Gunn v Commissioner of Inland Revenue

[2017] NZHC 1930

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-240 [2017] NZHC 1930

BETWEEN

KRISSY LEE GUNN

Appellant

AND

THE COMMISSIONER OF INLAND REVENUE

First Respondent

NEW ZEALAND POLICE Second Respondent

Hearing:	14 August 2017
Counsel:	J Kovacevich for Appellant N B Porter for Respondents
Judgment:	14 August 2017

JUDGMENT OF BREWER J

Solicitors/Counsel:

John Kovacevich (Auckland) for Appellant

Meredith Connell (Auckland) for Respondents

GUNN v THE COMMISSIONER OF INLAND REVENUE [2017] NZHC 1930 [14 August 2017]

Introduction

[1]      Ms Gunn appeals against a sentence of three years’ imprisonment handed down against her on 14 June 2017 by Judge A-MJ Bouchier in the District Court at Auckland.1   The submission advanced by Mr Kovacevich is that a sentence of three years’ imprisonment is manifestly excessive and that a proper examination of the facts behind the charges involved should have left open the door to home detention.

Appeal

[2]      An appeal against sentence proceeds on the error principle. That is to say, my task is to examine the sentence to see whether the Judge erred in a material way.  A shorthand for this is that if the final sentence of three years’ imprisonment is outside the range that was available to Judge Bouchier, then I will intervene.

Background

[3]      The  factual  background  is  somewhat  complex  and  in  some  respects somewhat extraordinary, so I will summarise it.

[4]      There  were  three  tranches  of  charges  before  Judge  Bouchier.    The  first tranche was laid by the Commissioner of Inland Revenue.  There were 23 charges of obtaining by deception, with 17 of those charges being pursuant to ss 240 and 241(a) Crimes Act 1961, for which the maximum penalty is seven years’ imprisonment.

[5]      These charges relate to the appellant claiming income tax and Working for Families Tax Credits to which she was not entitled.  Some refunds were obtained by the appellant in her own name by changing her income details and using inflated tax credits in her income tax returns to create refunds of the tax credits.   She also changed the details of her family circumstances to obtain Working for Families Tax Credits in respect of three children who she was not entitled to claim for.  However, the appellant also impersonated 34 other taxpayers in contact with Inland Revenue in

a quite sophisticated way to obtain money to which she was not entitled.

1      Commissioner of Inland Revenue v Gunn [2017] NZDC 12654.

[6]      In  total,  the  appellant  fraudulently  obtained  refunds  and  payments  from Inland Revenue totalling $121,127.03.  She also attempted to obtain further amounts totalling $268,744.88, but the Inland Revenue declined to pay these amounts.

[7]      The extraordinary components of this offending were that the Inland Revenue Department began to actively investigate the appellant for her offending and warned her several times; but she continued to offend.   The appellant obtained a further

$75,540.99.  Of this, more than $20,000 was obtained after she was informed that she would actually be charged in relation to the offending.

[8]      The second tranche of charges was laid by the Police.  The charges number

19 and relate to the appellant’s use of stolen credit cards and information from them to make purchases both in stores and online.   The total amount obtained by the appellant was $2,235.34, covering seven occasions, although she unsuccessfully attempted to obtain a further $1,168 on a further 13 occasions.

[9]      The third tranche of offending relates to charges laid both by the Police and the Department of Corrections.   The Police laid two charges of failing to answer District Court bail and the Department of Corrections laid one charge of a breach of post-detention conditions.  I note that while on bail for some of this offending, the appellant absconded and it was something like a year before she surfaced again.

Sentencing

[10]     The structure of Judge Bouchier’s sentence is discernible from her sentencing notes although, with respect, her reasoning for adopting the structure is somewhat difficult to follow.

[11]     In short, the Judge adopted a starting point of three years’ imprisonment for offending against the Inland Revenue Department, added six months for the charges laid by the Police and the Department of Corrections, and a further six months to take account of the appellant’s previous convictions.   I interpolate that they are numerous and were counted by the Judge as numbering 51 charges of dishonesty.

[12]     That brought the Judge to a total starting point of four years’ imprisonment. Her Honour did not consider that there were any factors which  would justify a decrease in the starting point other than the belated entry of pleas of guilty.   The Judge, nevertheless, gave the maximum discount of 25 per cent for those pleas of guilty, which resulted in the end sentence of three years’ imprisonment.

Discussion

[13]     Mr  Kovacevich’s  principal  submission  is  that,  based  on  case  law  which focuses  on  the  amounts  of  money  defrauded,  the  starting  point  was  too  high. Mr Kovacevich  relies,  in  particular,  on  the  decisions  in  Steer  v  Police2   and

Thompson v R.3

[14]     I  accept  Mr  Kovacevich’s  submission  that  there  are  cases  where  lesser sentences of imprisonment have been imposed, even though the amounts defrauded were higher than the amounts which Ms Gunn obtained.  However, that is not the point.   Sentencing proceeds  on  an  appreciation  of the totality of the offender’s criminal offending.   In neither of the cases cited by Mr Kovacevich was there a determined regime of offending over a five year period through the creation of 34 false identities.  Neither was there the additional factor of credit card fraud, not to mention factors such as the absconding while on bail for a period of around a year, plus the fact that much of this offending was done while the appellant was on bail for other offences.  Finally, one should factor in the criminal record.

[15]     Looking at the sentencing structure adopted by Judge Bouchier, I think that a starting point  of three  years’ imprisonment  for  the offending against  the  Inland Revenue is about right.   The six months uplift for the offending recorded by the Police and the Department of Corrections is light. The six months uplift for previous offending  is  light.     The  discount  of  25  per  cent  for  the  pleas  of  guilty  is extraordinarily generous.   I do not know why there was not a separate uplift to

recognise that much of this offending was done while the appellant was on bail.

2      Steer v Police [2016] NZHC 877.

3      Thompson v R [2016] NZCA 156.

[16]     All in all, my view is that Ms Gunn was fortunate to end up with a sentence of three years’ imprisonment.  Had she come for sentence before me, the sentence would have been considerably higher.  I gave thought to giving notice to counsel that I was of the view that a higher sentence might be substituted on this appeal.  In the end, I decided that, given the lack of protest by the Inland Revenue Department, the Police and the Department of Corrections, I would not do so.

[17]     It follows that the appeal is dismissed.

Brewer J