Director of Public Prosecutions v Brotherton
[2020] VCC 2026
•10 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-20-00461
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW BROTHERTON |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2020 | |
DATE OF SENTENCE: | 10 December 2020 | |
CASE MAY BE CITED AS: | DPP v Brotherton | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2026 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – two charges obtain financial advantage by deception – two charges obtain property by deception – one charge theft – one charge blackmail – youthful offender – circumstances of Covid-19 pandemic
Legislation Cited: Crimes Act 1958 ; Sentencing Act 1991
Cases Cited: Boulton v R [2014] VSCA 342; Loftus v R [2019] VSCA 24
Sentence: 46 days imprisonment with a 24 month CCO and fine of $400
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Mandie | Office of Public Prosecutions |
| For the Accused | Mr A. Waters | Martin Middleton Oates Lawyers |
HER HONOUR:
Introduction
1 Between 5 April 2019 and 21 July 2019, a 22-year-old man asked a work colleague to lend him money. Initially, he asked for loans for honestly stated purposes, but this devolved into deceiving the colleague into giving him money for false reasons. The man then used various online platforms to contact five further victims with whom he had no relationship in the community. In various ways, these people were deceived or, in the most serious event, threatened, into sending him money.
Pleas of guilty and maximum penalties
2 Matthew Brotherton, you have pleaded guilty to two charges of obtaining financial advantage by deception, an offence that carries a maximum penalty of 10 years imprisonment, two charges of obtaining property by deception, the maximum penalty for which is 10 years imprisonment, one charge of theft, the maximum penalty for which is 10 years imprisonment, and one charge of blackmail, the maximum penalty for which is 15 years imprisonment.
Circumstances of the offending
3 The facts relating to your offending are set out in the prosecution opening dated 4 November 2020. This document became exhibit A on the plea. It is attached to and forms part of these reasons. I will not repeat each fact here but summarise some aspects of your offending. Your offending occurred in Mildura between 5 April and 21 July 2019.
Charge 1 - Obtaining financial advantage by deception
4
Sebastian Fletcher was a friend of yours from work. Between 15 April and
13 July 2019 you asked him for money over Facebook. Mr Fletcher obliged and you later acknowledged that you owed him around $22,000 or $23,000. Most of that money was obtained by you from Mr Fletcher without deception, that is, he gave you the money voluntarily for reasons that were stated honestly by you. However, you later admitted that $2000 of this money was given to you by
Mr Fletcher on the basis of your deception of him.
5 The deceptive aspect was that you represented to Fletcher that you would, or had already, transferred money to him with some extra for helping you out, in an effort to get Mr Fletcher to transfer you money that you could access immediately. You represented to Mr Fletcher that you were repaying him some of the money that you owed him but somehow this required Mr Fletcher to send you further money in order that those funds could be ‘cleared’. In all, this resulted in the deception of Mr Fletcher occasioning the transfer of a total of $2000 to you.
Charge 2 - Obtaining property by deception
6
In around mid-April 2019, you made contact with a 19-year-old woman
Ms Sophie Lidgerwood over Tinder. You communicated over that application, then changed to using Snapchat. On 6 May 2019, after you had been communicating with her for a period, you asked her for a favour. That favour was to transfer $200 to you via ‘cardless cash’. You told her you’d left your bank card at home but that you could transfer money to her via online banking and then take out the money she sent you via cardless cash at an ATM.
7
She obliged, and sent you $200 to an ANZ account in the name of Sebastien Fletcher. Ms Lidgerwood understood that she was sending this money to
Mr Fletcher’s account so that you and she could each receive the funds transferred instantly, given that you were supposedly sending her money at the same time. However, the next day you told Ms Lidgerwood that you had not received the $200. She had not received the funds you purported to have sent to her. You then told Ms Lidgerwood that the bank somehow required further funds to be sent in order to clear the previous transactions. She then transferred funds over the following days, with you repeatedly telling her that more transfers were required. To support this process, you were also sending her false payment receipts in an effort to make her believe that you were transferring money to her bank account. In this way, Ms Lidgerwood transferred her savings to you. This was a total of $12,200 transferred over six days.
