Director of Public Prosecutions v Justin Mammarella
[2022] VCC 1110
•14 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-01691
Indictment No: J13252836
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN MAMMARELLA |
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 July 2022 | |
DATE OF SENTENCE: | 14 July 2022 | |
CASE MAY BE CITED AS: | DPP v Justin Mammarella | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1110 | |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: conspiracy to attempt to pervert the course of justice; perjury; summary
charge possession imitation firearm; plea of guilty after sentence indication hearing; parity of
co-offender sentence; Community Corrections Order.
Legislation Cited: Sentencing Act 1991 (Vic);
Cases Cited: Nazir Shiryar v The Queen [2022] VSCA 96 at [38]; Worboyes v The Queen
[2021] VSCA 169 at [39]; Boulton v The Queen (2014) 46 VR 308; Borg v The Queen [2020]
VSCA 191.
Sentence: Convicted and Sentenced to a 3 year Community Corrections Order and fined
$600.00
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Office of Public Prosecutions |
For the Accused | Mr C. Terry | Slades & Parsons Criminal Law |
HER HONOUR:
1Justin Mammarella you have pleaded guilty to one charge of conspiracy to attempt to pervert the course of justice and one charge of perjury. And also, to a related summary charge of being in possession of an imitation firearm whilst not authorised to possess it.
2You pleaded guilty to those charges on 11 July 2022.
3The agreed facts upon which I sentence you are set out in detail in a Prosecution Opening Summary tendered on your plea but suffice to say as follows.[1]
[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.
4On 6 September 2017, a newspaper article reported allegations that false invoicing and branch stacking schemes were operating within several state electorate offices, including, without naming it, the Cairnlea Electorate Office of then member of the Legislative Council, Khalil Eideh. The article prompted an internal audit and closure of the Cairnlea office.
5You did not work in that office, but your father Umberto (known as Robert) Mammarella did, as did two friends or associates of yours, Jeffrey O’Donnell and Angela Scarpaci. Your father and Ms Scarpaci were employed as Electorate Officers and Mr O’Donnell worked as a volunteer.
6In October 2017 the Independent Broad-based Anti-Corruption Commission (IBAC) began investigating activities within the Cairnlea Electorate Office. It was suspected that staff in the office, particularly your father, were channelling public resources into your then campaign for Australian Labor Party (ALP) pre-selection for the Legislative Assembly seat of Melton.
7During its investigation, IBAC obtained surveillance device warrants for your father’s home and car and telecommunication interception warrants for his telephones. Further, on 19 October 2017, IBAC executed a search warrant at the Cairnlea Electorate Office and seized computers and documents, analysis of which indicated that the office photocopier and printer had indeed been used in furtherance of your campaign.
8One of the items seized during the search was a plastic bag containing a total of 713 stamped envelopes divided into 3 separate bundles. Every envelope was found to be addressed to a member of the Melton branch of the ALP, in other words, an eligible voter in the upcoming pre-selection in which you were running. This raised the suspicion, later confirmed, that the envelopes were intended to be used to mail out information about you to eligible voters.
9
Whilst it is not alleged that you knew about the envelopes prior to their seizure, you certainly became aware of them afterwards, including their proposed use in your campaign. On 1 December 2017 IBAC investigators contacted Ms Scarpaci and arranged to meet her on 8 December 2017 at her home. On 1 December 2017, she is recorded telling your father about IBAC’s contact with her and on
6 December 2017 discussing with you and your father what she proposed to tell them at their meeting.
10On 3 January 2018, Mr O’Donnell met with IBAC investigators. During several recorded conversations between you, your father and Mr O’Donnell after this meeting an idea was developed to tell IBAC a false story that the envelopes were intended to be used for a mail out for an organisation called Autism Plus, rather than, as was the truth, to send out material in support of your campaign. Mr O’Donnell was the one who came up with the idea and you enthusiastically adopted it, telling him, amongst other things, that he was a ‘fucking genius’. You then told Ms Scarpaci of the story and Mr O'Donnell even prepared a false Autism Plus letter to show to IBAC if necessary. Ms Scarpaci is recorded on 15 January 2018 confirming with your father and Mr O’Donnell her knowledge of the plan.
11
Over the next few months, at different times, your father, Mr O’Donnell and
Ms Scarpaci, discussed the IBAC investigation and the proposed false story about the envelopes. These conversations continued even after you and the others were served with IBAC summonses and Confidentiality Notices, the latter prohibiting disclosure of matters relating to the IBAC examination, even including the fact of the examination. Your summons and notice was served on you on 6 February 2018.
12In due course, each of you attended for examination at IBAC in response to your summonses and each of you did give that fabricated story as you had agreed.
