Ray v Police

[2019] NZHC 2958

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-80

[2019] NZHC 2958

IN THE MATTER

of an appeal against conviction and sentence

BETWEEN

DAVID BYRON RAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	31 October 2019
Counsel:	AE Ngapo-Lipscombe for appellant G Banuelos for respondent
Judgment:	14 November 2019

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 14 November 2019 at 2:30 pm.

.

Registrar/Deputy Registrar

Date……………

Solicitors:           NL Lawyers, Tokoroa

Gordon Pilditch, Rotorua

Ray v New Zealand Police [2019] NZHC 2958 [14 November 2019]

[1]                  Mr Ray pleaded guilty to one charge of common assault,1 one of threatening to kill,2 one of unlawful possession of a firearm,3 one of wilful damage,4 and one of reckless driving.5 He was sentenced to nine months’ supervision. He now appeals on the grounds he should have been granted a discharge without conviction.

Offending

[2]                  All of Mr Ray’s offending is against his then-partner. They had been in a relationship for approximately two years and have a son together, who was born in June 2018. At the time of being charged (and sentenced), Mr Ray was 17 years old (the victim was 23).

[3]                  The common assault charge is representative. The summary of facts records that on multiple occasions throughout the relationship Mr Ray would grab the victim, throw her around, hit her on the arms and legs, and on some occasions punch her on the jaw. She received bruising as a result of these assaults.

[4]                  The threatening to kill and unlawful possession of a firearm arise out of a single event in September 2018. After an argument, Mr Ray became angry, and got a .22 rifle from a cupboard in the hallway. He then followed the victim into their baby’s room and found her hiding by the cot, where the child was asleep. Mr Ray told the victim “you can’t leave or I’ll shoot you”. The victim was able to message for help and her brother arrived at the address. A scuffle ensued between the two men over the rifle, but the victim’s brother ultimately gained control of the firearm and took it away. The firearm was in fact unworkable, although it is not clear the victim was aware of that at the time.

1      Charged under s 9 of the Summary Offences Act 1981, with a maximum penalty of six months’ imprisonment or a fine not exceeding $4,000.

2      Crimes Act 1961, s 306. Maximum penalty seven years’ imprisonment.

3      Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment or a fine not exceeding

$5,000.

4      Charged under s 11(a) of the Summary Offences Act 1981, with a maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.

5      Land Transport Act 1998, s 35(1)(a). Maximum penalty of three months’ imprisonment or a fine not exceeding $4,500. The court must order the person to be disqualified from driving for six months or more.

[5]                  The wilful damage arose the following day. Mr Ray was upset the victim had packed some belongings and left. He got a knife and stabbed holes in their mattress, and smashed the victim’s television, which had been purchased for her by her father. He then sent images to the victim of what he had done.

[6]                  Finally, the reckless driving charge relates to offending on 12 January 2019. The victim was driving in a 100 km/h area. Mr Ray drove up to the victim, pulled out and drove beside her on the wrong side of the road for a short while, then pulled in front of the victim’s car and slammed his brakes, causing her to brake hard and swerve to avoid a collision. The victim was afraid because she and Mr Ray had argued an hour before. The District Court Judge noted Mr Ray was on bail for the earlier offending at the time.6

District Court decision

[7]                  Judge Cooper noted that Mr Ray suffers from ADHD and was unmedicated at the time of the offending, although was more stable at the time of sentencing. The Judge also acknowledged Mr Ray’s youth, and noted that under recent Youth Court reforms, his offending would now be dealt with in the Youth Court.7 While Mr Ray’s offending was already before the District Court at the time of the reforms, so he remained before that Court, the Judge nonetheless considered “it is a factor that if you had of been in the Youth Court, then you would not end up with criminal convictions for this.”8

[8]                  The Judge nonetheless assessed the gravity of the offending as being serious, noting that while any threat to kill in a domestic harm situation is serious, that was particularly so when it was accompanied with a firearm.9 He accordingly considered he could not discharge Mr Ray without conviction.

[9]                  Despite this assessment, the Judge considered the six months Mr Ray had spent in custody between offending and sentence was sufficient punishment for what

6      Police v Ray [2019] NZDC 18792 at [8].

7      These reforms, among other things, extended the youth justice system to include most 17 year olds (although those charged with specified serious offences continue to be dealt with in adult courts).

