Reported Decision : 6 DCLR (NSW) 62 New South Wales District Court CITATION: Regina v Koulouris [2007] NSWDC 262 HEARING DATE(S): 16/11/2007 JUDGMENT DATE: 23 November 2007 JURISDICTION: Criminal JUDGMENT OF: Williams DCJ at 1 DECISION: On Count 1, she is sentenced to a minimum period in custody of 12 months and a total term of 24 months commencing from 23/11/2007.; On Count 2 and taking into account the Form 1, she is sentenced to a minimum period in custody of 15 months and a total term of 30 months. That sentence is to date from 23/2/2008. She is to be released on parole on 22/5/2009. The total term will expire on 22/8/2010. CATCHWORDS: Pathological Gambling Addiction - Steal Property as a Servant - Fraud - No Criminal Convictions LEGISLATION CITED: Crimes Act 1900 (NSW) Regina v Molesworth [1999] NSWCCA 43 Regina v Houghton [2000] NSWCCA 62 Regina v Pont [2000] MSWCCA 419 CASES CITED: R v Henry (1999) 46 NSWLR 346 R v Tobin (unreported, Berman J, 22/11/2002, 02/11/0738) R v Petrovic [1998] VSCA 95 R v Gennaoui (unreported, Nicholson J, 12/5/2006, 05/21/0246) PARTIES: ODPP Christina Koulouris FILE NUMBER(S): 07/11/0690 Ms. B. Callanan (ODPP) SOLICITORS: Ms. F. Westwood (Wesley Community Legal Service) JUDGMENT 1 HIS HONOUR - Mrs Koulouris is a pensioner aged 64. She pleaded guilty in the Local Court to two offences of steal property as a servant and asks that a further such offence be taken into account on a Form 1. These are offences contrary to s.156 of the Crimes Act and each carries a maximum penalty of 10 years imprisonment. The pleas were entered into at the earliest opportunity in the Local Court. Facts. 2 There is an agreed statement of facts, which is annexure 1 to this judgment. This reveals that between 5/4/2004 and 31/12/2004 she stole $176,139.82 from the Freedom Group Ltd. Furthermore, between 5/1/2005 and 15/11/2005 she stole an additional $166,375.86. These are the offences on the Indictment. The Form 1 relates to 4 thefts between 10/10/2005 and 9/11/2005 totalling $10,964.00. Altogether, over this period, she stole $353,479.68. The money was spent on poker machine gambling and is irrecoverable. 3 Mrs Koulouris commenced at Freedom in August 2000. Initially employed as the Administration Manager of the Kings Park Distribution Centre, she was transferred to the position of Senior Accounts Recoverable Controller in April 2004. The first offence was committed on 5/4/2004. 4 From other information contained in Exhibit A and Exhibit 1, it appears that Mrs Koulouris was born in Western Australia and placed in an orphanage at age 2 because her parents could not look after her. Mrs Koulouris says she was treated badly during this time. This would have been in 1945. At age 15, she was relocated to Sydney to live with her father who was a violent alcoholic. She was married at age 17 and had one son, Alex, who has been in Court with her. Her husband was violent and a problem gambler. That relationship lasted about 4 years. After her son turned 21, she entered another relationship which was marked by violence of a severe nature, and ended when he was charged with a severe assault on her and he was subjected to a 10 year D.V.O. 5 Mrs Koulouris says she was subject to bullying at work and that the job she was transferred to in 2004 was a demotion. She has apparently always been in productive employment. A letter from her G.P indicates the trauma she suffered in 1999 when her partner tried to kill her. As a result she suffered consequent depression and was on medication. On 17/3/2004, she stopped her anti depressant medication. She visited her G.P. only four times between 1/1/2004 and 10/11/2005. On 28/12/2005, she sought counselling from the Sydney Problem Gambling Centre. Since then she has attended 81 counselling sessions. 6 Mrs Koulouris did not give evidence. There is no independent evidence that her change of status in 2004 was a demotion. Be that as it may, her new position required her to receive COD payments made to delivery drivers on delivering items of furniture. These payments and delivery dockets were placed in locked cash bags which were unpacked each day by Mrs Koulouris and her assistant. After the cash had been reconciled with dockets it was placed in a safe. 7 Payments were allocated to a "till" number on the accounting system. The till numbers corresponded to the store where the sale had been made. Till numbers 1-4 were most commonly used and till numbers 5-9 only rarely. Till 9 was occasionally used to amend incorrect entries. 8 Mrs Koulouris stole many cash payments – approximately 300 over the period in question. She escaped detection by correctly acquitting the amounts paid by customers against monies owing but when writing up the Tender Reconciliation Report she entered the amounts stolen under till number 5 which had the effect of removing the amount from the store spreadsheet while maintaining the overall balance of the Tender Reconciliation Report. There was thus no record in the bulk banking records and, because the Tender Reconciliation Report was not used by the auditor to reconcile payments, the thefts went undetected. 