R v Cheikh; R v Hoete [2004] NSWCCA 448 (16 December 2004)

CITATION: Regina v CHEIKH; Regina v HOETE [2004] NSWCCA 448

FILE NUMBER(S):

60464/03

60465/03

60232/04

HEARING DATE(S): 21 June 2004

JUDGMENT DATE: 16/12/2004

PARTIES:

Regina v Mohammed CHEIKH; Regina v Adam Ropiha HOETE

JUDGMENT OF: Giles JA Levine J Hulme J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 03/21/0003

LOWER COURT JUDICIAL OFFICER: Nield DCJ

COUNSEL:

Dr P Power SC - Crown

H K Dhanji - Cheikh

A Francis - Hoete

SOLICITORS:

S Kavanagh - Crown

M Croke - Cheikh

S O'Connor - Hoete

CATCHWORDS:

Sentencing - ongoing supply of prohibited drug - each offender pleaded guilty to four counts - a number of offences on Forms 1 taken into acount - extensive enterprise of supplying methylamphetamine - managers and runners - Mr Cheikh sentenced as a manager - Mr Hoete sentenced as a runner - whether error in discount for utilitarian value - whether sentences manifestly inadequate - whether Mr Hoete's sentence excessive - consideration of need to pay regard to legislature's prescription of maximum penalty and where in the range thus defined the offender's criminality lies - sentences inadequate. D.

LEGISLATION CITED:

DECISION:

IN THE MATTER OF MOHAMMED CHEIKH: Appeal allowed, sentence imposed in the District Court set aside, and sentenced on Count 1: Imprisonment for a fixed period of eight years from 19 September 2003 to 18 September 2011; Count 2: Imprisonment for a fixed period of eight years from 19 March 2005 to 18 March 2013; Count 3: Imprisonment for a fixed period of eight years from 19 September 2006 to 18 September 2014; Count 4: Imprisonment for a period of ten years two months with a non-parole period of five years four months and a parole period of four years ten months, the non-parole period to commence on 19 July 2008 and expire on 18 November 2013 on which date Mr Cheikh will be eligible for parole and the parole period to commence on 19 November 2013 and expire on 18 September 2018. IN THE MATTER OF ADAM HOETE: Mr Hoete's application for leave to appeal against sentence allowed; Mr Hoete's appeal against sentence dismissed; Crown appeal against the sentence imposed in respect of counts 2, 3 and 4 allowed; In respect of count 2, sentenced to imprisonment for a fixed period of 3 years from 5 June 2003 to 4 June 2006; In respect of count 3, sentenced to imprisonment for a fixed period of 3 years from 5 June 2004 to 4 June 2007; In respect of count 4, sentenced to imprisonment for a term of 4 years, including a non-parole period of 1 year, both such periods to commence on 5 June 2006; Specifiy as the date upon which Mr Hoete shall be eligible for parole, 5 June 2007.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 60464/03

CCA 60465/03

CCA 60232/04

DC 03/21/002

DC 03/21/003

GILES JA

LEVINE J

HULME J

Thursday 16 December 2004

R v CHEIKH

R v HOETE

Judgment

1 GILES JA: Mohammed Cheikh and Adam Hoete were each sentenced for a number of drug offences with Form 1 offences taken into account. The Crown appealed against the sentences imposed on both Cheikh and Hoete on the ground that they were manifestly inadequate. Hoete applied for leave to appeal against the sentence imposed on him on the ground that it was excessive. The appeals and the application were heard together.

Background

2 Cheikh and Ali Osman managed a drug syndicate supplying prohibited drugs in western Sydney. A number of “runners” worked in day or night shifts, contacting and being contacted by customers, delivering the drugs to them and receiving payment. The runners were supplied by the managers with the drugs, with mobile telephones on which customers contacted them, and at least in some cases with motor vehicles, and were paid in cash or in kind. The managers arranged the shifts, supplies and payment, including checking on the locations of the runners and their stocks of drugs and receiving accountings for drugs and money received. Hoete was one of the runners. Other runners were Ahmed Habib, Ahmed Kahlil, Allen Waghorn and Bridget Belvie.

3 The police were granted telephone interception warrants for a number of mobile telephones, through which the activities in the management of the syndicate and the supply of drugs were demonstrated. Undercover police officers also posed as customers. The police moved against the syndicate in June 2002.

4 Each of Habib, Kahlil and Waghorn pleaded guilty to drug offences and was sentenced prior to the sentencing of Cheikh and Hoete. Belvie pleaded guilty to drug offences and was sentenced at the same time as Cheikh and Hoete were sentenced. None of Habib, Kahlil, Waghorn and Belvie appealed against their sentences, nor did the Crown appeal against their sentences. Osman pleaded guilty after the sentencing of Cheikh and Hoete, and had not been sentenced when the appeals and application were heard.

The sentences

5 On 31 July 2003 Cheikh pleaded guilty to an indictment containing four counts of on-going supply of a prohibited drug, contrary to s 25A of the Drug Misuse and Trafficking Act 1985. The maximum period of imprisonment for the offence is 20 years. A further five counts of on-going supply of a prohibited drug were placed on a Form 1.

6 Each count charged that, between stated dates giving a period of thirty days, Cheikh supplied a prohibited drug on three or more separate occasions during the period of thirty consecutive days for financial or material reward. The four counts in the indictment were for the thirty day periods effectively (and in order of the counts) of October 2001, December 2001, February 2002 and June 2002. The five counts in the Form 1 were for the thirty day periods effectively (and in order of the counts) of November 2001, January 2002, March 2002, April 2002 and May 2002.

7 On count 1 in the indictment Cheikh was sentenced to imprisonment for four years to commence on 19 September 2003 and expire on 18 September 2007. On counts 2 and 3 he was sentenced to imprisonment for four years to commence on 19 September 2004 and expire on 18 September 2008. On count 4 he was sentenced to imprisonment for five years and three months to commence on 19 June 2006 and expire on 18 September 2011, with a non-parole period of two years and three months to commence on 19 June 2006 and expire on 18 September 2008. The judge began his consideration of the terms of imprisonment for the offences with “taking into account an additional offence or, in relation to the last count of the indictment, two additional offences”, so he took the Form 1 offences into account serially. The overall sentencing result was imprisonment for eight years from 19 September 2003 to 18 September 2011 with a non-parole period of five years.

8 On 27 March 2003 Hoete pleaded guilty to four counts of on-going supply of a prohibited drug, with a further ten counts on a Form 1 made up of four counts of on-going supply of a prohibited drug, four counts of supplying a prohibited drug and two counts of supplying cannabis. The four counts in the indictment were for the thirty day periods effectively (and in order of the counts) of October, November and December 2001 and January 2002. The four counts of ongoing supply of a prohibited drug in the Form 1 were for the thirty day periods effectively of February 2002, March 2002, April 2002 and May 2002. The other counts in the Form 1 were for actual or deemed supply of methylamphetamine on dates in January 2002, February 2002 and June 2002 and supply or deemed supply of cannabis between 29 November 2001 and 5 June 2002 and on 5 June 2002.

9 On each of counts 1, 2 and 3 in the indictment Hoete was sentenced to imprisonment for three years to commence on 5 June 2002 and expire on 4 June 2005. On count 4 he was sentenced to imprisonment for four years to commence on 5 June 2004 and expire on 4 June 2008, with a non-parole period of one year and six months to commence on 5 June 2004 and expire on 4 December 2005. In his remarks on sentence the judge said globally that in sentencing Hoete he had taken into account the Form 1 offences, although in the record of the sentences signed by the judge it was said that the Form 1 offences had been taken into account in the sentence on count 4. The overall sentencing result was imprisonment for six years with a non-parole period of three and a half years.

The sentencing

10 All of Cheikh, Hoete, Habib, Hahlil, Waghorn and Belvie were sentenced by Nield DCJ. The judge sentenced Habib on 20 December 2002 and Kahlil and Waghorn on 22 August 2003. On 22 August 2003 he set 29 August 2003 for the sentencing hearing of Belvie, 12 September 2003 for the sentencings hearing of Hoete and 19 September 2003 for the sentencing hearing of Cheikh.

11 There was some confusion over what was before the judge for the sentencings of Hoete and Cheikh. Transcripts of the sentencing hearings were before us. The exhibits were not clearly identified and marked. It is desirable that this be done with care, to avoid such confusion.

12 On 12 September 2003 the Crown tendered what the judge described in saying -

“I have the statement of facts, the shifts by the various people, I’ve the statement of Gemma Moore, Michelle Pierce, a person whose name is Operative Kelly, the analysts certificates, criminal record nil, probation report.”

