Tenenboim v R [2024] NSWCCA 1

Tenenboim v R [2024] NSWCCA 1

The sentencing judge erred by applying the 12.5% utilitarian discount for the guilty pleas to the aggregate sentence rather than to the indicative sentences, and by finding that the applicant trafficked "several times" the commercial quantity of cocaine when the relevant trafficking amount was approximately 1.9 kilograms of cocaine in gross admixture form and the commercial quantity was 2 kilograms. Exercising the sentencing discretion afresh, the Court held that the applicant's conduct as principal of a professional integrated drug importation and distribution business was objectively very serious, but that a lesser aggregate sentence of 16 years with a non-parole period of 10 years and...

Jurisdiction
Australia
Judgment Date
09 February 2024
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence and Resentencing in the Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted; appeal allowed; original sentence quashed; applicant resentenced to a lesser aggregate sentence.
Legal Topics
['sentence Discount for Guilty Plea' 'aggregate Sentences and Indicative Sentences' 'commonwealth Drug Offences' 'objective Seriousness' 'commercial Quantity of Border Controlled Drugs' 'resentencing After Sentencing Error']
['criminal Law' 'sentencing' 'criminal Appeals'] ['sentence Discount for Guilty Plea' 'aggregate Sentences and Indicative Sentences' 'commonwealth Drug Offences' 'objective Seriousness' 'commercial Quantity of Border Controlled Drugs' 'resentencing After Sentencing Error']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence and Resentencing in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in applying the sentencing discount for the guilty plea to the aggregate sentence rather than to the indicative sentences.' 'Whether the sentencing judge erred in finding that the applicant trafficked "several times" the commercial quantity of cocaine.' 'Whether the sentencing judge erred in assessing the objective seriousness of the trafficking offence by reference to there being "several times" the commercial quantity of cocaine and "many multiples of the commercial quantities" to the extent that was a reference to cocaine.' 'What sentence should be imposed on the applicant after the sentencing discretion was exercised afresh.']

Ratio Decidendi

The sentencing judge erred by applying the 12.5% utilitarian discount for the guilty pleas to the aggregate sentence rather than to the indicative sentences, and by finding that the applicant trafficked "several times" the commercial quantity of cocaine when the relevant trafficking amount was approximately 1.9 kilograms of cocaine in gross admixture form and the commercial quantity was 2 kilograms. Exercising the sentencing discretion afresh, the Court held that the applicant's conduct as principal of a professional integrated drug importation and distribution business was objectively very serious, but that a lesser aggregate sentence of 16 years with a non-parole period of 10 years and...

Court Disposition

Leave to appeal against sentence granted; appeal allowed; original sentence quashed; applicant resentenced to a lesser aggregate sentence.

Orders

  • ['Grant leave to appeal against sentence.' 'Allow the appeal.' '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...