R v Cusack
[2009] VSCA 207
•15 September 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 864 of 2008
| THE QUEEN |
| v |
| PETER CUSACK |
---
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) | |
---
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.
---
| 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:
I shall call upon Justice Redlich to deliver the first judgment.
REDLICH JA:
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.
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.
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.
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.
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 there is the most amount of money in the safe, after nightshift Friday night/Saturday morning, in excess of $200,000; and the fact that there was a small window of opportunity between the time when staff and security left the premises at the end of the nightshift and the arrival of the cleaners.
At about 4 am on Saturday 27 January 2007, the premises closed and all the patrons left. At this point, three staff, including you, Cusack, and a security guard remained on the premises. Staff then commenced removing all of the cash tins from the gaming machines and counting the takings. At about 5 am the security guard left and the other two staff left at about 5.45 am. This left you, Cusack, on your own in the strong room counting money. Shortly thereafter you, Cusack, contacted De Los Reyes who was waiting nearby in your car, by ringing her on her mobile phone, then hanging up – a pre-arranged signal to indicate that all the staff had left.
You, De Los Reyes, called back to confirm and minutes later entered the premises made your way through to the strong room and knocked on the door. You, Cusack, opened the door and De Los pointed the knife at you and entered. Upon entry, De Los Reyes, struck at the security camera with the jemmy bar so it would be facing way from you. You, Cusack, then removed $211,805 cash from the safe and put it into the black Coles bag. You, De Los Reyes, then taped Cusack’s hands behind his back with the red tape before leaving the premises with the cash. On the way to your home, you switched the number plates back and then disposed of the false plates, a pair of black shoes, the jemmy bar, the knife and a grey jumper in a drain in Sydenham – count 2 theft.
Clearing staff arrived at the premises at 6 and pushed the front door buzzer. Despite still having your hands taped you, Cusack, managed to open the door and you told the cleaners you had been robbed. Police were contacted and you, Cusack, made a statement to police that morning alleging that you had been robbed. Police were contacted and you, Cusack, made a statement to police that morning alleging that you had been robbed by a male wearing a balaclava and you had no idea how the man had entered the premises. This is the summary charge 4 – making a false report to police.
In the course of the [police] interview, you, Cusack, volunteered to police that [at] approximately 5:30 am on Friday 26 January 2007, the morning prior to the commission of the theft, you and De Los Reyes attended the Skyways International Hotel with the intention of robbing the premises. You, Cusack, were aware that once staff had left the premises, only that shift’s night manager, Andrew Callaghan would be inside counting the takings. While De Los Reyes waited outside in your car acting as a look out and getaway driver, you disguised yourself with a balaclava then used the jemmy bar to try to force entry into the staff room. You eventually entered by breaking a glass panel.
Once inside, you heard what sounded like a hotel patron possibly investigating the sound of glass breaking and left the premises. Nothing was stolen and the night manager was unaware anyone had entered the premises. Count 1 – attempted robbery.
The maximum penalty for both theft and attempted robbery is ten years' imprisonment. The maximum penalty for making a false report is one year's imprisonment.
The appellant was 25 years of age at the date of sentencing. He is the father of the co-offender's child, now aged 14 months. He has no prior convictions and is well educated. He has completed a Bachelor of Commerce at the University of Melbourne and a Diploma of Financial Services. At secondary school he was an excellent student and was the dux of year 11 and achieved the third highest entry score in year 12 at Niddrie Secondary College. The learned sentencing judge found the appellant to be very hard working, noting that he had taken part-time jobs as a student and worked in a full-time capacity in accounting practices. The appellant had also worked as a gaming venue manager at the Skyways International Hotel and performed some casual work as a bar attendant.
A number of persons gave character evidence in support of the appellant, including Benjamin Haynes, his current employer, who gave evidence in glowing terms and said that his company was willing to employ the appellant notwithstanding his offending. His uncle, Paul Cusack, also spoke of the appellant as a wonderful young man and that the offending was an aberrant act which was completely contrary to his character. He also said that the appellant was incredibly remorseful and ashamed. The appellant was taking steps to meet a compensation order for moneys owed to the victim of the theft.
Evidence showed that the appellant was a pathological gambler and that the offending was for the purpose of obtaining moneys to gamble. His Honour also observed that the appellant was taking positive steps to address his gambling. He referred to a psychological report from Larissa King, who said that the gambling problem had been under control since the appellant was first arrested. The learned trial judge sentenced the appellant as a person of previous good character. He assessed his prospects of rehabilitation as being good. His Honour also noted that the appellant had strong support from family and friends.
