R v Bouskila
[2007] NSWDC 283
•13 December 2007
CITATION: R v Bouskila [2007] NSWDC 283
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 22/11/2007, 29/11/2007, 10/12/2007, 13/12/2007
JUDGMENT DATE:
13 December 2007JURISDICTION: Criminal JUDGMENT OF: Williams DCJ at 1 DECISION: 1. She is convicted of each offence.; 2. In regard to counts 11 and 16, she is sentenced to a fixed term of imprisonment of ; 12 months to date from 29 November 2007.; 3. In regards to counts 1, 2, 3, 8, 9, 12, 13, 14, 18, 20, 21 she is sentenced to a fixed term of ; 18 months imprisonment to date from 29 March 2008.; 4. In regard to counts 10, 17 and 22 she is sentenced to a fixed term of 2 years imprisonment to date from 29 July 2008.; 5. In regard to counts 4 and 15 she is sentenced to a fixed term of 2 ½ years imprisonment to date from 29 November 2008.; 6. In regard to counts 5, 6 and 19 she is sentenced to a fixed term of 3 years imprisonment to date from 29 March 2009.; 7. In regard to count 7, and taking into account the matters on the Form 1, she is sentenced to a minimum term in custody of 3 years and 4 months and a total term of 4 ½ years, to date from 29 July 2009. ; 8. The earliest date that she will be eligible to be released on parole will be 28 November 2012. The total term will expire 28 January 2014. CATCHWORDS: Obtaining a benefit by deception - Pathological gambling - Addiction to poker machines - Sentence LEGISLATION CITED: Crimes Act 1900 (NSW) CASES CITED: R v Burke (2002) NSWCCA 353
R v Israil (2002) NSWCCA 255
R v Alexander (2000) NSWCCA 458
R v Molesworth (1999) NSWCCA 43
R v Petrovic (1998) VSCA 95
R v Tobin [unreported, Berman J, 22/11/2002 (02/11/0738)]
R v Gennaoui [unreported, Nicholson J, 12/5/2006 (05/21/0246)]
R v Henry (1999) 46 NSWLR 346
R v Pearce (1998) 156 ALR 684
R v McKechnie [unreported, NSWCCA, 1/10/1987]
R v Hawkins (1989) 44 A Crim 430
R v Pantano (1990) 49 A Crim R 328
R v Hawker (2001) NSWCCA 148
R v Power (2002) NSWCCA 244
R v Koulouris [2007] NSW DC 262PARTIES: ODPP
Regina BouskilaFILE NUMBER(S): 07/11/0068 COUNSEL: Ms. Williams (ODPP)
Mr. G. Segal (BOUSKILA)
JUDGMENT
1. HIS HONOUR: Mrs Bouskila has pleaded guilty in the District Court on 11 October 2007 to an Indictment containing 22 counts of obtaining a benefit by deception contrary to s 178BA of the Crimes Act 1900 (NSW). She also asks that I take into account on a Form 1, 11 further such offences. The maximum penalty for each offence is 5 years imprisonment. There is no standard non-parole period applicable.
2. There is an agreed statement of facts, which reveals that in all the Commonwealth Bank of Australia (CBA) has suffered a total actual loss of $3,109,549.93 - an extremely large amount of money by any standard. The agreed facts are Exhibit A in these proceedings. Other documentary exhibits are two reports from a psychiatrist, Dr Stanley dated 13 September 2007, a psychologist report from Mr Taylor, Prince of Wales hospital notes, a list of monies and sources and the statements of Ms Quinn, Ms Elliott and Mr Gladstone. Evidence on sentence was given by Ms Bouskila and her brother, Mr Friedman.
3. Ms Bouskila is aged 50. She has 8 sisters and one brother and was born in Australia to parents who had both survived concentration camps in Europe. Ms Bouskila’s mother died in 1992 and her father is in nursing home suffering dementia. The children’s upbringing, as confirmed by Mr Friedman, was traumatic, involving beatings, social isolation and verbal abuse. She left home at aged 17, when they were living at Parramatta, where her father worked as a shoemaker. She lived in a flat at Bondi with another girl until she met and married her husband in Morocco.
