Tenenboim v R

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 a commercial quantity contrary to ss 302.2(1), 311.2(1) and 11.2A (sequence 55). The sentencing judge imposed an aggregate term of imprisonment of 16 years 4 months with a non-parole period of 10 years 6 months. Mr Tenenboim received an indicative sentence of 15 years for sequence 54 and an indicative sentence of 12 years for sequence 55. 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. The imported drugs were concealed inside various mundane items. The concealed drugs were then 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 distributed the drugs primarily by way of wholesale to various customers across the eastern states of Australia. Mr Allen participated in and ran Mr Tenenboim's drug importation business between 15 October to 16 November 2017, the period when he was on a holiday in South Africa. During that time, 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. The issues arising on the appeal were: (i) Whether the sentencing judge erred in applying the sentencing discount for the guilty plea to the aggregate sentence rather than the indicative sentences; (ii) Whether the sentencing judge erred in finding that Mr Tenenboim trafficked "several times" the commercial quantity of cocaine; (iii) Whether the sentencing judge erred in relation to the assessment of the objective seriousness of the trafficking offence (sequence 55) when he assessed the 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. The Court held (granting leave to appeal): As to issue (i), per Harrison CJ at CL (Stern JA and N Adams J agreeing): 1. The Court accepted the Crown concession that the sentencing judge erred in applying the sentencing discount for the guilty plea to the aggregate sentence and not to the indicative sentences (see paragraph [4]). As to issue (ii), per Harrison CJ at CL (Stern JA and N Adams J agreeing): 2. The Court accepted the Crown concession that the sentencing judge erred in finding that Mr Tenenboim trafficked "several times" the commercial quantity of cocaine (see paragraph [4]). As to issue (iii), per Harrison CJ at CL (Stern JA and N Adams J agreeing): 3. The sentencing judge erred in finding that Mr Tenenboim trafficked "several times" the commercial quantity of cocaine. However, that error notwithstanding, the sentencing judge correctly characterised the objective seriousness and imposed an appropriate sentence having regard to the nature and extent of Mr Tenenboim's offending. The Court of Criminal Appeal has a duty to exercise the sentencing discretion afresh when they identify an error in sentencing, but it is not required to vary the original sentence if, in the exercise of their independent discretion, the original sentence was appropriate for the offender and the offence (see paragraphs [39]-[43]). [Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 applied]