8 On 13 May 2019, you asked for Ms Lidgerwood’s credit card details, including the expiry date and CCV number. At this point, Ms Lidgerwood refused. You then stopped communicating with her.
9 Ms Lidgerwood raised a dispute in relation to these transactions with the ANZ bank and this triggered a report to the Australian Cybercrime reporting network or ‘ACORN’.
Charge 3 - Theft
10
On about 27 May 2019, a Ms Cross made contact with you via Tinder. You then proceeded to communicate by Snapchat. This evolved to you asking
Ms Cross to send you around $500. You told her if she sent you that money, that you would pay her back with $200 or $300 extra for ‘helping you out’.
11 On 27 May 2019, Ms Cross transferred $500 from her bank account to you. She subsequently reported that this amount had been transferred without her permission and she reported the event to ACORN.
Charge 4 - Obtaining financial advantage by deception
12
Sometime just before 13 July 2019, you placed an ad on Facebook marketplace selling an Apple watch for $450. Your seller's name on Facebook was
Matthew Schelfhout. Mr Jasmandeep Singh responded to the ad and around 13 July 2019 you sold the watch to him for $360.
13 When Mr Singh took possession of the watch, he found that it was locked and required an Apple ID login to unlock it. You provided various explanations for this but no code that would unlock the watch. Mr Singh couldn’t use it and organised to return the watch to you. You told Mr Singh that you would repay him $400 for the watch and the charger that Mr Singh had had to buy for it, saying the additional $40 was a bonus. You then sent him a false bank transfer receipt for $400 and, on this basis, Mr Singh returned you the watch.
14 You did not transfer $400 to Mr Singh. You later promised him you would do so within a fortnight and he never received any of that money. You retained the watch.
Charge 5 - Obtaining property by deception
15 Around 15 July 2019, you communicated with a Ms Breanne Pertot via the dating application Plenty of Fish. You migrated to using the Snapchat application and exchanged messages. On 18 July 2019, you told Ms Pertot that an ATM ate your card. You told her that if she transferred $300 to you, you would transfer $1000 back to her as thanks for helping you out. You instructed her how to use Pay ID via mobile phone.
16 This request took place in the context of a supposedly friendly and flirty conversation over Snapchat. You told her things about your financial position that were untrue. You sent her instructions on how to use cardless cash.
17
You assured your victim that you would send her $1000 and 'right now' proof that you had sent it. Ms Pertot eventually agreed to send you $300. You sent her a false screenshot of a transfer of $1000 to her account. You then set about trying to get Ms Pertot to send further funds, again, asking her to do this in order to clear the funds already sent. Ms Pertot obtained another $200 from her mother and told you she would transfer it. You sent her a string of messages about this while she was at work. Your requests persisted and ultimately,
Ms Pertot refused to send you any further money. She had already sent you over $1000 during this process. When she refused to transfer more money you deleted her from Snapchat and did not contact her again.
Ms Pertot and a friend of hers sent you messages, attempting to retrieve the money she had sent you, a total of $1101 over several transactions.
18 Ms Pertot subsequently reported your conduct to ACORN.
Charge 6 - Blackmail
19 On 21 July 2019, Mr Harris[1] accessed a personals application online. It was called ‘Locanto’. Locanto has a section dedicated to ‘casual encounters, fetish encounters.’ Here, Mr Harris discovered an advertisement with the title, 'Anyone keen on glory hole fun 23'. The 23 is a reference to age. The message read, 'Looking for fun glory hole in Mildura if anyone is keen'. The person posting the message used the username, 'Anythingyouwant7'.
[1] A pseudonym.
20
Mr Harris sent a message to ‘Anythingyouwant7’. The conversation then moved to a different application where you and Mr Harris continued to exchange messages. You were both using assumed names at that point. The conversation took place between 3 and 5 am and became intimate.
