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

[2013] NZSC 45


William Young J

SC 41/2013

Bradley Matenga Kahui
The Queen

A J Bailey for Applicant

M R Davie for Crown

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.

The issue was whether there was jurisdiction to grant bail.

Held: It was not surprising that there was a jurisdictional problem. It was plausible to assume that s70 was not drafted with a case of this sort in mind — where an offender sought a more, rather than a less, severe sentence. Accordingly bail was refused.

K was to file further submissions on

  • (a) The way K's pre-trial detention would have been allowed for had he been sentenced on the assault charge to a term of imprisonment to be served concurrently with the sentences imposed on the other charges.

  • (b) The allowance, if any, which was made for K's remand in custody when he came to be sentenced on the burglary and attempting to defeat the course of justice charges earlier referred to.

  • 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...

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