Director of Public Prosecutions v Toscano

[2022] VCC 1184

HER HONO

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-00564
CR-19-02510

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALBERT TOSCANO

---

JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2022
DATE OF SENTENCE:	26 July 2022
CASE MAY BE CITED AS:	DPP v Toscano
MEDIUM NEUTRAL CITATION:	[2022] VCC 1184

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Sentence – Cultivation of a drug of a narcotic plant (cannabis) – Theft of electricity – Possess prohibited weapon – Possess controlled weapon – Possess cartridge ammunition without licence – Deal with property suspected of being proceeds of crime – Delay – Guilty plea – Strong prospects for rehabilitation – additional COVID-19 guilty plea sentence reduction

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Sentence:                  Community correction order for period of 3 years, 300 hours unpaid community work; Fines totalling $3,750

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E. Johnson	Office of Public Prosecutions
For the Accused	Mr C. Mandy	Leanne Warren & Associates

HER HONOUR:

1In the early hours of the morning of 10 June 2019, the Fire Brigade was called to a factory in Thomastown. You had leased it, Albert Toscano, since 1 November 2016. The building was on fire. The fire caused extensive damage to the building but thankfully did not spread to the neighbouring buildings. While extinguishing the fire, the fire fighters noticed cannabis growing in some of the rooms in the factory. Police were duly notified. They found cannabis plants at various stages of maturity in five rooms, and other plants or seedlings in other parts of the factory as well. All the grow rooms had fans, lights and power transformers as part of the set up for the growing of the cannabis.

2One of the rooms was extensively fire damaged. Leaving aside what could not be retrieved, a total of 152 cannabis plants and 68 leafy stems were seized from the premises, and they weighed in total 115.98 kilograms. A commercial quantity of cannabis is 25 kilograms, or 100 plants, so the seized cannabis weighed more than four times, and numbered more than one and a half times the threshold fixed by Parliament for a commercial quantity of cannabis. However, a charge of cultivation of a commercial quantity of cannabis requires proof, not only that a commercial quantity was being cultivated, but that the cultivator intended to cultivate a commercial quantity.

3An electricity bypass was connected to the factory, which was used to steal electricity from the power grid. It is estimated the power required to operate the lights, fans and other equipment found at the factory and used for the cultivation of cannabis was 864 kilowatt hours per day. For those of us who are anxiously watching our power bills at the moment, we can see that is a substantial quantity indeed.

4Investigations soon revealed your connection with the premises. A van registered to you, and containing personal and business papers connected to you and your family, was parked inside the factory fence. You were the lessee of the premises, the electricity connection was in your name, and you had been recorded, on a neighbouring factory's CCTV, at that factory for some hours only days before the fire. Investigators later downloaded the contents of your mobile phone, and on that were located images and videos of cannabis, of a cannabis grow room, images of instructions on how to grow cannabis, and photos of you outside two of the grow rooms in the factory.

5It is this that gives rise to charges of cultivation of cannabis and theft of electricity to which you have pleaded guilty. Whilst it is not put on the plea that you were the horticulturalist, you were clearly, as your plea indicates, complicit in the cultivation enterprise. You acknowledge that you had allowed the factory to be used by others to cultivate the cannabis, and that you expected to receive a share of the proceeds of the sale of the cannabis, once harvested.

6Just after the fire on 19 June 2019, police executed a warrant at your home in Reservoir. You had 25 Xanax tablets in your pocket for which you did not have a prescription. This gives rise to Charge 3 – possession of a drug of dependence, namely Alprazolam or Xanax. Police also found a knife, which gives rise to related summary Charge 8 – possess controlled weapon, as well as $1,320 in cash, which gives rise to summary Charge 10 – dealing in property suspected of being proceeds of crime.

7Police also searched your car and found an extendable ASP baton, which gives rise to summary Charge 7 – possess a prohibited weapon. They also found a single shotgun cartridge. You do not hold a firearm licence and this therefore gives rise to summary Charge 9 – possession of cartridge ammunition without a licence. You have pleaded guilty to that third indictable charge and the related summary offences that I have just itemised.

