Weininger v The Queen

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S24 of 2002

B e t w e e n -
DANNY WEININGER
Appellant
and
THE QUEEN
Respondent

GLEESON CJ

McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 SEPTEMBER 2002, AT 10.16 AM

MR P. BYRNE, SC: If the Court pleases, I appear for the appellant with my learned friend, MR H.K. DHANJI. (instructed by Legal Aid Commission of New South Wales)

MR P.S. HASTINGS, QC: If the Court pleases, I appear with my learned friend, MS M.M. CINQUE, for the respondent. (instructed by the Director of Public Prosecutions (Commonwealth))

GLEESON CJ: Yes, Mr Byrne.

MR BYRNE: Your Honours, this is an appeal which raises a question which, in our submission, is an important question of principle in sentencing procedure. The issue which the Court is called upon to decide is essentially derived from a statement made by the learned sentencing judge at first instance in her remarks on sentence. That statement is set out in the appeal book at page 19. If I can draw your Honours’ attention to the passage which appears immediately below line 15 on page 19 of the appeal book, her Honour said this:

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.

GLEESON CJ: I notice at the bottom of page 14 and the top of page 15 there is a finding of fact.

MR BYRNE: Your Honour refers to that proposition that the appellant in this matter occupied the position in the syndicate “by dint of his expertise and his proven worth to the principal”?

GLEESON CJ: Yes.

MR BYRNE: We would submit that that finding of fact is one which was not open to the learned sentencing judge to use as a conclusion and certainly not as material established, or establishing beyond reasonable doubt, that the appellant ‑ ‑ ‑

GLEESON CJ: Was it open to her to use that finding of fact for the conclusion that he occupied a relatively senior position in the hierarchy?

MR BYRNE: Yes, she was, in our respectful submission, entitled to refer to his position in the hierarchy in so far as it related to the offences for which he was being sentenced but it was not open to her Honour, in our submission, to conclude that because he was, as she described the appellant, a person of “proven worth to the principal”. That meant and it certainly did not establish beyond reasonable doubt that he had been involved in other cocaine importations apart from that which was the subject of the offences for which the appellant was being sentenced.

Your Honours, that finding of fact which the learned judge made which your Honour the Chief Justice has referred to is also reflected in other findings of fact which the learned sentencing judge made which are, in our submission, in error.

GLEESON CJ: What was the evidentiary basis for that finding about his relatively senior position in the hierarchy?

MR BYRNE: It was primarily derived from material which had been obtained by intercepts of conversations between the appellant and the person who was said to be the principal in this hierarchical organisation.

HAYNE J: Now, how did that come to the attention of the sentencing judge? I see that there was a statement of facts. Did the judge listen to the tapes or is this something that finds reflection in the statement of facts which we do not have?

MR BYRNE: It is in both sources. It was in the statement of facts and it was also – the material tendered to her Honour on sentence is set out on page 3 of the appeal book. The important material tendered by the Crown establishing the background was the statement of facts which was a relatively lengthy statement of facts.

KIRBY J: Should we not have that?

CALLINAN J: Yes, exhibit A, not reproduced.

KIRBY J: I think we have to have it and it is part of the record.

MR BYRNE: It was. It should be said, your Honours, however, that the proposition was put in the submission that my learned friends made for the Crown that the appellant should be dealt with as a person who was – and I use the expression that was used by their submissions, which is reflected in her Honour’s remarks on sentence – a junior partner in the hierarchical organisation of which he was a member.

KIRBY J: Let me interrupt you. This Court and other courts of appeal have said many times that sentencing is not a scientific operation. It is partly intuitive and judgmental based on a whole range of material. Now, the judge then gives expression to the reasons that have brought the judge to conclusion and the critical matter that brought the primary judge here to conclusion was exhibit A and I really do not feel that I can do justice to the case without having it.

CALLINAN J: I agree with Justice Kirby. I really do not understand what is being spoken about, without seeing that.

HAYNE J: Could I add to it. I, for my part, think we ought to have the transcripts, if it is B and C.

MR BYRNE: We will certainly do what we can to arrange the production of that material to the Court.

KIRBY J: It should be here.

CALLINAN J: Any submissions that are made really have been made in a partial vacuum, if that is so, without those documents.

MR BYRNE: I accept what your Honour says.

KIRBY J: It may not be fair to the sentencing judge.

MR BYRNE: I think the reason for their absence may be found at – and it may not be an adequate explanation, but it is a case where there was no real dispute about the proposition put forward by the Crown in its submissions that this appellant should be dealt with as a junior partner.

GLEESON CJ: Well, like a lot of sentencing proceedings, it was conducted on a factual basis that was manifestly incomplete because the one person whose explanation or evidence the sentencing judge did not have was the offender and the reasons why offenders in the case of charges like this do not give evidence do not require much imagination to deduce. They might be at some degree of peril if they gave a full account of what was going on. But questions of onus of proof, for example, are raised in the written submissions in this matter. Now, it is very difficult for us to deal with issues like that without seeing exhibits A, B and C.

McHUGH J: From my recollection, this appeal book is much thinner than the application book that we had, is it not?

KIRBY J: You are not getting cagey, are you, Mr Byrne?

McHUGH J: From my notes on the special leave application I have a reference to application book at page 73, a note that in the agreed statement of facts the parties agreed that the applicant told Gordon that he was involved in a continuing cocaine importation syndicate. The application book, page 76.

CALLINAN J: How soon can we get these documents?

KIRBY J: Mr Hastings might have exhibit A.

MR BYRNE: We certainly do not have clean copies of the materials.

HAYNE J: They might be very revealing, Mr Byrne. It might help us.

GLEESON CJ: Are there available in Court exhibits or copies of exhibits A, B and C?

MR HASTINGS: Yes.

GLEESON CJ: Well, let us have them.

MR HASTINGS: I need to photocopy them, your Honour. We have copies of some, the statement of facts. We have the appeal book from the court below which has the other exhibits in it. We can simply photocopy those and you can have them shortly.

GLEESON CJ: Well, have you enough copies for us of exhibit A right now?

MR HASTINGS: No, only four.

GLEESON CJ: Yes, well, why do not you get the photocopying into action now and you go ahead with your submission, Mr Byrne.

MR BYRNE: May it please, your Honour. Your Honours, the situation that has arisen in relation to the appeal book, really derives – and as I say it may not be an adequate explanation – but the area of dispute between the parties was relatively confined, and it should be said that the point which is raised on behalf of the appellant is one which depends primarily on the reasons for decision of the learned sentencing judge, and the various members of the Court of Criminal Appeal.

GLEESON CJ: Yes, but we also, inconvenient as it may be to both parties, are sometimes interested in the merits.

MR BYRNE: I accept what your Honour says.

GLEESON CJ: If you look, for example, at page 7, the evidence of Ms Boynton, Ms Boynton informs the court that the offender is “very sorry for what he has done” and says, in relation to a matter about which he has pleaded guilty to three charges, that this “is a one-off thing”.

KIRBY J: I think that is a point that is made somewhere, that the suggestion is it is to be regarded as the one enterprise.

MR BYRNE: Yes.

KIRBY J: I do not know, because I do not know enough about the facts, whether that is a fair point, but in the special leave hearing that was one of the points that was made, I think.

MR BYRNE: Certainly. The proposition was put to the learned sentencing judge, and it is reflected in her remarks on sentence as it is in the two judgments in the Court of Criminal Appeal, that the argument on behalf of the appellant was that although there were three charges involved, and it did cover a relevantly lengthy period from January 1997 until May 1997, it was a matter which could legitimately be described as a single episode of criminality and that had certain consequences in terms of the way in which the sentence for each of those individual offences should be structured.

Your Honours, if I can just take up that issue that was raised by your Honour the Chief Justice’s question about the finding by the learned judge which appears at the bottom of page 14 and the top of page 15 of the appeal book where her Honour refers to ‑ what she describes as, “the expertise and proven worth” of the appellant.

There is further reference to that matter and specific findings of fact made by the learned sentencing judge, firstly at page 19 of the appeal book, where her Honour says this in relation to him – and this is an important matter in determining the question that is essentially raised, the use that can be made of what are suggestions of prior criminal activity but no proof, and certainly not proof beyond reasonable doubt of prior criminal activity on the part of the appellant. What her Honour said was this:

He claimed not to have any insight into the effects of drugs prior to his incarceration and denied any prior involvement in drug importation, both of which I reject as being entirely inconsistent with the evidence and the prisoner’s personality and background.

The only evidence in relation to that matter, that is suspected prior involvement in drug importation, was statements made by the appellant in conversations that he was recorded as having with people with whom he was dealing in relation to this offence, the offence which is the subject of the sentences.

GLEESON CJ: To whom did he deny any prior involvement in drug importation?

MR BYRNE: He denied that to two people, as the evidence disclosed: firstly, to his parents, who wrote a testimonial which was tendered on his behalf in the sentence proceedings, and he also said words to similar effect to a psychologist who prepared a report which was tendered to the court by the Crown.

GLEESON CJ: Right. So there was hearsay evidence before the sentencing judge from his parents and from a psychologist that he had told them that he had not been previously involved in drug importation?

MR BYRNE: Yes.

GLEESON CJ: Now, what exactly did the word “prior” or the word “previously” mean, or was that not clear?

MR BYRNE: In the context of this case, your Honour, it meant drug importations, apart from the one which was the subject of the charges before the court.

McHUGH J: He had a conversation with Gordon on 20 March 1997 and he said that he had been involved in the importation of cocaine on a prior occasion. That is in the tapes.

MR BYRNE: Yes, that was clearly a statement made by him in conversations that he had with the undercover agent. There were also statements which could be said to have exhibited or disclosed on his part knowledge of other prior importations which had been carried out and knowledge of people who were involved in those prior importations but not necessarily his participation in those importations.

GLEESON CJ: Now, you appeared, I think, in the sentencing proceedings?

MR BYRNE: Yes, your Honour.

GLEESON CJ: So you tender a letter from the parents.

MR BYRNE: Yes.

GLEESON CJ: And the report from a psychologist ‑ ‑ ‑

MR BYRNE: Well, the Crown, in fact, tendered that.