Mr Harris disclosed that he identified himself as bisexual and disclosed further information relating to his intimate relationships. You sent him a picture of a young woman and told him that this was your sister and that she was 16. You suggested to Mr Harris that he engage in sexual activities with you and your sister together. Mr Harris was hesitant.
21 You then told him that you had a friend who is 18 and might be available for sexual activity but only in exchange for cash. You asked the victim for money saying, 'We need cash now, how much you got now'. Later that day, you contacted the victim again, asking for money, stating that your card had been eaten by an ATM at a service station and that you had no way of paying to put fuel in your car. You asked him to send you $100 by ‘cardless cash’. You told him that you would repay him to the value of $100 or $200 in order to thank him. You explained the ‘cardless cash’ process. The victim eventually transferred you $40 in this way. You then send him a fake receipt indicating that you had transferred $400 to him as a thank you. On the basis of this fake receipt, you then asked for more money and Mr Harris sent you $100. You are not charged with those events and I do not sentence you on that basis.
22 You then told Mr Harris that you had seen his real name on his bank account and that, as a consequence, you now knew who he was and where he worked. You returned to the question of organising sexual activity with the person you claimed was your sister. There was a discussion about her being underage. The victim expressed concern, particularly in relation to what would happen to him if he were found out. Although Mr Harris was hesitant, he did agree to that sexual activity. As soon as he gave that agreement to you, you threatened to publish his name on Facebook. He asked what he could do to stop this and you demanded ‘$300 now’. You continued to make threats to publish the exchange everywhere on social media. You told Mr Harris that he might lose his security license or go to jail.
23 Mr Harris did not have any money so he attempted to meet your demands by offering his PlayStation or coin collection but you insisted on cash. Eventually, Mr Harris borrowed money from his mother and paid you $200. You told him the $200 was not enough and continued to threaten him by reference to going to the police and to his potentially losing his ability to work. You demanded $500. Mr Harris, to his great credit, eventually ended the conversation and reported you to police, providing the messages that were exchanged.
24 On each of the occasions where you asked the victims of your offending to transfer money to you, you promised you would repay them or send them funds simultaneously and you did not do so on any occasion.
Arrest and interview
25 On 26 July 2019, you were interviewed by police. In essence, you made admissions.
Prior criminal history
26 You come before the court as a man without relevant prior convictions. You admitted to one court appearance in 2018 in relation to two charges for which you were fined without conviction and I do not regard them as relevant.
27 You have one subsequent conviction which is only relevant in that it explains procedural history of your grant of bail and the presentence detention in this case.
28
You were charged on 26 July 2019 and bailed to appear at the filing hearing on 29 July 2020. However, on 1 February 2020 you were remanded on those unrelated charges. You were sentenced for those subsequent matters on
11 March 2020. No presentence detention was declared as part of that sentence. You then remained on bail in this matter until 17 March 2020 when you were committed on the current charges and granted bail in the Magistrates' Court.
Pre-sentence detention
29 As a result, you have served 46 days of imprisonment by way of pre-sentence detention between 1 February 2020 to 17 March 2020.
Nature and gravity of the offending
30 Your barrister's description of your offending was apt. He said it began with a dishonest taking advantage of a friend, that’s Mr Fletcher, but then deteriorated and went well beyond dishonest into the disgraceful. Your offending can better be understood in perhaps three categories. First, in relation to Mr Fletcher, you exploited a friend who was otherwise willing to help you. In the second category, there were young women who, in the hope of perhaps meeting a romantic partner, put themselves onto various online platforms. In that context, you chatted and flirted with those women and then exploited what perhaps they understood to be the beginnings of an intimate friendship. The third category was, as your lawyer acknowledged, truly disgraceful. You sought out an online space that specifically caters for people seeking less conventional forms of intimacy. There, you generated an intimate conversation with another person and encouraged him to commit himself in writing to conduct that, if disclosed publicly to others, he felt would affect his standing in the community and his ability to work. You were able to get past the anonymity of your online names by first getting him to transfer you funds in the way you had been practising with the other victims in this case. Once you established his identity, you then proceeded to put him under what must have been enormous and terrifying pressure.
