IN THE COUNTY COURT OF VICTORIA
AT Melbourne
	Revised
Not Restricted
Suitable for Publication	

Case No. CR-19-00408

DIRECTOR OF PUBLIC PROSECUTIONS			
			
v			

CHEY TENENBOIM
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JUDGE: 	HIS HONOUR JUDGE JOHNS	
WHERE HELD: 	Melbourne	
DATE OF HEARING: 	17 July 2020	
DATE OF SENTENCE:	19 August 2020	
CASE MAY BE CITED AS:	DPP v Tenenboim	
MEDIUM NEUTRAL CITATION:	[2018] VCC 1277		

REASONS FOR SENTENCE
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Subject:			CRIMINAL LAW		
Catchwords: 	Sentence – Plea of guilty – Receiving stolen goods – Gold jewellery – $144,000 value – Hardship to family not exceptional – Some extra-curial punishment – first offender – Combination sentence – 12 months imprisonment in addition two-year Community Corrections Order with 200 hours community work. 

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr D. Glynn
Ms T. Ferrari	OPP	
			
For the Defendant 	Mr D. Grace QC
Dr M. Fitzgerald                   	Doogue and George Defence Lawyers 	

    

HIS HONOUR
1	Chey Tenenboim, you have pleaded guilty to a charge of receiving stolen goods.  The maximum penalty for this offence is 15 years imprisonment.
2	The offence embraces 42 occasions where you received gold jewellery you knew to be stolen, in your capacity as a valuer with Sell Your Gold Pty Ltd (trading as Gold Byers Melbourne) (hereafter Gold Buyers).  
3	You have no criminal record.
4	The details of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A and forms part of these reasons for sentence.
5	I do not propose to set out these details again except in so far as it is necessary to identify the circumstances of your offending, its objective gravity and your moral culpability.
Objective Gravity
6	Gold Buyers was a company owned by your co-offender Alejandro Mendieta-Blanco (‘AMB’).  It operated at level 11, 227 Collins Street.  You were an integral part of that business.  You were an experienced valuer and assessor of gold and diamonds.  You grew up in the gold and jewellery trade, essentially.
7	Gold Buyers traded in gold, diamonds, precious gems and luxury watches.  A large part of the business involved purchasing gold jewellery from members of the public.  The purchase price for the jewellery was based on carat and weight.  A price was calculated on the spot and a cash payment was made to the customer.  The majority of the jewellery was then melted into gold bars in a separate room on level 11 and then sold to a gold refinery.
8	You were more than a mere employee of Gold Buyers.  You were instrumental to the operation.  You received a 30 per cent cut in addition to your significant salary.  You were overheard to say to one customer that you were partners in the business and helped set it up.  That may not be entirely accurate, and I do not sentence you on that basis, but it is clear you were integral and essential to its operation, and this statement sheds light on your status within the triumvirate.  
9	It suffices to say you well knew the obligations stemming from second-hand dealers regulations; you knew the value of the turnover of the business; you knew the value of the stolen gold you were purchasing; you  knew the monetary value to the owners was higher in terms of purchase or replacement price.  Had you given it a second's thought, you would have appreciated that the sentimental value attaching to many of the items would have been priceless.
10	The serious aspects of your offending that I have had regard to in assessing the objective gravity of the offending includes:
a)	The fact your experience and knowledge in the jewellery trade was used in furtherance of the offending;
b)	On 42 occasions you assessed and purchased stolen property.  It appears the service you provided over this period was available to all comers;
c)	The stolen property was likely to include highly prized personal items of great sentimental value to their owners;
d)	The stolen property was likely to have been stolen during domestic burglaries;
e)	The money exchanged by you for the stolen property was significant and places your crime of receiving stolen goods at a significant level of criminality.  The actual value of the stolen property was no doubt significantly higher than the discounted gold and jewel value paid by you for the goods;
f)	You were well aware of the second-hand dealers' obligations and the reasons for those regulations.  You by-passed those regulations with no hesitation or compunction;
g)	You were clearly aware that detection of your crime would be extremely difficult, given the fact that the stolen property was unable to be identified once was it was melted down;
h)	Your training in the field of gold, jewellery and precious gem evaluation, and the position in the field you had attained is a serious aspect of your offending.  You held a position of trust, vis-à-vis the general public that was breached when you knowingly accepted stolen items.
