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 period of twelve years.

During the course of sentencing proceedings senior counsel representing the DPP proposed twelve to sixteen years as the range within which an appropriate sentence would lie. The sentence imposed on the first charge therefore exceeded the top of that range.

The applicant put forward evidence of good character and claimed to be entitled to leniency on the basis of that good character. The evidence of good character came in numerous testimonials and references, most of which described his participation in drug importation as uncharacteristic. As well the applicant relied on the absence of any previous criminal conviction.

HELD
(1) (Per curiam): there was no error in the sentencing judge’s decision to sentence outside the range proposed by counsel for the DPP. It was not necessary for the sentencing judge to advise counsel that she was giving consideration to taking this course. The sentencing judge was not obliged to give specific reasons for going above the proposed range.

(2) Per Bell J, Dowd J agreeing; Simpson J contra. The sentencing judge was not bound to accept the applicant’s contention that he was a person of good character. In particular, it was not necessary that rejection of that contention on the basis of prior involvement in criminal activity be proved beyond reasonable doubt.

(3) Per Simpson J (dissenting); it was an error to take into account, in rejection of the applicant’s claim to good character, the fact or the possibility of the commission of another offence or other offences.

(4) (Per curiam); having regard to the role played by the applicant in the importation, no error was demonstrated in the judge’s decision to impose sentences greater than those referred to in the Guideline Sentencing Judgment in R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340.

(5) (Per curium): the sentences imposed were heavy, but not manifestly excessive.

IN THE COURT OF
CRIMINAL APPEAL

60815/99
SIMPSON J
DOWD J
BELL J


Friday 1 December 2000
REGINA v Danny WEININGER

Judgment

SIMPSON J

1    This is an application for leave to appeal against sentences imposed on the applicant by Judge Latham in the District Court on 17 December 1999, following his pleas of guilty to three charges.

2 Two of the charges were brought under Commonwealth legislation. One alleged an offence against s233B(1)(d) of the Customs Act 1901, of being knowingly concerned in the importation into Australia of not less than the commercial quantity of cocaine. The other, laid under s86 of the Crimes Act (Cth) 1914 and s81 of the Proceeds of Crime Act 1987, alleged conspiracy to money launder. The third charge, brought under the Drugs Misuse and Trafficking Act 1985 (NSW) was of conspiracy to supply not less than the commercial quantity of cocaine. All charges were prosecuted by the Director of Public Prosecutions for the Commonwealth ("the DPP").

3    The maximum custodial penalty applicable to each of the drug charges is life imprisonment. The maximum custodial penalty applicable to the money laundering charge is imprisonment for twenty years.

4    On the Commonwealth charges Judge Latham sentenced the applicant to concurrent terms of imprisonment of, respectively, eighteen and ten years. She fixed a single non-parole period in respect of those two offences of twelve years. (Despite the apparent anomaly in fixing a non-parole period of twelve years in respect of a sentence of ten years, that course is, apparently, within the legislative framework and the sentencing provisions of the Crimes Act (Cth): see ss 19 AB, 19 AF and 20.) On the state charge Judge Latham imposed a concurrent fixed term of imprisonment for ten years.

5    The indictment specified between 20 January and 5 May 1997 as the dates on which the offences were committed. All three offences were linked, being committed as part of the same enterprise.

6    The account of facts put before her Honour begins in October 1996, although it is apparent that the applicant had been involved in cocaine importation before then. The dates specified in the charges probably bear a closer relationship to the time at which recorded surveillance of the applicant began, than to his actual involvement. In October 1996 an Australian Federal Police ("AFP") informant (identified only as "Gordon") contacted the applicant and offered his services as a courier. The applicant told Gordon that he was involved in a cocaine importation syndicate of which Kevin Michael Geraghty was the principal. The AFP arranged co-operation with the Drug Enforcement Agency ("DEA") of the United States of America, which involved an undercover agent identified as "Keegan".

7 From 20 January 1997 to 5 May a number of meetings took place in and around Sydney between various participants, and a number of telephone conversations took place between those participants, Keegan, and others overseas. The conversations were monitored pursuant to warrants issued under the Customs Act. The applicant was present at virtually all, if not all, meetings that were recorded.

8    Geraghty arranged for the delivery of a quantity of cocaine from Colombia to Keegan in Los Angeles, and for Keegan to transport it to Sydney. Keegan travelled to Sydney and met Gordon, Geraghty and the applicant at a hotel in Penrith. It was there agreed that Keegan would import five kilograms of the drug on his next trip, at a cost of $40,000, which was to be paid by Geraghty. This amount was later increased to $17,000 per kilogram. The arrangements were elaborate. The applicant was nominated as a contact person for others in the enterprise. Keegan returned to the USA.