GLEESON CJ: There is before the sentencing judge a letter from the man’s parents and a letter from a psychologist recording that he had denied to them any prior involvement in drug importation. Then there is evidence, apparently, which we might get to look at, that he had asserted to somebody else in a tape recorded conversation that he had been previously involved in drug importation.

MR BYRNE: Yes.

GLEESON CJ: Now, were you inviting the trial judge to sentence him on the basis that he had been or that he had not been involved in prior drug importation?

MR BYRNE: We were asking the sentencing judge to sentence him on the basis that he had no prior convictions and there was no material before the court upon which the court could be satisfied beyond reasonable doubt that he had been involved in any other criminal activity apart from the matters which were the subject of the three charges before the court.

GLEESON CJ: Were you inviting the court to extend leniency to him on the ground that he had never previously been involved in any drug importation?

MR BYRNE: We were asking the court to deal with him as a first offender and to give him the leniency that that fact usually attracts in the assessment of sentence. To characterise it as a process of the appellant seeking to ask the court for leniency may tend to be somewhat misleading in the context of the way in which these issues are dealt with in sentence proceedings. The proposition that we were putting to the court on behalf of the appellant was that he should be dealt with as a first offender because he had no prior convictions. That material that was before the court in the recorded statements which suggested that he may have been involved in other importations was not material which was sufficient to disentitle him from that leniency which normally flowed from the fact of his being a first offender because, by themselves, those conversations were not enough to establish that he had, in fact, been involved in the importations which he referred to. It is a classic situation that is confronted all the time in these types of cases where an individual is involved in criminal activity of a high order. It is natural enough for them to want to demonstrate to others who are involved that they are experienced and accomplished rather than inexperienced or naïve about the way in which these things operate.

So a mere assertion by a person involved and clearly involved in illegal drug activity at a fairly high scale, a mere assertion by that person that they have been previously involved is not something which could establish that fact beyond reasonable doubt. Indeed, the Crown effectively recognised that by never seeking to prosecute this appellant.

KIRBY J: I suppose you can say that it can be tested this way, that if now the Crown prosecuted him in respect of some earlier involvement, he would stand for sentence for that earlier involvement and even now could be sentenced for it.

MR BYRNE: If he were convicted of it, yes.

KIRBY J: Yes, and if he were convicted, he would be punished for that, and tested that way he is, in a sense, you are contending, being punished to the level of two years for something for which he has not pleaded guilty and not been convicted.

MR BYRNE: Yes.

McHUGH J: But does your argument really do justice to what the judge did in this case? She did give him leniency. Is not the critical passage in the judgment at page 19, between lines 15 and 30, where she 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.

And then she goes on, because of:

the strong evidence establishing the prisoner’s participation in cocaine importation by the same syndicate . . . he cannot be treated as a first offender with the attendant leniency that that status usually attracts.

So she gave him some recognition for the fact that he had no prior convictions but she was not going to treat him as the pure first offender.

GLEESON CJ: That is the way I read it. It must say when I read that passage I thought she was saying, “I am going to give him some credit for the fact that he has no prior convictions but I am darned if I am going to treat him as a cleanskin.”

MR BYRNE: That is, with respect, in essence what the learned judge did do but that, in our submission, was a wrong approach. He was, as far as the law is concerned, to use your Honour’s expression, “a cleanskin”.

GLEESON CJ: Mr Byrne, you may have some clearer recollection than I do of this but there is a little area of sentencing practice in relation to those couriers ‑ that is not this case – but the mules, you know. There is some remarks in judgments somewhere, is there not, about the significance of the fact that they are first offenders? My recollection is that some sentencing judges have said, “Of course they are first offenders. They are the sort of people who are useful to drug importation syndicates because they have no prior convictions.” And they do not get the same benefit from having no prior convictions as people do in other circumstances, do they? In one sense they are trading on the fact that they have no prior convictions to make themselves attractive to people who engage their services.

MR BYRNE: Yes, what your Honour says is quite correct, that there are decisions to that effect but those decisions ‑ ‑ ‑

KIRBY J: It sounds a somewhat dubious principle to me.

MR BYRNE: Those decisions would, in our submission – at least they have not as far as I am aware, but they would need to be reviewed in the light of this Court’s decision in Ryan.

GLEESON CJ: My recollection is that just reflected an attitude that there is no, as it were, standard leniency that you get for being a first offender or a person without prior convictions. It depends on the circumstances.

MR BYRNE: Certainly. It may be that there are situations, and there clearly are situations, where the offence is so serious that notwithstanding it is committed by a person who has not previously offended that it may be a case where the maximum penalty is nevertheless deserving. It is not every case where the absence of prior convictions results in a reduction in the sentence that is otherwise imposed. But the difficulty with this case is not that the learned judge said, “I am not going to give you a discount”, for a specific reason which may have been legitimate. What the learned judge said in this case was, “I am going to withhold leniency from you by reason of the fact that I believe you have previously offended”, and there was no evidence before her that he had previously offended.

HAYNE J: Is that right? You say no evidence. Is not the difficulty with the proposition you have just advanced a difficulty of speaking in absolutes? You speak as though leniency is all or nothing. You speak as though there was no evidence. There was at least the evidence of the tapes, was there not?

MR BYRNE: But that evidence, in our submission, your Honour, was not sufficient to establish ‑ ‑ ‑

HAYNE J: I understand the point about sufficiency of evidence but the point to which I draw your attention is that the proposition you are advancing is cast in terms of absolutes and what I invite your comment on is whether that is right, both as a matter of fact in this case and, ultimately, as a matter of principle.

MR BYRNE: In our submission, it is right, as a matter of fact in this case, and principle. This Court has said on many occasions and reaffirmed it in both the joint reasons of the majority in Olbrich and in Justice Kirby’s dissenting judgment referring back to the principles established in De Simoni that a person cannot be sentenced for offences of which he or she has not been convicted. This situation is equivalent to that in the sense that the person is getting a heavier sentence than he otherwise would have, by reason of consideration of offences of which he has not been convicted. That is the factual problem in this case and it is the question of principle that arises in this case.

CALLINAN J: Mr Byrne, could just raise another matter with you? Your client pleaded guilty to conspiracy.

MR BYRNE: No, your Honour.

CALLINAN J: He did not plead the conspiracy charge?

MR BYRNE: No, your Honour, it is a form statutory conspiracy, I suppose, but it was strictly an offence of being knowingly concerned.

CALLINAN J: I was just looking at what her Honour said at the beginning of her sentencing remarks at page 10, on:

one charge of conspiring to supply a large commercial quantity of cocaine –

and that was the charge in the indictment, or one of the charges.

MR BYRNE: I am sorry, your Honour?

CALLINAN J: Page 10. The prisoner pleaded guilty to:

one charge of being knowingly concerned –

And then:

one charge of conspiring to launder money ‑ ‑ ‑

MR BYRNE: I am sorry, your Honour. I was looking at the major charge. Your Honour is quite correct.

CALLINAN J: Yes.

MR BYRNE: There was a State charge in relation to the ‑ ‑ ‑

CALLINAN J: He pleaded guilty to “conspiracy”. I gather there were no overt acts provided to your client. There is no reference to them in the material. Is that right? Let me tell you why I am raising this matter with you. In a conspiracy charge, inevitably the evidence extends, usually, as a practical matter, far beyond the evidence that would be given in relation to other charges. A great deal of material is often admissible and relevant to a conspiracy charge that would not perhaps be admissible in relation to other charges and that is why I put that matter to you.

There may be material in exhibit A which is probative and, indeed, in the transcripts, or in the telephone conversations, which are probative of the conspiracy charge which your client is taken to have admitted and which may be highly relevant to the sentences. I am not saying that is so but it is a possibility which I think you may have to meet.

MR BYRNE: Your Honour, that charge essentially related to the offence of distributing the cocaine once it has been imported and that ‑ ‑ ‑

CALLINAN J: It says it is money laundering.

MR BYRNE: That was a third charge. What the tapes captured was an arrangement between this appellant and others.

CALLINAN J: I know that but I am not concerned about that at the moment. I am concerned about the charges and there is a charge of conspiracy.

MR BYRNE: Yes.

CALLINAN J: Conspiracy of money laundering – money inevitably involves money which has been unlawfully obtained or whose source lies in crime and that may open the doors to a great deal of evidence relevant to that topic which a sentencing judge would be entitled to take into account.

MR BYRNE: I accept that, with respect, your Honour, but what happened in this case was that the conversations that were intercepted between the appellant and others ranged over three separate topics which were the subject of the specific offences.

In the first place they were talking about bringing in the prohibited drugs. There was then discussion about what would be done to, in effect, export the money that was obtained through their sale back to America, and the third topic of conversation, which was reflected in one of the charges, was arrangements they had made to distribute the drugs once they had been imported. So that those three different fields of activity, but all related to the same general criminal enterprise, were caught on the tapes.

All of that material was before the learned judge, and as your Honour said, there were pleas of guilty to each of the charges, so that the offences were conceded. The outline of facts that was ‑ ‑ ‑

CALLINAN J: What I am really putting to you is, is there any basis for saying that the discussions about prior occasions or other importations may have been relevant to and able to be received as evidence of the conspiracy charges? It is very difficult for us because we do not have any of that material. It is not available yet, I take it?

KIRBY J: Her Honour imposed separate sentences in respect of the State charges and they are at page 22, I think?

GUMMOW J: Yes. That brings us to section 16A, does not it, of the Crimes Act, in relation to the conspiracy – in particular 16A(2)(c)?

MR BYRNE: Would your Honour excuse me? I have not got the legislation directly in front of me. I apologise. It has been left ‑ ‑ ‑

HAYNE J: You had better have it, Mr Byrne. Have mine.

MR BYRNE: Thank you, your Honour.

KIRBY J: But presumably the series of criminal acts mean, would it not, criminal acts of which the person has been convicted? It cannot be unconvicted criminal acts, surely?

MR BYRNE: I am sorry, your Honour. I just missed what you said.

KIRBY J: In 2(c), you see, it says:

if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct ‑

The question is what “criminal acts” means. It surely cannot mean unconvicted criminal acts. At least, that is how I would approach the statute.

