Robinson v R

Overview

1. In a period of 8½ months from March to November 2015, the applicant obtained $515,905 by falsely representing his ability to repay money he borrowed from the manager of a pawn broking business in Grafton. The money was paid to him in about 120 transactions. The deception was that the applicant represented to the manager that he had a claim against James Hardie Pty Limited arising from its operation of an asbestos mine in the local region for which he soon expected to be paid compensation of $1.9 million. The applicant had never made such a claim.

Detail

1. The applicant was from an Aboriginal community in Baryulgil which was the location of an asbestos mine that had been operated by James Hardie. The applicant's father had worked there. Many members of the Baryulgil community were exposed to asbestos as it was used as landfill on the roads, around houses and at the local community school. In the early 2000s members of the Baryulgil Aboriginal community started negotiations with James Hardie for compensation for illness caused by exposure to asbestos. This received media attention. In February 2007 the applicant was interviewed for the local Grafton newspaper and attributed the loss of his right eye to cancer caused by asbestos exposure. Despite this, the applicant never initiated any proceedings against James Hardie or any other entity.
2. The victim was the manager of a pawn broking business owned by his son. He also operated as a payday lender, lending money to risky borrowers at high rates of interest.
3. The applicant first met the victim when he pawned a lawnmower on 6 March 2015. Not long after this, the applicant told the victim that he would soon be receiving a compensation payment in relation to a successful claim against James Hardie. About a fortnight later he came into the shop and asked to borrow money which he said he would pay back when his claim came through. He said, "I am receiving $1.9 million in compensation from James Hardie". The first three borrowings occurred within about a week and they involved sums of $800, $1000 and $1800. The applicant agreed to make full repayment in the near future in sums of $1200, $1300 and $2400 respectively.
4. There were about 120 borrowings at short intervals throughout the period charged in the indictment. Most of the amounts were under $10,000 but there were some greater amounts, the highest being $15,000. On some occasions, the applicant signed an acknowledgment of the total amount he had borrowed thus far; agreeing that he would repay a substantially higher amount in the near future. Of course, that never happened.
5. At some point between August and November 2015, the victim asked the applicant for the name of his solicitor so that the victim could confirm that the compensation claim was real. The applicant provided a mobile telephone number for a "Rodney James" who he said was in Western Australia. The victim called the number and spoke to "Mr James" who confirmed that he was a solicitor in Perth. "Mr James" stated that the applicant would be receiving $1.9 million within five days and a further $1 million several weeks later. This was all part of the applicant's false pretence.
6. The last advance made to the applicant was $8,000 on 20 November 2015. On 24 November 2015, the victim received an email from a person in the legal department of James Hardie confirming that the applicant did not have a pending claim.
7. On 19 December 2015, the victim received a call from a person purporting to be from Western Union who stated that he had seen a cheque that the applicant had received from Western Union. When the victim attempted to call the person back, the person said the line was breaking up and hung up. The victim twice tried ringing the number back but there was no answer.
8. In December 2015, the applicant told the victim that he would be travelling to Perth and that the victim would soon be getting a phone call from Perth confirming the compensation payout.
9. On 12 February 2016, the applicant rang the victim and said that he had deposited $800,000 into the victim's account. He asked the victim to deposit $50,000 into the applicant's bank account once the money arrived. It was at this time that the victim reported the matter to police.
10. The applicant was interviewed by police on 6 July 2017. He admitted that he had borrowed thousands of dollars on a regular basis but was uncertain of the total amount. He agreed that he did not have a pending claim for compensation due to an asbestos-related illness; nor had he lodged any forms in relation to such a claim. He said that he was now in a position to pursue his claim and, if successful, he would be in a position to repay the victim.
11. The applicant said that he had gambled the majority of the money on horse racing and some of it on poker machines. His TAB account indicated that he had placed bets to the value of $279,471 since 26 April 2015. Otherwise, the money was used to pay for travel, accommodation, dining and items purchased at retail stores.

