Carr v Police
[2018] NZHC 2443
•18 September 2018
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2018-441-21 [2018] NZHC 2443
BETWEEN DENNIS PAUL CARR
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 11 September 2018 Appearances:
W R Hawkins for Appellant
C R Stuart for RespondentJudgment:
18 September 2018
JUDGMENT OF GRICE J
(Appeal against sentence – imposition of a protection order)
[1] Mr Carr was sentenced on one charge of assault with intent to injure his wife, Mrs Carr, on 16 May 2018 in the Hastings District Court.1 He was sentenced to two years of intensive supervision as well as a protection order pursuant to s 123B of the Sentencing Act 2002.
[2] Mr Carr appeals his sentence only as it relates to the imposition of the protection order. He says that Mrs Carr objected to the protection order being granted and therefore the sentence imposed was manifestly excessive. The only alteration asked for on appeal is that the protection order be removed.
[3] An affirmation has been filed by Mrs Carr and an affidavit by the police prosecutor involved at the hearing in relation to this matter.
1 NZ Police v Carr [2018] NZDC 15269.
CARR v NEW ZEALAND POLICE [2018] NZHC 2443 [18 January 2018]
Background
The offending
[4] The background is set out in the sentencing judgment. In summary, on the night of 12 March 2018, Mr Carr was in bed with his wife watching television.
Mr Carr became very angry and blamed Mrs Carr for winding him up. Without warning, Mr Carr punched Mrs Carr once very hard in the nose. This caused Mrs Carr’s glasses to break and cause a small cut on her nose.
[5] Mr Carr got out of bed, went around to her side, and yelled at Mrs Carr. He told her he was going to beat her up. Mr Carr then began punching Mrs Car numerous times about the head. She tried to protect herself by raising her hands and arms to cover her face.
[6] The blows continued until the family dog intervened and tried to prevent
Mr Carr from further assaulting Mrs Carr. Mr Carr was distracted by the dog, stated he was going to kill it and chased it out of the room.
[7] Mrs Carr called the police while Mr Carr was distracted by the dog. The police arrived and arrested Mr Carr.
[8] Mrs Carr had a very sore nose from the assault, and both of her eyes were swollen. She also had various bumps and bruises all over her head. Her arms and hands were also sore from trying to protect her face.
[9] Mr Carr’s explanation was that he had “gone into a black rage”.
What is a “black rage”?
[10] Dr De Silva, the Carr’s general practitioner wrote a report for the Court. His
23 March 2018 letter to Mr Carr’s lawyer sets out some of Mr Carr’s medical history that “…may help explain some of his recent behaviour/allegations…”. Dr De Silva notes that Mr and Mrs Carr have been his clients for the last 9 years. Mr Carr has a history of previous head injuries with multiple episodes of concussion. He has headaches, back pain and this, apparently, affects his mental health. The Doctor notes
that Mr Carr can enter trances that last up to a minute. During these trances Mr Carr becomes violent and rages. He often has no recollection of what occurred, and reports his “eyes turning black” during these episodes. He refers to them as “black rage”. Dr De Silva classified this as intermittent explosive disorder, noting there is often no trigger. Dr De Silva expressly notes he is concerned that Mrs and Mr Carr be allowed to see each other and that Mr Carr is not “a risk to his wife” as “the incident that has happened is related to his known medical problem, and happens very infrequently”. Mr Carr is awaiting further medical investigations concerning this issue, although nothing is presently before the Court.
[11] The PAC report to the Court notes that Mr Carr had reported that “previously he would attack his wife two to three times a week, however this number has steadily reduced.” The report writer considered that Mr Carr was at a high risk of harming his wife again. It says:
Currently, it appears that both Mr and Ms Carr have accepted that Mr Carr’s violent episodes are inevitable and neither party want to deal with or express how serious the next violent episode may be.
The sentencing
[12] Mr Carr was sentenced on 16 May 2018.2 The only element of that decision presently being appealed is the protection order granted under s 123A of the Sentencing Act 2002. For that reason, I will focus on the sections of the judgment relevant to the protection order being granted.
