Johnstone, Dylan Matthew v State of Tasmania [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Evans J,Blow J,Porter J
• Judgment Date: 02 August 2011
• Docket Number: 590/2011
• Date: 02 August 2011

[2011] TASCCA 9

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Blow and Porter JJ

590/2011

Johnstone, Dylan Matthew

and

State of Tasmania

R v Grossi (2008) 23 VR 500 , followed.

Aust Dig Criminal Law [3521]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate — Computer-related fraud — False online betting credits of $756,000 — Loss of $495,000 — Gambling addiction.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J

1 I agree with the reasons of Blow J and the orders he proposes.

Blow J

2 This is a sentencing appeal. The appellant pleaded guilty to 362 charges of computer-related fraud, contrary to theCriminal Code, s257B. These crimes were committed over a period of only 6¹/₂ weeks, from 25 November 2009 to 8 January 2010 inclusive. The appellant, who lived in Warrnambool, Victoria, found a flaw in an on-line payment system, sent 362 fraudulent computer messages to the Tote Tasmania web server, and obtained false credits totalling $756,914 to a TAB betting account in his name. On 2 July 2010 Tennent J sentenced him to 3¹/₂ years' imprisonment, with effect from 21 June 2010, and ordered that he was to be eligible for parole when he had served 2¹/₂ years of that sentence. He has appealed, and contends that both the head sentence and the non-parole period were manifestly excessive.

3 The flaw that the appellant found was not in Tote Tasmania's systems, but in the system of an intermediary known as POLi. POLi provided a service which allowed consumers to purchase goods and services from merchants without providing their bank account details to the merchants. In September 2009 the appellant found a way of causing POLi to send false information to a merchant's web server, stating that funds had been received when they had not. On 14 November 2009 he opened a Tote Tasmania betting account using that company's website. He made a number of unsuccessful attempts to create false credits in that account in the following days, and was eventually successful on 25 November. Having perfected a system for obtaining false credits, he made use of it, as I have said, on a total of 362 occasions over 6¹/₂ weeks. The false credits grew over time, starting out at $47.50 on each of the first three occasions, reaching $5,000 on the 312th occasion, on 1 January 2010, and remaining at or about that level for nearly all of the subsequent transactions. Tote Tasmania discovered what was happening and closed the appellant's account. Late in January 2010, Tasmanian detectives travelled to Warrnambool. The appellant was arrested and extradited to Tasmania.

4 The appellant used most of the fraudulently obtained credits to bet on the Tote Tasmania website. He had some winnings but, as one would expect, his losses substantially exceeded his winnings. He gradually increased his turnover in the hope of making good his losses, as gamblers often do. There were eight occasions when he withdrew money from his account. A total of $37,200 was transferred to his bank account as a result. He used some of that money to travel to Hobart and back with his girlfriend on 12 December 2009. He used some of it to bet with the Victorian TAB, and some to purchase items including a digital camera, a couch, and a laptop computer.

5 However the total loss that the appellant caused to Tote Tasmania was not $37,200 but $495,965.44. The bulk of that loss resulted from Tote Tasmania using falsely inflated figures as to the amounts bet by customers on races, and paying out dividends to successful punters that were calculated on the basis of its falsely inflated figures. Tote Tasmania pays out as prize money a fixed percentage of the pool of money received in relation to each race. As a result of the appellant's activities, it believed it had received more money than it really had, and therefore paid out more money than it should have. It should be noted that charges against the appellant related only to the obtaining of false credits, and not to the subsequent transactions involving betting and withdrawals.

6 The appellant was 23 years old when sentenced. He had no prior convictions. After completing year 12 at Warrnambool High School, he immediately obtained work as a printer's assistant with a local newspaper. He lost that employment three years later when the business closed down. His family moved to Ballarat, where he soon obtained employment at a service station. That business also closed down, and he became unemployed after nine months in that position. He waswell regarded as an employee in both of the positions that he held. He had been unemployed for about 10 months when he started committing these crimes. During that time he had obtained a forklift licence and completed a security course.

7 He was introduced to gambling when he was working for the newspaper in Warrnambool. When he became unemployed, he increased his gambling in the hope of paying off credit card and loan debts, but was not successful. He became addicted to gambling, but had no insight into his addiction until...