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; (b) The fact the applicant pleaded guilty; (c) The absence of any relevant criminal record on the applicant's part; (d) The fact that the applicant had given a lifetime of service to the Army and had attained a degree of excellence in his service. (e) The loss of the applicant's pension and the other substantial financial losses that he had suffered as a result of his own conduct. (f) The impact that the offence has had on his family. (g) The steps the applicant took to rehabilitate himself. (h) The fact that the offences took place while the applicant was in a position of trust. 7 His Honour said that the only appropriate sentence was one to be served by way of full time custody. Underlying this view was the seriousness of the offence committed by the applicant. On that basis he imposed the sentence to which I have referred. 8 The applicant seeks to appeal on the ground that the sentence is excessive. 9 In his written submissions he has argued that his addiction to gambling constituted exceptional circumstances such that a custodial sentence should not have been imposed. He pointed out that his illness was well-documented by Dr Westmore, a psychiatrist, and Mr Corless, a psychologist. He said that this pathological condition affected his ability to distinguish right from wrong. He said that by reason of his addiction he had no control over his own actions and while he appeared to be doing the duties of a sergeant all he could think of was gambling. Allied to these submissions was the argument that throughout the period he was gambling he made no personal financial gain. The funds he criminally obtained were used to support his condition. These were all lost. 10 There was no evidence before Solomon DCJ to the effect that the applicant was unable to distinguish right from wrong and, indeed, there is no evidence before this Court to that effect. The applicant's submissions do not constitute evidence, although this Court will bear them in mind. It must also, however, be borne in mind that the applicant pleaded guilty to the charge and did not at that stage contend that his psychological condition deprived him of the ability to control his own conduct. 11 It is sufficient to say for the purposes of this appeal that the applicant's submissions concerning the effect of his gambling addiction all fall under the same rubric and I shall deal with them in that way. 12 Solomon DCJ had before him the reports of Dr Westmore and Mr Corless and expressly referred to them. Dr Westmore explained that pathological gambling is seen by psychiatrists as a serious disorder affecting impulse control. It is a treatable condition but, like most disorders of this type, treatment is usually only sought after the patient's life has progressively deteriorated to a point of major crisis. This is what occurred in the case of the applicant. Mr Corless agreed that the applicant had experienced a severe pathological financial problem. He said that the features of this included a preoccupation with gambling, a need to gamble with increasing amounts of money, repeated unsuccessful attempts to stop or control gambling, chasing one's losses, presence of withdrawal symptoms, a need to escape other problems and finally culminating in dishonest, illegal acts. 13 These consequences of a gambling addiction are undoubtedly serious and for my part I sympathise to a degree with the circumstances under which the applicant found himself. He was certainly under the effect, as established in the sentencing process, of a psychological condition. There is ample authority, however, from this Court to the effect that while a gambling addiction is relevant to the sentence it is not a mitigatory circumstance. It is sufficient to refer to R v Henry (1999) 46 NSWLR 346 where Spigelman CJ rejected the proposition that an addiction to gambling with attendant need for money could be the basis for a claim for mitigation. The effect of R v Henry and the authorities to the same effect is that the applicant's compulsive conduct, the lack of financial gain on his part and his gambling losses do not in law constitute grounds for interfering in the sentence that was in fact imposed. Indeed, the approach of Solomon DCJ to the applicant's gambling problem is entirely consistent with the authorities and no error has been demonstrated in that respect. 14 As I have mentioned, the applicant drew attention to his outstanding record with the Defence force, his good character, the lifetime of service he has given to the country, his financial losses, his remorse, the effect his incarceration would have on his family and his attempts to rehabilitate himself. These matters were all relevant to sentence and were all taken into account by Solomon DCJ. It is plain, as I have mentioned, that notwithstanding these matters Solomon DCJ regarded the crime to be so serious as to require a custodial sentence. On longstanding sentencing principle his Honour was entitled to form this view and no error on his part has been shown. 15 The applicant submitted that greater leniency could have been shown to him, given the mitigatory and other circumstances which I have outlined. It must be borne in mind, however, that once no error on the part of the sentencing judge has been demonstrated this Court is not empowered to impose whatever sentence it considers to be appropriate. The question then is whether the sentence in fact imposed was within the discretion of the sentencing judge. As I have pointed out, no error on the part of Solomon DCJ in the sentencing process has been shown and I consider that the sentence in fact imposed by his Honour was within his discretion even having regard to all the factors relied on by the applicant . This Court, therefore, cannot interfere with that sentence. 16 The applicant requested further clarification in regard to his release date of 2 August 2002. Solomon DCJ stated that he would recommend that steps be taken for the applicant to be enrolled in the William Booth Rehabilitation Programme and that he be assessed for his suitability for entry to that Programme. This recommendation has no bearing on the release date and, indeed, carries no legal force. The release date remains 2 August 2002 and the question whether the applicant is or is not enrolled in the Programme has no bearing on that date. 17 Counsel for the respondent has pointed out that his Honour omitted to fix a monetary sum in relation to the recognizance which the applicant is entitled to enter into upon being released on 2 August 2002. The order in this respect should be varied to reflect an order that he be released on that date, namely, 2 August 2002, upon him entering into a recognizance of $500 without surety for a period of one year and two months, subject to the conditions stipulated by Solomon DCJ. 18 I propose that the application for leave to appeal be dismissed. 19 HIDDEN J: I agree that the appeal should be dismissed for the reasons given by the learned presiding judge. 20 BARR J: I also agree. ********** 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.