Director of Public Prosecutions v Marijancevic
[2023] VCC 1834
•5 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01998
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ILEA MARIJANCEVIC |
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2023 | |
DATE OF SENTENCE: | 5 October 2023 | |
CASE MAY BE CITED AS: | DPP v Marijancevic | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1834 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Trial – Obtaining financial advantage by deception – Mental health – Bugmy – Delay – Reasonable prospects of rehabilitation
Legislation Cited: ss 5; 40 Sentencing Act 1991
Cases Cited:Boulton v The Queen [2014] VSCA 342; Bugmy v R [2013] 302 ALR 192; DPP v Blackberry [2019] VSCA 269; DPP v Herrmann [2021] VSCA 160; Matamata v The Queen [2021] VSCA 253; Newton (a pseudonym) v The King [2023] VSCA 22; R v Verdins and Ors [2007] VSCA 102;
Sentence: Imprisonment for a period of 6 months combined with a Community Correction Order of 2 years and 2 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Crouch | Office of Public Prosecutions |
| For the Offender | Ms J. Clark | James Dowsley & Associates |
HER HONOUR:
1Ilea Marijancevic, on 8 February of this year you were found guilty at trial of four charges of obtaining financial advantage by deception, as follows –
(i)Charge 1 – between 9 April and 17 April 2014, a deposit in the sum of $2,700;
(ii)Charge 2 – between 17 April and 19 May 2014, a deposit in the sum of $6,700;
(iii)Charge 3 – between 24 May and 16 June 2014, a deposit in the sum of $7,300;
(iv)Charge 4 – between 21 June 2014 and 11 October 2018, deposits totalling the sum of $439,582.83, as set out in Schedule 1.
Circumstances of offending
2At trial, many of the facts were not in dispute. It was not disputed that you had obtained a financial advantage, as alleged. Rather the central disputed issues related to whether you had deceived the bank and acted dishonestly. The verdicts of the jury clearly indicate that they were satisfied beyond reasonable doubt that you had done so and that these elements were met.
3The relevant chronology of events is briefly as follows:
4On 19 February 2008 you opened an ANZ Everyday Visa Debit account in your name, as sole signatory.
5On 8 October 2010 you opened an ANZ First Free Days Visa account also as sole signatory.
6On 5 January 2011 you signed an application form for an ANZ Card Pay direct service for your ANZ Everyday Visa debit account.
7ANZ Card Pay Direct was a financial service where a customer sets up regular automatic payments to an ANZ credit card account from their nominated ANZ bank account. You nominated to pay the minimum outstanding monthly repayment.
8On 22 January 2011, a card pay direct facility was loaded on your ANZ First Free Days Visa card account. It was paid from the ANZ Everyday Visa Debit account.
9On 19 December 2011 you requested the ANZ Everyday Visa debit account be closed. On 8 January 2012 the account was closed. Despite this, due to an error in the system, the card pay direct facility remained active. This meant that the minimum outstanding balance on your credit card account was being paid from the closed ANZ Everyday Visa Debit account.
10On 19 June 2012, your ANZ First Free Days Visa card account was transferred to an ANZ Low Rate Master card account. The card pay direct feature continued to operate in error causing the minimum outstanding balance on the new card to be paid from the closed ANZ Everyday Visa Debit account.
11On 16 April 2013, you called ANZ to request hardship to be applied to your ANZ Low Rate Master credit card account. During that phone call, The ANZ call taker told you that:
(a) 'There's another ANZ account which you hold ... that account's actually owing over $4,700';
(b) 'There's been some sort of transaction still processing on that account, so the balance has actually increased since October'; Further,
(c) 'The account was in fact closed on 21st of December 2011'.
(d) You replied '…and money's been taken out of it and I owe $4,000 for that' -and then clarified 'an account that I closed.'
12The call ends with the ANZ call taker telling you that he will follow up about the issue, and on the evidence this does not appear to have been done.
13On 23 March 2014, you called ANZ. During the telephone call you told the call taker:
(a) 'I'm wanting to increase the payment of my credit card to 500 instead of the minimum amount, monthly.'
(b) 'And can you take that from - just take it from the same account, please.'
14You then changed your mind about the amount and asked to increase it first to $600 then settled on the $700. As a result, the regular payments to your visa account were increased to $700. This conduct pre-dates the charged period and is relevant as background and context.
Charge 1 – Obtaining a Financial Advantage by Deception 9/4/2014 – 17/4/2014
15On 9 April 2014 you called ANZ. The first part of the call is about a lost card. During that call you said the following:
(a) 'While you’re there, I had my repayments increased to $700 and moved forward because the late fees were coming out when they shouldn’t have been.' And then further:
(b) 'What I was hoping to do now was increase it to two and a half thousand.'
