Director of Public Prosecutions v Karakostas
[2020] VCC 847
•12 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01896
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISTIANA KARAKOSTAS |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2020 | |
DATE OF SENTENCE: | 12 June 2020 | |
CASE MAY BE CITED AS: | DPP v Karakostas | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 847 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – trafficking drug of dependence and knowlingly deal proceeds of crime – early plea of guilty – powerful mitigating factors – Community Correction Order imposed.
Legislation Cited: Sentencing Act 1991
Cases Cited: Boulton v R (2014) 46 VR 308, 335
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Foote (Plea) Mr H. Boyd-Wilson (Sentence) | Abbey Hogan, Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J. Dickinson QC (Plea) Mr Z. Zayler (Sentence) | Melasecca Kelly & Zayler |
HER HONOUR:
1 Kristiana Karakostas, you have pleaded guilty to two charges of trafficking in a drug of dependence and one charge of knowingly dealing with proceeds of crime.
2 Each of the charges are serious and that is evidenced by the maximum penalty that may be imposed in respect to those charges on the indictment and that is 15 years’ imprisonment.
3 I shall proceed to sentence you on the basis of the summary of the prosecution opening that is dated 3 April 2020 and exhibited.
4 You were aged 24 at the time of the offending and you are now aged twenty-seven. The co‑accused, Georgia Tripos, was aged 25 at the time of the offending. She has been jointly charged with you. Her matter is the subject of a trial that is listed to commence on 9 November 2020.
5 At the time of the commission of the offences, you were both working together at a real estate agency in Mount Waverley. You had known each other for some years and you were associated with each other from school.
6
In summary, between 1 February 2017 and the time of your arrest, namely
15 March 2017, both you and Tripos were jointly involved in the commission of the offence of trafficking in the drug of dependence, cocaine, in that you entered into an agreement, arrangement or understanding that you would traffick the drug together. You trafficked in cocaine by selling it, agreeing to sell it, offering it for sale, and having it in your possession for sale at the time of your arrest. You would receive orders by mobile telephone and then would either deliver the cocaine or arrange to meet the buyer to complete the sale.
7 Together you advertised cocaine for sale on Craigslist during the charged period.
8 On 22 February 2017, you sold cocaine to a Victoria Police covert operative who had responded to one of your advertisements. Further evidence of your trafficking was located on mobile telephones that were used by you and those phones were seized at the time of your arrest in addition to the cocaine located during the searches police conducted that day.
9 Together with Tripos, you also trafficked in the drug of dependence ethylpentylone by having it in your possession for sale on the date of your arrest, 15 March 2017.
10 At the time police conducted a search of your home, they located a foil lined zip lock bag which had within it two resealable bags containing a brown crystal substance. That substance was later examined and analysed and found to contain 250.3 grams of approximately 86 per cent pure ethylpentylone and 134.1 grams of approximately 95 per cent pure ethylpentylone. The total pure quantity of ethylpentylone, therefore, was approximately 343 grams.
11 Ethylpentylone is a drug of dependence as it is an analogue of pentylone. The commercial quantity for pentylone and therefore its analogues is, and was at the time, 100 grams. Although you possessed a commercial quantity of the drug, the agreed basis of resolution is that both you and Tripos did not intend to traffick in a commercial quantity of it.
12 The full details of the circumstances of your offending are set out in paragraphs 7 to 23 of the Crown opening which I adopt.
13 The cocaine sold to the police operative on 22 February 2017 was sold for the sum of $350 and that was later analysed and found to weigh 0.9 grams.
14
During the search of your workplace conducted on 15 March 2017 police found a handbag belonging to you and in it there was a resealable bag containing
0.5 grams of cocaine. There was also a makeup bag containing seven resealable bags containing a total of 6.3 grams of cocaine and $3,072 cash, and a handwritten note with numbers on it and a drug paraphernalia kit. A black purse at your workplace was found to contain $320 cash. Police seized keys belonging to your BMW as well as an Apple iPhone in your possession and in the possession of Tripos. A Nokia mobile phone was found in the front driver’s seat area of the BMW.
15 You were arrested at your workplace and taken to the Caulfield Police Station where you were interviewed but declined to comment in respect to the allegations.
16 Tripos was later arrested by police while she was driving a vehicle in the vicinity of your home at 61 Valley Parade, Glen Iris. Police located $3,136.70 cash in the vehicle as well as an Alcatel mobile phone and an Apple laptop computer. She was arrested and taken to Caulfield Police Station.
