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District Court 22 January 2009

R v Malavetas, Harry

[2009] NSWDC 16

Drugs
CRIMINAL LAW SENTENCE 5 SMALL SUPPLIES COCAINE AND HEROIN SUPPLIED FORM 1 MATTERS GO BETWEEN SUPPLIER AND PURCHASER

Citation: R v Malavetas, Harry [2009] NSWDC 16
Court: District Court of New South Wales
Date: 22 January 2009
Judge(s): Nicholson SC DCJ

Background

The offender, a 52-year-old man with a lengthy history of drug-related offending, pleaded guilty on arraignment to a charge of ongoing supply of prohibited drugs. The charge arose from five separate transactions conducted between 15 November and 10 December 2007 in the Kings Cross and Darlinghurst areas, each involving the supply of small quantities of cocaine and heroin to an undercover police operative codenamed "George".

The offender acted as a go-between, connecting the undercover operative with other, unidentified suppliers. In total, he supplied 0.98 grams of cocaine and 0.29 grams of heroin across five episodes, with the undercover operative spending $1,290 to obtain those drugs. Two additional matters, a purported supply of methamphetamine to a member of the public (which turned out to contain no prohibited drug) and a goods in custody charge, were placed on a Form 1 to be taken into account at sentencing rather than prosecuted separately on the indictment.

At the time of the offending, the offender was subject to a supervised bond imposed in March 2007. That bond had been breached and he had been sentenced to a further term of imprisonment in February 2008, but the bond had not been formally revoked before the offending occurred, meaning the present conduct also constituted a breach of that bond.

  • What was the appropriate sentence for an ongoing supply charge involving multiple small street-level transactions in cocaine and heroin, where the offender acted as an intermediary rather than an owner or dealer?
  • How should the court treat the Form 1 matters, including a purported supply of methamphetamine that contained no prohibited drug?
  • Whether the circumstances of the undercover operation constituted entrapment, or whether the offender's conduct reflected a pre-existing willingness to supply.
  • What weight should be given to the offender's subjective circumstances, including his age, drug dependency, health, and stated rehabilitation intention?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.

Decision

The court found that although the offender was a go-between with no demonstrated ownership of the drugs and no clear financial gain established on the evidence, he was not acting out of altruism. He benefited from the transactions, as evidenced by the $100 in pre-recorded buy money found on him at the time of arrest. The court distinguished the undercover operative's conduct from entrapment, noting that what appeared to be urgency or desperation from a person in withdrawal does not constitute improper inducement.

On the question of objective seriousness, the court acknowledged that the total quantities were small and below the trafficable threshold, but emphasised that the supplies were not isolated. The offender had indicated during one transaction that he could supply "as much as you want", and his conduct demonstrated a pattern of ongoing dealing rather than opportunistic or one-off behaviour. The Form 1 matters were taken into account and assessed as increasing the sentence, though only moderately.

Turning to subjective matters, the court noted the offender's disconnected family history, reliance on a disability support pension, long-standing poly-drug dependency, and his age of 52 years. Significantly, the offender was a recidivist supplier with at least four prior supply convictions dating back to 1991 and had served multiple terms of imprisonment. The breach of the existing bond at the time of the offending was treated as an aggravating factor.

The court found special circumstances, concluding that an extended parole period was warranted to give the offender a meaningful opportunity to rehabilitate in the community, including through a proposed arrangement with a support worker. A 20 per cent discount was applied to the head sentence in recognition of the guilty plea.

Orders Made

  • The offender was convicted of ongoing supply of prohibited drugs (cocaine and heroin) between 15 November and 10 December 2007.
  • Sentenced to a total term of 2 years and 5 months imprisonment.
  • Non-parole period of 16 months, backdated to 10 December 2007 and expiring 9 April 2009.
  • Balance of term of 13 months, expiring 9 May 2010.
  • Order made for the destruction of the drugs.

Key Takeaways

  • Acting as a go-between, rather than as an owner or primary dealer, does not of itself reduce criminal culpability for ongoing supply where the offender benefits from the transactions and demonstrates a willingness to continue dealing.
  • A pattern of repeated street-level supplies, even of very small quantities below the trafficable threshold, can constitute ongoing supply and will be treated as more serious than isolated dealings.
  • Undercover operative conduct that creates a sense of urgency or mimics the appearance of withdrawal distress is not, without more, entrapment; the District Court drew a clear distinction between improper inducement and the mere creation of an opportunity to offend.
  • Special circumstances can be established where the nature of an offender's dependency and the availability of community-based rehabilitation support make an extended parole period appropriate, even for a recidivist offender.
  • A bond that has been breached and resulted in additional imprisonment but has not been formally revoked remains on foot; offending during that period constitutes a breach and aggravates the objective criminality of the later offence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW)

Cases:
No cases were cited in the provided text of the judgment.