Gower v The King - [2023] NZCA 609

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA263/2023
[2023] NZCA 609

BETWEEN	DAVID JOHN GOWER Appellant
AND	THE KING Respondent

Hearing:	8 November 2023
Court:	Courtney, Fitzgerald and Churchman JJ
Counsel:	N P Chisnall KC and L A Elborough for Appellant H D L Steele and K F L Lee for Respondent
Judgment:	20 November 2023 at 3.30 pm
Reasons:	1 December 2023

JUDGMENT OF THE COURT

A The appeal is allowed.
B The sentence of two years and three months’ imprisonment is set aside.

C A sentence of four months’ community detention is substituted.

D The sentence is to be served at 40 Colemans Road, Springlands, Blenheim.

E The curfew period is between the hours of 8.00 pm and 7.00 am.

FThe sentence is subject to the standard conditions set out in s 69E of the Sentencing Act 2002.

G The sentence will begin on 21 November 2023.

HMr Gower is to travel directly from prison to the community detention address.

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REASONS OF THE COURT

(Given by Churchman J)

Introduction

The appellant was convicted and sentenced to two years and three months’ imprisonment on one representative charge of aiding and abetting offending under s 143A(1)(d) of the Tax Administration Act 1994.[1] The appellant appealed against that sentence.
[1]Maximum penalty five years’ imprisonment and/or $50,000 fine.

On 20 November 2023 we issued a results judgment allowing the appeal. This decision now sets out our reasons.

Background

The appellant was the sole director of a large company which was having financial difficulties. One of the responses adopted by the appellant was to stop paying PAYE (including pay-as-you-earn taxes as well as student loan, KiwiSaver and child support deductions, collectively referred to in this judgment as PAYE) to Te Tari Taake | Inland Revenue Department (IRD). Between 15 July 2014 and 5 December 2016, payments of PAYE deducted from employees’ wages were either missed or not paid in full on 49 non-consecutive pay periods. In total, the sums unpaid by the relevant due dates, including interest and penalties, amounted to $2,069,539. The core tax said to have been avoided was in the region of $1.3 million. Various late payments were made and arrangements entered into with the IRD in an attempt to clear the debt. However, in December 2016, following failed attempts to clear the debt, the IRD applied to place the company in liquidation.
The appellant was initially charged with 49 charges, being one charge for each relevant pay period. The appellant defended the matter at trial. During the trial, the IRD identified an error in its calculations, and the core shortfall was corrected to $1,007,761. After seven days of trial before a jury, the appellant entered a guilty plea to one representative charge of aiding and abetting offending under s 143A(1)(d) of the Act.
It is not in dispute that by the time of sentencing in the District Court, the appellant had made a further payment of $300,000 from his own funds…

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 Gower v The King

Details

AGLC: Gower v The King [2023] NZCA 609
Case: [2023] NZCA 609
Decision Date: 20 November 2023 at 3.30 pm

CaseChat Overview and Summary

The case of Gower v The King involved the appellant, David John Gower, who appealed against his sentence for aiding and abetting tax offending. The appellant was convicted of failing to pay PAYE to the IRD on 49 occasions between July 2014 and December 2016, resulting in a core tax shortfall of approximately $1.3 million. The legal issues before the Court of Appeal were whether the starting point for sentencing was appropriately determined and whether the sentence imposed was manifestly excessive. The appellant argued that the starting point of four years and two months’ imprisonment was too high given the nature of the offending and the mitigating factors. The respondent maintained that the sentence was within the available range and reflected the aggravating factors.

The Court of Appeal found that the starting point adopted by the District Court was excessive. The Court noted that the offending largely constituted delayed payment rather than wholesale evasion of tax, and there was no attempt to mislead the IRD. The Court also found that the period over which the offending took place was shorter than in comparable cases. After considering these factors, the Court determined that an appropriate starting point would have been three years and four months’ imprisonment. The Court found no error in the application of discounts for mitigating factors, including the appellant’s late guilty plea and reparation payments. Given the amended starting point and the substantial discounts, the Court concluded that the appropriate end sentence would be 22 months’ imprisonment, which could be converted to a lesser sentence. The Court substituted the appellant’s sentence of two years and three months’ imprisonment with a sentence of four months’ community detention, to be served at a specified address with a curfew period of 8:00 pm to 7:00 am. The sentence will commence on 21 November 2023 and is subject to standard conditions.

Orders