17 When police searched your bedroom at your home, they found a cardboard box with 24 resealable plastic bags containing a total of 21.5 grams of cocaine, a set of electronic scales and multiple empty resealable bags also stored in a box, as well as another bag with a foil lined zip lock bag which had within it two resealable bags containing a brown crystalline substance that was later analysed and found to contain respectively 250.3 grams of approximately 86 per cent pure ethylpentylone and 131.1 grams of approximately 95 per cent pure ethylpentylone.
18 Police also found a further set of electronic scales in a cabinet in your bedroom as well as a post card with writing on it regarding the purity of cocaine and a black notebook.
19 When police arrested Tripos later that day whilst she was driving a vehicle in the vicinity of your home, they located $3,136.70 cash in her vehicle as well an Alcatel mobile phone and an Apple laptop computer.
20 Police subsequently executed search warrant at her home and they found $3,350 in cash in a safe, two notebooks on her desk and two resealable bags containing white powder. One of those bags was analysed and found to contain 0.1 grams of cocaine. In the en suite they found four cocaine purity test kits.
21 Subsequent analysis of all the mobile phones that were seized revealed messages which the prosecution states prove 49 sales or offers to sell cocaine taking place between the charged dates, that is 2 February 2017 and 10 March 2017, including the two occasions involving police covert operatives. The total amount alleged to have been sold was 68.5 grams and a further 7 grams offered to be sold. Each of the occasions are particularised in Appendix A of the opening which identified the relevant SMS messages.
22 The Apple iPhones seized from you both were also analysed and they showed messages between you and Tripos and other items found on your phones showed that you were jointly involved in the trafficking of cocaine on the Nokia mobile phone.
23 During the period you were jointly trafficking cocaine together, there were also a number of messages in which you discussed the purchase of a quantity of another drug of dependence which is referred to as 'm' in the messages. Those messages relate to the purchase of ethylpentylone found at your home on the day of your arrest. The messages indicate that you had arranged to purchase the 'm' for $12,500. Charge 3, trafficking, is put on the basis that the ethylpentylone was in your possession for sale.
24 You are a person who comes before the court with no prior criminal convictions and you have not been charged with any subsequent offences.
25 Following your arrest on 15 March 2017, you were bailed at the filing hearing, which took place on 16 March 2017. Therefore there are two days of pre‑sentence detention.
26 Your matter was the subject of a contested committal hearing and you were committed for trial on 14 September 2018. On 17 September 2018 at the initial directions hearing, you indicated an intention to plead guilty to trafficking cocaine. Ultimately your matter was resolved on 14 September 2019 and on that date you were formally arraigned and entered pleas of guilty to the charged offences. Your plea hearing did not proceed and the matter was subsequently listed. Initially your plea was listed together with your co-accused, Ms Tripos, and the intention was to await the outcome of her trial and then the same judge could deal with the matter.
27 Your co‑accused, Ms Tripos, faces the same charges and she too has no criminal history.
28 Ms Karakostas, the charges for which you face sentence today are serious and the trafficking charges reflect activities involved in the operation of trafficking drug of dependence above that of street level. Your actions were well planned and organised and you trafficked a significant amount of cocaine in the charged period. And, in addition, the amount of the drug ethylpentylone exceeded a low level of that amount of drug. For the reasons explained earlier the charge is trafficking simpliciter. Ordinarily, such trafficking would warrant the imposition of an immediate gaol term. General deterrence, denunciation and the protection of the community are very important sentencing considerations in these types of matters.
29 However, in your case there are a number of compelling mitigatory circumstances that combine such that I have come to the conclusion a term of imprisonment to be immediately served is not warranted. The prosecution sought the imposition of a term of imprisonment but conceded that it was within range for that term of imprisonment to be combined with a
Community Correction Order.
