In the matter of an application by Whiley [2004] ACTSC 37 (2 June 2004)

Last Updated: 23 June 2004

IN THE MATTER OF AN APPLICATION BY STEPHEN CLIFTON WHILEY

[2004] ACTSC 37 (2 June 2004)

HOME DETENTION - application to transfer balance of eight month sentence to home detention - theft due to gambling addiction - home detention to address gambling issues.

Rehabilitation of Offenders (Interim) Act 2001, s 6, s 9

Crimes Act 1900, s 341, s 342

Legislation Act 2001, s 142

Debates of the Legislative Assembly for the Australian Capital Territory, 9 August 2001, 2637

No SCC 21 of 2004

No SCC 33 of 2004

Judge: Connolly J

Supreme Court of the ACT

Date: 2 June 2004

IN THE SUPREME COURT OF THE )

) Nos SCC 21 and 33 of 2004

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER of an application by

STEPHEN CLIFTON WHILEY

ORDER

Judge: Connolly J

Date of order: 26 May 2004

Date of judgment: 2 June 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The applicant serve the balance of his sentence by way of home detention in accordance with the proposed plan.

2. At the end of the non-parole period the applicant be released upon entering into a recognizance to be of good behaviour for a period of two years and on condition that he complete the balance of the Bridge program.

1. This is an application for an order to serve the balance of a term of imprisonment by way of home detention. The applicant, Stephen Clifton Whiley, was on 15 April 2004 sentenced to several periods of imprisonment in respect of counts of theft. The effective head sentence for these counts was two years imprisonment, to be released after serving eight months upon entering into a recognizance to be of good behaviour and to accept the supervision of the Director of ACT Corrective Services. Mr Whiley had spent some time in custody prior to the sentencing, and the period of eight months imprisonment was to commence on 25 February 2004.

2. Mr Whiley, through his counsel, made an application on 30 April 2004 to be assessed for his suitability for home detention and, following the receipt of a favourable report, an application was made on 26 May 2004 to serve the balance of the sentence by way of home detention. I made the order and indicated that I would publish reasons for that decision.

The Offences

3. Mr Whiley pleaded guilty to a total of thirteen counts of theft occurring in a period from October 2001 to February 2004. The thefts occurred in the course of Mr Whiley's employment as a financial adviser and property manager. Twelve counts arose during his employment as a financial adviser, and involved him representing to clients that certain fees were payable in respect of the setting up of loans and financial products that were not in fact payable. Clients paid this money, which Mr Whiley diverted to his own use. The total amount of money involved was in the order of $48,807. After these offences were detected, and Mr Whiley indicated an intention to plead guilty, he found employment as a property manager with a real estate firm, and stole $4,656 from that employer. When this was discovered, he appeared again in the Magistrates court, and was remanded in custody.

4. It was common ground in the sentencing proceedings before me that the motive for all the thefts was an addiction to gambling, and that all the stolen funds had been lost by way of gambling on poker machines in Canberra. I had before me at the time of the sentencing a psychological report that stated Mr Whiley met the criteria for pathological gambling, and a pre-sentence report that identified a need for treatment for gambling. Mr Whiley did not have a relevant prior criminal history, and had been in regular employment for many years.

5. Although his counsel at the sentencing proceedings sought a non-custodial sentence, I expressed the view that because these were serious white-collar offences involving a significant breach of trust where both the employers and individual clients lost money, a custodial sentence was appropriate. I said at 3 -

It seems to me that I am constrained by authority, both of the Federal Court, being directly binding on this Court, and of the New South Wales Court of Appeal, and indeed it is a position that is shared at Appellate Court level throughout Australia, to the proposition that serious white collar crime over a period of time, repeated offences of theft or fraud by a person in a position of trust is a matter which the courts must take seriously and which prima facie demands a period of full time custody.

6. I accordingly sentenced Mr Whiley to a period of imprisonment.

The Application

7. On this application, Mr Whiley seeks an order that the balance of his sentence be served by way of home detention. Home detention is a sentencing option provided for by the Rehabilitation of Offenders (Interim) Act 2001 (the Act). Section 6(1) of this Act provides -

A court that has sentenced a person (the offender) to imprisonment for not longer than 18 months for an offence may make a home detention order directing that the sentence, or part of the sentence, for the offence be served by way of home detention.

8. Mr Whiley was sentenced to a term of imprisonment of not longer than 18 months, and the offences for which he was convicted are not amongst the list of offences for which home detention orders are not available pursuant to s 9 of the Act. The Home Detention Assessment dated 18 May 2004 and authored by Mr Wayne Sievers, Manager Home Detention and Operations, and approved by Ms Lea Huber, Manager, Rehabilitation Programs Unit of ACT Corrective Services, assesses Mr Whiley as suitable for home detention and sets out in considerable detail a proposed regime for home detention, to be served while undergoing an intensive program of gambling and alcohol counselling at the Salvation Army's Mancare facility at Fyshwick in the Australian Capital Territory.