8      Police v Ray, above n 6, at [10].

9      At [12]

happened. He considered that as Mr Ray was more stable and was employed, there was no need for any further punitive sentence. He accordingly sentenced Mr Ray to nine months’ supervision and six months’ disqualification from driving. He also made a protection order in favour of the victim and their child.

Additional materials

[10]Mr Ray is now 18 years of age. He has no previous convictions.

[11]              The Provision of Advice to Courts (PAC) report writer noted that while Mr Ray identified poor emotional control as a factor contributing to the offending, and expressed remorse for his actions, he lacked insight as to how his offending might have affected the victim. The report writer opined that his lack of insight was indicative of his young age and immaturity. The writer also considered Mr Ray exhibited a sense of entitlement which again was attributable to his immaturity and lack of life skills.

[12]              Mr Ray was diagnosed with ADHD at an early age, and credits it as a cause of his exclusion from school at an early age for fighting. He told the report writer he was not medicated from the age of 11 until he was remanded in custody for his current offending. Lakes District Community Mental Health Services confirmed he had been released from their care on 31 July 2019 (where he had been since a release from custody on 2 July 2019) and was now appropriately medicated.  Since his release,  Mr Ray had successfully gained an offer of employment carrying out farming work.

[13]              The report further notes Mr Ray has a close relationship with his parents, and also his brother-in-law (the victim’s brother). The victim’s brother was interviewed and told the report writer Mr Ray has struggled with mental health and was young and vulnerable. He nonetheless believed Mr Ray had the potential to lead a pro-social life and considered him highly motivated to be a good father to his nephew.

[14]              The report writer noted that while Mr Ray does not consider himself a violent person, he agreed his impulsivity was poor. The writer considered Mr Ray had a clear propensity to be violent as demonstrated by the convictions he faces, but was nonetheless willing and motivated to attend a family violence programme.

[15]              A report of a restorative justice conference between Mr Ray and the victim dated 7 August 2019 was also before the Judge. It notes Mr Ray confirmed the Police summary of facts with the facilitators before the meeting and expressed remorse for what he had done.10 At the conference, the victim expressed her view that the offending was a “one off thing” caused by Mr Ray going “crazy after trying synthetics”.   She said she had  no  concerns for the wellbeing of her or her child.   Mr Ray said he was “gutted” about what had happened and continued to feel remorse. Both agreed to attend whatever programmes were necessary to make things work.

[16]              A support person for Mr Ray who attended the conference said Mr Ray had matured a lot and believed him to be sincerely remorseful.

Submissions for Mr Ray

[17]              Ms Ngapo-Lipscombe for Mr Ray submits that a discharge without conviction is the least restrictive sentence available, having regard to New Zealand’s obligations under the United Nations Convention on the Rights of the Child (UNCROC). She notes that at the time Mr Ray was sentenced, the Oranga Tamariki Act 1989 (the Act) had changed its definition of “young person” to include persons under the age of 18, not just under the age of 17. She submits that at sentencing, Mr Ray’s best interests, informed by s 4(1) of the Act, should have been a primary consideration, consistent with UNCROC. She says that sentencing a child or young person having regard only to s 9(2)(a) of the Sentencing Act 2002 (which provides the age of an offender is a mitigating factor) fails to have regard to New Zealand’s obligations under UNCROC.

[18]              Ms Ngapo-Lipscombe further submits that the Judge placed too much emphasis on the seriousness of the charges on which Mr Ray was convicted, and had he been dealt with in the Youth Court, the nature of the offending would not have been a barrier to a discharge, noting that pursuant to s 282 of the Act, he would have been discharged following successful completion of an agreed plan. She submits that such discharges are regularly granted in the Youth Court in respect of serious offending. She further submits that the Judge should have given greater weight to factors personal

10     Albeit I note the victim disputed aspects of the summary of facts, including that Mr Ray had punched her in the jaw or threatened to shoot her.

to Mr Ray which point against the gravity of the offending being serious, including his guilty plea and remorse, participation in restorative justice and rehabilitation programmes, lack of prior convictions, mental health issues and age.

[19]              Given this, Ms Ngapo-Lipscombe submits a discharge without conviction should now be granted, being the least restrictive outcome that is appropriate in the circumstances.

