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District Court 3 December 2012

R v Fostis COSTI

[2012] NSWDC 288

Drugs
CRIMINAL LAW PARTICULAR OFFENCE DRUG OFFENCE SENTENCE RELEVANT FACTORS GRAVITY OF OFFENCE

Citation: R v Fostis COSTI [2012] NSWDC 288
Court: District Court of New South Wales
Date: 3 December 2012
Judge: Cogswell SC DCJ

Background

The offender was a street-level heroin dealer who regularly supplied heroin from his Seven Hills home to a number of regular customers over the course of approximately six weeks in mid-2011. Police monitored his activities and recorded 193 purchases with a cumulative tracked weight of at least 48.5 grams, representing estimated earnings of over $26,000. He also posted heroin to buyers in Tasmania on multiple occasions.

The offender lived at the property with his long-term partner and four children aged between 7 and 12. He had been using cannabis since his mid-twenties and began using heroin in 2004, having started to smoke cannabis laced with the drug. He described supplying heroin both to fund his own habit and for financial benefit more broadly.

When police arrived to execute a search warrant, he attempted to destroy evidence by flushing a brown powder down the kitchen sink, then resisted arrest. A subsequent search of the home uncovered 30 grams of cannabis and 18 grams of methylamphetamine.

  • What sentence was appropriate for two counts of supplying heroin on an ongoing basis for financial gain under section 25A(1) of the Drug Misuse and Trafficking Act 1985, each carrying a maximum of 20 years imprisonment?
  • What weight should be given to the offender's early guilty plea, his criminal history, his personal circumstances, and the associated Form 1 offences when determining the overall sentence?
  • How should the objective seriousness of the offending be characterised?

Decision

His Honour accepted the prosecution's characterisation of the offending as that of a street-level dealer running a commercial enterprise from home. The objective criminality was assessed as below the mid-range of seriousness for this type of offence, given that the supply was at a retail rather than wholesale level, though the volume and regularity of transactions over the relevant periods was significant.

The offender received a 25 per cent discount on the sentence he would otherwise have received, in recognition of his guilty plea entered at the earliest available opportunity. His Honour noted that this discount reflects the benefit to the administration of justice from avoiding a trial.

The offender's criminal record, which included drug possession and use offences from 1980 to 1990 and a prohibited weapon offence in 2009, did not aggravate the current offending but did preclude the leniency that a sentencing court might extend to a first-time offender. His Honour also noted the offender's strong family support, his serious health issues, and his expressed intention to remain drug-free on release.

Four associated offences were taken into account on a Form 1 when sentencing for the first count. These were: exposing a child to drugs, possessing a prohibited drug (cannabis), obstructing a law enforcement officer executing a warrant, and supplying a prohibited drug. The sentence was backdated to 23 August 2011, the date of the offender's arrest and the commencement of his time in custody.

Orders Made

  • The offender was convicted of both counts under section 25A(1) of the Drug Misuse and Trafficking Act 1985.
  • Four offences were taken into account on a Form 1 in relation to the first count.
  • Two backup charges (supply of a prohibited drug and possession of methylamphetamine) were dismissed.
  • The seized drugs were ordered to be destroyed under the Drug Misuse and Trafficking Act 1985.

Key Takeaways

  • The District Court assessed ongoing heroin supply at street level from a residential premises, across 154 individual transactions in six weeks, as falling below the midpoint of objective seriousness for a section 25A(1) offence, even where the dealing was clearly commercial in nature.
  • A 25 per cent sentencing discount applied where the offender pleaded guilty at the earliest available opportunity, consistent with the recognised benefit to the administration of justice.
  • A prior criminal record, even where the previous offences are not directly analogous to the current charges, can reduce the availability of leniency in sentencing without independently aggravating the offence itself.
  • Under section 25A(1) of the Drug Misuse and Trafficking Act 1985, supply of a prohibited drug on three or more occasions within 30 consecutive days for financial gain carries a maximum penalty of 20 years imprisonment, reflecting Parliament's assessment of such conduct as very serious.
  • Personal circumstances including strong family support, a serious health condition, and a history of drug dependence rooted in personal trauma are relevant mitigating factors, though their weight must be balanced against the nature and extent of the offending.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW): ss 10(1), 25(1), 25A(1), 36Y(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 32
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW): s 52

Cases cited: None cited in the judgment.