9. I will set out the recommendation in full.

Mr Whiley is a 42 years old man who has identified that he needs to put his recent offending behaviour behind him and to take responsibility for his actions as a father and as a member of the community. He understands that he must address his offending behaviour and has spoken positively about his participation in all aspects of the Home Detention program. Mr Whiley would receive intensive support and supervision from the Home Detention Unit as part of his case management plan. It is worthwhile noting that Mr Whiley's immediate family, including his two daughters, reside in Canberra. He states that he has honestly explained his situation to his daughters and they are both supportive and an important element in his prospects for rehabilitation.

To address Mr Whiley's gambling addiction and alcohol abuse he would reside at and participate in the Salvation Army's Mancare facility in Fyshwick. Its Canberra Recovery Service operates a 41- week residential Bridge program for alcohol, drug and gambling addictive behaviours. The Salvation Army's assessment officer has assessed him as suitable for the program.

Regular alcohol and drug testing by the Home Detention Unit would also provide incentive for Mr Whiley to maintain sobriety for the duration of a Home Detention Order. Mr Whiley would participate in a mix of work and rehabilitation programs at Mancare, and undertake vocational training as appropriate. Restrictions on Mr Whiley's associations and encouragement to engage in approved activities with his family and within the community should encourage pro-social links to reduce his risk of further offending.

Mr Whiley has been assessed as suitable for Home Detention in accordance with section 11 of the Rehabilitation of Offenders (Interim) Act 2001. The following additional conditions would seem appropriate:

* That Mr Whiley reside at the Salvation Army's Mancare facility and that he participate in its programs

* That Mr Whiley be prevented from entering any facility where gambling activities take place.

10. The author of the assessment, Mr Sievers, was called to read his report in open court and was questioned about the proposal. He said that he had worked closely with the Salvation Army to develop a suitable program for Mr Whiley, and had tested the home detention monitoring equipment to ensure that it would work at the Mancare facility. He explained that the ACT home detention program requires participants to wear an electronic device, either by way of a bracelet or ankle strap, which emits a signal that is detected by a monitoring device attached to either a phone line or a mobile phone. If the person goes a certain distance from the monitoring unit (and for sensible security reasons Mr Sievers asked that the precise distance not be divulged in open court), the monitoring device will alert ACT Corrective Services that the person has left the premises. Approval can be given, in advance, for necessary travel for work or other approved reasons.

11. Mr Sievers and Ms Huber both gave evidence that a number of home detention orders have been made under the Act where the person is to reside in some form of supported accommodation, either by way of a rehabilitation centre or other facility. It seems to me that there is no reason under the Act why "home detention" must be read down to only apply to a person living in a standard residential house or flat. Indeed, the availability of close supervision and support in the plan here proposed would, it seems to me, be more beneficial to both Mr Whiley and the community, than simply requiring him to sit at home for a period of months.

12. The Bridge program, designed to deal with alcohol drug and gambling addiction, was described by Mr Sievers as "a difficult but highly successful program". Captain Harmer, the director of the Mancare program, described it as "not an easy program". I am satisfied that the program proposed by the Home Detention Unit would be strongly in Mr Whiley's interests and the community's interests in addressing the gambling and alcohol issues that lead to his offending. In my sentencing remarks I stated that while a gambling addiction cannot be seen as an exceptional circumstance that would justify the imposition of something other than a custodial sentence for serious fraud or theft offences, it was a factor to be taken into account in setting the head sentence and any non-parole period. I there said at 6 -

This is a case where the two goals in the Crimes Act of rehabilitation and protection of the community are not at odds, but rather work together. Because, if Mr Whiley can be assisted to control his gambling addiction, there is no reason to suspect that he would be any risk at all to the community, he would go back to useful employment. On the other hand, if he is unable to control his gambling addiction, then it seems to me that the material, both in the pre-sentence report and Dr Stevens' report would lead you to the view that he would be at risk of further offending in order to support the gambling addiction.

Is it open to the Court to consider a home detention order?

13. The submissions of the Crown, in opposing the making of a home detention order, were that, because I had ruled in the sentencing procedure that the principles of general deterrence required the imposition of a full- time custodial sentence, it would not be consistent with that decision to now consider home detention. It seems to me that this submission is wrong in principle. A home detention order under the ACT legislation is not to be regarded as a non-custodial sentencing option. Rather, it is a method of dealing with a person who has been sentenced to a period of imprisonment. The imposition by a court of a custodial sentence of less than 18 months duration is the pre-condition for an application for a home detention order pursuant to s 6 of the Act. As in every case, the court that has imposed the custodial sentence will have determined that a custodial sentence is the only appropriate sentence, and that a non-custodial sentence is not appropriate in the all circumstances of the case. The Crown's submission that such a finding is inconsistent with an application for home detention would mean that a home detention order would never be made.

