R v Robinson, Sam

[2007] NSWDC 372

CITATION:	R v Robinson, Sam [2007] NSWDC 372 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	14 September 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Sentences of imprisonment imposed - see [58] - [59]
CATCHWORDS:	Criminal Law - Sentencing - Commonwealth and NSW offences - fradulent conduct - obtain benefit by deception - $120,000 value in goods - offending period spanning 14 years - past history of similar offending.
CASES CITED:	R v Paragalli [2006] NSWCCA 87 R v Colleen Halls and anon. [2002] NSWCCA 55.
PARTIES:	Regina Sam Robinson
FILE NUMBER(S):	06/11/0750

JUDGMENT

1. Sam Robinson told Probation and Parole that he is a gambler but that his gambling is not out of control. I can do little but accept him at his word for there is no evidence before me that links his repeated criminal offending to gambling or, frankly, to anything else.

2. Sam Robinson has pleaded guilty to eight Commonwealth offences and eight New South Wales offences. When being sentenced for count 13 on the indictment he asks that I take into account a further ten New South Wales matters. The Crown also asks that I sentence for two back­up charges pursuant to s 166 of the Criminal Procedure Act 1986.

3. There are three offending periods covered by the criminality that is before me.

4. In relation to count 1 and the two offences on the s 166 certificate the offender’s criminality spans 1991, 1999 and 2004.

5. In relation to the Commonwealth counts 2 to 8 they occur between March 2005 and October 2005.

6. In relation to counts 9 to 16 (which are the State matters) and the ten offences placed on a Form 1, they occur in a period 2001 and 2005.

7. Today the offender is to be held accountable for all this criminal conduct.

8. As the sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before this court committed by this offender damaging this community or, at least, companies in it and others. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to him, that is subjective matters. Regrettably, evidence on that is fairly sparse.

9. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly.

10. Some of these charges are offences against the laws of the Commonwealth. Section 16A of the Commonwealth Crimes Act requires a sentencing Judge to take into account a number of specific matters. When a term of imprisonment greater than three years is to be imposed the length of the non-parole period will need to be determined.

11. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts in State matters, whether special circumstances are to be found in State matters, totality of sentence, Form 1 matters, the back-up charges which I have already referred to and, finally, the overall sentencing disposition. What weight needs to be given to all of these matters against the imperative that all sentencing has as its primary focus the protection of the community will also need to be determined [see R v Cuthbert [1967] 2 NSWR 329, R v Rushby (1977) NSWLR 597, R v Hayes [1984] 1 NSWLR 740].

The Facts

12. There is a very detailed statement of facts contained in the Crown brief. They do not appear to be in dispute. It commences with a background of the offender born in Tripoli, Lebanon on xx xxxx 1969 was granted citizenship in the Commonwealth.

13. At his address at xx Brandon Street, Bankstown a police search warrant was executed on 25 November 2005. Significant for my purpose is a number of forms of identification carrying various names and birth dates were found, namely two driver’s licences, a New South Wales learner’s driver’s licence, an Australia passport in the name of Basam Marush, a St George Visa card in the name of Sam Robinson, a credit union Redicard key in the name of B Marush, a Colonial Access key card in that name, B Marush, a BankWest card in the name Sam A Robinson, a Medicare card in the name of Basam Marush and another Medicare card in the name of Sam Robinson; both Medicare cards having different expiry dates.

14. It would appear from that material that Mr Robinson is maintaining dual identities. I am satisfied that these items, together with some letterheads, business cards and the like, were being kept, if not created, for the purpose of facilitating fraudulent activity being undertaken by the offender at or in the period prior to his arrest. I am not suggesting that these matters have a longstanding use going back to 1991, I am confining my view about them to the matters occurring in 2004, 2005, 2006.

15. The first of the offences occurs in July 1991 when the offender became a bankrupt under the alias Sam Robinson, born on xx xxxx 1966. The statement is false because he states that he was born in 1966, when his true date of birth is 1969.

16. The charges 2 to 4 relate to losses of a firm known as Big River Timbers in the sum of $50928. They all relate to orders being given by him on three occasions, one for $12444, another for twelve thousand seven hundred and fifty­five dollars and a final order for twenty-five thousand seven hundred and twenty-eight dollars. They would be ordered by various means, telephone calls or faxes. There was letterhead used from NJH Investments Pty Limited. When his residence was searched blank NJH Investments Pty Limited letterheads and a business card for Big River Timbers Pty Limited were found. ASIC records show that the offender was appointed as the sole director of NJH Investments Pty Limited on 7 January 2005. Of course he has an obligation when entering into business dealings as a bankrupt to disclose his bankruptcy. That was not done. He used a mobile telephone number which has a contact number with the e-mail address “buildon@bigpond”. That is also an e-mail address for NJH Investments. The material was picked up by unidentified delivery driver. A $12444 cheque from NJH Investments was returned unpaid. As I say, that procedure was followed in both the other charges. The dates of the charges are significant; 21 March, 22 March, 23 March, that is to say giving the supplier little time to realise that he was dealing with a vacuum.

