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District Court 8 September 2023

R v Winikerei

[2023] NSWDC 363

Drugs
CRIME SENTENCE S UPPLY PROHIBITED DRUG MULTIPLE OFFENCES DELAY.

Citation: R v Winikerei [2023] NSWDC 363
Court: District Court of New South Wales
Date: 8 September 2023
Judge: Mahony SC DCJ

Background

The offender pleaded guilty to six drug supply offences arising from two separate incidents approximately one year apart. The first series of offences occurred on 4 August 2018, when police searched the offender's unattended vehicle after he was taken to hospital following a suspected drug overdose. Police found quantities of gamma-butyrolactone (GBL) and methylamphetamine, each in amounts greater than the indictable quantity but less than the commercial quantity under the Drug Misuse and Trafficking Act 1985 (DMTA).

The second series of offences occurred on 3 August 2019, while the offender was on bail for the 2018 charges. Police stopped his hire car for a minor traffic infringement, with his wife and seven-year-old son present. The search uncovered a significantly larger quantity of GBL (over 1,200 grams, meeting the commercial quantity threshold), further methylamphetamine, MDMA, and a small amount of cannabis.

The matter had a protracted procedural history. After initial pleas of guilty were entered in 2020 and 2021, those pleas were set aside following a traversal hearing in 2022. Fresh pleas of guilty were eventually entered in May 2023 on amended indictments, shortly after pre-trial applications were resolved.

  • What was the appropriate aggregate sentence across six supply offences spanning two separate incidents and involving multiple drug types and quantities?
  • How should the totality principle be applied to avoid a disproportionate combined sentence?
  • What weight should be given to mitigating factors, including the guilty pleas (entered at a late stage), the offender's personal circumstances, delay in proceedings, and time already spent in custody?
  • How should the fact that the 2019 offences were committed while the offender was on bail for the 2018 offences be treated as an aggravating circumstance?

Decision

The court treated the 2019 commercial quantity GBL supply charge as the principal offence, given it attracted the highest maximum penalty of 20 years imprisonment. The court found the offending was serious, noting in particular that the 2019 offences were committed on bail and that the offender's wife and young child were present in the vehicle at the time of the second arrest.

In mitigation, the court accepted the offender's personal circumstances: a period of prosocial behaviour between 2003 and 2018, workplace injuries that led to chronic pain and a dependence on illicit substances, and genuine remorse. His custodial record was clear, and the sentencing assessment report described meaningful insight into his offending. However, the pleas of guilty were entered late in the proceedings, limiting the utilitarian discount available.

Substantial weight was given to the delay in proceedings. The offences dated back to 2018 and 2019, and sentencing did not occur until August 2023. The court applied the relevant principles from authorities including R v Henry and Cahyadi v R in calibrating the appropriate discount. The offender had spent 709 days in pre-sentence custody, 273 of which were referable to both sets of offences.

Applying the totality principle and balancing the aggravating and mitigating factors, the court imposed an aggregate sentence of six years, with a non-parole period of three years. The sentence was backdated to commence on 24 August 2021.

Orders Made

  • 2018 offences (Count 1): Supply GBL greater than indictable and less than commercial quantity, convicted and sentenced as part of the aggregate term.
  • 2018 offences (Count 2): Supply methylamphetamine greater than indictable and less than commercial quantity, convicted and sentenced as part of the aggregate term.
  • 2019 offences (Count 1): Supply GBL at or above commercial quantity, convicted and sentenced as part of the aggregate term.
  • 2019 offences (Count 2): Supply methylamphetamine greater than small and less than indictable quantity, convicted and sentenced as part of the aggregate term.
  • 2019 offences (Count 3): Supply MDMA greater than small and less than indictable quantity, convicted and sentenced as part of the aggregate term.
  • 2019 offences (Count 4): Supply cannabis leaf at or below small quantity, convicted and sentenced as part of the aggregate term.
  • Aggregate sentence: 6 years, commencing 24 August 2021; non-parole period of 3 years terminating 23 August 2024; balance of sentence of 3 years terminating 23 August 2027.
  • Sequence 3 (possess prohibited drug): Convicted under s 10A of the Crimes (Sentencing Procedure) Act 1999, no further penalty imposed.
  • Sequence 5 (possession of drug administration equipment): Convicted under s 10A, no further penalty imposed.
  • Sequence 12 (deal with property proceeds of crime under $100,000): Convicted under s 10A, no further penalty imposed.
  • Confiscation order made in respect of $760 cash.

Key Takeaways

  • Committing further drug supply offences while on bail for existing supply charges operates as a statutory aggravating factor and weighed meaningfully against the offender in the sentencing exercise.
  • Where guilty pleas are entered late in proceedings, particularly after pleas are set aside and re-entered on the eve of trial, the utilitarian discount for the plea will be reduced compared with an early guilty plea.
  • Significant delay between offending and sentencing, attributable in part to procedural history rather than solely to the offender's conduct, was treated as a mitigating consideration in calibrating the final sentence.
  • The totality principle required the court to step back from aggregating individual sentences mechanically and to impose an overall term that was proportionate to the totality of the offending without being crushing.
  • Personal circumstances, including a documented pathway from workplace injury to substance dependence, a clear custodial record, and genuine remorse, can carry real mitigating weight even in cases involving serious drug supply offences.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 11(1), 25(1), 25(2), 29, 32(1)(h)
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- 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
- Bichar v R [2006] NSWCCA 1
- Jodeh v R [2011] NSWCCA 194
- Turner v R [2011] NSWCCA 189
- Parris v R [2013] NSWCCA 5
- R v Quinlin [2021] NSWCCA 284