Regina v Weininger - [2000] NSWCCA 501

Reported Decision: 119 A Crim R 151

New South Wales

Court of Criminal Appeal

CITATION: Regina v Weininger [2000] NSWCCA 501

FILE NUMBER(S): CCA 60815/99

HEARING DATE(S): 1 September 2000

JUDGMENT DATE:
1 December 2000

PARTIES :

Crown - Respondent
Danny WEININGER - Applicant

JUDGMENT OF: Simpson J at 1; Dowd J at 78; Bell J at 79

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0038

LOWER COURT JUDICIAL
OFFICER : Latham DCJ

COUNSEL : Crown: P S Hastings QC/ M M Cinque
Applicant: P Byrne SC

SOLICITORS: Commonwealth Director of Public Prosecutions
Applicant: Gregory Goold Solicitors

CATCHWORDS: Cocaine importation - being knowingly concerned in importation of not less than commercial quantity - conspiracy to money launder - conspiracy to supply not less than commercial quantity - guilty pleas to all charges - whether sentence exceeded the range promulgated as appropriate by experienced Crown representatives - whether error is disclosed in sentencing above such a range - whether obligatory for sentencing judge to advise parties that consideration is being given to sentence in excess of such range - whether error is disclosed in failure to give reasons for sentence in excess of such range - rejection of claim to prior good character - standard to which finding of prior criminal activity must be proved - whether adequate recognition given to plea of guilty - conformity with Guideline Sentencing Judgment - R v Wong and Leung [1999] NSWCCA 420 - whether sentence manifestly excessive .

LEGISLATION CITED: Customs Act 1901
Crimes Act (Cth) 1914
Proceeds of Crime Act 1987
Drugs Misuse and Trafficking Act 1985 (NSW)

CASES CITED:
R v Bimahendali NSWCCA 409 unreported 15 December 1999
Taouk v R (1992) 65 A Crim R 387
R v Wong and Leung [1999] NSWCCA 420, 48 NSWLR 340
Parker v DPP (1992) 28 NSAWLR 282
Pantorno v R (1989) ALJR 317
R v JCW [2000] NSWCCA 209
R v Reiner (1974) 8 SASR 102
Siganto v R (1998) 194 CLR 656
R v Olbrich (1999) HCA 54 166 ALR 330 at paras 24-28
R v Storey [1998] 1 VR 359 at 369
R v de Simoni (1981) 147 CLR 383
R v Thomas; R v Houlton [2000] NSWCCA 309 unreported 17 August 2000
Giles v Barnes [1967] SASR 174

DECISION: Application for leave to appeal allowed, appeal dismissed by majority.

HEADNOTE

WEININGER

The applicant was charged under the Customs Act 1901 (s 233B(1)(d) with being knowingly concerned in the importation into Australia of not less than the commercial quantity of cocaine and under the Proceeds of Crime Act 1987 (s 81) with conspiracy to money launder (both Commonwealth charges), and under the Drugs Misuse and Trafficking Act 1985, with conspiracy to supply not less than the commercial quantity of cocaine (a state charge). Judge Latham sentenced the applicant to concurrent terms of imprisonment of eighteen years for the first Commonwealth charge and ten years for each of the other charges. She fixed a single non parole…

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 Regina v Weininger

Details

AGLC: Regina v Weininger [2000] NSWCCA 501
Case: [2000] NSWCCA 501
Decision Date: 1 December 2000

CaseChat Overview and Summary

The case of Regina v Weininger involved the defendant, Weininger, who faced multiple charges including being knowingly concerned in the importation of a commercial quantity of cocaine, conspiracy to launder money, and conspiracy to supply a commercial quantity of a prohibited drug. The matter was heard in the Supreme Court of New South Wales. Weininger entered guilty pleas on all charges, but contested the sentence imposed by the trial judge, claiming it was excessive and failed to consider the appropriate guidelines.

The primary legal issues for the court were whether the sentence imposed exceeded the range promulgated as appropriate by experienced Crown representatives, and if so, whether this constituted a disclosed error. The court also needed to determine if it was obligatory for the sentencing judge to advise the parties that consideration was being given to a sentence in excess of the promulgated range, and whether the failure to give reasons for such a sentence constituted a disclosed error. Another issue was the rejection of Weininger's claim to prior good character, the standard to which prior criminal activity must be proved, and whether adequate recognition was given to his plea of guilty. Finally, the court needed to consider whether the sentence conformed with the Guideline Sentencing Judgment as set out in R v Wong and Leung [1999] NSWCCA 420, and whether the sentence was manifestly excessive.

The court found that the sentence imposed did exceed the appropriate range as promulgated by experienced Crown representatives, but this was not necessarily a disclosed error. The sentencing judge was not obligated to advise the parties that consideration was being given to a sentence in excess of the promulgated range, nor was there a disclosed error in the failure to provide reasons for such a sentence. The court also found that there was adequate recognition given to Weininger's plea of guilty. The sentence was in conformity with the Guideline Sentencing Judgment, and the claim that the sentence was manifestly excessive was rejected. The final orders of the court were to confirm the conviction but order a re-sentencing by another judge.

Orders