16Later in the call the ANZ call taker informs you that the due date is the 17th. You ask if it can be made the 16th and were informed that the date could not be changed. After settling on changing the amount being transferred to $2,700 before the call ends the call taker asks you to be mindful of the fact that 'if there aren’t any sufficient funds in the account the transaction will not go through'.
17As a result, on 17 April 2014 a payment of $2,700 was made to your ANZ Low Rate account, which forms the basis of Charge 1.
Charge 2 – Obtaining a Financial Advantage by Deception 17/4/2014 – 19/5/2014
18On 17 April 2014, you called ANZ to increase the regular payments through the card pay direct facility from $2,700 to $6,700. During this call you ask if the amount could be increased to $6,200 and then changed your mind and asked for an amount of $6,700.
19As a result, an amount of $6,700 was made to your low rate account, which is the basis of Charge 2.
Charge 3 - Obtaining a Financial Advantage by Deception 24/5/2014 – 16/6/2014
20On 24 May 2014, you called ANZ to increase the regular payments through the card pay direct facility from $6,700 to $7,300. As a result, a payment of $7,300 was made to your low-rate account, which is the basis of Charge 3.There is no phone recording of this request but there was a file note confirming that on 24 May 2014 the Cardpay Direct facility was increased, by way of a phone call from you.
Charge 4 - Obtaining a Financial Advantage by Deception 21/6/2014 – 11/10/2018
21On 21 June 2014, you called ANZ. During that call you asked, 'Can I increase the money that's being paid monthly?” … 'That's automatically transferred.' 'Is it possible to increase it to 15,000?' The ANZ employee told you that the limit on the credit card was $9,000 per month and he could not increase the payment above that. You then agreed to increase the payments in that amount. As a result, the monthly repayment amount was increased from $7,300 to $9,000.
22Consequently, through the period of 17 July 2014 and 11 October 2018 regular payments were made to your ANZ Low Rate account. These are set out in Schedule 1 of the charge. The number associated with this account changed on six occasions during this period due to cards being reported lost and the total amount for Charge 4 is $439,582.83, which is the basis of the charge. The last payment received was on 11 October 2018 in the amount of $9,000.
23Police obtained full statements for a series of bank accounts which were in your name. The bank statements show that after payments from the card pay direct facility were received into your ANZ Low Rate account, they were then transferred into other accounts held in your name. The funds were then either used to make purchases or withdrawn as quantities of cash at automatic teller machines.
24On 17 October 2018 the ANZ collections team identified that you were receiving funds from the bank through an error. On 2 November 2018 ANZ reported the matter to police.
25Subsequently, you were arrested.
Gravity of offending
26The charges that you have pleaded guilty to, Ms Marijancevic, are serious, as indicated by the maximum penalty. An assessment of the seriousness of any given offence of obtaining financial advantage by deception will involve a number of considerations, including the value involved. In your case, the value markedly differs as between charges, with the most significant being Charge 4. The total amount dishonestly obtained is clearly substantial.
27In many respects, your case is somewhat unusual. The context to your offending is a bank error, which continued to deduct payment amounts from a bank account that you had closed. While the anomaly was noted at an early stage, nothing appears to have been done about it and there was no follow-up. Soon after that particular call you became aware of the bank’s unfortunate mistake and exploited the situation.
28The prosecution accept that your actions did not cause or bring about the initial situation. However, they submit that given your subsequent actions and the duration of your offending, it did involve a degree of sophistication and calculation on your part and that your moral culpability is high. You intentionally deceived the bank by way of implied representations and then over a period of three and a half years you dishonestly received monthly amounts. You 'juggled,' it was submitted, transactions in your various accounts to ensure that the full monthly credit funds were transferred. The bank records are consistent with such movement of funds between your accounts.
29Your counsel submits that your offending falls at the lowest end of the range of seriousness. The situation was attributable to a bank error. The bank never questioned or asked you about your ability to make repayments, as their likely focus was on retaining customers. Your offending did not involve the generation or use of any false documents or identities and was not sophisticated, nor were the funds applied to the accumulation of assets or wealth.
30Overall, I regard your offending as dishonest but as largely opportunistic. This is not a case where you initially orchestrated or 'set up' the deception or put any structures in place to facilitate your offending. While bank accounts changed over time, they were all in your name. There were no acts of subterfuge or concealment on your part. The offences were not committed by use of any disguise and could easily be traced by reference to your bank accounts.
