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Dog’s death sentence upheld

31 Mar 2023

| Author: Andrea Hilton

Marsh Maihi Taikato pleaded guilty to a charge under s 57 of the Dog Control Act 1996 and appealed his sentence – that his dog, Bugaboo, be destroyed and he pay a total of $1,157 to the victim. His appeal was dismissed.

Bugaboo attacked a woman who was invited by text to pick up a bicycle from a property occupied by Taikato’s former wife, Lynette, at around 1am. The victim went to the back of the property, as instructed, and heard a dog in the house. A door opened, the dog – a staffordshire bull terrier – came out and sniffed, licked and growled at her. The woman yelled and turned to run. Without warning, Bugaboo bit her foot and ankle area. She needed hospital treatment, including surgery, for her injuries. Bugaboo was taken inside but he came out later and tried to attack again.

Lynette Taikato, Bugaboo’s previous owner, had been disqualified from ownership because of her inability to control the dog. Marsh Taikato was not present at the time of the attack.

Marsh Taikato submitted that:

  • The court had no jurisdiction over him due to the Declaration of Independence Act 1835;
  • The warrant to seize Bugaboo was invalid; and
  • Bugaboo should not be destroyed because a human disrespected him.

An appeal against a dog destruction order is a general appeal so the court was entitled to consider the facts. It found no error in sentencing. Under s 250(2) of the Criminal Procedure Act 2011, there is a two-step test: whether there has been an error in the sentencing and whether a different sentence should be imposed.

There was no error, and the reparation was appropriate, the court found. It was in accordance with the object of the Act: to encourage owners to take responsibility for their dogs and to reduce the risk of attacks.

Unless there are exceptional circumstances, under s 57(3) of the Dog Control Act 1996 destruction is mandatory. Applying the two-step approach to determine exceptional circumstances by first identifying the circumstances and then determining whether the circumstances were exceptional, the court decided there were no exceptional circumstances here.

It also decided there was a high risk that Bugaboo would attack again because he could not be controlled. The validity of the warrant was irrelevant to the appeal. The submission that the court had no jurisdiction was untenable.

Applicable principles – destruction of dog mandatory – exceptional circumstances, two steps, are circumstances exceptional, do they justify the preservation of the dog – circumstances to be immediate-dogs must be controlled-sentencing error alone will not save an appeal- two-step test, court must be satisfied error exists and that another sentence should be imposed-evidence required before judgment will be repealed-appeal must be decided on material submissions and evidence -right against unreasonable search and seizure not material to appeal-courts of New Zealand have jurisdiction over residents and citizens.

20230317-Taikato v Tauranga District Council [2022] NZHC 3004

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