Slater v Police [2015] NZHC 707 (15 April 2015)

Last Updated: 20 July 2015

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000088 [2015] NZHC 707

BETWEEN	MELISSA LEIGH SLATER Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	24 March 2015
Appearances:	B Meyer for the Appellant A Pollett for the Respondent
Judgment:	15 April 2015

_{JUDGMENT OF ELLIS J}

This judgment was delivered by me on 15 April 2015 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Counsel/Solicitors:

B Meyer, Barrister, Auckland

A Pollett, Crown Solicitor, Tauranga

SLATER v NEW ZEALAND POLICE [2015] NZHC 707 [15 April 2015]

[1] Three dogs that were in the care of the appellant, Melissa Slater, attacked a Postie while she was delivering mail in Edgecumbe. The dog that took the lead in the attack (a 3 year old Kelpie/Thai Ridgeback named Ice) was destroyed shortly afterwards.

[2] Subsequently, Ms Slater pleaded guilty to one charge under s 58 and two charges under s 57A of the Dog Control Act 1996 (the Act). She sought to be discharged without conviction but that was declined by Judge Ingram, who ordered that she pay $1,000 emotional harm reparation and complete 60 hours community work (concurrently) on each charge. The learned District Court Judge also ordered the destruction of the two surviving dogs (an 11 year old Kelpie named Mika and

Echo, a 4 year old Kelpie).¹

[3] Ms Slater now appeals the dog destruction orders.

Facts

[4] Ms Slater is 23 years old. On 20 June 2014 she had three dogs in her yard. One (Ice) belonged to her and the others belonged to extended family members. The yard was normally secured but on the morning in question the gate had accidentally been left open.

[5] At about 11am, the victim, a 59 year old New Zealand Post employee, was walking past Ms Slater’s property. The dogs came out from the yard and attacked her. Ice bit her leg and she fell to the ground. Whilst on the ground, she was surrounded by the dogs. In her victim impact statement she says she was then bitten by Ice and another dog simultaneously. When she screamed, a number of persons nearby came to help her.

[6] The victim was taken to hospital. She spent four hours in the emergency ward, receiving care for numerous bite wounds and an abrasion to the right side of her forehead. In the next two weeks she suffered from pain and there was infection

_{in one of the wounds. There is a graphic victim impact statement and photographs}

¹ Police v Slater DC Whakatane CRI-2014-087-1197, 5 November 2014.

on the Court file. The attack has, understandably, had traumatising effects that are likely to be long-lasting.

[7] The Dog Control staff who arrived at the scene soon after the attack obtained written authority from Ms Slater for the destruction of Ice, who had never been registered. As I have said, Ice is accepted to have been the instigator, and main perpetrator, of the attack.

[8] Mika and Echo are, and have always been, registered. Their owners are dog breeders and members of the Kennel Club.² Mika was pregnant at the time of the attack and has subsequently given birth. The dogs are of not inconsequential financial value to their owners for breeding purposes.

[9] Ms Slater initially faced three charges of being the owner of a dog that attacked and caused serious injury to a person under s 58 of the Act. As will be discussed later below, destruction of the dogs concerned is the default position under that section. She pleaded guilty in relation to the charge concerning Ice (who had already been destroyed) but not guilty to charges under s 58 relating to Mika and Echo. But when the two charges in respect of those dogs were later reduced to charges of “rushing” under s 57A, Ms Slater entered guilty pleas.

[10] Ms Slater also made efforts to apologise to the victim by way of a restorative justice meeting, but this was declined.

District Court decision

[11] Ms Slater came up for sentence on 5 November 2014. I necessarily concern myself here only with that part of the sentence relating to the destruction orders. The relevant part of the Judge’s notes records:

[13] Turning to the question of order for destruction of the dogs. Clearly these dogs were acting in a pack on the day. They had not previously been registered as dangerous dogs but I am completely satisfied that they had a pack mentality involved in an attack on a human being. Despite their value and the extent to which

2. It is not, however, disputed that Ms Slater was the “owner” in terms of the relevant provisions of the Act at the time of the attack.

they are regarded as effectively family members by their owners, I am nevertheless satisfied that it is an appropriate case for an order for destruction and there will be an order for destruction for both dogs.

Grounds of appeal

[12] Ms Slater appeals this aspect of the sentence on the grounds that:

(a) the sentencing Judge failed to take into account and/or give appropriate weight to the actions of the individual dogs when determining if destruction orders were appropriate; and

(b) the sentencing Judge failed to give appropriate weight to previous

“good character” of the dogs and/or the owners of the dogs.

[13] It is also relevant to note that Ms Slater disputes (and did not accept before the sentencing Judge) the statement by the victim that she was bitten in two different places at the same time, and therefore by two different dogs (one of whom must have been Mika or Echo). She says that this was not in the agreed summary of facts (on the basis of which she pleaded guilty).

