Lindup v Inland Revenue Department HC Nelson CRI 2008-442-000013

[2008] NZHC 2628

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2008-442-000013

BETWEEN  DAVID JOHN LINDUP Appellant

ANDINLAND REVENUE DEPARTMENT Respondent

Judgment:      20 October 2008

SUPPLEMENTARY JUDGMENT OF WILD J

[1]      In my judgment of 16 July I said:

[46]      I would rather see repayment of funds to the IRD maximised, and Mr Lindup’s term of imprisonment shortened by allowance of a 33% sentencing discount, than dismiss this second aspect of the appeal now.  To that end, I adjourn this aspect of the appeal to Friday 17 October 2008.  If, by that date, memoranda received by me from counsel satisfy me that Mr Lindup has done everything practicable to maximise repayment to the IRD, then I intend allowing this aspect of the appeal and substituting a 33% (1 year 10 months) sentencing discount, for the 27% (1½ years) allowed by the Judge.

[2]      I am grateful to counsel for their comprehensive memoranda:  Ms Bonifant’s for the IRD of 14 October; Mr Vesty’s for the appellant of 15 October.

[3]      The available information indicates that the likely total recovery will be about

$100,000.   Mr Lindup defrauded the Revenue of $866,773.82.   I again emphasise that that $866,773.82 was money actually paid out by IRD to Mr Lindup in GST refunds falsely claimed by him.

[4]      That  level  of  recovery  is  approximately  11.5%,  or  9.3%  if  interest  and penalties are added to the sum defrauded, bringing the total to $1,071,239.  I outline

LINDUP V INLAND REVENUE DEPARTMENT HC NEL CRI 2008-442-000013  20 October 2008

that to emphasise the sad end to this sorry tale of deceitful greed, and the very substantial loss that will result to the Revenue, and thus to all New Zealanders.

[5]      Nevertheless, the information in counsel’s memoranda satisfies me that Mr Lindup, through his attorneys, has done everything he reasonably can to cooperate and assist in maximising the recovery to the Revenue.  The available assets have had to be sold on depressed and falling markets, in one case by a mortgagee sale the result of which could only be described as disastrous.

[6]      Accordingly, I allow Mr Lindup’s appeal to the extent that the sentencing discount to reflect his guilty plea and other mitigating factors is increased from 1½ years (27%) to 1 year 10 months (33%).  To give effect to this I quash the sentence of 4 years imprisonment imposed on Mr Lindup and substitute a sentence of 3 years and 8 months imprisonment.

Solicitors:

Zindels, Nelson for the Appellant

Crown Solicitor, Tasman for the Respondent