Bracken v R
[2022] NZCA 237
•10 June 2022 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA299/2021 [2022] NZCA 237 |
| BETWEEN | JOHN RICHARD BRACKEN |
| AND | THE QUEEN |
| Hearing: | 5 May 2022 |
Court: | French, Venning and Moore JJ |
Counsel: | Appellant in person with Mrs Bracken as McKenzie friend |
Judgment: | 10 June 2022 at 11.30 am |
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
B The appeal against sentence is dismissed.
___________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Following a judge-alone trial in the High Court John Bracken was convicted of 39 charges of using a document to obtain a pecuniary advantage.[1] On 11 May 2021 Lang J sentenced Mr Bracken to eight years and six months’ imprisonment.[2]
[1]R v Bracken [2021] NZHC 609 [Reasons for verdict].
[2]R v Bracken [2021] NZHC 1032 [Sentencing notes].
Mr Bracken appeals his conviction and sentence.
Crown case
We take the background facts from the summary in the Judge’s sentencing notes:[3]
[3]Sentencing notes, above n 2.
[3] At all times material to this proceeding you were the sole director of a company called Bracken Enterprises Limited (Bracken Enterprises). This company carried on two forms of business. First, it operated a sheep and beef dry stock farming business on land situated near Matawai, to the west of Gisborne. Secondly, it operated a business involving the sale and purchase of plywood and other timber products. It also exported goods of this type to customers in the Pacific Islands along with other products such as kitset houses, milk, honey and bottled water.
[4] Bracken Enterprises initially filed GST returns every two months on what is known as a payments basis. This requires GST to be calculated in accordance with payments the registered person has made and received during the relevant period. In February 2016, Bracken Enterprises began accounting for GST on an invoice basis. This required it to account monthly for GST on transactions for which it had either invoiced debtors or been invoiced by creditors during the previous month.
[5] You and your wife engaged the Gisborne accounting firm Bain & Sheppard Limited (Bain and Sheppard) to act as the tax agent for Bracken Enterprises. At the end of each month you or your wife would provide Bain and Sheppard with copies of bank statements and invoices that recorded the sales and purchases of product Bracken Enterprises had made during the previous month. Bain and Sheppard would then reconcile the company’s bank statements with the invoices to calculate whether Bracken Enterprises was required to pay GST or was entitled to a GST refund. Determination of that issue depended on whether the input tax Bracken Enterprises claimed for product that it purchased equalled or exceeded the output tax it was required to pay on taxable supplies made to its customers.
[6] Each month during the period covered by the charges Bracken Enterprises received a refund. This occurred because it claimed to have sold virtually all of the product that it purchased to customers in the Pacific Islands. When goods are sold overseas the sale is taxed at zero per cent for GST purposes. This meant Bracken Enterprises was required to pay very little in the way of output tax on product that it sold.
[7] The Inland Revenue Department (the IRD) commenced an investigation into Bracken Enterprises’ taxation affairs in early 2018 after being notified by the Serious Fraud Office (SFO) of potential irregularities. The SFO had become involved in 2017 after Ms Raelene Poole, a person who was responsible at that time for preparing Bracken Enterprises’ invoices, contacted it to enquire about the legality of what she was doing. The SFO also referred the matter to the Assets Recovery Unit of the New Zealand Police.
[8] During the investigation the IRD used its powers under s 17 of the Tax Administration Act 1994 to obtain information about Bracken Enterprises’ financial affairs from a variety of sources. First, it obtained from Bain and Sheppard the bank statements and folders of invoices you and your wife had supplied to that firm for the tax year ending 30 June 2018. This material extended into April 2019. Bain and Sheppard had earlier returned the invoices and bank statements for previous years to you on the basis that you would comply with your obligation under the taxation legislation to retain those documents for seven years. You ignored notices that the IRD served on you requiring you to provide documentary records held by Bracken Enterprises.
[9] The IRD then obtained copies of invoices from suppliers with whom you dealt. When these were compared with the invoices and bank statements held by Bain and Sheppard, material discrepancies became evident. The investigation discovered that you had set up a crude but effective scheme that permitted Bracken Enterprises to regularly obtain substantial tax refunds to which it was not entitled.
[10] The scheme had three key components. First, it involved circular payments through Bracken Enterprises’ bank account. You would go to the bank and withdraw funds from the account in the form of either a bank cheque or cash. You would then immediately re-deposit either exactly the same sum or an amount close to it. On some occasions you added further cash to make the re-deposit larger than the withdrawal.
