Regina v Jonathon Michelin

[2008] NSWDC 204

CITATION:	Regina v Jonathon Michelin [2008] NSWDC 204
JUDGMENT DATE:	8 February 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	No action taken on the breach of bond. Sentenced to 18 months imprisonment suspended on the condition of entering into a good behaviour bond.
CATCHWORDS:	Criminal law - Sentence - Breach of suspended sentence - Deemed supply of a prohibited drug - Methylamphetamine - On conditional liberty at time of offence - Impact of revoking the bond - Offenders efforts towards rehabilitation - Full time custodial sentence would reverse rehabilitation
LEGISLATION CITED:	s29 Drug Misuse and Trafficking Act 1985 ss 32, 98 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	DPP (NSW) v Cooke (2007) 168 A Crim R 397 Regina v Clark NSWCCA, unreported, 15 March 1990
PARTIES:	Regina Jonathon Michelin
FILE NUMBER(S):	07/41/0134
COUNSEL:	Mr D. McCallum for the offender
SOLICITORS:	Mr P. Stanley and Ms Walshe for the NSW DPP

SENTENCE
1. Jonathon Michelin has pleaded guilty to a serious charge. The charge is supplying a prohibited drug. The drug is methylamphetamine. That is an offence against the Drug Misuse and Trafficking Act 1985. The offence occurred on 31 October 2006. In exhibit A is a document of agreed facts and I make findings about the offence in accordance with, amongst other things, those agreed facts.

2. Mr Michelin on 31 October 2006 travelled from Eden to Batemans Bay. He went with a man named Billy Thurston in Mr Mr Thurston’s car. When they got to Batemans Bay they parked their car but, presumably unknown to them, were being observed by police. Another car arrived. Mr Michelin got out of the car that he was in and went and crouched down next to the passenger door of the other car. A short time later he walked back to the car that he was in. Police at that stage stopped both cars. The cars and their occupants were searched. Mr Michelin was found to have in his possession a small amount of cannabis, just over a gram, and what police describe as a small round object that was tightly wrapped in electric tape, both items were in his underpants. It turned out that the small round object comprised 13.35 grams of methylamphetamine. Mr Michelin told police that he had gone to Batemans Bay to buy the drugs and had paid $1,600 for it. It is estimated that the street value is some $7,000.

3. It is convenient at this stage to make reference to Mr Michelin’s criminal record. It notes that he was born on 11 July 1979 so that he is now twenty-eight. Just before he turned eighteen he was convicted of possessing a prohibited drug but he remained conviction free from that conviction, which was in 1996, until 27 September 2005 when he was convicted in the Bega Local Court of again possessing a prohibited drug. He was fined for that offence and for a similar offence the following year, he received a community service order. At the same time he was convicted of a driving offence. For the driving offence he was given a suspended sentence. The suspended sentence was for twelve months and dated from 25 January 2006. He was convicted of another driving offence but the relevant observation to make is that when he committed the offence that I am sentencing him for, on 31 October 2006, he was on conditional liberty in the community. He was in fact serving a suspended sentence, the one that had been imposed upon him on 25 January 2006.

4. That brings me to the first matter that I am dealing with today, namely the call up for the breach of that suspended sentence. It was not originally before me but has been brought to me so that I am now seized of the matter. Before dealing with that I make this observation. As Mr McCallum who appears for Mr Michelin observes in his very helpful written submissions, the Court of Appeal has indicated that where a court is dealing with a fresh offence, which also comprises a breach, it is “of crucial importance that the breach proceedings be resolved before the sentence is imposed for the offence”: see DPP (NSW) v Cooke (2007) 168 ACrimR 397 at 388 [28]. I refer to that because these proceedings developed in a different way. Mr Michelin was committed for sentence to these sittings of the District Court and that was the matter that I was seized of. That matter commenced and I heard evidence and submissions. It became apparent during the conduct of those proceedings, that is the sentence proceedings, that it would be convenient and appropriate that I should also deal with the breach of bond proceedings resulting from the offence for which I am sentencing Mr Michelin. Accordingly arrangements were made to, as I have said, bring the papers to me so that I would be seized of that. It is for that reason that, in this case, the proceedings in respect of the sentence were embarked upon before the proceedings in respect of the breach of the bond. However, in these joint reasons, joint in the sense of dealing both with a breach of the bond and in the sentence, I deal first and now with the breach of bond.