[20]              She further submits that a discharge without conviction will not affect the protection order made in favour of the victim and her child, citing s 106(3)(c) of the Sentencing Act which provides upon discharge without conviction, the Court may make any order that it is “required” to make on conviction. If a protection order would otherwise be warranted, Ms Ngapo-Lipscombe submits the Court would be required to make it upon conviction. In this context, Ms Ngapo-Lipscombe seeks general guidance for the lower courts on the circumstances in which a protection order can be made following a discharge without conviction.

[21]              Finally, an issue arose at the appeal hearing on which I permitted further (limited) submissions to be filed. That was whether the Judge had jurisdiction to make the protection order. The issue arose as Ms Ngapo-Lipscombe noted at the hearing that it was not clear if the victim’s views had been sought on the making of a protection order, or that she did not object to one being made. I noted that the file contained a (standard) police form signed by the victim in which she requested a protection order. This had been signed, however, in November 2018, before Mr Ray had been convicted (despite the standard form stating that the offender had been convicted and was to be sentenced). I granted leave for further submissions on the limited question of the Judge’s jurisdiction to make the protection order, in light of the date on which the victim provided her consent to such an order.

[22]              In her supplementary submissions, Ms Ngapo-Lipscombe makes broader further submissions, namely that:

(a)The issue of whether the victim objected to the protection order (which, if so, would remove the Judge’s jurisdiction to make such an order) was

not properly canvassed, and therefore the order should not have been made;

(b)The “mass produced” form signed by the victim in this case is not sufficient to provide informed consent to a protection order, and updated views should have been sought at the time of sentencing; and

(c)Despite Mr Ray being convicted of four family violence offences against the victim, it was not necessary for the protection order to have been made.

[23]              Ms Ngapo-Lipscombe also takes issue with a police job sheet being advanced by the Crown on the appeal, in which the victim’s current views as to the protection order are sought. The job sheet notes that the victim wishes the order to stay in place, not because there is any present concern, but to guard against future issues arising in terms of family violence.

Submissions for the Crown

[24]              Ms Banuelos for the Crown says that the offending was serious, involving multiple instances of family violence involving on one occasion a firearm. While she accepts that the gravity of the offending is lessened due to Mr Ray’s age, mental health issues, lack of previous convictions, and attendance at restorative justice and remorse, she nonetheless submits that the overall gravity remains moderately serious.

[25]              Her primary submission is that Mr Ray has not identified any particular consequences of a conviction. While she accepts that Mr Ray is a young person, she submits that is not sufficient to warrant a discharge under the Sentencing Act, citing a judgment by Mander J which notes “youth alone would not by itself be sufficient” to grant a discharge in cases of serious offending.11 She also notes that because Mr Ray had successfully obtained a job prior to sentencing, it cannot be said that his convictions have resulted in any adverse effects on his employment prospects. As

11     Walker v Police [2016] NZHC 1450 at [24].

such, she suggests Mr Ray has not done enough to show the consequences of a conviction would be out of all proportion to the gravity of the offending.

[26]              Ms Banuelos further submits that a discharge without conviction would result in the setting aside of the protection order. She cites a recent High Court decision which held jurisdiction to make a protection order is grounded in the conviction of the offender for a domestic violence offence, and could not be sustained after a discharge without conviction.12

[27]              In her supplementary submissions, Ms Banuelos refers to several authorities in which the High Court has discussed the threshold of being satisfied that the victim does not object to a protection order being made. She notes that the authorities confirm that the question is whether the victim objects to the making of a protection order, not whether there is consent (informed or otherwise). She further notes that the authorities confirm that there is no affirmative obligation on a District Court Judge positively to establish an absence of objection; rather the fact of objection will remove the jurisdiction to make the order. Ms Banuelos submits that there is evidence in this case of positive consent to the protection order (including in the updated victim’s views), and no evidence of the victim objecting. As such, she says the Judge clearly had jurisdiction to make the protection order.

[28]              As to the necessity of the order, Ms Banuelos  points to the seriousness of   Mr Ray’s offending and that it occurred on multiple occasions during the relationship. Given the nature and frequency of the offending, she says there was ample basis upon which the Judge could conclude that a protection order was necessary.