31Aside from the initial calls, you did not undertake any other implied or overt acts of deception. Clearly, you continued to dishonestly receive money as a result of your deception, and I accept that you moved and spent funds which allowed you to receive the full monthly payments. It therefore cannot be said that there was no planning or sophistication involved in your offending. These are offences of dishonesty that were committed by you over an extended period of time and it is clear that while you did not really have to do much, you took advantage of the system error.
32In all the circumstances, particularly the duration and quantum of your offending, I do not accept your counsel's submission that your offending is at the lowest end of the spectrum. However, given it did not involve any elaborate deception or skilful planning on your part, I do consider it falls more towards the lower end. Also, clearly your case can be contrasted to those involving a breach of trust or authority or where the victim is an individual or an organisation in receipt of public funds. Such aggravating features are absent here.
33Forensic psychologist, Ms Laura Fleming, outlines in detail your history of childhood deprivation and poor mental health. She considers that you have suffered chronic family violence, a form of 'complex trauma' that has compromised your development, leading to heightened physiological and psychological stress reactivity, thereby undermining your capacity to respond functionally to stressors later in life.[1] She administered the Adverse Childhood Experience Questionnaire which is a 10-item measure to quantify instances of adverse or traumatic experiences that a person has before the age of 18. Your responses indicated that you identified all ten adverse childhood events being present in your life, including childhood verbal, sexual and physical abuse, neglect, violence, parental separation, parental mental ill health and criminal behaviour, as well as substance use in the home.[2]
[1] Psychological Report of Laura Fleming dated 31 August 2023 [101].
[2] Ibid, [82].
34Against this background Ms Fleming considers, 'there were a number of overlapping complex difficulties in [your] life throughout the offending period that had an impact on [your] functioning at the time and all correlated.' This included, experiencing and leaving a relationship of domestic violence; violence and intimation within your immediate family unit; distress caused by the loss of custody of your son and the court processes over the years in relation to this; all compounded by your poor mental health and substance use. In respect of your offending, you told Ms Fleming that you had used the funds to assist in paying for interstate travel and expenses to have contact with your young son, living expenses, and also apparently your uncle became aware of the situation, took advantage and expected money from you. You also reported playing poker machines during the relevant period, which is, to some extent, reflected in the bank records.
35I accept that you have suffered childhood deprivation that is relevant to an appropriate evaluation and reduction of your moral culpability. While I do not consider that it is directly or causally related to your offending, your exposure to neglect, disadvantage and abuse as a child and during your formative years has played a significant role in shaping your personality, perceptions and responses. In other words, I accept that your moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in this way. As the High Court observed in the case of Bugmy, the effects of profound deprivation do not diminish with the passage of time and repeated offending.[3]
[3] Bugmy v R [2013] 302 ALR 192. See also: Newton (a pseudonym) v The King [2023] VSCA 22; DPP v Herrmann [2021] VSCA 160.
36The report of your treating psychologist, Dr Annie Cantwell-Bartl, also offers some useful insights, as she documents a history of the sessions she had with you from 2016, which falls partly within the offending period.[4] During 2016 you had unstable accommodation. It is noted that you were very distressed about being separated from your son and that you 'continued to grieve over' [him] and your life was 'unstable.' You also served a number of months in custody during this time. She saw you approximately eight times during that year. In 2017 it is noted that you 'continued to suffer from panic attacks and anxiety' and to experience 'intense grief.' You also confided in her about childhood trauma, including as a child being exploited by adults who had involved you in criminal offending. She saw you 23 times in 2017. In 2018 it is noted that you continued to grieve and feel distressed about your life. Travelling interstate to see your son was a challenge and 'even though airfares were paid' it was noted, 'Ms Marijancevic struggled with supplying food and support for herself and her child during visitations.' Your relationship at the time was also a source of stress. She saw you seven times this year and you also sporadically attended a psychotherapy group that she ran. She further documents your attendance in 2019, 2020, 2021 and 2023. In the latter record your behaviour was observed to be erratic and your mental health poor. You suffered from impulse control, had gambled, felt panicked and had anxiety and had not been doing well.
[4] Psychological Report of Dr Annie Cantwell-Bartl dated 12 June 2023.
Personal history
37Ms Marijancevic, your personal history was canvassed by your counsel, Ms Clark, and also in the report of Ms Fleming that I have just referred to.
