Director of Public Prosecutions v Tomani

[2020] VCC 27

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00648

DIRECTOR OF PUBLIC PROSECUTIONS

v

GJERGJI TOMANI

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2020
DATE OF SENTENCE:	29 January 2020
CASE MAY BE CITED AS:	DPP v Tomani
MEDIUM NEUTRAL CITATION:	[2020] VCC 27

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director	Ms T. Saville	Office of Public Prosecution
For the Accused	Mr R. Melasecca	Melasecca Kelly Zayler

HIS HONOUR:

1Gjergji Tomani you are now 39 years old.  You have lived in Australia for the past 10 years.  You purchased a small rural block, a house and shed in June 2017.  The address was 70 Lang Lang Road, Athlone in South Gippsland.  Your father had remained in Greece, he came to Australia on 13 February 2018 on a tourist visa.  He stayed with you at the address.  You left Australia on 18 July 2018 to travel.  You remained out of Australia until 8 September 2018.  Just before that date, you came to learn that the police had come to your property and found a cannabis crop growing hydroponically in your shed.  There had been alterations made to the shed to conceal the crop.  The power had been bypassed.

2Your father was at the premises when the police searched you.  He was arrested for cultivation of the crop, he pleaded guilty and was sentenced by a magistrate to nine months imprisonment.  You have pleaded guilty to the charge of being the owner of the premises who intentionally permitted another person that is your father, to use the premises for the cultivation of cannabis.  This crime has a maximum penalty of five years' imprisonment.  The size of the crop that you are dealt with for is 51 plants that had been under cultivation for about 14-16 weeks, post-nursery as it's described.  Given when you left Australia the plants would have been under cultivation for about two to four weeks before you left.  Your father's plea of guilty was to a total of a hundred and one plants.  The prosecution accept that your father had independently grown a number of plants elsewhere or transported to the property, or planted them after you left.

3You have also pleaded guilty to the theft of the electricity as you were complicit in this bypassing.  You have already paid the energy supply company almost all of the nearly $3,800 that they calculate as the amount lost.  This is a matter to your credit.  Your plea of guilty is of value.  Your response to these charges is indicative of remorse that is remorse for allowing your father to cultivate the crop while he was staying with you.

4You were raised first in Albania, then in Greece.  Your family were olive farmers.  You worked on the family farm first, then in construction before migrating.  In Australia you first worked in hospitality, then as a painter and finally as a Foxtel technician.  You now continue in that occupation.  Your whole work history is to your credit.  You were married for five years up until 2012.  You had no mental health or physical problems.  You have no alcohol or drug problems.  Most importantly, you have no prior or subsequent criminal convictions.  Your previous good character is a very important matter.  It allows me to exercise discretion to give you a second chance, given this is your first and only blemish.  It also allows me to understand that you in effect, seemed to turn a blind eye to your father's exploits.  You are close to and respectful of him as your father.

5Deterrence remains important to anyone involved in crimes of cultivation or crimes connected to the cultivation of cannabis.  Let there be no doubt that cannabis causes significant problems in our community.  With that said, there was merit in what your counsel submitted, that all sentencing purposes could be met with a non-custodial penalty.  Prosecution agreed.  They considered that this crime is that of the lower end of the spectrum of these crimes that are unusual, that is, someone who permits the cultivation of cannabis on their premises.

6I did not have you assessed for a community corrections order, you are working full-time, that could occupy you on weekends.  You are making a contribution in that regard to our community.  In my view, the appropriate sanction for you is a fine.  You were not charged with being the cultivator, you were not in the country for most of the time the crop was being grown by your father.  Proper sentence is one where you have to work in your Foxtel employment, but the money you earn will go to consolidated revenue as part of a fine.  I take into account that you and you alone have repaid the energy company for the theft, some, as I said, $3,800 ultimately will be paid.

7I also take into account that you were remanded in custody and remained there for 27 days.  I have taken that fact into account, but I have not declared it as part of the sentence.  That would to be overly nuance and tailor sentence.  In my view, the appropriate penalty is a fine, I do not tack on some time in prison because of it, but I take it into account in respect of the overall sentence and it plays a role in the deterrent aspect of the penalty.  I propose to impose an aggregate fine for both crimes, they are connected, allowing the premises to be used and the theft of electricity.  I intend to impose the fine with conviction, the fine that I impose is an aggregate for the two crimes, is a fine of $3,000.  I will consider an application for time to pay that. 

8The other application that is before me is the disposal of the items found, well that disposal order will be granted.  Second application before me is that you provide a forensic sample, scraping of your mouth that will enable the authorities to extract your DNA and keep it on a database.  Considered that application to balance the seriousness of the offence and the interests of the justice and in the end given that you are someone who has only committed one offence, but nonetheless you are someone who committed an offence that is hard to detect.  You are someone who is able to move around outside Australia.  So I intend to grant that order and require you to undergo the forensic sampling.  What you have to understand is that when you go to the police station to arrange that taking of forensic sample, that if, having got there, you do not cooperate with them, they are entitled to use – authorised to use reasonable force to get the sample.  Just cooperate, it is just a scraping from your mouth.  All right.  Is there anything else required?

9MR MELASECCA:  Your Honour, does Your Honour nominate a police station because of ‑ ‑ ‑

10HIS HONOUR:  Well it will be one on this thing here, I'll just get to that, yes.

11MR MELASECCA:  Yes, so Doncaster police is a 24 hour and that's close to him I think.

12HIS HONOUR:  We're not giving him ‑ ‑ ‑

13MR MELASECCA:  Do you want – what would you prefer?

14HIS HONOUR:  He can go to any other ones he wants to.

15MR MELASECCA:  Well, no my learned friend says Wonthaggi but he's not – he's not ‑ ‑ ‑

16HIS HONOUR:  It says Wonthaggi.  Yes, he doesn't live there anymore.

17MR MELASECCA:  Well, what's the - he doesn't live there anymore.

18HIS HONOUR:  I see, Doncaster is it?

19MR MELASECCA:  Yes, yes.  Your Honour it might not be the practice of the County Court, but in the Magistrates' Court on a daily basis they simply allow Fines Victoria to manage the repayments.

20HIS HONOUR:  Yes, they'll do that again.

21MR MELASECCA:  Yes, so I think that's the way it's done, I think Your Honour simply imposes the fines and then Fines Victoria contacts him and they make arrangements, Your Honour.

22HIS HONOUR:  Yes, work it out, yes.  All right.  So Doncaster Police Station.  There's a whole – what the authorities do, is give me a whole list of police stations to hand to him.

23MR MELASECCA:  Yes I'll let him know, (indistinct), Your Honour.

24HIS HONOUR:  All right, yes, thank you.  Is there anything else required?

25MR MELASECCA:  No Your Honour.

26MS SAVILLE:  No Your Honour.

27HIS HONOUR:  Had that he pleaded not guilty to these offences and then found guilty of them, I don't think I have to do that, given the nature of the fine.  But
I propose to indicate that had you pleaded not guilty to these offences and been found guilty of them, then I would have imposed a period of imprisonment.

28MS SAVILLE:  If Your Honour pleases.

29MR MELASECCA:  May it please Your Honour.

30HIS HONOUR:  Thank you.  Thank you for your assistance in resolving this matter of bringing the plea on.  If there's nothing further, I'll adjourn and Mr Tomani can leave the dock.  Thank you.

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