Director of Public Prosecutions v Foulidis & Ors

[2024] VCC 252

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-21-01294
 CR-21-01293
CR-21-01292

DIRECTOR OF PUBLIC PROSECUTIONS

V

NICK FOULIDIS
STEVEN MONTEBELLO

IRENE ACKOVSKI

---

JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2023, 19 December 2023
DATE OF SENTENCE:	29 February 2024
CASE MAY BE CITED AS:	DPP v Foulidis & Ors
MEDIUM NEUTRAL CITATION:	[2024] VCC 252

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – SENTENCE

Legislation Cited: Sentencing Act 1991 (Vic)

Cases Cited:Warboyes v Queen [2021] VSCA 169

Sentence:  Ackovski – 12 month CCO with conditions; Foulidis – total effective sentence of 22 months imprisonment with a non-parople period of 10 months imprisonment; Montebello – 18 months imprisonment with a non-parole period of 10 months imprisonment. 6AAA declarations.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Buckland	Office of Public Prosecutions
For the Accused Foulidis For the Accused Montebello For the Accused Ackovski	Dr M. Gumbleton Mr C. Nikakis Mr S. Ginsbourg	Stephen Andrianakis & Associates Haines & Polites Randles Cooper & Co.

HER HONOUR:

INTRODUCTION

1Nick Foulidis, you have pleaded guilty to one charge of cultivation of a narcotic plant in a quantity not less than the commercial quantity, which carries a maximum penalty of 25 years’ imprisonment.

2Steven Montebello, you have also pleaded guilty to one charge of cultivation of a narcotic plant in a quantity not less than the commercial quantity, which also carries that same maximum penalty; and Irene Ackovski (which is the name under which you have been charged), or more appropriately Irene Nikolova (which is the name you prefer, which I will use), you have pleaded guilty to one charge of permitting use of premises for cultivation of drug of dependence, which carries a maximum penalty of five years’ imprisonment.  Ms Nikolova, you have also pleaded guilty to one summary charge of possessing a prohibited weapon without an exemption, namely a taser, which carries a maximum penalty of two years' imprisonment or 240 penalty units and you have provided your consent to my determining the sentence for that matter.

3The circumstances in which you each came to commit those offences are set out in the summary of prosecution opening for plea dated 27 October 2023 (Exhibit A).  The prosecution also relied on prosecution outline of sentencing submissions dated 24 November 2023 (Exhibit B); prosecution amended sentencing submissions dated 13 December 2023 (Exhibit C); and a timeline of movement in and out of cannabis crop house (Exhibit D).

4In addition to matters developed in oral argument, Mr Foulidis, your counsel relied on:

·     plea submissions (Exhibit 1);

·     addendum plea submissions dated 26 February 2024 with A.F Plan, which I will now receive and mark as Exhibit 1A;

·     sentence indication submissions dated 11 July 2023 (Exhibit 2);

·     neuropsychological report of Dr Staios dated 25 June 2023 (Exhibit 3);

·     neuropsychiatric report of Professor Dennis Velakoulis dated 17 June 2023 (Exhibit 4);

·     letter from (now retired and former treating psychiatrist) Dr Rastogi dated 6 May 2022 (Exhibit 5);

·     psychological report of Mr Mackinnon dated 10 November 2023 (Exhibit 6);

·     letter from Northpark Private Hospital to Dr Chauhan (GP) dated 19 February 2019 (Exhibit 7);

·     letter from Northpark Private Hospital dated 29 August 2023 showing attendances upon Mr Asadi, psychiatrist (Exhibit 8);

·     bundle of character references (Exhibit 9);

·     medical report of Dr Jim Romas dated 15 December 2023 (Exhibit 10);

·     bundle of medical material in relation to your son, Antonio Foulidis, comprising Austin Health Emergency discharge document dated 12 February 2024, medical report of Dr Jim Romas dated 13 February 2024, letter from Taryn (Enhanced Care Coordinator at Headspace) dated 23 January 2024, and correspondence from Shannon Hussain dated 12 February 2024, which I will now receive and mark as Exhibit 19.

5In addition to the matters developed in oral argument, Ms Nikolova, your counsel relied on:

·        plea submissions on behalf of Irena Nikolova (also known as Irena Ackovski) submitted 23 November 2023 (Exhibit 10);

·        psychological report of Pamela Matthews with resume dated 21 November 2023 (Exhibit 11);

·        letter from treating psychologist Kim Carli dated 12 July 2023 (Exhibit 12);

·        bundle of character references (Exhibit 13).

