R v Malavetas, Harry

[2009] NSWDC 16

CITATION:	R v Malavetas, Harry [2009] NSWDC 16
HEARING DATE(S):	16/01/09
JUDGMENT DATE:	22 January 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Sentence to imprisonment for 2 years and 5 months with a non-parole period of 16 months to date from 10/12/07 and expire on the 09/04/09, Balance of term of 13 months expire 09/05/10. Drugs to be destroyed.

CATCHWORDS:	Criminal Law - Sentence - multiple supply prohibited drug in 30 day period - 5 small supplies - cocaine and heroin supplied - Form 1 matters - go between supplier and purchaser - total supplies amount to small quantities and less than trafficable quantity - supplies not isolated dealings - accused benefits from transactions - entrapment distinguished from sense of urgency or appearance of withdrawal desperateness - subjective matters 52 years old - disconnected family history - disability support principle income source - poly drug abuser - recidivist supplier - breach of bond
LEGISLATION CITED:	Drug Misuse and Trafficking Act
PARTIES:	Regina Harry Malavetas
FILE NUMBER(S):	2008/11/0515
SOLICITORS:	Crown: Ms Jassy Defence: Self-represented

JUDGMENT

1. On 16 January 2009 Harry Malavetas pleaded guilty on arraignment to a charge;

“That he between 15 November 2007 and 15 December 2007 at Kings Cross and other places in New South Wales on three or more separate occasions during a period of thirty consecutive days supplied a prohibited drug other than cannabis being cocaine and heroin for financial or material reward.”

There was a second supply charge on the indictment. The Crown did not require a plea to this matter. The parties agreed that, it, together with a goods in custody charge, should not be dealt with on indictment but rather on a Form 1.

2. This is not the first occasion since 1991 this offender has been before a court on a supply prohibited drug charge. He has been before the court, on my count, on at least four prior occasions for supplying drugs and on many more occasions for drug related offences.

3. The facts relied upon by the Crown are in these terms. A street level undercover operative codenamed “George” was given by his authorised superiors in an authorised transaction, $100 to purchase drugs. He had a conversation with somebody who directed him to a man called “Harry” who he said “would be here in a minute”. The offender appeared and “George” asked him if he had any “Charlie”. The offender instructed him to wait at the scene; left for a few moments, returned, and after having a short conversation with the undercover officer, gave him a telephone number. “George” then walked to Victoria Street with the offender, the other male, and yet a fourth male. He made a telephone call. “George” gave the offender fifty dollars of the $100. The offender disappeared down some stairs on Victoria Street and returned a short time later with a cream coloured balloon. “George” then handed over the other fifty dollars, leaving the scene. That cream balloon given to “George” was found to contain 0.14 grams of cocaine. That is the first of the three necessary supplies relied upon to satisfy the charged ongoing supply.

4. 2:40pm, that is, about five hours later, “George” called the accused on the telephone number he had earlier supplied and arranged for a deal this time involving both cocaine and heroin. “George” received $150 in “buy” money. The offender handed a small plastic bag containing white powder in exchange for fifty dollars. The undercover operative stayed at a nearby coffee shop. The accused went away and returned ultimately with a green balloon and was given surreptitiously the other $100. These plastic bag and green balloon were taken to the police station. The bag contained 0.16 grams of cocaine, the balloon contained 0.06 grams of heroin.

5. On 22 November 2007, that is, about seven days later, “George” was again in Kings Cross. This time in possession of $350. Again he called the accused on the topic of drugs. They met; “George” handed the accused $220. The accused entered a house on the corner of Bourke Street and Corfu Lane and returned with two small foils. The $100 was handed to the accused as the two continued to walk into Bourke Street. The accused made a call while “George” waited nearby. The accused was observed as interacting with someone in such a way that it was concluded he had conducted a transaction with an unidentified sixty year-old. The accused returned, handed the undercover operative a lime coloured balloon containing a foil. The accused indicated to the undercover operative that he was able to supply “as much as you want”. The foils and lime balloon were found to contain 0.21 grams of cocaine and 0.12 grams of heroin respectively. That third episode constitutes the third occasion of dealing and in theory the indictment is satisfied by that.

