R v Thongskul - [2019] NZHC 2499

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2017-085-2498

[2019] NZHC 2499

THE QUEEN

v

BOONROUEN THONGSKUL

Hearing: 2 October 2019

Counsel:

D La Hood, T G Bain and A Instone for Crown M Lennard and J McVay for Defendants

Sentence:

2 October 2019

SENTENCING REMARKS OF SIMON FRANCE J

[1] Mrs Thongskul seeks a discharge without conviction. She is one of five defendants who pleaded guilty to tax evasion charges part way through a ten week trial. The sentencing of the other defendants, who pleaded guilty to offending on a much larger scale, is separately addressed.

[2] She pleaded guilty to knowingly filing two false GST returns, and a related incorrect income tax return. The restaurant business in question only opened towards the end of the audit period. Two out of three GST returns filed in the period were the subject of pleas. The amount of tax evaded is approximately $7,000, being $3,000 and $4,000 income tax.

R v THONGSKUL [2019] NZHC 2499 [2 October 2019]

Gravity of the offending

[3] There is a broad measure of agreement although different emphasis. Tax evasion is a serious offence and the Court of Appeal has noted a discharge without conviction will be a rare outcome.1 The present case is at the bottom of the range of conduct that will normally underlie a tax evasion conviction. Notwithstanding that it involves three offences of tax evasion, a discharge without conviction is not out of the question due to the low sum evaded, and the short time span.

Consequences

[4] Ms McVay accepts the consequences normally identified in such cases, such as impact on work or travel, are not present. She relies on two primary considerations.

(a)the impact of a conviction on a mature woman who has had a blemish- free past. The focus is on the stigma and reputational damage; and

(b)the need to offset adverse publicity.

[5] To explain the latter, at the start of the trial the Crown case was widely reported. At that time the allegations of a family conspiracy and money laundering existed, and the full breadth of the allegation was published. Ms Thongskul was portrayed as the head of the family unit, the ringleader, as Ms McVay put it. The publicity was accompanied by a large photo.

[6] The initial allegations against Ms Thongskul involved party to evasion of more than $4 million, party to evasion of tax by her companies of $158,000, evasion of personal income tax of $394,000 and the money-laundering allegation.

[7]It is submitted that the impact of three convictions, even though totalling only

$7,000, will keep alive the publicity and visit on her the consequences of the much larger unproven allegations. There is a real and appreciable risk that the consequence will occur and it would be out of all proportion to the actual offending.

1 R v Malu [2017] NZCA 546

[8] Evidence is filed by Ms Thongskul’s son confirming the publicity alluded…

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 Thongskul

Details

AGLC: R v Thongskul [2019] NZHC 2499
Case: [2019] NZHC 2499
Decision Date: 2 October 2019

CaseChat Overview and Summary

In the case of R v Thongskul, the defendant, Mrs Thongskul, sought a discharge without conviction after pleading guilty to three counts of tax evasion, including the filing of two false GST returns and an incorrect income tax return. The total amount of tax evaded amounted to approximately $7,000. The case was heard in the High Court of New Zealand at Wellington, and the sentencing remarks were delivered by Justice Simon France.

The court considered the gravity of the offence, acknowledging that while tax evasion is a serious offence, the present case involved a relatively low sum and a short time span. The court also examined the consequences of a conviction, particularly the impact on Mrs Thongskul's reputation and the potential perpetuation of the adverse publicity that accompanied the initial allegations. The court found that while the publicity had been significant, it did not provide a basis for a discharge without conviction as the consequences did not meet the test of being out of all proportion to the actual offending.

Ultimately, the court dismissed the application for a discharge without conviction, noting that the deliberate nature of the offending and the need for deterrence meant that a conviction was warranted. However, the court took into account the significant stress and hardship endured by Mrs Thongskul throughout the trial and decided on a conviction and discharge, coupled with an order for reparation of $5,000 to be paid within 10 days. This decision balanced the need for punishment and deterrence with the particular circumstances of the case, recognising the disproportionate burden the proceedings had placed on Mrs Thongskul.

Orders