R v Cusack

[2009] VSCA 207

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 864 of 2008

THE QUEEN

v

PETER CUSACK

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JUDGES:	NETTLE and REDLICH JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 September 2009
DATE OF JUDGMENT:	15 September 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 207
JUDGMENT APPEALED FROM:	R v Cusack & Anor, Unreported 8 October 2008, County Court of Victoria (Judge Coish)

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Criminal law – Sentence – Evidence of pathological gambling addiction – New argument raised on appeal – Whether Verdins principles engaged – Nexus between addiction and offending not established – R v Grossi (2008) 183 A Crim R 15, [52] applied – Whether cumulation ordered excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr D A Dann	Balmer & Associates

NETTLE JA:

1. I shall call upon Justice Redlich to deliver the first judgment.

REDLICH JA:

1. In the County Court at Melbourne, the appellant pleaded guilty to one count of attempted robbery, one count of theft and one summary charge of making a false report to police.  The learned trial judge sentenced the appellant to 12 months' imprisonment on count 1, two years' imprisonment on count 2 and three months' imprisonment on count 3.  It was directed that five months of the sentence imposed on count 1 and one month of the sentence imposed on the summary offence be served cumulatively on each other and on the sentence imposed on count 2, producing a total effective sentence of two years and six months' imprisonment, with a non-parole period of 15 months.

1. The appellant's co-offender and former fiancée, De Los Reos, also fell to be sentenced on counts 1 and 2.  She received a total effective sentence of 20 months' imprisonment, the whole of which was suspended for two years.

1. The first ground of appeal was that the learned trial judge had erred in his application of the parity principle.  That ground was abandoned at the outset of the appeal, and, if I may say, rightly so, as there were sound reasons for distinguishing between the appellant and his co-offender. 

1. The remaining grounds of appeal were:

Ground 2:  the learned trial judge erred in failing to regard the appellant’s pathological gambling addiction as a mitigating factor.

Ground 3:  the learned trial judge erred in the application of the totality principle particularly with regard to the orders for cumulation.

1. I turn then to the circumstances of the offending, which were summarised in the reasons of the learned sentencing judge:

On Friday 26 January 2007 at about 9 pm, you, Cusack, commenced your shift as gaming venue manager at your place of employment, the Skyways International Hotel in Airport West.  Some days previously you had conceived a plan to steal a large sum of money from your employer and you had discussed this idea with your fiancée, De Los Reyes.

You, Cusack, had taken into account matters such as the poor security; when…