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

New South Wales Court of Criminal Appeal

CITATION : Regina v CHEIKH; Regina v HOETE [2004] NSWCCA 448 HEARING DATE(S) : 21 June 2004 JUDGMENT DATE : 16 December 2004

JUDGMENT OF : Giles JA at 1; Levine J at 74; Hulme J at 75 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.

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. 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; CASES CITED : 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. PARTIES : Regina v Mohammed CHEIKH; Regina v Adam Ropiha HOETE FILE NUMBER(S) : CCA 60464/03; 60465/03; 60232/04 Dr P Power SC - Crown COUNSEL : H K Dhanji - Cheikh A Francis - Hoete S Kavanagh - Crown SOLICITORS : M Croke - Cheikh S O'Connor - Hoete