Director of Public Prosecutions v Scassaioli
[2012] VCC 816
•1 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00069
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIANO SCASSAIOLI |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May 2012 | |
DATE OF SENTENCE: | 1 June 2012 | |
CASE MAY BE CITED AS: | DPP v Scassaioli | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 816 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty - Obtain financial advantage by deception – Numerous acts – Rolled-up charge – No prior convictions but previous episode of similar conduct – Loss of Tabcorp accreditation - Gambling addiction
Cases cited:DPP v Rodelino (2002) VSCA 66; R v Martin (1994) 74 A.Crim.R. 252; R vGrossi [2014] VSCA 51; R v Cavallin VSCA Unreported 24 July 1996
Sentence:Total Effective Sentence of 2 years’ imprisonment to be wholly suspended for 3 years – s.6AAA Sentencing Act 1991 – Ancillary order for compensation
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Hogan | Solicitor for Public Prosecutions |
| For the Accused | Mr J. Buxton | Paul Vale, Criminal Law |
HER HONOUR:
1 Adriano Scassaioli, you have pleaded guilty to one charge of obtaining a financial advantage by deception, which is a rolled-up charge taking in some 814 transactions, all of which took place during an approximate 12 hour period. The maximum penalty for this offence is 10 years’ imprisonment.
2 The learned prosecutor opened the matter, having tendered a plea opening, but since that time, supplementary material has been provided which has been the subject of discussion which has just taken place. I will incorporate the updated information into the matters that were submitted in the opening. All of these matters were brought to the attention of your representatives and have been canvassed today as I have just indicated, so I will sentence you on a proper and accurate factual basis.
3 By way of background, the learned prosecutor on the plea told me that you are 36 years of age, being born on 12 November 1975. At the time of the offending, you were 35 years old.
4 At this time, you were employed as a barman at Clare Castle Hotel in Graham Street, Port Melbourne. You commenced work at the hotel on 7 February 2011.
5 On 28 June 2011, you were working at the hotel and you were tasked with locking up the premises when the business closed at 11.30pm. You had been entrusted with this task on previous occasions.
6 On 29 June 2011 at about 7.45 am, an Adrian Noble, Investigations Manager for Tabcorp, received a phone call from Tabcorp’s Race Day Department, advising him that they believed that there was suspicious betting behaviour taking place at the Clare Castle Hotel PUBTAB in Port Melbourne. Unfortunately, this alert came at a time when most of the damage had been done. Soon after this phone call, Mr Noble contacted Michael Farrant, who is the owner of the hotel. He told Mr Farrant that credit betting had been conducted at the hotel during a period in which the hotel was closed for business. You did not have permission from Mr Farrant to use the credit betting facility at the hotel or to use any funds belonging to the hotel. Indeed, your TAB accreditation had been cancelled in 2005 for a similar incident. You are not charged in relation to this previous matter and your parents repaid the loss. While it is not a matter for which you came before the Courts, I regard it as a relevant matter for me to take into account in sentencing you.
7 At about 8.15 am, the PUBTAB at the hotel was suspended from trade. In the meantime, between the phone call referred to and suspension from trade, you had continued to use the facility at the hotel to incur further debt. Mr Noble also contacted a Megan Kearney, who is an audit investigator for Tabcorp, by telephone. Ms Kearney met Adrian Noble at the Clare Castle Hotel at about 8.30 am. You unlocked the front door and let them into the hotel. Ms Kearney and Mr Noble explained to you the reason for their attendance and you responded “It’s ok, TAB have been notified”. You also said that you had “stuffed up” and told these Tabcorp representatives that you had been credit betting and lost approximately $138,000 and that you had been betting from last night until the early hours of the morning. You also told them that you had had your TAB accreditation cancelled.
8 Mr Noble and Ms Kearney continued into the TAB area and conducted a cash count. Ms Kearney calculated that the hotel had a cash deficiency of $138,683.10. Ms Kearney informed you of this and you accepted that this would be correct. You told her that you had been credit betting on trackside during the night. It was explained to me that, in their wisdom, the TAB have a series of animated races once the real ones finish which allow those so inclined to bet every three to four minutes in relation to a computerised or animated horse race.
