QUEENIE TEAOMARAMA WHAANGA AND NEW ZEALAND POLICE

[2018] NZHC 734

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAR`OA TĀMAKI MAKAURAU ROHE

CRI-2018-404-022

[2018] NZHC 734

BETWEEN

QUEENIE TEAOMARAMA WHAANGA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 April 2018
Appearances:	H M S Cheeseman for Appellant A F Devathasan for Respondent
Judgment:	19 April 2018

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 19 April 2018 at 3.45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Kayes Fletcher Walker, Auckland

WHAANGA v POLICE [2018] NZHC 734 [19 April 2018]

Introduction

[1]        This is an appeal against the making of a protection order in the context of a criminal prosecution of the appellant on a charge of common assault.

[2]        The appellant, Ms Queenie Whaanga, pleaded guilty to a charge of common assault on 7 June 2017.1 She was convicted and remanded on bail for the completion of a living without violence programme and engagement in a restorative justice process. On 30 August 2017, she appeared in the Manukau District Court for a family violence monitoring hearing at the completion of which Judge Fraser imposed a protection order in favour of the victim of the assault, Ms Whaanga’s sister.

[3]        On 30 November 2017, Ms Whaanga was sentenced by Judge Fraser to come up for sentence if called upon for a term of 12 months.2 At that hearing, Judge Fraser declined a request by Ms Whaanga’s counsel that he discharge the protection order.

[4]        Ms Whaanga now appeals against the imposition of the protection order, submitting that the victim’s views were not properly ascertained and that a protection order was not necessary in the circumstances of this case. The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011 (CPA). However, a preliminary jurisdictional issue arises as to how this appeal is to be treated. The appellant submits that the protection order was made as part of the sentencing process and in the exercise of the criminal jurisdiction of the District Court. Accordingly the District Court’s decision to make the protection order may be appealed pursuant to s 244 of the CPA.

[5]        The Crown as respondent submits that the protection order was not part of the sentence imposed on the appellant and that consequently there is no appeal against the making of the protection order under the provisions of the CPA. The Crown says that an appeal against the making of a protection order should be brought as a civil appeal pursuant to s 91 of the Domestic Violence Act 1995 (the DV Act).

1      Summary Offences Act 1981, s 9; maximum penalty six months’ imprisonment or a fine not exceeding $4,000.

2      Police v Whaanga [2018] NZDC 29758.

[6]        The Crown submits that determination of the preliminary jurisdictional question will determine the outcome of the appeal, and accordingly I shall address this issue first.

Background

[7]        The appellant is 43 years old. She has five previous convictions, four of which are for common assaults upon her own children which occurred on two occasions in 2008 and 2012.

The offending

[8]        At about 4.00pm on 1 May 2017, Ms Whaanga was at her sister’s house. They began to argue, and in the course of the argument Ms Whaanga pushed her sister into a door. When her sister tried to get away, Ms Whaanga followed her to her bedroom and there pushed her against the bedroom wall and grabbed her sister’s collar, holding it tightly and making it hard for her sister to breathe. After a short time she let go of her sister and departed the address.

[9]        The assault left the appellant’s sister with red marks on her neck and chest. In her victim impact statement made on the date of the incident, the appellant’s sister said that as a result of being held against the wall by Ms Whaanga she had received scars and bruises around her neck, and had soreness in her chest. She said that: she was upset and shocked at the assault; that this was the first time that Ms Whaanga had ever laid hands on her; and that she did not think that Ms Whaanga was capable of doing something like that. The victim further said that she wanted Ms Whaanga trespassed from her home address and that she would “consider a Protection Order” against Ms Whaanga as well.

Protection order

[10]      The appellant was charged with the offence of assault pursuant to s 9 of the Summary Offences Act 1981, the maximum penalty for which is six months imprisonment or a fine of $4,000. The appellant first appeared in the Manukau District Court on 2 May 2017. She entered a plea of guilty when she next appeared in Court

on 7 June 2017, and was convicted and remanded on bail to 30 August 2017. Prior to entering her guilty plea on 7 June 2017, the appellant had shown initiative by enrolling herself in a stopping violence programme with Te Tai Awa O Te Ora. At the hearing, Judge Fraser made orders directing her to continue with the Te Tai Awa O Te Ora programme, and an order directing that a restorative justice process be undertaken.

