Robinson v The Queen - [2020] NSWCCA 41

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Robinson v R [2020] NSWCCA 41
Hearing dates: 4 March 2020
Decision date: 23 March 2020
Before: Macfarlan JA at [1]
R A Hulme J at [2]
Button J at [61]
Decision:
1. Application for leave to appeal granted.
2. Appeal against sentence granted.
3. Sentence imposed in the District Court on 31 May 2018 is quashed and in lieu the applicant is sentenced to imprisonment with a non-parole period of 2 years and 10 months with a balance of term of the sentence of 1 year and 8 months.
4. The sentence is to date from 23 January 2018. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 22 November 2020.
5. Confirm the order made in the District Court pursuant to s 97 of the Victims Rights and Support Act 2013 (NSW).

Catchwords: CRIME – appeals – appeal against sentence – manifest excess – fraud found in upper end of mid-range objective seriousness – eight years of maximum ten is excessive starting point – no room left for offences above mid-range but below worst case – re-sentenced with six year starting point
Legislation Cited: Crimes Act 1900 (NSW), s 192(e)(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 Cited: 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
Category: Principal judgment
Parties: Albert Robinson (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms M Avenell (Applicant)
Mr A McGrath (Crown)
Solicitors:
Aboriginal Legal Service
Solicitor for Public Prosecutions

File Number(s): 2017/218804
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

31 May 2018

Before:

Payne DCJ

File Number(s):

2017/218804

Judgment

MACFARLAN JA: I agree with R A Hulme J.
R A HULME J: Mr Albert Mark Robinson (the applicant) applies for leave to appeal against a sentence imposed upon him in the District Court at Grafton on 31 May 2018.
The applicant had pleaded guilty in the Local Court to an offence of obtaining a financial advantage by deception. The offence is contrary to s 192(E)(1)(b) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 10 years.
Her Honour Judge Payne imposed a sentence of 6 years with a non-parole period of 3 years 10 months dating from 23 January 2018. Her Honour indicated that the appropriate sentence was one of 8 years but reduced it by 25 per cent on account of the utilitarian value of the plea of guilty.
The sentence was accumulated by 9 months upon a pre-existing sentence of 18 months with a non-parole period of 12 months that had been imposed previously for an unrelated offence (aggravated break enter and steal).
An order was made…

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 Robinson v The Queen

Details

AGLC: Robinson v The Queen [2020] NSWCCA 41
Case: [2020] NSWCCA 41
Decision Date: 23 March 2020

CaseChat Overview and Summary

The parties involved in this case are Robinson, the appellant, and the Crown, represented by the Queen. The dispute centres on the appellant's sentence, which he believes to be manifestly excessive. The case was heard in the High Court of Australia. The appellant was convicted of fraud and was sentenced to eight years imprisonment, with a maximum of ten years possible. He contends that this sentence is excessive and disproportionate given the circumstances of his offence.

The legal issues that the court needed to address included whether the original sentence was a manifest excess and if the starting point for the sentence was appropriately set at the upper end of the mid-range of objective seriousness. The appellant argued that the starting point of eight years was too high, considering the maximum sentence was ten years. Furthermore, the appellant submitted that this starting point left no room for offences that were above mid-range but below the worst-case scenario.

The court considered the appellant's arguments and found that the starting point for the sentence was indeed set too high. The court determined that the correct starting point should have been six years, rather than eight. Given this miscalculation, the court decided that the sentence was a manifest excess and re-sentenced the appellant to a term of imprisonment with a six-year starting point. This re-sentencing aligns more appropriately with the mid-range of objective seriousness for the offence committed.

Orders