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R v Easton [2013] NZCA 677 (19 December 2013)

Last Updated: 26 December 2013

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
19 November 2013
Court:
Randerson, Heath and Asher JJ
Counsel:
M F Laracy and A R van Echten for Appellant C R Carruthers QC and R P Harley for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The Solicitor-General’s application for leave to appeal against sentence is granted.
  2. The appeal is allowed.
  1. The sentences imposed by the High Court are set aside.
  1. Sentencing is remitted to the High Court to be reimposed in a manner consistent with this judgment.
  2. Mr Easton is remanded at large for sentence on a date to be fixed by the Registrar of the High Court.

____________________________________________________________________


REASONS OF THE COURT

(Given by Heath J)

The appeal

[1] Following a trial in the High Court at Wellington in early July 2013, Collins J (sitting alone) found Mr Easton guilty on 22 charges of aiding and abetting three companies that knowingly failed to pay PAYE deductions to the Commissioner of Inland Revenue (the Commissioner).[1] The amount in issue was just under $200,000.[2] Mr Easton was sentenced on 9 August 2013. He was fined $3,000 on each charge (a total of $66,000) and was ordered to pay reparation of $140,000 to the Commissioner. Execution of the reparation order was effectively suspended until after liquidation of the three companies had been completed, so that the amount of any distributions to be made to the Commissioner could be determined. Leave was reserved to Mr Easton to apply to reduce the amount of reparation ordered, if the Commissioner were to receive more than $60,000 by way of dividend.[3]
[2] The Solicitor-General seeks leave to appeal against the sentence imposed.[4] On his behalf, Ms Laracy submitted that the sentence was both manifestly inadequate, and wrong in principle. As a result of directions made by French J on 16 October 2013, the application for leave and the appeal itself were heard together.

Background facts[5]

[3] Mr Easton and his wife owned and managed six companies and entities (the Group). The Commissioner’s investigations into the Group began in 2007. Mr Easton, in evidence, described the Group as being in “dire straits” around that time. At a meeting held on 24 April 2008, Ms Lancaster, an employee of the Inland Revenue Department, explained to Mr and Mrs Easton and Mr Taylor, the Group’s tax adviser and external accountant, that it was a criminal offence not to pay over PAYE deductions to the Commissioner, that amounts deducted from wages were the property of the Commissioner and not the employer and that if a prosecution were taken, the maximum penalty was five years imprisonment and/or a fine of $50,000. Collins J found that this was a “very clear warning” about the nature of PAYE deductions and the consequences of non-payment.[6] The offending began only one month later, in May 2008.[7]
[4] The PAYE charges related to three of six entities within the Group: East Quip Ltd, Hooked on Rigging Ltd and Napier Equity Ltd. Mr Easton was the sole director and controlling mind of each. The remaining entities are Galvanising (HB) Ltd, Hooked on Transport Ltd and the trustees of the Easton Property Trust.[8] Mr Easton is a substantial shareholder in each of these two companies and a trustee of the Trust. The three companies were alleged to have knowingly failed to pay PAYE deductions to the Commissioner.
[5] Of the 22 charges brought against Mr Easton:[9]

The duration of the offending was just over one year and two months, between May 2008 and July 2009.

