Wineera v The Queen

[2021] NZHC 900

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]    On 23 January 2020, Police conducted an inquiry at Mr Wineera’s address in Whakatāne as there was an active warrant outstanding for his arrest. The address is occupied by Mr Wineera and his elderly grandparents.

[4]    When Police entered Mr Wineera’s bedroom they located him and a glass pipe of the sort commonly used to smoke methamphetamine. They invoked the Search and Surveillance Act 2012 to search the bedroom. This initial search revealed ammunition and methamphetamine which was packaged in small bags. As a result, a further scene examination was undertaken. A large number of items relating to the sale and consumption of drugs were located, including:

(a)14 small snap lock bags containing methamphetamine with the weight of the bags varying between 0.25 grams and one gram;

(b)$2,690 in cash made up of $50, $20 and $5 notes in a red bag. Also located inside this bag was a small plastic container which contained approximately 12 grams of methamphetamine;

(c)a large bag containing numerous new and unused small snap lock bags;

11 Crimes Act 1961, s 246(1): carrying a maximum penalty of three months’ imprisonment.

12 Mr Wineera also pleaded guilty to a charge of breaching a community work sentence imposed on 22 August 2018 at the Whakatāne District Court. Pursuant to s 71(1)(d) of the Sentencing Act 2002 this carries a maximum penalty of three months’ imprisonment or a fine not exceeding

$1,000. However, counsel do not view this offending as relevant for the purposes of the appeal.

(d)a set of working digital scales;

(e)three glass pipes used to smoke methamphetamine;

(f)approximately four grams of cannabis head material both loose and in packaging;

(g)a surveillance system linked to a number of cameras around the outside of Mr Wineera’s bedroom and nearby shed;

(h)five cell phones;

(i)a black notebook (also known as a “tick book”) containing names and amounts of money owed to Mr Wineera;

(j)two cannabis bongs; and

(k)seven small cannabis plants planted in pots.

[5]    Each of these items was located in the bedroom except the seven plants were in a detached garage.

[6]    The    total   weight   of   methamphetamine    located   at   the   address   was approximately 16 grams.

[7]    A number of firearms and related ammunition were also found throughout the address, including:

(a)two   nine-millimetre     pistols    located   underneath   the   pillow    in Mr Wineera’s bed, each loaded with four live rounds in the magazine;

(b)numerous live rounds of ammunition of various calibres located throughout the drawers and on the floor of the bedroom;

(c)two AK-47 military style semi-automatic assault rifles and three 30 shot magazines loaded with live rounds of 7.62 x 39 ammunition located inside a black duffle bag in the detached double garage at the address;

(d)numerous live rounds of ammunition of various calibres, including

7.62 x 59, located throughout the detached garage along with five empty gun cases and a damaged gun safe;

(e)one 12-gauge semi-automatic Mossberg shotgun loaded with five live 12-gauge rounds was located hidden behind the back seat of a black Ford Territory motor vehicle parked in the driveway of the address; and

(f)a steel ammunition case containing numerous live rounds of ammunition of various calibres was found hidden in pot plants outside Mr Wineera’s bedroom window.

[8]The Police also located various items of stolen property, including:

(a)a driver’s licence stolen from a vehicle in Tauranga on 16 October 2019, located inside a drawer in Mr Wineera’s bedroom. The licence costs

$43.90 to replace;

(b)a vehicle diagnostic tool, a battery tester and a pneumatic cutting tool which was stolen during a burglary at  Commerce Street Auto’s  on  16 January 2020. The diagnostic tool and battery tester were found in the detached double garage and the pneumatic cutting tool was found inside the ammunition box outside Mr Wineera’s bedroom window. The total replacement cost of these three items is $7,062;

(c)a number of battery powered tools with the initials J.S. which were stolen during a residential burglary between 19 and 20 December 2019. The value of those tools is approximately $1,500;

(d)a black Ford Territory motor vehicle which was stolen from Matatā on 20 April 2019. This was parked in the driveway of the address. It had

incorrect number plates attached which belonged to another black Ford Territory vehicle also parked at the address. The VIN plates and keys from the stolen vehicle were located in Mr Wineera’s bedroom. Prior to being stolen the vehicle had a value of $9,000;

(e)a red Mazda Bounty motor vehicle which was stolen from Auckland on 12 January 2020. This was parked at the start of the driveway of the address. It also had incorrect number plates attached. Prior to being stolen the vehicle had a value of between $12,000 and $14,000; and

(f)a yellow and black Ford Falcon utility vehicle which was stolen from Auckland on 10 October 2019. This was parked, hidden, in a hay barn on the property. Prior to being stolen the vehicle had a value of

$28,000.