[13] The Judge noted that the prosecutor advised him that Mrs Carr didn’t oppose a protection order being made. The Judge also noted that there was a protection order previously in place that had been discharged. He was of the view a protection order should be made in favour of Mrs Carr because the four qualifying criteria were met:
(a) the victim was Mr Carr’s wife;
(b)he had assaulted her with intent to injure, and had historically assaulted her as well;
2 NZ Police v Carr, above n 1.
(c) Mrs Carr didn’t object to the order; and
(d)The order is necessary for Mrs Carr’s on going protection. Specifically, the Judge cited the report that Mr Carr had assaulted Mrs Carr up to twice a week, although less frequently recently. There was a high risk of harm and therefore it was necessary.
Mrs Carr’s affirmation
[14] Mrs Carr made her affirmation on 21 August 2018. She says that the Judge “…got the lady police officer who was in Court to come ask me about getting a protection order…” Mrs Carr says she “…said [she] didn’t want one…”. She also notes that “…the lady police officer kept asking me about the protection order, so I said I would agree to a protection order if [Mr Carr] could come home…”. Mrs Carr said that the Judge heard her say this.
[15] Mrs Carr notes her concern that neither the police nor the Judge left her alone and they kept pushing her till she felt she had no choice. She relented and agreed. She thought that if she did agree Mr Carr could come home. This was not the case. She says she feels misled, and that she had told the Judge a protection order would do more harm than good.
[16] Mrs Carr says she objected to a protection order if her husband was not allowed to return home.
Mrs Thompson’s affirmation
[17] Mrs Thompson is the “lady police officer” referred to in Mrs Carr’s affirmation. Mrs Thompson’s affidavit is dated 27 August 2018.
[18] Mrs Thompson says she asked Mrs Carr if she objected to the issuing of a protection order. Mrs Thompson had understood Mrs Carr’s main concern was about living with or seeing her husband if an order was in place. Mrs Thompson explained to Mrs Carr that they could live together or have contact when a protection order was in place as long as Mrs Carr consented to that arrangement. Mrs Thompson said that
Mrs Carr was supportive of her husband and concerned that she should be able to live with him.
[19] Mrs Thompson notes she did not know what conditions that community corrections would seek for the supervision sentence.
[20] In summary Mrs Thompson said she understood that Mrs Carr did not object to a protection order being issued if she could contact her husband, noting specifically “…I understood that Mrs Carr did not object to the Protection Order being issued if she could still have contact with [Mr Carr]”. She reported this to the Judge while Mrs Carr was in the Court room. A protection order was issued.
The transcript
[21] There are two places the Judge refers to a protection order in the transcript taken at the hearing on 16 May 2018.
[22] The first exchange is as follows:
…
SERGEANT THOMPSON:
Also in relation to the last offence, my information was the same victim. I did discuss –
THE COURT:
The one in 2012? Yes, that’s what I understand, too.
SERGEANT THOMPSON:
Yes Sir, it was just I was thinking about a protection order possibly being imposed. I don’t believe she objects to it, but –
THE COURT:
Yes, that was on my list as well, but Mr Stone, well, Sergeant you can talk to the victim to see whether she opposes the making of a protection order. She doesn’t need to consent, I just need to know if she opposes.
SERGEANT THOMPSON:
Thank you Sir.
THE COURT:
It doesn’t stop you associating, but it does afford the victim some extra protection, so you can let me know at 2.15.
SERGEANT THOMPSON:
Thank you Sir.
…
[23] The second exchange occurred after the adjournment that ended at 3.05 pm:
…
THE COURT:
… And Sergeant, what is the position about a protection order?