11	I can find no circumstances that mitigate the offence itself.  The charge embraces repeated deliberate acts of dishonesty.  The suggestion that there was no financial need to deal in stolen property as the business was otherwise doing well, and the suggestion that your share of profit from the proceeds of your offending was not significant, do not mitigate the offence, in my view.  
12	It is a purely greed driven offence, in circumstances where the chances of detection were negligible because the jewellery was often melted down within a relatively short period.  In brief, you thought you could do it without getting caught, so you did.  
13	There is no hint of a moral compass in operation at all during your offending.  Quite the opposite.  You did not conceal your offending from your colleagues; indeed, they were complicit in part of it.  Recorded conversations between yourself and thief-customers demonstrate the absence of a conscience in relation to the transactions.  I was told that you have experienced great shame as a result of the exposure of your criminality.  Indeed, you should feel this way.  It is extremely shameful behaviour.  There is absolutely no evidence that you experienced any shame or disquiet during the weeks of your offending.
14	I was provided with victim impact statements that relate to your offending, that is the victim impact statements that have a nexus with your offending, in the sense of the chain I have previously described, victim, thief and handler, and I have considered these as a guide to the impact of your offending, which I have already summarised.
Personal Circumstances
15	You were born in Sydney in 1981.  You are 39 years of age.  You have five siblings.  You were raised in a religious Jewish home in North Bondi.  Your father was a jeweller.
16	You attended Yeshiva College in Bondi to Year 10 level and then Vaucluse High School in Years 11 and 12.  You completed one year of a social sciences degree at the University of New South Wales.  You were studious at school and received an intense religious education.  You excelled in mathematics.
17	From the age of 11, you experienced some physical developmental ailments and problems.  You were injected with growth hormone.  You also suffered severe scoliosis, requiring you to wear a back brace for a year.  Your condition did not improve, and titanium rods were inserted into your spine, which will remain for life.  The result has been severe restrictions in your ability to handle heavy items and considerable discomfort if you stand or sit for long periods of time.  You have also suffered severe psoriasis and use cortisone cream and lotions daily.  The psoriasis extends to your legs, arms, ears and scalp.
18	These physical features are relevant to your experience in custody, and I consider that to some degree, your experience of custody will be harsher than it would otherwise be absent these ailments.  More significant a consideration than your physical ailments is the impact incarceration will have upon you due to your background, it being your first time in custody, and you leave behind a large and dependant family who will suffer in your absence.  These matters in combination will weigh very heavily upon you, I am sure, and will increase the burden of imprisonment significantly.
19	You worked in your father's jewellery business in Sydney from the age of 12.  You worked there during holidays, and after finishing high school you worked part-time whilst you completed your first year of university studies. 
20	Your father's jewellery business involved wholesaling gold and diamonds.  After your first year of university studies, your father arranged for you to be sent to Israel to study diamonds in a six-month course.  You returned to Australia and worked with your father upon your return, as well as completing a diploma course in Gemmology at the Gemmological Association of Australia.  After obtaining your diploma, you undertook a valuers course for six months, and in 2003 became a registered valuer of the National Council of Jewellery Valuers of Australia.  You are now a fellow of the Gemmological Association of Australia. 
21	You married your wife Miriam in early 2003 when you were 21.  She moved from Melbourne to Sydney.  Your first child, Sarah, was born in 2005.  In the same year, you and your father were held up at gunpoint during the operation of the jewellery business.  I was told you were tied up and the entire contents of two safes were stolen.  During the robbery, one of the assailants bashed your father with a gun, requiring him to be hospitalised for some time.
22	The business was not insured for anywhere near the full amount of the stock in the safes and that stock represented your father's entire life savings.  This had serious ramifications for the business.  An associate of your father's became demanding.  Death threats were made.  You moved to Melbourne with your wife for a fresh start, but on 11 May 2006 your father was found floating in Sydney Harbour having drowned.  A coronial inquest found that the manner of death was suicide, but you suspect he met his end at the hands of others.  
