Tenenboim v R

JUDGMENT

1. STERN JA: I have had the considerable advantage of reading in draft the reasons of Harrison CJ at CL and N Adams J. I agree with the orders proposed by Harrison CJ at CL and with the reasons for proposing those orders as set out by both his Honour and N Adams J, including as to the observations of N Adams J at [66] as to [41] of the reasons of Harrison CJ at CL.
2. HARRISON CJ at CL: Dov Tenenboim pleaded guilty in the Local Court to the following offences under the Criminal Code Act 1995 (Cth), each carrying a maximum penalty of life imprisonment: 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) between 12 April 2017 and 7 June 2018 (sequence 54), and 2. Jointly trafficking border-controlled drugs in a commercial quantity contrary to ss 302.2(1), 311.2(1) and 11.2A (sequence 55).
3. His Honour Judge McClintock SC imposed an aggregate term of imprisonment of 16 years 4 months with a non-parole period of 10 years 6 months on 6 September 2021, to date from 7 June 2018. The indicative sentence for sequence 54 was 15 years. The indicative sentence for sequence 55 was 12 years. Mr Tenenboim's earliest release date is 6 December 2028. He seeks leave to appeal against this sentence, on the following grounds: Ground 1: The sentencing judge erred in applying the sentencing discount for the guilty plea to the aggregate sentence and not to the indicative sentences. Ground 2: The sentencing judge erred in finding that the applicant trafficked "several times" the commercial quantity of cocaine. Ground 3: His Honour erred in relation to the assessment of the objective seriousness of the trafficking offence (sequence 55) when he assessed role and quantity by reference to there being "several times" the commercial quantity of cocaine and "many multiples of the commercial quantities" to the extent the latter was a reference to cocaine.
4. The Crown has properly conceded that his Honour erred in the ways contended for in Grounds 1 and 2. The Crown also does not oppose the grant of an extension of time to file the notice of appeal. In those circumstances, it is appropriate to proceed to re-sentence Mr Tenenboim in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. It becomes unnecessary to consider the other ground of appeal per se. However, Mr Tenenboim understandably and uncontroversially maintains that this Court should not make the error that Ground 3 alleges was made in the Court below.

The facts

1. Mr Tenenboim conducted a border-controlled drug importation business between 12 April 2017 and 31 May 2018. He acted as the sole principal of the drug importation business, primarily importing MDMA, ecstasy, cocaine and ketamine from Mike Allen (the co-offender) in Europe via the postal system. The imported drugs were concealed inside various innocuous items including, among other things, soup tins, candles, and baby formula. The concealed drugs were subsequently addressed to false consignees and delivered across the eastern suburbs of Sydney where they would then be picked up by Mr Tenenboim's agents. Mr Tenenboim then distributed the drugs primarily by way of wholesale to various customers across the eastern states of Australia.

Sequence 54

1. The first offence of conducting a business of importing border-controlled drugs can be broken down into three distinct periods. The first period concerns importations that occurred between 12 April 2017 and 14 October 2017. There were nine consignments during this period, however, the full particulars as to the types of drugs imported in this period are not known because they were not intercepted by authorities. Mr Tenenboim accepted that one of the importations contained approximately 500 grams (gross) of MDMA.
2. The second period concerns importations that occurred between 15 October 2017 and 15 November 2017, the period when Mr Tenenboim was away in South Africa and communicating with Mr Allen, who was in Australia. Mr Allen was an overseas supplier of drugs to Mr Tenenboim. Mr Allen came to Australia from his home in Bangkok, Thailand, temporarily to participate in Mr Tenenboim's drug trafficking network while he was in South Africa, in return for a 10% commission on the drugs subsequently distributed. Upon arrival in Australia, Mr Allen stayed at the Meriton apartments in Bondi where he met with Mr Tenenboim, who provided him with differing quantities of several types of drugs previously imported by Mr Tenenboim from Europe. These included: 1,000 blue and green Versace brand ecstasy pills; a small amount of cocaine of an unknown origin; 180 grams of Bolivian cocaine; 150 grams of Colombian cocaine; approximately one kilogram of MDMA rock; a bag of yellow camel shaped MDMA pills; and a brick press.
3. The third period concerns importations that occurred between 16 November 2017 and 31 May 2018, being the period between Mr Tenenboim's return to Australia and following Mr Allen's arrest. There were eight importations during this period. The nature, quantity and purity of the drugs imported in five of those consignments are unknown, but it is agreed they were above the commercial quantity. The remaining three consignments were intercepted by authorities on three separate occasions. The drugs seized included: 438.4 grams (gross) of cocaine with a pure weight of 341.98 grams; 252.6 grams (gross) of compressed MDMA with a pure weight of 194.5 grams; 51.3 grams (gross) of ketamine crystals that were not tested for purity; 128.3 grams (gross) of MDMA tablets with a pure weight of 64.7 grams; and a further 237.6 grams (gross) of MDMA tablets with a pure weight of 63.35 grams.