9    On 2 May 1997 Keegan, in the USA, took delivery of a green "Jansport" bag containing six packages of cocaine. On 4 May, with another DEA officer he delivered the bag to AFP in Sydney. The substance in the package weighed 5882.9 grams, and when analysed, proved to contain 4393.9 grams of pure cocaine. Its street value was estimated at $1,757,560. All but twenty grams of the cocaine was removed, and replaced with an inert substance. On 5 May Gordon, who was accompanied by the applicant, obtained possession of the Jansport bag. The two men went by car to the various places in Sydney. By late afternoon the applicant had possession of the bag. He was arrested with it still in his possession. Examination of the contents of the bag revealed that a number of the packages it contained had been opened.

10    The applicant has remained in custody since the date of his arrest.

11    The statement of facts, which was put before Judge Latham by agreement, shows that the applicant, while not at the highest rung of the importing syndicate, was nevertheless integrally and consistently involved at an organisational level.

Subjective circumstances

12    Put before her Honour on behalf of the applicant were a psychological report, a large number of written references and testimonials from a variety of sources, and oral evidence from his current partner, Ms Susan Boynton, and from Ms Maureen Johnson, the mother of a former partner of the applicant. The applicant himself did not give evidence in the sentencing proceedings.

13    From these sources the following can be derived.

The applicant was born in Israel on 26 February 1968. He is now thirty-two years of age. He was twenty-nine at the time of the offences. He grew up in Israel, where he lived in a secure and stable environment with his parents and younger sister, all of whom continue to live in Israel but who, so far as they are able from that distance, offer support to the applicant. His father and sister travelled to Australia for the sentencing proceedings. They have contributed their savings to the costs of the applicant's legal representation.

14    According to the psychologist's report, the applicant was conscripted into the Israeli army at eighteen years of age, at a time Israel was at war, and he was a witness to the death of close friends, and came close to death himself.

15    In 1990, aged twenty-two, he migrated to Australia. He established a relationship as a result of which a son, now aged seven, was born. The relationship ended but the applicant has remained in close and regular contact with his son. It was the mother of that previous partner, grandmother of his son, who gave oral evidence.

16    The applicant is now engaged in a stable relationship of about four years' standing with Ms Boynton, who herself has a nine year old daughter. The applicant has taken the role of father figure to her.

17    The applicant became an Australian citizen in 1996. He has had employment in the building industry and is qualified as a painter. He has no previous criminal convictions.

18    The Corrective Services psychologist who is the author of the psychological report described the applicant as "a risk taker", "somewhat reckless and impulsive", and "potentially putting himself in dangerous situations"; and she expressed the clinical opinion that the applicant is confident, forthright and congenial. She noted that the applicant claimed not to have had an understanding of the serious effects of drugs prior to his incarceration, but to have gained insight since that time.

19    Ms Boynton's evidence was that the applicant had explained his involvement to her as being caused by "very pressing financial difficulties". She said she had never seen any signs of lavish lifestyle, or that the applicant had access to large sums of money. In cross examination she enlarged on this by saying that the applicant had taken out two loans of about $20,000 each, and owed "a few thousand dollars" to friends, and that his debts related to the purchase of a boat. She said that the applicant was

"very very sorry for what he has done and ... will never ever do it again ... it was a one off thing that he will never ever do anything like that."

20    In a written testimonial she asserted that the applicant was not the sort of man to be a drug dealer, and that his involvement at this time was "a one off mistake", that "he slipped and made the wrong decision"; that he had told her that, prior to "this incident" he had never previously been involved in drug importation; and that she believed him.

21    This theme was echoed by numerous of the other individuals who provided written references. The applicant's parents, who jointly signed such a document, said that the applicant had told them that he had never dealt in drugs before, and that it was fortunate that he was stopped in time, before his actions hurt somebody. They stressed that this was the applicant's first offence. In other references phrases, such as "out of character", "one time slip", "one time lapse", "first, and I believe, last, offence", "one time mistake", "first offence ever", "unusual and uncharacteristic mistake" recur.

The remarks on sentence

22    Judge Latham set out the facts in some detail. She then noted four features concerning his involvement. These were:

(i) the applicant conducted the initial negotiations with Gordon, before introducing Gordon to Geraghty;
(ii) thereafter, except for a meeting with Gordon on 20 March, and although he was present at all meetings between Geraghty and either Gordon or Keegan, the applicant "ostensibly played no actual role in
directing the progress of the importation";
(iii) the applicant was the link between Geraghty, Keegan and
Gordon;
(iv) the applicant was entrusted by Geraghty with the physical
transport of the cocaine from Penrith to Sydney.

23    From these facts the judge concluded that the applicant occupied a relatively senior position in the hierarchy of what she held to be

"clearly an extensive organisation, experienced in the importation of cocaine on a large scale".

24    She said that the applicant occupied that position

"by dint of his expertise and proven worth to the principal of the organisation, Geraghty".

