Pandey v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

CA724/2012
[2013] NZCA 682

BETWEEN	ASHOKA KANT PANDEY Appellant
AND	THE QUEEN Respondent

Hearing:	13 May 2013 and 4 December 2013
Court:	French, Goddard and Ronald Young JJ
Counsel:	C J Tennet for Appellant H W Ebersohn for Respondent
Judgment:	20 December 2013 at 12.00 pm

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

Mr Pandey was authorised by the Manawatu Greyhound Racing Club to act for it with respect to its tax affairs. On 3 March 2010 he filed the Club’s GST tax return for the period ended 31 January 2010. The Club’s GST return was based on payments made, so the Club could claim a GST reimbursement only in the month the payment was made. The return claimed a GST refund of $46,937.16. Two input claims of $31,011.62 and $7,398.44 made up most of the claim.
Some weeks later, during an interview with an Inland Revenue Department (IRD) investigator, Mr Pandey admitted that the two input claims should not have been included in the 31 January 2010 return. The claim that the payments were made on 29 January 2010 was untrue. The payments were made on 3 March 2010. They should have been included in the GST return for the period ending 31 March 2010.
Mr Pandey was charged with knowingly providing a false or misleading GST return under s 143B of the Tax Administration Act 1994.[1] He pleaded not guilty. He represented himself at trial with the help of Mr Steedman, who was appointed as counsel assisting the Court. The jury convicted him and he was sentenced to 120 hours’ community work.[2] He now appeals against his conviction and sentence.

Procedural background

[1]Specifically s 143B(1)(c) and (h) of the Tax Administration Act 1994.

[2]R v Pandey DC Palmerston North CRI-2012-054-1572, 19 October 2012.

Mr Pandey filed no submissions before his first scheduled appeal hearing at 2.15 pm on 13 May 2013. Early on 13 May he filed a memorandum. At the end of the memorandum, he said:
The appellant recognises his urgent need for the services of a lawyer and is in the process of obtaining professional legal counsel to act for him in all matter for [sic] this point henceforth.
We arranged for Mr Pandey to join us and counsel for the respondent in a telephone conference at 3.00 pm on 13 May. Mr Pandey said that he would prefer an adjournment of the appeal so that he could instruct counsel. After discussion it was agreed that we would proceed in the following manner:
(a)Mr Pandey would immediately make oral submissions in support of his appeal;
(b)the Crown would respond; and
(c)Mr Pandey would then have a further month, until 13 June 2013, in which to instruct counsel and advise through counsel whether further submissions from counsel and/or a further oral hearing were required.
The Court proceeded to hear oral submissions from Mr Pandey. It then adjourned the hearing and provided Mr Pandey with a minute detailing what had been discussed and agreed.[3]
[3]Pandey v R CA724/12, 15 May 2013 (Minute of the Court).
After some delay Mr Pandey obtained counsel for the appeal. Counsel filed submissions on 19 August 2013. The appeal grounds were significantly recast and narrowed. One of the appeal grounds was a claim that a miscarriage of justice had occurred as a result of Mr Steedman’s final address to the jury. In particular, it was alleged Mr Steedman had effectively undermined Mr Pandey’s defence. A resumed hearing of the appeal was allocated and heard on 4 December 2013.
On 21 November 2013, Mr Pandey filed an affidavit. The affidavit was said to be “in connection with my complaints against [Mr Steedman]”. Mr Pandey noted in the affidavit that he had sent a waiver of privilege a few days earlier to the Crown. On 27 November 2013, Mr Steedman filed an extensive affidavit detailing relevant background circumstances and what had happened at the trial.
We note that the appropriate process for challenging counsel’s conduct was not, therefore, followed in this appeal.[4] Although Mr Steedman’s presence at the appeal was required by counsel for the appellant, after discussion counsel did not require him to be cross‑examined before us.

Appeal against conviction

Grounds identified by counsel

[4]See Court of Appeal (Criminal) Rules 2001, r 12A.

Counsel for Mr Pandey identified three grounds of appeal against conviction at the hearing on 4 December 2013:
(a)A miscarriage of justice occurred as a result of Mr Steedman’s final address to the jury.
(b)The Judge at trial failed to recognise that s 143B requires proof of dishonesty. As a result, the jury were not told they had to be satisfied beyond reasonable doubt that the Crown had proved Mr Pandey was dishonest. This caused a miscarriage of justice.
(c)The Judge failed to explain to the jury the availability of a claim of right defence for Mr Pandey. This failure also caused a miscarriage of justice.