13Mr O’Donnell and Ms Scarpaci’s initial examinations were on 19 February 2018 and they both told IBAC the envelopes were intended to be used for a mail out relating to Autism Plus. Ms Scarpaci maintained the story in later examinations on 30 May and 5 June 2018.
14You were examined on 22 February 2018 and falsely swore that:
· no-one other than your wife, employer and lawyer knew that you were attending the IBAC examination; and
· you were not aware of the envelopes found in the Cairnlea electorate office.
15On 23 May 2018 IBAC investigators executed a search warrant at your home and that is where the summary charge comes in. They found an imitation antique firearm, which I was informed, you purchased about 15 years ago at an antique dealership in Queensland not knowing at that time, that it was illegal for you to possess it, if indeed it was at that time. In essence you purchased it as a collector's item.
16You were examined again by IBAC on 21 June 2018 and at that stage gave the false Autism Plus story about the envelopes.
17Your father was examined by IBAC on 29 June 2018 and gave the false Autism Plus story.
18Mr O’Donnell was re-examined in September 2018, at first maintaining the Autism Plus story but then admitting its falsity. He later made a statement to IBAC to that effect.
19You were charged on summons on 13 December 2018 and following a brief contested hearing were committed to this court on 20 August 2019.
20
Charge 1 relates to your agreement with your father, Mr O’Donnell and
Ms Scarpaci to tell IBAC that false Autism Plus story in relation to the envelopes.
21
Charge 2 is a rolled up charge to cover the false evidence you gave to IBAC on
22 February and 21 June 2018 about who knew you were attending the examination, not knowing about the envelopes and then saying they were for an Autism Plus mail out.
22Following a plea on your behalf it now falls to me to sentence you for your conduct. Your counsel, Mr Terry submitted that a Community Corrections Order was the appropriate disposition and the prosecution agreed.
23In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[2] Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
[2] Sentencing Act 1991 (Vic) s 5(2).
Your personal circumstances24Turning to your personal circumstances.
25You were 42-years-old at the time of the offending and are now 46.
26You were born in Melbourne and grew up in Bundoora, living with your parents and a sister. You describe your childhood environment as ‘safe, supportive and caring’. Your father was an electorate officer and later became a ministerial advisor. Your mother worked as a sewing machinist and in domestic services at a hospital.
27When you were 12 years old you were involved in a serious motor vehicle accident. You sustained multiple broken bones (a broken tibia, fibia, femur, radius and humerus) and spent three months in hospital followed by lengthy rehabilitation.
28Your experience at school was generally positive and you did well academically, completing Year 12 at Greenwood Secondary College.
29After finishing school, you commenced an apprenticeship as a barber/hairdresser, but the injuries from your car accident made it difficult to stand for long periods and you did not finish it.
30At the age of 22, you married your wife, Yolanda, who is a teacher. You commenced studying a Bachelor of Arts at Monash University but postponed your studies when your wife became pregnant. You have three children together, two daughters and a son, aged 23, 17 and 12. You are ‘happily married’ and own your family home in Taylors Hill.
31You had a career in politics until 2018. You worked as an Electorate Officer, and later Advisor, with multiple members of parliament and senators for more than a decade. You were Mayor of Melton Shire Council in 2007, 2010, 2011 and 2012. In a letter of support, Melton Councillor, Kathy Majdlik points out that being elected Mayor in 3 consecutive years was unprecedented.
32After being Mayor, you decided to concentrate on your state political career and held the role of Campaign Project Manager for the Australian Labor Party Head Office (Victorian Branch) between 2013 and 2016. On 15 November 2017 you were officially voted in as the State Labor candidate for Melton in the upcoming state election.
33Seven character references were provided to the court by colleagues, friends and community members, including the letter from Cr Majdlik. The writers attested to your commitment to your family, friends and community. The letters also provided insights into your achievements and work as a councillor and Mayor. Multiple letters noted your work on promoting child protection and wellbeing in your community through fundraising events and a public awareness campaign. They also noted your advocacy in establishing a 24-hour hospital in Melton and provided examples of your support for local community causes, such as facilitating negotiations for a new turf wicket pitch to be established in a neighbouring ward and supporting local faith groups. It appears you are respected and trusted within your community.
34You have had depression and anxiety for many years, but did not seek treatment out of concern about stigma and possible effects on your political career. Finally, in 2018, you approached your general practitioner, who referred you to a psychiatrist, Dr Naveen Thomas. Both your GP and Dr Thomas have provided reports to the Court. Dr Thomas has treated you on a regular basis for Recurrent Depressive Disorder and Post Traumatic Stress Disorder (PTSD) relating to your car accident, since July 2018. You are prescribed Nortriptyline for your depression, which has worked, but you continue to experience PTSD symptoms.
