Bench v Commissioner of Inland [2017] NZCA 435 (4 October 2017)

Last Updated: 13 October 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA180/2017 [2017] NZCA 435
BETWEEN	CLIVE STEPHEN WILLIAM BENCH Applicant
AND	COMMISSIONER OF INLAND REVENUE Respondent

Court:	Winkelmann, Wylie and Whata JJ
Counsel:	AAH Low for the Applicant H G Max and R K Thomson for Respondent
Judgment: (On the papers)	4 October 2017 at 11.30 am

JUDGMENT OF THE COURT

1. An extension of time in which to apply for leave to bring a second appeal against sentence is granted.
2. The application for leave to bring a second appeal against sentence is declined.

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REASONS OF THE COURT

(Given by Winkelmann J)

[1] The applicant, Mr Clive Bench, seeks leave to bring a second appeal against a decision of Judge Pidwell, sentencing him to 19 months’ imprisonment.^[1]
[2] This Court must decline leave unless satisfied that either the proposed appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.^[2]
[3] Mr Bench pleaded guilty to three sets of charges under s 143B of the Tax Administration Act 1994 as follows:

• (a) 21 charges of failing to provide information to the Commissioner of Inland Revenue (CIR) with intent to evade the assessment or payment of tax;
• (b) 14 charges of providing incomplete information to the CIR with intent to evade the assessment or payment of tax; and
• (c) three charges of providing incomplete information to the CIR to enable another person to obtain a refund or payment of tax in the knowledge they were not lawfully entitled to it.

[4] He also pleaded guilty to 40 charges of knowingly failing to deduct withholding tax under ss 143A and 147 of the Tax Administration Act. Based on default assessments, the estimated total loss in unpaid tax was $399,827.09.
[5] Mr Bench filed his application for leave out of time. The reasons for this delay are adequately explained and the CIR does not oppose an extension. In these circumstances we grant an extension of time in which to apply for leave to appeal.

The sentence

[6] Judge Pidwell sentenced Mr Bench to 19 months’ imprisonment and declined to impose a sentence of home detention.
[7] Mr Bench’s sentencing had previously been adjourned to enable him to make arrangements to pay a substantial sum in reparation.^[3] By the sentencing date he had paid only $21,400 by way of reparation, attempts to sell a family home having been unsuccessful.^[4]
[8] In selecting a starting point the Judge noted that the offending had occurred over six years, involved a moderate degree of premeditation, and that the extent of loss to society as a whole was undoubtedly substantial in monetary terms.^[5] She selected a starting point of 28 months’ imprisonment, within the range Mr Bench’s counsel had agreed was appropriate of 24 to 30 months’ imprisonment.^[6]
[9] She then took into account mitigating factors and arrived at an end point of 19 months’ imprisonment.^[7] Because that figure was under two years, she said she was obliged to consider the appropriateness of a home detention sentence. As to that she said: “I have indicated previously that the issue of reparation in my mind is a significant factor in the appropriateness of home detention in these circumstances”.^[8] However, the Judge was not satisfied that Mr Bench was able to make any meaningful contribution to the reparation amount, concluding:^[9]

Due to the level of offending, and the inability to pay meaningful reparation, I do not consider that home detention is the appropriate outcome for you today. It does not meet the gravity of the offending.

The first appeal

[10] Mr Bench appealed Judge Pidwell’s decision to the High Court arguing that the Judge had erred in treating as determinative against the imposition of a sentence of home detention that Mr Bench failed to pay significant reparation.^[10] Fogarty J rejected that argument. He said that while the Judge did regard the level of reparation paid as determinative, she did not err in doing so since she clearly saw the reparation as relevant as it would have reduced the tax loss (the harm done to society) and therefore the gravity of the offending.^[11] He said that this finding dovetailed into Judge Pidwell’s earlier identification of the particular purposes of sentencing relevant to Mr Bench’s sentence.^[12]

Proposed grounds of appeal

[11] Mr Bench seeks leave to bring a second appeal against Judge Pidwell’s decision. He wishes to argue that Fogarty J should have allowed the appeal because Judge Pidwell failed to consider the mandatory considerations set out in s 16 of the Sentencing Act 2002, and was wrong to treat the issue of reparation as determinative when rejecting a sentence of home detention.
[12] Section 16(1) of that Act describes the following sentencing principle:

(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.

[13] For Mr Bench, Ms Low particularly relies upon the provisions of s 16(2):

(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—

(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and

(b) those purposes cannot be achieved by a sentence other than imprisonment; and

(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.

[14] Ms Low notes that the sentencing purpose “to provide reparation for harm done by the offending”, in s 7(1)(d), is not one of the provisions listed in s 16(2)(a). This makes plain, she argues, Judge Pidwell’s error in treating the issue of reparation as determinative.

Analysis

[15] We have concluded that leave to appeal should be declined. The proposed appeal relates to the specific facts of Mr Bench’s case, and does not raise any matter of general or public importance.
[16] Nor are we satisfied that there is a risk that a miscarriage of justice may have occurred in the sentencing process. Although Judge Pidwell did not expressly refer to s 16, it is clear from the reasons she provided that she turned her mind to it, addressing the availability of a sentence of home detention before concluding that prison was the required sentencing outcome because of the gravity of the offending.
[17] Ms Low’s second point is that the Judge was not satisfied of the matters set out in s 16(2). However, we agree with Fogarty J that when the sentencing notes are read as a whole, it is clear that is not so. Judge Pidwell treated the issue of reparation as relevant to an assessment of the gravity of the offending. Mr Bench’s offending involved non-payment of tax; if he had been able to pay substantial reparation, that would have reduced the harm done to society by his offending. That finding links back, or dovetails as Fogarty J said, to the particular sentencing purposes that Judge Pidwell identified as relevant to Mr Bench’s offending — to hold him accountable for the harm done to the community and to promote in him a sense of responsibility for that offending.^[13] These are purposes that fall within those listed in s 16(2)(a) of the Sentencing Act.
[18] While it would have been preferable had Judge Pidwell set this out more clearly at the relevant point in her sentencing notes, we are in no doubt that her finding was that, given the gravity of the offending, a sentence of home detention would not be sufficient to hold Mr Bench to account for the harm done to the community and promote in him a sense of responsibility for it.
[19] For these reasons, the threshold in s 253(3) of the Criminal Procedure Act 2011 is not reached. We are not satisfied that a miscarriage of justice may have occurred in the sentencing of Mr Bench.

Result

[20] An extension of time in which to apply for leave to bring a second appeal against sentence is granted.
[21] Leave to bring a second appeal against sentence is declined.

Solicitors:
Alexandra Low & Associates, Auckland for Applicant
Crown Law Office, Wellington for Respondent

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^[1] Inland Revenue Department v Bench [2017] NZDC 635 [DC decision].

^[2] Criminal Procedure Act 2011, s 253(3).

^[3] DC decision, above n 1, at [8].

^[4] At [23].

^[5] At [17].

^[6] At [19].

^[7] At [22].

^[8] At [23].

^[9] At [24].

^[10] Bench v Commissioner of Inland Revenue [2017] NZHC 355 [HC decision].

^[11] At [13].

^[12] At [13].

^[13] DC decision, above n 1, at [10]–[11].