Director of Public Prosecutions v Mammarella

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No: CR-19-01692
Indictment No: J13244315

DIRECTOR OF PUBLIC PROSECUTIONS

UMBERTO MAMMARELLA

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2022
DATE OF SENTENCE:	28 July 2022
CASE MAY BE CITED AS:	DPP v Mammarella
MEDIUM NEUTRAL CITATION:	[2022] VCC 1279

REASONS FOR SENTENCE
‑‑‑

Subject: Criminal
Catchwords: conspiracy to attempt to pervert the course of justice; perjury; plea of guilty
after sentence indication hearing; parity of co-offender sentence; Community Corrections
Order.
Legislation Cited: Sentencing Act 1991 (Vic);
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr D. Sala	Stary Norton Halphen

HER HONOUR:

Umberto Mammarella, on 20 July 2022, you pleaded guilty to one charge of conspiracy to attempt to pervert the course of justice and one charge of perjury.
As you know, your son, Justin Mammarella, pleaded guilty before me to the same charges earlier this month and was sentenced to a Community Corrections Order. As the case against you is basically the same as the case against your son, these sentencing remarks will be very similar to the remarks made in his case.
The 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] Exhibit A.
On 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.
Your son, Justin, did not work in that office, but you did, as did two friends or associates of yours, Jeffrey O'Donnell and Angela Scarpaci. You and Ms Scarpaci were employed as Electorate Officers and Mr O'Donnell worked as a volunteer.
In October 2017, the Independent Broad-based Anti-Corruption Commission (IBAC) began investigating activities within the Cairnlea Electorate Office. It was suspected that you and other staff in the office were channelling public resources into your son's then campaign for Australian Labor Party (ALP) pre-selection for the Legislative Assembly seat of Melton.
During its investigation, IBAC obtained surveillance device warrants for your home and car, and telecommunication interception warrants for your 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 son's campaign.
One 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 your son was running. This raised the suspicion, later confirmed, that the envelopes were intended to be used to mail out information about your son to eligible voters. You accept that you were a party to the envelopes being used in that way.
It was later established that on 24 July 2017, the Cairnlea Electorate Office had purchased 30 generic rolls of 100 $1 stamps from Australia Post.
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 you about IBAC's contact with her, and on 6 December 2017, discussing with you and your son what she proposed to say at their meeting.
On 3 January 2018, Mr O'Donnell met with IBAC investigators. During several recorded conversations between you, your son, 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 son's campaign. Mr O'Donnell was the one who came up with the idea, and you and your son enthusiastically adopted it. Your son 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 you and Mr O'Donnell her knowledge of the plan.
Over the next few months, at different times, you, Mr O'Donnell, and Ms Scarpaci discussed the IBAC investigation and the proposed false story about the envelopes. These conversations continued even after the others were served in January and February 2018 with IBAC summonses and Confidentiality Notices, the latter prohibiting disclosure of matters relating to the IBAC examination, even including the fact of the examination. You were served with your summons and notice on 23 May 2018.
In due course, each of you attended for examination at IBAC in response to your summonses, and each of you gave that fabricated story as you had agreed.
Mr 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.
Justin was examined on 22 February 2018 and 21 June 2018. In February he falsely swore that:
·He was not aware of the envelopes found in the Cairnlea Electorate Office and no-one other than his wife, employer and lawyer knew that he was attending the IBAC examination.
In June, he gave the false Autism Plus story about the envelopes.
You were examined by IBAC on 29 June 2018, and gave the false Autism Plus story.
Mr 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.
You were charged on summons on 13 December 2018, and following a contested hearing were committed to this court on 20 August 2019.
Charge 1 relates to your agreement with your son, Mr O'Donnell, and Ms Scarpaci to tell IBAC that false Autism Plus story in relation to the envelopes.
Charge 2 relates to the false evidence you actually gave to IBAC on 29 June 2018.
Following a plea on your behalf, it now falls to me to sentence you for your conduct. Your counsel, Mr Sala, submitted that a community corrections order was the appropriate disposition and the prosecution agreed.
In 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 circumstances
Turning to your personal circumstances.
You were born in Abruzzo, Italy, a region east of Rome, in September 1949. You are now 72 years old. You are the oldest of a sibship of three.
Your father immigrated to Australia by himself in 1956. The following year, you, aged 7, and the rest of your family followed and settled in Victoria. Both your parents worked; your father made furniture and your mother was a machinist at the Ford Motor Company. Your father passed away approximately 7 years ago. Your mother is still alive, and you are close to her and your siblings.
You went to local primary schools and Fawkner High School. You completed year 12 and started a law degree, but hated it so you left to start work.
You have had a full and varied working life. You worked in sales for 9 years for a company that made communication equipment. You then entered a business partnership with your younger brother for 5 years, and after this venture, worked as an assistant sales manager at Pacific Foods. You then became the organiser of the Italian Pensioner Club for 8 years, and that led to your career in politics, where you worked for three different members of parliament, the last being Khalil Eideh. You worked with him from 16 March 2007 until you were suspended during the internal audit of the Cairnlea Electorate Office and subsequently retired.
You married your wife, Rosalia, in 1973. You have two children; Justin who was born in 1976, and Lara who was born in 1978. Your life now is focused on your family and your health. In that regard, you have numerous complex medical issues. These were detailed in a letter dated 3 July 2022, from your general practitioner (GP) Dr Tadros. You have been diagnosed with epilepsy, type 2 diabetes, hypertension, hypercholesterolaemia, glaucoma, cataracts, pancreatic tumour/cyst, and morbid obesity. You also have obstructive sleep apnoea and have been using a CPAP (Continuous Positive Airway Pressure) machine since 2016. In 2018, you were diagnosed with breast cancer and underwent a mastectomy, following which you developed lymphoedema of your right upper arm. You take Tamoxifen, a hormone therapy drug, for your cancer, and are monitored by the oncology team at Western Health. In 2019 you underwent a Cholecystectomy to remove your gallbladder. Dr Tadros noted that your “wife also contributes significantly to [your] care and endeavours to compliment the formal health treatment and supports [you] receive.” Further, Dr Tadros opines that you require substantial support and ongoing treatment to mitigate the risk of aggravation of your complex illnesses and any time spent in custody would seriously compromise your health and wellbeing.
You were diagnosed in late 2019 as having a severe depressive episode without psychotic symptoms by the Mid-West Aged Care Area Mental Health Service. You took antidepressants for a short while but stopped because of adverse side effects. You were seen by a Registered Nurse from the Mental Health Advice and Response Service (MHARS) as part of the Corrections Order assessment that I ordered after the plea hearing. He noted that you had a low mood, anxiety and stress and had experienced shame, embarrassment and depression secondary to your legal situation. He recommended ongoing mental health assessment and treatment as part of any corrections order.
You own your own home in Aintree with no mortgage. You receive a part government pension and part payment from your own superannuation fund.
Objective Gravity of your offending and moral culpability
Two 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 offences, the maximum penalties of 25 years for the conspiracy charge and 15 years for the perjury charge make it clear.

