Sentencing the problem gambler RGF Conference 3-4 April 2012

1. Sentencing the problem gamblerRGF Conference 3-4 April 2012 Richard Brading & Jodie Rollason Solicitors Wesley Community Legal Service 7/133 Castlereagh St Sydney richard.brading@wesleymission.org.au Jodie.rollason@wesleymission.org.au 9263-5577

2. What is crime and what is a sentence? • Crime is the breach of rules or laws by which a government can prosecute and convict the wrongdoer • While every crime violates the law, not every violation of the law is a crime- distinguish from civil law, e.g. breach of contract or tort • A sentence is a punishment made by a representative of the government against a wrongdoer who has been found guilty of a crime

3. So why do you think society punishes wrongdoers? This is a pillory, one of the common punishments for minor crimes in medieval times

4. Retribution • Punishment should be proportionate to the gravity of the offence committed – “an eye for an eye” • Retribution satisfies the wronged person and their family • Removes the need for payback or vendettas

5. Deterrence • Individual – the wrongdoer is deterred from reoffending through fear of further punishment • General – the community is deterred from committing crime by observing the punishment of those who are sentenced

6. Denunciation • The community uses sentencing to express its disapproval of wrong behaviour reinforcing moral boundaries

7. Incapacitation • Offender is made incapable of committing further crime to protect society at large from further crime

8. Rehabilitation • To reform the offender’s behaviour

9. Reparation • Repayment to victim or the community

10. Which is the most important reason for sentencing in modern Australia • Retribution? • Deterrence? • Denunciation? • Incapacitation? • Rehabilitation? • Reparation?

11. Why do people commit serious crimes – one study of prisoners • Drug related crime – 75.3% • Finance living expenses – 10.5% • Peer pressure – 7.5% • Financial difficulties – 5.6% • Mental condition – 5.2% • Gambling addiction – 3.7% • Greed – 1.9% • Other – 3.0%

12. Blaszczynski & McConaghy 1992/4 • Interviewed 306 pathological gamblers • Nearly 60% admitted crime to fund gambling • Only 23% were convicted of crime • More serious offences more likely to be convicted

13. Productivity Commission 1999 • National Gambling Survey 10,600 people • 1 in 10 problem gamblers commit crime • Up to two-thirds PG in counselling committed a crime • 40% of offenders charged & convicted • Other crimes not serious enough, or not reported to police so not prosecuted

14. BreakEven Victoria 2000 • 1817 BreakEven clients • 30% reported committing crime to finance gambling • Most common crimes – forgery, fraud, theft and embezzlement

15. Penny Crofts research -2002 • Gambling and Criminal Behaviour – an Analysis of Local & District Court files • 2779 files read, 105 gambling related • 19.7% larceny by clerk gambling related • 19.4% bounced cheque gambling related • 13.6% Obtain financial benefit by deception • 8% False statement to obtain money • 4% Armed robbery • 2.5% False statement for financial advantage

16. Australian Institute of Criminology & Pricewaterhouse Coopers 2003 • 208 persons accused of serious fraud • 27.3% motivated by greed • 14.7% motivated by gambling

17. The media • Ray Hadley wants the NSW Attorney-General sacked for being soft on crime

18. Prisoners sentenced to TV and brekkie in bed By Gemma Jones | The Daily Telegraph| 11th June, 2010 A GET-out-of-jail free card will be given to 750 violent and dishonest criminals under a State Government plan to let them serve prison sentences in the comfort of their homes.

19. R v Molesworth 1999 • Do you think that stealing money for gambling is for need or greed? • Many gamblers have had unhappy lives. Why is this important to a sentencing judge? • Can gambling addiction detract from the significance of the underlying personal issues? • Do you agree that offenders should get shorter prison sentences if their age, health or other personal characteristics will mean that prison will be harder for them?

20. R v Petrovic 1998 • Will a long-term fraud that involves planning & deception, result in a harsher sentence than a crime committed impulsively? • Do you think the sentence should be harsher if the victims have suffered greatly, as compared with a commercial victim (e.g. a bank)?

21. R v Petrovic continued • Why is a gambling addiction not normally a mitigating factor? • If it is not a mitigating factor, then why is it a relevant or important factor to a sentencing judge? • Can you think of a ‘rare case’ when a court should reduce a sentence because the offender had a gambling problem?

22. R v Pipes 2004 • Is the sentence relative to the amount of money stolen? • Should a senior public servant in a position of trust get a harsher sentence? • If the stolen money is repaid, does that demonstrate remorse? • How is the existence of a related alcohol addiction relevant? • Do you think the judge was correct in her interpretation of the psychiatrist’s comments? • Do you think references to ‘lack of insight’ are important?

23. Marks v R 2009 • Would Marks’ old criminal convictions have been relevant to this sentence? • Were there some aggravating circumstances relating to the offence? • Do you agree his history of child sexual assault was relevant? • The psychiatrist didn’t agree with the psychologist’s assessment of Marks’ conduct as psychotic. What do you think of the trial judge’s comments?

24. Marks v R continued • Do you think that the appeal court had a better approach? • Do you agree that the first time an offender is imprisoned has a big impact on them and likely to be an effective deterrent to subsequent offending? • What about the comments in Richard Ackland’s article about the high rate of former prisoners reoffending?

25. Finish We hope you enjoyed this workshop Cases can be found at: www.austlii.edu.au