Te Kani v Police [2014] NZHC 82 (7 February 2014)

Last Updated: 25 February 2014

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2013-425-42 [2014] NZHC 82

DAVIS MILTON TE KANI Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 5 February 2013

Appearances: J Ross for Appellant

E L Higbee for Respondent

Judgment: 7 February 2014

_{RESERVED JUDGMENT OF MANDER J}

Introduction

[1] On 22 November 2013 the appellant was sentenced by Judge Phillips to three months community detention, nine months supervision, and 120 hours community work on charges of male assaults female and threatening to kill. As signalled at the time of an earlier sentencing indication the Judge also imposed a protection order. The sentencing Judge considered it necessary for the protection of the victim that a protection order be made. It is against that order which this appeal lies.

Factual background to offending

[2] At the time of the offending, the victim was the partner of the appellant; she was seven and a half months pregnant.

TE KANI v NEW ZEALAND POLICE [2014] NZHC 82 [7 February 2014]

[3] The offending appears to have arisen as a result of the appellant becoming annoyed and upset with the victim, who he considered was excessively socialising and consuming alcohol. Allegations were made of her having sexual relations with other men, and there was an escalation of abuse as the appellant became aggressive and angry. This culminated in the appellant punching the victim in the head twice, pulling her hair and telling her that he was going to kill her.

Victim impact statements

[4] On 5 November 2013, the appellant received a sentence indication from Judge Phillips. The indication was accepted and the appellant pleaded guilty accordingly.

[5] At the time of the sentence indication, the Judge had available to him a victim impact statement. In that statement the victim informed the Court that she had been in a relationship with the appellant for about a year, and that she was 14 years younger than him. She described the relationship as difficult, requiring her to often stay at her mother’s address nearby. In relation to the assault itself, she described becoming scared when the appellant became angry at her, that the appellant was verbally abusive towards her, and that this type of domestic violence was a recurring part of their relationship. She described the appellant as being very controlling and overpowering at times. At the end of the statement the victim advised that she would like the Court to consider a protection order. She thought it would be a good idea as it would protect her child as well. The victim stated that she was looking at ending the relationship but did not know how.

[6] By the time of the sentence hearing, the Court had been provided with an updated victim impact statement. The content of the statement was the same apart from that relating to the protection order. The victim now advised:

I know that in my last statement, I said that I wanted a Protection Order issued by the Court, but I have since changed my mind. At this stage I don’t want to apply for one.

The appellant’s argument

[7] The appellant argues that Judge Phillips was wrong to impose a protection order in light of the revised victim impact statement. The appellant maintains the Court in the circumstances had no jurisdiction to impose a protection order because the victim “objected” to the making of an order.

[8] Section 123B Sentencing Act 2002 provides as follows:

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) 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.

[9] The appellant argues that Judge Phillips was not entitled to disregard the second victim impact statement, and there was a lack of evidence to support the Court’s decision to prefer the first victim impact statement as it related to the issue of a protection order. The appellant submits that the most up-to-date victim impact statement should have been preferred, and that there was no evidence to suggest the appellant had “manipulated” the victim to alter her position regarding a protection order.

[10] The appellant brought to this Court’s attention the distinction between police safety orders and protection orders. In respect of the former the complainant’s consent is not required, and that a protection order has much greater and far more reaching consequences than a police safety order which can remain in place indefinitely. It is submitted on behalf of the appellant that a victim “must have a say” in whether a protection order is considered by the District Court.

[11] In reference to the views expressed by the victim in the second impact statement, the appellant submits it was clear that the victim did not want a protection order imposed, and that essentially this was the equivalent of “objecting” to the making of the protection order.

The respondent’s response

[12] The Crown submits that whether the preconditions to making a protection order under s 123B(2) are satisfied are questions of fact for the sentencing Judge. This includes the Judge’s assessment as to whether the victim of the offence objects to the making of the order. Having regard to the content of both victim impact statements, the facts surrounding the offending, the Judge’s knowledge of the nature of the contact between the appellant and the victim, and the Judge’s finding that the appellant was manipulative, Judge Phillips was entitled to put to one side the apparent change of position recorded in the second victim impact statement.

The sentencing Judge’s remarks

[13] In sentencing the appellant, it is apparent that Judge Phillips was concerned with the ongoing nature of the relationship between the appellant and the victim, and the risk of a repetition of domestic violence. Of note, the victim described the appellant as being “controlling and overpowering”. She did not resile from that description in her second victim impact statement. Of concern to the Court was, that in breach of the terms of the appellant’s bail, the victim and the appellant had continued to have ongoing contact.

[14] Judge Phillips directly addressed the victim’s stance regarding the imposition of a protection order.¹ He recorded his concerns that the modification of the victim’s view was as a result of the appellant’s influence and manipulation, which it is apparent he saw as a worrying aspect of the nature of their relationship.

