The Director of Public Prosecutions v Bryan Cole (a pseudonym)
[2025] VCC 216
•6 March 2025
|
CRIMINAL DIVISION
THE DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
BRYAN COLE (A PSEUDONYM) Defence
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JUDGE: HIS HONOUR JUDGE CAHILL
WHERE HELD: Melbourne
DATE OF HEARING: 7 February 2025; 21 February 2025
DATE OF SENTENCE: 6 March 2025
CASE MAY BE CITED AS: DPP v Cole (a pseudonym)
MEDIUM NEUTRAL CITATION: [2024] VCC 216
SENTENCE
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Subject:Deal recklessly with proceeds of crime contrary to ss 400.4(2) and 400.5(2) of the Criminal Code Act 1995 (Cth)
Catchwords: Guilty plea –– below mid-range offending (charge 1) – small but integral cog – no criminal record – young offender
Legislation Cited: Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic); Crimes Act 1914 (Cth)
Cases Cited:Kim & Fang v R [2016] VSCA 238; Palmisano v The Queen [2021] VSCA 124; Arjuna Samarakoon [2008] VSCA 119, [68]; R v Jiao (2015)
251 A Crim R 236; Ansari [2007] NSWCCA 204; Ibbs (1987) 163 CLR
447; R v Mills [1998] 4 VR 235, 241; Azzopardi v The Queen [2011]
VSCA 35 VR 43; R v Merrett, Piggott and Ferrari (2007) 14 VR 392; R
v Postiglione (1997) 189 CLR, 295; Boulton v The Queen [2014] VSCA
342.
Sentence:18 months imprisonment to be released forthwith on a reconnaissance release order
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| APPEARANCES: | Counsel | Solicitors |
For theProsecution | Ms N Grunwald | Commonwealth Director of Public Prosecutions |
For theDefence | Mr R Slattery | Cao & Co Legal |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne 211126
HIS HONOUR:
1Bryan Cole1 you have pleaded guilty to:
(a)one charge of dealing with money that is proceeds of crime, $100,000 or more and being reckless as to the money being proceeds of crime contrary to subsection 400.4 (2) of the criminal code (Cth); and
(b)one charge of dealing with money that is proceeds of crime, $50,000 or more and being reckless as to the money being proceeds of crime contrary to subsection 400.5 (2) of the criminal code (Cth).
2The maximum penalty for an offence under section 400.4 (2) is 10 years imprisonment.
3The maximum penalty for an offence under section 400.5 (2) is seven years imprisonment.
Circumstances of offending 2
4On 9 February 2020, an Australian business number was registered in your name for a “general labourer” business.
5On 27 November 2020, your bank account details were added to the ATO account online for receipt of GST refunds.
6On the same day, you called the ATO requesting your GST registration be backdated to 9 February 2020.
7You had given your personal details to another person who submitted false business activity statements, using your ABN, to obtain GST refunds totalling
$249,050, which were deposited into your bank account.
1 A pseudonym.
2 Summary of Prosecution Opening for Plea dated 13 January 2025 (Exhibit A).
8Between 3 December 2020 and 9 February 2020, the ATO paid $171,800, as GST refunds, which had been claimed in eight false business activity statements, into your bank account (charge one).
9Between 5 March 2021 and 19 March 2021, the ATO paid $77,250, as GST refunds, which had been claimed in three false business activity statements, into your bank account (charge two). 3
10You dealt with the money by making electronic money transfers into other bank accounts, cash withdrawals from ATMs and purchases.
11By your guilty plea you admit, when you dealt with the money, you were reckless as to whether the money, was the proceeds of crime (charge one) or proceeds of indictable crime (charge two).
Police investigation – Arrest and Interview
12An ATO audit exposed the fraud. 4
13Police arrested you on 14 November 2023. 5
14You told police:
(a)after you left high school, you left home, and, when you offended, you were couch surfing between friends’ houses and were “broke”6;
(b)a girl you had known from school, “Polly”,7 with her friend “Lia”,8 asked you for your MyGov account details in exchange for some money and you agreed;
9
3 Because of amendments to the Commonwealth criminal code, which came into effect on 17 February 2021, your offending has been charged in two separate offences.