5. As Mr McCallum points out the relevant statutory provision is s 98(3) of the Crimes (Sentencing Procedure) Act 1999. In summary it provides that I must revoke the bond imposed in respect of a suspended sentence, which is what happened here, unless I am satisfied that the offender’s failure to comply with the bond was trivial, or that there are good reasons for excusing the offender’s failure to comply. Realistically Mr McCallum makes the submission, with which I respectfully agree, that Mr Michelin’s failure to comply with the terms of the bond cannot be regarded as trivial. That follows from the fact that he committed an offence carrying a maximum of fifteen years imprisonment. However, Mr McCallum submits that there are good reasons for excusing his failure to comply with the conditions of the bond. Once again he refers me to Howie J’s judgment in DPP v Cooke. In that case Howie J, with whom Sully J and Price J agreed, was speaking on behalf of the New South Wales Court of Appeal. As his Honour said at [15] of that judgment, the principal consideration raised by s 98(3) is the conduct giving rise to the failure and whether that can be excused. It might be excused, Howie J surmised, because of extenuating circumstances leading to the offending behaviour: see [16]. His Honour went on to consider the question of whether a court can take into account the impact of the revocation of a good behaviour bond. Taking into account the account the impact of the revocation of a good behaviour bond does not appear to sit comfortably with the provisions of the statute. His Honour said that, “assuming that a court could take into account the impact of the revocation of a good behaviour bond, it would be a rare case indeed in which it would be appropriate to do so in this State”.

6. Mr McCallum’s submission is that those remarks were made in the context of the impact of the revocation of a bond being ameliorated in this State by a sentence of either periodic detention or home detention and also by a recent legislative change providing that a non-parole period is fixed at the date of the revocation of the bond and not when the sentence was passed and suspended. Mr McCallum observes that his client has been assessed as unsuitable for periodic detention because of the distance he lives from the detention centre. This is not an unusual feature of sentencing proceedings in regional areas. Home detention also is not available in the area where Mr Michelin lives. The suspended sentence imposed on 25 January 2006 on Mr Michelin predated the legislative changes to which Howie J referred. As a result, argues Mr McCallum, the impact of the revocation of the bond cannot be ameliorated because of the availability of periodic detention, home detention or a non-parole period fixed by the original sentencing judicial officer. Accordingly Mr McCallum submits that this is one of the rare cases in which the impact of the revocation of the bond should be taken into account. Not to do so, he says, would effectively preclude any consideration of this offender’s strong subjective features at the time of the revocation proceedings because, as he said, the only role that the offender’s subjective features have to play, at the time of the revocation proceedings is in what order is made after the revocation when determining whether the consequential sentence is to be served by way of full-time custody or an available alternative.

7. Mr Stanley who appears for the prosecutor did not take exception to Mr McCallum’s written submissions. I propose to accept that submission. I therefore do take into account Mr Michelin’s subjective circumstances in deciding whether or not to revoke the bond and in doing so I have determined not to revoke the bond. Those subjective circumstances will become apparent when I shortly turn to consider the sentence proceedings. I regard this as a case where sending Mr Michelin back to full-time imprisonment would reverse a process of rehabilitation which has been going on for some time and with some success. Accordingly, in respect of the call up proceedings, I make the following order. Under s 98(2) of the Crimes (Sentencing Procedure) Act I decide to take no action with respect to the failure to comply with the conditions of the good behaviour bond.

8. I turn now to the sentence proceedings. I have already referred to the objective facts of what happened with this offence and to Mr Michelin’s criminal record. I should have added, as a formality, that when I come to sentence Mr Michelin he has asked me, pursuant to s32 of the Crimes (Sentencing Procedure) Act, to take into account a charge of possessing cannabis which occurred on the same day represented by the 1.1 grams of cannabis in his possession. I record now that when I come to sentence him I do take into account that offence and I have signed exhibit B, which is also signed by Mr Michelin, accordingly.