·        Epping Clinic Referral to Mind Up Psychology, and confirmation of upcoming appointments (Exhibit 14).

6Steven Montebello, in addition to matters developed in oral argument, your counsel relied on:

·        revised outline of plea submissions dated 15 December 2023 (Exhibit 14);

·        bundle of character references (Exhibit 15);

·        

psychological assessment report regarding Lucie Montebello dated

11 September 2018 (Exhibit 16);

·        report of Kim Carli, psychologist dated 29 August 2023 (Exhibit 17);

·        2020 Victorian Armed Qualified Bodybuilder results (Exhibit 18);

·        statement of agreed facts dated 14 February 2024 which I will now receive and mark as Exhibit 21.

7I have had careful regard to all exhibited documents, as well as to the matters addressed in the oral plea in mitigation of penalty in respect of each of you.

Circumstances of your offending

8On Tuesday 24 November 2020 at approximately 9.32 am, police investigators attended an address in Healey Drive, Epping, where you, Ms Nikolova, lived with your 10 year old son and your co-offender Mr Montebello, who was and continues to be your domestic partner.  No-one was present at the time of the arrival of police, and on their arrival, they heard a loud exhaust fan operating from the garage.

9Police officers located a key inside the kitchen area, which opened the locked garage door.  Inside the garage, police observed three separate areas that were growing cannabis plants with a sophisticated hydroponic set up, involving LED lighting, a watering system, and exhaust fans.

10There was only one entrance into the garage owing to the way that it was set up, and that entrance is located in the backyard of the property.

11The first of the three rooms was approximately three metres by three metres, and on the right of that room upon entry was three levels of shelving.  On each level there were four trays containing younger sized smaller cannabis plants, and within the 12 trays there 311 cannabis plants.  Towards the left of that room upon entry was a shelf with fertilisers and other chemicals.

12Moving through a door installed to the left of room one, investigators located the second room, which measured approximately three metres by one metre of space.  Inside room 2 was a sophisticated exhaust system, watering system and LED lighting racks above the plastic trays containing cannabis plants.  Forty-nine cannabis plants were located along the back of the wall upon entering room 2.

13The third room was located through a further door installed in room one, consisting of a narrow walkway, which was the third room.  Inside that room were 196 medium sized cannabis plants to the left and right of the door, with LED lighting racks and a sophisticated exhaust and watering system were also located in this room.

14At approximately 10.51am that morning, two botanists from the Victorian Police Forensic Services Centre attended the address, and in total 556 plants with a combined weight of 41.105 kilograms were located and seized.

15Within the garage was a sticky note detailing the required maintenance for the cannabis crop, and two bottles of fertiliser were located near this note.

16An electrical bypass was also located, which was used to power the heating lights of the cannabis crop, and the bypass ensured that the usage was not recorded by the meter.  None of you is charged in relation to that bypass.

17Police seized and analysed CCTV footage from the Healey Drive address.

18The CCTV footage showed you, Nick Foulidis, attending the address regularly in a white coloured Kia car.  You attended the Healey Drive address on 1, 2, 3, 5, 6, 9, 15, 17, 18 and 22 November 2020.  You would park your vehicle on the street or in the driveway, and then you would walk around to the side of the house, to the rear entry of the garage, and then you entered the garage containing the cannabis crop on each occasion.  You spent between 7 and 125 minutes inside the garage during these visits.

19You attended, you went directly to the garage and stayed there until you left.  The actions that you undertook during these visits are the offending referable to your charge, that between 1 November 2020 and 24 November 2020, you cultivated cannabis in a quantity that was not less than the commercial quantity applicable to that narcotic plant.

20On two occasions, that is, 1 and 15 November 2020, you, Mr Foulidis attended the garage by yourself and during the charge period, you could be observed on CCTV footage carrying hoses, buckets, watering cans and large black bags to and from the garage.  On 15 November 2020, you can be seen entering the garage with four empty black bags and leaving 37 minutes later with four black bags that appeared to be full, which you loaded into the boot of your vehicle, and then you left the address.

21On 2, 3, 5, 6, 9, 17, 18 and 22 November 2020, you, Mr Montebello, attended the garage together with Mr Foulidis.  You entered the garage from your co-accused Ms Nikolova's house, as you had been residing there during the relevant period.  On 1 November 2020, you entered the garage by yourself, exiting with a fertiliser bottle which you filled with water, and you then re-entered the garage.  On that and other occasions during the charge period, you could be seen filling a fertiliser bottle with liquid, entering the garage with a hose, removing a black tub out of the garage, consistent with the tubs used to hold cannabis plants, and entering the garage with a bucket.  The actions that you undertook in connection with the garage is the offending referable to your Charge 1, that between 1 November 2020 and 24 November 2020, you cultivated cannabis in a quantity that was not less than the commercial quantity applicable to that narcotic plant.