8You were arrested following the execution of the warrant and when interviewed said ‘no comment’.

9One measure of the seriousness of an offence is the maximum penalty prescribed by Parliament. The maximum penalties for cultivation of cannabis, theft and possession of a drug of dependence are 15 years, 10 years and 5 years' imprisonment respectively. The maximum penalty for possessing a prohibited weapon, and for dealing with property suspected of being the proceeds of crime, is 2 years' imprisonment or 240 penalty units; for possessing a controlled weapon is 12 months' imprisonment or 120 penalty units; and for possessing cartridge ammunition without a licence 40 penalty units.

10This was a large crop, and a sophisticated hydroponic setup. Whilst you fall to be sentenced for cultivation, not commercial quantity cultivation, the size and scale of the enterprise, the number of separate grow rooms (five), the number of lights, fans and other equipment and the energy used to power all of that equipment is all nonetheless an indicator of the size and scale of the operation appropriate to take into account when assessing the objective gravity of the offence of cultivation, to which you have pleaded guilty. The plants were at different levels of maturity, again indicating that level of sophistication, which involved planning and ongoing attention.

11It is in my view of little significance to say, as you appear intent on saying, that you were not the actual hands-on horticulturalist. You provided the premises, and the connection to services which then allowed the illegal diversion of the electricity. You provided in other words a cloak of legitimacy. Your interest and involvement are also demonstrated by the footage and images downloaded on your phone. Clearly you were not an unwilling participant. You were in it, in a clearsighted and calculated way, for the money.  You were not in debt; you were not being stood over. On the evidence before me, you are a good earner and a good provider. The inference is inescapable that you simply wanted more than you were currently making by legitimate means.

12The objective seriousness of this offence of non-commercial quantity cultivation is high. So far as the theft of the electricity is concerned, the diversion not only enabled you to avoid payment for the considerable amount of power required to run the lights and fans and other equipment, but also to avoid detection because the diversion concealed the amount of electricity that was being consumed in order to run the equipment necessary for the cultivation.  And although the cause of the fire in this case is not known, and therefore I do not take it into account as a feature of any of the offences to which you have pleaded guilty, illegal electricity diversions risk fire or electrocution.

13The Xanax possession, and the summary offences are in my view each relatively unremarkable examples of offences of their type and there are no aggravating features that I have identified in respect of any of them.

14It is clear, however, that especially in respect to the cultivation and the theft of the electricity charges, denunciation, deterrence and just punishment must carry weight. And whilst the other offences are not serious examples of their type, as I said relatively unremarkable examples of offences of their type, respect for the law and obeying the rules that apply to all of us is important in a civilised society. And conscious breaches, as all of these offences are, must be seen to carry consequences.

15What then was relied on by Mr Mandy on your behalf to mitigate the weight to be given to the sentencing principles of denunciation, general deterrence and just punishment?

16You are a family man; married and the father of 2 long awaited, much hoped for and much-loved children. You appear to have enjoyed the considerable advantages of being brought up by loving, hardworking and law-abiding parents. You were given and took advantage of a good education. You have been in good employment since you left school.  You have a good job, and a very good record of stable employment. You have a supportive wife, family and friends, all of whom hold you in high regard. Testimonials were provided by many of them and it is clear that they think highly of you and see this as out of character with the man they thought you were.

17You have only one previous conviction, for an offence serious enough in itself – intentionally cause injury – but it is from 2010, a long time ago. That matter was dealt with in the Magistrates' Court and punished by a fine. It is of an entirely different nature to this offending. Save to say therefore that you do not come before this Court as a first offender, that conviction is not something that adversely impacts upon my assessment of your prospects for rehabilitation, or requires the sentence for these offences to be weighted toward protection of the community.  Nor does that conviction add any weight to the weight that should be given to specific deterrence in your case.

