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Tsoumbanellis v The King

Tsoumbanellis v The King

Case [2025] NSWCCA 107 25 July 2025

Unconscionable Conduct

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tsoumbanellis v R [2025] NSWCCA 107
Hearing dates: 18 June 2025
Date of orders: 25 July 2025
Decision date: 25 July 2025
Before: Garling J at [1]
Ierace J at [2]
Dhanji J at [3]
Decision:
(1)   Leave to appeal granted.
(2)   Appeal allowed.
(3)   The sentence imposed in the District Court on 10 December 2024 is quashed.
(4)   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 will expire on 17 April 2026. The total term is due to expire on 17 October 2027.

Catchwords:
CRIME – appeals – appeal against sentence – supply not less than the commercial quantity of methylamphetamine – deal with proceeds of crime – Form 1 offences – allow premises to be used as drug premises – supply methylenedioxymethamphetamine – advanced age – whether failure to take into account utilitarian discount – whether error in including “the presence of children” as aggravating factor – whether failure to include remorse and age as mitigating factors – whether sentence manifestly excessive – s 25D(2)(a) Crimes (Sentencing Procedure) Act not applied – s 25F(7) Crimes (Sentencing Procedure) Act not complied with – failure to take into account applicant’s remorse – leave to appeal granted – appeal allowed – sentence quashed – resentence

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 1A, Div 3, ss 3A, 21A, 25A, 25D, 25F, 44, 53A, 54A, 101A
Crimes Act 1900 (NSW), s 193B
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), s 166
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 36Y
District Court Rules 1973 (NSW), Pt 53, r 12

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Borri v R [2023] NSWCCA 166
Cullen v R [2014] NSWCCA 162
Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086
DS v R [2025] NSWCCA 53
Edwards v R [2017] NSWCCA 160
Forti v R [2016] NSWCCA 127
Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Huang v R [2017] NSWCCA 312
Kapila v R [2024] NSWCCA 48
Lee, Matthew v R [2016] NSWCCA 146
Liu v R [2023] NSWCCA 30; (2023) 306 A Crim R 105
McLaughlin v R [2013] NSWCCA 152
Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58
NH v Director of Public Prosecutions for the State of South Australia (2016) 260 CLR 546; [2016] HCA 33
R v DB [2001] NSWCCA 320
R v Hunter (1984) 36 SASR 101
R v Lapa (No 2) (1995) 80 A Crim R 398
R v Mammone [2006] NSWCCA 138
R v Thomson; R v Houlton (2000) 49…

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 Tsoumbanellis v The King

Details

AGLC: Tsoumbanellis v The King [2025] NSWCCA 107
Case: [2025] NSWCCA 107
Decision Date: 25 July 2025

CaseChat Overview and Summary

In the matter of Tsoumbanellis v The King, the appellant, aged 69, was convicted for his involvement in a drug supply operation involving methylamphetamine and methylenedioxymethamphetamine. The appellant was found to have supplied drugs in quantities exceeding commercial levels, dealt with the proceeds of crime, allowed his premises to be used for drug-related activities, and committed these offences while children were present. The High Court of Australia was tasked with reviewing the appeal against the sentence imposed by the lower court.

The central legal issues before the court were whether the sentence was manifestly excessive, whether the sentencing judge failed to consider certain mitigating and aggravating factors, and whether statutory provisions were properly applied. Specifically, the court examined if the judge appropriately applied the utilitarian discount due to the appellant's advanced age, whether the presence of children was correctly identified as an aggravating factor, and if remorse and age were adequately considered as mitigating factors. Furthermore, the court considered whether the statutory provisions of sections 25D(2)(a) and 25F(7) of the Crimes (Sentencing Procedure) Act were correctly applied.

The High Court found that the sentencing judge did not appropriately consider the utilitarian discount for the appellant's advanced age and failed to acknowledge the presence of children as an aggravating factor. Additionally, the judge did not properly consider the appellant's remorse and his age as mitigating factors. The court held that the sentence was manifestly excessive and that the statutory provisions were not correctly applied. Consequently, the court granted leave to appeal, allowed the appeal, quashed the original sentence, and ordered a resentencing.

Orders