Director of Public Prosecutions v Costa

[2019] VCC 695

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02463

COMMONWEATH DIRECTOR OF PUBLIC PROSECUTIONS

V

DAVID PATELLA COSTA

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2019
DATE OF SENTENCE:	16 May 2019
CASE MAY BE CITED AS:	DPP v Costa
MEDIUM NEUTRAL CITATION:	[2019] VCC 695

REASONS FOR SENTENCE
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Subject: Criminal law - sentence       

Catchwords:    pleas of guilty to one charge of importing a marketable quantity of a border controlled drug (GBL) and one charge of possessing a drug of dependence – both for personal use – unsophisticated importation using own address and phone number – anxiety and depression led to increased drug use – effort towards rehabilitation before arrest – early plea of guilty – whether importation of GBL attracts lesser sentence than for other drugs – imprisonment not necessary – reasonable prospects for rehabilitation.

Cases Cited:DPP(Cth) v Maxwell [2013] VSCA 50, Colledge [2010] NSWCCA 302

Sentence: 2 year CCO for each charge.   

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Mr P Darby for sentence, Ms Hogarth	OPP
For the Accused	Mr S Tovey for sentence    Mr Andrianakis	Steven Andrianakis

1HER HONOUR:  David Patella Costa, you have pleaded guilty to one charge of importing a marketable quantity of a border control drug, namely gamma butyrolactone, but known as GBL, and one charge of possessing a drug of dependence, namely methamphetamine.

The offending

2You had ordered an online consignment of a quantity of GBL from China which arrived at Melbourne Airport on 26 July 2018 and was detected by Australian Border Force staff.  It was addressed to a Malcolm Wright at Unit 3, No.57 Blyth Street, Altona, which was your address. 

3The package contained a white plastic bottle wrapped in bubble wrap containing a clear liquid weighing 1,108 grams.  Testing was found to indicate the presence of GBL[1].  A controlled delivery was arranged with a substituted inert substance and on 2 August 2018 an AFP officer purporting to be a TNT delivery courier attended your home.  You were present and took delivery of the consignment.  You were arrested a short time later. 

[1] Gamma-butyrolactone

4In your home, police found a number of clips seal bags containing a substance later found to be methamphetamine with a pure weight of 2.7 grams.  When interviewed you said this was for your personal use.  The pure weight of the GBL was 945.2 grams which is a marketable quantity just under the threshold amount for a commercial quantity.  You were charged and remanded in custody but were granted bail on 17 August 2018. 

Gravity of offending

5It is accepted that the possession of methamphetamine was for your personal use which can be explained by the circumstances set out in the following account of your background.  The maximum penalty for that offense is 12 months' imprisonment.  The starting point in this case must be the gravity of the offending in relation to the importing charge.  According to a number of authorities GBL is to be regarded as an illicit substance of low monetary value in terms of profit to be obtained from its sale, and therefore it must attract less significance in sentencing as far as general specific deterrence are concerned.  This is so despite the very high maximum penalty of 25 years imprisonment[2].

[2] Discussed in DPP (Cth) v Maxwell [2013] VSCA 50 [31] – [40]

6In the New South Wales case of The Queen v Colledge[3], where the offender pleaded guilty to a charge of importing a commercial quantity of GBL, the sentencing judge imposed a fine characterising the offence as being “…at the very bottom of the scale for that kind of offence and that … he regarded a full time custodial sentence to be completely inappropriate ...”[4]  The Court of Criminal Appeal approved that characterisation, although the fine was significantly increased.

[3] [2010] NSWCCA 302

[4] Loc cit [13]

7Leaving aside for the moment the question of penalty, your offending must be assessed in the light of similar cases.  The consignment cost you about US $100  and it was for your personal use consistent with past regular use of GBL together with amphetamines.  There was no commercial element to it.  It was not a sophisticated transaction.  It was easily detected through the use of your own address and your own mobile phone number.

