Broderick v Police [2014] NZHC 133 (12 February 2014)

Last Updated: 24 February 2014

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2013-488-000055 [2014] NZHC 133

BETWEEN SEAN PATRICK BRODERICK Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 12 February 2014

Appearances: K Ellis for Appellant

M Smith for Respondent

Judgment: 12 February 2014

_{(ORAL) JUDGMENT OF ANDREWS J}

Counsel/Solicitor:

K Ellis, Barrister, Whangarei

Crown Solicitor, Whangarei

BRODERICK v NEW ZEALAND POLICE [2014] NZHC 133 [12 February 2014]

Introduction

[1] On 14 November 2013 the appellant, Mr Broderick, was sentenced by Judge D J McDonald in the District Court at Whangarei to ten months imprisonment on a charge of male assaults female. The Judge also imposed a concurrent sentence of one month’s imprisonment on a charge of causing intentional damage to a motor vehicle. Further, the Judge made a protection order under s 123B of the Sentencing Act 2002 in favour of the victim of the assault, Ms Tooke.

Background

[2] Both charges arose out of the same incident. At 6.30pm on 20 September

2013, Mr Broderick was at an address with his partner, Ms Tooke. Both were drinking, and Ms Tooke wanted to go and get cigarettes from down the road. This caused an argument. The Judge noted at sentencing that Mr Broderick’s solicitor had submitted that Mr Broderick did not want her driving drunk and had punched her in the face to stop her from driving. This rendered her unconscious. On awakening, Ms Tooke ran and hid under the house. Mr Broderick, being unable to locate the keys, smashed the right quarter-light window of Ms Tooke’s vehicle.

[3] Mr Broderick pleaded guilty to the two charges on his second appearance in Court. He was remanded for a pre-sentence report, but that could not be prepared in time for his sentencing, owing to Mr Broderick having been moved between correctional facilities. Mr Broderick agreed to be sentenced in the absence of a pre- sentence report. The Judge had before him Mr Broderick’s history of previous convictions, submissions from his counsel, and letters from Ms Tooke and Mr Broderick’s mother. The Court file also includes a victim impact statement, but this is not signed by either Ms Tooke or a Police Officer, nor is it dated.

[4] The Judge referred to Ms Tooke’s letter, noting that it had not been completed by a victim’s advisor or police officer. (It is, however, signed by Ms Tooke.) The Judge noted that Ms Tooke still had strong feelings for Mr Broderick, and had said that the offending was out of character. Mr Broderick and Ms Tooke had been in a relationship for two years and, despite his criminal history, Mr Broderick had not been in any trouble with the law during that time. The Judge did not refer to the

victim impact statement but Mr Smith advised that, according to advice from the prosecutor, it was before the Judge.

[5] The Judge set a starting point for Mr Broderick’s sentence at eight months imprisonment, noting that it was a serious offence, involving a blow to the victim’s head and that it had knocked her unconscious. An uplift of six months was applied on account of Mr Broderick’s previous convictions, which included 25 violent or violent-type offences, between 1994 and May 2013. A discount of 25 percent was then allowed for Mr Broderick’s guilty pleas, to arrive at the end sentence of ten months imprisonment. The order for a protection order in favour of Ms Tooke was made without any discussion in the sentencing notes

Grounds of appeal

[6] Ms Ellis submitted for Mr Broderick that the Judge did not follow the statutory requirement in s 123B(2)(a) of the Sentencing Act that he be satisfied that the order was required for the protection of the victim; and that the Judge did not follow the statutory requirement in s 123B(2)(b) and satisfy himself that the victim did not object to the making of the order.

Relevant statutory provisions

Approach to appeal

[7] An appeal against sentence is a general appeal, by way of rehearing. Section

244 of Criminal Procedure Act 2011 establishes the right of a person to appeal against sentence. Section 250 states 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.”

[8] Section 250 confirms the ‘error approach’ that was taken under its predecessor s 121(3) of the Summary Proceeding Act 1957. The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Protection orders at sentencing

[9] Section 123B of the Sentencing Act provides:

(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.