18A psychological assessment of you was conducted in preparation for the plea. It is what I would call reassuringly negative. You have no mental illness, personality disorder, intellectual or other disability which either operates to reduce your moral culpability, or negatively impacts upon your prospects for rehabilitation.

19These matters that I have recounted therefore all count as positive evidence of good character and strong prospects for rehabilitation, as well as your offending being out of character with the person you otherwise were, and were thought to be.

20I was told that you had lent yourself to this enterprise at a stressful period in your life, and when you had started to use, and it would appear abuse, prescription medication such as Xanax and Valium.

21Whilst you have, it would appear on occasions in the past, had episodes of what some people would call recreational drug use, substance abuse does not appear to be a problem, or an ongoing problem for you.  In any event, substance abuse neither mitigates the seriousness of this offending, nor does it adversely impact upon your prospects for rehabilitation.

22I accept that you had and were experiencing a series of stressors at the time leading up to the offending, that can contextualise both the cultivation and the theft charges, but I am not satisfied that those stressors and the impact of them on you provide any mitigation.

23The significant, the major factor that had been affecting you in the years leading up to this offending are related to your long awaited and much welcomed parenthood.  Your path with your wife to parenthood was fraught. There were losses. You were told that you would not be able to have children, but unexpectedly your wife conceived again, and this time was able to carry a healthy pregnancy to term and safe delivery. She fell pregnant again, I understand unexpectedly.  This one was a high-risk pregnancy, and your wife was required to be hospitalised for much of the time. There was a serious risk to her life and that of the unborn child.  You were juggling caring for a baby, fearing the worst for your wife and the unborn child while she was hospitalised and then, shortly after the ultimate safe delivery of that second child, your parents unexpectedly needed support themselves, instead of being able to provide support to you. Your father had a very serious accident. His injuries were initially life threatening He was hospitalised for an extended period. For months following the birth of your second child, you spent your nights at his bedside in hospital. You had to take extended periods off work. Despite the joy of these two much-wanted children, life was much harder than you had expected and difficult. That is so for most new parents, even without high-risk pregnancies and parental illness. The daily reality of bringing up two little children is very different from the hopeful prospects that people have, but this difficulty was clearly compounded by the practical and emotional consequences of those significant and unexpected stressors.

24Your assessing psychologist, Mr Armstrong, diagnosed you as suffering from adjustment disorder resulting from those stressors. At the time, you did not seek help but it appears that it was then that you used, or abused Valium and Xanax instead.

25However, the harsh truth is, you were motivated by nothing more than a desire to provide material benefits for yourself and your family, that were more than you could afford. You went into this for the money, for your lifestyle, not because of crippling debt, inability to put food on the table, or even for fear of losing a house or other assets. It was just selfish greed. It is no mitigator to say you wanted more material benefits for your children. They should not be saddled with any responsibility for your decision to profit from illegal activity of this nature and scale. You should give some thought, Mr Toscano, to what you really want to model for these children. Honesty and integrity, or criminal activity for gain.

26Other matters to take into account are these.

27Since being charged you have been participating in counselling, you have had regular attendance and according to the letter from Ms Doyle from On Track, your participation in the counselling sessions with her has been commendable. You appear to have benefited from that and gained insight.

28Also, and of even greater significance is the delay of three years since the fire and being charged.  Three years is a long time in anybody's book to have serious charges hanging over their head, unresolved and I accept, that having spent nearly a month in custody before you were released on bail, the gravity of the offending, the likely consequences of sentencing, and the realisation of the shame attendant upon being visited in custody by your wife and children has added to that impact of delay. Not only did I accept the time in custody made you confront what you seem to have been able to avoid until then, that is the criminality of your conduct, having the prospect of that recurring if three years after the event, when the matter finally comes to fruition for sentencing, is a considerable burden.