6. The Form 1 matter is in these terms. That the following day one Vance Rogers travelled to Kings Cross and attended the Springfield Mall. He was simply walking and the accused offered to sell him some “speed” for $100. Rogers withdrew money from an ATM and returned with two fifty dollars notes. The accused handed him a small plastic satchel in exchange. Rogers looked at the produce he had received and decided it was crushed up Panadol. He demanded his money back, was arrested by police who had been conducting surveillance and had witnessed the transaction between the two men. The substance supplied to Rogers contained no prohibited drug. That constitutes the offence of supplying methamphetamine. Even though there was no methamphetamine the law provides that when somebody purports to supply it and takes money for so doing he is guilty of the offence. It (the offender’s possession of the money) also constitutes the goods in custody charge, which is also on the Form 1.

7. Six days later on 29 November 2007, “George” again came to Kings Cross and they met in a place that they had designated. “George” was carrying $350. He called the accused who had not earlier met him in that particular location. They arranged to meet in Victoria Street. “George” was wanting both cocaine and heroin. The accused used “George’s” mobile phone to make a call, they walked down Liverpool Street in Darlinghurst. The accused took $210 from “George”, disappeared, returned, handed “George” a pink balloon. There was another mobile call made using the undercover operative’s mobile phone. They this time walked east on Liverpool Street. The undercover operative gave the accused $110. The accused crossed the road and waited on the opposite corner. A male appears, there is an exchange goes on, both men disappear from view. The accused reappears, beckons the undercover operative to follow him to Victoria Street and hands him a lime coloured balloon. The pink balloon was found to contain 0.16 grams of cocaine. The lime balloon was found to contain 0.11 grams of heroin. That is a fourth episode of supply.

8. The final event occurs on 10 December 2007. “George” this time arms himself with $920 in pre-recorded money--

OFFENDER: I was in custody by then your Honour.

HIS HONOUR: It appears you went into custody that day.

9. On 10 December 2007 “George” was armed with $920 in pre-recorded money. He called the accused on a mobile phone number the accused had earlier given him. They arranged to meet at Victoria Street, Kings Cross. There they walked to Liverpool Street, Darlinghurst. The undercover operative handed over $400, waited while the accused approached a male of Middle Eastern appearance who was waiting in a telephone box on Riley Street. Shortly the accused whistled for the “George” to follow him to Liverpool Street. The accused bent down picked up an empty cigarette packet from the ground. Ripped a piece of aluminium foil from it, wrapped it around two small plastic bags containing white powder. They departed. “George” handed the drugs to police. Those two plastic bags were found to container 0.31 grams of cocaine. That is the final episode.

10. Shortly after that supply police arrested the accused on 10 December on the corner of Oxford and College Streets as he attempted to board a taxi. After a short struggle he was subdued. Found in his possession were two fifty dollars notes which were matched with money which had been supplied to him from “George” earlier that day.

11. It will be noted that in three of the five episodes of supply both heroin and cocaine were supplied. A total of 0.29 grams of heroin and 0.98 grams of cocaine were supplied. $1290 was spent purchasing the heroin and the cocaine. A further $100 was spent purchasing the methylamphetamine. There is no evidence establishing this offender was the owner of any of the product he supplied to the undercover operative. There is no evidence before the Court that he gained financially from any of the indicted drug deals. At the time of the arrest he was still in possession of at least $100 though of the last deal, suggesting he had gained $100 from that deal. The offender challenges some detail and interpretation of the Crown’s allegations of facts; but apart from the fifth supply episode does not dispute the supplies and occasions on which they occurred.

12. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offence, offence in this case, as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in this offence with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. Not surprisingly the objective criminality has an important impact upon the overall sentencing outcome.