I turn to the appeal. By way of ground 2, it is submitted that the learned trial judge erred by failing to regard the appellant's pathological gambling addiction as a mitigating factor. His Honour said:
You did, however, have a predilection for gambling and lost large sums of money gambling. You had gambling debts and this was the explanation for your offending. It is not submitted that this gambling habit is a factor in mitigation. Rather, it is the explanation and background to your offending, which was otherwise completely out of character.
The primary evidence of the appellant's gambling addiction was provided by a clinical psychologist who said:
There is evidence of Mr Cusack having a significant gambling problem in the past and it is very probable that this played a role in the charges. Results from the psychological testing support this, with Mr Cusack fitting the description of pathological gambling on two independent gambling criteria.
The psychologist opined that the implications of pathological gambling:
distorts thinking, impacting on decision making, judgments and resulting behaviour. A cycle of capricious actions frequently develops, including chasing losses, distorted appraisals of the odds of winning, leading to reckless financial judgments, and lack of responsibility, all of which appear to be the case with Mr Cusack. When combined with the results on the PAI, which suggest that he may have some issues with aggression, some rigidity, inflexibility and impulsiveness, this provides a cogent argument for his unlawful behaviour.
The appellant submits that the sentencing judge should have gone further than simply relying upon this evidence as providing context for the offending. It is submitted that his Honour erred by failing to treat the gambling addiction as a mitigating factor. In particular it is said that the evidence of the psychologist brings the appellant within the principle established in R vVerdins[1] on the basis that he suffered impaired mental functioning that reduced his moral culpability. It is said that the principles stated in Verdins were engaged by that evidence because the addiction 'impaired the appellant's ability to exercise appropriate judgment and make calm and rational choices and so contributed to the commission of the offence'.
[1](2007) 16 VR 269.
The submission before us described the evidence of the psychologist as ‘unchallenged findings’ that had the consequence that the appellant's addiction ought to have been given mitigatory weight. His report had been forwarded to the sentencing judge long after the plea in mitigation had been completed and was tendered immediately prior to sentence being pronounced. The author of the report also invited the sentencing judge to consider a non-custodial sentence. On the plea, counsel for the appellant had submitted, as his Honour noted in his sentencing remarks, that he was not seeking to rely upon the gambling addiction as a mitigating factor but as an explanation for the offending. Counsel also acknowledged during the course of the exchange with his Honour that there was no diagnosis concerning the appellant's gambling addiction. The report by the psychologist was obtained to provide that diagnosis and was designed to elevate the gambling addiction to a mitigatory circumstance. No leave had been given to forward such a report to the sentencing judge. It was not appropriate to furnish information to the judge in chambers without leave or agreement by the other party.[2] Furthermore, the late arrival of the report, to which Maxwell P alluded in granting leave to appeal, and its tender on the day that the sentence was to be handed down, was calculated to minimise the weight that was likely to be attached to its contents.
[2]R v Fisher [2009] VSCA 100.
The trial judge referred to the report in his sentencing remarks. What is submitted on appeal is that the content of the report should have been viewed as constituting an implicit withdrawal of the submission made on the plea that the addiction was not a mitigating circumstance. But his Honour did not so regard it. He observed in his sentencing remarks that it was not submitted that the appellant’s gambling habit should be viewed as a mitigating factor. No one sought to suggest otherwise. Moreover, having regard to the content of the report, it is not at all surprising that the sentencing judge viewed it in that light. I take leave to doubt that the appellant should now be permitted to contend that the material was sufficient to enliven the principles in Verdins when it was not expressly advanced on that basis. A sentence appeal is not the opportunity to depart from the arguments advanced at first instance and invite different conclusions to be drawn from the facts placed before the sentencing judge.
In R v Yi Yi Wang,[3] the Court considered the submission that the appellant's gambling addiction was given inadequate weight as a mitigating factor:
[3][2009] VSCA 67.
In R v Grossi, I set out the principal reasons why a pathological gambling addiction will not ordinarily be treated as a mitigating circumstance requiring some reduction in the sentence that would otherwise be imposed. Those considerations apply without qualification to the appellant’s circumstances.
