Taylor v Police

[2019] NZHC 874

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2019-443-6

[2019] NZHC 874

MONIQUE ANNE TAYLOR

v

NEW ZEALAND POLICE

Hearing:	On the Papers
Counsel:	J Woodcock for Appellant C Clarke for Respondent
Judgment:	18 April 2019

JUDGMENT OF CLARK J

[1]    On 31 January 2019 Ms Taylor pleaded guilty to two charges of wilful damage.1 Judge Harrison discharged Ms Taylor without conviction and imposed a protection order in favour of her former partner whose property Ms Taylor had damaged.

[2]    Ms Taylor appeals the imposition of the protection order on jurisdictional grounds.

[3]For the reasons that follow the appeal is allowed.

(a)Jurisdiction to make a protection order under s 123B of the Sentencing Act 2002 is grounded in the conviction of the offender for a domestic

1      Summary Offences Act 1981, s 11(1)(a).

TAYLOR v NEW ZEALAND POLICE [2019] NZHC 874 [18 April 2019]

violence offence. If an offender is convicted of a domestic violence offence and no protection order under the Domestic Violence Act 1995 for the protection of the victim of the offence is in force, then s 123B applies.

(b)Those prerequisites for  application  of  s  123B  were  not  met  in  Ms Taylor’s case. Ms Taylor was discharged without conviction (on wilful damage charges). A discharge without conviction is deemed to be an acquittal.2

(c)Even where an offender is discharged without conviction the Court may nevertheless make any of the orders set out at s 106(3) of the Sentencing Act. In addition to the discretionary orders that may be made under s 106(3)(a) and (b), a court may make any order that it is required to make on conviction.3

(d)A protection order under s 123B is discretionary. Consequently, it is not in the nature of a mandatory order able to be made under s 106(3)(c) and it does not come within the category of orders that might be made under paras 3(a) and (b).

(e)It follows that in this case the District Court Judge lacked jurisdiction to make the protection order that was made.

(f)The Crown accepts that the appeal should be allowed for the foregoing reasons.

2      Sentencing Act 2002, s 106(2).

3      Section 106(3)(c).

Result

[4]    The  appeal is allowed.    The protection order made under s 123B of the Domestic Violence Act is set aside.

Karen Clark J

Solicitors:

Crown Solicitor, New Plymouth for Respondent