DPP v Notaro & Borg [2015] VCC 398 (31 March 2015)


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

DIRECTOR OF PUBLIC PROSECUTIONS

v
CARMELLO NOTARO & JOHNNY BORG

JUDGE:	Grant
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2015
DATE OF SENTENCE:	31 March 2015
CASE MAY BE CITED AS:
MEDIUM NEUTRAL CITATION:	[2015] VCC 398

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Regan	OPP

For Offender Notaro For Offender Borg	Mr C. Helliotis QC with Ms Smith for Mr Notaro Mr G Georgiou SC with Ms Boston for Mr Borg	Lewenberg & Lewenberg

1 Carmello Notaro and Johnny Borg, you have each pleaded guilty to one charge of aid and abet the cultivation of a commercial quantity of cannabis, one charge of assist an offender to dispose of cannabis plants and one charge of possess drug of dependence. The maximum penalties for these offences are as follows:

• Charge 3 – 400 penalty units or five years' imprisonment or both, or if the possession is not related to trafficking, one year's imprisonment or 30 penalty units or both.

2 I have heard a summary of the offending. It is not my intention to repeat the whole summary. The summary is Exhibit B in these proceedings.

2 September 2013, when both of you aided and abetted Romano Nico in the cultivation of a commercial quantity of cannabis. Mr Nico was a friend of yours. He had built an elaborate hydroponic system for growing cannabis in two rooms of a house at 10 Pembrey Road, Cairnlea. He was also using a third room to grow cannabis beneath lights. When the police executed a search warrant on 2 September 2013, they found 151 cannabis seedlings, 49.6 kilograms of cannabis with other unidentified material, and 33.94 kilograms of partly dried female flowering heads. The total weight of cannabis was 92.369kg.

4 Mr Notaro, you assisted Mr Niko at different times by monitoring and maintaining plants and watering and lighting systems; by maintaining hydroponic equipment and supplies; and by getting rid of used containers and supplies.

5 Mr Borg, you assisted Mr Nico at different times by monitoring plants and watering and lighting systems; and by disposing of cannabis related waste items at the Brooklyn Tip.

6 The second charge relates to you both assisting another offender, Ms Kelly Lutze, to dispose of cannabis plants that she had grown at premises in Sydenham. This offending occurred on 2 September 2013, after you had become aware of the police attendance at 10 Pembrey Road, Cairnlea.

7 The third charge occurred on 3 September 2013 when you were intercepted by police in a vehicle owned and driven by Ms Persida Hecker. The police located 988 grams of cannabis in a bucket on the back seat of the car. Mr Helliotis submitted that your intention in possessing the cannabis was to assist Ms Hecker to dispose of the cannabis. Such an intention would be consistent with your behaviour on the previous evening. In addition, the prosecution concede that the cannabis found in the car was not in a form that would be consistent with a trafficking purpose. The fact that the possession of the cannabis was not for the purpose of trafficking is also supported by the penalty imposed on Ms Hecker in the Magistrates’ Court. In the circumstances, I am satisfied that you did not possess the cannabis for the purpose of trafficking. This means the maximum penalty available for this offence is a fine of 30 penalty units or 12 months' imprisonment or both.

8 I make the following brief comments in relation to your offending. First, in assisting Mr Niko in his cultivation of a commercial quantity of cannabis, you became involved in a serious criminal enterprise. Normally those engaged in such offending go to gaol. This is because general deterrence is a paramount sentencing consideration in cases of this type. Secondly, you show through your involvement in the two other offences a familiarity with other cannabis growers and a determined willingness to assist them. After you became aware of the police attendance at Mr Nico’s property, you went to Sydenham to help Ms Lutze dispose of her crop. Then on the very next day, you are found in a vehicle with Ms Hecker and 988 grams of cannabis.

9 Having made these points, I do accept that this case is one of those rare cases where a non-custodial order should be made. I have come to this conclusion for the following reasons:

• In relation to the first offence, you are relatively low-level offenders. You were friends with Mr Niko and you both foolishly agreed to assist him when he needed assistance. He was the principal offender and you did not stand to make any financial reward from the cultivation. Although you did receive cannabis for your own use, you were not rewarded financially for your assistance. I accept the submission of your counsel that your roles in the cultivation are very different to Mr Niko’s and that you are much less culpable than him.