4. The marriage was characterised by violence to her and the children. She left when her first child was 4 ½ but eventually returned home. They have lived in the same house since, although not as a married couple for some time. They were divorced on 5 November 2007 and her youngest son aged 14 is going to live with his father in Israel. She says she does not have any friends.
5. She commenced work at the Commonwealth Bank aged 17, eventually rising to the position of Branch Manager. She said she started to gamble on poker machines a year or so after her mother died in 1992 and that this became problematic for her in 1999. She would often gamble with her sister.
6. The earliest offence charged occurred on 23 August 2000 (see offence two on the Form 1) involving an amount of $10,122.93. Set out below is a table of dates of offences, whether on indictment or Form 1 and the amount of the loss sustained.
DATE
INDICTMENT/FORM 1
7. Ms Bouskila was an employee of the Commonwealth Bank for 25 years with an 8 year absence from the bank between 1981 and 1989. From September 2003 she was the manager of the bank’s Rose Bay North branch.
8. She adopted a traditional bank manager’s role where she developed close relationships of trust with bank customers, including the victims in these matters.
9. There are 5 principal victims and 2 secondary victims to which most of the principal charges relate.
10. Lorna BLACKWOOD and George Mason are both elderly, eighty-two and eighty-nine respectively. Sandra Horton, whilst younger, was at the time dealing with significant personal traumas, with close family terminally ill. Ms Bouskila was aware that her husband was ill, however did not know that he was terminally ill.
11. Yolande SCHER lived overseas but frequently returned to Australia and dealt with her affairs with the bank on those occasions and by telephone. Her daughter, Jodi Chimes, had authority to operate her account, however did not exercise it.
12. Two secondary victims, Harry and Marguerite GLADSTONE, were also overseas residents, as well as elderly (Mr Gladstone is 92 years of age).
13. As branch manager, she had access to the bank’s Bills Processing System (BPS) using her own staff number and password. On the occasions specified, she would gain access to the BPS and either fully or partially repurchase customer’s bills without their authority.
14. When this occurred the funds were automatically dispersed into the branch’s suspense account. She would then fill out a debit slip and supply instructions to a teller to direct those funds in various ways. This would include disbursement directly to cash, the issuing of a bank cheque or a direct transfer to a nominated account.
15. Tellers would not question these transactions as instructions in this form were routine. When cash or cheques were issued, she personally took possession of them.
16. She would commonly direct funds to the account of twin sister Martha PEYSER either directly or by bank cheque. This is an account where she held a keycard and authority to act on the account.
17. In some instances she would repurchase the full value of a customer’s bill and obtain bank cheques to the full value. However some of those funds would be used to create a new false bill in the customer’s name. This bill would then be drawn upon on future occasions, sometimes in order to acquire another bill in the customer's name, sometimes to reimburse another client and sometimes to use the funds herself.
18. In all cases she would produce documents purporting to be bank statements reflecting the status of customers bills as they expected to find them, with no reference to the unauthorised transactions. In some cases she continued to send statements for years after a bill had been fully repurchased and closed.
19. The legitimate statements generated by the bank would be intercepted by her by directing them to the Rose Bay North branch of the Bank.
20. If an occasion arose where a customer sought to legitimately withdraw funds from their bill and none were available due to a prior unauthorised repurchase, she would remove funds from another customer to replace those previously taken.
21. The bank has reimbursed all victims, and has such has sustained a total actual loss of
$3,109, 549.93.
22. In substance, the monies were used for gambling and the vast majority of monies taken from the account of M. Peyser were withdrawn at venues with gambling facilities.
23. During March of 2006 she travelled to Israel. On 30 March 2006, Yolande Scher called the branch to check on her accounts. She sought to discuss them with Mrs Bouskila as she normally would, but in her absence was assisted by the deputy Marylyn Turner.
24. Turner searched the bank’s “Commsee” program for information on Scher’s bill, but found only reference to her other two bank accounts. Turner also searched the branch’s paper records to no avail.
