Citation: Tenenboim v R [2024] NSWCCA 1
Court: NSW Court of Criminal Appeal
Date: 09 February 2024
Judges: Stern JA; Harrison CJ at CL; N Adams J
Background
The appellant, Dov Tenenboim, pleaded guilty in the Local Court to two serious Commonwealth drug offences carrying maximum penalties of life imprisonment. The first was conducting a business of importing border-controlled drugs (cocaine, ketamine and MDMA) above the commercial quantity (sequence 54). The second was jointly trafficking border-controlled drugs in a commercial quantity (sequence 55). Both offences were committed over an extended period between April 2017 and mid-2018.
Tenenboim operated as the sole principal of the importation business, using the postal system to bring drugs concealed in everyday items from Europe into Australia. The drugs were addressed to false consignees across Sydney's eastern suburbs and then distributed wholesale across the eastern states. His co-offender, Mike Allen, managed the operation locally during a period when Tenenboim was holidaying in South Africa.
In September 2021, Judge McClintock SC in the District Court imposed an aggregate sentence of 16 years and 4 months with a non-parole period of 10 years and 6 months. The indicative sentence for sequence 54 was 15 years and for sequence 55 was 12 years. Tenenboim sought leave to appeal against the sentence.
Legal Issues
- Whether the sentencing judge erred by applying the 12.5% guilty plea discount to the aggregate sentence rather than to each indicative sentence separately, as required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Whether the sentencing judge erred in fact by finding that Tenenboim had trafficked "several times" the commercial quantity of cocaine.
- Whether the sentencing judge erred in assessing the objective seriousness of the trafficking offence (sequence 55) by characterising the quantities as "many multiples of the commercial quantities," to the extent that characterisation was applied to cocaine.
Decision
The Crown conceded errors on the first two grounds, and the Court accepted both concessions. On the first ground, the statutory language of s 53A(2)(b) requires that indicative sentences be calculated after taking into account relevant provisions of the Act, including discounts for guilty pleas under Part 3. The sentencing judge's remarks made it clear that the discount had instead been applied to the aggregate sentence as a whole, which was an error of method.
On the second ground, the finding that Tenenboim had trafficked "several times" the commercial quantity of cocaine was factually unsupported, and the Crown properly acknowledged this. Because those two grounds were established, the Court was required by the principles in Kentwell v The Queen (2014) 252 CLR 601 to exercise the sentencing discretion afresh rather than simply adjust the sentence below for error.
On the third ground, the Court found that although the "several times the commercial quantity of cocaine" characterisation was indeed erroneous, the sentencing judge's overall assessment of objective seriousness remained sound when viewed in light of the full extent and nature of the offending. The Court's independent re-sentencing exercise confirmed that the original sentence was appropriate, subject to a modest reduction to reflect the correct application of the guilty plea discount to indicative sentences.
The Court of Criminal Appeal confirmed the principle drawn from Kentwell that, when re-sentencing afresh, the court is not required to vary the original sentence if its independent exercise of discretion produces the same or a similar result. However, the court also noted the practical reality that the sentence imposed below inevitably forms part of the material available on re-sentence, making it somewhat artificial to treat it as entirely invisible.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a guilty plea discount must be applied at the indicative sentence stage for each individual offence, not to the aggregate sentence as a whole.
- Where two or more sentencing errors are identified, the Court of Criminal Appeal is obliged to re-exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601, rather than making incremental adjustments to the original sentence.
- An error in a factual finding relevant to sentencing does not automatically produce a different outcome: the Court of Criminal Appeal confirmed that it will not vary a sentence if its independent re-sentencing exercise determines the original sentence to be appropriate for the offence and offender.
- The Court of Criminal Appeal observed that it is "somewhat artificial" to expect a re-sentencing court to exercise its discretion in complete ignorance of the sentence imposed below, given that sentence forms part of the available material, while at the same time confirming that simply adjusting the sentence to correct for error would be inconsistent with Kentwell.
- Where the court, exercising its discretion afresh, arrives at a less severe aggregate sentence than that imposed at first instance, an appeal will be allowed on that basis, even where the difference is not significant.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 11.2A, 302.2(1), 307.1(1), 311.2(1), 311.4(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 53A, 53A(1), 53A(2), 53A(2)(b), 68, Pt 3 Div 1A
- Crimes Act 1914 (Cth), ss 16A(2) and various subsections
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- AE v R [2023] NSWCCA 74
- Chan v R [2023] NSWCCA 206
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Patel v R [2022] NSWCCA 93
- PG v R [2017] NSWCCA 179
- R v Delzotto [2022] NSWCCA 117