MR BYRNE: No, your Honour. What is often said about that particular provision is that that is the legislative reflection of the general sentencing principle of totality, that where somebody is coming to be sentenced for a number of offences, if those offences represent a course of conduct, then that should be reflected in the sentence to be imposed rather than imposing individual sentences for each individual offence. In our submission, that was done in this case. There is no challenge to the manner in which the learned sentencing judge approached the task of sentencing for the three individual offences. Her approach in making the sentence in relation to the State charge wholly concurrently with the Commonwealth charge is not the subject of any complaint.

HAYNE J: Since you have my copy of 16A(2), does it refer to prior offences?

MR BYRNE: It does, your Honour.

KIRBY J: Is it (b)?

HAYNE J: And thus distinguishes between offences and conduct consisting of criminal acts?

MR BYRNE: Your Honour, that distinction is probably best found in subsection (2)(m) where the legislation requires the character of the person for sentence and antecedents of the person being sentenced to be taken into account.

GLEESON CJ: Let us just rest on those words, “character” and “antecedents”. You have heard many pleas in mitigation and you know that sometimes counsel will say, “My client has no previous convictions”, and sometimes counsel will say, “This conduct is completely out of character”. They are two different things. One is a reference to antecedents and the other is a reference to character. What do you take to be the difference between a statement, “My client has no prior convictions”, and a statement, “This conduct is completely out of character”?

MR BYRNE: Your Honour, the statement that a person has no prior convictions raises character in a negative sense. Where somebody has no prior convictions, they are entitled to the benefit of that fact in the determination of sentence.

GLEESON CJ: But are they entitled to the assumption that the conduct in question is out of character?

MR BYRNE: That would depend on other evidence.

GLEESON CJ: Other evidence here was that this was a one‑off. Were you inviting Judge Latham, or might she have fairly regarded herself as being invited, to deal with your client not only on the basis that he had no prior convictions but also on the basis that this conduct was completely out of character?

MR BYRNE: We were inviting effectively both; certainly the first. That specific submission was put that he should be entitled to the benefit of the fact that he has no prior convictions. The proposition that it was uncharacteristic was effectively relied on by suggesting, according to the material, that he had not previously offended in that way and that he had told people that he had reached the determination that he would not do that again in the future. But that is of limited value, I accept.

GLEESON CJ: Yes, it is taking it a step further from the fact of no prior convictions when one way or another you mount an assertion that this conduct is aberrant.

MR BYRNE: It was not put on the basis that it was aberrant and it could not realistically be put either as being what is sometimes described as an isolated lapse when the conduct was committed over a period of some four to five months and involved three separate offences. So to speak in terms of an isolated lapse, an aberrant departure from one’s normal conduct, was not really appropriate in the circumstances of this case.

GLEESON CJ: I wonder if Judge Latham was saying anything more than that.

MR BYRNE: Judge Latham certainly did not give him – it does not appear at least – any specific credit for what might be called good character in a positive sense, that is, that he had certain personal qualities which entitled him to credit in the assessment of sentence. But the important matter that was relied on in this appellant’s case was that he did have good character in what is said to be the negative sense, and this notion of the ambiguity of the expression “good character”, which your Honour the Chief Justice has referred to in your Honour’s decision in a case called Levi in the Court of Criminal Appeal in New South Wales, which is in turn cited in Justice McHugh’s judgment in Ryan, that notion of the ambiguity of “character” where there is in a sense a negative aspect of character and a positive aspect. In this case the negative aspect of this appellant’s character was relied on in the sense that he had no prior convictions and he was entitled to the benefit which usually flowed from that.

He was in fact, in our submission, denied that benefit by the learned judge finding that he could not be dealt with as a first offender, thereby not being dealt with as a person who did have a clean record. Your Honours, that is the essence of the complaint that is made in relation to the manner in which the learned judge dealt with that issue of the extent or the nature of the benefit that might be extended to the appellant by virtue of his not having any prior convictions.

The reasons why it is submitted that the approach taken by the learned judge was wrong are essentially those which are set out in the judgment of her Honour Justice Simpson. In her Honour’s judgment there are two specific errors identified by her. If I can take your Honours to page 47 of the appeal book. What her Honour said, and this is paragraph 65, just along side line 20:

The applicant put himself forward as a person of good character. Specifically, he put himself forward as a first offender.

Now that, in essence, in our submission, involves two separate considerations on the question of character. Character is not a thing that can be, as it were, rolled up into a single consideration. There are hidden beneath the proposition of a person putting himself or herself forward as a person of good character, essentially two separate and distinct propositions. That was recognised, with respect, in Justice Simpson’s judgment. She went on to say:

Judge Latham rejected the claim of good character.

And there is no complaint about Justice Latham’s approach in that regard; that was something which the learned sentencing judge was entitled to do. The evidence on that point was not particularly compelling and it was open to her to say, in essence, “Well, I am not satisfied that there are any specific attributes, specific characteristics that the appellant has that are entitled to any weight on the question of assessment of sentence.”

The second aspect of the finding, which is incorporated in her Honour Judge Latham’s rejection of the claim of good character is that that rejection also incorporated a rejection of the applicant’s claim that he was a first offender. That, in our submission, was a mistake. What her Honour did was to say, “I am not going to treat him as a first offender, because there is material before me which suggests that he may have been previously involved in drug importations.” He had never been charged with any previous drug importations and, of course, there were no convictions.

Justice Simpson then gives two specific reasons as to why the learned judge’s rejection of the claim that the appellant should be dealt with as a first offender was in error. Just alongside line 45, her Honours says:

Firstly, it –

that is the fact that the appellant was not a first offender –

was a fact used adversely to the applicant and therefore could not be used unless it had been proved beyond reasonable doubt.

Now, it has never been suggested by the Crown, and it is not suggested, as I understand the Crown submissions on this appeal, that there was sufficient evidence, evidence of sufficient quality, to establish the fact of other offences beyond reasonable doubt. So that her Honour Justice Simpson’s finding, as she put it in the last two lines of her judgment on page 47:

on the material before her, it would not have been open to her to do so ‑

is not, as I understand it, subject to challenge. But the essence of the error that is identified firstly there is an error of the kind which this Court identified in Olbrich. If a fact is to be used adversely to a person coming for sentence, then that fact has to be proved beyond reasonable doubt.

GUMMOW J: I am not sure that is quite right. What the Court was doing in Olbrich 199 CLR 270, at paragraph 17 of the judgment, really was construing the phrases “known to the court”, I think, as they appear from section 16A(2).

MR BYRNE: I accept, your Honour, that the Court was construing that part of the legislation, but ‑ ‑ ‑

GUMMOW J: There always seems to be a fear of looking at the statute. I understand.

MR BYRNE: The observations made in the joint reasons of the majority in Olbrich were, in our submission, in emphatic terms on the question of principle that is directly raised ‑ ‑ ‑

GUMMOW J: They said:

The reference to what is “known to the court” . . . mirrors what would be the position in the absence of statutory provision –

in that particular sort of case, I suppose.

MR BYRNE: Certainly, and in the following paragraph ‑ ‑ ‑

KIRBY J: Which is the paragraph?

MR BYRNE: I am sorry, your Honour, it is at paragraph 17, which is on page 278 of the Commonwealth Law Reports, but there is in the following paragraph, the one following, paragraph 18 where it is said in emphatic terms in the third line on page 279:

it would be quite wrong to sentence an offender for crimes with which that offender is not charged.

Now, that is, in effect, what has happened here, in our submission. What has happened is that the appellant has been sentenced by reference to offences for which he has never been charged or convicted. He has received a heavier penalty than he otherwise would have received by reference to offences that are not established against him to the necessary standard.

GLEESON CJ: But you could always say that the person has received a heavier penalty than he would otherwise have received if part of his case in mitigation is rejected.

MR BYRNE: But this is, with respect, not part of his case in mitigation. The existence or otherwise of prior convictions, or other convictions, is not something which a person standing for sentence is required to prove on the balance of probabilities in the sense that Olbrich required if it was something to be used in his favour. In our submission, there can be a clear distinction made and, indeed, the authorities do make the clear distinction between matters which are to be used in favour of the person standing for sentence and matters which are to be used adversely.

GLEESON CJ: But a statement or a submission that conduct is out of character is a submission advanced in mitigation, is it not?

MR BYRNE: That is, with respect, but a submission that the person standing for sentence has no prior convictions is not a submission in mitigation.

GUMMOW J: I should have referred to paragraph 54 also of Justice Kirby’s judgment which makes the phrase:

“known to the court” amounts to a recognition by Parliament of the varying contexts in which facts will be made known to the court –

et cetera.

MR BYRNE: Yes, and the same point, with respect, your Honour, is made in the immediately preceding paragraph in Justice Kirby’s judgment at paragraph 53 where his Honour says in the second sentence:

It is fundamental that the respondent only be sentenced in respect of the particular offence to which he had pleaded guilty and of which he had been convicted.

Finally, in the last two sentences of paragraph 53:

If the Crown wishes to secure the punishment –

and that word used generally in the sense of an adverse consequence for the person standing for sentence –

of an accused in respect of such aggravated circumstances, it is obliged to lay the charge which would present the guilt of the accused of such offence as an issue for trial. This is a rule of law derived from the basic requirements of fair procedure. This Court has insisted upon it and it has been regularly applied.

GLEESON CJ: You say that Judge Latham treated your client’s involvement in prior drug importations as a matter of aggravation?

MR BYRNE: No, what we say is that the sentencing judge used her conclusion regarding his suggested involvement in prior drug importations adversely to the appellant.

HAYNE J: A propos of that, what do you say her Honour was permitted to do with the second sentence at paragraph 1 of the statement of facts? First, what was the status of the statement of facts? Second, what does the second sentence mean and what was her Honour entitled to do with it?

MR BYRNE: Your Honour, that statement that the appellant “was involved in a continuing cocaine importation syndicate” did not necessarily carry with it the implication that the appellant had previously been involved in ‑ ‑ ‑

HAYNE J: Read on:

and that the syndicate had encountered difficulties with an established method of bringing cocaine into Australia from America.

When taken as a whole, it struck me as meaning that the prisoner had previously admitted that he was involved in a syndicate that was a continuing syndicate that had done things in the past but which had then encountered a difficulty in continuing to do that. Now, what was the judge to do with the statement that is found in this statement of facts?