29After that nearly a month in custody, you were released on supervised bail, CISP bail, and were under strict supervision. The final supervised bail progress report of 12 December 2019 indicates that you had 'demonstrated a capacity to consistently engage in supports with motivation to do so apparent at the individual level'. As a result, having completed your initial CISP episode, you were deemed not to require further case management and that has been borne out by your conduct since then. 

30You have not been charged with any other offences. There has been, as I understand it, no further trouble. Again, it shows the importance of supervised support for a person straight after being charged with offences and emphasises the importance of CISP bail when it is available to people.

31Although you were charged back in June 2019, the matter did not resolve until February 202.  However there had been ongoing negotiations since at least February 2021, that is 18 months, which included an offer to plead guilty to this main charge of non-commercial cultivation, to which you now have pleaded guilty and which the prosecution accepted in resolution of all charges relating to the cultivation of that crop. Although it would appear that the initial negotiations suggested that the offer did not include offers to plead to the remainder of the charges, lesser charges to which you have now pleaded guilty, it is also clear that the prosecution was not prepared at that stage to withdraw the commercial quantity cultivation charge. I consider therefore that you should get the benefit of the reduction occasioned by your plea of guilty, back to 21 February when those negotiations opened and when you made that offer to plead guilty to the main charge.

32In addition to the usual pre-Covid considerations relating to the sentencing discounts available for guilty pleas, I also give full weight to the added reduction to sentence that should be given by reason of the impact of COVID-19. So that means your pleas of guilty I give weight to not only for the utilitarian benefits, the advancing of the interests of justice, and for an acknowledgment of your guilt, your personal moral as well as your legal responsibility, they also are entitled to additional weight because of the recognition of the impact of guilty pleas on the Covid-related backlogs in this Court, and also significantly, on the impact of people serving term of imprisonment or in custody in these post-Covid times.  The risk of not being able to take your own measures to protect yourself when you are in an enclosed community such as a prison. The restriction in access to facilities, the restriction in time outside cells and the restriction in family visits are all significant impacts and must be properly reflected.

33Had this not been in COVID times, I would have thought, because this was an involvement for profit, on a commercial scale, by a mature adult, and not a case where an exploitable person had been engaged as a crop sitter, or to lend their identity to facilitate the lease of a grow house, that no sentence other than one involving a component of imprisonment immediately served was appropriate. This is despite the evidence of your good character, the delay and the post Covid impact, and the weight to be given to a guilty plea,

34However, the ongoing effects of Covid on the Courts, on conditions in which prisoners must serve their sentence, has led me to conclude that the needs of deterrence, denunciation and just punishment can now be served by way of a lengthy community correction order with a substantial component of unpaid community work for the two most serious charges and significant fines for the others.

35So I have resolved to impose a community correction order on Charges 1 and 2, and fines, some of them substantial, for the remainder of the charges. So far as the quantum of the fines is concerned, on the material before me it would appear clear you have the means to pay, certainly the means to work and pay them off, and fines of these magnitude, in my view, serve as a powerful deterrent as well as marking the punitive purpose of sentencing, whilst properly also recognising your good character and your good prospects of rehabilitation.  So that is the overall sentencing structure that I have chosen.  Could you now please stand, Mr Toscano.

36On all charges to which you have pleaded guilty, you are convicted.

37On Charge 1 (cultivation of a narcotic plant) and Charge 2 (theft of electricity), you are sentenced to be placed on a community correction order for a period of three years, and in addition to the core conditions attached to all community correction orders, you are to perform 300 hours of unpaid community work.

38On Charge 3 (possession of a drug of dependence, Xanax) you are fined $1,000.

39On related summary Charge 7 (possession of a prohibited weapon, the baton) you are fined $750.

40On related summary Charge 8 (possession of a controlled weapon, the knife) you are fined $500.

41On related summary Charge 9 (possess cartridge ammunition without licence or permit) you are fined $500.

42On related summary Charge 10 (deal with property suspected of being the proceeds of crime) you are fined $1,000.

