R v Todorovic

[2008] NSWCCA 49

New South Wales
Court of Criminal Appeal

CITATION:	R v Todorovic [2008] NSWCCA 49
HEARING DATE(S):	14 December 2007
JUDGMENT DATE:	10 March 2008
JUDGMENT OF:	Grove J at 1; Hulme J at 40; Simpson J at 69
DECISION:	Crown appeal dismissed.
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Sentence - Crown appeal - Manifest inadequacy demonstrated - (per Hulme J) - 20% discount for utilitarian value of plea of guilty involved miscarriage of discretion - Little mitigation in offender's gambling addiction - (by the Court) - Material since sentence including illnesses of respondent - Residual discretion to dismiss Crown appeal invoked
LEGISLATION CITED:	s178BA(1) Crimes Act 1900
CATEGORY:	Principal judgment
CASES CITED:	R v Hallacoglu (1992) 29 NSWLR 67; 63 A Crim R 287 R v Henry (1999) 46 NSWLR 346 R v Molesworth [1999] NSWCCA 43 R v Thomson & Houlton (2000) 49 NSWLR 383
TEXTS CITED:	Penny Crofts: Gambling and Criminal Behaviour - An Analysis of Local and District Court Files (2002) Alex Blaszczynski: Pathways to Pathological Gambling: Identifying Typologies (2000) 1 eGambling: The Electronic Journal of Gambling Issues
PARTIES:	REGINA - Appellant Aleksandra TODOROVIC - Respondent
FILE NUMBER(S):	CCA 2007/4829
COUNSEL:	P Miller (Appellant) P Strickland SC (Respondent)
SOLICITORS:	Solicitor for Public Prosecutions (Appellant) Legal Aid Commission (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/1188
LOWER COURT JUDICIAL OFFICER:	Armitage DCJ
LOWER COURT DATE OF DECISION:	28 September 2007

CCA 2007/4829

GROVE J
HULME J
SIMPSON J

10 March 2008
REGINA v Aleksandra TODOROVIC

Judgment

1 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentence imposed by Armitage DCJ at Penrith District Court.

2 The respondent was charged and ultimately indicted on eight counts of dishonestly obtaining money by deception contrary to s 178BA (1) of the Crimes Act 1900 for which offence there is a prescribed maximum penalty of five years imprisonment. She was charged on 2 November 2004 and committed for trial on 9 September 2005. She pleaded guilty to the indicted charges on 8 September 2006 but did not then admit her guilt to a further fifty six similar matters which were charged against her. These were adjourned for trial but when they were listed on 28 May 2007 she made admissions in respect of them and the fifty six charges were included on a Form 1 to be taken into account when she was sentenced on the indictment.

3 His Honour imposed sentence on 28 September 2007. On the indictment counts 1, 3 and 4 he sentenced the respondent to concurrent fixed terms of imprisonment of 15 months dating from 6 October 2007 and expiring on 5 January 2009.

4 On counts 5, 6, 7 and 8 he sentenced the respondent to imprisonment for fixed terms of 18 months dating from 6 April 2008 and expiring on 5 October 2009.

5 On count 2, taking into account the matters on the Form 1, he sentenced the respondent to imprisonment consisting of a non-parole period of 1 year dating from 6 October 2008 and expiring on 5 October 2009 with a balance term of 1 year.

6 He ordered that all sentences be served by way of periodic detention.

7 The respondent is a single woman aged twenty eight years. She has no prior convictions. A relationship with an older man broke down and she has presently returned to reside with her parents.

8 All of the offences followed the same pattern. On 14 October 2002 she commenced employment at Pan Excavations, a small company with two directors and six staff. She was the accounts manager. Originally she worked five days per week from 9 am to 3.30 pm but after April 2004 she worked only two days per week for the same hours, although she was sometimes required to work overtime.

9 The first offence was committed on 7 November 2002 less than four weeks after commencing the employment. Although his Honour, when evaluating the utilitarian value of the eventual pleas of guilty and admissions of guilt, found that an unusually complex trial had been avoided, it is difficult to identify the complexity which he had in mind. The respondent’s duties included the transfer of funds out of her employer’s bank account at the National Australia Bank by use of on-line internet facilities. The recipients of funds should have been trade creditors and the like and, of course, staff salaries. The respondent simply used the on-line facilities to transfer funds from the employer’s account into her personal bank account. Between 6 November 2002 and 30 September 2004 she made sixty four unauthorized transfers into her own account at either the Commonwealth Bank or the St George Bank.

