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District Court 13 December 2007

R v Bouskila

[2007] NSWDC 283

Fraud & dishonesty
OBTAINING A BENEFIT BY DECEPTION PATHOLOGICAL GAMBLING ADDICTION TO POKER MACHINES SENTENCE

Citation: R v Bouskila [2007] NSWDC 283
Court: District Court of New South Wales
Date: 13 December 2007
Judge(s): Williams DCJ

Background

The offender was a bank branch manager with approximately 25 years of service at the Commonwealth Bank of Australia, including as manager of the Rose Bay North branch from September 2003. She pleaded guilty to 22 counts of obtaining a benefit by deception under s 178BA of the Crimes Act 1900 (NSW), with a further 11 offences taken into account on a Form 1 (a document listing additional charges dealt with at sentencing without separate conviction). The total actual loss suffered by the bank was approximately $3.1 million.

The offending spanned from August 2000 to March 2006. The offender exploited her position of trust as branch manager to access the bank's Bills Processing System, repurchasing customers' bills without their authority and diverting the funds to cash, bank cheques, or nominated accounts. Victims included elderly customers and others dealing with personal hardship, all of whom had placed significant trust in her as their branch manager.

The offender had a significant personal history, including a traumatic upbringing and a violent marriage. Psychiatric and psychological evidence before the court established that she suffered from pathological gambling, with a severe addiction to poker machines that had developed following her mother's death in 1992 and that became seriously problematic from 1999. The vast majority of the stolen funds were directed to gambling.

  • What sentence was appropriate for 22 counts of obtaining a benefit by deception, where the total fraud exceeded $3.1 million and involved a gross breach of trust by a bank manager?
  • To what extent, if at all, should pathological gambling (an addiction) mitigate the sentence?
  • How should the principle of totality be applied in structuring a large number of partially accumulating sentences?
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the total sentence.

Decision

The court found that imprisonment was unavoidable given the seriousness of the offending. The offending involved sustained, planned, and systematic deception over more than five years, directed at vulnerable customers who had reposed trust in the offender by virtue of her professional role. The court regarded the breach of that trust, the scale of the loss, and the prolonged nature of the fraud as substantial aggravating factors.

On the question of pathological gambling as a mitigating factor, the court acknowledged that addiction is a recognised consideration in sentencing. However, it firmly held that addiction will rarely produce any substantial reduction in an appropriate penalty, particularly where the crimes were not spontaneous but involved initial and ongoing planning and deceit. The court also noted that the offender had recognised her gambling problem but taken no steps to address it, which weighed against her. The court emphasised that general deterrence extends to deterring addicted persons from committing crimes to fund their addiction and from treating addiction as a justification or compulsion for offending.

The court structured the sentences in a cascading, partially accumulated pattern across the 22 counts to reflect the totality principle (the requirement that the overall sentence be proportionate to the overall criminality) while still imposing individually appropriate penalties for the more serious individual offences. Special circumstances were found to exist, warranting a longer-than-standard parole period on the head sentence, given that this was the offender's first custodial sentence and the complexity of the accumulation structure.

Orders Made

  • Convicted of all 22 counts on the indictment.
  • Counts 11 and 16: fixed term of 12 months imprisonment, commencing 29 November 2007.
  • Counts 1, 2, 3, 8, 9, 12, 13, 14, 18, 20, 21: fixed term of 18 months imprisonment, commencing 29 March 2008.
  • Counts 10, 17 and 22: fixed term of 2 years imprisonment, commencing 29 July 2008.
  • Counts 4 and 15: fixed term of 2 years and 6 months imprisonment, commencing 29 November 2008.
  • Counts 5, 6 and 19: fixed term of 3 years imprisonment, commencing 29 March 2009.
  • Count 7 (with Form 1 matters taken into account): minimum term of 3 years and 4 months, total term of 4 years and 6 months, commencing 29 July 2009.
  • Earliest parole eligibility: 28 November 2012. Total term expiry: 28 January 2014.

Key Takeaways

  • Pathological gambling may be a relevant mitigating factor at sentencing, but the District Court made clear it will rarely produce a substantial reduction in penalty, especially where the offending involved planning and sustained deception rather than impulsive conduct.
  • A sentencing court will weigh an offender's failure to seek help for a known addiction as a factor reducing the weight of that addiction as mitigation.
  • Breach of trust by a professional in a position of authority over vulnerable victims is a significant aggravating factor, particularly where the offender's role provided the very means of access to commit the offences.
  • General deterrence, even in cases involving addiction-driven offending, extends to deterring addicted individuals from resorting to crime to fund their habit, and to preventing addiction from operating as a de facto excuse for serious criminal conduct.
  • Special circumstances justifying an adjustment to the non-parole period ratio can be established where a large number of partially accumulated sentences are imposed and the offender has no prior custodial history.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BA

Cases:
- R v Burke (2002) NSWCCA 353
- R v Israil (2002) NSWCCA 255
- R v Alexander (2000) NSWCCA 458
- R v Molesworth (1999) NSWCCA 43
- R v Petrovic (1998) VSCA 95
- R v Henry (1999) 46 NSWLR 346
- R v Pearce (1998) 156 ALR 684
- R v Hawkins (1989) 44 A Crim R 430
- R v Pantano (1990) 49 A Crim R 328
- R v Hawker (2001) NSWCCA 148
- R v Power (2002) NSWCCA 244
- R v Koulouris [2007] NSWDC 262
- R v Tobin (unreported, Berman J, 22 November 2002)
- R v Gennaoui (unreported, Nicholson J, 12 May 2006)
- R v McKechnie (unreported, NSWCCA, 1 October 1987)