17. Indictment charges 5 to 8 again are the obtaining of goods from Winnings. The total loss to Winnings Appliances Pty Limited was $41,885. That was comprised of two refrigerators totalling $7600, and a number of household appliances- that was on 14 April- on 15 April a number of household appliances to the value of $6700. Then a second strike, as it were, on 14 October in the sum of $10,500. The first of the strikes, if I can put it that way, was done in the name of NJH Investments. The second was done in the name of Elite Constructions Pty Limited. I have already dealt with NJH Investments but Elite Constructions Company extracts show that the offender has never been a director or shareholder of that company. He does, however, have a driver’s licence which gives the same address as the address given for the company. Again, cheques were paid, if I remember correctly, and the cheques were dishonoured.

18. On 18 October, which follows the 14 October one, there was another taking of $17,085 for several items. On this occasion they received a cheque from Basam Marush Trading, as distinct from the cheque given the time before in Unique Developments. Again that cheque was unpaid. Basam Marush was trading as Centrum Design. The company director of Centrum Design when looked up was found to be Frank Robinson, who is said to be the offender’s father. He appeared again somewhere.

19. Charges 9 to 16 are all State matters, 178BA Crimes Act 1900. They relate to fraudulent dealings with Telstra. So far as these charges are concerned, that is the indictment charges 8 to 16, there are eight separate mobile telephone contracts with Telstra. Two of them are entered on 25 March 2005 with Fone Zone at Hurstville. They are agreements made on behalf of NJH Investments to enter into a contract for twenty-four months and pay $3400. On 6 April at Fone Zone at Parramatta three contracts are entered into by Sam Robinson on behalf of United Joinery Pty Limited. Two days later two further contracts entered into by Sam Robison on behalf of NJH Investments Pty Limited, interestingly, giving the same address for that company as for United Joinery, were entered into.

20. The United Joinery contracts were for $4479, $4529 and $ 4599 respectively over two years. The NJH Investment contracts were for two thousand $2269 over twenty-four months and $2439 over twenty-four months. There was a further contract entered on 30 December at Macarthur Square, again with Fone Zone. This time Sam Robinson, on behalf of ATS Formwork Pty Limited, and that was for $2599 over twenty­four months.

21. The offender made admissions in relation to the offences in his record of interview. He said that he used some of the phones and sold some for $200 to a phone repairperson, who he called Osman, said reside in Condell Park. The offender provided identification to the mobile phone providers in the form of either a driver’s licence, a bank keycard or a Medicare card. He represented himself either as a director, an employee or he provided a letter of authorisation on company letterhead to enter into the contract, confirming my view that those materials, as I said earlier, were being used and saved for that purpose.

22. The Form 1 matters also relate to Telstra. They are matters of the same kind. The total benefit by deception is said to amount to $16553. In fairness, that would have to be regarded as the greatest expectation. Whether he received that benefit or not is moot, because the contracts were over a twenty-four months period. It would appear that these contracts were frustrated, or at least some of them, before that twenty-four month period expired. But certainly he received the benefit of the telephone and such calls as he was able to make, for the months he was able to make them until the contract was terminated. The offences in the Form 1 commence on 8 July at Crazy John’s, Parramatta and go through to December 2005 at Fone Zone, Macarthur Square. It would appear that much the same procedure was adopted.

23. When this matter first came to me it was accompanied by a severity appeal in respect of thirty-five other counts of fraudulent criminal activity. For those offences he was sentenced, if I have understood correctly, to an overall period of twelve months imprisonment. The period of that offending conduct covered by the charges commences on 18 October 2004 and continues through to 19 October 2004. There is another period of offending in March 2007.

24. While this appeal has been withdrawn the dates and scope of the offending, some $300,000 of it on my count, have relevance as part of the background and for the purposes of evaluating any explanation the offender has offered for committing these offences. He is not being sentenced for them, nor are they adding otherwise to the sentences about to be imposed. They simply form part of the material that I have used to evaluate the explanation he gives for offending, as one will see shortly.

Objective Criminality

25. I turn now to the objective criminality. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour. That is done by comparing objectively the criminality exhibited in the instant offences with criminality of offences of a similar kind. It is in this way that the seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact on the overall sentencing outcome.

