R v Shane Victor DANIELS [2007] NSWDC 29

New South Wales District Court

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.