R v O'Connor - [2013] NZHC 2393

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-085-5660 [2013] NZHC 2393

THE QUEEN

v

PAUL WILLIAM O'CONNOR

Hearing: 13 September 2013

Counsel: D La Hood and M Ferrier for Crown
M T Lennard for Dr O'Connor

Sentence: 13 September 2013

SENTENCE OF SIMON FRANCE J

The offending

[1] Dr O’Connor you appear for sentencing having been convicted before me, sitting alone, of:1

(a) 11 counts of being a party to the failure of your trading entities to file tax returns, such omission being for the purpose of evading the payment of tax;

(b)two counts of being a party to the knowing provision of false information to the Commissioner of Inland Revenue for the purposes
of evading the payment of tax;

1 R v O’Connor, Gilchrist and Anderson [2013] NZHC 1869.

R v O'CONNOR [2013] NZHC 2393 [13 September 2013]

(c) one count of being a party to the evasion of tax by one of your trading entities, Media Search Trust.

[2] The verdict judgment is lengthy. I do not intend to exacerbate that situation today. It is an occasion to focus on the core criminality and that is what I intend to do.

[3] Dr O’Connor, the convictions I entered mean that the sum of $360,000 can be identified as having definitely been evaded. That figure does not, however, capture the entire picture. You have also been convicted of deliberately delaying the filing of tax returns – this offending covers tax returns for the tax years ending March 1997 – March 2005.

[4] Counsel are at odds over whether avoidance transactions occurring during the period of deliberately delayed filing should be taken into account so as to increase the quantum of tax evaded. As regards the ACTONZ losses, I found you to be no different from other investors, so it would be wrong to include it. More generally, the inquiry is too speculative to support increasing the figure. But to a certain extent that misses the point.

[5] Those late filing convictions, as well as the count 8A conviction, place your offending in context. It is here that I reject aspects of the submissions made today on your behalf. The bogus invoice scheme involved in the GlobeNet conviction and the unsustainable valuation of your IP were not isolated events, or examples of you being led astray.

[6] Rather, over a period of eight years you actively sought, by whatever means presented itself, to avoid paying your proper share of the tax burden. The convictions cover eight years, and that is what will be reflected in your starting point. However, the evidence at trial shows you to have been doing this for almost
20 years and it was only a time bar on prosecutions that prevented the verdicts reflecting this. That extended period cannot inform the starting point, but will be reflected in my response to the proposition that you deserve credit for your previous good character and offending free past.

[7] In relation to the GlobeNet…

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 O'Connor

Details

AGLC: R v O'Connor [2013] NZHC 2393
Case: [2013] NZHC 2393
Decision Date: 13 September 2013

CaseChat Overview and Summary

The case of R v O'Connor involved Dr. Paul William O'Connor, who was sentenced for various tax evasion charges. The High Court of New Zealand presided over the case, with Simon France J delivering the judgment and sentence. Dr. O'Connor was convicted of multiple counts of tax evasion, including being a party to the failure to file tax returns, providing false information to the Commissioner of Inland Revenue, and evading tax by one of his trading entities, Media Search Trust. The court identified that $360,000 had been evaded, with additional tax returns deliberately delayed over an eight-year period. The court rejected arguments to increase the tax evaded figure based on speculative evidence.

The legal issues before the court included determining the appropriate starting point for sentencing, considering Dr. O'Connor's other offending, and evaluating mitigating factors. The court held that Dr. O'Connor's actions over an extended period demonstrated a sustained course of evasive activity. The court added 18 months to the three-year starting point for other offences, resulting in a total starting point of four years and six months. The court emphasised the fraudulent nature of the GlobeNet convictions, rejecting arguments that Dr. O'Connor was a naive participant.

Mitigating factors considered by the court included Dr. O'Connor's previous good character, lack of personal gain, remorse, family circumstances, and reparation. The court found that Dr. O'Connor had engaged in fraudulent tax activity for over 15 years, which undermined the recognition of his otherwise good character. The court acknowledged Dr. O'Connor's substantial reparation of $2 million, which was seen as a significant sign of remorse. The court allowed a year of credit for mitigating factors, primarily due to the reparation.

The court sentenced Dr. O'Connor to three years and six months imprisonment for assisting Media Search Trust to evade tax, two years and six months for the GlobeNet false invoice charges, and one year for the late filing of tax returns. All sentences were to be served concurrently, resulting in a total sentence of three years and six months imprisonment.

Orders