Sequence 55

1. Mr Tenenboim engaged in a joint criminal enterprise with Mr Allen both to traffic substantial quantities of controlled drugs to individuals and syndicates, and to process imported drugs into saleable substances. Mr Allen wholesaled drugs that Mr Tenenboim had purchased from him and imported from Europe. Text messages in October 2017 between Mr Tenenboim and Mr Allen indicate that 1.5 kilograms of cocaine and 500 grams of MDMA were imported to Australia.
2. While overseas in South Africa during the second period identified at [7], Mr Tenenboim would contact Mr Allen via online applications and / or websites to discuss the logistics of the drug distribution. For example, on 17 October 2017, Mr Tenenboim contacted Mr Allen via Wickr to mix 12 grams of MDMA with 2 grams of inositol, place that mixture into a snap lock plastic bag, wrap the snap lock bag in mala paper, and then send it to an address in Geelong, Victoria. On 9 November 2017, Mr Tenenboim discussed with Mr Allen and Barry Liggett (an associate of Mr Allen), among other things, shipments of Pokémon pills, ketamine, cocaine, and sent images of a white crystalline substance along with images of drug tests showing a positive result for ketamine. Ultimately, Mr Tenenboim would contact Mr Allen to process the imported drugs into saleable substances and arrange for their distribution.
3. Between 5 and 6 November 2017, Mr Allen personally attended the Ibis hotel in Glenn Waverly, Victoria, to deliver 1.5 kilograms of cocaine to a criminal syndicate referred to as "the Albanians". The syndicate accepted and paid $165,000.00 for 1 kilogram of the cocaine, and that money was collected by Mr Tenenboim when he attended Mr Allen's apartment on 17 November 2017 after returning to Australia from South Africa. The remaining 500 grams were deemed by the Albanians to be of poor quality. Mr Allen sent 250 grams of that poor quality cocaine back to Sydney by mail and kept 250 grams for his personal consumption.
4. On 19 November 2017, the police executed a search warrant of the Meriton apartment in Bondi where Mr Allen resided. The police seized various drugs, including: 1. 527.1 grams (gross) of ketamine crystals that were not tested for purity; 2. a further 337.4 grams (gross) of ketamine that was tested to a pure weight of 330.29 grams; 3. 66.4 grams (gross) of cocaine that was not tested for purity; 4. 793.2 grams (gross) of blue MDMA Versace pills with a pure weight of 277.62 grams; 5. 349.5 grams (gross) of green Versace MDMA pills with a pure weight of 125.82 grams; 6. 30.8 grams (gross) of MDMA that was not tested for purity; 7. Nearly 4.5 kilograms of pink Pokémon pills with a pure weight of 1.512 kilograms; 8. 454.2 grams (gross) of compressed MDMA with a pure weight of 337.09 grams; and 9. 5.665 kilograms (gross) liquid MDMA with a pure weight of 4.532 kilograms.
5. The police further seized a cigarette butt in an ashtray located in the apartment that tested positive for Mr Tenenboim's DNA.
6. Mr Tenenboim was the primary financial beneficiary of the profits of the importation and trafficking business. The finances associated with his importation and trafficking business either originated as or were converted to bitcoin to avoid detection by the authorities.

