Kahui v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young J
Judgment Date01 May 2013
Neutral Citation[2013] NZSC 45
Docket NumberSC 41/2013
Date01 May 2013
Bradley Matenga Kahui
The Queen

[2013] NZSC 45

William Young J

SC 41/2013


Application for bail — applicant sentenced to four month on charges relating to cannabis possession and cultivation — at same time he was convicted and discharged on an assault charge — applicant appealed on basis that six month cumulative term of imprisonment should have been imposed on assault charge to allow a five month pre-trial detention to be counted against total sentence imposed, resulting in the applicant's immediate release — s70(2) Bail Act 2000 allowed Supreme Court to grant bail if the appellant was in custody “only under the conviction to which the appeal related” — applicant was appealing assault charge but was in custody on cannabis charges —whether there was jurisdiction to grant bail.


A J Bailey for Applicant

M R Davie for Crown

  • A The application for bail is refused.

  • B Any further submissions from the applicant are to be filed and served by Friday 3 May at 5.00pm and submissions from the respondent are to be filed and served by Tuesday 7 May at 5.00pm.

JUDGMENT OF William Young J

William Young J

The applicant is serving a sentence of four months imprisonment imposed on 26 March 2013 for obstruction, cultivation of cannabis and possession of utensils. As part of the same exercise, the sentencing Judge convicted and discharged him on a charge of assault.


The assault offending occurred first in time and the applicant spent five months in custody before being released on bail. It seems that he had been remanded in custody because at the time of his arrest for the assault, he was on bail for other offending (burglary and attempting to pervert the course of justice). When he was sentenced to home detention on those charges, he was released on bail on the remaining charge of assault. The three other offences were committed while he was on bail and serving his sentence of home detention.


The applicant's complaint is directed to the way the Judge dealt with the assault charge. He says that the appropriate sentence was a short cumulative term of imprisonment. Had such a sentence been imposed, the five month pre-trial detention in relation to the assault charge would have counted against the total sentence imposed and, providing the sentence imposed on the charge of assault was no more than six months imprisonment, would have resulted in the...

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