District Court New South Wales Medium Neutral Citation: R v Scott Miles [2017] NSWDC 411 Hearing dates: 11 December 2017, 18 December 2017 Date of orders: 18 December 2017 Decision date: 18 December 2017 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a total term of imprisonment of 4 years. Non parole period of two years. Catchwords: Fraud on sport's club, general manager, multiple frauds, loss over $600,000.00, early cooperation and disclosure, gambling debt, magical thinking, good prospects, special circumstances, retributive punishment can impede rehabilitation, importance of general deterrence. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen (1990) 169 CLR 525 Johnson v R [2017] NSWCCA 53 Power v The Queen (1974) 131 CLR 623 Regina v M.A [2004] NSWCCA 92 (2004) 145 A Crim R 434 Simpson (2001) 56 NSWLR 704 Siwek v R [2017] NSWCCA 178 Category: Sentence Parties: Scott Miles (Offender) Director of Public Prosecutions Representation: Counsel: Ms E Nicholson (for the offender) Solicitors: Mr Rollestone (for the offender) Mr R Taylor (for the Director of Public Prosecutions) File Number(s): 2017/00163129 Judgment 1. Scott Miles had been employed by the Illawarra District Rugby League Football Club, the Club, for over 13 years. He started as the gaming manager, became temporary general manager and, from 2006 until his arrest, the general manager of the Club. He reported to the board of directors but he was responsible for the total club operation including financial operations. 2. In 2016 an anomaly was detected in the club's finances. The offender became aware of this. He then approached the board and made a full and complete confession to having over a period of time defrauded the Club of a considerable sum of money. 3. The material before me and the evidence of the offender himself indicate that he was aware that eventually his fraud would be discovered. It is also clear that from the outset he made a detailed confession, first to the Club and then to the police, of his wrongdoing and the mechanism by which he deceived his employer over many years. Texts were exchanged which indicate both the offender's concern to ensure that the extent of his criminal acts be set out and also the Club's respect for him and their compassion for the predicament he found himself in. 4. In the modern world of sentencing retribution is generally demanded by victims above all else. Retribution seems to be at times the predominant view of the community whenever crimes are committed against individuals and the community. It is heartening that while the club obviously would have suffered because of the depredations of the offender they responded with a degree of concern and compassion for him and his personal predicament and the predicament of his family and for that they are to be commended. 5. When the audits were complete a quantum loss over a million dollars was found to have occurred. The material before me indicates that the actual loss may be somewhere between $800,000 and $1,000,000. The facts agreed set out how over a period of time the offender set up a scheme, using the company credit card and a false account and later chits to secure a regular flow of income from his employer. At times money was returned to the Club. There seems to be no dispute that the money was used to fund a severe gambling addiction and that throughout the relevant period the offender was, to use a term that cropped up a number of times in the hearing "chasing his losses". In other words having stolen from his club and his employer he sought to recover and repay that amount out of gambling wins. His gambles were never successful enough to repay even a small proportion of the total. 6. Any rational thinking person must have realised that it would have been impossible to repay the debt. Miles is a rational thinking person but it is clear from all the material before me an atmosphere of what his psychologist referred to as "magical thinking" preoccupied him. He dug himself deeper and deeper into a hole. Rather than stop digging and confront the crimes he had committed and confess to his family and his employer, people who trusted him, he kept digging and digging. He did disclose his offending before he was discovered. He did make full confessions to the police and he will have some significant benefit for that. But as he freely conceded in cross examination he knew eventually his crimes would be found out. 7. The seriousness of the offence is borne out by a few simple facts. He was a person of prior good character. He was presumed to be of good character while he was running the Club. He was trusted by the Club with the management of the Club, he was the senior executive. He used that position to advance the interests of the Club but while he was doing so he was also taking from the Club and able to use his position to cover up the illegal transactions. The offences were planned. There were multiple frauds over many years which have been rolled up into the one matter before me. His gambling problems explain why he did what he did and help me have some understanding of the man for sentence and his future but it does not mitigate in any way the seriousness of the offence. 8. Courts must consistently apply sentencing principle. In matters such as this the principle of general deterrence looms large. By the severity of the sentence imposed an attempt is made to deter others from doing what Miles did, others must realise as Mr Miles eventually did, that rather than keep digging themselves into a hole of greater and greater criminality they must face the fact of what they have done and not try to gamble their way out of the problem. Sentences must have real bite in matters such as this. When people of otherwise good character use their position to defraud their employers or others custodial sentences are generally called for. Where amounts of money of the sum rolled up here are concerned, and where someone uses the position of seniority in a planned way such as that here,only a full time custodial sentences could be imposed. 9. On the other hand courts have to balance and consider a number of other competing factors before a sentence is imposed. 10. To his credit, and properly advised, the offender realises that only a full time custodial sentence of some length can be imposed. He, in his evidence, showed that he had confronted that reality and has made appropriate arrangements. 11. I have to take into account that immediately upon being dismissed from the Club he made arrangements for reparation of $48,000, being all his entitlements. There is material before me that he has throughout the period of remand, sought to make arrangements with the Club to repay, if not all, a substantial proportion, of the sum defrauded. He signed a Deed of Release and his share of the family home will eventually go to the Club. That is another factor I can take into account both as a measure of the man and as it reduces the harm caused. You cannot buy your way out of gaol but it is a matter that has to be taken into account. 