31 In relation to the first and second categories, but particularly to the second category, the amount of money involved was relatively minor and it was generally agreed on the plea that each, and indeed all, the charges might have been dealt with in the summary process in the Magistrates' Court, with the exception of the blackmail. That said, it should be acknowledged that there was a personal and rather intimate context for your deceptions of the women online.
32 In relation to the offence of blackmail, I regard it as by far the most serious of these matters. Your conduct was calculated to terrify your victim into sending you money. However, I also acknowledge that your conduct was not particularly protracted and, in the assessment of the overall culpability of the charge of blackmail, the amounts of money demanded by you were small. None of your threats were carried out.
Personal circumstances
33 You were 22 at the time of your offending and you are 24 now. You had a difficult and impoverished childhood. Your father left your mother before you were born. Your mother raised you and your siblings on her own in the coastal and country towns of New South Wales where she could get accommodation. This transient life caused you to attend 11 separate primary schools. You had poor eyesight but feared the bullying you would receive if you wore glasses and your ability to learn was, in this way, diminished.
34 You left school in year 8 to pursue an apprenticeship in plumbing and electrical work. You worked for about six years in this field but did not ever fully achieve the qualification. In general, your family’s life was difficult, transient and insecure.
35 When you were 20, you moved to Mildura to pursue a relationship with a woman. While there, you began working in a chimney and canopy cleaning business where you met Mr Fletcher. At the time of the offending, you were in a relationship with another woman, living with her and with her two children. You had had difficulty with housing which caused you to have to rent a caravan which was both expensive and uncomfortable.
36 Initially, you commenced borrowing from your friend Mr Fletcher for legitimate reasons, for needs, for rent and other matters, but your financial situation spiralled well out of control when your debt to him mounted. You began to gamble in a futile attempt to recover further money and, as a consequence, your offending became more desperate and more disgraceful.
Impact on victims
37
None of the victims of your offending took up their opportunity to make statements about the effect it had on them. However, I am sentencing you on the basis that each of your victims, perhaps a little less so in relation to
Mr Fletcher, but each of them would have experienced some level of humiliation as a result of what you did. Mr Harris would no doubt have found the interaction with you deeply stressful. The fact that the victims did not take up their opportunity to make victim impact statements does not seem to be completely unrelated to the form of your offending.
Plea of guilty
38 You made admissions during your record of interview to police. Your answers to their questions would likely have made their investigation much more efficient.
39 You have pleaded guilty at an early opportunity. Your case resolved under the emergency case management system. It is a very significant matter at any time to plead guilty, but perhaps especially so during the COVID-19 pandemic when the trial backlog is very large. This is a very significant matter to be taken into account on your plea. Moreover, I accept that your plea contains within it an aspect of remorse. Your remorse is also evident in some of your answers during the police interview in which you describe yourself as an ’even worse kind of person’ for taking advantage of strangers. You told the police that you did the wrong thing and that you were happy to repay anyone that you owed money to.
40 During your record of interview, you also tell police that you are under extreme financial pressure. Some of that pressure seems to have been brought about by your ill-judged use of gambling the money you were able to extract from others in an effort to increase it. However, I accept that, at the time of the offences, you did face real financial difficulty and that you were under pressure to pay for expensive and insufficient accommodation. Your situation spiralled out of control but you compounded your already difficult circumstances by using some illicit substances.
Delay
41 Your offending took place in early to mid-2019 and resolved finally at plea hearing on 2 December 2020. In context, this delay is not terribly lengthy, however, I do take it into account that you have had this case hanging over your head for that time.
Prospects of rehabilitation
42 You were 22 at the time of the commission of these offences and you are only 24 now. Your youth is important in two ways. First, I accept your barrister’s submission that at 22 you did not have a sophisticated or mature appreciation of the effect of your unpleasant behaviour on others. Your youth, I am prepared to accept, allowed you to conduct yourself in this way without properly imagining the harm that you were inflicting.
