District Court New South Wales Medium Neutral Citation: R v Fostis COSTI [2012] NSWDC 288 Decision date: 03 December 2012 Before: Cogswell SC DCJ Decision: For two offences of supplying prohibited drugs (heroin) on an ongoing basis for financial gain, an aggregate sentence of 4 years, non-parole period of 2 years Catchwords: CRIMINAL LAW - Particular offence - drug offence - supplying heroin on an ongoing basis for financial gain - street level dealer operating commercial enterprise from home - Sentence - relevant factors - gravity of offence - below mid range of objective seriousness - supplied heroin for his own material benefit and to finance his habit - response to charges - plea of guilty - at earliest opportunity - prior criminality - criminal record affects availability of leniency - form 1 taken into account - nature and circumstances of offender - well regarded - family man - strong family support - suffering a serious health issue. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 32. Drug Misuse and Trafficking Act 1985 s 10(1), s 25(1), s 25A(1), s 36Y(2)(a). Law Enforcement (Powers and Responsibilities) Act 2002 s 52. Category: Sentence Parties: Regina (Crown) Fostis Costi (Offender) Representation: Counsel: M. Ainsworth (Offender) Solicitor: C. Summerfield (Director of Public Prosecutions) File Number(s): DC 2011 / 271924 REMARKS ON SENTENCE 1Fostis Costi was a retailer of heroin. Over a period of time he regularly supplied heroin from his home to a number of regular customers. The police became aware of his activities and he was arrested and charged with two crimes. I am sentencing him today for those two crimes as well as some associated offences. 2The two crimes that I am sentencing him for are both offences against s 25A(1) of the Drug Misuse and Trafficking Act 1985. The first crime charges that between 11 July and 9 August 2011 Mr Costi, on 3 or more separate occasions over a period of 30 consecutive days, supplied heroin for financial gain. 3The second charge is the same offence but specified to be between 8 August and 24 August 2011. 4Mr Costi has pleaded guilty to both of those crimes and, if I have not done so yet, I convict him of both of those offences. 5Each of the offences is regarded as very serious by Parliament which has imposed a maximum of 20 years imprisonment for the crime. 6Mr Costi has asked me to take into account, when I am sentencing him for these 2 offences, 4 other crimes. I mistakenly said "when I am sentencing him for these 2 offences". In fact I will take them into account when I am sentencing him for the first offence, namely the one between 11 July and 9 August 2011, four other offences. One is exposing a child to drugs which is an offence against s 36Y(2)(a) of the Drug Misuse and Trafficking Act. The second is possessing a prohibited drug which is an offence against s 10(1) of the Drug Misuse and Trafficking Act. The third is obstructing and hindering a law enforcement officer executing a warrant which is an offence against s 52 of the Law Enforcement (Powers and Responsibilities) Act 2002. The fourth is supplying a prohibited drug which is an offence against s 25(1) of the Drug Misuse and Trafficking Act. 7When in due course I sentence him for the first offence on the indictment, I will take those offences into account and I sign a form to that effect signed by Mr Costi and by a representative of the prosecutor which has been prepared under s 32 of the Crimes (Sentencing Procedure) Act 1999. 8Over the period of time that the police were monitoring Mr Costi's activity, there were a large number of individual transactions. There is a convenient summary on page 9 of an account of his criminal activity which is contained in exhibit A. The summary is as follows, which I adopt and find accordingly: "As of the date of the offender's arrest, there were 193 recorded purchases of heroin with a cumulative weight calculated at 48.5 grams. The weights calculation has only been based on information when the weight was specified. The full quantity of heroin supplied is unknown, as it is sometimes referred to by weight and on other occasions by cash value, and on other occasions the quantity or cash value was not specified. The full quantity of heroin supplied by Costi is larger than 48.5 grams. An estimate of the amount Costi was paid for the 48.5 grams at $500 per gram is $26,040." 9The first offence covers 93 individual sales of amounts of heroin ranging from 0.1 gram to 3 grams. The sales were made to regular customers who attended Mr Costi's home to buy the drug. On two other occasions Mr Costi supplied 2 grams of heroin by post to buyers in Tasmania who had paid $1,000 into a bank account. 10Over the period of the second offence Mr Costi engaged in 61 transactions over a period of just over 2 weeks. The cost ranged from $500 to $400. Once again, as a rule they were regular customers who came to his home to buy the drug. On one occasion in that period he supplied 2 grams by post to the same buyers in Tasmania who paid $1,000 into an account. 11The transactions occurred, as I said, at Mr Costi's home which is an address in Seven Hills. He was living there with his partner, Sarie Nillson and their 4 children who attended a local public school. Hence one of the offences which I take into account is exposing those children to prohibited drug activity. 