38As I have already noted, your childhood, I accept, was one marked by neglect, instability, abuse and negative influences. Your parents had a conflictual relationship, you were exposed to violence and substance use in the home, your father spent significant periods in custody, and at times your parents separated with your mother re-partnering before re-forming the relationship with your father. Your family frequently relocated. You disclosed to Ms Fleming experiencing significant fear in your home and potentially other forms of trauma, which were not pressed because of your levels of distress on assessment.[5] You report generally poor relationships with your siblings, and it seems you have experienced conflict and grief with respect to them. One brother has spent time in gaol, and you have also grieved the loss of other siblings. It is in the context of the profound grief you experienced following your brother’s death in 2009 that you increased alcohol use.
[5] Psychological Report of Laura Fleming dated 31 August 2023 [22].
39Unsurprisingly, you report multiple changes in school throughout your education. You estimate having attended five different primary schools. You experienced difficulty with learning at school and having poor concentration. You graduated Year 12 at Footscray City Secondary College over two years and subsequently worked towards a diploma in accounting whilst employed. You have a history of working as a bookkeeper, in cleaning, hospitality and in personal care. You have also undertaken some further education, completing a hospitality Certificate IV and Certificate II in IT, both through Victoria University of Technology; Certificate IV in Aged Care, Certificate IV in Pathology and a Certificate IV training as a Lab Technician which was a full-time course over 12 months. You also did a four-week course in 'Tuning into kids,' which was a MacKillop program. It seems that at least over the last 10 years you have been supported on the disability support pension.
40You report three significant romantic relationships, as outlined in Ms Fleming’s report. Your last relationship was with the father of your son, and you fell pregnant in 2011. You describe the relationship as having been a violent and controlling one. Your son was born in Queensland and you ended up returning to Melbourne with him when he was an infant as the violence continued and you were concerned for your welfare.
41In Melbourne you experienced difficulties and conflict with your family, resulting in substance abuse and criminal charges. During these periods your son was placed in foster care temporarily. You have gone through a total of three trials relating to the long-term care and custody of your son, in 2016, 2017 and 2021. Putting aside the emotional impact of this, you also experienced extreme costs associated with the trials and having to pay for travel and accommodation to New South Wales. The ultimate outcome was that custody was awarded to your child’s father and you were allowed supervised access. He is now approximately 12 years of age, living interstate, and it is clear that your separation from him is a source of ongoing and profound grief.
42You present with long-term overuse of alcohol and substances that have caused you difficulty in life. You turned to alcohol, prescribed benzodiazepines, cannabis and methamphetamine during moments of heightened stress. Also, you have used, and abused it seems, prescription drugs for pain management from injuries sustained in motor vehicle accidents over the years. You experience ongoing issues as a result of these injuries, which include damage to the cervical and lower spine. You report having reduced your substance use considerably in more recent times though obviously it remains an issue.
43You have generally had an itinerant life, and for a period of time you did relocate to Queensland. You have your own government housing in Anglesea, but report that you struggle to stay there due to feelings of distress that your son was not present. Therefore, while it offers you some security, you are currently transient, moving between friends' houses and are presently living in Footscray. I note that in Anglesea you volunteered at the Baptist Church Op Shop and the community centre.
44You have limited supports, outside of your friends. You appear to currently be estranged from your parents and immediate family for the reasons outlined and explored by Ms Fleming, in particular at Paragraph 24 of her report.
45You have a relevant prior criminal history in Victoria, New South Wales and Queensland. In Victoria, you have been the subject of court supervision through the ARC list and you have received community corrections orders that you appear to have successfully completed. Your appearance on 15 March 2016 notes that you have been 'a successful participant in the court's ARC list since 2013.' In New South Wales you also have a history of dishonesty offending and on 21 December 2015 you were dealt with for charges including dishonestly obtain financial advantage by deception, common assault and dishonestly obtain property by deception, for which you were sentenced to a total of four months' imprisonment, later confirmed on appeal. In Queensland you also received a suspended prison sentence in May 2017 for dishonesty offending. Your last prior is noted to be on 21 March 2019 for shoplifting for which you received a $250 fine. Your criminal history is relatively limited, though I accept it is relevant. The prosecution makes the point that during the period of your current offending you were participating on the ARC list and on two separate occasions received terms of imprisonment for dishonesty offending, that is the sentence confirmed on appeal and the suspended sentence.
46I was also advised of subsequent offending. On 2 May 2023, after serving six days in custody, you were placed on a 12-month community corrections order with conditions, including work and treatment and assessment. You received this sentence for matters that had apparently been outstanding, and other matters, and had had warrants executed. It is alleged that you are currently in breach of that order.