25    For sentencing purposes she characterised the applicant as "a junior partner" or "middle level participant". She accepted that there was no evidence that the applicant was responsible, like Geraghty, for recruiting others into the organisation, and that the extent of his monetary gain "was at the mercy of others", and that the applicant received rather than gave orders or directions. Having accepted those matters, however, Judge Latham observed that they did not, to any marked extent, diminish the applicant's objective criminality.

26 The judge then noted the competing submissions made by counsel for the parties as to the appropriate range of sentence, having regard to applicant's role. Senior counsel for the applicant argued, by reference to Judicial Commission sentencing statistics, for a range of twelve to sixteen years, before the application of s 16G of the Crimes Act, 1914, which has the effect of reducing the sentencing starting point by approximately one third. The range contended for on behalf of the applicant, after the s 16G discount, was therefore about eight to ten or eleven years. Counsel for the DPP argued for a range, after the application of s16G, of twelve to sixteen years. As the manner in which her Honour dealt with these competing submissions gives rise to one of the grounds of the application, it will be necessary to return to this.

27    Judge Latham then proceeded to note the various matters that had been urged upon her in mitigation, and expressed her view on each of them. The matters to which she referred, and her observations, may be summarised as follows.

28    (i) The quantity of cocaine involved

Schedule VI to the Customs Act specifies two kilograms as the commercial quantity applicable to cocaine. The quantity involved in the present offence was just under four and a half kilograms, that is, slightly over double the commercial quantity; her Honour regarded the quantity as "but one relevant factor, albeit an important one" in the sentencing exercise.

29    (ii) The pleas of guilty

Her Honour noted that the pleas were entered two years after the applicant's arrest, after committal proceedings had concluded, and after a trial date had been fixed. She did not regard the pleas as evidence of contrition, but rather as an acknowledgment of the inevitability of conviction in the face of an "overwhelming" Crown case; and she did not consider them to have been entered at the earliest available opportunity. Nevertheless, she recognised the utilitarian value to be attributed to the pleas, and the consequent saving to the community of the considerable expense of a long and complex trial, which would have required the attendance of at least one overseas witness.

30    (iii) The applicant's prior good character

Her Honour was quite sceptical about the case of good character advanced on behalf of the applicant. She made reference to Ms Boynton's evidence that "the very pressing financial difficulties" claimed on the applicant's behalf amounted to two bank loans of $20,000 each, a few thousand dollars owed to friends, at least some of which had been incurred for the purchase a boat; and she noted that the applicant had legitimate employment as a painter for six or seven days a week. It is obvious that her Honour gave little weight to this explanation for the applicant's involvement. Although she did not expressly say so, it is reasonably obvious that she regarded the claim that the applicant involved himself in drug importation because of pressing financial need as specious.

31    She was also sceptical about the applicant's reported (he not having given evidence himself) expression of regret, and his (again reported) claim not to have had any appreciation of the effects of drugs prior to his incarceration. She then said:

"The prisoner's prior good character in the sense that he comes before this court without any prior convictions is a matter which must receive some recognition. However, in the face of strong evidence establishing the prisoner's participation in cocaine importation by the same syndicate for some period of time before the commission of the instant offences, he cannot be treated as a first offender with the attendant leniency that that status usually attracts."

32    This is another matter central to the grounds of the application, and will be considered in detail below.

33    (iv) The nature of the drug

It was suggested that, as the legislature has specified a higher quantity as the commercial quantity applicable to cocaine (2.0 grams), compared with the quantity specified as the commercial quantity applicable to heroin (1.5 grams), it should be taken to have signified that cocaine is to be treated as a less dangerous drug. Her Honour cited remarks of Wood CJ at CL in R v Bimahendali [1999] NSWCCA 409 unreported, 15 December 1999, to the effect that the best guide to the seriousness of a drug offence is to be found in the maximum penalties prescribed.

34    (v) A degree of entrapment associated with the commission of the offences

Her Honour declined to find, in accordance with Taouk v R (1992) 65 A Crim R 387, that there was any

“ real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have (committed the crime) ” .

Nevertheless, she accepted that the applicant's culpability was to some extent diminished by the involvement of the authorities.

35    Her Honour then turned to the subjective features and concluded that the applicant's prospects of rehabilitation are "better than average if not sound". She also mentioned the applicant's criminality relative to that of Geraghty and recognised that the applicant stood to be sentenced less severely than Geraghty. However, as it seems Geraghty has not, even now, been sentenced, that consideration went, and goes, nowhere.

36 Judge Latham concluded that, taking into account all the matters required to be taken into account by s 16A of the Crimes Act, and the absence of remissions for prisoners serving sentences in NSW as required by s 16G, the s 233B count alone called for a sentence of fifteen years' imprisonment. Having regard to the serious nature of the two additional offences to which the applicant had pleaded guilty, she imposed the sentences mentioned in paragraph 4 hereof.

