Rhys McCaslin-Whitehead v R

• Jurisdiction: New Zealand
• Judge: Clifford J
• Judgment Date: 27 June 2023
• Neutral Citation: [2023] NZCA 259
• Court: Court of Appeal
• Docket Number: CA713/2022

[2023] NZCA 259

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court: Clifford, Wylie and Whata JJ

CA713/2022

Between

Rhys McCaslin-Whitehead

Appellant

and

The King

Respondent

Counsel:

M J English and C A Hardy for Appellant

I S Auld for Respondent

Criminal Sentence — appeal against sentence of 4 years and 2 months imprisonment imposed for the importation and supply of MDMA and LSD — sentence increased on an appeal by the Crown — sentencing discretion — discounts for personal factors — discounts and the totality principle — Sentencing Act 2002

The appeal was allowed. A sentence of home detention was imposed, lasting until the expiry of what would have been MW's sentence of home detention had the DC sentence remained in place.

• A Leave 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.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Clifford J)

Introduction

1 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

2 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

3 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

4 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 supplying LSD;

• (c) two charges of supplying the Class B controlled drug MDMA;

• (d) seven charges of money laundering;

• (e) unlawful possession of explosives;

• (f) two charges of unlawful possession of a firearm;

• (g) cultivating cannabis;

• (h) possession of the Class A controlled drug LSD for supply; and

• (i) possession of the Class B controlled drug ecstasy for supply.

The District Court sentencing decision

5 In the District Court, the Judge, having carefully recorded the details of Mr McCaslin-Whitehead's offending, identified a starting point sentence for the MDMA offending of eight years' imprisonment. 5 The Judge considered that the offending fell into category 2 of the bands identified by this Court in R v Wallace. 6

The starting point was then uplifted by two years in light of Mr McCaslin-Whitehead's other offending. 7 She then allowed the following discounts: 8

• (a) on account of Mr McCaslin-Whitehead's guilty plea, 25 per cent;

• (b) on account of the personal mitigating factors, including as informed by the s 27 report prepared on Mr McCaslin-Whitehead's background and circumstances - 30 per cent; and

• (c) on account of time on bail and “various other matters”, 25 per cent.

6 In allowing a 30 per cent discount for personal factors, and by reference to the s 27 report, the Judge was satisfied that Mr McCaslin-Whitehead's offending had occurred, notwithstanding its commercial nature, as a result of his vulnerability. 9 She was also satisfied he had made significant steps in addressing his addiction and other issues in his life. 10 The “various other matters” the Judge referred to was evidence of assistance to the police provided by Mr McCaslin-Whitehead, as recorded in the usual way in a confidential memorandum provided to the Judge at sentencing. 11

7 Applying that overall discount of 80 per cent the Judge arrived at an end sentence of two years' imprisonment. The Judge then considered the possibility of home detention. Noting the acceptance by the Courts of the deterrence and denunciation that can be achieved by home detention, the need to impose the least- restrictive sentence appropriate and taking into account Mr McCaslin-Whitehead's prospects of rehabilitation and the “glowing references” from his family and employers, the Judge sentenced Mr McCaslin-Whitehead to 12 months' home detention. 12

The High Court decision on appeal

8 With the leave of the Solicitor-General, the Crown appealed. 13 In the High Court, the Crown argued the District Court had imposed a manifestly inadequate 14 sentence, erring: 14

• (a) by excessively reducing the starting point to account for factors arising out of the s 27 report;

• (b) in aggregate, excessively reducing the starting point on account of personal mitigating factors;

• (c) reaching an end sentence (two years' imprisonment) which did not adequately reflect the applicable purposes of sentencing and the seriousness of the offending involved; and

• (d) commuting that manifestly inadequate sentence of two years' imprisonment to one of home detention.

9 The Crown emphasised the importance of the sentencing principles and purposes of accountability, denunciation, and deterrence for commercial-level drug dealing offending. Those purposes were all particularly relevant in Mr McCaslin-Whitehead's sentencing. As the facts showed, the need for deterrence was heightened in the circumstances. Not only had Mr McCaslin-Whitehead engaged in commercial level offending involving Class A and Class B drugs, but his offending had only come to the attention of the police because of their focus on money laundering activities. The availability of encryption software, and the ubiquity of the internet, made it “incredibly easy”, the Crown submitted, to import such drugs into New Zealand undetected. There needed to be a credible deterrent to counter balance those factors.

10 The Crown did not, however, challenge the starting point sentence of eight years' imprisonment plus two years uplift set by the Judge. Rather, the Crown

submission was that a discount of around five to 10 per cent at most could be allowed for the matters identified in Mr McCaslin-Whitehead's s 27 report. Moreover, whilst the guilty plea discount of 25 per cent and the discount of 20 per cent for “other matters” were appropriate, the further discount the Judge allowed for time spent on EM bail could only be described as “generous”

11 Finally, the Crown submitted the Judge had failed to step back and assess the overall effect of the discounts she recognised. Having adopted a starting point at the very bottom of the available range, and even if a sentence of two years' imprisonment was within the available range which the Crown did not concede, the sentence of home detention was itself inadequate. As reflected by s 6(4) of the Misuse of Drugs Act 1975, there was a presumption that a sentence of imprisonment should be imposed. Given the large quantity of drugs imported, the extent of Mr McCaslin-Whitehead's supply undertakings in New Zealand, the amount of money involved and the amount of money laundered, on any assessment a sentence of imprisonment was required.

12 In allowing the appeal, the Davison J first described the approach he considered appropriate in the following way:

[45] As I have noted, the issue of whether the sentence imposed is manifestly inadequate is to be examined by reference to the end sentence, rather than the process by which that sentence was arrived at by the sentencing court. In order to determine that question it is necessary in a case such as this for the appellate court to undertake its own assessment of the appropriate sentence so as to be able to compare it with the sentence imposed and be in a position to determine whether the sentence imposed was manifestly inadequate.

13 The Judge:

• (a) agreed with the starting point of eight years set by the District Court on account of the MDMA importation offending; 15

• (b) concluded, however, that the uplift of two years for other offending was, given the nature and extent of that other offending, inadequate and that:

  • (i) an uplift of at least two years' imprisonment was required to take account of the importation offending involving LSD and the possession and supply offending involving both MDMA and LSD; 16 and

  • (ii) uplifts of 12 months to take account of the money laundering charges and of three months to take account of the firearms charges and the cannabis-related offending. 17

14 The Judge would, therefore, have reached an adjusted starting point of 11 years and three months. 18

15 Turning to the question of discounts, Davison J accepted that the 25...