22

Ms Nikolova, your offending is characterised by the behaviour that between

1 November 2020 and 24 November 2020, being the owner of the land at the Healey Drive address, you intentionally permitted Mr Foulidis to use the land for cultivation of a drug of dependence.

23At approximately 9.50 am on 24 November 2020, whilst the search was in progress, you, Ms Nikolova, pulled into the driveway of your address in your vehicle, and you were arrested by police and cautioned.  On body-worn camera footage operated by police, you were asked who owned the contents of the garage, and you replied “all mine”.  You were then asked how many Cannabis L plants were in the garage, to which you replied “a couple hundred”.

24During the execution of the search warrant, a taser was located in your bedroom, which is the offending referable to your related summary charge of possessing a prohibited weapon without an exemption or an approval.

25You were interviewed by police on 24 November 2020, and you told police that the

house was yours and you lived there with your son, and that you found the taser on the road.

26On 2 December 2020, you, Mr Montebello, were arrested and interviewed at Heidelberg police station, and you made a “no comment” record of interview, which is your right.  On a date in late March 2021, you, Mr Foulidis, were arrested and interviewed at the Mill Park police station, and you denied any involvement with drugs or crop houses, and you told police that you are 'anti-drugs'.  You answered 'no comment' in relation to all questions put about the Healey Drive, Epping address, the search warrant at the address, and the CCTV stills depicting you coming and going from that address.

Pleas of guilty and timing

27

Mr Montebello and Ms Nikolova, you were each charged following interview, and the matter commenced in the committal stream of the Magistrates’ Court in December 2020, followed by you, Mr Foulidis, being charged, following interview in March 2021.  Each of your matters proceeded through a series of hearings culminating in a contested committal in the Magistrates’ Court in June 2021, involving cross-examination of the informant only.  You were each committed to stand trial in this court, and the matter proceeded through a series of directions hearings and was given a trial listing of 17 July 2023.  On 12 July 2023, you,

Mr Foulidis, sought an indication as to the sentence that I would be likely to impose if the matter resolved on your plea of guilty.  You, Mr Montebello, and you,

Ms Nikolova, were arraigned and pleaded guilty to the proceeding charges on 12 July 2023, just shy of one week prior to trial.  On 14 July 2023, you, Mr Foulidis, you indicated that my indication was acceptable to you, and the matter resolved with your arraignment on 14 July 2023.

28Each of you entered your pleas of guilty shortly prior to the commencement of trial, but in each of your cases, I understand that this arraignment occurred against a backdrop of negotiations that had been going on for some time.  Ms Nikolova, whilst this is a late plea of guilty, I accept and take into account that you made admissions to knowledge and involvement in a manner consistent with your plea, at the very earliest opportunity, that is, at the scene of the search warrant execution.  The prosecution was considerably advantaged in the conduct of its case by these admissions, and I also find them to reflect your remorse for your involvement.  I take into account the timing of this plea against that history, and your remorse, and I mitigate sentence on these bases.

29Mr Foulidis and Mr Montebello, whilst your pleas of guilty were entered at a late stage of proceedings, they were still of considerable utilitarian benefit, in that they saved the police and the other expert witnesses in this case, the court and the community the time and expense of a trial.  In respect of the two of you, I also find that these pleas are accompanied by remorse, and I mitigate sentence on each of these bases.

30Further, in respect of each of the three of you, I take into account the special significance and utilitarian benefit of your pleas at the point in time that they were entered, when the unfortunate effects of the COVID-19 pandemic continued to linger upon the listing of trials, which is to say I have afforded a discount consistent with the principle in Worboyes v The Queen.

Personal circumstances

31Mr Foulidis, you are now 56 years of age, and were 53 at the time of your offending.  You were the third child of four born to your parents, who are both of Greek origin.  I understand that when you were aged seven, you travelled to Greece with your maternal grandfather and, after some time there, your parents decided to leave you in Greece in the care of your maternal grandparents.  You lived with your grandparents for six years, and understandably you felt the separation from your parents, as you thought they would come over and visit you.  When you returned at the age of 13, you could not speak English, and you felt that your own family felt strange and looked strange.

32You then lived with your parents and siblings, in the northern suburbs of Melbourne.

