Ofisa v Police
[2017] NZHC 2157
•6 September 2017
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2017-441-24 [2017] NZHC 2157
BETWEEN PONI OFISA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 September 2017 Counsel:
W Hawkins for Appellant
M Mitchell for RespondentJudgment:
6 September 2017
JUDGMENT OF ELLIS J
[1] On 19 July 2017 Mr Ofisa was convicted in the Hastings District Court on one charge of common assault under s 9 of the Summary Offences Act 1981. He was sentenced to 9 months’ supervision.1 Judge Adeane also made a protection order under s 123B of the Sentencing Act 2002 (the SA). The protected person was the complainant, Mr Ofisa’s domestic partner. Mr Ofisa appeals the imposition of the protection order.
[2] Although not apparent from Judge Adeane’s sentencing notes (which comprise four sentences) the circumstances resulting in the conviction and sentence are slightly unusual. It is necessary to say a little more about them.
Background
[3] Mr Ofisa originally faced a charge of assault with intent to injure. The allegations made in the Police summary of facts were serious. It was alleged that
Mr Ofisa (who had been drinking) grabbed the complainant by the hair, and punched
1 Police v Ofisa [2017] NZDC 16015.
OFISA v NEW ZEALAND POLICE [2017] NZHC 2157 [6 September 2017]
her in the face, causing her nose to bleed. According to the summary, she blacked out and fell to the floor and Mr Ofisa “kicked her in the head one time”. He was then said to have dragged her outside and locked the door.
[4] Mr Ofisa denied the charge. He elected a judge alone trial, which was scheduled before Judge Adeane. The complainant was Samoan and was thought to require a translator. Although one was arranged, no-one turned up at the trial. The complainant gave her evidence in chief without a translator.
[5] According to Mr Hawkins (who represented Mr Ofisa at the trial) the complainant did not come up to brief. All she said in her evidence was that Mr Ofisa had pushed her out of the house. It seemed clear that her evidence would not support the charge that had been laid.
[6] Judge Adeane then stood the matter down so that counsel could confer. It was agreed that the charge would be amended to one of common assault, which related only to the pushing. Mr Ofisa would plead guilty to that charge. The Crown indicated that it would still be seeking a protection order. The summary of facts was amended accordingly. A guilty plea was entered.
[7] The Crown’s application for a protection order was opposed by Mr Hawkins.
The sentencing
[8] I set out what Judge Adeane said on sentencing in full:
[1] Mr Ofisa is now convicted and placed on nine months’ supervision.
[2] He is to undertake counselling and education programmes together with departmental programmes as directed and over opposition of the defendant, I am satisfied that where a domestic assault has been committed, there is sufficient basis on which to make a protection order and a protection order is made accordingly. In making it I bear in mind the defendant’s history of alcohol abuse as demonstrated by many drunken-driving convictions over the last 20 years.
[3] Under the protection order there is also a direction to attend programme.
Approach on appeal
[9] Although there is conflicting authority from this Court on the point I proceed on the basis that an appeal against the imposition of a protection order at sentencing is a criminal rather than civil appeal. That was the approach mandated by Asher J in Holloway v New Zealand Police.2
Relevant law
[10] Section 123B of the SA provides:
123B Protection order
(1) This section applies if—
(a) an offender is convicted of a domestic violence offence; and
(b) there is not currently in force a protection order against the offender made under the Domestic Violence Act 1995 for the protection of the victim of the offence.
(2) The court may make a protection order against the offender if—
(a) it is satisfied that the making of the order is necessary for the protection of the victim of the offence; and
(b) the victim of the offence does not object to the making of the order.
(3) A protection order may be made under this section in addition to imposing a sentence or making any other order.
(4) An order may be made under subsection (2) even though domestic violence proceedings have been filed by the victim of the offence against the offender, and those proceedings have not yet been determined.
(5) If an order is made under subsection (2) in the circumstances described in subsection (4), the domestic violence proceedings, in so far as they relate to an application for a protection order against the offender, end.
[11] In Holloway, Asher J said that, based on the wording of the section, the Court must determine whether:3
2 Holloway v New Zealand Police [2014] NZHC 1626 at [22]-[34].
3 At [35].
(a) the defendant is convicted of a “domestic violence offence”;
(b)there is a protection order currently in place against the offender for the protection of the victim;
(c) it is satisfied that the making of the order is “necessary” for the protection of the victim; and
(d) the victim does not object to the making of the order.
[12] The term “domestic violence offence” is defined in s 123A of the SA as
… an offence against any enactment (other than the Domestic Violence Act
1995) involving the use of violence against a person, other than a child, with whom the offender is, or has been, in a domestic relationship[.]