[6] The Judge found that the companies deducted PAYE from employee wages and salaries on each of the occasions to which the 22 charges related.[10] East Quip failed to account for $43,568.69; Hooked on Rigging for $83,704.81; and Napier Equity for $61,287. Although the total of those sums is $188,560.50,[11] the Judge recorded in his sentencing remarks that the Commissioner contended that the total amount of PAYE that remained outstanding was $199,292.98.[12]
[7] In the period between 2007 and 2009 entities within the Group were trading poorly. This led to “a significant escalation in the Group’s inability to pay creditors”. By February 2009, the Group’s indebtedness totalled $1.05 million, of which $266,527.12 had been outstanding for three months or more.[13] The Judge found that, to alleviate the Group’s financial difficulties, Mr Easton “did his best to generate more income”, “engaged external advisers to assist with restructuring” the Group and injected, by way of unsecured loan, additional capital into entities within the Group. By January 2009, the Easton family (and related entities) had advanced $2.4 million to the Group.[14]
[8] Collins J also found that it was “very clear that the Easton Group chose which creditors should be paid in order to keep the businesses afloat for as long as possible”. That was the reason why “the [three relevant companies within] Easton Group paid other creditors in preference to” the Commissioner. By February 2009, entities within the Easton Group owed $1.137 million to the Commissioner, of which $638,000 was for PAYE arrears.[15]
[9] East Quip and Hooked on Rigging were each put into liquidation on 10 July 2009. Napier Equity suffered the same fate on 6 August 2009.
[10] Mr Easton made candid admissions to the Commissioner when interviewed in February and August 2009, but recanted from them in his evidence before the High Court.[16] Collins J took the view that the original admissions were “accurate”, going so far as to say that he was “struck by the frankness and candour of the way” in which Mr Easton answered questions at an interview on 18 August 2009. That interview took place just over one month after the last offending took place. In contrast, the Judge was moved to say: “Unfortunately, I cannot say the same about the way Mr Easton gave his evidence in Court”.[17] Plainly, the Judge regarded Mr Easton as an evasive witness.
[11] Collins J was satisfied beyond reasonable doubt that:[18]
[12] The Judge regarded Mr Easton’s decision, on behalf of Napier Equity, not to account for PAYE due on 5 July 2009 as “a particularly calculated decision”. At that time, Mr Easton appreciated that East Quip and Hooked on Rigging were likely to be liquidated and saw “little reason why [Napier Equity] should make the last of its PAYE payments”[19] because there was little to be gained by trying to save that company.
[13] Collins J also found that Mr Easton: [20]
[14] Against that background, we consider the complaints made by the SolicitorGeneral about the sentence imposed.

The sentencing process

[15] The Solicitor-General takes issue with the sentencing process that Collins J adopted. Ms Laracy submitted that there were flaws in the process that resulted in the end sentence being both wrong in principle and manifestly inadequate.
[16] Unusually, the Judge delivered reasons for guilty verdicts on 11 July 2013, the day before they were pronounced in open court. Contemporaneously with delivery of the reasons, on 11 July 2013, the Judge issued a Minute indicating a provisional view that a custodial sentence was not warranted and signalling a willingness to impose a fine. The Judge raised the possibility of such a sentence being imposed when the verdicts were to be formally delivered, the following day.
[17] The verdicts were duly given in open court on 12 July 2013. At that time, counsel for the Crown objected to the imposition of a fine and asked the Judge to request a pre-sentence report so that the possibility of a custodial sentence could be considered. The Judge declined to do so. Instead, he remanded Mr Easton for sentence on 9 August 2013, on the basis that he file an affidavit on or before 26 July 2013 as to his means, “with a view to enabling [the Judge] to determine his ability to pay fines and/or [reparation]”.[22] Collins J also requested submissions from counsel on his ability to order reparation (in light of the fact that Mr Easton was not a debtor in respect of the unpaid PAYE) and the exact amount of PAYE that remained unpaid.[23]
[18] Ms Laracy submitted the Judge erred in declining to order a pre-sentence report and in failing to engage in a full sentencing hearing, in circumstances where the Crown had indicated that it wished to contend for a custodial sentence. In effect, the criticism is that, by not requesting a pre-sentence report, the Judge removed both a custodial sentence and home detention from the suite of options available to him.[24]
[19] Mr Carruthers QC, for Mr Easton, submitted that there was no error of principle made by the High Court Judge in the sentencing process. He contended that it was open to the Judge to reject the request for a pre-sentence report and to proceed on the basis that a non-custodial sentence would be imposed. Mr Carruthers contended that the Judge had heard adequately from the Crown when it requested the pre-sentence report.
[20] We understand the Solicitor-General’s concerns about the sentencing process. However, we do not consider that it was so flawed that appellate intervention is justified on that basis alone.
[21] Instead of indicating a provisional view on sentencing before the verdicts were formally pronounced in court, it might have been preferable for the Judge to hear from counsel on sentencing options at the time verdicts were delivered. Not only did the Minute evidence a view that fines were the most appropriate penalty but also indicated that the Judge considered the point to be so clear that counsel should be prepared to make submissions on sentencing when verdicts were delivered on 12 July 2013.[25]
[22] Having received submissions from the Crown on 12 July 2013, the Judge elected not to direct a pre-sentence report, adhering to the views previously expressed about the nature of the sentence to be imposed. Nevertheless, it is clear that he gave thought to the information required for sentencing because he directed that Mr Easton file an affidavit as to means in anticipation of sentencing on 9 August 2013, required submissions on whether there was jurisdiction to impose an order for reparation on Mr Easton personally and sought information about the precise amount of PAYE that remained unpaid. The latter information required inquiry into whether “any of the unpaid PAYE was recovered through the process of liquidation of the three companies concerned”.[26]
[23] While the Judge’s approach had the effect of removing a sentence of imprisonment or home detention from consideration at the sentencing hearing, the decision not to seek a pre-sentence report was made after hearing from counsel. Whether that was the right course is inextricably linked to the question whether the sentence was manifestly inadequate. We do not accept Ms Laracy’s submission that the sentencing process was so flawed that it should be regarded as “wrong in principle”.

