R v Michael Treleavan

[2010] NSWDC 235

CITATION:	R v Michael TRELEAVAN [2010] NSWDC 235
JUDGMENT DATE:	22 June 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	For the offend of ongoing supply of a prohibited drug - non parole period of 2 years and balance of term of 1 year 9 months. For the proceeds of crime offence - fixed term of 18 months.
CATCHWORDS:	CRIMINAL LAW - sentence - ongoing supply of a prohibited drug - knowingly deal with proceeds of crime - offences committed whilst on conditional liberty - pleas of guilty at earliest opportunity - seriousness of both offences below middle of the range - prior criminal record - pre-sentence report - drug addictions - no form of penalty other than fulltime custody appropriate
LEGISLATION CITED:	Crimes Act 1900 s 193B(2) Drug Misuse and Trafficking Act 1985 s 25A
PARTIES:	Regina Michael Treleavan
FILE NUMBER(S):	2009/263706
SOLICITORS:	Mr England for Director of Public Prosecutions Ms Haywood for Mr Treleavan

JUDGMENT

1. I am sentencing Mr Michael Treleavan, a man who has had a drug habit since he was a teenager. He has been addicted to amphetamines all his adult life. He has a bad record involving drugs. He sells drugs to support his own habit.

2. On the occasion that I am sentencing him for, he was caught supplying drugs on three separate occasions over a period of time. When police arrested him they found a certain amount of money in his possession.

3. Accordingly, the offences that I am sentencing Mr Treleavan for are these. The first is called ongoing supply of a prohibited drug. That is an offence against s 25A of the Drug (Misuse and Trafficking) Act 1985. It carries a maximum of twenty years imprisonment. The second offence concerning the money is called knowingly deal with the proceeds of crime. That is an offence against s 193B(2) of the Crimes Act 1900 and carries a maximum of fifteen years imprisonment.

4. It is important for a Judge in sentencing a person to set out briefly what happened in the case which amounted to the crime so that the Judge can assess just how serious the crime was in the particular case. Police were investigating their suspicions about Mr Treleavan supplying drugs in Bathurst. They set up a controlled operation. They sent in an undercover operative. Drugs were supplied to this operative by Mr Treleavan on three occasions. The first was on 24 November 2009. The drugs were supplied from Mr Treleavan’s house at 30 Main Street, Wallerawang. He supplied 0.02 grams of methylamphetamine, sometimes known as ice, to the operative in exchange for one hundred dollars. When I referred earlier to drug supply in Bathurst, it was obviously an investigation concerning the supply of drugs in a region including the Blue Mountains area.

53 The second supply occurred on 26 November 2009. This time Mr Treleavan handed over 0.04 grams of the same drug in exchange for one hundred dollars.

6. The third supply was just a couple of hours later on the same day, also from his house. This time the amount was increased to 0.17 grams of the same drug. This time Mr Treleavan received five hundred dollars.

7. At that point the police disclosed who they were and searched his house that afternoon. They found one thousand four hundred and fifteen dollars in cash in his wallet. Mr Treleavan offered an innocent explanation for the money but when the police searched the rest of his house they found things such as notes with names and amounts, digital scales and packs of small resealable plastic bags. There was also some security precautions set up around the house. Mr Treleavan was arrested and charged with the offences.

8. Despite the initial attempted explanation for the cash, Mr Treleavan - at the earliest available opportunity - pleaded guilty to the two charges that I have referred to and I formally convict him of those offences.

9. He has been in custody since the day of his arrest on 26 November 2009. His sentences will date from that date.

10. Mr England who appeared for the Director of Public Prosecutions conceded that the degree of seriousness of the offence fell below the middle of the range for cases such as this. The quantities were relatively small and the number of supplies was the minimum required for an offence such as this.

11. Ms Haywood who appeared for Mr Treleavan had also argued that the seriousness of both offences was below the middle of the range. She also referred to the relatively small amount and the relatively low level of planning. There is of course, a degree of planning which is part of this kind of offence but it is taken into account in the penalty fixed to the offence by Parliament and is not regarded as a particularly aggravating feature of this particular crime. Ms Haywood also pointed to the limited number of supplies, being three, and pointed out that the amount of money found, being just over fourteen hundred dollars, was consistent with a relatively small supplying business. As she said, it was not a case where ten thousand dollars or more was located.