13. The courts and legislature have made it clear that drug supplying is an unacceptable anti-social criminal activity. It is not difficult to understand why drug supplying is a criminal activity. Contrary to the impression many may have entertained initially, drug use is not a social but rather an anti-social behaviour. The courts have long recognised that in assessing the objective seriousness of a drug offence it is necessary to have regard to the drug’s potential for harm. Harm to others when inflicted by someone else is anti-social. Drug dealing is harmful to the community by its direct impact upon those who purchase drugs and by its indirect impact upon the community at large.

14. The drugs that are the subject of this indictment are both cocaine and heroin. Both are drugs of addiction. Both, if used in quantities, are capable of serious harm. Both, if used over a long period of time, are capable of serious addiction. For some if not for most drugs, but certainly the ones that I am dealing with, can be and are, addictive. They are also destructive, causing or contributing to mental health problems and/or aggression. Supplying drugs can lead to, create, or sustain, drug addicts. Drug addicts are human beings whose capacity to function and feel human is smothered to a greater or lesser extent by addiction and by other effects of drugs.

15. This is the real essence of the criminal harm done by suppliers of drugs. That is, in a greater or a lesser way they are contributing to the dis-enabling of other human beings, and in that sense drug supplying undermines public health. This case, because it was supplying to undercover operatives cannot be said to have contributed to public health problems but the supplies were certainly reckless as to whether they caused public health problems or not. The drugs obviously never made it to anyone who was a drug user.

16. Associated with drug addictions are other forms of crime, such as armed robbery, break and enters and stealings. Indeed this offender has some of those offences, I think the break and enter, on his record, certainly shoplifting, caused by his drug addictions. Associated with those robberies and break and enter offences, speaking generally, is the trauma, emotional and psychological damage done to victims caused by violence and/or other intrusion into their homes. The spending of money by drug addicts on drugs without any corresponding productivity for the community amounts really to little more than a monumental transference of wealth, usually from the already poor, without any corresponding economic gain to the community. At every level then drug dealing is anti-social.

17. It is clear this offender was a go-between delivering purchaser’s money to the suppliers and drugs to the purchaser. The schedule 2 of the Drug Misuse and Trafficking Act sets five broad measures of drug supply as, all other things being equal, five measures of criminality. One gram equates to a small quantity. Three grams amounts to a trafficable quantity. Five grams equates to an indictable quantity. Two hundred and fifty grams amounts to a commercial quantity, and one kilogram amounts to a large commercial quantity. The total cocaine supplied here was 0.93 grams, that is, less than the upper measure for a small quantity. The total heroin supplied was 0.24 grams, again, certainly less than the indictable quantity or the trafficable quantity and equivalent to a small quantity. The total drug supplied would amount to 1.27 grams which is over the small quantity but less than the trafficable quantity.

18. Section 25A, the section under which this charge was laid, was crafted to capture small-time dealers such as this offender, who were dealing frequently yet never had any sufficient quantity of illicit drugs on them when arrested for deemed supply. These perpetual dealers were thought by Parliament to be deliberately avoiding their real criminality by carrying only small quantities of heroin and dealing only in small quantities of heroin. While this was the intention of Parliament, the practice of police, as I have observed it in many cases I have done, is to try to push the last purchases upward to the limit the dealer is prepared to sell. On this occasion the undercover operative had $920 to spend, by far the largest amount he had thus far been authorised to spend. But it would seem could only purchase $400, that is 0.31 grams of cocaine. Malavetas was apparently not able to supply anything other than at the low end of the small quantities. I am satisfied Malavetas was also negotiating with other purchasers, that is to say, this was not an isolated offence to this undercover operative.

19. The offender's case is that he was making no profit. The evidence, at least in the last transaction, would suggest to the contrary, where it would appear he has made about a quarter of what the police officer had given him. I am satisfied however it was to his advantage and benefit to be involved in the transactions as a go-between. The nature of the benefit in other matters is unclear but it is likely to have been money but it may have been drugs.

20. The numbers of supply within a month may be an aggravating feature if it reaches above three. In this case there were five episodes of supply. I have already mentioned that in some of the episodes, three of them, both heroin and cocaine were supplied. Measured objectively this offence presents as one towards the lower range of these kind of offences, given the quantities of illicit drugs supplied. It is a serious offence but falling within the low category of seriousness.