[11] You then gave copies of Bracken Enterprises’ bank statements to persons who were paid to create invoices that matched the deposits and re-deposits to the company’s bank account. You gave those persons the information necessary to enable them to create those documents. By this means you created a false record of transactions allegedly undertaken by Bracken Enterprises.
[12] The third component of the scheme related to invoices you arranged to have created recording the on-sale of product to overseas entities. This product was the product Bracken Enterprises had purported to purchase using the false invoices. In this way Bracken Enterprises was able to dispose of the fictitious product without accounting for output tax on it.
[13] This scheme enabled Bracken Enterprises to claim that it had entered into transactions amounting to almost $133 million when that was not the case. This enabled the company to obtain tax refunds to which it was not entitled amounting to approximately $17.3 million.
Trial and appeal process
Mr Simperingham had been appointed as standby counsel for the High Court trial. Despite that, Mr Bracken chose to cross-examine witnesses, lead evidence and make submissions himself.
Mr Simperingham was reappointed for the purposes of this appeal. In his memorandum prior to the appeal hearing Mr Simperingham confirmed that Mr Bracken had asked for his wife, Mrs Margaret Bracken, to be permitted to appear as standby counsel and had told Mr Simperingham there was no point in providing him with the Crown submissions and the submissions filed on his behalf (by Mrs Bracken). Mr Simperingham inferred from Mr Bracken’s and the Crown’s submissions that the Court would not be assisted by further submissions from him. He nevertheless attended the hearing.
In a minute issued on 26 April 2022, French J confirmed that while Mrs Bracken could not be standby counsel, she could act as Mr Bracken’s McKenzie friend.[4] Mrs Bracken attended in that capacity at the appeal and assisted Mr Bracken who again chose to represent himself. However, during the hearing Mr Simperingham was also able to assist by clarifying the documents Mr Bracken was referring to and he also read Mr Bracken’s notes in support of the sentence appeal to the Court.
The points on appeal
[4]Bracken v R CA299/2021, 26 April 2022 (Minute of French J).
An application to appeal document was filed on Mr Bracken’s behalf on 28 May 2021. It contains a number of legal definitions, general assertions and also poses a number of questions. The following points can be extracted from the document:
(a)Mr Bracken had a genuine belief that he was doing his business the way he was advised to do so. It was not open to the Court to find that he was wrong. Mr Bracken had a genuine belief that he had the right to use the documents in the way he had.
(b)A number of months passed between the Serious Fraud Office (SFO), Inland Revenue Department (IRD) and the Asset Recovery Unit suspecting something was wrong, yet no steps were taken to “correct” Mr Bracken’s thinking.
(c)Reference is made to Te Ture Whenua Māori Act 1993 and an apparent interest claimed by two Māori beneficial owners of farms held by Bracken Enterprises Ltd (Bracken Enterprises).
(d)Criticism is made of the prosecutor, the principal witness for the IRD, Mr MacDonald, and Detective Camplin from the Assets Recovery Unit of the police, particularly in relation to the issue and use of notices under s 17 of the Tax Administration Act 1994.
(e)Reference is made to the Bills of Exchange Act 1908 and the fact that Mr Bracken had not given permission or consent to the use of his name on any document.
(f)Reference is also made to the law of contract. It is suggested that there was a contract with IRD.
(g)Mr Bracken complained that his ears were ringing during the hearing and in response the Judge told Mr Bracken to stand.
(h)Reference was made to the role of standby counsel.
(i)There was a challenge to disclosure and a complaint that original documents were not produced.
(j)In his reasons for verdict Lang J said that the Crown had failed to prove all its allegations yet entered convictions on all charges and the dollar figure was not changed at the end.
(k)The Judge refused to recuse himself when asked to.
(l)A submission is made that the IRD cannot be a victim as they are a government agency and not a person. IRD witnesses confirmed there was no present debt in the name of Bracken Enterprises. If there was no debt why was the case in Court at all?
The written submissions in support of the appeal were filed under the following heading:
Statement of Claim EX PARTE
Set Aside Void Judgment of CRI 2019-016-001336 CA 299/2021
As of Right
The submissions are introduced by submitting the police and government agencies are a “fictitious plaintiff” and then go on to argue the judgment (conviction) is a nullity and should be set aside on the basis it is void ab initio. Reference is again made to the Te Ture Whenua Māori Land Act 1993, Māori Incorporations Constitution Regulations 1995/2000, the Declaratory Judgments Act 1908 and the Trust Act 1908.
