R v Shane Victor Daniels

[2007] NSWDC 29

CITATION:	R v Shane Victor DANIELS [2007] NSWDC 29
HEARING DATE(S):	08/02/2007
JUDGMENT DATE:	8 February 2007
EX TEMPORE JUDGMENT DATE:	8 February 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraph [14] & [15]
CATCHWORDS:	Criminal law - Sentence - Addicted to gambling - Abuse of trust
CASES CITED:	R v Henry (1999) 46 NSWLR 346
PARTIES:	Crown Shane Victor Daniels
FILE NUMBER(S):	06/11/0952
COUNSEL:	M. Johnston (Daniels)
SOLICITORS:	NSW DPP

SENTENCE

1 HIS HONOUR: There are many people in society who gamble. To some it is a harmless flutter, while others gamble more than they should. There comes a point in the lives of many heavy gamblers where they have no more money of their own with which to gamble. At that point they have a choice, they can recognise that there is no money left or they can attempt to obtain it illegally. This element of choice is one which is at the heart of the moral culpability of the present offender. He was addicted to gambling, he gambled all he could and when the money ran out, in order to continue gambling, he stole from his employer. The offender recognises that what he did was wrong and recognises the problems that he had with gambling.

2 Addiction to drugs and addiction to gambling have much in common. The relevance of an addiction to drugs was dealt with in the guideline judgment of R v Henry (1999) 46 NSWLR 346 insofar as it was suggested that addiction to drugs could be a mitigating circumstance for an offence of armed robbery. But there is one significant difference between gambling and drugs. The use of drugs is itself illegal, but gambling is not. Instead it is promoted and advertised as a harmless and enjoyable activity. There is no element of illegality in the offender beginning to gamble, even beginning to gamble to excess. Once he became addicted to gambling it became difficult for him to stop. His moral culpability is to that extent reduced by the addiction from which he suffered. I began these remarks on sentence by talking about the issue of gambling because it is clear that that is the central issue in the offender’s criminality.

3 He is now thirty four years of age. After he left school he got a job with the National Bank. He worked there without incident for many years. He left on an amicable basis and commenced work with a company called Audience Motivation Pty Limited. He worked there for a number of years too without any incident. It was not until he was thirty or thirty one years of age that he began to commit offences for the first time.

4 The fact that the offender reached that age with no criminal convictions at all tends to suggest his underlying good character is one of being a law abiding citizen and one looks to see what it was that led the offender to start committing offences in his early thirties. It is not hard to work out what it was.

5 The offender was in a de facto relationship. He had two children as part of that relationship but the relationship began to break down. For about a year he was sleeping on the lounge. Not surprisingly he became significantly depressed by what was happening. In those circumstances he turned to gambling as an outlet for his depression. As I mentioned before gambling is promoted as a fun activity and it is not surprising that the offender sought escape from his feelings of depression by indulging in that activity.

6 The offender, of course, soon had to look for other sources of money once his own had run out. He was employed in a position of trust with Audience Motivation. In order to continue his gambling he adopted a very simple method, he simply forged his employer’s signature on cheques. Through that method he stole from them an enormous sum of money, $275,857.34 cents, that is the money that the offender took from a small business.

7 There were three victims, not only the corporate entity but also the two human beings behind it. They lost through the company being the victim of an offence, but also more directly by the offender taking money from their personal bank accounts. This is a grave abuse of trust. The offender was given access to materials which enabled him to commit this offence, and was trusted by the very victims of his offences.

8 Part of the reason that the offender may well have turned to gambling as an outlet for his depression was because he did not want to involve his family in what was going on. This attitude appears to have still been present when the offender was approached by the Probation and Parole Service in order to prepare a pre-sentence report in 2005 but circumstances seem to have changed by the time a much later Probation and Parole report was prepared in December 2006. The reason for the delay is solely that of the offender. He was on bail and required to turn up at this court for sentencing, but he simply did not do so. He did not go far and remained in Sydney but he was, as he put it, “on the run”.

9 In that time he seems to have re-assessed his attitude to such things as whether he needs assistance with his gambling addiction, whether he needs assistance to deal with his depression and he has also been able to demonstrate that he can once again become a productive member of society, having attained work whilst on the run. He also seems to have been able during that time to recognise the seriousness of his conduct and his gambling problem. To that extent it must be recognised the offender has benefited from his period on the run. That is not to encourage anyone to do what the offender did, but it is to recognise that I am to sentence the offender as he is today, not as he was before he absconded.

10 The offender pleaded guilty at an early opportunity to these offences. However, the period of absconding and the associated consequences in court, reduce the utilitarian benefit of the plea and so I will reduce the sentence I would otherwise have imposed by twenty per cent. I should mention that although the offender had no prior convictions at the time he committed these offences, he did commit other offences in 2003 and 2004. They were of a similar nature while the offender was also a gambler and occurred before the offender has come to his realisation that he needs help to deal with his misconduct.

11 The offender expressed his remorse in court today and I am satisfied that he was genuine in what he said. As I have mentioned he was of prior good character before the offence and I am satisfied that he has good prospects of rehabilitation. That is not to suggest that the path will be necessarily easy for the offender, he will face challenges upon his release from custody and will benefit from an extended period of supervision on parole and I am therefore prepared to find special circumstances in the offender’s favour.

12 What must not be lost sight of however, is the seriousness of the offender’s conduct. There were many many separate acts of criminality. On each occasion the offender decided to forge cheques, he was doing something wrong and he knew it to be the case. He also knew that he was, in effect, stealing from human beings and that there must necessarily be adverse consequences as a result of his misconduct. The offences did not stop because the offender had an attack of conscience either, they only stopped when they were detected by another employee.

13 For that reason there needs to be a significant period of imprisonment imposed on the offender. There are eight separate offences for which I am to sentence the offender. The first four concern individual acts of criminality. The next four concern a number of separate acts of criminality relating to different accounts and the nature of the offender’s conduct. I will impose separate sentences for those matters but there will be no element of accumulation primarily because the offences where I will impose the longest sentence involve multiple acts of criminality and to accumulate for other acts of criminality would be to double count.

14 For the offences which are marked one, two, three and four in Exhibit A, they being court attendance notices with sequence numbers ending in 30, 119, 160 and 171 the offender is sentenced to imprisonment for a fixed term of one year, to commence on 20 October 2006. For the offences with sequence numbers ending in 257 and 259 the offender is sentenced to imprisonment for a fixed term of two years.

15 Those sentences are fixed terms because of the sentences I will now announce. For the offences ending with sequence number 256 and 258 the offender is sentenced to imprisonment. I set a non-parole period of two years, to commence on 20 October 2006. It will expire on 19 October 2008. I set a head sentence for those two matters of four years. The offender is eligible to be released to parole at the expiry of his non-parole period on 19 October 2008. I decline to make a compensation order.

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