Proceedings and remarks on sentence

1. Mr Tenenboim was committed for sentence to the District Court. The facts were for the main part agreed. However, some facts were disputed, largely centred around whether Mr Allen, the co-offender, had acted on his own for a period when Mr Tenenboim was overseas from 15 October 2017 for about one month. That period is relied on by the Crown for both the importation and the trafficking counts.
2. The disputed facts hearing took place on 22 and 23 September 2020 and 1 March 2021. On 20 June 2021, Mr Tenenboim conceded two of the matters previously in dispute and also that the prosecution had proved a further matter beyond reasonable doubt. Further evidence was tendered and oral submissions were made on 22 June 2021 and on 6 September 2021, prior to sentence being delivered on 6 September 2021. The factual disputes were resolved in favour of the prosecution.
3. His Honour held that although guilty pleas had been entered in the Local Court, the utilitarian value of the plea had been significantly diminished by the need to resolve the factual disputes and that the discount should be 12.5% instead of 25%. The quantum of the discount awarded is not disputed. (The application of the discount to the aggregate sentence is the subject of Ground 1).
4. His Honour found that Mr Tenenboim was the principal in operating a multi-drug importing and wholesaling trafficking business into Australia. This involved regular importations between April 2017 and June 2018 of MDMA, cocaine and to a lesser extent ketamine, with consignments concealed as innocuous imports and communications taking place via encrypted apps after an initial period on the dark web. His Honour found that Mr Tenenboim trafficked substantial quantities of drugs to individuals and syndicates and processed imported drugs into saleable substances and was the primary financial beneficiary of the profits of the importing and trafficking business. Mr Tenenboim's moral culpability was held to be high. His Honour found that Mr Tenenboim imported and trafficked significantly more than the commercial quantity of cocaine (2kg), MDMA (500g) and ketamine (1kg) and "several times the commercial quantity" in the case of cocaine and MDMA. His Honour also found that the vast majority of those amounts were distributed to the community. (The finding that Mr Tenenboim trafficked "several times" the commercial quantity of cocaine is the subject of Ground 2).
5. His Honour found that there needed to be a very high level of general deterrence and similarly an element of specific deterrence. His Honour found significant commonality in the two offences.
6. Mr Tenenboim's criminal record denied him a degree of leniency. His Honour held that there was some insight into the commission of the offences and that he had expressed contrition and remorse. His Honour found that while there were mental disorders now in remission, none of them was causally connected to the commission of the offence.
7. His Honour noted the submission that delay should be taken into account as a mitigating factor, but said that in his view "it [was] not a significant delay, having regard to the fact that the offender contested both the facts and also there was a requirement that Mr Allen give evidence at committal".
8. His Honour accepted that it was Mr Tenenboim's first time in custody and that he was entitled to have his sentence fully backdated to 7 June 2018 (over three years prior to the sentence date of 6 September 2021). His Honour took into account that Mr Tenenboim may need counselling in gaol and that it was suggested that he was on medication and on protection. His Honour also took into account "the [then] current issue in relation to Covid and the more onerous conditions that apply now in terms of custodial sentences".

Mr Tenenboim's submissions

1. By reason of the Crown concession that error has been established, the burden of Mr Tenenboim's submissions became an exhortation that this Court should avoid a repetition of the errors which formed the basis of his grounds of appeal. In summary, Mr Tenenboim submitted that upon a resentence, a proper application of the discount for his plea and a reconsideration of the objective seriousness in light of his Honour's misstatement that Mr Tenenboim trafficked "several times" the commercial quantity of cocaine would support a conclusion that a lesser sentence is warranted.
2. Mr Tenenboim also relied upon the affidavits of Christopher Cole, Mr Tenenboim's solicitor, affirmed on 26 April 2023 and 4 September 2023, and the affidavit of Ilana Larke, Mr Tenenboim's sister, affirmed on 7 September 2023.
3. Mr Cole's affidavit describes Mr Tenenboim's concern about the deteriorating condition of his mother's health and the effect upon her ability to visit him in gaol. He was also subject to significant periods of lockdown in his cell during the height of the pandemic. Mr Tenenboim reported being locked in his cell for a total of between 30 and 40 days since April 2022.
4. In addition, Mr Tenenboim has encountered difficulties in getting access to the services of a psychologist whilst housed at the Clarence Correctional Centre. Mr Tenenboim is medicated for anxiety and depression but as at April last year had been unable to see a counsellor.
5. Mr Tenenboim has undertaken a Tertiary Preparation Programme conducted by the University of South Queensland and has commenced a combined Bachelor of General Studies and Associate Degree in Business and Commerce which he is due to complete within three years. He is also currently employed as a clerk within the industries section of the gaol since December 2022 which is a privileged role assigned only to trusted inmates. These matters are corroborated by Ms Larke.

Crown submissions

1. The Crown submitted that this Court should adopt all of the sentencing judge's findings on the disputed facts. Mr Tenenboim does not challenge them. The Crown also submitted that this Court should make findings in accordance with the remaining facts described in the "Disputed Statement of Facts" that were agreed between the parties in the Court below.