26. So far as the Commonwealth offences relating to fraudulent criminal conduct by the offender as a bankrupt are concerned the nature of the criminality has been discussed in two cases drawn to my attention by the Crown. The first of them that I rely upon is R v Colleen Halls and Francis Halls [2002] NSWCCA 55, where his Honour Buddin J remarks:
“The sentencing judge characterised the offence as being serious, as it undoubtedly was. His Honour placed emphasis upon the fact that offences created by the Bankruptcy Act 1966 are designed to protect credit providers. His Honour said that the commission of the various offences `represent a total and utter disregard of the Bankruptcy Act and the requirements it places on the [bankrupt].’

A little later his Honour said that it is necessary to:
“Deter by sentences of imprisonment those who fraudulently obtain credit whilst bankrupt. Without clear statements from these courts the Bankruptcy Act would be set at nought, to the detriment of a great number of debtors and creditors alike.”

His Honour Buddin J said that he endorsed the sentiments expressed by the sentencing judge.

27. In another case, Paragalli [2006] NSWCCA 87, Sully J, with the support of the other members of the court agreeing, made this observation:
“Deterrence, both general and personal, but especially general deterrence, was a significant factor in aid of maintaining the integrity of the law of bankruptcy without which there would be serious public disadvantage of various commercial, economic and social kinds.”

28. As a consequence of Robinson’s fraudulent conduct his suppliers lost goods to the value of: Winnings, $41,885; Big River Timbers $50,928, making a total of $92,800. The count 1, is a stale offence. The plea of guilty nonetheless establishes the offence was deliberately committed. I am satisfied beyond reasonable doubt the offender saw or recognised some advantage to him and some disadvantage to another or others in his false completion. Thereafter, however, speculation is necessary to determine the nature of the advantage to him or the disadvantage to the trustee in bankruptcy. Of course, I am not allowed to speculate and I do not do so.

The Section 178BA Matters

29. The criminality of these frauds is that they show disregard for the property and property rights of others. The law is interested in keeping the peace. In this context peace embraces the property and property rights of others in the community. When fraud is committed upon business it interferes with the smooth flow of commerce, requiring businesses that seek to protect themselves from fraud to go to greater and greater expense as devices and procedures are implemented to minimise fraud. Those increased expenses are passed on to honest customers in higher prices for their purchases. These frauds are all perpetrated against one supplier.

30. The appeal courts have made it clear that where there is a pattern of fraudulent activity by an offender over an extended period using...and associated paraphernalia, such as fraudulent driver’s licence, specific deterrence is...an important consideration on sentence [see R v Araya].

31. I have already mentioned that the claimed advantage to the offender and disadvantage to the supplier is $27,712. The total criminality therefore represented by all of the offences before me is $120,000.

32. The Crown in his submissions as to the nature and circumstances of the offence made the following points:
“25: In relation to count 1 and the two offences on the section 166 certificate the offender when petitioning for bankruptcy deliberately made false statements when swearing an affidavit to Insolvency and Trustee Services Australia.

26: In relation to counts 2 to 8 the offender perpetrated a sophisticated fraud on unsuspecting companies when he respectively ordered raw timber materials and whitegoods from Big River Timber Pty Limited and Winning Appliances Pty Limited by faxing to them evidence that he had paid for their goods in the form of stamped receipts for a cheque deposited into their respective bank accounts. The offender would then collect the goods before the cheques were dishonoured. In all instances the offender did not comply with his statutory obligation to disclose he was an undischarged bankrupt. The company victims sustained an aggregate loss of $92,813.

In relation to counts 9 to 16 and the ten further offences on the Form 1 schedule the offender attended on unsuspecting Telstra retail outlets, produced false identification in multiple names, dishonestly entered into long-term contracts and obtained mobile phone handsets and call services. The offender’s conduct resulted in a loss to Telstra of $72,700.”

33. I am satisfied the offending was deliberate. Items such as the false driving licence, outdated letterheads and the like were, as I say, kept to facilitate a course of dishonest conduct.

34. The offender told Probation and Parole his motivation for committing these offences was because he and his family had been threatened by subcontractors who had not been paid for work undertaken. There is no evidence before me as to the work undertaken by the subcontractors, nor is there any evidence as to why that work was not productive of income in the hands of the offender or as to the size or amount of any shortfall in income if it was productive of income. Nor has there been any opportunity for testing that evidence, that is the evidence of what he said to Probation and Parole. Frankly, not only do I reject it as not being established but I am satisfied it is untrue. In saying so I am not only conscious of the material before me but I also take into account the fraudulent activity dealt with in the Local Court in which sums of $300,000-odd came to the offender. I also note the offender’s activity in on­selling telephones for a claimed $200 as pointing to a potentially different reason for these frauds. I say potentially different reasons so that it can be understood why it is that his evidence is rejected as untrue.