[11]      At the appellant’s next court appearance on 30 August 2017, her counsel Mr Tausi advised the Court that she had completed the Te Tai Awa O Te Ora programme, and explained that although Ms Whaanga wished to take part in a restorative justice conference with the victim, it had not taken place as the appellant’s sister did not want to participate. At this hearing Mr Tausi accepted that having regard to the two separate pushes and the pinning of the victim against the wall, the offending was towards the higher end in terms of gravity of offending and the particular charge.

[12]      Judge Fraser directed the preparation of a pre-sentence report including addressing electronically monitored community detention. Judge Fraser discussed with counsel matters relating to sentence, and then proceeded to make a protection order in relation to the victim. The Judge said:

What I am going to do today, the victim is seeking a protection order, Mr Tausi and Ms Whaanga, and I am going to make that order, and I do so because you have been convicted of a domestic violence or family violence offence. The complainant is requesting a protection order be made, and in my view an order is necessary for her protection. That is not something that hangs around forever, Ms Whaanga, an application can be made to have it revoked by you, or by the victim in due course, but for the moment that order is being made. So I am engaging in a split sentencing exercise. The balance of the sentence will be 30 November at 2.15 …

[13]      On 30 November 2017, the appellant appeared for sentence. Judge Fraser accepted that the assault was not properly characterised as strangulation, and noted that Ms Whaanga had acknowledged her responsibility and was motivated to address her offending needs, noting that she had already completed a stopping violence programme. The Judge made an order for Ms Whaanga to come up for sentence if called upon for a term of 12 months. Ms Cheeseman for Ms Whaanga requested Judge

Fraser to consider discharging the protection order, but he said that he would not do so without first hearing the victim’s views. Judge Fraser said:3

And in terms of the protection order, I hear the submission that Ms Cheeseman has made for you. In the event that you and your sister do not see the need for the order anymore, then it just requires a short application to the Family Court and the order can be discharged, and I would like to think probably at some point in the not too distance [sic] future that result can be obtained.

The appeal

[14]      Ms Whaanga now appeals against the imposition of the protection order on the grounds that:

(a)the victim’s views were vague and out of date at the time the protection order was imposed; and

(b)the protection order was not necessary, as

(i)this was a one-off incident, not a pattern of behaviour;

(ii)Ms Whaanga has completed a living without violence programme to address the offending;

(iii)Ms Whaanga was on bail for seven months without any breaches, indicating she is not likely to re-offend against the victim; and

(iv)there is no imbalance of power in the relationship that should be addressed.

[15]Ms Cheeseman submits that the protection order should be set aside.

Jurisdictional issue on appeal

[16]      As I have said, a preliminary issue arises as to how this appeal should be treated. It is presently framed as an appeal against sentence under the CPA. Ms Cheeseman submits that this is the appropriate way of dealing with an appeal against

3      Police v Whaanga [2018] NZDC 29758 at [4].

a protection order imposed as part of the sentencing process in the criminal jurisdiction of the District Court. She relies on Asher J’s decision in Holloway v Police.4

[17]      Ms Devathasan for the Crown respectfully disagrees with the approach adopted in Holloway v Police and subsequent High Court decisions which follow Holloway. She submits that a protection order is not a “sentence”, and there is no jurisdiction to deal with the matter as an appeal against sentence. The matter could and should have been dealt with as a civil appeal under the DV Act. Alternatively, she points out there is a mechanism in the DV Act under which Ms Whaanga could apply to discharge the protection order.

[18]      Ms Devathasan says the matter could conceivably still be dealt with as a criminal appeal, by way of an appeal on a question of law under s 296 of the CPA. If Ms Whaanga’s appeal were to be treated as an appeal on a question of law, she submits that there was no error of law in the test the Judge applied.

Two appeal paths

[19]      The protection order in the present case was made under s 123B of the Sentencing Act 2002:

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      Holloway v Police [2014] NZHC 1626.

(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.

