Director of Public Prosecutions v Campbell

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. 22-02300

DIRECTOR OF PUBLIC PROSECUTIONS

MATTHEW PAUL CAMPBELL

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2023
DATE OF SENTENCE:	23 June 2023
CASE MAY BE CITED AS:	DPP v Campbell
MEDIUM NEUTRAL CITATION:	[2023] VCC 1062

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords:              Plea of guilty – Negligently deal with proceeds of crime – Low level example of the offence – Genuine remorse – Verdins – Specific and general deterrence moderated – Excellent prospects of rehabilitation – COVID-19 pandemic.
Legislation Cited:      Crimes Act 1958 s 194(4); Sentencing Act 1991 ss 6AAA, 8.
Cases Cited:DPP v Marell [2005] VSC 430; Worboyes v The Queen [2021] VSCA 169.
Sentence:                  Community Correction Order for a period of 12 months, without conviction.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Z Petric	Office of Public Prosecutions
For the Accused	Mr W Blake	Agar Legal

HIS HONOUR:

Introduction

Matthew Paul Campbell, you have pleaded guilty to one charge of negligently deal with proceeds of crime contrary to s194(4) of the Crimes Act 1958, which carries a maximum penalty of 5 years imprisonment.
You have also admitted your Criminal Record.
Circumstances of the Offending
A prosecution opening was tendered on the plea and may be summarised as follows:
You were born in 1970 and were 50 years old at the time of the offending. You resided at an address in Elsternwick with your wife and children. You were the sole owner and director of a company called Cambelon Plastics, located in Hallam.
The victim in this matter is the Sydney Olympic Park Authority (‘SOPA’).
In September 2020, you received a direct message on your Instagram account from another Instagram account unknown to you.
The unknown party behind the Instagram account expressed interest in some of the work you had done that was displayed through your Instagram posts. The unknown party stated they were seeking to invest in your product. You were asked if you wanted to continue communication on another messaging service called Google Hangouts.
You downloaded the encrypted Google Hangouts application onto your phone and continued communicating with the unknown party in the form of online chats. You were advised by the unknown party that they were from Virginia, USA, and were stuck in Queensland due to the COVID-19 pandemic. They initially stated they did not have any money and then asked you about cryptocurrency. The unknown party asked you whether you could assist them to move some money (approximately $20,000 to $30,000) so they could access it via cryptocurrency, as it was more convenient for them as they travelled a lot and could not access their money due to being stuck in Queensland.
You agreed to assist and were instructed to create a ‘Coin Spot’ cryptocurrency account.
On 23 September 2020, you created a Coin Spot cryptocurrency account using your personal information, driver licence, business address, and email address. You also provided the unknown party with your bank account details, being a Bank of Melbourne account at the Elsternwick branch, with the account number ending in 623.
On 25 November 2020, SOPA received an authentic email from Quayclean Australia, which attached correspondence stating that they were changing bank accounts from a St George Bank account to a Commonwealth Bank of Australia account.
On 30 November 2020, Quayclean sent SOPA further authentic emails and invoices for payment of services for the total amount of $333,289.18.
Between 25 November 2020 and 1 December 2020, these emails and invoices were intercepted by malware and Quayclean’s authentic email address was changed to a fraudulent email address which looked substantially the same as Quayclean’s authentic email address but was missing one letter.
From 3 December to 18 December 2020, SOPA received emails from the fraudulent address which stated Quayclean was changing bank account facilities from St George Bank to National Australia Bank. The emails included invoices for payment for a varied sum of $345,763.07.
SOPA later received a fraudulent email dated 18 December 2020, which attached correspondence that stated as follows: ‘On Monday 14^th December, Quayclean is changing banks to the Bank of Melbourne. Please find below confirmation of out [sic] new banking details’. The details were your bank details including your account number but with the account name being Quayclean Australia Pty Ltd.

