By Anna Longdill
Appeal against dog destruction order made by consent when owner discharged without conviction – Dog Control Act 1986, s 57; Sentencing Act 2002, s 106 – mistaken understanding of legal position as to whether dog destruction order could be challenged – real risk of a miscarriage of justice
Xing v Auckland Council [2025] NZHC 1874 per Wilkinson-Smith J
Weiwei Xing and his wife own a tan and white male Shiba Inu dog named Bi Dong.
On 4 May 2024, Bi Dong escaped their property and went to a Remuera reserve. Whilst there, he had an altercation with another dog, Jack. Jack’s owner reached down to grab Jack by the collar and pull him away from Bi Dong. Bi Dong bit Jack’s owner on his right lower leg, causing a three-centimeter laceration and puncture wounds which bled heavily and required medical treatment. Bi Dong ran off.
After a complaint was made, Auckland Council’s animal management arrived at Xing’s house to seize and impound Bi Dong. Xing did not co-operate and refused access to his property, meaning that animal management had to enlist help from the police. By the time police arrived, Bi Dong was not able to be located. He was subsequently located and impounded.
Auckland Council charged Xing with owning a dog that attacked a person, contrary to s 57(2) of the Dog Control Act 1996. On 1 May 2025, Xing, represented by the duty lawyer, entered a guilty plea to this charge and was discharged without conviction pursuant to s 106 of the Sentencing Act 2002. Judge Davenport KC ordered Xing to pay $60 reparation to the victim and $2,000 to the Auckland Council and ordered the destruction of Bi Dong.
The order for destruction of Bi Dong was made by consent. At the hearing, the judge asked Xing about Bi Dong’s current whereabouts and about whether he was opposed to the destruction order. Xing stated he hadn’t seen Bi Dong since the day of the attack and was not opposed to the destruction order.
Xing appealed against the dog destruction order. He relied on Court of Appeal authority confirming that a conviction is a precondition of any destruction order made under s 57(3) of the Dog Control Act.
Section 57(3) provides that the court must make an order for destruction unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.
Auckland Council argued that the judge didn’t purport to make an order under s 57(3) of the Dog Control Act, and that she had jurisdiction to make the destruction order after granting a discharge without conviction under s 106(3)(c) of the Sentencing Act 2002. Section 106(3)(c) provides that a court discharging an offender may “make any order that the court is required to make on conviction”.
Xing’s lawyer argued that he was not aware that he could challenge the making of a destruction order and that he had assumed that his agreement to the destruction order was required in order for him to obtain a discharge without conviction.
Because of that mistaken understanding, the issue of whether or not a destruction order should be made was not argued and the District Court judge’s attention was not drawn to the need to consider whether exceptional circumstances existed. An order for destruction is not mandatory if there are exceptional circumstances and in such a case there is no jurisdiction to make the order under s 106(3)(c).
Applicable principles: Dog Control Act 1996, s 57; Sentencing Act 2002, s 106 – Principles in Sungsuwan v R relating to counsel error broadly applicable to appeal against sentence – Is there a real risk that a miscarriage of justice has arisen? (Yes, because of a mistaken understanding by Xing of the legal position meaning that the issue of whether or not a destruction order should be made was not argued and the judge did not consider the jurisdictional issues) – Disposition of appeal? (As the consequences of a destruction order are final, the appeal just be allowed and the matter remitted to the District Court for reconsideration of the dog destruction order on the basis that Xing’s lack of opposition was based on an incorrect understanding of his legal position).
Held: The appeal is allowed. The order for destruction of Bi Dong is quashed. The matter is remitted to the District Court for reconsideration of whether an order for destruction of the dog should be made pursuant to s 106(3)(c) Sentencing Act 2002.
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