4 You are not to be sentenced for the fraud.
5 I have viewed the audiovisual recording your police interview (Exhibit E).
6 Record of interview, Q20 – 23, 129.
7 Polly Turnbull is a pseudonym.
8 A pseudonym.
9 Record of interview, Q23 – 29.
(c)they said you would make a couple of thousand dollars;10
(d)they told you what they were doing was legal11 and gave you a script to use in telephone calls with the ATO12;
(e)you thought their plan involved a few thousand dollars, not “thousands and thousands and thousands of dollars”13;
(f)you transferred or paid the money, which came into your account, to them14;
(g)when asked why you had given money to Lia, when you had control of it in your bank account, you said “because it’s his money”15;
(h)you said, out of everything, you made around $50016;
(i)you also said:
(i) you became suspicious “halfway through”17, you asked to stop 18 but you were told you couldn’t; 19 and
(ii) eventually, you refused to do any more; 20
(iii) you said subsequently you went to the ATO office in the Melbourne CBD, where you reported you had been “getting this money for this guy Lia”21 and were told to make a report online.
(j)you appeared to have very little financial knowledge.
10 Record of interview, Q129.
11 Record of interview, Q27.
12 Record of interview, Q30.
13 Record of interview, Q34.
14 Record of interview, Q49 and Q78.
15 Record of interview, Q211.
16 Record of interview, Q92.
17 Record of interview, Q130.
18 Record of interview, Q95.
19 Record of interview, Q131.
20 Record of interview, Q137.
21 Record of interview, Q159.
(k)you said:
(i) you did not know how your bank works22;
(ii) you did not know what business activity statements were23; and
(iii) you did not know what an ABN does.24
(l)when police asked you what GST is, you said “isn’t that what you get taxed at the shops?”;25
(m)you said, “I don’t know how tax works”26 and you didn’t even know how to use your my gov account;27
15Questioning, while in police custody, clearly distressed you, to the point you nearly vomited. 28
16In addition to making full admissions to your offending, you implicated others who were also involved.
Other offenders
17You told police there were others “doing it”, including29 Gorgia30 and Polly31.
18You were unaware police had already investigated them.
22 Record of interview, Q82.
23 Record of interview, Q86 and Q107.
24 Record of interview, Q103.
25 Record of interview, Q105.
26 Record of interview, Q106.
27 Record of interview, Q107,
28 Record of interview, Q108 – 116.
29 Record of interview, Q183.
30 Record of interview, Q184.
31 Record of interview, Q190.
19Gorgia Hyde32 had received $86,700 from the ATO as a result of fraudulent GST claims. 33 She had transferred $19,500 of those monies to Polly Turnbull. 34
20On 19 July 2022, the informant interviewed Gorgia. 35 She told police she had given her myGov details to Turnbull, and an ABN was set up in her name. 36
21Hyde was not prosecuted. Relevantly, she has an intellectual disability. 37
22Polly Turnbull’s bank statements recorded credits from the ATO and money transfers from Rylie Burrows38 and you. 39
23On 14 November 2024, at Werribee Magistrates’ Court, Turnbull pleaded guilty to two charges of dealing with money, more than $10,000, which she believed to be proceeds of indictable crime, contrary to section 400.6.1(a)(i) of the Commonwealth Criminal Code. 40
24Between 17 July 2020 and 1 September 2020, she received $77,700 in GST credits as a result of six business activity statements (“BAS”) lodged with the ATO for a fictitious business. 41
25Between 21 October 2020 and 11 February 2021, she also received $19,500, in six funds transfers, which were proceeds of fraudulent GST claims, from Gorgia Hyde. In all, Hyde had received fraudulent GST refunds totalling $86,700. Turnbull admitted she also went with Hyde to various ATMs to make cash withdrawals which totalled $38,500. 42
32 A pseudonym.
33 Statement of Detective senior Constable Dalbir Singh (Exhibit F), [3].
34 Statement of Detective senior Constable Dalbir Singh (Exhibit F), [9].
35 ibid, [5].
36 ibid, [10].
37 ibid, [6] – [8].
38 A pseudonym.
39 ibid, [21].
40 Record of order dated 8 November 2024 of a Magistrate at Werribee – Polly Turnbull (Exhibit J).
41 Statement of facts dated 13 February 2024 (Exhibit G).
42 Statement of facts dated 22 February 2024 (Exhibit H).
26Turnbull told police she had provided her personal details to another person, who she declined to name, who had submitted the request for an ABN and made the false BAS lodgements to obtain GST refunds paid into her bank account. 43
27For her crimes, Turnbull was convicted and released on a 12 month community correction order, with supervision and drug and mental health treatment conditions. 44
28On 28 August 2024, at Broadmeadows Magistrates’ Court, Rylie Burrows pleaded guilty to one charge of dealing with money, more than $10,000, which she believed to be proceeds of crime, contrary to section 400.6 (1). 45
29Between 17 September 2020 and 19 September 2020, Burrows received $29,450 which were the proceeds of fraudulent GST refunds, into her bank account. She paid $14,270 to others. The remainder of the money was spent on purchases. 46
30Burrows told police she had given her MyGov details to another person whom she did not name.
