Reported Decision : (2002) 134 A Crim R 423 New South Wales Court of Criminal Appeal CITATION : Regina v Malek [2002] NSWCCA 424 FILE NUMBER(S) : CCA 60148/02 HEARING DATE(S) : 27 September 2002 JUDGMENT DATE : 15 October 2002 PARTIES : Regina v Naif (Nick) Malek JUDGMENT OF : Hidden J at 26; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/1312 LOWER COURT JUDICIAL Finnane DCJ OFFICER : COUNSEL : (A) P M Winch (C) P G Ingram SOLICITORS : (A) Sachs Gerace Lawyers (C) S E O'Connor CATCHWORDS : Sentencing - knowingly take part in supply of prohibited drug - receptionist, book keeper, cashier at brothel where drugs supplied - knowing what was happening - correct level of sentencing. LEGISLATION CITED : Nil CASES CITED: Nil DECISION : See para 25 IN THE COURT OF CRIMINAL APPEAL 60148/02 HIDDEN J SMART AJ Tuesday, 15 October 2002 NAIF (NICK) MALEK v REGINA JUDGMENT 1. SMART AJ: Naif Malek seeks leave to appeal against concurrent sentences of imprisonment being 8 years with a non-parole period of 4 years for the offence of knowingly take part in the supply of not less than the commercial quantity of heroin (count 1) and 7½ years with a non-parole period of 4 years for the offence of knowingly take part in the supply of cocaine (count 2). The offences were alleged to have occurred between 8 November 1999 and 11 April 2001. 2. The applicant was largely but not totally unemployed and was offered a job by Joseph Attallah whom he knew through his mother. She and the applicant were friends. She asked him to keep an eye on her son. The job was at the Eternity Brothel, otherwise known as Total Eternity Escorts at Bankstown. He was employed casually and later permanently as a receptionist/book keeper/cashier/manager. 3. The brothel employed prostitutes to provide sex services to its clients. Several of the prostitutes were drug users. The prostitutes were instructed by Attallah to purchase their illegal drugs, namely, heroin and cocaine exclusively from the brothel. The evening shift commenced about 6 pm. Attallah normally attended the brothel with a supply of heroin and cocaine. The first drug purchase of the evening for each prostitute was normally provided on credit or "tick". Attallah recorded the accumulated drug debts owed to him. Attallah either supplied the drugs directly or they were held and supplied by one of his employees, usually Joseph Elkhoury. 4. Shortly after consuming the drugs which they had purchased the prostitutes would commence work providing sex services in the brothel or on call. The monetary takings for each service were recorded on time sheets maintained in the brothel's office. These records were kept by the persons employed as managers or receptionists including the applicant on the shifts on which he was working. Those prostitutes who purchased drugs were required to repay their first purchase from the money they earned at the start of the evening. When that initial debt was repaid the prostitutes were allowed to "sub" their earnings from the books throughout the night. A substantial majority of the "subs" recorded in the time sheets were made for drug purchases. 5. Cocaine was sold at the premises in resealable satchel bags for $50 a deal. Heroin was sold in ¼ weights for $70-$80 and ½ weights for $150-$170 in the corners of plastic bags which were cut off and tied. 6. Attallah employed Joseph Elkhoury to sell heroin and cocaine on his behalf. Throughout the night Elkhoury on-sold drugs to prostitutes and purchasers from the street. On occasions Elkhoury was required to hand the profits from the sale of drugs to the receptionist/manager including the applicant during the course of the night for safekeeping. Throughout the night Attallah maintained phone contact with Elkhoury. When Elkhoury ran short of drugs the information was conveyed to Attallah who would attend the brothel with additional drugs for on-supply. Often that telephone contact was facilitated by a third party, normally the receptionist or manager, including the applicant. 7. The evidence established that as a long term employee at the brothel the applicant had knowledge of the sale of prohibited drugs on the premises to the employed prostitutes. The applicant's role at the brothel required him to work 8-10 hours per day. On occasions the applicant stayed at the premises. He facilitated the process of supply by permitting the prostitutes to take "subs" to purchase heroin and cocaine. He made the entries on the time sheets including the entries for the "subs". This practice was obviously known to and approved by, if not introduced by, Attallah. The applicant was aware that the prostitutes purchased and consumed drugs on the premises. He kept the moneys from Elkhoury and the parlour separate. The applicant was present when Attallah arrived at the brothel at 6 pm to give drugs to Elkhoury. After 3 November 2000 when a man was murdered the applicant instructed the staff at the brothel that the "subs" were no longer to be recorded on the time sheets. They were recorded on room reminder sheets which were destroyed after each night. 