Foreword | Gambling has always been a popular form of entertainment in Australia, but the advent of poker and gaming machines, casinos, TABs and lotto-style games has contributed to a substantial growth in the gambling industry. The Productivity Commission (1999) reports that 82 per cent of the Australian adult population engaged in some form of gambling in 1997-98, with gambling taxes and levies paid to state and territory governments nearly doubling over the past 10 years. At present, adult Australians spend $13,839 million a year on gambling, or $901 per adult per year (ABS 2002, p. 7).
However, with increasing opportunities and venues for gambling, public concern about "problem gambling" has grown. This paper examines one of the social problems said to be associated with gambling - the commission of financial crime by individuals trying to obtain funds to gamble with. Recent data supporting the relationship between problem gambling and financial crime are presented, and the most effective judicial responses are assessed.
Case study 1
On 13 March 2003, an accountant and former mayor of Geelong in Victoria was sentenced to 10 years' imprisonment with a non-parole period of seven years after pleading guilty to defrauding his clients of $8.6 million between 1994 and 2000. He was known and trusted by many members of the Geelong community but abused that trust by stealing funds from a number of his clients. In one case, $4.98 million was stolen from a trust account established to administer an award of $6 million damages paid to a victim of medical negligence that had rendered him quadriplegic. After becoming one of the signatories to the bank account established to hold the client's funds, the offender made a number of unauthorised withdrawals that were used initially to replace sums stolen from other clients and subsequently for gambling. In all, the offender lost $7.1 million of the illegally obtained money through gambling. As a VIP member of a casino, he spent 937 days there over seven years, managing to conceal his activities from his family and the community by sometimes linking business trips to Melbourne with visits to the casino (R v De Stefano  VSC 68, 13 March 2003, per Kellam J).
Case study 1 illustrates how problem gambling can provide a motivation for some people, even with secure employment and a substantial income, to commit crime. The current paper considers one of the principal social costs of gambling, namely, gambling-related crime, or crime committed by individual gamblers in order to finance their gambling or to service personal and business debts incurred through gambling. This is to be distinguished from organised crime or venue-related crime involving illegal gambling. After presenting evidence supporting a link between problem gambling and financial crime, various judicial responses will be considered.
At the outset, however, the nature of problem gambling needs to be defined. According to the Productivity Commission's report on Australia's Gambling Industries (1999), there are few clear socio-demographic factors that differentiate problem gamblers from recreational or regular gamblers. Yet age and certain playing modes (notably, gambling in a continuous and intensive form such as with a gaming machine) do appear to be associated with a higher likelihood of problem gambling.
In terms of the modes of gambling, the widespread availability of gaming machines (known as "pokies") potentially increases the number of problem gamblers in Australia (Dickerson 1998). Pokies allow intensive, independent play more readily than other forms of gambling and they are widely accessible, being located mainly in hospitality clubs (60 per cent), pubs, taverns and bars (ABS 2002). Gambling losses from pokies have increased by 39 per cent from 1997_98 to 2000_01, and account for 63 per cent of total gambling losses in Australia (ABS 2002, p. 6). Nationally there are more than 185,000 gaming machines; a figure five times higher than the United States on a per capita basis (Productivity Commission 1999, p. 11). Although it is difficult to establish a direct link between greater accessibility to gambling and prevalence of problem gambling, ease of access to gambling venues seems to have some positive impact (Productivity Commission 1999).
Problem gamblers are the main profit generators for the gambling industry and, hence, contribute revenue to governments. There is, accordingly, tension between a government's social role and its need to maintain revenue. Recently, voluntary codes of practice have been developed between industry, government and community groups, covering the provision of information, interactions with customers, exclusion provisions, the physical environment in venues, financial transactions and advertising. However, "the danger of relying on such voluntary codes of behaviour is that venue operators face an inherent conflict of interest in dealing with problem gambling" (Banks 2002, p. 12) in that they might wish to reduce problem gambling but still need to increase revenue.
The relationship between problem gambling and crime
Case study 2
Between 1991 and 2000 a 44-year-old man, who had been employed by an insurance company since he was 17 years old, was working as a senior claims officer. He had been gambling for some time, but lost control of his habit in 1991, to the extent that he found it necessary to mortgage his then unencumbered family home to the sum of $35,000 in order to cover credit card and gambling debts. The mortgage was increased the following year to $75,000. In order to obtain further funds to support his gambling, the offender re-opened completed claims, authorised them, and created 1,003 fraudulent cheque payments to a total value of $4,328,520 to fictitious third parties purporting to relate to the re-opened claims. The cheques obtained were paid into accounts opened in his own name with various banks, ostensibly as trustee for one or another of the fictitious third parties. Most of the money so obtained was lost through gambling. He was sentenced to seven years and six months imprisonment, with a non-parole period of five years and six months (R v Atalla  VSCA 141, 27 August 2002).
