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R v Robertson

R v Robertson

Case [2019] NZHC 2773 30 October 2019

Breach of Trust

Unconscionable Conduct

Fraud

Sentencing

Minimum Period of Imprisonment

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-010580

[2019] NZHC 2773

THE QUEEN

v

STEVEN ROBERTSON

Hearing: 30 October 2019

Counsel

B Finn, S O’Connor and C Brooke for Crown T A Simmonds and O Cann for defendant

Sentencing:

30 October 2019

SENTENCING NOTES OF KATZ J

Solicitors: Meredith Connell, Office of the Crown Solicitor, Auckland Financial Markets Authority

Counsel: Lorne Street Chambers, Auckland

R v ROBERTSON [2019] NZHC 2773 [30 October 2019]

Introduction

[1] Mr Robertson, you appear for sentence on 23 charges of theft by a person in a special relationship;1 11 charges of obtaining by deception;2 and four charges of dishonest use of a document.3 Each charge carries a maximum penalty of seven years’ imprisonment. The charges were brought by the Financial Markets Authority (“FMA”) following an investigation into your affairs and those of your associated companies.

The offending

[2] The details of your offending are fully set out in the Reasons for Verdicts (“Verdicts”) that I delivered on 19 August 2019.4

The “trading on behalf” charges

[3] In summary, during the period 2009 to 2015 you operated various companies that sold software packages to people to assist them to trade on share, foreign exchange and commodities markets. The software programmes were not easy to use, and some investors did not have the skills or time to master them or were not computer literate. When confronted with disgruntled investors, you would sometimes offer them an alternative. You (or sometimes one of your staff members) told them that if they gave you their money, you, or one of your companies, would trade it on their behalf by investing it for them in the financial markets. You painted a glowing albeit false picture of your prowess as a trader, for example telling one investor that you were “as good as John Key”.

[4] You obtained significant funds for trading on behalf of clients in this way. You did not, however, trade any of those funds as you had promised. Rather, you used the money for your own purposes, including funding a lavish lifestyle involving expensive cars, frequent travel by private helicopter, luxury weekend getaways, overseas holidays (including by private jet), and expensive jewellery.

1      Crimes Act 1961, s 220.
2      Section 240.
3      Section 228(1)(b).
4      R v Robertson [2019] NZHC 2032 at [3]-[26] [“Reasons for Verdicts”].

The shareholding charges (obtaining by deception)

[5] You subsequently offered some of these “trading on behalf” clients a further “opportunity”. You invited them to become shareholders in one of your companies, or in a company you claimed that you were planning to set up overseas. A number of people took up these offers. This group of victims paid tens of thousands of dollars (and in some cases more than that) for fictitious shareholdings. I found in my verdicts that you never actually intended to transfer shares in the relevant companies, or anything else of value, to this group of investors. Rather,…

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 v Robertson

Details

AGLC: R v Robertson [2019] NZHC 2773
Case: [2019] NZHC 2773
Decision Date: 30 October 2019

CaseChat Overview and Summary

The defendant, Steven Robertson, was convicted on 38 charges of theft, obtaining by deception, and dishonest use of a document, following an investigation by the Financial Markets Authority. The charges stemmed from Robertson's operation of various companies that sold software packages to investors for trading on financial markets. Instead of trading the funds as promised, Robertson used the money for personal expenses, including a lavish lifestyle. The court identified several aggravating factors, such as the nature and extent of the offending, the sophistication of the schemes, the motivation behind the crimes, the vulnerability of the victims, and the significant impact on them. The court determined a starting point of seven years' imprisonment, reflecting the totality of the offending. After considering personal mitigating factors, such as Robertson's previous good character and his efforts to turn his life around, the court decided against granting a discount. Robertson's undertaking to cooperate with liquidators and make assets available to creditors warranted a four-month discount. Ultimately, the court imposed a minimum period of imprisonment of 50%, resulting in a sentence of six years and eight months for each charge, to be served concurrently, with a minimum of three years and four months.

Final orders: Steven Robertson is sentenced to six years and eight months’ imprisonment, to be served concurrently, with a minimum period of imprisonment of three years and four months on each charge.

Orders