TAYLOR v NEW ZEALAND POLICE [2019] NZHC 874
Section 123B requires a conviction for a domestic violence offence; a discharge without conviction is an acquittal and therefore the statutory prerequisites for s123B were not met; s106(3) does not empower the court to make a discretionary s123B protection order after discharge without conviction; consequently the...
Source-derived case information.
- Citation
- [2019] NZHC 874
- Parties
- Appellant: Monique Anne Taylor; Respondent: New Zealand Police
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 18 April 2019
- Procedural Posture
- Criminal Appeal / Appeal to High Court (on the Papers)
- Outcome
- Appeal allowed; protection order set aside.
- Legal Topics
- Protection Order, Discharge Without Conviction, Jurisdiction, Sentencing Act S106, Domestic Violence Act S123 B
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monique Anne Taylor
Appellant
New Zealand Police
Respondent
Procedural Posture
Criminal Appeal / Appeal to High Court (on the Papers)
Legal Issues
- 1 Whether the District Court had jurisdiction under s 123B of the Domestic Violence Act 1995 to make a protection order where the offender was discharged without conviction
- 2 Whether a discharge without conviction (deemed acquittal) prevents the application of s 123B protection orders
- 3 Whether s 106(3) of the Sentencing Act 2002 permits the making of a s 123B protection order despite a discharge without conviction
Ratio Decidendi
Section 123B requires a conviction for a domestic violence offence; a discharge without conviction is an acquittal and therefore the statutory prerequisites for s123B were not met; s106(3) does not empower the court to make a discretionary s123B protection order after discharge without conviction; consequently the District Court lacked jurisdiction and the protection order must be set aside.
Court Disposition
Appeal allowed; protection order set aside.
Orders
- Appeal allowed.
- The protection order made under s123B of the Domestic Violence Act 1995 is set aside.
Full Case Text
Judgment text and source record
1 paragraphs
TAYLOR v NEW ZEALAND POLICE [2019] NZHC 874 [18 April 2019]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2019-443-6[2019] NZHC 874MONIQUE ANNE TAYLORvNEW ZEALAND POLICEHearing: On the PapersCounsel: J Woodcock for AppellantC Clarke for RespondentJudgment: 18 April 2019JUDGMENT OF CLARK J[1] On 31 January 2019 Ms Taylor pleaded guilty to two charges of wilfuldamage.1 Judge Harrison discharged Ms Taylor without conviction and imposed aprotection order in favour of her former partner whose property Ms Taylor haddamaged.[2] Ms Taylor appeals the imposition of the protection order on jurisdictionalgrounds.[3] For the reasons that follow the appeal is allowed.(a) Jurisdiction to make a protection order under s 123B of the SentencingAct 2002 is grounded in the conviction of the offender for a domestic1 Summary Offences Act 1981, s 11(1)(a).violence offence. If an offender is convicted of a domestic violenceoffence and no protection order under the Domestic Violence Act 1995for the protection of the victim of the offence is in force, then s 123Bapplies.(b) Those prerequisites for application of s 123B were not met inMs Taylor's case. Ms Taylor was discharged without conviction (onwilful damage charges). A discharge without conviction is deemed tobe an acquittal.2(c) Even where an offender is discharged without conviction the Court maynevertheless make any of the orders set out at s 106(3) of theSentencing Act. In addition to the discretionary orders that may bemade under s 106(3)(a) and (b), a court may make any order that it isrequired to make on conviction.3(d) A protection order under s 123B is discretionary. Consequently, it isnot 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 madeunder paras 3(a) and (b).(e) It follows that in this case the District Court Judge lacked jurisdictionto make the protection order that was made.(f) The Crown accepts that the appeal should be allowed for the foregoingreasons.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 theDomestic Violence Act is set aside._____________________________Karen Clark JSolicitors:Crown Solicitor, New Plymouth for Respondent