Weininger v The Queen [2003] HCA 14

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

DANNY WEININGER APPELLANT

AND

THE QUEEN RESPONDENT

Weininger v The Queen

[2003] HCA 14

2 April 2003

S24/2002

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation:

P Byrne SC with H K Dhanji for the appellant (instructed by Legal Aid Commission of New South Wales)

P S Hastings QC with M M Cinque for the respondent (instructed by Director of Public Prosecutions (Commonwealth))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Weininger v The Queen

Criminal law – Sentencing – Absence of prior conviction – Requirement to take into account "character and antecedents" in s 16A(2)(m) Crimes Act 1914 (Cth) – Whether absence of prior conviction gave rise to inference of lack of prior criminal conduct – Neither negative nor positive inference drawn – Absence of prior conviction did not demonstrate absence of prior criminal conduct – Whether absence of prior conviction relevant to sentencing apart from significance as to past character.

Criminal law – Sentencing – Relevance of uncharged criminal acts – Whether sentencing judge entitled to take such acts into account in determining sentence – Whether acts relevant to prisoner's entitlement to leniency otherwise on the ground that he was a first offender – Whether relevant to consideration of the prisoner's character – Whether in context of very heavy sentence such consideration indicated error of sentencing principle.

Words and Phrases – "character and antecedents".

Crimes Act 1914 (Cth), ss 16A(2), 16A(2)(m).

1. GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. This matter was said to present two issues of sentencing principle. They were identified as being, first, is a sentencing judge entitled to take into account an offender's commission of other offences with which the offender has not been charged and commission of which the offender does not admit? Secondly, if those matters may be taken into account, which party bears the onus of proof and what is the requisite standard of proof? 2. The present appeal is not to be decided by consideration of questions framed at this level of abstraction and generality. In so far as the appellant was to be sentenced as a federal offender, the principles to be applied in fixing the sentence were prescribed by Pt 1B of the Crimes Act 1914 (Cth) ("the Crimes Act") and, in particular, Divs 1 to 4 (ss 16 to 19AK) of that Part. Although it may be doubted that sentencing the appellant on the third count to which he pleaded guilty (a State rather than federal offence) engaged principles having any different content, the argument in the courts below and in this Court has focused only on the federal offences. No doubt this was because the sentences imposed for the federal offences were heavier than the sentence imposed for the State offence, and the term of imprisonment to be served for the State offence was to be served concurrently with the federal sentences. 3. The general principles that were to be applied in sentencing the appellant are not in doubt. The determinative question in this matter is whether the primary judge (Judge Latham) erred in applying those principles to the particular facts and circumstances of the case. On a proper understanding of her Honour's sentencing remarks, in light of the material tendered at the sentencing hearing, no error is shown. The appeal to this Court should be dismissed.