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High Court of New Zealand Decisions |
Last Updated: 7 June 2023
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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA
ROHE
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CRI 2023-488-000001
[2023] NZHC 641 |
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BETWEEN
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TRACI HETHERINGTON
Appellant
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AND
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FAR NORTH DISTRICT COUNCIL
Respondent
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Hearing:
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27 March 2023 (via VMR)
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Appearances:
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No appearance by or on behalf of the Appellant C Ditchfield for the
Respondent
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Judgment:
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28 March 2023
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JUDGMENT OF TAHANA J
(Appeal against conviction and sentence)
This judgment was delivered by me on 28 March 2023 at 11.00am
..............................
Registrar/Deputy Registrar
Solicitors/Counsel: C Ditchfield (FNDC) Copy to:
The Appellant
HETHERINGTON v FAR NORTH DISTRICT COUNCIL (Appeal against conviction and sentence) [2023] NZHC 641 [28 March 2023]
Introduction
[1] The appellant, Traci Hetherington, appeals the order for destruction of her dog “Louie.” Ms Hetherington was found guilty of two charges under s 57(2) of the Dog Control Act 1996 (the Act), of owning a dog that attacked a person.1
[2] Ms Hetherington appeals the decision of Judge KB de Ridder on 19 December 20222 and reasons decision dated 23 December 20223 in the District Court at Kaikohe. Ms Hetherington’s second charge relates to her second dog, “Precious”, which she does not appeal.
[3] At sentencing Ms Hetherington was ordered to pay a fine of $300 for each charge; ordered to pay court costs of $130; $1,200 for outstanding pound fees; and emotional harm reparation of $500. The Court also ordered the destruction of Louie and Precious.
[4] Section 57(3) provides that if the Court is satisfied that the dog has committed an attack of a person such as described in s 57(1) and the dog has not been destroyed, the Court must make an order for the destruction of the dog unless it is satisfied the circumstances of the offence were exceptional and do not warrant destruction of the dog. Ms Hetherington says Judge de Ridder erred by:
(a) finding that Louie attacked Ms Robinson; and
(b) in the alternative, not finding that there were exceptional circumstances to warrant not destroying Louie.
The offending
[5] I adopt Judge de Ridder’s summary of the circumstances of the attack:4
2 Sentencing Decision, above n 1.
3 Reasons Decision, above 1.
4 Reasons Decision, above 1.
[2] Ms Robinson was carrying out some painting work on a property on 3 May 2022. There are two houses on the property which are separated by a substantial fence. She was working at the front house on the property.
[3] When she was finished she went to her car, put her painting gear in the boot, and then walked around to get into the driver’s seat. At that point she heard Ms Hetherington walking over, and Ms Hetherington asked Ms Robinson how the painting was going. Ms Robinson walked from the driver’s side of the car round to the passenger side so that she could talk with Ms Hetherington, who again asked Ms Robinson how the painting was going. At that point Ms Robinson noticed two dogs running from behind Ms Hetherington. When the dogs got to about a metre from Ms Robinson they started growling and snarling at her. The smaller dog then lunged at her causing Ms Robinson to lift up her left arm to stop the dog from getting her face. The dog latched onto her left arm clenching it with its teeth causing Ms Robinson pain. Ms Robinson decided she would try and get on the bonnet of the car to get away from the dogs and then climb onto the roof of the car. She put her right hand onto the bonnet to climb up, and as she did so the larger dog lunged at her and took hold of her right hand causing her to put her right hand up to defend her face. At this point the smaller dog was still latched onto her left arm. At that stage Ms Robinson was by the passenger side door and Ms Hetherington was at the corner of the car by the boot. She heard Ms Hetherington shout at a man who was at Ms Hetherington’s address: “Why didn’t you shut the fucking gate?” The man replied saying: “I thought you had.” At this point Ms Hetherington was just telling the dogs to stop. She did not try and remove the dogs from Ms Robinson.
[4] Ms Robinson then dragged herself over to the fence separating the property from the State Highway with the dogs still latched onto her arm. She threw herself over the fence which caused the dogs to unlatch. She looked through the fence and could see the dogs still there. She looked at her arm to see what her injuries were like and when she looked back up the dogs were gone. She thinks she then blacked out but remembers Ms Hetherington coming over with a towel to put around her arm.
District Court decision
[6] Ms Robinson’s evidence was that she had been attacked by both dogs. Ms Hetherington disputed this and claimed that only Precious attacked Ms Robinson. Ms Hetherington said she had successfully restrained Louie and prevented him from attacking Ms Hetherington. Mr Saffill-Croft, who was visiting Ms Hetherington on the day in question, also gave evidence that he did not see Louie attack Ms Robinson.
[7] The Judge preferred Ms Robinson’s evidence and considered her version of the events was consistent with the injuries she suffered from the attack. Further, Judge de Ridder accepted the attack would have happened very quickly and Ms Hetherington and Mr Saffill-Croft may simply not have seen Louie attacking Ms Robinson.
[8] Judge de Ridder did not consider there was anything remarkable about the dogs escaping through a gate such that destruction of the dogs would not be warranted under s 57(3) of the Act.
Approach on appeal
[9] The Criminal Procedure Act 2011 provides a right of appeal against conviction.5 The appellate court must allow an appeal against a judge-alone trial if the Court is satisfied that:6
(a) the Judge erred in the assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b) a miscarriage of justice has occurred for any reason.
[10] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:7
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[11] The Court of Appeal in Auckland Council v Hill in granting leave confirmed that an order for dog destruction is an appeal against sentence.8
[12] The Criminal Procedure Act provides a right of appeal against sentence. Section 244 provides in part:
5 Criminal Appeals Act, s 229(1).
6 Section 232(2)(b) and (c).
7 Section 232(4).
8 Auckland Council v Hill [2019] NZCA 296.
(1) A person convicted of an offence may appeal under this subpart to the first appeal court against the sentence imposed for that offence, unless the sentence is one fixed by law.