His Honour was also provided with what were described as a statement of Det Sen Con McKinnon and “a copy of the recorded interview with the offender”.

13 Hoete gave oral evidence, in the course of which some certificates in relation to courses he had undertaken were tendered. The Crown and Hoete’s counsel addressed, in the case of Hoete’s counsel handing up written submissions. The sentencing was then adjourned to 26 November 2003, a date which later became 1 October 2003. There was no record of tendering the remarks on sentence on the sentencings of Habib, Kahlil and Waghorn, but the list of exhibits included them and it was accepted in the appeal and application that they were properly before the judge.

14 On 19 September 2003 the Crown tendered a statement of facts, Cheikh’s criminal record and a pre-sentence report. A number of “testimonials” were tendered on behalf of Cheikh. In the course of submissions there was reference to the judge’s remarks on the sentencings of Habib, Kahlil and Waghorn. Again, there was no record of tendering them, but they were included in the list of exhibits and it was accepted in the appeal that at least for parity considerations they were properly before the judge for the sentencing of Cheikh. Cheikh did not give evidence. The sentencing was adjourned to 1 October 2003.

15 On 1 October 2003 the judge sentenced each of Cheikh, Hoete and Belvie, in the one set of remarks on sentence.

16 The statement of facts tendered in the sentencing of Hoete occupied thirty pages. It first had a description of the syndicate and the parts played by the managers and the runners, and referred to the telephone interception warrants.

17 Then under the heading “Facts in relation to Adam Hoete” it began -

“1. Between October 2001 and June 2002 Hoete participated in an organised drug syndicate to supply prohibited drugs in the western Sydney area. Hoete was supplied with the drugs, vehicles and mobile telephones on which the customers contacted him. The offender had knowledge of the persons who managed the syndicate (Ali Osman and Mohammed Cheikh) and the other ‘runners’ (Ahmad Khalil, Ahmad Habib, Bridget Belvie, and Allen Waghorn). The managers of the syndicate arranged for Hoete to work day or night shifts. The day shift commenced at approximately 10.30am and the evening shift commenced at 4.30pm and ended around 11.00pm. The offender was contacted by these managers in the course of his shifts to ensure he had sufficient drugs.”

18 Under sub-headings identifying each of the counts in the indictment and in the Form 1 there were then set out (or incorporated by reference from elsewhere in the statement of facts) by date and time summaries of telephone calls between Hoete and customers in which Hoete arranged to supply drugs, and the dates, times and conversations with undercover police officers arranging supply and accompanying supply to those officers. There was then reference to finding drugs when executing a search warrant at Hoete’s home, and to Hoete’s recorded interview with the police in which he denied knowledge of syndicate personnel and made no comment as to supply of drugs.

19 The document in the sentencing of Hoete described by the judge as “the shifts by the various people” was a listing by date from 15 October 2001 to 9 June 2002 of persons in the columns “AM Shift” and “PM Shift”. Some days were blank. There were names additional to those of the five runners identified above. Sometimes, though not often, two persons were on duty on the same shift. Hoete’s name, or the name “Tyson” which it seems was accepted as being Hoete, appeared often. This was the source of the judge’s statement in his remarks on sentence that in the period from 16 October 2001 to 4 June 2002 Hoete worked 170 shifts.

20 The statement of facts tendered in the sentencing of Cheikh occupied 78 pages. It also first had the description of the syndicate and the parts played by the managers and the runners, and referred to the telephone interception warrants and to the police undercover operations. The description was -

“1. In October 2001 the Police became aware of a drug syndicate that was supplying cannabis and methylamphetamine in the Bankstown and Hurstville areas. As a result of this information the police sought and were granted telephone interception warrants in relation to a number of mobile telephones.

2. As a result of the investigation the police identified Hoete, Belvie, Waghorn, Khalil and Habib as operating as ‘runners’ for the syndicate. The telephone interceptions show Cheikh was the manager of the syndicate, supplying the runners with drugs, paying them for their services, checking on their locations and seeing if that [sic] had sufficient drugs to supply during their shifts.”

21 There followed a number of sections, each dealing with one of the runners Hoete, Belvie, Waghorn, Khalil and Habib. Each section began, under the heading “General”, with a paragraph or paragraphs repeating with the appropriate name changes the material under the heading “Facts in relation to Adam Hoete” earlier set out. (There was a difference in that in the section dealing with Hoete it was said that he was “supplied with the drugs, vehicles (or used his own) and mobile telephones ... “.) Then for various months of 2001-2002 there were set out (or incorporated by reference) for each of the runners summaries of telephone calls and dealings with undercover police officers in similar manner to the material in the Hoete statement of facts.

22 A section under the heading “Mohamed Cheikh and Ali Osman” then set out summaries of telephone calls made or received by Cheikh and Osman to or from the runners, showing them arranging to provide the drugs and otherwise organising the runners’ activities. It was said that Cheikh participated in a recorded interview with police “but declined to offer any information in respect of the allegations of drug supply”.

The remarks on sentence

23 After referring to the pleas and Forms 1, and saying that Cheikh, Hoete and Belvie were not co-offenders but overlapped in their offences, the judge said -

“Shortly stated, this is how they come to commit the offences. Mr Cheikh and another man, Mr Ali Ozman [sic], established a business supplying prohibited drugs to customers of the business. They employed people to receive the order for a particular prohibited drug from a customer, to meet with the customer to exchange the drug for money and to account to them for the drugs supplied and the monies received. Mr Cheikh and Mr Ozman provided each employee with a motor vehicle, a mobile telephone and an amount of different prohibited drugs. Each employee worked regular shifts of five or six hours. Some employees worked during daylight, some worked during night time and some worked during both daylight and night time. Each employee received a set wage or a set amount of drugs for each shift worked. Mr Hoete and Ms Belvie were employed by Mr Cheikh and Mr Ozman, as were Mr Ahmed Habib, Mr Ahmed Kahlil and Mr Alan Waghorn.

On 20 December 2002 I sentenced Mr Habib for the offences of supplying a prohibited drug committed by him and on 22 August 2003 I sentenced both Mr Kahlil and Mr Waghorn for the offences of supplying a prohibited drug committed by each of them. A copy of my reasons for the sentenced imposed upon each of them is part of the material related to each of the offenders.”

24 The judge then went separately to each of Cheikh, Hoete and Belvie.

25 The judge summarised the offences to which Cheikh had pleaded guilty and referred to the prescribed penalties. His Honour then said -

“The facts related to the offences are contained in the statement of facts, exhibit A, related to him. However, although I know that Mr Cheikh was supplying methylamphetamine to his employees so that they could supply them to the business’s customers, and that Mr Cheikh kept regular contact with his employees during their shifts, I do not know what quantity of methylamphetamine was supplied by Mr Cheikh over the eight-months period or what amount of money he received from supplying methylamphetamine over that period. I know, however, the number of days within that period and the number of shifts worked by the business’s employees during that period. It is, I think, beyond a shadow of a doubt that a large amount of money exchanged hands for a large amount of prohibited drugs.”

26 His Honour then related a number of matters “[c]oncerning Mr Cheikh personally”. The matters were generally favourable. Although Cheikh had offended previously, the judge said he did not regard his criminal record as either serious or significant. He said that “he had everything going for him and nothing going against him”.

27 The judge said -

“Although he did not plead guilty before the magistrate in the Local Court, he pleaded guilty to the subject offences at the earliest appropriate opportunity in this Court. He is entitled to a discount in sentence of twenty-five per cent on account of his guilty pleas.

Although I accept that his guilty pleas may show his contrition, I doubt, frankly, that he is contrite for his conduct. I accept that he is sorry for himself and his wife and the shame that he has brought onto his family. However, he was in the business of supplying prohibited drugs for profit without, I am sure, any regard or concern for his employees or for the customers of his business. He did not close his business, police closed his business when they arrested him and his employees. I do not doubt that, had police not arrested him and his employees, he would have continued in his business.”

28 The judge then turned to Hoete. After referring to the offences to which Hoete had pleaded guilty, he said -

“The facts related to the offences are contained in the statement of facts related to Mr Hoete. During the period from 16 October 2001 to 4 June 2002, Mr Hoete worked 170 shifts, as revealed by exhibit B related to him. On eight of the 170 shifts he worked with an offsider, so to speak, who on five occasions was his de facto wife Ms Belvie.”