Approach on appeal

[29]              Sections 106 and 107 of the Sentencing Act 2002 enable a Court to discharge an offender without conviction, provided the Court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

12     Taylor v Police [2019] NZHC 874.

[30]              As noted by the Court of Appeal, this is a two-stage inquiry.13 First, the Court must determine the gravity of the offence, the consequences of conviction, and whether those are out of all proportion to the gravity. Second, if the Court is satisfied the consequences are out of all proportion, it should consider whether it should nonetheless exercise its discretion to decline to grant a discharge.

Evaluation

[31]              The primary issue on appeal is whether a discharge without conviction ought to have been granted. In my view, the Judge did not err in failing to do so, and the sentence imposed was proper and appropriate, given the seriousness of the offending and Mr Ray’s personal circumstances (including his age).

[32]              As a preliminary point, I note that at the sentencing hearing before the Judge, Ms Ngapo-Lipscombe acknowledged the recommendation in the PAC report (of a sentence of supervision and a protection order) was “more than generous”. She nevertheless felt “duty bound” to seek a s 106 discharge given the mitigating factors applying to Mr Ray. The Judge’s sentencing notes record that she accepted that a discharge without conviction was “pretty optimistic.”

[33]              In my view, Ms Ngapo-Lipscombe’s (effective) concession in the District Court as outlined above was both responsible and fair. Mr Ray’s offending in this case was serious. That is because of both the nature of the offending (including the threat to kill) and its duration; this was not a “one off” incident as the victim has subsequently sought to portray matters.14 Rather, the offending had taken place over the course of Mr Ray and the victim’s relationship. It is correct that there are a number of factors personal to Mr Ray which must be taken into account when assessing the overall gravity of his  offending.15   But  even taking those matters into account,  I accept   Ms Banuelos’s submission that the gravity of the offending overall was still moderately serious.

13     DC(CA47/2013) v R [2013] NZCA 255 at [31].

14 See [15] above.

15 See [10]-[16] above.

[34]              There is also no evidence advanced as to why the consequences of a conviction would be out of all proportion to the gravity of the offending, being the threshold consideration pursuant to s 107 of the Sentencing Act. Ms Ngapo-Lipscombe points to the “black mark” of a conviction for a young person such as Mr Ray. She also notes the recent legislative changes to the Act which, but for their timing, would have seen Mr Ray dealt with in the Youth Court. She says that Parliament’s intent can be inferred from these changes, to the effect that the consequences of convictions are out of all proportion to young persons, which are now persons over the age of 14 years but under 18 years.

[35]              I am unable to accept this submission. Ultimately, Mr Ray was before the District Court and must be sentenced in accordance with the principles and purposes of the Sentencing Act. The settled approach to granting a discharge without conviction must accordingly be adopted.   I accept that had the legislative changes to which    Ms Ngapo-Lipscombe points been enacted earlier, Mr Ray would have been dealt with in the Youth Court. The Judge was also alive to this, as his sentencing notes make clear.16 But there will always be persons falling on one side or the other of a line drawn by a legislative change. The fact an offender is “close” to that line does not mean that the proper principles for sentencing ought not to be applied.

[36]              In this case, as noted, there is no particular evidence that the consequences of a conviction would be out of all proportion to the gravity of the offending. I am also satisfied that the Judge properly and fully took into account Mr Ray’s age, and those other mitigating factors applying to him, including his mental health, his remorse, his employment and prospects for rehabilitation. It was for these very reasons that the Judge was prepared to sentence Mr Ray to only nine months supervision for what was clearly fairly serious offending.

[37]              Ms Ngapo-Lipscombe accepts that when sentencing a young person, the sentencing court is not required to take into account youth justice principles.17 But as Keane J (giving the judgment of the Court) observed in Pouwhare:

16     Police v Ray, above n 6, at [11].

17     Pouwhare v R [2010] NZCA 268 at [97].

[82]      A “young person” under the CYPF Act is a “child” for the purposes of the United Nations Convention on the Rights of the Child, which New Zealand ratified in 1993. For its purposes a “child” is everyone below 18 years unless under domestic law majority is attained earlier. When sentencing a young person, therefore, a judge should, to the extent that this is consistent with the letter of the Sentencing Act, act in accordance with the Convention and, in particular, should treat the young person's “best interests” as a “primary consideration”. The Judge must treat the young person in a way that promotes his or her “sense of dignity and worth”; must reinforce, the young person's “respect for the human rights and fundamental freedoms of others”; and must, as the Sentencing Act also expressly calls for, impose a sentence which “takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society”.