Jurisdiction issues
In his sentencing notes Lang J recorded:[5]
[14] You have never engaged with the Crown’s theory or the substance of the charges. At trial you cross-examined witnesses largely about peripheral issues and the evidence that you called was directed to a similar end. …
[5]Sentencing notes, above n 2, at [14].
As Lang J noted, Mr Bracken did not engage with the Crown’s theory or the substance of the charges at trial. Nor did he initially seek to engage with them at his appeal hearing, or, with perhaps some limited exceptions, in the documents filed on his behalf for the appeal.
The issues which Mr Bracken sought to rely on to challenge the jurisdiction of the Court and whether he was subject to the process of the criminal law fall into two general arguments which are advanced before the Courts from time to time. Neither have any merit.
The first can broadly be described as a sovereignty challenge. In this instance it finds its basis in the references to Te Ture Whenua Māori Act 1993 and the evidence of a Benjamin Te Pairi called by Mr Bracken which included an assertion that Mr Bracken was now whāngai to the Nga Tikanga Māori Law Society Inc. The same witness suggested that if Lang J did not recuse himself he should be removed.
Lang J dealt with the issue as follows:[6]
[44] Mr Te Pairi based his submission that the Court had no jurisdiction to determine the charges on the fact that Mr Bracken had been “whangaied” into an incorporated society known as the Nga Tikanga Māori Law Society Inc. This body is apparently incorporated under the Te Ture Whenua Māori/Māori Land Act 1993 and the Māori Incorporations Constitution Regulations 1994.
[45] Mr Te Pairi relied on the following observations made by Judge Wickliffe on 30 August 2004 in a case before the Māori Land Court involving the Te Nahu Whānau Trust:
Court: Yes. I have to say that I’ve had a look at the documents that have been filed regarding the incorporation proposed by the Ngā Tikanga Māori Law Society. It seems an interesting proposal but just to note that that idea of incorporation is different to and separate from Māori incorporations set up under Te Ture Whenua Māori Act and created in this Court. They are quite different I just want you to know that so when you go into your meeting, whatever decision you made, you make it knowing and understanding that they’re two different things. We’ll have our Court officer there who can explain what an incorporation is under Te Ture Whenua Māori Act which is incorporated by order of the Court and there is a difference to the incorporation established by Ngā Tikanga Māori Law Society. They will provide their proposal and outline what that is when they talk to you. But they’re different and the Court has no jurisdiction over the entity that is created under the Tikanga Māori Law Society and that body is quite different.
[46] As will be apparent, Judge Wickliffe made these observations during a discussion with the parties rather than as a formal ruling or determination. More importantly, however, she made them in an entirely different context to the present. The proposition that this Court has no jurisdiction to determine charges laid against Mr Bracken under the Crimes Act 1961 is plainly contrary to established authority. The Te Ture Whenua Māori Act 1993 relates to Māori land under the land transfer system established by the Land Transfer Act 2017 and its predecessors. It does not apply in any way to the Crimes Act 1961 or to criminal law in New Zealand. Furthermore, there is no express provision in the Te Ture Whenua Māori Act 1993 giving the Māori Land Court or any corporation established under that legislation the power to exercise any jurisdiction in relation to criminal offences.
[47] The Crimes Act 1961 extends to all individuals who reside in New Zealand regardless of any affiliation they might have with any incorporated society. I therefore reject the proposition that this Court has no jurisdiction to determine the charges in the present case.
[6]Reasons for verdict, above n 1 (footnotes omitted).
We agree with that analysis. The appellant’s reliance on Te Ture Whenua Māori Act 1993 and Mr Bracken’s association with the Ngā Tikanga Māori Law Society Inc is misplaced. We endorse the way the Judge dealt with the issue including the observations of Judge Wickliffe.
The short point is that Parliament has sovereign power to legislate. The Crimes Act 1961 was enacted by Parliament. It applies to all persons present in New Zealand, including Mr Bracken. The Senior Courts have been consistent in their rejection of submissions or challenges similar to those raised by Mr Bracken.
