David Simon Barton v The Queen - [2020] NZSC 84

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 13/2020
[2020] NZSC 84

BETWEEN	DAVID SIMON BARTON Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, Ellen France and Williams JJ
Counsel:	W C Pyke for Applicant R K Thomson for Respondent
Judgment:	21 August 2020

JUDGMENT OF THE COURT

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

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Barton was convicted by a jury on 10 charges of knowingly failing to file a tax return with the intention of evading his tax obligations. Judge Glubb sentenced him to three years, two months and two weeks’ imprisonment.[1] That sentence was upheld by the Court of Appeal.[2] Mr Barton seeks leave to appeal against the Court of Appeal decision.[3]
[1]R v Barton [2018] NZDC 17502 [DC judgment] at [46].
[2]Barton v R [2019] NZCA 644 (Cooper, Ellis and Peters JJ) [CA judgment].
[3]Mr Barton was unsuccessful in his application to have the Court of Appeal judgment recalled: Barton v R [2020] NZCA 45 (Cooper, Ellis and Peters JJ).
Mr Barton’s application is out of time. However, the delay is not significant, is explained, and the application for an extension of time in which to apply for leave to appeal is not opposed. The application is granted.
Mr Barton also applied to file further material after his written submissions were received. This request was refused on the basis that it would not assist the Court.

Background

The District Court took a starting point of four and a half years’ imprisonment. It applied a discount of 20 per cent for reparations paid, remorse and payment of tax arrears. A further eight per cent discount was given for community and philanthropic work. The end sentence was rounded down to the final sentence of three years, two months and two weeks’ imprisonment.[4] Fines of $10,126 were remitted.[5]
[4]DC judgment, above n 1, at [45]–[46].
[5]At [50].
As at the date of the sentencing, Mr Barton had repaid $43,000. A further sum of $122,000 was remitted the week prior to the Court of Appeal hearing, on Mr Barton’s behalf, to the Commissioner of Inland Revenue, who paid it to the Official Assignee. If the Commissioner receives most of the $122,000, Mr Barton will have paid $165,000, or 40 per cent of the core tax, leaving $235,000 and interest and penalties outstanding.[6] Mr Barton claims he spent $147,00 to support homeless and other people in need while he was on bail but has not been able to supply proof in the form of financial records.

Grounds of application

[6]CA judgment, above n 2, at [8].

Mr Barton’s grounds of appeal are that the sentence imposed is manifestly excessive and that the Court of Appeal erred by not giving further credit for his payments towards his tax arrears and his contribution to the community. Repayment is, he says, evidence of his serious efforts to meet…

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 David Simon Barton v The Queen

Details

AGLC: David Simon Barton v The Queen [2020] NZSC 84
Case: [2020] NZSC 84
Decision Date: 21 August 2020

CaseChat Overview and Summary

In the Supreme Court of New Zealand, David Simon Barton applied for an extension of time to appeal against the decision of the Court of Appeal, which upheld his sentence for failing to file a tax return. The Court of Appeal had already dismissed his application to recall the judgment. The legal issues were whether the application for leave to appeal was out of time, whether the delay was significant, whether the application for leave to appeal was opposed, and whether the appeal had the potential to raise any issues of general or public importance. The Court accepted the Crown's submissions that a reparation order was not appropriate and that it was unlikely that any further reparation would result in a higher discount. The Court also accepted that Mr Barton had many opportunities to repay his tax debt and that his post-sentencing philanthropic expenditure had already been taken into account in the sentencing discount. The Court concluded that no issue of general or public importance arose and that the criteria for leave to appeal were not made out. The application for an extension of time to apply for leave to appeal was granted, but the application for leave to appeal was dismissed. The Court ordered that the applicant pay the costs of the respondent.

Orders