Taylor v Police [2018] NZHC 1377 (12 June 2018)

Last Updated: 17 July 2018

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-7 [2018] NZHC 1377

BETWEEN	DEREK JOHN TAYLOR Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	6 June 2018
Appearances:	D Henderson for Appellant C Ure for Respondent
Judgment:	12 June 2018

JUDGMENT OF MANDER J

[1] The appellant, Mr Derek Taylor, pleaded guilty to a charge of assault.¹ Judge Phillips sentenced him to 80 hours of community work and six months’ supervision. A protection order was also made in favour of the victim.² Mr Taylor now appeals the making of that order.

Background

[2] Mr Taylor and the victim have been in an intermittent relationship for the past 19 years. At the time of the offending, they had been back together for the previous four years and were living together.

[3] The assault occurred when they were travelling together in the defendant’s light truck. The victim was driving the vehicle. Mr Taylor became angry with the

¹ Summary Offences Act 1981, s 9.

² Sentencing Act 2002, s 123B.

TAYLOR v POLICE [2018] NZHC 1377 [12 June 2018]

victim’s driving. He kicked the front console in anger which caused the glovebox lid to detach. He then picked up the lid and threw it across the truck, hitting the victim on her upper left arm, and leaving a minor bruise. The victim endeavoured to calm Mr Taylor down. However, he then poked her in the left side of her face.

[4] When Mr Taylor wanted to stop at a store and got out of the truck, the victim, fearing for her safety, took the opportunity to drive off, leaving him behind.

The District Court decision

[5] In sentencing Mr Taylor, Judge Phillips noted the victim’s view, that Mr Taylor had shown no remorse, regret or responsibility for his offending. She considered that he blamed others, and described him as dangerous. She wished to have a protection order made against him.

[6] The Judge referred to the appellant’s criminal history which was primarily for dishonesty offending. The pre-sentence report writer described the likelihood of Mr Taylor reoffending as high because of the regularity of his previous offending and his tendency to act impulsively. Judge Phillips observed that Mr Taylor had told the writer that he had pleaded guilty to get the charge dealt with quickly, and that he had shown little remorse, stating that “all couples argue at some point in their relationship”.

[7] The Judge was satisfied that Mr Taylor had now been convicted of an offence involving domestic violence, that there was presently no protection order in favour of the victim and that she desired such an order. He considered there was a need for a protection order. Being satisfied that Mr Taylor was inclined to act in an impulsive way without thinking about the consequences, his dismissive attitude, and the concerns expressed by the victim, Judge Phillips considered there was a need for a protection order. He dismissed a view expressed on behalf of Mr Taylor that the violence was of such a low level that an order was not needed.

Approach to appeal

[8] An appeal against the imposition of a protection order under s 123B of the Sentencing Act is a criminal appeal.³ Accordingly, the appeal may only be allowed by this Court if it is satisfied there has been an error by the sentencing Court in imposing the order and that it should not have been imposed.⁴

The appeal

[9] Ms Henderson on behalf of Mr Taylor submitted the protection order was not necessary for the protection of the victim and therefore should not have been made. She noted that while the appellant had six convictions for violence, five of them occurred over 20 years ago and the most recent was in 2003. None of these related to the current victim or had been categorised as involving family violence.

[10] Ms Henderson was critical of the Judge’s reliance on the report writer’s assessment of Mr Taylor being impulsive, and suggested there was no evidence as to how that view was reached. She submitted Mr Taylor may be at high risk of reoffending in general, but not necessarily in a violent way. This, it was submitted, limits the risk he poses to the victim and the necessity of a protection order.

[11] It was submitted on Mr Taylor’s behalf that his behaviour giving rise to the current offending did not form part of a pattern of behaviour from which the victim needs protection. Ms Henderson argued no evidence of past violence by Mr Taylor towards the victim had been before Judge Phillips, and that the report writer, notwithstanding Mr Taylor’s long list of previous convictions, assessed him as having a low risk of harm to others.

[12] Ms Henderson considered that it was particularly material that Mr Taylor had been sentenced to supervision and would be required to attend counselling and programmes as directed by probation services. She submitted that these would provide an opportunity to Mr Taylor to address the Court’s concerns and that, because he was the subject of a sentence of supervision, any ongoing issues could be

³ Holloway v Police [2014] NZHC 1626.

⁴ Criminal Procedure Act 2011, s 250(2) and (3).

monitored. In this regard, Ms Henderson referred to the approach taken by Ellis J in Ofisa v Police, where a protection order was found not to be necessary for the victim’s protection.⁵ A relevant factor in arriving at that conclusion was that the defendant had been sentenced to supervision and would be required to attend appropriate courses and programmes.

Discussion

[13] In order for a Court to make a protection order under s 123B of the Sentencing Act, the Court is required to be satisfied the making of the order is necessary for the protection of the victim of the offence.⁶ The inquiry as to whether a protection order is necessary does not need to be overly refined, nor is an extensive discussion of the necessity for such an order required to be undertaken.⁷ In relation to the test of whether an order is necessary, the Court of Appeal had recently observed, in the context of an order under the Domestic Violence Act 1995, that the Act is designed not only to protect a person from future violence but the reasonably held fear of violence.⁸

[14] The Court of Appeal observed that the inquiry required is of a predictive nature, but past behaviour is the most reliable guide to future conduct. While some behaviour may appear to be minor or trivial when viewed in isolation, or considered to be unlikely to reoccur, the Court, at least under the Domestic Violence Act, is required to “consider whether the behaviour forms part of a pattern of behaviour in respect of which the applicant needs protection”.⁹

[15] The Court further noted that the purpose of a protection order is to ensure not only the applicant’s safety from the risk of future violence but also that the applicant actually feels safe. If the Court is satisfied of the existence of past violence and of the victim’s reasonable subjective fear of future violence, there will be an apparent need for a protection order unless other factors are capable of displacing that need.¹⁰ The

⁵ Ofisa v Police [2017] NZHC 2157.

