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District Court 14 September 2007

R v Robinson, Sam

[2007] NSWDC 372

Fraud & dishonesty
CRIMINAL LAW SENTENCING COMMONWEALTH AND NSW OFFENCES FRADULENT CONDUCT OBTAIN BENEFIT BY DECEPTION $120,000 VALUE IN GOODS

Citation: R v Robinson, Sam [2007] NSWDC 372
Court: NSW District Court
Date: 14 September 2007
Judge(s): Nicholson SC DCJ

Background

The offender pleaded guilty to eight Commonwealth offences and eight NSW offences, with a further ten NSW matters taken into account on a Form 1. The offending spanned three distinct periods: a bankruptcy-related offence in 1991, NSW fraud matters between 2001 and 2005, and Commonwealth offences committed between March and October 2005.

The conduct centred on the use of multiple false identities and company names to obtain goods and services by deception. Suppliers of timber and household appliances, as well as Telstra, were defrauded through dishonoured cheques and false contractual commitments. The total value of goods and services obtained was approximately $120,000.

At the time of his arrest in November 2005, police found at the offender's home multiple forms of identification in different names, blank company letterheads, and business cards. The sentencing judge found these items had been kept, if not created, to facilitate the fraudulent activity carried out in the 2004 to 2006 period.

  • What were the appropriate sentences for eight Commonwealth fraud offences and eight NSW offences, accounting for the totality principle across three distinct offending periods?
  • What discount, if any, should apply to reflect the guilty pleas entered in both the Commonwealth and NSW matters?
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio under NSW sentencing law.
  • How to balance the sentencing objectives of deterrence and community protection against the offender's personal circumstances, given limited subjective evidence.
  • How to treat the 1991 offence given its age and the applicable maximum penalty.

Decision

The sentencing judge characterised the offending as serious and systematic. The offender had maintained dual identities, exploited multiple company structures (including companies of which he was not a director), and defrauded victims in rapid succession, giving suppliers little time to detect the fraud. The judge noted the offender's prior history of similar conduct as a significant aggravating feature.

Subjective matters offered limited mitigation. The offender identified as a gambler but stated his gambling was not out of control, and no evidence connected the offending to a gambling problem. The judge described the evidence on personal circumstances as "fairly sparse," limiting the weight available for rehabilitation prospects.

Guilty pleas attracted a discount of approximately 15 per cent on the NSW matters. Special circumstances were found in relation to the lead NSW count (count 13), justified primarily by the time already served in custody and the offender's age, resulting in a longer additional term relative to the non-parole period than would otherwise apply.

For the 1991 offence, the judge acknowledged its age as a mitigating factor and imposed a fixed term rather than a non-parole period, despite a maximum penalty of four years. The Commonwealth counts attracted an overall two-year sentence with the non-parole period shortened to reflect time already served in custody.

Orders Made

  • Count 13 (NSW, Telstra deception, 7 April 2005): Non-parole period of 9 months from 14 March 2008, expiring 13 December 2008; additional term of 6 months, expiring 13 June 2009. Special circumstances found.
  • Counts 9, 10, 11, 12, 14, 15, and 16 (NSW, further Telstra matters): Non-parole period of 6 months from 14 March 2008, expiring 13 September 2008; balance of term of 7 months, expiring 13 April 2009.
  • Count 1 (1991 bankruptcy offence): Fixed term of 6 months commencing 14 September 2008, expiring 13 March 2009.
  • Counts 2 to 8 (Commonwealth offences): Overall sentence of 2 years from 14 September 2008, expiring 13 September 2010; non-parole period of 8 months (adjusted for time already in custody), expiring 13 May 2009.

Key Takeaways

  • Persistent fraud involving multiple false identities and company structures across three offending periods was treated as serious, systematic criminality warranting cumulative custodial sentences.
  • The District Court afforded limited weight to rehabilitation where subjective evidence was sparse and the offender had a prior history of similar conduct.
  • Age of an offence can justify a more lenient sentencing approach: the 1991 bankruptcy offence, despite carrying a four-year maximum, attracted only a fixed six-month term given the time elapsed.
  • Special circumstances under NSW sentencing law can be founded on time already served in custody combined with the offender's age, even where the judgment does not otherwise extensively analyse that question.
  • A guilty plea discount of approximately 15 per cent was applied to the NSW matters, consistent with the approach to utilitarian discounts recognised in cases such as R v Paragalli and R v Colleen Halls.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BA
- Commonwealth Crimes Act 1914 (Cth), s 16A
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- R v Paragalli [2006] NSWCCA 87
- R v Colleen Halls and anon. [2002] NSWCCA 55
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby (1977) NSWLR 597
- R v Hayes [1984] 1 NSWLR 740