25. A further search, in the company of the relieving branch manager Vanessa Stace, discovered that the bill number 304680 had been fully repurchased in 2004. When this information was conveyed to Ms Scher she disputed this, informing Turner that Mrs Bouskila had, prior to her holiday, told her the accounts balance and that ‘everything was alright’.
26. On the evening of 30 March 2006 Turner contacted Mrs Bouskila in Israel. She informed her that the Scher bill was apparently missing. Mrs Bouskila said that she would ring Ms Scher when she returned to Australia.
27. On 31 March 2006 Scher’s daughter, Jody CHIMES attended the bankwith correspondence relating to the bill that indicated the bill was still current.
28. Mrs Bouskila returned to Australia from Israel on Saturday, 22 April 2006 with the knowledge that her misconduct had been discovered. The matter then became subject of a formal fraud report and was referred to bank investigators. This resulted in a charge being laid on 23 April 2006.
29. On 13 October 2006, she participated in a ERISP in which she made a full and frank disclosure of her actions. At no time thereafter did she seek to dispute those matters.
30. The bank continued its investigations, uncovering the balance of the unauthorised transactions, now the subject of the remaining charges.
31. Dr Stanley, a psychiatrist suggested the probable precipitating factors leading to these thefts were:
a) Increasing addiction to poker machines
b) The death of her mother in 1992
c) Her husband’s violence – jaw broken in 1997
d) Her eldest daughter being made a ward of the state and threats to have other children removed by DOCS.
32. I do not understand the rationale behind this opinion. Clearly the primary alleged reason for theft was an addiction to gambling. The remaining 3 matters referred to may have operated as a reason as to why she sought solace in poker machines, but cannot be a reason for the sustained theft on which she engaged.
33. As Dr Stanley says in his opinion, “major emotional tension and suppression were severe enough to lead to addiction”. In the report of 13 September 2007, relied on by Mrs Bouskila this is said:
“She denies targeting bank clients because of any particular vulnerability, but did know all of them well enough to believe that given the history of the management of their accounts, they would be unlikely to call on their monies in the immediate future, and that they would be less likely to quickly discover the fraud”.
34. Furthermore, he stated that,
“Poker machine addiction, when severe, is often on a background of chronic emotional conflict and deprivation. The addiction acts as an “anaesthetic” a source of pleasure and comfort”.
35. She was interviewed by W.John Taylor, a psychologist on 28 November 2007 and he reported as follows:
“She has never had a problem with alcohol abuse. She does not use any illegal drugs. She began to gamble at the age of thirty-six. She stated that by 1999 it had become a problem for her. The test results indicate that she does not have a personality disorder. She is suffering from severe depression, and has been suffering from a dysthymic disorder for many years. The history she provided indicates that she suffers from pathological gambling and battered woman syndrome. Mrs Bouskila would have adequate control over drive and impulse, when she is depressed however, these controls would be weakened. Mrs Bouskila has mild anger pathology, anti-social characteristics were not revealed by this assessment. There is no indication that Ms Bouskila has any thought process or thought content disorder. There was also no indication of any perceptual disturbance. The results suggest that she tends to be rather introspective and is capable of developing insights into her functioning. She does not have a significant predisposition to develop dependence on alcohol or illegal drugs. She is socially inhibited and has an avoidance personality adjustment. She has a good deal of social anxiety and distrust, however she is also very passive and would avoid situations that involve social challenge. She has a low risk of recidivism.”
36. In his opinion, she developed a Dysthymic Disorder from an early age and that this has persisted. She, therefore, became resigned to the marriage and felt helpless to improve her situation. In order to cope and to avoid further abuse she became very compliant. History indicates she suffered from “Battered Women’s Syndrome”.
37. She discovered at the age of 36 years that she could gain some pleasure from gambling. She started to play poker machines. In 1999, it had become a problem for her. The history she gave satisfies the criteria for a diagnoses of Pathological Gambling. It is likely that she was aware that what she was doing was wrong, but may not have been able to exercise rational judgment with regard to her behaviour. After a short time she began to gain pleasure from gambling and used it as an escape, thus also continuing her offending behaviour.
38. Because she is assessed as having a low risk of recidivism she is considered to have a good chance of successful rehabilitation.