33Your father passed away at 65 years of age in 1998, your grandmother passed away in 2000, an auntie died tragically in 2012, and your mother passed away after suffering vascular dementia at the age of 80 in 2021.

34You maintain good relationships with your three siblings, who all reside in Melbourne.

35Whilst you lived in Greece, you attended a local school, and upon your return to Australia, you attended Lalor High School, completing Year 10.  You found your high schooling challenging, as you did not speak English.  You do not now possess effective literacy skills in either Greek or English, but you can speak both languages fluently.

36After leaving school, you worked in various roles in labour, including concreting and in bricklaying, and you also worked as a licensed crowd controller in various venues around Melbourne.

37Unfortunately, you suffered what you described as 'a breakdown' at around 24 years of age, in approximately 1991, and you have found it impossible to maintain steady employment since that time, and you have received the Disability Support Pension for at least two decades.

38You are the proud father of two children, Anthony, now aged 16, and Helen, now aged 17.  Your son lives with you.  For the last two years, you have had a partner, but you live separately.

39Since your twenties, you have received medical treatment from a psychiatrist and general practitioners for your vulnerable mental and cognitive health.  I understand that you have at various times been diagnosed with depression, anxiety, panic attacks, personality disorder, obsessive compulsive disorder, and agoraphobia.  You have in the past been prescribed various psychotropic medications, including antidepressants and antipsychotics.  You were admitted as an inpatient to the Northpark Hospital for psychiatric treatment in 2021.

40I have the benefit of a series of reports from your treating practitioners which document your commitment to psychiatric care, in the care of Dr Dileep Rastogi from June 1994 until 2010, and then in July 2017.  He has told me that you would see him with acute and severe symptoms of anxiety, fears and phobias, and concerns about your bodily health, and notes that you gradually improved, but that you are always vulnerable to periods of crisis.

41

I also have the benefit of a neuropsychological assessment and report from

Dr Mathew Staios, who reviewed you carefully, and has expressed the opinion that your level of cognitive function was affected by head injury in the context of boxing, and your mental health issues, and also your significantly underdeveloped language skills impacted on your ability to learn at a rate similar to your peers.  He observes that during your 40 year period of boxing, you sustained a number of cerebral insults, including multiple concussions and loss of consciousness, which in his view likely further impacted on your limited cognitive resources.  He expressed some difficulty in providing a diagnostic opinion regarding the genesis of any possible level of cognitive function, but expressed the view that it was likely that your level of premorbid cognitive function likely fell within the borderline range.  Fortunately, your MRI brain scan was largely unremarkable, with one exception thought to be consistent with a history of head injury.

42In Dr Staios’ view, you require substantial support to engage in a number of activities of daily living, including meal preparation, attending appointments, and paying bills, all of which are being managed by your siblings.

43Professor Dennis Velakoulis, consultant neuropsychiatrist, also assessed you, and described concerning behaviour on your part, such as fear of food contamination when you attend a restaurant, and fear that medications will have side effects.  He noted that you reported shortcomings with your memory, which he supposed might relate to your underlying mental health issues rather than to an ongoing neurodegenerative disorder.

44I have received a statement from your treating general practitioner, who confirms that you are currently medicated with Pristiq for depression.

45I have been provided with a report from Ian Mackinnon, consultant psychologist, who apparently assessed you by a telephone call, and I must confess that this is the first time I have ever experienced an assessment being conducted via that method.  Mr Mackinnon does not appear to have administered any empirical testing but describes you as presenting with pressured speech, anxious, depressed and labile mood and affect, past trauma, and degraded sensorium and condition.  In my view, the distressing symptoms of your complex psychology, which have haunted you now for three decades, and resulted in over two decades on the Disability Support Pension, warrant mitigation of sentence in the proper application of Verdins principles, as I am prepared to infer and find that a sentence of imprisonment will weigh more heavily upon you than it would a person in full health.  You also experienced trauma and separation from your parents, and birth country in your childhood and adolescence, and I am prepared to mitigate sentence on this basis as well, whilst noting and considering that there may well be an interlinkage between your childhood trauma and your psychological and psychiatric setbacks in adulthood.

46I have been provided with a bundle of material in respect of the medical treatment needed by your son.  His presentation is troubling and I understand your concerns that he requires your care and attention at this difficult time.  He is experiencing mental health setbacks, which have led to decline in his schooling, and he was  unfortunately recently admitted to hospital for thoughts of causing himself harm.  The realisation that you will be separated from him by this sentence has weighed heavily upon him.  I am relieved to note that he is supported in the community by Dr Romas, general practitioner, as well as other supports.  He is currently prescribed Quetiapine.  I accept and take into account in mitigation of penalty that your separation from him during your service of this sentence will weigh on your mind very heavily.