Was the sentencing manifestly inadequate?

(a) The competing contentions

[24] Ms Laracy submitted that the sentence imposed was manifestly inadequate. By reference to what she submitted were appropriate comparator cases,[27] Ms Laracy contended that the Judge ought to have taken a starting point for the offending as a short term of imprisonment, with any end sentence not being lower in the hierarchy than one of home detention.[28]
[25] Alternatively, Ms Laracy submitted that the fines actually imposed were too low and that Mr Easton ought to have been ordered to pay reparation of the full amount of PAYE owing by the three companies. The Solicitor-General’s position is that a fine for offending of this type ought not to be pitched at a level which could be seen as no more than a “licensing fee”.
[26] Mr Carruthers emphasised that the sentencing Judge had presided over a trial of some five days, during the course of which he had had ample opportunity to gauge the nature of the offending and the culpability of Mr Easton. Mr Carruthers submitted that the end sentence, being the combination of the fines imposed and the qualified reparation order, adequately marked the offending.

(b) The sentencing notes

[27] At sentencing on 9 August 2013, Collins J had information confirming:
[28] Collins J reiterated his view that Mr Easton “genuinely believed [that he] did all [he] thought [he] could [in 2007] to keep the companies afloat” with the intention of ensuring that he and the companies met liabilities. The Judge considered that to “a large extent”, Mr Easton succeeded in that endeavour. He identified four factors that he considered supported that view:[31]
[29] Having made those findings, Collins J continued:

[6] I am also aware that you and members of your family injected approximately $2 million in capital into the companies. That sum appears to have been unsecured. In addition, you and your companies offered to settle all outstanding debts to the IRD. I am informed the offer was $900,000. Likewise, you and your wife took significantly reduced drawings from the companies during the period of the financial hardship faced by the Easton group.

[7] However, I am also very satisfied that you were fairly and clearly warned of your responsibilities to ensure PAYE was paid when you met with Ms Lancaster on 24 April 2008. Notwithstanding that warning she gave you, during the following five months and later in July 2009 you consciously and knowingly allowed the companies to use PAYE deductions as a short term measure to assist the companies’ liquidity crises. You knew that should not have occurred and that it was a serious criminal offence for you to have allowed the PAYE deductions in question to be misapplied.