Did Mr Steedman’s final address cause a miscarriage of justice?

It was common ground before us that where counsel is appointed by the Court to assist an accused in the conduct of a criminal trial, the conduct of such counsel is properly the subject of scrutiny. And if counsel’s conduct gives rise to an irregularity in a trial, an appellate court will need to assess whether, as a result, a miscarriage of justice has occurred.[5]
[5]Sungsuwanv R [2005] NZSC 57, [2006] 1 NZLR 730.
First some context as to the involvement of Mr Steedman in Mr Pandey’s trial. Mr Pandey was represented by Mr Steedman leading up to the trial. Mr Steedman advised Mr Pandey that he did not think Mr Pandey had a defence to the charge. He advised Mr Pandey that he considered Mr Pandey would be better off representing himself before a jury. Self‑representation would give Mr Pandey more latitude to raise issues that counsel could not.
It was agreed that Mr Steedman would seek leave to withdraw from the trial Judge, Judge Atkins QC. Leave was granted and Mr Steedman was appointed as counsel assisting the Court, so that he could assist in the presentation of Mr Pandey’s defence. At trial Mr Pandey asked Mr Steedman to make a brief opening statement. He did so. Mr Pandey conducted the cross‑examination of the sole Crown witness from IRD.
Mr Pandey gave evidence on his own behalf and it was intended that he make the final closing address. The evidence finished late in the morning of 19 October 2012. The Crown was to address the jury that afternoon followed by Mr Pandey. At 2.15 pm that day Mr Pandey asked Mr Steedman to give the closing address. Mr Steedman asked Mr Pandey to note those items he considered important for the final address on a piece of paper. Mr Pandey did so. Other than those points that he considered could not be covered in the final address, Mr Steedman followed Mr Pandey’s instructions in addressing the jury.
The Crown case was that it had to prove six elements before there could be a guilty verdict.[6] In his interview with the IRD investigator, Mr Pandey had appeared to accept that he was responsible for all six elements. But in evidence Mr Pandey denied the sixth element: that he knew the Greyhound Racing Club was not entitled to the GST payment at the time he filed the claim. This denial was his primary defence to the charge.
[6]See Tax Administration Act, s 143B(1)(c) and (h). As is discussed below, however, Mr Pandey argues there is also a seventh element.
Mr Pandey says that the effect of part of Mr Steedman’s final address to the jury was to emphasise that he had admitted that he had acted dishonestly in making a GST claim in his earlier interview. In particular, Mr Pandey objected to the following passage in Mr Steedman’s final address:
The other question is this, what do you make of the fact that in evidence today he has defended himself, saying I didn’t know at the time when I filed that return that I was committing a criminal act. What do you make of that given the admissions that it seems he made to Suzanne O’Hara in March and April 2010 and you’ve got the transcript and all of the documentation that shows you what those admissions appear to be. Now, his position is that really you need to listen long and hard to the evidence that he’s given today because that sets out the defence as he wants you to see it. Now, I will repeat the first comment that he has made to you and then say that you really don’t need to pay a great deal of attention to this. Mr Pandey has made a note in writing of one of the issues which he spent such a long time explaining today that there do seem to be anomalies in the GST – in the greyhound racing industry ...
Mr Pandey says that Mr Steedman was effectively claiming that he had no defence, dismissing Mr Pandey’s claim that the Crown had not proved the sixth and final element of the charge he was facing.
We are satisfied that if Mr Steedman’s final address is read as a whole and together with the Judge’s summing-up, it is unobjectionable and no miscarriage has arisen. We are satisfied the jury would clearly have understood Mr Pandey’s defence and his claim that the Crown had not proved the sixth element of the charge.
In his address to the jury, Mr Steedman had to deal with the fact that in his interview with IRD Mr Pandey appeared to accept that he was responsible for all six elements of the charge he faced. The Crown in its final address to the jury had stressed that the jury could rely upon Mr Pandey’s statement to IRD and that if they did so they should convict.
The approach of Mr Steedman was to invite the jury to set aside the statement made by Mr Pandey to IRD and to concentrate on Mr Pandey’s evidence. In evidence, Mr Pandey had denied the sixth element of the charge.
Mr Steedman said further in his address to the jury:
Mr Pandey acknowledged that issues 1 to 5 have already been established. The only issue that you need to concern yourself about is issue number 6, did he know that the other person, i.e. the Manawatu Greyhound Racing Club was not legally entitled to that payment under a tax law and I’m sure he would want me to say at that time as being an important part of that ingredient.
...
So what he’s saying is give me credit, if I’d really tried to cheat the system I could have done a better job than that and that really comes back to – that brings us back to the evidence that he’s given today.
Now, in order to convict him you have to find beyond reasonable doubt that he did know, he knew in his heart of hearts that when he was filing that return he was doing so wrongly and that he knew that the club wasn’t entitled at that time to the refund.
In his summing-up the Judge summarised the case for Mr Pandey. He said:
[38] With respect to the position of the accused, Mr Steedman noted that the first five matters were not in significant dispute in any way. They were all matters for you to decide but it was the sixth matter which is the critical one. His submission to you was that the accused had made it clear in his evidence that his concerns were about the overall viability of the club. That he was of the view that the club was entitled to a refund and the club’s entitlement to the refund was an entitlement which he was well aware of and that accordingly when he put those entities in the return on the 29^th of January that he was simply doing it on the basis that he understood that the club was entitled to that payment under a tax law and that his understanding of it was that the club was entitled to it at that time in the sense that the club could have a correct expectation of receiving that at some point and that, accordingly, the situation was one where it had not been proved beyond reasonable doubt that the accused knew that the club was not legally entitled to that payment under a tax law at that time.
...
[40] Mr Steedman therefore submitted to you that on that final element the Crown had not proved that the accused knew that the club was not legally entitled to the payment under a tax law at the time when the return was made and he accordingly asked for a not guilty verdict on that basis.
Given the Crown had focused on Mr Pandey’s alleged admission of the sixth element in his interview, it was understandable that Mr Steedman would acknowledge the admission but tell the jury to focus on Mr Pandey’s denial in evidence.
Mr Steedman accepted, in his affidavit, that he could have chosen a more felicitous way of urging the jury to accept Mr Pandey’s evidence rather than the statement he had made to IRD. But we are satisfied that the jury would have been in no doubt about what Mr Pandey’s defence was.
We are satisfied that no miscarriage of justice has occurred with regard to this ground of appeal.

