Solicitor-General v Karekare - [2019] NZHC 849

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2019-463-0027

[2019] NZHC 849

BETWEEN
SOLICITOR-GENERAL

Appellant

AND

ISAAC MANUEL KAREKARE

Respondent

Hearing: 16 April 2019

Appearances:

K S Grau for the appellant

B J Hesketh and D J Sheely for the respondent

Judgment:

16 April 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors:
Crown Law, Wellington Adams Hesketh, Tauranga

SOLICITOR-GENERAL v KAREKARE [2019] NZHC 849 [16 April 2019]

[1] Isaac Karekare was sentenced to ten and a half months’ imprisonment by Judge P G Mabey QC in the District Court at Tauranga on 4 February 2019.1 He also was ordered to pay $280 in reparation.

[2] Mr Karekare had pleaded guilty to charges of wilful damage,2 male assaults female,3 and theft.4 The victim of these charges is Mr Karekare’s ex-partner, against whom Mr Karekare previously had offended. They have a child together.

[3] The Crown now appeals that sentence, on the sole basis the Judge erred in failing to make a protection order against Mr Karekare pursuant to s 123B of the Sentencing Act 2002.

Approach to appeals against sentence

[4] This is a prosecutor’s appeal against sentence.5 I must allow the appeal only if I am satisfied both there is an error in the sentence, and a different sentence should be imposed.6 By analogy, the measure of error should be ‘manifest’7 – a principle “well- engrained” in this Court’s approach to sentence appeals.8 In any other case, I must dismiss the appeal.9

Jurisdiction

[5] Mr Karekare had been in custody for 14 months for the current offending prior to being sentenced. He was released immediately once sentenced on 4 February 2019.

[6] As an appeal against sentence (and not against a sentence of imprisonment), although “not heard before the date on which the person convicted has completed serving that sentence”, the appeal is not to be treated as abandoned as not heard before

1      R v Karekare [2019] NZDC 1815.
2      Summary Offences Act 1981, s 11. Maximum penalty is 3 months’ imprisonment or a fine not exceeding $2000.
3      Crimes Act 1961, s 194(b). Maximum penalty is two years’ imprisonment.
4      Crimes Act 1961, ss 219(1)(a) and 223(d). Maximum penalty is 3 months’ imprisonment.
5      Criminal Procedure Act 2011, s 246.
6      Section 250(2).
7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
8      At [33] and [35].
9      Section 250(3).

the sentence was completed.10 The purpose of that rule is to prevent a person being recalled to detention after being released.11 But imposition of a protection order nonetheless may be the subject of appeal.12 The unpalatable alternative is there is no right of appeal, if a protection order is not to be regarded included within “sentence”.

Offending

[7] Early in the evening of Friday, 3 November 2017, Mr Karekare went to his ex- partner’s address. He forced his way into the house by breaking the jamb on the locked back door. This gave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Solicitor-General v Karekare

Details

AGLC: Solicitor-General v Karekare [2019] NZHC 849
Case: [2019] NZHC 849
Decision Date: 16 April 2019

CaseChat Overview and Summary

The case of Solicitor-General v Karekare is an appeal by the Crown against a sentence imposed by Judge Mabey QC in the District Court at Tauranga. Isaac Karekare had been sentenced to ten and a half months’ imprisonment for charges of wilful damage, male assaults female, and theft, all committed against his ex-partner. The Crown appealed the sentence on the basis that the Judge erred by not making a protection order against Karekare under s 123B of the Sentencing Act 2002. The central legal issue before the High Court was whether the Judge’s decision not to impose a protection order constituted a manifest error. The High Court found that the Judge had erred by not imposing a protection order. The reasoning of the Court was that the Judge had placed undue emphasis on the victim’s failure to seek a protection order in the Family Court and had not sufficiently considered the seriousness of Karekare’s past offending against the victim and the victim’s reasonable fear of future violence. The Court concluded that the imposition of a protection order was necessary for the victim’s protection and that the Judge’s failure to do so was a manifest error. The appeal was therefore allowed, and a protection order was imposed.

Orders