47Mr Foulidis, you have appeared before the court on three previous occasions, in September 1995, where you were fined without conviction for charges of fail to safely store firearm, and possess prescribed weapon; in August 1997 you were placed on a community based order without conviction on property offences, and in June 2014, you were fined without conviction on a charge of possess prohibited weapon without exemption or approval.  Clearly, your involvement in this offence is significantly out of character, and represents a very serious escalation in respect of your past activity.  I have the benefit of a number of character references written by family and friends, who have told me of their concern for your health.  They also describe you as a kind and giving person, supportive of friends and family, and a person who has long volunteered your time in training and exercising others in the boxing ring, including troubled and disadvantaged kids.  You attend church, and also volunteer your time there.  It is clear that you have a loyal and supportive network, and they have assisted me to evaluate your character favourably which provides a fuller picture of your personal qualities aside from the commission of this offence.

48Mr Montebello, you are now aged 56, and were 53 years of age at the time of your offending.

49You were raised in the Sunshine area, where your parents remain.  They are reliant on you for transport to medical appointments, for shopping and other errands.

50You studied at Sunshine Technical College, leaving partway through Year 11, then you entered the workforce and worked initially in casual manual labour, processing lambswool and in a smallgoods factory, before you secured full-time employment with Chep Australia.  You commenced employment as a general warehouse worker, and you are now in a supervisory role after 25 years with the company.

51Twelve months ago you commenced your own gardening and lawn mowing business, working weekends and evenings as a means to earn additional income.  You have two adult children to your former de facto wife, who are now aged 21 and 18, and I understand that your eldest daughter Lucie experiences an intellectual disability with additional cognitive impairments, that is, short-term memory issues.  Your younger daughter completed Year 12 at the end of last year.

52Both of your daughters reside with their mother, with whom you have maintained an amicable and supportive relationship since your separation approximately 12 years ago.  You are now engaged to marry your co-accused Ms Nikolova, and you are stepfather to her 12-year-old son.

53You have no prior criminal history, and I accept and take into account in significant mitigation of penalty that you were prior to the commission of this offence a person of good character.

54I have been assisted in my evaluation of your character by the bundle of references provided by your ex-partner, your daughter, your sister, your niece, your future sister-in-law and co-workers.  They describe you as responsible, a hard worker, and a good provider for the family.  Your sister has told me of your remorse for this offending, and the shame that you have brought upon yourself.  You are well regarded at work, and are a keen bodybuilder, who has enjoyed some success.

55Since committing this offence, you have experienced anxiety and depression, and voluntarily sought counselling in May 2022 with psychologist Kim Carli.  Ms Carli also observes that you are remorseful for your conduct.

56I have been provided with a report in relation to your daughter Lucie’s cognitive abilities, and I note that her level of global cognitive function is in the extremely below average range, leading to a diagnosis of intellectual disability – mild.  I infer and take into account that your time in custody will weigh heavily upon you, as this will represent the first time that you have been unable to provide emotionally or financially to those who depend on you.

57In June 2023, I understand that you made an offer to assist authorities with a statement relating to the involvement of others in the cannabis crop at the Healey Drive, Epping, address.  This offer was made contemporaneously with an offer of resolution to a charge of more modest seriousness than that which you currently face.  A further offer of assistance was made on 10 July 2023, concurrently with an offer to resolve the matter on the basis of the charge proceeding.  Prior to the resolution of the case in respect of each of you, the prosecution solicitor with carriage of the matter agreed to speak to the police informant to ascertain whether you, Mr Montebello, might be needed to provide a statement if the charges against remaining accused did not resolve, however, all remaining accused's matters resolved.  I am prepared to allow some modest mitigation of sentence on the basis of your offer to cooperate, not accepted as it was by the prosecution in the circumstances of the case.

58Ms Nikolova, you are now 42 years of age and were 39 at the time of your offending.

59You are the youngest of three children born to loving parents, a father who was a welder, and your mother, a seamstress.  I have the benefit of an assessment and report from Pamela Matthews, forensic psychologist, and she reports that you describe a happy, close family, who has coped with setback from time to time very effectively.

