Ogle v Police - [2021] NZHC 1646

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2021-488-000010

[2021] NZHC 1646

BETWEEN
REDDEN NATHAN OGLE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 June 2021

Appearances:

Appellant in person

N Jamieson for Respondent

Judgment:

5 July 2021

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 5 July 2021 at 2:30 pm

Registrar/Deputy Registrar

Solicitors:Marsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei Vicki Ammundsen Trust Law Ltd (H Ammundsen), Kaitaia

Copy to: Appellant

OGLE v NZ POLICE [2021] NZHC 1646 [5 July 2021]

[1] On 23 February 2021, Redden Nathan Ogle pleaded guilty to possession of an offensive weapon1 and common assault.2 He was sentenced by Judge G L Davis to 100 hours community work and nine months’ supervision.3 The Judge also issued a protection order under s 123B of the Sentencing Act 2002 (the Act). Mr Ogle now appeals against the issue of the protection order. He appeared on his own behalf when counsel was unable to appear for him. I did, however, have the benefit of counsel’s written submissions filed in advance of the hearing.

Approach on appeal

[2] Section 244 of the Criminal Procedure Act 2011 establishes the right of a person to appeal against sentence. An appeal against a decision to make or refuse a protection order under s 123B is an appeal against sentence.4

[3] An appeal against sentence is a general appeal, by way of rehearing. Section 250 of the Criminal Procedure Act provides that the appeal court must allow the appeal if it is satisfied that:

(a)For any reason, there is an error in the sentence imposed on conviction; and

(b)A different sentence should be imposed.

Appellant’s submissions

[4] Counsel notes that it is a requirement under s 123B of the Act that an offender must be convicted of a family violence offence in order for a District Court Judge to have the jurisdiction to issue a protection order. He submits a conviction for common assault under s 196 of the Crimes Act 1961 does not meet this threshold.

[5] Further, counsel who represented Mr Ogle when he pleaded guilty (not the author of the written submissions) was not, and could not, reasonably be expected to

1      Crimes Act 1961, s 202A(4)(b): Maximum sentence of three years’ imprisonment.
2      Crimes Act, s 196: Maximum sentence of one years’ imprisonment.
3      Police v Ogle [2021] NZDC 5004.
4      Sentencing Act 2002, s 123H.

be equipped to advise Mr Ogle on the consequences with respect to either the implications for the two family trusts that own the relevant properties (or the rights and obligations thereunder) or the implications for Mr Ogle’s planned applications under the Care of Children Act 2004. Accordingly, the Judge was not informed of all relevant considerations when issuing the protection order.

[6] Counsel advises that Mr Ogle’s three children were unexpectedly included as protected persons under the protection order, even though his eldest child was not…

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.

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Details

Case: [2021] NZHC 1646
Decision Date: 5 July 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Redden Nathan Ogle, the appellant, appeals against a protection order issued by the District Court under section 123B of the Sentencing Act 2002. The appellant was sentenced to 100 hours of community work and nine months' supervision for possession of an offensive weapon and common assault. The District Court Judge also issued a protection order under section 123B of the Act, which the appellant challenges on appeal. The appellant appeared in person and was represented by written submissions from his former counsel.

The legal issues before the court were whether the appellant was convicted of a family violence offence, if the Judge was informed of all relevant considerations when issuing the protection order, and if the protection order was necessary for the protection of the victim. The court considered the criteria set out in section 123B of the Act, which require the defendant to be convicted of a family violence offence, there to be no current protection order in force, the making of the order to be necessary for the protection of the victim, and the victim not to object to the making of the order.

The court found that the first criteria was met as the appellant was convicted of a family violence offence. However, the court found that the third criteria, the necessity for an order, was not sufficiently established. The court found that there was insufficient record of or reference to the grounds which may make a protection order necessary to protect the victim, apart from the present offending and previous offences. The court also found that there was no record or reference to the effects on the children or the protective effect of rehabilitative courses to be undertaken by the appellant.

The appeal was allowed, and the protection order made under section 123B of the Act served on the appellant on 23 February 2021 is quashed. The court found that there was insufficient record of or reference to the grounds which may make a protection order necessary to protect the victim, apart from the present offending and previous offences. The court found that there was no record or reference to the effects on the children or the protective effect of rehabilitative courses to be undertaken by the appellant.

Orders