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Court of Criminal Appeal 23 March 2020

Robinson v R

[2020] NSWCCA 41

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS FRAUD FOUND IN UPPER END OF MID RANGE OBJECTIVE SERIOUSNESS

Citation: Robinson v R [2020] NSWCCA 41
Court: NSW Court of Criminal Appeal
Date: 23 March 2020
Judges: Macfarlan JA, R A Hulme J (with reasons), Button J

Background

The appellant pleaded guilty in the Local Court to obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years' imprisonment. Over approximately eight and a half months in 2015, he borrowed just over $515,000 from the manager of a pawnbroking business in Grafton across around 120 transactions. The deception was the false representation that he held a pending compensation claim against James Hardie worth $1.9 million, a claim he had never actually made.

The District Court at Grafton sentenced the appellant to 6 years' imprisonment with a non-parole period of 3 years and 10 months. That head sentence was reached by taking an 8-year starting point and applying a 25 per cent discount for the utilitarian value of the guilty plea. The sentence was partially accumulated upon a pre-existing sentence for an unrelated offence.

The appellant sought leave to appeal on a single ground: that the sentence was manifestly excessive.

  • Whether the District Court's 8-year starting point was manifestly excessive for an offence assessed as falling at the upper end of the mid-range of objective seriousness, given the 10-year statutory maximum.
  • Whether the resulting sentence left adequate sentencing space for offences of greater objective seriousness (that is, those above mid-range but below the worst category).

Decision

The Court of Criminal Appeal accepted that the offence was objectively serious. The deception was sustained over many months, involved a large sum, included elaborate steps such as the appellant impersonating a solicitor to deceive the victim by telephone, and caused substantial financial harm. The sentencing judge had placed the offending at the upper end of mid-range objective seriousness.

However, R A Hulme J (with whom Macfarlan JA and Button J agreed) held that an 8-year starting point for an offence in the upper end of the mid-range was manifestly excessive. With a maximum of 10 years, that starting point compressed the available sentencing range so severely that it left virtually no room to sentence offences of greater objective seriousness that fell short of the worst category. That structural problem rendered the starting point disproportionate.

The court re-sentenced the appellant applying a starting point of 6 years, reduced to 4 years and 6 months after the 25 per cent guilty plea discount. The same partial accumulation upon the pre-existing sentence was retained. Special circumstances were found, and the non-parole period was set at 2 years and 10 months, with a balance of term of 1 year and 8 months.

In arriving at the revised sentence, the court weighed the appellant's extensive criminal history and offending during a period of conditional liberty (factors pointing toward the upper end of the proportionate range) against mitigating considerations accepted by the sentencing judge, including remorse and the more onerous conditions of custody the appellant would experience.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence granted.
  • Sentence imposed in the District Court on 31 May 2018 quashed.
  • In lieu, the appellant sentenced to imprisonment with a non-parole period of 2 years and 10 months and a balance of term of 1 year and 8 months, dating from 23 January 2018.
  • Eligible for release to parole on 22 November 2020.
  • Compensation order under s 97 of the Victims Rights and Support Act 2013 (NSW) in the sum of $515,905 confirmed.

Key Takeaways

  • A starting point near the top of the available range for an offence assessed only as upper mid-range in objective seriousness risks being manifestly excessive because it collapses the sentencing space reserved for more serious but not worst-case offending.
  • The Court of Criminal Appeal confirmed that the principle of proportionality requires a sentencing range calibrated so that offences above mid-range but below worst case can still receive meaningfully higher sentences.
  • Under the relevant sentencing framework, an 8-year starting point out of a 10-year maximum was held inappropriate where the offending, though serious and sophisticated, was not placed at the highest level of objective gravity.
  • Extensive criminal history and offending while on conditional liberty remain significant aggravating factors under s 21A(2)(j) and (m) of the Crimes (Sentencing Procedure) Act 1999 (NSW), but those factors could not in themselves justify the starting point adopted below.
  • Re-sentencing on appeal preserved the partial accumulation, the special circumstances finding, and the compensation order, demonstrating that correction of a manifestly excessive starting point does not necessarily disturb other aspects of the sentencing structure.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(j), 21A(2)(m), 44(2)
- Victims Rights and Support Act 2013 (NSW), s 97

Cases
- DL v The Queen [2018] HCA 32; 358 ALR 666
- Johnston v R [2017] NSWCCA 53
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242