9. Exhibit 1 was tendered by Mr McCallum on his client’s behalf. It comprises a number of references indicating that his client is regarded as courteous and good mannered, reliable and a hard worker. One of the referees realistically observes that Mr Michelin might be “foolish and easily lead rather than of criminal
intent”. That referee, Alan Fraser JP, nevertheless had “no hesitation in recommending [Mr Michelin] to the court and I am sure that his parents would exercise all of their parental control to guide [Mr Michelin] in the
future”.

10. There are a series of reports of reports from Kevin Wallis, a psychologist, who has seen Mr Michelin over the years. One of them was obviously prepared for the proceedings in January 2006. There is a more recent one dated 21 January 2008. Before turning to recording what Mr Wallis expresses his professional opinion about, I note as part of his history taken that he records Mr Michelin saying, and I am quoting Mr Wallis, “He and his co-offender intended to weigh the amphetamine and apportion each a share of the drug. He was asked, ‘Why did you buy so much?’, he replied, ‘Because I do not have a licence’”. I refer to that because it indicates that Mr Michelin had the amphetamine in his possession for supply. That evidence is in a sense not necessary because the amount which he had in his possession was sufficient under the Drug Misuse and Trafficking Act for it to amount to a deemed supply. Nevertheless that admission is relevant because it demonstrates that there was an intended actual supply but it also demonstrates the limited circumstances of that intended actual supply.

11. Returning to the professional opinion expressed by Mr Wallis in his latest report, it notes a history that Mr Michelin has stopped using drugs. Mr Wallis had earlier thought that Mr Michelin might be suffering from post traumatic stress disorder but in this report expressed the view that rather he seems, “aimless and disorganised, perhaps more from chronic drug use than a psychological condition”. He reported to Mr Wallis that he has not taken drugs since he started seeing Mr Wallis. He agreed to undertake drug tests. Part of exhibit 1 comprises results of urine analysis confirming that he had in November 2007 and January 2008 no prohibited substances in his urine. Importantly Mr Wallis expressed the conclusion that Mr Michelin’s “alertness, mood and cognitive functioning has improved since being engaged in ongoing counselling and having his drug use monitored”.

12. In addition I have two pre-sentence reports. The first one is dated 13 July 2007. It notes that Mr Michelin was not responsive to correspondence. It noted a somewhat lax attitude to adhering to community service orders in the past and a lack of motivation in attending work. It considered him not suitable for a further supervision order. That pre-sentence report from which I have just quoted was part of exhibit A. A more recent pre-sentence report became part of exhibit 1 and is dated 25 January 2008. It notes the failure to work was mostly caused by his drug dependency which brought on unreliability. That is consistent with the opinion expressed by Mr Wallis. He admitted a strong dependence on a daily use of amphetamines. That dependency brought about, said the probation officer, considerable financial hardship and employment problems and appeared to be the principal reason for failure to satisfactorily perform community service in the past. It notes Mr Michelin’s claim to have abstained from amphetamines since his arrest. It noted enquiries indicating that the three urine samples had been negative. It noted his recent psychological report which the author noted, “appears to have been beneficial to Mr Michelin, especially in regard to an improvement in both his mood and cognitive functioning”. It also noted that Mr Michelin appears reasonably well motivated to continue to abstain from illicit drug use. This more recent report reviewed its assessment of his suitability for supervision and regarded him as suitable for a medium to low level of intervention by the Probation and Parole Service, including strategies to address the need for ongoing counselling and regular drug screening. It regarded him as unsuitable, however, for a community service order because of his previous breaches and unsuitable for periodic detention because of the distance problem to which I have referred already.

