Suckling v The Queen - [2016] NZCA 187

IN THE COURT OF APPEAL OF NEW ZEALAND

CA468/2015
[2016] NZCA 187

BETWEEN	MORRIS BURTON SUCKLING Appellant
AND	THE QUEEN Respondent

Hearing:	12 February 2016
Court:	French, Simon France and Ellis JJ
Counsel:	Appellant in person P D Marshall for Respondent
Judgment:	10 May 2016 at 10.00 am

JUDGMENT OF THE COURT

A The appeals against conviction and sentence are dismissed.

BThe commencement of Mr Suckling’s sentence of imprisonment is to be deferred until the earlier of:
(a)the determination of any application under s 80I of the Sentencing Act 2002 to the District Court for cancellation of that sentence and substitution of a sentence of home detention; or
(b)two months from the date of this judgment.

CMr Suckling is granted bail on the following conditions:
(a)he is to reside at 2 Grand Oaks Drive, Palmerston North; and
(b)on the date that either:
(i)his application under s 80I of the Sentencing Act is declined; or
(ii)if no such application is made or remains undetermined, at the expiry of the two month period —

he is to surrender himself to the prison manager at Manawatu Prison.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

Following a trial before Judge Atkins QC and a jury in the Palmerston North District Court, Mr Morris Suckling was found guilty of five charges of knowingly providing misleading income tax returns and 10 charges of evading the assessment or payment of GST. He was sentenced by Judge Lynch to one year’s imprisonment, with leave to apply for home detention.[1] He now appeals against both conviction and sentence.

Background

[1]R v Suckling [2015] NZDC 14634 [Sentencing notes of Judge Lynch].

In one form or another, Mr Suckling has operated a seed-treating business from the late 1990s onwards. Initially, he did so through a company, Top Crop Seed Treating Ltd (TCSTL), which was registered for income tax and GST. TCSTL was wholly owned by Mr Suckling and his wife, Christine Suckling.
In 2006, Mr Suckling and TCSTL were audited by Inland Revenue (IR). IR found TCSTL had been invoiced for services provided by Mr Suckling to the company. The invoices were issued by Mr Suckling on behalf of an entity called the Bamen Trust. TCSTL paid the amounts invoiced into a bank account operated by Mr Suckling and his wife, and claimed those amounts (which were described as “subcontractor payments”) as deductions for income tax purposes.
The Bamen Trust was not registered with IR and did not account for the income it received from TCSTL, which, between 2002 and 2006, totalled $283,880. The Commissioner of IR issued default assessments in relation to this income. Mr and Mrs Suckling disputed those assessments on behalf of the Trust. During the ensuing disputes process, Mr Suckling maintained the amounts received represented “the reward for Morris’s labour” and were not taxable. IR’s position was that the “rewards” received constituted taxable income.
The outcome of the disputes process was that Mr Suckling was found liable for the tax on the amounts received.…

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 Suckling v The Queen

Details

AGLC: Suckling v The Queen [2016] NZCA 187
Case: [2016] NZCA 187
Decision Date: 10 May 2016 at 10.00 am

CaseChat Overview and Summary

The appellant, Mr Morris Suckling, appeals against both his conviction and sentence following his conviction by jury in the Palmerston North District Court of five charges of knowingly providing misleading income tax returns and 10 charges of evading the assessment or payment of GST. He was sentenced to imprisonment for one year, with leave to apply for home detention. Mr Suckling had operated a seed-treating business since the late 1990s, initially through a company that was registered for income tax and GST. In 2006, the Commissioner of Inland Revenue issued default assessments in relation to the income that had been received by that company but not accounted for by a trust that Mr Suckling had created. Mr Suckling disputed those assessments but was ultimately found liable for the tax on the amounts received. After the company was struck off the register in 2010, Mr Suckling continued to operate a seed-treating business on his own account but did not declare the income he received or file GST returns. Criminal charges against him were laid in 2013. The District Court rejected his application to have the charges dismissed and Mr Suckling was convicted on all charges. The Court of Appeal dismissed both his conviction and sentence appeals. In relation to the conviction appeal, the Court considered Mr Suckling’s argument that he could not be convicted because he had challenged the underlying tax liability under the Tax Administration Act 1994. The Court found that argument to be misconceived. It considered the effect of s 109 of that Act in the context of criminal proceedings and found that the section did not preclude criminal tax evasion proceedings in circumstances where a defendant had disputed the underlying tax liability. The Court also rejected Mr Suckling’s argument that he was not given a proper (post-trial) hearing on his challenge to the admissibility of the Crown’s evidence. It found that the District Court Judge had already ruled on those issues and there was no jurisdiction to review or revisit them. In relation to the sentence appeal, the Court rejected Mr Suckling’s argument that the sentence of imprisonment should be reduced because the assessments were not conclusive evidence. It found the sentence Judge had imposed was appropriate and that there was no foundation for Mr Suckling’s appeal. In accordance with s 100(1) of the Sentencing Act 2002, the Court deferred the start date of Mr Suckling’s sentence of imprisonment until the earlier of the determination of an application to the District Court for cancellation of that sentence and substitution of a sentence of home detention, or two months from the date of the judgment. In the meantime, the Court granted Mr Suckling bail.

Orders