The application for leave to appeal

37    It was submitted on the applicant's behalf that five individual errors can be identified in the remarks on sentence. It may be assumed that the real complaint is directed to the sentence imposed in respect of the s 233B charge. The errors asserted were:

(i) that the sentence, being outside and above the range proposed by the counsel for the DPP as the appropriate range, was excessive; (ii) that the sentence was improperly increased by reason of a finding by the sentencing judge of criminal activity on the part of the applicant other than that charged, and of which the applicant had not been convicted;
(iii) no or inadequate recognition of his pleas of guilty;
(iv) that the judge's assessment of the applicant's role and participation in the offences was erroneous, wrongly attributing to him a greater level of involvement than was warranted by the evidence;
(v) that the sentence was not in conformity with guidelines promulgated specifically for the guidance of sentencing judges in relation to offences against s233B in R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340.
I will consider each of these arguments in turn.

38    (i) The range proposed by counsel for the DPP

Senior counsel for the applicant identified this as "in essence the primary ground, or perhaps the most significant ground". In order to deal with it if it is necessary to establish the accurate factual position.

39    The submissions of counsel in the sentencing proceedings do not appear to have been taken down, or if they were taken down, to have been transcribed. Written submissions were apparently made to her Honour and these were not before this court, but it was conceded that no range of sentences had been proposed in those submissions by the DPP.

40    The remarks on sentence do contain a reference to a range of twelve to sixteen years advanced by counsel for the DPP, but this does not make clear whether that range was suggested as appropriate for the s 233B offence alone, for the two Commonwealth offences, or for all three counts, including the state charge. This court is fortunate to have had the benefit of appearances by the same two senior counsel who represented the parties in the District Court. Regrettably, however, counsel lacked unanimity in their recollections or their understanding of precisely what was being addressed in the submission by counsel for the DPP, and there is no documentation, transcript or other objective material to aid in the interpretation of what is recorded in the remarks on sentence. The recollection of senior counsel for the DPP was that the proposed range of twelve to sixteen years was directed only to the s 233B offence, and that it was implicit that some additional sentence would have to be imposed to take account of the other two serious offences.

41    Senior counsel for the applicant, by contrast, recalled no specific argument directed to individual offences, but perceived the argument as having referred to the overall criminality represented by all three charges; this perception was said to have arisen, in part at least, because all offences were admittedly committed as part of a single episode.

42    It is impossible to resolve this factual impasse. Given that there may have been some breakdown of communication, I think this court should act on the basis that the range proposed on behalf of the DPP was intended, or at least was taken, to represent the range appropriate to all three charges. This is in no way to signify that I do not accept what was said by senior counsel for the DPP; it represents only what I consider to be the fair approach in circumstances where there may have been some misunderstanding.

43    The question remains whether error has been demonstrated by her Honour's decision to sentence outside that range. It was expressly acknowledged on behalf of the applicant that a sentencing judge is not bound by the submissions made on behalf of the DPP, but it was argued that, nevertheless, it would be an unusual case that warranted departure from the range so suggested. Especially is this so where, as here, the DPP was represented by a very experienced senior counsel, assisted by junior counsel and a very experienced solicitor. To this may be added the circumstance that senior counsel was acting on the instructions of the prosecuting authority for the Commonwealth, whose views would be entitled to considerable weight, based on his access to, and detailed knowledge of, nationwide sentencing trends.

44 Further, it was argued, no reasons were given for rejecting the DPP's proposed range, and this, too, indicated error. Finally, during the course of argument, senior counsel for the applicant adopted and urged the proposition that, at the very least, if her Honour were contemplating sentences above the DPP's proposed range, natural justice demanded that she advise the applicant and his legal representatives of this fact, in order to afford them an opportunity to seek to dissuade her from taking that course. This last proposition has some (remote) analogy with the principle that, where an appellate court with power to increase as well as decrease a sentence proposes to exercise that power, it must warn the applicant in order to provide an opportunity to withdraw the appeals. (see, eg, Parker v DPP (1992) 28 NSWLR 282; see also Pantorno v R (1989) ALJR 317).

45    The concession that a sentencing judge is entitled to sentence at a range above that suggested by the DPP was correctly made, and is of some importance. It was not argued that that circumstance alone is indicative of error; what was argued was that it would be "a highly unusual case" in which experienced senior counsel, assisted by junior counsel and a very experienced solicitor, would be wrong in their contention as to the range. This would compel close examination of the sentences. The absence of reasons for the departure was put as an additional circumstance from which error might be presumed.

46    I do not accept that the sentencing judge was obliged to give specific reasons for going above the proposed range, nor that the absence of reasons gives rise to any presumption or inference of error. The question is whether the sentences were outside the range legitimately available, given the combination of relevant objective and subjective features. Finally, although it was a question of mine that provoked the submission, I do not think it was an error on the part of the sentencing judge not to notify the applicant or his legal representatives of what she had in mind. The sentencing judge was entitled to act on the assumption that all relevant factual matters and argument had been put before her, and that inviting further submissions would not have drawn anything useful. The only purpose of notifying the applicant that she was contemplating the course which she ultimately took would be to enable the applicant's counsel to put argument as to why she should adhere to the DPP's proposed range. Since no argument was put to this court (other than that experienced legal representatives should be taken to have a feel for the appropriate range) it must be assumed that nothing further could have been put to her Honour. In my opinion no error has been demonstrated in her Honour's departure from the range of sentences proposed on behalf of the DPP.

