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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Cheikh [2004] NSWCCA 448
Case
[2004] NSWCCA 448
Decision Date
CaseChat Overview and Summary
The case of R v Cheikh involved two individuals, Mr Cheikh and Mr Hoete, who were part of an extensive enterprise supplying methylamphetamine. Both offenders pleaded guilty to four counts of drug supply, with the court taking into account a number of offences on Forms 1. Mr Cheikh was sentenced as a manager of the enterprise, while Mr Hoete was sentenced as a runner. The case focused on several legal issues, including whether there was an error in the discount applied for the utilitarian value of the drugs, whether the sentences were manifestly inadequate, and whether Mr Hoete's sentence was excessive. The court had to consider the legislature's prescription of maximum penalties and the placement of the offenders' criminality within the defined range.
In delivering its judgment, the court thoroughly examined the nature and extent of the drug supply operation, the roles of the offenders within it, and the specific circumstances of their involvement. The court found that the sentences imposed were inadequate in light of the gravity of the offences and the legislature's prescribed maximum penalties. It was determined that the discount applied for the utilitarian value of the drugs was incorrect, which further contributed to the inadequacy of the sentences. Additionally, while the court acknowledged Mr Hoete's role as a runner, it found that his sentence was not excessive but rather appropriate given his involvement in the operation.
The court's reasoning highlighted the need to appropriately reflect the seriousness of drug supply offences and ensure sentences align with the legislature's intentions regarding maximum penalties. The court concluded that both offenders' sentences were inadequate and did not sufficiently reflect the nature and extent of their criminal activities. In light of this, the court determined that the sentences needed to be increased to appropriately address the offenders' criminality.
In its final orders, the court vacated the original sentences and ordered that Mr Cheikh and Mr Hoete be re-sentenced, taking into account the court's findings regarding the inadequacy of the initial sentences and the need for them to align with the legislature's prescribed penalties.