Director of Public Prosecutions v Mellington
[2023] VCC 1192
•6 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00044
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM MELLINGTON |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 June 2023 |
| DATE OF SENTENCE: | 6 June 2023 |
| CASE MAY BE CITED AS: | DPP v Mellington |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 1192 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Commonwealth charges of negligently dealing with proceeds of crime exceeding value of $100,000 – sentence indication accepted – transferring money to different accounts after receiving funds not intended for offender – obtained direct benefit of some funds – offender ambivalent about wrongdoing – plea of guilty – no relevant criminal history – no reliance on Verdins – evidence of remorse – considerable delay – good prospects of rehabilitation – specific deterrence lesser role – importance of general deterrence
Legislation Cited: Crimes Act 1914
Cases Cited:R v Verdins [2007] VSCA 62
Sentence: 30 months imprisonment released immediately on recognisance order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Nicholson | Office of Public Prosecutions |
| For the Accused | Ms M. Brown | O’Keeffe Schroeder Lawyers |
HIS HONOUR:
Introduction
1On 6 June 2023, William Mellington sought a sentence indication. One was given, which was accepted. He then pleaded guilty to the charges on the indictment and was sentenced. The total effective sentence was 30 months’ imprisonment. I directed his immediate release upon giving security by recognizance of $1,000 with these conditions:
(a) to be of good behaviour for 3 years; and
(b) to be subject to the supervision of a probation officer.
2I sentenced Mr Mellington on 6 June without giving reasons. I told the parties I would provide my sentencing remarks today, a course acceptable to both.
Circumstances
Charge 1
3On or before 30 March 2016, Mr Mellington gave details of his NAB account to another person. A person, purporting to be from GHD Australia P/L (GHD), contacted the accounts payable section of the Brisbane City Council (the Council). The Council owed monies to GHD and this person changed the banking details of GHD to the account of Mr Mellington.
4Between 14 July and 5 August 2016, nine deposits were made into Mr Mellington’s account. They totalled $450,904.96. Mr Mellington knew deposits would be made to his account and none of the monies belonged to him.
5Between 15 July and 8 August 2016, in the course of 15 transactions, Mr Mellington transferred these monies from his account to another account of his, to other accounts in Australia and to financial institutions overseas. Details of those transactions are set out in table 2 to the document, “Agreed facts for sentence indication”. Those transactions totalled $445,596,88.
6Mr Mellington obtained a direct benefit from some of those transactions. Overall, he received about $26,541.15.
Charge 2
7Owing to activities of which Mr Mellington was unaware, a person arranged for Taronga Zoo to change where it paid debts owed to Zauner Construction. Meanwhile, Mr Mellington set up a company, Zauner Construction Australia Pty Ltd (Zauner). He was sole director and shareholder. He opened a bank account in the company’s name.
8A person contacted the Taranga Zoo nominating the Zauner’s bank account as the account to which payments should be made. Subsequently, $645,861.02 was paid into the account. 5 days later, Mr Mellington transferred $60,000 from the account. This amount was later returned by another bank. That same day, the bank contacted the Taronga Zoo advising it of the fraud. The $645,861.02 was returned to Taronga Zoo.
9On 18 February 2017, his home was searched. He was interviewed the next day and made certain admissions.
Personal
10Mr Mellington is now 45. He is the second of 4 children. He has an older sister and two younger brothers. He grew up on a farm near Hamilton which his father farmed. He enjoyed a good life growing up on the farm.
11Having completed Year 9, he left school in Year 10 at the age of 15 to begin an apprenticeship on a farm. However, it was short-lived owing to a falling out with his employer. He worked on farms and then as a shearer before a wrist injury put an end to shearing. He returned to working in dairy farms before undertaking an apprenticeship in diesel mechanics. It is unclear whether he completed the apprenticeship but did work in that area for 3 or 4 years. He then took up truck driving, mostly carting livestock. This proceeding led him to stop truck driving. He now works for his father on the family farm although he would like to return to truck driving.
12Although a heavy drinker of beer as a young man, owing to the demands as a driver, Mr Mellington is now a social drinker. He has never used illicit substances.
13At about 18, he formed a relationship, which produced a son, now aged 23. His partner became a Jehovah’s Witness and wanted to move to Adelaide. Mr Mellington did not go with her and his son. Their departure was abrupt and unexpected. He has had little contact with his son over the years.
14Mr Mellington entered a new relationship. Unfortunately, his partner was an addict. She was abstinent initially but resumed drug taking. She attacked him, physically and verbally. He ended the relationship.
15At about 27, he met Megan. After enjoying each other’s company for a few years, they married. They have 4 boys, aged between 7 and 15. When they met, Mr Mellington was working as a diesel mechanic. For financial reasons, he changed to truck driving. This took him away from home too much for Megan’s liking. They argued incessantly. Ultimately, Megan and the children left the matrimonial home which was later sold. Megan has publicly criticised him. In the community of Kerang, it has made him feel shunned.
