Director of Public Prosecutions v Mirabile

[2018] VCC 1577

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-ANNE MIRABILE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September
DATE OF SENTENCE:	25 September 2018
CASE MAY BE CITED AS:	DPP v Mirabile
MEDIUM NEUTRAL CITATION:	[2018] VCC 1577

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Kenna	Office of Public Prosecutions
For the Offender	Mr P. Randles	Randles Cooper & Co Pty Ltd

1HIS HONOUR:  In this matter you, Sally Mirabile, have pleaded guilty to seven charges of obtaining a financial advantage by deception and three charges of using false documents.  The indictment to which you have pleaded guilty has ten charges on it.  The first five of those charges are matters which I am able to give a suspended sentence.  The last five I am unable to.  The circumstances of the offending are that they are roll up charges essentially, and occur over a period of something like a decade. 

2You are 37 years of age and you pleaded guilty at a reasonably early opportunity.  I accept that there is remorse.  You must get the utilitarian benefit of the pleas, and there has been a significant delay in the matter being brought before me.  Essentially the offending relates to you, either on your own behalf or for reward, providing false documents to the traffic authorities to avoid demerit points and to the imposition of fines. 

3It is a situation where I have been given a comparative matter by another judge of this court, and it is circumstances where the Crown position is that an active custodial sentence should be imposed.  You subsequent to this offending have been incarcerated for a period of nine months in relation to, as I have indicated, subsequent offences.  During the course of the plea, strong plea material was put on your behalf and sworn evidence was given in terms of the future for you insofar as work is concerned and just general how you have been conducting yourself.

4Negative urine screens have been provided.  You have one matter outstanding.  As discussed during the course of the plea, I have concerns about the accuracy of some of the things I have been told.  So what I am proposing to do, and what I am going to do, is this.  I am going to defer sentencing on the Charges 6 to 10 inclusive for a period of six months.  On Charges 1 to 5, I will sentence you to an aggregate period of imprisonment of 15 months.  That sentence will be wholly suspended because I consider it to be in the interests of justice to do so for a period of three years.

5I regard the second five charges on the indictment as being objectively more serious than the first five.  For a number of reasons, one being the false document charges are all contained within that group of offences.  If over the next six months you are able to work and remain drug free and remain offending free, it will stand you in good stead when you come back for further plea.  I want to make it clear that this is not to be regarded as a final disposition. 

6That it is simply giving you an opportunity in these circumstances to prove, or establish at least, you do not have to prove it - establish a rehabilitation which would justify the imposition of a community corrections order.  Community corrections orders were described by parliament as replacing suspended sentences, and whilst this may be somewhat intellectual, it is my view that this is the correct way to deal with you. 

7What you must understand is that having been placed on those suspended sentences, if you breach that suspended sentence between now and the referral date you would have to show exceptional circumstances why it would not be imposed.  So if you offend, certainly by way of dishonesty or drug offences in the next six months, you will understand that the starting point will be 15 months, and the second charges will be on top of that which as counsel will understand is somewhat in line with the comparative decision that I was given.

8I might just also indicate in that – so far as that decision is concerned, it seems to me that whilst the Crown rely on the overall head sentence, the sentences on the individual charges there just seem to me to be disproportionate to the amounts that were involved and I am not quibbling obviously with the overall sentence that was imposed.  So that is what I am doing today.

9That suspended sentence having been imposed and wholly suspended, I must advise you that should you, as I have indicated, breach it by offending of dishonesty you will have to show exceptional circumstances as to why it would not be imposed, and in this particular situation I would think that would be a virtual impossibility.  So there is other matters in regard to the sentencing submissions by the Crown which have force.  At this stage I certainly do not want to be seen as dismissing all those competing factors, but this just seems to me to be a way to see how "fair dinkum" this all is.

10All right.  So in that situation I will not be doing it in six days or anything like that.  I will simply adjourn the matter for six months, which will take us to 22 March next year for further plea and it will probably be sentence.  I make it clear that if something goes wrong, Mr Randles, you can always have it brought back before me, and it is deferred pursuant to section 83.  Right, so there is no other orders we have to make and bail continues.

11MR RANDLES:  Just one matter, Your Honour.  She appears here on bail.

12HIS HONOUR:  Yes, bail can continue.

13MR RANDLES:  That has reporting conditions.  I'm asked that the reporting conditions be deleted.  It's not something that I understand the Crown opposes.

14HIS HONOUR:  Do you have a view of this Mr Kenna or you don't care?

15MR KENNA:  I have no comment really, Your Honour, save to say that since she was given it to the County Court from the Magistrates' Court there's been no blemish with bail.

16HIS HONOUR:  No, all right.  All right, well in that situation if there is no opposition to it.

17MR RANDLES:  Yes.

18HIS HONOUR:  I'll delete those but that will require a new ‑ ‑ ‑

19MR RANDLES:  Well, both sureties are here, so that they can ‑ ‑ ‑

20HIS HONOUR:  A new undertaking.

21MR RANDLES:  They understand what's happening.

22HIS HONOUR:  All right.

23MR RANDLES:  And we'll go down and sign fresh bail downstairs.

24HIS HONOUR:  All right.  Well, I'll sign, I'll do that, sign that now.  Did I order that the last one be transcribed?

25MR RANDLES:  Yes.

26HIS HONOUR:  Yes.  You just haven't got it yet.

27MR RANDLES:  No.

28MR KENNA:  No.

29HIS HONOUR:  No.

30MR RANDLES:  Thank you, Your Honour.

31HIS HONOUR:  Yes.  Yes, I'd better do it formally or the police, may I say this, (indistinct) to have a disaster on your hands.  So that can't be done straight out, but if you just don't mind waiting a few minutes and I'll just stay outside.  Okay, then let's do it straight away.

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