[9]    Mr Wineera was relatively candid in discussing his offending with Police.13 He admitted being a user of methamphetamine since 2015 and considered himself an addict.  He stated that he began selling methamphetamine to fund his addiction.   This typically involved purchasing 14 grams of methamphetamine then breaking it down into smaller quantities to on-sell. This started in July 2019 and continued until the time of his arrest. He provided estimates as to how much methamphetamine he sold during this period. Initially, he sold approximately 3.5 grams of methamphetamine per  week  but  that  amount  later  increased  to  approximately  14 grams per week. The total amount of methamphetamine which he admitted to selling between 1 July 2019 and his arrest on 23 January 2020 is 182 grams, which has a street value of approximately $91,000.

[10]   Mr Wineera further stated that all of the firearms and ammunition at the address were owned by him and acquired over time. He said he had them for the “intimidation factor” and because if people knew he had them he would not get any trouble at the address. He gave various explanations as to how they came into his possession, including, in respect of the AK-47 assault rifles, that he purchased them from a person

13     I say relatively because he did not disclose, for example, the identity of various associates from whom he had obtained items of stolen property.

who did not want to hand them in under the Police gun buy-back scheme. All three of the vehicles he claimed to have acquired from associates whom he would not name. He knew that each vehicle had been stolen at the time of receipt. As to the other stolen property found at the address, he admitted that he knew or was reckless as to the fact that the goods were stolen.14

District Court decision

[11]   The Judge began by noting Mr Wineera’s previous conviction history for offending in both Australia and New Zealand. This included some 11 convictions during the limited period that he resided in Australia. Of relevance here, two of those convictions were for fraud, one for possession of a prohibited weapon and three for possession of cannabis. The Judge then observed that Mr Wineera has “an extensive criminal history in New Zealand which includes 25 convictions for offences involving dishonesty, three for drug offending and two for violence”.15

[12]   The Judge considered that, based on the quantum of methamphetamine involved in this case, 198 grams (182 grams sold plus 16 grams found on the premises), the methamphetamine dealing fell within the upper end of Band 2 as set out in the Court of Appeal’s guideline judgment in Zhang v R.16 But the Judge considered Mr Wineera was a low-level dealer. An addiction to methamphetamine was a significant driver for his offending. Although he was managing a commercial operation, the Judge assessed it as being at a “relatively low level”. Mr Wineera was a “one-man band”.17 In light of these factors, the Judge adopted a starting point of six years’ imprisonment for the methamphetamine charges.

[13]   An uplift of three years’ imprisonment was then applied to reflect the other offending. This took account of the stand-alone starting points that would have been justified – around three and a half years’ imprisonment for the firearms charges,18 and around two years’ imprisonment for the dishonesty-offending.19 In these

14     The sole exception being the stolen driver’s licence which he stated had been left at his address and which he claimed to have kept because he thought it might belong to a friend’s sister.

15     R v Wineera [2020] NZDC 8682 at [12].

16     See Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].

17     R v Wineera [2020] NZDC 8682 at [23]–[24].

18     This is particularly so due to the presence of military style and loaded firearms.

19     The stolen property having an aggregate value of almost $40,000.

circumstances, an uplift of three years was seen as appropriate and consistent with the principle of totality.

[14]   A further uplift  of nine months’ imprisonment was applied to account for  Mr Wineera’s significant conviction history, including recent convictions for dishonesty-related offending.

[15]   This amounted to a sentence of nine years and nine months’ imprisonment before taking into account any mitigating factors personal to Mr Wineera.

[16]   In this respect, the Judge considered the cultural report prepared pursuant to  s 27 of the Sentencing Act 2002, noting that in this case the contents of that report were not entirely a product of self-reporting but rather reinforced by comments from Mr Wineera’s grandparents and a former employer. It was further supported by the drug and alcohol assessment referred to in the pre-sentence report and by the nature of Mr Wineera’s recent previous convictions — the majority of which the Judge considered were “offending of a kind commonly associated with drug dependency”.20 For these factors, and for the remorse shown by Mr Wineera, the Judge allowed a discount of 10 per cent.