• In relation to the second offence, you were not implicated in the growing of that crop. Your involvement was to assist Ms Lutze in its disposal.

• In relation to the third offence, I note that Ms Hecker was dealt with in the Magistrates’ Court for possession and cultivation of cannabis. She was placed on an adjourned undertaking for 18 months.

• You were both cannabis users at the time of your offending and had been for some years. You were familiar with other cannabis users and you obviously had knowledge of various growers and suppliers. This explains how you became involved in the offending. It does not excuse your involvement.

• After your arrest, you spent 38 days in custody. Neither of you had been in custody before. I accept that it was a chastening experience. Your time in custody was not easy. You moved through various custodial centres and police cells before your eventual release on bail.

• You have both entered early pleas of guilty. I am satisfied that you are remorseful for your criminal behaviour. You have also saved the community the cost and expense associated with a lengthy criminal trial. You are entitled to a sentencing discount for these matters.

• Importantly, you appear before the court with no relevant prior convictions.

• Mr Notaro, you come from a strong, hardworking family. You have a good work ethic. You are a married man and have two young school age children. You have strong support from family and friends. A number of people have written impressive references on your behalf. After your release on bail in October 2013, you established a company called Essendon Truck Services. You started the business with one truck; you now have three.

• Mr Borg, your early family life was not as settled as Mr Notaro’s but to your credit you battled through those early difficulties and completed an apprenticeship in diesel mechanics. You have worked productively in that area throughout your working life. You currently run your own business. The business suffered when you were in custody but you have rebuilt it since your release. You are a married man and have one young child. You have strong support from family members and friends. A number of people have written impressive references on your behalf.

• Both of you have insight into the harm your cannabis use has caused you, and indirectly, your families. You both maintain that you have not used cannabis since your release from custody. Both of you have been assessed by forensic psychologists who express the opinion that you need to participate in ongoing counselling and treatment to ensure that you do not relapse into drug abuse.

• I am satisfied that, providing both of you remain drug free, you are very good prospects for rehabilitation

10 Mr Notaro, will you please stand. You are convicted of these offences and released on a community corrections order for a period of 24 months. You are required to attend an induction appointment at the Broadmeadows Community Corrections Office before 4 pm on 2 April.

• That you will participate in treatment and rehabilitation for drug abuse and dependency; and

• That you will participate in mental health treatment. I have imposed this last condition in response to Mr Newton’s comments that you should continue to participate in counselling and treatment to address your ongoing emotional distress.

12 Mr Borg, will you please stand. You are convicted of these offences and released on a community corrections order for a period of 24 months. You are required to attend an induction appointment at the Werribee Community Corrections Office before 4 pm on 2 April.

• That you participate in treatment and rehabilitation for drug abuse and dependency.

14 I am obliged to tell you both that if you had pleaded not guilty and been found guilty after trial, I would have sentenced to you a period of imprisonment with a community corrections order at the end of that period of imprisonment.

15 I order that you each undergo a forensic procedure for the taking of a scraping from your mouth. Mr Notaro, for the purpose of undergoing that procedure, you must report to the officer in charge at the Broadmeadows Police Station during the four-week period commencing 28 days after today’s date. In your case, Mr Borg, the police station you must attend is the Werribee Police Station, and you must attend within the same time frame. I must explain to you that if you fail to cooperate in the taking of this sample, the police may use reasonable force to obtain it. I make the orders for the following reasons; the seriousness of the offending, the order is consented to and the order is in the public interest.

16 If you can both be seated there, I will prepare the orders, and once you have signed the orders, you will be free to go.

17 Mr Notaro and Mr Borg, you both understand what has happened? You understand the orders of the court?

20 HIS HONOUR: It is most important that you also understand that you cannot afford to breach these orders. If you fail to do what is required under the terms of the order, then the Office of Corrections will bring you back to court on breach proceedings and I will deal with you again for these offences. So it is very important that you understand that you must comply with the orders. The standard condition of these orders is that you cannot commit any further offences. So you will have to be firm in your resolve to remain drug free, because the use of drugs during the period of the order would constitute a breach of the order; do you understand that?

22 HIS HONOUR: So, it is crucial that you maintain your drug free status into the future. I do not want to see you in court again.

County Court of Victoria

DPP v Notaro & Borg [2015] VCC 398 (31 March 2015)