39. Her rehabilitation and her emotional welfare in general would be assisted if she were to undertake psychiatric or psychological treatment for her emotional disturbances. In my opinion, she will need to have treatment for a considerable period of time, in excess of 12 months.
40. It is unlikely that she will ever fully recover.
41. Ms Bouskila will find it more difficult than most inmates to serve a custodial sentence because of her emotional problems.
42. In evidence Mrs Bouskila said that most of the money went on poker machines. She provided money to her sister and her daughter to gamble on poker machines, telling them that she had won lotto. However, I find it difficult to accept that the amount of money defrauded could have all be dissipated on poker machines, although there is no evidence of funds being secreted elsewhere.
43. Since 1999, eight years ago, Mrs Bouskila has sought little in the way of assistance in regard to her gambling problem. Indeed, she said in evidence that she was not really gambling now. By this she means she gambles $5 or so with her sister which she did not really regard as gambling. She said that she had not sought treatment because she saw that what she did was wrong and that she did not believe that she would ever do it again. Dr Stanley reports that she sees a therapist, Adelia Leritte, but there is no report from this person, nor is there any evidence as to what type of therapy is being engaged in. Apart from a half share in a house, Mrs Bouskila has no assets and now no income from which she could hope to pay even the interest on the money defrauded.
44. In cross examination Mrs Bouskila disagreed that she had chosen the victims because of their age or personal situation, although she acknowledged to Dr Stanley that she did use accounts that, given the history of their management, they would be unlikely to call on their monies in the immediate future and were less likely to quickly discover the fraud. She was aware that some of the account holders were living overseas and/or were dealing with various personal problems. She agreed it would be impossible to gamble $1,000,000 a year. She said she gambled mainly on Saturdays as she was busy at work on other days. It seems apparent that some money taken from the accounts was used to repay monies taken from other accounts, as well as the interest that had not been earned on that money as it was not in the bank. In re-examination a document prepared by Mrs Bouskila was tendered, exhibit 4, which suggests the sum of $500,000 approximately of the amount defrauded, was used to pay the interest that should have been paid. However the amount of loss sustained by the Commonwealth Bank is both actual money defrauded as well as the customers lost interest.
45. For someone who was a branch manager of a bank, Mrs Bouskila was less than impressive. However, while I find it difficult to believe that this amount of money was expended principally on poker machines, there is no proof beyond reasonable doubt that any substantial funds had been diverted to other persons or hidden from detection in some way.
46. Despite Mrs Bouskila’s personal view as to her being cured, Mr Taylor feels that she needs treatment for a considerable period of time, although Dr Stanley did not suggest any particular treatment.
47. There can be little doubt that these offences represent a fraud of a very serious nature. The victims are the bank and the various account holders. The primary victim is the bank because it was always going to be ultimately responsible for any fraudulent actions of its employees, given that it was holding the deposits for the purpose of the banks business, on trust for the various personal victims.
48. Mrs Bouskila would have realised, given her position in the bank, that her personal liability for what she was doing, would only extend to whatever assets she had in her possession, as well as any criminal liability when the offending was eventually detected. She would have understood that her employer would bear the ultimate financial responsibility for her actions, and further would have the ability to pay.
49. That is not to denigrate the feelings of the personal victims whose trust in Mrs Bouskila and the bank has suffered substantially. Persons who commit fraud, the so-called ‘white collar crime’, do not necessarily see themselves in the same way as someone who physically assaults another, and yet a fraudster’s actions can often have serious physical consequences, especially to those more vulnerable in society. To suddenly find one’s principal investment gone is likely to cause, at least shock, and in some cases even more serious long term physical effects, although there is no evidence before me as to any of the victims personal feelings as to what happened.
50. An argument was advanced as to the relevance of reimbursement to the victims by the bank, referring to R v Burke [2002] NSW CCA 353. Of course one of the victims was the bank so that there is no question of the bank getting any reimbursement from anyone else. As I pointed out during argument, the banks loss gets subsumed into the interest and charges it makes from its services, so that ultimately the loss is incurred by all the customers of the bank, albeit to a very small degree. All that has happened here is that the account holders personal hardship has been alleviated by the bank compensating them for their loss so that the personal hardship of those victims has not been an aggravating factor. (see R v Burke at paragraph 46, also at 43, 44 and 45).
