Director of Public Prosecutions v Mitchell

[2022] VCC 1120

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-00119

DIRECTOR OF PUBLIC PROSECUTIONS

v

AUBREE MITCHELL

---

JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2022
DATE OF SENTENCE:	21 June 2022
CASE MAY BE CITED AS:	DPP v Mitchell
MEDIUM NEUTRAL CITATION:	[2022] VCC 1120

REASONS FOR SENTENCE

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:12-month Community Correction Order with assessment and treatment for mental health and 100 hours of unpaid community work.

APPEARANCES:	Counsel	Solicitors
Department of Public Prosecutions	Mr D. Cordy	Ms R. Adams
The Accused	Ms C. Callaghan

HIS HONOUR: 

1Aubree Mitchell, you have pleaded guilty to one charge of attempting to pervert the course of justice.  The facts of your offending are set out in Exhibit A, the prosecution opening for plea.  I was informed by your counsel that I could treat that document as an agreed statement of facts.  I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein.

2The charge to which you have pleaded guilty succinctly summarises the facts of your offending.  Between 24 April and 6 May 2021, at Bendigo, you:  (a), told lies to police as to who was driving your motor vehicle in the early hours of 24 April 2021; (b), made a false statement to police on 25 April 2021; (c), wiped the vehicle in an attempt to remove Kipp Adams' fingerprints; (d), removed items from that vehicle; and (e), made a number of false statements when interviewed by the police on 6 May 2021.

3As the learned prosecutor submitted, your conduct was not a spur-of-the-moment single act.  You engaged in a carefully planned, continuous course of conduct designed to ensure that Kipp Adams was protected from proper prosecution by police.  You changed tack midway through the record of interview and told police the truth. 

4Turning to your personal history.  You were 26 years of age at the time of your offending.  You were born in November 1994, at Bendigo.  You were the only child to parents who separated when you were five years old, and you still live with your mother.  You have not had contact with your father for 14 years.  Your counsel described your relationship with your mother as acrimonious.

5You completed schooling to Year 12 level and then commenced a hairdressing apprenticeship.  You completed a Diploma of Beauty Therapy at Bendigo TAFE in 2016.  You have worked for the Bank Australia for 18 months and at Bendigo Bank for about two years.  You then worked in a laser clinic and at a hairdresser's before taking up an employment at Lush Hair and Beauty last year. 

6You have been in a stable relationship for some nine months and have plans to leave your mother's home and move in with your partner.  You have a history of disturbed mental health, with issues of anxiety and depression, and you are medicated for these conditions.  Your counsel did not suggest that these issues have any connection with your offending. 

7You have no prior criminal history and fall to be sentenced as a woman of previously good character.  A reference, Exhibit 7, tendered on your behalf describes you as a very loving, caring and loyal person.  You are said to be hardworking and honest.  You are also said to be truly remorseful for your offending.  You wrote to the Court, in Exhibit 6, apologising for your actions, and purported to accept responsibility for your offending and resolved to make better choices in the future. 

8I accept that you are genuinely remorseful for your conduct and take that remorse into account in your favour in sentencing you.  I also take into account your plea of guilty.  I accept it was an early plea.  You are entitled to a significant reduction in sentence, to reflect that plea of guilty.  You have spared the community the time and expense of a criminal trial, and the value of that plea of guilty is greater because of the effect COVID-19 has had on the justice system.  You are entitled to a greater reduction of sentence, and I will return to the effect of that reduction subsequently.

9You have ceased associating with the social group you were part of at the time of your offending, and apparently you no longer have contact with Mr Adams.  I accept that your prospects of rehabilitation are very good, given your personal history, lack of prior conviction and stable work history. 

10Your counsel urged that the Court impose a non-conviction disposition for your offending.  I simply cannot accept that submission.  Your offending was very serious, as the learned prosecutor has said now on two occasions.  It is only because of the matters to which I have referred that I have determined that it is not necessary to impose a term of imprisonment in your case.

11Your conduct strikes at the prevention of crime and policing in this state.  The courts have often referred to the need to deter individuals who undermine our justice system.  General deterrence and just punishment are the two predominant sentencing principles applicable in this case. 

12The fact is, the Court must consider, in determining whether or not to impose a conviction as set out in s8 of the Sentencing Act1991:  (1), the nature of the offence - in this case, a mid‑level example of a serious offence; (2), the character and past history of the offender - in this case, exemplary; and (3), the impact of recording a conviction on the offender's economic and social well‑being and on her employment prospects. 

13Your counsel conceded that there is no evidence that a conviction will adversely affect your social well‑being, nor your employment prospects.  It is clear that the recording of a conviction is itself a punishment.  However, in my view, the nature of your offending is such that a conviction is required.

14I have had you assessed for a community corrections order, and you have been found suitable for such a disposition.  In my view, such a disposition balances all the sentencing principles in your case.  As I said, if it were not for the matters in mitigation urged by your counsel, I would have imposed a term of imprisonment for your offending.

15On the one charge of attempting to pervert the course of justice, you are convicted and sentenced to a community corrections order for a period of 12 months, with a special condition you perform 100 hours of unpaid community work, and you undergo assessment and treatment for mental health.  Are you prepared to undergo such an order?

16OFFENDER:  Yes, Your Honour.

17HIS HONOUR:  You need to understand that if you fail to comply with the order, if you breach the order or if you re‑offend, you will be brought back before me for sentencing, and I will then have to consider all sentencing options in your case.  Do you understand?

18OFFENDER:  Yes, Your Honour.

19HIS HONOUR:  So comply, do what they tell you.  I indicate, pursuant to 6AAA of the Sentencing Act, that but for your plea of guilty, I would have imposed a term of imprisonment of 15 months, with a non-parole period of six months.  I make the forfeiture order sought by the prosecution.  And you are to report - what do we do with the order?  All right.  We will send the order for your signature to the registrar at Bendigo court, where you will sign it today, and they will send it back to us.

20You are to report to Bendigo Corrections Centre within 48 hours of today.  So it is before Thursday night, at 4 o'clock, you have got to report to Bendigo Corrections at 3 William Vahland Street, Bendigo.  All right?

21OFFENDER:  Yes, Your Honour.  Thank you.

22HIS HONOUR:  All right.  That will be sent to you now.  Are there any other orders required, Mr Cordy?

23MR CORDY:  Just one clarification, Your Honour.  I take it that Your Honour is intending that any program hours in relation to mental health be credited against the community work?

24HIS HONOUR:  No, I did not say that.

25MR CORDY:  No?  Okay.  No.  All right.

26HIS HONOUR:  She can do 100 hours, Mr Cordy.

27MR CORDY:  As Your Honour pleases.

28HIS HONOUR:  If I wanted to make an order under s48, I would have.  Okay.  All right.  Well, I will terminate the link.  Would you please, Ms Callaghan, ensure that your client signs that order and it is sent back via the registrar.

29MS CALLAGHAN:  Yes.  Of course, Your Honour.

30HIS HONOUR:  Thank you.  Terminate the link if you would, please.

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