In recent years, the social costs associated with gambling, including the relationship between problem gambling and crime, have received growing attention. It has been estimated that problem gamblers represent 2.1 per cent of the Australian adult population (one per cent with severe problems; 1.1 per cent with moderate problems). Although the number of problem gamblers appears to be small, they contribute to approximately one-third of total expenditure on gambling in Australia. In addition, their annual losses average $12,220, compared with less than $650 for other gamblers (Productivity Commission 1999, pp. 19, 21). According to the Australian Crime Commission (2003), gambling-related fraud and theft has increased considerably in recent times. For example, in South Australia, since poker machines were introduced in that state in 1994, the number of people seeking counselling following the commission of a gambling-related crime has risen from one every two weeks to one a day. Most people who have sought help have defrauded either their employer or a family member.
In order to support their expenditure on gambling, problem gamblers may seek alternative sources of income. At first they are likely to borrow money from family, friends and colleagues, often without paying it back. Some may then sell their assets, including personal belongings, to pawn-brokers, or they may borrow money, often at high interest rates. Once debts have accumulated beyond their means, problem gamblers may seek out illegal sources of money, as illustrated in Case Study 2.
Gamblers often intensify their behaviour in the belief that they will win, especially after early successes. In some cases, people begin gambling as a way of making money to cover their (non-gambling) debts, but their financial position gets worse as a result of gambling (Crofts 2002). This may lead them to steal money from others to cover both non-gambling and gambling debts as Case Study 3 illustrates.
Not all problem gamblers, however, turn to crime to support their gambling; illegal activity is generally a last resort. The question that arises is to what extent crime is driven by gambling. In Australia, official crime statistics provide no indication of the extent of gambling-related offences (Centre for Criminology and Criminal Justice 2000), although a number of research projects have been undertaken in an attempt to determine the prevalence of gambling-related crime. Studies have, for example, examined:
- people using gambling counselling services, attending self-help groups such as Gamblers Anonymous, or undergoing inpatient hospital treatment (Productivity Commission 1999; Jackson et al. 1997; Blaszczynski & McConaghy 1994);
- prison inmates who report gambling problems in connection with their offending behaviour (Abbott, McKenna & Giles 2000; Abbott & McKenna 2000; Blaszczynski 1994); and
- samples of the general population (Dickerson et al. 1996; Productivity Commission 1999).
A study by Jackson et al. (1997) on illegal activity among 1,452 pathological gamblers who were undergoing counselling found that 30 per cent of the subjects admitted that they had been involved in gambling-related illegal acts. In another study, Blaszczynski & McConaghy (1994) conducted semi-structured interviews with 306 problem gamblers in New South Wales who were attending Gamblers Anonymous or had been admitted to hospital for inpatient treatment. Nearly 60 per cent admitted having committed a gambling-related offence (most commonly theft, embezzlement or misappropriation), and almost one-quarter reported that they had been convicted.
In their study of male prison inmates in New Zealand, Abbott et al. (2000) found that the inmates surveyed had participated in gambling activities more frequently and had spent almost six times more on gambling than the general male population. Moreover, 15 per cent of the inmates reported committing a crime to finance gambling or gambling debts, and nine per cent reported being convicted for gambling-related crimes.
Various difficulties arise in determining the extent of gambling-related crime. Firstly, there is often a lack of objective data concerning the criminal offences reported, as many studies rely on self-reported evidence rather than official data, and sometimes the accuracy of this is questionable. Secondly, gambling-related offending tends not to be reported or detected, particularly where offences are committed against family members. Even when allegations are reported, they do not always result in a conviction (Centre for Criminology and Criminal Justice 2000). The prevalence of gambling-related crime amongst prison inmates, therefore, often is not indicative of the true extent of the problem. Despite these difficulties, and the absence of evidence of a causal relationship between problem gambling and crime, it is apparent that problem gamblers are at high risk of committing crimes in order to finance their gambling activities.
Case study 3
A 71-year-old woman who was employed as a bookkeeper for a butcher stole $246,064.56 from her employer over a five-year period. She began to gamble hoping that she would make enough money to cover her debts on various store cards and credit cards. As her gambling intensified, she began to write unauthorised cheques to pay her own debts by taking advantage of her position as a signatory to the business cheque account. Just prior to the offences, she went to clubs to play poker machines almost on a daily basis and regularly lost $400-$500 on each occasion. She was sentenced to nine months' imprisonment (Subject 16 in Crofts 2002, p. 218).