60

You attended Preston Primary School and Preston Girls High School, completing your VCE.  You worked part-time cleaning at a hairdressers from the age of 13, and then you also worked at a fast-food outlet during your study.  Once you finished high school, you studied Travel and Tourism at Preston TAFE, and you continued to work at the fast-food outlet.  You then discontinued TAFE and worked in sales for a mobile phone accessories importer, followed by a sales role.  In that sales position, you worked your way up the company structure over a period of

10 years.

61You are the proud mother of a son, now aged 13. 

62You took maternity leave for two years after his birth, and then you began to work for your brother’s synthetic grass and gardening business, and you have continued to work for your brother and you currently manage measuring and quoting synthetic grass sales, and you work in a garden shop.

63Unfortunately, your relationship with your son’s father was frightening and acrimonious, and I would understand if you were relieved that it is behind you.  You met your co-accused, Mr Montebello, in May 2019, and I understand that the two of you moved in together during the pandemic lockdown period.

64You have experienced anxiety as a result of your involvement in this offending, and its legal consequences and Ms Matthews expressed the opinion, after performing empirical testing, that your profile indicated clinical levels of mild borderline personality disorder, and you voluntarily sought treatment from Kim Carli, psychologist, in relation to your emotional regulation, distress tolerance, and for fortifying your general coping skills.  You fear a separation from your son as a result of the sentence that I must pass, and you are concerned about the effects on your parents if you are unavailable to them.

65I have indicated that you co-operated with police at the scene of the execution of the search warrant, and took responsibility for the crop.  You also provided the passcode for the CCTV system that led to the detection of others.  On 9 February 2021, you assisted police by identifying your co-accused, Mr Foulidis, as the instigator of the crop, and assisted the informant to locate CCTV footage depicting him.  This led to you, Mr Foulidis, being charged on 30 March 2021.

66Ms Nikolova, I understand that on 4 June 2021, you made a formal statement to police detailing your involvement with your co-accused Mr Foulidis in relation to the crop, and you have since repeated your willingness to give evidence in this case.  I accept and take into account in mitigation of penalty your co-operation with police, and your repeated indications of your willingness to provide assistance in your co-accused's prosecution.

67You have no prior convictions, and I accept and take into account that prior to the commission of this offence you were a person of good character, who has experienced a significant fall from grace.  In evaluating your character, I was assisted by the references provided to me by your family members, your dear friends, and your ex-husband.  They describe you as a respectful and loyal person, who is generous with your time, love and support.  They praise you as a loving and caring sole parent, and loyal and caring daughter to your parents.  I understand that you make yourself available to family and friends, and you have also been described as a dedicated and hard worker.

Objective gravity of each of your offending; moral culpability

68Mr Foulidis, Mr Montebello, I accept the prosecution contention that the cultivation of drugs of dependence in not less than a commercial quantity is a scourge on the community, affecting the health and wellbeing of members of society.  In your case, your offending involved a degree of sophistication involving hydroponics, watering systems, and LED lighting racks.  556 in total were growing in the garage with a weight of 41.105 kilograms.  Here, I note and infer that many of these plants were at a stage of relative immaturity, and I have not been shown any evidence to demonstrate that your involvement had actually provided any financial enrichment to you, as opposed to a promise of enrichment. Each of your roles was subordinate to others who are not before me, and I do not find either of you to be the architect of the crop.

69Mr Foulidis, your role in the enterprise was attending to the plants from time to time, as demonstrated by my summary of your behaviour which I have adopted from the summary of prosecution opening and the timeline of events exhibited in your case.

70Mr Montebello, you were at the time of your offending staying in Ms Nikolova’s house with her, and you also played an important role in this cultivation by supplying water for the plants from time to time and providing maintenance for the crop through those attendances, which I have summarised.  On a number of occasions, you attended the garage with Mr Foulidis, as I have noted.

71Each of you played a vital role in the maintenance of a healthy and significant cannabis crop.

72In respect of moral culpability, this is not a case where it is claimed that either of you had any interest in or need to use the drug of dependence that you were cultivating.  Instead, in your case Mr Foulidis, your involvement was I infer motivated by a promise of financial gain, via an illegal pathway; and in your case, Mr Montebello, it was motivated by your interest in providing support for your partner, who stood to benefit financially from this arrangement.

73Mr Montebello, it was submitted on your behalf that your involvement was limited to acts of cultivation in the first room of the garage, and that not all attendances upon the garage were referable to your acts of cultivation, as you also used the garage for purposes related to your training regime.  I indicated in the course of oral argument that it was difficult for me to evaluate the credibility of this assertion via that method of submission.  In any event, even if that submission is accepted, which I am not in a position to do one way or the other, you were wilfully blind in relation to the plants grown in the other rooms, so for present purposes I do not consider that assertion to make a significant difference as to your moral culpability in respect of your acts of cultivation in the garage.