9 Mr Noble obtained a brief transaction print record for all transactions which occurred at Clare Castle Hotel PUBTAB for 28 and 29 June 2011. He identified all hand keyed bets placed on window 1 of the hotel’s PUBTAB to have been placed on credit on 28 and 29 June 2011 between 7.04 pm and 4.52 am. The summary of bets were as follows:
· 735 trackside bets ranging from $12 to $9,600 totalling $492,207;
· 39 parimutuel bets ranging from $30 to $165 totalling $2,481; and
· 1 sports bet totalling $5.
10 The total bets placed was $494,693 during this period with 57 dividends collecting $417,828.80. There were four bets which had been cancelled which totalled $1,085. The loss produced from this betting amounted to $75,779.20.
11 Mr Noble identified all hand keyed bets placed on window 1 of the hotel’s PUBTAB to have been placed on credit on 29 June 2011 from 7.23 am. The summary of bets were as follows:
· 38 trackside bets ranging from $600 to $9,000 totalling $120,300; and
· 1 parimutuel bet for $1
12 Total bets placed for this period was $120,301 with four dividends being collected totalling $57,600.00 and one bet cancelled of $1. The loss incurred in respect of this betting was $62,700. There was a further loss identified of $203,090, but in this respect the investigators took a conservative approach and did not attribute this to you. However, you admit that you were responsible for this loss as well, having had the matter specifically broached with you through your counsel.
13 The total loss therefore was $138,683.10, and you consent to the making of a compensation order in this sum.
14 On 30 June 2011, you were interviewed at Tabcorp’s head office by Adrian Noble. During the interview you said that you had been credit betting at the Clare Castle Hotel on 28 and 29 June 2011 and acknowledged that you had incurred a loss of $138,683.10.
15 You also said that you did not think you had a gambling problem. You said that you deeply regretted your actions and the position you had put others in and you needed help.
16 On 6 July 2011, police met with Adrian Noble who provided them with a file relating to your activities on 28 and 29 June 2011. On 12 July 2011, you attended the South Melbourne Crime Investigation Unit by appointment. You were arrested and a record of interview was conducted. During the interview you made admissions to the offending, stating that you had “just started work, and started betting and started losing, and panicked and started credit betting, and losing, and losing, and tried to get it back, and just couldn’t”. You said that you were betting on “quinellas and trifectas on races upwards of sometimes – at the end it was probably $5,000, $6,000 a race”, that you stopped betting at about 4.30 am and then started betting again at 7.30 am but that you “only bet for about 20 minutes till I think Tabcorp realised what I was doing and shut it down”. You estimated that you had lost approximately $135,000 to $137,000 and that you had placed about 800 bets. You stated that you did not have a licence to operate the TAB and you told police you had a gambling addiction. When asked your reason for your actions, you said “not any good reason, bar that obviously it was a sickness, and tried to get help for it. I’m going to counselling”.
17 It is indeed a great shame for you and for the victims, Mr Scassaioli, that you did not seek any help in a bid to curb your problems with gambling earlier.
18 Your offending is most serious and has had the most devastating impact upon the owners of the Clare Castle Hotel as the Victim Impact Statement reveals. Mr and Mrs Farrant were in court at the plea and asked that the Victim Impact Statement, which was prepared by Mr Farrant, be read aloud. Mr Farrant indicates that as a direct result of your offending, a debt of $138,683.10 has been accrued and that Tabcorp requires this amount to be repaid over a 12 month period. Mr Farrant indicates that the business was a small Tabcorp licensed venue and could not sustain additional weekly repayments of $2,667. With the high monthly rent that the Farrants must pay, payment of an additional $10,668 per month will result in closure of their business.
19 The Farrants have three children, aged 17, 16 and eight, all of whom are dependent on their parents for financial support and all of whom are still at school. Their oldest child is doing VCE and the stress of the additional debt is making an already stressful year considerably more difficult. Your actions have placed an emotional strain on the Farrant family which has meant that they have required medical attention.
