Director of Public Prosecutions v Finnigan Carey

[2018] VCC 238

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01267

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASMINE FINNIGAN CAREY

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 March 2018
CASE MAY BE CITED AS:	DPP v Finnigan Carey
MEDIUM NEUTRAL CITATION:	[2018] VCC 238

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence - obtaining financial advantage by deception (1 charge) – attempted obtaining financial advantage by deception (1 charge)
Legislation Cited:
Cases Cited: Mankovic v R [2010] VSCA 105
Sentence: Convicted and sentenced to an aggregate fine in the sum of $3,000 with a stay of three years.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Solicitors for the Office of Public Prosecutions
For the Accused	Ms H. Keighran	JS Law

HIS HONOUR: 

1In this matter, I set out in my sentence remarks of 22 February 2018 the details of the criminality insofar as Mrs Carey is concerned.  I mentioned her background, the fact that she has no priors, the circumstances that have befallen both her, and Mr Carey, since this criminality and in particular now the circumstances that have befallen the family with the gaoling of her husband.  I did say it is a wonder to me why Mrs Carey, with her background, simply did not stomp on this idea at the start. However one never knows what goes on in families and why people do not take appropriate steps, but the end result is:  despite her background, Mrs Carey did not stop this criminality from taking place.

2The circumstances were by way of impact socially, emotionally and financially quite dramatic at the time of the plea heard in Ballarat.  Given my determination that Mr Carey had to go to gaol, it seemed to me that it was necessary for this plea to be further considered, insofar as the sentence of Mrs Carey is concerned in particular insofar as her young family is concerned being the two boys, Hudson, four, who is now at kindergarten and the infant Jackson who is 18 months.

3The orders are now being signed which essentially eliminate any profit from the sale of the homes - there are two homes in Bendigo.  The circumstances of Mr Carey being in gaol mean that the rent previously paid on the premises in Western Australia, is now not able to be met and as such, Mrs Carey has moved back, fortuitously with her parents who are able not only to house her and her family, but assist her financially.  She has a family debt of some considerable portion, and the obligation of rearing two young children.

4In those very rare circumstance, which I find to be exceptional so as to justify me taking those matters into account, apart from their normal manner in which the impact of a partner being gaoled impacts on all families. See: Mankovic v R [2010] VSCA 105.

5Of course, that does not mean that Mrs Carey should not be appropriately punished for her own breaches, however given the particular nature of the family hardship, it seems to me that - and the attempts by this Court to try and scope an appropriate sentence - in the end reality has to come into this, as was put to me this morning. It would be totally inappropriate, in order to be able to meet the requirements of a community corrections order, that the family be further uprooted and brought back to Melbourne.

6Realistically if I might say, the learned prosecutor on behalf of the Director has accepted that, and indicated that the prosecution has changed its view insofar as the appropriate sentence, and determined, as has been the submission by Ms Keighran, that a fine would be appropriate in all the circumstances.  Of course but for the exceptional circumstances, a more severe penalty would have been imposed on Mrs Carey. I have got no doubt that she fully understands that. 

7Mrs Carey has of course suffered the penalties that I have referred to in the sentencing remarks in regard to both her husband and herself.  Those matters have been exacerbated, as set out by Ms Keighran, to the extent that I now accept that we are dealing with an exceptional circumstances situation.  Mercy and a need to care for two young children must play a strong part in this sentence. 

8Given all the circumstances, I have decided to impose for both offences, in addition to convicting Mrs Carey on both, an aggregate fine in the sum of $3,000.  Such fine will be stayed for a period of three years.  I should make it clear that I expect that fine to be paid, that I will not be keen to hear any applications to serve that by way of community service or in any other manner.  But bearing in mind the financial situation of the family and the fact that at the earliest, Mr Carey will not be back earning income for at least one year, it seems to me that a stay in that order is appropriate.

9Insofar as Mrs Carey is concerned, I have also made the - just the compensation orders, isn't it?

10MR PICKERING:  Yes, Your Honour.

11HIS HONOUR:  There is no forfeiture in this instance?

12MR PICKERING:  There's not, Your Honour.

13HIS HONOUR:  Do I need to do anything else, Mr Prosecutor?

14MR PICKERING:  There was a 464 order applied for which Your Honour declined to make for Mr Carey ‑ ‑ ‑

15HIS HONOUR:  Yes, well, I am not inclined to make it in regard to Mrs Carey, it seems to me.

16MR PICKERING:  I expected the same, Your Honour.

17HIS HONOUR:  For all of the reasons why I did not make it in regard to Mr Carey, that I would have thought we will never see Mrs Carey again in court.

18MR PICKERING:  Your Honour pleases.

19HIS HONOUR:  I am satisfied of that.  Yes.  Ms Keighran, any other matters that I need to attend to?

20MS KEIGHRAN:  No, Your Honour.

21HIS HONOUR:  No doubt a copy of these remarks when they are available will be forwarded by you to Mrs Carey so that she is fully aware of her obligations in regard to this matter.

22MS KEIGHRAN:  Yes, Your Honour.

23HIS HONOUR:  So it will be an aggregate fine for both offences of $3,000, a stay of three years, and I have already made the compensation order.

24Yes, well, good luck now, Mrs Carey. 

25OFFENDER:  Thank you.

26HIS HONOUR:  All right, thank you.

27MS KEIGHRAN:  As the court pleases.

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