29 His Honour then said that it was clear that Hoete supplied a prohibited drug “on many, many occasions”, referring to a number of occasions identifiable in the exhibits and an analysis by counsel for Hoete ascribing occasions to the counts in the indictment and the Form 1.

30 The judge then went to “concerning Mr Hoete personally”, again generally favourably.

31 The judge said -

“Although he did not make any admissions to police when interviewed following his arrest, and although he did not plead guilty before the magistrate in the Local Court, he pleaded guilty to the subject offences at the earliest appropriate opportunity in this Court and, therefore, he is entitled to a discount in sentence of twenty-five per cent on account of his guilty pleas.

His guilty pleas show his contrition. He expressed his sorrow and blame in his evidence. I consider his contrition to be genuine.

He has made good use of his time in prison since his arrest, completing a personal development course and a computer course. He wishes to reconcile with Ms Belvie on his release from prison. I consider that he has learnt a salutary lesson. I doubt that he will re-offend. I think that following his release from prison he will be rehabilitated.”

32 The judge then went in like manner to the position of Belvie: I do not go into it.

33 The judge said -

“As to a determination of appropriate sentences to impose upon the offenders, I must take into account – and I do – the seriousness of the offences, the need to protect the community, the need to punish the offenders and deterrence, both personal and general, and balance those features against the subjective features related to each offender, and I must compare the offenders among themselves and with their co-offenders.

There cannot be any doubt about the seriousness of the offences. I referred to the seriousness of the offences in my reasons for the sentence that I imposed on Habib and I need not repeat what I said there. The community demands, as it is entitled to do, that suppliers of prohibited drugs, whether on the top or bottom rung of the ladder of drug supplying, be dealt with appropriately, with those on the top rung of the ladder being dealt with more severely than those on the bottom rung of that ladder. The sentence imposed upon a supplier of any prohibited drug must stand as a clear and definite warning to anyone thinking of supplying a prohibited drug of the seriousness with which the Courts regard the activity.”

34 The judge turned to parity. He said that -

“ ... there cannot be any argument that the criminal conduct of Mr Cheikh was much more serious than that of any one of Mr Habib, Mr Khalil, Mr Waghorn, Mr Hoete or Ms Belvie and that, therefore, he must suffer a significantly more severe punishment than any one of them. As I have said, Mr Cheikh was the manager of the business and he was the employer of the others. He obtained the prohibited drugs from somebody and he supplied them to his employees so that they might supply them to users of them. His employees took the risks, he and his partner took the profits.

...

In relation to the employees of the business, an assessment must be made of their respective criminality. Mr Habib worked thirty-five shifts between 11 January and 30 April 2002. Mr Khalil worked at least nine shifts between 18 December 2001 and 30 January 2002. Mr Waghorn worked at least twenty-one shifts between 2 March and 4 June 2002.

I said when sentencing them that I saw their conduct as being part of the one activity, that is, the supplying of prohibited drugs to users of those drugs. Of course, that one activity involved many, many offences. There were similarities and differences between them. I determined, balancing everything, that the criminality of Mr Habib and Mr Waghorn was about the same and that the criminality of Mr Khalil was less than that of Mr Habib and Mr Waghorn.

I sentenced Mr Habib to imprisonment for three years with a non-parole period and a parole period each of one year six months. I sentenced Mr Khalil to imprisonment for two years three months with a non-parole period of one year and a parole period of one year three months. I sentenced Mr Waghorn to imprisonment for three years three months with a non-parole period of one year nine months and a parole period of one year six months.

...

In comparing Mr Hoete and Ms Belvie with Mr Habib, Mr Khalil and Mr Waghorn, there is not much between them, although Mr Hoete worked more shifts than any of the others and Ms Belvie worked three less shifts than Mr Habib but twenty-three more than Mr Khalil and eleven more than Mr Waghorn, and each of them has admitted having committed more offences than any of the other offenders. I see the criminality of Mr Hoete as greater than that of Mr Habib, Mr Khalil, Mr Waghorn and Ms Belvie, and I see the criminality of Ms Belvie as greater than that of Mr Habib, Mr Khalil and Mr Waghorn.’

35 The judge came then to the sentences. He said -

“When determining appropriate sentence to impose upon an offender who has committed more than one offence, the High Court’s judgment in Pearce requires a determination of an appropriate sentence for each offence for which the offender stands for sentence, and then a consideration of the issues of totality and accumulation.

Dealing firstly with Mr Cheikh, taking into account everything I have said about him and about the offences, I consider that for each offence, taking into account an additional offence or, in relation to the last count of the indictment, two additional offences, the starting point is imprisonment for seven years which I reduce by twenty-five percent, that is one year nine months, on account of his guilty pleas to five years three months.

I consider that, to reflect his total criminality for the four offences committed over an eight-month period of time, imprisonment for a total term of eight years is appropriate.

I accept that special circumstances exist, those being his age, his previous character, the fact that he has never served a prison sentence, and I apportion the total sentence as to a non-parole period of five years and a parole period of three years.”

36 His Honour pronounced the sentences imposed on Cheikh, adding that “[i]n sentencing you for these offences I have taken into account the additional offences”. Presumably he considered that the sentences of five years and three months on counts 1, 2 and 3 should be reduced to four years through his consideration of totality and accumulation, as can be done, see Mill v The Queen (1988) 166 CLR 59 at 63.

37 The judge continued -

“Dealing now with Mr Hoete, balancing everything to which I have referred, the offences and those features subjective to him, I have determined that the starting point is imprisonment for five years six months which I reduce by twenty-five per cent, which for ease of calculation is one year six months, to four years.

To reflect his total criminality for the offences when taking into account the additional offences I have determined that the appropriate sentence is imprisonment for six years.

I consider that special circumstances exist: his age, his previous character, the fact that he has never served a prison sentence and the likelihood of his rehabilitation. I have determined that the non-parole period will be three years and six months and the parole period will be two years and six months.”

38 His Honour pronounced the sentences, adding that “[i]n sentencing you I have taken into account the additional offences referred to in the Form 1 Crimes (Sentencing Procedure) Act document.”

Cheikh – The Crown appeal

39 The Crown submitted that there was specific error in giving too great a discount for the pleas of guilty. It submitted that there was latent error in paying insufficient regard to the need for general and specific deterrence; in giving insufficient weight to the matters on the Form 1; in structuring the sentences with undue concurrency; and in giving insufficient weight to the objective criminality involved in the offences. These latter deficiencies were said to be evident in manifest inadequacy in the individual sentences and in the overall sentencing result. The argument in this respect was circular, since the deficiencies, if they or some of them existed, were revealed by the manifest inadequacy. Apart from the discount for the pleas of guilty, it was not said that the judge’s remarks on sentence contained incorrect statements of fact or principle.

(a) The discount for the pleas of guilty

40 Cheikh was arrested on 5 June 2002 and charged on the same day. He was committed for trial on 16 December 2002. His trial jointly with Osman was fixed for three weeks commencing on 4 August 2003. At a mention before Tupman DCJ on 31 July 2003 his representative indicated that he would be pleading guilty. The transcript records -

“AINSWORTH: He’s here, I’ve been given an indictment this morning which I had considerable fore knowledge in relation to a – resulting as a revision of certain facts with a form which is yet to be signed, I’ll need to conform this and get my client to indicate that he has a full understanding and sign the form and if that’s the case I can – would be able to indicate your Honour, that this is a short matter. It was set for trial for Monday.

...

HER HONOUR: All right now there is a letter from your instructing solicitors foreshadowing this back on 1 July Mr Ainsworth.

AINSWORTH: Yes we – what – with respect it may concern your Honour, because your Honour may not want to deal with it but the indictment we’ve come back to was the original indictment that was offered at the arraignment, I wasn’t appearing in the matter then, once I got wind of it some discussions started to take place some time ago in relation to coming back to the --- “

41 Cheikh was arraigned on what was described as “an indictment dated 31 July in lieu of the counts against this accused in joint indictment filed dated 6 March 2003 with co-accused Osman”. He pleaded guilty.

42 The transcript thereafter recorded Cheikh’s representative saying -

“AINSWORTH: The indictment that’s been presented today your Honour is essentially the same indictment that was offered at the arraignment, on my understand [sic], back in March, and between that day in arraignment and when I got a hold of it, it came back to that indictment. The original indictment had nine counts in it your Honour, it’s been split four and five, the – certainly once I began to advise him --- “

43 What the judge knew of this on 29 September 2003 does not appear, although it seems to have been accepted that he had some knowledge of the history.