[17]   In conjunction with the 25 per cent discount given for Mr Wineera’s guilty pleas, an end sentence of six years and seven months’ imprisonment was imposed.21

Approach on appeal

[18]   To succeed on an appeal against sentence the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.22 In all other cases, the court must dismiss the appeal.23 In this respect, the court will not simply substitute its own view for that of the original

20 At [27].

21 In respect of the lead charges of possession of methamphetamine for supply and supply of methamphetamine. For the remaining charges the Judge imposed concurrent sentences ranging between one month and two years’ imprisonment. The Judge made further orders for forfeiture of the $2,690 in cash and for destruction of all firearms, ammunition and items relating to the sale of methamphetamine. Two charges relating to receiving, in respect of which the Crown offered no evidence, were dismissed.

22 Criminal Procedure Act 2011, s 250(2).

23 Section 250(3).

sentencing judge.24 If the sentence is within the range that can be properly justified by accepted sentencing principles, the court will typically dismiss the appeal.25 It will only intervene if the sentence is  manifestly  excessive  or  wrong  in  principle.26  The appeal court’s focus in this respect will be on the final sentence imposed rather than the process by which that sentence was reached.27

Discussion

[19]   Ms Cooper, for Mr Wineera, submits the end sentence is manifestly excessive, having regard to:

(a)the uplift of three years’ imprisonment for offending additional to the lead drug offending;

(b)the uplift of nine months’ imprisonment for previous convictions;

(c)the insufficient discount given for factors outlined in the report prepared pursuant to s 27 of the Sentencing Act 2002; and

(d)the lack of a discrete discount for co-operating with the authorities.

[20]   As indicated, the Court’s focus is on the final sentence imposed rather than the process by which that sentence was reached. Before turning to the four matters relied on by Ms Cooper, I record therefore that counsel agree – as do I – that the Judge’s starting point of six years’ imprisonment correctly reflected the drug offending.

Uplift for other offending

[21]   Ms Cooper submits that the uplift of three years’ imprisonment for offending additional to the lead drug offending was excessive. In particular, she submits that the firearms offending cannot have justified an uplift larger than 18 months,28 while the

24     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

25 At [36].

26     At [30]–[35]. See also Te Aho v R [2013] NZCA 47 at [30].

27     Tutakangahau at [36].

28     Counsel refers to the recent Court of Appeal decisions in To’a v R [2020] NZCA 187, at [19]; and

Joyce v R [2020] NZCA 124 at [24].

dishonesty offending could not support an uplift of more than six months. She submits an appropriate uplift, taking into account the principle of totality, would have been approximately two years’ imprisonment.

[22]   Mr Jenson, for the Crown, submits that an uplift of three years to the starting point for the other charges, and in particular the firearm charges, was within range given the seriousness of the offending involved. He submits that, given the stand-alone starting points that would have been justified in respect of the firearms and receiving charges, being three and a half years and two years’ imprisonment respectively, the total uplift of three years clearly took into account the principle of totality.

[23]   When considering uplifts rather than a sentence for stand-alone offending, it is of course necessary to consider totality. Both counsel rightly acknowledge the Court of Appeal’s observation in To’a v R that uplifts for firearms offending, when in association with drug offending, are typically in the region of 12–18 months’ imprisonment.29 An 18-month uplift was upheld in Joyce v R.30 I consider the firearms offending in this case to be more serious than in Joyce, which involved the possession of two airguns and a loaded sawn-off shotgun in the context of methamphetamine dealing. The offending in this case involved the possession of two nine-millimetre pistols each loaded with four live rounds in the magazine, one 12-gauge semi-automatic Mossberg shotgun loaded with five live 12-gauge rounds, two AK-47 military style semi-automatic assault rifles and numerous live rounds of ammunition of various calibres located throughout the property. I consider an uplift of at least 18 months’ imprisonment for the firearms offending would have been justified, maybe higher given the increased maximum penalty imposed since April 2019 for unlawful possession of prohibited firearms such as the AK-47 military style semi-automatic assault rifles.