12. I, too, find that what the law calls the objective seriousness of this offence was below the middle of the range of objective seriousness for these kinds of offences.

13. Ms Haywood called her client to give evidence. He is forty-five. He has three children - an adult son and two young daughters - as well as a couple of grandchildren. He has had in the past a lengthy relationship with a woman whom he referred to as Ange. The relationship included two stepchildren who were Ange’s children. He later formed a relationship with another woman named Crystal who is the mother of his two young daughters aged four and two. However, in July 2009 he and Crystal separated and he has not seen his young daughters since then. It is his intention to reunite with Ange when he is released from custody and to marry her.

14. His personal history included a habit of taking amphetamines about three times a day over the last thirty years. He in fact stopped taking amphetamines significantly for some two years between 2007 and 2009. Part of the reason for that was that he was in custody; nevertheless he remained off the drug. The reason that he started again were the difficulties in the relationship and its breakdown with Crystal and not seeing his children.

15. He had been arrested for an earlier offence on 25 July 2009. The offence was possessing a prohibited drug. That coincided with the time that he was separating from Crystal and he had started, around about that time, to deal with drugs again in order to support his habit. He has made a couple of attempts at detoxification in residential rehabilitation programs but found that the programs he undertook did not suit him. He preferred programs associated with hospitals.

16. Between July 2009 and when he was arrested for this offence on 26 November 2009, he was on and off drugs but using manageably with the support of a counsellor. But he also admitted frankly to supporting his own habit over that time. He is interested in some form of rehabilitation and in seeking assistance. He expressed remorse and said that he was truly sorry for what he had done. He is a fitter by trade and a marine engineer and has seasonal work which is likely to be available to him on his release.

17. When cross-examined by Mr England, he acknowledged that he had not been successful in previous rehabilitation programs. In answering questions about a previous conviction of supply in 2006, he admitted that he police had found resealable bags and about sixteen hundred dollars in cash and at the time that he committed that offence he was on bail. And he also acknowledged that he did not know the undercover operative to whom he had sold the drugs in this case, apart from the fact that that person was introduced by a close friend

18. He acknowledged that he had told other Judges before me about his intentions to rehabilitate but he was not sure of the detail of what he had told them. He sees life as learning process and hopes to continue to increase his chances of rehabilitating himself.

19. A presentence report was prepared about Mr Treleavan by the Probation and Parole Service. It revealed a stable family background but an unsatisfactory response to previous attempts at supervision by that service. The records indicated previous revocations of his parole, breaches of bail and reports of poor attendance as well details of failure to comply with directions and ongoing amphetamine use. He had been known to the service since 1990. There was some inaccuracies in family details which were pointed out in evidence.

20. He confirmed that he has had a cannabis addiction since sixteen and commenced amphetamines at the age of twenty-one. He told them that his addiction of amphetamines has been his primary motivation in selling illicit substances.

21. The report expressed concern about his lack of insight into his offending behaviour and his non-compliance with previous supervision orders and it noted a tendency to minimise responsibility for his behaviour and to lack motivation in addressing his amphetamine addiction. It thought him nevertheless suitable for a medium level of intervention focussed on illicit drug use, employment and associations. It assessed him as unsuitable for a community service order and ineligible for a periodic detention order.

22. He has, as I mentioned at the beginning of these remarks, a record which is not a good one. In 1992 offences of supplying drugs were taken into account when he was sentenced for other offences by the District Court. He was also given a custodial sentence in the same year for offences involving manufacturing, administering and possessing drugs. In 2001 he had two convictions for goods in custody and in 2005 he was convicted of supplying. The Local Court sentenced him to sixteen months imprisonment with a non-parole period of twelve months which was reduced to nine months in the District Court.

23. There was also a goods in custody charge there the following year: exactly the same thing happened, he was sentenced to sixteen months by the Local Court which was reduced by the District Court to - sorry and twelve month non-parole period reduced to nine months on appeal. There was another goods in custody offence in 2006 and others as well.

24. Significantly, on 29 October 2009 he was convicted of possession of a prohibited drug. He was given a bond to be of good behaviour by the Local Court at Lithgow and that bond lasted six months. That means that when he committed these two offences, he was on conditional liberty as a result of being extended that leniency by the Local Court at Lithgow.