12Before police arrested Mr Costi he ran into his home and locked the door behind him. He ran to a sink in the kitchen and emptied a brown powder down the sink. The police forced their way into his home and arrested him in the kitchen but he resisted them and had to be taken down to the ground and handcuffed. Hence I am taking into account the offence of obstructing or hindering a person who was trying to execute a warrant. 13When the police searched his home they found 30 grams of cannabis. That formed the basis of the offence of possessing a prohibited drug. In addition they found 18 grams of methylamphetamine. The amount of that methylamphetamine was such that it formed the basis of a charge of a deemed supply of a prohibited drug. 14Ms C. Summerfield who appeared for the Director of Public Prosecutions acknowledged that Mr Costi had pleaded guilty to the charges at the earliest available opportunity. That means, in due course when I sentence him, I will discount the sentence I would otherwise have imposed by 25 per cent because of the advantage to the administration of justice that Mr Costi has provided by pleading guilty and avoiding the expense of a trial. 15He was arrested on 23 August 2011 and has been in custody since that date on these charges alone. Accordingly the sentence will date from 23 August 2011. 16Ms Summerfield submitted that Mr Costi's role was "that of a street-level dealer operating a commercial enterprise from his own home". That submission is not opposed and I accept it. Ms Summerfield also submitted that "the objective criminality of this offence falls below the middle of the range of objective seriousness, where the offender was supplying heroin in the community to a substantial degree, for his own material benefit and to support his drug use." That submission is also accepted. 17A judge needs to also take into account circumstances personal to an offender when the judge is sentencing the person. That will always include any criminal record which the offender has. In this case Mr Costi has a criminal record. He has offences ranging from 1980 through to and including 1990 which involved the possession and use of cannabis. In 2009 there is on his record an offence involving a prohibited weapon. He also has traffic offences. These offences do not add to the seriousness of his criminal activity this time but it means that he does not available to him the lenient approach which a judge may take to sentencing someone who has committed offences for the very first time. 18In addition there has been prepared in this case a pre-sentence report about Mr Costi by the Probation and Parole Service. It contains useful information about him and his drug-taking history. It notes that Mr Costi started using cannabis casually when he was about 23 years old but his use increased when his older brother died from a heroin overdose in 1986. He apparently found it very difficult to cope at the time. He has continued using cannabis since, apart from being drug-free for some 12 months between 2009 and 2010. The report notes that in 2004 he began to use heroin when it was laced in the cannabis that he was smoking. He has continued to use heroin until he was arrested. 19He has been in a relationship with his current partner for some 12 years and has 4 children aged 12, 10, 8 and 7. He completed year 10 at school and worked for many years in the family retail fish business. He was securing drugs for his own use as well as financing his own use by the supply activity which I am sentencing him for. There is a summary contained in the pre-sentence report which says this: "Mr Costi described a lifestyle entrenched with illicit drug use since he was twenty-three years old. It is a concern that he has rationalised his behaviour and seemingly not taken into consideration the seriousness of his actions. Mr Costi claimed that when released, it is his intention to remain drug free, secure employment and eventually relocate to an area where he will not have contact with his prior adverse associations. It is positive, that at this time Mr Costi has the support of his partner and family to assist him in achieving his goals." 20In fact, Mr M Ainsworth of counsel who appeared for Mr Costi called his brother Andrew Costi, who runs a successful business, to give evidence before me. Mr Andrew Costi confirmed that he and other members of his family will all support Fostis Costi including seeing if he, subject to his health, can secure work. Mr Andrew Costi confirmed the history which was noted in the pre sentence report about the affect of their brother's death on Fostis Costi's drug taking habits. Mr Andrew Costi has noted an improvement in his brother's health since he has been in custody and off drugs. He has also seen an improvement in his brother's attitude to himself. 21Mr Ainsworth tendered as exhibit 2 an affidavit by his client which contained a lot of his personal history. He did not put his client into the witness box but it seems that much of what is contained in the affidavit is uncontroversial. He has a serious health issue brought about by a hernia in his abdomen. He is no longer being medicated for his drug use and is now, as Mr Ainsworth put it, no longer pharmaceutically supported. 