[24]   The dishonesty offending warranted a further uplift especially given the aggregate value of the stolen property located at Mr Wineera’s address.31 Taking into

29     To’a v R [2020] NZCA 187 at [19].

30     See Joyce v R [2020] NZCA 124 at [24].

31     Being almost $40,000.

account totality, I consider a further uplift of six to nine months would have been appropriate. Nevertheless, as Mr Jenson acknowledged, a three-year combined uplift is high. In all the circumstances having regard to totality, I consider a combined uplift of three years was certainly high and that an uplift of two years and three months’ imprisonment would have been more appropriate.

Uplift for previous convictions

[25]   Ms  Cooper  submits  that  the  uplift  of  nine  months’  imprisonment  for Mr Wineera’s previous convictions was too  stern.  The  Judge  took  into  account Mr Wineera’s  significant  conviction  history  in  New  Zealand   and   Australia. This history includes recent convictions for dishonesty-related offending. However, Ms Cooper submits that as the lead offending for sentencing purposes were the charges of possession for supply and supply of methamphetamine, it was “out of kilter” to take into account those previous dishonesty convictions to such an extent. They were not as significant as they would have been, for example, if Mr Wineera had been sentenced for dishonesty offending alone. Taking into account the principle of totality, she submits an uplift of three to six months would properly meet the principles and purposes of sentencing.

[26]   Mr Jenson acknowledges the nine month uplift was at the high end but submits it was within range. He draws attention to Mr Wineera’s significant history of dishonesty offending in New Zealand and Australia. Mr Wineera has convictions for dishonesty, firearm and drug related offending in Australia. Moreover, Mr Jenson submits that Mr Wineera’s recent convictions for dishonesty-related offending in New Zealand are also relevant, notwithstanding that the lead charges in this instance were for possession for supply and supply of methamphetamine.

[27]   While the lead charges for sentencing purposes were taken to be the charges of possession of methamphetamine for supply and supply of methamphetamine, the adjusted starting point, under the sentencing framework outlined by the Court of Appeal in Moses, incorporates aggravating and mitigating features of the offending.32

32     Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [46].

Here, the adjusted starting point takes all offences into account as the uplift reflected the balance of the offending, including the dishonesty charges.

[28]   The uplift for previous convictions, as a factor personal to the offender, is then applied at the second stage of the sentencing framework. This uplift applies in respect of the adjusted starting point, which incorporates all charges, rather than solely the lead charges relating to possession for supply and supply of methamphetamine. Given that Mr Wineera was also being sentenced for dishonesty charges, it is appropriate that his recent dishonesty convictions were considered at this stage. They are not of limited relevance simply because the lead charges were drug related.

[29]   It was accordingly correct for the Judge to consider Mr Wineera’s previous convictions for dishonesty offending in applying this uplift.  On 22 August  2018,  Mr Wineera was convicted and sentenced for 25 dishonesty offences committed in late 2017 and early 2018. This included 13 charges for theft of a car and one charge of unlawfully taking a motor vehicle. He was also convicted and discharged for theft of a motor vehicle on 16 January 2019. There is a clear nexus between those previous convictions and the dishonesty offending in the present case.

[30]   Even so, I consider the uplift of nine months for previous convictions to be at the upper end of the allowable range, if not above it. This is particularly so given that Mr Wineera’s previous drug convictions are far less serious than the present offending. Low-level cannabis offending, for example, bears little resemblance to the relatively serious possession for supply and supply of methamphetamine charges of which he now stands convicted. In the circumstances, I consider an uplift of six months’ imprisonment would have been sufficient to reflect the previous convictions.33

Discount for personal circumstances

[31]   Ms Cooper submits that the discount of 10 per cent allowed for Mr Wineera’s remorse and personal circumstances was inadequate. She submits that in the face of “severe addiction” such a discount was inconsistent with the Court of Appeal’s guidance in Zhang. Ms Cooper submits that Mr Wineera has “easily discharged” the

33     On its own, this would not justify interference.

onus of establishing a causal link between his addiction and the offending,34 and while the discount of 10 per cent may have been sufficient to reflect that, it did not adequately reflect the social, cultural and economic deprivation which she submits was closely interwoven with his addiction to methamphetamine. A discount of 25 – 30 per cent is suggested.35