MR BYRNE: That indicated the manner in which the appellant claimed to be involved in the syndicate. It did not ‑ ‑ ‑

HAYNE J: A claim not thereafter denied, challenged, put in issue. What was she to do with it?

MR BYRNE: It was, in essence, put in issue by reliance on the fact that the appellant had no prior convictions and that he was entitled to the benefit of that. Now, that was not rebutted by a suggestion that he had bragged to some undercover operative that he was an experienced operator who had been in the business a long time. Even that statement, as it is recorded in the second sentence of the facts, simply says that is what he said. It does not say that is what he did.

HAYNE J: Look, I understand that point. My concern is a judge is given this. Was she given it as a statement of agreed or admitted facts?

MR BYRNE: There was no objection made to the tender of the statement of facts. So to that extent, it can fairly be described, with respect, as an agreed statement of facts.

HAYNE J: Yes?

MR BYRNE: But it is simply an agreement that that is what he said. There is no agreement that that is what he in fact did or that is what he was.

GLEESON CJ: Was it put to the judge on the sentencing proceedings that she might conclude or ought to conclude that what he said was untrue?

MR BYRNE: No. The specific material in that second sentence and the general evidence which was disclosed on the tapes which might have gone to other charges was not the subject of any specific reference, as I recall it, on the submissions.

GLEESON CJ: She was not invited to discount this as mere bragging.

MR BYRNE: I have to confess I honestly cannot remember precisely what was said in relation to that but I do know that there was ‑ ‑ ‑

GLEESON CJ: Hang on, we do have a transcript, do we not?

MR BYRNE: Not that I am aware of, your Honours.

GLEESON CJ: Only of the evidence.

MR BYRNE: But the proposition was clearly put that this man was entitled to be dealt with as being a person who had no prior convictions and that this material was not something which would detract from that. It was material that was properly before her Honour as to the nature of his involvement in the offence which was before the court for sentence, or the group of offences which were before the court for sentence.

HAYNE J: Did it demonstrate or go towards demonstrating that he had engaged in conduct of a criminal character similar to the offence for which he stood for sentence?

MR BYRNE: It did not demonstrate that as the necessary standard of proof. It suggested that, it implied that, but it did not demonstrate it or prove it.

HAYNE J: The formula I adopted was intended as a paraphrase of 16A(2)(c), it may not have achieved, but if you look to 16A(2)(c) was this material of a kind which tended towards revelation of a matter with which that paragraph deals?

MR BYRNE: No, your Honour, in my submission, it did not because if that specific sentence is taken to refer to other criminal conduct apart from the charges for which the appellant was being sentenced, then it was not related to the course of conduct for which he was being sentenced, it was related to something else, some apparent prior activity and it is not clear from that whether he merely had knowledge of that other activity or whether he, in fact, participated in it. To simply say that he is involved in a continuing cocaine importation syndicate does not say the way in which he has been involved or how long he has been involved.

The contrast between this appellant and his co‑offender, Mr Geraghty, was very clearly before her Honour. All of the material that was relevant to Mr Gerahty was before her Honour and the Crown had evidence in relation to Mr Geraghty and it is referred to in her Honour’s remarks on sentence, which led the Crown to charge Mr Geraghty with three separate importations, that is, with being knowingly concerned in three separate importations.

KIRBY J: Were they earlier importations?

MR BYRNE: They were and interestingly enough they covered the period of time which is involved in the general facts which were before the learned sentencing judge. Just to explain that submission if I may, your Honours. Can I take your Honours firstly to the first page of her Honour’s remarks on sentence at page 10. What her Honour said there, just below line 35, was:

In October 1996 an Australian Federal Police informant named Gordon approached the prisoner and offered is services as a drug courier.

Then the date leaps to 20 January 1997 and it is of significance that the charges against this appellant relate to the period from 20 January 1997 onwards although his identity was known to the police apparently from October 1996.

What her Honour then said about the offender Geraghty is at page 21 of the appeal book, alongside line 15:

The prisoner’s criminality relative to that of his co‑offender Kevin Geraghty is another aspect of this sentencing exercise to which I have had regard. True it is that Geraghty has pleaded guilty to two additional offences of importation of a commercial quantity of cocaine, but in so far as both Geraghty and the prisoner were involved in the May 1997 importation and have been charged and have pleaded guilty to three offences in common, their respective participation in that enterprise must be reflected in the sentences to be imposed on those three charges. There is therefore a question of parity between them to that extent.

Then her Honour makes the observation:

It is apparent from the facts set out above that Geraghty occupied a position in the hierarchy above that of the prisoner.

Now, the important distinction which was well‑known to her Honour ‑ and we do have copies of the remarks on sentence in relation to Mr Geraghty ‑ was that Mr Geraghty’s other two importations occurred in November 1996 and December 1996, respectively, that is, after the authorities became aware of this man’s involvement in the syndicate, after he would have been under surveillance, but he was not charged with the two offences in November 1996 and December 1996 because there was no evidence to establish his role or his involvement in those two offences.

Geraghty was charged with those two importations because there was evidence to establish his participation in those importations and specifically evidence from one of the co‑conspirators who became a witness for the prosecution and gave evidence against Mr Geraghty of his involvement in the November and December importations but not against this appellant. So that there was a very clear distinction between the activities of Mr Geraghty and the activities of the appellant.

This appellant was not charged with those offences that happened whilst he was aware, apparently, of the activities of the syndicate and it may fairly be said in relation to him that he should not be penalised for those matters in which he had no criminal involvement.

HAYNE J: What sentence was passed on Mr Geraghty? What total effect of sentence?

MR BYRNE: He received a sentence of 25 years with a non‑parole period of 15½ years which, in our submission, gives rise to – and I appreciate that this – I emphasise that is not a matter for this Court but it is a matter which, in our submission, gives rise to “a legitimate sense of grievance” as the expression is used, on the part of this appellant.

KIRBY J: What was the non‑parole period?

MR BYRNE: It was 15½ years, but in relation ‑ ‑ ‑

KIRBY J: So, your client’s non‑parole period was 12 years, is that correct?

MR BYRNE: Yes, he being a lesser – a middle ranking participant, as it is described, Geraghty being at the summit of the hierarchy, Geraghty being involved in three separate offences involving approximately 25 kilograms of cocaine, this applicant, appellant involved in one importation involving 4.3‑odd kilograms. Perhaps we should have sought to put this material before the Court but could I have your Honour’s leave to hand up copies of the remarks on sentence of her Honour Justice Latham on 11 December 2000 in the case of Kevin Michael Geraghty.

GLEESON CJ: Thank you.

MR BYRNE: Your Honours, those remarks on sentence disclose at page 1 the three separate offences, the three separate importations, in which Mr Geraghty was involved to which he pleaded guilty. They are set out at the last full paragraph on the page, being in November 1996, December 1996 and May 1997 and it is said that the prisoner’s role in respect of each of them was that of the principal organiser. The pure quantities of the drugs involved were specified as being 3½ kilograms, the second, 7½ kilograms, and the third, 4.3 kilograms.

GLEESON CJ: Mr Geraghty said, “Smuggling is my business. It’s all I have ever done in life besides teaching.”

MR BYRNE: Then in relation to that, the learned judge found, in the middle of page 4:

I am prepared to sentence the prisoner on the basis that he is a person of good character.

That was fairly generous.

GLEESON CJ: Yes, she had the remarks of Justice Simpson in the meantime in this case.

MR BYRNE: Yes. As I say, that really is perhaps a matter for another place, but it importantly indicates the lack of evidence and it is disclosed in those remarks on sentence that the source of the evidence against Mr Geraghty was one of the group of conspirators who had become a witness for the prosecution.

Your Honours, can I just go back to deal with the two reasons which her Honour Justice Simpson gave for concluding that the approach taken by the learned sentencing judge was in error. I have referred to what her Honour said on page 47 of the appeal book to the fact that this suggestion of prior involvement in other drug importations was used adversely to the applicant even though there was not sufficient material to be satisfied beyond reasonable doubt of it.

The second error, which is identified by her Honour Justice Simpson appears at the top of page 48 of the appeal book, where her Honour says that:

the finding amounted to a finding of guilt of criminal activity with which the applicant was not charged.

Then her Honour made reference to the judgment of the Court in Olbrich and in particular to the joint reasons of the majority in Olbrich and that passage to which I have already referred:

that it would be “quite wrong” to sentence an offender for crimes with which the offender was not charged.

Your Honours, the suggestion that prior convictions or prior criminal activity is a matter which is used favourably to a person coming for sentence and therefore a matter which falls upon that person to establish on the balance of probabilities is one which, in my submission, has been distinguished in decisions of the Court. Effectively, what was held by the Court in De Simoni and what has consistently been followed by this Court following upon the judgment in De Simoni, that a person should not be sentenced for offences of which they have not been convicted, that has been described as a fundamental principle.

It has also been said that so far as other criminality is concerned, that may be an exception to what is suggested to be a general rule that where a person is seeking to rely on evidence as material to be used favourably to them, then the question of prior convictions is an exception in the sense that the question of prior convictions is something which has to be established in evidence from the Crown.

Can I take your Honours to the judgment of the Court of Appeal in Victoria in Storey’s Case [1998] 1 VR 359. As your Honours are aware, this was a specially constituted bench of five judges constituted to consider what appeared to be conflicting decisions made earlier in the court. Of course, the decision in Storey was very strongly relied on by this Court in its judgment in Olbrich.

Your Honours, the particular passage in Storey to which I wish to take your Honours is at page 364. At that page in the joint reasons of the majority at about line 10 on the page, reference is made to an earlier decision of the court in Ali where it is said:

Ali substitutes for the distinction between aggravating and mitigating circumstances a different distinction - that between the circumstances of the offence and the circumstances of the offender.

There was in this case a different distinction again made between matters which were to be used adversely to an offender and those which were to be used favourably to an offender. But the specific observation to which we wish to draw the Court’s attention occurs in the last full paragraph on page 364 where this was said:

As to the circumstances of the offender, it is said, in Ali, that “there are exceptions” to the rule that these must be proved by the offender, and prior convictions are given as an example. The scope of the exception is not clear, nor is the principle by reference to which it is to be allowed.

