Hearing:	4 November 2020
Court:	Miller, Brewer and Moore JJ
Counsel:	M E Goodwin for Appellant BCL Charmley for Respondent
Judgment:	25 March 2021 at 11.00 am

JUDGMENT OF THE COURT

A Application to adduce further evidence on appeal declined.

B Appeal against conviction dismissed.

C Appeal against sentence dismissed.

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REASONS OF THE COURT

(Given by Moore J)

Introduction

Following a jury trial in Hamilton, Mara Sorm was convicted of 52 charges of tax evasion.[1] He was sentenced to four years and nine months’ imprisonment and ordered to pay $500,000 in reparation.[2]
[1]Tax Administration Act 1994, s 143B(2).
[2]R v Sorm [2019] NZDC 23650.
He appeals both his conviction and sentence. As for the conviction, he says the trial miscarried because:
(a)the Judge’s questioning of witnesses was excessive, unfair and biased in favour of the Crown and thus unfairly prejudiced the jury against him; and
(b)in the course of his questions, the Judge erred in his characterisation of the funds taken from Mr Sorm’s company which led the jury to err.
As for the sentence, Mr Sorm appeals only the reparation order. He says it was made without any consideration of his ability to pay and no discount to the sentence was given in recognition of the order.
On the conviction appeal the Crown says the Judge’s questioning was relevant and necessary to clarify the complex evidence for the jury. Furthermore, the Judge did not mischaracterise the company funds transferred by the appellant, but in any event nothing turns on how they were characterised.
On the sentence appeal, the Crown says the reparation order was appropriate and the end sentence was not manifestly excessive.

Background facts

Mr Sorm and his wife Chhee Lay,[3] operated three bakeries and associated retail food outlets in Matamata, Tirau and Thames. The businesses were owned by Micheel Limited (“Micheel”) of which Mr Sorm and Ms Lay were the directors and shareholders. Mr Sorm and his wife operated the businesses for nearly nine years between November 2003 and September 2012 when they were sold.[4]
[3]Mr Sorm arrived in New Zealand in 1989 as a Cambodian refugee. Ms Lay joined him in 1994.
[4]Ronnie’s Café and Bakery in Matamata commenced business in November 2003; Ronnie’s E-Café in Tirau from April 2006; Thames Bakehouse from November 2007.
At the end of 2012 Micheel came to the attention of the Inland Revenue Department (“IRD”). IRD sent a letter to Mr Sorm, Ms Lay and their accountant, Mr Yiu, advising that IRD was proposing to undertake a review of the company’s tax obligations for the 2012 financial year. Mr Yiu replied by advising there had been mistakes in the companies’ tax returns and that the gross income for the 2012 financial year was significantly greater than that returned. Unsurprisingly, this caused…

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 Sorm v The Queen

Details

AGLC: Sorm v The Queen [2021] NZCA 88
Case: [2021] NZCA 88
Decision Date: 25 March 2021 at 11.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Mara Sorm, was convicted of 52 charges of tax evasion. The appellant appealed both his conviction and sentence, claiming that the trial miscarried due to the judge's excessive questioning of witnesses and that the reparation order was made without considering his ability to pay. The Crown argued that the judge's questioning was relevant and necessary to clarify the complex evidence for the jury, and that the reparation order was appropriate. The court found that the judge's interventions were unobjectionable, and that the reparation order was appropriate given the appellant's means to pay. Therefore, the appeal against conviction and sentence was dismissed.

Orders