Director of Public Prosecutions v Llewellyn

[2018] VCC 2163

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

CR 18-02504

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL LLEWELLYN

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Bendigo
DATE OF HEARING:	13 December 2018
DATE OF SENTENCE:	13 December 2018
CASE MAY BE CITED AS:	DPP v Llewellyn
MEDIUM NEUTRAL CITATION:	[2018] VCC 2163

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – trafficking and possession of methylamphetamine – immediate sentence of imprisonment imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Maguire	John Cain Solicitor for the Office of Public Prosecutions
For the Accused	Mr S. Kenny	Victoria Legal Aid

HER HONOUR:

1Michael Llewellyn, you have pleaded guilty to one charge; between 30 January and 30 March 2017, you trafficked in a drug of dependence, methylamphetamine, Charge 1.  And on 30 March 2017, you possessed a drug of dependence, methylamphetamine, Charge 2. 

2Both charges are serious and that is reflected in the maximum penalty prescribed by Parliament, and that is 15 years' imprisonment for Charge 1, the trafficking offence, and five years or 400 penalty units in respect to Charge 2, or where it is for the purpose of personal use, it is one year or 30 penalty units, which is the penalty that I will be imposing in respect to you. 

3You shall now be sentenced on the basis of the prosecution opening, and that is marked Exhibit 1. 

4You have admitted your criminal history. It is quite an extensive criminal history, that spans a period from 6 December 2004 to
26 April 2016. 

5You have convictions recorded for various dishonesty offences, driving offences, some possession of drug offences, as well as contravention of Community Correction Order (CCO) and contravening conditions of bail and committing indictable offences whilst on bail. 

6You have spent a considerable time in gaol over the past few years. 

7On 26 April 2016, you were ordered to serve one year imprisonment with a non-parole period of six months in respect to some matters, and there were subsequent matters as well. 

8At the Swan Hill Magistrates' Court on 26 October 2017, you were sentenced to an aggregate of 90 days imprisonment, to follow a 15 month CCO for possession of methylamphetamines and other offending. 

9On 21 September 2018, at this court in Bendigo, at the County Court, you were sentenced to total of three years imprisonment, to serve two years, with 197 days being declared as pre-sentence detention.  That was in relation to trafficking a drug of dependence to a child, trafficking a drug of dependence, dishonesty offences, persist contravention of a family violence order as well as some driving offences.

10The anonymised sentencing remarks of His Honour Judge Mason set out the circumstances of the offending, and I have had regard to his sentencing remarks. 

11The contravention of the CCO imposed on 26 October 2017 was dealt with at Swan Hill Magistrates' Court on 9 November 2018 and the contravention was found proven.

12In formulating the appropriate sentence in respect to these charges, I have had regard to totality.  I further note that these charges were delayed due to the prosecution of other serious contested allegations of rape and attempted rape that have been alleged against you, and to which charges you have pleaded not guilty.  Those charges have yet to be finalised. 

13You are to be sentenced in respect to Charge 2 on the basis that you were in possession of those drugs for personal use, having regard to your admissions in the record of interview and the amount of drugs that was found in your possession. 

14In respect to Charge 1, you are being sentenced on the basis that you were a low-level dealer.  Police found evidence when they searched your premises of a ledger that indicated that you had made sales of methylamphetamine to the value of approximately $20,000 during the period of the alleged offending, involving approximately 400 individual points, each point being one-tenth of a gram. 

15Your crimes were uncovered as a consequence of police investigating allegations of serious sexual assaults that were alleged to have occurred at your premises on Sunday 30 March 2017.  The complainant, in respect to those alleged charges, attended your premises on that occasion to purchase some methylamphetamine and in the course of that transaction, she made allegations of a sexual nature against you. 

16Police executed a search warrant pursuant to the Crimes Act 1958 and during the search of your property, they located a small amount of crystalline white substance, which is the subject of Charge 2, the possession charge, and they also located the ledger that I have already referred to that indicated the sales that you were making.

17I note that the context to the offending is that you have had a raging methylamphetamine addiction for many years and, to a large extent, that explains your offending on this occasion and also your past offending.  Whilst giving an explanation for your offending, it is not an excuse for your offending. 

18In respect to this indictment, the prosecution accept that you offered into an early plea of guilty in respect to the drug charges and therefore you are entitled to a sentencing discount for your early plea.  Through your plea, you have acknowledged your wrongdoing.  There is real utility in your plea, you have spared the State the expense and inconvenience of a trial and you have facilitated justice and your sentence will be discounted accordingly.