74In each of your cases, I note that you were experiencing financial pressure as a result of restrictions from lockdowns and the uncertainty of the pandemic.

75Ms Nikolova, as I have mentioned, the gravamen of your offending lies in you facing a different charge to the gentlemen next to you.  You engaged in conduct that permitted the use of the garage on your premises for cultivation of a drug of dependence.  I understand that your temptation to offend related to financial concerns arising from the pandemic, which lured you into a position where you committed this unprecedented behaviour in exchange for a promise of payment. As a consequence of your arrest, your taser was discovered.

76In respect of each of you, I am prepared to infer that your involvement was situationally motivated, and that the court proceedings and sentence I am obliged to impose will have a powerful salutary effect upon you and act as its own deterrent from future offending.  I consider each of your prospects for rehabilitation to be very good.

Relevant sentencing principles; sentencing submissions

77In respect of each of your charges, the case is one in which the need for general deterrence is high; in other words, I am required to send a message to the community generally, through imposing sentence on each of you, to deter others from engaging in this type of behaviour.  I am obliged to give significant emphasis to this objective of sentencing, as well as to the need to denounce each of your behaviour and punish each of you for your offending.

78In respect of each of you, as I have noted, I have found this offending to be situationally motivated and out of your general character.  Accordingly, I am prepared to attach more modest weight to specific deterrence in imposing sentence in each case, and I intend to emphasise rehabilitation in the sentencing exercise in respect of each of you.

79As has been submitted by each of your counsel, a period of time well exceeding three years has passed since your commission of the offences, and during that period of delay, to which none of you contributed, each of you has demonstrated that you have not reoffended.  Accordingly, I attach mitigatory weight to the issue of delay in respect of each of your sentences.

80Mr Foulidis, Mr Montebello, the offence of cultivate in a commercial quantity is a Category 2 offence under the Sentencing Act1991 (Vic). A term of imprisonment must be imposed upon you unless one of the exceptions in s5(2H)(a)-(e) can be established. In respect of each of you, a submission has been made that there may be reasons that are substantial, compelling, exceptional and rare that do justify a departure from the obligation upon me to impose a mandatory sentence, and for me to exercise my full sentencing discretion. I have reflected carefully upon this submission, but in my view it is a point that is unnecessary for me to decide as, even if I were to find those circumstances in each of your cases, having regard to all of the matters that I need to take into account the only available proportionate sentence to be imposed upon each of you is a period involving immediate imprisonment. This is the position that has been urged upon me by the prosecution, and one which I accept.

81Nonetheless, I have reached a conclusion that the relatively unusual circumstances of this case justify the imposition of sentences upon each of you that are at the lower end of the range of sentences properly available to me in the exercise of my discretion.  Further, each of your very good prospects for rehabilitation allow and justify my imposing a long period of parole eligibility in respect of each of you.

82Ms Nikolova, you participated in interviews with officers from the Office of Corrections to determine your suitability for a community correction order.  The Office of Corrections considered that you have a mild to moderate mental health problem or difficulty, noting your documented history of an adjustment disorder with depression and anxiety and borderline personality traits.  Your assessor considered you to be a low risk of reoffending, which is a view I have noted and share, and you were assessed as suitable for a community correction order.

Sentence

83Mr Foulidis, on your charge of cultivate a commercial quantity of cannabis, you are convicted and sentenced to 22 months’ imprisonment, and I order that you serve 12 months before parole eligibility.  Were it not for your plea of guilty in this case, had you proceeded to trial resulting in a guilty verdict I would have imposed a head sentence of two years and six months’ imprisonment.

84Mr Montebello, on your charge of cultivate a commercial quantity of cannabis, you are convicted and sentenced to 18 months’ imprisonment, and I order that you serve 10 months before parole eligibility.  Were it not for your plea of guilty in this case, had you proceeded to trial resulting in a guilty verdict I would have imposed a head sentence of two years’ imprisonment, and I have just heard reference to pre-sentence detention of 17 days.

85Ms Nikolova, on your charge of permitting use of premises for cultivation of drug of dependence, you are convicted and, subject to your agreement, you may be released on a community corrections order for a period of 12 months from today, with conditions that you undertake 100 hours of unpaid community work, and that you undertake assessment and treatment for your mental health, with all treatment hours to be credited towards your unpaid community work. 