25. I have been significantly assisted by both Ms Haywood and Mr England in their respective submissions. Both acknowledged that Mr Treleavan should receive a twenty-five per cent discount for his plea of guilty. Ms Haywood accepted realistically that her client’s criminal record must be an aggravating factor. That is, with respect, the only conclusion that one could reach. She pointed to the two years from 2007 to 2009 that he was drug free and the reason for the cessation of that. She realistically acknowledged his rehabilitation prospects could not be said to be good but only guarded. She drew my attention to the remorse which he had expressed.

26. She argued that despite the features which aggravate the crime and are likely to point to an increased sentence, the sentence should not be crushing and argued that there were special circumstances for adjusting the non-parole period or the parole period so that Mr Treleavan had a longer period on parole. She said that those special circumstances included his long drug addiction and the need for significant and intensive support by Probation and Parole.

27. Mr England acknowledged that Mr Treleavan’s rehabilitation prospects were slim but not hopeless but emphasised the importance of general and specific deterrence in this case, given Mr Treleavan’s record. He said that a period of imprisonment of some length was warranted and acknowledged that there were special circumstances warranting an adjustment in the parole period.

28. In my opinion there is no form of penalty other than fulltime custody for this offence. I regard it as aggravating that he committed the offence whilst on conditional liberty, his criminal record also points to the need for an increased personal deterrence. I need to bear in mind the need to protect the public from activities of somebody like Mr Treleavan. True it is that he is himself an addict, but he chooses to raise the funds to support his own drug addiction by making available to other vulnerable people in the community prohibited drugs which will facilitate the decline of those persons and a deterioration in their lives.

29. I have in mind - given that the offence is below the middle of the range of objective seriousness but that it was committed whilst he was on a bond and with a bad criminal record - that an overall sentence would be in the region of five years imprisonment. However, Mr Treleavan has pleaded guilty and he should be given a discount on that sentence because of the fact that his pleading guilty has facilitated the administration of justice. It means that his case can be dealt with much more quickly and that others who are and custody and who need jury trial can get their cases on earlier. I therefore would reduce the sentence of five years to one of forty-five months or three years and nine months.

30. I would regard an appropriate sentence for the offence concerning the proceeds of crime as one of forty months or three years and four months. Once again, he has pleaded guilty and I would reduce the sentence for that crime by twenty-five per cent to thirty months or three and a half years.

31. Both sentences will commence from the day he was arrested, 26 November 2009. The offences are so closely related that I regard it as appropriate that they run concurrently.

32. I accept that there are special circumstances for adjusting the parole period. For the ongoing supply offence for which I am sentencing him to three years and nine months, the normal non-parole period would be about two years and nine months, being seventy-five per cent of the head sentence but I propose to reduce that to two years because of those special circumstances.

33. Once again, the normal non-parole period for the two and a half year sentence for the proceeds of crime, would be seventy-five per cent or about twenty-two months. I would regard a downward adjustment to eighteen months as appropriate in that case. In fact what I propose to do for the proceeds of crime offence is simply to sentence Mr Treleavan to the period of eighteen months rather than the full sentence because it is being served at the same time and is subsumed by the other sentence.

34. Accordingly, I propose to impose a head sentence of three years and nine months for the ongoing supply with a non-parole period of two years and a sentence of eighteen months custody for the proceeds of crime. Would you stand up, Mr Treleavan please.

35. For the offence of ongoing supply of a prohibited drug, I fix a non-parole period of two years to commence on 26 November 2009 and to expire on 25 November 2011. There is a balance of the term of one year and nine months to commence on 26 November 2011 and to expire on 25 August 2013. The full term, the non-parole period and the balance, amounts to three years and nine months. It commences 26 November 09 and the first date on which it appears that you are eligible for release on parole will be 25 November 2011.

36. For the offence of proceeds of crime, I sentence you to eighteen months imprisonment to commence 26 November 2009 and to expire on 25 May 2011.
Have a seat, Mr Treleavan.

Now Ms Haywood, Mr England - are there any factual errors, legal errors and are the mathematics correct?

ENGLAND: Your Honour the only thing that wasn’t clear to me was in relation to the deal with proceeds of crime, was that a fixed term?

HIS HONOUR: Yes, it’s what used to be called a fixed term, I avoided using that expression because it’s the only language but that’s what it is.

