Wineera v The Queen

[2005] NZCA 270

IN THE COURT OF APPEAL OF NEW ZEALAND

CA144/05
CA148/05
CA167/05

THE QUEEN

v

DION SHANNON WINEERA
AUBREY KING WINEERA
RAEWYN ANN JONES

Hearing:27 October 2005

Court:Chambers, Williams and Rodney Hansen JJ

Counsel:P J  Kaye for Dion Wineera

P T Birks for Aubrey Wineera
C J Tennet for Raewyn Jones
H D M Lawry for the Crown

Judgment:11 November 2005 

JUDGMENT OF THE COURT

A        Ms Jones’s appeal against conviction is dismissed.

BMs Jones’s appeal against sentence is allowed.  The sentence of five years’ imprisonment is quashed and, in substitution therefor, a sentence of three and a half years’ imprisonment is passed.

CDion Wineera’s appeal against sentence is allowed.  The sentence of six years’ imprisonment is quashed and, in substitution therefor, a sentence of five years’ imprisonment is passed.

DAubrey Wineera’s appeal against sentence is allowed.  The sentence of six years’ imprisonment is quashed and, in substitution therefor, a sentence of five years’ imprisonment is passed.

REASONS

(Given by Rodney Hansen J)

Introduction

[1]       The appellants were found guilty of manufacturing methamphetamine (when it was a Class B controlled drug) after trial before Judge Sharp and a jury in the District Court at Rotorua.  Dion Wineera and Aubrey Wineera were each sentenced to terms of six years imprisonment.  Raewyn Jones received a sentence of five years’ imprisonment.  She appeals against conviction and sentence.  Dion and Aubrey Wineera appeal against sentence only.

Further background

[2]       The appellants were present at a residential address in Rotorua at which the Police executed a search warrant on 14 December 2002.  Two other adults, both women, were also there, and three children.  The Police found equipment and chemical substances which indicated that methamphetamine had been manufactured at the house.  The ESR Scientist who examined the scene said the equipment, chemicals and solutions found showed that pseudoephedrine had been extracted and converted into methamphetamine.  Apart from residues in the utensils used no methamphetamine was, however, found.  In a supplementary brief tendered for sentencing purposes the ESR Scientist said an additional 0.6-0.9 grams of methamphetamine could have been extracted from the precursor substances which remained on the premises.

[3]       When the Police entered the house they noticed a strong chemical smell which was strongest in the kitchen.  They located Dion and Aubrey Wineera in the nearby laundry attending to some of the glassware.  Ms Jones was found in the bathroom.  The other two women were in the lounge with the children.

[4]       The three appellants made statements to the Police.  Ms Jones said she was Aubrey Wineera’s partner.  She said they had arrived at the house together only a few minutes before the Police raid.  She denied participating in the manufacturing operation but said that Aubrey Wineera was involved in the manufacturing of methamphetamine and she knew what he was doing.  She said he had brought manufacturing equipment to the house and admitted to bringing a glass jug into the house in a bag containing her clothing.  She also told the Police that she had extracted from their packaging some of the Sudafed pills used in the manufacturing process and left them on the bench. 

[5]       All five adults present were charged with manufacturing methamphetamine and one, the woman who occupied the house, of permitting the premises to be used for the manufacture of methamphetamine.  She was convicted on the latter charge but acquitted of manufacturing, as was the other adult present.  She received a sentence of two years’ imprisonment.

Appeal against conviction – Raewyn Jones

[6]       Mr Tennet advanced the appeal against Ms Jones’s conviction on two grounds.  First he sought to argue that the jury’s verdict was unreasonable and could not be supported by the evidence.  He did not dispute that there was evidence of manufacturing on 14 December 2002; his submission was that there was only “very limited evidence” that Ms Jones was a party to the process.  We find that submission untenable having regard to Ms Jones’s admission that she knew methamphetamine was being manufactured and assisted in the process by, among other things, extracting the Sudafed tablets from their packaging.  That evidence alone is sufficient to support the jury’s verdict.

[7]       Mr Tennet’s second argument on the conviction appeal was that there was misconduct by Crown counsel at trial (not Mr Lawry who appeared on the appeal).  His complaint related to evidence of 30 plastic snaplock bags, commonly used to package methamphetamine, which were in the pocket of a jacket found on the backseat of the car used by Aubrey Wineera and Ms Jones to get to the house.  The prosecution sought to link the jacket (and inferentially the snaplock bags) to Ms Jones.  However, in cross-examination of the officer-in-charge, counsel for Ms Jones established that a fingerprint found on one of the snaplock bags was that of someone else. 

[8]       The topic was re-addressed by Crown counsel in re-examination of the officer.  Counsel referred the witness to a letter put to the officer in cross-examination which identified the person whose fingerprints were on the bag.  Re-examination then continued:

And she gave that to you in the context of the plastic bags that were found in the jacket and in the back of that motor vehicle and the suggestion was that those bags had been fingerprinted and the fingerprint results showed that there was a fingerprint found that related to some other person entirely, do you recall her question this morning?…  Yes I do.

