By Paul Gregoire and Ugur Nedim
Between 1 January 2014 and 25 December 2019, Michael Shortland spent over 2,000 hours gambling at the Dee Why RSL, which saw him lose over $643,000, while the habitual gambler had also lost over $1 million at Sydney’s Star Casino over the period from 1 January 2000 through to 25 December 2019.
In terms of the money he squandered, Shortland was found to have promised financial assistance to a Mr Curtis, whom he’d known since the 1980s, telling his old friend that he was a futures trader who could improve his profits in regard to superannuation. And over 2014 through to 2019, Shortland defrauded Curtis to the amount of more than $548,000.
Shortland also defrauded a friend from the 1990s, a Ms Wyndham, for the sum of over $192,000 over 2016 to 2017, while the offender further duped his childhood friend, Mr Sanchez, of close to $310,000 over 2018 and 2019, with this gentleman having initially thought he was investing in cryptocurrencies and then moving on to superannuation investments.
The man was also charged with one count of threatening a witness in relation to a Facebook message he’d sent to Wyndham four days before court, as he questioned her as to whether he she would go through with her testimony against him, as he suggested the proceedings were a waste of time and would achieve little.
Dishonestly obtaining advantage
On 3 March 2022, Shortland pleaded guilty to three counts of dishonestly obtaining a financial advantage, contrary to section 192E(1)(b) of the Crimes Act 1900 (NSW). And this offence carries a maximum penalty of up to 10 years imprisonment.
The offender also pleaded guilty to one count of threatening a person with intent to influence a witness, which is contrary to section 322(1)(a) of the Crimes Act, and it can see a person found guilty then sentenced to up to 10 years gaol time as well.
Nineteen further offences relating to the three counts of obtaining financial advantage were taken into account on a Form 1. These involved crimes relating to false documentation produced seeking to gain a financial advantage, as well as dealing with identity information to commit an indictable offence, and each of these subsequent offences carried maximums of 10 years prison time.
Form 1 offences are crimes that are related to a principal offence that are then placed on a document referred to as a Form 1, and whilst the offender does not plead guilty to these additional offences, they do acknowledge responsibility for them and the sentencing judge then considers them and takes the extra crimes into account when sentencing for the principal crime.
New South Wales District Court Judge Sharon Harris sentenced Shortland on 29 July 2022 to an aggregate sentence of 8 years and 9 months imprisonment, with non-parole set at 6 years and 6 months. And the sentence reflected a 5 percent discount in regard to the utilitarian value of guilty pleas having been entered.
Forgoing psychological evidence
Shortland had informed his criminal defence lawyers, Mr Woods and Mr Jauncey, in January 2022, that he had a history of mental health issues, and an extension of legal aid was therefore granted on 19 May that year in order to produce a psychological assessment prior to sentencing. And Mr Woods suggested that an adjournment should be sought in order to prepare such a report.
But Shortland’s lawyers hadn’t attempted to secure a psychologist by 3 June 2022. Mr Woods then told his client that obtaining a psychological report could push the proceedings back to December 2022 or even until after Christmas.
The accused, however, considered that his non-parole would be no longer than 2 years and as he’d already served some time, and decided an adjournment wasn’t necessary.
“The evidence as to what Mr Shortland was advised as to the likely outcome on sentencing was far from satisfactory,” explained NSW Court of Criminal Appeal (NSWCCA) Justice Katrina Stern, during the offender’s court challenge to his initial NSW District Court outcome.
“The sentencing judge was ultimately not presented with any medical evidence of psychiatric or psychological disorders, although the sentencing judge was otherwise satisfied that Mr Shortland likely suffered from a gambling addiction,” her Honour added.
A lack of evidence
Shortland then appealed the outcome of his sentencing proceedings (known as a ‘severity appeal’) to the NSWCCA on 16 August 2024. He did so based on three grounds: that the sentencing judge failed to take into account the 17 days he’d spent in pre-trial custody, that a miscarriage of justice had occurred as no psychological evidence was submitted to the court, as well as a question as to the overall sentence being manifestly excessive.
On appeal, Shortland further relied upon the additional evidence of a psychological report produced by clinical and forensic psychologist Dr Paul Pusey, and the applicant argued on appeal that due to the lack of such evidence available at sentencing, regardless of whether it was due to “incompetent or careless representation” involving “delays and lack of diligence”, a miscarriage had occurred.
The Crown submitted that a miscarriage of justice can occur due to “incompetence or carelessness of counsel” or without it. But the threshold for finding fault in the present case was high, as it was the defendant who decided not to wait for a report to be submitted by a psychologist.
Justice Stern considered that the lack of a report like Pusey’s at sentencing resulted in the sentencing justice being deprived of the complete picture. The report considered there was no doubt the offender’s poor mental health did have an effect on his offending. And the conclusion of the psychiatrist was Shortland’s offending was consistent with a diagnosis of bipolar effective disorder.
Her Honour further found that the reason Shortland held the erroneous opinion that his non-parole period would be just 2 years is that the Crown said that was its opinion at the time the offender had pleaded guilty to the charges against his name, and while Woods told his client that was the opinion, the lawyer didn’t agree with it, yet he hadn’t properly conveyed that to his client.
The NSWCCA justice then explained that a miscarriage had occurred, as her Honour was satisfied that the significance that a report like that of Dr Pusey could have had on the sentencing outcome was significant, as were the circumstances in which the offender came to the decision not to adjourn and wait, which meant this ground was made out regardless of lawyer incompetence.
Ground 1, that the sentencing judge had made an error in not reflecting the 17 days Shortland had spent on remand pretrial, was also made out. And as the first two grounds of appeal were upheld, the third ground, that the sentence was manifestly excessive, did not have to be considered.
On 20 September 2024, NSW Court of Criminal Appeal Justice Stern granted leave to appeal, allowed the appeal case to go ahead, quashed the previous sentence imposed upon Shortland on 16 August 2024 and remitted the case back to the lower court, so that Judge Harris could hear it again.
And NSWCCA Justices Richard Cavanagh and Deborah Sweeney agreed with their colleague’s orders.