Approach to appeal

[14] It was agreed that a sentence imposed under s 57A(2) involves the exercise of a discretion and therefore the appellant must show that the sentencing Judge made an error of law; took into account irrelevant considerations or ignored relevant considerations, or that the decision was plainly wrong.³

Relevant law

[15] For present purposes the central statutory provisions are ss 57, 57A and 58 of the Act. They respectively and relevantly provide:

57 Dogs attacking persons or animals

(1) A person may, for the purpose of stopping an attack, seize or destroy a dog if -

³ Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

(a) the person is attacked by the dog; or

(b) the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.

(2) The owner of a dog that makes an attack described in subsection (1)

commits an offence and is liable on ... conviction to a fine not exceeding

$3,000 in addition to any liability that he or she may incur for any damage caused by the attack.

(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 the 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.

...

57A Dogs rushing at persons, animals, or vehicles

(1) This section applies to a dog in a public place that -

(a) rushes at, or startles, any person or animal in a manner that causes -

(i) any person to be killed, injured, or endangered; or

(ii) any property to be damaged or endangered; or

(b) rushes at any vehicle in a manner that causes, or is likely to cause, an accident.

(2) If this section applies,—

(a) the owner of the dog commits an offence and is liable on ... conviction to a fine not exceeding $3,000 in addition to any liability that he or she may incur for any damage caused by the dog; and

(b) the court may make an order for the destruction of the dog.

...

58 Dogs causing serious injury

The owner of any dog that attacks any person or any protected wildlife and causes -

(a) Serious injury to any person; or

(b) The death of any protected wildlife; or

(c) Such injury to any protected wildlife that it becomes necessary to destroy the animal to terminate its suffering, -

commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years or a fine not exceeding $20,000, or both, and the Court

shall, on convicting the owner, make an order for the destruction of the dog unless satisfied that the circumstances of the attack were exceptional and do not justify destruction.

[16] The differences (and relationship) between these three provisions was analysed by Heath J in Halliday v New Plymouth District Council.⁴ There are also older decisions of this Court that address the difference between “attacking” and “rushing”.⁵

[17] I do not propose to refer in any detail to those cases here. In my view the signal points to note are that:

(a) of the three offences contained in ss 57, 57A and 58 of the Act, the least serious is the s 57A “rushing” or “startling” offence;

(b) the words “rushing” or “startling” do not connote physical contact between the dog and the victim. Rather, the relevant harm is more indirect; it is the result of what the surprise or fear caused by the act of rushing causes the victim to do. Such consequences will not necessarily be predictable and there is no necessary relationship between the facts and circumstances of the rushing or startling and the seriousness of those consequences;

(c) unlike ss 57 and 58, s 57A confers a broad discretion on the District

Court as to whether or not to make a destruction order;

(d) factors relevant to the exercise of that discretion are not limited to consideration of the “circumstances of the offence” (see s 57) or the “circumstances of the attack” (see s 58) and there is no exceptionality threshold.

[18] In my view, the matters that can legitimately be considered when exercising the discretion under s 57A include:

⁴ _{Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 14 July 2005.}

⁵ See for example Walker v Police HC Christchurch AP25/90 5 February 1990.

(a) the quality and severity of the “offending” – by which is meant the

circumstances and factual detail of the “rushing” or “startling”; and/or

(b) the nature and severity of the consequences (which in many “rushing”

cases may well be a matter of happenstance); and/or

(c) an assessment of the ongoing dangerousness of the dog concerned and any available measures that exist to ensure that similar “offending” does not occur in future.

[19] It seems to me that it is the last of these three considerations which is likely to be particularly important.

Alternative resolution?

[20] At the conclusion of the hearing of Ms Slater’s appeal I asked counsel whether it might be possible to resolve the matter in some other way. In particular, my attention had been drawn to the powers conferred on territorial authorities by the Act in relation to “dangerous” dogs. In particular, s 31 requires a territorial authority to classify a dog as dangerous in certain specified circumstances, including if:

...

(b) the territorial authority has, on the basis of sworn evidence attesting to aggressive behaviour by the dog on 1 or more occasions, reasonable grounds to believe that the dog constitutes a threat to the safety of any person, stock, poultry, domestic animal, or protected wildlife; ...

[21] And s 32 of the Act provides that -

(1) Where a dog is classified as a dangerous dog, the owner of that dog - (a) Shall ensure that, from a date not later than one month after

the receipt of notice of classification under section 31(2) or section

31(5) of this Act, the dog is kept within a securely fenced portion of

the owner’s property which it is not necessary to enter to obtain

access to at least one door of any dwelling on the property; and

(b) Shall not allow the dog to be at large or in any public place or in any private way other than when confined completely within a vehicle or cage, without being muzzled in such a manner as to

prevent the dog from biting but allow it to breathe and drink without obstruction; and

(c) must produce to the territorial authority, within 1 month after the receipt of notice of classification, a certificate issued by a veterinarian and certifying—

(i) that the dog is or has been neutered; ...