In terms of that document that you have before you Detective has that document got any relevance at all to the plastic bags that have been produced in this Court as an exhibit?…  Absolutely not.  This document pertained to a completely separate case that was dealt with following this one.

[9]       At this point defence counsel objected and the jury retired while the Judge heard argument in the absence of the jury.  We were unable to establish what occurred in the hearing as there is no record of a ruling by the Judge, if one was in fact required or given.  When the Court reconvened Crown counsel asked one further question on the topic: 

Detective now you were just saying that that related to a completely separate matter not to the matter that is now before the Court? 

To which the officer replied: 

That’s correct.

The letter was then produced and re-examination moved onto a different topic. 

[10]     Mr Tennet complained about several aspects of the way in which Crown counsel had approached the evidence of the fingerprint.  He maintained the prosecutor should have led the evidence and criticised him for objecting to the letter being put to the witness in cross-examination.  However, as argument developed he concentrated his attack on the questions asked in re-examination.  He submitted the re-examination by Crown counsel on the topic was, as he put it, at best highly irrelevant and at worst a deliberate ploy to distract attention from the fingerprint evidence which, he said, was relevant in the context of the case.  He maintained that without the evidence relating to the jacket the case against Ms Jones would have been removed from the jury and the conviction accordingly should be quashed.

[11]     It was explained to us that the reason why Crown counsel was concerned to qualify the fingerprint evidence is that it was seen to relate primarily to a separate prosecution for manufacturing methamphetamine against the person whose fingerprint was found on the bag.  We do not understand why this should diminish the relevance of the fingerprint evidence in the present case.  If the Crown was seeking to link the jacket to Ms Jones, evidence that another person’s fingerprint was on potentially incriminating articles in the pocket was of direct relevance.

[12]     That said, we do not see the re-examination as giving rise to any serious cause for complaint.  For the most part it simply confirmed evidence given by the witness in cross-examination.  In confirming that the fingerprint on the bag did not come from Ms Jones, the officer added,

I might add though very importantly that this relates to a completely different job.

In re-examination Crown counsel was obviously at pains to reinforce the message. 

[13]     We think Crown counsel was wrong to ask the witness (in the second question quoted in [8] above) whether the letter had relevance to the plastic bags; that was not a matter for the officer to comment on.  But in the end we cannot see how his answer to that or any of the other questions put by Crown counsel could have caused any prejudice to the defence.  It was open to the defence to make whatever it wanted of the fingerprint to rebut any suggestion that the jacket or its contents belonged to Ms Jones.

[14]     Any residual concern that the ill-judged question may have led to a miscarriage of justice was dispelled at sentencing.  During the course of sentencing, the Judge asked Ms Jones’s then counsel who she (counsel) said owned the jacket in question.  Ms Jones at that point herself piped up and admitted that the jacket was hers, an admission the Judge recorded in her sentencing notes.  That admission completely undermines Mr Tennet’s argument.  The point of this part of the evidence was the ownership of the jacket, with Ms Jones’s counsel by her cross-examination trying to cast doubt on the proposition that it belonged to Ms Jones.  We now know that it did.  In those circumstances, the stray fingerprint on one of the bags has very little significance indeed.  It might well be the fingerprint of the person who gave Ms Jones the bag.  The significance of the evidence is that snap-lock bags were found in a jacket which Ms Jones now acknowledges as hers.

[15]     We are satisfied that there was no misconduct by the prosecutor or any prejudice to the defence from the questions asked in re-examination.  This ground of appeal also fails.

Appeals against sentence

Sentencing remarks

[16]     In her sentencing remarks the Judge first gave consideration to whether there was a commercial element in the offending and which of the three categories identified in R v Wallace and Christie [1999] 3 NZLR 159 applied. The defendants argued that the evidence did not establish any commercial element. Counsel asked the Judge to sentence on the basis that the appellants were manufacturing for their own use. The Crown maintained there was a commercial element and invited the Court to hold that the offending fell into the second category in Wallace and Christie, namely, commercial manufacture or importation on a substantial scale, although not involving massive quantities of drugs or prolonged dealing.

[17]     The Judge said what was found at the house was clearly a mobile laboratory.  She said, on her assessment, the appellants or some of them had manufactured methamphetamine on previous occasions.  She pointed to articles found in their possession which were consistent with involvement in an ongoing operation.  These included the plastic bags found in the pocket of the jacket which, as we have noted, Ms Jones acknowledged was hers in the course of sentencing; a diary linked to Ms Jones which contained a “shopping list” of ingredients for the manufacture of methamphetamine; and documents found amongst rubbish linked to Dion Wineera which the Judge held referred specifically to drug dealing. 

[18]     The Judge concluded, however, that while it was clear the appellants were involved in an ongoing operation, she should sentence them only for the offending with which they had been charged.  On this basis she said the offending properly fell within the third category in Wallace and Christie, a smaller operation but representing commercial dealing which would attract starting points of up to five years’ imprisonment.