[32]   Mr Jenson submits there was nothing in the material which warranted a further discount beyond the 10 per cent allowed by the Judge. He submits that while the Judge appropriately recognised that Mr Wineera’s addiction contributed to his offending, it was in reality a commercial operation so no greater discount could be justified. The circumstances of the present case are entirely distinct from the sort of “hand-to-mouth” offending of the type exemplified by Ms Crighton’s appeal – discussed in Zhang – where she only sold a few grams to fund her own addiction.36 By contrast, Mr Jenson submits that the street value of the methamphetamine sold by Mr Wineera (in excess of $90,000) suggests that his primary motivation was greed and a desire for commercial profit. He submits it was open to the Judge to view these circumstances, including Mr Wineera’s upbringing, as having a limited causative effect on the present offending, and the discount of 10 per cent was accordingly within range.

[33]The cultural report indicates that:

(a)Mr Wineera has whakapapa links to Nga Tuhoe iwi through the paternal side of his family. But from a young age Mr Wineera was disconnected from his father and raised by his mother. She struggled to provide for the family. She subsequently had a partner who was violent towards her, witnessed by Mr Wineera. Mr Wineera’s father was a drug dealer with an extensive criminal history. His father was known for manufacturing methamphetamine and spent much of Mr Wineera’s life in and out of prison. As a young boy, Mr Wineera longed for his father, admiring his lifestyle and money. He does not remember his father ever

34 See the sentencing Judge’s comments at [13].

35 Ms Cooper refers in particular to the individual appeals of Ms Crighton and Ms Phillips discussed by the Court of Appeal in Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [193]–[203] and [204]–[228], for Ms Crighton and Ms Phillips’ appeals respectively. See also Crighton v R [2018] NZHC 3282; and R v Phillips [2018] NZHC 2119.

36 See Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [193]–[203].

replying to his letters. He was deprived of knowing his Māori culture and identity.

(b)Mr Wineera was kicked out of his home by his mother’s subsequent partner, spent some time at a boys’ home and then returned to Whakatāne to live with his grandparents and attend high school. He fell into cannabis use and left school in year 10 (aged about 14). He began living on the streets at the age of 15. He began associating with local gangs. His life was defined by cannabis, methamphetamine, crime and girls.

(c)After not seeing his father for about 10 years, at his grandfather’s tangi when he was 21, his father gave him methamphetamine. In 2010, to avoid a prison sentence, he moved to Perth. After a positive start, he began using meth again and started committing burglaries to support his drug habit. In 2015 he served a 12 month prison sentence in Perth for drug-related offences. While on bail, he returned to New Zealand in 2017. By 2018 he was serving a prison sentence in New Zealand for burglaries committed to support his drug habit. He came out of prison as a member of the Mongrel Mob. He gained a job in the drilling industry but was unable to stop using methamphetamine.

[34]   I accept Ms Cooper’s submission that  there  is  a  causative  link  between Mr Wineera’s deep-seated methamphetamine addiction and his offending. As both the cultural and PAC reports indicate, Mr Wineera is plainly in need of drug rehabilitation. I also consider that Mr Wineera’s addiction is connected with the cultural and economic deprivation that characterised his upbringing. This no doubt influenced his attraction to gang culture as a teenager and more recently. Taking both these aspects into account, together with Mr Wineera’s remorse, I consider that a discount of 10 per cent was certainly low. But I accept Mr Jenson’s submission that this case is not like the sort of “hand-to-mouth” offending which has seen discounts of 30 per cent.37

37 See, for example, the appeals of Ms Crighton and Ms Phillips in Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [193]–[203] and [204]–[228]. They also had PTSD and used methamphetamine as a coping mechanism. See also Crighton v R [2018] NZHC 3282; and R v Phillips [2018] NZHC 2119.

Mr Wineera’s methamphetamine supply escalated significantly to a level that indicates a profit motive. I also take into account Mr Jenson’s submission that the Judge may have taken addiction into account in setting the starting point. I am conscious of the risk of double-counting. Even so, leaving addiction to one side, I consider the six year starting point was  appropriate.  Overall,  I  consider  an  appropriate  discount  for Mr Wineera’s personal mitigating circumstances would have been in the region of 20 per cent.