The applicant's background and personal circumstances

1. The following account of the applicant's subjective circumstances is largely drawn from the helpful written submissions of counsel for the applicant in this Court.
2. The applicant was born in 1962 and was aged 52-53 at the time of the offending. His childhood was spent in an Aboriginal community and his family was stable and supportive. He was an above average student; he was artistic and a keen sportsman. He had worked as a sleeper-cutter, stockman and station manager. He married in 1979 and had four children.
3. In 1990, the applicant's oldest child died from meningitis. He was about 4 years old and the applicant was badly affected, particularly because he believed that the death was preventable. He commenced to drink heavily from that point. He did not return to formal work for many years due to alcoholism. The applicant experienced apparent intermittent hallucinations from drinking. He ceased drinking in 2009 and remained abstinent until 2015. Thereafter, he had a few drinks on occasions when he was gambling.
4. In 2004, a psychologist, Ms Anna Robilliard, wrote in a court report that the likely cause of some discrepant psychometric test results was cognitive impairment due to chronic alcoholism. Dr Richard Furst, forensic psychiatrist, wrote in a report of 7 March 2018 that the applicant was alcohol dependent in his 30s and 40s. He diagnosed alcohol use disorder (in remission) and psychotic symptoms not otherwise specified, likely alcoholic hallucinosis. Dr Furst's opinion was that the applicant used alcohol as a maladaptive means of coping with his loss and associated grief.
5. The applicant's gambling problems began when he was about 35 years old and continued through his 40s and 50s. In the years before his arrest, he gambled daily, mostly on horse racing and poker machines. He claimed that he kept asking the victim for money to try and gamble and pay back the money he owed and believed that this would work. Dr Furst diagnosed gambling disorder. He said that in many respects, the applicant appeared to have replaced his alcohol addiction with a gambling addiction.
6. The applicant had hallucinations in the years prior to his incarceration in 2017. He felt more emotional, sensitive and anxious in recent years but was able to maintain a reasonable ability to function.
7. More recently (as at March 2018), the applicant's anxiety increased, he developed paranoid thoughts about other inmates and had insomnia. He was seeing a psychiatrist and was prescribed Olanzapine and Pregabalin. On examination, Dr Furst said that the applicant was positive about the future, did not present as depressed and was not psychotic or suicidal.
8. The applicant's right eye was removed due to cancer in October 2000 but he reported continuing pain in the eye socket. On 29 May 2018, a radiation oncologist, Professor Smee, reported that earlier in 2018 the applicant had a number of clinical symptoms which resolved but which prompted a scan that disclosed an abnormal nerve. Professor Smee said that a biopsy was required and the consequence of this would be loss of neural function in the tissue beyond the biopsy. He said this would change sensation in the applicant's mid-face. Professor Smee said that, if it was cancer, it could not be addressed surgically.
9. The applicant had a history of previous convictions which the sentencing judge described as "very extensive". That was no overstatement. The history commenced in 1985 when the applicant was aged 22 with an offence of break, enter and steal. From 1991 onwards there were offences of larceny, break enter and steal, goods in custody, larceny of a motor vehicle, obtaining property by false pretences, dishonestly obtaining property by deception, using false instrument with intent, receiving, taking and driving a conveyance without the owner's consent and possession of property stolen outside the state. There were also numerous driving offences (such as driving whilst disqualified) as well as some offences of violence (for example assault occasioning actual bodily harm).
10. The applicant was arrested on 28 August 2015 and charged with two offences of possessing a prohibited drug and one of dealing with the proceeds of crime. Those matters were finalised in the Local Court on 18 July 2016 but a significant aspect is that the applicant was on bail in respect of that matter for the last 3 months or so of the offending in question.
11. All of the applicant's prior matters had been dealt with in the Local Court. The full range of sentencing options had been deployed from fines and bonds through to periodic detention, suspended sentences and full-time imprisonment. The longest sentence imposed was 2 years in 2012 for offences of break enter and steal and assault occasioning actual bodily harm.
12. The pre-existing sentence to which the applicant was subject at the time of sentencing by Payne DCJ was imposed on 19 June 2017, following the applicant's arrest on 23 April 2017. He received four-month sentences for multiple shoplifting offences but concurrent terms of 18 months with non-parole periods of 12 months for offences of aggravated break and enter with intent to steal, police pursuit, and drive whilst disqualified. The sentences were to date from 23 April 2017 with the non-parole period expiring on 22 April 2018.

