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District Court 8 February 2008

Regina v Jonathon Michelin

[2008] NSWDC 204

Drugs
CRIMINAL LAW SENTENCE BREACH OF SUSPENDED SENTENCE DEEMED SUPPLY OF A PROHIBITED DRUG METHYLAMPHETAMINE IMPACT OF REVOKING THE BOND

Citation: Regina v Jonathon Michelin [2008] NSWDC 204
Court: District Court of New South Wales
Date: 8 February 2008
Judge(s): Cogswell SC DCJ

Background

The offender pleaded guilty to deemed supply of a prohibited drug, methylamphetamine, contrary to the Drug Misuse and Trafficking Act 1985. The offence occurred on 31 October 2006 when the offender travelled from Eden to Batemans Bay, purchased 13.35 grams of methylamphetamine for $1,600, and was intercepted by police. The estimated street value of the drugs was approximately $7,000.

At the time of the offence, the offender was serving a suspended sentence imposed on 25 January 2006 for a driving offence. Committing a fresh offence while on that bond constituted a breach, which triggered separate proceedings before the same judge.

The offender was 28 years old at the time of sentencing. His criminal history included earlier drug possession offences, but the period between 1996 and 2005 was offence-free. Evidence before the court indicated that he had engaged in meaningful rehabilitation efforts over the preceding twelve months.

  • Whether the breach of the suspended sentence imposed on 25 January 2006 should be excused under section 98(3) of the Crimes (Sentencing Procedure) Act 1999, and if so, on what basis
  • Whether the impact of revoking the bond could be taken into account in circumstances where periodic detention, home detention, and the relevant legislative amendments were not available to the offender
  • What sentence was appropriate for the deemed supply offence, having regard to the offender's subjective circumstances and rehabilitation progress

Decision

Under section 98(3) of the Crimes (Sentencing Procedure) Act 1999, a court must revoke a suspended sentence bond unless the offender's failure to comply was trivial or there are good reasons to excuse it. The court accepted that the breach was not trivial, given the fresh offence carried a maximum penalty of fifteen years imprisonment.

However, the court found this to be one of the rare cases contemplated in DPP (NSW) v Cooke (2007) 168 A Crim R 397, where the impact of revocation could properly be taken into account. The offender lived in a regional area where neither periodic detention nor home detention was available, and the suspended sentence predated legislative changes that would otherwise have allowed a non-parole period to be fixed from the date of revocation. Those factors meant the usual mechanisms for ameliorating the impact of revocation were simply unavailable. The court accepted the defence submission that, without considering subjective circumstances at the revocation stage, the offender's rehabilitation would receive no meaningful weight at all.

On that basis, the court declined to revoke the bond. The prosecution did not oppose this approach.

For the supply offence itself, the court imposed a sentence of 18 months imprisonment, suspended on the offender entering into an 18-month good behaviour bond. The court's reasoning gave significant weight to the offender's rehabilitation efforts over the preceding year, family support, and the finding that a full-time custodial sentence would undermine that progress. The bond required the offender to report to the Probation and Parole Service at Bega, comply with supervision, and cooperate with drug courses and psychological counselling.

Orders Made

  • No action taken on the breach of any bond imposed pursuant to any suspended sentence imposed on 25 January 2006
  • For the deemed supply offence: 18 months imprisonment, suspended for 18 months on entry into a good behaviour bond
  • The offender directed to report to the Probation and Parole Service at Bega by 15 February 2008
  • The offender required to notify the court of any change of address and to cooperate with supervision, drug courses, and psychological counselling
  • The drugs the subject of the charges ordered to be destroyed if not already done

Key Takeaways

  • Under section 98(3) of the Crimes (Sentencing Procedure) Act 1999, a court must revoke a suspended sentence bond unless the breach was trivial or good reasons exist to excuse it; committing a fresh offence carrying a maximum of 15 years will not ordinarily be considered trivial.
  • The Court of Appeal in DPP (NSW) v Cooke confirmed that taking the impact of bond revocation into account is permissible only in rare cases; the District Court here found that rarity threshold met where neither periodic detention nor home detention was available to a regional offender, and the relevant legislative amendments did not apply.
  • Where alternative sentencing options are structurally unavailable due to geography or the timing of the original sentence, the impact of revocation may legitimately inform whether a bond should be revoked at all.
  • Significant and genuine rehabilitation in the period between offending and sentencing was treated as a weighty factor, with the court finding that full-time custody would reverse the offender's demonstrated progress.
  • The decision confirms the procedural point, drawn from DPP (NSW) v Cooke, that breach proceedings should ordinarily be resolved before sentence is imposed for the fresh offence, though the judgment acknowledged the proceedings here developed in a different sequence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), section 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 32 and 98

Cases
- DPP (NSW) v Cooke (2007) 168 A Crim R 397 (NSW Court of Appeal)
- Regina v Clark, NSWCCA, unreported, 15 March 1990