R (SFO) v Robinson - [2015] NZHC 1673

NAME, ADDRESS AND OCCUPATION OF "MR C"ARE TO BE SUPPRESSED FROM PUBLICATION IN RELATION TO THIS PROCEEDING AND PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2002.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-10110 [2015] NZHC 1673

THE QUEEN (SFO)

v

ANDREW HROTHGAR ROBINSON

Appearances:
R S Reed and M K Thomas for the SFO

J N Bioletti for the Prisoner

Sentence:

17 July 2015

SENTENCING NOTES OF MUIR J

Counsel/Solicitors:
R S Reed, Barrister, Auckland
M K Thomas, Serious Fraud Office, Auckland
J N Bioletti, Barrister, Auckland

R (SFO) v ROBINSON [2015] NZHC 1673 [17 July 2015]

Introduction

[1] Mr Robinson, you appear for sentencing today on the following charges:

(a) five charges of theft by person in a special relationship, which is an offence against s 220 of the Crimes Act 1961 and punishable by up to seven years’ imprisonment;

(b)one charge of dishonestly using a document, an offence against s 228(b) of the Crimes Act and again punishable by seven years’ imprisonment.

[2] You pleaded guilty on 13 May 2015 with a three week trial scheduled to begin on 18 May 2015.

Facts

[3] I refer briefly to the background facts. The statement of facts indicates that you were a financial adviser who provided financial services through a company called Strategic Planning Group Ltd (SPG). You were one of three directors.

[4] The Financial Markets Authority (FMA) approved you as a Registered Financial Adviser on 19 March 2003. You became an Approved Financial Adviser (AFA) on 20 November 2012, as approved by Grosvenor Financial Services Ltd (Grosvenor).

[5] You and your co-directors each operated your own separate businesses under the SPG umbrella. Your business provided financial services. SPG held operating, trust, and foreign currency accounts with ANZ National Bank. The trust account was originally set up to manage client funds for insurance and tax purposes. You were a signatory on all of those accounts.

[6] As a financial adviser you were obligated to deposit all client money into SPG’s trust account and to disburse or distribute the funds only in accordance with the particular client’s instructions.

[7] Your status as an approved Grosvenor financial adviser enabled your clients to have access to Grosvenor’s administration platform when investing with SPG. That platform provided your clients with additional investment security, administration, custodial and reporting services for each investment they made. Access to that platform was a very attractive feature of the services you offered.

[8] The charges of theft in a special relationship arise out of your misappropriation of client funds between 16 March 2010 and 11 December 2012 when irregularities were identified by Grosvenor and your accounts were closed. Your explanation for the offending was that due to the vagaries of the financial markets, some of your clients lost money and you were too afraid to confront them about it. Whether that simply reflected a weakness of character, a concern that revelation of the truth would have resulted in collapse of your business, or…

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 R (SFO) v Robinson

Details

AGLC: R (SFO) v Robinson [2015] NZHC 1673
Case: [2015] NZHC 1673
Decision Date: 17 July 2015

CaseChat Overview and Summary

The case of R (SFO) v Robinson involved the sentencing of Mr Robinson for multiple charges of theft by a person in a special relationship and dishonestly using a document. Mr Robinson, a financial adviser, had misappropriated approximately $2.69 million from his clients' funds between March 2010 and December 2012. He also falsified client holdings reports to conceal his theft. The court was required to determine an appropriate sentence that reflected the totality of Mr Robinson's offending, taking into account the aggravating and mitigating factors.

The court found that Mr Robinson's offending was highly premeditated, involved a significant number of vulnerable victims, and resulted in substantial financial, emotional, and psychological harm. The court also noted the abuse of trust and the duration of the offending. In determining the starting point, the court considered the culpability of Mr Robinson and compared it with other cases of major defalcations and fraud. The court decided on a starting point of seven and a half years' imprisonment.

The court then assessed the mitigating factors, including Mr Robinson's previous good character, co-operation with the investigation, remorse, and late guilty plea. After applying the discounts, the court determined a sentence of six years' imprisonment, to be served concurrently, with a minimum period of imprisonment of two years and nine months. The court also ordered Mr Robinson to pay reparations to the victims in proportion to their initial investments.

In summary, the court in R (SFO) v Robinson considered the totality of Mr Robinson's offending, the aggravating and mitigating factors, and imposed a sentence of six years' imprisonment, with a minimum period of imprisonment of two years and nine months, as well as an order for reparations to the victims.

Orders