[20]      The question as to what appeal rights apply to a protection order made under s 123B has been the subject of detailed consideration in two High Court decisions.5 The dilemma arises because, as observed in Essel, there appears to be “legislative authority for two jurisdictional appeal paths, one criminal, one civil”.6

[21]      The criminal appeal path arises under s 244 of the CPA, which provides that a person convicted of an offence may appeal against the sentence imposed for that offence.

[22]      The civil appeal path arises from ss 123A to 123G of the Sentencing Act and their incorporation of the DV Act. Under ss 123E and 123F, a copy of a protection order made under s 123B is to be served on the offender and sent to the Family Court for entry into its records. Once an order is entered in the records of the Family Court, s 123G provides that it is to be treated as if it were a final protection order made by that court under the DV Act, and certain specified provisions of that Act are to apply to the order.

[23]      One of the provisions specified in s 123G as being applicable to the order is s 91 of the DV Act, which provides for appeals to the High Court:

91       Appeals to High Court

(1AA) This subsection applies to a decision of a court, in proceedings under this Act, to—

(a)make or refuse to make an order; or

(b)dismiss the proceedings; or

(c)otherwise finally determine the proceedings.

5      Essel v Police HC Wellington CIV-2011-485-2207, 23 November 2011; Holloway v Police [2014] NZHC 1626

6 At [18].

(1)A party to proceedings in which there is made a decision to which subsection (1AA) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.

(2)The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under subsection (1) as if it were an appeal under section 124 of that Act.

(3)On the ex parte application of the appellant, the court appealed from may order that the appellant must not be required under section 126(1) of the District Court Act 2016 to give the Registrar of the High Court security for costs.

(3A)     Subsection (3) overrides subsection (2).

(4)Subject to section 93, the decision of the High Court on an appeal to that court under this section is final.

[24]      An appeal under s 91 of the DV Act is a civil appeal, as is made clear by the reference to the High Court Rules.7

[25]      In Essel v Police, Ronald Young J concluded that an appeal against a protection order is governed by the civil appeal rules through s 91 of the DV Act. In Holloway v Police, on the other hand, Asher J concluded that the defendant’s right of appeal against sentence is the applicable pathway. Subsequent High Court decisions have adopted Asher J’s reasoning without any detailed consideration of the point.8

[26]      The debate may soon be moot in light of the Family and Whānau Violence Legislation Bill which is currently progressing through Parliament. That Bill includes a clause clearly indicating that an appeal against a decision to make or refuse a protection order under s 123B of the Sentencing Act is an appeal against sentence and cannot be appealed under the DV Act.9

The criminal appeal path

[27]      Ms Devathasan submits that the right of appeal against sentence in s 244 of the CPA cannot apply to a protection order made under s 123B of the Sentencing Act. She says a protection order is not a “sentence”, which is defined in s 212 of the CPA as

7      Essel v Police HC Wellington CIV-2011-485-2207, 23 November 2011 at [14].

8      See for example Ofisa v Police [2017] NZHC 2157 at [9].

9      Family and Whānau Violence Legislation Bill 2017 (247-2), cl 132.

including “any method of disposing of a case following conviction”. She refers to various contextual factors in the Sentencing Act that indicate a protection order is not a sentence:

(a)section 123B(3) states that a protection order may be made under that section “in addition to imposing a sentence or making any other order”, suggesting that a protection order falls outside the scope of a sentence;

(b)a protection order is not included in the hierarchy of sentences and orders in s 10A;

(c)the word “sentence” is not used in conjunction with “protection order” anywhere in the Sentencing Act, in contrast to other types of sentence (such as a “sentence” of reparation referred to in s 12);

(d)there is no reference to imposing a protection order “instead of imposing sentence”, as there is in other provisions of the Sentencing Act, such as s 108 (conviction and discharge), s 110 (order to come up for sentence if called on) and s 112 (non-association order); and

(e)there is no provision expressly clarifying that a protection order is a sentence, as there is for non-association orders (s 116).

