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CRIMINAL JURISDICTION
CR
DIRECTOR OF PUBLIC PROSECUTIONSv
CHRISTINE GILLIGAN
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JUDGE: / HIS HONOUR JUDGE MULLALYWHERE HELD: / Geelong
DATE OF HEARING:
DATE OF SENTENCE: / 7 November 2014
CASE MAY BE CITED AS: / DPP v Gilligan
MEDIUM NEUTRAL CITATION: / [2014] VCC
REASONS FOR SENTENCE
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APPEARANCES: / Counsel / SolicitorsFor the Director of Public Prosecutions / Mr M. Regan / Office of Public Prosecutions
For the Offender / Ms J. Dixon QC / Galbally & O'Bryan
VICTORIAN GOVERNMENT REPORTING SERVICE
7/436 Lonsdale Street, Melbourne - Telephone 9603 9134
168164
HIS HONOUR:
1 Christine Gilligan, in 1986, after taking some time out of the workforce to raise your children, you secured work as a bookkeeper with a then small family business, Alkon Fasteners.
2 You worked there as a trusted employee for many years sticking with the company through difficult times and continuing on after the firm was taken over by a larger company.
3 You remained as an employee until August of 2012, when you confessed to your shocked employer that you had been stealing money from the business for a period of four years. The total you stole was large, $637,192.70.
4 You perpetrated those crimes by writing cheques for less than $5,000 and putting them into your accounts or using them to pay your expenses or debts. In some instances you took cash and then used cheques to make up for the cash taken.
5 You knew that any cheque above $5,000 required another signature, thus by keeping it under $5,000 you were able to exploit the company's systems and remain undetected for four years. Often there were more than one transaction a day and, on some occasions, three in a day.
6 As can be seen from the charges and the schedules attached to the indictment, the offending grew in regularity and in the total amounts stolen year by year until the final year and a bit, leading up to when you confessed in August 2012.
7 It is plain that the breach of trust here was comprehensive. The amounts involved are large. The period of offending is lengthy, however, in your case, unlike many others, your offending came to an end because you confessed rather than being discovered. That is very much to your credit.
8 To fully appreciates the circumstances of your confessing to your crimes and, indeed, to fully appreciate why you committed these crimes, I need to deal with important matters in your background.
9 You were raised in a large family. You were the youngest of eight. Indeed, four years younger than your next sibling. Your parents were hardworking, however, your father was volatile. In the end there were aspects of your upbringing that have left a scar on you. I have considered all that was written in the reports tendered on your behalf, including paragraphs 4 to 9 in the report of your psychologist, Ms Ingram.
10 You left school at 15 and worked in a retail store in a car dealership. You married very young at 18, and your eldest daughter was born when you were just 20. Your first marriage ended shortly thereafter. You then went back to work at the Footscray Market, where you met Michael Gilligan. You married him in 1977 and the marriage lasted for 25 years. You had a son and another daughter in that marriage. As I outlined in 1986 you returned to the workforce.
11 Your marriage was all important to you. I heard from a long-term friend of yours who spoke about that matter. All the written evidence and reports also the evidence, the oral evidence of your friends, was that when your marriage ended in 2003, you were devastated and at a loss. However, perhaps as a consequence of the way you were brought up, or maybe as part of your generation, you internalised your feelings of loneliness and despair. You did not want to impose on your own children with their own families and lives, or upon your own sisters, even though you were close to them.
12 Feeling isolated and living alone for the first time in a unit in Whittlesea, you took to drinking too much, but, more destructively, you took to going to the pokies to relieve boredom and be among other people, albeit strangers.
13 Your attendance pokies venues and the time spent there and the money wasted, increased to alarming levels. You were in financial difficulties to the point that you re-financed your unit twice to pay off credit card and other debts. Your emotions were in turmoil as a consequence of traumatic family circumstances.
14 Gambling had you in its grip. Your gambling was destructive and your own assets and finances were exhausted. In these circumstances, you took to stealing your employer's money. That money was poured into these pernicious gambling machines and lost to you, as the wealthy owners of those machines increased their profits.
15 So, yet again the courts are dealing with a middle-aged woman of previous good character, who has ruined her life and created misery for herself and others and, yet again, it is pokie machines at the heart of it all.
16 I am mindful of what was said in our Court of Appeal near on 20 years ago when Justice of Appeal Tadgell said, "It is notorious that the availability of pokie machines as instruments of easily gambling has dramatically increased in this State in the last few years. The nature and full extent of the consequences to the community of that, no doubt, remain to be seen. It would be optimistic, however, in the short-term at least, to say that the courts will not see more and more cases of criminal activity which, to some extent, is associated with, or even a direct product of, poker machine gambling. Some of it, no doubt, will be the result of a pathological and, therefore, an obsessively addictive urge. I would acknowledge that some crimes resulting from that, from what might be called a gambling disease, will need to be dealt with accordingly. It is, however, in my opinion, important the public does not assume that a crime which is, to some extent, generated by a gambling addiction, even if it is pathological, will, on that account, necessarily be immune from punishment by imprisonment."
17 As I hope I have made plain, on any analysis, your offending was serious, but why you did it, raises complex issues to be considered in the sentencing process. There is no issue, gambling is the reason for the thefts. There is no other evidence of luxurious lifestyle, quite the contrary, and you are left now with nothing.
