The applicant gave explanations in her evidence as to why she had lied about the event on 11 August 2018. I accept that she was very anxious about the prospect of losing Tank. However, she persisted in the lie and in an agreed plan of deception for a considerable period before it was exposed. This significantly damages the applicant's credibility. I do not accept her evidence where it conflicts with the findings I have made.
The Tribunal received reports from Ms Mary Johnson, Clinical Psychologist, dated 4 September 2018 and 11 October 2018. Ms Johnson also gave oral evidence.
Ms Johnson deposed in her report dated 4 September 2018 that she has been treating the applicant since late 2016. She confirmed that the applicant suffered from PTSD as a result of the serious domestic violence already mentioned. The applicant had progressed well in treatment and her level of psychological functioning improved markedly from the time that she became a dog owner. This was in accord with research suggesting that dog ownership can greatly assist PTSD sufferers. The applicant had been highly distressed by the removal of Tank from her care and her psychological state had relapsed such that she now again had a markedly impaired level of psychological functioning.
In her report dated 11 October 2018 Ms Johnson responded to a request to comment on the likely effect on the applicant of a prohibition order extending beyond three years. She stated that such an order would have a deleterious effect on the applicant's mental health. She would experience significant symptom exacerbation such that symptoms would become firmly entrenched and thus refractory to treatment. Therapeutic gains made to date would be lost. Ms Johnson confirmed that already the effect of separation from Tank had caused reactive depression of clinical significance. The applicant had experienced flashbacks and hyper-arousal. In evidence Ms Johnson stated that other supports could not completely replace the therapeutic benefits to the applicant of having Tank.
I accept this evidence and give these matters appropriate weight in my consideration of the matter.
Ms Johnson was also asked to comment on the applicant's insight into the matters concerning Tank and her motivation to manage Tank responsibly if allowed to do so in the future. This theme was also pursued in Ms Johnson's oral evidence. Ms Johnson deposed that a main focus of her therapy for the applicant was to discuss events causing stress in her life. Despite this, the applicant had never advised her of any problems concerning Tank until August 2018. When the issues were first raised in August 2018 the applicant was at a loss to understand that her dog was perceived as dangerous or a threat. Subsequently, she had been able to recognise "the validity and extent of fearful situations for the members of the local community when confronted by Tank". Ms Johnson indicated that the applicant was now committed to redress the situation and not allow it to occur again.
Ms Johnson stated that she discussed the dangerous dog order with the applicant in August and early September 2018. The applicant was confused as to what the order required. Ms Johnson went online with the applicant to research this. Ms Johnson indicated that in August 2018 the applicant was in a pre-contemplative state of change and did not see any problem with her own behaviour. The applicant had since moved to a stage where she became aware of the problem and was on the cusp of the action stage of change. This was illustrated by action to improve the fencing at her home and enquiries made with a potential trainer. Ms Johnson indicated that the applicant had got to this stage by developing a level of insight into the situation.
Ms Johnson noted that these proceedings before the Tribunal had had a huge impact on the applicant's motivation. She conceded that there was the possibility of relapse but overall expressed a positive view of the applicant's ability to be a more responsible dog owner in the future. This evidence was given in the context of a possible return of Tank to the applicant. More generally, Ms Johnson spoke of the benefits of therapy dogs to PTSD sufferers and indicated that dogs were the main therapeutic animal for that purpose.
The applicant also tendered a report from a dog behavioural training expert, Ms Amy Van Dyk. This concerned an assessment carried out on 29 August 2018. The assessment reflects the problems in Tank's behaviour during 2017 and 2018. Tank demonstrated in various ways that he had not been subject to proper training, management or discipline. He was very difficult to control, particularly when using his extreme strength when attempting to get away from the restraint of the handler. He was particularly difficult to control when he saw another dog.
Ms Van Dyk concluded:
[2]
He seems to act like he thinks his job is to protect his territory/space and acts like he thinks he's doing a good job. He is very strong and needs an owner who is capable of being very strict with him and put in a lot of extra training time. He has potential to be a good dog if given a job and shown strong leadership.
>
> I believe he has the potential to be a danger if not controlled and managed appropriately. He should not be given an opportunity to be off lead as his behaviour is to (sic) unpredictable at this point of time. He needs to be in a yard that is secure and would need to go through a lot of very strict training protocols along with strict management to be able to reach his potential. I would not trust his behaviour towards other dogs based on what I have seen in this circumstance. His behaviour towards people did not seem highly aggressive in this circumstance, although he did show protective behaviours towards people approaching his handler. I cannot comment on how I think he would interact in other situations or environments as I have not seen him in any other situation.
[3]
The applicant also tendered a report from Ms Michelle Turner, written after Tank had been in her foster care for a short period. Ms Turner found Tank to be a "fairly normal exuberant young dog full of energy" and commented that he was a pleasant dog to handle. She had not yet tried him with other dogs. She indicated that Tank would benefit from structured training.
[4]
This Tribunal has a discretion (as did the Council) as to whether a prohibition order should be made. I have commented upon the applicant's deplorable dog management record from mid-2017 to August 2018. Such record strongly favours the making of a prohibition order.
