Citation: R v Michael Treleavan [2010] NSWDC 235
Court: District Court of New South Wales
Date: 22 June 2010
Judge(s): Cogswell SC DCJ
Background
The offender was a 45-year-old man with a long history of amphetamine addiction, who sold drugs to fund his own habit. Police conducted a controlled operation in the Blue Mountains region, using an undercover operative who purchased methylamphetamine from the offender on three separate occasions over two days in November 2009. The quantities involved were small: 0.02 grams, 0.04 grams, and 0.17 grams, with a total purchase price of $700.
When police searched the offender's home, they found $1,415 in cash along with drug paraphernalia including digital scales, resealable plastic bags, and handwritten notes recording names and amounts. The offender initially offered an innocent explanation for the cash but pleaded guilty to both charges at the earliest available opportunity. He had been in continuous custody from the date of his arrest on 26 November 2009.
The offender had a prior criminal record that included a 2006 supply conviction, previous revocations of parole, breaches of bail, and poor compliance with community supervision. He had been known to the Probation and Parole Service since 1990.
Legal Issues
- What sentence was appropriate for the offence of ongoing supply of a prohibited drug under s 25A of the Drug Misuse and Trafficking Act 1985, given the scale of the offending and the offender's personal circumstances?
- What sentence was appropriate for knowingly dealing with the proceeds of crime under s 193B(2) of the Crimes Act 1900?
- Whether any form of penalty other than full-time custody was appropriate, having regard to the offender's history of non-compliance with community-based orders and ongoing addiction.
- What weight should be given to the guilty plea, the offender's personal history, drug addiction, remorse, and prospects of rehabilitation?
Decision
The court found that the objective seriousness of both offences fell below the middle of the range. Both prosecution and defence agreed on this assessment. The quantities of drugs supplied were small, the number of supplies was the minimum required to constitute the ongoing supply offence, and the cash amount found was consistent with a modest-scale operation rather than a larger commercial enterprise.
In mitigation, the court acknowledged the early guilty pleas, the offender's expressed remorse, his long-standing addiction as a driver of the offending, a period of approximately two years off amphetamines between 2007 and 2009, and his stated intention to pursue rehabilitation. The court also noted his family ties, including two young daughters, and his trade skills providing realistic employment prospects on release.
Against those mitigating factors, the court weighed a substantial criminal history, repeated failures to comply with supervision and parole conditions, a previous supply conviction committed while on bail, and a pre-sentence report that identified poor insight into his offending behaviour. The court found that the offender's non-compliance with previous community-based supervision made any non-custodial option inappropriate.
The court imposed a head sentence of three years and nine months for the ongoing supply offence, with a non-parole period of two years. A concurrent fixed term of 18 months was imposed for the proceeds of crime offence. Both sentences were backdated to 26 November 2009, the date of arrest.
Orders Made
- Ongoing supply of a prohibited drug: non-parole period of 2 years, with a balance of term of 1 year and 9 months (head sentence: 3 years and 9 months), backdated to 26 November 2009.
- Proceeds of crime offence: fixed term of 18 months, concurrent, backdated to 26 November 2009.
- Back-up offences (individual supplies making up the ongoing supply charge) dismissed pursuant to the s 166 certificate.
- Cash in the sum of $1,415 forfeited to the State of New South Wales under s 18(1) of the Confiscation of Proceeds of Crime Act 1989 (unopposed).
- Drugs ordered to be destroyed under the Drug Misuse and Trafficking Act 1985.
Key Takeaways
- A conviction for ongoing supply under s 25A of the Drug Misuse and Trafficking Act 1985 carries a maximum of 20 years imprisonment; where the number of supplies is at the statutory minimum and quantities are small, a sentencing court may properly place the offending below the middle of the objective seriousness range.
- Persistent non-compliance with community supervision, repeated parole revocations, and a pattern of re-offending while on conditional liberty can displace what might otherwise be grounds for a non-custodial sentence, even where addiction is an acknowledged driver of the offending.
- The District Court treated the offender's long-term amphetamine addiction as relevant context for the offending without allowing it to excuse conduct that demonstrated planning and commerciality, however modest in scale.
- Early guilty pleas, genuine remorse, and a period of sustained abstinence were treated as legitimate mitigating factors, but their weight was reduced by the offender's history of making similar undertakings to courts without following through.
- Where individual supply charges are certified and form the basis of an ongoing supply conviction, the back-up charges are dismissed rather than sentenced separately.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A (ongoing supply of a prohibited drug)
- Crimes Act 1900 (NSW), s 193B(2) (knowingly dealing with proceeds of crime)
- Criminal Procedure Act 1986 (NSW), s 166 (certificate for back-up offences)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1) (forfeiture of cash)
Cases cited: No cases were cited in the provided judgment text.