Objective seriousness

1. The Crown also submitted that this Court should adopt the sentencing judge's finding that the importation and trafficking offences are each "very serious" offences and that Mr Tenenboim's "moral culpability in respect of these matters is at a high level".

Importation offence

1. In relation to the "rolled-up" importation offence, it was contended that the Court should adopt the sentencing judge's summary of findings that Mr Tenenboim: "… conducted, as a sole principal, a business of importing border-controlled drugs for a period of approximately one year between 24 May 2017 and 31 May 2018. MDMA, ecstasy, cocaine and ketamine were imported from a Mr Allen in Europe via the postal system. The drugs were concealed in various items: soup tins, candles and baby formula, et cetera. They were addressed to false consignees and delivered to addresses across the eastern suburbs of Sydney, where they were picked up by the offender's agents, including Chaim Goldstein and Daniel Sopher. The offender then operated a business of distributing primarily wholesaling those drugs to various customers across the eastern states [of Australia]."
2. The Crown contended in particular that this Court should find that Mr Tenenboim was responsible for the importation of more than 20 consignments of drugs into Australia between 24 May 2017 and 31 May 2018. First, he imported nine consignments of drugs into Australia between 24 May 2017 and 15 October 2017, being the period before he left for South Africa. The specific types and quantities are unknown, except that one of these nine consignments is known to have contained 326.7 grams (pure) of MDMA, when the threshold for a commercial quantity was 500 grams (pure) of MDMA.
3. Secondly, Mr Tenenboim imported more than three further consignments of drugs into Australia between 15 October 2017 and 15 November 2017, being the period when his foreign drug supplier, Mr Allen (a pseudonym), came to Australia and ran Mr Tenenboim's business when he was in South Africa, in return for a 10% commission on the drugs Mr Allen distributed. Two consignments contained a total of 1.5 kilograms (gross) of cocaine and a third consignment contained 4.532 kilograms (pure) of liquid MDMA. The 864.5 grams (gross) of ketamine crystals and 1.5 kilograms (pure) MDMA in the form of "Pink Pokémon" pills that were found in Mr Allen's hotel room must have also been imported during this time because Mr Tenenboim did not leave them with him when he left for South Africa.
4. Thirdly, Mr Tenenboim imported a further eight consignments of drugs into Australia between 16 November 2017 and 31 May 2018, being the period after he had returned to Australia and following Mr Allen's arrest. The first five of these eight consignments were not intercepted by the authorities and the amount of drugs they contained is unknown. The last three of these eight consignments were, however, intercepted by the authorities and comprised 341.98 grams (pure) of cocaine and 64.74 grams (pure) of MDMA pills and 63.35 grams (pure) of MDMA tablets.
5. Mr Tenenboim does not challenge the sentencing judge's finding that he imported "significantly more than the commercial quantity referable to each type [of cocaine, MDMA and ketamine]". To illustrate the magnitude of the amounts imported, the trafficking offence alone, for the one-month period Mr Allen ran Mr Tenenboim's business, involved approximately more than 15 times the combined commercial quantity of border-controlled drugs, all of which were imported drugs and most of which were imported during this one-month period alone. The evidence demonstrates, however, that Mr Tenenboim would have imported substantially more drugs over the entire twelve-month period given the total number of known importations.
6. As also found in the Court below, the Crown maintained that this Court should adopt the sentencing judge's finding that the drug importations were "relatively sophisticated ruses in order to avoid any detection of the items or their delivery", that Mr Tenenboim was the "primary financial beneficiary" of the importing business, that "communications took place via encrypted apps and were initially facilitated by contact via the dark web", and that monies exchanged in the business were in cryptocurrency to "avoid detection by the authorities".

Trafficking offence

1. In relation to the "rolled-up" joint trafficking offence, the Crown submitted that this Court should adopt the sentencing judge's summary of findings that Mr Tenenboim played a "principal" role in the trafficking, that it was a "wholesale trafficking business", that he "trafficked substantial quantities of drugs to individuals and syndicates and processed imported drugs into saleable substances", and that he was the "primary financial beneficiary" of the trafficking business. Further, that monies exchanged in the business were in cryptocurrency to "avoid detection by the authorities" and that Mr Tenenboim entered into a joint criminal enterprise with Mr Allen to run his trafficking business in his absence.
2. The trafficking offence involved approximately more than 15 times the combined commercial quantity of border-controlled drugs, including more than 7.09 kilograms of pure MDMA, which is 14.7 times the commercial quantity of 500 grams, approximately 1.9 kilograms of cocaine in gross admixture form, and 864.5 grams of ketamine in gross admixture form.

