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Court of Criminal Appeal 25 July 2025

Tsoumbanellis v R

[2025] NSWCCA 107

DrugsFraud & dishonesty
CRIME A PPEALS A PPEAL AGAINST SENTENCE D EAL WITH PROCEEDS OF CRIME FORM 1 OFFENCES S UPPLY METHYLENEDIOXYMETHAMPHETAMINE

Citation: Tsoumbanellis v R [2025] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 25 July 2025
Judges: Garling J, Ierace J, Dhanji J (Dhanji J delivered the leading judgment; Garling and Ierace JJ agreed)

Background

The applicant pleaded guilty in the Local Court to two substantive offences: commercial supply of methylamphetamine (not less than the commercial quantity) under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and knowingly dealing with $24,950 in proceeds of crime under s 193B(2) of the Crimes Act 1900 (NSW). Two further offences (allowing premises to be used as drug premises, and supplying MDMA) were taken into account on a Form 1. The drugs and cash were located at a unit in Ultimo where children also lived.

In the District Court, Neilson DCJ imposed an aggregate sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years, commencing 18 October 2023. The applicant sought leave to appeal against that sentence.

At the hearing, the applicant expanded one of his grounds to include an alleged failure to comply with s 25F(7) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA), which requires a sentencing court to specify the extent of any discount for a guilty plea. The respondent did not oppose the expansion, and leave to rely on that additional argument was granted.

  • Whether the sentencing judge failed to apply the mandatory 25 percent utilitarian discount for the applicant's early guilty plea under s 25D(2)(a) of the CSPA, and whether s 25F(7) of the CSPA (requiring the court to specify the discount) was complied with
  • Whether it was an error to treat "the presence of children" as an aggravating factor in sentencing for the drug supply offences
  • Whether the sentencing judge erred by failing to take the applicant's remorse and advanced age into account as mitigating factors
  • Whether the sentence imposed was manifestly excessive

Decision

Ground 1: Guilty plea discount. Although there were several circumstances suggesting the sentencing judge was aware of and took into account the guilty plea in some form, the Court was inclined to the view that the mandatory 25 percent discount required by s 25D(2)(a) of the CSPA was not in fact applied to the indicative sentences. The statistics from the Judicial Commission relied on by the sentencing judge incorporated plea-of-guilty data but did not differentiate by the timing of the plea, which is critical to the extent of any discount. In any event, the sentencing judge did not specify the extent of the discount as required by s 25F(7), and that failure independently established error.

Ground 2: Presence of children as aggravating factor. The Court found no error in treating the presence of children as an aggravating factor. The ongoing nature of the drug offending, with prohibited substances stored in common areas of a home where children lived, meant those children were exposed to danger. It was not necessary that the risk had actually materialised before a sentencing court could treat this as aggravating. The same reasoning applied to the Form 1 offences: even where the presence of children was not a statutory aggravating factor, it increased culpability.

Ground 3: Remorse and age. The Court upheld the remorse limb of this ground. The sentencing judge made no explicit finding as to whether the applicant was remorseful and, crucially, made no reference to the most significant part of the psychological report bearing on remorse. The age limb failed: although the sentencing judge did not separately articulate how age bore on the head sentence, the Court was satisfied that the judge's evident concern about the applicant's age and health meant that significance was not overlooked.

Resentencing. Having allowed the appeal, the Court resentenced the applicant. It assessed the commercial supply offence as falling somewhat below the mid-range of objective seriousness, and adopted the sentencing judge's finding that the proceeds offence was at the lower end of the range. Each indicative sentence was reduced by 25 percent for the utilitarian value of the guilty plea. The Court allowed substantial concurrency between the two sentences given the significant factual overlap, and found special circumstances warranting a longer parole period, those circumstances being the applicant's rehabilitation needs, advanced age, and underlying health conditions. An aggregate sentence of 4 years imprisonment with a non-parole period of 2 years and 6 months was imposed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed in the District Court on 10 December 2024 is quashed.
  • The applicant is sentenced to an aggregate term of imprisonment of 4 years, comprising a non-parole period of 2 years and 6 months with a balance of term of 18 months, commencing on 18 October 2023.
  • The non-parole period expires 17 April 2026; the total term expires 17 October 2027.

Key Takeaways

  • Under s 25F(7) of the CSPA, a sentencing court is required to specify the extent of any discount granted for a guilty plea. Failure to do so constitutes a standalone error capable of vitiating a sentence, independent of whether the discount was otherwise taken into account.
  • A sentencing court may treat the presence of children as an aggravating feature in drug supply offending where the drugs were stored in common areas of a home where children lived, even if no actual harm to the children was established. The Court of Criminal Appeal confirmed that exposure to danger, rather than its realisation, is sufficient.
  • Where a sentencing judge fails to make an explicit finding about remorse and omits reference to significant psychological evidence bearing on that question, an appellate court will find error in the treatment of remorse as a mitigating factor.
  • Advanced age need not be separately articulated in relation to the head sentence where the sentencing judge's reasons make clear the factor was given real weight, including in the finding of special circumstances.
  • Special circumstances justifying a departure from the statutory non-parole period ratio under s 44(2B) of the CSPA were found to exist where the offender had rehabilitation needs, advanced age, and underlying health conditions likely to become acute during a custodial term.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D, 25F, 44, 53A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 36Y
- Crimes Act 1900 (NSW), s 193B
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Borri v R [2023] NSWCCA 166
- Douglass v The Queen [2012] HCA 34
- Lee, Matthew v R [2016] NSWCCA 146
- NH v Director of Public Prosecutions for the State of South Australia (2016) 260 CLR 546; [2016] HCA 33
- Edwards v R [2017] NSWCCA 160
- Cullen v R [2014] NSWCCA 162
- McLaughlin v R [2013] NSWCCA 152
- Liu v R (2023) 306 A Crim R 105; [2023] NSWCCA 30
- R v Mammone [2006] NSWCCA 138
- R v DB [2001] NSWCCA 320
- Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58
- Huang v R [2017] NSWCCA 312
- Kapila v R [2024] NSWCCA 48
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002]