That said, there is obviously a wide spectrum of seriousness within any offence, and your offences are no exception. In assessing the seriousness of your 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 using the seized envelopes for your son's electoral campaign or with any other misuse of public resources within the Cairnlea Electorate Office. Indeed, no-one in this case has been charged with that.
What you are charged with is agreeing with your co-offenders to lie to IBAC about the purpose of the envelopes and then doing so. You are not charged with lying about anything else that may have been happening at the Cairnlea Electorate Office to support your son's campaign.
The 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. Like the others, you not only endorsed and adopted a plan to give false evidence to IBAC about the envelopes; you brazenly went through with it. I say brazen because you were the last of your co-offenders to be examined by IBAC, meaning you had ample opportunity to reflect on the wisdom, let alone the morality, of the plan to give false evidence but you maintained your resolve to lie. And of course, you did not just lie, you lied whilst under an oath to tell the truth.
Mr Sala accepted that the motivation for your offending was twofold. First, to conceal your own involvement in the improper, if not illegal, use of the envelopes, and secondly, to avoid harming your son's political career by revealing that public resources had been applied to his election campaign. Indeed, political ambition for your son was the reason behind your involvement in the envelopes in the first place, not financial gain for yourself.
Whilst relevant, the gravity of the underlying conduct and the extent of an offenders involvement in that conduct are not determinative of the seriousness of offences such as yours.[3] Your son was sentenced on the basis that he was not involved in the underlying conduct, being the misuse of the envelopes, and in that sense might be considered less culpable than you and your other co-offenders. On the other hand, he was the one who stood to gain not only from the underlying conduct, but also from concealing that conduct from IBAC. Further, he lied to IBAC not only about the envelopes, but about who knew about his examination. The prosecution do not assert that there is any material difference in role between you and your son, and in the end, I do not consider there is much to distinguish the two of you.
[3] ‘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].
Like your son, I consider you bear a high moral culpability for your offences. However, as I said in his case, I consider the objective gravity of the offences to fall somewhere less than the mid-range. This is not to say what you did was not serious; rather, it is to place your conduct within the spectrum of seriousness for the offences. Your conduct can be contrasted with, for example, lying to IBAC to conceal involvement in a lengthy and complex corrupt scheme, which would clearly be high end offending.
Current Sentencing Practices and Parity
To 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 your Counsel, which could not really be considered comparable, as well as the sentences imposed on your son and your other co-offenders, Mr O'Donnell and Ms Scarpaci, all of whom received community correction orders. The principle of parity requires that your sentence is not such as to cause you to have a justifiable sense of grievance.
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 them, save to say that the differences are not so great that you should receive a different type of disposition from them, but great enough that you should not receive the same sentence. In general terms, the mitigating factors of Ms Scarpaci and Mr O'Donnell in particular, warranted a lesser sentence than yours.