I must also consider the psychological evidence of Ms Johnson and the asserted benefit to the applicant if Tank was returned to her care. After careful consideration, my view is that the return of Tank to the care of the applicant would be most unwise and inappropriate. I accept that the applicant has developed a greater level of insight and currently exhibits motivation to exercise responsible dog management in the future. However, those changes are relatively recent and they have occurred in the context of the current proceedings and the applicant's desperate desire to have Tank returned. It remains to be seen whether such motivation will be sustained over the longer term and in different circumstances. Furthermore, motivation does not equate to the ability to effectively demonstrate responsible management. The applicant claims that she was motivated previously to prevent Tank escaping from the house but he repeatedly did so. Her good intentions were not matched by effective action. There is no reason to be confident that the applicant's decision-making will be any better in the future than it was previously. Nor has she yet demonstrated any improvement in her knowledge or skills as a dog owner. I have very limited confidence at the present time in the applicant's ability to effectively manage any dog.
It is my firm view that the applicant is presently not equipped to responsibly manage a dangerous dog or a large, boisterous dog who is difficult to control. Given the contents of Ms Van Dyk's report, the applicant does not have the experience, knowledge, ability or physical strength to effectively control and manage Tank. I do not consider that the applicant is able to offer the level of rigorous training and strict management that Tank clearly needs. He needs an experienced and skilled owner and would be best suited in a situation where he has an active job to undertake. I consider that any attempt to return Tank to the applicant's care would involve unacceptable risks to the safety of persons and animals, as well as a significant risk to Tank himself if a further incident was to occur. I consider that the return of Tank to the applicant would not meet the public objectives or purposes of the Act. This consideration must override the considerations arising from the evidence of Ms Johnson.[8]
The nature of the applicant's failings as demonstrated in this case require a prohibition order to ensure that Tank does not return to the applicant's care and that the applicant is prevented for a period of time from exposing the public to risk. Such an order is required to bring home to the applicant the seriousness of her failings and the absolute importance of the statutory objectives.
There is a further reason why a prohibition order is appropriate in this case. The proven conduct of the applicant and of Tank has resulted in considerable anguish to members of the public (and their pets) who have been affected. It is clear that Tank's presence in Dew Street was a significant cause for concern and even fear. The public need to be assured that such a situation will not be tolerated. They must be assured that effective action will be taken to protect persons and animals and to bring home to the applicant and other dog owners the importance of responsible dog management. Public confidence is maintained by ensuring that irresponsible dog management is met with a strong and meaningful sanction. The sanction is not in any sense imposed as a penalty or punishment but rather to achieve the public purposes of the Act.[9]
[5]
The Prohibition Order, served on the Applicant on 20 August 2018 prohibited the Applicant from acquiring or becoming responsible for the control of any dog prior to 20 August 2023. This was a period of 5 years.
The Applicant contended that such a prohibition period was 'manifestly excessive.' It was submitted that a period for five years is disproportionate to the facts of the matter at hand and out of line with other cases. The applicant pointed to the cases of Fisk v City of Tea Tree Gully[10] and Athanasopoulos v City of West Torrens[11] in this regard.
In Fisk the Court upheld a prohibition notice for a period of five years. I regard the facts as more serious than the present case. In Athanasopoulos the Court reduced a period of prohibition from 3 years to 18 months. There are similarities with the present case. Ms Athanasopoulos had a poor record as a dog owner and had not taken her obligations seriously. However, the Court found that she was eventually deeply regretful and appreciated the significance of her failure to meet her responsibilities. She suffered from a depressive condition and there was psychiatric evidence that she needed the support provided by her dog. Her dog Diesel had been found wandering at large on 12 occasions over a period of four years. He had twice attacked and killed a cat. In the present case, Tank attacked Mr Flick in July 2017 and escaped from the house on 8 occasions between October 2017 and August 2018. He had injured persons and attacked animals but not caused significant injury to the animals.
I am mindful of the evidence given in this case by Ms Johnson as to the deleterious effect of the separation from Tank on the applicant. I note Ms Johnson's view that a long period of prohibition (she was speaking of over three years) would have lasting deleterious effects. I have regard (cautiously) to the evidence that the applicant's insight has improved and so too her motivation. I must balance these matters against the reasons for imposing a prohibition order as set out above.
I have had the advantage of evidence (particularly from the applicant and Ms Johnson) that was not before the Council when the prohibition order was made. I consider that the preferable order on review is to reduce the period of prohibition to 18 months. This will give the applicant the option of obtaining another dog after that period has expired. If she chooses to do so, the intervening period will give her further opportunity to prepare herself for the responsibilities of dog ownership and to consider carefully her future choice of dog. This is important as the applicant is clearly not suited to the ownership of a dog that is very large, boisterous and difficult to control. Unless she chooses wisely the applicant might expose herself to the risk of a lengthy prohibition order in the future if a further incident was to occur.
[6]
I conclude that the correct and preferable decision on review is to confirm the order, but with a variation so that the period of prohibition is to 20 February 2020. All other aspects of the order will remain unchanged.
The prohibition order dated 26 September 2018 is varied to now provide that the applicant is prohibited from acquiring or becoming responsible for the control of any dog prior to 20 February 2020. In all other respects the prohibition order dated 26 September 2018 is affirmed.