13. Finally Mr McCallum called a witness, Mr Robert Michelin, Mr Michelin’s father. He referred to a serious bike accident which the offender, Mr Michelin, had when he was aged thirteen. It produced problems to do with memory, organisation and cognitive functions in his son. It rendered him impulsive. Before then he was good at sport. Evidently the injury was such that he spent two weeks in intensive care in hospital and then a further two weeks before he was brought home. He had some time in a wheelchair. It affected his lifestyle and his friends. He was not able to participate in the sport that he used to enjoy. He has evidently had no counselling or significant counselling over the years.

14. He left school in year 10 and worked in a cannery for three years until it closed. He then became employed in Mr Robert Michelin’s family earthmoving business. Mr Jonathon Michelin got all his trade tickets and became a very good worker. His father described him as an excellent machinery operator and one of the best on the backhoe. He has a good relationship with his son. He confirmed that Mr Jonathon Michelin is the father of a nine year old son and more recently the father of a baby son. He has a good relationship with the mother of the first son, who is different to the mother of the second son, and sees his first son much more. Mr Robert Michelin explained that his son had problems with the circumstances that arose in 2005 when the mother of his first son moved away, taking his eldest son with her. It had a very hard impact on Mr Jonathon Michelin. His work started to drop back and he lost his driver’s licence. Mr Michelin senior suspected that his son was using drugs. His brothers and sister were not impressed by the fact that he was arrested and charged. Now they are behind him and support him. His health has improved over the last twelve months. He is now re-employed in the business and he is a good worker. His emotional state is a lot better. He talks a lot more and he has a regular and meaningful contact with his elder son. His present partner, Carly, Mr Michelin described as really good for Jonathon Michelin. Their son, Dylan, is now one. Mr Michelin senior wants Mr Jonathon Michelin to settle down and to buy a house which Mr Michelin senior would help him with. He is doing very well with his regular counselling which is being provided by the psychologist Mr Wallis. Mr Michelin senior appreciates the seriousness of the offence which his son has committed. He said that if his son went back to full-time gaol the improvements of the last twelve months or so would be lost. His son would go backwards.

15. I turn now to the submission which were made. I was assisted by submissions by Mr McCallum and from Ms Walsh who then appeared for the prosecutor. An initial issue arose as to whether I was bound by that line of authority in the Court of Criminal Appeal commencing with Regina v Clark (unreported, NSWCCA 15 March 1990). Those authorities have been discussed in the submissions and I do not need to refer to them because of the fact that they are recorded in the submissions. It was acknowledged by Ms Walshe, correctly in my opinion, that there was involved in this case no trafficking to a substantial degree. I also find that the amount involved was relatively small. I also find in respect of the deemed supply, that although there was evidence of an intended actual supply there was no actual supply. I also find that the intended supply was to Mr Michelin’s accomplice and that there was no intended dissemination of the drug into the wider community. These factors in my opinion take this case out of the constraints of the authorities regarding the necessity for full-time imprisonment for drug supply cases. They make available to me non-custodial options.

16. I note that he has a record or previous convictions and I also note he committed this offence while he was on a suspended sentence. There was a limited but not sophisticated degree of planning. In this respect I agree with Mr McCallum’s submissions, these three factors are aggravating features of the offence. On the other hand there is good reason to regard Mr Michelin’s prospects for rehabilitation as being good. In addition he has pleaded guilty at the earliest opportunity. His behaviour, although not excused by his drug taking, was impulsive as a result of his drug addiction and perhaps of his head injury. He is addressing both his drug addiction and the consequences of his head injury. To my mind, for me to send him to gaol full-time at this stage would reverse the good work which he has undertaken and also reverse the course which he has undertaken in rehabilitating himself. I note that neither periodic detention nor a community service order is available.

17. Because of the relatively low objective seriousness of this offence I regard an appropriate penalty in this case as one of eighteen months imprisonment. That is the penalty which I propose to impose and I propose to suspend the execution of that sentence and to direct Mr Michelin to be supervised on a bond. Accordingly, Mr Michelin if you would stand up, I make the following orders in sentencing Mr Michelin.