31She said she had been influenced by other people from her high school who were involved in similar for offending. 47
32For her crime, Burrows was released on a 12 month reconnaissance with conviction. 48
33“Lia”, the person you named as the recipient of most of the monies you received, has not been apprehended.
43 Ibid.
44 Record of order dated 8 November 2024 of a Magistrate at Werribee – Polly Turnbull (Exhibit J).
45 Charge sheet dated 18 March 2024 – Rylie Burrows (Exhibit L).
46 Statement of facts dated 15 March 2024 (Exhibit K).
47 Ibid.
48 Record of order and reconnaissance dated 28 August 2024 of Magistrate at Werribee – Rylie Burrows.
Objective seriousness 49
34Money laundering, contrary to division 400 of the code, is a serious crime.
35Division 400 provides for a wide range of related offences which are structured according to both the amount of money which is dealt with and the state of mind of the offender. 50
36To inform my assessment of the objective seriousness of your offending, 51 and your moral culpability, I have set out, in some detail, your answers to police questioning and the investigation and prosecution of others, who were involved in the GST fraud.
37In assessing the gravity of your offending:
(a)the substantial value of the money you dealt with is “a highly significant matter”52; and
(b)the financial benefit you received is another relevant factor,53 as is your role.
54
38In electronic transfers, cash withdrawals and purchases, you disbursed a large sum of money, $249,050, which were the proceeds of fraudulent GST claims, received in 16 deposits, over a three-month period.
39You did not know the money was proceeds of crime, you were reckless as to whether it was.
49 The applicable sentencing principles are set out in Kim & Fang v R [2016] VSCA 238 and Palmisano v The Queen [2021] VSCA 124.
50 Kim & Fang v R [2016] VSCA 238, at [55] and [56].
51 High Court authority requires me to consider where your offence falls on the spectrum of seriousness of the offence of dealing with money which has proceeds of crime: see R v Kilic [2016] 259 CLR 256.
52 Kim & Fang v R [2016] VSCA 238 [61]; Arjuna Samarakoon [2008] VSCA 119, [68]; R v Jiao (2015) 251 A
Crim R 236, [66].
53 Arjuna Samarakoon [2008] VSCA 119, [69] and [70].
54 Kim & Fang v R [2016] VSCA 238, [61]; Ansari [2007] NSWCCA 204, [123]-[124].
40Others committed the tax fraud.
41They used your identity, in order to reduce the risk of their detection, to perpetrate it.
42What you did, transferring the funds, which were paid to you, to others was relatively unsophisticated. You made no attempt to conceal your identity as the recipient of the fraudulent GST refunds.
43I am satisfied you have very limited financial understanding and did not appreciate the mechanism of GST the fraud. I listened to the recordings of phone calls you made to the ATO. I am satisfied you were prompted by others with your answers.
44I am also satisfied:
(a)you paid the money, which you received from the ATO, to them and you got only a few hundred dollars yourself; and
(b)you voluntarily stopped offending.
45I accept:
(a)A high school friend, Turnbull, tempted you to hand over your MyGov details with the promise of some money to you.
(b)At the time, you were vulnerable to exploitation because you were “broke” and, on your own admission, “not the smartest book in the room”. 55
46Overall, I assess your offending to fall below the mid-range of objective seriousness of the offence of the type. And I assess your moral culpability to be relatively low.
55 Transcript of police interview, Q 85.
Procedural chronology
47On 21 March 2024, police charged you with proceeds of crime offences, on summons.
48On 16 August 2024 you entered your guilty plea at a committal mention. 56
49It is an early guilty plea.
Criminal record
50You have no criminal record.
Personal circumstances 57
51You were born in September 2001. You were 19 years old when you offended. You are now 23.
52You have a twin brother and an older brother.
53You were born with a physical abnormality. 58 When you were an infant, your father left the family; you believed he “disowned” you because of your disability.
54You lived with your mother. She re-partnered. Her partner was violently abusive. When that relationship broke down she re-partnered again. That partner was also violently abusive. Your mother abused party drugs and was also abusive.
55You grew up at Phillip Island and in Melbourne’s western suburbs. You attended local schools. You were a poor student, repeating two primary grades, and were bullied because of your abnormality. You are embarrassed by your hand and hide it in public.
56 See prosecution chronology (Exhibit C).
57 Your personal circumstances set out in the psychological report of Carla Lechner who assessed you on 26 September 2024 (Exhibit 4).
58 ibid, page 2.