30 Ms Foote, the prosecutor, pointed out to the court the significant amount of drug involved, the period of which the cocaine was sold, namely a six week period, and the fact that the amount of drug involved was far in excess of a trafficable quantity. A trafficable quantity is 3 grams of cocaine. The prosecutor conceded that it was well under the applicable commercial quantity, however. She emphasised that the offending was highly planned involving the advertisement online and had a business-like element to it, that is, the taking of orders and making deliveries. You were intimately involved in the conduct of the business over the charged six week period. There are some 49 identifiable transactions which netted approximately $24,000. In relation to the ethylpentylone, the amount of drug found was well in excess of a commercial quantity, that is 100 grams. The amount found at your home was 343 grams. Notwithstanding, you are being sentenced for trafficking simpliciter, the amount of drug in your possession does place this offence at the higher end for this offence, that is the trafficking of ethylpentylone at a higher level for this sort of offence. It is alleged the offence was committed on one day only but the quantity speaks to the gravity of the offence. I accept the prosecutor’s submission that this is a serious example of this type of trafficking.
31 The motivation for your offending was that at the time you were severely addicted to cocaine and I have had regard to the contents of the reports of Karen Walker, clinical psychologist, and Amanda Brown, drug and alcohol counsellor, and accept that explanation as providing a context to your offending. Whilst providing context it in no way excuses your offending and I consider your moral culpability to be high.
32 By way of personal history, you are the youngest of three daughters. Your parents are of Greek descent. As a child, you had a problematic relationship with your mother who is described in the materials as being highly critical and judgmental. You were raised primarily by your father and have a close relationship with him. Over the course of your childhood you were exposed to family violence, involving physical, verbal and emotional arguments. Often those arguments were triggered by your father’s problematic gambling. Your family environment was described as being highly conflictual in the past. However, in more recent years, you and your family members have been able to connect in more positive way and thus better manage conflict. There were reported difficulties at school with you being bullied throughout school due to your ethnic background. You were able to complete your education and after completing Year 12 you enrolled in a Bachelor of Civil Engineering at Swinburne but withdrew from those studies.
33 You have a strong work ethic and in the past you have been successfully employed in numerous roles. You commenced with your current employer approximately six years ago and you are considered to be a highly valued and well respected employee.
34 John Piccolo, the chief executive officer for Woodards Group, and Peter Kladouris, director of Woodards Mount Waverley, both attest to your good character. They are both aware of the charges that have been laid and they say, notwithstanding the laying of those charges, they consider that you are a person whom they support, both professionally and personally. They both consider your conduct to be out of character. They have expressed the view that your actions were attributable to an error of judgment rather than to the person and values that you represent. They have both observed your transformation and note that you are deeply remorseful and you accept full responsibility for your actions. They consider that you are a person of great future potential and that you have shown immense personal growth and maturity over the three year period since these charges were first laid.
35 You have successful career as a real estate agent representative and you have contributed to the Woodards charitable foundation. Mr Kladouris says that you are a person who exhibits professionalism and enthusiasm and he confirms your integrity. You are considered to be a role model for newer junior staff members. You undertook the future leaders’ training program and trained and competed in and won the Woodards novice auctioneer program for 2019.
36 Following your release on bail, you were subjected to very onerous bail conditions including weekly urine screens. A large bundle of the results of such screens have been filed with the court and I am satisfied that they show you have been compliant and not using any drugs, and there is proper evidence before the court that confirms your current status as being drug free.
37 I have read the numerous references that have been provided, including those provided from your parents together with Emilio Kalimeris, a family friend who has known you for decades, Stella Colledan, a family friend who has known you for 20 years, Anna Alevizopoulos, who has known you for eight years, and your boyfriend, Andrew Patti, who has known you for three years. Each of the referees confirm their expressed opinion is that your offending is completely out of character. They also confirm that you express appropriate shame and remorse for your actions. They also attest to the fact that you have utilised your time well on bail, that you have positively taken steps to address your offending behaviour and that you have developed a deep insight into the importance of decision-making and the implications of those decisions. You now take full responsibility for your actions and have worked hard to change your life completely. I accept their expressed opinions.
38 You have consistently received drug and alcohol counselling, initially following your release on bail with Denise Abadee, a drug and alcohol counsellor, and then when she was no longer able to support you, Amanda Brown has supported you.
39 Ms Brown's observation is that you are a professional woman who lives with her parents and her partner while saving to buy her own home. You are stable, both mentally and emotionally. She considers that you have worked hard towards becoming the woman you want to be in the world and that you are well on your way to achieving this. She noted that you suffer anxiety. She says that it is evident through numerous counselling sessions that she has had with you. Your involvement with the drug using subculture was compelled by your desperation coming out of an emotionally, physically and verbally abusive relationship.
