Director of Public Prosecutions v Mirabile

[2019] VCC 390

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00814

DIRECTOR OF PUBLIC PROSECUTIONS

v

SALLY MIRABILE

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2019
DATE OF SENTENCE:	29 March 2019
CASE MAY BE CITED AS:	DPP v Mirabile
MEDIUM NEUTRAL CITATION:	[2019] VCC 390

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nankin	Office of Public Prosecutions
For the Accused	Mr P. Randles	Randles Cooper & Co Pty Ltd

HIS HONOUR: 

1Sally Mirabile, on 14 September of last year you pleaded guilty to seven charges of obtain financial advantage and three charges of use false documents.  On 25 September of last year, I sentenced you on the first of five of those charges to a suspended sentence of 15 months, which were to be wholly suspended for three years.  At that time I deferred sentencing on these other matters for a period of six months to endeavour to see if you could successfully rehabilitate.

2I was told at that time that employment was available to you and there were hopes that you would be able to achieve rehabilitation.  What has occurred since then is that you, as I understand it, have not reoffended.  You do have a job.  You are working six days a week and the documents that have been provided on your behalf to me support that proposition.  There is also a letter from the person who was originally going to give you employment and obviously I take that into account.

3In these circumstances, I simply proposed to outline very briefly the nature of the offending and a very brief outline of your personal circumstances.  The charges were all rolled up and related to numerous traffic infringement notices.  A warrant had been executed by police on your address and they found a satchel containing hundreds of notices and other documents relating to false names, addresses and the like.  Those matters were then investigated and it turned out that what you had been doing in a general sense was putting in false material, arranging so that fines would otherwise not be due in some considerable amount as well as the non-imposition of demerit points which would have otherwise been involved.

4The amounts of real significance, the ones that you still fall to be sentenced on related to deceptions of around about 30 by $1,000 or so, together with a significant number of false documents, which obviously strike at the heart of the Civic Compliance system.  A significant amount of money was avoided by those false documents and, again, well in excess of $50,000.  I do not think I need to go into any further detail of it all.

5You do have a criminal history.  Of importance is the fact that since it has been deferred you would appear to have done the right thing.  Just simply for the record, you have had a sad existence.  A traumatic incident in your life occurred when you were five, when you found a friend deceased in a swimming pool.  Obviously that was extremely traumatic for you and you had nightmares for years seeing a psychiatrist on a regular basis.

6You completed VCE at a girls high school.  Shortly after that your brother fell from a roof and suffered significant mental health injuries as a result of that.  You had been very close to him and that of course was all jeopardised because of it.  You were able to obtain work on leaving school and you were very successful in sales.  You have done well in forms of employment over the years and your criminal history does not start until around about 2006.

7In your 30s you began, and I suspect it may have obviously had a significant amount to do with childhood, you began to have relationships that were more violent.  You were physically assaulted seriously.  In fact you were hospitalised and stabbed.  There were a number of corrections orders during those periods of time and you were operating with partners who were not of the highest quality, if I can say that. 

8A number of reports were tendered on your behalf.  Ms Matthews,
Dr Cunningham and others back in relation to that time and it seems clear that subsequent to the death of a partner, you suffered severe or major depressive symptoms and it is clear that whilst Verdins does not apply to personality disorders, it is clear there is application in your situation of a number of those principles.  The circumstances are such here that, as I say, there is no real arguments about what the appropriate disposition should be.

9I think this is a very rare occurrence where in terms of why the sentence has been imposed in the way that it is, bearing in mind that you are now 37 years of age, as outlined in the report from Corrections.  I will simply point out there has been a significant delay in relation to this matter.  Custody was done subsequent to it, which was a sentence and all those matters come into play.  I think I will just simply read the report:

"Ms Mirabile became involved with the Victorian justice system in 2008 in which a criminal history compromises of offences relating to dishonesty, drug possession, trafficking and possession of prohibited weapons and ammunition.  Prior to this she had been subject to oversight from Corrections Victoria and given a number [paraphrasing this] - a number of opportunities to participate in community corrections orders".

10As already indicated you had an unfortunate choice of partners at around that period of time.  In 2017 you were sentenced to a term of imprisonment which, from my memory, was about nine months, which you said to Corrections was a blessing in disguise that had got you away from problematic drug use and poor choice in peers.