19I am also satisfied that you are now genuinely remorseful in respect to the offending, having regard to your formal pleas of guilty that you have entered, and also the admissions made during the record of interview that was conducted by police. 

20General deterrence, specific deterrence and denunciation are predominant sentencing purposes.  In all the circumstances, there is no alternative other than the imposition of a gaol term to be served. 

21I have had regard to the background and matters put in mitigation by Mr Kenny.  You are now 32 and you do have the ongoing and continued support of your adoptive parents, John and Audrey Llewellyn.  They adopted you, aged 2, from a Thai orphanage.  You have a younger adopted sister, with whom you are said to be very close.  You have maintained good relationship with your family, who have continued to provide ongoing support over the years, notwithstanding your offending.

22Significantly, there has been a demonstrated shift in your thinking recently. I have had regard to the contents of the letter written by your parents, where they say you have been frank with them during their recent visits, admitting to them that gaol has given you the tools to break your addictive drug habits.  You have said that you are ready to break away from you drug-fuelled lifestyle.

23You are a person who does have great promise. You successfully completed Year 12 and you were a talented footballer.  You completed three years in the Army Reserve and also successfully completed an electrical apprenticeship.  Unfortunately, you do not hold a licence to work as an electrician currently because of some past civil dispute. 

24Sadly, you have squandered the opportunities that you had in the past and at the time of this offending, you were not in any full-time employment, and that has been the case now for some years. 

25You have been in and out of jail and you have had a very unstable lifestyle, primarily due to your addiction to methylamphetamine. It is an important point in your life. If you do accept that your past criminal offending is behind you, that you must now take genuine steps to ensure that you do not take any further drugs in the future. 

26Your story illustrates how pernicious the addiction to methylamphetamine can be, how it can impact on all aspects of life and corrode health, relationships and opportunities. 

27And I say to you, Mr Llewellyn, to maximise your rehabilitation prospects and for you to reform and be genuine in your commitment to change, you do need to make good your expressed desire not to live such a life in the future, by remaining totally abstinent and finding more positive ways to engage in your life for the future. 

28This offending occurred immediately upon your release from gaol. Every time you are released from gaol, you face that challenge. I just hope that you are genuine and that you do not provide further hurt to your parents in the future by continuing the criminal lifestyle that you had engaged in.  And I do encourage you to make good your expressions that you want to change. 

29In your favour, whilst you have been in custody, you have utilised your time well, you have undertaken courses, including two courses relating to drug counselling.  Whilst they may assist you for the future, they are not going to be the answer.  It is up to you as an individual to change and to make good your expression to change. 

30You have had very little engagement with drug treatment in the past, and I encourage you, upon your eventual release, to seek out the assistance of such organisations such as drug and alcohol treatment services upon your eventual release.  I can say this, that you have made a promising start towards your rehabilitation, but to make good your prospects for rehabilitation, you must commit to remaining drug free and not succumb to drug use when you are released.

31Otherwise I fear that you will continue to repeat your past bad behaviour with the inevitable outcome that you will spend more time in gaol and become institutionalised.  Such an outcome for a young man who has the promise that you do would be very tragic. 

32In sentencing you, I must impose just punishment. 

33I will now announce the formal court orders.  Charge 1, you will be convicted and sentenced to six months' imprisonment.  Charge 2, you will be convicted and sentenced to one month imprisonment. 

34The total effective sentence is six months' imprisonment, and I order that three months of the sentence is cumulative upon the sentence that you are currently undergoing.

35Section 6AAA declaration, but for your plea of guilty, I would have imposed a term of imprisonment of 12 months. 

36Finally, I make the disposal order sought.  That concludes my formal sentencing remarks.  Thank you.  Thank you for your attention.  Do you understand that the sentence means that you get an additional three months upon the sentence you are currently undergoing and it does not interfere with your parole period, all right?

37OFFENDER:  Sorry, does that mean, like, my parole period, my earlier, still stays, I just get another three months added to the top?

38HER HONOUR:  That is correct.  That is correct.

39OFFENDER:  Thank you.

40HER HONOUR:  All right, so all the best for the future.  And please make good your promises.

41OFFENDER:  No worries, thank you.

42HER HONOUR:  All right, so we can adjourn that case.  Thank you for coming. 

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