Lafitte v Police

[2015] NZHC 432

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000254 [2015] NZHC 432

BETWEEN

MANON LAFFITTE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	On the papers
Appearances:	No appearance by or on behalf of Appellant J Murdoch for Respondent
Judgment:	11 March 2015

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 11 March 2015 at 2.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland

MANON LAFFITTE v NEW ZEALAND POLICE [2015] NZHC 432 [11 March 2015]

[1]      On 16 July 2014, the appellant appeared in the Auckland District Court for sentence  in  respect  of  two  offences,  one  of  criminal  harassment  and  one  of intentional damage.  She was discharged without conviction in respect of the offence criminal harassment, but in respect of the charge of intentional damage, she was convicted and ordered to pay $2,167.   A protection order was also made for six months in favour of the complainant.  She now appeals against sentence.

Grounds of appeal

[2]      In the notice of appeal, the appellant has set out her grounds of appeal as follows:

(a)       Judge indicated a protection order of six months, however was final protection order.  Protection order is manifestly excessive.

(b)      Reparation amount is disputed.

[3]      The appellant has now returned to France, but has been in intermittent contact with the Court.   In an e-mail to the Court dated 5 December 2014, the appellant confirmed the above two grounds of appeal.

Protection order

[4]      In the District Court, the sentencing Judge stated:

[43]     In the circumstances I have reached the view, Ms Laffitte, that a protection order is necessary.  You are young, you will go home, you may well return within the next six months and in my view it is appropriate and, indeed, necessary for me to issue the protection order in respect of Mr Jenkins, really, out of an abundance of caution and to make it absolutely clear to you that in no circumstances must you make contact with him in the next six months.

[5]      Although the sentencing Judge obviously intended that the protection order would be of six months duration only, the protection order served on the appellant was a final protection order without a specified time limit.

[6]      It appears, however, that the imposition of a six month protection order was without jurisdiction.  Section 123B of the Sentencing Act allows a Court to make a

protection order against an offender if certain conditions are satisfied.  Such an order is treated as a final protection order made under the Domestic Violence Act 1995.1

Final  protection  orders  under  the  Domestic  Violence  Act  last  until  they  are discharged under s 47 of that Act which empowers a Court, on application of the applicant or the respondent, to discharge a protection order.

[7]      In the text Brookers Family Law – Adult Relationships the learned authors state:2

The Act does not provide for a “sunset clause” or, in other words, an ability to order that a protection order can automatically expire on a set date.  See, for example R v H (2000) 19 FRNZ 532; [2001] NZFLR 30, at [35], there is “no jurisdiction under the Domestic Violence Act 1995 to impose the self- destruct condition”. Young J set aside the protection order in this case which had been granted with a sunset clause.

[8]      Likewise, in B v B, Judge Mahony held: 3

[11]      The Court has no jurisdiction to make finite orders or orders subject to review at the end of a specified period.  Protection orders remain in force unless and until discharged on application of a party.

[9]      Brookers Family Law – Adult Relationships also states:4

If  the  Court  considers  that  the  need  for  protection  may  cease  after  a particular period and that a review may then be appropriate, the Judge may simply invite the party to make an application after that period.

[10]     The Domestic Violence Act does make provision for temporary protection orders.  However, these are made on application without notice, and become a final protection order three months after the date on which the order is made, if the respondent has been served with the temporary protection order.

[11]     The Crown acknowledges the error on the part of the sentencing Judge, but submits  that  this  Court  should  nonetheless  dismiss  the  appeal  and  advise  the

1      Sentencing Act 2002, s 123C(1).

2      Johanna Robertson, Rosemary Riddell (eds) Brookers Family Law – Adult Relationships (online looseleaf ed, Brookers) at [DV47.02(3)].

3      B v B FC Palmerston North FP054/432/98, 6 October 1998.

4      Johanna Robertson, Rosemary Riddell (eds) Brookers Family Law – Adult Relationships (online looseleaf ed, Brookers) at [DV27.07].

appellant to make an application that the order be discharged.  Such an application can be made either in the District Court or the Family Court.

[12]     I am, however, of the view that that is not the appropriate solution.   The sentencing Judge obviously intended that the protection order last only for six months.  Those six months have now expired and it is in the interests of justice that the  appeal  be  allowed  and  the  protection  order  made  by  the  sentencing  Judge quashed.

Reparation

[13]     The appellant was also ordered to pay $2,167 in reparation for damage to the complainant’s motor vehicle.  The appellant notes that the Police had two quotes for repair of the motor vehicle.  She says that one of the quotes was cheaper by $100, yet the Police asked her to pay the larger sum.  The appellant says she is not working and does not have much money, so $100 is $100.  She says she made an offer to the Police to pay the lesser sum, but they said “no”.  The appellant says that seems like nonsense to her.

[14]     Counsel for the respondent has now provided the Court with the two quotes obtained by the Police.   One is from Longley Panelbeaters Ltd dated 22 February

2014, which quotes the repair costs as $2,167.75.   The other is from Phil Stokes

Panel  Beaters, which  quotes  the  repair  costs  as  $1,770  plus  GST or  a total  of

$2,035.50.

[15]     Counsel for the respondent points to the discussions which occurred in the District Court in relation to reparation.  The sentencing Judge inquired whether the amount in the summary of $2,167 was accepted, to which counsel then acting for the appellant agreed.  In those circumstances, the respondent submits that the sentencing Judge was correct to order reparation of $2,167 and that the appeal should be dismissed  because  the  reparation  sum  was  an  agreed  amount.    However,  the appellant complains about her representation in the District Court and it cannot be assumed that her counsel sought and obtained the appellant’s explicit approval.

[16]     In the end, I am of the view that the summary should have included the lesser quote, as this sum was the fairest to both the appellant and the complainant.  If the motor vehicle was able to be repaired for the lesser sum, the appellant should not have been ordered to pay the larger sum.

Result

[17]     The appeal is allowed.  The protection order and the order for reparation of

$2,167 are both quashed.  In its place an order for reparation in the sum of $2,035.50 is imposed.

……………………………….

Woolford J