Legal Research
Cases
R v Winikerei

R v Winikerei

Case [2023] NSWDC 363 8 September 2023

Criminal Liability

Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Winikerei [2023] NSWDC 363
Hearing dates: 3 August 2023
Date of orders: 8 September 2023
Decision date: 08 September 2023
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [97]

Catchwords:
Crime – Sentence – Supply prohibited drug – Multiple offences – Delay.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Bichar v R [2006] NSWCCA 1
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Jodeh v R [2011] NSWCCA 194
Parris v R [2013] NSWCCA 5
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Quinlin [2021] NSWCCA 284
Turner v R [2011] NSWCCA 189

Category: Sentence
Parties: Raiwhara Winikerei (Offender)
Director of Public Prosecutions (Crown)
Representation:
Counsel:
Mr F Santisi (Offender)
Solicitors:
Mr S Croner (Crown)

File Number(s): 2018/239867 & 2019/241077
Publication restriction: Nil.

REMARKS ON SENTENCE

The offender is to be sentenced in respect of two series of offending conduct to which he has entered pleas of guilty. The first are the following two offences:-

Count 1 – Supply prohibited drug greater than indictable quantity and less than commercial quantity, namely 931.3 grams of gamma butyrolactone (“GBL”).

Count 2 – Supply prohibited drug greater than indictable quantity and less than commercial quantity, namely 5.94 grams of methylamphetamine.

Both offences occurred on 4 August 2018 and both are offences of deemed drug supply pursuant to s 25(1) and s 29 of the Drug Misuse and Trafficking Act 1985 (“DMTA”). Both carry maximum penalties of 15 years imprisonment. These are to be referred to as “the 2018 offences”. There is a related charge on a s166 certificate, namely Sequence 3 possess prohibited drug, namely cannabis, pursuant to s 10(1) of the DMTA.
The second series of offences occurred on 3 August 2019 and comprise the following:-

Count 1 – Supply prohibited drug greater than or equal to commercial quantity, namely 1,204.7 grams of GBL.

This is an offence pursuant to s 25(2) of the DMTA and carries a maximum penalty of 20 years imprisonment.

Count 2 – Supply prohibited drug greater than small and less than indictable quantity, namely 4.56 grams of methylamphetamine.
Count 3 – Supply prohibited drug greater than small and less than indictable quantity, namely 1.03 grams of 3,4-methylenedioxymethamphetamine.
Count 4 – Supply prohibited drug less than or equal to small quantity, namely 1.2 grams of cannabis leaf.

Counts 2 and 3 are each offences pursuant to s 25(1) of the DMTA and carry a maximum penalty of 15 years imprisonment. The maximum penalty for Count 4 is 10 years imprisonment (see s32(1)(h) of the DMTA).

These four offences are to be referred to as “the 2019 offences”. There are two related charges on a s166 certificate:-

Sequence 5 – possession of equipment for administering…

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 R v Winikerei

Details

AGLC: R v Winikerei [2023] NSWDC 363
Case: [2023] NSWDC 363
Decision Date: 08 September 2023

CaseChat Overview and Summary

The case of R v Winikerei involved the defendant, Winikerei, who was charged with multiple drug-related offences. The dispute centred on the appropriate sentence to impose on Winikerei for his repeated involvement in the supply of prohibited substances. The matter was heard in the relevant court, where the presiding judge was tasked with determining the appropriate punishment. The court needed to consider various factors, including the nature and extent of the defendant's criminal activity, the delay in bringing the matter to trial, and the potential impact of a custodial sentence on the defendant's rehabilitation.

The primary legal issues before the court were the appropriate weight to give to the delay in bringing the case to trial and the necessity of imposing a custodial sentence to achieve the objectives of deterrence, rehabilitation, and denunciation. The defence argued that the delay in prosecution should result in a lesser sentence, while the prosecution contended that the delay should not mitigate the severity of the sentence, given the defendant's persistent criminal behaviour. The court was required to balance these competing considerations and apply relevant sentencing principles to arrive at a just outcome.