12. Miles gave evidence. He gave evidence of the potential for discovery, his confession and of the assistance given to him by the Club. He made, what I find was, a sincere apology showing appropriate remorse to the members of the Club and the directors and the people who trusted him, including the workers he supervised. He expressed appropriate regret for the harm he had caused his friends and in particular his family. The material before me indicates that he has strong support from prosocial members of the community. Miles said in evidence and exhibit 4, "It's no one's fault but mine". He showed appropriate insight into his gambling problem. There was abundant evidence before me that he had, with the help of the Wesley Mission, addressed his gambling problem and was taking steps to ensure that he would be able to avoid such problems in the future. 13. The material indicates that he was genuinely contrite and understandably fearful of the consequences of imprisonment. 14. All the material before me indicates that he was considered to be a kind, likable and a true friend, perhaps that is why no one discovered or could even imagine what he was doing in his private life with his gambling. Gavin Shepherd, Fiona Eaton and David Hollier from Wesley provided written material to me. Mr Hollier's counselling report noted that the offender showed all the diagnostic criteria for a gambling disorder. 15. There was evidence before me that Miles had considered taking his own life at various times and that suicide prevention strategies had been put in place. It would appear that the catalyst for his gambling was the death of a child and the understandable grief that he suffered. He, perhaps had too many responsibilities and placed too high standards on himself ; they weighed down on him. Mr Hollier noted that incarceration will impede recovery. That is not an unusual finding or recommendation from a counsellor. Removal from the community rarely enhances reintegration into the community but courts must in matters such as this to, in a sense, harden their hearts to the individual consequences and focus, as I have said earlier, on matters regarding general deterrence. 16. Ms Kendall, Psychologist, notes a number of potential disorders that Miles suffers from. She notes that he is currently facing a number of significant mental health challenges with highly elevated scores on a number of tests. She put his personal history before the Court. It is uncontroversial. She noted some fairly significant issues, some of which I have already alluded to. She noted that he had, with help put in place strategies to cope with self destructive impulses but that he is still fragile, passive and understandably anxious. All of the material before me indicates that, with support, it is highly unlikely that he will ever offend again. 17. I have had a number of authorities and some statistics put before me. They indicate that particularly severe sentences are imposed in matters such as this: see Johnson v R [2017] NSWCCA 53 and Siwek v R [2017] NSWCCA 178. 18. I have particular regard to the maximum penalty of ten years imprisonment. It is one important guide to the exercise of my sentencing discretion. I note that the offences here occurred over a period of time and were rolled up. That rolled up sentence allows for appropriate consideration of the seriousness of the total acts of criminality. 19. The plea of guilty came early. It is a matter that I take into account generally. It is a matter that, together with his facilitation of the course of justice throughout the presentation of these matters, reflects well on him. 20. So far as the utilitarian value of the pleas concerned 25% of the otherwise appropriate sentence will be taken off to reflect that utilitarian value. 21. So far as the disclosure of, as then, unknown guilt is concerned it is a matter I take it into account. It is a matter that has to be quantified. I will allow a period of six months for the cooperation noting that a court must, in giving as much weight as one can to the relevant factors, not reduce the sentence inappropriately: see s 23(3) of the Crimes (Sentencing Procedure) Act 1999. 22. There will be a finding of special circumstances here. My finding that Miles is unlikely to offend; the psychological and other subjective matters; the need not to break prosocial contacts with the community are all important. The Court must impose adequate punishment; that requires balancing on one hand the need to protect the community and denounce the offence and or the other promoting the rehabilitation of the offender and taking into account their subjective circumstances. The sentence must reflect both justice to the offender but also the community. The purposes of sentencing overlap, none can or should be considered in isolation; in fact some contradict others, some undermine others. For example in some cases, and this is one, retributive punishment can seriously impede rehabilitation and an offender's capacity to resume normal community life. 23. The non parole period is the minimum period this offender must spend in gaol having regard to all the elements of punishment including the objective seriousness of the crime, deterrence and any subjective circumstances. The considerations take into account when fixing the non parole period also apply to fixing the head sentence but the weight to be attached to the various factors and the way in which they relate one to the other differ due to the different purposes of punishment, different purposes behind each function: See Power v The Queen (1974) 131 CLR 623, Bugmy v The Queen (1990) 169 CLR 525 and Regina v M.A [2004] NSWCCA 92 (2004) 145 A Crim R 434 and Simpson (2001) 56 NSWLR 704. I have had regard to other cases but no other case is determinative; a judge has to structure a sentence, and impose a sentence that reflects the individual before them and their crimes. 24. I have regard to the careful submissions of Ms Nicholson for Mr Miles and Mr Taylor for the Director, I hope this judgment does justice to them. 25. In relation to the matter before the Court of dishonestly obtain financial advantage by deception, s 192E(1)(b) Crimes Act 1900, you are convicted. Taking into account my finding of special circumstances and the reduction pursuant to s 23 of the sentencing Act there will be sentence in this matter of four years imprisonment. The starting point was six years, with 25% off for utilitarian value of the guilty plea and six months off for the s.23 factors; for those who want to deal with the matter mathematically. 26. The formal orders of the Court are: there will be a non parole period of two years which will commence on 18 December 2017 and expire on 17 December 2019, on which date you will be eligible for consideration for release to parole. There will be a parole period of two years from that date. Total sentence of four years. ********** 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. Decision last updated: 21 February 2018