TOMMY WINEERA AND THE KING - [2024] NZCA 496

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA76/2024
[2024] NZCA 496

BETWEEN	TOMMY WINEERA Appellant
AND	THE KING Respondent

Hearing:	23 July 2024
Court:	Hinton, Mander, Walker JJ
Counsel:	A M Schulze for Appellant J A A Mara for Respondent
Judgment:	1 October 2024 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Walker J)

Introduction

The appellant, Tommy Wineera, pleaded guilty in the Rotorua District Court and was convicted of 30 charges of supplying methamphetamine, six charges of possession of methamphetamine for supply, five charges of producing iodine capable of use in the manufacture of methamphetamine, two charges of possession of iodine, five charges of supplying iodine, and three charges each of supplying and possessing MDMA (first suite of charges).
He also pleaded guilty and was convicted of three further charges of possession of methamphetamine for supply, unlawful possession of a pistol, unlawful possession of ammunition, and receiving stolen property (second suite of charges).
The quantity of methamphetamine in respect of the first suite of charges was 401.4 grams. The quantity of methamphetamine in respect of the second suite of charges was 285 grams and the total quantity overall was 686.4 grams.
On 1 December 2023 Judge T R Ingram sentenced Mr Wineera to seven years’ imprisonment.[1]
[1]R v Wineera [2023] NZDC 26791 [sentencing notes].
Mr Wineera appeals his sentence. He argues that the Judge erred by adopting a starting point for the totality of the drug offending which included the iodine and MDMA offending.[2] He says that, by doing so, the Judge wrongly relied on factors relating only to the iodine charges to assess culpability in respect of all Mr Wineera’s drug offending, when he ought to have assessed his culpability separately.

Extension of time application

[2]Iodine is an essential ingredient in the manufacture of methamphetamine. It is extracted from iodine tincture or potassium iodide in a separate process.

The appeal was filed 12 days out of time, so Mr Wineera applied for an extension of time to bring the appeal. The short delay was explained by Mr Wineera’s counsel and the Crown is not prejudiced by it. Accordingly, we grant the application for an extension of time to appeal.

The offending

The first suite of charges against Mr Wineera came about as a result of intercepted calls and text messages between 3 June 2022 and 19 October 2022, pursuant to a surveillance device warrant and production orders. The second suite of charges arose following execution of search warrants.
The summary of facts that formed the basis for sentencing recorded that Mr Wineera obtained quantities of methamphetamine from associates within his drug dealing network to on-sell. Further, between 9 August 2022 and 15 October 2022, he also carried out iodine extractions, producing tens of kilograms of iodine. He sold the extracted iodine to methamphetamine manufacturers.
We pause to interpolate that…

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

Case: [2024] NZCA 496
Decision Date: 1 October 2024 at 2.30 pm

CaseChat Overview and Summary

Tommy Wineera appeals his sentence for multiple drug and firearm charges in the Court of Appeal of New Zealand. Wineera argues that the sentencing judge erred by adopting a starting point for the totality of the drug offending without distinguishing the iodine and MDMA charges. The court granted an extension of time for the appeal and dismissed the appeal against sentence.

The legal issues before the court were whether the judge erred in setting the starting point by reference to the overall effect of the offending, and whether Mr Wineera's culpability for the methamphetamine and iodine offending should be viewed separately. The court found that the judge's composite approach was orthodox and resulted in a sentence within the available range. The court found that the quantity and role of Mr Wineera in the methamphetamine and iodine offending warranted a starting point between 12 and 13 years. With the uplifts for the firearm and receiving charges and deductions for personal mitigating factors, the end sentence of seven years was within the range of seven years, two months to seven years, eight months. The court rejected Mr Wineera's appeal against sentence.

The court granted the application for an extension of time to appeal and dismissed the appeal against sentence. The original sentence of seven years' imprisonment imposed by the sentencing judge was upheld.

Orders