...

(e) must, in respect of every registration year commencing after the date of receipt of the notice of classification, be liable for dog control fees for that dog at 150% of the level that would apply if the dog were not classified as a dangerous dog; and

(f) must not, without the written consent of the territorial authority in whose district the dog is to be kept, dispose of the dog to any other person.

[22] I invited Ms Pollett and Mr Meyer to inquire of their respective clients whether an application of those provisions to Mika and Echo might satisfy any ongoing safety concerns, particularly in light of the fact that the dogs do not reside with Ms Slater but rather with their owners who (as I have said) are dog breeders and Kennel Club members.

[23] But by memorandum dated 26 March 2015, Mr Meyer advised the Court that because Mika and Echo were valuable breeding dogs, their owners did not wish to have them de-sexed. As s 32 makes clear, de-sexing is a mandatory requirement in relation to dogs that are designated “dangerous” under the Act. I must therefore turn to consider the merits of the appeal.

Discussion

[24] In the present case, it seems to me that the critical (and possibly only) factor that led Judge Ingram to make the destruction order was that the three dogs were acting in a pack when they were involved in the attack on the victim. I accept that that was a finding that was open to him on the basis of the statement of facts and that it was relevant to the exercise of his discretion.

[25] But I consider that the following, countervailing, matters were also relevant:

(a) it seems to be undisputed that the leader of the “pack” was Ice. The statement of facts makes it quite clear that it was Ice who rushed first and Ice who knocked the victim down and bit her leg;

(b) there must be some question as to whether the rushing/attack would have occurred at all if Ice had not been not present;

(c) while not for one minute doubting or playing down the seriousness of harm to the victim, or the terror that must have been occasioned by the presence of the three dogs, it is not clear what physical harm directly resulted specifically from Mika’s and Echo’s involvement;

(d) more particularly, it seems to me that the specific allegation of biting by one or other of them cannot be taken into account because:

(i) if there was biting, the appropriate charge would have been one of attacking, not rushing; and

(ii) the fact of a second dog biting the victim was not accepted by Ms Slater, and was not the subject of an indication under s 84 of the Sentencing Act by the Judge;⁶

(e) the attack (for want of a better global description) was clearly territorial as it occurred directly outside the gate to Ms Slater’s property. This can be compared, for example, to an unprovoked rushing of, or attack on, a jogger or cyclist in a public park;⁷

(f) the attack only occurred at all because the gate had been left open by

_{Ms Slater (I accept that the dogs may well have rushed at the victim}

⁶ Mr Meyer referred me to the submissions made by Ms Slater’s counsel at the sentencing hearing, which made it clear what facts were accepted by her. Although the learned District Court Judge notes the allegation that the victim was bitten by a second dog, it is not apparent to me from his sentencing notes that that had any bearing on his decision to make a destruction order.

⁷ I am not for one minute suggesting that the victim in any way provoked the dogs here, but there seems to me to be a strong element of the dogs protecting what they would, no doubt, have perceived as their territory.

even if the gate was shut. But in those circumstances it is most unlikely that any physical harm would have occurred);

(g) Ms Slater is not the registered owner and does not normally have custody or care of the two dogs so the likelihood of a further such incident involving the two dogs seems relatively small;

(h) the dogs were registered and the registered owners are members of the

Kennel Club;

(i) there have been no previous incidents of concern involving the dogs. [26] Finally, it also seems to me to be relevant that it was, and would appear still

to be, possible to designate the dogs as either “menacing” or “dangerous” in terms of the Act, if the relevant statutory thresholds are considered to be met.⁸ Indeed, if those thresholds are not met it is difficult to see why destruction would be warranted. If there are other avenues available that would adequately protect the safety of the public in the circumstances of the particular case (as there appear to be here) then it is difficult to justify a destruction order.

[27] The matters to which I have referred to in [25] and [26] above do not appear to have been taken into account by the learned District Court Judge. At least some of them can fairly be said to fall within the stipulated grounds of appeal. So by a narrow margin, I consider that, collectively, they warrant allowing the appeal.

[28] Whether or not the measures to which I have referred at [26] are ultimately pursued in the present case is a matter which must be left in the hands of the relevant

_{territorial authority.}

8. Whether or not a designation as “menacing” requires the relevant dog to be de-sexed depends on the policy of the territorial authority concerned.

[29] The appeal is allowed and the orders that the dogs Echo and Mika be

_{destroyed are quashed accordingly.}

Rebecca Ellis J