21. The offender claims entrapment by the undercover operative. I am satisfied there was no entrapment. That does not mean there was not any sense of urgency expressed by the undercover operative. Such conduct would be entirely consistent with the conduct of many purchasers, particularly those “hanging out”. Give this offender's drug abuse history I am satisfied he had witnessed many cases of urgency and pleading for drugs. I do not rule out that he had been desperate on occasions himself. There is a difference between the appearance of desperateness and entrapment.

22. The Form 1 matters are matters that could have been resolved in the Local Court, indeed each of these separate supplies could have been resolved in the Local Court. Taking them into account when sentencing means the sentence for the indictable matter must recognise the extra criminality in its outcome. In this case however the extra weight that I must give to the criminality because of these matters will not drive the sentence upwards by very much.

23. I turn now to the subjective matters. I am both entitled and required to do that. Not only am I sentencing for the criminal offence but also I am sentencing this offender for it. Each offender coming before the court varies from other offenders who stand or who have stood for sentence. Circumstances personal to this offender may offer to the court some explanation and insight into the commission of this offence by him and some reason why a more or a less sentencing outcome is appropriate.

24. Harry Malavetas was born in Greece. Had never met his sister who resided in Australia. When he was aged sixteen, his sister sponsored him to Australia. Upon arrival he went to Canberra with his sister and her husband, but after sixteen months or so he decided to leave as their relationship became strained. His mother raised him and his seven older siblings with the financial support of her grandmother after his father had abandoned the family when he was very young, three and a half. Both his parents had died in the 1980s and apart from the older sister the remainder of the family are in Greece.

25. As I said earlier, the offender's contact with his elder sister is limited, because of strains no doubt in part caused by his conduct I should imagine. In fact contact with the sister by Probation and Parole confirmed her relationship is poor due to his extensive criminal history. He claims to be the father of an eleven-year-old son with whom he has had no contact and he knows not of the child’s whereabouts. At the time of this offence he was residing by himself in Department of Housing accommodation for about a year in the Waterloo area.

26. I mentioned he had a son. What had happened was, he had formed a relationship, but when his partner was four months pregnant he was arrested and incarcerated. When he was released from custody his partner had left. It is fair to say that he made a number of attempts to contact the son but with no success.

27. From my point of view what is significant is that he has a long standing friendship with a Mr Christes Itskos. He confirms that Mr Malavetas will be staying with him and his wife in the Campbelltown area upon the offender's release and then they will be heading to Mudgee where Mr Itskos has a property. Mr Malavetas will be employed there in timber industry chipping and logging. Mr Itskos has confirmed that he is willing to support Malavetas in his plan to find his own accommodation, presumably in that area, in the near future.

27. As would be obvious from what I earlier mentioned, he started schooling in Greece until fifteen when he left school and started working with his brother-in-law as a plasterer. He moved to Australia and worked in his sister’s take-away food shop for sixteen months and then opened a similar shop of his own. He spent time working in fruit and vegetable markets, dry-cleaning, and various other casual employment until his drug addiction affected his ability to work. Currently he has been receiving the disability support pension. Had access to that pension when not in custody since 1996 as a consequence of liver problems.

28. As he appears from custody he appears to be in reasonable health, but there are two matters that should be mentioned. Firstly, the liver problems that I just referred to and it would be very hard to tell that from personal appearance, his complexion looks to be all right. Secondly, there is a document which indicated that as a consequence of - he had presented at a casualty doctor, I think at Sydney Hospital, with fractures to his ribs, sternum, larynx, trachea. This was in August of 2007, presenting with painful chest in the mid sternal area after an assault. He was referred to the tertiary pain management unit, and what I do not know is, because there is no recent medical report, whether he is suffering any sequelae from that assault at this point in time. As I say, as I watch him come to and from the court, and that is not a lot of observation time, and as he sits in court he appears to be, as best one can tell, in reasonable general health.

