returned”. This makes comments about Misty’s participation in the attack, and steps Mr Logan has taken since the attack occurred.

[17] Finally, Mr Logan presented two photographs of the property. The first is taken from the street, and shows a wooden fence surrounding the property, but also

⁵ Allen v Manukau City Council HC Auckland CRI-2009-404-330, 15 December 2009.

shows that a portion of the fence is absent. The second photograph shows the area where the attack occurred.

[18] For the respondent, Mr Harte submitted that there was nothing exceptional about the present offences, other than the means used by the appellant to end the attack. He submitted that the circumstances were that the visit was arranged, the dog that initiated the attack (Luna) was uncontrolled, and unaccompanied, and had attacked the victim as she approached the house. Misty, also uncontrolled and unaccompanied, had then joined in the attack. Mr Harte submitted that it is not an exceptional circumstance that one dog was more aggressive in the attack than the other. Mr Harte further submitted that the appellant’s lack of control over the dogs was indicated by the fact that he could not exert control and stop the attack other than by placing his body over the victim’s body.

[19] As to the second stage of the inquiry, Mr Harte submitted that even if there were exceptional circumstances to the offences that would not lead to a conclusion that destruction should not be ordered. In particular, he submitted that the fact that the appellant had had to take extreme measures in order to exert control over the dogs indicated that he would not be able to exert control over the dog in the future.

Discussion

[20] As to the first stage of the inquiry, the difficulty with Mr Logan’s submissions is that he pleaded guilty to the offences, on the summary of facts that was presented in the District Court. I accept Mr Harte’s submission that there was nothing exceptional in the circumstances. Indeed, as he submitted, this was a most “unexceptional” event, in that the victim came to the house on an arranged visit, and was simply approaching the house when the attack occurred. There was no suggestion that the victim had provoked the attack, or indeed of any other matter that might be considered “exceptional”.

[21] In the circumstances, as the first stage of the inquiry had not been satisfied, the Judge could not go on to consider whether destruction was warranted. While Mr Harte acknowledged that the matters set out by the appellant in his letter to the Council were matters that could well be taken into account in considering whether

destruction should be warranted, the District Court Judge simply could not get to the stage of considering them.

[22] This Court is in the same position. The Judge was right to conclude that there were no exceptional circumstances, so there is no room for any inquiry as to whether destruction was warranted.

[23] In the circumstances, as the appellant was advised, the appeal cannot be allowed. The appeal is dismissed.

Andrews J