51. Mrs Bouskila’s betrayal of trust is twofold. She has betrayed the personal trust placed in her by the account holders, and she has betrayed the trust placed in her by the bank by virtue of her position as manager, with overseeing authority to do many things without supervision or question.
52. An argument was made that the question of general deterrence in this matter should be regarded in a similar way as to how mental illness is regarded, when setting an appropriate penalty. Reference was made to R v Israel [2002] NSW CCA 255, and R v Alexander [2000] NSW CCA 458. The latter case was a single Judge appeal from the Drug Court dealing with an offence of break, enter and steal, where the appellant suffered from paranoid schizophrenia and substance abuse problems. The former concerned an armed robbery using a blood filled syringe, by a person also suffering from schizophrenia and substance abuse problems. Both offences appear to have been unplanned, spontaneous decisions made to support a drug habit. As I said in
R v Koulouris [2007] NSW DC 262
, “The typical offence committed to support a drug habit is usually opportunistic, involving little planning or reflection, such as armed robbery, robbery and break and enter offences. The typical offence to support a gambling addiction seems to be usually of a fraudulent nature. Koulouris was also a case of fraud by an employee where there was said to be a pathological gambling addiction.
53. Pathological gambling has been considered by the New South Wales Court of Criminal Appeal in Molesworth [1999] NSW CCA 43. The relevant Judgment is that of Abadee J. The binding principle in Molesworth is that it will be a rare case where an offender can properly call for mitigation of penalty, on the ground that the crime was committed to feed a gambling addiction. Additionally, the Court in Molesworth approved the Victorian Court of Criminal Appeal in Petrovic [1998] VSCA 95, where it was said:
“1. The fact that an offender was motivated to commit the crimes in question by an addiction to gambling will, no doubt, usually be a relevant and indeed may also be an important consideration for a judge sentencing an offender;
2. A gambling addiction, even if pathological, that to some extent generates crime, will not that account necessarily mean that the offender is immune from punishment by imprisonment.”
54. There are two decisions of this Court that suggest a relaxation of the principles in Molesworth. They are Tobin [unreported, Berman J 22/11/2002] and Gennaoui [unreported, Nicholson J 12/5/2006]. That relaxation is said to come from reference to what was said in R v Henry 1999 46 NSWLR 346, about the relationship between drug addiction and armed robbery. At Paragraph 273, Wood CJ at CL said that:
“The fact that an offence is motivated by an addiction, may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may through light on matters such as the impulsivity of the offence, and the extent of any planning for it, and or the state of mind or capacity of the offender to exercise judgment.”
55. Berman J and Nicholson J made comparisons between drug addiction and gambling addiction and suggested that a gambling addiction could be given similar considerations to a drug addiction.
56. Wood CJ at CL also made reference in Henry to a possible subjective circumstance relative to drug taking that may effect the sentence. That being where drug taking was not a matter of personal choice but came about because of something for which the offender was not primarily responsible, for example as a result of medical prescription following injury, surgery or illness, or where it occurred at a very young age, or where the individual suffered from mental or intellectual impairment. However as Berman J pointed out, illegal drug taking is an offence, whereas gambling is not, and is even encouraged by both government and private interests. I also note that addiction to illegal drugs is more likely to follow their use, than is pathological gambling likely to follow from gambling.
57. I have little doubt that a person who becomes addicted to gambling could equally become addicted to drugs and vice versa. However, whilst both forms of addiction involve a powerful mental element, drug taking also usually involves a physical addiction of a substantial and pervasive nature.