47    (ii) Sentencing on the basis that the applicant had been guilty of other criminal activity

In written submissions to this court it was put that

"There was a distinct flavour throughout the remarks on sentence that Mr Weininger was being penalised for what the learned judge concluded to be other criminal activity in which he was engaged but for which he was not charged."

48    Particular reliance was placed on the passage extracted above at paragraph 31. There are some other passages in which her Honour referred to the "relatively senior position in the hierarchy" which the applicant occupied and the experience of the organisation in earlier importations of cocaine, and his holding that position because of his "expertise and his proven worth" to Geraghty.

49    One argument advanced on behalf of the applicant can be disposed of quickly. This was that

"It was not suggested on his behalf that this conduct represented an isolated lapse".

50    That submission is untenable. There was a mass of evidence directed precisely to that proposition. I have referred to it in detail in paragraphs 19, 20 and 21.

51    However, there remains a troubling question of just how her Honour's conclusion about the applicant's past criminality was used, and whether it was used improperly. Her remarks are worth repeating. What she said was:

"The prisoner's prior good character in the sense that he comes before this court without any prior convictions is a matter which must receive some recognition. However, in the face of strong evidence establishing the prisoner's participation in cocaine importation by the same syndicate for some period of time before the commission of the instant offences, he cannot be treated as a first offender with the attendant leniency that that status usually attracts."

52 Some guidance in relation to the use of uncharged crime as relevant to sentencing process can be derived from R v JCW [2000] NSWCCA 209, unreported, 5 June 2000, a decision of a bench of this court of which I was a concurring member.

53    JCW was a case involving charges of sexual molestation by a father of his daughters. In that case, this court was concerned to explore the use that could be made, on sentencing, of undenied or undeniable evidence that the applicant had been guilty, on occasions other than those the subject of specific charges, of conduct of a kind similar to that charged. The charges on which he was indicted were expressly admitted to have been "representative". Evidence supporting that admission was uncontested.

54    Spigelman CJ undertook an exhaustive analysis of the authorities relevant to sentencing in those circumstances. The conclusion of the court, stated in paragraph 68, was that an admission of the general character that was there in question was appropriate to be taken into account as a circumstance of aggravation.

55    It is to be noted that, in all of the cases considered in detail by the Chief Justice, admissions or concessions of criminal conduct beyond that specifically contained in the charges were made. That is to be contrasted with the present case, in which no such admission or concession was made, and in which the issue did not specifically arise.

56    With JCW in mind, it is appropriate to examine just what Judge Latham did in this case. The remark she made was made in the context of her consideration of the applicant's claim to prior good character, and the leniency to which that would ordinarily entitle him.

57    Her Honour's conclusion that the applicant could not be treated as a first offender and therefore entitled to that leniency essentially deprived the applicant of something to which he would have been entitled had she accepted the claim of good character. She rejected the claim on the basis that the evidence before her established that the applicant had been guilty of cocaine importation for some period of time before the commission of the offences for which he stood to be sentenced. Although her Honour did not expressly say so, it is, to my mind, clear that what she held was not that the applicant's involvement in the present offences extended beyond the date specified in the indictment (which may have been of relatively limited importance) but that he had been involved in cocaine importation on other occasions - that is, in relation to shipments of cocaine different to that the subject of the charges which he faced. This finding is a matter of considerable importance and it was a finding that drew some support from the evidence of the transcripts of the conversations.

58 In JCW a good deal of reference was made to the "metaphysical" distinction, drawn in many cases, and well established in sentencing law, between allowing a reduction in sentence because of some mitigating factor, and, conversely, not increasing sentence where the mitigating factor is absent. One well known example is that where there is an entitlement to a reduction in sentence occasioned by a plea of guilty, a plea of not guilty does not attract a higher sentence: see, eg, R v Reiner (1974) 8 SASR 102; Siganto v R (1998) 194 CLR 656. Similarly, while prior good character usually attracts some degree of leniency, prior criminal history does not operate to increase sentence, merely to disentitle the offender to the leniency ordinarily attendant upon established good character.

