Ogle v Police
[2021] NZHC 1646
•5 July 2021
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 a minor and remained on good terms with him, while his two younger children were being cared for on a full-time basis by his sister.
[7] Counsel submits that Mr Ogle has now been advised that the protection order creates a bar to the ability of the Family Court to make parenting orders in his favour. Counsel has been unable to locate any authority that a Family Court Judge would have jurisdiction to discharge or vary protection orders under the Act. Counsel therefore submits that if the Judge had been appraised of these factors, the protection order would not have been made.
Discussion
[8] There are four criteria set out in s 123B of the Act which must all be established before a protection order can be made:
(a)The defendant is convicted of a family violence offence;
(b)There is not a current protection order in force;
(c)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.
[9] I am satisfied that the first criteria for the making of a protection order under s 123B of the Act was made out. Mr Ogle was convicted of a family violence offence following his plea of guilty to common assault. He was originally charged with assault
on a person in a family relationship under s 194A of the Crimes Act 1961. This was downgraded to a charge of common assault under s 196 of the Crimes Act, which nevertheless qualifies as a family violence offence as defined in s 123A of the Act.
[10] Section 123A of the Act defines family violence offence as meaning an offence against any enactment (including the Family Violence Act 2018) and involving family violence (as defined in s 9 of that Act). Family violence in turn is defined in s 9 of the Family Violence Act as meaning violence inflicted against a person by any other person with whom that person is, or has been, in a family relationship. Mr Ogle admitted assaulting his former partner and mother of his three children. So quite clearly, he was convicted of a family violence offence.
[11] There is then a general complaint that the Judge was not informed of all relevant considerations when issuing the protection order. In particular, Mr Ogle says that the protection order in some way affects two properties and the trusts which own them. The protection order, however, says nothing about any properties and does not in its terms prohibit Mr Ogle from entering the properties or administering the trusts. It seems some difficulty may have arisen because of bail conditions which required him to live at one address and not to go to or be found within 100 metres of another address where the victim was residing. Mr Ogle is, however, no longer subject to bail. Therefore, any previous bail conditions no longer restrict his freedom of movement.
[12] I was initially troubled by Mr Ogle’s complaint about the inclusion of his children in the protection order. Section 123B enables a Court to make a protection order if it is necessary “for the protection of the victim of the offence”. It does not specifically provide for the making of a protection order against members of the family other than the victim. Mr Ogle says that neither he nor his lawyer sighted the draft protection order prepared by Court staff before he was asked to sign it. He also says that he did not know his children were included as protected persons when he signed the order. He further says his eldest child was not a minor at the time of sentencing, is now 19 years of age and remains on close terms with him. The victim resides in Australia and his two other children are being cared for on a full-time basis by Mr Ogle’s sister.
[13] In his sentencing remarks, the Judge did not refer to the protection order extending to Mr Ogle’s children. He merely stated:5
[6] In respect of the family violence charge, there will be a protection order issued. I am satisfied that there has been family violence, that there are no proceedings currently before the Court and given this offending and the previous offences that a protection order is necessary, and it is not opposed by your partner.
[14] It appears that Court staff acted in accordance with s 123C of the Act and s 86(1) of the Family Violence Act in including Mr Ogle’s children in the protection order. Section 123C provides that a protection order made under s 123B is subject to a number of specified provisions of the Family Violence Act and those provisions apply to that order as if it were a final protection order made under the Family Violence Act. Section 86(1) is one of those specific provisions. Section 86 provides:
86Protection of people other than applicant: child of applicant’s family
(1)A protection order applies for the benefit of any child of the applicant’s family.
(2)A protection order continues to apply for the benefit of a child of the applicant’s family until—
(a)the child is no longer a child of the applicant’s family; or
(b)the order sooner lapses or is discharged.
(3)If a child of the applicant’s family has become an adult child (because that child of the applicant’s family, having attained the age of 18 years, continues to ordinarily or periodically reside with the applicant), a protection order continues to apply for the benefit of the adult child until—
(a)the adult child ceases to ordinarily or periodically reside with the applicant; or
(b)the order sooner lapses or is discharged.