Mental health
47Ms Marijancevic, you have experienced poor mental health throughout your life. You are currently, as I was last told, prescribed Valium and Zoloft.
48Ms Fleming noted that it was difficult to obtain from you a clear history of your mental health issues. In the past you have experienced panic attacks, nightmares and intrusive recollections of multiple past traumatic events. You reported attempting suicide via deliberate overdose on multiple occasions, with the last attempt occurring in April 2023, resulting in your hospitalisation. The Emergency Department clinical sheet confirms your admission to the Sunshine Hospital on 14 February of this year.[6] You were found on the footpath by bystanders unresponsive and conveyed to hospital by ambulance. You reported taking excess quantities of drugs, including GHB, with the intention to take your own life. The records indicate 'referral to community mental health team for follow up in the community.'
[6][6] Exhibit 5 – Hospital Admission
49Ms Fleming assessed you as suffering from severe depression, extremely severe anxiety, and severe stress. Further, your scores indicate that you meet the threshold for a diagnosis of post-traumatic stress disorder. Your scores were indicative of severe symptomatology which would be affecting your functioning.[7] Symptoms of PTSD include describing intrusion symptoms, negative alterations to your mood and cognitions, marked alterations in your arousal and reactivity, and use of avoidance strategies. She also considers that you present with symptoms consistent with borderline personality disorder, which is a pattern of instability in interpersonal relationships, self-image, affect and marked impulsivity. She also diagnoses stimulant and alcohol use in early remission.[8]
[7] Psychological Report of Laura Fleming dated 31 August 2023 [70].
[8] Ibid, [85].
50The opinions of Ms Fleming are generally consistent with the report of Dr Cantwell-Bartl, with whom you have engaged in therapeutic treatment from 2016 to 2023 to reduce your trauma and stress symptoms. She tested you on a traumatic stress scale and the 'results yielded a very high level of traumatic stress'.[9] Having treated you for years, she considers that you suffer from long-standing post-traumatic stress disorder with anxiety, depression and panic attacks. You have struggled with impulse control over the years and have features of a borderline personality disorder which she considers 'has manifested as a result of childhood trauma'.
[9] Psychological Report of Dr Annie Cantwell-Bartl dated 12 June 2023, [2].
51Ms Fleming considers that your complex profile is 'underwritten by alcohol and polysubstance use', likely to have developed as a form of self-medication for your untreated distress in childhood and adolescence. This contributes further to comprise your insight, decision-making and judgment.
52Ms Fleming opines that imprisonment would likely weigh more heavily on you than a person without your conditions. You are unlikely to receive the specific treatment you require 'at a frequency or intensity in custody for [your] PTSD and borderline personality disorder.' She states, 'Access to programs and treatment in prison is generally reduced, and these disorders require long-term, trauma-informed intervention which [she]' – that is the author – 'has not yet seen available to individuals in Corrections Victoria.'[10] I note that although she does not elaborate on her opinion, Dr Cantwell-Bartl also considers that imprisonment may have a further adverse effect on your mental health. If a term of imprisonment is imposed, Ms Fleming recommends frequent monitoring for acute changes in your mental health and for suicide risk.[11] She states, 'Due to the severity of her condition, she requires intensive and prompt intervention to prevent further decompensation.' She recommends that any custodial sentence should also incorporate a period of support and supervision after release to assist in transitioning you between prison and the community and to link in with relevant support services and treatment.
[10] Psychological Report of Laura Fleming dated 31 August 2023 [106].
[11] Ibid.
53Your counsel submitted that the Verdins principles were enlivened in your case.[12] On the uncontested evidence before the court, I accept that Limbs 5 and 6 have application and are relevant to sentencing. In respect of your moral culpability, the prosecution submit that while your conditions are likely to have existed at the relevant time, the report of Ms Fleming does not establish a sufficient causal connection to the offending, particularly when taking into account its nature, duration and motivation. Ms Fleming opines that your PTSD symptoms, along with your borderline personality disorder are relevant to your offending. Your trauma symptoms and personality dysfunction contributed to your inability to say no to your uncle, who was apparently applying pressure on you, and your substance use would have also added to your inherent impulsivity during this time.
[12] R v Verdins and Ors [2007] VSCA 102.
54Given the protracted nature of the offending, the degree of planning involved (as limited as I have found it was) and its duration, assessed against the nature and severity of your conditions as outlined in the report of Ms Fleming, I am not sufficiently satisfied of the causal nexus. I do, however, accept that you suffered from these conditions at the time and also that throughout this period you were likely experiencing instability and distress, as I have already noted.
