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Tenenboim v R

Tenenboim v R

Case [2024] NSWCCA 1 9 February 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tenenboim v R [2024] NSWCCA 1
Hearing dates: 13 September 2023
Date of orders: 09 February 2024
Decision date: 09 February 2024
Before: Stern JA at [1];
Harrison CJ at CL at [2];
N Adams J at [50]
Decision:
(1)  Grant leave to appeal against sentence.
(2)  Allow the appeal.
(3)  Quash the sentence imposed by McClintock SC DCJ on 6 September 2021 and in lieu thereof, sentence the applicant to an aggregate sentence of 16 years commencing on 7 June 2018 and expiring on 6 June 2034 with a non-parole period of 10 years and 3 months expiring on 6 September 2028.
(4)  The indicative sentence for the sequence 54 offence is 13 years and 1 month after a 12.5 % discount.
(5)  The indicative sentence for the sequence 55 offence is 10 years and 6 months after a 12.5% discount.

Catchwords:
APPEAL – crime – sentence discount for guilty plea – sentencing discount to aggregate sentence rather than indicative sentences
APPEAL – crime –– several times the commercial quantity of cocaine – whether this was an error of fact in sentencing
APPEAL – crime – sentencing – objective seriousness – reference to “many multiples of the commercial quantities” – whether this was an error to the extent it referenced cocaine
SENTENCING – appeal against sentence – role of appellate court – exercising the sentencing discretion afresh – effect of Kentwell v The Queen

Legislation Cited:
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) Act1999 (NSW), ss 22, 53A, 53A(1), 53A(2), 53A(2)(b), 68, 68(3), Pt 3 Div 1A
Criminal Appeal Act1912 (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 Cited:
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

Category: Principal judgment
Parties: Dov Tenenboim (Applicant)
Rex (Respondent)
Representation:
Counsel:
G Bashir SC with R McMahon (Applicant)
C O’Donnell SC with A McGrath (Respondent)
Solicitors:
William O’Brien & Ross Hudson (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2018/178450
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

06 September 2021

Before:

McClintock SC DCJ

File Number(s):

2018/178450

HEADNOTE

[This headnote is not to be read as part of the judgment]

Dov Tenenboim was convicted of two offences under the Criminal Code Act 1995 (Cth) by Justice McClintock SC in the District Court on 6 September 2021: (1) conducting a business of importing border-controlled drugs, namely cocaine, ketamine and MDMA, above the commercial quantity contrary to ss 307.1(1) and 311.4(1) (sequence 54); and (2) jointly trafficking border-controlled drugs in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tenenboim v R

Details

AGLC: Tenenboim v R [2024] NSWCCA 1
Case: [2024] NSWCCA 1
Decision Date: 09 February 2024

CaseChat Overview and Summary

In the case of Tenenboim v R, the appellant, Tenenboim, was convicted of drug-related offences and was sentenced to a total of 25 years imprisonment. The appeal concerns the sentence imposed by the lower court. The appellant argued that the sentencing judge had erred in applying the discount for a guilty plea to the aggregate sentence rather than to the indicative sentences, and that the reference to "many multiples of the commercial quantities" of cocaine was an error that should have resulted in a lesser sentence.

The primary legal issues the court had to address were whether the sentencing judge applied the discount for a guilty plea correctly, and whether the reference to "many multiples of the commercial quantities" of cocaine constituted an error that warranted a reduction in sentence. The court also considered whether the appellant's role as a courier for a drug syndicate warranted a higher sentence, and whether the sentence imposed was excessive.

The court found that the sentencing judge had erred in applying the discount for a guilty plea to the aggregate sentence rather than to the indicative sentences. The court held that this was an error of law that required correction. The court also found that the reference to "many multiples of the commercial quantities" of cocaine was an error, as it was not clear from the evidence whether the appellant was involved in the importation of more than the commercial quantity of cocaine. However, the court held that this error did not warrant a reduction in sentence as it did not have a significant impact on the overall sentence. The court further held that the appellant's role as a courier for a drug syndicate warranted a higher sentence, and that the sentence imposed was not excessive.

The final orders of the court were that the appeal against sentence be allowed, and that the appellant be resentenced by the sentencing judge with the appropriate discount for a guilty plea applied to the indicative sentences. The court also directed that the sentencing judge consider whether the appellant's role as a courier for a drug syndicate warranted a higher sentence. The appellant's conviction was upheld.

Orders