As stated above, Ms Todorovic engaged in gambling as a way of controlling her emotional state and coping with personal problems by avoidance. Her gambling was problematic and meditative in nature and reinforced by the emotional relief she would gain from avoiding thinking about her problems. Specifically Ms Todorovic's gambling appears to have reduced her symptoms of anxiety."
52 Armitage DCJ seems to have accepted the substance of these opinions for his Honour said:-
"This is not the sort of matter one sees in the usual case of this type, and there is no doubt in my mind that there is a causal connection between what it is proper to call a significant psychological disorder, diagnosed clinically by Ms Seidler, and the gambling addiction which led to the offending. This is not a case where we are simply dealing with a gambling addiction, which itself may be a psychological diagnosis. It is a case where a psychological condition brought on by quite different psycho-social factors, in particular, an unhappy and violent relationship, at least in the verbal and threatened sense, led to a gambling addiction via conditions of anxiety and depression and possibly attention deficit disorder, though most probably the first two, which in turn led to the gambling addition and in turn led to the offences. That to my mind places it quite outside the general run of offences where one is simply dealing, if I could put it as briefly as that, with a gambling addiction, which itself is a psychological disturbance of some kind, which in turn led to the offending. …
The Crown said that gambling addiction is common in these sorts of cases and of less significance in mitigation, referring to what was said in R v Molesworth [1999] NSWCCA 43, suggesting that in general a gambling addiction is relevant on sentence in that it explains an offender's behaviour but does not significantly mitigate it. I agree with that, but that is a general proposition which is modified in this case, I think, by the fact that the offender's gambling addiction was itself caused by a psychological condition which was in turn caused by a problematic relationship in the way that I have traced."
53 Later, his Honour observed:-
"I have not taken the offender's psychological condition when she offended, and which contributed to her offending, into account to the same degree as I would have done so had it been a frank mental illness such as schizophrenia or bipolar disorder, the latter of which existed in Fell , but it is nevertheless the case that the offender's psychological condition led to her offending in the way I have traced, and that it is properly diagnosed and is a clinical entity according to a psychologist of the qualifications and experience of Ms Seidler, whose opinion I accept unreservedly.
In those circumstances general deterrence is, I think, of less significance in this case, contrary to the Crown's submission, than it would be if the offender were not suffering from any psychological disorder or were suffering from a quasi-psychological disorder, such as gambling addiction, which really is just a diagnosis of offending behaviour based simply on the fact that the behaviour occurred. That is not this case."
54 In substance, the reasoning of Ms Seidler and his Honour was as follows:-
External events (the Respondent's relationship and its incidents) led to a psychological condition.
The Respondent obtained relief from this condition by gambling.
The stealing was a further method of relief (according to Ms Seidler, paragraph 2) or a consequence of the gambling (his Honour).
55 In his Honour's view, because the gambling and stealing were consequences of a condition that could be, or was, characterised as a psychological condition, leniency was attracted.
56 Presumably his Honour was relying on his judicial experience in saying that "This is not the sort of matter one sees in the usual case of this type…" for there was no evidence indicating how usual or unusual it was that gambling addiction leading to crime was the result of conditions that could be described as psychological. However there is a deal of information of the sort to which judges may have regard on sentencing that gambling addiction is not uncommonly the result of psychological conditions - see e.g. Penny Crofts, "Gambling and Criminal Behaviour - An Analysis of Local and District Court Files" (2002) and Alex Blaszczynski "Pathways to Pathological Gambling: Identifying Typologies" (2000) 1 eGambling: The Electronic Journal of Gambling Issues.
57 Furthermore if gambling, as a "way of controlling (an) emotional state and coping with personal problems by avoidance" in circumstances of "mild depression", "negative emotional states" and the consequences of dysfunctional relationships, is to be regarded as a reason for leniency, then why should not many of those who seek to ameliorate or blot out their suffering by resort to drugs and then to crime be treated similarly? After all, experience shows that many drug addicts suffer from Attention Deficit, Bipolar, Borderline Personality or other psychological disorders that are said to be causative of, or contributing factors to, their drug addiction.
58 In R v Henry (1999) 46 NSWLR 346 this Court considered at length and firmly rejected the proposition that, in general, addiction to drugs should be regarded as a mitigating factor. In doing so the Court recognised that there would be cases where the general rule would not apply, for example where the addiction was the result of youth or medical treatment over which the offender had no relevant control but (at p385) it rejected the proposition that a genetic predisposition or a neurobiological or physiological base to an addiction was sufficient to bring an offender within this exception.
59 The Chief Justice, in whose reasons 2 other members of the Court agreed, pointed out (at p 385) that the original decision to experiment with drugs was commonly a matter of a free choice, that the choice was often influenced by a desire for the benefits drug taking was perceived to have, that persistence in addiction rather than seeking assistance was also a matter of choice as was the decision to commit crime in order to fund addiction.