Acting on this fraudulent email, SOPA paid four invoices dated 30 November 2020, in the value of $333,289.78 into your Bank of Melbourne account.
On 22 December 2020, Quayclean received a remittance advice letter from SOPA detailing the invoice payments into your Bank of Melbourne account. On the same date, a total amount of $333,289.78 was deposited into your Bank of Melbourne account.
Following this, you made the following transfers from your Bank of Melbourne account:
(a)   between 23 December 2020 and 30 December 2020, you deposited a total amount of $178,000 into your Cryptocurrency account with account number ending in 9642;
(b)   on 23 December 2020, you transferred a sum of $75,000 to David Mason; and
(c)   on 24 December 2020, you transferred a further $75,000 to Theresa Lamb.
On 18 January 2022, you were arrested. During your record of interview, you stated you were the sole director and owner of a steel business in Hallam called Cambelon Plastics. You said the company had large overhead costs, had not paid rent for 12 months, and had lost approximately $300,000 worth of work.
You further stated you had used your mobile phone and a Lenovo laptop at work to communicate with the unknown party. You could not produce the phone used as you had changed phones since the incident.
You also made the following statements:
(a)   you denied knowledge of the SOPA and Quayclean emails and invoices;
(b)   you admitted you were the owner of the Bank of Melbourne account with account number ending in 623;
(c)   you stated that you had had your Instagram account for three years and it was open to the public;
(d)   you stated that in relation to your cryptocurrency account, the unknown party had explained to you how to set it up;
(e)   when questioned about the monies received, you stated that you ‘just wanted to get rid of it’, that you ‘recall making transactions’ and that you ‘were meant to get some form of financial reward after making transactions’;
(f)    you stated ‘I should have thought…it was a bit odd earlier on but I didn’t’ and that you were financially pressured and were ‘sucked in’;
(g)   you stated you withdrew the funds under instructions and you ‘got bullied … manipulated into doing it’;
(h)   when asked about Theresa Lamb, you stated you did not know a Theresa Lamb but that you recognised the name;
(i)    when asked why you did not notify the authorities, you stated that it had ‘crossed [your] mind to do it but you didn’t, and that you ‘just wanted it to go away’; and
(j)    you stated ‘I erased everything that I could to do with everything … I shit myself basically’.

Nature and gravity of the offending

It is clear that at the beginning of your communications with the unknown persons online, you believed you were being introduced into a new business opportunity. The prosecution accept that you had no control over the cryptocurrency accounts, or that you were involved in organising what may be referred to as an elaborate internet scam.
In the beginning you were also tricked into providing your personal information leaving you vulnerable and open to being caught up within the scam. You in effect became a conduit for the fraudulent actions of others. Once the large sums of money came into your account, it was then that you realised that something was wrong and you very quickly transferred the money out of your account on the instructions of the unknown persons.
The charge of negligently dealing with the proceeds of crime involves a ‘great falling short of the standard of care which a reasonable person would have exercised, and such a high risk that the property was the proceeds of crime’.[1] On that definition your criminality was established when you suspected something was wrong and you moved the money out of your account. The alternative at that stage would have been for you to contact the authorities once the money came into your account, rather than dealing with the money in the way that you did.
[1] DPP v Marell [2005] VSC 430, [31].
Once arrested you were cooperative and frank with the police stating that you panicked. You did not receive any benefit and as will be discussed below, you were at the time suffering from anxiety and depression.
In my view, in all the circumstances your conduct represents a relatively low level example of the offence of negligently dealing with the proceeds of crime.