56In year 10, you dropped out of school and got work at McDonald’s. You have also worked in a sawmill, in a warehouse and as a gardener.
57In mid-2020, you left home because you weren’t coping with your mother’s verbal abuse. You couch surfed between friends’ homes before going to stay with your grandparents at Benalla.
58On 25 September 2020, your grandmother took you to Benalla Hospital after you had broken some glass at her home after a dispute with your brother. You were distressed and felt abandoned and rejected by your family. 59
59You told the mental health nurse, who assessed you, you had been using cannabis since the age of 16 and had experimented with LSD and mushrooms. 60
60The nurse noted:
(a)“[Bryan] has been exposed to abuse within the familial home, uses substances, likely has neuro-diverse learning style, feels abandoned and rejected by family …, is struggling in a new environment with limited social work, and can be very impulsive when he is distressed, [Bryan] is a highly vulnerable individual at present”. 61
61When you offended you were couch surfing in Melbourne, struggling with money and vulnerable.
62You have had subsequent mental health registrations on 9 December 2022 and on 14 February 2023, when you were admitted to Werribee Mercy Hospital under an inpatient assessment order, and on 31 January 2025, when you were admitted
59 North-east Victorian mental health services – assessment form dated 25 September 2020 (Exhibit 5).
60 Ibid.
61 Ibid.
to Northern Hospital Epping, under another inpatient assessment order,62 because you were suicidal. 63
63Then, you were anxious and tearful about this proceeding, fearing you might be imprisoned, the breakdown of your long-term relationship, a sexual assault, homelessness and financial difficulties. You said you were using drugs or hanging out with friends. You said you wanted to quit the drugs and find work.
64You were commenced on an antidepressant, kept on a ward for 10 days and referred for psychological counselling. 64
65In hospital you met Meghan Holgate.65 When you are discharged from hospital you went to live with her. She supported you at court.
Psychological opinion
66A psychologist, Carla Lechner, assessed you on 26 September 2024. 66
67You told her deeply regret your wrongdoing. 67
68Ms Lechner administered a number of tests.
69You tested in the low average range of intelligence.
70She assessed you to have “severe” psychological distress, “extreme” depression and ongoing unresolved post trauma symptoms. 68
71In her opinion, you were vulnerable to manipulation. 69
62 Forensicare MHARS mental health summary dated 5 February 2025 (Exhibit 3).
63 Northern health mental health discharge summary dated 10 February 2025 (Exhibit 6).
64 Ibid.
65 A pseudonym.
66 Report of Carla Lecher (Psychologist) dated 10 December 2024 (Exhibit 4).
67 ibid, page 7.
68 Ibid, page 7.
69 Ibid, page 7.
72She believes imprisonment would be extremely detrimental to your mental health with a likely “further decline in [your] mood and the very real possibility of suicidal thoughts and potentially, attempts on [your] life. 70
73I accept her opinions which were not challenged.
Defence submissions
74Mr Slattery acknowledged your offending, because you dealt with a significant sum of money over a 3 period, is serious.
75He submitted because of your vulnerability to exploitation, your unsophisticated offending and small personal gain together with mitigatory factors, namely:
(a)your cooperation with police when police questioned you;
(b)your early guilty plea;
(c)your poor mental health;
(d)chaotic formative years;
(e)your prior good character;
(f)your relative youth; and
(g) good prospects of rehabilitation, I should impose a CCO. 71
76Mr Slattery provided me with a useful summary of four sentences of this court for offences under s 400.4. While making adjustments for similarities and dissimilarities in the nature of offending, and the offenders personal
70 ibid, page 7.
71 Outline of plea submissions (Exhibit 1).
circumstances, have taken them into account to decide the sentence I will impose on you.
Prosecution submissions
77The prosecutor, Ms Grunwald, acknowledged subjective features in your favour, namely your early guilty plea, your admissions to police, the absence of any criminal record, your mental health and your relative youth.
78She also conceded you have good prospects of rehabilitation.
79She submitted, because of the seriousness of Division 400 offending, general deterrence remains a prominent sentencing consideration.
80In her submission, balancing all relevant factors, a term of imprisonment with immediate release on recognisance is within range.
81She provided me with a handy table of intermediate appellate decisions which indicate a range of sentences which have been imposed for other offences contrary to s 400.4(2) of the Criminal Code.
82Fairly, Ms Grunwald submitted they do not necessarily establish a range of sentence. I agree.