10 As criminal activity, it was devoid of any element of sophistication and would be expected to be able to be detected, if examination were undertaken, without much difficulty. Likewise, the crimes would not be difficult to prove and they were apparently able to continue over an extended period by reason of the employer’s misplaced trust in the respondent.

11 The total of the dishonest acquisitions was $171,536.58. When the offences were discovered, her employer declined to pay her some money which was due. This led to dispute as to whether the ultimate outstanding deficit stood at $162,913.84 or $155,058.36, the latter smaller sum being asserted by the respondent. His Honour did not resolve the issue and found the discrepancy to be of slight proportion in the context of the offences. That assessment was obviously correct.

12 The respondent did not give evidence in the proceedings at any stage. She had, however, given histories to a probation officer and to medical practitioners and to a psychologist.

13 It can be gleaned therefrom that the respondent had a problem with self control from gambling. It appears that this was the way the misappropriated funds had been dissipated. There was a detectable pattern of withdrawing large sums from her bank accounts when she was on licensed premises. As her accounts approached a nil balance, she would replenish them by an electronic funds transfer from her employer’s account.

14 The offences came to light when one of the directors investigated matters which appeared to him to be unusual in reports of transactions which the respondent was required to make. Of course, she had not therein reported her defalcations.

15 In October 2004 the director made a complaint to police. The respondent was arrested and up to a point she had participated in interviews and offered some untrue explanations asserting her right to some of the money transferred to herself, however, by November 2004, as she was entitled, she exercised her right to decline to answer further questions.

16 In support of the encompassing ground of manifest inadequacy the appellant has presented arguments under three grounds.

17 Ground 1 asserted that the manifestly inadequate sentence failed to reflect the objective seriousness of the offence and the need for general deterrence. In considering such matters it was requisite to bear in mind the amount of money involved and the span of time over which the offences occurred. In this instance they occurred over some twenty three months and, as I have already mentioned, commenced virtually immediately after the respondent commenced her employment.

18 It is also a factor of significance that the deficiency is effectively irretrievable. In an affidavit of 10 December 2007 the respondent states that she is receiving Centrelink benefits which were reduced to $399 per fortnight when she commenced serving her weekend detention. She stated, “I have no assets, no car, no nothing”. The affidavit further states that she undertakes to pay her former employer $50 per week with effect from the week commencing 10 December 2007 and to increase the amount subject to negotiation when she has returned to full time employment. No detail is offered as to how this undertaking might be secured. By the time this appeal was heard, one instalment had been paid. Against the discrepancy of funds (even at the lower figures) it was virtually immaterial restitution. While the respondent’s financial situation is recognized, the single payment scarcely conveys a genuine and remorseful attempt to repair the economic damage done to the victim corporation.

19 It should be acknowledged that the learned sentencing judge expressed his consciousness of the substantial amount of money involved, the degree of planning and the period of time over which the offences were committed, the number of offences, the breach of a position of trust, the status of the victim as a small company and that the loss appeared effectively irretrievable.

20 It is the Crown submission that these offences objectively demanded a significant full time custodial sentence, and that the leniency which is inbuilt to the service of sentence by periodic detention failed adequately to reflect the seriousness of the offences.

21 On an assessment of the objective seriousness I would uphold the Crown submission that the sentences do not sufficiently reflect the overall criminality involved in the circumstances.

22 The second ground advanced by the Crown is that the discount allowed on the account of the respondent’s plea of guilty was excessive.

23 His Honour assessed this at 20 percent. I have already commented that I find some difficulty in recognizing the complexity which his Honour had in mind which was an express factor in making his assessment.