18 The fact that the thefts were to fund gambling ordinarily provides no excuse. However, if the stealing to gamble arises it was a consequence of the accused suffering a recognised mental illness, such as pathological gambling addiction, then attention must be more acutely directed at whether moral culpability is, to a degree, reduced.
19 The key task of a sentencing judge is a rigorous analysis of the expert evidence led to establish that an accused indeed suffers from an addiction to using poker machines.
20 It seems to me in some or, perhaps more accurately, rare circumstances, that if the evidence of a pathological gambling addiction, and any other connected mental illness if of a kind and there is a causal connection to the offending, this can allow for some moderation to moral culpability.
21 In those circumstances then a sentencing judge has the discretion within the sentencing synthesis to reduce the impact of denunciation and thus punishment by reason of an accused's moral culpability being somewhat lower.
22 In your case, Ms Gilligan, I have considered very carefully the exceptionally helpful evidence, both oral and written, of your treating psychiatrist, Dr James Lay. He is an expert in the field of pathological gambling addiction. He was in no doubt that you were pathologically addicted to gambling. He considers you are much improved but advises that, by its nature, the condition is prone to relapse and then remission. He said that it was not surprising that subsequent to your arrest, you have faltered twice and gambled.
23 He explained the contextual circumstances of those relapses. Tellingly, he said that evidence of some relapse is an important part of being confident that his diagnosis of pathological gambling addiction was accurate.
24 It is to be noted that your confession followed you getting to that dark psychological place where you made a serious attempt on your life, with the clear intent to die. You were found by your daughters and hospitalised. Thereafter, your doctor directed you to important psychiatric and psychological treatment. You were medicated for what is now considered an untreated depression arising from the end of your marriage and other traumas that loomed up at around that time.
25 This fact of your attempt on your own life cannot be overlooked in my assessment of your mental health.
26 Returning to Dr Lay's evidence; he carefully articulated how your conduct, symptoms and presentation satisfied the criteria for a diagnosis of pathological gambling addiction.
27 I am satisfied to the requisite standard and, indeed, beyond that, that you suffered from pathological gambling addiction at the time of your offending. This mental illness was itself bound up in your longstanding depression. I am, in this case, satisfied there is a realistic causal connection with your impaired mental functioning and your offending.
28 Notwithstanding the length of your offending and the repeated dishonesty involved, I am prepared to moderate the weight to be given to denunciation by reason of finding your moral culpability is, to a modest degree, less, as a consequence of your impaired mental function. That is, your pathological gambling addiction and your connected depression.
29 However, by appropriately moderating your punishment by reason of your mental illness, I do not suggest anything other than your crimes remain serious and your conduct shameful.
30 I think in the end your counsel did not press that there be any other amelioration of your penalty by reason of your mental illness, save that you will do gaol harder as you suffer depression. I have taken that into account in your favour.
31 So it is clear the very weighty matter of general deterrence has not been moderated in your case. In my view, the nature of your impaired mental functioning does not call for any moderation of general deterrence. The community would not be uncomfortable that you are used as an example to deter others who may be minded to exploit systems at their workplace, abuse the trust of their employers and fleece them of their money.
32 There are other important matters in mitigation. You pleaded guilty early and your co-operation has been comprehensive. This means a lesser sentence and potentially a sentence of a different kind can be imposed than would have been the case, had this matter gone to trial.
33 There is more to this than merely saving the precious public resources. Your voluntary confession after the serious attempt on your life, is revealing of your deep shame. You have continued to express your remorse and shame to your friends, your family, and to treating clinicians. I have no doubt your remorse is genuine. You are contrite. This is the very sentiment the community wants to see if an offender is going to be given leniency and, indeed, a second chance.
34 You have gathered all your remaining resources and paid $20,000 or thereabouts in restitution. I have factored that into the equation in your favour. The significant delay in this matter I have taken into account in your favour. These things have been hanging over your head for a long time. You have set about appropriate and dedicated rehabilitation in that time. All this is to your credit.
35 Your own material circumstances are that at 62 you have lost everything and have little or nothing to fall back on for your retirement years. You have likely lost your profession as a bookkeeper.
36 You have no prior convictions. You are entitled to call on your prior good character in asking for a merciful sentence. I am also mindful, however, that in these types of offences, lack of prior convictions may be of less weight because it is so often that people of previous good character commit these types of offences and it is also your good character that was the foundation for the trust that people had in you which, of course, allowed you to commit the crimes, and as I have said, you comprehensively breached that trust.
37 Your rehabilitation is important, but not to be over-emphasised. Given you have solid support from your family and friends and you have a very comprehensive treatment regime in place at present, and one likely to be available in the future, I consider that you are highly likely to permanently reform.
38 This will almost certainly be the only time you will be before a court and, no doubt, the harsh lesson, the shame, and the punishment, will operate to ensure that you never act dishonestly again.
39 Your counsel, in a thorough written and oral plea conceded the grim inevitability that you must serve some time in prison. Indeed, you asked for your bail to be revoked at the end of the plea some 35 days ago. Your counsel argued that the new sentencing regime of a longer term of imprisonment, including parole that was added to by a targeted community-corrections order, was most appropriate to your circumstances.
40 I had you assessed for a community-corrections order and, not surprisingly, you are suitable.