Karekare v The Queen
[2019] NZCA 428
•12 September 2019 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA212/2019 [2019] NZCA 428 |
| BETWEEN | ISAAC MANUEL KAREKARE |
| AND | THE QUEEN |
| Court: | Gilbert, Venning and Woolford JJ |
Counsel: | B J Hesketh for Applicant |
Judgment: | 12 September 2019 at 3 pm |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Mr Karekare pleaded guilty in the District Court at Tauranga to three charges arising out of an incident that occurred on 3 November 2017 involving his former partner — wilful damage, male assaults female and theft. Mr Karekare was sentenced by Judge Mabey QC on 4 February 2019 to 10 and a half months’ imprisonment for this offending.[1]
[1]R v Karekare [2019] NZDC 1815.
Mr Karekare had earlier convictions for serious offending against the same victim in 2013, including assault with intent to injure, common assault and indecent assault for which he was sentenced to four years’ imprisonment. Mr Karekare was also sentenced to two months’ imprisonment for male assaults female involving the same victim in 2011.
Judge Mabey declined the Crown’s application for a protection order for the protection of the victim under s 123B of the Sentencing Act 2002.[2] The Judge was satisfied that the jurisdictional requirements in s 123B(1) were met and the victim did not object to the making of the order in terms of s 123B(2)(b).[3] However, he was not satisfied the making of an order was necessary for the victim’s protection in terms of s 123B(2)(a).[4]
[2]At [18].
[3]At [11].
[4]At [12]–[18].
The Crown appealed to the High Court against the Judge’s refusal to make a protection order. The appeal was allowed by Jagose J who made a protection order for reasons given in his judgment delivered on 16 April 2019.[5]
[5]Solicitor-General v Karekare [2019] NZHC 849.
Mr Karekare now applies for leave to bring a second appeal against the making of this order. He seeks to challenge the concurrent factual findings in the courts below that the victim did not object to the making of the order in terms of s 123B(2)(b). The proposed appeal is focused solely on whether this jurisdictional requirement was satisfied.
Section 253 of the Criminal Procedure Act 2011 provides that the Court must not grant leave for a second appeal unless it is satisfied the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.
Mr Karekare argues that the proposed appeal raises a matter of general or public importance as follows:
What is the appropriate admissible evidence and standard of proof required under s123B (2) (b) for the Court to be satisfied the victim does not object to the making of a protection order?
The proposed appeal has no prospect of success. The victim signed a formal request for a protection order dated 1 February 2019 and this was given to the Judge at sentencing. There was no evidence of any change in the victim’s position when sentencing occurred, just three days after she signed the request. There was plainly sufficient proof in this case that the victim did not object to the making of an order. Judge Mabey made the inevitable factual finding that the victim did not object to the making of such an order. Indeed, the issue does not appear to have been contested in either the District Court or the High Court.
The proposed appeal does not raise any question of general or public importance. There is no appearance of any miscarriage of justice. The application for leave to appeal must be declined.
Result
The application for leave to bring a second appeal is declined.
Solicitors:
Adams Hesketh, Tauranga for Applicant
Crown Law Office, Wellington for Respondent
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