11The report goes, on:

"Throughout the assessment, Ms Mirabile was identified as open, forthcoming and appeared to be honest.  She expressed remorse, accountability and was visibly emotional.  When reflecting on her poor choices and offending which is before the court, she's assessed as a medium risk of general reoffending and identified as suitable for a further opportunity for a CCO.  Throughout discussions she disclosed that, 'I discovered what you would call a loophole.  It took off.  I just got away with it once and continued' [That is in relation to the offending].

"On self-reflection, Ms Mirabile reported to this service, how disgusted she was with her behaviour and how appalling those choices were.  Furthermore she recalled that she was provided with an opportunity as a young child and adult success of herself, however she chose to associate with the wrong people which changed her life course.  This service identifies this as a good insight and recommends that ongoing supervision with CCS can only further benefit and support Ms Mirabile in successful rehabilitation".

12It then goes on to describe the difficulties that you had of post-traumatic stress disorder, anxiety, depression, borderline personality disorder and all those matters which I do not see any need to go into in open court.  The psychological reports that have been tendered can remain on the court file.  Ms Matthews' treatment recommendations indicates she maintains appointments with the psychologist for a minimum of two years to address her mental health issues and develops appropriate coping, stress and relapse prevention techniques.  In support of this recommendation, this service respectfully recommends a condition of mental health treatment.  That is what I am going to do.

13In all these circumstances the prospects of your rehabilitation, I think they are probably the best they have been for a very long time.  The risk of you reoffending if you can rehabilitate I think will be low.  The risk obviously is going to be if your mental health issues get on top of you and you start using again or you start to associate with men who do not help you.  In those circumstances where you already have a suspended sentence of 15 months which is imposed for an operational period of three years if you agree, I intend to put you on a community corrections order.

14The duration of that order will be for two and a half years so it complies with the suspended sentence.  The report finds you acceptable and indicates a number of conditions.  Accordingly, I will be putting an unpaid community work condition of 150 hours.  There will be treatment rehabilitation mental health.  Any programs that you undergo will be deducted from that 150 hours.

15As indicated to your counsel, I do not propose to put in a judicial monitoring.  In this particular situation that simply would not be viable.  There will also of course be supervision and that will be something of a burden upon you.  Again, as you have heard me indicate to your counsel, if things start to go wrong with this or your life starts to go askew, you will certainly have people that you can talk to.  And it is important to remember that, just do not let things slide and find yourself in breach.

16If there are difficulties with the CCO it can always be brought back before me and can be varied if need be to protect not only yourself but the interests of the community.  Any other orders I need to make gentlemen, other than the (indistinct)?

17MR NANKIN:  Section 6AAA.

18HIS HONOUR:  Do I do a 6AAA?  Well, it's a bit difficult because of what I've already done with the other matters.  Look, a 6AAA in this situation I think is totally misleading.  So, what I'll say is that but for the plea of guilty, I would have given a CCO with conviction of 300 hours, which both counsel know is just a nonsense but it fulfils the statutory requirement.  So, just print that off for me if you would.  Perhaps I just simply should also indicate that matters tendered on your behalf indicate there's no reoffending, you've got a good job and you've also tendered clean urine tests. 

19All right, if you wouldn't mind going down with the associate please, Mr Randles.  Sorry, if you just go with her if that's all right.  All right, that CCO is in place.  It's obviously with conviction.  If you just stand up for me just for a sec.  I understand all the difficulties and you've done really, really well over the last period of time.  But what you've always got to remember is, and I'm sure Mr Randles explained this to you, you've got a 15-month suspended sentence and you've got a CCO for offending which is more serious than the 15 months.  So, if you breached it with dishonesty offences, you know what's going to happen.

20OFFENDER:  Yes.

21HIS HONOUR:  All right, we're talking years.  And that's not a threat, it's just - whenever you're tempted, if you are tempted, think of those sort of figures, all right, because that's what we're looking at, all right?  Thanks for that.

22MR NANKIN:  Thanks, Your Honour.

23MR RANDLES:  Your Honour

‑ ‑ ‑