Barton v R - [2019] NZCA 644

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA534/2018
[2019] NZCA 644

BETWEEN	DAVID SIMON BARTON Appellant
AND	THE QUEEN Respondent

Hearing:	24 September 2019
Court:	Cooper, Ellis and Peters JJ
Counsel:	T D Clee for Appellant R K Thomson for Respondent
Judgment:	13 December 2019 at 11.30 am

JUDGMENT OF THE COURT

A The application to adjourn the appeal is declined.

B The appeal against sentence is dismissed.

C The application to defer the commencement of sentence is declined.

DMr Barton is to surrender himself to the Registrar at the Auckland District Court (Criminal Counter, 65–69 Albert Street) before 10.00 am on Wednesday 18 December 2019.

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REASONS OF THE COURT

(Given by Peters J)

Following a jury trial in December 2017 before Judge Glubb in the District Court at Auckland, Mr Barton was convicted of 10 charges of knowingly failing to provide a tax return when required to do so, with the intention of evading the assessment or payment of tax.[1] Each charge related to a tax year between 31 March 2008 and 2017 inclusive.
[1]Tax Administration Act 1994, ss 143B(1)(b) and (f), with each charge carrying a maximum term of imprisonment of five years.
In August 2018, the Judge sentenced Mr Barton to three years, two months and two weeks’ imprisonment.[2] Mr Barton appeals against sentence on the ground that it is manifestly excessive.[3]
[2]R v Barton [2018] NZDC 17502 at [46].
[3]Mr Barton abandoned his appeal against conviction on 5 March 2019.
At the conclusion of sentencing, the Judge declined both Mr Barton’s applications for bail pending appeal[4] and to defer the commencement of sentence for up to two months.[5] Mr Barton appealed the refusal of bail, successfully, and he has remained on bail since.[6]

Tax debt and reparation

[4]R v Barton [2018] NZDC 17494.

[5]R v Barton, above n 2, at [49]; and Sentencing Act 2002, s 100.

[6]Barton v R [2018] NZHC 2490.

The Judge sentenced Mr Barton on the basis that he had defaulted in the payment of core tax of $400,000, that is Mr Barton would have been assessed for this sum had he filed his income tax returns when due (core tax).[7] This assessment was favourable to Mr Barton. Mr Barton’s accountants assessed the sum due as $410,702, and counsel themselves had agreed the sum was at least $436,000.
[7]R v Barton, above n 2, at [3].
The Judge did not refer to the total due from Mr Barton including interest and penalties but plainly it would have been substantial at the time of sentencing, and would be even more so now.
By the time of sentencing, Mr Barton had paid $43,000 in reduction of the core tax, reducing the same to $357,000, and he promised to pay a further $37,000.[8] As appears below, the Judge reduced Mr Barton’s sentence on account of both sums although, as it turns out, Mr Barton did not pay the $37,000.

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 Barton v R

Details

AGLC: Barton v R [2019] NZCA 644
Case: [2019] NZCA 644
Decision Date: 13 December 2019 at 11.30 am

CaseChat Overview and Summary

The appellant, Mr Barton, sought to appeal the sentence imposed by the District Court in relation to his conviction for multiple charges of failing to provide a tax return when required. The appeal was brought before the New Zealand Court of Appeal, heard by Cooper, Ellis, and Peters JJ. The primary issues were whether the starting point and uplift for prior criminal history were excessive, and if there should be a further reduction in sentence due to reparation made after sentencing. The appeal against the refusal of bail was successful, and the appellant remained on bail.

The Court of Appeal found that the starting point and uplift for prior criminal history were within the appropriate range, based on similar cases. The substantial discount already applied by the District Court for reparation and remorse meant that no further reduction was warranted. The application to defer the commencement of sentence was also declined, as no good reason was provided.

The Court dismissed the appeal against sentence and declined the application to defer the commencement of sentence. Mr Barton was directed to surrender himself to the Registrar at the Auckland District Court before a specified time.

Orders