‘Properly analysed, there is in my view no tension between the principle explained in Verdins and those authorities which have dealt with gambling addiction. Evidence may establish that an offender suffers from an impulse control disorder in the form of pathological gambling listed in DSM-IV-TR, the essential feature of which is “persistent and recurrent maladaptive gambling behaviour that disrupts personal family or vocational pursuits”. The relevance of the disorder to the sentence to be imposed, is then to be assessed in accordance with the principles restated in Verdins. That assessment will generally lead to the conclusion that the presence of a gambling addiction should not, on that ground alone, result in any appreciable moderation of the sentence. There are a number of reasons why that will be so. Firstly in most cases, the nature and severity of the symptoms of the disorder, considered in conjunction with the type and circumstances of the offending, will not warrant a reduction in moral culpability or any moderation of general deterrence. Secondly, it will frequently be the case that crimes associated with gambling addiction will have been repeated and extended over a protracted period. The long term chase to recoup losses is characteristic of those with such a disorder. Thirdly, in cases involving dishonesty, the crimes will commonly be sophisticated, devious, and the result of careful planning. Fourthly, the gravity of such offences, if there is a breach of trust or confidence, will commonly attract an increased penalty making such offences more appropriate vehicles for general deterrence. Fifthly, when offences of this nature are committed over extended periods, the prominent hypothesis will be that the offender has had a degree of choice which they have continued to exercise as to how they finance their addiction. This has often provided a reason for a general reluctance to temper the weight given to general deterrence or to reduce moral culpability because an offender has found it difficult to control their gambling obsession. Finally, and perhaps most importantly, the nexus of the addiction to the crime will often be unsubstantiated. The disorder will not generally be directly connected to the commission of the crime, the addiction providing only a motive and explanation for its commission. Hence, by contrast to a mental condition that impairs an offender’s judgment at the time of the offence, such addiction will generally be viewed as only indirectly responsible for the offending conduct.
The appellant’s conduct was premeditated, calculated, and systematic. Counsel for the appellant properly acknowledged that, to satisfy her addiction, the appellant had repeatedly exercised the choice to re-offend over a lengthy period and that this bore upon the weight to be given to her addiction. In my view the learned sentencing judge made no error in not mitigating the sentence to any significant extent because of the appellant’s gambling addiction. The existence of the disorder did not, on that ground alone, necessitate any reduction in moral culpability or amelioration of general deterrence.
In this case the appellant’s gambling addiction should be afforded no mitigatory weight. The addiction may be taken into account in order to demonstrate the absence of an aggravating motive, such as pure greed or a desire to fund some other criminal activity (citations omitted).
This Court has repeatedly said that it would be a rare case where an offender could properly call for mitigation of sentence on the ground that the offence was committed to satisfy a gambling addiction. Contrary to the primary submission made below, the appellant now complains that he was entitled to an application of the Verdins principle as a result of his gambling addiction.
It was submitted before this Court that counsel for the appellant on the plea had been mistaken in conceding that a pathological gambling addiction could not be a mitigating circumstance. I do not think that he did so. Counsel acknowledged during the plea that on the state of the evidence, the appellant's condition could amount to no more than an explanation for his offending. I do not consider that the evidence of pathological gambling addiction that was eventually placed before the trial judge altered that state of affairs. It was in my view insufficient to attract the principles in Verdins. It is true that the psychologist opined that there was 'a strong likelihood' that the addiction affected his judgment and behaviour at the time of the offence. On appeal, this was relied upon as establishing the necessary nexus between the condition and the offending conduct which was referred to in R v Grossi.[4]
[4](2008) 183 A Crim R 15, [52].
It was submitted that by contrast to the facts in Grossi, this was a single impulsive criminal episode, where the pathological condition impaired the appellant's judgment. It was said that the appellant did not have the opportunity to reflect upon his decision to commit the offence and make the sort of choices available to an offender who commits multiple offences over a protracted period, and that he acted out of financial desperation while suffering from a loss of judgment due to his condition. Thus, it was submitted, the sentencing judge should have given some weight to his addiction according to the degree to which his judgment was impaired.
These arguments must be rejected for a number of reasons. The approach to gambling addiction discussed in Grossi is not confined to circumstances where multiple offences are committed; nor is the application of the principles in Verdins dependent upon the frequency or infrequency with which offending conduct occurs. As was pointed out by my brother Nettle during oral argument, the appellant was possessed of a number of assets which were producing income prior to this offending. The applicant did not seek to realise these assets in his alleged state of desperation to solve his financial circumstances. He contemplated the attempted robbery over a period of time. He discussed it over some days with his co-offender. It could not be said on the facts which the sentencing judge accepted that his decision was impulsive or that his judgment was impaired. The report provided no support for the opinion that his condition contributed to the commission of the offence. It was an offence which, as counsel for the Director submitted, was a calmly calculated crime, involving a breach of trust by the appellant, who was the most senior of the employees at the premises. The premeditated and carefully planned theft from his employer was no doubt driven by the appellant's motivation to obtain funds to pay off debt and support his habit.
Just as with other forms of addiction, his gambling may be viewed as indirectly responsible for the offending conduct, but the decision to offend was not the consequence of a disorder which impaired his judgment as to either the nature or seriousness of the conduct he was contemplating. The nexus of the addiction to the crime remained unsubstantiated, providing only motive and explanation for its commission. The evidence fell well short of it being shown that this addiction was a disorder which could reduce moral culpability. Moreover, as I said in Grossi, even where such a disorder can be brought within the Verdins principles, 'that assessment will generally lead to the conclusion that the presence of a gambling addiction should not on that ground alone result in any appreciable moderation of the sentence'. In my view, this ground is not made out.