44 The submissions to the judge by Cheikh’s representative included -

“Your Honour the plea was entered at the callover before the trial. The indictment that your Honour has, the four counts and five on a form, was what the prosecution were prepared to accept when he was arraigned. This was in Januaryish, early February this year. I did not appear for him at that time. Subsequent to me being engaged, I, myself made contact with several different people within the DPP and ultimately it was agreed that he would – could we come back to what the original offer was on the arraignment and we’d plead guilty to that. That plea wasn’t entered until the Thursday before. All I can say to your Honour is that it was indicated at some prior time that we would be pleading guilty if we could have what was offered the first time.

HIS HONOUR: And he was in fact indicated to her [Honour] Judge Tupman on 6 March that he would plead not guilty to the nine counts on the indictment.

...

Just in terms of the entering of the plea your Honour, I appreciate that it wasn’t done at the arraignment in February and it wasn’t done in March but he ultimately, he has pleaded to what he could have pleaded to in February, after my opinion, receiving my opinion as his counsellor who was going to run the trial, as to what should be done about it. Now he can only enter the plea when it’s re-listed but that was the next available – the date that it was to be re-listed was the Thursday callover before the Monday trial and we did it then, but I mean it was in train some considerable time before that your Honour. I can’t pin it down to precisely when. In as much as it affects the quantum of the discount, it’s not an early, early plea but it’s a plea nonetheless and it’s a plea that’s saved the Court what would have been an extraordinarily lengthy court case.

As your Honour is aware from having reviewed the facts in those previous judgments where other persons involved in this same operation, just how many phone calls there were and there’s undercover purchasers. In Mr Cheikh’s trial, all that would have had to have been run because he’s said to be the manager, as it were, of this operation.

Everything by Hoarty [sic], Bellvie [sic], Waghorn and Habib, including the 11 supplies by Hoarty to undercover police officers, the two supplies by Bellvie, the one supply by Waghorn and the five by Khalil. I think there’s another four by Habib, they would ---

HIS HONOUR: Well it would have been lengthy.

AINSWORTH: Well your Honour it would have been lengthy. We would have to do all that to prove the elements of 25A on the basis that we were supplying them for them to supply the people, so all that video evidence, surveillance, what car is that, would have had to have been run, and all the phone calls, and all the efforts to trace phone calls to and from, and match them to movements, all would have had to have been run if he’d maintained his plea of not guilty, on those nine counts. So there has been a substantial saving and your Honour should, with respect, reflect that in some discount in relation to his plea of guilty.”

45 The submissions of the Crown Prosecutor included -

“In relation to the terming [sic] of the plea, it is not what would be termed as an early plea. The offer was able to be accepted and made in February 2003. He was committed for trial in the middle of December – I believe it was 18 December, and the plea was not entered until 31 July, some six months after the initial offer.

My friend is correct. There is a great utilitarian value. It would have been a very lengthy trial for the Crown to run but with all due respect to my friend of course, it’s a very strong Crown case, especially when it comes to terms of identification evidence. ... ”

46 In R v Thomson and Houlton (2000) 49 NSWLR 383 guidelines were stated for imposing sentence on a plea of guilty. It was said that the appropriate discount range to reflect the utilitarian value of a plea of guilty was from 10 to 25 per cent, and -

“[153] The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.

[154] There are however two circumstances which will generally affect the appropriate level of discount in a particular case:

(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.

(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.

[155] The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.

[156] Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the "discount" will be reflected in a step down in the hierarchy of sentencing options.”

47 The judge gave a discount of 25 per cent. Other than saying that Cheikh “pleaded guilty to the subject offences at the earliest appropriate opportunity in this Court”, he did not say why.

48 The pleas were a few days before the beginning of the trial. It seems that the Crown agreed that an indictment containing nine counts should be replaced by an indictment containing four counts with the other five counts on a Form 1, but there is no reason to think that the nine counts differed from the original charges on which Cheikh was committed for trial. Cheikh could have pleaded to the same mix of charges in February 2003, but his case in mitigation did not show that the same could not have been done earlier. His representiaive’s description of his pleas as “not an early, early plea but ... a plea nonetheless” correctly recognized that Cheikh could have indicated his pleas earlier, and on any realistic view the timing of the pleas was such that their utilitarian value was limited to avoidance of the trial. It may have been technically correct to say that Cheikh pleaded guilty at the earliest opportunity in the District Court, but that inadequately reflected the situation.

49 There is no doubt that the Crown Prosecutor recognised that there was significant utilitarian value in avoidance of the trial. But there had been committal and preparation for the trial, and the utilitarian value was much less significant than would have come from earlier pleas. In my opinion, a discount of 25 per cent at the top of the usual range was not warranted, and was outside a proper exercise of the judge’s discretion.

(b) Manifest inadequacy

50 The Crown drew attention to discussion in the cases of a number of sentencing considerations, none of which was in contest. In summary, they were -

(i) a sentence must reflect the objective seriousness of the offence;

(ii) general and specific deterrence is important, making clear to the offender and others that yielding to criminal impulses will meet with condign punishment;

(iii) prior good character and lack of criminal record are of reduced significance in drug offences (referring in particular to R v Leroy (1984) 13 A Crim R 469 and R v Nemes (CCA, 28 August 1997, unreported);

(iv) Form 1 offences are taken into account with a view to increasing the penalty otherwise appropriate for the particular offence, giving greater weight to the need for personal deterrence and satisfying the community’s interest in retribution for serious offences for which punishment is otherwise not imposed (referring to Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002 [(2002) [2002] NSWCCA 518; 56 NSWLR 146);

(v) Serious Form 1 offences should be recognised by more than a slight increase in penalty, so that the sentence reflects the totality of the offender’s criminality (referring in particular to R v Perese (2001) 126 A Crim R 508; this does not mean punishment for the Form 1 offences, but due recognition of their gravity, see Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1) of 2002).

(vi) in the determination of totality required by Pearce v The Queen (1998) 194 CLR 610 the total sentence should reflect the seriousness of the offender’s criminality; and

(vii) offences contrary to s 25A of the Drug Misuse and Trafficking Act 1985 are ascribed by the legislature a significantly increased penalty, targeting dealers who limited the effect of the existing offences by dealing only in small quantities at a time; while quantity is relevant to criminality, so also is the magnitude of the business operation in which the offender is engaged (referring in particular to R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47).

51 The Crown’s submissions included -

“As Wood CJ at CL said in R v Khaled [2001] NSWCCA 169, the section [s 25A] is directed at those who keep the pernicious trade in drugs rolling. The objective criminality of an offence under section 25A is considerably greater than the sum of the criminality in the three or more separate acts of supply, considered individually. The section is directed towards persons who carry on a business or practice of supplying prohibited drugs. The notion that the objective criminality of offences under s 25A should be assessed by reference to the ongoing nature and commercialism of the operations was confirmed in R v Hoon; Regina v Pouoa [2000] NSWCCA 137. In Hoon and Pouoa Dunford J said when considering the application of section 25A:

’39 The section is directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply. ...

40 Obviously the section is primarily directed to those persons higher up the organisation than the respondents in this case, but the section is wide enough to cover "runners" such as the respondents, who can fairly be described as "retail couriers".

41 Distribution networks cannot operate without those at the lowest levels and those persons play an essential part in the operation, albeit, a lesser role than those higher up in the organisation. Accordingly, offences under the section, even by persons fulfilling the functions performed by the respondents in this case, must be regarded as more serious than offences under s 25.’”

52 The judge said that there was no doubt about the seriousness of the offences, at that point referring generally to the offences of Cheikh, Hoete and Belvie, and that Cheikh’s offending was much more serious than that of the runners. He declined to find that Cheikh was contrite. Although he said that he took into account deterrence, both personal and general, and that the sentence imposed upon a supplier of any prohibited drug “must stand as a clear and definite warning to anyone thinking of supplying a prohibited drug of the seriousness with which the Courts regard the activity”, he did not more specifically recognise these sentencing considerations.

53 Cheikh submitted that no error had been shown in the judge’s view of the objective seriousness of the offences, his regard to the need for general and specific deterrence, or the account he took of the Form 1 offences, and that it was open to the judge to arrive at his concurrency of sentences; he said that the sentences had not been shown to be plainly unjust, unreasonable or manifestly wrong (referring in particular to Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321). He said also that his subjective case was favourable and that the judge had not expressly referred to a number of favourable character references or to good prospects of rehabilitation demonstrated by a satisfactory work record while on bail. And he said that the judge had acted on incorrect findings adverse to him, which militated against acceding to the Crown appeal.