20 Mr Farrant said that Tabcorp is enforcing the debt and they are left with no choice but to sell their business to repay it and associated solicitor’s fees. They are attempting to negotiate a settlement with Tabcorp but have had no meaningful response to date and have sought the assistance of an industry mediator in an effort to avoid more legal costs. They are not in a position to sue the security company over their failure to notify them on the night that you were on the premises, despite special requirements in the security company’s contract which would require notification of any such incursion.
21 Mr Farrant also observed that Tabcorp has the advantage of being a large corporation and that the contract with them moves all costs of any fraud to the Farrants. This is despite the fact that they could not have established because of privacy issues that you had been barred from working on Tabcorp equipment in 2005 and that you had no current registration. It is also despite the fact that daily balance sheets audited by Tabcorp in the six months leading up to the fraud showing the names of operators, including that of your own, were clearly not examined by Tabcorp because no alert was provided and it was also despite the fact that betting on the night in the vicinity of $600,000 was said by Mr Farrant to be the largest betting that had occurred until that time on the trackside betting game and was conducted on Tabcorp’s computer system overnight. However, the alert did not come until about 7 am the following day.
22 Mr Farrant says that he understands that you are not likely to be able to pay this money, so the uncertainty relating to the debt is real and a major stressor in their lives. He said that he believed that their lives and livelihood as long-term publicans will be irrevocably changed as a result.
23 The fact that you offended against people who did not have the means that a corporation like Tabcorp has to meet such debts is a matter which goes to the seriousness of your offending. I also observe the sentiments which are contained in the Victim Impact Statement insofar as they reflect upon Tabcorp in these matters does not stand that organisation in anything but an bad light and it may be that the Farrants are minded to take advantage of further legal advice, perhaps on a pro bono basis in this regard. I say nothing further in that respect, but if Mr Farrant is accurate in his assessment and description of the behaviour of Tabcorp in this situation, I must say that I regard them as behaving most discreditably.
24 Mr Buxton indicated that you had been apprised of the contents of the Victim Impact Statement and even before this, you were most regretful of your actions insofar as they affected the victims. He referred to the fact that you had written a letter to the victims previously expressing your remorse and Mr Buxton said that you proposed to work two jobs in a bid to make repayment as soon as possible. In this regard, a compensation order has been sought. I was told that you have paid about $1500 toward this debt and consent to the making of the compensation order. You intended to make further repayments at an earlier stage but I was told that the need to pay legal fees for representation on the plea has resulted in an hiatus in this respect. Tendered on the plea were two letters which you sent to the Farrants paying a total of $1400 from savings in September and October 2011. You said that you were also intending to access your superannuation but this was not broached on your plea. In one of those letters you apologised to Mr Farrant for what you had done.
25 Mr Buxton told me that you are living at home with your parents at present. You had lived away from home in the past, sharing with friends, but you are now with your mother and father. Your mother was present at court on the plea hearing and it is clear that you have strong family support which is a positive matter when assessing your prospects of rehabilitation.
26 The strength of that support was shown when your parents previously bailed you out in relation to a prior episode which was never brought to police attention. On the previous occasion, when you were working at another hotel, you incurred a debt of about $22,000 which your parents paid and you were fortunate enough not to be prosecuted. This was the occasion which gave rise to cancellation of your Tabcorp accreditation.
27 Both of your parents were born in Italy and each moved to Australia independently of each other some years ago. They married in 1972 and had two children, including you. You have a 30 year old sister. Your paternal grandmother lived in the family home with you until late last year when she passed away. I was told that you had a close relationship with her and that had a sad impact upon you, amongst other people in your household.
28 Mr Buxton indicated that your father is embarking on an importation business concerning grease pumps for heavy equipment. He has a warehouse in Bayswater and will be the sole distributor of such items.
29 Mr Buxton said that you propose to work two jobs as I have said, one being your present employment where you earn $550 per week, and the second job being in relation to your father’s business.