Plea of Guilty, co-operation and remorse

You 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.
In 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 a complex 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.[4]
[4] see eg, Worboyes v The Queen [2021] VSCA 169. [39].
I also accept that your plea of guilty is accompanied by some remorse.

Your character and risk of reoffending

You have no prior convictions, which is a more significant matter for a man of 72 than for someone much younger. You have not been charged with any further offending in four years. You have a good work history and a stable family life. You are entitled to be treated as a man of good character apart from this offending.
You have obviously been affected by these court proceedings, and I have no doubt they have had a salutary effect on you. I consider you very unlikely to reoffend.
There has been a four-year delay between offending and sentence, which is at least partly attributable to the pandemic. The delay has worked in your favour, in the sense that you can point to the fact you have not reoffended. However, that does not detract from the fact that in all that time you have had the worry and stress associated with this matter hanging over your head. In particular, up until the sentence indication hearing, you had the prospect of a term of imprisonment hanging over your head.
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.
Further, 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.

It 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 corrections orders of lengthy duration for serious offences has been affirmed by our Court of Appeal previously.[5]
[5] See, eg, Boulton v The Queen (2014) 46 VR 308; Borg v The Queen [2020] VSCA 191.
Notwithstanding 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, your age and poor health and the sentences of your co-offenders, I concluded at the sentence indication that all the relevant sentencing purposes could be met in your case by a sentence other than an immediate term of imprisonment. In particular, I considered all the sentencing purposes could be met by the imposition of a community corrections order with a considerable number of work hours, more than your co-offenders Ms Scarpaci and Mr O'Donnell received, or if you were found unsuitable for work, by a community corrections order combined with a considerable fine. In that regard Mr Sala indicated that you had access to funds on account of your trial resolving.

I have had you assessed for a community corrections order and you have been found suitable and indicated your consent. However, as I anticipated, you were found unsuitable for community work. Further, it was recommended that I not require you to be supervised throughout your order and I have accepted that recommendation.
Sentence
On charges 1 and 2, I convict and sentence you to a single Community Corrections Order. The order will last for three years.
You are to report to: the Melton Community Correctional Centre within two working days of today.
As well as the mandatory conditions of not committing another offence, not leaving Victoria without first getting permission to do so, obeying all lawful instructions from and directions of the Secretary and others, I have imposed one special condition and that is as follows:
·You are to undergo mental health assessment and treatment as directed.
So then, that is a rehabilitation condition designed to help your mental health .
Your counsel will explain that order in more detail. You must make sure you comply with that order because breach of the order is an offence in itself, and in addition, you will be liable to be re-sentenced for the original offences. The Corrections order I have imposed is a long order. That is largely to reflect the seriousness of your offending, which would ordinarily call for a term of imprisonment.
In addition to that Community Corrections Order, I impose an aggregate fine on charges 1 and 2 in the sum of $12,000. If you do not pay that fine to the Registrar of the County Court today it will be referred to Fines Victoria for recovery.

Section 6AAA

If 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.
So, Mr Mammarella, do you understand the sentence that I have imposed?

OFFENDER: Yes, Your Honour.

HER HONOUR: And do you consent to the community corrections order?

OFFENDER: I beg your pardon?

HER HONOUR: Do you consent to the community corrections order?

OFFENDER: Yes, I do, Your Honour.

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[2022] VCC 1279

28 July 2022