Subjective Matters

35. Here I am dealing with both Commonwealth and State matters. Both the Commonwealth, s 16A of the Crimes Act 1900, and the State's Crimes (Sentencing Procedure) Act 1999, s 21A, provide statutory checklists of matters the Court must consider when sentencing. I shall, so far as I can, review the subjective features as I would at Common Law and at the same time keep my eye upon the relevant statutory provisions.

Background and social dynamics

36. The offender was born, as we have discovered, on xx xxxx 1969. He is now, if my maths is correct, thirty-eight years of age. He has a wife and fathered six children with her. He came to Australia from Lebanon in 1974. He told Probation and Parole that he had experienced a difficult childhood as a consequence of his father’s psychological and physical abuse. I have read elsewhere that he has six siblings. His relationship with his father has been stressed, he says as a result of lifelong psychological and physical abuse. His mother no longer lives, she died in 1980 but the evidence is he enjoyed a positive relationship with her. He told Probation and Parole in April of this year that one of his brothers has been assisting his family financially

Education, Skills and Employment

37. He told Probation and Parole he had left school in Year 11 to commence a carpentry and joinery apprenticeship. He had qualified as a carpenter and worked in the building industry for the majority of his adult life. He says that at the time of these offences, by which I take him to mean the latter ones I am dealing with, he was self-employed. The precise nature of the self-employment is not disclosed. He appears to have run his own business. He declared himself bankrupt in 1991 as a consequence of outstanding debts. Whether he continued to run that business or some other business I know not. He gives as an account that he was engaging subcontractors. While I have rejected his account of owing the money I have not gone so far as to reject his account that he may, indeed, have been engaging subcontractors. I have assumed for the purposes of the sentencing that he has continued to be engaged at some level and in some way in the building industry.

General Health

38. There is no complaint so far as I can see made anywhere in respect of his general physical health. He presents in Court older than his thirty­eight years, but otherwise I can make no finding as to his general physical health.

Mental Health Issues

39. There is evidence in the pre­sentence report of depression. The nature of the depression, whether it is reactive or caused from some other cause, is not disclosed. It is apparently being addressed with medication. He is also described in the pre-sentence report as an emotional person who appears to struggle when confronted with traumatic events. I do not entirely understand what is meant by that because I think most of us would struggle when confronted with traumatic events but I think that what the author is seeking to do is to highlight his emotional and, perhaps, sense of anxiety or panic.

40. The issue of gambling was raised, presumably by pre­sentence report authors, in an endeavour to find an explanation for the offending. The offender denies that such gambling as he does is pathological, claiming it to be under control. While I speculate he is in denial I can make no finding about it. I have no evidence that could satisfy me on the balance of probabilities that he has such a condition.

Drug and Alcohol

41. In the Liverpool Local Court in April this year a report was tendered by the Probation and Parole saying that during this period of incarceration he had been assessed by a departmental alcohol and other drug counsellor and found to have no alcohol or drug issues that require intervention but presents as depressed and anxious. He had made several applications to see a psychologist but as at April had not been able to see one.

42. One of the difficulties is, is that in the prison system, while psychologists are overworked and difficult to get to, inmates put their names down to see psychologists for a number of reasons. Frankly the fact that he is seeking the services of a psychologist does not tell me much.

Attitude to the Offence

43. The offender claims contrition. Such contrition as he has expressed has not focussed upon his victims, who may well be established companies that he thinks can afford his fraud, but upon members of his family. While such an attitude may well suggest little insight into his offending conduct or the causes of it, it does at least, recognise its impact upon his family. He recognises they will find his time in custody arduous and they will find it financially difficult.

Rehabilitation Prospects

44. His rehabilitation prospects are clouded. There is recent history of prior offending. Little insight into its impact on victims or its causes. On the other hand, he has family who grieve his absence and he desires to be with them. He possesses work skills and claims a work ethic. Those latter three are of positive impact on assessing rehabilitation prospects. In my view his rehabilitation prospects depend upon him coming to grips with the causes of his offending.

Plea of Guilty

45. The court history of this matter has been set out by the Crown. It does not seem to be challenged on behalf of the defence.