[28]      Ms Devathasan also relies on the legislative history of ss 123A to 123G, submitting that these provisions were introduced to strengthen links between the Family Court and the District Court. In this context Ms Devathasan refers to the explanatory note to the Domestic Violence (Enhancing Safety Bill) 2008 (9-1) which said of the proposed amendments to the Sentencing Act 2002 that:

The protection order may be made in addition to imposing a sentence or making any other order. The criminal courts’ role will, however, be restricted to making the protection order. Conditions, variations to the protection order, and matters relating to children will be dealt with by the Family Court.

[29]        She says that the civil appeal process in s 91 of the DV Act is clearly intended to apply by virtue of s 123G of the Sentencing Act, not the appeal against sentence

provision in the CPA. In her submission, a protection order made under s 123B is properly seen as an ancillary matter to sentencing.

[30]      On the other hand, Ms Cheeseman submits that a protection order made pursuant to s 123B of the Sentencing Act is a sentence that may be appealed under s 244 of the CPA. In support of her submission she principally relies on Holloway v Police in which Asher J held that the criminal appeal path is the appropriate route for appealing a protection order made under s 123B. In that case, Asher J was dealing with the appeal provisions under the former Summary Proceedings Act 1957. Section 115A of that Act defined a sentence in the same terms as now appear in s 212 of the CPA, namely including “any method of disposing of a case following conviction”. Asher J held:10

This protection order was made as part of the Judge's determination of the criminal informations that had been filed and can be seen as part of the method of disposing of the case. This interpretation is supported by s 379 of the Crimes Act 1961 which defined “sentence” as including any order of the Court made on conviction; and the power of the Court of Appeal to pass a sentence includes a power to make any such order of the Court.

[31]      There was a clearer case for a protection order being included within the meaning of “sentence” under the Summary Proceedings Act, given that the definition of sentence in s 379 of the Crimes Act included any order of the Court made on conviction. However, Asher J went on to make the following observations on the CPA:

[15]      Moreover, s 244 of the Criminal Procedure Act gives the right to any person convicted to appeal against the “sentence” imposed for the offence, and “sentence” is defined in s 212, the interpretation section for Part 6 which deals with appeals, as including “… any method of disposing of a case following conviction”. There are certain specific exclusions, but a protection order is not one of them. So this section which replaced s 115 is also consistent with a broad interpretation of the word “sentence”.

[16]      Section 123B of the Sentencing Act appears to distinguish between a protection order and sentence in that such an order is expressed to be “in addition to” imposing a sentence or making any other order. However, “in addition to” would appear to mean “as well as”, and the words do not preclude an interpretation of the word “sentence” to include a protection order made on conviction. Such an interpretation is consistent with the broad meaning of “sentence” in the Summary Proceedings Act, the Crimes Act and the Criminal Procedure Act set out earlier.

10 At [14].

[32]      I respectfully agree with Asher J’s reasoning. The starting point is that a protection order logically falls within the broad definition of a sentence in s 212 of the CPA, namely “any method of disposing of a case following conviction”. The collection of contextual factors to which Ms Devathasan refers does not indicate any clear legislative intent to exclude a protection order from being a “sentence”.

[33]      Asher J also noted that if an appeal against sentence were not available in respect of a protection order, an appeal could be unnecessarily split into two different paths.11 For example, if a fine and a protection order were imposed at the sentencing hearing and the defendant wished to appeal both, he or she would be required to file both a civil appeal in respect of the protection order and a criminal appeal against sentence in respect of the fine. That would be an undesirable result.12

[34]      For these reasons I have concluded that the s 244 CPA sentence appeal route is available to Ms Whaanga in appealing the protection order made against her.

The civil appeal path

[35]      As well as concluding that an appeal against sentence is available in respect of a protection order, Asher J specifically held that the civil appeal route under s 91 of the DV Act does not apply. He relied on the wording in s 91(1AA) of the DV Act:

This subsection applies to a decision of a court, in proceedings under this Act…

(emphasis added)

[36]       Asher J considered that a protection order made under s 123B of the Sentencing Act has not been made in proceedings under the DV Act. Rather, it is made as part of the sentence in criminal proceedings. His Honour said:

[30]  In my view it is necessary to twist the words of s 91(1AA) to make them imply that protection orders made following conviction in criminal proceedings that were brought under the Summary Proceedings Act were in fact civil Domestic Violence Act proceedings. If that was intended, s 123G could be expected to contain the words “…and the proceedings in which the orders were made will be deemed to be proceedings under the Domestic

11 At [23].

12     Ronald Young J also recognised this in Essel v Police HC Wellington CIV-2011-485-2207, 23 November 2011 at [39].

Violence Act 1995”. There are no such words. Therefore, while the order is treated as an order made under the Domestic Violence Act, the proceedings in which they were made remain criminal proceedings and s 91 does not apply.