59    Here it is not suggested that the sentencing judge regarded the existence of prior criminality as an aggravating factor such as to increase sentence; she merely used it to deny the applicant a leniency to which he would otherwise have had a legitimate claim. This appears to raise a novel question (at least, neither counsel referred the court to any direct authority). The question is (or two questions are): what standard of proof applies to the determination of prior criminality as a basis for rebutting or rejecting a claim to good character, the asserted criminality being unadmitted and uncharged? The antecedent question, which might determine the answer to that question, concerns which of the parties carries the onus of proof. If it is the Crown, then the answer to the original question must be (as the answer may be used adversely to the offender) that the standard is the criminal standard, beyond reasonable doubt. On the other hand, the claim to good character is put forward as a foundation for leniency by the offender, who is obliged only to satisfy the civil onus. Why then should the Crown not be able to rebut the claim, also on the civil standard? Notwithstanding the obvious logic and the force of the latter proposition, I am, for two reasons, of the view that the criminal standard nevertheless applies. Firstly, although it may be valid to say that the effect of the finding is the rejection of a claim made by the offender, it is at least equally valid to say that the finding deprives the offender of a significant benefit to which the absence of any criminal record would otherwise entitle him (or her). Secondly, and more importantly, the finding amounts to a finding of criminal conduct for which the offender has not been charged. That should not, in my opinion, be made on a basis other than beyond reasonable doubt, even where the finding will not result in an increased penalty, but merely in denial of a reduced penalty.

60    Judge Latham did not identify on what standard she made the finding she did. Although, as I have said, there was evidence consistent with the finding, I am not satisfied that it was such as would have permitted a finding adverse to the applicant on the criminal standard.

61 An analysis of the questions of onus and standard of proof in sentencing is to be found in the decision of the High Court in R v Olbrich [1999] HCA 54; 166 ALR 330 at paras 24-28. The issues for consideration in that case related to the degree to, and the level at, which the applicant had been involved in the drug importation in respect of which he had been convicted. That applicant claimed to have been entitled to be sentenced as a low level participant in the drug importing operation. The sentencing judge rejected his claim in this respect and the evidence he gave to support it.

62 The majority in the High Court (Gleeson CJ, Hayne and Callinan JJ) observed, firstly, that the use of the term “onus of proof” in relation to sentencing is misleading if it is taken to suggest that there exists a joinder of issue between the parties. Nevertheless, they cited and adopted the judgment in R v Storey [1998] 1 VR 359 at 369, distinguishing between the approach to be taken by a sentencing judge in relation to findings of fact adverse to an offender, and those favourable to an offender. The former cannot be used against an offender unless proved beyond reasonable doubt; the latter may be used in favour of the offender if proved on the civil standard.

63    In Olbrich the sentencing judge had disbelieved the applicant’s evidence as to his role. The High Court held that the judge did not take into account facts adverse to the applicant; he had merely declined to accept evidence of the facts advanced as favourable to him.

64    In the light of the analysis in Olbrich it is necessary to consider what Latham DCJ did in this case.

65    The applicant put himself forward as a person of good character. Specifically, he put himself forward as a first offender. Judge Latham rejected the claim of good character. If her findings stopped there (leaving aside the question of reasons for the finding that might have arisen) it would have been analogous to the rejection by the sentencing judge in Olbrich of the claim to low level participation. But the finding did not stop there. The judge, in effect, also rejected the applicant’s claim that he was a first offender. In order to reject that claim it was necessary that her Honour make a finding (as she did) that the applicant had previously been involved in drug importations. Notwithstanding that that finding of fact was made in the context of rejecting a claim made by the applicant of circumstances attracting leniency, it denotes error for two reasons. Firstly, it was a fact used adversely to the applicant and therefore could not be used unless it had been proved beyond reasonable doubt. Her Honour did not purport to be satisfied beyond reasonable doubt of the applicant’s guilt of drug importations on occasions other than that the subject of the charges and, on the material before her, it would not have been open to her to do so.

66 Secondly, the finding amounted to a finding of guilt of criminal activity with which the applicant was not charged. In an earlier passage in Olbrich (para 18) the majority in the High Court gave, as one reason for rejecting the proposition that a sentencing court must ascertain the role of the offender, that exploring that question might disclose the commission of other offences, or the intention to commit other offences, and that it would be “quite wrong” to sentence an offender for crimes with which the offender was not charged. Their Honours referred to R v De Simoni (1981) 147 CLR 383 in this context.

67    Although I do not think it could be said that Latham DCJ sentenced the applicant for crimes with which he was not charged, she did, in my opinion, deny him leniency to which he had otherwise established his entitlement, on that basis.

68    Moreover, and while the absence of notice to the applicant that her Honour was contemplating the finding is not raised as a ground of the application, it is impossible to know what the applicant may have put forward had her Honour's views, in tentative form, been brought to his attention.

69    A final circumstance relates to the length of the sentences actually imposed which were, by any standard, very heavy. In the absence of her Honour's reference to additional criminality, I may not have concluded that the sentences were outside the applicable range; but, if they were not, they were certainly at the very top of that range.

70    This would suggest that the finding of prior criminality operated in a real way against him. In my opinion it was an error to take into account, in rejection of the applicant's claim to good character, the fact or the possibility of the commission of another offence or other offences. It will be necessary to consider the consequences of that conclusion below.

