GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
DANNY WEININGER APPELLANT
AND
THE QUEEN RESPONDENT
Weininger v The Queen
[2003] HCA 14
2 April 2003 S24/2002
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation:
P Byrne SC with H K Dhanji for the appellant (instructed by Legal Aid Commission of New South Wales)
P S Hastings QC with M M Cinque for the respondent (instructed by Director of Public Prosecutions (Commonwealth))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Weininger v The Queen
Criminal law – Sentencing – Absence of prior conviction – Requirement to take into account "character and antecedents" in s 16A(2)(m) Crimes Act 1914 (Cth) – Whether absence of prior conviction gave rise to inference of lack of prior criminal conduct – Neither negative nor positive inference drawn – Absence of prior conviction did not demonstrate absence of prior criminal conduct – Whether absence of prior conviction relevant to sentencing apart from significance as to past character.
Criminal law – Sentencing – Relevance of uncharged criminal acts – Whether sentencing judge entitled to take such acts into account in determining sentence – Whether acts relevant to prisoner's entitlement to leniency otherwise on the ground that he was a first offender – Whether relevant to consideration of the prisoner's character – Whether in context of very heavy sentence such consideration indicated error of sentencing principle.
GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. This matter was said to present two issues of sentencing principle. They were identified as being, first, is a sentencing judge entitled to take into account an offender's commission of other offences with which the offender has not been charged and commission of which the offender does not admit? Secondly, if those matters may be taken into account, which party bears the onus of proof and what is the requisite standard of proof?
The present appeal is not to be decided by consideration of questions framed at this level of abstraction and generality. In so far as the appellant was to be sentenced as a federal offender, the principles to be applied in fixing the sentence were prescribed by Pt 1B of the Crimes Act1914 (Cth) ("the Crimes Act") and, in particular, Divs 1 to 4 (ss 16 to 19AK) of that Part. Although it may be doubted that sentencing the appellant on the third count to which he pleaded guilty (a State rather than federal offence) engaged principles having any different content, the argument in the courts below and in this Court has focused only on the federal offences. No doubt this was because the sentences imposed for the federal offences were heavier than the sentence imposed for the State offence, and the term of imprisonment to be served for the State offence…
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.
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AGLC
Weininger v The Queen [2003] HCA 14
Case
[2003] HCA 14
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Danny Weininger against a sentence imposed by the District Court of New South Wales, which was upheld by a majority of the New South Wales Court of Criminal Appeal. The dispute concerned the principles of sentencing, particularly how a sentencing judge should approach the absence of prior convictions and the relevance of uncharged criminal acts.
The legal issues before the High Court were whether the absence of prior convictions could give rise to an inference of a lack of prior criminal conduct, and whether such an absence was relevant to sentencing beyond its significance to past character. Additionally, the court had to determine if a sentencing judge was entitled to take uncharged criminal acts into account when determining a sentence, particularly in relation to a prisoner's entitlement to leniency as a first offender or in assessing their character, and whether such consideration indicated an error of sentencing principle, especially in the context of a very heavy sentence.
The High Court reasoned that the absence of prior convictions does not necessarily demonstrate the absence of prior criminal conduct, nor does it automatically give rise to a positive inference of good character. While s 16A(2)(m) of the *Crimes Act 1914* (Cth) requires consideration of a offender's character and antecedents, the absence of a conviction is merely one factor among many. The court held that a sentencing judge is entitled to consider evidence of uncharged criminal acts when assessing an offender's character and the appropriate sentence, provided this consideration does not amount to punishing the offender for those uncharged acts. The majority of the Court of Criminal Appeal had correctly found that the sentencing judge was not persuaded that the absence of convictions spoke of good character and was therefore not disposed to grant significant leniency on that account.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
