Director of Public Prosecutions v Tumino

[2023] VCC 1498

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00829

DIRECTOR OF PUBLIC PROSECUTIONS

v

GIUSEPPE TUMINO

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2023
DATE OF SENTENCE:	24 August 2023
CASE MAY BE CITED AS:	DPP v Tumino
MEDIUM NEUTRAL CITATION:	[2023] VCC

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:             Accessory After the Fact – Possess a Drug of Dependence – Conviction – Deterrence – Denunciation – Gravity of Offences – Mitigation – Plea – Personal Circumstance – Mercy – Fine.

Sentence:                 Convicted and fined $7500; Convicted and fined $500.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Wilson	Office of Public Prosecutions
For the Accused	Mr P. Morrissey SC	Anthony Isaacs

HIS HONOUR: 

1Giuseppe Tumino, you have pleaded guilty to one charge of being an accessory after the fact, the substantive offence being cultivation of cannabis by others who are the principals in an investigation brought by the Australian Federal Police. 

2You also pleaded guilty to possession of methylamphetamine found when you were arrested and there was a search of your house.  Your offending was summarised by the prosecution and amounts to this. 

3You are a real estate agent.  You were the leasing agent for each of the properties that had been converted into cannabis production houses that are the subject charges that others face.  You dealt with a key member of the organised syndicate, an Avdi Molla. 

4On the day of the police raids, being 2 August 2022, police contacted you to ask if you were managing the rental at Newhaven Street and if so, could you provide the tenant's details to the police.  You were informed that the police were concerned about what was going on at the house as the power supplier had advised police of unusual power usage.  You told the police you would email them the tenant's details.  Rather than do this, you immediately, after the call from the police, rang the principal organiser, Molla, and arranged to meet him at a café in Sandringham.  You provided the information to Molla that the police were making inquiries of the tenant because of the unusual power usage. 

5In further conversations, the principal then contacted others in the organisation and ordered or organised for the crop house at Newhaven Street, to be pulled apart so as to avoid the police finding out what was really going on.  There were other calls throughout the afternoon, where instructions were given to cut the plants that were growing there and take away the evidence. 

6The police raid occurred at 6pm.  There were still most of the equipment used in the cultivation and the cut-down plants were located.  The weight of those plants was around 10 kilograms.

7When police searched your house, they found an incriminating note that arose from the police call that you had had regarding the tenants.  They also found the keys to all the relevant grow houses.  You also had a small amount of methylamphetamines which you admitted was for your personal use.

8In any organised crime syndicate, having loyal people willing to pass on information to the principal organisers to assist in avoiding detection is offending conduct that must be deterred and punished.  Your warning to the organisers about the police interest is concerning criminality.  It is not put that you knew or were further complicit in the extent of the organised cultivation at the cannabis grow houses that you managed, but you were corrupt enough to assist the principals to try and avoid detection of the Newhaven premise.  These cannabis grow houses are hard to detect.  To put further obstacles in the way of proper investigations reveals a criminal intent which enables these organised syndicates to prosper.  That said, your role in this entrepreneurial crime syndicate is not put any higher than advising of the police interest due to the unusual power usage. 

9I was told you acted with misguided loyalty by your counsel, misguided loyalty to a valued client.  You had a greater desire to protect this relationship because the COVID pandemic had caused significant financial stress to your business. 

10You were 58, you are now 59.  You have operated as a real estate agent for some years.  You and your ex-wife ran an agency in Mulgrave and were involved in the local community and the school community, that is, the school community of your children and others.  As a consequence of these charges, whether you are able to remain registered as a real estate agent and licensed, is uncertain.  I will refer to this again shortly.

11To continue with your personal circumstances, you are married and have two children.  Your ex-wife provides a supporting letter highlighting your good qualities.  You do have a poor driving record which has seen two sentences of imprisonment imposed, one in combination with a community corrections order.  As sentences of imprisonment there were consequently a recording of convictions.  I do not overstate the fact that you have driving priors and have served terms of imprisonment in 2017 and 2018.  You are not to be re-punished for those past offences.  Rather, those matters impact on whether any sentence I impose ought to be with a conviction or not.  Your counsel urged a non-conviction penalty.  The previous driving offences did not relate to your work as a real estate agent and it seems it did not mean that you could not hold the licences or registrations necessary to operate as a real estate agent. 

12The offending before me is directly related to your status as a real estate agent.  Your counsel submitted that given how your professional life has been, as it were, put on pause, I should impose on you a penalty without conviction to enable you to engage with your professional body to try and re-establish your career.  The prosecution submitted that a conviction was necessary, indeed the prosecution urged that a gaol term be imposed but with immediate release on recognisance. 

13The prosecution submitted your conduct was a serious example of this offence and came with high moral culpability, that is, it was a deliberate attempt to thwart an investigation into crimes occurring in the houses or in the house that you managed.  Your counsel again put it differently saying this was an error and poor judgment to keep an important business relationship going. 