In delivering the judgment, the court acknowledged the significant delay in bringing the case to trial but found that it did not warrant a substantial reduction in the sentence. The court emphasised the seriousness of the offences, the defendant's persistent involvement in drug supply, and the need for a sentence that would adequately reflect society's condemnation of such conduct. After considering the totality of the circumstances, the court determined that a full-time custodial sentence was warranted to achieve the goals of deterrence, protection of the community, and the defendant's rehabilitation. The court subsequently outlined the specific terms of the custodial sentence in the final orders.

Orders

Orders of the court

Full-time custodial sentence. For orders see [97]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Winikerei [2023] NSWDC 363

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

R v Quinlan
[2021] NSWCCA 284 Para 75

…n held to not evaporate during periods of prosocial lifestyle and may impact a person at any time during their life - see, for example, R v Quinlin [2021] NSWCCA 284 at [62].…
Parris v R
[2013] NSWCCA 5 Para 55

…wn submitted that general deterrence and denunciation will generally outweigh subjective circumstances in drug supply offences, relying on Parris v R [2013] NSWCCA 5 at [35]. The Crown noted the offender was between 38 and 39 years of age at the time of the offending and had a limited criminal history and was enti…
Jodeh v R
[2011] NSWCCA 194 Para 62

…nexus of the offender’s work injuries and chronic pain leading to him self-medicating, the Crown relied on Bichar v R [2006] NSWCCA 1 and Jodeh v R [2011] NSWCCA 194 to submit that it would be a rare category of case that the court would take into account the offender’s drug addiction as a mitigating factor. General…
Turner v R
[2011] NSWCCA 189 Para 60

…[1999] NSWCCA 111 in relation to the principles applicable where offences were committed due to drug addiction. The Crown also relied on Turner v R [2011] NSWCCA 189 in relation to self-medication.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194

…e and Trafficking Act 1985 Cases Cited: Bichar v R [2006] NSWCCA 1 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Jodeh v R [2011] NSWCCA 194 Parris v R [2013] NSWCCA 5 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Quinlin [2021] NSWCCA 284 Turn…
R v Henry
[2007] NSWCCA 90 Para 43

…[23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence whic…
Cahyadi v R
[2007] NSWCCA 1 Para 94

…ss of the offending and warrant no accumulation on sentence. The principle of totality was described by Howie J in Cahyadi v R (2007)168 A Crim R 41; [2007] NSWCCA 1 at [27] as follows:-…
Bichar v R
[2006] NSWCCA 1 Para 62

…In relation to the causal nexus of the offender’s work injuries and chronic pain leading to him self-medicating, the Crown relied on Bichar v R [2006] NSWCCA 1 and Jodeh v R [2011] NSWCCA 194 to submit that it would be a rare category of case that the court would take into account the offender’s drug addiction as…
R v Pearson
[2004] NSWCCA 129 Para 51

…]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in…
Miller v R
[1999] WASCA 66 Para 254

…the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] N…
R v Henry
[1999] NSWCCA 111 Para 60

…on to the offender’s subjective case the Crown submitted the Court would take into account the principles set out in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 in relation to the principles applicable where offences were committed due to drug addiction. The Crown also relied on Turner v R [2011] NSWCCA 189 in…
R v Jiminez
[1999] WASCA 7 Para 23

…e reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. It may also have t…
R v Henry
[1999] NSWCA 111 Para 60

…In relation to the offender’s subjective case the Crown submitted the Court would take into account the principles set out in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 in relation to the principles applicable where offences were committed due to drug addiction. The Crown also relied on Turner v R [2011] NSWCCA…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 54)
Crimes Act 1900 (ACT)
1 mention (from Para 2)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 3)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	R v Winikerei [2023] NSWDC 363
Hearing dates:	3 August 2023
Date of orders:	8 September 2023
Decision date:	08 September 2023
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [97]
Catchwords:	Crime – Sentence – Supply prohibited drug – Multiple offences – Delay.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Bichar v R [2006] NSWCCA 1 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Jodeh v R [2011] NSWCCA 194 Parris v R [2013] NSWCCA 5 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Quinlin [2021] NSWCCA 284 Turner v R [2011] NSWCCA 189
Category:	Sentence
Parties:	Raiwhara Winikerei (Offender) Director of Public Prosecutions (Crown)
Representation:	Counsel: Mr F Santisi (Offender) Solicitors: Mr S Croner (Crown)
File Number(s):	2018/239867 & 2019/241077
Publication restriction:	Nil.