58. The question of voluntariness in drug taking or gambling is a complex and difficult one.
59. In my view, it is simplistic to exonerate someone who has become addicted to a substance because it was prescribed for pain on the one hand, but blame someone who voluntarily takes drugs and then becomes addicted on the other. One reason for that is the fact that there are many deleterious substances available in society that are addictive, and yet to which no criminality penalty attaches, such as alcohol and cigarettes. Another reason is that I fail to see that a person who takes drugs to relieve a personal torment is acting voluntarily in the true sense and with full forethought of the possible consequences. I suppose the most serious question that concerns the Court is why persons who develop an addiction do not usually seek help, especially from the point of time when they realise what is happening to them, and the problems that it is causing.
60. Before the date of the earliest of these offences, Mrs Bouskila knew she had a problem with gambling on poker machines, that was in 1999. Although not charged, Mrs Bouskila said in evidence that it was from then that she started to take money. I accept that addiction, whether or not it be to drugs or gambling, can be taken into account in a way suggested by Wood CJ at CIL, in R v Henry.
61. It is quite clear, following Pearce 1998 156 ALR 684 that offences need to be sentenced separately and then the question of totality considered as to whether there should be any full or part accumulation of sentence, or whether the sentences should be served concurrently.
62. The case of Burke (previously referred to) has some similarities to the present case, but is not on all fours. The amount involved was 5.2 million dollars over six years. The money was diverted to the offender’s own business project. He had prior offences of a similar nature and it was unlikely the victims would be compensated unless they took private civil action under a professional indemnity insurance.
63. Reference was made in Burke to two other cases of a similar nature. The first was McKeckney [Unreported, NSW CCA 1 October 1987] where the offender misappropriated 4.15 million dollars over four years as a director and chairman of a company. The second was Hawkins [1989] 44 AcrimR 430 where Hawkins was a solicitor who misappropriated 6.6 million dollars from clients and a finance company over three and a half years. The sentence imposed in Burke, upheld on appeal, was a 7 ½ non-parole period within a total term of 10 years. The sentence in McKeckney, again upheld on appeal, was a non-parole period of 7 years, with a head sentence of 12 years.
64. Hawkins was a Crown appeal and the Court of Criminal Appeal substituted a non-parole period of 10 years and a total term of 15 years. In Burke, the Court said at para 71:
“In sentencing for misappropriation offences, the most important considerations are the breach of trust, the amount of money involved, and the period over which the offences took place. As may be expected, the range of sentences varies greatly depending upon the relation between the offender and the victim, the amount involved and the period occupied by the course of conduct.”
65. In McKeckney the Court said:
“There is no reason of public interest or common sense why those involved in white collar crime should expect any leniency when they engage in plunder of the kind and scale here involved. Executives who hold high office or positions of trust in the commercial world are expected to conform to exacting standards of honesty. The public is entitled to a full measure of confidence in those who control their investments and they are entitled to expect protection from law enforcement agencies and the criminal courts.”
66. There are some other cases of interest, although unless a sentence appeal raises a matter of principal, there is no precedential value in the actual sentence eventually arrived at, except statistically, as sentences depend on particular facts and vary between differently constituted Courts.
67. Pantano [1990] 49 AcrimR 328 is one such case. An appeal against a non-parole period of 4
½ years within a head sentence of 12 years was dismissed by two Judges to one. The appellant had defrauded the sum of $418,000 from his employer over a period of 9 months. There was no particular legal principles involved but there was a fundamental disagreement between the majority and the minority as to the severity of his sentence. I doubt that this case would be decided in a similar way today.
68. In Hawker [2001] NSW CCA 148 he and a co-accused defrauded the Commonwealth Bank of which they were employees, of 1.2 million dollars between 1995 and 1999 in order to spend the funds on gambling. A sentence of a minimum non-parole period of 3 ½ years and a total term of 6 years was upheld on appeal.
69. Power [2002] NSW CCA 244 was a two judge sentence appeal and of little precedential value. Further the judgment was given extempore, is difficult to follow and was given by the dissenting judge in Pantano. The original and already somewhat lenient sentence was reduced on appeal to one of an effective non-parole period of 4 years out of a total term of 7 years because of what was said to be the offender’s strong subjective features, and other discounts. I confess I was unable to see what features justified any reduction in the face of offending that involved 7.6 million dollars by an employee of the National Australia Bank. I do not regard this matter as offering any assistance in the present case.
