SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / R v Joshua Lyons
Citation: / [2014] ACTSC 286
Hearing Date(s): / 24 July 2014
Decision Date: / 24 July 2014
Before: / Refshauge J
Decision: / HH makes the following orders:
1. Joshua Lyons be convicted theft of $8,770 between 21 and 27October 2013;
2. Joshua Lyons be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years with the following conditions:
(a)  A probation condition that he be under the supervision of the Director-General or her delegate for two years or such lesser period as the person delegated to supervise him deems appropriate, and obey all reasonable directions of the person delegated to supervise him, including those needed to address his unemployment and also especially as to treatment and counselling for problematic gambling, alcohol abuse and mental health issues; and
(b)  A condition that he perform one hundred hours of community service work within eighteen months from today. I recommend that, if appropriate and possible, the community service work be constituted by his current voluntary work at the Salvation Army Fyshwick store.
3. I direct that Joshua Lyons report to the ACT Community Corrections officers at Eclipse House, London Circuit, Canberra City on or before the 28July 2014.
4. I order that Joshua Lyons pay the sum of $8,770 to On Shore Sports Group Pty Ltd by instalments of not less than $50 per month for six months, $100 per month for the next twelve months and then $250 per month thereafter.
Category: / Principal Judgment
Catchwords: / CRIMINAL LAW – Judgment and Punishment – Sentencing – Theft
Legislation Cited: / Crimes (Sentence Administration) Act 2005 (ACT)
Criminal Code 2002 (ACT), s 308
Cases Cited: / Hogan v Hinch (2011) 243 CLR 506
R v Cartright (1989) 17 NSWLR 243
R v Ellis (1986) 6 NSWLR 603
R v Oliver (1980) 7 A Crim R 170
R v Sullivan (2001) 41 MVR 250
Parties: / The Queen (Crown)
Joshua Lyons (Offender)
Representation: / Counsel
Mr C Wanigaratne (Crown)
Mr M O’Brien (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid (ACT) (Offender)
File Number(s): / SCC 33 of 2014

Refshauge J:

1.  The widespread use of illicit drugs often leading to addiction which of itself leads to criminality bringing addicts into the criminal justice system often masks the fact that other addictions, particularly to gambling, can lead to the same outcomes.

2.  Chronic gambling addict Joshua Paul Lyons has pleaded guilty to an offence of theft when he stole $8,770 from his employer.

3.  Theft is an office contrary to s 308 of the Criminal Code 2002 (ACT) attracting a maximum penalty of 1,000 penalty units (that is a fine of $140,000, or ten years’ imprisonment, or both).

The Facts

4.  MrLyons was employed with a business which contracted independent contractors to sell and promote sporting organisations.

5.  He was responsible for selling and promoting its business but was also given responsibility for banking the daily takings. This required him to bank the cash received and staple the receipt to the takings documents which ultimately were sent to Newcastle for filing. In the week 26October 2013 he took the daily takings on each of Tuesday, Thursday, Friday and Saturday and instead of banking used them to meet his gambling addiction by playing poker machines with them. He told me in evidence that by the Sunday he had reduced the funds in his possession to about $40.

6.  He realised that there was no future in what he was doing and he posted some messages on his Facebook account suggesting that he would self harm or worse. Using the $40, however, he then went on Sunday 27October 2013 to Woden Police Station where he asked the police officers to arrest because of the gambling and theft. They declined to do so but, recognising his condition and apparently having received expressions of concern from people who had read his Facebook messages, referred him to the psychiatric unit at The Canberra Hospital, where he was admitted.

7.  From there he was referred to Canberra Recovery Services and was admitted to their residential rehabilitation program, where he has been involved since that time. It appears that the Manager of his employer, apparently because he did not appear for work on Monday, arranged for another staff member to undertake the weekend banking and it was discovered that the funds had gone and there were no receipts available. MrLyons did later telephone his Manager on the Monday and disclosed to him the whole of the offence though after his Manager had discovered it.

8.  By summons dated 8January 2014, MrLyons was required to appear in the Magistrates Court on 24February 2014 for the offence of theft of the funds from his employer. He was charged, pleaded guilty and was committed to this Court for sentence before me he has adhered to his plea.

Subjective Circumstances

9.  MrLyons is a twenty-six year old man who comes from a family where there is a history of gambling addiction. He has a close relationship with his father but a poor relationship with his mother, both of whom reside in Sydney. His mother is a problem gambler and exposed him to problematic gambling and alcohol misuse in his childhood.

10.  He has one older brother but has a poor relationship with him as a result of his gambling and alcohol use.

11.  MrLyons first drank alcohol when he was fifteen and his consumption increased from eight standard drinks weekly to daily use by the age of eighteen and continued until he commenced residential rehabilitation in October 2013. He relapsed in April 2014, but has continued to abstain since then and attends Alcoholics Anonymous four times a week.

12.  There are some suggestions of poly-substance abuse from the age of twenty years but this had apparently ceased by the age of twenty-five.

13.  Apart from the reference to his gambling, I had no specific information as to when that started but clearly it has been going on for some years.

