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."