30 I was told that you completed your VCE in 1993, growing up in the North Dandenong area before moving to Glen Waverley. Your early life was unremarkable. After leaving school, you worked in a service station and serviced coin machines before working in a bistro and a bottle shop. In 1998, you moved into the hotel industry. In that same year you worked in the Vale Hotel in Mulgrave and obtained a gaming licence in respect of poker machines and the like, as opposed to TAB accreditation. You were employed in that hotel for four or five years, and in 2004 you commenced work at L’Unico Hotel in Clayton where you worked for about 18 months. You finished there in 2005 and it was whilst you were working at this hotel that your TAB accreditation was cancelled due to the similar conduct to which I have just referred. Notwithstanding cancellation of your accreditation, you continued on with your gaming licence, working at the Monash Hotel for two years and then at a hotel in Springvale for a couple of years after that. Your gaming licence expired after you became ill. You were diagnosed with epilepsy in April or May 2010, having suffered an initial fit whilst asleep at home. You have since experienced further epileptic fits from time to time. You have been prescribed Epilim, which you take daily. I was told that in the lead up to the first epileptic fit that you experienced, you had been working shift work in order to try to get your life back in order.
31 In February 2011, you commenced at the Clare Castle Hotel as a barman and worked in the restaurant. Shortly before the offending, one of the TAB operators went on leave and you filled this position for a couple of weeks. Your understanding of the cancellation of your accreditation was that you were still able to work on TAB premises if a licensed operator was also on the premises. Of course, on the occasion of your offending, there was no such licensed operator present.
32 After these offences, you obtained work at a café in Glen Waverley and have continued to work there since July of last year. Your average pay is $550 and Mr Buxton has advised that on present take home pay you could manage to repay $1,000 per month to the victims You live at home and do not pay board and, therefore, you have a good deal of disposable income from your earnings.
33 You have never married and have no children.
34 Mr Buxton said that with the prospects of involvement in your father’s business, you may well be in a position of earning more income in the future in order to repay the compensation debt owed to the Farrants. If you were to be imprisoned, then you would have to start over again insofar as recommencing any repayment was concerned.
35 Of course, in sentencing you, I must impose a sentence which justly punishes you and which denounces your most serious conduct. Your behaviour on the occasion of this offending amounts to a gross breach of trust which has had a devastating impact on your employer and his family. Although it is desirable that you repay the Farrants as soon as possible, I cannot forsake the weight that I would otherwise give to other sentencing factors in order to simply accommodate this.
36 It is evident that you have a gambling problem which commenced when you were in your twenties. I was told that you played poker machines and occasionally went to the casino with friends. Your main focus in gambling was on the horse races and greyhound racing. Originally, in the context of pub culture, you developed a problem with gambling when you were about 30 years old, if not a little earlier. Mr Buxton said that your gambling sometimes resulted in you spending most of your salary. In your record of interview, you said that you spent $300 of $500 per week gambling. However, I note that in doing so, you were still gambling within your means. The only other time that it appears you have not done so was when you were at the L’Unico Hotel, which resulted in the debt of $22,000 which was paid by your parents.
37 I accept that you deeply regret your actions in relation to the offending for which I sentence you and that you have expressed your remorse in a variety of ways, including to the owners of the Clare Castle Hotel. You pleaded guilty at the earliest opportunity and you have fully co-operated in the investigation from the outset. In the circumstances, you are entitled to a substantial discount in the sentence that you would otherwise receive. Your early plea of guilty has meant that you have saved the witnesses, especially the victims, the time and trauma of giving evidence and you have saved the community the time and expense of contesting proceedings. Your sense of remorse and taking of responsibility insofar as you can also bodes well for your prospects of rehabilitation.
38 I will come to Mr Joblin’s report in due course in respect of your gambling problem and submissions which have been made in relation to it by your counsel and the prosecution.
39 On the plea, Mr Buxton provided me with a most helpful document concerning your pattern of gambling throughout the period of your offending. The document entitled “Pattern of Gambling Behaviour by the Accused”, which is Exhibit 1 on the plea, shows that, in general, the total amount bet by you and the average bet amount on the occasion of your offending increased significantly as each hour passed. The pattern which the table reveals is consistent with what you told police in the record of interview, as it would appear that you initially engaged in this activity for profit but this motivation quickly turned to a panic struck frenzy of betting in a bid to cancel out ever-increasing debt. It is also evident that in a bid to recover the overall position, you bet ever-increasingly large amounts and were betting on every simulated horse race available, placing multiple bets on each race and sometimes putting five or six bets over a period of about 40 seconds. The way in which the machine you were operating worked was such that you were able to simply key in the amount of the bet and the number of the horse which facilitated you engaging in betting at this feverish rate as the night wore on. I accept that your motivation, which was initially to gamble and to make money for yourself, fairly quickly turned to a motivation to repay the debt that you had incurred, which is something that I take into account when sentencing you.
