Jain v The Queen - [2018] NZCA 408

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA335/2018
[2018] NZCA 408

BETWEEN	JOTI JAIN Appellant
AND	THE QUEEN Respondent

Hearing:	30 August 2018
Court:	Miller, Mallon and Gendall JJ
Counsel:	P F Wicks QC for Appellant M R Harborow and H E Savage for Respondent
Judgment:	5 October 2018 at 2.00 pm

JUDGMENT OF THE COURT

AThe application for leave to adduce further evidence is declined.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Joti Jain pleaded guilty to 21 charges of tax evasion.[1] She was sentenced in the High Court to nine months’ home detention.[2] She appeals against her sentence on the ground that it is manifestly excessive because sentencing Judge, Moore J, adopted a starting point that was too high. She also contends the Judge failed to provide a discount for relevant personal mitigating factors.
[1]This involved 17 charges of aiding the provision of false, incomplete or misleading information to the Commissioner of Inland Revenue intending to evade assessment or payment of tax (under the Tax Administration Act 1994, ss 143B(1)(c), 143B(1)(f) and 148); and four charges of aiding companies to knowingly not provide information to the Commissioner when required, with intent to evade the assessment or payment of tax (under ss 143B(1)(b), 143B(1)(f) and 148).
[2]R v Jain [2018] NZHC 981.
Ms Jain also seeks leave to adduce new evidence. This evidence is an affidavit from Rupinder Chahil, a co-defendant with whom she was in a personal relationship at the time of the offending.

Background

Mr Chahil has been in property development and hospitality since 2000. One of his businesses was a chain of Indian restaurants, named Masala. These restaurants were operated by 17 Masala companies. Ms Jain had met Mr Chahil in 2002 and was initially employed in one of the Masala restaurants. She later became a general manager and a named director of four of 17 companies (the Jain companies) and was involved in the matters that are the subject of the charges.
The offending involved systematic underreporting of cash sales at the Masala restaurants by filing false or misleading GST returns over a period of six years (1 April 2008 to 31 March 2014). These returns underreported some $6.5 million in sales, with a total of $800,555.05 of GST evaded. The offending also involved failing to provide income tax returns for the Jain companies over a period of four years (31 March 2010 to 31 March 2014).
The summary of facts acknowledged that Ms Jain’s involvement was carried out on Mr Chahil’s instructions. It also set out Mr Chahil’s involvement in the offending, and that of Mr Gupta who was the group accountant for the Masala companies. Mr Chahil and Mr Gupta have also been charged with money laundering. Ms Jain received an immunity against prosecution for her role in this aspect of the offending.

Personal circumstances

Ms Jain has convictions for other offending concerning the Masala restaurants. This…

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 Jain v The Queen

Details

AGLC: Jain v The Queen [2018] NZCA 408
Case: [2018] NZCA 408
Decision Date: 5 October 2018 at 2.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Joti Jain, the appellant, filed an appeal against the sentence imposed by the High Court, arguing that it was manifestly excessive and that the sentencing judge had failed to provide a discount for relevant personal mitigating factors. The Crown opposed the appeal and the application for leave to adduce further evidence. The appeal raised two main issues: whether the starting point for sentencing was appropriately set and whether the sentencing judge failed to provide a discount for certain personal mitigating factors.

Regarding the starting point for sentencing, the Court of Appeal found that the sentencing judge was entitled to view the appellant's role as substantial, even though she acted under the instructions of her co-defendant, Rupinder Chahil. The Court of Appeal agreed that the case of Mehmood v R provided an appropriate comparison and that the starting point of three years and three months' imprisonment was justified by the scale of the appellant's offending. The Court of Appeal also found that the sentencing judge had appropriately considered the appellant's personal mitigating factors and had given reasons for not applying a further discount. The Court of Appeal was not persuaded that the sentence of nine months' home detention was manifestly excessive.

The Court of Appeal also declined the application for leave to adduce further evidence as it was not sufficiently fresh, credible, or cogent, and it would not have had a material effect on the sentence. The Court of Appeal ultimately dismissed the appeal.

In summary, the Court of Appeal found no error in the sentencing judge's assessment of the appellant's culpability and the appropriateness of the starting point for sentencing. The Court of Appeal also found that the sentencing judge had appropriately considered the appellant's personal mitigating factors and had provided sufficient reasons for not applying a further discount. The appeal was dismissed, and the application for leave to adduce further evidence was declined.

Orders