Is dishonesty an element of a charge under s 143B(1)(c) and (h) of the Act?

The appellant says the Judge, the prosecutor and Mr Steedman all missed the point that the Crown had to prove dishonesty as an ingredient in an allegation made under s 143B(1)(c) and (h). The failure of the Judge to direct the jury on this point, therefore, caused a miscarriage of justice. Mr Pandey was convicted when it could not be said the jury was satisfied beyond reasonable doubt that he had committed all of the elements of the charge.
Section 143B(1)(c) and (h) of the Act provides as follows:
143B Evasion or similar offence
(1) A person commits an offence against this Act if the person—
...
(c)knowingly provides altered, false, incomplete, or misleading information (including tax returns and tax forms) to the Commissioner or any other person in respect of a tax law or a matter or thing relating to a tax law ...
...
and does so—
...
(h)to enable another person to obtain a refund or payment of tax in the knowledge that the other person is not lawfully entitled to the refund or payment under a tax law.
The Judge in his question trail said that the Crown had to prove six elements before Mr Pandey could be convicted. They were:
1.That Ashoka Pandey provided information to the Commissioner of Inland Revenue in the form of a GST return for the period ending 31 January 2010; and
2.That information in that return, namely the date of two payments made by the Manawatu Greyhound Racing Club, was false; and
3.That the accused at that time knew that information was false; and
4.That the information was with respect to a tax law; and
5.That the accused provided the false information to enable another person – the Manawatu Greyhound Racing Club – to obtain a refund of tax; and
6.That the accused knew when he provided the information to the Commissioner that the Manawatu Greyhound Racing Club was not legally entitled to the payment at that time.
The appellant submits there is a seventh required element: that Mr Pandey had a dishonest purpose when he filled out the GST return form.
We are satisfied the Judge at trial correctly identified the six elements the prosecution had to prove before a guilty verdict could be returned. These six elements follow the words of s 143B(1)(c) and (h). There is no suggestion in the wording of the section that there is an overlay of dishonesty needed to be proved. The section is concerned with knowingly providing false information to IRD so that another can obtain a tax refund that the accused knows they are not entitled to. Knowingly providing a false GST return to the Commissioner is a form of dishonest conduct. Doing so when you know another person is not entitled to the refund emphasises the original dishonesty.
Counsel for the appellant could not point to any authority or principle of law that requires reading into s 143B(1)(c) and (h) an element of dishonesty. A judgment of this Court illustrates the point. In Smith v R, Mr Smith had been convicted of offences under s 143B(1)(c) and (f) of the Tax Administration Act.[7] Three of the charges involved an allegation of failing to provide an income tax return intending to evade tax. Counsel for Mr Smith submitted that the Judge should have told the jury that evasion required proof of dishonesty.
[7]Smith v R [2013] NZCA 184.
This Court, in rejecting that submission, said:
[40] The phrase “with the intention of evading [tax]” employs words we think jurors would really understand. The word “evade” carries a dishonest connotation, but dishonesty is not explicitly an ingredient of the s 143B offence.
The word “evade” does not appear in s 143B(1)(c) and (h) and nor does any other similar word on which it could be suggested that dishonesty might be required to be proved. And so there is even less reason in this case than in Smith to conclude that proof of dishonesty is necessary to establish the charge.
We are, therefore, satisfied that dishonesty is not an element of a charge under s 143B(1)(c) and (h) of the Tax Administration Act. We reject this ground of appeal.

