R v Winikerei [2023] NSWDC 363

District Court New South Wales

Medium Neutral Citation: R v Winikerei [2023] NSWDC 363 Hearing dates: 3 August 2023 Date of orders: 8 September 2023 Decision date: 08 September 2023 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For orders see [97] Catchwords: Crime – Sentence – Supply prohibited drug – Multiple offences – Delay. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Bichar v R [2006] NSWCCA 1 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 Jodeh v R [2011] NSWCCA 194 Parris v R [2013] NSWCCA 5 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Quinlin [2021] NSWCCA 284 Turner v R [2011] NSWCCA 189 Category: Sentence Parties: Raiwhara Winikerei (Offender) Director of Public Prosecutions (Crown) Representation: Counsel: Mr F Santisi (Offender)

Solicitors: Mr S Croner (Crown) File Number(s): 2018/239867 & 2019/241077 Publication restriction: Nil.

REMARKS ON SENTENCE 1. The offender is to be sentenced in respect of two series of offending conduct to which he has entered pleas of guilty. The first are the following two offences:- 1. Count 1 – Supply prohibited drug greater than indictable quantity and less than commercial quantity, namely 931.3 grams of gamma butyrolactone ("GBL"). 2. Count 2 – Supply prohibited drug greater than indictable quantity and less than commercial quantity, namely 5.94 grams of methylamphetamine. 1. Both offences occurred on 4 August 2018 and both are offences of deemed drug supply pursuant to s 25(1) and s 29 of the Drug Misuse and Trafficking Act 1985 ("DMTA"). Both carry maximum penalties of 15 years imprisonment. These are to be referred to as "the 2018 offences". There is a related charge on a s166 certificate, namely Sequence 3 possess prohibited drug, namely cannabis, pursuant to s 10(1) of the DMTA. 2. The second series of offences occurred on 3 August 2019 and comprise the following:- 1. Count 1 – Supply prohibited drug greater than or equal to commercial quantity, namely 1,204.7 grams of GBL. This is an offence pursuant to s 25(2) of the DMTA and carries a maximum penalty of 20 years imprisonment. 1. Count 2 – Supply prohibited drug greater than small and less than indictable quantity, namely 4.56 grams of methylamphetamine. 2. Count 3 – Supply prohibited drug greater than small and less than indictable quantity, namely 1.03 grams of 3,4-methylenedioxymethamphetamine. 3. Count 4 – Supply prohibited drug less than or equal to small quantity, namely 1.2 grams of cannabis leaf. Counts 2 and 3 are each offences pursuant to s 25(1) of the DMTA and carry a maximum penalty of 15 years imprisonment. The maximum penalty for Count 4 is 10 years imprisonment (see s32(1)(h) of the DMTA). 1. These four offences are to be referred to as "the 2019 offences". There are two related charges on a s166 certificate:- 1. Sequence 5 – possession of equipment for administering prohibited drugs (ice pipes and syringes), an offence pursuant to s11(1) of the DMTA. 2. Sequence 12 – deal with property proceeds of crime less than $100,000, namely $760, an offence pursuant to s 193C(2) of the Crimes Act 1900. 1. The 2019 offences were committed whilst the offender was on bail in respect of the 2018 offences. He has spent a total of 709 days in custody until the sentence hearing on 3 August 2023, and 273 of those days are referrable to both the 2018 and 2019 offences. 2. The matter has had a chequered procedural history. Following his arrest on 4 August 2018, the offender was granted bail. On 10 June 2019 he was committed for trial in respect of the 2018 offences and a trial was listed for 9 June 2020. On 3 August 2019 he committed the 2019 offences and on 16 April 2020 he was committed for trial in respect of those matters and a trial was listed for 1 March 2021. On 19 May 2020 the offender entered pleas of guilty in relation to the 2018 matters and on 26 February 2021 he entered pleas of guilty to the 2019 offences. On 3 June 2021 both matters were listed for sentence, however his then defence solicitors withdrew and both matters were adjourned. 3. On 29 November 2021 the matters were listed for a plea traversal hearing which was listed on 28 March 2022. On that date the Court ordered that the pleas of guilty be set aside in both the 2018 and 2019 matters and the matters were eventually listed for trial to commence on 8 May 2023. After the resolution of a number of pre-trial applications on 11 May 2023, the offender was re-arraigned and entered pleas of guilty to the 2018 and 2019 offences on amended Indictments.