40 Mr Buxton referred to the report of Ms Suzy Adler, psychologist and gambling counsellor from Gamblers Help, which is a service operated by Eastern Access Community Health. As predicted a number of years ago now, when moves were afoot to introduce poker machines and expose our society to ever-increasing methods to develop gambling addiction, organisations such as Gamblers Help were left to pick up the pieces. Amongst other things, Ms Adler observed that the machine which you were operating appeared to be programmed to operate in a highly addictive manner and that whilst you were aware of the moral issues and your actions, you were unable to stop yourself from continuing once you were “hooked in” to the play.
41 I must say that I do not accept that the machine which you were operating was programmed to operate in a highly addictive manner as it was not a machine which was designed to be used by one person in the way that you had used it. Rather, it is a machine which was to be operated by an accredited operator serving customers at the hotel, rather than to be used by someone who was continually at the machine hour after hour, as you were.
42 Ms Adler reports that you have had 11 further sessions with Gamblers Help after initial assessment on 4 July 2011. You reported to her that you had a history of gambling and noted that you could spend a considerable part of your salary in betting but it never got out of control. You said that you were able to stop gambling when you decided to and you were able to pay for basic necessities such as rent and bills, but that gambling had restricted your lifestyle so that you could not afford extra comforts.
43 Ms Adler said that gambling such as you have experienced may be described as “problem gambling”. She remarked that the incident which occurred on 28 June 2011 was completely different to your normal behaviour and that you reported that you were hooked into a cycle of betting/losing/chasing losses, steadily increasing your bets in a bid to win the credit money back and even up the account. You made huge bets – up to $500 – in your attempts to win money back. You said that you continued to play the machine to cover the debt and prevent trouble for your employer. Ms Adler says that according to your history, this gambling was out of character for you, although it does not appear that you told Ms Adler about the previous incident where you incurred $22,000 debt at L’Unico Hotel.
44 In summary, Ms Adler says in her first report:
“While Mr Scassaioli had a history of gambling, his gambling would have been classified as ‘problem gambling’. He was spending significant amounts that affected his lifestyle. However, he had no history of compulsive or ‘out of control’ gambling prior to this incident.”
45 She remarks that you have been open and honest in reporting and facing the consequences of your behaviour and that you have sought counselling of your own volition, attending reliably. You reported a determination to repay the debt and had developed a plan in order to do so. She said that she would be happy to have ongoing counselling with you in order to support your goal of maintaining a gambling-free lifestyle.
46 I am unsure as to why the incident at L’Unico Hotel is not included in this report and I cannot speculate on what Ms Adler’s view would have been if this incident were included.
47 The further report of Ms Adler dated 23 May 2012 does not address this matter either.
48 A report from Mr Ian Joblin, forensic psychologist, dated 8 May 2012 was also tendered on your behalf. Mr Joblin interviewed you on 7 May 2012 and did note the incident in 2005. He said that in light of this, that your offending in June 2011 suggests you were “somewhat fragile in relation to the diagnosis of pathological gambler”.
49 Mr Joblin said that your history was basically unremarkable until the incident in 2005 and then “this somewhat extraordinary behaviour occurring over this one night”. He then went on to say:
“These offences must indicate the diagnosis of pathological gambling on this night, particularly as Mr Scassaioli acknowledged that as the night continued, his panic and anxiety increased when he recognised that he could not trade his way out of the debt he had incurred unless he had the proverbial “windfall”, which did not occur.”
50 Mr Joblin recalls that since the incident, it was very rare for you to gamble at all – that if you went to a hotel for dinner, you might play a poker machine for a brief time. If I could give you some advice, Mr Scassaioli, it is, do not go to any venues that have any gambling machines in them at all.
