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Thursday, November 28, 2013

Guidelines needed on gambling addictions

Guidelines needed on gambling addictions

November 28, 2013

Tom McCarthy

Over the past two decades, the level of gambling activity in Victoria has experienced a sharp and sustained rise, largely due to a relaxing of the regulatory environment, and aided by advances in gambling technologies. Unsurprisingly, this rapid evolution continues to bring novel challenges for various facets of our community, not least our justice system.

More gambling is leading to more problem gambling and more problem gambling means more people are resorting to fraud and other theft crimes to facilitate addictions. Criminal courts are increasingly being called upon to adjudicate gambling-related incidents, using a legislative framework that hasn't been totally updated to deal with the new gambling landscape.

An inspection of the recent Victorian case law suggests that the courts are finding one task particularly troubling: deciding whether or not a gambling addiction (as a motivating factor for offending) warrants a more lenient sentence. Generally, the courts have shown a reluctance to acknowledge problem gambling as a cause for a reduction in sentencing. However, gambling addiction often exists in and may even be a manifestation of a matrix of personal hardship and/or mental illness - factors that are considered in sentencing.

To deal with this conundrum the courts appear to have created an exception to the general position, whereby a reduction in sentencing is permitted if the offender's gambling addiction is so intertwined with their existing mental illness that it is considered inseparable. Unfortunately, this approach requires a level of distinction that is highly subjective - an unenviable characteristic of any judicial exercise.

A comparative look at two recent cases - both of which involved millions of dollars of gambling-motivated fraud - demonstrates the contentious nature of the current approach. The judge in one case was willing to accept that the offender's gambling addiction was sufficiently tied up in her ''major depressive order'' to warrant a sentence reduction. While in the other case, the presiding judge refused to acknowledge any linkage between a comparable gambling addiction, and the offender's ''dissociative identity (mental) disorder''.

Despite the inherent difficulty, one can appreciate why the courts are engaging in this judicial contortion. To absolutely deny gambling addiction as a cause for leaner sentencing could see otherwise good people encounter the full wrath of the law. On the other hand, with problem gambling becoming so prominent, the last thing the courts want to do is appear weak on the issue by routinely allowing sentence reductions.

As it stands, the situation is untenable, and unfair on an ill-equipped judiciary.

The state government, as the main benefactor of the gambling industry (relying on it for approximately 12 per cent of its budgetary revenue), cannot shirk its responsibility to provide a legal and regulatory framework capable of dealing with gambling-related crime. It must resolve this problem by formulating an explicit guide to sentencing where gambling addiction is a factor. The government should also engage in a constructive conversation with the community to ascertain its position on the matter.

Tom McCarthy is a business adviser and former commercial lawyer.

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