22He has other children apart from the children that he has with Ms Nillson and has a good relationship with all his children. There was also a report from a forensic psychologist, Tim Watson-Munro, who recorded much of the history that I have referred to. A psychometric assessment performed by Mr Watson Munro confirmed, he said, "a diagnosis of major depression". Apparently he expressed considerable remorse for his actions to Mr Watson Munro in the context of detoxifying from what Mr Watson Munro described as "a long standing drug addiction problem which has enabled him to develop clearer insight to his behaviour, wrongdoing and the dynamics surrounding his addiction." 23Mr Watson Munro referred to the obvious connection between Mr Costi's drug addiction and the crimes that I am sentencing him for. He recommended ongoing treatment as a matter of urgency and thought that given Mr Costi's "age, his attitude towards his offending and the fact that he has now been drug free since his arrest, I believe that with continuing support, supervision and treatment, his prognosis will remain on a positive trajectory." HIS HONOUR: I will just depart from my remarks on sentence at this stage. Mr Sayad those that will classify your client in Corrective Services indicate generally that any psychological or psychiatric material can be very helpful to them in that classification process. I cannot remember whether I mentioned this to Mr Ainsworth, perhaps not. What my associate will do in cases where she has, well I have been given permission, is that she will send by fax a copy of Mr Watson Munro's report this afternoon to those that classify him and they find it very helpful. But she will not do that without your instructions and so you might take the opportunity to get those instructions in the next few minutes. Some people do not like that sort of material circulating within Corrective Services or within the gaol but I can say that those that classify prisoners say that it is very helpful so it is a matter entirely for you. You let me know in due course. SAYAD: Thank you your Honour I'll obtain those instructions. HIS HONOUR: All right. I will return to my remarks on sentence. 24Mr Ainsworth tendered some character references which speak well of Mr Costi as having values such as strength, intelligence and compassion. He is obviously regarded as a family man. 25Ms Summerfield pointed out in her helpful written submissions that the intention of s 25A of the Drug Misuse and Trafficking Act was to target dealers who organised their affairs in such a way as to limit the full effect of drug legislation "by dealing in only small quantities at a time. Accordingly s 25A offences are considered more serious than s 25 offences as reflected by an increase in the maximum penalty." 26Ms Summerfield also drew my attention to the guideline judgment delivered by the Court of Criminal Appeal relevant to sentencing persons where I am taking into account other sentences [sic]. She submitted that there is no other choice but a full-time custodial sentence and Mr Ainsworth did not suggest otherwise. 27Ms Summerfield submitted that it has been recognised for a long time "that supplying drugs to the community has long-term and devastating consequences for individuals, families and the community generally and the sentencing process must accordingly pay strong regard to the protection of the community." I accept her submissions in that regard and also so far as taking matters into account and the purposes of enacting s 25A of the Drug Misuse and Trafficking Act. 28I have had regard to the statistics produced by the Judicial Commission on sentencing for these kinds of offences and which became MFI 2 in these proceedings. Shortly I will impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 but I would indicate that in the meantime I would regard an appropriate sentence in respect of count 1 including the matters I have taken into account as being one of 5 years imprisonment. In respect of count 2 I would regard an appropriate overall sentence as one being of 4 years imprisonment. 29Count 1 I would have discounted by 25 per cent because of Mr Costi's plea of guilty and would therefore have reduced the sentence to one of 3 years and 9 months. In respect of count 2, I would have reduced that 4 year sentence by 25 cent to a sentence of 3 years imprisonment. I would have partially accumulated the 2 sentences so that the total to be served by Mr Costi under both sentences would have been one of 4 years imprisonment. The partial accumulation would be to the extent of 3 months. 30Normally for a 4 year sentence, the non-parole period that it would be compulsory for a prisoner to be kept in prison would be 3 years but Mr Ainsworth argued that there are special circumstances for adjusting the ratio to one of 50 per cent so that he serves 2 years in prison. I accept that submission. This is Mr Costi's first time in full-time custody and he has made significant progress in detoxifying himself from drugs. I would think that he would benefit from a longer period on parole to address his drug addiction and to get his health back into order and get himself into employment. I would therefore propose to fix the non-parole period as one of 2 years imprisonment. HIS HONOUR: I will now sentence you Mr Costi if you would stand up. 31I am imposing an aggregate sentence in respect of the two offences. The aggregate sentence will be 4 years with a non-parole period