[30] The Judge acknowledged that those “who are convicted of offences of this kind are frequently sentenced to imprisonment”.[32] Nevertheless, he considered that “a lenient approach to sentencing” could be adopted because:[33]
[31] The Judge considered that fines would achieve the purposes and principles set out in the Sentencing Act 2002; in particular, holding Mr Easton accountable for his actions, promoting a sense of responsibility in Mr Easton for the offending, denouncing the conduct, deterring others from similar offending and being the least restrictive outcome appropriate in the circumstances.[34]
[32] Having considered counsel’s submissions, Collins J concluded that there was jurisdiction to impose a sentence of reparation. In considering the quantum of reparation to be ordered, the Judge said:

[15] You have filed an affidavit in which you explain that the remaining companies in the Easton group appear to be doing well and that the net profit of the group for the 2013 financial year is expected to be close to $700,000.

[16] I fully appreciate that you are a separate legal entity from the Easton group of companies. You are, however, the controlling mind and will of those companies and I believe that it is appropriate for me to proceed on the basis that through the Easton group’s financial successes you will personally have the capacity to make a significant reparation payment.

[17] Determining the amount of reparation that should be ordered is complicated by the fact that the IRD has still to be paid anything by the liquidators of the three companies in question and that IRD’s losses will be reduced by any payments ultimately received from the liquidators.

[18] In assessing the reparation that I will order, I am going to adopt a pragmatic approach and proceed on the basis that it is extremely unlikely IRD will receive more than one-third of the unpaid PAYE from the liquidation of the companies.

[19] I have therefore determined that you should be ordered to pay reparation of $140,000 in addition to the fines that I have imposed. However, the reparation sentence will not take effect until the process of liquidating East Quip Ltd, Hooked on Rigging Ltd and Napier Equity Ltd is completed. If, at the end of that process IRD receives more than $60,000 from the liquidators, you may return to me to enable me to review the terms of the reparation order. This approach to the issue of reparation addresses the requirements of s 32(3) of the Sentencing Act 2002. My objective is to ensure that the IRD receives no more in reparation and through the liquidation process than is owed in outstanding PAYE.

...

[21] You are fined $3,000 in relation to each count and ordered to pay court costs of $130 on each charge.

[22] You are also ordered to pay $140,000 reparation to the IRD. The reparation order does not take effect until the completion of the liquidation of East Quip Ltd, [Hooked] on Rigging Ltd and Napier Equity Ltd. If the IRD receives more than $60,000 from that process leave is granted to you to return to enable me to consider varying the reparation orders that I have made.