Under ground 3 it was submitted that the learned trial judge erred in the application of the totality principle, particularly with regard to the orders for cumulation. No complaint is made about the severity of the sentences on the individual counts. Orders for cumulation were made to the effect that five months of the sentence for attempted robbery and one month of the summary offence were to be cumulated on the two years' imprisonment. The appellant contends that the order for cumulation on the count of attempted robbery should have reflected the fact that the investigating authorities only learned of that offence because the appellant disclosed the information by way of admission to the police. In R v Pajic,[5] this Court referred to R v BF,[6] in which the following passage from the judgment of Street CJ in R v Ellis[7] was set out:
This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilty of that offence.
The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities as well as guilt being established against the person concerned”. (citations omitted)
[5][2009] VSCA 53.
[6](2007) 177 A Crim R 331.
[7][1986] 6 NSWLR 603.
Although the sentencing judge did state that he took into account the appellant's cooperation with the authorities, it was submitted that he failed to give adequate weight to the appellant's disclosure of the otherwise unknown offence. The premise upon which this submission rests fell away during argument. The appellant and the co-offender were separately interviewed on the same day, ten days after the offences were committed, and each separately informed the police of the attempted robbery, during which the appellant broke a glass panel to gain entry to the premises. The investigators thus also learned of the offence from another source. In any event, as the sentencing judge observed in his sentencing remarks, the appellant had 'volunteered' the information in the context of his cooperation with the investigating police.
The orders for cumulation were also attacked on the basis that the appellant had been sentenced for three offences forming different aspects of the one criminal scheme. The failed attempt to rob the hotel was followed by the successful theft which occurred the next day. That same day the appellant made a false statement that he had been robbed, providing detail of the robbery. As the object of each of the counts was the same, it was submitted that smaller orders for cumulation ought to have been ordered. The appellant referred the Court to R v Langdon[8] to support the proposition that a person should not be punished twice for what is substantially the same act. In R v King,[9] referring to the need to ensure that there is no double punishment, it was said:
Where a number of serious offences are committed in the course of a single incident, a separate count should generally be laid for each offence if such conduct is to be taken into account. It is not required that the sentences imposed on each of those offences be made wholly concurrent. Whether the sentencing judge should make orders for cumulation will depend on the circumstances of each case. The decision in R v O’Rourke illustrates the point. But where a number of counts are laid in relation to offences committed in the course of a single incident, care is required both in fixing the sentences and in making any order for cumulation to ensure that the accused is not subjected to double punishment. The sentencing judge must separate the bases of punishment in situations where a number of offences are committed within the ambit of a single incident or enterprise.
During oral argument counsel for the appellant eschewed any suggestion that double punishment was involved in the imposition of the sentences on counts 1 and 2.
[8](2004) 11 VR 18.
[9][2007] VSCA 38.
I am not satisfied that the sentencing judge erred in his orders for cumulation or totality. The attempted robbery and the theft were two separate acts on different days involving different planning. The attempted robbery itself reached an advanced stage, with the appellant gaining entry to the premises. The circumstances were serious, as they involved a forced entry, with the appellant's knowledge that the shift night manager would be inside, and with the intention that he be robbed. The appellant was disguised with a balaclava and carrying a jemmy bar. The sentence fixed on this count was moderate, as was the amount of cumulation that was ordered. Contrary to the submission which was made to this Court, I consider that the amount cumulated did reflect a level of leniency for what was a serious offence. It was also appropriate that there be some degree of cumulation of the summary offence. The latter offence was committed to avoid detection, and it caused the investigators to embark upon the investigation into a robbery. I see no error in the approach to the orders for cumulation. I do not accept that the total effective sentence was disproportionate to the offending conduct so as to infringe the principle of totality.
For those reasons, I would dismiss the appeal.
NETTLE JA:
I agree with what has fallen from my brother Redlich. I wish to add only that, although there was evidence before the sentencing judge that the appellant was afflicted by 'a significant gambling problem' and that there was a 'strong likelihood of the impact of a severe gambling problem affecting his judgments', I am not persuaded, even on the balance of probabilities, that his addiction did any more than provide a motive for his offending. Not least in the circumstances which lead me to that conclusion are that, upon the appellant's own admissions to police, he was well educated, well endowed with assets, and had the offences under consideration and in planning for some two weeks before their commission. In my view, counsel for the respondent did not over-state the case in describing it as one of calculated crimes, committed by the appellant in breach of trust for the purpose of making easy money.
I too would dismiss the appeal.
LASRY AJA:
I agree that, for the reasons given by Redlich JA, the appeal should be dismissed.
NETTLE JA:
The order of the Court is that the appeal is dismissed.
---
2
3
0