| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA190/2013 [2013] NZCA 124 |
| BETWEEN BRADLEY MATENGA KAHUI |
| AND THE QUEEN |
| Hearing: 16 April 2013 |
| Court: Harrison, Allan and Clifford JJ |
| Appearances: A J Bailey for appellant |
| 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…
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- AGLC
- Kahui v R [2013] NZCA 124
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- [2013] NZCA 124
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