8. In his cautioned recorded interview the applicant accepted that he knew what was going on at the brothel. 9. The applicant was born on 7 February 1942. He had convictions for a number of petty offences, one in 1968 and five between 1982 and 1987. There was nothing between 1987 and the subject occurrences. He can safely be treated as a man of good character with no relevant convictions. 10. The applicant explained that he was a shoemaker by trade. Unfortunately, his second wife took all his money. He lost his business of nearly 20 years. This was about 1994-1995. They were divorced. Around 1996 his son died of AIDS. He had a number of casual jobs, the longest period being seven months. When he became a permanent employee at the brothel he received a wage of about $960 per week gross and $740 per week net. 11. He said that he tried to ameliorate the conditions in which the girls worked. He was able to alter their remuneration arrangements. When he first started the brothel received 60 per cent of the fees paid by the clients and the girls 40 per cent. He oversaw the change to 50 per cent for the brothel and 50 per cent for the girls. He tried unsuccessfully to increase the percentage received by the girls to 60 per cent. The applicant said that Attallah was sometimes high on drugs and uncontrollable. The applicant had stood up to him and prevented him being violent towards the girls. On one occasion he took two girls who had not realised what was involved to the airport and personally paid the fares for them to return to New Zealand. 12. The applicant said that he hated drugs. His evidence continued: "Q. If you hated the drugs how could you work at a brothel which sold drugs to the sex workers A. I thought I can help. At the beginning I was selfish, thinking of myself, got a job but in the end I thought I can help but in the end I find out that everybody beyond help. I feel sorry for them. I couldn't help. Q. Did you need money at the time? A. No. … HIS HONOUR: Q. But at the beginning you had a need for money, isn't that what you said, you were greedy. You said a little while ago when you started off you were greedy, you wanted the money. A. Yeah, I was thinking of myself, you know, happy – Q. So you had a need for money when you started? A. Need to have a job because after a long time without a job you feel you're not good to society." 13. Unfortunately the judge misquoted the applicant and misunderstood the drift of what he said. The judge repeated that error in his remarks when he stated, "The offender … said to me that when he went there initially he was greedy …". The applicant wanted a job but the evidence does not establish that he was motivated by greed. The judge said that the applicant was paid quite a handsome wage for working at the brothel. That overstates the position. The judge acknowledged that there was no suggestion that the applicant gained any percentage of the proceeds of sale of the drugs. 14. The judge found that the applicant was valuable to Attallah and receiving a "good weekly wage for making sure this system got going." The judge noted that the applicant had worked at the brothel for a substantial period. The applicant was not an indispensable link in the sale of the drugs. However, Attallah benefited by having someone reliable and trustworthy acting as the cashier/receptionist/book keeper/manager. 15. The judge found: "… he persisted in all this because he was getting paid and because of his loyalty to Attallah of whom he was not afraid. He could have left and never gone back." 16. The judge said: "In my opinion involvement for a year in this sort of operation makes this an offence of the worst type." 17. I am not sure what the judge meant to convey by this remark. There have been instances where there has been a greater degree of involvement in drug supply and for a longer period. The degree of involvement in this case was not at the highest end of the scale. However, the applicant was involved for a lengthy time. 18. The judge began with a starting point of 12 years on the first count and 10 years on the second count, assuming that there was no plea of guilty, no contrition, but taking into account his age and that this was a first offence. The judge accepted that the applicant had shown remorse and had pleaded guilty at the first opportunity. The judge discounted the sentence by 25 per cent for the early pleas of guilty. The judge found special circumstances, namely, the applicant's age, his good rehabilitation prospects, his previous good character, re-offending was unlikely, the devastation of his relationships with his own family, this was his first custodial sentence and the daunting effects of that at the age of 60. 