of 2 years. I fix a non-parole period of 2 years to commence on 23 August 2011 and to expire on 22 August 2013. The balance of the term will be 2 years commencing on 23 August 2013 and expiring on 22 August 2015. HIS HONOUR: Have a seat Mr Costi. Now in a moment I will explain that to your client although it is fairly straight forward. Now I think the mathematics are correct are they? Yes. Ms Blizard, Mr Sayad. SAYAD: That's correct your Honour. HIS HONOUR: Now do you have instructions or do you want to get them. Take your time. SAYAD: If your Honour excuses me for a moment. HIS HONOUR: Yes you go ahead, take your time. SAYAD: That's fine your Honour, there's no objection to the report being tendered. HIS HONOUR: All right my associate will - I'll make it available to her now, exhibit 1 and she will send that to Corrective Services this afternoon. HIS HONOUR: Mr Costi, although convicted of two offences, you have one sentence of 4 years. It started back on 23 August last year when you are arrested and therefore the sentence expires on 22 August 2015. I have fixed a non-parole period of 2 years and that will come up on 22 August next year 2013. Whether or not you get parole depends upon the Parole Authority, not me because of the length of the sentence. So a little before that date you will begin the process of being assessed for being released on parole. The earliest date that you can be released on parole by the Parole Authority is 22 August 2013. Do you understand that? Okay have a seat Mr Costi. HIS HONOUR: Ms Blizard, Mr Sayad there was a MFI 3 is the application under the Confiscation Of Proceeds Of Crime Act and I just can remember but Mr Sayad were you here on Friday. SAYAD: Your Honour I wasn't appearing on Friday. It was Mr Kyriacou with Mr Ainsworth. HIS HONOUR: With Mr Ainsworth and I remember Mr Ainsworth wanted a little bit of time and I just can't remember what we were going to do with it. SAYAD: I'd ask that time be granted. Your Honour I don't have instructions-- HIS HONOUR: Yes it will. SAYAD: --in relation to the order. HIS HONOUR: No well I'm not going to rush it because I remember Mr Ainsworth wanted time to think about it so I am not sure what I sure do. What do you think? I am here tomorrow and Wednesday. It is probably desirable that we sort it out in the next couple of days. BLIZARD: Does your Honour have a copy of the paperwork? HIS HONOUR: Yes I will pass it down. It is MFI 3. BLIZARD: I was going to suggest if Mr Ainsworth made contact with your associate we could, by consent, perhaps it could be done in chambers. HIS HONOUR: Well that is what he was not sure about but would be-- BLIZARD: And if it's to be defended then it will need to get another listing. HIS HONOUR: That makes sense Mr Sayad, what Ms Blizard says. SAYAD: I agree with my friend your Honour. BLIZARD: I hand that back up then. HIS HONOUR: All right would you ask Mr Ainsworth whether it's a contested matter or whether it's by consent. SAYAD: Ainsworth, sure. Yes your Honour. HIS HONOUR: And if he contacts my associate and by email is best or you, I don't mind or you or Mr Kyriacou. SAYAD: Yes your Honour. HIS HONOUR: By email is best copying in the Crown indicating what your attitude is, either that it's contested or that it's consent. If it's consent I'll sign the orders in chambers. SAYAD: Yes your Honour. HIS HONOUR: And if it's contested then we'll fix a date next year and if that could be done in the next 48 hours, I'd appreciate that. SAYAD: Yes your Honour. That will be no problem. Thank you your Honour. HIS HONOUR: All right now there is - my associate thinks one backup offence is and perhaps they are ones which I took into account. BLIZARD: There's two backup offences your Honour. Sequences 2 and 5. So they're to be withdrawn. HIS HONOUR: What are they for or have I taken those into account. BLIZARD: The sequence 2 is supply prohibited drug and sequence 5 is possession of 18 grams of methylamphetamine. My instructions are to withdraw those. HIS HONOUR: Ok well they're the ones I took into account aren't they? BLIZARD: No they're four matters on the form 1. HIS HONOUR: Yes. BLIZARD: That's sequences 3, 4, 6 and 15. HIS HONOUR: Yes. BLIZARD: And the backup offences are sequences 2 and 5. HIS HONOUR: So what do you want me to do to the backup? BLIZARD: They're to be withdrawn. I'd ask you to dismiss them. 32I dismiss them. BLIZARD: Thank you. HIS HONOUR: And they're both backup. BLIZARD: They are. HIS HONOUR: The two backup offences of-- BLIZARD: Supply prohibited drug. HIS HONOUR: --supply prohibited drug-- BLIZARD: And possession of methylamphetamine. HIS HONOUR: --and possession of methylamphetamine are both dismissed. BLIZARD: Thank you your Honour. Did your Honour make an order for destruction of the drugs? HIS HONOUR: No but I will now. BLIZARD: Thank you. 33I order that the drugs be destroyed under section whatever it is - which my associate will put in the formal orders - of the Drug Misuse and Trafficking Act. Okay so I think that's it am I right? Okay thanks Mr Sayad, thanks. SAYAD: Thank you your Honour. HIS HONOUR: Did you want to see your client before he's taken down? SAYAD: If I may be excused your Honour. HIS HONOUR: Yes you can. Thanks Ms Blizard. BLIZARD: Thank you your Honour. ********** 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. Decision last updated: 29 May 2013