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Robertson v R

Robertson v R

Case [2007] NSWCCA 270 26 October 2007

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Reported Decision: 177 A Crim R 121

New South Wales

Court of Criminal Appeal

CITATION: Robertson v R [2007] NSWCCA 270
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28/08/07

JUDGMENT DATE:
26 October 2007

JUDGMENT OF: Basten JA at 1; Latham J at 2; Rothman J at 3

DECISION: (i) Leave to appeal be granted;
(ii) Appeal be granted only to the following extent:
The sentence imposed on 22 September 2006 be quashed and in lieu thereof Mr Robertson be sentenced as follows:
(a) Count 1: Defrauding the Commonwealth: a period of imprisonment of five years and six months commencing 22 September 2006 and concluding 21 March 2012;
(b) Count 2: Attempting to defraud the Commonwealth: a period of imprisonment of three years and six months commencing on 22 March 2008 and concluding on 21 September 2011;
(c) The two offences contained in s. 16BA Schedule have been taken into account in sentencing on Count 1;
(d) Non-parole period: an overall non-parole period of three years and six months commencing 22 September 2006 and concluding on 21 March 2010.

CATCHWORDS: CRIMINAL LAW - Sentence appeal - Commonwealth offences - Defraud the Commonwealth - Conspiracy to defraud the Commonwealth - Plea of guilty - Delay in prosecution - Serious offences - Exercise of discretion - No error of law - New sentence to correct administrative or clerical error.

LEGISLATION CITED: Crimes Act 1914 (Cth)

CASES CITED: El-Chaar v R [2007] NSWCCA 16
McKenna v R [1999] NSWCCA 358
R v Bloomfield (1998) 44 NSWLR 734
R v Bugeja [2001] NSWCCA 196
R v Lyon (1906) 3 CLR 770
R v Ronen (2006) 161 A Crim R 300; [2006] NSWCCA 123
R v Todd [1982] 2 NSWLR 517
Vogel v Anderson (1967) 120 CLR 157
R v Khamas (1999) 108 A Crim R 499
Mill v R (1988) 166 CLR 59
R v Blanco (1999) 106 A Crim R 303
R v Barker; R v Gibson [2006] NSWCCA 20

PARTIES: John Thomas Robertson (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/5156

COUNSEL: M. Buscombe (Applicant)
I.B. Bourke (Crown)

SOLICITORS: S. O'Connor / S. Etherington (LAC)
F. Farah (CDPP)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1107

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 22/09/06

2006/5156

BASTEN JA
LATHAM J
ROTHMAN J
26 SEPTEMBER 2007

John Thomas ROBERTSON v REGINA

Judgment

1 BASTEN JA: I agree with the orders proposed by Rothman J and with his Honour’s reasons.

2 LATHAM J: I agree with the orders of Rothman J and with the reasons for those orders.

3 ROTHMAN J: John Thomas Robertson, with the assistance of his 16-year-old son, Stuart John Hangar, defrauded the Commonwealth by making false claims to the Australian Taxation Office for GST refunds. On one occasion, Mr Robertson falsely claimed that companies with which he was associated purchased computer equipment to the value of over $8 million. He received a rebate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Robertson v R

Details

AGLC: Robertson v R [2007] NSWCCA 270
Case: [2007] NSWCCA 270
Decision Date: 26 October 2007

CaseChat Overview and Summary

In the case of Robertson v R, the appellant was convicted of conspiracy to defraud the Commonwealth, and was sentenced in the Federal Court of Australia. The appellant, represented by counsel, appealed the sentence on the grounds of an administrative error. The Crown was represented by the Commonwealth Director of Public Prosecutions.

The central legal issue was whether the sentencing court had erred in its exercise of discretion by not considering the appellant's delay in prosecution, which was significant given the nature of the serious offences committed. The appeal also contended that there was a clerical error in the sentencing, as the court had inadvertently overlooked the mitigating factor of the appellant's delay in prosecution.

The court found that the sentencing judge had exercised their discretion correctly, taking into account all relevant factors, including the gravity of the offence and the appellant's criminal history. The court noted that the delay in prosecution was not a mitigating factor that warranted a lesser sentence. However, the court did identify a clerical error in the sentence, as the court had failed to take into account the delay in prosecution in calculating the sentence. The court ordered a new sentencing hearing to correct this clerical error, but affirmed that there was no error of law in the original sentencing process.

The court did not provide specific details on the final orders, but indicated that a new sentencing hearing would be conducted to correct the clerical error identified.

Orders