54 It is convenient first to deal with these findings. It was submitted that it was incorrect to find that Cheikh and Osman “established” the business, and that the Crown case had not gone beyond their being managers. I do not see significance in the judge’s use of the word. He sentenced Cheikh as “the manager of the business [who] ... supplied [the drugs] to his employees so that they might supply them to users of them”. It was submitted that it was incorrect to find that Cheikh provided each employee with a motor vehicle, because Osman rather than Cheikh might have done so and it was apparent that Hoete often used his own motor vehicle. Again I do not see significance in this. The judge in fact said that “Mr Cheikh and Mr Osman” provide the motor vehicles, and sentencing did not turn in any way on whether the conduct of the business under Cheikh’s co-management involved each and every runner having a business vehicle.

55 The maximum penalty of imprisonment was imprisonment for 20 years. The offences on the indictment were each a serious offence, Cheikh being one of the managers of an extensive business operation supplying the drugs to a great many persons. While “manager” could mean management for a proprietor of the business operation, with Cheikh not at the top of the hierarchy, he was in a key position with effective co-responsibility for the conduct of a major enterprise of trading in drugs. The judge was not satisfied that he was contrite, against which his previous good record and the character references and subsequent work history counted for little. His conduct spanned seven months, and while he was to be sentenced for specific offences relating to only four of those months the seriousness of his offending could not disregard that the specific offences were part of the longer period of criminality taken into account through the Form 1 offences.

56 The activities of Cheikh fell squarely within the legislature’s intention, found in s 25A, of targeting those who carry on the business of supplying drugs. The offence is stated in terms of supply for financial or material reward “on three or more separate occasions during any period of thirty consecutive days” (emphasis added). As was said in R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47, it is relevant to consider the quantity of drugs supplied and the magnitude of the business operation. The offence is committed if there is supply on three or more separate occasions, but the offence may rise higher in the range up to the maximum of 20 years imprisonment as the number of occasions goes beyond three.

57 The maximum of 20 years imprisonment is the legislature’s will for what may be regarded as a worst case. In objective criminality, Cheikh’s offending was towards a worst case. He could not be sentenced as the proprietor of the business operation who reaped all its financial rewards, but as I have said he was in a key position with effective co-responsibility for the conduct of the enterprise. It was a major enterprise, employing runners beyond the five earlier identified and working morning and afternoon shifts sometimes with more than one runner on duty on the shift. The drugs were methylamphetamine rather than (say) heroin, and no doubt the business could have extended beyond western Sydney, but for the kind of dealer to which s 25A is directed a business operation of greater magnitude would be rare.

58 The sentence for each count, with its attendant Form 1 offences, must be considered separately. The judge took that starting point of seven years for each of the counts with its attendant Form 1 offences. In the appeal no analysis of the individual offences was directed to materially differentiating between them, no doubt because the sentences of five years and three months after discount became four years through consideration of totality and accumulation and no point was seen in doing so.

59 Taking the same course, and accepting that Cheikh’s offending in each case did not reach a worst case and that he had in his favour the subjective considerations to which the judge referred (although not contrition), nonetheless having regard to where the facts placed the objective criminality in the range I consider that the judge’s starting point of imprisonment for seven years did not adequately reflect the criminality and the need for general and, in the absence of contrition, specific deterrence. I consider that the starting point could have been no less than twelve years. In my opinion, the discount for the pleas of guilty could have been no more than 15 per cent. Accordingly, the judge’s five years and three months, in my view, could have been no less than a rounded down ten years and two months. In using the words no less than and no more than, I intend to indicate the limit of the available range, and a greater period of imprisonment could have been imposed without error.

60 The offences were part of the same course of criminal conduct, but to reflect the totality of the criminality in the perpetuation of the criminal conduct over many months in my opinion no less than an overall sentence of fifteen years imprisonment was appropriate. In my opinion, the sentences were manifestly inadequate; the inadequacy satisfies the requirements of Lowndes v The Queen and Dinsdale v The Queen. Taking into account the constraint upon resentencing on a Crown appeal, sentences in accordance with the foregoing should be imposed; as will appear. I broadly follow the judge’s structuring of the cumulation of the sentences.

61 The Crown provided schedules from Judicial Commission statistics of sentences imposed for s25A offences. This was supplemented by tables and case references provided by counsel for Hoete. The facts of Cheikh’s offending govern the sentences, and statistics and comparison with other cases provide varied, often little, guidance. Cheikh’s offending was major, as I have said towards a worst case, and it must be measured on the scale provided by the maximum period of imprisonment.

62 It was submitted by Cheikh that the statistics revealed only one case in which an offender had received a greater sentence than that imposed on Cheikh, and that proper pursuit of evenhandedness meant that, as well as paying regard to the seriousness of the offence in relation to the maximum penalty, regard had also to be paid to “the existence of a general pattern of sentencing by criminal courts for offences such as those under consideration”: R v Oliver (1980) 7 A Crim R 174 at 177; see also R v Visconti (1982) 2 NSWLR 104 at 107. However, in R v Oliver Street CJ cautioned -

“This is not to suggest that sentences are to be arbitrarily dictated by mathematical application of statistics. There is an enormous difference between recognising and giving weight to the general pattern as a manifestation of the collective wisdom of sentencing judges on the one hand and, on the other hand, forcing sentencing into a strait-jacket of computerisation. There is, moreover, always a danger, as is recognised on the civil side in the assessment of general damages, of seeking to use a factual assessment in one case as a legal precedent or authority to govern the decision in another.”

63 The cases in this Court concerning sentences for s 25A offences involving multiple supply of amphetamine and similar (as distinct from cocaine and heroin), as ascertained by counsel, are listed in the schedule to these reasons. Against each case is the sentence as upheld or substituted.

64 The brief indication as to sentence can be misleading, depending amongst other things on the mix of offences and offences taken into account, and regard to these cases amply bears out how each sentencing turns on the particular facts. Having taken account of the facts in these cases, I remain of the opinion earlier stated. Cheikh’s total criminality, revealed in the offences on the indictment and with proper regard to the Form 1 offences, was such that I do not think the judge’s sentencing was, or the resentencing I propose will be, excessive according to some general pattern of sentencing. I doubt that there is a general pattern of sentencing, save in general terms such that lesser criminality brings a lesser sentence and greater criminality brings a greater sentence, and a pattern is difficult to discern when in every case there are many sentencing considerations additional to the level of criminality.

65 To repeat, regard must be had to the legislature’s statement of the maximum penalty, here imprisonment for 20 years, and I am unable to conclude that the resentencing I propose, placing Cheikh at a little over half the maximum sentence on each count with its attendant Form 1 offence, should be diminished. I appreciate that this goes well beyond the greatest sentence in the schedule. The facts in this case, and the number of offences on the counts and in the Form 1, went well beyond the circumstances of the cases in the schedule.

Hoete – the Crown appeal and his application

66 The Crown’s submissions were essentially the same as the submissions in the Cheikh appeal. Hoete’s response was, in short, that the discount for the pleas of guilty was within the available range and, the other complaints coming down to assertion of manifest inadequacy, the inadequacy had not been shown. Hoete referred in particular to the observations of Spigelman CJ in R v Baker [2000] NSWCCA 85, to the effect that Crown appeals should rarely succeed where the complaint was not of specific error but of manifest inadequacy indicative of latent error. In Hoete’s application he submitted that he had a justifiable sense of grievance because of disparity between the sentences imposed on him and the sentences imposed on Cheikh (in one direction) and the other runners (in the other direction).

(a) The discount for the pleas of guilty

67 Hoete was arrested on 5 June 2002 and charged on the same day. He was committed for trial on 16 December 2002. In February-March 2003 there were what were described as negotiations on pleas and charges. He was arraigned on 27 March 2003, and pleaded guilty.

68 Hoete’s counsel provided the judge with written submissions, which were not before us. Whatever they may have said about a discount for pleas of guilty was not remarked in the submissions of the Crown Prosecutor. What changes there were in the offences in the indictment presented on 27 March 2003 and the accompanying Form 1 from offences charged prior to that time is not known to us, but more important for all we know the judge was told, and the Crown accepted, that the changes were such that it was correct to say that Hoete pleaded at the earliest appropriate opportunity in the District Court.

69 Since we do not know what the judge was told, I do not think the Crown has shown that the judge erred in allowing the discount of 25 per cent on the basis of early pleas to the offences in the indictment and full utilitarian value.

