Legal Research
Cases
Wineera v The Queen

Wineera v The Queen

Case [2021] NZHC 900 27 April 2020

Sentencing

Mens Rea & Intention

Causation

Unconscionable Conduct

Aggravated & Exemplary Damages

Appeal

Criminal Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2020-404-437

[2021] NZHC 900

BETWEEN
AUBREY KING SINCLAIR WINEERA

Appellant

AND

THE QUEEN

Respondent

Hearing: 27 April 2020 (Heard at Rotorua)

Appearances:

T Cooper (via VMR) for the Appellant R Jenson for the Respondent

Judgment:

27 April 2020

ORAL JUDGMENT OF GAULT J

Solicitors / Counsel:
Ms T Cooper, Barrister, Auckland
Pollett Legal Ltd, Office of the Crown Solicitor, Tauranga

WINEERA v R [2021] NZHC 900 [27 April 2020]

[1] Mr Wineera appeals his sentence of six years and seven months’ imprisonment imposed by Judge J P Geoghegan in the Whakatāne District Court on 15 April 2020,1 following guilty pleas in relation to a number of drug, firearm and dishonesty-related offences:

(a)one charge of possession of methamphetamine for supply;2

(b)two charges of supplying methamphetamine;3

(c)one charge of cultivating cannabis;4

(d)one charge of possession of cannabis;5

(e)two charges of unlawful possession of a prohibited firearm;6

(f)two charges of unlawful possession of a firearm;7

(g)two charges of unlawful possession of a pistol/restricted weapon;8

(h)one charge of unlawful possession of a prohibited magazine;9

(i)three charges of receiving property with a value of over $1,000;10

1      R v Wineera [2020] NZDC 8682. Leave to appeal out of time was granted without opposition by Woolford J on 30 October 2020.
2      Misuse of Drugs Act 1975, s 6(1)(f): carrying a maximum penalty of life imprisonment.
3      Misuse of Drugs Act 1975, s 6(1)(c): carrying a maximum penalty of life imprisonment.
4      Misuse of Drugs Act 1975, s 9(1): carrying a maximum penalty of seven years’ imprisonment.
5      Misuse of Drugs Act 1975, s 7(1)(a): carrying a maximum penalty of three months’ imprisonment and/or a fine not exceeding $500.
6      Arms Act 1983, s 50A: carrying a maximum penalty of five years’ imprisonment. I note the Crown Prosecution notice dated 31 March 2020 and the District Court Judge’s sentencing notes say three charges.
7      Arms Act 1983, s 45(1): carrying a maximum penalty of four years’ imprisonment and/or a fine not exceeding $5,000. I note these charges were not included in the Crown Prosecution Notice dated 31 March 2020 or the District Court Judge’s sentencing notes.
8      Arms Act 1983, s 50(1)(a): carrying a maximum penalty of three years’ imprisonment and/or a fine not exceeding $4,000. I note the Crown Prosecution notice dated 31 March 2020 and the District Court Judge’s sentencing notes say three charges.
9      Arms Act 1983, s 50B: carrying a maximum penalty of two years’ imprisonment.
10 Crimes Act 1961, s 246(1): carrying a maximum penalty of seven years’ imprisonment.

(j)one charge of receiving property with a value of under $500;11 and

(k)one charge of breaching community work.12

[2] Mr Wineera appeals on the basis that the sentence of six years and seven months’ imprisonment is manifestly excessive, and that an appropriate end sentence is in the range of two years and seven months’ to three years and four months’ imprisonment.

The offending

[3]…

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 Wineera v The Queen

Details

AGLC: Wineera v The Queen [2021] NZHC 900
Case: [2021] NZHC 900
Decision Date: 27 April 2020

CaseChat Overview and Summary

Aubrey King Sinclair Wineera appeals the sentence of six years and seven months' imprisonment imposed by the Whakatāne District Court following his guilty pleas to a series of drug, firearm, and dishonesty-related offences. The appeal hinges on the assertion that the sentence is manifestly excessive and that a more appropriate sentence would be in the range of two years and seven months to three years and four months. The District Court's sentencing process began with a starting point of six years' imprisonment for the drug-related offences, which was deemed appropriate. An uplift of three years' imprisonment was applied to account for other offences, including firearms and dishonesty-related charges. Additionally, a further uplift of nine months was applied to reflect Wineera's significant conviction history. These uplifts were then offset by a 10 per cent discount for personal mitigating factors and a 25 per cent discount for guilty pleas, resulting in a final sentence of six years and seven months' imprisonment.

The appeal court found that the three-year uplift for other offences was excessive, suggesting a more appropriate uplift would have been two years and three months' imprisonment. The nine-month uplift for previous convictions was also considered too stern, with a more suitable uplift being six months. Furthermore, the 10 per cent discount for personal circumstances was deemed inadequate, with an appropriate discount being 20 per cent. Although Wineera cooperated with the authorities by admitting to the extent of his drug supply, no additional discrete discount for this cooperation was warranted. Taking these factors into account, the appeal court determined that the sentence was manifestly excessive and substituted a sentence of four years and eleven months' imprisonment. The appeal against sentence is allowed in part, with the sentences for the lead charges being quashed and replaced with the new sentence. In all other respects, the appeal is dismissed.

Orders