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Sentencing Act 2002

Sentences, orders, and related matters - Discharge and miscellaneous orders - Protection orders

123H: Appeal against decision to make or refuse to make protection order under section 123B is appeal against sentence

You could also call this:

"Appealing a protection order decision is like appealing a sentence for a crime."

Illustration for Sentencing Act 2002

When you appeal a decision to make or refuse a protection order under section 123B, you are actually appealing the sentence given for an offence. This appeal is made under subpart 4 of Part 6 of the Criminal Procedure Act 2011. You cannot appeal this decision under sections 177 to 181 of the Family Violence Act 2018.

If you file an appeal about a protection order made under section 123B, the court must send a copy to the Family Court nearest to where the victim lives. The protection order is still in place unless the appeal court says it should be suspended, as stated in section 343 of the Criminal Procedure Act 2011. This means the order does not automatically stop just because you are appealing.

If the appeal court makes a decision about the protection order, it must send a copy to the Family Court nearest to where the victim lives. The Family Court must then update its records with this new information. The appeal court can also send the case back to the original court and tell it what to do next, as stated in section 251(2)(c) and (3), 257(2), or 259(5)(b) of the Criminal Procedure Act 2011.

You can still change or cancel a protection order made under section 123B using sections 108(1), 109(1), 111, 112, and 113 of the Family Violence Act 2018, even if you are appealing. However, if the Family Court changes or cancels the order while an appeal is happening, it must tell the appeal court about the change. This is only necessary if the appeal court is still dealing with the case and has not yet made a final decision.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=LMS220566.

Topics:
Crime and justice > Criminal lawCrime and justice > Courts and legal helpCrime and justice > Victim support
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Part 2Sentences, orders, and related matters
Discharge and miscellaneous orders: Protection orders

123HAppeal against decision to make or refuse to make protection order under section 123B is appeal against sentence

  1. An appeal against a decision to make or refuse to make a protection order under section 123B is an appeal under subpart 4 of Part 6 of the Criminal Procedure Act 2011 against the sentence imposed for an offence (and the decision cannot be appealed against under sections 177 to 181 of the Family Violence Act 2018).

  2. If a notice of appeal or notice of an application for leave to appeal under Part 6 of the Criminal Procedure Act 2011 is filed in a court in respect of a protection order made under section 123B, the court must send a copy to the Family Court nearest to where the victim of the offence resides.

  3. No protection order made under section 123B is suspended just because a person files a notice of appeal or notice of an application for leave to appeal under Part 6 of the Criminal Procedure Act 2011, unless the appeal court expressly directs that the protection order be suspended (see section 343 of that Act).

  4. If, on an appeal under subpart 4 of Part 6 of the Criminal Procedure Act 2011, a court suspends, varies, or discharges, or makes, a protection order made under section 123B (or the appeal is withdrawn or otherwise finally determined), the court must send a copy of the order (or a notice of the withdrawal or other final determination of the appeal) to the Family Court nearest to where the victim of the offence resides.

  5. Subsection (4) does not prevent the appeal court (whether the appeal is a first, or a further, appeal) remitting the sentence to the court that imposed it, and directing that court to take any action, under section 251(2)(c) and (3), 257(2), or 259(5)(b) of the Criminal Procedure Act 2011.

  6. On receipt of a copy of an order or a notice under subsection (4), the Registrar of the Family Court must enter the order or notice in the records of the Family Court.

  7. This section does not prevent a protection order made under section 123B from being varied, discharged, or enforced under any of sections 108(1), 109(1), 111, 112, and 113 of the Family Violence Act 2018 (as applied by section 123G(3) of this Act), or a decision made under any of those sections (as so applied) from being appealed against under sections 177 to 181 of that Act (as so applied).

  8. However, a court that varies or discharges under subsection (7) a protection order made under section 123B must copy the variation or discharge to the appeal court under the Criminal Procedure Act 2011 if—

  9. the Family Court has been sent under this section a notice of appeal or notice of an application for leave to appeal under Part 6 of the Criminal Procedure Act 2011 in respect of the order; and
    1. the records of the Family Court contain no entry under this section of a notice of the withdrawal or final determination of the appeal under the Criminal Procedure Act 2011 against the order.

      Notes
      • Section 123H: inserted, on , by section 67 of the Family Violence (Amendments) Act 2018 (2018 No 47).