Your Honours, the reasons why prior convictions should be an exception to the general rule that matters involving circumstances to the offender or matters which are to be used favourably to the offender are, in our submission, three. The first reason is that to make them an exception and to require the Crown to prove prior criminality beyond reasonable doubt is consistent with the well‑established principle in De Simoni. The second reason is that normally matters which are put before a court in favour of an offender will be matters that are peculiarly within the knowledge of the individual offender or matters which the offender has exclusive access to.

Matters relating to the offender’s personal characteristics or to his or her motivation for committing an offence, matters such as the individual’s level of involvement or the fact of his or her remorse are all matters that are within the knowledge of the offender and if they are to be used favourably to an offender, then it is logical to require that those matters be proved in evidence if they are to be relied on by the offender. The fact of other criminality, prior convictions or other convictions, is in a different category. That is not something that is peculiarly within the knowledge of the individual offender. It is something which is within the knowledge of the authorities and it is not unreasonable to require the Crown to prove those matters if they are to be relied on in the assessment of sentence.

The other reason, in our submission, why it is legitimate to keep other criminality or prior convictions as an exception is that if the rule were otherwise, it would lead to what was said by the majority in Storey in another context to be absurd results, or what was said by the majority in this Court in Olbrich to be incongruous results. That is this, that if it were something that had to be established by the offender, the absence of prior convictions or the absence of prior criminality, then it would mean that a person coming for sentence would be required to prove that they have not committed prior offences. That, with respect, would lead to what we would say are in the same category as were used in Storey and Olbrich as absurd or incongruous results.

KIRBY J: Is that your answer to the respondent’s suggestion that the hard puzzle in this case is, was the issue presented on your assertion of an entitlement to consideration of a matter going to leniency, when that amounts, in a sense, to the other side of the coin of the obligation on the prosecution to prove beyond reasonable doubt a matter going to greater culpability? It is like the logical puzzle of the half empty glass. It is a question of which way you look at it. But your submission, for the three reasons you have given, is that you have to look at it in terms of the obligations of the prosecution in this particular case where it goes to prior criminality.

MR BYRNE: Yes.

KIRBY J: Because for reasons of policy, or reasons of sentencing principle, people should not be punished for matters of criminal offences of which they have not been accused, tried, convicted and stand for punishment separately.

MR BYRNE: Yes. What your Honour describes as the hard puzzle, in our submission, can be answered in two ways, essentially. What my learned friends have said is that character, if it is relied on by a person coming for sentence, must be established by that person. The answer to that proposition is that character has two separate components: one, what is loosely described as the negative component of there being ‑ ‑ ‑

GLEESON CJ: What is loose about that description?

MR BYRNE: Well, perhaps my description was loose. I will rephrase that, your Honour. The first answer to what your Honour says is the hard puzzle posed by the Crown’s submissions is that character itself can be divided into two components, one negative, one positive. The negative component is the absence of prior criminal conduct or prior criminal conduct of a relevant kind.

HAYNE J: But all of this analysis that you are undertaking, Mr Byrne, is an analysis that is conducted at a level of abstraction before the plea begins, the question which counsel might have to confront sitting in chambers: who has to adduce material on this subject, who has to adduce material on that subject? We are looking at the problem after the event has occurred. There is material in there. What do you seek to make of attribution of an onus of proof? What is the point that is sought to be made where there is material before the sentencing judge of a particular kind?

MR BYRNE: There is not material before this sentencing judge, in our submission, which establishes anything other than that the appellant should have been dealt with as a first offender.

HAYNE J: That is a point about what must be shown, not who must show it, and I have interrupted Justice McHugh’s expostulation with which I would join, why not, why was there not?

McHUGH J: Having read the transcript of evidence, in the absence of evidence on oath from your client, I would be convinced beyond reasonable doubt, on what he said in those transcripts, that he had been engaged in prior criminal activity. There is just too much detail. I mean, it is totally unrealistic to think that this man had not been engaged in prior criminal activity.

MR BYRNE: With respect, your Honour, none of that detail which he disclosed has been linked to any facts that happened in real life.

KIRBY J: But your point is more fundamental. Your point is if he has been involved in prior criminality, the Crown must charge it and prove it and he can elect to plead to it or to go to trial on it before a jury.

MR BYRNE: Yes.

McHUGH J: But he is not being punished for that. He says, “Look, I have no previous convictions”. Now, the fact that you have no previous convictions ‑ correct me if I am wrong – it is not itself an automatic entitlement to some form of lenience, but it is very powerful evidence that you are a person of good character. But you have to look at the whole field and here on his own admissions he is talking about past problems encountered by the syndicate in importing cocaine from the United States into this country. He refers to the need to provide money to families of people who are in gaol. He talks about an Aboriginal who has spoken to the police. He talks about the profit margins and he talks about, it seemed to me, how he laundered his money.

Now, why was the judge not entitled to take all those things into account and say, “Well, this man has no previous convictions and therefore he is entitled to something, but I am not going to treat him as though he is a pure cleanskin”? What is happening to the sentencing process? It just seems to me it is totally unreal, Mr Byrne.

MR BYRNE: Your Honour, it does raise an important question of principle and Justice Simpson ‑ ‑ ‑

HAYNE J: Let us test the principle, Mr Byrne. Let it be assumed the prisoner stands for sentence, saying “I have been doing this for years and I have never been caught”. What is the judge to do with that statement, ignore it?

MR BYRNE: No, certainly not. That is a completely different situation. That is an admission ‑ ‑ ‑

HAYNE J: Let us leave aside for the moment the point you make about sufficiency of proof. I understand that point and I seek to pass by it without deciding it for the moment. If a judge is confronted by a prisoner who says, “I have been doing this for years and I have never got caught”, may the judge take that to account?

MR BYRNE: No – I am sorry, I thought your Honour was going to say “May he be dealt with as a person of good character?” – yes, the judge may take that into account and, no, he should not be dealt with as a person of good character and he should not, in that context, get any significant discount for not having prior convictions because that is a completely different situation.

HAYNE J: Does it therefore follow that the point which you make in this case is a point about sufficiency of proof of the proposition, “I have been doing this for years and haven’t been caught”?

MR BYRNE: With respect, that sort of comment is made by people who ask the court to take into account that fact and admit it when – and it happens frequently in the context of child sexual assault offences ‑ ‑ ‑

GLEESON CJ: It was made by Mr Geraghty. We do not have to look far for an example. That is exactly what Mr Geraghty said.

HAYNE J: “Occupation, smuggler”, no doubt, on the tax return.

MR BYRNE: Even Mr Geraghty’s statement may be discounted as a statement of bravado trying to promote himself as a person who is to be feared or respected by criminals with whom he is dealing. It is a totally different situation when a person comes before a court and says “I have been doing this for years but I have never been caught”. That is something which the court is entitled to act upon and, indeed ‑ ‑ ‑

McHUGH J: But that is what you did in this particular case. I mean, your client agreed to a statement going before the judge that he “was involved in a continuing cocaine importation syndicate”. What was the judge to do with that? Why was it put in? If it had no relevance, it should never have been in. Surely it was put in there so the judge could take it into account.

MR BYRNE: No, no, with respect, that is not correct. What it did was to illustrate the way in which this appellant conducted himself in the activities which were the subject of the charges before the court. It did not indicate, and certainly did not indicate beyond reasonable doubt, that he had been previously involved in other activities and the Crown’s action in not charging him with any other activities was indicative of that fact, as distinct from Mr Geraghty, who was charged with criminal involvement in other activities.

McHUGH J: Well, except that on his own admission he was involved in it. If the Crown has to particularise it, it may not have been able to particularise it. Maybe they did not have Mr Hardwicke to give evidence against this particular applicant as they did against Geraghty.

MR BYRNE: Yes.

McHUGH J: But here is this admission in the agreed statement of facts. You have a large amount of detail in the “I said, he said”, which indicates it is inherent truth, or the likelihood of it being true, and the judge says, “I’m going to take into account the fact that he has no previous convictions, but I’m certainly not going to treat him as if he was a pure and innocent victim who just stumbled into this conspiracy”. As Ryan establishes, character has to be looked at in the round.

MR BYRNE: But it does have, as your Honour said in Ryan, with respect, in paragraphs 27 to 32, character has two separate aspects, negative and positive. The absence of prior convictions goes only to the negative aspect. Positive aspects of character – this appellant called some positive evidence of his character and that was rejected by the judge, and there is no complaint or challenge made to that, but the judge dealt with him as a person who had committed previous offences.

McHUGH J: No, she did not. She rejected the fact that he was to be taken as though he had never had anything to do with him. After all, you tendered a real issue, you called his de facto wife, you put evidence in from his parents, all directed to showing, in effect, that this was very much a one‑off transaction and this poor, unfortunate man has been caught up in this importation.

MR BYRNE: And those statements were not challenged by the Crown at all. The statement from the parents was admitted without objection.

McHUGH J: Yes.

MR BYRNE: The de facto wife who gave evidence was not challenged at all in her assertion. It was a one‑off thing.

McHUGH J: That is right, but they were giving evidence of what he told them, so he was tendering an issue. Why was not the Crown entitled to put this other material forward in rebuttal when looking at this round picture?

MR BYRNE: The Crown was entitled to put that material in rebuttal, but it was only entitled to rely on it if it could establish those matters beyond reasonable doubt because it was seeking to have them used adversely to the appellant.

McHUGH J: No, adversely only in the sense of rebutting your claim that this man was to be treated as a man of good character.

MR BYRNE: No.

McHUGH J: It is a question of evidentiary onus at most.

MR BYRNE: But there are two separate aspects to the good character issue. It was put on his behalf that he had no prior convictions. Now, the Crown was entitled to rebut that assertion by calling evidence that he did have prior convictions which, of course, they could not do. This was evidence that was put in by the Crown. They tendered evidence of his lack of prior convictions. They could have rebutted it by calling evidence that he did have prior convictions not available to them. They could have alternatively done it by proving that he had committed other offences, and that was not available to them. So he fell to be sentenced as a first offender, a person who had never previously committed any criminal offence. There may have been suggestions or concerns in the same way as a person ‑ ‑ ‑

McHUGH J: Yes, but the fact that he has never been convicted of any previous offence tells you nothing conclusively. All it tells you is that it is strong evidence that here is a man of impeccable character.

MR BYRNE: No.

