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District Court 22 May 2009

R v Edward Herbert ELELMAN

[2009] NSWDC 163

Drugs
CRIMINAL LAW SENTENCE SUPPLY PROHIBITED DRUG AMPHETAMINE HARDSHIP TO A THIRD PARTY

Citation: R v Edward Herbert ELELMAN [2009] NSWDC 163
Court: District Court of New South Wales
Date: 22 May 2009
Judge(s): Berman SC DCJ

Background

The offender, a 56-year-old man with a lengthy drug use history, pleaded guilty at an early opportunity to two counts of supplying amphetamine (methylamphetamine) in April and May 2008 on the northern beaches of Sydney. Both supplies were made to a woman who was, unbeknownst to her, passing the drugs on to an undercover police officer. The officer purchased the drugs for $450 on the first occasion and $250 on the second.

The offender had a prior criminal history, but had committed no offences for approximately 29 years after relocating to Western Australia in 1980. His return to drug use was connected to the breakdown of his marriage in 1999 and his subsequent relationship with a methylamphetamine user. He began supplying the drug, at least in part, to fund his own use.

A recorded conversation from the second supply occasion, and the presence of drug paraphernalia at the time of his arrest, led the court to conclude that the two offences were not isolated acts. The offender was also under assessment for home detention on separate Commonwealth offences at the time of the supply conduct.

  • What was the appropriate sentence for two offences of supplying a prohibited drug, having regard to the offender's history, plea, and personal circumstances?
  • Whether the hardship suffered by a third party (the offender's disabled son) met the threshold for consideration as a mitigating factor in sentencing.
  • Whether special circumstances existed, justifying an adjustment to the standard ratio between the non-parole period and the balance of term.
  • How the principle of totality should apply, given the offender was already serving sentences for Commonwealth offences.

Decision

The court assessed the objective seriousness of the offences as below the mid-range for drug supply. The quantities were small, the offender was not a large-scale dealer, and there were indications he could not always fully satisfy demand. Nevertheless, the court found the conduct was not isolated, noting the offender had indicated willingness to supply the undercover officer directly in the future and appeared to have at least three customers at the relevant time.

On the question of third-party hardship, the court accepted that the offender's adult son Matthew, who suffers from cerebral palsy, is blind in one eye, and cannot speak, would suffer exceptional hardship through the loss of regular contact with his father. The court confirmed the established principle that hardship to third parties can only be taken into account in sentencing where that hardship is exceptional, and was satisfied that threshold was met here.

The court found special circumstances, principally because the offender would need the support of the Probation and Parole Service upon release, given his drug dependency. The concurrent sentencing already imposed for Commonwealth matters, combined with the need to preserve the statutory non-parole ratio and the principle of totality, also informed the structure of the sentences. Partially concurrent sentences were imposed to reflect both the separate acts of criminality and the totality principle.

The court noted as an aggravating factor that the offender was under consideration for home detention leniency on the Commonwealth matters at the very time he committed these supply offences.

Orders Made

  • Count 1 (supply on 29 April 2008): Fixed term of imprisonment of one year, commencing 19 November 2008.
  • Count 2 (supply on 22 May 2008): Non-parole period of one year commencing 19 May 2009, expiring 18 May 2010; balance of term expiring 18 May 2012; eligible for parole from 18 May 2010.
  • Forfeiture of $565 cash (the undercover buy money) and the offender's mobile phone.
  • Destruction of seized drugs and drug paraphernalia.

Key Takeaways

  • Third-party hardship is only a mitigating factor in sentencing where the hardship to the third party is exceptional. The District Court found that standard met where the offender's severely disabled son, who relied on regular contact with his father, would lose that support through no fault of his own.
  • A finding of special circumstances, justifying departure from the standard non-parole ratio, can be grounded in a demonstrated need for extended post-release supervision and rehabilitation support.
  • Partially concurrent sentences are appropriate where an offender is sentenced for two distinct acts of criminality, with the degree of overlap informed by the totality principle and pre-existing sentences being served.
  • Conducting further criminal offending while under active consideration for a sentencing concession (such as home detention) constitutes an aggravating factor, and the court noted it diminished the scope for leniency in the future.
  • A substantial gap in offending history, reflecting genuine prior rehabilitation, remains relevant to sentencing even where the offender has ultimately relapsed into serious criminal conduct.

Legislation and Cases Referenced

No specific legislation or cases were cited in the judgment text or metadata. The court applied the following principles, which are well-established in NSW sentencing law:

  • The principle that third-party hardship may only be taken into account where it is exceptional.
  • The totality principle in structuring concurrent or partially concurrent sentences.
  • The special circumstances principle governing departure from the standard non-parole period ratio.