Types of gambling-related crime
Gambling-related crime is usually limited to non-violent property crime, such as theft, shoplifting, embezzlement and misappropriation of money (Blaszczynski & McConaghy 1994; Abott et al. 2000; Productivity Commission 1999; Centre for Criminology and Criminal Justice 2000). Two recent studies (Crofts 2002; Australian Institute of Criminology & PricewaterhouseCoopers 2003) have attempted to provide evidence to support this link through the examination of completed criminal prosecution files.
Crofts (2002) examined 2,779 cases heard by local and district courts in NSW between 1995 and 1999. The study examined a variety of property offences involving:
- fraud (for example, obtaining financial advantage by deception, making false statements with intent to obtain money or a financial advantage, or presenting cheques with insufficient funds);
- theft (for example, larceny, larceny by a clerk or servant, or stealing in or from a dwelling house, or motor vehicle theft);
- robbery and assault; and
- breach of apprehended violence orders.
These types of offence were selected as representing those most likely to establish a link between gambling and crime. Files involving these offences were made available at the New South Wales District Court in Sydney for inspection by researchers. The files provided a cross-section of property and violent crimes against the person dealt with by local and district courts in the five years in question. Pre-sentence reports and police reports were examined to find evidence of gambling or gambling-related activities. An offence was classified as "gambling-related" if it was committed as a consequence of, or in order to support, or as a significant result of, or significantly related to the defendant's desire, need or compulsion to gamble (Crofts 2002, p. 29).
Crofts identified 105 cases (four per cent) that were gambling-related. Of these cases, 42 contained insufficient detail for further analysis, leaving 63 files which provided the basis for the final study. Of these 63 cases, 76 per cent of offences committed involved fraud, including larceny by a clerk, obtaining financial advantage by false pretences, and cheque fraud. The 27 larceny by a clerk files that were gambling-related involved a total amount stolen of $2,494,309 and a mean amount stolen by each offender of $95,935.
The Australian Institute of Criminology and Pricewaterhouse Coopers (2003) examined a sample of "serious fraud"1 prosecutions heard in 1998 and 1999 in Australia and New Zealand. The selection of files was largely undertaken by officers within the agencies concerned (mostly the Director of Public Prosecutions in Australia and the Serious Fraud Office in New Zealand) who located cases that fulfilled the criteria of serious fraud and which had resulted in a court determination in the two years in question. As with Crofts's study, documentary files were examined by researchers and facts relating to some 60 data fields were extracted.2 The key documents examined were police charge documents, witness statements, pre-sentence reports, offenders' prior criminal history transcripts, trial judges' sentencing remarks, and appeal decisions. The sample comprised 155 separate files involving 208 accused persons, 183 of whom were convicted of charges specified in the instant case.
In order to investigate the relationship between gambling and the commission of fraud, the primary motivations of the 183 convicted offenders in this sample were examined. Information on offender motivation was usually available from the trial judges' sentencing remarks, pre-sentence reports prepared on behalf of offenders, or in submissions made to the court on behalf of victims or prosecutors.
As shown in Figure 1, the study found that gambling (14.7 per cent) was the second most frequently identified motivation of convicted offenders after greed (27.3 per cent).
Note: Information on motivation was available in respect of 143 out of the 183 convicted offenders.Source: Australian Institute of Criminology and PricewaterhouseCoopers (2003).
Of the 21 convicted offenders (in 20 files) whose primary motivation for fraud was gambling, the vast majority (86 per cent) spent the proceeds of their crime on gambling itself. The most common types of offence committed by the gambling-motivated fraudsters were "obtaining finance or credit by deception" and "cheque fraud" (43 per cent each), followed by "misappropriation of funds in the private sector" and "obtaining goods and services by deception" (19 per cent each). Fifteen offenders were male, with an average age of 37 years (ranging from 28 to 50) at the date of sentencing. The remaining six offenders were female, with an average age of 46 years (ranging from 28 to 68). The majority of gambling-motivated fraudsters were employed at the time of the commission of their offences, and nearly half of the offences were committed against employers. In some cases, offences were committed by professionals against their clients.