86Madam, I cannot put you on the order unless you are prepared to agree.  Would you be willing to enter into a 12-month community correction order and I will oblige you to do those 100 hours of community work and be assessed and treated for your mental health and you will be credited for each hour of participation in mental health towards those community hours.  Would you agree?

87OFFENDER NIKOLOVA:  Yes.

88HER HONOUR:  Thank you, madam, you may be seated.  I will mention though on your charge of possessing a prohibited weapon without an exemption, namely a taser, you are convicted and fined $750.  Were it not for your plea of guilty to the indictable charge, I would have imposed a sentence of imprisonment of six months upon you.

89Now with respect to ancillary orders, just opening them.  I cannot open them unfortunately.  I understand there is a forfeiture and a disposal.  Would you mind reading the schedules aloud in respect of each?

90MR BUCKLAND:  The forfeiture order, Your Honour, relates to Exhibit 2, taser, Exhibit 5, a sticky note, Exhibit 6, a bottle of fertilizer, and Exhibit 18, a Visa bankcard in the name of Courtney Adderley.

91HER HONOUR:  Does anyone need to be heard in respect of that order?

92COUNSEL:  No, Your Honour.

93HER HONOUR:  I will make that, thank you.

94MR BUCKLAND:  And a disposal order and the schedule of that contains Exhibit 1, seven vials of anabolic steroids, Exhibit 8, a sample bag of Cannabis L and
556 Cannabis L plants.

95HER HONOUR:  Thank you.  Does anyone need to be heard?

96COUNSEL:  No.

97HER HONOUR:  I make that order as well.

98MR BUCKLAND:  If Your Honour pleases, thank you.

99HER HONOUR:  Are there any other applications to make orders sought?

100COUNSEL:  No, Your Honour.

101HER HONOUR:  I am going to ask please, Ms Nikolova, to be brought into the

body of the court so that she can sign her order, and the gentlemen will need to be removed from the dock out the back.

102DR GUMBLETON:  Would Your Honour just excuse me a moment just in case I need to raise something with you?

103HER HONOUR:  Yes, by all means.  I am not sure how long we have got.

104Thank you, madam, in the body of the court.  Do you want them back?

105DR GUMBLETON:  No, Your Honour, it was just concerning medication and auditory aides.

106HER HONOUR:  Yes.  Please let me know those immediately and I will add them to the order which I will sign urgently.  To be seen by a general practitioner urgently is no.1.  Number 2 is diagnosis of major depression and psychosis.  That is paraphrasing but it might precipitate urgent attention.

107DR GUMBLETON:  I think the psychosis will get the attention, yes, thank you.

108HER HONOUR:  There is a variation in relation to diagnosis but I will include that.  He is currently taking – I only saw reference to an antidepressant but you might have a more up to date list.  He is currently taking antidepressants and/or antipsychotics.

109DR GUMBLETON:  Yes, thank you.

110HER HONOUR:  Is he at risk of harm to himself or others?

111DR GUMBLETON:  No.

112HER HONOUR:  Is there anything else you might like me to include on the order?

113DR GUMBLETON:  He had headphones.  It is to do with auditory issues.  I'm going to say tinnitus but that's not right.

114HER HONOUR:  I think there was reference to tinnitus at one point.

115DR GUMBLETON:  Thank you, so he has the equipment with him.

116HER HONOUR:  I am not sure if I can include that on an order.  That sounds sort of more of an administrative thing.

117DR GUMBLETON:  I think that's right, Your Honour, I'm just giving you the full picture as to what he has with him to the extent that we can smooth that transition.

118HER HONOUR:  Yes, it will be on the order which I will sign immediately.

119DR GUMBLETON:  I think otherwise those would be the things that I would ask be noted, so thank you.  May it please the court.

120HER HONOUR:  Of course.  Any custody management notes in relation to
Mr Montebello?

121MR NIKAKIS:  No, Your Honour, those have all been overcome with the time that he's already spent in custody,

122HER HONOUR:  Yes, understood.  Counsel for Mr Montebello and Mr Foulidis, you are able to leave, particularly if you have got another commitment.  In relation to Ms Nikolova I am just going to sign the community correction order and then, Ms Nikolova, I will trouble you to do the same.  Mr Ginsbourg, do you have a 10.30 commitment?

123MR GINSBOURG:  No, Your Honour.

124HER HONOUR:  Would you mind just taking her through the conditions, there are many, including, Ms Nikolova, that you attend your Office of Corrections within two business days.

125MR GINSBOURG:  I will do that, Your Honour.

126HER HONOUR:  All right, that is now signed and I will stand down.  Thank you very much.

---