R v Edward Herbert ELELMAN

[2009] NSWDC 163

CITATION:	R v Edward Herbert ELELMAN [2009] NSWDC 163
HEARING DATE(S):	22 May 2009
JUDGMENT DATE:	22 May 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	For the offence of supplying prohibited drug on 29 April 2008 the offender is sentenced to a fixed term of imprisonment for one year to date from 19 November 2008. For the offence of supplying a prohibited drug on 22 May 2008 the offender is sentenced to imprisonment. I set a non parole period of one year to date from 19 May 2009. It will expire on 18 May 2010 and I set a balance of term of 18 May 2012, thus the offender will be eligible to be released to parole on 18 May 2010. Property and money forfeited.
CATCHWORDS:	CRIMINAL LAW - Sentence - Supply prohibited drug - Amphetamine - Hardship to a third party
PARTIES:	The Crown Edward Herbert Elelman
FILE NUMBER(S):	DC 2008/11/1185
SOLICITORS:	NSW DPP Catherine Hunter

SENTENCE

1 HIS HONOUR: Edward Elelman appears for sentence today after having pleaded guilty at an early opportunity to two offences of supplying a prohibited drug. On each occasion the drug involved a relatively small quantity of amphetamine. The offender was a drug user in the northern beaches area. He knew a woman by the name of Suzanne Lenton. She was in contact with an undercover police officer, although she did not know that he was an uncover police officer at the time. He, over the period of a bit more than a month, obtained seven separate quantities of methylamphetamine from Ms Lenton. Ms Lenton in turn needed to obtain her drug supplies from someone and on two occasions she obtained them from this offender. They were on 29 April 2008 and 22 May 2008.

2 On the first occasion the undercover officer bought the drugs for $450 and on the second occasion he paid $250. On that second occasion the conversation between the offender, Ms Lenton and the undercover officer was recorded. The contents of that conversation are important in determining whether the two supplies for which the offender is to be sentenced today were isolated or not. Although not too much turns on it, I am satisfied that they were not isolated acts. Certainly I am satisfied that the offender was not planning to give up supplying that day and I note he was arrested the following day. When arrested the offender had some drug supply paraphernalia in his possession and during the conversation that I have referred to earlier, he spoke about seeing “three people” and in context that could only mean that he was supplying three people. And also in that conversation he told the undercover officer that he would be able to deal directly with him in the future. At the very least that the offender was prepared to supply more in the future to the undercover officer so, as I have said, I am satisfied that these two acts for which the offender is to be sentenced were not isolated. On the other hand, he is only to be sentenced for these two offences of course.

3 There is also one important matter which suggests that the offender was not a large scale drug supplier at all. On the first occasion that the undercover officer bought from Ms Lenton, that is the 29 April 2008, she had to visit two people to obtain what she wanted. That tends to suggest that when she went to see Mr Elelman (whom she saw first) he did not have enough drugs in his possession to satisfy her request.

4 These offences of course are serious but they are lower than the mid-range of objective seriousness as far as supplying prohibited drug offences go. The offender is now fifty-six years of age. There is a significant aspect of his criminal history that is worthy of mention. He committed offences up until 1980 when he absconded to Western Australia. For the next twenty-nine years or so he committed no offences at all. In that period he married and had two children. His son, Matthew, suffers from cerebral palsy, a circumstance that I will return to later. Things were going well for the offender until 1999 when his wife left him. He explained that that was the catalyst for his return to drug use. Traditionally he had been a user of heroin but after his wife left him he met a woman by the name of Julie who was a user of methylamphetamine and in particular that form of the drug known as “ice”. It was in that context that the offender himself starting using methylamphetamine, even though it was not really his drug of choice. And it was in that context that he met Ms Lenton and, in order to obtain drugs for his own use, began to supply it, in particular to the undercover officer on these two occasions.

5 The offender was dealt with very leniently for escaping when he returned to New South Wales, I gather, because he turned himself in. He received only seven days imprisonment for that offence. That sentence would also have reflected the substantial measure of rehabilitation that the offender had achieved. It is disappointing, which is something of an understatement of course, to see someone who had achieved so much rehabilitation, relapse in such a serious way.

6 The offender gave evidence before me today and I am satisfied his desire to give up drugs is genuine, although that of course will not be easy. He will require the assistance of the Probation and Parole Service upon his release from custody which is a matter which has prompted me to make a finding of special circumstances in his favour. Also in that regard, I note that the offender has been serving a sentence for some other offences since being arrested on this matter and so the sentence that I impose upon him today will necessarily need to be adjusted, even if there was no finding of special circumstances in the offender’s favour in order to preserve the statutory ratio.

7 It is a matter of some aggravation that the offender was being assessed for home detention for those Commonwealth matters at the very time that he was committing these two drug supply offences. He was being considered for leniency at the time that he was committing serious offences. Clearly it is a difficult thing to offer him leniency in the future given his attitude on that occasion.

8 The offender has plans to return to work upon his release and hopes to reconcile with his wife, including living with her, although I note that she was not present in Court today. His sister was here. She has been a great deal of support to him over the years, in particular as regards the position of his son, and her nephew, Matthew. As I mentioned, Matthew suffers from cerebral palsy. He cannot speak and is blind in one eye. When the offender’s wife left him, he cared for Matthew for some time before that became impossible as Matthew grew up. Matthew lives in a residential home and, until he was arrested, the offender would visit him three out of four Sundays and on the fourth Sunday Matthew would come to his home. Since going into custody, Matthew has visited his father in custody only twice with the assistance of the offender’s sister, but those visits were difficult.

9 Hardship to third parties can be taken into account when sentencing an offender only when that hardship is exceptional. I am satisfied that the position of Matthew is exceptional in that he will, through no fault of his own, miss the regular visits with his father. On top of that of course, the offender will be doing his time in custody much harder than he otherwise would have done, knowing that through his wrongdoing he has deprived his son Matthew of the care and comfort that he was able to provide in the past. The offender became clearly distressed when discussing his son in Court and I am satisfied that his concern for his son is genuine.

10 It is inappropriate that totally concurrent sentences be imposed. There were two separate acts of criminality and they should be punished by two separate sentences. However, there will be some partial overlap in order to give effect to the principle of totality, a principle which also is of importance in deciding the overall term given the Commonwealth offences which have already been served. It is agreed that these sentences should date from 19 November 2008. For the offence of supplying prohibited drug on 29 April 2008 the offender is sentenced to imprisonment. I set a fixed term of one year to date from 19 November 2008. That sentence is a fixed term because of the sentence I will announce on the second matter. For the offence of supplying a prohibited drug on 22 May 2008 the offender is sentenced to imprisonment. I set a non parole period of one year to date from 19 May 2009. It will expire on 18 May 2010 and I set a balance of term of 18 May 2012, thus the offender will be eligible to be released to parole on 18 May 2010. Any other matter Madam Crown, Ms Hunter?

11 OLENDER: Yes your Honour the forfeiture of the $565 cash which was the undercover operative buy money that was in the possession of the offender at his arrest and also the destruction of the drugs and drug paraphernalia, together with the mobile phone.

12 HIS HONOUR: Is there anything you want to say about that Ms Hunter?

13 HUNTER: No your Honour.

14 HIS HONOUR: The money can be forfeited as can the mobile phone and the drug paraphernalia and the drugs can be destroyed.

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