23	Understandably, you were devastated by the loss of your father.  You were particularly close to your father and you have suffered long lasting stress as a result.  I am told that for approximately 18 months after your father's death, you received demands and multiple threats from one of your father's creditors demanding money.  No doubt this experience has left a marked impression upon you.  No doubt you have experienced significant trauma due to the experience of the robbery, the loss of your father and the circumstances in which he passed, and the ongoing threats and demands made toward you.  
24	It is a shame that those experiences did not serve as a motivator for you to distance yourself from those that would seek to acquire stolen property by threats, force or otherwise.  Rather, for the duration of the indictment, you willingly and openly engaged with individuals who fit that description.
25	After moving to Melbourne in 2005 you were employed in a jewellery business in Melbourne Central and became a manager of that shop.  In 2008, you commenced your own business – a retail jewellery business situated in Little Collins Street Melbourne.  You closed the business in 2013 when you met and were offered employment by your co-offender, Alejandro Mendietta-Blanco, in the Sell Your Gold business trading as Gold Buyers. 
26	You have four children, your second being born into 2007, a third in 2012 and a fourth in 2016.  All except your youngest child attend Jewish religious schools and you and your family practice the Jewish religion in an Orthodox fashion. 
27	Your wife and children suffer some significant health issues.  Your wife suffers severe anxiety which has been exacerbated by the trauma of your arrest at your home on a Jewish holiday, in front of the family.  The ongoing stress surrounding the court proceedings, which have lasted some three years, has been an ongoing source of anxiety for her. 
28	Further, your oldest daughter, Sarah, suffers from severe anxiety and a genetic disorder known as osteogenesis imperfecta.  Your wife, your wife's mother, her maternal aunt and maternal grandmother all have the same condition.  The condition results in brittle bones, causing fractures to occur easily.  I received medical reports in relation to your wife and in relation to Sarah.  Your second child, Avraham, has the same condition.  I also received a medical summary in relation to Avraham.  He attains the age of 13 in November this year, an age which of course is significant for you and your family and within your religion and cultural tradition.  He has been preparing for his bar mitzvah, which involves considerable study and training.  You had been involved in his preparation prior to your incarceration. 
29	The fact that you will be in custody at the time of Avraham's bar mitzvah is a matter that I have no doubt weighs extremely heavily upon you.  Your third child, aged nine years, is on the autism spectrum.  She has behavioural difficulties, outbursts and tantrums and requires a strict routine.  I received extensive medical reports attached in relation to her which evidence the difficulties that her condition presents.  She has a strong reliance upon you, as evidenced by the summary report by occupational therapist, Dena Sharif, dated 2 July 2020.  Her ability to self-regulate on a daily basis is extremely diminished due to your absence.  She experiences alienation and bullying in the classroom, unfortunately.  The additional trauma and distress experienced by her and your wife and other children is one of the many consequences of your criminal conduct.
30	Your youngest child, aged three years, suffers from the same genetic condition as his older sister, and he has suffered a broken leg once at the age of 18 months when he slipped on the bathroom floor.  I received a treatment summary from the Royal Children's Hospital, dated 26 September 2018, in relation to this incident.
31	The overall situation of your immediate family and the impact of your absence was outlined in the letter from Dr Mel, paediatrician, dated 24 March 2020.  
Dr Mel's letter provides an overview of the impact of your incarceration upon your family.  I accept the matters referred to therein.
32	The challenges that have been faced by you and your immediate family were significant prior to your incarceration.  Your absence makes your family's already difficult experience in the community considerably more onerous.  The overlay of the COVID-19 pandemic stages 3 and 4 restrictions increases that difficulty somewhat again, for obvious reasons. 
33	In particular, I accept that the level of anxiety experienced by your wife and children has been significantly exacerbated by the effect of the restrictions.  I accept that the consequences and effects of the restrictions flows through and impacts upon the rest of your family.  The ability for your wife to get assistance in dealing with the challenges facing the family is of course greatly reduced at this time.  