Discrete discount for co-operation

[35]   Ms Cooper submits that Mr Wineera should have been allowed a discrete discount for co-operating with the authorities. He admitted to Police that he sold at least 182 grams of methamphetamine over the seven months preceding his arrest. Without that admission, Ms Cooper submits that Police would not have been able to prove the supply offending to the full extent that they did (even acknowledging that Police could have obtained phone records which would have gone some way towards revealing the extent of the supply operation). She submits that a discrete discount in the region of 10 – 15 per cent would reflect the assistance that Mr Wineera rendered to Police.

[36]   Mr Jenson submits that no discrete discount is warranted for Mr Wineera’s co-operation. He submits the Court should adopt a cautious approach in this regard. It should be hesitant to award an additional discount simply on the basis of speculation as to what offending may or may not have been identified had the Police not had the benefit of the admissions but instead relied upon other information, such as phone records. In any event, he submits that Mr Wineera’s co-operation and timely acceptance of guilt is adequately addressed in the full 25 per cent discount that he received for guilty pleas alongside his discount for remorse.

[37]In R v Strickland, the Court of Appeal observed that:38

An offender who confesses other offending to the police, especially in circumstances where conviction on those other offences might not otherwise have followed, or where the offender’s co-operation saves the authorities

38     R v Strickland [1989] 3 NZLR 47 (CA) at 51.

considerable time and work, is entitled to have that co-operation taken into account when the sentence is fixed.

[38]   I consider a distinction is to be drawn between co-operation in relation to “other offending”, for which a discrete discount may be appropriate, and the offending in issue, for  which  a  guilty  plea  discount  appropriately  reflects  co-operation.  Ms Cooper refers to the recent decision of Lowenstein v Police in which a 10 per cent discount for co-operation was allowed for a defendant convicted of arson.39 But that case involved self-referral of offending, which also reflects co-operation in relation to other offending. Here, the quantity of methamphetamine found at Mr Wineera’s address would, in isolation and without any further sales being identified, have placed him within Band 2 of the Court of Appeal’s judgment in Zhang.40 The loaded firearms would also have caused  heightened  suspicion.  In  the  circumstances,  I consider Mr Wineera was essentially admitting to the offending in issue rather than other offending.

[39]   I accept that Mr Wineera made helpful admissions to Police which enabled Police to quantify the drugs involved. But it would be speculation to seek to determine what could have been proved without those admissions. Even the extent to which the Police sought to verify the amounts in issue is unknown. Apart from phone records, there was the tick book.

[40]   I consider Mr Wineera’s co-operation and early acceptance of guilt is adequately addressed in the full 25 per cent discount that he received for guilty pleas alongside his discount for remorse. No further discrete discount for co-operation is justified.

Conclusion

[41]   Given the aggregate effect of the reduced uplifts and increased discount for personal factors I have referred to, I consider the sentence is manifestly excessive. In addition, both parties accept that the Court of Appeal’s decision in Moses v R may

39 Lowenstein v Police [2020] NZHC 786 at [36].

40 16 grams were found at the address. Although plainly much less than the 182 grams the appellant eventually admitted to selling, this quantity nevertheless falls within Band 2 which spans anything more than five grams but less than 250 grams. See Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].

have some impact on the formulation of the end sentence. Adopting the two stage approach reflected in that decision, I consider the adjusted starting point incorporating aggravating and mitigating features of the offending should be eight years and three months’ imprisonment. The second step incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.41 Here, that includes the six month uplift for previous convictions (6 per cent  – which I round down to         5 per cent given the Moses approach is now to calculate the net discount as a percentage of the adjusted starting point), the 20 per cent discount for personal mitigating factors and the 25 per cent discount for the guilty pleas. The net discount calculated as a percentage of the adjusted starting point is therefore 40 per cent. Accordingly, the end sentence is four years and eleven months’ imprisonment.

Result

[42]The appeal against sentence is allowed.

[43]   In respect of the lead charges of possession of methamphetamine for supply and supply of methamphetamine, the sentences of six years and seven months’ imprisonment are quashed. In their place, I substitute sentences of four years and eleven months’ imprisonment, to be served concurrently.

[44]In all other respects, the appeal against sentence is dismissed.

Gault J

41     Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [46].