71    (iii) Credit for the plea of guilty

The only argument addressed to this ground was that, by reference to the length of the sentence, it should be inferred that no, or almost no, credit was given for the plea of guilty.

72 Judges sentencing in respect of offences against NSW laws are now encouraged to specify the discount given in consequence of a plea of guilty: R v Thomson; R v Houlton [2000] NSWCCA 309, unreported, 17 August 2000. That principle, however, does not apply to sentencing federal offenders (paragraph 160).

73    If Judge Latham did give the applicant a reduction for the pleas of guilty, she did not identify the extent of the reduction. I would not take that fact to indicate that she overlooked the question, or that, for some other reason, she decided not to give the traditional discount. In fact she paid considerable attention to it. She recognised the factors favourable and unfavourable to the applicant in relation to his pleas: on the one hand, they came at a relatively late stage, after committal proceedings and after a date for trial was fixed; and they were entered in the face of an overwhelming Crown case. On the other hand, they had the usual utilitarian value, which was accorded greater significance because of the cost, complexity and anticipated length of the trial, including the need to fly a witness from overseas. There is not the slightest reason to think that her Honour did not take into account all relevant matters and give the applicant the credit she considered appropriate for the pleas of guilty.

74    (vi) The applicant's role and participation in the enterprise

The argument that was here advanced was that the sentencing judge exaggerated the applicant's role. Senior counsel made a comparison with the obviously much greater and more managerial role of Geraghty, pointing to the evidence that Geraghty gave the orders, the applicant acted on his direction, and that it was Geraghty who made the decisions and generally directed others about their methods. This is all correct, but it was plainly recognised by her Honour in her careful analysis, when she noted the four features mentioned in paragraph 22. There is no error in her Honour's assessment of the applicant's role.

75    (v) Conformity with guidelines.

The final argument was that the sentences (or, more particularly, the sentence imposed in relation to the s 233B offence) did not synchronise with the guidelines for sentencing under s 233B promulgated by this court in Wong and Leung.

76    The guidelines were expressly formulated for application to sentences in which the offender's participation is at the level of courier or other low rank. The range of sentences promulgated as applicable to a participant at that level, in relation to the quantity of cocaine here involved, is eight to twelve years. However, having regard to the finding of fact about the applicant's role, (and disregarding the finding about prior criminality), an increment was appropriate; a sentence in the Wong and Leung range would have been inadequate (see Wong and Leung, paragraph 141). Further, the applicant could not have expected to be sentenced as though he were guilty of only one offence (as envisaged by the guideline); account had to be taken of the two additional offences, both of which were very serious, one of which carried a maximum term of life imprisonment, and which together showed that the applicant's overall criminality went well beyond mere participation in the importation and extended to involvement in concealing the proceeds of the crime and the distribution of the cocaine.

77    Given these two factors which very significantly increased the range appropriate to the applicant's trio of offences, I would not be prepared to say that the sentences were (or the sentence on the s 233B count was) manifestly excessive, although, as I have previously observed, that sentence was, in my view, at the very top of the available range. However, combination of the facts that the sentence was at the top of the available range, and the error I have identified in the finding of prior criminality, prompts me to conclude that appellate error has been established in the sentence imposed on this count. In relation to the s 233B count, I would grant leave to appeal, allow the appeal, quash the sentence and re-sentence the applicant. The sentence I propose in substitution is one of imprisonment for sixteen years with a non parole period of ten and a half years. I would not interfere with the sentences on the other charges.

78    DOWD J: I have read the reasons and proposed orders of Bell J in draft form. I agree with Bell J.

79    BELL J: I have had the advantage of reading in draft form Simpson J’s judgment in this matter. I gratefully adopt her Honour’s statement of the facts. In para 37 her Honour summarises the five grounds upon which Mr Byrne SC invited us to conclude that Judge Latham had erred. I am in agreement with her Honour’s reasons as to Grounds (iii) no or inadequate recognition of the pleas of guilty; (iv) that the Judge’s assessment of the applicant’s role was flawed and (v) that the sentence was not in conformity with the guideline promulgated by this court for offences contrary to 233B(1)(d) of the Customs Act 1901 (“the s 233B count) in R v Wong and Leung [1999] NSW CCA 420; 48 NSWLR 340.

80    I also agree with her Honour’s conclusion that Ground (i) which relates to the contention that Judge Latham erred in imposing a sentence above the range proposed by the DPP has not been made good. For my own part, I do not read Judge Latham’s reference to the range suggested by the Crown (at p7) as being referable to other than the s 233B count. The sentence hearing was conducted on 14 December 1999. The proceedings were then stood over to 2 pm on Thursday, 16 December, 1999 for sentence. Wong and Leung was handed down on that day. In the event, it appears that her Honour entertained further submissions as to the effect of Wong and Leung on 16 December and pronounced sentence the following day. Judge Latham’s remarks concerning the range contended for by the Crown appear in the context of a discussion of the range proposed in Wong and Leung. I do not understand her Honour to have determined to impose a sentence in excess of the range for which the Crown had contended.