[83]      In the end, a judge sentencing a young person under the Sentencing Act must always weigh the young person's age and the reasons why he or she offended, against the seriousness of his or her offending and prospects of rehabilitation. Sometimes the young person's age will be a mitigating factor of high, perhaps decisive, significance not to be circumscribed by any fixed outer percentage. Equally, there can be no warrant for saying that youth, of itself, must always prevail as the paramount value on sentence, or that youth alone can justify radically reducing the sentence which would otherwise be proper.

[Citations omitted, emphasis added]

[38]              This approach was adopted and applied by Winkelmann J in R v Q, in which her Honour sentenced a 16-year-old on a charge of assault.18 She summarised the approach as follows:

The law provides a structure for how I have to go about sentencing you. The approach I take is informed by the normal sentencing principles that apply to adult offenders. But because of your age I may also take into account the youth justice principles underlying the youth justice provisions of the Children, Young Persons, and Their Families Act. In this case I propose to do so. Were it not for the fact that you were initially charged with manslaughter you would be being dealt with on this charge through the Youth Court justice system where youth justice principles would be applied. When I look at all these principles, I proceed in this way.

[Citation omitted]

[39]              At the time Mr Ray was charged, he was not a “young person” under the relevant legislation. The amendment of the definition of a “young person” in the Act took effect as of 1 July 2019, so very shortly before Mr Ray’s sentencing. However, sch 1AA, cl 4 of the Act provides that the new definition of young person was not to apply to criminal proceedings underway at the date the amendment came into force. Instead, any defendant aged 17 years in criminal proceedings in the District Court or

18     R v Q [2014] NZHC 550 at [17].

High Court as at 1 July 2019 was to be dealt with in that court as if the amendment had not come into force.19

[40]              The effect of this transitional provision is that when he was sentenced, Mr Ray was to be sentenced on the basis that the amendment had not come into force, which meant that Mr Ray was not considered a “young person”. For that reason, the principles set out in Pouwhare and R v Q do not directly apply, given they address sentencing someone who is a young person. Nevertheless, given the legislative change which took effect as of 1 July 2019, I do not consider it would have been an error to take into account that Parliament now intends youth justice principles to apply to persons aged under 18  when  sentencing  Mr  Ray.  To  this  extent,  I  agree  with Ms Ngapo-Lipscombe that it was open to the Judge to take into account the youth justice principles from the Act; though, I would add, so long as consistent with the Sentencing Act. Pouwhare makes that clear; the youth justice principles cannot justify radically reducing the sentence which would otherwise be proper.20

[41]              Where I part company from Ms Ngapo-Lipscombe is that even taking into account such principles, a different sentence (namely a discharge without conviction) ought to follow in this case.21

[42]              Given the seriousness of Mr Ray’s offending (particularly that occurring on 24 September 2018), and that the offending against his partner was not a singular “one off” incident, I am satisfied the sentence imposed in the District Court was the least restrictive outcome that was appropriate in all the circumstances.22 It was also consistent with those principles to be balanced in s 4A(2) of the Act,23 kept Mr Ray in the community,24 and appropriately took into account by way of mitigation his age.25 The conditions of Mr Ray’s sentence of supervision26 were appropriately directed to

19     Oranga Tamariki Act 1989, sch 1AA, cl 4(3).

20     Pouwhare v R, above n 17, at [83].

21     Criminal Procedure Act 2011, s 250.

22     Sentencing Act 2002, s 8(g), Oranga Tamariki Act 1989, s 208(2)(f)(ii).

23 Which include the well-being and best interests of the child or young person, the public interest (which includes public safety), the interests of any victim, and the accountability of the child or young person for their behaviour.

24 Oranga Tamariki Act 1989, s 208(2)(d).
25 Sentencing Act 2002, s 9(2)(a); Oranga Tamariki Act 1989, s 208(2)(e).

26 Namely, to attend an assessment for an appropriate family violence programme, and to attend and complete any counselling, treatment or programme as directed by a probation officer.

the causes of his offending.27 And while the victim expressed a somewhat “forgiving” view as to the offending at the restorative justice conference, this had to be balanced against the summary of facts to which Mr Ray had accepted and pleaded guilty (and which was contrary to some of the views expressed by her).