34	All of these matters weigh heavily upon you.  Your arrest, the court proceedings and your remand awaiting sentence have already had consequences for you and your relationship with family members and it will continue to do so.
35	Your counsel submitted that I could be satisfied that the confluence of circumstances that fall under the banner of family hardship amounted to 'exceptional' in the sense that that description attached to the circumstances in cases such as Trinh v The Queen..
36	I have been unable to find that the combination of circumstances meets the threshold where family hardship becomes a sentencing consideration as a stand-alone matter.  It remains relevant to my sentencing consideration, however.  The family hardship due to your absence is significant and will make your experience of custody far more burdensome than for another who is not experiencing the constant stress, worry and self-flagellation, to use an analogy, that I am sure you will engage in throughout the duration.
Extra-curial Punishment
37	Your counsel addressed me on the financial ramifications for you and your family that resulted from your offending.  In dollar terms, it has been very significant.  The letter I received from your wife contains considerable detail as to the financial loss that can be attributed to your commission of the offence and its consequences.  These matters were supported by documents tendered.
38	The Prosecution point out that these financial losses are largely the natural consequences that flow from a person engaged in your occupation, with your financial resources and interests, offending in the dishonest manner in which you did in the course of your business.  I consider that to be a fair assessment.  A fair-minded member of the community may even consider these losses to be 'just desserts' for your offending.  The point remains, however, that I accept that the losses are consequences of your conduct, I accept that they are significant, particularly the loss of the deposit, and I accept that they have impacted significantly upon you and will do into the future.  Viewed reasonably, the impact has a punitive effect.  I expect it will also serve as specific deterrence in your case.
39	I have mitigated the sentence I impose to some degree due to what I am satisfied amounts to extra-curial punishment.  This mitigation includes my assessment of the impact upon you from the public shaming and opprobrium flowing from the wide reporting of the initial allegations, which of course fell away substantially once you pleaded to the indictment before me.
Plea of Guilty
40	I am satisfied that your plea of guilty should be regarded as an early one.  You indicated an intention to plead guilty to an appropriate charge as far back as the committal hearing.  You entered a plea to a more expansive charge in February of this year.  The precise charge before me replaced that earlier indictment in June.
41	Your plea of guilty also attracts a significant discount for its utilitarian value.  As I noted during the plea hearing, it is not an exaggeration to describe the circumstances surrounding trial listings in this State at present as a crisis.  A trial of you and your co-offenders may have taken up three months of court time.  The trial was listed for July just gone, but of course it would not have been able to proceed, and the date was vacated some time ago.  It is likely a trial would not have been reached until late 2021 or early 2022.  The many hundreds of trials that have not been reached during this pandemic and those that cannot be dealt with in the coming months of course stand a better chance of being reached in the next 18 months due to the resolution of matters such as yours.
42	I also accept that your plea is reflective of contrition and your acceptance at an early stage that you had engaged in the serious criminality before me.  To some degree, it is reflective of remorse.  Your plea is consistent with your previous good character, and what I find is some remorse as described in the reference material tendered on your behalf.  Together with these findings, the matters contained in the psychological report of Michael Bilyk, and your work history, skills and standing in your industry, I find that you have good prospects of rehabilitation.
Delay
43	Your indication of a plea at an early stage and the efforts made on your behalf to resolve the matter are relevant to my assessment of the effects of delay.  The matter has hung over your head for a lengthy period.  You have not re-offended, you have worked to establish other businesses and have continued to support your family and play your role in assisting them through the difficulties they face.  You have also remained engaged with your community and been a contributor to your community throughout this period.
44	Your conduct during this period of delay, and the fact that you have experienced the delay knowing you would face the consequences of your offending eventually, attracts mitigation and I have taken this into account in determining the sentence I will impose.