Table 1 compares the patterns of offending of gambling-motivated fraudsters (n=21) and non-gambling-motivated offenders (n=122). It appears that gambling-motivated fraudsters were more likely to commit misappropriation of funds in the private sector and to commit cheque fraud than those whose offences were not driven by gambling. Moreover, although the average amount of actual loss per offender was much smaller for gambling-related offences than for non-gambling-related offences, a greater prevalence of offences committed against employers was observed with gambling-related offences.
Note: Percentages are of the total number of convicted offenders in each sub-group. The number of files involving gambling-motivated offenders was 20, while the number of files involving non-gambling-motivated offenders where information on actual loss was available was 134. One file involved both gambling-motivated and non-gambling-motivated offenders.Source: Australian Institute of Criminology & PricewaterhouseCoopers (2003).
While the size of the sample in this study is too small to support statistical analysis, its findings are consistent with Crofts's study. The results of both studies show an association between problem gambling and fraud perpetrated by persons in positions of trust and responsibility.
Judicial responses to gambling-related crime
The presence of problem gambling can be relevant to the determination of sentence in a number of ways. On the one hand, submissions made on behalf of defendants often raise the fact of problem gambling in mitigation of sentence, usually by characterising gambling as an addiction and viewing the criminal conduct as motivated through psychopathology. Such submissions are often supported by expert evidence from psychologists or psychiatrists.
A number of psychometric tests, such as the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, fourth edition (DSM-IV), identify pathological gambling. According to Austrin (2002, p. 138):
while pathological gambling may be regarded as a discrete psychiatric disorder, most researchers and clinicians regard problem gambling as a continuum, ranging from mild and of short duration through to severe and chronic.
Generally, when a person's gambling activity gives rise to harm to the individual player, to his or her family, or to the community, it may be characterised as pathological (see Centre for Criminology and Criminal Justice 2000, p. 9).
Past studies (Productivity Commission 1999; Centre for Criminology and Criminal Justice 2000; Australian Institute for Gambling Research 2001) have found that as individuals' intensity of addiction increases, so are they more likely to suffer problems such as loss of employment, breakdown in personal relationships, and bankruptcy. Moreover, those affected may seek alternative illegal sources of income to finance their addiction when their personal and legitimate financial resources have been exhausted. The associated harms extend to several areas (Dickerson 1993; Australian Institute for Gambling Research 2001; Hing 2002):
- personal (for example, depression, anxiety, ill-health, suicide);
- interpersonal (divorce, separation);
- vocational (poor performance, absenteeism, job loss);
- financial (debts, asset losses, bankruptcy); and
- legal (obtaining money for gambling illegally).
If it is accepted that the crime was caused principally because of a compulsive disorder, the sentencing judge may be willing to consider a reduction in sentence or the imposition of a conditional order requiring the offender to undergo counselling.
The Australian Institute of Criminology & Pricewaterhouse Coopers study (2003) found, however, that three-quarters (76 per cent) of persons convicted of fraud motivated by gambling were given full-time custodial sentences (15 individuals). The ACT was the only jurisdiction in which judges made any recommendation that offenders undergo counselling or treatment for gambling problems as one of the conditions of a recognisance order.
Crofts's study (2002) found that almost two-thirds of the offenders with gambling problems received custodial sentences ranging from three months to six years in duration as head sentences. Only a few were ordered to undergo counselling or treatment for their gambling problems as a requirement for good behaviour bonds or parole after completing custodial sentences. While custodial sentencing was common, the adequacy of facilities available for the treatment of problem gambling in prison was questioned. The majority of convicted offenders in the study voluntarily sought some kind of professional assistance for their problem gambling only after they had been charged with gambling-related crimes, despite a large number of the offenders having long-term gambling problems. In no case was gambling accepted by judges as a mitigating factor.
Some judges have accepted the possibility that in exceptional cases gambling could be regarded as a mitigating factor for sentencing on the grounds that the crime was committed in order to finance a gambling addiction, although in the cases in question this was not present (R v Molesworth  NSWCCA 43, 12 March 1999, per Abadee J; R v Dawsan, unreported, Supreme Court of Victoria, 27 May 1997, per Winneke P). Generally, however, gambling is treated rather as "a symptom of an underlying problem than the cause of criminality" (R v Molesworth  NSWCCA 43, 12 March 1999, per Adams J). For example:
In my view, the applicant's addiction to gambling has very little weight as a circumstance of mitigation. According to the applicant's counsel in the Court of Petty Sessions, the applicant had been an addicted gambler for many years before the commission of these offences. During that time his addiction did not lead him to the commission of crime... Further, the applicant did not make any serious or sustained attempt to overcome his addiction until after the offences were detected (Garnsey v Stamford  TASSC 43, 4 July 2002, per Underwood J).
