Ofisa v Police - [2017] NZHC 2157

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ofisa v Police

Details

AGLC: Ofisa v Police [2017] NZHC 2157
Case: [2017] NZHC 2157
Decision Date: 6 September 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Poni Ofisa appealed against a protection order made by Judge Adeane in the Hastings District Court. The appeal was heard by Ellis J on 6 September 2017, and judgment was given on the same day. Mr Ofisa was convicted of common assault against his domestic partner and was sentenced to nine months’ supervision. As part of the sentence, a protection order was made under s 123B of the Sentencing Act 2002.

The appeal focused on the legality of the protection order, with Mr Ofisa arguing that the order was not justified. The key issue before the Court was whether the making of the protection order was necessary for the protection of the complainant, as required by s 123B(2)(a) of the Sentencing Act. The Court was required to determine if the Judge had sufficient evidence to conclude that the protection order was necessary, considering the statutory test set out in SN v MN.

Ellis J found that the Judge had not considered the necessity test correctly. The Court found that the information before the Judge did not justify the making of a protection order. The only relevant information was that Mr Ofisa had been drinking and pushed his domestic partner out of the house, and he had a history of drunk driving. However, there was no evidence of a pattern of domestic violence, and the victim impact statement was not sufficiently reliable to provide weight to the decision.

The Court quashed the protection order as it was not necessary for the protection of the complainant. The appeal was allowed, and the protection order was quashed accordingly.

Orders