He aha te kai ō te rangatira? He Kōrero, he kōrero, he kōrero.

What is the food of the leader? It is knowledge. It is communication.

At BVA The Practice we strive to be leaders in our field and share our knowledge with the community. The following article discusses the breach of protection order sentencing process.

When should a history of domestic violence be considered in sentencing a defendant for breaching a protection order? Why is that important? BVA The Practice lawyer, Joshua Harvey, addresses this question along with the importance of a consistent and appropriate breach of protection order sentencing process.

How we assess and sentence breach of protection order offending is an important issue because of the prevalence and significance of family violence in New Zealand. Family violence permeates all sectors of society and is not limited to the lower socioeconomic demographic. The effects of family violence do not just affect the complainant and defendant but also tends to have long term ramifications for children of the relationship.

A protection order is a declaration of the Court that someone is a protected person. The purpose of a protection order is to provide safety for the protected person. The order operates by prescribing certain rules of interaction that must be followed under threat of prosecution. A common example of a breach of protection order occurs where a protected person asks the person named in the order to leave and the named person refuses. The named person will be in breach of that condition and is liable to be prosecuted. Breaching a protection order has a maximum sentence of three years imprisonment.

Sentencing is traditionally a three step process. Step one involves assessing a ‘starting point’. A starting point assesses the gravity of the offending by looking at factors that are strictly related to the offending. For example, ‘was a weapon used’ or ‘how badly was the victim hurt’. These sorts of factors vary from case to case. Step two involves the assessment of personal aggravating and mitigating factors such as ‘does the defendant have a criminal record’ or ‘is the defendant a youth’. Any uplift or discount will always be relative to the starting point. Finally, stage three involves an assessment of whether credit is appropriate for the defendant’s guilty plea, and if so, how much.

There is a growing understanding in the New Zealand judicial system that family violence is more nuanced in nature than other sorts of offending. The creation of the Family Violence Court is evidence of that understanding. In sentencing, the Courts also tend to depart from traditional methodology. Where a defendant’s relevant history normally forms part of an uplift under step two, the Courts have begun incorporating this analysis into the step one ‘starting point’. In Crean v Police the Court commented “the breaching of…protection orders is one of those types of offending where prior convictions are integral to the assessment of the gravity if the index offending”. This has the effect of giving the most weight to the history of family violence which underlies the offending. Sadly, breach of protection order offending is often accompanied by a history of family violence. It is often this history which characterises the offending. As an example, breaching a requirement to leave when asked may not seem that bad in and of itself, however, where conflict or resistance is historically met by violence, the refusal to leave takes on an entirely different character. Separating the seriousness of the offence from the history of the offending also unfairly minimises the harm the offending has on the victim.

The importance of accurately assessing culpability cannot be understated. Sentencing serves a social function wider than simply punishing or rehabilitating an individual. Sentencing is a statement to the community, not just that this offending is wrong, but also how wrong it is. This is the concept of denunciation. As a society, the law provides a measure of social value, we know something is wrong because it is illegal, we know some things are worse than others because the punishment is more severe. Imposing suitable sentences in cases involving repeated breaches of protection orders makes a statement to the community that repeated offending is not a tolerable action in society.

A counter argument would suggest that a defendant should appear before the Court for sentencing on their current offence and should not to be punished again for their previous offending. While this principle is not to be overlooked, sentencing does not occur in a vacuum nor is the Court blind. Previous convictions for breaches of a protection order are often relevant to the effect on the victim, which is a statutory culpability factor influencing the starting point. To ignore the history of the relationship would be artificial and prevent proper analysis of the gravity of the offending.

Although this approach differs from the orthodox sentencing process, it appears to offer the most appropriate and considered outcome. The breach of protection order sentencing process taken by the Courts sends a clear and poignant message to victims that this type of offending is not okay in our communities.

– Josh Harvey, Lawyer, BVA | The Practice

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