55I accept that your PTSD and borderline personality disorder bear upon the kind of sentence that is imposed and the conditions in which it should be served. I also accept that your conditions call for a sensible moderation of general and specific deterrence, though they remain relevant sentencing considerations, particularly bearing in mind and taking into account the duration of this offending and also your prior criminal history.
Procedural history & delay
56Your counsel also relied on the delay in your case. I accept that the delay involved is considerable and that it is an important consideration.
57Following on from the chronology I have already referred to, after your arrest on 4 August 2020 you were charged and summonsed on 19 February 2021. The prosecution accept that this delay is not attributable to you but is likely reflective of the task the police had to undertake in subpoenaing and obtaining the relevant bank records.
58Within the subsequent period you have made some efforts towards rehabilitation in that you have continued to engage with Dr Cantwell-Bartl, however, clearly it has not successfully been achieved given your alleged subsequent offending and non-compliance on a corrections order. In respect of delay, your counsel also submitted that you have experienced stress and uncertainty with these matters 'hanging over your head.'
59On the evidence before the court I accept that the delay in your case has had a significant impact on your mental health and I take this into account in sentencing you.
Prospects of rehabilitation
60Your counsel submits that while your subsequent matters are concerning, in all the circumstances you should be assessed as having good prospects of rehabilitation, which would be optimised by placing you on a community corrections order (CCO).
61In my assessment of your rehabilitative prospects, I take into account that there are currently breach proceedings, as I have already noted, and subsequent offending. The assessment report from Corrections indicates that you made no progress on any mandated treatment conditions and failed to engage in supervision with respect to the order imposed in May of this year. You reportedly disengaged within three months of being placed on the order. The breach proceedings are listed later this month, along with two guilty pleas of Victoria Police matters. The assessment report also raises concerns as to your level of insight into your offending.
62Ms Fleming undertook formal testing that placed you in the moderate-risk range for drug-related harm currently and in the low risk in relation to current alcohol behaviours, though it was considered that you would benefit from harm reduction advice. She assessed you as a moderate-high risk of general recidivism and you have a number of areas that should be targeted to reduce potential future offending. Protective factors included your reported reduction in substance use, engagement in mental health treatment and willingness to continue to engage in treatment.
63I do note and take into account that you have suffered significant disadvantage and substantial challenges in your life and you have had periods where you have remained offence free and engaged in treatment. Dr Cantwell-Bartl describes you as intelligent. She reports that for many years you attended sessions, most weeks with her, and worked on developing 'a more robust sense of self, particularly in the hope of having [your] son return to [you].' She reports that you worked hard. You had regular drug testing, did psychological counselling, and undertook education programmes and you obtained a qualification. After you lost your son, she saw you irregularly, as you were despairing and struggling with the loss. You have continued to see her in more recent times.
64You told Ms Fleming that you hope to commence a landscaping business to create meaning in your life and provide an opportunity to improve your circumstances. You also hope to play a role in your son’s life in the future. To this end, I was told that you have had recent positive contact with the father of your child, who has indicated an openness to you playing a greater role in your child’s life. This is a positive development. Your son has special needs, including ADHD and memory difficulties, requiring special interventions. I accept that your son provides you with ongoing motivation to improve your circumstances.
65You also have public housing through the Department, as I have already noted. I consider the availability of housing as critical to your rehabilitation and I have factored in the importance of preserving this, to the extent possible.
66Ms Fleming also offers recommendations in her report and indicates that you would benefit from intensive psychotherapy to identify and increase awareness of and insight into your underlying mental health issues and to address your chronic maladjustment and trauma.
67Overall, while some caution is warranted, I consider that with appropriate targeted treatment and supports, you present with reasonable future prospects of rehabilitation.
Sentencing purposes
68The purposes for which sentence may be imposed are just punishment, general deterrence, specific deterrence, denunciation, protection of the community and rehabilitation. I have already referred to the sensible moderation of some of these principles to reflect Bugmy and Verdins considerations.
69I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case.
70Further, I have taken into account the general sentencing landscape for such offending, and I have also considered the cases referred to by counsel. While they have assisted me, the unusual features of your case makes it less amenable to comparisons. In the case of Matamata v The Queen[13] the applicant stole fuel cards from his employer and arranged for another business owner and his employees to use the fuel to purchase fuel, with payments made to him. The offending was between 2017 and 2019 and totalled over $130,000. He was sentenced to 12 months' imprisonment with a two-year community corrections order. He had no prior criminal history and was at risk of deportation, which is ultimately the ground upon which the application succeeded, reducing the custodial part of the sentence to 10 months. While that case involved a plea of guilty and the amount was less than here, the applicant’s criminality was aggravated by the fact that it involved breaching his employer's trust by persistently taking advantage of its lax process of financial control over its fuel cards. The case of DPP v Blackberry[14] concerned multiple charges of obtaining property by deception and using a false document in the total amount of approximately $240,000. The court dismissed the prosecution’s appeal against sentence confirming the sentence of two years' imprisonment with a non-parole period of 16 months. However, in that case the applicant was a practising solicitor who had taken advantage of their position of trust to defraud clients.