43 Your youth is also important in my assessment of your prospects for rehabilitation and my privileging that sentencing aim above others. You are still a young person and the community will best benefit if you are rehabilitated.
44 You have some work history although you are not working at the moment. You have a current partner and the two of you have recently obtained some stable accommodation and these are good early building blocks of a better life for you.
Relevant sentencing principles
45 I must sentence you in a way that will deter other people from doing anything similar and deter you from doing something similar in the future. I must also impose just punishment and do all this in a way that will best afford the community protection from this kind of conduct in the future.
46 On the plea, my attention was drawn to the statements of principles of general deterrence in blackmail cases in the case of Loftus. It is in the public interest that complainants in blackmail cases know that their brave reporting does not go without acknowledgement.
47 The subject of your offending was published in the local newspaper. The headline read, 'Alleged scammer released on bail,' or similar. I accept that you live in a relatively small regional community. Publicity about your offending has made you feel ashamed and made you feel that you cannot face the public. I acknowledge this and take it into account. Some of the work of denunciation and deterrence has perhaps been performed in this way.
48 I note that you have not opposed the making of a compensation orders in this case.
Totality
49 In relation to the principle of totality, I have had regard to that principle and moderated my sentence with that principle in mind.
Regard to current sentencing practices
50 On the plea, I was referred to a number of cases in the County Court jurisdiction. I have had regard to these and other cases.[2] None of them is exactly like yours. I have had regard to them as the framework but not the fixed parameters of my sentencing discretion.
[2] See for example DPP v Fraser 2018 VCC 658; DPP v Rosser 2018 VCC 1517; DPP v O'Dwyer 2016 VCC 1084; DPP v jia 2016 VCC 422; DPP v Barker 2017 VCC 2020. Also R V Son Vo VSCA 14 May 1998; DPP v Vella & Ors.
Disposition
51 Your barrister reminded the court to be guided by the principles in the case of Boulton and that Community Corrections Orders can incorporate aspects of general deterrence and the other sentencing principles and I have had regard to those principles in formulating this sentence.
52 So now I am going to read out exactly the sentence, Mr Brotherton. After the hearing, your barrister will get an opportunity to explain it to you.
Sentence
53 On Charge 1: obtaining financial advantage by deception, Charge 2: obtaining property by deception, Charge 3: theft, and Charge 5: obtaining property by deception, you are convicted and sentenced to a Community Corrections Order of 24 months’ duration.
54 On Charge 4 obtaining financial advantage by deception, you are convicted and fined $400.
55
On Charge 6 blackmail, you are convicted and sentenced to 46 days imprisonment and, in addition to that, to a Community Corrections Order of
24 months duration.
56 Pursuant to s.40 of the Sentencing Act 1991, I make one Community Correction Order in respect of each of the offences identified as carrying that sentence.
57 The total effective sentence on this indictment is therefore 46 days imprisonment and a community corrections order of 24 months’ duration.
Pre-sentence detentio
58 Pursuant to s.18 of the Sentencing Act 1991, I declare that 46 days of imprisonment is already served.
Section 6AAA reduction
59
Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that, had you not pleaded guilty but had been found guilty after trial, I would have sentenced you to a period of two years imprisonment with a non-parole period of
16 months.
Explaining the order
60 Mr Brotherton, I am going to now explain the Community Corrections Order that I intend to make you subject to. I want you to listen because, after I do this, your barrister is going to have a moment to confer with you and make sure you understand the order and obtain your commitment to completing this order. So just listen carefully for a moment.
61 You will be first be subject to the standard conditions of a CCO. That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 24-month period. If you do, you will be brought back to court before me and re-sentenced. In those circumstances, absent some very, very powerful unusual reasons, you can expect that that would involve your incarceration.
62 You must report within two working days of today by phone to the Mildura Office of Corrections. You will be then directed for your first supervision appointment.
63 You are required to advise your supervisor in the Corrections Office of any change of address where you are living or working and you must do so within two clear working days.
64 It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Officer. You are not able to leave the State of Victoria without their prior permission.