29. There are mental health issues. He was referred while he was out to the personal support program in May of 2007 and would be receiving, had he been in the community, ongoing support for a two-year period from that time. But the part of that support was access to a personal support program coordinator and part to a psychologist. It was found by the psychologist that he had a surrounding depression and of course a drug addiction. He had identified areas in his life, which he did need to change to bring about recovery and they were also working to address issues affecting his life consistent with the Centrelink assessment of him.

30. He commenced using marijuana and hallucinogenic drugs from the age of nineteen. He moved on to heroin shortly thereafter. He gave up other drugs and used heroin and cannabis until most recently admitted to custody. He was using LSD, cocaine, alcohol, and heroin, which were his principal drugs of choice with heroin being his principal drug of choice. For some, addiction is frequently extremely difficult to harness or conquer. This offender has been struggling with addiction for years. In more recent times he appears not only to be motivated to rehabilitate but also has taken some action to accomplish it. Those are important first steps. He has participated in the Merrit Program in 2007. He completed approximately six weeks of that program until his re-admission into custody. While in custody he has gone to AA and has self referred to the Alcohol and Other Drug services in prison. He advised his only contact with the AOD service since his admission into MRRC has been for preparation of the court report. He is also currently on a Methadone maintenance program.

31. He claims regret. I am satisfied he wished he had not acted as he did and he understands the consequence of his acts for he has been in custody. He certainly regrets that. However, would he do the same thing if he was at Kings Cross next week. If this is the measure of contrition then I would suspect he would be found wanting. But as I say, he is trying to reform. That includes the intended pursuit of his post release plan to move from Sydney to a rural setting with his friend and to form a working relationship harvesting timber products.

32. The Crown concedes the plea of guilty had great utilitarian value but not so great as to merit a twenty-five per cent discount.

33. He is a fifty-two year old man who has not functioned very well in the community, basically because the focus of his life to-date appears to be drugs. He started his criminal offending in 1996 when he was about twenty years old. Significantly the charges related to possessing and using cannabis. There are a number of stealing charges. Possessing prohibited drugs. His first supply conviction occurs in 1991 for which he was given a three-month term of imprisonment. In 1993 he was before the District Court for breaking entering and stealing when he was given a two-year S.558 recognisance. He has been sentenced to imprisonment on several occasions. He was before the court in 2007 for his fourth supply of drug and was sentenced to ten months imprisonment with a six-month non-parole.

34. In March of 2007 he was placed on a twelve-month section 9 bond with supervision requirements. He was called up on that bond for a breach in February of 2008. On that occasion he was sentenced to four months imprisonment. The offender's case is that the bond having been breached and he having been punished for it by imprisonment was no longer in existence. The only way a bond can be terminated is for it to be revoked. It was not revoked before February of 2008. The offending conduct before the court therefore is a breach of the bond. That breach aggravates the objective criminality before the court. His record is substantial.

With two exceptions all of his offending had been dealt with in the Local Court. His longest term of imprisonment to-date appears to be one of twelve months.

35. This is a case calling for both general and personal deterrence. The maximum penalty for this offence is twenty years imprisonment. The impact of taking the Form 1 matters into account as I say, will drive the sentence upwards but not by much. The appellant has been in custody since his arrest on 10 December 2007 and the sentence will backdate to that date. But for your plea of guilty for this offence I would have sentenced you to a term of imprisonment of three years. I discount that by twenty per cent for your plea, which amounts to seven months. Thus your sentence will be one of two years and five months overall. I find special circumstances. It seems to me that it is important that you have an opportunity to rehabilitate in the community. It is my belief that you are genuine in saying you want to go with Mr Itskos. I intend to set a minimum term of sixteen months.

36. Harry Malavetas, for the offence that you between 15 November 2007 and 10 December 2007 at Kings Cross and other places did on more then three separate occasions during a period of thirty consecutive days supply a prohibited drug other than cannabis, namely both cocaine and heroin, for financial or material reward, you are convicted. In respect of that offence you are sentenced to a non-parole period of sixteen months to date from 10 December 2007 and to expire on 9 April 2009. I set an additional term of fifteen months. If there is a need for an order that the drugs be destroyed that order is made.