COVID-19
45	You entered custody at an extraordinary time in our history.  The atmosphere in our community at the time of your incarceration was one of high anxiety and oppressive circumstances.  Your experience in custody will be shaped by the atmosphere we are all experiencing.  You have been through a 14-day quarantine in custody.  You have had no visits.  It is likely that you will not be able to see your wife and children or other family members, other than perhaps on a screen, for the duration of your gaol term. 
46	In addition, I have taken into account that the anxiety experienced in the general community in relation to infection can be amplified for those within the confines of a prison system.  Your concern for the welfare of your family during the pandemic will be harder to bear whilst you are incarcerated.
Prospects of rehabilitation, previous good character
47	I received a number of testimonials attesting to your previous good character, your remorse and your contributions to your family life and the community.  I accept these matters generally, although I must view the assessments as to character in light of your offending and, in particular, in light of the recorded conversations referred to in the Prosecution opening that demonstrate your enthusiasm for the receipt of stolen goods and a high level of dishonesty.  That said, I sentence you as someone who is otherwise of good character.  
48	Given all of the matters I have referred to, and given the shame, humiliation and extra-curial punishment in the form of monetary loss you have experienced I consider your previous character, work history, background and employment history justify a finding of good prospects of rehabilitation. 
49	You are a first-time offender and, significantly, it is your first experience of custody.  I have already referred to the matters which will increase the burden of imprisonment for you.  I will impose a sentence that reflects the leniency and mercy that I consider is available to you, given the circumstances attracting personal mitigation in your case, that I have already referred to.
50	However, general deterrence remains a very significant factor in your case:
51	I accept the matters raised in the prosecution submissions on sentence that support the importance of general deterrence in the sentencing exercise:
a)	Receiving is a crime that encourages theft.  Your commission of the crime illustrates vividly why that is so;
b)	Your commission of the offence was difficult to detect;
c)	You circumvented your obligations under the Second-Hand Dealers Act.
52	I have concluded that the importance of general deterrence can be reflected in a combination sentence, which includes both a lengthy period of imprisonment for a man in your circumstances and a lengthy community corrections order to follow.  The punitive aspects of a community corrections order are well understood.  For a man in your circumstances, I expect the work component I impose will add to the shame and humiliation you have experienced, but it will also serve as an important punishment in addition to imprisonment.  In composite with a term to be served, it will deter others who are tempted to profit by dishonestly receiving the stolen property of members of our community. 
Sentence
53	On the charge of receiving stolen goods I sentence you to 12 months imprisonment, in combination with a community corrections order of two years duration. 
54	A condition of the community corrections order is that you perform 200 hours of unpaid community work.
55	Pursuant to s.18 of the Sentencing Act 1991, I declare that you have served 32 days of pre-sentence detention, not including today.  And if I am to be corrected on that, you can speak now or let us know.
56	Pursuant to s.6AAA. I declare that but for your plea of guilty, I would have sentenced you to a total effective sentence of four years imprisonment, with a non-parole period of two and a half years.  
57	I assume that the community corrections order is consented to.  Is that so, 
Mr Tenenboim?  You can just nod your head if you - he is nodding his head; I do not think we need to unmute him.  There is no issue with that.  I will sign that directions order and it will be sent to Mr Tenenboim for his signature, but he has consented to it.  All right.  Now, that should be plain enough, 12 months with a two year CCO, 32 days already served.  
58	Now, nothing further at this stage, Mr Glynn, is there?
59	MR GLYNN:  No, Your Honour.
60	HIS HONOUR:  No.  I know there is still an outstanding matter; I do not know if that is going to come back to me in relation to forfeiture, but that will remain in abeyance for now if it is. 
61	MR GLYNN:  Yes, Your Honour.
62	HIS HONOUR:  All right, thank you.
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