McHUGH J: What if there were statements on the tapes that he beats his wife up every second day. Why could not that be used? “That’s the way I keep her in check”. Supposing he had said that.

MR BYRNE: If there was evidence then that the wife ‑ ‑ ‑

McHUGH J: Why could that not be taken into account?

MR BYRNE: If there was evidence that the wife was, in fact, beaten, then that would be able to be taken into account, but a mere assertion that that is said to frighten the other person to whom he is speaking to suggest that he is a person who should be very carefully dealt with, the mere assertion that “I am well known in the drug trafficking industry” is not necessarily evidence of that fact. It is the kind of thing that is captured every day on intercepted recordings involving people who may or may not have any ‑ ‑ ‑

McHUGH J: I am well aware of that and people use other people’s names and do all sorts of things, particularly people that engaged in drugs are likely to do anything. But that said, when you read the detail of the transcripts, the subject matter, it certainly seems to have the ring of truth about it.

KIRBY J: He has not been charged and tried on it. This is the danger of using ‑ ‑ ‑

McHUGH J: He does not have to be. It is not a question of – you have tendered an issue.

MR BYRNE: I would accept that he does not necessarily have to be charged to tried, although that is desirable, but there at least has be proof beyond reasonable doubts of the facts and that could be done in the absence of him being charged or tried but it was not even attempted in this case.

GLEESON CJ: How long do you expect to require for the remainder of your submissions?

MR BYRNE: Your Honour, if you could just excuse me. Your Honours, if I can just draw your attention once more to that specific passage that is really at the heart of this appeal in her Honour’s reasons for sentence at page 19. What her Honour, in our submission, failed to do in that passage was to draw the distinction between good character n the positive sense and the relevance of not having any prior convictions for the purpose of sentence in the negative sense and that same error was effectively made, in our respectful submission, in the judgment of Justice Bell which upheld her Honour’s remarks on sentence as being valid. The reference in her Honour Justice Bell’s judgment is at page 54 of the appeal book. What her Honour said just below line 35, paragraph 90, “The fact is that the applicant had no prior criminal convictions.”

McHUGH J: But do you dispute what her Honours says just above in paragraph 89?

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 –

MR BYRNE: Yes.

KIRBY J: Yes, you do dispute it?

MR BYRNE: I am sorry, I do not dispute it, no, I am sorry.

KIRBY J: Is that the only way in which absence of criminal record is taken into account? Is there anything in the Crimes Act that requires it to be taken into account in any other way or not?

MR BYRNE: It would appear to be incorporated in that single word that is used in the Act, “antecedents”, as a matter to be taken into account.

GLEESON CJ: “Character and antecedents” is the expression.

MR BYRNE: Although I think the use of those two different phrases –antecedents in this context, in the context of criminal sentencing ‑ ‑ ‑

GLEESON CJ: How else could it be taken into account except as some evidence of good character? It might be some evidence of good fortune but that would not be a matter to be taken into account.

MR BYRNE: That is right, with respect, but it is an aspect of good character, it is not the whole of good character. Ultimately, and this is essentially the complain that is made, the learned sentencing judge recognised that if this person were to be dealt with as a first offender then he would have received a lesser sentence. She recognised that in that passage at page 19 but she said:

he cannot be treated as a first offender with the attendant leniency that that status usually attracts.

By reference to matters which had not been established, in our submission, to the necessary standard. Those are our submissions.

GLEESON CJ: Thank you, Mr Byrne. Yes, Mr Hastings.

MR HASTINGS: Thank you, your Honour. Your Honours, we take the view that this is a matter which is already directly regulated by the statement of principles by this Court in Olbrich and, in effect, what the appellant is seeking is a modification or qualification of the dicta in the judgment of the majority to cater for the situation facing Mr Weininger.

What we say, in general, your Honours, is that the basis put forward by the appellant for a qualification to the general principles in Olbrich is that the outcome of the determination of the issue raised was that the appellant received a greater punishment. Your Honour, we say the obvious is ‑ ‑ ‑

KIRBY J: Well, Justice Simpson thought so, because when she detected the error and corrected it, it reduced the non‑parole period by two years, which is quite significant.

MR HASTINGS: Yes. Well, my point at the outset, your Honour, is that was the same position which faced Mr Olbrich when the courts expressed the general principles in the terms which it did ‑ ‑ ‑

KIRBY J: Quite.

MR HASTINGS: ‑ ‑ ‑ because the position for Mr Olbrich was that he had brought the drugs into Australia but sought to mitigate his position and obtain a lesser sentence by demonstrating that his culpability or criminality was less because of the circumstances in which he claimed to have been recruited to carry out the importation. So the outcome for Mr Olbrich was that if his version had been accepted, he would have received a lesser sentence, but because it was rejected, he received a higher punishment, in exactly the same way as Mr Weininger complains here.

KIRBY J: Yes, but you have to be very careful that you do not punish people for criminal offences for which they are not charged on the basis of the whole range of gossip and conversation in intercepted conversations, especially where those intercepted conversations are, to a large extent, orchestrated by an official. You just have to be a bit careful about that, otherwise people are being punished for things of which they have not been convicted and over which the courts have no control.

MR HASTINGS: I accept that, your Honour, and in principle the approach put forward by my learned friend is valid in that one has to be alert to the fact that there may idle boasts being expressed in the course of the dialogue which is recorded. But, as Justice McHugh has pointed out, when one goes to the facts of these conversations, it adverts to detail, which is unmistakably of some historical accuracy ‑ ‑ ‑

KIRBY J: Well, if there was so much detail, why did not you charge him with the offence? You did not. You charged Mr Geraghty and he was punished for it. You did not charge this man. If you want to get the punishment, you have to charge the crime.

MR HASTINGS: Well, your Honour, that comes to the crux of it, your Honour. He did not get punished for what he did in the past. He simply did not get the benefit – the leniency.

KIRBY J: That is the other side as the half empty glass.

MR HASTINGS: Well, it is, your Honour, but my point is that that is the same position that faced Mr Olbrich in which the Court expressed general principles which we say are equally appropriate to Mr Weininger’s case because, as I was endeavouring to point out, the outcome for Mr Olbrich was equally serious in that he was deprived of or, in fact, otherwise received an extra two or three years because the sentencing judge rejected his claim as a person who was a mere mule who had simply, through unfortunate circumstances, been inveigled into an importation which was not of his control. The outcome of rejecting that argument was that he received, in my learned friend’s terms, a higher punishment. The reality was, of course, that in fact he was denied the same advantage which was sought by this appellant of a reduction in his sentence because he had endeavoured to show that his criminality was less but failed in that attempt because of the evidence which existed.

If your Honours look at Olbrich, with respect, one can specifically substitute the words of this case into the principles expressed in that without any injustice or inconsistency because, as my learned friend mentioned earlier, in paragraph 24 of Olbrich the Court referred to the potential for an incongruous result when saying:

For present purposes, it is enough to say that we reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous.

In my submission, if one simply substitutes “first offender” for “courier”, the principles apply without any problem. One would simply add the statement that, “The respondent swore that he was a first offender”, leaving aside swearing and the source of the allegation, “but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a first offender is incongruous”.

KIRBY J: But he had never been convicted of another crime. He was not even charged with another crime.

MR HASTINGS: No, but the evidence was against his claim.

KIRBY J: So he was a first offender before the law. If you wanted to show that he was not a first offender, at least so far as that was relevant to his sentencing, you had to get him convicted before for earlier offences.

MR HASTINGS: Your Honour, one comes back to the general principles in Olbrich which were to the effect that the party making the claim has the onus of proving it. Here the issue only arose because the accused made the claim that he was a first offender.

McHUGH J: That is part of the problem, I think, in this case. There is no issue about being a first offender. It is an evidentiary fact. The issue is a question of good character.

GLEESON CJ: Yes, it turns on a quibble about the difference between the meaning of the term “no prior convictions” and the meaning of the term “first offender”. Once you accept the fact that he is a person of no prior convictions, you are then into the question of whether he is a person of good character or to what extent he is to be treated as a person of good character.

MR HASTINGS: I embrace that, your Honour, in the sense that once one gets into that general issue, then it is a matter of evidence to be determined in the light of the evidence led by the accused who is making the claim, as opposed to any other evidence which exists to the contrary.

McHUGH J: I know the way you rely on it – and it seems to me it is perfectly in accord with Olbrich – is that you say, “We only rely on this in a defensive way, as an evidentiary rebuttal of his claim to be of good character”. But, as I rather indicated on the special leave application, should there be a principle when the Crown relies on criminal conduct to rebut that evidentiary claim that the Crown has a real onus?

KIRBY J: Especially, if I might add, where the judge says that:

in the face of strong evidence establishing the prisoner’s participation in cocaine importation by the same syndicate for some period of time –

for which, by the way, he was never charged. I may be wrong, but it just offends me that we are punishing people in our courts for things they have not been charged and convicted on.

MR HASTINGS: Well, it is an exercise in semantics but I again say that he is not being punished for that; he is simply not getting the benefit of a reduction in his sentence for a claim which he cannot sustain.

KIRBY J: That is not what the judge said and it is not what Justice Simpson, who is an experienced judge in this area, thought. She thought it was a two‑year difference.

MR HASTINGS: It is what the sentencing judge said, because she clearly made it known that she was not giving him the attendant leniency that the status usually attracts. She was not adding to the sentence which was otherwise appropriate to his level of criminality because of his past; he was simply not getting the benefit which he claimed when it could not be sustained on the facts.

KIRBY J: You are right, I think. It depends on how you read the passage. I read it as saying not that he is not getting the leniency but that “I am taking into account in a sense of aggravation, that he’s been involved in cocaine importation by the same syndicate for some period of time before the commission of the instance offences”. It is partly a matter of reaction but I react to it as Justice Simpson did.

MR HASTINGS: Justice Bell took a different view, your Honour, and she is an equally experienced judge. Might I say that, with great respect, it does require something of a distortion of the sentencing judge’s language to use her words as indicating that she was treating that as a form of aggravating circumstance. The Court certainly took a similar view in Siganto, it may be recalled, where the Court looked at the way in which the sentencing judge in the Northern Territory had treated the conduct of the defence at the trial and drew the distinction between a person who chose to plead not guilty, for which there was to be no penalty, and the fact that the sentencing judge had made reference only to the fact that the complainant had been distressed by the way that the trial had been conducted.

