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Sentencing the problem gambler RGF Conference 3-4 April 2012. Richard Brading & Jodie Rollason Solicitors Wesley Community Legal Service 7/133 Castlereagh St Sydney richard.brading@wesleymission.org.au Jodie.rollason@wesleymission.org.au 9263-5577. What is crime and what is a sentence?.

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sentencing the problem gambler rgf conference 3 4 april 2012
Sentencing the problem gamblerRGF Conference 3-4 April 2012

Richard Brading &

Jodie Rollason

Solicitors

Wesley Community Legal Service

7/133 Castlereagh St Sydney

richard.brading@wesleymission.org.au

Jodie.rollason@wesleymission.org.au

9263-5577

what is crime and what is a sentence
What is crime and what is a sentence?
  • Crime is the breach of rules or laws by which a government can prosecute and convict the wrongdoer
  • While every crime violates the law, not every violation of the law is a crime- distinguish from civil law, e.g. breach of contract or tort
  • A sentence is a punishment made by a representative of the government against a wrongdoer who has been found guilty of a crime
so why do you think society punishes wrongdoers
So why do you think society punishes wrongdoers?

This is a pillory, one of the common punishments for minor crimes in medieval times

retribution
Retribution
  • Punishment should be proportionate to the gravity of the offence committed – “an eye for an eye”
  • Retribution satisfies the wronged person and their family
  • Removes the need for payback or vendettas
deterrence
Deterrence
  • Individual – the wrongdoer is deterred from reoffending through fear of further punishment
  • General – the community is deterred from committing crime by observing the punishment of those who are sentenced
denunciation
Denunciation
  • The community uses sentencing to express its disapproval of wrong behaviour reinforcing moral boundaries
incapacitation
Incapacitation
  • Offender is made incapable of committing further crime to protect society at large from further crime
rehabilitation
Rehabilitation
  • To reform the offender’s behaviour
reparation
Reparation
  • Repayment to victim or the community
which is the most important reason for sentencing in modern australia
Which is the most important reason for sentencing in modern Australia
  • Retribution?
  • Deterrence?
  • Denunciation?
  • Incapacitation?
  • Rehabilitation?
  • Reparation?
why do people commit serious crimes one study of prisoners
Why do people commit serious crimes – one study of prisoners
  • Drug related crime – 75.3%
  • Finance living expenses – 10.5%
  • Peer pressure – 7.5%
  • Financial difficulties – 5.6%
  • Mental condition – 5.2%
  • Gambling addiction – 3.7%
  • Greed – 1.9%
  • Other – 3.0%
blaszczynski mcconaghy 1992 4
Blaszczynski & McConaghy 1992/4
  • Interviewed 306 pathological gamblers
  • Nearly 60% admitted crime to fund gambling
  • Only 23% were convicted of crime
  • More serious offences more likely to be convicted
productivity commission 1999
Productivity Commission 1999
  • National Gambling Survey 10,600 people
  • 1 in 10 problem gamblers commit crime
  • Up to two-thirds PG in counselling committed a crime
  • 40% of offenders charged & convicted
  • Other crimes not serious enough, or not reported to police so not prosecuted
breakeven victoria 2000
BreakEven Victoria 2000
  • 1817 BreakEven clients
  • 30% reported committing crime to finance gambling
  • Most common crimes – forgery, fraud, theft and embezzlement
penny crofts research 2002
Penny Crofts research -2002
  • Gambling and Criminal Behaviour – an Analysis of Local & District Court files
  • 2779 files read, 105 gambling related
  • 19.7% larceny by clerk gambling related
  • 19.4% bounced cheque gambling related
  • 13.6% Obtain financial benefit by deception
  • 8% False statement to obtain money
  • 4% Armed robbery
  • 2.5% False statement for financial advantage
australian institute of criminology pricewaterhouse coopers 2003
Australian Institute of Criminology & Pricewaterhouse Coopers 2003
  • 208 persons accused of serious fraud
  • 27.3% motivated by greed
  • 14.7% motivated by gambling
the media
The media
  • Ray Hadley wants the NSW Attorney-General sacked for being soft on crime
prisoners sentenced to tv and brekkie in bed
Prisoners sentenced to TV and brekkie in bed

By Gemma Jones | The Daily Telegraph| 11th June, 2010

A GET-out-of-jail free card will be given to 750 violent and dishonest criminals under a State Government plan to let them serve prison sentences in the comfort of their homes.

r v molesworth 1999
R v Molesworth 1999
  • Do you think that stealing money for gambling is for need or greed?
  • Many gamblers have had unhappy lives. Why is this important to a sentencing judge?
  • Can gambling addiction detract from the significance of the underlying personal issues?
  • Do you agree that offenders should get shorter prison sentences if their age, health or other personal characteristics will mean that prison will be harder for them?
r v petrovic 1998
R v Petrovic 1998
  • Will a long-term fraud that involves planning & deception, result in a harsher sentence than a crime committed impulsively?
  • Do you think the sentence should be harsher if the victims have suffered greatly, as compared with a commercial victim (e.g. a bank)?
r v petrovic continued
R v Petrovic continued
  • Why is a gambling addiction not normally a mitigating factor?
  • If it is not a mitigating factor, then why is it a relevant or important factor to a sentencing judge?
  • Can you think of a ‘rare case’ when a court should reduce a sentence because the offender had a gambling problem?
r v pipes 2004
R v Pipes 2004
  • Is the sentence relative to the amount of money stolen?
  • Should a senior public servant in a position of trust get a harsher sentence?
  • If the stolen money is repaid, does that demonstrate remorse?
  • How is the existence of a related alcohol addiction relevant?
  • Do you think the judge was correct in her interpretation of the psychiatrist’s comments?
  • Do you think references to ‘lack of insight’ are important?
marks v r 2009
Marks v R 2009
  • Would Marks’ old criminal convictions have been relevant to this sentence?
  • Were there some aggravating circumstances relating to the offence?
  • Do you agree his history of child sexual assault was relevant?
  • The psychiatrist didn’t agree with the psychologist’s assessment of Marks’ conduct as psychotic. What do you think of the trial judge’s comments?
marks v r continued
Marks v R continued
  • Do you think that the appeal court had a better approach?
  • Do you agree that the first time an offender is imprisoned has a big impact on them and likely to be an effective deterrent to subsequent offending?
  • What about the comments in Richard Ackland’s article about the high rate of former prisoners reoffending?
finish
Finish

We hope you enjoyed this workshop

Cases can be found at:

www.austlii.edu.au