The High Court has dismissed an appeal against conviction and sentence imposed by the District Court. The Court found that there was no miscarriage of justice in relation to the convictions and that the sentence imposed was not manifestly excessive.

The background

The appellant was convicted by the District Court on 19 charges of knowingly filing false GST returns to enable companies he controlled to obtain GST refunds in the knowledge that the companies were not entitled to the refunds. He was also convicted of three charges of aiding and abetting a fourth company in knowingly applying or permitting PAYE tax deductions for a purpose other than payment to the Commissioner. The appellant was sentenced to home detention for a period of 10 months and ordered to perform 200 hours of community work. The appellant appealed his convictions and his sentence.

Appeal against conviction

The District Court Judge had considered the failure of the appellant to give evidence enabled him, in reliance on Police v Trompert [1985] 1 NZLR 357 (CA), to draw negative inferences against the appellant. The Judge raised this matter during counsel’s oral submissions after the conclusion of the evidential phase of the trial. He granted leave to counsel to file written submissions on the point.

The appellant submitted that in terms of fair trial principles, a Judge should only exercise the discretion referred to in Trompert after the Judge has decided a prima facie case has been established, or the Judge, during the course of the trial, indicates he or she is considering exercising the discretion.

Appeal against sentence

The District Court Judge found a term of imprisonment in the range of 24 to 36 months to be appropriate as a starting point. The appellant agreed that was the appropriate range but submitted that the Judge had erred in his identification of aggravating features. It was also submitted that the Judge did not take into account the appellant’s previous good character.

The High Court’s decision

The High Court dismissed the appeals against conviction and sentence. The High Court found as follows:

Appeal against conviction

  1. The submission that if the Judge had not drawn Trompert inferences, he might not have made the findings he did was not accepted on the facts of the case and how the Judge decided the factual issues. There was no miscarriage of justice.

Appeal against sentence

  1. The matters which the Judge referred to in his sentencing notes did not amount to penalising a defendant for entering a plea of not guilty. The Judge’s comments focused on the culpability of the offending by a person who used his particular skills to assert matters that were not true in order to cover up offending. The Judge was entitled to decide that this was determined offending.
  2. The starting point range identified by the Judge was appropriate. The Judge went to the lowest point of the starting range and ended with a sentence of home detention of 10 months’ duration. This was the equivalent of a sentence of 20 months’ imprisonment. The Judge noted that there was no prospect of reparation.
  3. The end sentence was not manifestly excessive. The Judge appeared to have not considered the PAYE charges as justifying any specific uplift but they could be considered to be the more serious charges.

Shortt v C of IR HC Hamilton [2018] NZHC 1139, 12 October 2018.