Trust monies tempt gamblers. Sometimes solicitors succumb. Consider R v. Gabriel W [2006] VSC 397, where $1 million disappeared from a solicitor’s trust account. Justice Teague locked him up, and said in the process:
’16 I have read closely the reports of two psychologists who have examined you. They are Mr Beaton who saw you in 1998, and Mr Newton who saw you in 2006. You told Mr Beaton that you knew that you had to permanently stop the gambling. You told Mr Newton that your gambling did stop in 2001. You also told Mr Newton that all your offences arose out of gambling. You gambled away money belonging to others. More of such money was paid out to try to extricate yourself from the plight in which the gambling had left you. Your addiction to gambling does help to explain why you so wantonly and brazenly disregarded the rights of your clients and of the other victims whom you misled and deceived. It cannot be seen to excuse what you did. At most it can be seen to mildly reduce the importance of the element of general deterrence.’
‘Quis custodiet ipsos custodes?’, the excellent new Melbourne law blog about the criminal law, has a post about R v Grossi [2008] VSCA 51, in which Justice of Appeal Robert Redlich told us what to make of gambling addiction as a sentencing consideration. I will not reproduce the post — go read it yourself — but I will share with you his Honour’s lowdown (not great news for gambler crims):
‘[56] Properly analysed, there is in my view no tension between the principle explained in Verdins and those authorities which have dealt with gambling addiction. Evidence may establish that an offender suffers from an impulse control disorder in the form of pathological gambling listed in DSM-IV-TR, the essential feature of which is ‘persistent and recurrent maladaptive gambling behaviour that disrupts personal family or vocational pursuits’. The relevance of the disorder to the sentence to be imposed, is then to be assessed in accordance with the principles restated in Verdins. That assessment will generally lead to the conclusion that the presence of a gambling addiction should not, on that ground alone, result in any appreciable moderation of the sentence. There are a number of reasons why that will be so.
Firstly in most cases, the nature and severity of the symptoms of the disorder, considered in conjunction with the type and circumstances of the offending, will not warrant a reduction in moral culpability or any moderation of general deterrence.
Secondly, it will frequently be the case that crimes associated with gambling addiction will have been repeated and extended over a protracted period. The long term chase to recoup losses is characteristic of those with such a disorder.
Thirdly, in cases involving dishonesty, the crimes will commonly be sophisticated, devious, and the result of careful planning.
Fourthly, the gravity of such offences, if there is a breach of trust or confidence, will commonly attract an increased penalty making such offences more appropriate vehicles for general deterrence.
Fifthly, when offences of this nature are committed over extended periods, the prominent hypothesis will be that the offender has had a degree of choice which they have continued to exercise as to how they finance their addiction. This has often provided a reason for a general reluctance to temper the weight given to general deterrence or to reduce moral culpability because an offender has found it difficult to control their gambling obsession.
Finally, and perhaps most importantly, the nexus of the addiction to the crime will often be unsubstantiated. The disorder will not generally be directly connected to the commission of the crime, the addiction providing only a motive and explanation for its commission. Hence, by contrast to a mental condition that impairs an offender’s judgment at the time of the offence, such addiction will generally be viewed as only indirectly responsible for the offending conduct.’