19. From the evidence it appears that from past family associations the applicant had a misguided sense of loyalty to Attallah and that he turned a blind eye to Attallah's drug supply and indirectly assisted such supply. He had found it very hard to obtain a job because of his age when his bootmaking business folded. His education had been limited and he was not well equipped to obtain employment. He valued having a reasonably paid job. 20. The applicant contended that: (a) the judge failed to give adequate weight to the applicant's subjective features (b) the judge erred in assessing the objective seriousness of the offences. The applicant played the limited role of bookkeeper and cashier. This was not an offence of the worst type. (c) The amount of heroin calculated to have been recorded by the applicant as supplied was 604.935 grams. The category of "commercial quantity" of heroin ranges from 250 grams to 1 kilogam. (d) The Judicial Commission statistics for these offences show that the range of head sentences imposed is 2½ to 8 years for heroin and 1 to 4 years for cocaine. The statistics also revealed that the starting point for heroin articulated by the judge was just below the top of the range of actual supply. (e) The sentences were manifestly excessive. 21. The Crown was somewhat guarded in its submissions. It accepted that the role played by the applicant seemed to be somewhat less than was implicit in the judge's finding that the applicant "kept going a very significant and quite major drug operation." The Crown also had difficulty in ascertaining what the judge meant when he found that the offence was "of the worst type." The Crown accepted that the judge appeared to have elevated the role of the applicant above that supported by the evidence. The Crown correctly contended that the subjective features of the applicant were given very considerable weight by the judge. The Crown correctly accepted that the sentences imposed were severe in view of the role played by the applicant and in the light of the subjective circumstances. Decision 22. As earlier appears some of the judge's findings were erroneous. He overstated the role played by the applicant and erred in his assessment of his criminality. The judge's starting points were too high. The applicant had powerful subjective features as enumerated earlier. The sentences imposed were manifestly excessive. 23. As it is necessary for this Court to re-sentence I have taken into account the affidavit of the applicant of 24 September 2002 and that of R M Barnett of 23 September 2002. The applicant's affidavit highlights the adverse effects on his health of the gaol conditions. He had to be taken to hospital for pneumonia and his sinusitis and dermatitis conditions have been aggravated. His aged mother cannot walk properly because of osteoporosis and arthritis and needs his assistance. He had previously been her carer. The applicant's father is aged 100 and is in a nursing home. The applicant has good gaol reports. 24. A correct assessment of the applicant's criminality coupled with his powerful subjective features leads to the view that the correct sentence was one of 5½ to 6½ years on count 1 (the heroin count). I would fix a sentence of 6 years. As to the non-parole period having regard to the applicant's age, his previous good character and the impact of this, his first gaol sentence, on him at his age and that he is unlikely to re-offend, I would fix a non-parole period of 2 years 9 months. On the second count I would fix a concurrent sentence of 5 years with a non-parole period of 2 years 6 months. 25. I propose the following orders: (1) Leave to appeal against sentence granted. (2) Appeals allowed. Sentences quashed. (3) In lieu thereof the applicant is sentenced to the following terms of imprisonment: (a) On count 1 (knowingly take part in the supply of not less than the commercial quantity of heroin) - 6 years commencing on 10 April 2001 with a non-parole period of 2 years 9 months starting that day and expiring on 9 January 2004. (b) On count 2 (knowingly take part in the supply of cocaine) - 5 years commencing on 10 April 2001 with a non-parole period of 2 years 6 months starting that day and expiring on 9 October 2003. 26. HIDDEN J: I agree with Smart AJ. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.