Some findings of the sentencing judge

1. A submission was made to the sentencing judge on behalf of the applicant that the objective gravity of the offence was low. That was largely based upon a contention that the victim was blameworthy to a significant degree. Her Honour responded: "Even if it be the case that the victim clearly was naïve and it must be said it is difficult to understand how this continued to take place, and even if it be the case that he was not following legal requirements, I cannot see how that in any way diminishes the criminality of Mr Robinson. Mr Robinson was prepared to hold out to Mr Gilbert to maintain the deception in order to continue receiving money and it was only when the victim decided to make further enquiries that it came to an end." [1]
2. The judge then referred to various authorities in this court which identified features of offending of this type which are relevant to an assessment of the objective seriousness of the offence. She noted that in the present case there was a very significant amount of money that had been obtained by the applicant and there was no indication of any real possibility of the victim recovering any of it. She had regard to the length of time over which the offence was committed. In relation to the degree of planning and sophistication, she observed that all offences of fraud must involve some degree of planning and in this case there was a limited degree of it. She made reference to the applicant having set up a person who held himself out to be a solicitor who spoke with the victim and also the person who held himself out to be from Western Union. Her Honour observed that it could not be said that the offending was sophisticated in any way. She noted that there was no breach of trust. Her Honour concluded: "In my view, the offending falls well into the middle range, indeed in the upper band of the middle range. The offence is one also where the prisoner himself has shown significant criminal culpability." [2]
3. The judge addressed the relevance of the applicant's gambling addiction. In that regard she referred to a passage of the judgment of Bathurst CJ in Johnston v R [2017] NSWCCA 53 at [36]. Her Honour had noted that the applicant was motivated not only by his gambling addiction but had also utilised the money for other purposes. She concluded: "I should state plainly that in my view his desire to gamble is in no way a feature of mitigation in this case and I accept beyond reasonable doubt that there was an element of greed as well, …" [3]
4. Her Honour then recounted aspects of the applicant's criminal history and described it as one "which disentitles him completely to any leniency". She was of the view that, "it clearly increases the need for a sentence to reflect retribution, deterrence and protection of society". She also said that there was a need for an element of specific deterrence and she regarded general deterrence as a very important consideration in relation to offences of fraud.
5. The judge had regard to the fact that the applicant was on conditional liberty for the period between 28 August 2015 and 20 November 2015: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j). There was also the aggravating feature that the offence involved a series of criminal acts: s 21A(2)(m).
6. The judge accepted that the applicant had shown contrition and remorse. She noted that he had made admissions when interviewed by police on 6 July 2017.
7. The fact that the applicant was awaiting a biopsy in relation to an issue that could disclose something very serious and also the fact that he had already lost one eye from cancer led to her Honour concluding that the applicant's conditions of custody would be more onerous.
8. In relation to the applicant's prospects of rehabilitation and unlikelihood of re-offending, her Honour said: "In relation to his prospects for rehabilitation, in my view they must be guarded in the extreme, in fact I do not think his prospects are fair. He engaged in this serious offending after a history of continued offending, many of those offences which have been referred to are fraud type offences. I am not of the view that he has any prospects of rehabilitation and I certainly am not of the view that this is a crossroads case. In relation to whether he is likely to reoffend or not, I make no finding one way or the other. The mitigating factor is the offender is unlikely to reoffend. I cannot make that finding even on the balance of probabilities nor as I have said (h), the offender has good prospects of rehabilitation whether by reason of the offender's age or otherwise. Again, even on the balance of probabilities, I do not make that finding. There is only some very limited prospect of rehabilitation." [4]
9. Her Honour referred to the need to apply the principle of totality and concluded that there was a need for some partial accumulation upon the pre-existing sentences because they related to "discrete and separate offending which took place after the present offence was committed".
10. Reference was made to the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act. Her Honour referred to each of them and in relation to the protection of the community she said, "there is some element of this in this case". She said that making the offender accountable for his actions was a significant matter, as was the need to denounce the offender's conduct. In relation to recognition of the harm to the victim, her Honour noted that he was 71 years of age and that "it must have been a very, very significant financial loss to him".
11. Special circumstances were found pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act on account of the applicant's alcohol issues and his recently discovered mental health issues.

Ground - manifest excess

1. The principles relevant to the assessment of a ground of appeal asserting that a sentence is manifestly excessive were set out in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. They are well known and need not be repeated here.
2. Counsel for the applicant in this court contended that the following circumstances demonstrated that the sentence is manifestly excessive: ● The amount involved was no doubt significant to the victim as an individual but there was no outer limit to the amount covered by the offence. Much larger amounts are not uncommon. (Various cases were cited to demonstrate that point.) ● There were many transactions over many months but that is not unusual for frauds. (Examples of cases with a greater number of transactions were provided.) ● There was relatively limited planning; the offence was not sophisticated; and there was no breach of trust. The present case was contrasted to those where an offender had access to employers' accounts or systems, or exploited a commercial arrangement. ● The offence was not in the upper range of objective seriousness, let alone the worse-case category. ● The applicant's youth and early adulthood were normal but his life took a downward trajectory in terms of both addiction (and its consequences) and criminal behaviour following the death of his son. That was not something for which he was responsible. ● The applicant was remorseful; receiving psychiatric treatment in custody; had a supportive family; and had positive intentions. ● The medical issues relating to the applicant's eye made his conditions of custody more onerous. That related to the eye itself but also necessitated him being held in a correctional centre in Sydney where he was closer to a hospital. This caused separation from his family on the far north coast of the State. In addition, the applicant was in his mid to late 50s and so was older than the average inmate. ● It was also submitted that the excessiveness of the sentence was even more pronounced given its partial accumulation upon the pre-existing sentence by 9 months.
3. The Crown submitted that the sentence was within the discretionary range open to the sentencing judge having regard to the "upper band of the middle range" finding of objective seriousness. There was also the need for general deterrence and, in particular, the strong need for retribution, personal deterrence and protection of the community because of the applicant's history of recidivism.
4. The Crown also referred to the fact that the applicant was on bail for drug and proceeds of crime offences during some of the offending period, and the fact that the sentencing judge did not find the sentence should be mitigated by reason of good prospects of rehabilitation or unlikelihood of re-offending. The Crown characterised the applicant's subjective case as "unremarkable".
5. The Crown also submitted that the application of the totality principle and the partial accumulation of nine months upon the pre-existing sentence were also open to her Honour.