Personal Circumstances

8I turn now to your personal circumstances and background.  You are now aged 36 and have been a very successful businessman over many years.  You were brought up in a loving and supportive family, indeed, they were in court to support you during your plea hearing.  You have two children now aged 12 and six, but you separated from your partner several years ago.  

9After completing secondary school, you studied Information Technology at Victoria University and you and your sister followed your father into his field of real estate.  You worked for Elders for 15 years in Melbourne's outer west as what is known as “officer in effective control” of two offices in Werribee and Tarneit.  

10As business in real estate in that area boomed in the last decade, you worked very long hours under very high pressure.  You had begun to use illicit drugs in a recreational sense during your mid-20s, but this had not been a problem until you experienced burnout from the pressure of work at the end of 2015.  This resulted in what you have described as a breakdown, which came to a head in 2016 when your relationship with your partner ended.  

11You and your sister sold the business, reducing that cause of your stress but making available a large sum of money which then financed your increased drug use.  Your partner remained with the children in the house you had shared and you went to live alone in Altona.  You attempted rehabilitation at a residential course and this was followed by a period of abstinence but you lapsed back into drug use later.  

12You used GBL regularly combined with cocaine and amphetamines and it was at this time that you ordered the consignment from the US.  Your struggle at this time saw the emergence of serious mental health issues and you began counselling with Mr Warren Scott Holland before you were charged.  You had started a car wash business on land you owned in Tarneit but you were not working much at that time.  

13After your arrest you spent 15 days on remand which you found extremely confronting and on your release you took significant steps towards your rehabilitation.  Through Mr Scott Holland you were admitted to a residential rehabilitation service called Habitat Therapeutics, as one of your bail conditions, and while there you suffered a psychiatric emergency requiring assessment at Geelong Hospital resulting in further medical intervention before being able to return to the rehabilitation centre.  After a stay of 60 days there in total your bail conditions were varied and you were bailed to the care of your family with a commitment to stay in recovery from substance abuse.

14This history is set out by Mr Scott Holland in his undated report provided to the court.  His opinion is that during your 10 year period of drug abuse you were in effect self‑medicating for anxiety and depression arising from the demands of your work.  This led to the deterioration in your mental health resulting in drug‑induced psychosis and capitulated into irrational and compulsive behaviours.

15Mr Scott Holland considers that you have remained drug‑free and continued to engage regularly with your psychiatrist and general practitioner, and you regularly attend an ongoing rehabilitation program.  He stated in his report that while living with your parents you are working, caring for your children responsibly, seeing them every day or every second day, and making consistent progress in your recovery.  Other reports confirm these engagements, with a medical report referring to newly prescribed medication for a recently diagnosed condition of ADHD.  Also provided was a log of your attendances at regular meetings of Narcotics Anonymous since last October.

Sentencing discussion

16Your genuine commitment to your recovery over many months and the improvement from your initially precarious state of mental health is a positive indication of reasonable prospects for rehabilitation from offending.  You have no previous convictions and taking all these matters into account there is a reduced need for any focus on specific deterrence.  Because of the nature of the offence and its gravity, general deterrence remains a relevant sentencing principle.  

17It seems you have some insight into the complexities relevant to your rehabilitation and that you are not blind to the likelihood that considerable work still needs to be done.  Your early plea of guilty means you are entitled to a discount on your sentence for having avoided a trial despite the very strong prosecution case.  The progress of the case through the criminal justice system has been expedited by your plea and that has considerable utilitarian value or benefit which must be acknowledged.  I also accept it as an indication of genuine remorse with a tangible demonstration of that emerging through your efforts towards recovery.  

18Your sister, Jessica Costa, has provided a letter referring to your struggle in recent years and your commitment to your recovery, and explaining your return to work in the business you share, as well as your motorcycle business, which you are developing.  Others describe your character in very positive terms and your ex-partner has written to confirm your progress and your commitment to your children.  This evidence is important because support from family and friends in a non-criminogenic environment can be considered an essential contribution to rehabilitation.