A summary of relevant authorities can be found in the decisions of this Court in R v McKinnon, R v Knowles, R v Mitchell, Harawira v R, and R v Toia.[7] In Harawira v R, Chambers J noted:
[8] The principal ground of appeal remains as it was before Nicholson J. Mr Harawira stated the question to be “whether Parliament is sovereign”. Mr Harawira expanded on that argument at some length. In essence, it is his position that Māori never ceded sovereignty, with the consequence that Parliament's right to enact laws is “a fiction constructed for convenience”. Mr Harawira describes the concept of the sovereignty of Parliament as “a fabrication based on pretence”. This challenge to sovereignty has frequently been raised by Māori in recent cases in the High Court and this court. This court has repeatedly said that it is not an issue which can be addressed and resolved by the courts: see, by way of example, [R v Knowles] CA146/98 12 October 1998 and R v Mitchell CA68/04 23 August 2004. As was said in both those cases, the issues which Mr Harawira seeks to raise are matters “for public and political processes and not for judicial ones”.
[7]R v McKinnon (2004) 20 CRNZ 709 (HC); R v Knowles CA146/98, 12 October 1998; R v Mitchell CA68/04, 23 August 2004; Harawira v R CA180/05, 1 August 2005; and R v Toia [2007] NZCA 331.
The position was confirmed by the Supreme Court in Wallace v R where the Court described challenges to jurisdiction on the basis of Māori sovereignty as plainly unsound legally.[8]
[8]Wallace v R [2011] NZSC 10 at [2].
The second general challenge to jurisdiction or validity of the process is based on the argument promoted by self-styled “common law sheriffs” that Mr Bracken is “just a man”, and that a person is a fictional being. Mr Bracken initially said he appeared on behalf of John Richard Bracken and referred to a registration number. He then produced a birth certificate for John Richard Bracken and correspondence with Internal Affairs regarding the “birth source document” apparently to support an argument that a person cannot exist without an originating document.
The arguments Mr Bracken recited are made before the Court from time to time. They are a nonsense and completely unsound. They have no meaning or effect at law.
In Smith v R this Court dismissed an argument in similar form that also referred to police and government agencies as “fictitious plaintiffs” as without merit.[9]
[9]Smith v R [2017] NZCA 288 at [5].
The material in the appeal papers which refer to the Bills of Exchange Act 1908, the law of contract, fictitious plaintiffs and the Trust Act 1908 all fall into this second category. The arguments are frivolous and vexatious. We dismiss them.
After the Court advised Mr Bracken that the Court had previously rejected such jurisdictional arguments he did then take the Court to a number of passages from the evidence.
The evidence
Before referring to the evidence, we note that no challenge has been made to the legal approach taken by the trial Judge in his reasons for verdicts. Nor could there be. In his reasons for judgment the Judge correctly directed himself to the onus and standard of proof and the presumption of innocence. Next, the Judge correctly identified the elements of the charge under s 228 of the Crimes Act which the Crown was required to prove beyond reasonable doubt,[10] and that the acts of dishonesty related to the use of the GST returns, with the intent of obtaining pecuniary benefit for Bracken Enterprises.[11] The issue was essentially factual. Could the Crown prove the charges against Mr Bracken beyond reasonable doubt?
[10]Reasons for verdict, above n 1, at [35]–[42].
[11]At [40].
The Crown case was that 39 GST claims made by Mr Bracken between 31 August 2014 and 31 July 2018 were fraudulent in that the returns claimed back the GST component of purchases that Bracken Enterprises never made. The claims were made and submitted to the IRD on the basis that the goods had been purchased and then exported. The goods were zero rated for GST purposes. While accepting that Bracken Enterprises had, during the relevant period, engaged in some legitimate business of this type by exporting goods to the Pacific Islands, the evidence established and the Judge was satisfied that the overall value of exports attributed to the relevant export code did not exceed $478,868. Customs’ records did not support the exporting of goods under another entity’s export code (in consolidated shipments) on any large scale.
The Judge was satisfied that Mr Bracken was the principal behind the offending. It was Mr Bracken who had arranged for invoices to be created showing both the purchase and subsequent export of fictitious product. Ms Poole and Ms Mookerjee prepared the invoices at Mr Bracken’s direction which were then used to support the fraudulent GST returns.
Mr Bracken also personally carried out the banking and redepositing of funds to Bracken Enterprises’ bank accounts to ensure the transactions appeared genuine. The circular banking transactions underpinned the fraud as they were used by Mr Bracken to create a banking record that simulated purchases (and corresponding sales) to cause Mr Bracken’s accountants to claim back the GST component.