Consideration

1. The Crown maintained as a general response to this appeal that the identified and conceded errors did not vitiate what would otherwise have amounted to an unexceptionable sentence. In other words, the sentence imposed by his Honour was appropriate having regard to the nature and extent of Mr Tenenboim's offending about which there is no longer any dispute. Those matters are compendiously described in the Crown's submissions, summarised above at [28] to [37]. Having regard to the resentencing exercise with which this Court is now concerned since Kentwell, that is no more or less than a submission that a lesser sentence is not warranted.
2. Notwithstanding the authoritative and binding terms of Kentwell, there remains in cases such as this an unfortunate practical constraint upon an appellate court when proceeding to resentence. In the ordinary course of events, a sentencing judge will have had the opportunity to see and observe the appellant in this Court during either or both of the trial or the proceedings upon sentence. Expressions of remorse and statements of contrition, or the assessment of evidence given by an appellant in the Court below, if any, will necessarily form a significant part of the sentencing judge's available resources. In the way of things, those advantages are not able to be utilised in the same manner on an appeal to this Court. Somewhat artificially, this Court is instead asked to rely upon or accept or adopt the findings made by the sentencing judge in the Court below, or not as the case may be. Even in cases, such as the present, where there is little or no dispute about those findings, the hope that a truly independent resentencing discretion is being exercised remains slightly illusory if there is no alternative to that course being followed.
3. However, possibly in recognition of that practical reality, the submissions of both Mr Tenenboim and the Crown effectively proceed upon the basis that the identified errors themselves offer guidance as to the outcome of this appeal. Mr Tenenboim maintains that the elimination of his Honour's errors will produce a favourably different resentencing outcome. The Crown maintains that the errors made no difference and that the same outcome should follow. Both approaches assume that his Honour's findings and conclusions should in all other respects be adopted. The reasoning in Kentwell, for example at [42], clearly suggests that such an approach is legitimate: "When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion." [Emphasis added]
4. It is obviously artificial to expect this Court to have no regard to the sentence imposed in the Court below or, in general terms, to the reasonableness or otherwise of the sentencing judge's findings and conclusions. Such matters necessarily form part of the store of information that is available to this Court when resentencing Mr Tenenboim.
5. A significant point of difference in this case consists in the additional subjective material referred to in the affidavits of Mr Cole and Ms Larke. Self-evidently, the matters referred to by those deponents were not before his Honour by the date of his sentence in September 2021.
6. Mr Tenenboim's offending was in my opinion properly characterised in the description given by his Honour, a summary of which appears in the Crown's submissions referred to earlier. As his Honour also said, Mr Tenenboim "conducted a professional…business of importation and a professional business of distribution within the eastern seaboard, and on one occasion at least to South Australia, of considerable quantities of drugs". This business "was an integrated enterprise of importation and distribution". The offences were objectively very serious.
7. Mr Tenenboim's written submissions on resentence in this Court filed on 23 May 2023 were limited to three paragraphs. However, oral submissions addressed resentence, and extensive written and oral submissions were made on his behalf in the Court below and they are included as part of the material to be taken into account on resentence in this Court. In this respect I note the (undated) extensive and helpful written submissions of Mr Troy Edwards of counsel at AB603 - 612. I consider that the following matters ought, in accordance with his Honour's approach below, to be taken into account on resentence.
8. The sentences for the two offences ought to be accumulated in accordance with ss 16A(2)(c) and 16A(2)(k) of the Crimes Act 1914 (Cth) in recognition of the principle of totality. A discount of 12.5% to reflect the utilitarian value of Mr Tenenboim's pleas of guilty should be applied. I also consider that there is a need, consistently with authority, to take account of the need for general deterrence when sentencing for Commonwealth drug offences: s 16A(2)(ja) of the Crimes Act. I am less inclined to find that there is a need specifically to deter Mr Tenenboim from reoffending, having regard to the length of the sentence I intend to impose: s 16A(2)(j) of the Crimes Act. Mr Tenenboim's criminal history is relatively limited but it is such that it denies him the possibility of any leniency that might otherwise be afforded to him as a first offender.