[13] The third and substantive step mirrors the “necessity” test contained in s 14 of the Domestic Violence Act 1995, pursuant to which the Family Court may make protection orders. That test has been considered by the Court of Appeal in Surrey v Surrey,4 and more recently in SN v MN.5
[14] In SN the Court of Appeal summarised the Surrey approach to the necessity test as follows:6
[22] The second stage, if the first is satisfied, is for the Court to inquire whether making an order is necessary for the applicant’s protection. The same threshold of satisfaction applies based on exercising judgment or making a judicial evaluation. Again the inquiry need not be overly refined. The greater and more persistent the degree of violence, the more likely it will be necessary to make an order.
[23] It is unlikely a Court could rationally refuse to grant a protection order where the behaviour is such as to lead to reasonable fears for safety based on being subjected to a pattern of recent serious domestic violence, unless there are very strong indications to the contrary. This reflects the Court’s existing assessment of the applicant’s fears as being reasonably held; necessity therefore follows. The Act is designed not only to protect a person against future violence but the reasonably held fear of violence. Cultivating a
4 Surrey v Surrey [2008] NZCA 565; [2010] 2 NZLR 581.
5 SN v MN [2017] NZCA 289.
6 The test in s 14 has two stages. The first is whether the respondent is using or has used domestic violence against the applicant or a child of the applicant’s family, and the second is whether making the order is “necessary” for the applicant’s or the child’s protection.
fear of physical abuse constitutes psychological abuse, and thus satisfies the broad meaning of violence under the Act.
[24] It is also important to record that:
(a) The inquiry is of course of a predictive nature but reliance on past behaviour is the most reliable guide to future conduct.
(b) While some or all of the subject behaviour may appear to be minor or trivial when viewed in isolation or unlikely to recur, the Court is required to “consider whether the behaviour forms part of a pattern of behaviour in respect of which the applicant … need[s] protection”.
(c) As noted, the purpose of a protection order is to ensure not only safety from the risk of future violence but also that the applicant actually feels safe — that is a reference to the effect of past domestic violence on the applicant.
(d) The question is not which party promoted a given situation but whether the protection order is needed.
(e) While the Court may take into account several factors when deciding whether the evidence displaces the apparent need to grant a protection order, once an applicant satisfies the Court of the existence of past violence and a reasonable subjective fear of future violence — described as shifting the evidential burden — such factors may do no more than guide the Court in any given situation. And factors identified as relevant in determining past cases do not reach the status of a statutory code or require formulaic application in other cases.
(f) When conducting the inquiry into necessity it is not a question of weighing factors pointing to an order being necessary against those which operate to the contrary. Again, we repeat, it is an evaluative exercise to determine whether the protection order is necessary.
(footnotes omitted.)
Discussion
[15] The focus of Mr Ofisa’s appeal is principally on the third “necessity” step, although Mr Hawkins makes the point that the Judge did not expressly refer to the fourth step either. Although the Crown position is that the complainant did want a protection order imposed it is unclear what information Judge Adeane had about that.
[16] As far as necessity is concerned it is plain that the only relevant information before the Judge was:
(a) the facts (disclosed in the amended summary to which Mr Ofisa pleaded guilty) that:
(i) Mr Ofisa had been drinking on the night in question; and
(ii) he pushed the complainant out of the house; and
(b) his previous convictions for drunk driving.
[17] Although, on the High Court file, there is a victim impact statement in which the complainant says that she is afraid of Mr Ofisa it is far from evident whether that was before Judge Adeane. The statement is neither verified nor dated which, in itself, would be relevant to weight in terms of s 22B of the Victims Rights Act 2002.
[18] The sentencing notes make it clear that the Judge thought that the information before him justified the making of the protection order. Whether he considered the issue in terms of the statutory “necessity” test, however, is anyone’s guess. But as the decision in SN makes clear this Court is able, and indeed required, to consider the
matter afresh.7
[19] In my view the necessity threshold is not met here. I accept that Mr Ofisa pushing his domestic partner after he had been drinking does give some cause for concern. I also accept that his conviction history suggests that alcohol may be a problem for him, although it discloses no link to past violent behaviour and, indeed, there is no admissible evidence of previous violent offending or of a pattern of domestic violence. I have no information about whether or not Mr Ofisa and the complainant remain in a domestic relationship (which goes to ongoing risk) or about their domestic circumstances at all. The deficiencies in the victim impact statement mean I am able to give it limited weight at best.
[20] In addition, there is the fact that Mr Ofisa is presently subject to a sentence of supervision. As part of that sentence he is to attend counselling, courses and
programmes as directed. If there are ongoing domestic violence concerns (based on
7 At [46].
material that I do not have before me) there is an opportunity to address these through the making of appropriate directions.
[21] As I have said, on the information before the Court I am unable to conclude
that it is necessary to make a protection order in Mr Ofisa’s case. The appeal is allowed and the protection order is quashed accordingly.
Rebecca Ellis J
Solicitors:
Public Defence Service, Hawkes Bay for Appellant
Crown Solicitor’s Office, Napier for Respondent
2