18. I sentence you to imprisonment for eighteen months but I make an order suspending the execution of the whole of the sentence for the whole of the period of eighteen months and I direct that you be released from custody on condition that you enter into a good behaviour bond for a period of eighteen months. That good behaviour bond will be subject to the following conditions: (1) you must be of good behaviour during the term of the bond; (2) you will appear before the court if called upon to do so at any time; (3) you will notify the registrar of this court of any change of your residential address; (4) you are to subject yourself to the supervision of the Probation and Parole Service and comply with any reasonable directions and recommendations which they make regarding psychological counselling or rehabilitation for drug addiction.

Are there any other orders I need to make Mr McCallum?
MCCALLUM: In relation to the bond, your Honour, I don’t believe there is. There is one matter on a s 166 certificate.

19. I note that there is a matter on a certificate under s 166 of the Criminal Procedure Act 1986 and I dismiss that matter.

STANLEY: Actually I think there is two matters, one’s related--

HIS HONOUR: And the other’s a backup.

STANLEY: Yes, it can be just marked as being dealt with on the form 1.

HIS HONOUR: Which one?

STANLEY: The related matter which is the possess matter.

HIS HONOUR: So I dismiss the backup--

STANLEY: Yes.

HIS HONOUR: --and the related one was being dealt with on the form 1.

STANLEY: Form 1.

20. Pursuant to the Criminal Procedure Act 1986 I dismiss the backup offence described in paragraph A of exhibit C and I note that the related offence described in paragraph B of exhibit C has already been taken into account by me in the form 1 which was exhibit B.

Mr Stanley any other orders I need to make?
STANLEY: Just the destruction of the drugs, your Honour, if you can just order their destruction if they haven’t already been done so?

21. I order that the drugs the subject of these charges be destroyed if that has not already occurred and I direct Mr Michelin, for the purposes of undertaking his bond obligations, to report to the office of the Probation and Parole Service at Bega on or before next Friday 15 February 2008 at 4pm.

Are there any other orders I need to make?
MCCALLUM: Perhaps not an order as such, your Honour, but just for the sake of abundant caution upon my reading of the Local Court papers that were obtained, I must say I had some difficulty trying to reconcile the sentences that were imposed on him 25 January 2006.

HIS HONOUR: So did I, yes.

MCCALLUM: With his record. But, your Honour, it appears that there may have been two offences imposed on him on that day for which he received suspended sentences. I could only find one bond in the papers but could your Honour note for the sake of abundant caution that you’re not taking any action on the breach of the bonds in relation to each matter for which he was given suspended sentence on 25 January.

HIS HONOUR: Mr Stanley?

STANLEY: Yes that’s probably appropriate your Honour.

22. Returning to the proceedings for breach of bond my order is intended to relate to a breach of any bond which was imposed pursuant to any suspended sentence imposed on Mr Michelin on 25 January 2006.

Does that deal that? Okay.
23. Now, Mr Michelin, the law requires me to explain to you what has just happened. You were on a bond when you had these drugs and you were at large and you still committed another crime which is not a good thing. Normally people go to gaol for that and you should go to gaol, but I have heard what Mr McCallum has said and I have decided not to send you to gaol for that previous offence. As to this offence, the one where you had the amphetamines in the car with Thurston, I have sentenced you to eighteen months gaol but I have suspended the sentence for eighteen months. So you will not go to gaol but you have got to behave yourself in those eighteen months, you have got to let the court know if you change your address and you have got to go to Probation and Parole in the next week and be supervised by them. They are going to help you with your rehabilitation which you have been undergoing for the last twelve months, and the bond says that you have got to co-operate with them, especially so far as any drug courses are concerned or psychological counselling. You can be called up at any time by the court to come and answer your bond. Do you understand what I have said?

OFFENDER: Yes.
24. If you breach the bond, this bond which I have given you, and the suspended sentence, you are almost certain to go to gaol, almost certain because this will be the second time. So you should not have any doubts about that, you have really been given a third chance, do you understand?

OFFENDER: Yeah.

25. Okay, have a seat. Now, Mr Michelin you have obviously got very good family support. I have heard from your dad. You have a lot going for you, so stick to what you have been doing, okay, and good luck.

oOo