35You do not have – and report never having – any issues with drugs, alcohol or gambling.
36Your most significant physical condition is Crohn’s disease. Dr Robert Chen, gastroenterologist, has treated you intermittently for this condition since 2011. He provided a letter to the Court describing your disease as ‘moderately severe’[3] but seemingly managed with medication.
[3] Report by Dr Robert Chen dated 3 May 2022, 2.
37Upon being advised that it was likely charges were imminent you withdrew your ALP candidacy and stopped working as a political advisor or branch officer. You have since established a consultancy business and continue to serve as a Justice of the Peace.
38You have complied with all your bail conditions and have not been charged with any further offending.
Objective Gravity of your offending and moral culpability
39Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. If there was any doubt about the inherent seriousness of your indictable offences the maximum penalties of 25 years for the conspiracy charge and 15 years for the perjury charge, make it clear.
40Your summary offence is inherently much less serious, carrying a maximum penalty of 5 years. Not only that, I accept the submission of Mr Terry that the circumstances in which you purchased the imitation firearm and the reason for your possession make your case a low end example of the crime.
41Returning to your main offending. It is important to understand what you are and what you are not charged with. There can be no doubt that using public resources to further private political ambition is a form of corruption which must be denounced and deterred. You are not charged with doing that. Indeed, no-one in this case has been charged with that. Even though you were the one who stood to gain, it is not part of the prosecution case that you knew or were a party to anything that was going on at the Cairnlea electorate office to further your campaign, and specifically not a mail out using the seized envelopes.
42What you are charged with is agreeing with your co-offenders to lie to IBAC about the purpose of the envelopes and then doing so, as well as lying about who knew you were attending for examination. You are not charged with lying about anything else that may have been happening at the Cairnlea Electorate Office to support your campaign.
43The importance of IBAC’s role in investigating and therefore preventing public corruption cannot be overstated. By agreeing to lie about the envelopes and then doing so, you and your co-offenders sought to stymie IBAC’s investigation into possible corruption at the Cairnlea Electorate Office. You not only endorsed and adopted a plan to give false evidence to IBAC about the envelopes, you brazenly went through with it. You were sufficiently brazen to go through with it on two separate occasions, months apart and even after IBAC investigators had attended your home to execute a search warrant. There was ample opportunity for you to reflect on your conduct between your two IBAC examinations and desist. However, rather than setting the record straight, in your second examination you lied again. It reflects poorly on you that you were able to maintain your dishonest resolve to this extent.
44Mr Terry explained your behaviour as being borne of concern for your father who was the main target of IBAC’s investigation. His health was poor, his cancer having returned and his prognosis at that time was grave. You knew that telling the truth would implicate him. I accept this was a motivation for you, but as
Mr Terry conceded, this really was no excuse. Further, it beggars' belief that you would not also have been concerned about the potential damage to your political career if it became public that resources within the Cairnlea Electorate Office had been applied to your election campaign.45Whilst I consider you bear a high moral culpability for your indictable offences, I do consider the objective gravity of those offences to fall somewhere less than the mid-range. This is not to say what you did was not serious; it is to recognise that all offences have a spectrum of seriousness and to place yours within that spectrum. In that regard, the gravity of the underlying conduct and the extent, if any, of an offenders involvement in that conduct are clearly relevant factors.[4] Your conduct can be contrasted with, for example, lying to IBAC to conceal one’s own personal involvement in a lengthy and complex corrupt scheme, which would clearly be high end offending.
[4] ‘An attempt to pervert the course of justice in respect of one’s own serious offending is…all the more serious’ Nazir Shiryar v The Queen [2022] VSCA 96, [38].
Current Sentencing Practices and Parity
46To promote consistency of approach in sentencing, particularly, the application of relevant principles, I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both. I have had regard to the cases to which I was referred by Mr Terry as well as the sentences imposed on your co-offenders, Mr O’Donnell and Ms Scarpaci, both of whom received Community Corrections Orders, albeit their role and personal circumstances can be distinguished from yours. The principle of parity requires that your sentence is not such as to give rise to you a justifiable sense of grievance in you. I do not propose to go into the differences between you and your
co-offenders, noting there is a suppression order in relation to one of your co-offenders, save to say that the differences are not so great that you should receive a different type of disposition from them, but are great enough that you should not receive the same sentence. In general terms their mitigating factors warranted a lesser sentence than yours.
Plea of Guilty, co-operation and remorse47You are entitled to a significant discount in your sentence for the fact you have pleaded guilty. Whilst your plea of guilty could certainly not be considered to have been made at the earliest opportunity, you were originally facing more charges and a more serious charge. Your plea of guilty followed a sentence indication hearing before me in respect of the current charges.
