KAREKARE v R [2019] NZCA 428

KAREKARE v R [2019] NZCA 428 [12 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA212/2019[2019] NZCA 428BETWEEN ISAAC MANUEL KAREKAREApplicantAND THE QUEENRespondentCourt: Gilbert, Venning and Woolford JJCounsel: B J Hesketh for ApplicantA D H Colley for RespondentJudgment:(On the papers)12 September 2019 at 3 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Karekare pleaded guilty in the District Court at Tauranga to three chargesarising out of an incident that occurred on 3 November 2017 involving his formerpartner — wilful damage, male assaults female and theft. Mr Karekare was sentencedby Judge Mabey QC on 4 February 2019 to 10 and a half months' imprisonment forthis offending.11 R v Karekare [2019] NZDC 1815.[2] Mr Karekare had earlier convictions for serious offending against the samevictim in 2013, including assault with intent to injure, common assault and indecentassault for which he was sentenced to four years' imprisonment. Mr Karekare wasalso sentenced to two months' imprisonment for male assaults female involvingthe same victim in 2011.[3] Judge Mabey declined the Crown's application for a protection order forthe protection of the victim under s 123B of the Sentencing Act 2002.2 The Judge wassatisfied that the jurisdictional requirements in s 123B(1) were met and the victim didnot object to the making of the order in terms of s 123B(2)(b).3 However, he was notsatisfied the making of an order was necessary for the victim's protection in terms ofs 123B(2)(a).4[4] The Crown appealed to the High Court against the Judge's refusal to makea protection order. The appeal was allowed by Jagose J who made a protection orderfor reasons given in his judgment delivered on 16 April 2019.5[5] Mr Karekare now applies for leave to bring a second appeal against the makingof this order. He seeks to challenge the concurrent factual findings in the courts belowthat 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 wassatisfied.[6] Section 253 of the Criminal Procedure Act 2011 provides that the Court mustnot grant leave for a second appeal unless it is satisfied the appeal involves a matterof general or public importance or a miscarriage of justice may have occurred or mayoccur unless the appeal is heard.[7] Mr Karekare argues that the proposed appeal raises a matter of general orpublic importance as follows:2 At [18].3 At [11].4 At [12]–[18].5 Solicitor-General v Karekare [2019] NZHC 849.What is the appropriate admissible evidence and standard of proof requiredunder s123B (2) (b) for the Court to be satisfied the victim does not object tothe making of a protection order?[8] The proposed appeal has no prospect of success. The victim signed a formalrequest for a protection order dated 1 February 2019 and this was given to the Judgeat sentencing. There was no evidence of any change in the victim's position whensentencing occurred, just three days after she signed the request. There was plainlysufficient 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 tothe making of such an order. Indeed, the issue does not appear to have been contestedin either the District Court or the High Court.[9] The proposed appeal does not raise any question of general or publicimportance. There is no appearance of any miscarriage of justice. The application forleave to appeal must be declined.Result[10] The application for leave to bring a second appeal is declined.Solicitors:Adams Hesketh, Tauranga for ApplicantCrown Law Office, Wellington for Respondent