[31]  The interpretation I have placed on the words” in proceedings under this Act…” is also not without difficulties. Section 123G could be construed as impliedly requiring the criminal proceedings to be treated as falling under s

91. To not so construe it leaves the reference in s 123G to s 91 with no work to do. But when two awkward interpretations are available, the one that would appear to best reconcile with a practical working procedure is to be preferred, as the presumed purpose of the legislature.

(footnote omitted)

[37]      I respectfully disagree with this conclusion. As Ms Devathasan points out, s 123G of the Sentencing Act expressly states that once a protection order made under s 123B is entered in the records of the Family Court as required by s 123F, it is to be treated as though it were a final protection order made by that court under the DV Act, and s 91 of that Act is to apply.

[38]      I note that s 123G (b) provides that certain sections of the DV Act, including s 91(1AA), are to “apply to the order accordingly.” The provisions of the DV Act that apply to a protection order entered in the records of the Family Court, include ss 88 to 95 which provide for: s 91 (appeals to the High Court); s 93 (appeals to the Court of Appeal); s 94 (appeals to be heard as soon as practicable); and s 95 (effect of appeal). In my view, having regard to this context and to the words of s 123G which provide that s 91 of the DV Act is to “apply to the order accordingly”, there is simply no room to interpret this provision other than clearly providing for a civil appeal from a protection order entered in the records of the Family Court pursuant to s 123F.

[39]      It is also of note that s 123G was enacted well after s 91(1AA), thereby further indicating the legislature’s intention that by enacting the provisions of s 123G, s 91 provides for an appeal from a protection order made pursuant to s 123B and entered in the records of the Family Court.

[40]      In my view therefore, the civil appeal route under s 91 of the DV Act is also available in respect of a protection order made under s 123B of the Sentencing Act. That was the conclusion of Ronald Young J in Essel v Police. However, unlike Ronald Young J, I do not consider that the civil appeal path is the only avenue for appeal

available. His Honour held that although a criminal appeal against sentence would ordinarily be available, s 123G of the Sentencing Act “intervenes” and creates a special appeal process pursuant to s 91 of the DV Act. In my view it is not necessary to conclude that the recognition of one appeal process results in the exclusion of the other. Section 91 does not purport to set out the only appeal right available in respect of protection orders.

[41]      The existence of an appeal under the CPA means that a sentence in which a protection order has been made in addition to other orders can be the subject of an appeal in which all aspects of the sentence, including the making of the protection order, can be examined and considered in determining whether the sentencing court made an error in the sentence, and if so whether a different sentence should be imposed. The existence of an appeal under the provisions of the DV Act in respect of a protection order entered in the records of the Family Court enables a civil appeal from the making of such an order where the focus and issues may be different and indeed wider than is the case with a sentence appeal. For example, the civil appeal may also involve other considerations and issues arising from Family Court proceedings.

[42]      The existence of the two avenues for an appeal from a protection order made under s 123B enables the basis for the making of the protection order to be examined within the appropriate context of either a sentence appeal or a civil appeal. It avoids the possible situation referred to by Asher J, whereby an appellate court considering a sentence appeal would be unable to consider whether the making of a protection order by a sentencing court in addition to other orders involved an error in terms of the sentence imposed.

Conclusion on jurisdiction

[43]      The availability of alternative procedural pathways for an appeal where a protection order has been made pursuant to the power contained in s 123B of the Sentencing Act, and then registered in the Family Court pursuant to s 123G, is the consequence of inclusion of the power to make a protection order in both the criminal and Family Court contexts. Assuming that only one of the two appeal paths is

possible, the choice of which of the two should prevail to the exclusion of the other involves strained legislative interpretations as both Ronald Young and Asher JJ have described.