SERGEANT THOMPSON:
I have spoken at length with the victim now Sir. I suppose her position is she wants contact, she doesn’t care how that is facilitated. I have explained to her protection orders do allow contact. Apparently they have had one in the past, but got it discharged because it wasn’t working for them. My concern, obviously, is if one isn't – well, the assaults are going to continue, I think they are both – they both seem to state which obviously is huge warning bells of the police and I am sure you, Sir. With a protection order, I have explained to her, you know, the assaults are taken a lot more seriously and things happen a lot quicker once one is in place. I suppose she doesn’t object, she doesn’t see there is a huge amount of need for it because she wants to contact him and be with him regardless, I suppose, Sir.
THE COURT:
So “does not object” is the –
SERGEANT THOMPSON:
No Sir, I don’t think she objects as such, she just wants to be with him.
THE COURT:
Mhm, right, so all I need to know is whether she objects or not. If she does not object, I have the jurisdiction to make the order. …
…
[24] There is nothing in the record to suggest that the Judge was advised of any objection by Mrs Carr to the order. Mrs Thompson advised the Judge that Mrs Carr did not object. There is no indication that the Judge overheard anything to suggest otherwise.
What is consistent between the three documents?
[25] Mrs Thompson’s understanding of what Mrs Carr said was that “… Mrs Carr did not object to the protection order being issued if she could still have contact with respondent”.
[26] Mrs Carr’s description of what she said is “…I said that I would agree to a protection order if Dennis could come home…”.
[27] The transcript records that what the prosecutor said to the Judge during the hearing was that Mrs Carr’s “…position is she wants contact, she doesn’t care how that is facilitated… she doesn’t see there is a huge amount of need for it because she wants to contact him and be with him regardless, I suppose, sir…” and that “…I don’t think she objects as such, she just wants to be with him…”.
[28] I am of the view that Mrs Carr did say that she did not object to the protection order if she could still have contact with Mr Carr.
[29] Mr Hawkins in his submission for Mr Carr today said that the situation in court must have been harrowing for Mrs Carr and so it is no surprise that her recollection is inexact. However, Mr Hawkins agrees that the Judge did not hear any objection from Mrs Carr nor did he overhear anything to indicate that she objected to the order.
Leave to appeal
[30] The appeal has been filed out of time. Leave is required to bring the appeal.3
It must be in the interests of justice to extend time for filing.4
[31] Mr Carr argues that as he instructed new counsel outside of the 20-working day window, and that his new counsel did not represent him in the District Court it is in the interests of justice to give leave. The Police note there is no prejudice in the appeal being heard, although they oppose the substantive appeal.
3 Criminal Procedure Act 2011, s 248(4)(a).
4 R v Knight [1998] 1 NZLR 583 (CA) at 587.
[32] In the circumstances, I am satisfied it is in the interests of justice to grant leave and I do so.
Standard of appeal
[33] Mr Carr has brought his appeal under s 250 of the Criminal Procedure Act
2011. Of note is that an appeal against sentence is an appeal against a discretion, and therefore, must only be allowed if the Court is satisfied that there has been (for any reason) first an intrinsic error in the sentence imposed and secondly that a different sentence should be imposed.5 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.6
Protection orders at sentencing
The law
[34] Under s 123B of the Sentencing Act 2002, the District Court has jurisdiction to make protection orders in the course of sentencing. Section 123B sets out a number of requirements that must be met in order for the section to apply:
(a)The offender must have been convicted of a domestic violence offence;7
(b)A protection order must not presently be in place for the protection of the victim from the offender;8
(c)The protection order must be “necessary” for the protection of the victim;9 and
(d) The victim does not object.10
5 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.
6 Ripia v R [2011] NZCA 101 at [15].
7 Domestic Violence Act 1995, s 123B(1)(a).
8 Section 123B(1)(b).
9 Section 123(2)(a).
10 Section 123(2)(b).
[35] To establish there has been a conviction of a domestic violence offence,
Mr Carr must be shown to have committed an offence against an enactment other than the Domestic Violence Act 1995, the offence must have involved “violence” as defined under ss 3(2), 3(4) and 3(5) of the Domestic Violence Act 1995. The offence must be against someone the offender is or has been in a “domestic relationship” with the victim as defined by s 4 of the Domestic Violence Act 1995.