Special conditions
65 These are the special conditions that I am going to make you subject to. You will be required to complete programs to continue to address your treatment and rehabilitation for drug use.
66 You must comply with programs directing at any issues that you have to do with gambling.
67 I have noted that unpaid work is currently not recommended by the Office of Corrections at the moment and I adopt that recommendation.
68 You must participate in supervision by your community corrections officer as required.
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HER HONOUR: I'm now going to stand down briefly. Mr Waters, I'm going to ask you to go through those conditions with your client and then I'll come back on the Bench and obtain his verbal consent, if he offers it.
MR WATERS: Indeed, Your Honour, I will.
MS MANDIE: Your Honour - - -
MR WATERS: Ms Mandie's raising her hand.
HER HONOUR: Just a moment. Ms Mandie wants to say something before I leave, so let's deal with that. Yes.
MS MANDIE: Just to the compensation orders, Your Honour.
HER HONOUR: Yes.
MS MANDIE: I'm just reminding that they need to be made.
HER HONOUR: Yes. Yes, I'm going to come back to those because I have a couple of questions about them. The quantums in one or two of them and the people to whom those orders are directed. So if I could just get you to use this time to look at those draft orders that have been provided and just have a look to see if they're all correct.
MS MANDIE: Thank you.
HER HONOUR: But I'm certainly going to return to those. We'll deal with the CCO first.
(Short adjournment.)
Yes, Mr Waters, did you have a chance to go through the proposed CCO conditions with your client?
MR WATERS: I most certainly did, Your Honour, and I can indicate, or he can indicate, he consents to the order. I think he perhaps probably needs to do it himself.
HER HONOUR: Yes, perhaps, that's right. Mr Brotherton, you've had some advice from Mr Waters. Do you consent to undertaking the Community Corrections Orders as I have described.
ACCUSED: Yeah, I do.
HER HONOUR: All right, good. So we can do that now by this process. We don't have to obtain an immediate signature as we used to do.
MR WATERS: Yes.
HER HONOUR: So having done that, the paperwork will be forwarded through to your lawyers, Mr Brotherton, and you need to have a look at that when it comes through. Now I'll deal with the applications for compensation orders. Ms Mandie, over to you.
MS MANDIE: Yes. I have - sorry.
HER HONOUR: I have three draft orders.
MS MANDIE: Yes.
HER HONOUR: One in the name of - - -
MS MANDIE: And I - sorry. Yes.
HER HONOUR: - - - Harris, one in the name of Lidgerwood and one in the name of Pertot.
MS MANDIE: Yes.
HER HONOUR: Tell me about them.
MS MANDIE: The draft orders for Ms Pertot and Ms Lidgerwood are correct and those are the amounts sought.
HER HONOUR: Yes.
MS MANDIE: However, the amount for Harris is incorrect. Your Honour may have noticed.
HER HONOUR: Yes.
MS MANDIE: It should be $200.
HER HONOUR: $200 for Harris.
MS MANDIE: Yes.
HER HONOUR: And then there are the other matters. Presumably, you don't apply in relation to Mr Singh or Ms Cross. Is there some basis for that?
MS MANDIE: Well, as indicated during the plea, some of the victims were unable to be located or reluctant to have anything to do with the process.
HER HONOUR: I understand, all right.
MS MANDIE: Yes.
HER HONOUR: Then I'll make the orders as drafted in relation to - sorry. Mr Waters, did you want to be heard on any of that?
MR WATERS: No, Your Honour.
HER HONOUR: All right. I make the orders as drafted in relation to Lidgerwood and Pertot. I'll await a further draft of the amended quantum in relation to the order for Mr Harris.
MS MANDIE: Yes. My instructor's already drafted that, so she'll send that through.
HER HONOUR: All right. Is there anything that anyone wishes to raise further? Are we completed? All right.
MS MANDIE: I think so, Your Honour.
HER HONOUR: I want to thank both counsel for their assistance in this case, in resolving this case during the pandemic under difficult circumstances, and so the court thanks you.
MR WATERS: Thank you.
HER HONOUR: All right, we'll rise until two.
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