Shortland v R [2024] NSWCCA 174
Shortland v R [2024] NSWCCA 174 · Read the judgment on AustLII
Catchwords: Sentencing – gambling – advice on adjournments
In this decision the Court of Criminal Appeal has held that a gambling disorder – as distinct from merely an undiagnosed gambling problem – may be used in mitigation in appropriate cases. The Court also implied that, where legal practitioners are advising an adjournment of a sentencing hearing, there may be an obligation to give (or repeat) clear advice about the likely sentence to be imposed.
The applicant pleaded guilty to three charges of dishonestly obtaining a financial advantage by deception and one charge of threatening a person with intent to influence a witness. The applicant had a gambling problem – he had spent over $640,000 at one RSL club, and over $1million at a casino over the past several years – and represented to friends that he could invest their money when he was doing no such thing. In all he obtained over $1million from three (presumably former) friends. In the days before his committal hearing, he texted one of the victims threatening him with compromising photos and pressuring the friend not to pursue his evidence. At the time of his plea, the Crown was apparently anticipating that the applicant might spend 2 years in gaol as a non-parole period, and this was relayed to the applicant by his legal representatives – although they did not share such a view and expected a much higher sentence.
In the lead up to sentence, an extension of the grant of Legal Aid was granted for a psychological report, but there was insufficient time and availability for a psychologist to do a report before the date which had been set for sentence. The applicant’s legal representatives advised him to instruct them to seek an adjournment. The evidence was held to be unclear about whether he was reminded of the opinion of his legal representatives that the Crown’s estimate had been inadequate. Having already spent a significant period in custody, feeling stressed about the prospect of a lengthy adjournment, and (crucially) relying in no small part on the inaccurate information he had previously received about the likely sentence, the applicant instructed his lawyers not to seek an adjournment. In the event, far from receiving the 2 years he had been expecting, he was sentenced to 8 years and 6 months, with a non-parole period of 6 years and 6 months. On appeal there was a report from a forensic psychologist which opined that the applicant’s presentation was consistent with diagnoses of bipolar affective disorder, substance use disorder and, crucially, gambling disorder.
The lead judgment was provided by Stern JA, allowing the appeal. Cavanagh J, in his concurring judgment, and with the explicit agreement of Sweeney J on this next point, observed that a question arises whether the fact that offending behaviour arose out of a gambling addiction might be relevant to the exercise of the sentencing discretion, as opposed to merely providing an explanation for the offending conduct.
In general, whilst a gambling addiction might provide an explanation, it cannot be viewed as a mitigating circumstance to reduce the sentence (at [93]). However, the position may be different if it is established that the offender is suffering from a recognised psychological disorder which is causally relevant to the offending (at [96]). In our society, access to gambling has become more pervasive, necessarily leading to more addictive behaviour. Whether an offender’s gambling might be viewed as a psychological condition will of course be a matter for evidence, but a court should not simply reject the existence of such a disorder as having no significance other than as context or background. The existence of such a diagnosis will always be a matter for evidence, and whether it has any impact on the exercise of the sentencing discretion depends on the particular circumstances of the case, the nature and circumstances of the offending, and the nature and circumstances of the gambling and its relationship with the offending (at [98]-[100]). Previous authority does not stand for the proposition that a recognised psychological disorder such as a gambling use disorder can never be taken into account as a mitigating factor in financial crimes (at [101]).
In terms of the adjournment which was not sought, although the circumstances were described by the Court as ‘unusual’, there was nevertheless found to be a practical unfairness to the applicant. The potential significance to the sentencing proceedings of a psychological report, when considered together with the circumstances in which the applicant came to give instructions not to adjourn the proceedings amounted to a miscarriage of justice. This was not so much a forensic decision as a decision taken by the applicant for perceived but erroneous practical reasons, being his belief that he was likely to receive a sentence which would lead to his being released on parole before the matter could come back for sentence. Importantly for practitioners, the Court was not satisfied that the applicant was given any advice in the lead up to sentencing (as distinct from when he pleaded guilty) as to the likely sentence he would receive, or as to the significance of obtaining psychological evidence (at [85]).
It would seem to follow that even if advice has been given at the time that a client is entering a plea, if a client is instructing not to adjourn proceedings despite advice, then the advice about the appropriate sentence needs to be reiterated (and a detailed filenote taken).