[43]              The appeal against the failure to grant a discharge without conviction is accordingly dismissed. This means it is not necessary to go on to consider whether a protection order may be made when a discharge without conviction has been granted. While Ms Ngapo-Lipscombe seeks general guidance on this issue, I do not consider it is appropriate to embark on a detailed consideration of an issue which is not “live” on the present appeal.

[44]              The suggestion that the District Court Judge did not have jurisdiction to make the protection order, because of the date upon which the victim’s consent to such an order had been given, can be addressed relatively briefly. In short, the Judge had such jurisdiction if:28

(a)The offender is convicted of a domestic violence offence;

(b)There is no protection order already in force;

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

(d)The victim of the offence does not object to the making of the order.

[45]              As can be seen, there is no requirement for the victim to consent to the making of such an order.29 It is an evaluative exercise to be carried out by the Judge. Accordingly, the fact the victim in this case did consent, but prior to conviction and sentencing, is somewhat of a red-herring. The key issue on this aspect of the appeal is whether there was any objection by the victim. It is not a matter of “consent or non- objection” as characterised in Ms Ngapo-Lipscombe’s supplementary submissions. It

27     Oranga Tamariki Act 1989, s 208(fa).

28     Sentencing Act 2002, s 123B.

29     See also Te Kani v New Zealand Police [2014] NZHC 82, at [18].

is a positive objection by a victim to a protection order which removes a Judge’s jurisdiction to make such an order. There was no suggestion, either at sentencing or on appeal, that there was any such objection by the victim in this case.30 Nor, as Muir J explained in Sutherland v New Zealand Police, is there an affirmative obligation on a District Court Judge positively to establish an absence of objection.31

[46]              For these reasons, it is not necessary to address the victim’s most recently stated views in the context of the Judge’s jurisdiction to have made the protection order.32

[47]              A significant part of Ms Ngapo-Lipscombe’s supplementary submissions sought to expand the scope of the appeal by suggesting that given the victim’s views were not sought at sentencing, the Judge could not be satisfied that a protection order was necessary for her protection. I do not propose to address this aspect of the supplementary submissions in any detail. As Ms Ngapo-Lipscombe rightly notes, no leave was sought or granted to make supplementary submissions on this (much broader) topic, which was not previously heralded on the appeal.33 But in any event, there is nothing on the face of the Judge’s sentencing which could give rise to any real concern about this aspect of the sentence, given the nature and duration of the offending for which Mr Ray was convicted (and that some of his offending against the victim took place while he was on bail for earlier offending against her). The Judge also had before him the report of the restorative justice conference, in which the victim’s (then current) views as to the offending were set out. And as noted, the victim’s consent or agreement to such an order is not necessary, and a court

30 The victim’s views as to her general safety going forward, as expressed in the report of the restorative justice conference, cannot amount to such an objection.

31 Sutherland v New Zealand Police [2017] NZHC 1802 at [18].

32 For completeness, and given Ms Ngapo-Lipscombe’s challenge to the admission on the appeal of the updated victim’s views, were I satisfied that the Judge had erred in sentencing and therefore was considering whether any different sentence ought to be imposed, I would have needed to consider the up to date position. In a similar context, in Sutherland v New Zealand Police,  Muir J admitted on the appeal and took into account updated victim views on a protection order which had not been available to the sentencing Judge (see [19]). There is nothing unusual about a victim’s views being conveyed via a report or job sheet from a police officer. And Ms Ngapo- Lipscombe’s concerns about the independence of any such discussion between the officer concerned and the victim would be a matter of weight to be afforded to those recorded views, not their admissibility.

33 My minute dated 1 November 2019 clearly limited the scope of any further submissions to the question of jurisdiction arising from the date upon which the victim had signed the police form consenting to a protection order.

considering these matters will be alive to the dynamic that can be present between an offender and the victim of family violence offences, where the victim “retreats” from allegations or earlier statements of concern.

[48]              Ultimately, if, given more recent developments (including the current relationship between Mr Ray and the victim) and/or the victim’s current understanding (or suggested lack of understanding) of the precise effect of the protection order,34 there is a desire or perceived need to remove or vary the terms of the order, the proper approach is to apply to the Family Court for it to be varied or discharged.35

Result

[49]The appeal is dismissed.

Fitzgerald J

34     Again, forming a substantial part of Ms Ngapo-Lipscombe’s supplementary submissions.

35     Sentencing Act 2002, s 123G and Family Violence Act 2018, ss 108 and 109.