9. So far as concerns contrition and remorse, I note that Mr Tenenboim did not give evidence about these matters, preferring instead to rely upon communication of his sentiments on these topics to third parties. Without commenting further upon that approach, and having regard to the fact that his Honour was better placed to consider this aspect of the matter for the reasons I have already discussed, I will adopt the view taken in the Court below that Mr Tenenboim is entitled to some consideration in this regard.
10. In a similar vein, his Honour found that Mr Tenenboim had "moderate" prospects of rehabilitation. I consider that the affidavit evidence now establishes that that assessment was prescient having regard to Mr Tenenboim's progress in custody and his recognition as a responsible inmate. In sentencing afresh, the sentencing arithmetic I have adopted is different to his Honour's, but the net result is that the statutory ratio remains varied effectively by the same percentage.
11. Mr Tenenboim's incarceration does not in my opinion result in any relevant hardship in accordance with s 16A(2)(p) of the Crimes Act having regard to the arrangements for the care of his mother referred to by Ms Larke in her affidavit.
12. In all of these circumstances, I consider that the following orders should be made: 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.
13. N ADAMS J: I agree with the orders proposed by Harrison CJ at CL for the reasons provided. My reasons for agreeing with his Honour that the concessions made by the Crown should be accepted are as follows.
14. The error alleged under Ground 1 is that the sentencing judge applied the 12.5% discount for the pleas of guilty to the aggregate sentence rather than to the indicative sentences.
15. Although the applicant was being sentenced for Federal offences, it was open to the sentencing judge to impose an aggregate sentence on him under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act): Director of Public Prosecutions (Cth) v Beattie (2017) NSWCCA 301. Although some doubt was raised about this in Patel v R [2022] NSWCCA 93 (at [72] to [74] by Brereton JA and at [83] to [86] by me), as Beech-Jones CJ at CL observed in R v Delzotto [2022] NSWCCA 117 at [2], "this Court is entitled to act on what was found in Beattie until the contrary is held either by the High Court or this Court acting in accordance with established principles concerning the departure from its earlier decisions (see for example Totaan v R [2022] NSWCCA 75)".
16. Section 53A(1) of the Sentencing Act provides that when a court is sentencing an offender for two or more offences, an aggregate sentence may be imposed (instead of imposing a separate sentence of imprisonment for each offence). Section 53A(2) is then in these terms: (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following - (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (Emphasis added.)
17. The statutory language of s 53(2)(b) makes it clear that an indicative sentence is arrived at after taking into account other provisions of the Sentencing Act, including Part 3 (which includes s 22 and Division 1A both concerning discounts for guilty pleas). That this is the case has been confirmed in numerous decisions of this Court including PG v R [2017] NSWCCA 179.
18. In sentencing the applicant, the sentencing judge stated the following (at ROS 26) in relation to the discount for the plea of guilty: "The aggregate term, which is the combination taking into account issues of concurrency and accumulation, is to be a sentence of 16 years 4 months. I have applied the utilitarian discount as indicated of 12.5% to that sentence "
19. As the Crown properly submitted, the "only conclusion" to draw from this passage is that the sentencing judge applied the discounts for the guilty pleas for the two separate offences to the aggregate sentence rather than to the two indicative sentences as required by s 53A(2)(b) of the Sentencing Act. Although the Crown accepted as a matter of principle, consistent with Ibbotson (a pseudonym) v R [2020] NSWCCA 92, that such an error has the capacity to influence the sentence, it was submitted that it was unlikely to have had any adverse effect in this case given that the applicant was only being sentenced for two offences. Despite this, it was accepted that it was appropriate for this Court to intervene to re-sentence the applicant.
20. I note in passing that s 53A(2)(b) of the Sentencing Act expressly requires the sentencing court, when arriving at the appropriate indicative sentences, to take into account such matters "as are relevant under Part 3 or any other provision of the Act". Although when sentencing for a State offence the sentencing court is required to have regard to Part 3 and other provisions of the Sentencing Act, when sentencing for a Commonwealth offence, the sentencing court is required to sentence an offender in accordance with the provisions of Part 1B of the Crimes Act 1914 (Cth). Section 16A(2) of the Crimes Act (Cth) provides that when sentencing for a Commonwealth offence the court must take into account any of the enumerated factors in that subsection as are relevant and known to the court.