[36] Whether a protection order is necessary to protect the victim is a dynamic question. The Court will assess the risk of future violence against the victim on the basis of past conduct, as informed by the views of the victim and other factors like the seriousness of past violence against the victim by the offender.11
[37] The only matter at issue in this appeal is whether the victim, Mrs Carr objected to the protection order being imposed. Mr Hawkins has confirmed no issue is taken with any of the other matters which need to be satisfied under s 123B of the Sentencing Act.
[38] The requirement is that the “victim of the offence does not object to the making of the order”.12 There is no affirmative obligation on a sentencing Judge to positively establish the absence of an objection – it is for the victim to record the objection.13
Where there is ambiguity the Court can consider the circumstances (such as the nature of the domestic relationship) to assess whether what has been expressed to the Court is an objection for the purposes of the Sentencing Act.14 Circumstances that have fallen short of an objection include:
(a)A victim impact statement in which the victim said “I will consider a protection order” being made four months prior to the relevant sentencing hearing;15 and
11 Surrey v Surrey [2010] 2 NZLR 581; (2009) 27 FRNZ 968; [2010] NZFLR 1 (CA).
12 Sentencing Act 2002, s 123B(2)(b).
13 Sutherland v Police [2017] NZHC 1802 at [18].
14 Te Kani v Police [2014] NZHC 82.
15 Whaanga v Police [2018] NZHC 734.
(b)A statement in a victim impact statement that noted the victim “at this stage [didn’t] want to apply for [a protection order]”.16
[39] In this case it is not disputed that Mr Carr was convicted of a domestic violence or offence, that there was no protection order in force at the time of sentencing, or that the order was necessary for the protection of Mrs Carr. The only limb at issue is whether Mrs Carr objected to the making of a protection order.
[40] Mr Carr relies on the submission that Mrs Carr felt pressured into not objecting as she was under the pretence that Mr Carr would be allowed to return home if she did not object. It is his assertion that the prosecutor should have ensured she reported Mrs Carr’s words more directly to the Judge.
[41] Mr Hawkins, for Mr Carr, made careful submissions which focussed on the process by which the prosecution obtained information from Mrs Carr that she did not object. He said that a more effective process would have been to obtain the assistance of a victim advisor to liaise with the victim and the Judge. Mr Hawkins said this might take time but noted that in this case there was a delay of at least a month between conviction and sentencing. Indeed, there was a reasonable amount of time taken by the Judge to satisfy himself of the circumstances. Mrs Carr was also present in court while the exchanges between the prosecutor and the Judge occurred.
[42] Mr Hawkins’ submissions go to suggesting a different process to ascertain whether the victim objects to a protection order being imposed. However, I must deal with the process here and I can see no error of law in the Judge’s conclusion that Mrs Carr had not objected. Mr Carr’s argument relies heavily on the notion that Mrs Carr agreed to a protection order only in the circumstances that Mr Carr was able to return home and as Mr Carr did not return home there was no consent. In light of Te Kani the circumstances surrounding the protection order should be considered to help interpret what was intended by Mrs Carr.
16 Te Kani v Police, above n 14, at [21].
[43] Several matters are clear. Mrs Carr was told by Mrs Thompson that a protection order did not prohibit contact, or co-habitation with Mr Carr. This is correct. Mrs Carr indicated that if she could still have contact with Mr Carr she did not object. It appears to be the intensive supervision order which has prevented the two living together or associating without prior written approval. It may be that it was only when that became obvious that Mrs Carr objected to the protection order.
[44] It is clear that Mrs Carr did not object to the protection order at the time of sentencing. Her indications to the police prosecutor provided less of a caveat that could be said was indicated by the victim in Te Kani. In that case the victim said she would not be seeking a protection order “at this stage”.
[45] I also note an application may be made to the Family Court by Mrs Carr to discharge the protection order if she wishes at any stage.
Conclusion
[46] The Judge made no error.
[47] The appeal is dismissed.
Grice J
Solicitors:
Bramwell Bate, Lawyers, Hastings
Crown Law Office, Napier
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