R v Dhillon - [2009] NZCA 597

IN THE COURT OF APPEAL OF NEW ZEALAND
CA319/2009
[2009] NZCA 597
THE QUEEN
v
RAJPAL SINGH DHILLON
Hearing:15 October 2009

Court:Hammond, Ronald Young and Fogarty JJ
Counsel:E R Fairbrother and G M Fairbrother for Appellant
S B Edwards for Crown

Judgment:16 December 2009 at 10 am

JUDGMENT OF THE COURT

A         The appeal is allowed in part.
B         The minimum period of imprisonment is quashed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Fogarty J)
[1]        This is an appeal against sentence.   Mr Dhillon was convicted by a jury of 50 counts of tax evasion. He was sentenced by Judge B M Mackintosh to six years and six months imprisonment with a minimum period of imprisonment of three years and three months.
[2]        In oral argument Mr Fairbrother pursued two grounds of appeal:
·That the sentence was manifestly excessive; and
·That by fixing cumulative sentences for PAYE and GST offending the Judge was acting contrary to the legislative direction contained in s 84 of the Sentencing Act 2002.

[3]        To understand these two grounds of appeal it is necessary to explain the pairing of the 50 counts into 25 pairs and the way the Judge reached the sentence.
[4]        All the counts were brought under the Tax Administration Act 1994. Section 143B(2) provides:
143B    Evasion or similar offence
...
(2)       A person who evades or attempts to evade the assessment or payment of tax by the person or another person under a tax law commits an offence against this Act.

[5] All the counts were in the same format except for different dates and names. Counts 1 and 2 provided:
1.THE CROWN SOLICITOR at Napier charges RAJPAL SINGH DHILLON from 5 December 1998 at Hastings did evade the payment of GST by himself or C K Kaushal under the Goods and Services Tax Act 1985, namely by purporting to use C K Kaushal as a subcontractor.
2.THE SAID CROWN SOLICITOR further charges that RAJPAL SINGH DHILLON from 5 December 1998 at Hastings did evade the payment of PAYE by himself or C K Kaushal under the Income Tax Act 1994, namely by purporting to use C K Kaushal as a subcontractor.

[6]        Thereafter each pair of counts were first for evasion of GST and then for evasion of PAYE but with the names of different entities evading PAYE and the names of different subcontractors.
[7]        Essentially the charges differentiate one from another by reason of the allegation that Mr Dhillon purported to use a particular person as a subcontractor.
[8]        Mr Dhillon was in the business of providing labour for kiwifruit and other horticultural growers. He would provide the grower with pickers for harvest and sometimes help with the pruning. Mr Dhillon would invoice, through one of his companies, the grower for the work including in the invoice the GST tax. The grower would pay that invoice. On payment of that invoice Mr Dhillon would receive the amount he charged for the services he provided plus the GST that the…

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 R v Dhillon

Details

AGLC: R v Dhillon [2009] NZCA 597
Case: [2009] NZCA 597
Decision Date: 16 December 2009

CaseChat Overview and Summary

The appellant, Rajpal Singh Dhillon, was convicted by a jury of 50 counts of tax evasion. He was sentenced by Judge Mackintosh to a total term of imprisonment of six years and six months with a minimum period of imprisonment of three years and three months. The appeal against sentence was heard by the Court of Appeal of New Zealand on 15 October 2009 and judgment was delivered on 16 December 2009. The two grounds of appeal were: that the sentence was manifestly excessive, and that by fixing cumulative sentences for PAYE and GST offending, the Judge was acting contrary to the legislative direction contained in s 84 of the Sentencing Act 2002.

The Court of Appeal found that the Judge was entitled to take her overall starting point for the offending of seven years, which she reduced down to six and a half years for mitigating features. The Court of Appeal also found that the Judge was entitled to impose cumulative sentences for PAYE and GST offending. However, the Court of Appeal found that the minimum period of imprisonment was excessive and quashed it. The Court of Appeal did not disturb the term of imprisonment and found that it was a reasonably severe one, particularly by comparison to the involvement of a co-offender in a much larger number of tax evasion events. The Court of Appeal did not think there was a need to lift the minimum period under the Parole Act of two years two months by an additional six months.

Orders