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

5. Deterrence Individual – the wrongdoer is deterred from reoffending through fear of further punishment 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 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 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 Offender is made incapable of committing further crime to protect society at large from further crime

8. Rehabilitation To reform the offender’s behaviour To reform the offender’s behaviour

9. Reparation Repayment to victim or the community Repayment to victim or the community

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

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

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

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

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

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

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

17. The media Ray Hadley wants the NSW Attorney- General sacked for being soft on crime 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? 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? 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? 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? 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? 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)? 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? 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? 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? 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? Is the sentence relative to the amount of money stolen? Should a senior public servant in a position of trust get a harsher sentence? Should a senior public servant in a position of trust get a harsher sentence? If the stolen money is repaid, does that demonstrate remorse? If the stolen money is repaid, does that demonstrate remorse? How is the existence of a related alcohol addiction relevant? 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 the judge was correct in her interpretation of the psychiatrist’s comments? Do you think references to ‘lack of insight’ are important? 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? Would Marks’ old criminal convictions have been relevant to this sentence? Were there some aggravating circumstances relating to the offence? Were there some aggravating circumstances relating to the offence? Do you agree his history of child sexual assault was relevant? 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? 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 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? 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? 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