60 There is a clear parallel between the circumstances there under consideration and those here. It is appropriate to note that the Chief Justice also said:-
"There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability that other perceived requirements for money.
Counsel making these submissions was driven to accept the proposition that an addiction to gambling, with its attendant need for money, could similarly be the basis for a claim for mitigation. He went further and indicated that an elevated sex drive which also had a psychological basis, could be a mitigating factor for the commission of a rape or for the conduct of a paedophile. In my opinion all these submissions should be rejected."
61 In the instant case Armitage DCJ remarked that Ms Seidler's finding that the Respondent's psychological condition contributed to her offending "engages, in my view, the principles regarding a somewhat reduced degree of general deterrence being appropriate where offending is connected with a psychological disorder …". So to refer to the principles dealing with mental disorder and general deterrence was to oversimplify and in the oversimplification, err. This is demonstrated by a comparison with what Wood CJ at CL said, with the agreement of the Chief Justice and Newman J, in R v Henry, at [252-255]:-
"Nor am I persuaded of the appropriateness of the suggested analogy between drug addiction and mental abnormality, in respect of which the element of general deterrence is often given less weight…
The relevant principle as stated in R v Letteri by Badgery-Parker J in a passage adopted by Gleeson CJ in R v Engert (at 14) is as follows:-
"… that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.
The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restrains, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.
The case of the drug dependent offender is very different in so far as the community is likely to see such a person as a perfectly appropriate medium to stand as an example to others."
62 In this case there was not one tittle of evidence that the Respondent was less in control of her cognitive faculties or lacked the ability to make reasoned or ordered judgments or that her appreciation of the wrongfulness of her acts or their moral culpability was to any degree impaired. Furthermore, when one has regard to the nature of gambling addiction and to the fact that fraud, involving substantial sums of money, by gambling addicts in positions of trust is not uncommon, they are a perfectly appropriate medium to stand as an example. A progression from gambling affordable sums as an occasional light pastime to addiction involving unaffordable sums rarely happens overnight. It is impossible to believe that most addicts have no warning that gambling is becoming a problem and thus no chance to reflect on and deal with that problem or any underlying causes. It is also important that there be a substantial disincentive to those who, like the Respondent, are tempted to offend again and again, until the amount involved becomes, by the standards of most people and many employers in the community, huge.
63 Nor is there justification for simply treating whatever may be capable of being characterised as a psychological condition as a "mental disorder or severe intellectual handicap" without considering where, on the scale of such things that condition lay. His Honour gave no attention to that question.
64 The Respondent may have been faced with an abusive, aggressive and threatening partner. She had choices how to cope with him. One was to seek counselling as she did in 2003 or more counselling if that then received did not work. Another was to leave him. Instead she chose relief in gambling and, whether as a consequence of that or otherwise, stealing.
65 I am unable to see that the Respondent's psychological condition and its incidents, to the extent that they were revealed in evidence, justified any significant leniency or reduction in the weight to be given to general deterrence.
66 Against this background I turn to the question of what should be the result of this appeal. There is much to be said for the conclusion that this Court should sentence the Respondent to full time custody as Armitage DCJ should have done. In addition to considerations of general deterrence to which I have referred, one of the purposes of sentencing is retribution, the community's entitlement to feel that justice has been done. When comparison is made between, on the one hand, the effective sentence imposed on the Respondent - 2 years periodic detention (which in the way that such sentences are usually administered - see R v Hallacoglu (1992) 29 NSWLR 67; 63 A Crim R 287, means 8 months periodic detention and 16 months community service) and 1 year balance of term (almost certainly on parole) and on the other, effectively stealing week after week for 18 months a sum totalling approximately $171,000, I doubt if anyone would feel that justice had been done. The amount taken is equal to what it takes many people 2 or 3 years to earn and, given the victim employed only 6 staff, can reasonably be inferred to have amounted to a very substantial impost.
67 I am not disposed to regard as of any significant weight the delay that has occurred. The vast bulk of that was due to the Respondent's failure to fully acknowledge her offending as she could have done in later 2004 or early 2005 and later to enable her to better prepare her case in mitigation.
68 On the other hand, Armitage DCJ found that the Respondent has substantially rehabilitated herself between the offending and sentencing. It is clear that she has suffered from a number of health issues in addition to those which are said to have led to her offending. She continues to suffer significantly as Grove J has noted. I have no doubt that prison would add significantly to the impact of her illnesses and that, in turn, some of them would make full time custody more than usually burdensome. In the result, although not without a deal of hesitation, I have reached the conclusion that the order proposed by Grove J should be the result of this appeal.
69 SIMPSON J: I agree with Grove J.