48In pleading guilty you have facilitated the course of justice and taken legal responsibility for your crimes. You have saved the community the cost of a lengthy trial and spared witnesses the ordeal of coming to court. There is a significant utilitarian value in your plea of guilty and our Court of Appeal has recently and repeatedly emphasised the need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment where the legal system is under considerable strain.[5]
[5] see,eg, Worboyes v The Queen [2021] VSCA 169. [39].
49I also accept that your plea of guilty is accompanied by remorse.
Your character and risk of reoffending
50
Turning to your character and risk of reoffending. You have no prior convictions, but more than that you are a person of positive good character apart from this offending. As I have already detailed you have made a positive contribution to the community and this offending represents a real fall from grace. Nevertheless, you have re-established yourself and I think your prospects of rehabilitation are excellent.
Other mitigating factors:
51It was urged upon me to take into account the fact that you have lost your chosen career and have suffered the effects of negative publicity, particularly, on your friends and family who have also suffered. I take these matters into account but given they are the natural consequences of your own conduct do not give them much weight.
52Finally, there has been a four year delay between offending and sentence, which must be at least partly attributed to the pandemic. The delay has worked in your favour as you have been able to demonstrate your rehabilitative prospects, however that does not detract from the fact you have had the worry and stress associated with this matter hanging over your head for that length of time. In particular, up until the sentence indication hearing you had the prospect of a term of imprisonment hanging over your head.
Purposes of Sentencing
53I turn to the purposes of sentencing. I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
54Further, when there are multiple charges, such as here, an offender must not be punished any more than is proportionate and appropriate to his or her overall criminality.
55It is clear that community corrections orders have a punitive element and can, in appropriate cases, achieve all the sentencing purposes, including denunciation and general deterrence whilst promoting rehabilitation. The suitability of properly conditioned Community Correction Orders of lengthy duration for serious offences has been affirmed by our Court of Appeal previously.[6]
[6] See, eg, Boulton v The Queen (2014) 46 VR 308; Borg v The Queen [2020] VSCA 191.
56Notwithstanding you have committed serious offences for which the sentencing purposes of denunciation and general deterrence are paramount, having regard to the objective gravity of your conduct, your powerful mitigating factors, including the fact you are being sentenced during the pandemic, and the sentences of your co-offenders, I have concluded that all the relevant sentencing purposes can be met in your case by the imposition of a Community Corrections Order, albeit one that is more onerous than your co-offenders received.
57I have had you assessed for a Community Corrections Orders and you have been found suitable and you have indicated your consent to such an order.
Sentence
58Can you now please stand up Mr Mammarella.
59On charges 1 and 2 on the indictment I convict and sentence you to a single Community Corrections Order. The order will last for three years.
60You are to report to the Sunshine Community Correctional Centre within two working days of today.
61As well as the mandatory conditions, and those mandatory conditions include that you not commit another offence, that you not leave Victoria without first getting permission to do so, that you obey all lawful instructions from and directions of the Secretary and others I have imposed some special conditions and they are as follows:
62You are to be under the supervision of a Corrections officer for the duration of the order;
63You are to perform 375 hours of unpaid community work over the period of the order;
64And lastly, you are to undergo mental health assessment and treatment as directed.
65I direct that all of the hours that you satisfactorily undertake in treatment and rehabilitation be counted towards the 375 hours of unpaid community work. So in other words if you were for example to do 50 hours of mental health assessment and treatment, that would come off the 375.
66Your counsel will explain that order in more detail if you need it to be explained in any more detail. But I must tell you that you need to make sure you comply with that order because if you do not that is an offence in itself, failing to comply with the order and in addition you are liable to be re-sentenced for these offences if you do not comply. Now the Corrections order I have imposed is a long order. So that is largely to reflect the seriousness of your offending, which would ordinarily call for a term of imprisonment.
Summary charge 5
67In relation to the Summary Charge 5 as I have already said I accept the submissions made on your behalf by Mr Terry and I also accept what he says about the reasons why I should not convict you. Without conviction and fine you the sum of $600 in relation to that offence.
Section 6AAA
68If you had pleaded not guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of 2 years with a non-parole period of 1 years 6 months.
69Now are there any matters that I need to cover?
70MR DEVLIN: No Your Honour.
71MR TERRY: No Your Honour.
72HER HONOUR: Well Mr Mammarella have a seat again. I'll sign the corrections order and then it will be brought up to you for you to sign. All right well can I thank both counsel for their assistance in this matter and we'll adjourn the court.
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