24 On behalf of the respondent it has been contended that there are particular benefits arising from the prospective length and complexity of this trial by reason of the estimate that it would have extended for some six weeks. That is a matter which is available for consideration: see R v Thomson & Houlton (2000) 49 NSWLR 383. An affidavit by Ms Calomeris, the respondent’s solicitor exhibits costs figures published by the Law Reform Commission from which it is arithmetically deduced that the cost to defend the trial to the Legal Aid Commission might have been approximately $60,000, and the cost to the community in the conduct of the Court considerably more than that. The provision of the courts of justice is a fundamental function of government and in a civilized society they will be brought into existence and maintained. There is a certain artificiality about such costings, which I would respectfully suggest might be more appropriately calculated for the purpose of the balance sheets of a commercial activity rather than a core activity of government.

25 Be that as it may, the discount allowed for pleas of guilty is a matter peculiarly within the discretion of a sentencing judge and although a discount of 20 percent in these circumstances appears generous or even lavish, I am unpersuaded that it is demonstrated to be erroneous, in that such an assessment did not lie outside the sound exercise of his Honour’s discretion.

26 The third ground asserts that the sentencing judge placed inappropriate weight on the respondent’s psychological condition.

27 As I have stated there was put before his Honour an amount of material relating to the respondent’s condition with particular reference to her psychological status.

28 His Honour’s remarks on sentence were very lengthy and he made detailed reference to some of the evidence concerning this aspect. An important part of his finding was expressed in these terms:

“This is not the sort of matter one sees in the usual case of this type, and there is no doubt in my mind that there is a causal connection between what it is proper to call a significant psychological disorder, diagnosed clinically by Ms Seidler, and the gambling addiction which led to the offending. This is not a case where we are simply dealing with a gambling addiction, which itself may be a psychological diagnosis. It is a case where a psychological condition brought on by quite different psychosocial factors, in particular an unhappy and violent relationship, at least in the verbal and threatened sense, led to a gambling addiction via conditions of anxiety and depression and possibly attention deficit disorder, though most probably the first two, which in turn led to the gambling addiction and in turn led to the offences. That to my mind places it quite outside the general run of offences where one is simply dealing, if I could put it as briefly as that, with a gambling addition, which itself is a psychological disturbance of some kind, which in turn led to the offending”.

29 I see no error in his Honour’s findings in that regard. There was evidence before him to support them.

30 Nevertheless, the question arises as to what this Court should do, having regard to my opinion earlier expressed that the sentence was itself manifestly inadequate. I would have reservations as to whether the subjective matters affecting the respondent, including the psychological matters to which I have just referred, would be sufficient to justify a less than full time custodial sentence when one assesses the objective factors.

31 There remains, however, a residual discretion in this Court to dismiss a Crown appeal even when a finding is made that the sentence imposed at first instance has been manifestly inadequate.

32 In determining whether or not that discretion should be invoked, and indeed on a Crown appeal, it is open to the Court to look at material which has occurred up to the time of the hearing of the appeal.

33 There is, in my view, important material exhibited to the affidavit of Ms Calomeris earlier identified, in a report from a Dr Nadia Tejani dated 19 October 2007. Dr Tejani has been treating the respondent. She notes a reported weight loss of some 15 kilos and a history of palpitations and shakiness, together with other symptoms. She notes that the respondent has been taken off dexamphetamine, which had been prescribed to her for a condition of attention deficit disorder. Dr Tejani noted a fine tremor in both the hands, but her important diagnosis is that the respondent has a mild thyrotoxicosis with severe Grave’s orbitopathy, which is really, the doctor commented, her main concern. It is the doctor’s opinion that she predicts thyroidectomy will become imperative and there are concerns about weaning her from smoking, which is likely to exacerbate her eye disease.

34 To the present time the respondent has fulfilled her commitment to serving the sentence of weekend detention. Her statement that she has attended every weekend without fail has not been challenged. Neither has her statement that she has stopped gambling over twelve months ago. She has changed her social circle, and as I earlier recounted, has returned to live with her parents. She is continuing therapy with the psychologist and I note that her general practitioner has suggested that she should again consult a psychiatrist.

35 There was no significant delay in instituting the Crown appeal. The respondent, and through her counsel, by submission, has complained of the long delay in the matter being dealt with but that must have been very significantly contributed by the circumstance that it was only at the final stage that the respondent elected not to go to trial.