19A helpful table of cases was prepared by the defence setting out sentences imposed in the County Court for importing GBL in both marketable and commercial quantities.  Sentences of imprisonment were avoided in several cases covering both types of charge.  In the case of Maxwell, a discussion about current sentencing practice led to the court's conclusion that:

“…consistently lower sentences imposed on importers of GBL can be seen to be reasonably justified by the enormous reward differential…'

20It was accepted that culpability in such cases is reduced as is the need for deterrence in both its forms. Of course the offence is serious and this is evident from the maximum available sentence of 25 years, but the need recognized by the legislature to impose very heavy punishment on drug profiteers does not apply in relation to GBL and particularly not in your case.

21The sentencing submission by your counsel was for a non-custodial sentence and the prosecution agreed that such a disposition was open.  You have been assessed as suitable for a Community Correction Order and I shall impose that order in the following terms.  

22Would you stand now please, Mr Costa.

23The CCO will cover both of the offences and convictions will be recorded.  In fact, there will be two CCOs.  Technically that's necessary because one charge is a Commonwealth charge and the other is a state charge, but both orders will be in the same terms.  

24The orders will begin today and will last for two years.  You will be under supervision and you will be required to perform 70 hours of unpaid community work.  

25You will also have treatment for drug abuse and attend for mental health treatment.  Any time you spend in treatment may be credited towards the completion of your community work.

26Finally, you must return to court from time to time for judicial monitoring.  In other words, appointments will be made for you to appear before me in the absence of any lawyers but in the presence of your case manager from the Office of Corrections who will provide a report for me as to your progress. 

27You must report to the Sunshine Corrections office by 4 pm on Monday 20 May, that's this coming Monday, at No.10 Foundry Road, Sunshine.

28If you were to breach the order, either by non-compliance or by further offending, you will be charged with the offence of breaching it, and if it is proved you may be resentenced for these offences.

29I must apply a discount under s.6AAA of the Sentencing Act for your plea of guilty but because I have imposed a Community Correction Order I need only state that I have taken that plea into account in determining this sentence.

30In determining the length of the community correction order, and indeed the actual sentence itself, I have also taken into account that you spent two months in residential drug rehabilitation.  

31It only remains, I think, to fix a date for the judicial monitoring.  I'll turn to that in a moment but just let me check whether there are any other matters before I ask you to sign the order, Mr Costa.  Anything else, Ms Hogarth?

32MS HOGARTH:  If I could just have a moment to confirm the condition that the 70 hours community work, whether that can be imposed on the CCO in relation to the federal offence?  So I'd be grateful if I can just clarify that point.

33HER HONOUR:  Yes, certainly, but it's easy to just apply that to the state order.

34MS HOGARTH:  Yes.  Perhaps that might be the easiest course.

35HER HONOUR:  All right.

36MS HOGARTH:  Thank you.

37HER HONOUR:  Thanks, Ms Hogarth.  Mr Adrianakis, anything else?

38MR ADRIANAKIS:  No, Your Honour.

39HER HONOUR:  All right.  Now because of that little technical hitch there, it might take a moment for my associate to produce those typed orders.  I'll just see what the story is there.  Yes. 

4025 July for judicial monitoring, Mr Costa.  So you come along here on that date.  You'll get a chance to discuss that with your Corrections case manager and whoever that person is usually appears on the video screen there.  You come here into court and we have a discussion about your progress there.  

41OFFENDER:  Thank you, Your Honour.

42HER HONOUR:  Just take a seat now while the orders are being prepared for your signature.

43ASSOCIATE:  We just have to correct something, Your Honour.

44HER HONOUR:  Mr Adrianakis, they're ready now if you'd like to go with my Associate.  There's a part that's been scratched out and I've initialled that, so perhaps your client could initial that as well.  That's everything now.

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