Robertson v The Queen - [2021] NZSC 40

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 23/2021
[2021] NZSC 40

BETWEEN	STEVEN ROBERTSON Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	A F Pilditch for Applicant M R L Davie for Respondent
Judgment:	10 May 2021

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.

BThe application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

The applicant was found guilty, after a judge-alone trial before Katz J, of 38 charges arising out of fraudulent trading on behalf of clients and taking funds for fictitious shareholdings.[1] The net loss to the victims of this offending over the approximately six‑year period was assessed at the time of sentencing to be approximately NZD 1.2 million and AUD 271,200.[2] Most of the 22 victims were elderly and either retired or approaching retirement.
[1]R v Robertson [2019] NZHC 2032. The applicant was discharged on three counts and found not guilty on another six counts.
[2]R v Robertson [2019] NZHC 2773 (Katz J) [sentencing remarks] at [16(a)]. The respondent’s submissions note that the victims may recover an undetermined sum from receivers or liquidators.
The applicant was sentenced to a term of six years and eight months’ imprisonment and a minimum period of three years and four months’ imprisonment (MPI) was imposed.[3]
[3]At [37].
The applicant appealed unsuccessfully against sentence to the Court of Appeal.[4] He now seeks leave to appeal out of time to this Court. The applicant wishes to argue no MPI should have been imposed. There is no challenge to the term of six years and eight months’ imprisonment.[5]

The proposed appeal

[4]Robertson v R [2020] NZCA 218 (Gilbert, Wylie and Muir JJ) [CA judgment].

[5]The “trading on behalf of” behaviour gave rise to 23 convictions of theft by a person in a special relationship (Crimes Act 1961, ss 220 and 223(a)); the transfers for fictitious shareholdings gave rise to 11 convictions of obtaining by deception (Crimes Act ss 240 and 241(a)); and, in addition, stealing money from clients’ credit card accounts gave rise to four convictions of dishonestly using a document (Crimes Act, s 228(1)(b)). The maximum penalty for all of these offences is seven years’ imprisonment.

The applicant says the proposed appeal raises questions about the interpretation of s 86(2) of the Sentencing Act 2002. Section 86(2) provides that an MPI may be imposed if the court is satisfied that the period before which the offender would otherwise be eligible for parole is “insufficient” for any of the stated purposes.[6] The applicant says first that there is a question as to the scope of s 86(2); in particular, whether, given the legislative history, it was intended to increase the cohort of offenders who could and would be made subject to MPIs, thereby altering the status quo for those who, like the applicant, had not committed crimes of serious violence. Second, the applicant submits there is…

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 The Queen

Details

AGLC: Robertson v The Queen [2021] NZSC 40
Case: [2021] NZSC 40
Decision Date: 10 May 2021

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the applicant, Steven Robertson, sought leave to appeal against the sentence imposed by the High Court. The applicant had been found guilty of multiple charges of fraudulent trading and was sentenced to six years and eight months' imprisonment, with a minimum period of imprisonment of three years and four months. The applicant now sought to appeal the imposition of the minimum period of imprisonment, arguing that it should not have been imposed given his lack of risk to the community. The Court of Appeal had previously dismissed the applicant's appeal against sentence.

The primary legal issue before the Supreme Court was whether the applicant should be granted leave to appeal out of time against the imposition of the minimum period of imprisonment. The applicant argued that the imposition of the minimum period of imprisonment was arbitrary and beyond the intent of the provision, given his lack of risk to the community. The Court had to consider whether the proposed appeal had sufficient prospects of success and whether there was a risk of a miscarriage of justice if leave to appeal was not granted.

The Supreme Court found that the proposed appeal did not have sufficient prospects of success to justify granting leave to appeal. The Court noted that the issues raised by the applicant had not been squarely addressed in the appeal to the Court of Appeal, and the Court of Appeal had rejected the argument that no minimum period of imprisonment was appropriate in this case. The Supreme Court also found that there was no risk of a miscarriage of justice arising out of the Court of Appeal's assessment of the imposition of the minimum period of imprisonment. The Court accepted the explanation for the delay in filing the application for leave to appeal and granted the application for an extension of time. However, the Court dismissed the application for leave to appeal.

No orders were made.

Orders