R v Kumar - [2019] NZHC 82

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-37

[2019] NZHC 82

THE QUEEN

v

RAKESH KUMAR

Hearing: 5 February 2019

Counsel:

M Mitchell for Crown

S Jefferson for Defendant

Judgment:

5 February 2019

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1] On 14 November 2018, Mr Kumar was sentenced by Judge Courtney in the Hastings District Court1 in respect of three representative charges of tax evasion.2 He was sentenced to two and a half years’ imprisonment.

[2] Mr Kumar appeals on the basis that the sentence imposed was manifestly excessive, arguing, through his counsel Mr Jefferson, that if a lower starting point had been adopted along with more generous discounts, the end sentence would have been within the jurisdiction of a sentence of home detention, which, it is submitted, would have been more appropriate in the circumstances.

1 Department of Inland Revenue v Kumar [2018] NZDC 24405.
2 Tax Administration Act 1994, s 143B(2); maximum penalty five years’ imprisonment and/or a fine of $50,000.

R v KUMAR [2019] NZHC 82 [5 February 2019]

[3] The appeal is opposed on the basis that there has been no error in the sentencing process and that the end sentence is within the range properly available to the District Court.

Factual background

[4] Mr Kumar is the director and a shareholder in a number of companies. Between 2010 and 2016, these companies returned substantial losses for income tax and GST purposes. Cash sales went undeclared, employees were paid under the table, and rental payments were not properly returned. Over this period, Mr Kumar received substantial amounts of cash deposits into his bank accounts, as did some of his family members, from sources that have not been adequately explained.

[5] Inland Revenue’s analysis indicates that, for the tax years 1 April 2009– 31 March 2016, Mr Kumar evaded the assessment of approximately $800,000 of tax on businesses he operated, along with personal income tax.

District Court decision

[6] The sentencing Judge, referring to the pre-sentence report, noted that Mr Kumar took little responsibility for his actions, saying that the businesses were run by other people and he trusted them to run the day-to-day operations, although he had pleaded guilty and repaid some of the money.3

[7] The Judge stated that he believed reparation should be encouraged and reflected in the sentence, allowing a reduction of 15 per cent in recognition of, what he described as, the “significant effort towards reparation, with the possibility of further reparation”.4

[8] While the Judge noted that “some Courts have suggested that extended offending over a long period of time may extinguish good character”, he gave Mr Kumar a credit for good character, allowing a 10 per cent reduction.5

3 Department of Inland Revenue v Kumar, above n 1, at [3]-[4].
4 At [18].
5 At [19].

[9] Despite a delay in guilty pleas, which would normally result in less of a credit for entering such a plea, Mr Kumar…

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 Kumar

Details

AGLC: R v Kumar [2019] NZHC 82
Case: [2019] NZHC 82
Decision Date: 5 February 2019

CaseChat Overview and Summary

The case of R v Kumar involved an appeal against a sentence imposed by the Hastings District Court on Mr Kumar for three representative charges of tax evasion. Mr Kumar was sentenced to two and a half years' imprisonment, and he appealed on the grounds that the sentence was manifestly excessive. The appeal was heard in the High Court of New Zealand, Napier Registry, on 5 February 2019.

The primary legal issue before the Court was whether there was an error in the sentencing process and if a different sentence should have been imposed. The Court considered whether the starting point for the sentence was appropriate, the discount for reparation was adequate, and if the lack of a discrete discount for remorse constituted an error.

The Court found that the starting point for the sentence was appropriate, given the circumstances of the case and the guidance provided by previous cases. The Court also found that the 15% discount for reparation was generous and within the range available to the sentencing Judge. Furthermore, the Court held that the lack of a discrete discount for remorse did not constitute an error, as the Judge had already provided significant discounts for the guilty pleas and good character.

In conclusion, the Court held that the sentence imposed by the Hastings District Court was not manifestly excessive and was within the range properly available. The appeal was dismissed, and the original sentence was upheld.

Orders