9 The discrepancies were not discovered until 14/11/2005 after Freedom had been taken over by another company who instigated a different accounting process. Mrs Koulouris' assistance to account for the discrepancies was sought on 23/11/2007. She told that person to leave it with her. Shortly after, she left work saying she was ill. At 4:30pm, she contacted her Manager and asked to speak with her. At 5:30pm, she attended the managers officer and gave her a letter of resignation which stated her reason as being that she had been stealing money since September 2005. On 9/11/2006, she voluntarily surrendered herself to police and made admissions to stealing from her employer but only between September and November 2005. 10 Mrs Koulouris has no criminal convictions. 11 What effect should a diagnosis of a pathological gambling addiction have on sentencing for fraud matters? 12 Exhibit 1 contains a report from a person who has a Graduate Diploma in Christian Counselling and who has been involved in counselling of Mrs Koulouris since 28/12/2005. She stated that Mrs Koulouris satisfied 10 diagnostic criteria for the DSM-IV Impulse Control Disorder known as Pathological Gambling. There is no confirmatory report from a psychologist or psychiatrist. However, for the sake of the argument, I am prepared to accept that diagnosis. 13 I was referred to a number of decisions on the relevance of gambling as a factor in sentencing. The principal case is Molesworth (1999) NSWCCA 43. The matter of Houghton (2000) NSWCAA 62 does not advance the situation, nor does the matter of Pont (2000) NSWCCA 419. 14 It is argued that two decisions of this Court suggest a relaxation of the principles in Molesworth. They are, Tobin [unreported, Berman J 22/11/2002 (02/11/0738)] and Gennaoui [unreported, Nicholson J 12/5/2006 (05/21/0246)]. That relaxation is said to come from reference to what was said in R v Henry (1999) 46 NSWLR 346 about the relationship between drug addiction and armed robbery. At paragraph 273, Wood CJ at Common Law said that the fact that an offence is motivated by an addiction may be taken into account as a factor relevant to the objective criminality of the offence, insofar as it may throw light on matters such as the impulsivity of the offence and the extent of any planning for it and/or the state of mind or capacity of the offender to exercise judgment. 15 Berman J and Nicholson J made comparisons between drug addiction and gambling addiction and suggested that a gambling addiction could be given similar considerations to a drug addiction. 16 Wood CJ at CL also made reference in Henry to a possible subjective circumstance relative to drug taking that may affect the sentence, that being where drug taking was not a matter of personal choice, but came about because of something for which the offender was not primarily responsible, for example as a result of medical prescription following injury, surgery or illness, or where it occurred at a very young age or where the individual suffered from a mental or intellectual impairment. 17 However, as Berman J pointed out, illegal drug taking is an offence whereas gambling is not and is even encouraged by both government and private interests. I also note that addiction to illegal drugs is more likely to follow their use than is pathological gambling likely to follow from gambling. 18 I have little doubt that a person who becomes addicted to gambling could equally become addicted to drugs and vice versa. Indeed, gambling is often a concomitant of drug taking. However, whilst both forms of addiction involve a powerful mental element, drug taking also usually involves a physical addiction of a substantial and pervasive nature. 19 The typical offence committed to support a drug habit is usually opportunistic, involving little planning or reflection, such as armed robbery, robbery and break and enter offences. The typical offence to support a gambling addiction seems to be usually of a fraudulent nature. 20 The question of voluntariness in drug taking or gambling is a complex and difficult one. In my view, it is simplistic to exonerate someone who has become addicted to a substance because it was prescribed for pain on the one hand, but blame someone who voluntarily takes drugs and then becomes addicted on the other. One reason for that is the fact that there are many deleterious substances available in society that are addictive and yet to which no criminal penalty attaches such as alcohol and cigarettes. Another reason is that I fail to see that a person who takes drugs to relieve a personal torment is acting voluntarily in the true sense and with full forethought of the possible consequences. 