In those circumstances the Court implied, although the sentencing judge had not said so, that by making reference to that fact, the judge had treated it as an aggravating circumstance. With great respect, when one looks at the sentencing judge’s remarks, one simply cannot draw an inference of that type because she has expressed in the most clear terms that the way in which she has dealt with the issue is to deny the leniency that otherwise would be available.

KIRBY J: It was very correct of you to bring Siganto to our notice. Is that not very similar to what Justice McHugh was expressing, as a principle, that where it becomes a question of the relevancy of some formal issue, that is to say, a plea of not guilty or involvement in a criminality of a very serious kind you cannot be penalised for not pleading guilty or for the fact that you have not been subjected to a trial on those other offences?

MR HASTINGS: No, but by analogy, similarly, one does not get the benefit of the leniency which would otherwise be available if you had pleaded guilty and it is a similar situation, in principle, in that the accused in that case had deprived himself of the opportunity of some degree of mitigation by pleading not guilty but he was not to be punished by receiving a higher sentence because of the way in which the trial had been conducted.

KIRBY J: Here, you see, the appellant before us says, effectively, “I was punished and I was punished for participation in cocaine importation by the same syndicate for some period of time”. Now, you say this is to be interpreted only as he does not get the benefit of character. He says, “As it worked out I not only did not get the benefit of character but I was, in effect, punished for being involved, according to my conversation, which was tendered on the facts. I did not have a trial. I was not accused. I was not convicted. I did not plead guilty but I have suffered a 2‑year margin on top of my sentence for my conversations in the agreed facts”.

MR HASTINGS: I am sorry, your Honour, it brings us back to the point at which we obviously disagree because I come back to the same answer that in the terms expressed by the sentencing judge she was not punishing him, she was simply not giving him ‑ ‑ ‑

KIRBY J: It is a question on which side of the coin.

MR HASTINGS: Turn the glass upside down.

GUMMOW J: What do you say – looking at this question as one of a good character plea, what do you say is the role, if any, of Briginshaw Justice McHugh was raising with you? If it does apply, would it have been satisfied here?

MR HASTINGS: First of all, Briginshaw, in a way, is subsumed into the dicta of the Court in Olbrich which classified the matters which require proof beyond reasonable doubt and those which do not and, it again, I suppose, assumes who had the onus of establishing the facts. If it was the accused then there is no issue about being satisfied on the Briginshaw test because it was simply a matter of assessing the claim of good character as to whether that was established on the balance of probabilities.

That is the context in which we submit the facts arose for consideration, not a claim by the Crown that the person ought to be dealt with as a person who had offended before but in the light of a claim by the accused that he should be sentenced on the basis that he was a person who had not offended before. Your Honours, much is made of De Simoni as a basis for concern, in principle, that somebody should in some way be dealt with, to put it as neutrally as I can, for conduct which has not been the subject of charge and conviction.

One has to remember that De Simoni was a quite specific case which dealt with a statutory regime in which if a circumstance of aggravation was to be alleged in the context of a particular offence then there was an offence which included that circumstance of aggravation and hence the decision of the Court that if it was to be relied on by the Crown it ought to have been pleaded by reference to the appropriate offence.

That, with great respect, is some distance, in principle, from this situation where a person is being sentenced and simply seeks to raise a factual issue which is to be dealt with by the sentencing judge in a way which is unfavourable to the accused, and no different, we would say, for – or no basis for differentiating between the statement of general principle in Olbrich in paragraph 25 which we say, in broad terms, covers this situation. Your Honours will recall that in Olbrich, in paragraph 25, the Court said:

References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it.

McHUGH J: Can I tell you what the real problem of principle seems to me to be. If you treat good character as being a one-dimensional issue, then I can appreciate the force of the argument that you say that this evidence was used against the accused only in a defensive mode. But supposing the accused led evidence to show good works and you then sought to rely on this material that you rely on. It is true that it goes to good character, but only if you treat good character as one dimensional. If you regard character as being a series of dimensions, it is arguable that the Crown is saying, in respect of this particular dimension of his character, he is not a good person, and therefore perhaps the Crown should have to bear an onus in respect of that.

MR HASTINGS: Well, the sort of scenario that your Honour has in mind I suppose is a Ryan‑type situation.

McHUGH J: Yes.

MR HASTINGS: Again, your Honour, it is important then to go back to the facts of this case, because her Honour did not treat character in a global sense. The point which caused her to make the ruling is on the specific claim that the accused was a first offender. So that the sort of position which your Honour is concerned about is not that which would have occurred here because it was a quite narrow claim by the accused and a specific response on the facts of the claim. It may well have been different if he ‑ ‑ ‑

McHUGH J: You say that what the accused is really saying is – the relevant dimension here is, “I am not a person that is engaged in prior criminality.” That is the relevant aspect of good character and that this went in rebuttal of that claim.

MR HASTINGS: Yes, your Honour.

KIRBY J: But that is not how her Honour, the sentencing judge, expressed it. She said:

he cannot be treated as a first offender with the attendant leniency that that status usually attracts.

Which is manifestly and absolutely and palpably and incontestably wrong. He was a first offender and if you wanted to get him up on another offence, you have to charge him.

MR HASTINGS: Your Honour, with great respect, that unnecessarily narrows the examination of what she said, because in the same paragraph she clearly distinguishes between the absence of prior convictions and the issue of whether the person had offended previously. The discourse starts on the previous page, 18, in about the middle, line 25 or 26, where the sentencing judge said:

The prisoner did not give evidence before me. His de facto partner of seven months as at the date of his arrest gave evidence on his behalf claiming that the prisoner had expressed sorrow over the commission of the offences and that it was a “one off thing” occasioned by “very pressing financial difficulties”.

KIRBY J: There is some evidence in the intercepted conversation which gives some support for that.

MR HASTINGS: The financial difficulty?

KIRBY J: Well, that this would be a one-off occasion, that when he had the money he would stop it, he did not want to be involved in it and ‑ ‑ ‑

MR HASTINGS: Well, the latter is correct, with respect, your Honour. If this was the big windfall, which was expected, then he would retire, but not that it was a one off thing ‑ ‑ ‑

KIRBY J: He was not like Mr Geraghty whose whole life was engaged in this – a smuggler by occupation ‑ ‑ ‑

MR HASTINGS: But, your Honour, if I can just trace that ‑ ‑ ‑

KIRBY J: ‑ ‑ ‑ and charged and pleading guilty to offences along those lines.

MR HASTINGS: The sentencing judge then went on to deal with the financial aspects and the balance at page 18, and then at the top of page 19, in the same passage, she says:

He claimed not to have any insight into the effects of drugs prior to his incarceration and denied any prior involvement in drug importation, both of which I reject as being entirely inconsistent with the evidence and the prisoner’s personality and background. In that respect I note the results of the psychometric assessment carried out for the purposes of exhibit D, namely, that they suggest a self assured, confident and forceful individual who is likely to be self reliant and somewhat controlling.

And that theme is then continued into the next paragraph, in which your Honour is careful to note that he has no prior convictions for which he should “receive some recognition”, but then concludes her summary of the evidence in relation to the claim of no prior offences by saying:

However, in the face of strong evidence establishing the prisoner’s participation in cocaine importation by the same syndicate for some period of time . . . he cannot be treated as a first offender ‑ ‑ ‑

KIRBY J: Yes, but that is just not right. He was a first offender.

MR HASTINGS: He was not, your Honour, because she was satisfied that there was plenty of evidence that he had offended before.

KIRBY J: Yes, but if you want to get him on another offence, you have to charge him and he has to be given a chance to plead or to contest and be tried. That is what our Constitution – and before a jury I might say.

MR HASTINGS: That would be undoubtedly correct, your Honour, if the Crown was asserting that as a factor which ought to be taken into account in the accused’s sentencing as an adverse matter.

GLEESON CJ: Come back to line 3 on page 19. He:

denied any prior involvement in drug importation ‑

Now, presumably, the fact that he denied prior involvement in drug importation was advanced on the basis that it was relevant to the sentencing process.

MR HASTINGS: Yes.

GLEESON CJ: The judge rejected the denial of any prior involvement in drug importation. Was she to sentence him on the basis that he had a prior involvement in drug importation, or was she to sentence him on the basis that he had no prior involvement in drug importation? Which?

MR HASTINGS: Well, with respect, somewhere in between.

KIRBY J: Exactly.

GLEESON CJ: Now, that is the issue that was raised and decided in Olbrich. If an offender advances in mitigation of sentence a proposition that he is only a courier and the judge says, “I don’t believe you are only a courier”, does the judge have to sentence him on the basis that he is a courier or does the judge sentence him on some other basis?

MR HASTINGS: The passage I read earlier, your Honour, indicates quite clearly that simply because the accused cannot prove it and the Crown cannot negative it, it would be incongruous to deal with him on an assumption favourable to the accused.

KIRBY J: Yes, but where the prisoner is a first offender, he cannot be sentenced as a non‑first offender because there is some evidence in an intercepted conversation that leads the judge to conclude affirmatively, positively, that he has had a participation in cocaine importation for the same syndicate and for the same period of time, and I might say, especially because his co‑offender, Mr Geraghty, was alleged and was charged and was convicted and was sentenced on that very basis, that he had been participating as a cocaine importer and he was not a first offender.

MR HASTINGS: Your Honour, if this claim had not been made by the accused and no reference made to it in the judgment, the sentencing judge simply would have fixed a sentence appropriate to the circumstances of the criminal conduct and the matter would never have been mentioned. All that has happened in the end is that, not having been satisfied of the validity of the claim by the appellant, she has done just that.

KIRBY J: I will fall into silence. I see the glass in a different way, no doubt for other reasons.

CALLINAN J: Mr Hastings, the evidence in the recorded conversations relating to previous occasions and to the use of money, would they have been admissible as similar fact evidence on these charges?

MR HASTINGS: In principle, your Honour, they would, providing there had been a sufficient evidentiary basis to demonstrate the involvement ‑ ‑ ‑

CALLINAN J: What do you say about that? Do you say that there is sufficient similarity?