[13] [2021] VSCA 253.
[14] [2019] VSCA 269.
71The prosecution submit that a term of imprisonment structured by way of a head sentence with a non-parole period is required. They submit general and specific deterrence are particularly important. You have shown no remorse for your offending and your conduct must be denounced.
72Further, it was submitted that it would constitute an 'unusual sentencing approach' to 'go down' the sentencing hierarchy, that is, to impose a corrections order (CCO) when you have received such a disposition in the past for objectively less serious offending. I note here that while your prior criminal history is relevant, there is no mathematical formula or prescriptive method to sentencing. Ultimately, it was submitted that the offending here is 'just too serious' for a CCO and it is not the right disposition.
73Your counsel submits that a CCO is capable of reflecting and balancing all relevant sentencing purposes. Relying on the Court of Appeal in Boulton[15] she submits that an order has obvious punitive elements in the mandatory conditions, the significant burden of contravention being a punishable offence, and the range and nature of program conditions, which may include unpaid community work but also coercive and intrusive treatment and rehabilitation conditions.
[15] Boulton v The Queen [2014] VSCA 342.
74I am required to consider the objective nature and gravity of your offending and your moral culpability. I must then consider if your offending is so serious that nothing short of a sentence, wholly comprised of an immediate term of imprisonment, will suffice to satisfy the requirements of just punishment, or if a community corrections order, either alone or in conjunction with a sentence of imprisonment, would satisfy the requirements of just punishment.
75Proportionality and suitability are the governing principles for deciding whether to impose a CCO, and if so, what length and with what conditions.
76As to proportionality, taking into account all matters, including the prominence of general deterrence, even when sensibly moderated, my assessment of the objective gravity of your offending and your culpability, along with your personal circumstances, I do consider that a term of immediate imprisonment is required in your case. As to how that should be structured, Ms Marijancevic, I have given careful consideration to the prosecution's submission and also to the availability of a combination sentence, that is a period of imprisonment followed by a properly conditioned CCO of lengthy duration.
77I had you assessed for an order and you were assessed as unsuitable given your recent compliance issues. This assessment is informative but it is not determinative. In the MARHS assessment you identify that you could benefit from ongoing sobriety and mental health treatment to assist you achieve your goal of having more meaningful contact with your son and being a positive role model to him.
78It is, of course, concerning that it is alleged that you are presently in breach of an order. However, I do note that it was imposed only months after significant and likely destabilising events had occurred, including the verdicts in this matter and your attempted suicide. Further, I consider that the implementation of any future CCO would benefit from the recent insights and recommendations of Ms Fleming and Dr Cantwell-Bartl as they relate to your mental illness and personality disorder. I also take into account that you have managed to comply with orders in the past and I accept that you have meaningfully engaged in treatment with Dr Cantwell-Bartl over an extended period of time.
79In all the circumstances, I consider that a CCO would best afford you the opportunity to engage in meaningful rehabilitation over an extended period of time. Having regard to the recommendations of Ms Fleming, I consider it is the most appropriate way in your case to incorporate support and supervision upon your release from custody into the community. Should there be a problem of non-compliance there will be ample capacity for the terms of any such order to be revisited; including in breach proceedings, which would carry with it the prospect of resentencing.
80In all the circumstances I consider that a combination sentence is capable of satisfying the requirements in your case of proportionality, parsimony and just punishment, while affording you the best prospects for rehabilitation. As for the term of imprisonment, I have weighed up all relevant considerations and synthesised them as best I can. I accept that you present as a traumatised woman and someone who will be particularly vulnerable in custody, and this, in particular, has influenced me, along with the other factors in mitigation, to moderate the immediate term to be served.
81I regard the period that I am about to set as just and appropriate in all the circumstances.
82Ms Marijancevic, if you could please stand.
83Ms Marijancevic, I am going to deal with Charge 4 first.
84On Charge 4 you are convicted and you are sentenced to a term of imprisonment of six months with a community corrections order of two years and two months.