46. On 28 November 2005 he was arrested and charged. There were a number of adjournments and on 12 September 2006 he pleaded not guilty in the Local Court and was committed for trial to the District Court. On the second mention date in the District Court, that is 20 October 2006, a trial was set down for three weeks. That trial was scheduled to commence on 19 February this year. On 16 February, however, the trial date was vacated. No jury therefore was summonsed for this trial. He had suffered burns to his hands and a medical certificate had been produced. It was at that stage that a plea was indicated as a potential outcome. On 23 March, 5 April, 4 May the matter was mentioned again. On 11 May, plea negotiations were entered into with the Commonwealth DPP. On 18 May the offender indicated to the Court he was ready to plead to an indictment and admit to charges placed on a Form 1.

That shift in position required further consideration by Legal Aid. On 25 May legal aid was approved. Necessarily, a two-week adjournment was sought to properly assign defence counsel. On 18 June the offender was arraigned and pleaded guilty to the current indictment.

47. The Crown acknowledges that the pleas in respect of the State matters effect a utilitarian purpose and in respect of the Commonwealth matters have facilitated the course of justice. While the plea is not an early one, it would appear that notice was given in sufficient time of his illness for no jury or witnesses to be inconvenienced otherwise than by preparing statements for the committal. Of course, with the trial being set down there were documents prepared and served upon the accused in respect of the potential trial.

48. Pleas of guilty serve utilitarian purpose and, indeed, facilitate the course of justice because it is important to the administration of justice that offenders acknowledge their guilt. Acknowledgements of guilt by offenders promotes confidence in the administration of justice because offenders are held accountable for their offending, because investigation officers are seen to have done their job well and satisfactorily and because the prosecution is seen to have acted fairly. It also saves court time, witnesses’ time and frees up other resources of the Court so that the Court can be used for other matters and so that officers of the court, and particularly I think of counsel, can be made available for other matters.

49. I intend to take into account the benefits to the administration of justice and the utilitarian value. The benefits to the administration of justice will not be quantified in respect of the first eight matters. In respect of the discount available for State matters I intend to give a discount of fifteen per cent to the overall sentence.

Totality

50. At the end of the day the requirements of Pearce v The Queen (1998) 194 CLR 610 and totality often conflict. My priority is to have regard to totality while trying, as best I can, to accommodate the principles in Pearcewhich require me to stagger each sentence so that the offender is aware he is serving a sentence for the relevant offence.

51. The offender has been in custody since 15 March?

52. I note that there’s a question as the degree to which the offender has co-operated with law enforcement agencies in the investigation of the offence or of other offences. I note so far as the evidence reveals he did take part in an interview but has not otherwise assisted.

53. In respect of count 13 on the indictment I would be setting an overall sentence of eighteen months imprisonment. Discounting that by fifteen per cent, I think I said, it becomes a sentence of fifteen months.

54. In respect of the remaining seven matters but for the plea of guilty I would have set a sentence of fifteen months and if I discount that it becomes thirteen months, rounding it out. I think that is probably a bit generous but there we go.

55. If you would stand up please.

Formal Orders

56. Mr Robinson, in respect of the matter number 13 that you on 7 April 2005 at Sydney by deception, namely entered into a Telstra mobile agreement to pay Telstra two thousand and twenty­nine dollars over twenty-four months without any intention to honour that contract and thereby dishonestly obtained for yourself a valuable thing, namely a mobile telephone service consisting of a handset to the value of $829 and access to Telstra call network for twelve months valued at $1200, I sentence you to a non-parole period of nine months to date from 14 March 2008 and to expire on 13 December 2008. I find special circumstances - which I do not think I actually referred to - but I find special circumstances. primarily the time you have already served in custody and your age are the factors that cause me to do that. And I set an additional term of six months, to expire on 13 June 2009.

57. In respect of matters 9, 10, 11, 12, 14, 15 and 16 on the indictment, that is to say further occasions being on 6 April in respect of three, on 7 April in respect of three and on 13 February 2005 in respect of the other, I sentence you to six months non-parole to date from 14 March 2008 and to expire on 13 September 2008 and a balance of term of seven months, to expire on 13 April 2009.

58. In respect of the first matter on the indictment, although I note it carries a maximum penalty of four years I also note it was a 1991 offence, for that reason I set a fixed term of six months, to commence on 14 September 2008 and to expire on 13 March 2009.

59. In respect of counts 2 to 8 I set an overall sentence for all remaining offences of two years to date from 14 September 2008 and to expire on 13 September 2010. In the normal course of events I would set a non­parole period approximately sixty-six per cent of that but I have to take into account but I have to take into account the period that you are currently serving in custody. The effect of that is that I set a non-parole period for that offence of eight months, that is for all offences, of eight months, to expire on 13 May 2009.

15/12/2008 - removed personal information - Paragraph(s) 12, 13, 15 and 36