ENGLAND: Sometimes the old language means more to those who are old, your Honour.

HIS HONOUR: Yeah you’re right.

ENGLAND: But otherwise I think--

HIS HONOUR: Otherwise the mathematics were all right?

ENGLAND: --I think the mathematics are correct your Honour--

HIS HONOUR: And no - Ms Haywood?

HAYWOOD: Yes. No the mathematics were fine your Honour.

HIS HONOUR: All right--

HAYWOOD: No there’s no matter I wish to raise your Honour.

HIS HONOUR: Okay, Mr Treleavan yes--

ENGLAND: Yes your Honour there were a couple of matters your Honour asked me to remind you of.

HIS HONOUR: I’ll deal with those.

37. I’ll just explain the sentence to him. Your main sentence is three years and nine months, all right, 45 months.
OFFENDER: Yes.
That’s divided up into a non-parole period of two years and the balance of the sentence is one year and 9 months so your overall is three years and 9 months, two years non-parole, so you are in gaol for two years but that started when you were arrested 26 November 09, it will finish on 25 November 11 - 25 November next year. You are then eligible for parole, you probably know the system, it’s not for me to order parole because of the length of the sentence, the Parole Authority assesses whether you get parole or not. You become eligible 25 November 11. After that when you’re out on parole, you are still under your sentence and you know as well as I do that if you breach parole you could come back in.

38. For the other crime of the proceeds of crime - the money - I’ve given you what Mr England correctly and understandably calls a fixed term, 18 months straight because that will run at the same time. It will finish on 25 May next year but then you’ve got to stay in until your non-parole period ends on the other one. Do you understand all that?

OFFENDER: Yes your Honour.

HIS HONOUR: All right. Nothing else. Oh yes I’ve got. Have a seat Mr Treleavan. Now what do I do - there’s a certificate?

ENGLAND: Yes your Honour, the certificates were the individual supplies that made up the ongoing supply.

HIS HONOUR: Yep.

ENGLAND: I’d ask that they be now marked dismissed.

HIS HONOUR: Dismissed all right.

39. The back up offences referred to in the certificate pursuant to s 166 of the Criminal Procedure Act 1986, dated 6 April 2010, are dismissed and I will make a note to that effect by me and I will initial it and date it today.
And there is a notice of motion for--

ENGLAND: Yes your Honour--

HIS HONOUR: --under the confiscation of the Proceeds of Crime Act 1989--

ENGLAND: Yes.

HIS HONOUR: --and you want orders in the short minutes of order?

ENGLAND: Yes your Honour.

HIS HONOUR: And that is pursuant to s 18(1) you want cash in the sum of $1415 which was found at 30 Main Street, Wallerawang, on 26 November 2009, you want that to be forfeited to the State of New South Wales is that right?

ENGLAND: That’s correct your Honour.

HIS HONOUR: Do you have anything to say about that Ms Haywood?

HAYWOOD: If I can just indicate that that is not opposed your Honour.

HIS HONOUR: It’s what?

HAYWOOD: It’s not opposed your Honour.

HIS HONOUR: Not opposed, thank you.

ENGLAND: Your Honour, perhaps if I could hand up three additional copies of the order apparently there’s got to be multiple copies that your Honour has to sign.

HIS HONOUR: So multiple signatures?

ENGLAND: Yes your Honour. So there should be four copies to sign.

HIS HONOUR: Thanks.

ENGLAND: And your Honour if one of those could be returned to me.

HIS HONOUR: All right. The original with the notice of motion I will give to my Associate to go with the court file along with the s 166 certificate and I will sign. All right, three copies signed and dated.

ENGLAND: Thank you, your Honour. And lastly your Honour, an order for the destruction of the drugs.

HIS HONOUR: And I order that the drugs be - that’s an order under the Drug (Misuse and Trafficking) Act?

ENGLAND: Yes your Honour.

40. I order that the drugs are destroyed.

Anything else?

ENGLAND: No your Honour.

HIS HONOUR: All right. Nothing else Ms Haywood?

HAYWOOD: No thank you, your Honour.

HIS HONOUR: Okay that’s it Mr Treleavan. Good luck.

OFFENDER: Thank you, your Honour.

HIS HONOUR: Okay.

ADJOURNED

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