The principal witness for the Crown was Mr MacDonald, an income tax inspector with the IRD. Mr MacDonald commenced his review of Bracken Enterprises’ GST returns in 2018 and identified the fraudulent returns filed by that entity.
Detective Camplin, a detective with the Asset Recovery Unit, executed a search at Mr Bracken’s property at Matawai and uplifted electronic equipment which was subsequently able to be analysed. He also uplifted electronic data from Ms Poole and provided information to the IRD. In addition the Crown called Bracken Enterprises’ accountants, bank personnel who dealt with Mr Bracken and Ms Poole and Ms Mookerjee who had created the false invoices at Mr Bracken’s request.
The Crown also called as witnesses a number of the principals of the entities which the false invoices were said to relate to. They confirmed they had not made the supplies referred to in the false invoices. The evidence was telling. A number had provided Mr Bracken with pro forma invoices following an initial approach by him. In several instances however, they had never supplied Mr Bracken or Bracken Enterprises with any product. In other cases, while some product had been supplied, it was significantly less than recorded in the false invoices. As an example, Mr Logan, who was well known to Mr Bracken, had this exchange with Mr Bracken when questioned by him:
Q. So they spoke about this, this timber and they’ve put you a little bit crook as the timber was for exterior cladding and you mentioned it would take you 10 years to do it but this was just rough sawn timber which didn’t need to be processed.
A. No, I – we never, ever handled that amount of timber John. $11 million worth in one year, I never did that with all my customers in one year or today.
Q. But what I’m saying, Tom, is it didn’t need to be processed, it was just bought, it was just rough sawn –
A. Yeah, but I would have had to buy it John and I would have had to pay the GST after selling it to you but I obviously never paid that GST ‘cos I never sold it.
In another example, the documents purported to show that Bracken Enterprises had purchased logs worth $21,648,000 from Hiktown Ltd between 6 October 2017 and 1 August 2018. Mr McKenzie of Hiktown said it had never supplied any logs to Bracken Enterprises.
We address the remaining matters referred to in the papers filed on behalf of Mr Bracken and that arise from the passages of evidence he took us to, to the extent the issues have not already been addressed.
Genuine belief
The evidence against Mr Bracken was overwhelming. The invoices which supported the fraudulent GST returns were fictitious and were created at Mr Bracken’s direction. He provided his accountants with false information to complete the GST returns. Mr Bracken engaged in a sustained practice of depositing and withdrawing substantial sums of money to simulate purchases and sales. He could not have had a genuine belief that he was entitled to use the documents as he did to claim GST refunds.
“Correction” of Mr Bracken’s thinking
Mr Bracken next complains that no steps were taken to correct his thinking after the offending came to the attention of the SFO. During 2017, and after a colleague of Mr Bracken’s, Allan Ebbett, made a passing comment to her that she should not be making the invoices, Ms Poole telephoned the SFO. She heard nothing further until she was contacted by Detective Camplin in October 2019. There was no obligation on police, IRD or SFO or any other government agency to tell Mr Bracken that what he was doing was wrong. The obligation was on him not to commit the fraud.
Mr Bracken also seemed to complain that the IRD had not discovered his offending earlier when his accounts were subject to an audit. Any failure of the IRD to discover the offending at an earlier time cannot provide a defence to the charges.
An element of the offending was that Mr Bracken had no belief that he was authorised to present fake GST returns based on fictitious invoices for the purpose of obtaining a GST refund. That was properly found proved beyond reasonable doubt. Mr Bracken knew he was creating false invoices to support the claim for the GST refund.
Further, while Mr Bracken’s accountants raised journal entries to support the GST refunds where the bank records did not support them, the journal entries were based on data (invoices) received from Mr Bracken.
The s 17 notices
Next, there is nothing in the complaint regarding the issue of the s 17 notices under the Tax Administration Act. The Judge dealt with the issue at [53]–[56]:[12]
[53] In his closing submissions Mr Bracken asked me to scrutinise the s 17 notices Mr MacDonald had issued to persons connected with this case. He contended Mr MacDonald had issued the notices after the charges were laid and he did so for an improper purpose, namely to gain evidence to support the charges.
[54] It is not possible for me to undertake this exercise because Mr MacDonald was not asked to produce copies of the s 17 notices when he gave evidence and was cross-examined. The date upon which he issued each notice is therefore not in evidence. It is noteworthy however that Mr Bracken did not formally challenge the admissibility of any evidence obtained using the s 17 notices before trial or when Mr MacDonald gave evidence.