51 Mr Joblin said that you must be seen as being fragile in regard to gambling for some considerable time and that, in light of your offending, “it would be naïve to consider that your problems are over”. However, he noted that you were doing what you could to address those and you were motivated to repay the debt owed to the Farrants. Mr Joblin said that you would benefit from supervision to address the issues that you had and to ensure that any problems associated with gambling addiction were treated on an ongoing basis.
52 I must say that I had some difficulty in accepting that you have a pathological gambling problem in general and I do note that Mr Joblin seems to confine the pathological problem to the particular night in question, although he does have regard to the prior occasion when you were involved in similar behaviour.
53 Mr Buxton submitted to me that your gambling addiction was a mitigating factor and referred me to the decision of DPP v Rodelino (2002) VSCA 66. Ms Hogan submitted that your gambling difficulties should not be seen as a mitigating factor and referred me to the case of R vGrossi [2014] VSCA 51 at page 251 - [56].
54 I have considered both of these cases and the submissions in respect of these. DPP v Rodelino was a case where a very hardworking bank employee with no prior convictions developed an addiction to poker machines to the point where she stole $400,000 from her employer over the course of 12 months, using various devious ways to hide the numerous thefts that she committed. In that case, the Court of Appeal held that in all of the circumstances particular to that case a sentence of two years with 18 months suspended, such that she was ordered to serve six months immediately, was a merciful sentence but was not manifestly inadequately. His Honour Chernov JA gave the lead judgment and in the course of it he referred to the case of R v Martin (1994) 74 A.Crim.R. 252 at 257, where Southwell J had said:
"It would be an unusual case where evidence of addiction to gambling will significantly reduce the importance of the element of general deterrence".
55 Chernov JA then said that this observation was confined to the situation where it might be claimed that the gambling addiction had significantly reduced the importance of general deterrence as a sentencing consideration, this having been the contention in Martin's case. Chernov JA then went on to say that this did not mean that a gambling addiction can never be taken into account as part of the relevant circumstances as a mitigating factor. He then referred to the fact that the authorities recognise that in appropriate circumstances a gambling addiction may be treated as a mitigating factor. Each case must be treated on its own facts, and that even if so treated it will come down to the weight that is to be attributed to such an addiction in any particular case. His Honour then went on to quote from Tadgell JA in R v Cavallin, Unreported Court of Appeal decision 24 July 1996 at page10 as follows:
"It is important that the public does not assume that a crime which is to some extent generated by a gambling addiction, even if it is pathological, will, on that account, necessarily be immune from punishment by imprisonment".
56 Mr Buxton submitted that your gambling addiction was such that it ought be treated as a matter which reduced your moral culpability for what you have done and it ought reduce the weight that I would otherwise attribute to specific and general deterrence. I accept that you had a gambling problem at the time that you offended, but it was at a level where you could contain it to some extent, save on this occasion and one other which saw your TAB accreditation cancelled. While I accept that it was your gambling problem which led you to commence betting on 28 June 2011, the problem became pathological on that occasion because you started digging a hole for yourself that you could not climb out of. Before this time, if addicted to gambling, you were largely a functioning addict and able to live within your means.
57 I accept that your gambling problem explains how you became involved in this hopeless situation on the night in question, but I do not accept that such a problem ought be treated as a mitigating feature in your case or as something which ought reduce your moral culpability or reduce the weight I would otherwise attached to specific and general deterrence.
58 I must give significant weight to general deterrence, and in light of your past behaviour, although not the subject of a court hearing, and the fact that you have a gambling problem for which you still require help, I should give some weight also to specific deterrence. I must also give some weight to the need to protect the community from you committing a further offence of a similar nature in light of these matters.
59 Your counsel submitted that in the circumstances, either a lengthy suspended sentence or a Community Corrections Order was warranted. In the alternative, if I were of the view that an immediate term was warranted, your counsel submitted that I ought impose a term of a maximum of three months’ imprisonment so that I could also impose a Community Corrections Order.
60 Ms Hogan submitted that in light of the seriousness of the offending and the significant weight which must be attached to general deterrence in a case such as this, that an immediate term was warranted. Upon being invited to do so, she submitted that a head sentence of between 18 months and two years’ imprisonment with a non-parole period of between nine and 12 months' imprisonment was warranted in your case.
