Kahui v R - [2013] NZCA 124

IN THE COURT OF APPEAL OF NEW ZEALAND

CA190/2013
[2013] NZCA 124

BETWEEN BRADLEY MATENGA KAHUI
Appellant

AND THE QUEEN
Respondent

Hearing: 16 April 2013

Court: Harrison, Allan and Clifford JJ

Appearances: A J Bailey for appellant
M R Davie for respondent

Judgment: 29 April 2013 at 10 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Allan J)

Introduction

In this slightly unusual appeal, Mr Kahui asks this Court to quash his conviction and discharge on a charge of assault,[1] and substitute a short sentence of imprisonment. The appeal is aimed at securing the benefit of a credit for time served while on remand. In order to explain the basis upon which the appeal is brought, it is necessary to outline Mr Kahui’s offending history in some detail.

Background

[1] R v Kahui DC Christchurch CRI-2012-009-6914, 26 March 2013.

Along with some associates, Mr Kahui took a hot water cylinder from a private property, and was subsequently charged with burglary. A little later he sent a series of threatening texts to a woman who lived in an adjacent house and who had witnessed the burglary. That resulted in a charge of attempting to pervert the course of justice. Mr Kahui was released on bail by the District Court on those charges.
On 17 February 2012, while still on bail, Mr Kahui committed the assault to which the present appeal relates. He was charged and remanded in custody. At a later date (we do not know precisely when) he entered a plea of not guilty.
On 20 July 2012, Mr Kahui came before Judge Farish in the Christchurch District Court for sentence on the charges of burglary and attempting to pervert the course of justice. The Judge adopted a starting point of 25 months imprisonment for the offending, but ultimately sentenced Mr Kahui to eight months home detention with judicial monitoring.[2] At that point he was granted bail on the outstanding assault charge.
[2] R v Kahui DC Christchurch CRI-2012-009-7464, 20 July 2012.
Mr Kahui’s home detention conditions prohibited him from consuming alcohol or illicit drugs and directed that he undertake the Te Waka Tapu programme for alcohol and drug abuse. Judge Farish told him that she was “… willing to take a chance on you Mr Kahui”.[3]
[3] At [14].
The Judge expressly warned him that if he breached the terms of his home detention sentence, he would be sentenced to imprisonment.
Regrettably, Mr Kahui failed to take advantage of the opportunity extended to him by the Judge. On 3 October 2012, while on home detention, he obstructed the police. He was charged and rebailed.
On 26 December 2012, a search warrant was executed at Mr Kahui’s address. There the police discovered that he had been cultivating cannabis at the rear of his property. That was particularly disappointing, given that he had recently undertaken the Waka Tapu course. Again, he was charged and rebailed.
A further search warrant was executed…

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 Kahui v R

Details

AGLC: Kahui v R [2013] NZCA 124
Case: [2013] NZCA 124
Decision Date: 29 April 2013

CaseChat Overview and Summary

Bradley Matenga Kahui appealed against his conviction and sentence for assault. The New Zealand Court of Appeal was asked to consider whether the sentencing pattern adopted by the District Court judge resulted in the loss of credit for time served while on remand. Mr Kahui argued that he was entitled to a credit for time served against his sentence for the assault charge, as well as for the other charges to which he pleaded guilty. The Court of Appeal held that the judge had a broad discretion to convict and discharge Mr Kahui on the assault charge, as well as to sentence him to imprisonment for the other charges. The sentencing pattern was within the available range, and the Court of Appeal was not persuaded that the judge erred in her approach. The appeal against sentence was dismissed.

Orders