40 She says that you are considered to be well rehabilitated. You have removed yourself from previous known drug users and have developed a life worth living. She describes your efforts as being exemplary in your recovery and you have made very positive changes. She confirms your active engagement in treatment and says that you are in the maintenance stage of change and that you present with great determination to live well. She considers that you are well on your way to reclaiming your life. I accept her expressed opinion and I consider that you have realised your commitment to rehabilitation and reclaiming your life.
41 She says that it is well known that it takes two years for a person to fully recover from substance use disorder. You are now three years drug-free as evidenced by the results of the urine screen results, so that you are considered to be recovered.
42 Ms Walker, clinical psychologist, has regularly treated you. She noted your history commencing using drugs when you were around 18 years of age. Initially using prescription drugs and smoking cannabis and starting to use cocaine when you were aged about 24. You started one New Year's Eve and you became reliant on cocaine as a form of escapism from negative emotions and low self-worth. She references the toxic intimate relationship that you were involved with and states that your reliance on cocaine became problematic, such that you were dependent on it for daily functioning. She confirms that you are now in a supportive relationship and that relationship is a loving, respectful and caring one. She indicated the possibility that you were suffering a set of symptoms at the time of the offending that meant that you might have met the criteria for a diagnosis of major depressive disorder, with severe mixed anxiety.
43 As was discussed in the plea hearing with your counsel, Mr Dickinson, I do not consider on the material before the court that you were suffering such a condition, such as to reduce your moral culpability. I do not consider that the principles of Verdins have been enlivened by reason of a mental condition that was operative at the time of the offending.
44 However, I have still taken into account in a general sense the matters that have been raised in the various reports. And as I said earlier I accept it provides some proper context and explanation for your behaviour, including your addiction to cocaine at the time of the offending.
45 Overall having regard to the many positive steps that you have taken to address your underlying offending behaviour in the three years since the laying of the charges, I consider that you do have excellent prospects of rehabilitation.
46 I have also noted the significant number of protective factors that will guard against you reverting to drug use and offending in the future.
47 I consider that you are a person who has made major life changes, you have reassessed your values and you are now committed to a more law abiding lifestyle. I consider the risk of reoffending is negligible.
48 You are fortunate in that you have a strong and supportive relationship with your boyfriend as well as the strong support of your parents and the further support of your employers. You have progressed your career in a positive way and you have realistic future goals.
49 The prosecutor conceded that there are powerful mitigating factors at play here and that you have demonstrated excellent commitment to your rehabilitation whilst on bail and that that bodes well for your future.
50 Overall, my conclusion is that the exhibited rehabilitation is of a very impressive kind that can only be described as exemplary. You have taken every opportunity to atone for your offending and you have accepted responsibility for your actions. And I consider that that is a very powerful reason why a term of imprisonment ought not be imposed in the circumstances of your case.
51 I have had regard to the timing of the plea. I consider that it was entered at a time when appropriate charges were formulated and can therefore be seen to be entered at an early stage in the proceedings. There is real utility in your plea. You have spared the cost and inconvenience of a trial and you facilitated justice and therefore your sentence will be discounted accordingly.
52 You have used the delay in between the laying of the charges until sentence in a very positive manner and have been able to demonstrate your powerful rehabilitation.
53 At this point in time, to impose a disposition that would require you to serve a term of imprisonment would be counterproductive and could possibly destroy the results of your rehabilitation.
54 I accept that you are genuinely remorseful and that is in part reflected in the plea of guilty but also in relation to the expressions of remorse that is evidenced through the various comments made by referees that I referred to earlier in my sentencing remarks. You are a person who has no prior criminal history and I have taken your otherwise good character into account. Your lack of prior criminal history is relevant to your prospects of rehabilitation and that combined with the very significant steps that you have taken to address your addiction to cocaine and drugs, which led to this offending, means that I consider that your prospects for the future are excellent. I consider that this has been a real wake up call for you and your arrest has been a real catalyst for significant change in your life. You are a person who has proper insight into the offending behaviour and the need to be more law abiding in the future.
55 I am mindful that you are still relatively youthful at the age of 27 and your rehabilitation is an important consideration. It is important that you continue your life as it has evolved over the past three years and that you continue to build your life as a responsible citizen who has the ability to contribute greatly to our community in the future.
56 Overall, because of your remarkable progress whilst on bail and your self-rehabilitation, I consider that the most appropriate sentence in all the circumstances is the imposition of a Community Correction Order.