[55] Mr MacDonald also said he began the investigation in March 2018 and issued the s 17 notices shortly thereafter. He stated in cross-examination that he had not issued any s 17 notices after the charges were filed on 30 May 2019. This is not surprising because the material obtained from Bain & Sheppard and [Bracken Enterprises’] bank and suppliers underpinned the IRD’s decision to lay the charges. The IRD could not have made that decision if Mr MacDonald had not already obtained the bulk of that material.
[56] I am therefore satisfied that, although it is not now possible for me to conduct the exercise of determining when the notices were issued, the available evidence points to the conclusion that Mr MacDonald issued them prior to 30 May 2019.
We agree with that analysis. No further evidence has been produced on appeal on the point. Further, Detective Camplin confirmed that he executed the search warrant at Mr Bracken’s property on 18 December 2018, some months before the charges were laid. We infer that the information obtained was used in laying the charges on 30 May 2019.
The original document issue
[12]Reasons for verdict, above n 1.
Mr Bracken criticised the lack of original documents and made something of the fact the font may have been changed. As the false invoices were created on a computer it is not surprising that the font may have differed from time to time. Mr MacDonald confirmed that he got the invoices from Ms Mookerjee and that the police got them from Ms Poole.
For the same reason, it was not possible to produce “originals” of the invoices as the documents were created on computers, principally the computers used by Ms Mookerjee and Ms Poole.
Further, as Lang J recorded:[13]
[57] In his closing submissions Mr Bracken criticised the fact that the prosecution had produced copies of documents and not the originals. This issue was not explored in any depth during the trial and Mr Bracken did not formally object to copies of documents being produced rather than originals until he made his closing submissions.
The Judge’s conduct
[13]Reasons for verdict, above n 1.
Mr Bracken complained at the way the Judge conducted the trial. He referred in his written material to his ears ringing. Mr Bracken did not take the matter further before us. There is no medical evidence to support a suggestion Mr Bracken was not fit to represent himself at trial. The transcript discloses that Mr Bracken was able to take an active part in the trial.
Mr Bracken also complained that the trial Judge had interrupted him and prevented him asking the witnesses what he had wanted to ask. We have reviewed the transcript. The interruptions were moderate and necessary. The Judge was obliged to ensure evidence and questions were relevant to the issues in the case to ensure a fair trial process. He was not obliged to allow Mr Bracken to ask irrelevant questions. The record of the trial provides a complete answer to Mr Bracken’s complaints about the conduct of the trial.
No GST debt
Mr Bracken’s reliance on Mr MacDonald’s reference to there not being a present debt is somewhat of a red herring. As Mr MacDonald confirmed, at the time of the trial IRD had not reassessed Bracken Enterprises for the returns, so there was no change to the tax positions taken by Bracken Enterprises.
Mr Bracken also took the Court to a passage in Mr MacDonald’s evidence where he said he believed $14.5 million had been direct credited to Bracken Enterprises. He made the point the charges referred to in excess of $17 million. However, as Mr MacDonald also explained, some of the refunds were applied to pay Bracken Enterprises’ income tax and the GST and/or income tax liabilities of the Bracken Family Trust.
The number of charges
Nor is there anything in the fact that the Judge did not reduce the number of charges even though some invoices relied on by the Crown were not proved to be false beyond reasonable doubt. The charges related to the 39 GST returns in issue. The GST returns included a number of separate invoices. Where the Judge found that some individual invoices were not proved to be false beyond a reasonable doubt, the relevant GST claim underpinning the particular charge contained other false invoices, so the charge was still made out.
Despite Mr Bracken’s claim to the contrary, the Judge did adjust the value. The schedule originally prepared by Mr MacDonald showed $17,506,658.64 had been fraudulently claimed and paid. At [184] the Judge accepted the figure was less, namely $17,402,918.68.[14]
Crimes Act 1961, s 10
[14]Reasons for verdict, above n 1.
Mr Bracken referred to s 10 of the Crimes Act. Section 10(4) provides that noone is liable to be punished twice in respect of the same offence.[15] Mr Bracken suggested that the IRD were also pursuing him and referred again to the issue of the s 17 notices under the Tax Administration Act. However, s 10 of the Crimes Act has no application in this case. Where there are two or more provisions which the conduct infringes, the prosecuting authority may choose which provision to charge under.[16] Here it has chosen s 228(1)(b) of the Crimes Act. Further, s 10(4) is only engaged where there is a second prosecution. There is no such second prosecution in this case. The proceedings under the Criminal Proceeds (Recovery) Act 2009 are civil proceedings.