61 While it is only one case with a number of differences to this, I do note that the Court of Appeal regarded the sentence of Ms Rodelino as merciful but within the range of sentences available. She had caused a far greater loss than you, but then again the impact on her employer was not so devastating and she had no previous conduct of a similar nature as you have, and indeed she had gone to even greater lengths to repay the debt.
62 Mr Buxton responded to the Crown's submission that if I were to impose an immediate term then, as this would be your first term of imprisonment, I should have regard to the impact that this would cause and, in a bid to maximise your rehabilitation, that I ought make a non-parole period of shorter duration than might otherwise be the case.
63 It was acknowledged by the learned prosecutor that your offending was of one night’s duration rather than planned and sophisticated offending over an extended period which is often the case with this type of offending. On the other hand, the offending was of such an intense and serious nature in that short period of time and the breach of trust was so great, as was the impact caused to your employer, that I must also have regard to these matters in sentencing you.
64 I do take into account the fact that any period of imprisonment would be your first and that this would be harder for you than for someone more seasoned to that environment. I also factor in that you suffer from epilepsy which, although medicated, would make time in gaol harder for you than for someone without this condition.
65 Notwithstanding that you have engaged in similar conduct in the past, it was not the subject of court sanction and so you are a man without prior convictions or findings of guilt against your name, and I must factor this into my sentence in a positive way. You have strong family support and you have done what you can to make amends for your conduct, but it is most important that you keep going with this and maximise those efforts.
66 I find that your prospects of rehabilitation in all the circumstances are good, and I must bear in mind what I believe to be still good law that gaol is a place of last resort where no other penalty will do in all of the circumstances of a particular case.
67 In the circumstances I have come to the view that it is indeed appropriate that a sentence of imprisonment is imposed, but after a great deal of anxious thought I am also of the view that it ought be wholly suspended. Appropriate weight can be given to all relevant sentencing matters in this way, bearing in mind that a suspended sentence is a most serious sanction.
68 Would you please stand up, Mr Scassaioli. You are convicted and sentenced to two years' imprisonment, but that period is wholly suspended for three years. That means that if you commit a further offence which is punishable by gaol in the next three years, then you will be brought back before me and unless you could show that there are exceptional circumstances which would make it unjust to do so, you would be ordered to serve that two years gaol. Do you understand that?
69 OFFENDER: Yes, Your Honour.
70 HER HONOUR: Mr Scassaioli, if I could attach conditions to a suspended sentence I will tell you what they would be. Firstly, that you continue on a weekly basis with counselling with Ms Adler for as long as she sees fit, and secondly that you would repay the Farrants in the sum of at least $1000 per month in a bid to minimise their suffering. These are matters which would ease your burden and ease theirs, and as a matter of common decency, responsibility and good conscience these two matters ought be attended to by you religiously. Do you understand that?
71 OFFENDER: Yes, Your Honour.
72 HER HONOUR: If you do breach the suspended sentence in the next three years, I will hear the breach matter and I would be most concerned if I were to hear that you had not honoured your commitment in repaying the debt and if I heard also that you had not kept on with counselling with Ms Adler until such time as she was satisfied that there was no further need for it.
73 I make a compensation order as follows. I order that you pay to the Clare Castle Hotel, 354 Graham Street, Port Melbourne, compensation in the sum of $138,683.10. If not for your plea of guilty, I would have sentenced you to three years' imprisonment with a non-parole period of two years to be served immediately. Take a seat, Mr Scassaioli.
74 Are there any further matters, counsel?
75 MR BUXTON: No, Your Honour.
76 MS HOGAN: Your Honour, just as I was listening to Your Honour's sentencing remarks, you referred to the calculations that we had just gone through prior to that. In relation to the offending on 29 June, I think you referred to the total loss as being $62,700 as opposed to $62,701.
77 HER HONOUR: I am sorry, I did do that. I will make that amendment.
78 MS HOGAN: And the other thing, you referred to the accused having lost his licence. I'm not sure if I heard correctly.
79 HER HONOUR: He lost his TAB accreditation but he retained his gaming licence as I understand it.
80 MS HOGAN: Thank you, Your Honour.
81 HER HONOUR: Thank you. We will adjourn the court.
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