43I declare pursuant to s6AAA of the Sentencing Act 1991 (Vic) that but for your pleas of guilty, I would have sentenced you to a total effective sentence of three years imprisonment with a non-parole period of 18 months.

44I make the forfeiture and disposal orders sought.

45Now let me just tell you the terms of the community correction order, Mr Toscano, because I cannot make that order unless you consent to it and that you indicate that you have understood its terms and conditions.

46On those two charges of cultivate a narcotic plant and theft you are placed on a community correction order for a period of three years, commencing today 26 July 2022, and ending on 25 July 2025.

47There are mandatory terms that apply to all community correction orders.  They are firstly, that you must not commit another offence for which you could be imprisoned during the time that the order is in force, and that is just about anything.  That includes serious driving offences, most street offences as well as breaches of the Crimes Act1958 (Vic).

48You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. That means you must not be impaired by drugs or alcohol when you attend on Corrections or at their direction for any appointments or counselling connected with your order, including when you attend for unpaid community work, and you must submit to drug and alcohol testing if directed to do so.

49You must report to and receive visits from the Secretary or delegate.  You must report to the Reservoir Community Correctional Services Centre at Ground floor, 909 High Street, Reservoir within two clear working days after the commencement of this order. That means by close of business Friday.  There is a phone number as well as an address and you must ring Corrections and they will give you a direction as to whether you are to attend by telephone or to attend in person, but the onus is on you, Mr Toscano, to make that appointment, not for Corrections to chase you.

50You must let a Community Corrections officer know within two clear working days if you change your address or your job. 

51You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary of the delegate.

52In addition to these mandatory terms, the following condition applies. You must perform 300 hours of unpaid community work over the period of three years, as directed by the Regional Manager. If you fail to comply with this unpaid community work order condition, the Secretary to the Department of Justice or their delegate may give you a direction to perform additional hours of unpaid community work in accordance with section 83AU of the Sentencing Act1991 (Vic).

53Do you understand those terms and conditions that I have read to you, Mr Toscano?

54ACCUSED:  Yes, Your Honour.

55HER HONOUR:  And do you consent to them?

56ACCUSED:  Yes, Your Honour.  Yes.

57HIS HONOUR:  I am going to ask that that be given to you, Mr Mandy or to Ms Warren, if that can be taken down to Mr Toscano.  Make sure he understands it and then have him sign it please?  Do you have a pen on you, Ms Warren?  Thank you.

58MR MANDY:  May I be excused?

59HER HONOUR:  Yes.

60MR MANDY:  He has signed the order, Your Honour, and consents and I will reinforce everything outside once he has calmed down a bit.

61HER HONOUR:  Thank you.  A copy of that order will be made here and provided to you, Mr Mandy, as soon as I have stood down and once that has been provided to you and handed over to Mr Toscano, he and everyone else is free to leave the Court.

62MR MANDY:  Thank you, Your Honour.

63HER HONOUR:  Now I have made all the orders I was required to?

64MS WARREN:  Yes, there is nothing else, Your Honour.

65MR MANDY:  Thank you, Your Honour.

66HER HONOUR:  And the form in which I have pronounced are correct?

67MR MANDY:  Yes, Your Honour.

68HER HONOUR:  All right.  Mr Toscano, it is a great pity to see a man like you before the Court.  This morning I had to sentence two men, a bit younger than you, who had terrible upbringings.  They did not have parents to look after them, they were shockingly abused and they turned to substance abuse very young.  Their futures had been blighted almost from the time they were born and they are so often the people we have before the Court, because they have not had the benefits of good family, education, good jobs and hope for the future.  It is such a shame to see someone like you, who has got so much going for you, make a decision like this.  And I hope that every day now, when you go home and look at those little girls, you think about being a father to them that they can be proud of, for who you are and what you do, not for the money you provide them, and that everything is done according to a beacon of honesty and integrity, not by what is easy or material gain.  They want love, not money.

69ACCUSED:  Thank you, Your Honour.

- - -