New Zealand Acts

SENTENCING ACT 2002 - SECT 123H

123H Appeal 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2011 , a court suspends, varies, or discharges, or makes, a protection order made under section 123B (or the appeal is withdrawn or otherwise finally determined), the court must send a copy of the order (or a notice of the withdrawal or other final determination of the appeal) to the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—

a) 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

b) 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.

History: Section 123H: inserted, on 1 July 2019, by section 67 of the Family Violence (Amendments) Act 2018 (2018 No 47).