83While helpful in guidance as to the sentencing principles, the cases could not properly be regarded as providing a sentencing pattern. The circumstances of the offending in each of those cases were too disparate from the present case. I consider they are representative of particular aspects of the spectrum of seriousness of offending of this type. 72
Consideration
72 Ibbs (1987) 163 CLR 447, 452.
84Under the Code, money laundering offences are structured according to both the amount of money which is dealt with and the offender’s state of mind. 73
85“[T]he seriousness of the offence depends on the fault element involved and the value of the money at stake”. 74
86Your crime, with a fault element of recklessness, is a tier two or mid-range offence. A fault element of knowledge or belief is more serious, a fault element of negligence, less serious. 75
87You dealt with money, more than $100,000. The code prescribes higher maximum penalties for larger sums; lower, for smaller sums.
Conclusion
88By s 16A of the Crimes Act 1914 (Cth), I am required to impose a sentence that is of a severity that is appropriate in all the circumstances of your offending.
89I am also required to have regard to the non-exhaustive list of matters in sub-s 16A(2) of the Crimes Act 1914 (Cth) as far as they are relevant and known to the court.
90General deterrence is a prominent sentencing factor for division 400 offences.
91You dealt with a significant monies, nearly $250,000, which were proceeds of crime, over a three-month period. Ordinarily, a term of imprisonment would be warranted.
92However, for reasons earlier stated, I assess the gravity of your offending to fall below mid-range for crimes of the type and your moral culpability to be relatively low.
73 Kim & Fang v R [2016] VSCA 238, [56].
74 Kim & Fang v R [2016] VSCA 238, [61].
75 Criminal Code Act 1995 (Cth), Division 400.
93Additionally, there are significant mitigating factors which moderate the sentence I should impose.
94Firstly, you are entitled to a sentencing discount for your cooperation with police when you admitted your offending and implicated others.
95Secondly, your early guilty plea has high utilitarian value because a trial has been avoided. It also indicates your acceptance of responsibility for your wrongdoing.
96Thirdly, your cooperation, your guilty plea and your expressions of regret demonstrate you are remorseful.
97Fourthly, you are a first offender. I accept, but for involvement of others, you would not have committed these crimes.
98Fifthly, were only 19 years old when you offended, you are still relatively young. Your rehabilitation is an important sentencing consideration. 76
99Sixthly, in the context of childhood deprivation, trauma, polysubstance misuse, chaotic lifestyle, social exclusion and complicated interpersonal relationships, you suffer poor mental health. You need treatment for your PTSD, anxiety and depression and you need drug and alcohol counselling. Jail would be harder for you than for prisoners without your mental health issues. And your mental health would likely deteriorate in prison.
100Seventh, I assess your prospects of rehabilitation to be very good. Your response to your bail has been positive. You have not reoffended. In my view, provided you address your mental health and drug dependence problems, you have positive prospects of rehabilitation.
101Eighth, it is four years since you offended. You have suffered a high degree of anxiety in relation to your future, which is additional punishment. You have also
76 R v Mills [1998] 4 VR 235, 241; Azzopardi v The Queen [2011] VSCA 35 VR 43.
advanced your rehabilitation, which, if interrupted by incarceration is, to a degree, an unfairness. 77
102Parity is another relevant sentencing consideration. While Polly Turnbull was prosecuted for offending involving less money, she recruited you and received money from you. While the objective gravity of her offending was lower, in my view, her moral culpability was higher. I have had regard to her sentence to avoid for you an unjustifiable sense of grievance in respect of the sentence I will impose. 78
103Overall, I have decided a CCO can achieve all sentencing objectives.
104A CCO provides both specific and general deterrence. 79
105It also promotes rehabilitation by permitting the offender to remain in the community. 80
106And, a CCO can be appropriate in cases where a medium term of imprisonment might otherwise have been imposed. 81
107By the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
108Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you on the charges of recklessly dealing with money, which is proceeds of crime, and proceeds of indictable crime, you are convicted and sentenced to a two-year community correction order.
77 R v Merrett, Piggott and Ferrari (2007) 14 VR 392, [35]-[37].
78 Sentencing Act s 1(a); R v Postiglione (1997) 189 CLR 295, 411.
79 Boulton v The Queen [2014] VSCA 342, [123]-[130].
80 ibid, [142].
81 Boulton v The Queen [2014] VSCA 342, [131].
109Special conditions of the order are:
(a)supervision
(b)drug treatment and rehabilitation
(c)alcohol treatment and rehabilitation; and
(d)mental health treatment and rehabilitation.
110As a punitive component to the order, I direct you complete 150 hours community work. Because you have a physical disability, I have moderated the number of work hours and I direct 75 hours of treatment be credited towards your community work.
111While there is some artificiality in the process, I declare, under s 6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed a total effective sentence of 12 months imprisonment with your release on reconnaissance after serving six months imprisonment.
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