14That is, I must say, hard to accept.  You must have known what Molla was up to so you were trying to protect a relationship that had criminal overtones.  Whether the Real Estate Board takes action against your licence or your registration is a matter for them.  I must punish you and deter others from undermining police investigations to a significant criminal problem of suburban houses being converted and used as cannabis production factories.  I do not ignore that there may be professional implications for you and I have put it into the mix, however given that you have convictions and have been gaoled in recent years, albeit for different sorts of offences, I am, in the end, after considering all the matters put on your behalf, I am not persuaded that your penalty ought be without conviction.  Your counsel urged that a fine or community work be imposed.  As I have said, the prosecution submits a gaol term with immediate release. 

15I have given your case anxious consideration and I deferred imposing a sentence when the plea was done.  In my view, your criminality is most concerning.  There must be proper punishment that articulates the seriousness of the offence and does so by denunciation or a penalty, that is, meets the gravity of the offences.  I must also deter others including others in the real estate industry from engaging in corrupt conduct.  There must be a recognition of your personal circumstances and your prospects as well.

16A gaol term is an expression of those important sentencing purposes as set out in the Crimes Act (Cth) at s 16A, but in a merciful expression of individualised sentencing that recognises the value of your plea of guilty in these COVID times and your personal circumstances at your age, I have decided by a bare margin, to impose a substantial fine with conviction. 

17Charge 3, as it was on the indictment, the only one that you faced, you are convicted and fined $7500.

18Charge 4, the drug possession charge, you are convicted and fined $500. 

19Had you pleaded not guilty to these offences, I would have imposed a sentence of imprisonment of one year with release after serving six months on a recognisance release of 12 months. 

20Is there any other orders required? 

21MR MORRISSEY:  As the court pleases, Your Honour, could I just seek a four week time to pay that.  

22HIS HONOUR:  We do not, I think, engage in those things at the moment.  It all goes to Fines Victoria unless the Commonwealth has a different methodology. 

23MR WILSON:  Not that I am aware of, Your Honour. 

24HIS HONOUR:  Thank you.  Fines Victoria is the people that you discuss all this with. 

25MR MORRISSEY:  Yes.

26HIS HONOUR:  Mr Morrissey, we may have discussed this, but we received a media request from Ashley Argoon from the Herald Sun, who requested the indictment, the summary of the prosecution opening for the plea and defence submissions for the plea.  He wanted CCTV footage and photos.  I think that's a template rather than an analysis of this case. 

27MR MORRISSEY:  I think so, yes.

28HIS HONOUR:  That is unfortunate, but it is the way they operate, so dealing with this case, the indictment contains charges relating to other people and your client.  I don't see any difficulty with it, but I'll hear what you say.  The summary of the prosecution opening deals with all sorts of other things, but the summary that relates to you does not make a lot of sense without it.  It does refer to Moller.  Moller has not sorted his matter out. 

29MR MORRISSEY:  No.

30HIS HONOUR:  He may plead, he may not.  It might not be in the interests of justice that his name is connected to all these offences so there is that.  The defence submissions were the defence submissions, so I ask both of you, you are on your feet, what do you say about the indictment?

31MR MORRISSEY:  The indictment can be released Your Honour, in my submission.

32HIS HONOUR:  Yes.  What about the prosecution opening?

33MR MORRISSEY:  No, it should not be released. 

34HIS HONOUR:  Yes.  What about the defence submissions?

35MR MORRISSEY:  No.  They were really adumbrated in court.  I don't have a major objection to them but they are only part of what was put in court. 

36HIS HONOUR:  Yes, okay.  Mr Wilson, what about the prosecution opening.  I think I have had this in all these things and we often just say it.  Where are we up to with prosecution opening going to either Mr Ashley Argoon or Ms Ashley Argoon, I do not know, of the Herald Sun. 

37MR MORRISSEY:  It is Ms. 

38MR WILSON:  I think in circumstances where the matters still very much live before the courts as far as Mr Moller's concerned and potentially Mr Kotini, I do not think it is appropriate. 

39HIS HONOUR:  Yes, that is true.  All right, the opening contains - because it is a global one and for efficiency and it is appropriate, it connects to various people who have not pleaded guilty, the sentence that I have just announced can be put on a portal which gives them access if they are not here.  That is, if Ms or Mr Ashley Argoon is not here, they can listen to it, they can make the appropriate adjustments to their reporting of it to take Mr Moller's name out of anything that they report.  I expect that would be the case because he has not pleaded guilty, otherwise the indictment in respect to Charges 3 and 4 can be provided to the press.  Thank you.  Anything else? 

40MR MORRISSEY:  No, Your Honour.  May we be excused?

41HIS HONOUR:  Yes, you are excused.  Thank you very much for your assistance.  Mr Tumino, you can come out of the dock and discuss things with your lawyer and head away. 

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