[10] It is not a requirement that the victim apply for the order. In determining whether the order is necessary under s 123B(2)(a) the Court will consider the risk of future violence based on past conduct.¹

Submissions

[11] Ms Ellis submitted that the Judge did not hear evidence or make any findings that allowed him to properly address either limb of the statutory test under s 123B of the Sentencing Act.

[12] Ms Ellis further submitted the request for the protection order appears to have been made by the words “123B Protection Order Sought” which are handwritten on the victim impact statement. Ms Ellis submitted that as the victim impact statement was not signed or dated by Ms Tooke or a Police Officer, the Judge could not have been satisfied that she did not object to the order being made, particularly when it was in direct contrast to her letter.

[13] It was also submitted that the Judge did not consider Mr Broderick’s previous violent offending properly in the context of making the protection order nor was

¹ Surrey v Surrey [2008] NZCA 565

there any mention of the need to protect Ms Tooke through the making of such an order. Further, Ms Ellis submitted that while the Judge mentioned the letter from Ms Tooke, he cast doubt as to its veracity, without giving reasons for such doubts.

[14] In summary, Ms Ellis submitted, the Judge had not established the requisite foundations to make the protection order, and should at least have stood the matter down to make further enquiries. In her oral submissions today Ms Ellis submitted that before the Court can conclude that the victim “does not object to” the making of the order, it is necessary that the victim is aware of the prospect of an order being made and has the opportunity to object or not object to it. Ms Ellis accepted that if, for example, the prosecutor had advised the Court orally of the victim’s view: that is, that the order was not objected to, then that could be taken into account against her earlier letter.

[15] For the Police, Mr Smith submitted that the Judge was right to impose the protection order in the circumstances. Noting that the Notice of Appeal set out as a ground of appeal that Ms Tooke at no time “agreed to” a protection order being made, he submitted that the appeal was based on a misconception of s 123B(2)(b) of the Sentencing Act, and that the requirement for the victim to “not object to” the protection order is distinct from (and does not mean that) the victim must “agree to” the order.

[16] Mr Smith noted the distinction between subs (2)(a) and subs (2)(b) of s 123B, where in the former the court is required to be “satisfied that” it is necessary to make the order for the protection of the victim, whereas in the latter there is no requirement for the court to be “satisfied”. He submitted that it is sufficient if there is nothing before the court which suggests that the victim does object to the order being made. That is, it is not necessary for the victim to actively object to the order. He submitted that once the Judge is satisfied that an order is necessary it can be imposed on the Judge’s own initiative, without input from the victim, unless the victim says that the order is objected to. He submitted that this is deliberate on the part of Parliament, to give a discretion to the Court, if an order is considered appropriate, to remove the possibility of any pressure being exerted on a victim not to object to an order.

[17] Mr Smith further submitted that to impose a standard whereby the court must be satisfied that the victim agrees to, or does not object to, a protection order being made is contrary to the purpose and principles behind the Domestic Violence Act

1995 and the making of final protection orders under the Sentencing Act. He submitted that the purpose of the Sentencing Act provisions was to strengthen the existing domestic violence regime, and to provide better protection to victims of domestic violence. He noted that the remedy (if an order is made), if it is objected to, is for an application to be made to review or discharge the order.

[18] I was referred to the explanatory note to the Domestic Violence Reform Bill

2008 (under which the amendment to the Sentencing Act was introduced) in which it was noted that that the amendments aimed to strengthen the current regime to provide better protection to domestic violence victims. In the “Regulatory Impact Statement” section of the Explanatory Note it was said that “pressure put on protected persons by respondents to seek a discharge” of protection orders, and “criminal courts not adequately addressing the protection needs of victims of domestic violence” were “current concerns”. Thus, it was submitted that to require the prosecution on behalf of the victim to prove that there is no objection to a protection order being made at sentencing would place unfair and inappropriate pressure on the victim, in circumstances where one of the purposes of the amendments to the Sentencing Act was to remove just such pressure.

Discussion

[19] Section 123B clearly sets out two requirements. First, that an order is necessary, and secondly that the victim does not object. Neither of the two limbs was directly addressed in the Judge’s sentencing in this case.

[20] In determining whether the order is necessary past violence is an important consideration.² Mr Broderick has a prolific history of violent offending, but this appears to have been his first offence of domestic violence. Further, there was no evidence before the court that violence had occurred previously in the relationship.