14. It seems to me that to approach the exercise of the discretion to grant a home detention order in the same way that the Court is required to approach the sentencing discretion pursuant to ss 341 and 342 of the Crimes Act 1900 would be to fall into error, and in effect to thwart the intention of the legislature that home detention is to be an available option in cases where a court sentenced a person to a period of imprisonment of not longer than 18 months.

15. In introducing the legislation to the Legislative Assembly the then Minister for Health, Housing and Community Services, Mr Moore, said -

As a prison is introduced into the territory, we must ensure that the focus on expanding and strengthening alternatives to imprisonment is not lost and that we remain focused on our objectives. Our primary objective in the treatment of offenders is to maximise community safety and to promote offender rehabilitation. Imprisonment is the most severe sanction accepted by our society. As such, it should be reserved for those individuals or offence types that pose the greatest risk to the community.

It is well documented that prisons are the most costly sentencing option and the least effective in rehabilitative terms. There is also

strong evidence that alternative treatment programs and methods implemented in the community produce positive rehabilitative results.

(Debates of the Legislative Assembly for the Australian Capital Territory, 9 August 2001, 2637)

16. It seems to me that the scheme of the Act, and the remarks of the Minister in introducing the legislation (which can be considered pursuant to s 142 of the Legislation Act 2001) support the view that a home detention order can only be considered after a court has sentenced a person to a period of imprisonment, and that it follows that the mere fact that a court has determined that a period of imprisonment is appropriate should not rule out the availability of a home detention order.

Is home detention appropriate in this case?

17. I am satisfied from the material before me that the prospects of Mr Whiley successfully rehabilitating himself from a serious gambling addiction would be strongly aided by the proposed order. There was evidence before me in the sentencing proceedings that no prison in New South Wales currently offers rehabilitation programs for gamblers. I am satisfied that there is minimal risk to the community in transferring the balance of Mr Whiley's sentence to a sentence of home detention. His movements will be closely monitored, and he will be in a closely supervised and supportive environment at the Mancare facility. With their assistance, his chances of successful rehabilitation will be maximised, and the risk of further offending will be minimised.

18. It seems to me that such an order is in no way inconsistent with the earlier exercise of the sentencing discretion. On that occasion I formed the view that in all the circumstances of the case, reasons of general deterrence required a custodial sentence. However, the legislature has provided that, following the imposition of a custodial sentence of not more than 18 months, home detention is an option that can be considered for certain types of offences, and for certain types of offenders. Mr Whiley is eligible for consideration, and the Home Detention Unit, in what seems to me to have been a careful and comprehensive manner, has assessed him as suitable to undergo a period of home detention under the close supervision of a reputable community organization, well experienced in assisting persons to deal with gambling and alcohol addictions. I was most impressed with the evidence of Captain Harmer about the Bridge program and, as I observed during the hearing, it is consistent with the Salvation Army's commendable record of a hundred years of service to the community in respect of rehabilitation of offenders.

19. Captain Harmer said that the Bridge program runs for a period of 41 weeks in Canberra, and that it is strongly recommended that a person complete the full program. Mr Whiley's period of imprisonment will end on 25 October 2004, and any home detention order will also end on that day. I therefore ordered that, upon his release, it be a condition of his release on recognizance that he complete the program. He understands and accepts this condition, and is keen to undergo the complete program.

20. An application for home detention should not be seen as a "soft option". It may only be made following the imposition of a sentence of imprisonment, and it can, as in this case, be made subject to rigid conditions as to residence and participation in closely supervised rehabilitation programs. Where, as in this case, the interests of the community and the offender both support the making of such an order, it seems to me that it would be quite inappropriate to deny the option provided by the legislature because it was felt that the offender should be punished by way of being required to serve the sentence of imprisonment in the mainstream prison system.

21. For the reasons set out above, I made an order that the balance of the sentence of imprisonment be served by way of home detention in accordance with the plan before me, and that upon being released a condition of his recognizance be that he complete the Bridge program.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 2 June 2004

Counsel for the applicant: Mr J Jasinski

Solicitor for the applicant: ACT Legal Aid Office

Counsel for the respondent: Mr C Todd

Solicitor for the respondent: ACT Director of Public Prosecutions

Dates of hearing: 30 April, 18 and 26 May 2004

Date of order: 26 May 2004

Date of judgment: 2 June 2004