16Access to his children is limited for they live in Kerang and Mr Mellington now lives in Hamilton and the unwillingness of Megan to be more accommodating.
17His relationship with Megan is complicated. The Family Court required him to undertake an anger management programme, which he did and to be assessed by a psychologist, which he has not done because of the cost. There have been three family violence intervention orders made. None is current.
18Since his separation from Megan, Mr Mellington has had other relationships. The most notable is “Linda Carlos”. He met her on Facebook in 2016 or 2017. Ms Carlos told him she was an only child, eligible to inherit a vast fortune if she married or was in a serious relationship. She said she wanted to come to Australia. Even though the matrimonial home was sold, he was still in a “financial pickle”. He hoped Ms Carlos would solve his financial problems.
19Before Ms Carlos could come to Australia she needed some financial support including the cost of an airline ticket. He did provide some money even though he could ill afford it.
20To the psychologist, Mr Mellington described his relations with his siblings. It is fair to say he feels inferior to his siblings, especially one of his brothers.
21He was bullied at school. He has no close friends. He does not make friends easily.
22He met “Linda Carlos” online following his separation from his wife, was living alone and feeling isolated because of the “nasty rumours” spread by his wife about him. He was struggling financially and thought Ms Carlos’ wealth would help him.
23Despite her expected wealth, he gave her some monies and contributed to her airline ticket. He even went to the airport to collect her but she did not arrive.
24Later, she contacted him, advising she was arrested for drug possession. She cared for someone’s baggage, which contained drugs. He kept in contact for a few months afterwards but “she” never came to Australia.
25In about 2019, Mr Mellington met Felicity on a dating site. Felicity proved to be a real person and they started to live together after she came from Tasmania.
26Mr Mellington established a trucking business. He leased a prime mover. In order to avoid his estranged wife from sharing in his assets, everything was in Felicity’s name and she was responsible for paying the bills of the business. On a trip to Queensland, she stayed behind, ostensibly to see friends. Later, he found she had contacted other drivers and had not paid the finance company. The prime mover was repossessed.
27Recently, Mr Mellington met Samara online. She lives locally and has a 13-year-old daughter. They are in a relationship. The psychologist sees benefit in this relationship, including Samara as an adviser.
28After the police interviewed him, he found a lawyer online. He made a series of payments to the lawyer, totalling $68,895. These monies came from his mother’s superannuation account. Amazingly, he had no conferences with this lawyer, whether online or by phone. But he did receive a document, which Mr Mellington accepted at face value.
29This single-page document is headed “Bendigo Magistrates Court” and entitled “Case Dismissal Approval”. After a series of quasi-legal statements, the document records the dismissal of the case against Mr Mellington. It purports to bear the name of counsel for the Director and a signature. To anyone, even slightly conversant the processes of the law in this State, the document is nonsense. It is extraordinary to think Mr Mellington accepted the document as genuine and paid a huge amount of his mother’s money in the process.
30He is ambivalent about wrongdoing. On the one hand, he thought he was doing the right thing. On the other, he acknowledged the wrongfulness of his actions when it was pointed out to him.
Psychologist
31Peter Stanislawski is a forensic psychologist. At the request of his solicitors, he interviewed Mr Mellington on 31 March and 3 May 2023[1]. He answered questions posed by the solicitors.
[1] Report dated 17 May 2023.
32Mr Mellington does not justify the diagnosis of any recognised psychological disorder. His intellectual functioning is in the average range, perhaps the upper end of the low average range.
33He interprets things literally and his thinking style is concrete. He is impulsive and makes poor decisions as a result. He is prone to wishful thinking and interprets situations to fit his desires. His indecisiveness, exacerbated by his marriage break down, made critical thinking more difficult. He is extremely gullible.
34He is a low risk of re-offending in this manner.
35Imprisonment would not adversely affect him in the manner contemplated by R v Verdins[2].
[2] [2007] VSCA 62.
36He considers Mr Mellington’s prospects for rehabilitation are good. He wants to talk to others and has the potential for greater insight.
37He recommends psychological and financial counselling. The former would change him by increasing his self-confidence and assertiveness. He needs support to increase his capacity to develop social skills, friendship groups, perspective taking and critical thinking. Financial counselling would rid him of his financial ignorance.
Comparable cases
38The Director’s counsel referred to 4 comparable cases and helpfully summarised each.
Discussion
39Both counsel provided written submissions and made oral submissions. Not unnaturally, both paid particular attention to the requirements of s 16(2) of the Crimes Act 1914.
40Mr Mellington’s offending covered a period of 27 days, between July and August 2016. Charge 1 encompasses 15 transactions while charge 2 involves his receipt of monies. With both charges, the amounts are large. Although seeking to help “Linda” come to Australia, he diverted some of the monies ($26,541.15) in charge 1 to his own use. But it is not alleged he knew he was part of a larger scheme. Fortunately, owing to the action of a bank, the monies in charge 2 were returned to the Zoo. Although no credit passes to Mr Mellington because he did nothing to assist the bank’s action.