Personal circumstances

You are now 53 years old, married with two teenage children. You grew up in Cranbourne South, where your family lived on a semi-rural property. You are a middle child of three siblings and maintain positive relationships with them.
You felt emotionally distant from your parents, describing them to psychologist Patrick Newton as ‘quite self-indulgent’. You recall that they had a turbulent relationship with each other and would frequently argue about the family finances. Sometimes these arguments would escalate to the point of yelling and threats, which you found frightening. Notwithstanding these issues, you developed normally and are now on reasonable terms with your parents.
You had a relatively average educational experience, attending Cranbourne South Primary School and then Mentone Boys’ Grammar School. You felt you should have attended a technical school, but in any case, you did not have to repeat any year levels in the mainstream schooling system. You had a supportive friendship circle through your participation in musical and artistic activities, but were also the target of bullying and harassment which you felt the school did nothing to address. You began to engage in behaviour such as refusing to attend school assemblies. You were ultimately ‘asked to leave’ Mentone Boys Grammar School at the end of Year 11 following your refusal to receive corporal punishment. You went on to attend Moorabbin TAFE and were considerably happier there, completing a tertiary orientation program in art and design in lieu of completing Year 12.
Your time at TAFE marked the end of your formal education and training. You went on to work briefly in a labouring role, and then worked in technical roles in the fields of steel fabrication, tool design and process development. In 1994, you went into business with your parents – your father being a hot stamp printer and plastic moulder – which was sustained until 2022, when the business closed down due to the pressures of the COVID-19 pandemic. You had just started a new role with Plastic Solutions Australia as a product development and assembly technician when these criminal matters arose, and, according to your employment contract tendered on the plea, you are at risk of losing that employment if you receive a conviction for this offending.
You have been married to your wife for over 20 years, with the marriage coming under strain due to a confluence of different issues. Your son has autism and requires additional care, support and aides at school, which has been financially challenging for the family and caused tension between you and your wife. The COVID-19 pandemic caused a significant downturn in your business, which was largely reliant on the hospitality sector. This brought you under further financial hardship, which you sought to alleviate by taking the actions that now give rise to these criminal proceedings, placing further strain on your marriage.
A psychological report authored by Patrick Newton, dated 3 May 2023, was tendered on the plea, and is insightful in respect of your mental health and history of substance use. Mr Newton is of the view that you meet the diagnostic criteria for moderate generalised anxiety disorder, comorbid major depressive disorder and mild alcohol-use disorder. He notes that your anxiety had its onset early in life in the context of difficulties establishing secure attachments within your family, and this was exacerbated by the protracted bullying you experienced in school. Your anxiety is ‘free floating’, with your triggers being ‘widespread and diverse’, and your symptoms persist despite the fact that you are both medicated and receiving counselling.
Prior to this offending, you had never sought professional mental health assistance, but have since attended fortnightly counselling sessions with Steve Osrin of the Brighton Psychology Centre. In a letter provided to the Court dated 1 June 2023, Mr Osrin observes that you present with symptoms of depression and insomnia, and confirms that he is working with your GP to manage your medication. He believes you have made a ‘genuinely strong commitment’ to therapy, but the need for ongoing treatment is clear.
You commenced drinking alcohol at age 17 and have engaged in a pattern of moderate to heavy social drinking since then. You are prone to drink more heavily under stress, and would drink to harmful levels during the COVID-19 pandemic lockdowns. Your drinking was particularly intense at the time this offending took place. At the time you were assessed by Mr Newton, you had not participated in any form of alcohol-related rehabilitation, however you have recently started attending Alcoholics Anonymous.
Two references were tendered at the plea. One from a close friend Angela Bourke, who also supported you by attending court at the plea hearing. The second is from a friend and colleague, Dylan Breninger. Both speak of your genuine remorse and shame. Ms Bourke states that you are an otherwise well respected hardworking member of the community and that you are a trustworthy friend.
Sentencing considerations
I first take into account your plea of guilty. Your plea has saved significant court time and expense and has brought the matter to an early conclusion, thereby facilitating the course of justice. The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[2]
[2] Worboyes v The Queen [2021] VSCA 169, [39].
In addition to your plea of guilty it was submitted on your behalf that you have expressed genuine remorse. Mr Newton observed what he describes as your ‘heartfelt and apparently genuine remorse’ noting your words to him that: ‘Shame is the biggest thing here. I’m riddled with it’. As noted, your remorse has also been observed by your friends and colleagues. In my view in all the circumstances you have demonstrated genuine remorse.
Mr Blake, who appeared on your behalf, submitted that as a result of your psychological conditions, Verdins principles are enlivened with an emphasis on your conditions reducing your moral culpability. Mr Newton is of the view that the symptoms of your depression and anxiety would have been present at the time of the offending. Specifically in relation to your anxiety Mr Newton states:
Mr Campbell’s high level of anxiety would be expected to have impaired his capacity to reflect upon his action, to consider a full range of options and to evaluate the likely effects of a given course of action. I would anticipate an increase in distractibility, an ineffective and inefficient approach to problem solving, and a tendency to make decisions without sufficient reflection for the full ramifications of a decision to become apparent to him.
The prosecution did not challenge the view of Mr Newton and in my view Verdins principles do have application, reducing your moral culpability. I am also of the view that general and specific deterrence should be moderated as a result of your depression and anxiety, which is ongoing.
As to you prospects of rehabilitation, I take in to account that at the age of 53 you come before the court with only minor and historical road traffic matters. You are receiving ongoing treatment from a psychologist and you have supports in the community. In my view, in all the circumstances your prospects of rehabilitation are excellent.
General deterrence is the primary sentencing consideration. Others must be made aware, particularly in relation to the increasing prevalence of internet scams, that they should be alert to fraudulent conduct and should consider that if they take any steps to facilitate such conduct, they may be met with criminal sanctions. As to specific deterrence in my view given your insight, your remorse and the impact this prosecution has had on you, specific deterrence should carry little weight.
It was submitted on your behalf that a ‘work only’ Community Correction Order is able to meet the relevant sentencing considerations in this instance. I agree. However it was also submitted that the Community Correction Order should be without conviction. Having considered the relevant evidence and s 8 of the Sentencing Act 1991 (‘Sentencing Act’), in my view the Court need not proceed to record a conviction in this instance.

Sentence

Mr Campbell, would you please stand.
Matthew Paul Campbell, on Charge 1, negligently deal with proceeds of crime, without conviction you will be placed on a Community Correction Order for a period of 12 months. In addition to the standard conditions, you will be required to perform 75 hours of unpaid community work.
Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a Community Correction Order with conviction for a period of 2 years and a requirement that you perform 150 hours community work.

[2023] VCC 1062

23 June 2023