(c) Analysis

[33] The maximum penalty for the offending on which Mr Easton was convicted was a term of imprisonment of five years and a fine not exceeding $50,000.[35] In terms of the sentencing methodology identified in R v Taueki, the first step in the sentencing exercise was to determine a starting point representing “the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial”, before taking into account aggravating and mitigating factors relating to the offender.[36]
[34] In this case, the relevant aggravating factors of the offending were:
[35] In our view, the mitigating factors which the Judge appeared to regard as justifying “a lenient approach to sentencing” need to be viewed in context and balanced against the negative consequences. Mr Easton, in ensuring that he and his companies “paid their debts”, misapplied some funds that, if not paid, were claimable as a preferential debt in an insolvent liquidation.[41] The fact that some of those moneys were used to pay creditors of lesser priority meant that the Commissioner was less likely to receive payment in full from a liquidation. That can hardly be seen as a mitigating factor, whether or not Mr Easton “genuinely thought [it was] a short term measure”.[42] Nor, in our view, can the fact that Mr Easton and other companies in the Group had paid significant sums to settle debts to the Commissioner be seen as substantially mitigating, when all that was done was to meet a legal obligation.[43] That seems to be nothing more than the absence of an aggravating factor. There is no doubt that Mr Easton’s motive was to save the three companies and protect their employees,[44] but those motives did not justify the offending. In the end, all of this was done at the expense of the Commissioner by deliberate choice with full knowledge of the serious consequences. In truth, the only mitigating factor justifying a reduction from the starting point was that Mr Easton was of prior good character.[45]
[36] As the Judge acknowledged, this type of offending ordinarily attracts a sentence of imprisonment.[46] R v Allan[47] (in which an appeal against sentence of one year’s imprisonment in respect of a core GST debt of $51,407.70 was abandoned), James v R[48] (in which a sentence of two years’ imprisonment was upheld in respect of “notionally evaded” tax of $174,206, of which $147,328 had been repaid) and R v Smith[49] (in which an end sentence of two years and six months imprisonment was upheld in respect of a PAYE debt of at least $570,000) are illustrations. The need for deterrent sentences was emphasised by Harrison J, for this Court, in James. His Honour expressed agreement with the District Court Judge’s “characterisation of [such] offending as ‘straight theft from the community’”. [50]
[37] In making those observations, we recognise the limitations on assessing starting points or end sentences based on a combination of facts in individual cases. However, what is clear from the authorities is that a sentence of imprisonment will almost invariably be the starting point for sentence in a case such as this. Based on the Judge’s findings of fact, we consider that a starting point of at least one year’s imprisonment would have been justified. We make that observation bearing in mind that this is a Solicitor-General’s appeal.[51]
[38] As to Mr Carruthers’ submission that in accordance with s 13 of the Sentencing Act, a fine should be preferred over other sentencing options, it is clear that a fine, even coupled with a reparation sentence, could not mark the offending adequately. A fine does not reflect the gravity of the offending. Nor does it meet relevant sentencing goals of denunciation, deterrence and accountability.

The reparation component

[39] Mr Carruthers accepted that there was jurisdiction to make a reparation order against Mr Easton. The reparation order is an important component of the overall sentence. If effective, it had the potential to mitigate the sentence that was otherwise appropriate. We discuss its effectiveness below.
[40] Reparation is a distinct sentence, in its own right.[52] The starting point is s 32 of the Sentencing Act:[53]

32 Sentence of reparation

(1) A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer—

(a) loss of or damage to property; or

(b) emotional harm; or

(c) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.

(2) Despite subsection (1), a court must not impose a sentence of reparation in respect of emotional harm, or loss or damage consequential on emotional harm, unless the person who suffered the emotional harm is a person described in paragraph (a) of the definition of “victim” in section 4.

(3) In determining whether a sentence of reparation is appropriate or the amount of reparation to be made for any consequential loss or damage described in subsection (1)(c), the court must take into account whether there is or may be, under the provisions of any enactment or rule of law, a right available to the person who suffered the loss or damage to bring proceedings or to make any application in relation to that loss or damage.

(4) Subsection (3) applies whether or not the right to bring proceedings or make the application has been exercised in the particular case, and whether or not any time prescribed for the exercise of that right has expired.

(5) Despite subsections (1) and (3), the court must not order the making of reparation in respect of any consequential loss or damage described in subsection (1)(c) for which the court believes that a person has entitlements under the Injury Prevention, Rehabilitation and Compensation Act 2001.

(6) When determining the amount of reparation to be made, the court must take into account any offer, agreement, response, measure, or action as described in section 10.

(7) The court must not impose as part of a sentence of reparation an obligation on the offender to perform any form of work or service for the person who suffered the harm, loss, or damage.

(8) Nothing in section 320 of the Injury Prevention, Rehabilitation and Compensation Act 2001 applies to sentencing proceedings.