14.  MrLyons has been in treatment at the residential rehabilitation for the Canberra Recovery Services and completed ten months of their Program. He has also been in treatment with a clinical psychologist through that Program for his gambling addiction and for depression and body dysmorphia. He is currently medicated for those conditions.

15.  While he has been unemployed since 2013, he has been previously employed in a number of positions, but the last two positions ended as a result of theft of funds from his employers to feed his gambling habit.

16.  As mentioned above MrLyons entered the residential rehabilitation program of Canberra Recovery Services which he did on 31October 2013. He has, as I have mentioned, completed the Program, now moving into a halfway house in preparation for moving back into the community. He expects to do so shortly, gaining housing from ACT Community Housing and also he hopes regaining employment.

17.  In his work in the Program his recovery included recovery based meetings of Gamblers Anonymous and Alcoholics Anonymous, fortnightly ninety minute meetings with a financial counsellor and meetings with his clinical psychologist as well as other matters in the Program. I had a report from his clinical psychologist who opined that he “is making consistent and steady therapeutic gains”. She added that he “has learnt that his gambling addiction is a persistent, chronic and unhelpful condition that will always have the potential to resurface when he encounters life’s stressors”.

18.  MrLyons gave evidence before me and made it clear that he understood that he now has a lifelong challenge and recognises that he needs to learn and practice and remain adherent to constructive strategies which will deflect and eliminate his gambling urge. His psychologist referred to on occasion where his discipline to maintain these strategies was recently tested when he experienced the death of a friend and feelings of rejection by his family. She reported that MrLyons did not relapse during these sad and stressful periods which is clearly a mark of the success he has made of his rehabilitative efforts. She also recounted his genuine remorse which was demonstrated by his disclosure of the offence.

19.  A reparation order for $8,770 has been sought by his employer.

20.  Since he has completed his residential rehabilitation, MrLyons has been volunteering in the Salvation Army’s Fyshwick store. The store manager says of his work that he

has shown to be generous with his time and goes out of his way to be of help to myself and the staff here contributing on average 8-9 hours voluntary work per week. I find him to be reliable and committed when a task is set for him to complete. He has been a welcome addition in my store and I have come to rely on his work ethic to help get my work load completed. I can say that in the time that I have known MrLyons he has proved himself to be trustworthy and dependable.

21.  This is significant when he is working in a retail environment where the possibility of access to money is not a remote one.

22.  MrLyons has a criminal record. He has a conviction for an offence of using violence to cause fear, for which he was fined $1,000. Of more concern is that he has a conviction for a similar offence to that for which he now stands to be sentenced, namely of stealing property being $1,959.95 as a servant from his employer, for which he was put on a two year supervision order.

23.  That offence was committed on 6June 2013, just under five months before the offence which I am now sentencing Mr Lyons for. On the other hand his disclosure does tend to address that he clearly recognised that he was unable to control his gambling addiction without some external help when he repeated the offence, being the offence for which he now has to be punished.

Consideration

24.  The offence is a serious one. The maximum penalties show that. See R v Oliver (1980) 7 A Crim R 170 at 178.

25.  In addition, however, it involves a breach of trust which was reposed in him by his employer. It happened over some days with repeated takings, the total taken was a relatively large sum.

26.  He had, as I have noted above (at [22]), a prior conviction for effectively the same offence. The community expects the courts to take their powers seriously to ensure that not only is it protected from such predations but there is appropriate punishment for such crimes.

27.  Nevertheless, the rehabilitation that MrLyons has completed is very relevant. As French CJ said in Hogan v Hinch (2011) 243 CLR 506 at 537; [32]

Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.

28.  The rehabilitation, being residential rehabilitation, also entitles me to recognise the period in which MrLyons’ liberty has been constrained during the period in which he was in residence at the Canberra Recovery Services. This is consistent with the principles set out in R v Sullivan (2001) 41 MVR 250 and R v Cartright (1989) 17 NSWLR 243.

29.  The voluntary disclosure of his offending was also a very relevant factor, as Street CJ said in R v Ellis (1986) 6 NSWLR 603 at 604

When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both a fact of an offence having been committed and confession of guilt of that offence.

The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities as well as guilt being established against the person concerned.

30.  Although MrLyons’ employer did discover the theft before MrLyons spoke to him, MrLyons had disclosed that matter to the police. His absence from work, which was a consequence of his disclosure to the police, also prevented him covering up the theft. On the evidence before me, it is unlikely to have been discovered, at least, in the near future until his disclosure which did inevitably lead to the discovery of the offence.

31.  In my view this merits quite significant leniency. Ordinarily, an offence such as this would inevitably lead to a term of imprisonment, even if some or all of it was suspended.

32.  In this case, the leniency available as a result of his voluntary disclosure and the successful period of rehabilitation including a residential period can be justification for a greater level of leniency as was properly conceded by the Crown prosecutor.

33.  I note that MrLyons has been assessed as suitable for a community service work condition to a good behaviour order and that there is work available. I note too that he has been assessed as suitable to serve a term of imprisonment by periodic detention.