[15] It is interesting to note that s 123C of the Act only refers to s 86(1) as applying to a protection order issued under s 123B, not s 86(2) or s 86(3). It appears, therefore, that the protection order in the present case may continue to apply for the benefit of the children of the victim’s family notwithstanding that one of the children is now 19 years old and the two younger children are in the full-time care of Mr Ogle’s sister, as the victim currently resides in Australia.
5 Police v Ogle, above n 3, at [6].
[16] Finally, in response to counsel’s submissions, I am of the view that a Family Court Judge is able to discharge or vary a protection order made in terms of s 123B of the Act. Once a protection order is made under s 123B, s 123F requires the Court to send a copy to the Family Court, which is then directed to enter the order in its records. Section 123G then provides that the protection order is to be treated as if it were a final protection order made by that Court. The order is, accordingly, specifically subject to a number of provisions in the Family Violence Act, including s 109(1), which empowers the Family Court to discharge an order on the application of either party. The necessity for an order can, therefore, be reviewed by the Family Court.
[17] Returning to the criteria for the making of a protection order under s 123B, the second criteria was apparently made out — there was not a current protection order in force.
[18] In my view, it is on the third criteria — the necessity for an order — that the appeal turns. The Judge referred only to “this offending and the previous offences” as meaning a protection order was necessary.
[19] The present offending was not premeditated. The summary of facts records that Mr Ogle and the victim met by chance at about 6.00 am on 18 September 2020 at a road intersection on State Highway 1, Kaingaroa. Mr Ogle told the victim that he was “going to smash Arlen up” and asked her if her mate was at her friend’s house. The victim replied “No”. Mr Ogle got back into his car and drove down the side road to the victim’s friend’s house where the victim had spent the night. The victim followed Mr Ogle in her car, sounding her horn. The assault happened after they had both arrived at the house and Mr Ogle had smashed the windows of a car parked in the driveway.
[20] The summary of facts records that Mr Ogle walked towards the victim holding a baseball bat. The victim grabbed the bat and tried get it off him. Mr Ogle then threw the victim onto the ground with her landing on her knee. Mr Ogle threatened her, saying: “You better watch it or I’ll get you too”. Mr Ogle has two previous convictions for assault of the same victim in 2007 and 2019, for which he received 100 hours’ community work and a fine of $500 respectively.
[21] While the present offending and previous convictions do speak to the necessity for a protection order, enquiry should also be made of the family circumstances at the time of sentencing. In this case, sentencing took place five months after the offending. There is no record on file nor does the Judge make any reference to the family circumstances at the time of sentencing. In particular, there is no record or reference to where Mr Ogle or the victim lived, with whom the children lived, whether there was a shared care arrangement or whether there were any Family Court orders in place. All these matters speak to the necessity for a protection order.
[22] Clearly an extensive discussion of the necessity for the protection order is not required. But the protection order issued in this case is rather a blunt instrument to protect the victim. She currently resides in Australia. She herself faces charges of possession of a Class A drug and possession of a firearm. It is not known whether she will return to New Zealand to attend Court.
[23] I am also advised that prior to the offending, Mr Ogle and the victim shared the care of their children, one of whom is an adult. The other two currently live with Mr Ogle’s sister. There is no suggestion that the children are in any danger from Mr Ogle, yet he is directed not to have any contact with them by the terms of the protection order.
[24] Another matter which speaks to the necessity for a protection order is the other orders made by the Judge in sentencing. Mr Ogle was sentenced to nine months’ supervision and directed to attend a non-violence programme and any other programme that the Community Probation Service considered appropriate, including any assessments, counselling or treatment. It is assumed that these programmes will have a protective effect.
[25] As to the fourth criteria — that the victim does not object to the protection order — there is, again, no record on file or reference in the sentencing notes of how or in what form the victim’s non-objection was conveyed to the Court.
Result
[26] In all the circumstances, the appeal is allowed. The protection order made under s 123B of the Act served on Mr Ogle on 23 February 2021 is quashed. There is 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. These matters look backwards. What is required is to look forwards. There is also no record or reference to the effects on the children or the protective effect of rehabilitative courses to be undertaken by Mr Ogle.
Woolford J
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