[13] The appellate court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. I must be satisfied that the error was “manifestly excessive.”9 Given the all- or-nothing nature of the destruction order — which is not to punish Ms Hetherington or the dog,10 but to protect public safety11 — ‘manifest excess’ only will be established where the risk of future attack is “remote” or “immaterial”: “the circumstances of the attack were exceptional and a repeat of those circumstances is most unlikely”; making the dogs’ destruction not justified in the interests of public safety.12 In any other case, the appellate court must dismiss the appeal.13
Relevant Law
[14] Section 57 of the Act provides:
57 Dogs attacking persons or animals
(a) the person is attacked by the dog; or
...
$3,000 in addition to any liability that he or she may incur for any damage caused by the attack.
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
10 Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603 at [66] and [73].
11 At [65].
12 At [6], [65] and [75].
13 Section 250.
[15] Section 57(3) requires the Court to consider whether the circumstances of the offence were exceptional, and do not warrant destruction of the dog.
Conviction Appeal
[16] The appellant is, in essence, asking this Court to assess the evidence and to decide whether the evidence of Ms Robinson or the evidence of Ms Hetherington and Mr Saffill-Croft should be preferred.
[17] The trial Judge’s assessment of the evidence should be given reasonable weight. My own view is that the Judge made no errors in assessing the evidence and therefore the conviction should stand. My reasons follow.
[18] Ms Robinson sustained injuries to her left arm and her right hand. The exhibits include photographs of those injuries. This is consistent with Ms Robinson’s account that one dog latched on to her left arm and the other dog then latched on to her right hand. Mr Robinson then says she had to jump over the fence to force the dogs to release their grip.
[19] The Judge accepted that the attack occurred over a very short period. For Ms Hetherington’s evidence to be correct, Precious would have had have attacked Ms Robinson’s left arm, released the left arm and then moved to her right hand. This seems unlikely in such a short space of time. The injuries to the left arm appear from the photos to be serious and involve a number of open wounds. Ms Robinson’s recollection was that Precious would not release her left arm and when she tried to get on the bonnet of the car, Louie attacked her right hand. The photos are consistent with Ms Robinson’s account.
[20] It is more plausible, given that the injuries occurred on both the left arm and right hand that both dogs were involved in the attack. That is Ms Robinson’s recollection. The Judge was satisfied that Ms Robinson’s evidence was reliable. The Judge considered that given how fast the attack occurred, Ms Hetherington and Mr Saffill-Croft may not have seen Louie bite Ms Robinson.
[21] Ms Robinson has no reason to lie about her recollections about both dogs attacking her. Ms Hetherington is understandably upset at the prospect of Louie’s destruction. She wrote a letter to the trial Judge indicating that Louie is her “special boy” and is like her “child.” I accept the Judge’s assessment that Ms Robinson’s evidence is reliable and should be accepted.
[22] The trial judge is in a better position to determine the reliability of Ms Robinson’s evidence than the appeal court. I do not consider that there are any inconsistencies in the evidence or errors to indicate that the Judge’s assessment should be rejected.
[23] I am not satisfied that the Judge erred. I accept that Louie did attack Ms Robinson.
Sentence Appeal
[24] The Court of Appeal in Auckland Council v Hill sets out the two-step approach when applying s 57(3):14
[5] The first step in applying s 57(3) is to identify the relevant circumstances of the offence. What happened? This inquiry should focus on the immediate circumstances of the attack itself. 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 – also are not circumstances of the offence. The phrases “circumstances of the offence” and “circumstances of the attack” are equivalent in this context.
[6] The second step is for the court to ask whether the circumstances of the offence were exceptional and do not 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 is on whether those circumstances were sufficiently exceptional that that risk is remote, and does not justify destruction of the dog in the interests of public safety.
[25] It clear from the above that it is the circumstances of the attack that are relevant and not circumstances prior to, or after, the attack.
14 At [5] and [6].
[26] In Luani v Auckland Council,15 a dog ran out of a property when the gate was opened by an adult with a psychiatric condition that meant they lacked the capacity and ability to ensure the dog did not escape. The Court did not consider these were exceptional circumstances to justify not destroying the dog. As the Court of Appeal has noted, a one-off lapse by a responsible owner to control their dog is not exceptional.16
[27] In this case, the attack occurred when the dogs ran over to Ms Robinson and they started growling and then Precious attacked her left arm. Ms Robinson says she went to put her right hand on the bonnet and then Louie attacked her right hand. This is consistent with the photographs of her injuries.
[28] While Ms Hetherington gave evidence that Ms Robinson kicked out when approached by Precious, Ms Robinson denied this and said she “would never kick an animal.” The Judge was satisfied that he could rely on Ms Robinson’ evidence that she was attacked by both dogs. It is appropriate that I defer to the trial Judge’s assessment of the reliability of Ms Robinson which supports her not kicking out when the dogs approached.
[29] The fact that Ms Hetherington told Mr Saffill-Croft to close the gate does not indicate an exceptional circumstance.
[30] I do not therefore consider there were any exceptional circumstances of the attack that warrant not destroying Louie.
[31] I understand Ms Hetherington is upset but the Court must (under s 57(3) of the Act) order destruction of the dog unless there are exceptional circumstances. There are none in this case.
Result
15 Luani v Auckland Council [2022] NZHC 2940.
16 Auckland Council v Hill, above n 10, at [78].
[33] The order for the destruction of Louie made by Judge de Ridder is upheld and confirmed, and I accordingly make an order pursuant to s 57(3) of the Act directing that Louie be destroyed.
Tahana J
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