In the wake of the 2024 Court of Appeal decision in Telford, there has been uncertainty as to whether a destruction order for a dog can be made where a defendant has been granted a discharge without conviction.
That uncertainty has been resolved in the recent decision of the Court of Appeal in Xing v Auckland Council [linked here]. The decision confirms that when sentencing a defendant, a court does have the jurisdiction to make (i) a mandatory destruction order under s 57(3) of the the Dog Control Act if a conviction has been entered and (ii) a discretionary order for destruction under s 106(3)(c) of the Sentencing Act where a discharge without conviction has been granted.
Telford
The District Court granted Mr Telford a discharge without conviction but made an order for his dog’s destruction under s 57(3) of the Dog Control Act. On appeal, the High Court held that a conviction was a prerequisite to the making of such an order under s 57(3), and, as Mr Telford had been discharged without conviction, the District Court did not have jurisdiction to order destruction.
The High Court found that the absence of a conviction did not prevent a destruction order being made under s 106(3)(c) of the Sentencing Act – which provides that a court discharging an offender without conviction may make any order that the court is required to make on conviction.
On appeal to the Court of Appeal, the reference question was narrowly drafted to consider only whether “the conviction of a dog’s owner for an offence under s 57(2) of the Dog Control Act was a precondition for making an order for the destruction of the dog under s 57(3)?” The decision was silent on, and the Court of Appeal was not asked to confirm, whether a sentencing court still had the discretion to make a destruction order under s 106 of the Sentencing Act when a discharge without conviction was granted.
Xing v Auckland Council
Mr Xing pleaded guilty under s 57(2) of the Dog Control Act for owning a dog that attacked a person. The District Court discharged him without conviction but ordered the destruction of his dog under s106(3)(c) of the Sentencing Act. Mr Xing did not oppose the destruction order at the time, believing it was a condition for receiving the discharge.
Mr Xing appealed the destruction order to the High Court, arguing that the District Court lacked jurisdiction to impose such an order in reliance upon the Telford decision. The High Court agreed that, in the absence of a conviction, the District Court lacked jurisdiction to make an order for destruction under s 57(3) but confirmed that there was a discretionary jurisdiction to make the destruction order, under s 106(3)(c).
Mr Xing again appealed arguing that destruction orders did not fall within the scope of s 106(3)(c). The Court of Appeal (French P and Collins J) rejected this argument, holding that:
- The Court of Appeal’s reasoning in Telford was confined to s 57(3).
- A destruction order qualifies as a mandatory order “on conviction,” and thus falls within the scope of s 106(3)(c).
- Thus the Court has the discretion to make a destruction order under s 106(3)(c).
The Court emphasised that a sentencing court must first still assess whether the statutory exception (i.e., “exceptional circumstances”) applies. If it does, no destruction order can be made; if it does not, the court retains discretion under s 106(3)(c) to consider broader factors, including the dog’s history and post attack factors, as well as public safety.
This is an important clarification of the law as the Court of Appeal’s decision confirms that courts can grant discharges without conviction based on a defendant’s personal circumstances, while also having the ability to impose destruction orders which are primarily concerned with the risk to public safety.