[19]     The Judge identified four aggravating features:

·The commercial nature of the operation.

·The use of a mobile laboratory that could be moved in order to avoid detection.

·Manufacture within a family home with children present.

·The previous drug-related convictions of both Aubrey and Dion Wineera.

[20]     Although describing Ms Jones as a lesser player, the Judge said she was a principal in the offending and the starting point for all three should therefore be the same.  She decided that should be five years.  She added one year to the sentences of the Wineeras to take account of their previous drug offending and the danger the operation posed to children in the house, imposing on each a sentence of six years.

[21]     The Judge said these aggravating features did not apply to Raewyn Jones.  She decided, however, that Ms Jones was entitled to a discount of one year from the five year starting point in order to take account of the violent and potentially destructive relationship in which she was living at the time of the offending.  She concluded:

I intend therefore to give you a discount of one (1) year and the sentence that I impose upon you is five (5) years imprisonment …

Counsel’s submissions

[22]     Counsel for all appellants submitted that the five-year starting point adopted by the Judge was too high for a one-off manufacturing operation.  They pointed out that this was at the top of the range for offending in the third category identified in Wallace and Christie and at the bottom of the range for the second category of offending which encompasses operations on a substantial scale extending over a period.

[23]     Counsel for the Wineeras accepted that the Judge was entitled to increase the sentence on their clients to take account of their previous convictions and the presence of children in the house, but contended that six months would have been sufficient to recognise these aggravating features.  They argued for a total sentence of three and a half years’ imprisonment.

[24]     Mr Tennet for Ms Jones submitted that the Judge had plainly erred in failing to deduct the one year allowance she had acknowledged should be made to take account of Ms Jones’ abusive relationship with Aubrey Wineera.  But, he said, there should be a further reduction in her sentence to recognise that Ms Jones had a secondary role in the operation.

[25]     Mr Lawry did not oppose a reduction of one year in Ms Jones’ sentence as he conceded that is clearly what the Judge intended.  Otherwise he defended the sentences as within the available range.  Although the Judge was dealing with a one-off operation, he argued that her finding that the appellants were engaged in a commercial operation justified a sentence at the top of the available range.

Discussion

[26]     The evidence at trial justified the Judge’s conclusion that the appellants were operating a mobile laboratory for commercial purposes.  Although counsel took issue with some of the evidence she relied on – the plastic bags in the jacket pocket for example – we consider the evidence overall amply supported her assessment.

[27]     We are satisfied the Judge was also right to sentence the appellants only in respect of the manufacturing which had taken place on the day of the police raid.  In response to concerns expressed by counsel for Aubrey Wineera, who faced separate charges of manufacturing during a period which included the day of the police raid, the Crown amended the indictment to confine the charge to manufacture on that date.  In the circumstances the Judge could not have sentenced on the basis that the appellants had engaged in manufacturing operations on other occasions. 

[28]     On the basis then that sentence was for manufacturing on one occasion only, we consider the appellants are right to say that the starting point adopted by the Judge was too high.  There was no evidence of the quantity of methamphetamine manufactured.  There was nothing to indicate it was substantial.  It was a smaller operation which clearly fell within the third category in Wallace and Christie.  Equally clearly, it fell short of the kind of offending – substantial and ongoing – which would merit a sentence at the level where the third category merges into the second.

[29]     There was, nevertheless, a sophisticated commercial operation.  So although we conclude that five years was too high, we consider a sentence towards the upper end of the range is justified.  A starting point of four years before taking account of aggravating features is called for.

[30]     In our view, the Judge was justified in adding an additional year for the aggravating features attributable to the offending of the Wineeras.  Each had appeared regularly before the Courts for drug and other offending.  The presence of children was rightly acknowledged as a serious aggravating feature.  We conclude that the sentences of Aubrey and Dion Wineera should be reduced to five years’ imprisonment. 

[31]     We see no reason to adopt a different starting point for Ms Jones.  On her own admission, she was involved as a principal party in the manufacturing operation.  It may be, as the Judge appears to have accepted, that she was dominated by her partner, Aubrey Wineera, and acted under pressure from him.  But that is not to diminish her role in the offending itself.  The personal position of Ms Jones was, in any event, fully recognised by the reduction of one year proposed but not provided.

[32]     We accept that the Judge was entitled to make that allowance and erred in failing to give effect to it.  But we think she also should have made provision for the fact that Ms Jones’ offending, as much as that of her co-offenders, was aggravated by the presence of children in the home.  As a result, we consider that the starting point of four years in her case should be increased to four and a half years to take account of the applicable aggravating factor.  After deducting the one year, a sentence of three and a half years results.  We regard that as the appropriate sentence.

Result

[33]     The appeal by Ms Jones against conviction is dismissed.  The appeals of all appellants against sentence are allowed and the sentences imposed in the District Court are quashed.  In their place we impose sentences of five years’ imprisonment on each of Aubrey and Dion Wineera and a sentence of three and a half years’ imprisonment on Raewyn Jones.

Solicitors: 
Crown Law Office, Wellington