36 However, I do not consider that the coincidence that this appeal was listed on the last day of the 2007 term, to which was added the circumstance that the issues raised required that judgment be reserved for consideration and thus the respondent was subject to a further period of uncertainty as to the outcome for at least the length of the Court’s long vacation, can be ignored. That particular delay is a matter of some, even if not great, weight in deciding whether discretion should be exercised.

37 I have not elaborated the detail of all the medical and psychological opinion relative to the respondent which is in the accumulation of material before the Court. It suffices to summarize that the respondent’s condition is vulnerable in a number of aspects.

38 Although I am of opinion that the Crown assertion that the sentences were manifestly inadequate has been made good, I have concluded that this is a case in which the residual discretion of the Court to dismiss a Crown appeal should be invoked.

39 I propose therefore that the Crown appeal be dismissed.

40 HULME J: I have had the advantage of reading the reasons for judgment of Grove J. I agree with his Honour that the sentence imposed on the Respondent to this Crown appeal was manifestly inadequate and with his Honour’s reasons for arriving at that conclusion. There are further reasons also.

41 The allowance of 20% Armitage DCJ made for the Respondent’s plea was excessive and outside the legitimate range of his Honour’s discretion. When in R v Thomson and Houlton (2000) 49 NSWLR 383 at 418 the discount for pleas was put on its current formal basis, the Chief Justice, with the concurrence of the other members of the Court said:-

“In my opinion, the appropriate range for a discount is from 10-25 percent. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.
There are however two circumstances which will generally affect the appropriate level of discount in a particular case:
(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.
(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.
The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.”

42 Later, the Chief Justice made clear that the discretion was not unbridled but subject to appellate review.

43 Armitage DCJ seems to have been influenced to the discount he allowed in part because he made an assessment that the trial for the 56 Form 1 matters was likely to have been “unusually complex” and, as he asserted, “The Crown very fairly agreed that a six-week trial was likely”. The transcript reveals that the Crown in fact said that its estimate was that the trial would have taken the better part of two, possibly even three weeks”. Furthermore, as the Crown asserted to his Honour and seems to me almost certain, the number of witnesses would not have been many and the case largely documentary. Indeed, little more would have been required than the bank records of the Applicant and her employer, bank employees to identify them, someone from the employer to say that that the transfers of funds the subject of the charges were not authorised, the Applicant’s ERISP and someone to identify that. His Honour’s finding of (any) complexity was clearly erroneous.

44 Furthermore, neither the Respondent’s pleas to the eight counts nor her agreement to having the other 56 charges taken into account were at her committal proceedings. The timing of events relevant to the determination of the discount was as follows:-

28/10/04 The Respondent was arrested and charged with 2 offences. Subsequently the Respondent was charged with a further 62 further similar offences;
9/9/05 Committal for trial;

24/8/06 Respondent’s first appearance in the District Court;
8/9/06 Respondent arraigned on 8 counts and pleaded guilty. She refused to sign a Form 1 containing another 56 counts and these were adjourned for trial;
28/5/07 The trial date for the 56 matters. The Form 1 containing these matters was then signed and the matter stood over for the defence to resolve an issue as to the amount owing to the victim;
30/5/07 Further adjourned to resolve the issue as to the amount owing;
7/8/07 Further adjourned to resolve the issue as to the amount owing and to obtain a psychiatrist’s report;
28/9/07 Sentence hearing and sentence.

45 The rationale of the discount for which R v Thomson and Houlton is authority is its utilitarian benefit. To have given the Respondent a discount of 20% for her plea in September 2006 would have been understandable if she faced only the 8 charges then pleaded to but when by her actions she forced the Crown to prepare for a trial of the other 56 charges, and her plea or agreement to having them dealt with on a Form 1 was only on the first day of the appointed trial, any utilitarian benefit is much less than it might have been. As the Chief Justice said: “A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial …”.

46 There being no other factors which could justify a discount as high as the 20% allowed by Armitage DCJ, his exercise of discretion in this regard wholly miscarried.