⁶ Sentencing Act 2002, s 123B.

⁷ SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [22]; Broderick v Police [2014] NZHC 133,

[2014] NZFLR 406 at [21].

⁸ SN v MN, above n 7, at [23].

⁹ SN v MN, above n 7, at [24]; Domestic Violence Act 1995, s 14(3).

¹⁰ SN v MN, above n 7, at [26].

Court of Appeal emphasised that the assessment is an evaluative exercise, and it is not a question of weighing factors pointing to an order being necessary against those which operate to the contrary.¹¹

[16] Neither Ms Henderson nor Ms Ure for the Crown considered any different approach to that taken under the Domestic Violence Act was required when assessing whether a protection order is necessary under s 123B(2) of the Sentencing Act 2002.

Decision

[17] I consider there was a proper basis available to Judge Phillips to find that a protection order was necessary. The information from the victim indicates she is afraid of the appellant and wishes to have a protection order against him as part of a plan for managing the risk she perceives Mr Taylor presents to her safety. I accept Ms Ure’s submissions that it is difficult to criticise the Judge’s acceptance of the report writer’s view of Mr Taylor’s impulsivity contributing to his risk of reoffending when assessed in light of the assault which was motivated by his frustration at the victim’s driving.

[18] Mr Taylor’s lack of remorse or insight into his offending is also an important factor. He appears to have little motivation to address the underlying causes of the domestic violence and this bears on the risk of further violence. It also undermines the confidence the Court can have in the efficacy of courses and programmes Mr Taylor may be required to undertake to address his behaviour. Mr Taylor’s failure to acknowledge any genuine responsibility for assaulting his partner can only add to the victim’s fears for her safety. It is an indicator which supports the making of a protection order to assist her to feel safe.

[19] I do not consider the fact that Mr Taylor was charged with assault under the Summary Offences Act detracts from the need for a protection order. The charge, no doubt, reflects the level of physical force used. However, as is apparent from the circumstances of the offending, the incident involved an episode of physical abuse. There is no reason to consider the victim’s concerns regarding her safety and her fear of Mr Taylor, are other than genuinely held.

¹¹ At [24].

[20] The strongest point made by Ms Henderson on the appeal was that while Mr Taylor was at high risk of reoffending, his assessed risk of harm to others was considered to be low because the present offending represented his first offence of violence since 2003. An issue therefore arises as to whether the conduct for which Mr Taylor was before the Court formed part of a pattern of behaviour from which the victim needed protecting.¹²

[21] On the appeal, the Crown provided information which was not before Judge Phillips in the District Court. Inquiries made of the police by Ms Ure regarding Mr Taylor’s involvement in family violence revealed some 10 such events between November 2011 and June 2017. Two of those occurrences are irrelevant because he was, in fact, the victim. Five of the occurrences, however, involved Mr Taylor and the victim’s children. On one of those occasions, Mr Taylor was warned for slapping a child across the face. Importantly, the victim in the present case is identified as being involved in two recent incidents involving Mr Taylor on 12 June 2017 and 19 February 2016. The June 2017 matter involved Mr Taylor yelling and punching a wall and throwing a cup. The February 2016 matter resulted in Mr Taylor being issued with a Police Safety Order.

[22] This information is relevant to the assessment of the necessity of a protection order. The two most recent events involving the victim in isolation might be considered minor or trivial. However, when considered together with the assault for which Mr Taylor was before the Court, they constitute a pattern of behaviour which would warrant a protection order. The concerns expressed by the victim in her victim impact statement resonate with even more force when the earlier instances of domestic violence are taken into account.

[23] Ms Henderson objected to the admission of what was effectively further evidence in the form of the police notings of past family violence occurrences. Clearly, the information is not fresh, it being a matter of record held by the police which could have been made available to the District Court at the time Mr Taylor was sentenced and the order made. However, the information is credible and cogent to the

¹² SN v MN, above n 7, at [24].

issue of whether an order should issue. While such material is not fresh, overall, the overarching interests of justice favour the admission of such evidence on the appeal.

[24] Leaving aside whether it is strictly necessary to apply the usual principles for the admission of further evidence on a sentence appeal, the reality of the position is that it is inevitable that, even if the new information was not received on the appeal, a subsequent application under the Domestic Violence Act which referenced that information would succeed. The situation is not dissimilar to that faced by Andrews J in Broderick v Police, where further information was made available to the appeal Court which left it in no doubt that, should the appeal be allowed and the order quashed, a fresh application for a protection order would inevitably result in an order being made.¹³ On that basis, Andrews J dismissed the appeal.

[25] In summary, I consider there were adequate grounds available to Judge Phillips to issue the protection order. Any concerns that arise from Ms Henderson’s thorough submissions challenging the District Court decision are allayed by the further information that has been provided by the Crown. In my view, when that material is brought into account, no question arises as to there being other than a proper foundation for a protection order.

Result

[26] Being satisfied that the District Court did not err in the making of the order and that, in any event, on the information now to hand, the basis for such an order is clear, the appeal against the imposition of the protection order is dismissed.

Solicitors:

Deborah Henderson Barrister, Dunedin RPB Law, Dunedin

¹³ Broderick v Police, above n 7.