By Thomas Spohr -
Key decisions
- Johnston v R [2017] NSWCCA 53
- Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42
- Woodward v R [2017] NSWCCA 44
Johnston v R [2017] NSWCCA 53
Sentencing – gambling addiction – gambling not generally mitigating
In this matter involving substantial embezzlement by an employed accountant, the Court of Criminal Appeal (‘CCA’) has confirmed that, generally, gambling will not be a mitigating factor on sentence – even where the offender has a psychiatric diagnosis of gambling addiction.
The offender was employed as a senior accountant with a mining company. Over the course of about three years he falsified more than 150 invoices which were then paid to him, netting him over $1.25 million. The fraud was detected because no GST had been paid. He spent all the money on gambling: he was diagnosed as suffering from a recognised psychiatric illness in the form of a gambling disorder. He pleaded guilty to a single, rolled-up count of obtaining a financial advantage by deception, per s 192E(1)(b) of the Crimes Act, which carries a 10-year maximum penalty. He pleaded guilty and was sentenced to a term of six years and six months, with a non-parole period of four years. He appealed against the severity of the sentence asserting, amongst other grounds, that the sentencing judge erred by placing insufficient weight on his gambling addiction.
The CCA (Bathurst CJ, Johnson and Fagan JJ agreeing) dismissed the appeal. Citing a line of cases going back to 1999, the Court found that the fact that offences were committed to feed a gambling addiction will not generally be a mitigating factor, even where (as here) it is pathological. After citing the line of authority in NSW (at [36]), the Court observed that it was relevant in the present case that the offences were not impulsive, but rather involved careful observation and planning (at [37]). Additionally, the Court endorsed a Victorian Court of Appeal decision to the effect that gambling addiction will not generally reduce moral culpability where the offence is committed over an extended period because (amongst other reasons) the offender has a degree of choice about how they finance their addiction. Moreover, the gambling is generally viewed as only indirectly responsible for the offending (at [38]).
The NSW CCA added to the list that, in cases of this nature, where general deterrence is an important factor, it would be inappropriate to treat an underlying explanation that the motive was gambling as a mitigating factor where the frauds were perpetrated and skilfully executed over an extended period (also at [38]).
