M J English and C A Hardy for Appellant I S Auld for Respondent
Judgment:
27 June 2023 at 10.00 am
JUDGMENT OF THE COURT
ALeave to appeal is granted.
B The appeal is allowed.
C The sentence of four years and two months imprisonment imposed by the High Court is quashed.It is substituted for a two month and two day sentence of home detention, on the same conditions as were imposed in the District Court, commencing on 27 June 2023 and expiring on 29 August 2023.
In November 2021 Rhys McCaslin-Whitehead pleaded guilty to 23 charges involving the importation and supply of MDMA and LSD. On 29 August 2022 Mr McCaslin-Whitehead was sentenced by Judge Sellars KC in the District Court to 12 months’ home detention.[1] With the permission of the Solicitor-General, the Crown appealed that sentence.[2] In the High Court Davison J, in a decision released on 19 December 2022, quashed that sentence and replaced it with one of four years and two months’ imprisonment.[3]
[1]R v McCaslin [2022] NZDC 18355 [District Court judgment].
Mr McCaslin-Whitehead now applies for leave to bring a second appeal against that High Court decision.[4] Mr McCaslin-Whitehead’s application for leave and substantive appeal are to be determined together.
Background
Mr McCaslin-Whitehead’s offending
[4]On 22 December 2022 Mr McCaslin-Whitehead was granted bail pending his appeal by Miller J. See McCaslin‑Whitehead v R [2022] NZCA 663 [Court of Appeal bail judgment].
The charges to which Mr McCaslin-Whitehead pleaded guilty involved him having imported a total of approximately 11 kg of MDMA over five separate transactions and 5,000 tabs of LSD in another transaction. That offending came to the attention of the police during an investigation targeting money laundering. Mr McCaslin-Whitehead had used the money launderer who was the target of that investigation to facilitate payment for those drugs to the Bitcoin wallet of his supplier. When police executed a search warrant at Mr McCaslin-Whitehead’s address items seized included his phone, a large quantity of cannabis and small quantities of LSD and MDMA. Analysis of data from that phone revealed not only communications between Mr McCaslin-Whitehead and his supplier using encrypted applications, but also evidence of Mr McCaslin-Whitehead’s activities in supplying the drugs he obtained to persons within New Zealand. The Crown estimated that, based on what it described as a conservative estimate, the street value of the MDMA would be between $1 million to $1.65 million.
As a result, Mr McCaslin-Whitehead faced, and pleaded guilty to, the following charges:
(a)eight charges of importing the controlled drugs LSD and MDMA, LSD being Class A and MDMA Class B;
(b)one charge of…
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.
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Details
AGLC
McCaslin-Whitehead v R [2023] NZCA 259
Case
[2023] NZCA 259
Decision Date
CaseChat Overview and Summary
In the case of McCaslin-Whitehead v R, the Court of Appeal of New Zealand granted leave to appeal and allowed the appeal against the sentence imposed on Rhys McCaslin-Whitehead. McCaslin-Whitehead was originally sentenced to 12 months’ home detention by the District Court for importing and supplying controlled drugs, as well as other related charges. The Crown appealed the sentence, arguing that it was manifestly inadequate, and the High Court subsequently replaced the sentence of home detention with one of four years and two months’ imprisonment. McCaslin-Whitehead then applied for leave to bring a second appeal against the High Court decision.
The Court of Appeal considered the grounds of appeal, which included whether the High Court erred in concluding that the District Court sentence was manifestly inadequate and in re-determining the starting point for the offending when that was not in issue on appeal. The Court found that the High Court's approach in reviewing the starting point sentence was within range, albeit at the lower end of the range. The Court also concluded that the 30 per cent discount provided by the District Court Judge for personal factors was excessive, and that the appropriate discount should be no more than 20 per cent.
However, the Court of Appeal determined that the appropriate appellate response was to decline to interfere with the District Court's sentence of home detention. The Court gave particular weight to society's interests in McCaslin-Whitehead's rehabilitation, and to his personal interests in that outcome and those of his family. The Court of Appeal imposed a sentence of home detention, lasting until the expiry of what would have been McCaslin-Whitehead's sentence of home detention had the District Court sentence remained in place – 29 August 2023.
Leave to appeal is granted. The appeal is allowed. The sentence of four years and two months imprisonment imposed by the High Court is quashed. It is substituted for a two month and two day sentence of home detention, on the same conditions as were imposed in the District Court, commencing on 27 June 2023 and expiring on 29 August 2023.