[41] Even though a fine and reparation are regarded as on an equal level in the hierarchy of sentences,[54] in a case where it appears to the sentencing court that the offender may not have the means to pay both a fine and reparation “the court must sentence the offender to make reparation”.[55] Where a sentencing judge is considering the imposition of a fine and reparation, he or she may seek independent reports to ascertain the means of the offender to pay.[56] The court may also make directions as to the terms on which reparation is to be paid.[57]
[42] With respect, it is questionable whether the reparation order made by the Judge[58] complied with s 36 of the Sentencing Act. That provision confers a power on a court to provide time for reparation to be paid, but does not specifically provide that suspension of the order can be for an indefinite period. Indeed, unless the court makes a specific order as to payment conditions of the type to which s 36(1) refers, “the reparation must be paid in 1 lump sum within the time allowed for the payment of fines generally by section 80 of the Summary Proceedings Act 1957”.[59] The indefinite period to pay is particularly troubling in this case, as the liquidations could take at least two years before the final position is known.
[43] Also, in our view, the Judge placed too much emphasis on s 32(3), which requires the Court to “take into account” other rights and remedies available to a person who has suffered loss at the hands of the offender. Collins J, in the way in which he constructed the reparation order, seems to have regarded the need to ascertain the outcome of the liquidation process as a pre-condition to enforcement of the reparation order.[60] In fact, all that was required was to “take into account” the availability of that recovery option.[61] Another means by which the problem could have been solved was to order reparation to be paid on the basis that Mr Easton would be subrogated to the rights of the Commissioner (whether as to preferential or unsecured status) in the liquidations.[62] That approach would have put the risk of non-payment on Mr Easton.
[44] This was a case in which it was important for the Court to obtain independent information both about Mr Easton’s means to pay reparation (and a fine) and the precise state of the company liquidations and the likely dividends that would be paid after disclosed litigation had been concluded. The evidence suggests that the nature of the litigation had the potential to deplete funds available both to the liquidators and Mr Easton, as the liquidators’ claims totalled $2.4 million against Mr and Mrs Easton and the companies. Also, the Judge’s confidence in Mr Easton’s ability to pay depended on Mr Easton’s unsupported prediction of profit of $700,000 for the Group in the ensuing year, whereas the evidence is that he could not even pay his fines in a lump sum. None of those factors suggests to us that the reparation order made was likely to be an effective sentencing response. We make that observation in light of what were plainly adverse credibility findings against Mr Easton in relation to evidence given at trial.[63]
[45] In our view, it is clear that a combined sentence of a fine and reparation was manifestly inadequate to respond to the serious offending committed by Mr Easton.
[46] We have considered whether we should take steps to re-sentence. On balance, we conclude that it is preferable for the Judge who presided over the trial to conduct the re-sentencing exercise, having regard to what we have said.

Result

[47] For those reasons, we grant leave for the Solicitor-General to appeal against the sentence imposed by Collins J and allow the appeal. The sentences imposed by Collins J are set aside. Exercising powers conferred by s 385(3)(c) of the Crimes Act 1961, we remit sentencing to the High Court with a direction that sentence be reimposed in a manner consistent with this judgment. We note that this judgment is not intended to preclude the possibility of home detention or community-based sentencing options if the sentencing Judge considers these are appropriate. Mr Easton is remanded at large for sentence on a date to be fixed by the Registrar of the High Court.
[48] We envisage that a hearing will be convened at which counsel for both the Crown and Mr Easton can make submissions on the reports to be obtained, with sentencing to take place after receipt of them.















Solicitors:
Crown Law Office, Wellington for Appellant
Lawson Robinson, Napier for Respondent

[1] R v Easton [2013] NZHC 478, (2013) 26 NZTC 21-030 [reasons for verdicts]. The charges were brought under s 143A of the Tax Administration Act 1994.

[2] See [6] below.

[3] R v Easton [2013] NZHC 1683 [sentencing notes] at [21] and [22].

[4] Crimes Act 1961, s 383(2).

[5] This summary is taken from the reasons for verdicts, above n 1.

[6] At [39]–[41].

[7] See [5] below.

[8] At [3].

[9] At [4]–[6].

