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District Court 21 June 2013

R v O'Toole

[2013] NSWDC 181

Fraud & dishonesty
CRIMINAL LAW SENTENCE AGENT CORRUPTLY RECEIVE BENEFIT HORSE RACING STEWARD CORRUPTION IN SPORT PRINCIPLE OF PARITY

Citation: R v O'Toole [2013] NSWDC 181
Court: District Court of NSW
Date: 21 June 2013
Judge: Berman SC DCJ

Background

The offender was a harness racing steward in New South Wales who participated in a scheme with trainers and at least one other steward. Under the scheme, trainers paid bribes to stewards to ensure that certain horses, which had been administered performance-enhancing substances, were not subject to post-race drug testing.

The offending spanned 18 months, from January 2010 through to mid-2011. In total, the offender received or agreed to receive bribes on 34 separate occasions, with the total sum received amounting to approximately $6,500. He used some of those funds to pay a fellow corrupt steward.

The offender pleaded guilty to nine charges of being an agent and corruptly receiving a benefit, each carrying a maximum penalty of seven years imprisonment. A further 25 matters, including 21 similar offences and four counts of agreeing to receive a benefit that was ultimately not paid, were placed on a Form 1 (a statutory mechanism allowing a court to take additional offences into account when sentencing on a principal charge, without recording separate convictions).

  • What sentence was appropriate for nine offences of corruptly receiving a benefit as an agent, having regard to the objective gravity of the conduct?
  • How should the principle of parity apply when co-offenders were sentenced in different courts and had different roles or levels of culpability?
  • Whether concurrent or cumulative sentences were appropriate across nine discrete offences committed on separate occasions over an extended period.
  • Whether the totality principle warranted an aggregate sentence, and if so, what that aggregate should be.
  • Whether any alternative to full-time imprisonment was available given the length of sentence determined.

Decision

The court found that the offences represented a grave breach of trust, compounded by the damage caused to the integrity of harness racing and to the broader betting public. Although no single identifiable victim could be named, the court observed that bettors who placed money on races believing the outcomes were fair were harmed by the scheme. General deterrence was identified as a paramount sentencing consideration given the clear connection between corrupt conduct and the betting industry.

The court considered several mitigating factors. The offender pleaded guilty at the earliest opportunity, attracting a 25 per cent discount. He was of prior good character, had no criminal history, and was genuinely remorseful. The court also gave weight to serious trauma the offender suffered as a victim of criminal conduct during his schooling, which had lasting psychological effects. However, the court noted that those personal circumstances could not override the objective gravity of conduct involving 34 separate criminal acts over 18 months.

On the question of parity, the court compared the sentence with that imposed on a co-offending trainer, Michael Russo. The court found that the offender's conduct was objectively more culpable than Russo's because, as a steward, he held a position of trust that he directly breached. Russo had also been sentenced for fewer offences. The court declined to impose concurrent sentences across the nine counts, rejecting the submission that further offences after the first could effectively be treated as without additional consequence. The totality principle was nonetheless applied through the mechanism of an aggregate sentence.

The court determined that the sentence length precluded any alternative to full-time custody, such as a suspended sentence or intensive corrections order.

Orders Made

  • An aggregate sentence of three years imprisonment was imposed, with a non-parole period of 18 months.
  • The offender was ordered to be released to parole on 20 December 2014.
  • Indicative sentences: two years on the principal matter (taking the Form 1 into account) and 18 months on each of the remaining eight matters.

Key Takeaways

  • A steward who accepts bribes to suppress drug testing occupies a position of trust, and that breach of trust is treated as a significant aggravating factor that distinguishes such conduct from that of co-offending trainers who paid the bribes.
  • General deterrence carries particular weight in sentencing for corruption offences connected to the betting industry, given the capacity for substantial financial gain and the diffuse harm caused to the betting public.
  • The District Court rejected concurrent sentencing for 34 separate acts of bribery, holding that each further offence warranted additional punishment, while applying the totality principle through an aggregate sentence to avoid a crushing overall term.
  • Prior good character receives limited weight where the offending was sustained over 18 months and involved repeated criminal acts, even if each individual transaction involved relatively modest sums.
  • The parity principle, which requires that co-offenders not have a justifiable sense of grievance when comparing sentences, operates across courts but requires careful adjustment where offenders had different roles, different levels of culpability, or different amounts of material before the sentencing court.

Legislation and Cases Referenced

Legislation:
- The offence charged carries a maximum penalty of seven years imprisonment (the specific statutory provision is not cited in the judgment).

Cases:
- The court referred to an unreported Court of Criminal Appeal decision concerning corruption in the greyhound racing industry (not specifically named in the judgment).
- The sentence imposed on co-offender Michael Russo (referenced by name only, no citation provided).