[44]       However for the reasons set out above, I consider that where a protection order made pursuant to s 123B is then registered in the Family Court, the person against whom the protection order was made has a choice and may elect to adopt either one of the two appeal paths provided for by the CPA or the DV Act respectively. In the present case Ms Whaanga has chosen to appeal against her sentence, as is her right under s 244 of the CPA. I propose to determine the appeal on that basis.

[45]      An appeal under s 244 is to be determined in accordance with s 250 of the CPA, and this Court must allow the appeal if satisfied that there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.

[46]      The approach to be taken to an appeal brought under s 250(2) of the CPA was addressed by the Court of Appeal in Tutakangahau v R.13 The Court said:

[30] The practical effect of preserving the approach applied to date is that the appellate court does not just start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, in the words of Shipton, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal. If there is an error of the requisite character, the Court will then form its own view of the appropriate sentence.

(footnotes omitted)

[47]      Where an error or errors are found to have occurred, the court’s assessment of their significance will inform its decision as to whether a different sentence should be imposed. The Court of Appeal said:

[33] Plainly, s 250(2) makes no express reference to a “manifestly excessive” sentence. However, this concept has been part and parcel of the approach to sentencing appeals for a considerable time and we can discern no intention to change the approach in the way contended for by the appellant. To illustrate the longevity of the concept, this Court in … King v Brooks in 1950 endorsed the statement in Archbold’s Criminal Pleading, Evidence and Practice to this effect:

13     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

In exercising its jurisdiction to review sentences the Court of Criminal Appeal does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence. The sentence must be manifestly excessive in view of the circumstances of the case or be wrong in principle before the Court will interfere.

(footnotes omitted)

Requirements for a protection order under s 123B

[48]      The Judge was required to undertake a four-step process before making a protection order under s 123B:14

(a)determine whether the offender has been convicted of a domestic violence offence;

(b)determine that there is not currently in force a protection order against the offender for the protection of the victim of the offence;

(c)be satisfied that the making of the order is necessary for the protection of the victim of the offence; and

(d)be satisfied that the victim of the offence does not object to the making of the order.

[49]      Following the entry of her guilty plea, the appellant was convicted of the offence of assault under s 9 of the Summary Offences Act. The appellant’s assault of her sister is a domestic violence offence within the definition contained in s 123A, and an assault against a person with whom the appellant was in a domestic relationship as defined in s 4 of the DV Act. It was clear at the time that the protection order was made that there was no protection order in force against the appellant for the protection of her sister. Consequently, Ms Whaanga’s grounds of appeal only challenge the Judge’s conclusion on (c) and (d) above.

14     Holloway v Police [2014] NZHC 1626 at [35]; Ofisa v Police [2017] NZHC 2157 at [11].

Victim objection

[50]      The only information as to the victim’s views regarding a protection order is contained in the victim impact statement dated 1 May 2017, being the date of the offending. The victim describes her shock at the assault, and says: “I want [the appellant] trespassed from my home address. I will consider a Protection Order against [the appellant] as well”.

[51]      Ms Cheeseman submits that this statement is vague and that it was no longer current at the time the protection order was made four months later, on 30 August 2017. Nevertheless I consider that this statement is sufficient to satisfy the requirement that the victim did not object to the making of a protection order. First, the victim’s statement does not express any objection to the making of an order; to the contrary it indicates her intention to consider whether she would apply for an order. Secondly, it has been held that there is no affirmative obligation on a District Court Judge positively to establish an absence of objection at the time of the hearing.15

Necessary for the protection of the victim

[52]      The more significant question arising here is whether there was a sufficient basis for the Judge to be satisfied that a protection order was necessary for the protection of the appellant’s sister.

