Din v The Queen
[2014] NZCA 432
•3 September 2014 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA721/2013 [2014] NZCA 432 |
| BETWEEN | SURESH DIN |
| AND | THE QUEEN |
| Court: | Harrison, Courtney and Clifford JJ |
Counsel: | P F Wicks QC for Appellant |
Judgment: (On the papers) | 3 September 2014 at 10 am |
JUDGMENT OF THE COURT
A Extension of time to appeal against sentence granted.
B The appeal is allowed.
CThe sentence of community work is quashed.
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REASONS OF THE COURT
(Given by Courtney J)
Introduction
In our decision dated 10 July 2014 we allowed Suresh Din’s appeal against conviction on four charges of using a document dishonestly under s 229A(b) of the Crimes Act 1961 and seven under s 228(b).[1] The convictions related to false invoices that Mr Din rendered to the North Shore City Council between 2000 and 2009. We did not order a retrial. We dismissed Mr Din’s appeal against seven further convictions relating to false income tax returns.
[1]Din v R [2014] NZCA 316.
Mr Din did not appeal his sentence but sought leave to do so following the delivery of our decision quashing the 11 convictions. Judge Gibson had imposed a sentence of 10 months’ home detention and 325 hours’ community work in respect of all the offending.[2] The proposed ground of appeal is that this sentence reflected the 18 charges on which Mr Din had been convicted and must now be regarded as manifestly excessive.
[2]R v Din DC Auckland CRI-2010-004-20916, 3 October 2013 at [26].
There is no objection to the leave application and we extend time for Mr Din to appeal against sentence.
Sentencing in the District Court
Mr Din rendered the false invoices at the instigation of his friend and co‑offender, Mr Maharaj, who worked for the Council. Judge Gibson rightly viewed Mr Din as less culpable than Mr Maharaj. He took a starting point of three years compared with the four year starting point taken for Mr Maharaj. The Judge noted that Mr Din felt a sense of obligation to Mr Maharaj for the latter’s help in the past, and recognised Mr Din’s previous good character and lack of previous convictions. He allowed a discount of nine months for these factors. He allowed a further discount of six months in recognition of Mr Din’s offer of $70,000 reparation. That would have produced an end sentence of 21 months’ imprisonment. However, the Judge regarded a custodial sentence as inappropriate and imposed a sentence of ten months’ home detention and 325 hours’ community work.
In imposing these sentences the Judge did not distinguish between the convictions arising from the false invoices as opposed to the income tax returns and did not impose separate sentences for each charge.
Appeal against sentence
Mr Wicks QC, for Mr Din, submitted that the Judge made an error in not identifying a separate sentence for each offence or for each category of offences. He submitted, further, that the charges relating to the tax returns would not have attracted the sentence imposed. Therefore, the sentence of home detention and community work should now be regarded as manifestly excessive. Mr Din is close to completing the sentence of home detention and Mr Wicks submitted that the outcome of the conviction appeal should be recognised by quashing the community work sentence.
Mr Dickey, for the Crown, submitted that the offending in relation to the tax returns was serious, calling for a deterrent sentence, and that the original sentence was generous, with the result that the remaining community work sentence is still appropriate. Mr Dickey also submitted that Mr Din was treated leniently by this Court in avoiding a retrial, which decision was influenced by the fact that the sentence of home detention had virtually been served.
We agree that the proper course for the sentencing Judge was to identify appropriate sentences for the group of charges relating to the invoices and, separately, those charges relating to the tax returns and then to impose discrete sentences on each charge, with an uplift to reflect the totality of the offending. Although the charges were similar the circumstances of the offending were different and would not necessarily have attracted the same sentence. However, we will only be justified in interfering if the sentence would not have been within the available range for the tax return charges alone.
The two sets of offending were similar in that they involved false representations in documents for pecuniary advantage. In one sense the offending relating to the invoices involved a lesser degree of culpability because of Mr Din’s reliance on Mr Maharaj, whereas the offending in relation to the tax returns was a matter for which Mr Din was entirely responsible. It was also moderately serious offending in the context of the integrity of the tax system.
However, there is a significant factor that influenced the Judge and which we consider makes the sentence excessive if applied only to the tax return charges. In finding the appropriate starting point the Judge referred first to the statement in R v Varjan regarding the relevant considerations in sentencing for this type of offence.[3] He then selected a starting point of four years for Mr Maharaj by reference to cases which bore some factual similarity.[4] In those cases the starting point was determined to a significant degree by the amount of money involved. The Judge referred to this aspect, noting that the proven loss to the Council from the false invoices was $145,013.25, though he had been satisfied from the evidence that the true loss was much more.
[3]R v Varjan CA97/03, 26 June 2003 at [22].
[4]Wang v Police HC Auckland AP235/94, 6 December 1994; R v Davis [2009] NZCA 26; Thomas v Police HC Auckland CRI-2008-404-343, 9 February 2009; Bates v Police [2013] NZHC 186.
When the Judge turned to consider Mr Din he took a starting point of three years in recognition of Mr Din’s lesser culpability in relation to the offences involving the false invoices. Apart from noting the convictions relating to the tax returns at the start of the sentencing, the Judge did not mention those offences again. Although it was accepted at trial that there had been a pecuniary advantage obtained from the false income tax returns, there was no attempt to quantify that advantage; it was merely recognised that Mr Din had paid less tax than he should have through claiming deductions to which he was not entitled. It is a reasonable inference, we think, that the benefit to Mr Din was much less than the loss to the Council resulting from the false invoices.
We are satisfied that the charges relating to the tax returns on their own would not have attracted the sentence imposed because the cases used as comparators would have been those involving less money. For example, in Cooper v Serious Fraud Office a sentence of imprisonment based on a starting point of two years nine months’ imprisonment was upheld for offences where the losses had exceeded $300,000 and the benefit to the defendant had exceeded $100,000 (home detention having been refused for appropriate reasons).[5] In McCready v R this Court dismissed an appeal against a sentence of six months’ home detention for filing false income and GST returns, describing the sentence as generous.[6] The offences had resulted in over $12,000 in tax evaded and refunds of $49,564 paid to the offender. In R v Nandan seven offences over a lengthy period, from which the defendant benefitted to the extent of between $17,000 (net) and $46,000 (gross), attracted a starting point of 18 months.[7]
[5]Cooper v Serious Fraud Office [2014] NZHC 806.
[6]McCready v R [2010] NZCA 596 at [16].
[7]R v Nandan [2002] 2 NZLR 783 (CA).
In our judgment the appropriate range for a starting point for the offences relating to the tax returns alone would have been between two years and two years nine months. We do not consider that the deductions of 15 months allowed by the Judge for previous good character, clean record and reparation were unduly generous. Mr Din has no previous convictions of any kind, is highly thought of within the communities in which he works and is an active and generous member of his own Hindu community. The discount of nine months to reflect these factors was entirely appropriate. So, too, was the six months’ credit for the substantial offer of reparation.
An appropriate final sentence, had a custodial sentence been imposed, would therefore have been between nine months and 18 months. An appropriate sentence of home detention imposed instead of imprisonment would have been less than the ten months imposed, potentially by some months. We therefore agree that the additional sentence of community service renders the sentence excessive following the outcome of the appeal.
It is true that the reason we did not order a retrial was because Mr Din had nearly completed his sentence of home detention. However, as we have indicated, that sentence is within the appropriate range for the offences so quashing the sentence of community work would not result in an unduly lenient sentence.
Result
The appeal is allowed. The sentence of community service is quashed.
Solicitors:
Swarbrick Beck Mackinnon, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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