This is an appeal concerning sentencing principles. It comes from a decision of the New South Wales Court of Criminal Appeal in which that Court divided[19]. Problems of the kind presented by the appeal have sometimes been described as "metaphysical"[20]. Certainly, they demonstrate the truth of the observation that, in the difficult task of sentencing, facts can, "Janus-like"[21], take on a dual aspect. The importance of the appeal is that it affords an opportunity to consider the way in which the "metaphysical" problem should be approached, given that it can have large practical consequences for the liberty of a prisoner.[19]Weininger (2000) 119 A Crim R 151.[20]R v Reiner (1974) 8 SASR 102 at 105 per Bray CJ; JCW (2000) 112 A Crim R 466 at 472 [34] per Spigelman CJ.[21]Ryan v The Queen (2001) 206 CLR 267 at 310 [144].The facts Mr Danny Weininger ("the appellant") appeared for sentence in December 1999 in the District Court of New South Wales before the sentencing judge (Latham DCJ). He had pleaded guilty to an indictment containing three counts, two relating to federal offences. One of the federal offences was against the Customs Act 1901 (Cth)[22] ("the importation offence"). The other was against the Crimes Act 1914 (Cth) ("the Crimes Act")[23]. The third count of the indictment alleged an offence against the Drug Misuse and Trafficking Act 1985 (NSW), a State Act[24]. The State offence related to the same quantity of cocaine that was the subject of the federal charges. [22]s 233B(1)(d) (knowingly concerned in an importation of a commercial quantity of cocaine).[23]s 86 (conspiracy to launder money contrary to s 81 of the Proceeds of Crime Act 1987 (Cth)).[24]ss 25, 26 (conspiracy to supply a large commercial quantity of cocaine). Upon the appellant's plea, the sentencing judge convicted him. Without objection, she received a statement of facts, two transcripts of intercepted conversations, a prison psychologist's report, written testimonials, and a document showing that the appellant had no criminal record in Israel, the country of his birth. The sentencing judge heard oral evidence from the appellant's de facto wife and from the mother of his former de facto wife, the carer of the appellant's young son. One of the transcripts of an intercepted conversation, recorded pursuant to warrants issued under the Customs Act, contained only minor interventions by the appellant. However, the other transcript included a lengthy recorded conversation between an informant of the Australian Federal Police and the appellant from which it might be inferred that the appellant acknowledged dealing in drugs in Australia over a period before the subject offences and being involved in unspecified earlier acts of importation of prohibited drugs[25]. The appellant gave no evidence of his own in the sentencing proceedings. It was accepted that he had no prior criminal convictions in Australia. Extracts from the statement of facts tendered before the sentencing judge appear in other reasons[26].[25]Extracts appear in the reasons of Callinan J at [99].[26]Reasons of Callinan J at [100].The sentence
Later still, the sentencing judge acknowledged that the appellant was "facing a lengthy sentence of imprisonment for the first time"[33], that Mr Geraghty "has pleaded guilty to two additional offences of importation of a commercial quantity of cocaine" and that it was necessary to "take into account the factors referred to in s 16A of the [Crimes Act]"[34]. Her Honour's only reference to the federal and State charges, additional to the importation offence, was that they demonstrated that "[T]his is not a case of objective criminality ceasing at the point of importation"[35]. The evidence was not differentiated with respect to those separate offences.[33]Sentencing judge's sentence at 11.[34]Sentencing judge's sentence at 12.[35]Sentencing judge's sentence at 13.The decision of the Court of Criminal Appeal In the Court of Criminal Appeal, the appellant raised a number of complaints concerning the severity of his sentence. Most of these[36] were unanimously rejected by that Court. They do not concern this Court. However, upon two points the judges disagreed. The majority (Bell J, with whom Dowd J concurred without separate reasons) rejected two errors identified by Simpson J. These were that the sentencing judge had, in effect, increased the sentence imposed on the appellant in the light of a finding of criminal activity by him for which he had not been charged or convicted and wrongly attributed to him a greater level of involvement in such criminal conduct than had been proved beyond reasonable doubt by the evidence adduced in the sentencing proceedings. [36]Including that the sentencing judge had sentenced outside the range proposed by the prosecutor without giving reasons or due notice; and that the sentencing judge had erred in departing from a guideline judgment in R v Wong (1999) 48 NSWLR 340; cf Wong v The Queen (2001) 207 CLR 584. In rejecting these arguments, Bell J, for the majority[37], pointed out that the sentencing judge had acknowledged the appellant's lack of prior criminal convictions and that he was entitled to receive some recognition for that fact. So far as the references to involvement in uncharged criminal acts, Bell J said[38]:"I understand her Honour's remarks … 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.[The sentencing judge] 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."[39][37]Weininger (2000) 119 A Crim R 151 at 165 [90]. See also extracts in the reasons of Callinan J at [105]-[107].[38]Weininger (2000) 119 A Crim R 151 at 165 [90]-[91].[39]Citing R v Olbrich (1999) 199 CLR 270 at 280-281 [24]-[28].