In Criminal Law

So-called “white collar crime”, particularly when committed by persons holding positions of trust, can have a severe impact on a community.   However, we are seeing more and more cases where the pressures of gambling are proving just too much. When that happens it is important that the court is able to put the offending in context – so that the offender is not only punished, but is also supported to overcome the addiction and make amends. That’s where our lawyers can help.

 One of our senior partners Nicholas Kernahan, recently acted for a client who stole over $150,000 from her employer. The judge in the case imposed a sentence of two years and 10 months’ jail, but suspended it in favour of a three-year good behaviour bond – so the client didn’t go to jail.

Many people who read or saw or heard this news item may have been surprised by the fact that a suspended jail sentence was imposed in view of the repeated serious acts of fraudulent criminal behaviour.

There is a significant body of criminal law in regard to the judicial discretion to suspend a jail term, where there is ’good reason’ to do so.

The offending in this case occurred as a consequence of the woman developing a very serious gambling addiction, acquired during a time of significant personal life trauma. One close family member had died and there was an ongoing dispute about the will. At the same time, another family member was in the last stages of terminal cancer. These were all matters brought to the attention of the Court along with the fact that since the theft, our client had repaid about a third of the money defrauded.

The function of the criminal law is to provide a protection to the community and deter others from offending. This can often be achieved by non custodial sentence or a suspended sentence. Judges have and should use their discretion to impart a merciful sentence in the right circumstances. It is not the purpose of sentencing in criminal law to impose a sentence which crushes the defendant especially in circumstances where the defendant has no prior criminal history.

In this case the defendant had retained employment since the fraud was discovered, had sought help for her addiction and had made some reparation of the stolen funds. The judge was charged with the responsibility of weighing these clear signs of rehabilitation with the need to impose a sentence which acts as a deterrent to the individual and also more broadly to those in the community who might also be tempted to transgress in the same way. Given there were clear signs that the defendant had rehabilitated, and that incarceration would not have assisted that process to continue, the judge ordered that the woman be under the supervision of Community Corrections and obey any directions given to her for counselling (for gambling and anything else required) and other such treatment deemed appropriate. And, with a suspended sentence, the defendant still has the prospect of jail hanging over her for the next three years if she re-offends.

Changing judicial interpretations of the criminal law are significant when they relate to particular social developments. Prior to 2002 almost two-thirds of the offenders with gambling problems received jail sentences ranging from three months to six years but few people were ordered to undergo counselling or treatment. Since then, over time, the range of responses to the phenomena of gambling have been refined and have continued to shift: from a moral and legal issue, to a medical and psychological response, to where it currently is seen more as a socially constructed problem. Indeed, gambling is a government- approved source of significant revenue It is appropriate then that governments provide a range of treatment programs to assist those with problem gambling addictions. And it is appropriate that courts allow offenders the opportunity to take up, and benefit from, those programs.

If you need advice in this important area of criminal law or ‘white collar’ crime issues generally, please contact Nic Kernahan or any other members of our Criminal law team on 8231 1110.

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