R v Grossi [2008] VSCA 51

R v Grossi [2008] VSCA 51 - VSCA 2008 case summary — Zoe

[11]

6A Application of Part

This Part applies to a court in sentencing -

(a) a serious sexual offender for a sexual offence or a violent offence;

(b) a serious violent offender for a serious violent offence;

(c) a serious drug offender for a drug offence;

(d) a serious arson offender for an arson offence.

6B Definitions for purposes of this Part

(1) In this Part -

arson offence means an offence to which clause 5 of Schedule 1 applies;

drug offence means an offence to which clause 4 of Schedule 1 applies;

serious violent offence means an offence to which clause 3 of Schedule 1 applies;

sexual offence means an offence to which clause 1 of Schedule 1 applies;

violent offence means an offence to which clause 2 of Schedule 1 applies.

(2) In this Part -

serious arson offender means an offender (other than a young offender) who has been convicted of an arson offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre;

serious drug offender means an offender (other than a young offender) who has been convicted of a drug offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre;

serious sexual offender means an offender (other than a young offender) -

(a) who has been convicted of 2 or more sexual offences for each of which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre; or

(b) who has been convicted of at least one sexual offence and at least one violent offence arising out of the one course of conduct for each of which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre;

serious violent offender means an offender (other than a young offender) who has been convicted of a serious violent offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre.

(3) In this Part -

relevant offence, in relation to a serious offender, means -

(a) an arson offence in the case of a serious arson offender;

(b) a drug offence in the case of a serious drug offender;

(c) a sexual offence or a violent offence in the case of a serious

sexual offender;

(d) a serious violent offence in the case of a serious violent

offender;

serious offender means -

(a) serious arson offender; or

(b) serious drug offender; or

(c) serious sexual offender; or

(d) serious violent offender.

[68]

In my view, his Honour was correct to so regard the matter of "gambling addiction". It is apparent from the words which he used that he did regard the addiction to gambling as a mitigating factor "to some extent" but that it could not loom large in the sentence to be imposed because of the very grave nature of the offending for which the applicant fell to be punished.

Whether or not an addiction to gambling can mitigate a sentence by reflecting upon the offender's "moral culpability" and the aspect of general deterrence will, as it seems to me, very much depend upon the nature of the crime and the circumstances of the offending. For my own part, the concept that an appropriate sentence for widespread heroin trafficking should be moderated by the prisoner's gambling addiction is not one which should loom large in the exercise of the Judge's discretion. It may be that crimes of dishonesty precipitated by gambling addiction will attract a different view (see Novak); although the Court of Criminal Appeal in this State rejected the idea that Novak should become authority for the proposition that a gambling addiction reduced the relative importance of the element of general deterrence even in crimes of dishonesty. In R v Martin Southwell, J. said (257):

"As it seems to me there is no logical distinction to be drawn, so far as evidence of addiction is concerned, between the commission of an armed robbery to obtain funds to feed on the one hand an addiction to heroin and on the other an addiction to gambling. The same can be said where the offence is not that of armed robbery but a theft in breach of trust. In the latter type of case at least it would, in my opinion, be an unusual case where evidence of addiction to gambling will significantly reduce the importance of the element of general deterrence."

Similar views have been adopted by this Court in the cases of R v Chamberlain; Limb; Dawsan and Pascoe. In the case of R v Dawsan, I said, with the concurrence of Brooking JA and Ashley AJA:

"In my view, it will be a rare case where a court will find that a person's gambling habit will be available to that person for the purposes of mitigating the sentence which would otherwise be appropriate."

It follows that in my view no error has been disclosed on the part of the judge in failing to give adequate weight in mitigation of sentence on account of the applicant's addiction to gambling**.[48]**

[74]

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'.[67] 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.[68] 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.[69] 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.

[77]

58 Counsel thus sought to mount the argument for mitigation of sentence upon additional personal factors. He relied upon a compelling body of evidence, tendered at the time of the plea, that the appellant suffered from a major depressive illness.[70] This was a mitigating factor which was properly to be taken into account. In addition the appellant also suffered from an irritable bowel syndrome and Crohn's disease. The latter illness had required her hospitalisation on two occasions in April 2007 and again in August 2007. On the appeal it was accepted that the appellant's illnesses had made prison more burdensome for her as difficulties in dietary management within the prison system and stress are factors which aggravate this condition. A report from the appellant's gastroenterologist that was tendered on the appeal states that management of the disease is important to minimise the impact of the disease and to decrease the risk of complication. It was reported that management needed to take into account short term goals as well as being aware of long-term complications and this often leads to a difficult balancing of therapies, made even more difficult within a prison setting. The clinical manifestations of the disease which were described obviously make incarceration for the appellant more onerous. It was noted that the appellant also suffers from back and proximal joint pain and peripheral arthritis which is a common extra-intestinal manifestation of Crohn's disease. The disease had been more active since the appellant's incarceration and the gastroenterologist opined that that may relate to her current stressful situation. The appellant also suffered another complication of Crohn's disease in that she had developed lactose and fructose malabsorption which requires a special diet which, when unsatisfied, results in an exacerbation of symptoms of the disease and increases vitamin and mineral malabsorption. Counsel for the respondent did not dispute that imprisonment will constitute a greater burden on the appellant by reason of her state of health.[71] A similar conclusion was reached in R v Orbach.[72]

[104]

The second basis upon which it was contended that his Honour fell into error with respect to the operation of Part 2B related to the manner in which the provisions would operate.

Counsel for the appellant submitted that it was only after the commission of a third qualifying offence and not upon its commission that an offender would be liable to the increased maximum penalty.

In support of this argument, reliance was placed upon a passage in the Explanatory Memorandum of the Confiscation Bill (1997), in which the relevant provisions were contained, when it was introduced before Parliament. It reads:

"Clause 148 provides a new maximum sentence for a person who is found to be a 'continuing criminal enterprise offender'. A continuing criminal enterprise offender is a person who commits a third or subsequent continuing criminal enterprise offence within ten years of having been convicted of at least two other continuing criminal enterprise offences. The offences which may constitute a continuing criminal enterprise offence are listed in clause 149. If a person is being sentenced in relation to a continuing criminal enterprise offence and that person is at that time a continuing criminal enterprise offender, the maximum term of imprisonment which may be imposed in relation to a continuing criminal enterprise offence is two times the length of the maximum term prescribed for the offence (for example, of theft) or 25 years, whichever is the lesser."[95]

In my opinion, the Explanatory Memorandum provides little assistance to the appellant and the contention can be dealt with very briefly. The legislation makes it clear that a person is designated as a continuing criminal enterprise offender upon conviction for a third relevant offence. When subsequently sentenced for that offence, he or she is clearly at that time within the category. Again there is no reason in principle nor is there any justification as a matter of statutory interpretation for not attributing to the words of the provision this obvious meaning and effect.[96]

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