An order was also made for the destruction of the dogs, a retriever/labrador named Bo and a grey German shepherd/Siberian husky named Koda.
Sebastian Marinkovich (right) and lawyer Tony Bamford in the Nelson District Court last year. Photo / Tracy Neal
In a decision released today, the High Court allowed Marinkovich’s appeal, meaning he has now been discharged without conviction and the destruction order has been set aside.
Justice Jonathan Eaton said the circumstances of the offence were “highly unusual” and significantly removed from the more commonplace case of one dog attacking a passerby, another dog or a cat in a suburban setting, or attacking stock.
He found the gravity of the offending to be lower than that found by the sentencing judge, which made the consequences “genuinely disproportionate”.
Beach attack
In the late afternoon of September 7, 2024, Marinkovich was walking the dogs off-lead on Kina Beach south of Motueka, which was a designated dog exercise area.
The dogs spotted a fur seal near the water. One ran off towards it and the other followed.
The attack, which lasted about 30 minutes, left punctures in the seal’s neck and head, DoC said in a summary of facts.
Police turned up after a member of the public called them. Marinkovich told them he noticed the dogs had spotted something near the water’s edge, which, at the time, he had not realised was a seal.
His lawyer, Tony Bamford, said Marinkovich did not realise what was happening until he got close.
“His affidavit refers to him panicking and not knowing what to do.
Marinkovich told police that what happened was “very uncharacteristic”, and he thought the most humane thing to do would be to “let the dogs continue so the animal’s suffering would be over sooner”.
The fur seal was injured when Sebastian Marinkovich was walking his two dogs on Kina Beach near Motueka. They spotted the seal and attacked it. The mauling went on for about 30 minutes before a member of the public called police. Photo / DoC
“By the time I got to the seal, it was pretty clear to me that the damage was done,” he said.
Justice Eaton found it difficult to understand why Marinkovich, being a responsible dog owner would not have intervened in the circumstances that confronted him.
Attending police officers placed the seal, presumed dead, on nearby rocks.
However, when a DoC officer arrived the next morning to collect it, it was unable to be found.
Marinkovich was sentenced last October on two DoC charges he admitted earlier.
The dogs, which had been surrendered to the Tasman District Council at the time, were then released back to the family pending the appeal outcome, with a set of conditions following behavioural assessment while impounded, the High Court heard during the appeal hearing.
Head injury affected judgment
Marinkovich claimed at sentencing to still be suffering the effects of head injuries sustained from an earlier car accident, and a horse riding accident.
The sentencing judge considered little weight could be placed on a submission this may have impacted his delayed response to the attack, thereby mitigating the seriousness of what occurred, because of the lack of supporting evidence.
The Crown lawyer acting for the respondent, Abigail Goodison, noted the absence of expert evidence at sentencing to support his submission, which had then emerged at the appeal stage.
Justice Eaton agreed that further affidavits filed by Marinkovich and his wife amounted to a “second bite of the cherry”, but they did provide additional information as to the level of familial support available to Marinkovich.
The sentencing judge accepted the potential consequence of Marinkovich suffering anxiety and distress was “very real but not life-threatening” in circumstances where he was well supported by family.
However, it was submitted on appeal, the pending destruction of the dogs and court process had placed considerable strain on the family, and the support had faded.
Did the seal live or die?
The appeal hearing considered how much weight should be placed on knowing if the seal had died, or whether it swam off and survived, but the appropriate forum for the threshold test was a disputed facts hearing, which did not happen, the High Court heard.
Goodison suggested it was irrelevant if the seal died or not, as reflected in the charge.
The sentencing judge acknowledged that the charge did not require conclusive proof the seal had died.
In assessing the gravity of the offending, Justice Eaton said the judge formed the view the seal “most likely died” but that was a flawed view, and at odds with the summary of facts which recorded the police had “presumed” it died, he said.
Family pets Bo and Koda have been removed from death row for mauling a seal, after a decision by the High Court to quash the owner’s convictions. Photo / DoC
He considered there were further factors not considered by the judge that were relevant to the gravity assessment, including neither dog had any history of acting aggressively towards animals or people, and had been assessed by appropriately qualified people as being “sweet” and “friendly”, albeit Koda could “learn better manners”.
“Further, it is accepted that the Marinkovich family are responsible dog owners with a fully enclosed backyard with a fence and no history of the dogs escaping,” Justice Eaton said.
Initial charge dropped; replaced with lesser charge
Marinkovich was initially charged with being the owner of a dog that attacked and caused the death of protected wildlife, but that was later withdrawn and the lesser charge filed.
Justice Eaton said that reflected an acknowledgement by the prosecution that the death of the seal could not be proven beyond a reasonable doubt.
Bamford said at the hearing that “without wanting to become a marine biologist on the fly”, seals were robust animals capable of surviving even shark attacks.
Justice Eaton concluded the prosecution could not exclude, as a reasonable possibility, that the seal had recovered and swum away.
“I consider that was the appropriate factual basis upon which to assess the gravity of the offending.
“Having said that, I agree with the judge that the attack must have been traumatic for the seal.”
Dogs in area where seals might appear
Justice Eaton also considered each dog was off leash as permitted and were in an area where it was “more likely than it was unusual” that a seal might appear.
He said that either Bo or Koda were likely surprised, and perhaps frightened. It was also unclear if both dogs were equally culpable for the attack.
Alongside his decision to quash the convictions, Justice Eaton ordered Marinkovich to make a $500 donation to an appropriate DoC fund in the Nelson region.
Marinkovich has been approached for comment through his lawyer. The Department of Conservation declined to comment.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.