MR HASTINGS: Yes, your Honour, because, in fact, it was the same syndicate with some variation in its technique. They had previously sent couriers over with money, hence the reference to the money being lost, and the couriers then bringing the drugs into Australia through garbage in the airline as I recall, but the police got onto that technique and stopped it.

CALLINAN J: Yes, and how advice had been given to dispose of them in the lavatories on the aeroplane, I think.

MR HASTINGS: Yes.

KIRBY J: None of which you charged this appellant.

MR HASTINGS: No, your Honour. That was the background in which the man, Gordon, went to the accused.

CALLINAN J: I know. Well, if that evidence did get in as similar facts, and there was a conviction, there had been a trial, why would not the judge be entitled to take the similar fact evidence into account?

MR HASTINGS: He would have.

CALLINAN J: As part of the overall circumstances.

MR HASTINGS: He would have, your Honour, indeed. Geraghty, of course, was indicted with those charges on the indictment with the obvious intention that they would be tried together, which would mean that they would satisfy that test and, of course, as we now know ‑ ‑ ‑

CALLINAN J: And then all that other evidence admissible under Ahern’s Case would have been able to have been led.

MR HASTINGS: Yes.

CALLINAN J: Which would have been the evidence in the transcript.

MR HASTINGS: And we can see from the outcome for Geraghty that, in fact, he did receive a higher punishment.

KIRBY J: Not much. Not much for a major ‑ ‑ ‑

MR HASTINGS: Well, leaving that to one side, your Honour, in fact, it is quite clear that he did receive a higher punishment because of the other offences to which he admitted.

HAYNE J: Seven years.

KIRBY J: Two years non‑parole.

HAYNE J: No, he got three and a half non‑parole and ‑ ‑ ‑

McHUGH J: Seven on top.

HAYNE J: Seven on top.

MR HASTINGS: Twenty five years he received on the top. In a way it is an illustration of my point, with respect, because it does show that where those other matters were taken into account adversely to the accused, Geraghty, he did receive an extra punishment in relation to those facts.

KIRBY J: Marginally. It is not great.

MR HASTINGS: Well, your Honour, the matter of degree is not the issue. It is the principle.

HAYNE J: Seven years looks a long time to me, Mr Hastings.

KIRBY J: But the appellant says that, given the difference between the matters for which he was convicted and for Mr Geraghty and the major player who, by the way, I see is subjected a very stern sentencing regime, no doubt because there are other people in the prison who might be a risk to him, that that leads to a justifiable sense of grievance. What do you say about that?

MR HASTINGS: Well, of course, that has not been raised previously when it was really a matter for another court, but we would say there is a significant distinction made in the sentence as to reflect the difference in criminality between the roles of the two offenders, particularly taking into account some additional matters raised on Mr Geraghty’s behalf. In some respects, your Honour, it may be that Mr Weininger did receive a sentence which is towards the top of the range, to use the euphemism which ‑ ‑ ‑

CALLINAN J: Justice Bell said that, I think, did he not?

MR HASTINGS: Yes.

KIRBY J: Certainly did.

MR HASTINGS: In a way that does create some concern about the disparity issue but not to the degree, we would say, that a court would normally intervene.

Your Honours, can I just perhaps finish by drawing attention to my learned friend’s endeavour to draw a distinction between “adverse” and “aggravating” circumstances, a matter which he adverted to in his submissions orally and more so in writing. The fundamental criteria that my learned friend seems to point to as being the indication of an adverse circumstance is that which results in a greater punishment and, as the learned Chief Justice said this morning, we would say that that is an unhelpful attempt to categorise or define the adverse, aggravating, mitigating definitions because if one looks at any circumstance which is raised in litigation, it if is rejected, it results in a higher sentence because the person is deprived of the lower sentence. To endeavour to pursue a formal distinction between the two, we say, is not of any great assistance. One needs to look at the particular facts of the case and the particular claim which was made and for the reasons which I have addressed ‑ ‑ ‑

GLEESON CJ: The logic of the proposition against you is this: if a person comes for sentence and says, “Look, I have been a leader of the Boy Scout movement for 20 years and I have done a whole lot of good works in the Boy Scouts” and the judge, on the basis of other evidence, disbelieves that, you then say he is being punished for not being a Boy Scout.

MR HASTINGS: We would say not, your Honour, he has simply not obtained a reduction which he otherwise would have received if the claim of being a good Boy Scout had been accepted and it is very similar in principle to the facts of this case.

KIRBY J: But the suggested point of distinction, whether it is good or bad, as the issue for consideration is that where it relates to criminality and matters that can be subject to criminal accusation, charge, trial and punishment, then that has to be specific, it has to be alleged and it has to be proved that that is the point of distinction.

MR HASTINGS: Yes.

KIRBY J: General character, involvement in associations and so on is a different matter, but where you get to the point of a particular criminality, it has to be charged.

MR HASTINGS: If it renders the accused liable to greater punishment.

KIRBY J: What is wrong with that as a general principle? Is that not really inherent in the constitutional right to a jury trial in accusations of this kind?

MR HASTINGS: In principle, your Honour, I would accept that on the condition that one has to be satisfied that the person received an additional punishment because of the other conduct, not simply is deprived of a reduction in sentence because of his failure to prove it.

HAYNE J: The root difficulty that I think must be accepted is this. First the class of matters that may be taken into account and the class of matters that must be taken into account on sentence is in neither case a closed class, see section 16A(2) which commences “In addition to any other matters”. The second root difficulty is that the matters that may be taken into account and matters that must be taken into account in imposing sentence often pull in different directions. When you add to that a third consideration about standard of proof, there is great difficulty presented by fastening on one feature to the exclusion of its place in the particular factual matrix said to be relevant to the particular sentencing task that is undertaken.

MR HASTINGS: I accept that, your Honour, and again that would bring us back to the facts of the case and the context in which her Honour made the remarks which we say are quite narrow.

Having been prompted by your Honour, can I just say this finally, perhaps, by reference to section 16A(2)(m) that sets out a number of factors to be taken into account, including character, antecedents, age, mental or physical health, et cetera. We would say that the dicta of the Court in Olbrich should apply equally to each of those circumstances designated within paragraph (m).

GUMMOW J: That is what seems to me the case is probably about.

MR HASTINGS: And that is illogical, therefore, to pick out antecedents and say Olbrich applies to all of those other criteria but when you come to antecedents we are going to vary Olbrich and say the onus switches to the Crown. In our submission, that simply does not make sense. May it please your Honours.

GLEESON CJ: Thank you. Yes, Mr Byrne.

MR BYRNE: Your Honours, if the onus is not on the Crown in relation to antecedents, then we reach what, in our submission, would be, to use the words of Storey, the absurd situation, or to use what was said in Olbrich, the incongruous result that an accused person is required to establish that he has never committed any prior offences on the balance of probabilities, which is impossible to prove a negative. It clearly discloses the fact of prior convictions – “antecedents” as the legislation uses that expression, and that is well known in sentencing procedure – the fact that prior convictions is an exception, as it was recognised to be in Storey and, in particular, if I might take your Honours to what was said in the joint reasons in Storey at page 371, alongside line 20 – and this is in order to meet that proposition that the use of the expression “aggravating” and “mitigating” can sometimes be misleading. As this Court held in Olbrich following Storey, the better approach is to look at it in terms of whether the material is being used adversely or favourably. Alongside line 20:

“Aggravating” and “mitigating” must be understood in a wide sense, and without, for example, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious . . . and on the other hand of a prior or subsequent conviction.

They stand in a different position.

KIRBY J: That test, it would be hard to imagine anything that would render the crime more serious than a conviction on the sentencing judge’s part that this was just one little element in a very long series of other crimes?

MR BYRNE: Yes. My learned friend put the proposition to the Court earlier that we are engaged, essentially, in an exercise in semantics . We would say, with respect, that it is a matter of fundamental principle as to how the suggestion that a person has prior convictions should be dealt with in determining an appropriate sentence for that person.

The suggestion that the point can be made simply by replacing the word “courier” in that part of Olbrich where it appears with the word “first offender” – or the phrase “first offender”, in our submission, misses the point that in Olbrich the proposition that the offender was a courier was being put forward as something favourable to him. In this case, the applicant was relying on his absence of prior convictions as a matter that could not be used against him adversely, but it was ultimately used against him adversely.

GLEESON CJ: If this was summons for the construction of Judge Latham’s judgment, no doubt somebody would argue that on page 19, in the paragraph beginning on line 15, the last sentence is repugnant to the first sentence, but the problem ultimately is one, is not it, of understanding what Judge Latham did or meant to do, and the question of principle only arises in the light of an understanding of what Judge Latham did or meant to do, and what Judge Latham was seeking to achieve has to be considered in the light of the whole of the judgment but, in particular, the whole of the discussion that begins on page 18, in the middle of the page.

MR BYRNE: Your Honour, that discussion includes those words which your Honour the Chief Justice has referred to earlier – and this is at the top of page 19 in that second line and following:

The appellant denied any prior involvement in drug importation.

GLEESON CJ: That is right, and the earlier proposition that this was a one‑off thing, that as a result of urgent financial necessity he became uncharacteristically involved in a single criminal enterprise.

MR BYRNE: A lengthy one, yes.

GLEESON CJ: Now, that was the proposition she had to deal with, and that was being advanced on his behalf as a factor in mitigation?

MR BYRNE: Your Honour, with respect, what was being advanced on the appellant’s behalf was not that by reliance on his assertion or witnesses called on his behalf that it was a one‑off or that on his assertion that he had not been previously involved, that was not the material relied on to establish that fact. What was relied on to establish that he was a first offender was the fact that he had no prior convictions and that was the evidence before the learned judge.

We were not relying on his assertions because, quite plainly, the learned judge was entitled to reject those assertions as proving, on the balance of probabilities, what was sought to be established by them. We were not relying on what he said or what his witnesses said. We were relying on the mere fact that he did not have prior convictions to support the proposition that he should be dealt with as first offender. That was denied him and, in our submission, it was improperly denied him by treating him as a person other than a first offender without proof beyond reasonable doubt that he had offended on any other occasion. Those are our submissions.

GLEESON CJ: Thank you, Mr Byrne. We will reserve our decision in this matter. We will adjourn until 10.15 am on Tuesday.

AT 12.34 PM THE MATTER WAS ADJOURNED

[2002] HCATrans 338

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Sentencing