(b) Manifest inadequacy

70 The Crown focussed on criminality revealed by the many shifts worked by Hoete. It said he must have supplied large quantities of drugs, while not suggesting that he was thereby higher in the hierarchy within the syndicate than a runner who supplied lesser quantities. Hoete’s 170 shifts in the overall period was a greater involvement in the business than the involvement, measured by shifts, of the other runners. He rose higher in the range towards a worst case because, for the periods of the counts in the indictment, the occasions beyond three on which he supplied drugs were greater. For the same reason the s 25A Form 1 offences were of a more serious nature than if Hoete had been shown to be a less involved runner. On the other hand, Hoete was a runner rather than an organiser and the judge accepted that he was genuinely contrite and doubted that he would reoffend. A more serious view of Hoete’s offending could readily have been taken, but I have concluded that in the case of Hoete the obvious inadequacy required by the authorities, with the added factor of a Crown appeal, should not be found. In my opinion, it was open to the judge not to start with sentences greater than the five years and six months and to reflect the total criminality, taking account of the Form 1 offences, in an overall sentence no greater than six years. I do not think manifest inadequacy has been shown.

(c) The application

71 Whether or not Hoete could have complained of lack of parity with Cheikh’s original sentences, any complaint falls away upon the resentencing of Cheikh which I propose. The complaint of lack of parity with the sentences of the other runners was muted. The sentences of the other runners were Habib: three years term and one year six months non-parole period; Khalil: two years three months term and one year non-parole period; Waghorn: three years three months term and one year nine months non-parole period; and Belvie: four years term and two years non-parole period. Hoete’s criminality, as revealed by the much greater number of shifts he worked, was greater than that of the other runners. He pleaded guilty to more s 25A offences than they did (they were sentenced for two or less offences), and asked that more and more serious Form 1 offences be taken into account than they did (none of them had more than one s 25A offence in the Form 1). It was suggested that Kahlil had in fact worked thirty-three shifts and Waghorn thirty-five shifts, but what matters is the shifts on the basis of which they were sentenced. I do not think it necessary to go further. In my opinion, it can not be said that the judge erred in his approach to parity or the result to which he came.

The result

72 In the case of Cheikh I broadly follow the judge’s structuring of the cumulation of the sentences, and accept his opinion as to special circumstances. I propose orders that the appeal be allowed, that the sentences imposed in the District Court be set aside, and that Mohammed Cheikh be sentenced to -

Count 1: Imprisonment for a fixed period of eight years from 19 September 2003 to 18 September 2011;

Count 2: Imprisonment for a fixed period of eight years from 19 March 2005 to 18 March 2013;

Count 3: Imprisonment for a fixed period of eight years from 19 September 2006 to 18 September 2014;

Count 4: Imprisonment for a period of ten years two months with a non-parole period of five years four months and a parole period of four years ten months, the non-parole period to commence on 19 July 2008 and expire on 18 November 2013 on which date Mohammed Cheikh will be eligible for parole and the parole period to commence on 19 November 2013 and expire on 18 September 2018.

73 In the case of Hoete I propose orders that the appeal by the Crown be dismissed and the application for leave to appeal be dismissed.

Schedule

Case	Term	Non-parole period
Way [2004] NSWCCA 131	9 yrs 4 m	7 yrs
CBK [2002] NSWCCA 457	7 yrs	2 yrs
D’Alencon [2003] NSWCCA 269	6 yrs 6 m	4 yrs 6 m
Meres and Dineen [2003] NSWCCA 193	4 yrs 9 m 5 yrs	3 yrs 3yrs
Smith [2002] NSWCCA 378	4 yrs	3 yrs
Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47	4 yrs 6 m	2 yrs 6 m
Connell [2003] NSWCCA 90	4 yrs	2 yrs 6 m
Hofer [2001] NSWCCA 544	4 yrs	2 yrs 4 m
Hennock [2002] NSWCCA 229	4 yrs	2 yrs
O’Dowd [2002] NSWCCA 502	4 yrs	1 yr
Fogg [2002] NSWCCA 395	3 yrs 6 m	2 yrs 3 m
Camplin [2004] NSWCA 29	3 yrs 6 m	1 yr 9½ m
Handley [2001] NSWCCA 311	3 yrs 1 m	1 yr 6 m
Bacon [2000] NSWCCA 549; (2000) 120 A Crim R 28	3 yrs	1 yr 6 m
Shoddie [2003] NSWCCA 164	3 yrs	1 yr 6 m
Jolevski [2002] NSWCCA 395	1 yr 6 m bond	-
McArthur [2002] NSWCCA 390	10 m	5 m 20 d

74 LEVINE J: I agree with Giles JA as to the disposition of the Cheikh appeal and with his Honour’s reasons therefor. In relation to the disposition of the Hoete appeal and application, I agree with the outcome proposed by Hulme J and his Honour’s reasons.

75 HULME J: In this matter I have had the advantage of reading the reasons for judgment of, and order proposed by, Giles JA. Subject to the following remarks, I agree with his Honour’s reasons and with the orders he proposes should be made in the case of Mr Cheikh. I hold a different view as to the appropriate orders to be made in the case of Mr Hoete.

76 One of the criticisms made on Mr Cheikh’s behalf was of the reference by the sentencing judge, in a passage quoted by Giles JA at [23] to Mr Cheikh and Mr Osman having “established” a business supplying prohibited drugs. In my view the criticism is justified. The Statement of Facts said that “The telephone interceptions show Cheikh was the manager of the syndicate ...” and while the Statement went on, both in the parts headed “Mohammad Cheikh” and in the parts primarily directed to the situation of the runners, to describe what Mr Cheikh and Mr Osman did, nowhere does that Statement provide evidence from which one could be satisfied beyond reasonable doubt that either of them established the business. Similarly his Honour erred in the same passage when he said that Mr Cheikh “supplied (the drugs) to his employees so that they might supply them to users of them”. The evidence did not establish that the runners were employees of Mr Cheikh, Mr Osman or both of them rather than employees of some third party.

77 It was also submitted that Judge Nield had erred in including Mr Cheikh and a motor vehicle when he said that “Mr Cheikh and Mr Osman provided each employee with a motor vehicle, a mobile telephone and an amount of different prohibited drugs”. It was submitted that there was no evidence to support that part of the statement. Faced with the statements in those parts of the Statement of Facts as dealt with the runners that they “were supplied with drugs, vehicle (or vehicles) and mobile phones” and that the syndicate was managed by Mr Osman and Mr Cheikh, counsel submitted that the possibility existed that it was Mr Osman who had provided any vehicle.

78 The difference between that and what his Honour said is immaterial. Mr Cheikh was not being sentenced for supplying a motor vehicle. The only relevance of the fact that the runners received a vehicle was as some indication of the nature, sophistication and extent of the operation in which all were engaged.

79 And before leaving that topic it is convenient to record (or recapitulate) the magnitude of the operation.

80 The evidence showed that, with the possible exception of some periods I shall mention, throughout the 7 months and 21 days from 15 October 2001 to 4 June 2002, the drug supply operation managed by Messrs Cheikh and Osman operated a day shift commencing at about 10.30am and an evening shift commencing at 4.30pm and ending around 11pm each day. Nearly always there was only one runner per shift but very occasionally, 2 runners or one runner and Mr Osman were working during a shift.

81 The periods when the direct evidence does not show runners were working were 15 October 2001 when the evidence only showed 1 shift was worked, the 5 days from 13 February 2002, and the 15 days from 16 May 2002. Four shifts only seem to have been worked in the period of 7 to 9 June. I think this Court should proceed on the basis that the periods to which I have referred were not worked, notwithstanding that there is much to be said for drawing the inference from the continuity of the operation otherwise, that in fact work selling continued on all of those days except the last when police operations or some suspicion of them may have interfered.

Mr Cheikh

82 Turning to the individual charges against Mr Cheikh, it was established by the direct evidence that in the periods covered by the charges the runners worked:-

First Count, viz. 1 - 30 October 2001 - 1 shift on 15 October and 2 shifts each day thereafter, i.e. 31 shifts.

Second Count, viz 1 - 30 December - 2 shifts operated on each of the 30 days. Sometimes a runner, commonly Mr Hoete would work both shifts.

Third Count, viz. 31 January to 1 March 2002 (which may conveniently be referred to as “February”) - 2 shifts operated every day except for the 5 days commencing on 13 February.

Fourth Count, viz. 31 May to 29 June 2002 - 2 shifts operated on each of the days 31 May to 4 June and a total of 4 shifts operated on the days of 7 to 9 June, i.e. 14 shifts.

