Tenenboim v R [2024] NSWCCA 1

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) 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 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)