Regina v Chapman [2001] NSWCCA 457

New South Wales Court of Criminal Appeal

CITATION : Regina v Chapman [2001] NSWCCA 457 FILE NUMBER(S) : CCA 60682/00 HEARING DATE(S) : 16/11/01 JUDGMENT DATE : 16 November 2001

PARTIES : Regina (Cth) v Kevin John Chapman JUDGMENT OF : Ipp AJA at 1; Hidden J at 19; Barr J at 20

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0307 LOWER COURT JUDICIAL Solomon DCJ OFFICER :

COUNSEL : In Person (Appellant) M G Allnutt (Crown) SOLICITORS : N/A (Appellant) Commonwealth DPP (Crown)

LEGISLATION CITED : Crimes Act 1914 (Cth) CASES CITED: R v Henry (1999) 46 NSWLR 346 DECISION : See paras 17 & 18

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60682/00 IPP AJA HIDDEN J BARR J

Friday, 16 November 2001 REGINA v KEVIN JOHN CHAPMAN

Judgment 1 IPP AJA: This is an application for leave to appeal against sentence. The sentence was imposed on the applicant in respect of a charge pursuant to s 29D of the Crimes Act 1914 of defrauding the Commonwealth. The maximum penalty under this section is 1,000 penalty units or imprisonment for ten years, or both. The charge arose out of the applicant's conduct in defrauding the Department of Defence of more than $274,000. 2 The applicant was convicted after a plea of guilty and he was sentenced by Solomon DCJ to a term of imprisonment of three years commencing on 3 October 2000 and expiring on 2 October 2003. His Honour ordered that the applicant be released on 2 August 2002 upon him entering into a recognizance, without surety, for a period of one year and two months, subject to certain conditions. An order for reparation pursuant to s 21B of the Crimes Act 1914 in the sum of $274,111.10 payable to the Commonwealth of Australia was made. 3 The applicant was a member of the Australian Regular Army from 16 March 1983. The fraud took place during the period December 1995 to January 1999. During this period the applicant held the rank of Sergeant. 4 He was employed as a Chief Clerk with the Parachute Training School at Nowra. Part of his duties was to arrange for the payment of allowances. It is not necessary to describe in detail the modus operandi of the fraud. It is sufficient to state that it involved an elaborate system whereby he retained moneys belonging to the Commonwealth and concealed what he had done. This resulted in the Defence Department making 313 claims of fraudulent conduct against him, all of which he admitted. 5 The reason for the appellant's aberrant conduct was that he was suffering from a physiological condition of pathological gambling. The need for money to gamble caused him to embark on the premeditated plan of deception of the Department of Defence. 6 In passing sentence Solomon DCJ remarked that this was a tragic case. His Honour took into account a number of factors that bore upon the sentence. These were: (a) The applicant's gambling addiction;