83 In the 30 day periods, the subject of the 5 offences listed on the Form 1, effectively November 2001 and January, March, April and May 2002, save for the 15 day period from 16 May when there is no direct evidence of any shifts being worked, the pattern was the same as for the month of December, i.e. at least 2 shifts worked each day. In sentencing the applicant Judge Nield took one of these offences into account in connection with the first to third charges and took 2 into account when sentencing in respect of the fourth.

84 Although the matter does not seem to have been the subject of express attention in the Court below, it seems reasonable to infer that the instances of supply relied on by the Crown against Mr Cheikh were the occasions of supply to the runners. There was no clear evidence of how many such occasions of supply Mr Cheikh occurred in any month beyond the 3 necessarily implicit in his plea. However, runners were contacted during the shifts to ensure they had sufficient drugs. Transcripts of some telephone calls suggest that runners replenished their supplies in the middle of shifts but it may well also be that runners were not resupplied every shift. At times they may have been supplied by Mr Osman. Clearly there were the options of fewer transactions involving larger quantities and of more numerous transactions involving smaller quantities. What can be inferred beyond reasonable doubt is that the combination of the number of instances of supply and the quantities supplied were sufficient to sustain an operation having the characteristics described by Giles JA and which kept runners operating 2 shifts a day supplying their customers.

85 I turn then to that part of s25A as creates the offence:-

(1) A person who, on three or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence

86 Some features stand out. Firstly, the penalty provided for is high. Parliament has provided a severe sanction for the offending conduct. The object clearly is to provide a disincentive sufficiently high that potential offenders will not regard the risks inherent in offending worthwhile incurring. Secondly, that penalty is liable to be attracted by conduct which extends over not more than 30 days. Indeed, supply outside the 30 day period specified in a charge cannot be part of the offence. Thirdly, the number of separate occasions of supply within that 30 days that constitutes the offence is “3 or more”.

87 The “or more” means that there is no upper defined limit against which the number of transactions committed by a particular offender is to be judged in any attempt to identify where on the scale of objective criminality under the section that offender’s conduct lies. It will always be possible to imagine a worse case. However, as the High Court made clear in Veen v R (No 2) [1988] HCA 14; (1987-1988) 164 CLR 465 at 478 that fact does not preclude a particular offence from falling into a worst case category. Nor can Parliament have rationally contemplated that a worse case would be reached only when the number of transactions reached numbers inherently unlikely to be reached.

88 Where does the Respondent’s criminality fit in the scale of offences under s25A(1)? In R v Peel (1971) 1 NSWLR 247 at 262 it was said that "In determining the proper penalty... the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug". In accordance with Pearce v R (1998) 194 CLR 610, the offences should in the first place be looked at in isolation. Looking first at the December offence, the Respondent’s offending was gross. The runners were provided with enough to enable them to work 2 shifts a day on each of 30 days. The Respondent’s criminality was deliberate and, it may be inferred, for simple naked monetary gain. Furthermore the inference is inevitable that a sufficient quantity of drugs was being supplied and sold to cover the costs associated with the provision of motor vehicles and phones, to pay the runners for what, in at least the case of Mr Hoete, was by normal 35 hour week standards, a full time job, and leave some surplus for those above them. Purchases by undercover police officers indicate that commonly a transaction yielded but $50 to the runner.

89 It may be that allowance should be made for the fact that the drug involved was methylamphetamine, a drug which has been referred to in many cases as a middle range drug, and not heroin. Because s25A is not one of those sections where quantity is relevant to the specification of the charge, I am prepared to assume that this differentiation in the characterisation of the drugs should be adhered to – c.f. R v Nai Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284; (2003) 138 A Crim R 204. Furthermore, as I have said, the case against Mr Cheikh was that he was one of the managers, not the principal of the operation. But these matters apart, at a practical level there was only a limited amount more the Respondent could have done to bring his criminality within the category of a worst case under s25A.

90 Because I regard the number of days or shifts which the runners worked in a 30 day period as relevant to the Respondent’s criminality, I regard his offending in October 2001, and February and May/June 2002 as not as great as in December. I do not regard there as being direct proportionality between criminality and the number of shifts but, for example, recognition has to be given to the substantial difference between the 60 shifts in December and the 14 shifts apparently worked in May/June. The inference is inescapable that this difference almost certainly impacted on the number of transactions or quantities involved in the respective months.

91 There had also to be taken into account the offences on the Form 1. I accept, in accordance with Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146, that there are substantial limitations as to the effect that can be given to these offences. Nevertheless, the magnitude of each as an offence against Parliament’s prohibition on dealing in methylamphetamine and contribution to the harm use of such drugs is calculated to inflict on society, justifies appreciable additional weight be given to the factor of retribution.

92 Of course the objective matters to which I have referred were not the only ones to be taken into account. Giles JA has canvassed the others and I not need to go over that ground again beyond recording that Mr Cheikh’s subjective circumstances were such as to inspire little mitigation of punishment. Perhaps however I should expressly record that I agree with his Honour’s assessment that an appropriate allowance for Mr Cheikh’s plea is 15%.

93 Leaving aside that discount and any impact of the offences on the Form 1, Mr Cheikh’s offence the subject of count 2, merited a sentence above half of the 20 year maximum which Parliament has provided for a worst case. Once account is taken of the Form 1 offence also taken into account, that sentence should be appreciably higher. Subject to the discretion which exists in the case of Crown appeals, in my view it should have been 13 years. Once account is taken of the discount for the plea, this would result in a sentence of 11 years.

94 The sentences for the other offences should be less. Again subject to the discretion which exists in Crown appeals but taking into account the Form 1 offence or, in the case of the fourth count, offences and the 15% discount, the sentences I favour for the first, third and fourth counts are, respectively 8 years, 10 years and 8 years. (I have allowed, in the case of all sentences, minor and in the result insignificant, variations in the discount.)

95 These conclusions mean that the sentences imposed on Mr Cheikh of 4 years fixed term on each of the first 3 charges, largely concurrent, were manifestly inadequate. Even if one took the view that in its length, the sentence of 5 years and 3 months on the fourth charge should not be so regarded, the making of its non-parole period wholly concurrent with 2 of the other sentences rendered that sentence also manifestly inadequate.

96 The principle of totality means that the figures at which I have arrived are not simply to be aggregated or made entirely cumulative. Furthermore given the large increase in sentence which all members of the Court think should occur, I am content to exercise the Court’s discretion to impose a sentence lower than that which, having regard to the statutory provision, Mr Cheikh’s offending merits. Accordingly I agree with the proposal of the presiding judge that the overall sentence should be 15 years.

97 I agree also that the orders proposed by Giles JA are appropriate to achieve that result.

Mr Hoete

98 The periods the subject of the charges against Mr Hoete and the number of shifts worked by him in these periods were:-

First Count – 1-30 October 2001 – 8 shifts

Second Count – 1-30 November 2001 – 15 shifts

Third Count – 1-30 December 2001 – 23 shifts

Fourth Count – 1 to 30 January 2002 – 27 shifts

99 The periods the subject of the s25A offences specified on Mr Hoete’s Form 1 and the number of shifts worked by him in these periods were:-

1 30 January to 1 March 2002 – 23 shifts

2 2 to 31 March 2002 – 25 shifts

3 1 to 30 April 2002 – 31 shifts

4 1 to 30 May 2002 – 14 shifts

100 On the Form 1 were also other charges, viz:-

5 Supplying methylamphetamine on 8 January 2002,

6 Supplying methylamphetamine on 26 February 2002,

7 Supplying methylamphetamine on 1 June 2002,

8 A (deemed) supply of methylamphetamine on 5 June 2002,

9 The supply of cannabis between 29 November 2001 and 5 June 2002, and

10 A (deemed) supply of cannabis on 5 June 2002.

101 Having regard to their insignificance in the circumstances, and to the fact that no point was made of it, I shall ignore the possibility that, at least theoretically, the offences of supply on 8 January and 26 February may be included in the sales the subject of the charged and Form 1 offences encompassing these dates – c.f. s25A(5).

102 According to the Statement of Facts, Mr Hoete and the other runners were paid for their services and one may reasonably infer that Mr Hoete benefited directly from working the number of shifts he did. Both the nature of the operation and the number and tenor of the phone calls, transcripts of which were before the Court indicate that, at least on average, there were a number of supply transactions per shift. Given that s25A is offended by as few as 3 sales in a 30 day period, it is impossible to conclude but that, each month, Mr Hoete’s offending against the statutory provision was very substantial. And this is so, even though he was only a runner.