Claim of right

Section 2 of the Crimes Act 1961 defines claim of right in this way:
claim of right, in relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
Mr Pandey says that he had a claim of right in this case but the Judge did not identify this claim before the jury and as a result a miscarriage of justice occurred. It is difficult to encapsulate Mr Pandey’s arguments in relation to this defence. He considered that the treatment of the Manawatu Greyhound Racing Club with respect to GST by IRD and the New Zealand Greyhound Club was wrong and unfair. His claim of right, therefore, seems to be that he believed, in the particular circumstances, that claiming GST ahead of the due refund date was lawful and that, therefore, he was entitled to provide a false return.
We reject this ground of appeal. As the Crown pointed out, the prosecution at trial had to prove that Mr Pandey knew he had provided a false claim to IRD and that this was to obtain a refund for someone he knew was not entitled to the refund. Given these essential elements required proof of knowledge by Mr Pandey, once the Crown had proved such knowledge that precluded a claim of right assertion.
If the jury concluded Mr Pandey knowingly provided false tax returns to enable the Manawatu Greyhound Racing Club to obtain a refund when he knew they were not entitled to it, then there could be no room for any claim of right argument. Proof of the required knowledge of unlawfulness meant that any suggestion Mr Pandey believed that what he was doing was lawful could not be sustained.
Further, the definition of claim of right expressly prohibits the relevant belief being based on any mistake of law with respect to the enactment the subject of the charge, here the Tax Administration Act. The claim of right asserted by Mr Pandey relates directly to the Act and is therefore prohibited. We reject this ground of appeal.

Other grounds of appeal against conviction

Although we understand that counsel for Mr Pandey abandoned Mr Pandey’s original grounds of appeal, we briefly consider each ground.
Mr Pandey’s original oral submissions, together with his notice of appeal and other written material, identified the following grounds of appeal:
(a)When the IRD decided to prosecute Mr Pandey it did not take into account all relevant circumstances.
(b)Because Mr Pandey did not have legal representation, he was not able to adequately put his case. For example, he wanted to tell the jury that if he had cheated on the GST return he would have done so in February to get an immediate payment, rather than in March as alleged.
(c)Three rulings on points of law by the trial Judge were heard, some in My Pandey’s absence and others without him having a chance to make proper submissions.
(d)Mr Pandey did not have the opportunity to call an expert witness to say whether his interpretation of the tax position was correct.
(e)The treatment of GST within the Greyhound industry is illegal.
(f)Mr Steedman effectively labelled Mr Pandey guilty in his opening address to the jury.
(g)The Crown agreed to give full disclosure of all relevant material to Mr Pandey on the Thursday of the week prior to trial but did not do so until the Monday afternoon (the trial commenced on the Wednesday).
(h)The Crown unfairly emphasised to the jury what they alleged was an untruth in Mr Pandey’s working papers, but the jury did not understand the working papers were not prepared to be (nor had they been) provided to the IRD.

Appeal ground (a)

As we explained to Mr Pandey, it is for the Crown to decide whether to prosecute him. In the context of an appeal against conviction, this Court cannot review the Crown’s decision to prosecute. We reject this ground of appeal.