57 Such an order will minimise your risk of reoffending and advance the public interest in the community’s protection.
58 I have had regard to the guideline judgment of Boulton[1] and I consider that in all the circumstances a Community Correction Order is appropriate and just punishment. As was stated by the Court of Appeal in Boulton, a Community Correction Order offers a sentencing courts the ability to:
'… choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence'.[2]
[1]Boulton v R (2014) 46 VR 308, (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
[2]Ibid 335 [113].
59 The court in Boulton did foreshadow that a Community Correction Order may be suitable, even in cases of relatively serious offending, which might previously have attracted a medium term of imprisonment and that is the case here.
60 Given the powerful nature of the mitigating circumstances that are present in your case, I do not consider that the requirements of sentencing could only be met by the imposition of a term of imprisonment.
61 The fact that a Community Correction Order is to be imposed is not to deny that your offending was of a nature that would ordinarily attract a sentence of imprisonment. It is only because of your significant and compelling mitigating factors and your extraordinary efforts and evidence of demonstrated rehabilitation that a Community Correction Order is being imposed.
62 I have also had regard to the fact that you consented to a forfeiture order in relation to the cash, $3,392 found in your possession, being the proceeds of crime the subject of Charge 2 and the forfeiture order in respect to the BMW being a vehicle that was registered to a company of which you were the sole director and shareholder. The prosecution submit that the vehicle is tainted property as it was used in connection with the commission of the offence of trafficking cocaine (Charge 1) and orders or forfeiture will therefore be made. I have had regard to that fact in sentencing you in accordance with s.5(2A)(a) and (i) Sentencing Act 1991.
63 I was informed that the BMW has an estimated value of approximately $20,000.
64 I will now proceed to announce the formal court orders. In relation to
Charge 1, traffic drug of dependence; Charge 2, knowingly deal proceeds of crime; and Charge 3, trafficking drug of dependence, you will be convicted and ordered to be placed on a Community Correction Order for a duration of three years with the condition that you be subject to supervision and that you undertake 150 hours of unpaid community work.
65 Give your significant efforts in relation to dealing with your underlying offending behaviour, I do not consider there is any need for any further conditions as I am satisfied, having regard to the evidence of the court, that you have made significant steps in your rehabilitation over the duration of the time that you have been on strict supervised bail conditions.
66 I make the forfeiture order sought.
67 I believe that covers all the orders I must make. I have the forfeiture orders here and I will sign those and they will be scanned and returned to the Crown.
68 So that concludes my sentencing remarks. Has Ms Karakostas received the Community Correction Order that I have made?
69 MR ZAYLER: She has, Your Honour.
70 HER HONOUR: And has that been - can that be signed now?
71 MR ZAYLER: Yes, it can, thank you. Sign there. She signed that order,
Your Honour.
72 HER HONOUR: Thank you very much. What will be required now is that she will have to make the contact with the Community Correction Service, as indicated in the email message that has been sent to your office through my associate. Once she has done that, Mr Zayler, she's completed the first step in the Community Correction Order and then she will be guided by the Community Correction Officer about the future, in terms of what requirements there are. They are somewhat different because of the COVID-19 pandemic. But I understand they will be expecting a call - so by Monday? All right, I think - and it's 2 o'clock? All right. I am informed by my associate that she rings the number given within the next two clear working days. So that will probably go up to Tuesday, then appropriate arrangements will be put in place for her to be inducted in relation to her order and to be fully informed as to the requirements of the order. That concludes the matter.
73 MR ZAYLER: Thank you, Your Honour, I'll forward the document back to Your Honour's associate once it's scanned.
74 HER HONOUR: Thank you very much. And - - -
75 MR BOYD-WILSON: Your Honour, just in relation to the length of the CCO, I think given it's two years or more a 6AAA declaration may still be required.
76 HER HONOUR: Right. Well, in terms of a s.6AAA declaration, but for the plea of guilty I would have imposed a term of imprisonment of three years, to serve 18 months.
77 MR BOYD-WILSON: As Your Honour pleases.
78 HER HONOUR: All right, thank you for that. That concludes my remarks. There's nothing further I believe.
79 MR BOYD-WILSON: No, Your Honour.
80 MR ZAYLER: No, Your Honour.
81 HER HONOUR: All right, good, thank you very much. We can now discontinue the link.
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