Robertson v R - [2020] NZCA 218

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA610/2019
[2020] NZCA 218

BETWEEN	STEVEN ROBERTSON Appellant
AND	THE QUEEN Respondent

Hearing:	30 April 2020
Court:	Gilbert, Wylie and Muir JJ
Counsel:	T A Simmonds for Appellant B M Finn for Respondent
Judgment:	5 June 2020 at 2 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Following a six week judge-alone trial before Katz J, Mr Robertson was convicted of 23 charges of theft by a person in a special relationship, 11 charges of obtaining by deception and four charges of dishonest use of a document.[1] He was sentenced to six years and eight months’ imprisonment and ordered to serve a minimum period of three years and four months’ imprisonment.[2] The sentence was constructed by adopting an overall starting point of seven years’ imprisonment and allowing a discount of four months (approximately five per cent) for providing legally binding undertakings that would assist recoveries for the victims of his offending.
[1]R v Robertson [2019] NZHC 2032 [Verdicts judgment].
[2]R v Robertson [2019] NZHC 2773 [Sentencing judgment].
Mr Robertson appeals against his sentence. He argues the sentence was manifestly excessive and no minimum period of imprisonment (MPI) was justified. In particular, he says:
(a)The starting point adopted of seven years’ imprisonment was excessive and should have been of the order of six years.
(b)A discount of approximately 10 per cent should have been allowed to reflect personal mitigating factors — previous good character, personal/family circumstances and remorse.
(c)No MPI should have been imposed.

The facts

The Verdicts judgment is comprehensive and runs to 191 pages. Helpfully, the Judge gave a succinct summary of the key facts in her Sentencing judgment:
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.
The shareholding charges…

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 [2020] NZCA 218
Case: [2020] NZCA 218
Decision Date: 5 June 2020 at 2 pm

CaseChat Overview and Summary

The appellant, Steven Robertson, appealed against his sentence following his conviction on 23 charges of theft by a person in a special relationship, 11 charges of obtaining by deception, and four charges of dishonest use of a document. Robertson was sentenced to six years and eight months’ imprisonment with a minimum period of imprisonment (MPI) of three years and four months. The Court of Appeal was required to determine whether the sentence was manifestly excessive, and if the imposition of an MPI was justified. Robertson argued that the starting point of seven years’ imprisonment was excessive and should have been six years, that a discount of approximately 10% should have been allowed for personal mitigating factors, and that no MPI should have been imposed.

The Court of Appeal found no error in the starting point adopted by the sentencing Judge, rejecting Robertson's submission that the Judge had merely chosen the midpoint of the authorities cited. The Court found that the Judge's consideration of the authorities and aggravating factors was proper and the starting point could not be impeached. The Court also found no error in the Judge's decision not to allow a discount for Robertson's previous good character, personal/family circumstances, or remorse. The Court found that Robertson's claims of remorse were not genuine and were made only at the last minute. The Court accepted the Judge's assessment that Robertson deserved credit for his legally binding undertakings that would assist recoveries for the victims, but did not accept that an additional discount should have been allowed for the likely recoveries. Finally, the Court found that the Judge was correct to impose an MPI, as the normal parole period would not be sufficient to hold Robertson accountable for the harm done, denounce his conduct, or deter him or others from committing similar offences.

The appeal against sentence is dismissed.

Orders