Appeal ground (b)

Mr Pandey had a lawyer representing him until 11 October 2012, six days before the trial began (on 17 October 2012). In a minute of 11 October, Judge Atkins said:[8]
[1] I saw, this afternoon, counsel in this matter. Mr Steedman expressed the view that Mr Pandey has particular views as to where his best prospects of defence lie, that those views may not accord with the views of counsel acting for him as counsel and that may in the long run create difficulties for Mr Pandey in accepting the outcome of the trial if the outcome turned out to be unfavourable to Mr Pandey.
[2] Accordingly, it is Mr Steedman’s suggestion that the situation can best be dealt with on the basis of Mr Steedman being appointed amicus, his argument being that that way Mr Pandey can run his own case and put forward the matters he wishes to, but with the benefit of assistance from Mr Steedman. In the event that things did not work out to Mr Pandey’s satisfaction, Mr Steedman said; Mr Pandey is more likely to be content with the outcome than he would be if he were represented by counsel, if counsel felt unable to put forward the arguments Mr Pandey considers to be relevant.
[8]R v Pandey DC Palmerston North CRI-2011-054-262, 11 October 2012.
In discussion with us, Mr Pandey accepted that he had agreed to represent himself and had agreed that Mr Steedman could be counsel assisting him as required. This was Mr Pandey’s choice. The trial transcript shows that Mr Pandey had and took every opportunity to tell the jury what his case was. We reject this ground of appeal.

Appeal ground (c)

As to the three rulings given by Judge Atkins, each of the rulings records the appearances for the Crown, that Mr Pandey appeared in person, and Mr Steedman as amicus curiae. Ruling one relates to Mr Pandey’s application for a change of venue.[9] After discussion in this Court, Mr Pandey recalled that he had made that application. Mr Pandey says he does not now recall rulings two and three at all. He believes they were heard in his absence. However, the rulings illustrate that they arose only because Mr Pandey made particular applications. The rulings show the applications were instigated by Mr Pandey, that he made submissions to the Judge and that he was present at the hearing and when the Judge’s decisions were pronounced. There is nothing to support Mr Pandey’s claims.
[9]R v Pandey DC Palmerston North CRI-2012-054-262, 17 October 2012 (Ruling 1 of Judge Atkins QC).
The second ruling arises from what the Judge said was a “second argument raised by Mr Pandey”.[10] This related to the administration of GST and the laws affecting GST. It is effectively the same argument Mr Pandey made before this Court.
[10]R v Pandey DC Palmerston North CRI-2012-054-262, 17 October 2012 (Ruling 2 of Judge Atkins QC) at [1].
The Judge said Mr Pandey’s claim could be raised before the jury as long as there was an evidential basis for doing so. The Judge considered no ruling was required. It was for Mr Pandey to establish from the facts. The Judge accepted the same position in relation to the third ruling.[11]
[11]R v Pandey DC Palmerston North CRI-2012-054-262, 17 October 2012 (Ruling 3 of Judge Atkins QC).
We reject Mr Pandey’s claim that he neither participated in nor was present during the course of these arguments. As we have said, it is clear he raised the points with the Judge and it is clear he was present when the Judge gave his reasons for rejecting the issues.

Appeal ground (d)

Mr Pandey claims that he did not have a fair trial because he did not have the opportunity of calling a tax expert to say whether his view of the law on GST was correct.
Mr Pandey did not complain about this matter to the trial Judge, nor did he seek an adjournment or a delay in the trial so that he could call such a witness. In any event, we doubt that such a witness’ evidence would have been admissible. The Crown allegations against Mr Pandey did not require them to establish that Mr Pandey’s view of the law was incorrect. We reject this ground of appeal.

Appeal ground (e)

Mr Pandey claims that the way in which GST is dealt with as between the parent body for greyhound racing and the clubs is illegal. However, as counsel for the Crown said, even if the racing industry is not returning GST on a correct basis, that would not excuse Mr Pandey from his actions, the subject of the charge. We reject this ground of appeal.

Appeal ground (f)

Mr Pandey asked Mr Steedman to make a brief opening statement after the Crown had opened its case. Mr Steedman told the jury the essence of Mr Pandey’s defence was that he believed the Manawatu Greyhound Racing Club was entitled to the GST refund. At worst, he had sought the refund early. This accurately summarised Mr Pandey’s case. Mr Pandey said in his own evidence that he accepted all the elements of the charge had been proved except that he knew the Club was not legally entitled to the payment under a tax law, saying in response to this question: “no I disagree”.
Mr Steedman, therefore, did no more than accurately emphasise Mr Pandey’s defence. No valid criticism can be made. We reject this ground of appeal.