47 A principal reason why his Honour imposed the sentence that he did were the terms of a psychiatric report from a Katie Seidler, a clinical and forensic psychologist. Before I turn to the significance of the Ms Seidler’s conclusions it may be observed that the Respondent did not give evidence, and to a large degree Ms Seidler relied on information given to her by the Respondent to the effect that she had been subjected to abuse, aggressive and threatening behaviour form an alcoholic partner with whom she had been living at and prior to her offending.

48 No attempt was made to explain the inconsistency between this account and that contained in a Pre-sentence Report of December 2006 wherein it was said:-

“Ms Todorovic has been in a relationship with her de facto for the past 7 years. Enquires indicate that this relationship is both close and supportive, as is the couples relationship with her de facto’s family. Contact with the offender’s partner, who is known to this Service, indicated that the offences currently before the court are described as being out of character for the offender. Whilst the offences appear to have added extra pressure on the couple, it appears that Ms Todorovic’s partner remains supportive of her.”

49 Nor was there any explanation of, or attempts to explore, the contents of other statements in that report, viz:-

“Mrs Todorovic …has no knowledge of ... the reasons behind her behaviour”,
“Mrs Todorovic … stated that she had counselling in 2003 for a period of 12 months”
“The psychiatric reports prepared by Dr J Quinn, Dr CL Wong and Dr J Pickering have been supplied to this service. It is noted that there are discrepancies in these reports ranging from the background information provided, to the differences in opinion regarding diagnosis for Ms Todorovic’s conditions.”
“… there are some concerns held by this Service due to the differing psychiatric evaluations and opinions relating to (the Respondent’s) condition”.

50 Furthermore, when it became apparent that counsel for the Respondent did not intend to call his client the Prosecutor indicated that she did not intend to comment on the fact. Why, particularly in the face of the matters to which I have referred, the Crown Prosecutor took this course is not apparent and I am also unable to see how his Honour managed to ignore the inconsistency in accounts concerning the Respondent’s partner. However, these matters were not the subject of debate in the hearing before this Court and I shall proceed on the basis that Armitage DCJ was entitled to accept the history upon which Ms Seidler based the opinions in her report.

51 So far as is presently relevant, those opinions are fairly summarised in the following extracts from the report (including requests of the Respondent’s solicitors made to Ms Seidler and quoted by her):-

“1. ‘Comment as to whether at the time of the offences, Ms Todorovic suffered any psychological condition’:

At the time of her offending, it is likely that Ms Todorovic suffered with symptoms of considerable anxiety and perhaps also mild depression. She would have probably met criteria for Dysthymia, a condition characterised by long term and mild symptoms of depression, in addition to Generalised Anxiety Disorder as a function of exposure to long term abuse within a dysfunctional relationship.

2. ‘Comment on whether there is any relationship between any condition and the offending’:

It is my opinion that Ms Todorovic’s offending behaviour occurred as a means of managing her negative emotional state and it appears that she offended in a ritualised and repetitive way, similarly to her problematic gambling behaviour outside the work place.

3. ‘Comment on whether there is any relationship between any condition and other behaviour (eg gambling), which in turn might have a relationship with the offending’:

As stated above, Ms Todorovic engaged in gambling as a way of controlling her emotional state and coping with personal problems by avoidance. Her gambling was problematic and meditative in nature and reinforced by the emotional relief she would gain from avoiding thinking about her problems. Specifically Ms Todorovic’s gambling appears to have reduced her symptoms of anxiety.”

52 Armitage DCJ seems to have accepted the substance of these opinions for his Honour said:-

“This is not the sort of matter one sees in the usual case of this type, and there is no doubt in my mind that there is a causal connection between what it is proper to call a significant psychological disorder, diagnosed clinically by Ms Seidler, and the gambling addiction which led to the offending. This is not a case where we are simply dealing with a gambling addiction, which itself may be a psychological diagnosis. It is a case where a psychological condition brought on by quite different psycho-social factors, in particular, an unhappy and violent relationship, at least in the verbal and threatened sense, led to a gambling addiction via conditions of anxiety and depression and possibly attention deficit disorder, though most probably the first two, which in turn led to the gambling addition and in turn led to the offences. That to my mind places it quite outside the general run of offences where one is simply dealing, if I could put it as briefly as that, with a gambling addiction, which itself is a psychological disturbance of some kind, which in turn led to the offending. …
The Crown said that gambling addiction is common in these sorts of cases and of less significance in mitigation, referring to what was said in R v Molesworth [1999] NSWCCA 43, suggesting that in general a gambling addiction is relevant on sentence in that it explains an offender’s behaviour but does not significantly mitigate it. I agree with that, but that is a general proposition which is modified in this case, I think, by the fact that the offender’s gambling addiction was itself caused by a psychological condition which was in turn caused by a problematic relationship in the way that I have traced.”

