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Court of Criminal Appeal 16 December 2004

Regina v CHEIKH; Regina v HOETE

[2004] NSWCCA 448

Drugs
SENTENCING ONGOING SUPPLY OF PROHIBITED DRUG MANAGERS AND RUNNERS MR CHEIKH SENTENCED AS A MANAGER MR HOETE SENTENCED AS A RUNNER WHETHER SENTENCES MANIFESTLY INADEQUATE

Citation: Regina v CHEIKH; Regina v HOETE [2004] NSWCCA 448
Court: New South Wales Court of Criminal Appeal
Date: 16 December 2004
Judge(s): Giles JA; Levine J; Hulme J

Background

Two offenders, a drug syndicate manager and one of its runners, were sentenced in the District Court for multiple counts of ongoing supply of methylamphetamine in western Sydney. The syndicate operated with managers and shift-based runners who delivered drugs to customers, used syndicate-supplied mobile phones and vehicles, and reported back to management on stock and takings. Police exposed the operation through telephone interceptions and undercover officers posing as customers.

The manager (Cheikh) pleaded guilty to four counts of ongoing supply of a prohibited drug, with five further counts placed on a Form 1 to be taken into account at sentencing. The runner (Hoete) pleaded guilty to four counts of ongoing supply, with ten further counts on a Form 1. The offence of ongoing supply under s 25A of the Drug Misuse and Trafficking Act 1985 carries a maximum of 20 years' imprisonment.

The District Court sentenced Cheikh to an effective total of eight years with a five-year non-parole period, and Hoete to an effective total of six years with a two-year non-parole period. The Crown appealed both sentences as manifestly inadequate. Hoete separately sought leave to appeal his own sentence as excessive.

  • Whether the District Court erred in the discount applied for the utilitarian value of guilty pleas
  • Whether the sentences imposed on both Cheikh and Hoete were manifestly inadequate
  • Whether Hoete's sentence was, by contrast, excessive as he separately contended
  • How to weigh the legislature's prescription of the maximum penalty and locate an offender's criminality within the range it defines
  • The proper approach to structuring cumulative and concurrent sentences across multiple counts, including Form 1 offences

Decision

The Court of Criminal Appeal found that the sentences imposed on both offenders were manifestly inadequate. The Court emphasised that sentencing courts must pay proper regard to the legislature's prescription of the maximum penalty and assess where within the range defined by that maximum the offender's criminality genuinely falls. Offences under s 25A of the Drug Misuse and Trafficking Act represent serious commercial drug supply, and sentences must serve as a genuine disincentive to that conduct.

In Cheikh's case, the Court allowed the Crown appeal and resentenced him. The revised sentences increased the total effective period, with Count 4 carrying the leading sentence of ten years and two months with a non-parole period of five years and four months. The structured cumulation of terms was adjusted to reflect the severity of managing a commercial drug supply operation across an extended period.

Hoete's own appeal against the excessiveness of his sentence was dismissed. The Court accepted that, while Hoete was sentenced as a runner rather than a manager, he had participated in significantly more 30-day periods and shifts than any comparable runner, making his criminality more extensive than those with whom he might otherwise be compared. The Crown appeal against Hoete's sentence on counts 2, 3 and 4 was allowed.

The Court restructured Hoete's sentences by altering the degree of concurrency between existing counts, without changing their individual lengths. This produced a total effective sentence of eight years with a non-parole period of five years, reflecting both the extent of his offending and some degree of leniency consistent with that extended to others in the syndicate.

Orders Made

Cheikh:
- Crown appeal allowed; District Court sentence set aside
- Count 1: 8 years' imprisonment from 19 September 2003
- Count 2: 8 years' imprisonment from 19 March 2005
- Count 3: 8 years' imprisonment from 19 September 2006
- Count 4: 10 years and 2 months' imprisonment with a non-parole period of 5 years and 4 months, commencing 19 July 2008; eligible for parole 19 November 2013

Hoete:
- Application for leave to appeal against sentence allowed
- Hoete's own appeal against sentence dismissed
- Crown appeal against sentences on counts 2, 3 and 4 allowed
- Count 2: 3 years from 5 June 2003
- Count 3: 3 years from 5 June 2004
- Count 4: 4 years including a non-parole period of 1 year, both commencing 5 June 2006; eligible for parole 5 June 2007

Key Takeaways

  • Sentencing courts are required to have genuine regard to the maximum penalty prescribed by the legislature and to locate the offender's criminality within the range that maximum defines. Inadequate engagement with this framework was central to the Court's finding of manifest inadequacy in both sentences.

  • Under s 25A of the Drug Misuse and Trafficking Act 1985, the Court of Criminal Appeal confirmed that sentences must function as a substantial disincentive to commercial drug supply. The greater the scale, duration, and scope of the offending, the more severe the sentence should be.

  • Roles within a drug syndicate matter significantly to the sentencing outcome. Cheikh, as a manager, received a higher total sentence than Hoete, a runner, but Hoete's more extensive participation compared with other runners justified a sentence substantially above those imposed on his co-participants.

  • Where sentences are manifestly inadequate to a significant degree, the Court of Criminal Appeal will intervene on a Crown appeal even where constraints on such intervention are acknowledged. The intervention need not always alter individual sentence lengths; restructuring concurrency can be a sufficient remedy.

  • A co-offender's sentence may provide a reference point in assessing adequacy, but sentences that are themselves unduly lenient carry limited weight as comparators.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A (ongoing supply of a prohibited drug)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- Dinsdale v The Queen (2000) 202 CLR 321
- Lownes v The Queen (1999) 195 CLR 665
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Baker [2000] NSWCCA 85
- R v Leroy (1984) 13 A Crim R 469
- R v Nai Poon (2003) 138 A Crim R 204
- R v Nemes (CCA, 28 August 1997, unreported)
- R v Oliver (1980) 7 A Crim R 174
- R v Peel (1971) 1 NSWLR 247
- R v Perese (2001) 126 A Crim R 508
- R v Smiroldo (2000) 112 A Crim R 47
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Visconti (1982) 2 NSWLR 104
- Veen v R (No 2) (1987) 164 CLR 465