[15] Judge Philips concluded that the victim’s views recorded in the second victim impact statement did not constitute to an “objection” to the making of the order. If it could so be interpreted, little store could be placed upon it having regard to the Judge’s assessment of the power imbalance within the relationship. Judge Phillips considered that a protection order was necessary for the victim’s protection as it was something she could call to her aid should any difficulties subsequently arise.

Analysis

[16] The only issue that arises on the appeal is whether Judge Phillips had jurisdiction to impose a protection order under s 123B. It is not contested that the offender was convicted of a domestic violence offence, that at the time of sentence a protection order was not currently in force, and that the Court could be satisfied that the making of the order was necessary for the protection of the victim of the offence. The Court, however, only has jurisdiction if the victim of the offence does not object to the making of the order.

[17] With the enactment of s 123B a sentencing Court was provided with a further means to respond to domestic violence offending and the perpetrators of that violence. The ability of a sentencing Court to impose a protection order in addition to a sentence gave it a further way of providing for the interests of the victim of the offence and to deter the offender from committing the same or a similar offence; both recognised purposes of sentencing.

[18] In order to found the jurisdiction to make a protection order under s 123B the sentencing Court does not require the consent or agreement of the victim. I do not therefore consider the comparison between the police safety orders and protection

_{orders made by Mr Ross advances the appellant’s case. Furthermore, as Mr Higbee}

¹ New Zealand Police v Te Kani DC Invercargill CRI 2013-025-002245, at [10], per Judge

Phillips.

notes in his submissions, a protection order does not have to be in place indefinitely as application can be made to the Family Court for it to be discharged.² Only if the victim objects or opposes the making of the order is the Court’s jurisdiction removed. The issue therefore arises in the present case as to whether the communication to the Court via the second victim impact statement amounted to an objection to the Court making such an order.

[19] In my view Judge Phillips’ interpretation of the victim’s statement, “at this stage I don’t want to apply for one”, as not amounting to an “objection” was one that was available to him. It is apparent from the wording of the two victim impact statements that there is some confusion as to the basis upon which a protection order is made by a sentencing Court. In the first victim impact statement the victim states that she would “like the Court to consider a protection order”. In the second victim impact statement the victim states that she does not want to apply for one. No application is needed by the victim for the Court to impose a protection order under s 123B. A victim impact statement may be silent as to the issue or indeed in some cases there may be no victim impact statement at all.

[20] I am unaware of any subsequent communication from the victim in clarification of her position for the purposes of this appeal. That does tend to confirm the passive stance of the victim towards what the Court may seek to do of its own volition. While she did not herself wish to seek an order from the Court, she did not necessarily object to the Court acting as it saw fit. In my view Judge Phillips was correct to conclude that the victim’s amendment to her victim impact statement did not prevent the Court having jurisdiction.

[21] While it is not strictly necessary to do so for the purpose of deciding this appeal, in my view the sentencing Judge was also entitled to make an assessment of the dynamics of the relationship when assessing and interpreting the amendment to the victim impact statement. The Judge had available to him various sources of information including, the summary of facts, pre-sentence report, victim impact statements, information relating to the appellant’s ongoing contact with the victim in

_{breach of his bail, and counsels’ submissions.}

² See s 123G Sentencing Act 2002 and s 47 Domestic Violence Act 1995.

[22] Mr Ross on behalf of the appellant submitted that the sentencing Judge’s conclusion that the appellant was manipulating the victim was an aggravating feature which under the Sentencing Act was required to be proved beyond reasonable doubt. On the information available the Judge could not be satisfied to such a standard. I do not however consider that the assessment of the appellant as manipulative constitutes a finding of an aggravating feature when considered in the context of the issue of the protection order.

[23] In relation to the imposition of the protection order, which is the only matter in issue on this appeal, the relevance of the Judge’s assessment of the appellant’s relationship with the victim was not for the purpose of assessing culpability, but an observation by the Judge of the dynamic of the relationship which may have influenced the victim’s position regarding the protection order. In that regard, I agree with Mr Higbee’s submission that the legislative scheme which sits behind victim impact statements, and the policy considerations surrounding domestic violence allow a sentencing Judge to critically assess victim impact statements in circumstances such as these. In interpreting the victim’s position as conveyed to the Court, the sentencing Judge is entitled to have regard to material background matters.

[24] That does not mean a sentencing Judge can ignore the explicit view of a victim in opposition to a protection order being imposed on a defendant under s 123B. Clearly, under the section it cannot, but where there is ambiguity as to whether the victim objects to the Court exercising the power which would otherwise be available to it and so effectively estop the imposition of a protection order, the Court is entitled to consider the circumstances to assess whether what the victim has expressed to the Court constitutes an objection for the purposes of ss (2)(b).

[25] The appeal is dismissed.

Solicitors:

AWS Legal, Invercargill

Preston Russell Law, Invercargill