[53]      The requirement in s 123B(2)(a) that the making of an order must be necessary for the protection of the victim is the same requirement as contained in s 14(1)(a) of the DV Act pursuant to which the Family Court may make a protection order. The test has been considered and explained by the Court of Appeal in SN v MN, where it said:16

[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

15 Sutherland v Police [2017] NZHC 1802 at [18]. See also Te  Kani v Police [2014] NZHC 82, [2014] NZFLR 400, where the victim said in her first victim impact statement that she would like the Court to consider a protection order, and then in her second victim impact statement said “at this stage I don’t want to apply for [a protection order]”. On an examination of the circumstances, the Court held that the second statement did not constitute an objection for the purposes of s 123B(2)(b). The present case is much weaker, in that the victim has not at any stage expressed anything that could be construed as an objection.

16     SN v MN [2017] NZCA 289, [2017] 3 NZLR 448.

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 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)

[54]      The transcript of Judge Fraser’s discussion with counsel at the time he made the protection order does not include any detailed reasons for making the order.17 He simply stated he considered it necessary for the protection of the victim. In determining whether the making of an order was necessary for the protection of the appellant’s sister, it was relevant for the Judge to consider whether the appellant’s offending formed part of a pattern of behaviour in respect of which her sister needed protection.18 As the Court of Appeal has observed, while the inquiry is predictive, reliance on past behaviour is the most reliable guide to future conduct.

[55]      In the present case, however, there was no history and no pattern of violent behaviour by the appellant towards her sister. This was the first time Ms Whaanga had offended violently against her sister. I nevertheless accept that there are cases where a single incident of domestic violence combined with background circumstances can warrant the making of a protection order, such as in Bowman v Police.19 There, the defendant had not previously acted violently towards the victim (his former partner). However, he had several prior convictions for behaving threateningly, assaulting females and assaulting children. He also had drug and alcohol-related convictions and convictions for being in possession of an offensive weapon, threatening to kill and recklessly discharging a firearm. Lang J held that the defendant had “no compunction about resorting to violence against those around him”.20 A protection order was necessary for the protection of the victim despite the lack of history of violence towards the victim before these charges.

[56]      The appellant’s offending history is significantly less serious than that of Mr Bowman. There is little detailed information about the facts of the four domestic assaults of which she was previously convicted. Ms Cheeseman advises that the prior assault convictions from 2008 and 2012 related to incidents involving the appellant’s children. At least two of the four convictions appear to be for common assault under the Summary Offences Act, which is a relatively low-level offence, and in each case Ms Whaanga received a community-based sentence. She does not have a history of serious violence, and her convictions are now reasonably historical. Furthermore, and

17 See [12] above.

18     See s 14(3) of the Domestic Violence Act 1995, which does not apply directly but is instructive.

19     Bowman v Police [2015] NZHC 2556.

20 At [11].

significantly in my view, she had by the time of the making of the protection order on 30 August 2017 already completed the Te Tai Awa O Te Ora living without violence programme, which indicated her intention not to reoffend and also showed she had already made progress towards rehabilitation.

[57]      As regards the offending against the appellant’s sister, I accept Ms Cheeseman’s submission that although domestic violence is inherently serious, the offending in this instance was, in comparative terms, at the lower end of the spectrum. The Judge accepted at sentencing that it was not a case of strangulation, and although the victim received scratches, bruising and some soreness in her chest, it was not suggested that her physical injuries were more than minor. It is also relevant to note that the incident arose out of a mutual argument, rather than being an unprovoked attack, and as submitted by Ms Cheeseman it was not a situation where there was any power imbalance in the relationship between Ms Whaanga and her sister.

[58]      I consider it was also relevant to note that by 30 August 2017 over four months had passed since the assault, during which there had been no further problems of any kind between the appellant and her sister.

[59]      In those circumstances, by August 2017 there was little or no real risk of the appellant engaging in any further violent behaviour towards her sister, and there was no basis or necessity for the making of a protection order.

[60]      Accordingly I find that the pre-requisite and necessary criteria for the making of a protection order were not satisfied; that there was no sufficient basis upon which an order could be made; and that the Judge erred in finding that a protection order was necessary to protect the appellant’s sister. This was an error in the sentence imposed on conviction in terms of s 250(2)(a) of the CPA, and I consider that a different sentence should have been imposed in the sense that a protection order should not have been made.

Result

[61]I therefore allow the appeal and set aside the protection order.21

Paul Davison J

21     Pursuant to s 251(2)(a) of the Criminal Procedure Act 2011.