21. The significance, if any, of the requirement under s 53A(2)(b) of the Sentencing Act to take into account such matters "as are relevant under Part 3 or any other provision of this (Sentencing) Act" when imposing an aggregate sentence on a federal offender (as opposed to s 16A(2) of the Crimes Act (Cth)) was not raised as an issue by the parties in this appeal. In those circumstances, I do not consider it necessary or appropriate to consider that issue further here. I note that although a similar question arose for consideration in Chan v R [2023] NSWCCA 206, that was in a different statutory context: s 68(3) of the Sentencing Act.
22. Turning to Ground 2, the error alleged is that the sentencing judge misstated the extent to which the amounts supplied exceeded the commercial quantity of each of the cocaine, MDMA and ketamine trafficked by the applicant. As Harrison CJ at CL has observed at [18], the sentencing judge correctly stated the prescribed commercial quantity for each drug (referable to both importation and trafficking) when he observed the following (at ROS 20): "The quantity of drugs imported was significant, referable to the commercial amounts, both as to the importation and trafficking. The commercial amount is 2 kilos for cocaine, 500 grams for MDMA and 1 kilogram for ketamine."
23. His Honour went on immediately to observe the following: "There is no doubt that the offender imported and trafficked significantly more than the commercial quantity referable to each type. In the case of cocaine and MDMA these amounts were several times the commercial quantity."
24. His Honour went on (at ROS 25) to observe that: "The exact quantities of the drugs are not known, but as I have indicated in the statement of facts, they are multiples of both the commercial quantity in terms of the import and many multiples and multiple and indeed many multiples of the commercial quantities in relation to trafficking."
25. Although the offence period for the trafficking offence in the charge sheet tendered to the sentencing judge was particularised as "between 12 April 2017 and about 7 June 2018", the relevant time period was clearly particularised before the sentencing judge as being limited to the trafficking by the applicant with his co-offender over a one month period. Putting to one side the significant amounts of MDMA and ketamine to which the charge pertained, the relevant amount of cocaine that formed part of that charge was approximately 1.9 kilograms of cocaine in gross admixture form.
26. Given that the commercial quantity of cocaine is 2 kilograms, I accept the Crown concession that it was not reasonably open for the sentencing judge to find that the applicant trafficked "several times" the commercial quantity of cocaine during that one month period.
27. For these reasons I agree that grounds 1 and 2 should be upheld.
28. As for the re-sentencing of the applicant, the decision in Kentwell makes clear that the duty of this Court upon error being established is to exercise the sentencing discretion afresh. This court would dismiss the applicant's appeal unless satisfied that "some other sentence, whether more or less severe is warranted in law and should have been passed": s 6(3) of the Criminal Appeal Act 1912 (NSW). As I observed in AE v R [2023] NSWCCA 74 at [58]: "It is not the duty of this Court to adopt the sentence imposed at first instance as a starting point and consider whether a reduction ought to be made to it. It is inevitable that in some cases this Court, having put the original sentence to one side and proceeded to exercise the sentencing discretion afresh, will arrive at a higher sentence. Thus, even allowing for some amelioration of the sentence to account for the error below, a longer sentence is still arrived at. As Wilson J has observed at [54], despite the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW) it is not the practice of this Court in such cases to impose a sentence which is more severe; rather, this Court would dismiss such an appeal on the basis that no 'less severe' sentence is warranted. The question of whether a 'less severe' sentence is imposed by this Court (by way of comparison) will depend on the severity of the sentence imposed at first instance." (Emphasis in original.)
29. I note the observation by Harrison CJ at CL at [41] that in re-sentencing an applicant it is artificial to expect this Court to have no regard to the sentence imposed in the court below given that it forms part of the material available to the court on re-sentence. The usual practice (putting to one side findings where error has been established under a successful ground of appeal) is for this Court to re-sentence an offender based on the factual findings of the sentencing judge. In this regard, I agree with his Honour that it is somewhat "artificial" to expect this Court to adopt the factual findings made by the sentencing judge and completely ignore the sentence imposed in the court below. But I do so on the basis that I do not take his Honour to be suggesting that this Court is permitted in an appeal such as the present to simply adjust the sentence imposed below to take into account the error. To do so would clearly be inconsistent with Kentwell.
30. In the present case, the appeal should be allowed because the aggregate sentence arrived at, after undertaking the sentencing discretion afresh, is a less severe one than that imposed at first instance; albeit not significantly.

---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2024