Appeal ground (g)

As to the allegation the Crown failed to give timely disclosure, this was first raised before us. No opportunity, therefore, was given to Crown counsel in Palmerston North (who allegedly failed to provide discovery in time) to comment on Mr Pandey’s claim.
Other than complaining about the Crown’s delay, Mr Pandey could not point to any particular prejudice to him or any particular inability to conduct his defence arising from the late provision of this material. The case was, after all, a very simple one. The Crown case relied primarily on the GST return for January and the purchasing information by way of cheque book butts and bank statements relating to the two cheques at issue. These were documents authored by Mr Pandey.
Further, Mr Steedman in his affidavit noted that the disclosure documentation provided on the Monday did not contain any surprises, and stated that his view at the time (which was not contradicted by Mr Pandey) was that the disclosure simply replicated disclosure materials made available to the defence some significant time earlier. In Mr Steedman’s view, the “new” disclosure did not create any difficulties with trial preparation.
We are satisfied that no miscarriage arose by any Crown failure as to disclosure.

Appeal ground (h)

In his working papers, Mr Pandey noted that the two payments had been made on 29 January 2010. He then transferred this information into the GST return. This information, as he acknowledged, was false. The payments had not been made until 3 March 2010. This falsity was at the heart of the prosecution case. The prosecution was, therefore, entitled to refer to Mr Pandey’s false GST working papers. A review of the Crown’s final address illustrates that the Crown placed little emphasis on the point. We reject this ground of appeal.

Result on conviction appeal

For the reasons given, the appeal against conviction is dismissed.

Appeal against sentence

Mr Pandey was sentenced to 120 hours of community work for his offending. He says the sentence was manifestly excessive.
Mr Pandey says Judge Atkins made the following errors. First, the Judge imposed a punitive sentence because Mr Pandey had pleaded not guilty. Further, Mr Pandey’s mental health problems were not adequately placed before the Judge. Mr Pandey says that the following factors count in his favour: there was no loss to IRD; he would not have personally benefited from the offending; the early GST payment was only one month early; and he offended out of a misguided concern regarding the GST payable by his Greyhound Racing Club. The appropriate sentence was an order to come up for sentence if called upon.
We do not consider that the Judge’s sentencing remarks indicate that he was punishing Mr Pandey for pleading not guilty. The Judge said at sentencing that he was not surprised by the jury’s verdict. The Judge said he assumed that Mr Steedman, who had originally acted as Mr Pandey’s counsel, had advised Mr Pandey that he had no defence to the charge. Despite that advice Mr Pandey had continued with his denial and to trial.
At sentencing, the Judge said:[12]
... if he did give you that advice, [it] was the correct advice and it would have been wise on your part to have followed it.
[12]R v Pandey, above n 2, at [10].
The Judge noted that counsel for the Crown asked:[13]
... for a substantial sentence of community work in order to mark the expense to which this has put people when there is really no defence available to the charge.
[13]At [13].
And further, the Judge said:
[14] There is something in what [Crown counsel] says in that regard and that would normally have led me to a sentence of a very large number of hours of community work.
[15] It is not going to be the number of hours which I would have been inclined to impose had I not gained the impression that part of your actions, part of your motivation was a desire to help a club about which you cared.
The Judge went on to say that he could understand Mr Pandey’s motivation but that it was not legally defensible. The Judge said that in those circumstances he would sentence him to 120 hours’ community work.
Considering the Judge’s remarks overall, we are satisfied that he did not impose 120 hours’ community work as some form of punishment for Mr Pandey pleading not guilty. The Judge was entitled to note that Mr Pandey was convicted as a result of overwhelming evidence and that his defence was misguided. Mr Pandey apparently wanted to use the prosecution as a forum to complain about the Manawatu Greyhound Racing Club’s GST treatment and about the relationship between greyhound clubs in New Zealand. That was not the forum in which to do so.
Mr Pandey had previous convictions for tax evasion. He was convicted of 16 tax offences committed in 2003, 2004, 2006 and 2007. These prosecutions all occurred in 2008. His current offending, as well as the past offending, showed that Mr Pandey was prepared to ignore tax laws when it suited him.
Mr Pandey was not in a position to pay a fine. We do not think a sentence of being ordered to come up for sentence if called upon would have been an appropriate sentence given Mr Pandey’s past convictions.
We agree with the Judge that in the circumstances a sentence of community work was appropriate. While we accept that 120 hours was a significant sentence, we are not satisfied that the number of hours was manifestly excessive.
The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[2013] NZCA 682

20 December 2013 at 12.00 pm