81    The three offences for which the applicant stood for sentence formed part of a single episode of criminal offending. For this reason it was common ground that the sentence imposed in respect of the s 233B count ought to reflect considerations of the totality of the applicant’s criminality and that concurrent sentences might be imposed with respect to the remaining two counts.

82    I find myself unable to agree with Simpson J with respect to Ground (ii) by which the applicant contends that Judge Latham wrongly took into account other criminal activity for which the applicant had not been charged.

83    The indictment charged the applicant in each case with the commission of the subject criminal conduct between 20 January and 5 May, 1997. At the sentence hearing an agreed statement of facts was before the Court. In addition to the statement of facts the transcripts of lawfully recorded conversations between the applicant and others said to be involved in the criminal enterprise were tendered without objection. The first paragraph of the statement of facts includes the assertion:

“Weininger told Gordon that he was involved in a continuing cocaine importation syndicate.”

84    That assertion found support in the transcript of the conversation between the applicant and an informant named Gordon. That conversation took place within the period limited by the indictment. In the course of this conversation the applicant made statements suggestive of his involvement in the importation of cocaine as having commenced prior to the subject offences.

85    I am not persuaded that Judge Latham erred in the approach she took to this material. In his written submissions Mr Byrne contended:

“There was a distinct flavour throughout the remarks on sentence that Mr Weininger was being penalised for what the learned judge concluded to be other criminal activity in which he was engaged but for which he was not charged. It was not suggested on his behalf that this conduct represented an “isolated lapse”, but the principle is clearly explained in this court’s decision in JCW [2000] NSW CCA 209 (unreported) 5 June, 2000. Where there are other offences apparently committed but they have not been charged, they cannot be relied upon to aggravate the sentence imposed.”

86    As Simpson J observed the submission that it had not been put on the applicant’s behalf that his conduct was an isolated lapse is untenable.

87    I agree with Simpson J’s view that an analysis of Judge Latham’s reasons do not suggest that she sentenced the applicant for crimes with which he was not charged.

88    On the applicant’s behalf evidence was led with a view to suggesting that the applicant’s involvement in the subject offences was uncharacteristic. This material is summarised in Simpson J’s judgment at paras 19 - 21. It is in this context that Judge Latham’s observations (at p 10) need to be considered. Her Honour said:

“The prisoner’s prior good character in the sense that he comes before this Court without any prior convictions is a matter which must receive some recognition. However, in the fact of strong evidence establishing the prisoner’s participation in cocaine importation by the same syndicate for some period of time before the commission of the instant offences, he cannot be treated as a first offender with the attendant leniency that that status usually attracts. (p 10)”

89 Section 16A(2)(m) of the Crimes Act 1914 requires the sentencing court to take into account (to the extent the information is known), “the character, antecedents, cultural background, age, means and physical or mental condition of the person”. The act does not specify the way in which the character and antecedents of a person standing for sentence are to be taken into account. At common law it is accepted that a prisoner’s good character may operate to reduce the sentence which would otherwise be appropriate. The absence of a record of criminal convictions has been taken by sentencing courts, without more, as some evidence of the prisoner’s good character; Giles v Barnes [1967] SASR 174 per Bray CJ at 180; and see the discussion in Thomas Principles of Sentencing 2nd ed (1979), Heinemann, at p 197 - 200.

90    The fact is that the applicant had no prior criminal convictions. Latham DCJ acknowledged this, noting that it was a matter which must receive some recognition. I understand her Honour’s remarks, extracted at para 85 above, to convey that she was not persuaded that the absence of criminal convictions spoke of the applicant’s good character. Accordingly she was not disposed to mitigate the sentence to any significant degree on this account.

91    Judge Latham considered that the applicant had failed to make good a claim for leniency (that generally he was a person of good character as evidenced, in part, by his lack of criminal convictions). It was not necessary for the Crown to prove beyond reasonable doubt that the applicant had participated in cocaine importation prior to the commission of the subject offences before it was open to her Honour to so conclude; R v Olbrich [1999] HCA 54; 166 ALR 330 at paras 24 - 28.

92    I respectfully agree with Simpson J that the sentences imposed upon the applicant were very heavy ones. I consider that they were at the top of the range. However, I am not of the view that they were outside the proper exercise of discretion. In this regard I take into account her Honour’s finding that the applicant occupied a relatively senior position in the hierarchy of the importation syndicate. Further, although the three offences represented a single episode of criminal offending, it was appropriate for her Honour to reflect in the sentence imposed with respect to the s 233B count the totality of the applicant’s criminality. This included that the applicant’s involvement extended beyond the importation of the cocaine and embraced an agreement to distribute prohibited drugs.

93    For these reasons I would propose that the application for leave to appeal be allowed but that the appeal be dismissed.

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