[10] At [17].

[11] At [21]–[24] and [31].

[12] Sentencing notes, above n 3, at [2]. The Commissioner’s view of the amount outstanding differed both from the sum of the three amounts calculated in the reasons for verdict ($188,560.50) and an earlier calculation in the sentencing notes ($204,213.03). We can discern no reason for the differences. For present purposes, we proceed on the basis that the amount outstanding is something in the vicinity of $200,000.

[13] Reasons for verdicts, above n 1, at [45].

[14] At [46].

[15] At [47].

[16] At [50]–[58].

[17] At [68]–[69].

[18] At [71].

[19] At [72].

[20] At [77]–[83].

[21] See [3] above.

[22] R v Easton HC Wellington CRI-2011-041-1510, 12 July 2013 (Minute (No 2)) [Minute No 2] at [2].

[23] At [3].

[24] See R v Toki [2007] NZCA 335 at [5].

[25] R v Easton HC Wellington CRI-2011-041-1510, 11 July 2013 (Minute of Collins J) [Minute No 1] at [3] and [4].

[26] Minute No 2, above n 23, at [2] and [3], in particular [3](2). See also Sentencing Act 2002, s 32(3), set out at [40] below.

[27] R v Allan [2009] NZCA 439, (2009) 24 NZTC 23,815; James v R [2010] NZCA 206, (2010) 24 NZTC 24,271; Zaheed v R [2010] NZCA 573, (2011) 25 NZTC 20-018 and Zwiers v Commissioner of Inland Revenue HC Hamilton CRI-2006-419-130, 2 November 2006.

[28] Sentencing Act, s 10A(2)(e) and (f).

[29] Sentencing notes, above n 3, at [2].

[30] At [3].

[31] At [5].

[32] At [9], citing James v R, above n 27 and R v Allan, above n 27.

[33] At [9].

[34] At [10]. See also ss 7(1)(a), (b), (e) and (f) and 8(g) of the Sentencing Act.

[35] Tax Administration Act, s 143A(8)(d), (e) and (f).

[36] R v Taueki [2005] 3 NZLR 372 (CA) at [8]. See also R v Mako [2000] 2 NZLR 170 (CA) at [34].

[37] See [3] above. See also s 9(1)(i) of the Sentencing Act.

[38] See [5] above.

[39] See [6] above. See also s 9(1)(d) of the Sentencing Act.

[40] Tax Administration Act, s 167(1).

[41] Companies Act 1993, sch 7, cl 1(2)(aa).

[42] See [30](b), (c) and (d) above.

[43] See [30](e) above.

[44] See [30](f) above.

[45] See [30](a) above.

[46] See [30] above.

[47] R v Allan, above n 27, at [38].

[48] James v R, above n 27, at [5] and [20].

[49] R v Smith [2008] NZCA 371, (2009) 24 NZTC 23,004 at [1], [33]–[35] and [39].

[50] James v R, above n 27, at [8] and [19].

[51] R v Wihapi [1976] 1 NZLR 422 (CA) at 424.

[52] Sentencing Act, s 32(1).

[53] See also Department of Labour v Hanham & Philp Contractors Ltd [2008] NZHC 2076; (2008) 6 NZELR 79 (HC) (Randerson J and Panckhurst J).

[54] Sentencing Act, s 10A(2)(b).

[55] Sections 14(2) and 35(2). See also Department of Labour v Hanham & Philp Contractors Ltd, above n 53.

[56] Sentencing Act, ss 33–35 (reparation) and 41–42 (fines).

[57] Section 36.

[58] Sentencing notes, above n 3, at [22], set out at [32] above.

[59] Sentencing Act, s 36(2).

[60] Sentencing notes, above n 3, at [22], set out at [32] above.

[61] See also s 32(4) of the Sentencing Act, set out at [40] above.

[62] Companies Act, sch 7, cl 4.

[63] See [10] above.

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