Consideration

1. I am satisfied that the sentence is manifestly excessive. That conclusion can be reached immediately upon having regard to the finding by the sentencing judge that the offence was in the upper end of the middle of the range of objective seriousness. Her Honour assessed the appropriate sentence, before reduction for the plea of guilty, as being one of 8 years against a maximum penalty of 10 years. If that is an available sentence assessment for an offence within the middle of the range of objective seriousness, it leaves very little room for an appropriate sentence for an offence that is above the middle of the range but not in the worst case category.
2. The other submissions made in relation to the ground of appeal raised matters that are appropriately considered in the re-sentencing exercise.

Re-sentencing

1. There was no challenge to any of the findings made by the sentencing judge and so it is appropriate for this court to proceed to re-sentence with an acceptance of each of them: DL v The Queen [2018] HCA 32; 358 ALR 666 at [9].
2. Two affidavits were read in the event of re-sentencing, one by the applicant and one by his solicitor. The latter was simply the conduit for lengthy medical records to be placed before the court but counsel for the applicant indicated at the hearing that they were merely there to provide confirmation of various matters asserted by the applicant in his affidavit.
3. The applicant affirmed that he had had no charges against him since he was sentenced, nor had he used drugs or alcohol or engaged in gambling. He was at the second lowest level of classification and hoped to achieve the lowest classification soon so that he would be able to have weekend leave from gaol. He also aspires to be considered for work release in the community.
4. The applicant has been engaged in employment seven days a week as a sweeper. He has completed sessions of the EQUIPS Addiction Program and also the EQUIPS Aggression Program. He claims to have achieved a greater level of understanding of his issues in relation to alcohol and gambling addictions and as to controlling his anger. He also said that he had completed a Work Development Order which had enabled him to pay off about $2,500 in unpaid fines.
5. In relation to the biopsy of his eye which was proposed at the time of sentencing, the applicant said that he had cancelled it twice. He said he was not ready to find out that he had cancer again and was afraid to have the operation.
6. The applicant also referred to his health deteriorating. He has been placed on medication for urinary tract issues and there is a suggestion of him having a heart problem and a thyroid problem. He also said that he still heard voices at night and that his mood fluctuated. He was seeing a mental health nurse and a psychiatrist as often as he could. He is currently medicated with Quetiapine and Olanzapine which assists in relation to the issue of voices.
7. Finally, the applicant spoke of his plans for when he is released into the community. They include spending time with family and re-establishing himself in his local Indigenous community in Grafton.
8. It is necessary to impose a sentence that is in a range that is proportionate to the gravity of the offence: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15]. Factors tending towards the upper end of that range include the fact that the applicant has an extensive history of criminal offending, particularly for offences of dishonesty, and that a part of the period of the offending occurred whilst the applicant was on conditional liberty in the community. Factors pulling in the opposite direction include those findings of the primary judge that were favourable to the offender such as his remorse and the more onerous conditions of custody he would endure. The evidence on re-sentencing does not suggest that the applicant has endured anything particularly arduous to date; being incarcerated away from his family is probably the most significant factor.
9. I would partially accumulate the sentence upon the pre-existing sentences by the same degree and for the same reasons as the sentencing judge.
10. An appropriate starting point sentence is one of 6 years. It should be reduced to 4 years and 6 months because of the utilitarian value of the plea of guilty. There was no controversy between the parties about the finding of special circumstances or the ratio of non-parole period to head sentence and effective non-parole period to total effective sentence adopted by the sentencing judge. Accordingly there should be a non-parole period of 2 years 10 months.

Orders

1. I propose the following orders: 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).
2. BUTTON J: I agree with R A Hulme J.

Endnotes

1. ROS at p3.
2. ROS at p4.
3. ROS at p5.
4. ROS at p10. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2020