53 Later, his Honour observed:-

“I have not taken the offender’s psychological condition when she offended, and which contributed to her offending, into account to the same degree as I would have done so had it been a frank mental illness such as schizophrenia or bipolar disorder, the latter of which existed in Fell , but it is nevertheless the case that the offender’s psychological condition led to her offending in the way I have traced, and that it is properly diagnosed and is a clinical entity according to a psychologist of the qualifications and experience of Ms Seidler, whose opinion I accept unreservedly.
In those circumstances general deterrence is, I think, of less significance in this case, contrary to the Crown’s submission, than it would be if the offender were not suffering from any psychological disorder or were suffering from a quasi-psychological disorder, such as gambling addiction, which really is just a diagnosis of offending behaviour based simply on the fact that the behaviour occurred. That is not this case.”

54 In substance, the reasoning of Ms Seidler and his Honour was as follows:-

External events (the Respondent’s relationship and its incidents) led to a psychological condition.
The Respondent obtained relief from this condition by gambling.
The stealing was a further method of relief (according to Ms Seidler, paragraph 2) or a consequence of the gambling (his Honour).

55 In his Honour’s view, because the gambling and stealing were consequences of a condition that could be, or was, characterised as a psychological condition, leniency was attracted.

56 Presumably his Honour was relying on his judicial experience in saying that “This is not the sort of matter one sees in the usual case of this type…” for there was no evidence indicating how usual or unusual it was that gambling addiction leading to crime was the result of conditions that could be described as psychological. However there is a deal of information of the sort to which judges may have regard on sentencing that gambling addiction is not uncommonly the result of psychological conditions – see e.g. Penny Crofts, “Gambling and Criminal Behaviour – An Analysis of Local and District Court Files” (2002) and Alex Blaszczynski “Pathways to Pathological Gambling: Identifying Typologies” (2000) 1 eGambling: The Electronic Journal of Gambling Issues.

57 Furthermore if gambling, as a “way of controlling (an) emotional state and coping with personal problems by avoidance” in circumstances of “mild depression”, “negative emotional states” and the consequences of dysfunctional relationships, is to be regarded as a reason for leniency, then why should not many of those who seek to ameliorate or blot out their suffering by resort to drugs and then to crime be treated similarly? After all, experience shows that many drug addicts suffer from Attention Deficit, Bipolar, Borderline Personality or other psychological disorders that are said to be causative of, or contributing factors to, their drug addiction.

58 In R v Henry (1999) 46 NSWLR 346 this Court considered at length and firmly rejected the proposition that, in general, addiction to drugs should be regarded as a mitigating factor. In doing so the Court recognised that there would be cases where the general rule would not apply, for example where the addiction was the result of youth or medical treatment over which the offender had no relevant control but (at p385) it rejected the proposition that a genetic predisposition or a neurobiological or physiological base to an addiction was sufficient to bring an offender within this exception.

59 The Chief Justice, in whose reasons 2 other members of the Court agreed, pointed out (at p 385) that the original decision to experiment with drugs was commonly a matter of a free choice, that the choice was often influenced by a desire for the benefits drug taking was perceived to have, that persistence in addiction rather than seeking assistance was also a matter of choice as was the decision to commit crime in order to fund addiction.

60 There is a clear parallel between the circumstances there under consideration and those here. It is appropriate to note that the Chief Justice also said:-

“There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability that other perceived requirements for money.
Counsel making these submissions was driven to accept the proposition that an addiction to gambling, with its attendant need for money, could similarly be the basis for a claim for mitigation. He went further and indicated that an elevated sex drive which also had a psychological basis, could be a mitigating factor for the commission of a rape or for the conduct of a paedophile. In my opinion all these submissions should be rejected.”