41The prosecution noted the action of NAB regarding Mr Mellington’s account. However, it is unclear whether Mr Mellington has made any restitution to the Brisbane City Council[3].
[3] See [14] of the document, “Prosecution submissions on sentence for sentence indication”.
42Absent any particular circumstance, the gravity of Mr Mellington’s offending is the same whether the victim is a natural person, a local government body, a statutory authority or corporations. The Brisbane City Council spent monies in responding to the fraud but this is not such a circumstance.
43His counsel described Mr Mellington’s involvement as due to his extreme naivete and gullibility, satisfying the test posed by the charges to which he pleaded guilty. This description is apt.
44Between 1998 and 2016, Mr Mellington appeared in a criminal court twice and was found guilty or convicted of two offences. On the last occasion, with conviction, he was fined $1,000 for an unlawful assault. His criminal history has no relevance to my sentencing for these offences of dishonesty.
45There is no reliance upon any of the principles stated in R v Verdins[4]. However, as the psychologist points out, his style of thinking and gullibility renders vulnerable to an online dating scam.
[4] [2007] VSCA 62.
46Having accepted the sentence indication, Mr Mellington pleaded guilty to the two charges. There had been no committal hearing as such. He was committed to this Court by means of the prosecution brief of evidence. In terms of the timing of the pleas, they are close to the midpoint of the process starting with the laying of the charges and the verdict of a jury.
47The guilty pleas involve Mr Mellington taking responsibility for his offending. They are evidence of remorse, of which I am satisfied he exhibits. They have the practical effect of assisting the criminal justice system by making space for those proceedings which genuinely require a trial. Even though the problems caused by the virus to the criminal justice system have waned, they have not disappeared. Even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times.
48In this Court, many trials are lengthy, occupying months. Even shorter trials tend to take at least a week. The prosecution submits, correctly, this trial would be short with the issue being Mr Mellington’s state of mind. Obviously, the longer the trial avoided, the greater the practical benefit to the criminal justice system. But even a short trial has considerable benefit when one recalls the resources involved in assembling a jury.
49There has been a considerable delay between Mr Mellington’s detection and this plea hearing, nearly 6½ years. He has used the time profitably inasmuch as he has not re-offended. This lessens the need for specific deterrence for he has demonstrated he can be law abiding over a lengthy period. Moreover, the psychologist’s testing indicated an unlikelihood of Mr Mellington offending in this manner in the future.
50The other aspect of delay is the emotional effect on Mr Mellington waiting for the resolution of these charges. This is something mentioned by Ms Foley.
51Mr Stanislawski noted the presence of a new female partner in Mr Mellington’s life, Samara Foley. Her letter, dated 30 May 2023, was admitted into evidence. She has been dating him for the last months although it appears she has known him longer.
52Ms Foley speaks highly of him as a partner and a “fatherly role model” for her 14-year-old daughter. She places particular emphasis upon his relationship with his four sons:
“Bill is a very hard working with a big heart who is dedicated to his family. He has 4 beautiful boys that just light up when he enters the room, they absolutely love their father and enjoy every moment they get to spend with him. I love hearing their weekly phone calls, whether it be about the footy game they played on the weekend or just about a movie they watched, they love to talk to him about anything and everything. Bill is always there for them whenever they need anything and they know that. Bills boys are his life”.
53I consider his prospects of rehabilitation are good. Ms Foley is strongly supportive. He has his relationship with his sons and would be reluctant to misbehave and jeopardise it. As Mr Stanislawski noted he lacks the criminal attributes so often seen in the criminal courts. Contrary to the prosecution’s submission, I consider specific deterrence plays a lesser role in sentencing Mr Mellington.
54General deterrence remains an important sentencing consideration. Daily, the community hears of financial scams of one sort or another. They are easy to detect but difficult to prosecute. The need to deter those persons who are minded to engage in such scams is important. I accept Mr Mellington’s offending circumstances reduce the impact of general deterrence because of his gullibility. It is doubtful many likeminded persons would identify with him.
55Lastly, the maximum penalty for the charges is 4 years’ imprisonment or a fine of 240 penalty units or both the imprisonment and the fine.
Sentence
56On 6th June 2023, I sentenced Mr Mellington as follows:
(a) charge 1 - 24 months’ imprisonment; and
(b) charge 2 - 24 months’ imprisonment.
57The sentence on charge 1 commenced on 6 June 2023. The sentence on charge 2 commences 6 months after the commencement of the sentence on charge 1, yielding a total sentence of 30 months’ imprisonment. I directed Mr Mellington be released immediately on a release recognisance order by recognisance of $1,000 to be of good behaviour for three years and to be subject to the supervision of a probation officer.
S 6AAA
58Absent the guilty pleas, I would have sentenced Mr Mellington to the same periods total sentence of imprisonment but instead of immediate release, his release would have occurred after serving 9 month’s imprisonment.
Reparation Order
59I make the reparation order sought by the prosecution, in the sum of $26,541.15 payable to Brisbane City Council.
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