21 I can understand and sympathise with persons who have an addictive personality be that drugs or gambling. I have had personal experience of both. I suppose the most serious question that concerns me is why persons who develop an addiction don't usually seek help, especially at the point when they realise what is happening to them and the problems it is causing. 22 In Molesworth (1999) NSWCCA 43, the relevant judgment is that of Abadee J. Adams J was in the dissenting minority and as such that judgment has no actual precedential value. The binding principle in Molesworth is that it will be a rare case where an offender can properly call for mitigation of penalty on the ground that the crime was committed to feed a gambling addiction. Additionally, the court in Molesworth approved the V.C.A decision in Petrovic 1998 VSCA 95 where it was said: 23 The fact that an offender was motivated to commit the crimes in question by an addiction to gambling will, no doubt, usually be a relevant and indeed may also be an important consideration for a Judge sentencing an offender; and 24 A gambling addiction, even if pathological, that to some extent generates crime, will not on that account, necessarily mean that the offender is immune from punishment by imprisonment. 25 Discussion Each case needs to be looked at on its own facts. In that regard, there are significant factual differences between Mrs Koulouris' case and that of Gennaoui or Tobin. 26 In the present case, Mrs Koulouris did nothing about her problem until she was caught. Indeed, had she not been caught, the fraud would probably have continued indefinitely. She must have realised long ago that she had a problem. She would have been reminded of it each time she defrauded her employer. Whilst the initial offending may have been impulsive, that cannot have been the case as time went on. Whilst I have a letter from her counsellor at the S.P.G.C there is no other professional opinion relating her life experiences to her gambling as an outlet for her underlying issues. Again, it is difficult to clinically relate her cessation of anti depressants on 17/3/2004 with her first theft from her employer on 5/4/2004. It is also regrettable that on the occasions she saw her G.P. between April 2004 and November 2005 she did not raise, with an obviously sympathetic professional, the problems she was having. 27 Mrs Koulouris lives in a property she rents from her son. She is in receipt of the age pension. She has a good relationship with her son and his family and with her brother. The Pre Sentence Report does not consider that she needs any additional support from the Service that she is not already getting. 28 I accept that her voluntary entry into the S.P.G.C. program and her many attendances over the last few years is indicative of a willingness on her part to rehabilitate herself and, that she is unlikely to re-offend if she continues with that, or a similar program such as Gamblers Anonymous. 29 The references that have been tendered indicate that she is highly regarded within the community and that her offending was out of character. I accept from her plea of guilty and her letter that she is genuinely remorseful. I also accept and acknowledge her troubled past. 30 The difficultly for Mrs Koulouris is that she persisted in a repeated course of illegal conduct for a long period of time, in breach of the trust given to her by her employer. Further, the amount of money involved is very substantial, over $350,000. 31 Regrettably, there can be no alternative to imprisonment. The maximum penalty for the offence is reflective of the seriousness with which it is regarded. The issue of general deterrence, where addiction is involved in criminal offending also extends to deterring persons who have any addiction from committing criminal acts to support their addiction and from relying on addiction as an excuse for offending or as operating as some compulsion to offend. Not all addicts resort to crime to pay for their addiction and it, therefore, needs to be strongly stated that addiction of itself will rarely result in any substantial reduction of an appropriate penalty albeit it is a factor that is deserving of the considerations referred to by Wood CJ at CL referred to above. 32 There are two offences and a Form 1. I propose to take the Form 1 matters into account on the second offence. Having regard to her age, the fact that it is her first time in custody, the prospects of rehabilitation and the partial cumulation of sentence. I am prepared to find special circumstances. I also note the plea was entered at the earliest opportunity entitling her to the maximum discount. 33 I make the following orders. 34 She is convicted. 35 On Count 1, she is sentenced to a minimum period in custody of 12 months and a total term of 24 months commencing from 23/11/2007. 36 On Count 2 and taking into account the Form 1, she is sentenced to a minimum period in custody of 15 months and a total term of 30 months. That sentence is to date from 23/2/2008. She is to be released on parole on 22/5/2009. The total term will expire on 22/8/2010. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.