61 In the instant case Armitage DCJ remarked that Ms Seidler’s finding that the Respondent’s psychological condition contributed to her offending “engages, in my view, the principles regarding a somewhat reduced degree of general deterrence being appropriate where offending is connected with a psychological disorder …”. So to refer to the principles dealing with mental disorder and general deterrence was to oversimplify and in the oversimplification, err. This is demonstrated by a comparison with what Wood CJ at CL said, with the agreement of the Chief Justice and Newman J, in R v Henry, at [252-255]:-

“Nor am I persuaded of the appropriateness of the suggested analogy between drug addiction and mental abnormality, in respect of which the element of general deterrence is often given less weight…
The relevant principle as stated in R v Letteri by Badgery-Parker J in a passage adopted by Gleeson CJ in R v Engert (at 14) is as follows:-
“… that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.
The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restrains, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.
The case of the drug dependent offender is very different in so far as the community is likely to see such a person as a perfectly appropriate medium to stand as an example to others.”

62 In this case there was not one tittle of evidence that the Respondent was less in control of her cognitive faculties or lacked the ability to make reasoned or ordered judgments or that her appreciation of the wrongfulness of her acts or their moral culpability was to any degree impaired. Furthermore, when one has regard to the nature of gambling addiction and to the fact that fraud, involving substantial sums of money, by gambling addicts in positions of trust is not uncommon, they are a perfectly appropriate medium to stand as an example. A progression from gambling affordable sums as an occasional light pastime to addiction involving unaffordable sums rarely happens overnight. It is impossible to believe that most addicts have no warning that gambling is becoming a problem and thus no chance to reflect on and deal with that problem or any underlying causes. It is also important that there be a substantial disincentive to those who, like the Respondent, are tempted to offend again and again, until the amount involved becomes, by the standards of most people and many employers in the community, huge.

63 Nor is there justification for simply treating whatever may be capable of being characterised as a psychological condition as a “mental disorder or severe intellectual handicap” without considering where, on the scale of such things that condition lay. His Honour gave no attention to that question.

64 The Respondent may have been faced with an abusive, aggressive and threatening partner. She had choices how to cope with him. One was to seek counselling as she did in 2003 or more counselling if that then received did not work. Another was to leave him. Instead she chose relief in gambling and, whether as a consequence of that or otherwise, stealing.

65 I am unable to see that the Respondent’s psychological condition and its incidents, to the extent that they were revealed in evidence, justified any significant leniency or reduction in the weight to be given to general deterrence.

66 Against this background I turn to the question of what should be the result of this appeal. There is much to be said for the conclusion that this Court should sentence the Respondent to full time custody as Armitage DCJ should have done. In addition to considerations of general deterrence to which I have referred, one of the purposes of sentencing is retribution, the community’s entitlement to feel that justice has been done. When comparison is made between, on the one hand, the effective sentence imposed on the Respondent – 2 years periodic detention (which in the way that such sentences are usually administered – see R v Hallacoglu (1992) 29 NSWLR 67; 63 A Crim R 287, means 8 months periodic detention and 16 months community service) and 1 year balance of term (almost certainly on parole) and on the other, effectively stealing week after week for 18 months a sum totalling approximately $171,000, I doubt if anyone would feel that justice had been done. The amount taken is equal to what it takes many people 2 or 3 years to earn and, given the victim employed only 6 staff, can reasonably be inferred to have amounted to a very substantial impost.

67 I am not disposed to regard as of any significant weight the delay that has occurred. The vast bulk of that was due to the Respondent’s failure to fully acknowledge her offending as she could have done in later 2004 or early 2005 and later to enable her to better prepare her case in mitigation.

68 On the other hand, Armitage DCJ found that the Respondent has substantially rehabilitated herself between the offending and sentencing. It is clear that she has suffered from a number of health issues in addition to those which are said to have led to her offending. She continues to suffer significantly as Grove J has noted. I have no doubt that prison would add significantly to the impact of her illnesses and that, in turn, some of them would make full time custody more than usually burdensome. In the result, although not without a deal of hesitation, I have reached the conclusion that the order proposed by Grove J should be the result of this appeal.

69 SIMPSON J: I agree with Grove J.

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