Whiteford v R - [2020] NZCA 130

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA163/2019
[2020] NZCA 130

BETWEEN	STEVEN RICHARD PAUL WHITEFORD Appellant
AND	THE QUEEN Respondent

Hearing:	27 February 2020
Court:	Miller, Dobson and Moore JJ
Counsel:	N P Chisnall and S A Mandeno for Appellant M R Davie for Respondent
Judgment:	30 April 2020 at 10.00am

JUDGMENT OF THE COURT

AApplication for leave to adduce further evidence on appeal is granted.
BThe appeal is allowed.
CThe sentence of five years and two months’ imprisonment is quashed and substituted with a sentence four years and five months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Introduction

Mr Whiteford appeals his sentence of five years and two months’ imprisonment imposed in respect of 34 charges including methamphetamine dealing offences. The total amount of methamphetamine found in his possession was around 53 grams.
He was sentenced prior to this Court releasing its guideline judgment in Zhang v R.[1] Mr Chisnall, for Mr Whiteford, accepts that the starting point could not be challenged under the former sentencing regime,[2] but asserts that the application of the new guidelines produces a different result, both in terms of the starting point and mitigating personal factors.
[1]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[2]R v Fatu [2006] 2 NZLR 72 (CA).
Zhang only applies to sentence appeals filed before the judgment was delivered,[3] where the application of the judgment would result in a more favourable outcome to the appellant.[4]
[3]R v Zhang was delivered on 21 October 2019.
[4]Zhang v R, above n 1, at [188].
The notice of appeal was filed on 12 April 2019, which is some six months before Zhang was delivered. Both parties proceeded on the basis that Zhang applies.

Approach to appeal

Consistent with the approach adopted in other recently decided appeals, the examination of the sentence passed below does not focus on a search for error but rather involves an assessment of the appropriate outcome when considered against the new guidelines.[5]

The facts

[5]Su v R [2020] NZCA 128; and Royal v R [2020] NZCA 129.

The offending in question covered a five month period during the latter half of 2017. It is most conveniently viewed in four parts.
On 16 July 2017, Mr Whiteford was seen by a passing Police patrol. He was seated in a car parked in Otara, Auckland. He was arrested on an active warrant and taken back to the Police station where he was searched. In his clothing was located a small bag which contained 20 cannabis tinnies, a larger tinfoil package containing cannabis, $352 in cash, electric scales and a glass methamphetamine pipe. He was charged with possession of cannabis for supply and possession of utensils. At his later jury trial on these charges he claimed he was a drug user rather than dealer. On 14 June 2018, the jury returned verdicts of guilty.
The second…

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 Whiteford v R

Details

AGLC: Whiteford v R [2020] NZCA 130
Case: [2020] NZCA 130
Decision Date: 30 April 2020 at 10.00am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Steven Richard Paul Whiteford, who was sentenced to five years and two months’ imprisonment for methamphetamine dealing offences. Whiteford contested the sentence, arguing that the application of new guidelines in Zhang v R would result in a more favourable outcome. The court examined the sentence imposed and assessed the appropriate outcome based on the new guidelines.

Whiteford was found in possession of around 53 grams of methamphetamine and was involved in drug dealing activities over a five-month period. The court accepted that the starting point of five years’ imprisonment for the methamphetamine charges was appropriate, but found that Whiteford’s personal mitigating factors warranted a discount.

The court allowed the appeal and substituted the sentence with a term of four years and five months’ imprisonment. The court found that Whiteford’s health issues and the exacerbation of his condition in prison warranted a discount, and that this discount should be calculated as 10 per cent of the starting point plus uplifts, before the guilty plea discount and other discounts are applied.

The final orders of the court were to allow the appeal, quash the sentence of five years and two months’ imprisonment, and substitute it with a sentence of four years and five months’ imprisonment.

Orders