McNab v The State of Western Australia
[2010] WASCA 66
•14 APRIL 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: McNAB -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 66
CORAM: McLURE P
OWEN JA
JENKINS J
HEARD: 25 MARCH 2010
DELIVERED : 14 APRIL 2010
FILE NO/S: CACR 133 of 2009
BETWEEN: KELLY ARTHUR McNAB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
File No :INS 112 of 2009
Catchwords:
Criminal law - Appeal against sentence - Aggravated armed robbery - Whether gambling addiction can reduce the weight given to general deterrence - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J McGrath
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Novak v The Queen (1993) 69 A Crim R 145
R v Atalla (2002) 132 A Crim R 531
R v Do (2007) 180 A Crim R 338
R v Grossi (2008) 183 A Crim R 15
R v Henry (1999) 46 NSWLR 346
R v Martin (1994) 119 FLR 220
R v Parker (2000) ACTSC 68
McLURE P: The appellant seeks leave to appeal and if leave is granted to appeal against his sentence of 2 years' imprisonment on one count of aggravated armed robbery. The sole ground of appeal for which leave is sought is that the sentencing judge erred in attaching too much weight to the need for general deterrence.
The offence was committed on 2 June 2009 at a suburban credit union branch. The appellant was wearing a baseball cap, very dark sunglasses and a long shirt in order to disguise himself (ts 9). The appellant armed himself with a syringe which he produced to the bank teller at the time of making a demand for money. The amount stolen was $3,250, some $2,214 of which was recovered upon his arrest. He made restitution of $200 at the time of sentencing.
The appellant was aged 28 at the time of the offence. He was retrenched from his employment in the mining industry in December 2008. The psychological report notes the appellant's advice that he developed a gambling addiction in February 2009. The appellant was also abusing amphetamines and alcohol in the period leading up to the commission of the offence.
After the offence, the appellant sought counselling for his gambling problem and applied for a 12‑month self‑exclusion from Burswood Casino. He had no relevant prior record and pleaded guilty to the offence.
The sentencing judge noted that the circumstances of the offence were serious, particularly having regard to the fact that the appellant threatened the teller with a syringe (ts 10). He continued:
I accept that you are committed to your rehabilitation, and that is a good thing, but the fact remains that you have committed a serious offence and that in sentencing you I take account not only all those personal factors but the need for general deterrence, which has to be a message sent out into the community that armed robberies of this nature will not be tolerated and that people who commit them can in general expect significant consequences (ts 10).
The appellant's counsel conceded (correctly) at the hearing of the appeal that the term of 2 years was at the low end of the sentencing range for offences of that type. The contention for the appellant is that if it is accepted that the sentencing judge erred in giving undue weight to general deterrence, the proper disposition would be a suspended term of imprisonment.
The reasons for, or causes of, offending are relevant considerations in the exercise of the sentencing discretion. In particular, they are relevant to the assessment of the existence and extent of any actual or potential rehabilitation and the weight to be given to personal deterrence. The appellant's contention goes beyond these uncontroversial propositions.
The appellant claims that when an offender's gambling addiction makes a causal contribution to the commission of an offence, reduced weight must be given to the need for general deterrence in sentencing for that offence. The term 'addiction' is not used in this case in any technical medical or psychological sense. It is the appellant's description of his problem unsupported by expert evidence.
The appellant relies on authorities from other Australian jurisdictions for his claim. The Victorian Court of Appeal has considered the issue in a number of cases including Novak v The Queen (1993) 69 A Crim R 145, 149 (Vincent J), R v Martin (1994) 119 FLR 220, 224 ‑ 225 (Southwell J), R v Atalla (2002) 132 A Crim R 531 [14] (Vincent JA), R v Do (2007) 180 A Crim R 338 and R v Grossi (2008) 183 A Crim R 15 [47] ‑ [57].
It is unnecessary to detail all the Victorian case law. The position is as stated by the Victorian Court of Appeal in Grossi. That was an appeal against a total effective sentence of 6 years' imprisonment on 19 counts of theft from the appellant's employer. There was expert evidence that the appellant suffered from a pathological gambling disorder in the form of a mental disorder (an impulse control disorder recognised in DSM-IV). The Court of Appeal noted that the occasions on which it would be appropriate to treat a gambling addiction as a mitigating factor or one having any significant effect on general deterrence had been variously (and correctly) described as uncommon, unusual and exceptional [51] ‑ [52]. Moreover, even if the gambling addiction is such as to constitute a mental disorder that will not generally result in any appreciable moderation of the sentence [56]. The Court of Appeal in Grossi held that the appellant's mental disorder itself did not necessitate any reduction in moral culpability or amelioration of general deterrence.
On the other hand, Justice Crispin in R v Parker (2000) ACTSC 68, concluded that general deterrence should be given less weight in that case because the offender was found to have a mental disorder in the form of a pathological addiction to gambling [5], [16].
In the guideline judgment of the New South Wales Court of Appeal in R v Henry (1999) 46 NSWLR 346, the court held that the principle of general deterrence should not be given less weight in the context of offenders who commit their crimes for the purposes of assuaging a drug addiction [204]. The implication in the reasoning is that the same conclusion is applicable to a person who commits a crime because of an addiction to gambling [203].
It is unnecessary in this case to determine the issue of principle for this jurisdiction. I will assume in the appellant's favour that a gambling addiction can in unusual, uncommon or exceptional circumstances reduce the weight to be given to general deterrence. There is nothing in the facts of this case to bring the appellant within the exceptional category. The appellant's compulsion to gamble was of relatively short duration and was not established to involve any mental disorder. Moreover, he had the same difficulty in resisting a compulsion to abuse alcohol and prohibited drugs in the period leading up to the commission of the offence. In the circumstances of this case, none of those factors are mitigatory or reduce the need for general deterrence. The sentencing judge clearly had regard to the steps taken by the appellant to address the cause of his offending, which reflected on his rehabilitation, and the other mitigating factors to reduce the term of immediate imprisonment, being the appropriate sentencing option.
The ground of appeal has no reasonable prospects of succeeding. Leave to appeal should be refused.
OWEN JA: I agree with McLure P.
JENKINS J: I agree with McLure P.
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