70. Mr Segal for the defence suggests the following subjective features would allow a reduction of the non-parole period:
a) Her assessment as being at a low risk of recidivism as per Mr Taylor’s report;
b) The personal loss she has suffered as a result of her offending, such as her job and occupation in that industry, her share of the home and her son leaving Australia with his father;
c) There is no evidence that the sick or elderly were deliberately targeted, although low activity accounts were;
d) There was a plea of guilty and although not in the Local Court, was delayed because of the consideration of the plea of not guilty on the grounds of mental illness, however Mrs Bouskila had never contested the facts at any stage.
71. Whilst the facts may not have been contested, had Ms Scher not contacted the bank while Mrs Bouskila was away in Israel, there is no evidence to suggest that the offending would not have continued until the amount of money involved became so large that it would have inevitably have attracted the banks attention.
72. However, the Crown concedes that the plea saved the community from what could have been a lengthy, complex trial which would have placed additional strains on the victims. As well, a long time was also expended in settling the facts.
73. I find it disturbing that Mrs Bouskila still participates in playing poker machines, even at a very low level. That would either suggest a lack of insight into her problem or that she does not have a problem.
74. Whilst there are multiple victims and the offences involve both planning and the ability to access the accounts by virtue of her position at the bank, there are 22 separate offences, each of which inherently involves a degree of planning anyhow and relates to an individual victim.
75. The Crown suggested an argument that compared the respective life outcomes with Mrs Bouskila and her brother. Mr Friedman experienced the same background as she and yet has led a life free of crime. However, it is simplistic to say that because many people who come from deprived backgrounds manage to survive without offending, all such persons should also be able to do the same. Fortunately every human being is different and an individual reaction to stressors will vary infinitely between similar individuals.
76. The following principal factors affect the seriousness of her offending:
a) The high position she occupied.
b) The trust thereby placed in her by the bank and her customers.
c) The substantial amount defrauded.
d) The time over which the offences took place
e) The recognition that she had a gambling problem but did nothing about it.
77. Despite Mrs Bouskila giving evidence, that has been of little assistance in determining subjective issues. Regrettably there can be no alternative to imprisonment. The maximum penalty for these offences is reflective of the seriousness with which they are regarded. The issue of general deterrence, where addiction is involved in criminal offending also must extend to deterring persons who have an addiction from committing criminal acts to support their addiction and from relying on an addiction as an excuse for offending, or as operating as some sort of compulsion to offend. Not all addicts resort to crime to pay for their addiction. It therefore needs to be strongly stated that addiction of itself will rarely result in any substantial reduction of an appropriate penalty, albeit it is a factor that is deserving of the considerations referred to by Wood CJ at CL referred to above. This is especially the case where the crimes in question are not spontaneous but the result of initial and ongoing planning and deceit.
78. I am prepared to find special circumstances having regard to the partial accumulation of sentences and the fact that this will be her first custodial sentence.
79. Having regard to the above I make the following orders:
1) She is convicted of each offence.
2) In regard to counts 11 and 16, she is sentenced to a fixed term of imprisonment of 12 months to date from 29 November 2007.
3) In regards to counts 1, 2, 3, 8, 9, 12, 13, 14, 18, 20, 21 she is sentenced to a fixed term of
18 months imprisonment to date from 29 March 2008.
4) In regard to counts 10, 17 and 22 she is sentenced to a fixed term of 2 years imprisonment to date from 29 July 2008.
5) In regard to counts 4 and 15 she is sentenced to a fixed term of 2 ½ years imprisonment to date from 29 November 2008.
6) In regard to counts 5, 6 and 19 she is sentenced to a fixed term of 3 years imprisonment to date from 29 March 2009.
7) In regard to count 7, and taking into account the matters on the Form 1, she is sentenced to a minimum term in custody of 3 years and 4 months and a total term of 4 ½ years, to date from 29 July 2009.
8) The earliest date that she will be eligible to be released on parole will be 28 November 2012. The total term will expire 28 January 2014.
25/09/2008 - Spelling and typographical errors - Paragraph(s) 2, 29, 54, 56, 62, 65, 66.
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