Thongskul v The the Queen - [2022] NZHC 1493

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2017-085-2498

[2022] NZHC 1493

IN THE MATTER OF an application under s 38A of the Sentencing Act 2002

BETWEEN

CHANARATT THONGSKUL

Applicant

AND

THE QUEEN

Respondent

Hearing:
7 – 8 December 2021 with further written submissions on 15, 16

and 24 December 2021

Counsel:

M T Lennard and J McVay for the Applicant

T G Bain and D R La Hood for the Respondent

Judgment:

27 June 2022

JUDGMENT OF PALMER J

Solicitors:
Jacobs Florentine, Palmerston North Crown Solicitor, Wellington

THONGSKUL v R [2022] NZHC 1493 [27 June 2022]

Summary

[1] In October 2019, Mr Chanaratt Thongskul was sentenced to two years and eight months’ imprisonment and to pay reparations of $900,000 for tax evasion. He paid $500,000 of that by selling his house. He was going to pay the rest out of ongoing profits from his businesses. But, as a result of directions by the Parole Board, Mr Thongskul sold his network of Thai restaurants. He applies for cancellation of the remaining reparations of $400,000. The Crown opposes that.

[2] I am satisfied there has been a significant change in Mr Thongskul’s circumstances and that he can no longer afford the outstanding reparations. There is no evidence that he has significant wealth, assets or income. Enforcement of the original sentence is unlikely to be effective. I am not satisfied that the resources of the extended family are or should be available to pay the reparations. Mr Thongskul responsibly agrees that he would still able to pay something if he obtains employment. However, by the time of the hearing, he was still unemployed and he has a criminal history. Whether he gets a job is speculative. I consider the statutory purpose of the reparations regime is best served here by simply cancelling the outstanding reparations. I do not disturb the sentence of imprisonment. I decline to award costs against the Crown.

What happened?

[3] On 2 October 2019, Simon France J sentenced four siblings who ran a chain of Thai restaurants and who pleaded guilty to charges of aiding and abetting their companies’ false GST and income tax returns and their own false personal tax returns.1 As a general comment, the Judge accepted the defendants are “hardworking people who are generally law-abiding, but who have admitted to cheating the revenue, and thereby society in general”.2 Another sibling was sentenced separately.3

[4] Mr Thongskul, then aged 52 and a New Zealand citizen, was sentenced for six representative charges covering 124 returns and seven years, for evading $950,000 of

1 R v Kampeng [2019] NZHC 2500.
2 At [10].
3 R v Thongskul [2019] NZHC 2499.

tax. He was sentenced to two years and eight months’ imprisonment and to pay
$900,000 in reparations to the Commissioner of Inland Revenue. The Judge stated that the amount of reparations ordered for the four defendants was determined “according to each defendant’s realistic capacity to pay”.4…

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 Thongskul v The the Queen

Details

AGLC: Thongskul v The the Queen [2022] NZHC 1493
Case: [2022] NZHC 1493
Decision Date: 27 June 2022

CaseChat Overview and Summary

The case of Thongskul v The Queen concerns an application by Chanaratt Thongskul to cancel the remaining reparations of $400,000, which he was ordered to pay as part of his sentence for tax evasion. The Crown opposed the application. Thongskul's initial sentence included two years and eight months' imprisonment and a requirement to pay reparations of $900,000. He sold his house to pay $500,000 of the reparations, but the remaining $400,000 was to be paid from the profits of his businesses. However, due to directions from the Parole Board, Thongskul was forced to sell his businesses, rendering him unable to pay the remaining reparations.

The legal issues in this case centered around the power of the Court to cancel a sentence of reparation under s 38A of the Sentencing Act 2002, and whether there had been a significant change in the applicant's circumstances since the sentence was imposed. The Court needed to determine whether enforcement of the original sentence of reparation was likely to be effective and whether the statutory purpose of the reparations regime would be best served by cancelling the outstanding reparations.

The Court found that there had been a significant change in Thongskul's circumstances due to the forced sale of his businesses as a result of the Parole Board's decisions. There was no evidence that he had significant wealth, assets, or income. The Court also found that enforcement of the original sentence of reparation was unlikely to be effective. The Court was not satisfied that the resources of the extended family were or should be available to pay the reparations. While Thongskul responsibly agreed that he would still be able to pay something if he obtained employment, he was still unemployed at the time of the hearing and had a criminal history. The Court concluded that the statutory purpose of the reparations regime was best served by cancelling the outstanding reparations and did not disturb the sentence of imprisonment.

In summary, the Court granted Thongskul's application to cancel the remaining reparations of $400,000, and substituted a sentence of reparation of $500,000, which had already been paid. The Court did not disturb the sentence of imprisonment and declined to award costs.

Orders