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Court of Criminal Appeal 9 February 2024

Tenenboim v R

[2024] NSWCCA 1

Drugs
APPEAL CRIME SENTENCE DISCOUNT FOR GUILTY PLEA CRIME CRIME SENTENCING

Citation: Tenenboim v R [2024] NSWCCA 1
Court: Court of Criminal Appeal
Date: 09 February 2024
Judge(s): Stern JA; Harrison CJ at CL; N Adams J

Background

The appellant operated a large-scale border-controlled drug importation and wholesale distribution business between April 2017 and May 2018. Operating as the sole principal, he imported more than 20 consignments of MDMA, cocaine, ketamine and ecstasy from a European supplier via the postal system, concealing drugs inside everyday items such as soup tins, candles and baby formula. Drugs were addressed to false consignees and distributed primarily by wholesale across the eastern states of Australia, with finances handled in cryptocurrency.

The appellant pleaded guilty in the Local Court to conducting a business of importing border-controlled drugs and a joint trafficking offence, each carrying a maximum penalty of life imprisonment. A District Court judge imposed an aggregate sentence of 16 years and 4 months with a non-parole period of 10 years and 6 months, backdated to 7 June 2018. The utilitarian discount for the guilty plea was set at 12.5%, reduced from 25% because of the extent of contested factual disputes at the sentencing hearing.

The appellant sought leave to appeal on three grounds: that the guilty plea discount was applied to the aggregate sentence rather than the indicative sentences; that the sentencing judge misstated the extent to which the cocaine amounts exceeded the commercial quantity; and a third ground related to objective seriousness more broadly. The Crown conceded error on the first two grounds, making resentencing necessary.

Legal Issues

  • Whether the sentencing judge erred by applying the 12.5% guilty plea discount to the aggregate sentence rather than to the individual indicative sentences, as required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether the sentencing judge erred in finding that the appellant trafficked "several times" the commercial quantity of cocaine, when the evidence showed the relevant amount was approximately 1.9 kilograms in gross admixture form against a commercial quantity threshold of 2 kilograms.
  • How the Court of Criminal Appeal should exercise the sentencing discretion afresh following Kentwell v The Queen (2014) 252 CLR 601, including what regard, if any, may be had to the sentence imposed below.

Decision

Ground 1: Application of guilty plea discount to aggregate rather than indicative sentences

Section 53A(2)(b) of the Crimes (Sentencing Procedure) Act requires a sentencing court imposing an aggregate sentence to record the indicative sentence for each individual offence, calculated after taking into account relevant matters under Part 3 of that Act, which includes the guilty plea discount provisions (at [53]-[54]). The sentencing judge's remarks made clear that the 12.5% discount had been applied to the aggregate sentence of 16 years and 4 months, not to the indicative sentences for each offence. The Court accepted the Crown's concession that this was the only available reading of that passage and that error was established (at [55]-[56]).

Ground 2: Misstatement of cocaine trafficking quantity relative to commercial quantity

The sentencing judge found the appellant had trafficked "several times" the commercial quantity of cocaine during the relevant one-month joint trafficking period. However, the amount of cocaine referable to that charge was approximately 1.9 kilograms in gross admixture form, while the commercial quantity threshold for cocaine is 2 kilograms (at [62]-[63]). The Court accepted the Crown's concession that it was not reasonably open to the sentencing judge to describe this as "several times" the commercial quantity (at [63]).

Resentencing under Kentwell

With error established on both grounds, the Court was required to exercise the sentencing discretion afresh in accordance with Kentwell. Harrison CJ at CL observed that this exercise has an artificial dimension: the Court necessarily has regard to the sentencing judge's factual findings and, to some extent, the sentence imposed below, even while purportedly exercising an independent discretion (at [39]-[41]). N Adams J agreed but clarified that this observation should not be read as permitting the Court simply to adjust the sentence below to account for the errors, which would be inconsistent with Kentwell (at [66]).

On the resentencing, the Court adopted the sentencing judge's factual findings, characterising the offending as objectively very serious and the appellant's moral culpability as high (at [43]). A 12.5% discount was applied to the indicative sentences for each offence (at [45]). The Court afforded the appellant some consideration for contrition and remorse and noted that his progress in custody, including tertiary study and employment as a clerk, confirmed a moderate-to-good prospect of rehabilitation (at [46]-[47]). The aggregate sentence was reduced modestly from 16 years and 4 months to 16 years, with the non-parole period reduced from 10 years and 6 months to 10 years and 3 months (at [67]).

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed by McClintock SC DCJ on 6 September 2021 quashed.
  • In lieu thereof, aggregate sentence of 16 years imposed, commencing 7 June 2018 and expiring 6 June 2034, with a non-parole period of 10 years and 3 months expiring 6 September 2028.
  • Indicative sentence for sequence 54: 13 years and 1 month after a 12.5% discount.
  • Indicative sentence for sequence 55: 10 years and 6 months after a 12.5% discount.

Key Takeaways

  • Under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a guilty plea discount must be applied to each indicative sentence when an aggregate sentence is imposed; applying the discount only to the aggregate sentence is a legal error with the capacity to influence the outcome, even where an offender is sentenced for just two offences (at [51]-[56]).

  • A sentencing judge's characterisation of drug quantities relative to commercial thresholds must be grounded in the evidence: where the relevant cocaine amount was approximately 1.9 kilograms against a commercial quantity of 2 kilograms, a finding of "several times" the commercial quantity was not reasonably open (at [62]-[63]).

  • The Court of Criminal Appeal confirmed, following Kentwell, that upon error being established the appellate court must exercise the sentencing discretion afresh and cannot simply adjust the sentence below; however, Harrison CJ at CL and N Adams J both acknowledged that completely ignoring the sentence imposed below is, in practice, "somewhat artificial" (at [39]-[41], [66]).

  • Post-sentence evidence of rehabilitation, including tertiary enrolment and trusted employment within a correctional centre, was accepted as relevant fresh material on resentencing and informed the Court's assessment of prospects of rehabilitation (at [27], [47]).

  • The availability of s 53A aggregate sentences for federal offenders sentenced under NSW legislation remains settled by DPP (Cth) v Beattie and was applied without revisiting that authority, though N Adams J noted the question of how s 53A(2)(b)'s reference to Part 3 of the Sentencing Act interacts with Part 1B of the Crimes Act 1914 (Cth) remains open and was not argued in this appeal (at [52], [57]-[58]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth) ss 16A(2), 16A(2)(c), 16A(2)(g), 16A(2)(j), 16A(2)(k), 16A(2)(p) and 16A(2)(ja )
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 53A, 53A(1), 53A(2), 53A(2)(b), 68, 68( 3), Pt 3 Div 1A
- Criminal Appeal Act 1912 (NSW ), s 6 ( 3)
- Criminal Code Act 1995 (Cth), ss 11.2A, 302.2(1), 307.1(1), 311.2(1) and 311.4(1)

Cases
- AE v R [2023] NSWCCA 74
- Chan v R [2023] NSWCCA 206
- Director of Public Prosecutions (Cth) v Beattie (2017) NSWCCA 301
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Patel v R [2022] NSWCCA 93
- PG v R [2017] NSWCCA 179
- R v Delzotto [2022] NSWCCA 117