On 15 October 2014, in the Manukau District Court, Khalid Mehmood was sentenced to imprisonment for three years for three offences against the Tax Administration Act 1994, after pleading guilty to those offences on the basis of an agreed statement of facts.[1]
[1]Inland Revenue Department v Mehmood DC Manukau CRI-2012-092-13008, 15 October 2014.
Over five and a half years, between 31 October 2005–4 November 2010, Mr Mehmood filed 144 false returns, on behalf of a company of which he was the principal, Areeb Khan Foods Ltd, understating its liability to income tax, PAYE and GST. The core tax evaded was in excess of $1 million. On sentence the total arrears, including statutory interest and penalties, were in the vicinity of $3.4 million.
On this appeal against his sentence Mr Mehmood initially contended that Judge G T Winter took an excessively high starting point, four years. He has not pursued that ground of appeal, but continues to assert that it was unduly severe, in order to buttress the first ground of appeal that he does pursue.
Mr Mehmood’s first appeal ground is that the three month discount the Judge gave him for his previous good character and for his fragile depressive state, and the 15 per cent discount the Judge gave him for his plea, were both manifestly inadequate. As to each, he contends, the Judge failed to take into account how pervasive his state of depression was when he offended and, after he was charged, while he considered his plea.
Mr Mehmood contends, secondly, that his sentence is manifestly excessive because, even if it were normally otherwise appropriate, which he does not concede, it is in his case disproportionately severe.[2] Imprisonment, he contends, prevents him from complying with his daily duties as a practising Muslim; a particular hardship not suffered by sentenced prisoners generally.
[2]Sentencing Act 2002, s 8(h).
This second ground of appeal is retrospective. On sentence Mr Mehmood did not seek such a discount. Nor was it foreshadowed in the materials before the Judge. In his notice of appeal, filed 11 November 2014, furthermore, Mr Mehmood identified his religion as a source of particular hardship on sentence as a relevant cultural and personal factor, not then as a ground of appeal. His concern then was also more confined. It was that he could not obtain in prison the diet his religion prescribes.
In the affidavit evidence he has filed on this appeal, Mr Mehmood now contends that his circumstances in custody deprive him more widely of his ability to comply with his religious duties daily. He has not been able…

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 Mehmood v R

Details

AGLC: Mehmood v R [2015] NZCA 338
Case: [2015] NZCA 338
Decision Date: 29 July 2015 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Khalid Mehmood appealed against the three-year imprisonment sentence imposed on him by the Manukau District Court for tax evasion offences. Mehmood pleaded guilty to filing 144 false tax returns over five and a half years, evading over $1 million in taxes, resulting in total arrears of around $3.4 million. On appeal, Mehmood argued that the starting point of four years for his sentence was excessively high and that the discounts given for his good character, depressive state, and guilty plea were inadequate. He also argued that his sentence was disproportionately severe because it prevented him from fulfilling his daily religious duties as a Muslim.

The Court of Appeal found no error in the starting point of the sentence, as it was well justified by the scale of Mehmood's offending. The court also found no error in the discounts given for his good character, depressive state, and guilty plea, which the judge had generously assessed. Regarding the disproportionate severity argument, the Court found that Mehmood's circumstances, although exceptional, did not make his sentence disproportionately severe. The court noted that Mehmood could still comply with his religious duties at the South Auckland facility, where he would complete his sentence, and that any difficulties he had faced at the Northland facility were being addressed.

The Court of Appeal dismissed Mehmood's appeal against his sentence, finding that it was proportionate to his offending and not manifestly excessive on any of the grounds on which he relied. The three-year imprisonment sentence remained in place.

Orders