Summary
[15]See also New Zealand Bill of Rights Act 1990, s 26(2).
[16]R v Cann [1989] 1 NZLR 210 (CA) at 213.
None of the matters raised on behalf of Mr Bracken nor any of the passages of evidence that he took us to impugn the convictions. The Judge did not err in his assessment of the evidence. There was no miscarriage of justice in the way the trial was conducted.
Sentence appeal
Having found Mr Bracken guilty of 39 charges of dishonestly and without claim of right using goods and services tax returns with the intention of obtaining a pecuniary advantage on 11 May 2021, Lang J sentenced Mr Bracken to eight years and six months’ imprisonment.[17]
[17]Sentencing notes, above n 2, at [44].
The Judge took a starting point of eight years and six months’ imprisonment to reflect Mr Bracken’s culpability in relation to all charges. In arriving at that starting point Lang J had regard to the cases of R v Rowley, R v Patterson, and R v Swann.[18] Lang J regarded Mr Bracken’s offending to be largely comparable to that of Mr Swann.[19] In Swann the Court had taken a starting point of 10 years and six months’ imprisonment. The total loss was similar. In addition, the offending in Swann involved the use of fraudulent invoices, although considerably less than created by Mr Bracken. Against that, the offending in Swann involved a level of breach of trust that was less apparent in Mr Bracken’s case because it related to theft from Mr Swann’s employer. Mr Swann’s offending also continued for six years, whereas Mr Bracken’s offending continued for approximately four years.
[18]R v Rowley [2012] NZHC 2087; R v Patterson [2008] NZCA 75; and R v Swann HC Dunedin CRI-2007-012-4181, 11 March 2009.
[19]Sentencing notes, above n 2, at [31].
Although Mr Bracken had previous convictions for four charges of dishonestly using a document in 2010, and six earlier convictions for dishonestly using a document in relation to ACC claims in 1993, the Judge declined to uplift the starting point of eight years, six months.[20] Balanced against that, the Judge was not prepared to give Mr Bracken a discount for previous good character. He noted Mr Bracken had not acknowledged his offending nor taken responsibility for it. There was no tangible remorse. While Lang J was aware there were civil proceedings under the Criminal Proceeds (Recovery) Act 2009 currently underway Mr Bracken had not made any offer to provide restitution or reparation for the harm caused by his offending, namely defrauding the New Zealand tax system of in excess of $17 million. In the circumstances Lang J saw no basis to allow a reduction or a discount from the starting point.[21]
[20]At [34]–[35].
[21]Sentencing notes, above n 2, at [36]–[39].
Although Lang J considered imposing a longer minimum period of imprisonment (MPI) he declined to impose one despite the seriousness of Mr Bracken’s offending. The Judge noted the point at which Mr Bracken would ultimately be released would depend on a range of factors, including his acceptance of responsibility for his offending.[22]
[22]At [40]–[42].
The notes Mr Bracken had prepared and Mr Simperingham assisted with by reading to the Court set out the effect of the sentence and imprisonment on Mr Bracken. However, Mr Bracken did not advance anything in submissions or in his notes that suggests the sentence imposed was in error or could be said to be manifestly excessive. The sentencing Judge was aware of the likely impact of imprisonment on Mr Bracken given, in the Judge’s words, Mr Bracken’s “misplaced expectation” that he would receive a community-based sentence.[23] That was completely unrealistic.
[23]At [41].
In addition to Mr Bracken’s notes, the Court was also provided with written material filed in support of Mr Bracken by his wife and his daughter. They detail the impact of the sentence upon them and him but do not support a submission that there is an error in the sentence or that it should be adjusted.
The Judge correctly followed the standard sentencing procedure. He referred to and considered the relevant comparable cases, in particular R v Swann.[24] Mr Bracken’s offending required particular consideration of denunciation and deterrence. The Judge was also required to take into account the extent and gravity of the seriousness of the offending.
[24]R v Swann, above n 18.
There were no mitigating factors to Mr Bracken’s offending. He still remains without remorse and has not accepted his culpability. In the circumstances it was not possible for the Judge to apply a discount to the starting point. Indeed it might be said the Judge was merciful in not imposing an MPI of more than the standard one-third.
Result
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Appellant
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