85On Charges 1, 2 and 3, you are convicted and sentenced to a community corrections order of two years and two months.
86In respect of the community corrections order, I am imposing the following conditions: I am imposing supervision, work for 100 hours, and I am offsetting 80 hours against treatment, treatment for drug and alcohol, treatment for mental health. I am also setting a judicial monitoring date, the first date to be 8 April of next year at 9.30.
87You can take a seat.
88Pursuant to s40 of the Sentencing Act, counsel, I can indicate that given the offending is based on the same facts and similar circumstances, it is the one order that I am imposing. So on Charges 1, 2, 3, 4 but Charge 4 in addition carries with it the six month term of immediate imprisonment. Is that clear?
89MR CROUCH: Yes, Your Honour.
90MS CLARK: Yes.
91HER HONOUR: Is there anything else required?
92MR CROUCH: No, Your Honour.
93MS CLARK: No, Your Honour.
94HER HONOUR: Now, can Ms Marijancevic just remain in the dock after I adjourn and that would afford her counsel an opportunity just to speak with her before she is taken downstairs.
95I am also going to have noted custody management issues as follows: Ms Marijancevic suffers and is diagnosed with post-traumatic stress disorder and borderline personality disorder, she is presently medicated. Ms Marijancevic, is it Zoloft presently? Ms Clark, can you check what her medications are?
96MS CLARK: I am told Valium, and Lyrica would be the pain - - -
97HER HONOUR: Valium and Lyrica, okay.
98MS CLARK: Yes.
99HER HONOUR: I just also have noted that Valium and Lyrica are taken, and further, that Ms Marijancevic is identified as presenting as a suicide risk.
100MS CLARK: If Your Honour pleases.
101HER HONOUR: So if I could have all of those noted on the remand warrant. There is no pre-sentence detention?
102MR CROUCH: No.
103HER HONOUR: Counsel, thank you very much for your assistance in this matter. Ms Marijancevic, I am going to adjourn the court and you will have an opportunity – I beg your pardon, actually you're going to have to sign that order. That's the outstanding matter, the order needs to be signed.
104I am going to permit Ms Clark to approach you in a moment with the order. You need to consent to it and I do need to take you through – or you need to be taken through the conditions of it. After you have served your six months in custody you come out to an order, okay, and that carries with it various conditions. You will get a copy of this. It's likely to be quite overwhelming at the moment but you will have a copy to absorb and to consider because it does include attending back before me for a judicial monitoring. So let me just check this order and we'll have a copy printed for Mr Crouch also while Ms Clark approaches her client.
105Ms Clark, if you want to approach Ms Marijancevic with a copy of the order please.
106MS CLARK: Yes, thank you.
107HER HONOUR: Ensure that she understands it and does consent to it by signing.
108MS CLARK: Yes.
109HER HONOUR: Mr Crouch, you'll just get a copy of that now so you can have a look at it.
110MR CROUCH: Thank you, Your Honour.
111HER HONOUR: Thank you. Now Mr Crouch, that reflects the order that I have indicated. Also, just to confirm, there are no enterprise provisions that apply here or anything that would prevent the structure of the order, which is effectively the CCO that attaches to all charges with Charge 4 having a term of imprisonment. That's my understanding, but I'm just confirming with counsel, there is nothing – it's not been put to me and it doesn't appear to be a factor that's relevant.
112MR CROUCH: (Indistinct)
113HER HONOUR: No, okay, thank you. Now this is the city Corrections, is it? So Franklin Street, Melbourne, which is likely to be the most appropriate for the time being. That is that she attends within two working days after her release – 50 Franklin Street, Melbourne. She will need to go there and then from there it can be sorted out whichever - - -
114MS CLARK: Yes, which office would be the supervising office.
115HER HONOUR: Presumably she will receive some assistance in relation to that. Before she is taken downstairs I will ensure – I mean, they'll probably give it to her downstairs but I'm going to ensure that she has a copy of this as well and a copy will be given, obviously a signed copy to both counsel before you leave court.
116MS CLARK: And my understanding is which in the prison there are programs that would assist with the - - -
117HER HONOUR: The transition and implementation - - -
118MS CLARK: The transition back into the community and any – and can often assist with short-term accommodation that would get through that period.
119HER HONOUR: Ms Marijancevic, I'm going to adjourn the court now. Just wait for a moment for the prosecutor to leave court so that you can speak to Ms Clark before the officers take you downstairs. I will see you again, I have placed you – after you have served your term in custody, I have placed you on a corrections order and there's a judicial monitoring date of 8 April at 9.30, and that's when I'll see you next.
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