It is...important that 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 (R v Cavallin, unreported, Victorian Court of Criminal Appeal, 24 July 1996, per Tadgell JA).
On the other hand, failure by an individual to take action to deal with a recognised gambling problem may amount to an aggravating factor in sentencing:
The applicant had been an addicted gambler for many years before the commission of these offences [social security fraud]. During that time his addiction did not lead him to the commission of crime. The applicant took no step to cease offending prior to detection... Further, the applicant did not make any serious or sustained attempt to overcome his addiction until after the offences were detected (Garnsey v Stamford  TASSC 43, 4 July 2002, per Underwood J].
You weren't able to stop yourself from gambling. You were only able to continue gambling by taking more, upon more, upon more money from your employer (R v Black  WASCA 26, 18 February 2002, per White AUJ).
Clearly, then, gambling seems usually to be taken into account as an explanation for the crime committed, but not as an excuse (see R v Atalla  VSCA 141; R v De Stefano  VSC 68). Although deterrent aims of sentencing need to be given due weight, it appears that pathological gambling addiction is rarely viewed by courts as a mitigating factor or one that requires special rehabilitative procedures. Hopefully, problem gamblers receive some assistance with their addiction in prison, although resources may make this impossible in all but the largest custodial settings. Monitoring and treating problem gamblers after their first conviction may also help to reduce the likelihood of them committing further offences.
Meyer & Stadler (1999) argued that both addictive gambling behaviour and impulsive, risk-motivated and antisocial personality directly influence the intensity of criminal activity. This is supported by the fact that individuals often have criminal records prior to becoming addicted to gambling. The Australian Institute of Criminology & PricewaterhouseCoopers study (2003), found that almost half of the gambling-motivated fraudsters had prior fraud convictions. Although not all their previous offences were gambling-related, some were clearly related to their long-standing gambling problems.
These findings raise a question as to the appropriateness of the current judicial response to gambling-related financial crime. If one accepts the psychopathology model of gambling-related crime then, arguably, non-custodial orders with strict conditions that offenders undergo counselling and treatment for their addiction may be more effective than the imposition of full-time custodial orders, even in serious cases. What may be preferable, however, is for encouragement to be given to people who have a gambling problem to seek assistance before they commit any crimes at all. Courts could, for example, provide a discount to offenders who have previously sought assistance, even if that assistance has not been successful in preventing them from gambling and becoming involved in crime.
This paper shows how gambling behaviour can escalate to the point at which it culminates in the commission of illegal conduct. There is now convincing evidence that a proportion of financial crime is committed by those with gambling problems, some of whom may steal money from their friends, employers, or clients in order to satisfy their desire to gamble. Although the general deterrent effects of criminal prosecution and punishment may be low, the evidence that those who commit fraud because of gambling have often done so in the past provides an opportunity for interventions to be made during prison or parole. Without support, those whose gambling problems have led them to the commission of fraud are very likely to reoffend on release. Further research is required to establish the extent to which gambling-related recidivism may be reduced following the use of interventions undertaken during imprisonment or on parole.
Gambling-related crime has received considerable attention in recent years, yet there is not enough reliable and objective data at this stage to assess with accuracy the causal relationship between problem gambling and criminal behaviour. Little is also known of the extent of undetected and unreported gambling-related offences. In view of these limitations, further research is required to test the hypothesis suggested here. However, the Australian Institute of Criminology & PricewaterhouseCoopers (1993) study suggests the presence of a link between gambling and fraud, particularly fraud perpetrated by employees and professionals in the workplace. Being aware of these risks may enable employers to identify problem gambling in their staff before company and trust funds are placed at risk.
The study of Serious Fraud in Australia and New Zealand was jointly undertaken and funded by the Australian Institute of Criminology and PricewaterhouseCoopers' Investigations and Forensic Services Practice. The authors gratefully acknowledge the contribution made by Stuart Candy on an earlier version of this paper.
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- 1 Seriousness was defined on the basis of financial loss (generally over $100,000 per file), sophistication in the planning and/or execution of the offence, organisation of the offenders, or whether offences were committed by professionals (see Australian Institute of Criminology & PricewaterhouseCoopers (2003) for further information).
- 2 For Commonwealth matters, privacy considerations meant that certain data had to be extracted from fields held by the Commonwealth DPP by agency personnel.
About the authors
Dr Yuka Sakurai is a Research Analyst, and Dr Russell G. Smith is Deputy Director of Research at the Australian Institute of Criminology.