_{At least, no evidence that is referred to in the judgment. The victim’s letter stating}

² See Surrey v Surrey, above n 1.

that this act of violence was “totally out of character for him” would appear to be to the contrary effect.

[21] Clearly, an extensive discussion of the necessity for the protection order is not required. In R v Mosen the Judge simply said “That order is not opposed, and I make it. I am satisfied that it is required and lawful.”³ In R v Te Whiu Mallon J stated “There will also be a protection order in favour of the victim of the present offending. That will give her comfort that you cannot contact her.”⁴ Rather the focus in past cases has been on whether the protection order was opposed. In the two cases I have referred to, and in R v Yates⁵ and R v Johnstone⁶ where a protection order was made, the relationships had ended. That may explain why they were not opposed.

[22] The circumstances of the present case may therefore be distinguishable from other cases, where the relationship between the offender and victim had ended. As I understand it, that may not be the case here although there is no evidence either way. In any event, I accept Ms Ellis’ submission that there is no record in the judgment of any evidence on which the Judge satisfied himself that the order was necessary for the victim.

[23] The Judge may have felt it was appropriate to make the protection order if it was not opposed at sentencing, as that appears to have been the approach in other cases. On the face of the offence on which Mr Broderick was convicted and his previous history of violent offending (albeit, it would appear, not domestic violence) a protection order may well have been appropriate as a protective measure.

[24] Further, as mentioned earlier, there is no indication as to whether Ms Tooke was aware of the application for a protection order or whether her opinion was

_sought.

³ _{R v Mosen [2013] NZHC 2540.}

⁴ _{R v Te Whiu [2013] NZHC 2308.}

⁵ _{R v Yates [2012] NZHC 3387.}

⁶ R v Johnstone [2012] NZHC 752.

[25] In the light of my uncertainty as to whether the issue of a protection order was raised at sentencing before the order was made, there is really no basis on which I could reach any conclusion as to whether Ms Tooke objected to it. I see some force in Ms Ellis’ submission that one cannot object to something of which one is not aware.

[26] In the circumstances the appropriate course may have been to remit this matter back to the District Court for the issue of whether a protection order should be made to be considered.

[27] However, Mr Smith has this morning provided the Court with an updated victim impact statement. In this statement, which is signed by a Police Sergeant, it is noted that Ms Tooke was spoken to on 29 January 2014. It is noted that Ms Tooke had received a copy of the protection order and that she had discussed it with Mr Broderick. It is also noted that Ms Tooke “understands the conditions and consequences of breaching the order” and, in particular, “she supports protection orders in principal [sic]”. As a result of the Sergeant’s discussion he says “I am confident that [Ms Tooke] does not take issue with Police seeking and being granted the 123B protection order”. I can take from the updated victim impact statement that Ms Tooke does not object to a protection order being made.

[28] I note Ms Ellis’ submission in reply that if the Court is minded to receive the updated victim impact statement then she would need to seek further instructions from her client. However, I am satisfied that I may receive the updated impact statement simply as updating information.

[29] In the light of the updated victim impact statement I have concluded that if the matter were to be remitted to the District Court for consideration of whether a protection order should be made, it is inevitable that a protection would be made. Further I am in no doubt that if I were to allow the appeal and quash the protection order; a fresh application for a protection order would inevitably result in an order being made.

[30] In the circumstances I have concluded that the appropriate course therefore is to dismiss the appeal because whatever the outcome of allowing it, a protection order should be, and would be, made. Accordingly, the appeal is dismissed.

[31] Ms Ellis sought disclosure of the updated victim impact statement and of a further document provided to the Court by Mr Smith which is an email from the prosecuting Sergeant to his office. There is no objection to the updated victim impact statement being disclosed, but Mr Smith sought an order under s 30 of the Criminal Disclosure Act 2008 that the email not be disclosed on the grounds set out in s 16(1)(b) of that Act, that disclosure is likely to endanger Ms Tooke’s safety. I accept Mr Smith’s submissions in respect of the email, and order that that not be disclosed.

[32] The victim impact statement may be disclosed pursuant to the relevant provisions of the Victims Rights Act 2002.

Result

_{[33] The appeal against the making of a protection order is dismissed.}

Andrews J