Jukich v The Queen - [2012] NZCA 231

IN THE COURT OF APPEAL OF NEW ZEALAND

CA786/2011
[2012] NZCA 231

BETWEEN MATE JUKICH
Appellant

AND THE QUEEN
Respondent

Hearing: 16 May 2012

Court: Randerson, Winkelmann and Keane JJ

Counsel: J H A Wiles for Appellant
A R Burns and W N Fotherby for Respondent

Judgment: 6 June 2012 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by Keane J)

On 3 November 2011, following trial, Mate Jukich was sentenced in the District Court, Auckland, to imprisonment for two and a half years for 23 offences of tax evasion in the financial years 2003 - 2007, as a result of which the loss to the Inland Revenue Department was $516,713. Mr Jukich appeals that sentence as manifestly excessive.
In this appeal against sentence, Mr Jukich contends that the trial Judge, Judge J P Gittos, adopted a starting point of two and a half years imprisonment which was too high, and that he wrongly declined to impose home detention. The Judge assumed that only a sentence of imprisonment would be deterrent. He gave no weight to Mr Jukich's depressive illness and in questioning Mr Jukich's remorse, he overstated Mr Jukich's claim to have relied on professional advice. Mr Jukich only claimed to have acted on advice when he elected to delay filing his returns. The Judge also erred in failing to recognise that in 2009 Mr Jukich had returned from the United States to face up to his responsibility.

Investigation and prosecution

Mr Jukich's offending came to light in late 2003, when the Inland Revenue Department noted that, though he was a beneficiary, he was regularly trading in his cars for later models, each time making large cash payments to do so.
Inland Revenue surveyed the retail banks and discovered that Mr Jukich was making cash deposits and receiving direct credits at two, the Bank of New Zealand and the ASB Bank. It found that he was trading through two companies, Raven Developments Limited, which was not GST registered and was using the number of an unrelated company, and Raven Buildings Limited.
In early 2004 Mr Jukich learned of the inquiry and made contact with Inland Revenue. Over the years that the investigation then took, Mr Jukich was interviewed a number of times, at first with different accountants, and then with a lawyer. He supplied Inland Revenue with a return of income for the year ended 31 March 2003 supported by business and financial records. By exercising statutory access to Mr Jukich's home the Inland Revenue obtained more, including computer records. It concluded that amongst the records disclosed to it, or obtained by the search, those concerning relations with sub‑contractors, were fictional.
In 2007, before Mr Jukich was charged with the offences that were expressed finally in the indictment, he went to the United States on a working holiday for two years. He believed that because he had not then been charged, he was free to go. In 2009, on his lawyer's…

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 Jukich v The Queen

Details

AGLC: Jukich v The Queen [2012] NZCA 231
Case: [2012] NZCA 231
Decision Date: 6 June 2012

CaseChat Overview and Summary

Mate Jukich appeals against his conviction and sentence for 23 offences of tax evasion in the financial years 2003-2007, which resulted in a loss to the Inland Revenue Department of $516,713. Jukich argues that the sentence of two and a half years imprisonment is manifestly excessive and that the trial judge wrongly declined to impose home detention. The legal issues before the Court of Appeal of New Zealand are whether the starting point of two and a half years imprisonment was too high and whether home detention was an appropriate alternative to imprisonment.

The Court of Appeal held that the trial judge's starting point of two and a half years imprisonment was justified given the severity of Jukich's offending. The Court found that the trial judge correctly identified the aggravating features of Jukich's offending, including the level of deceit, the amount of tax evaded, and the lack of any recovery or acknowledgement of the loss. The Court also found that the trial judge was entitled to conclude that Jukich did not display any real remorse, despite his claim to have acted on professional advice. The Court of Appeal rejected Jukich's argument that his depressive illness during the years he was investigated should have resulted in a lesser sentence. The Court held that the trial judge's decision not to impose home detention was also justified, as imprisonment was necessary to adequately address the aggravating features of Jukich's offending.

The Court of Appeal dismissed Jukich's appeal and affirmed the sentence imposed by the trial judge. The final orders of the Court of Appeal are that the appeal is dismissed and that the sentence of two and a half years imprisonment is affirmed.

Orders