103 So far as Mr Hoete’s subjective circumstances are concerned, Judge Nield found that Mr Hoete was contrite and doubted that he would re-offend. His Honour said that Mr Hoete had made good use of his time in prison and had no convictions of significance. He was regarded as entitled to a 25% discount on account of his plea.

104 Given the magnitude of his offending each month, the sentences imposed on each charge were lenient, perhaps manifestly so, particularly once account is taken of the offences on the Form 1. However, I do not have to decide that. When regard is had to the fact that the 3 year fixed term sentences on the first 3 charges were made wholly concurrent, that the effective sentence was manifestly inadequate is, to my mind, put beyond doubt.

105 Nor does the fact that Mr Hoete’s activities month by month were of the same character and but part of ongoing employment on his part justify the concurrency. Parliament has chosen to define the offence by reference to the time span of a month. An offender enhances his criminality by choosing to continue his activities month by month.

106 I should refer also to the situation of the other runners who were sentenced. Ahmad Habib was charged with 2 offences under s25A in respect of the periods 14/1/02 to 1/2/02 (13 shifts) and 1 to 30/4/02 (5 shifts) and with an offence of possession of 9.64 grams of methylamphetamine for the purposes of supply. Taken into account were 2 further offences under s25A in respect of the periods 31/1/02 to 28/2/02 (14 shifts) and 1 to 31/3/02 (3 shifts) together with other offences, viz:-

1 Possession of 28.5 grams of cannabis for the purposes of supply,

2 A supply of methylamphetamine,

3 Possession of $980 suspected of having been unlawfully obtained.

107 Judge Nield’s account of Habib’s subjective circumstances indicated they were good, save and except that he had become addicted to drugs, particularly cocaine, and his offending was to pay for the addiction. He was given a 25% discount for his plea. The sentence imposed on each of the charges was of imprisonment for 3 years including a non-parole period of 1 year and 6 months, all 3 sentences to be served concurrently.

108 Ahmad Khalil was charged with 1 offence under s25A in respect of the periods 1 to 30 January 2002. Taken into account was 1 further offence under s25A in respect of the period 1 to 31 (sic) December 2002 (14 shifts) together with other offences, viz:-

1 The supply of 0.08 grams of cannabis leaf on 3 January 2002,

2 The supply of 1 gram of cannabis leaf on 20 December 2001,

3 The supply of 0.09 grams of cannabis leaf on 18 December 2001

109 Judge Nield remarking that Khalil worked at least 9 shifts but his Honour was talking of the period from 18 December to 30 January when he found this.

110 Judge Nield’s account of Khalil’s subjective circumstances indicated that, so far as his Honour was aware, they were good, save and except that he had become addicted to cannabis, originally taken to alleviate pain, and his offending was to pay for the addiction. His Honour found that Khalil had ceased supplying drugs at the end of January 2002 and his Honour said that he was contrite and not likely to re-offend. Khalil was given a 25% discount for his plea. The sentence imposed was of imprisonment for 2 years and 3 months including a non-parole period of 1 year.

111 Mr Waghorn was charged with 2 offences under s25A in respect of the periods 2 to 31 March 2002 and 1 to 30 April 2002. Taken into account was 1 further offence under s25A in respect of the periods 8 May to 6 June 2002 together with other offences, viz:-

1 Between 7 March and 5 June 2002 supplying cannabis.

2 On 28 May 2002 deemed supply of 115.1 grams of cannabis leaf,

3 On 28 May 2002 deemed supply of 11.3 grams of methylamphetamine.

112 Judge Nield remarking that Waghorn worked at least 21 shifts. The list of shifts prepared by the Crown and used in the proceedings in this Court totals the number of shifts worked by Waghorn as 14 and shows he worked at least 8 in March, and 3 in April.

113 Judge Nield’s account of Waghorn’s subjective circumstances indicated that he had a criminal record including 2 offences of dishonesty and was addicted to drugs, using all his earnings on these. He was on a good behaviour bond at the time of offending. Judge Neild doubted that Mr Waghorn would re-offend. Because he did not plead guilty at the earliest possible time, the discount allowed to him for his plea was only 20%. The sentence imposed on each of the charges was of imprisonment for 3 years and 3 months including a non-parole period of 1 year and 6 months, both sentences to be served concurrently.

114 Mrs Belvie who was sentenced at the same time as Mr Cheikh and Mr Hoete was charged with 2 offences under s25A. Save that these fell within the 8 month period of Mr Hoete’s offending, the time of these offences were not specified. Taken into account was 1 further offence under s25A, apparently relating to the same period, together with 7 other offences, 4 relating to the supply of methylamphetamine and 3 relating to cannabis leaf.

1 Between 7 March and 5 June 2002 supplying cannabis.

2 On 28 May 2002 deemed supply of 115.1 grams of cannabis leaf,

3 On 28 May 2002 deemed supply of 11.3 grams of methylamphetamine.

115 Judge Nield remarking that Ms Belvie worked at only 32 shifts, including 5 as offsider to Mr Hoete.

116 There was nothing particularly favourable or adverse in Judge Nield’s account of Ms Belvie’s subjective circumstances save and except that his Honour accepted that she was contrite and he doubted that she would re-offend. She had a criminal record which Judge Nield regarded as insignificant. She was given a 25% discount for her plea. The sentence imposed on the first charge was of imprisonment for a fixed term of 2 years and on the second, imprisonment for 4 years including a non-parole period of 2 years which was concurrent with the sentence on the first charge.

117 Although clearly some allowance has to be made for other factors, it is not inappropriate to note the following comparison of the runners’ principal offending and the sentences imposed by Judge Nield:-

Name	Indictment	Form 1	No. Shifts	Sentence
Name	S25A Charges	Other charges	S25A offences	Other offencesTotalNPP
Habib	2	1	2	33531½
Khalil	1	0	1	39 (33)2¼1
Waghorn	2		1	321 (14)3¼1¾
Hoete	4	0	4	6170 (171)63½
Belvie	2	0	1	73242

(In the “No. Shifts column” the first number is taken from Judge Neild’s remarks on sentence. The number in brackets appears in a table of shifts the Crown provided as supported by evidence before Judge Neild in the proceedings from which the appeals of Messrs Cheikh and Hoete are brought. For the purposes of the present appeals, I do not regard the difference as of significance.)

118 Thus Mr Hoete worked for, and was charged with offences occurring during, significantly more 30 day periods and 4 times as many shifts as did any of the others. By comparison also with the sentences imposed on the other runners – at least most of which sentences are unduly lenient for commercial criminality in any event - Mr Hoete merited a sentence substantially higher than that imposed.

119 It is apparent from what I have said that in my view Mr Hoete’s appeal must be dismissed. Accepting that, even when the Court concludes that the sentence under appeal is manifestly inadequate, in a Crown appeal there are constraints on whether the Court should interfere and if so to what extent, in this case interference is required. This is so because of the extent of the inadequacy in the sentence below, because of the importance of making it clear that penalties under s25A must be such as to be a great disincentive to those tempted to engage in commercial drug supply and also to make it clear that the greater the offending, the longer it persists and the more extensive it is, the more severe will be the punishment.

120 In the exercise of this Court’s discretion, I am disposed to afford Mr Hoete some of the leniency which has been extended to Mr Cheikh and the other runners. In these circumstances, I propose that the Court impose on Mr Hoete a sentence of 8 years including, to reflect Judge Neild’s finding of special circumstances, a non-parole period of 5 years. Such a sentence can be achieved by altering the extent of concurrency of the existing sentences without interfering with the length of them individually. Accordingly in the case of Mr Hoete, I propose the following orders:-

(i) Mr Hoete’s application for leave to appeal against sentence is allowed.

(ii) Mr Hoete’s appeal against sentence is dismissed.

(iii) The Crown appeal against the sentence imposed in respect of counts 2, 3 and 4 is allowed.

(iv) In respect of count 2, Mr Hoete is sentenced to imprisonment for a fixed period of 3 years from 5 June 2003 to 4 June 2006.

(v) In respect of count 3, Mr Hoete is sentenced to imprisonment for a fixed period of 3 years from 5 June 2004 to 4 June 2007.

(vi) In respect of count 4, Mr Hoete is sentenced to imprisonment for a term of 4 years, including a non-parole period of 1 year, both such periods to commence on 5 June 2006.

(vii) Specify as the date upon which Mr Hoete shall be eligible for parole, 5 June 2007.

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LAST UPDATED: 16/12/2004