Moon v Commissioner of Inland Revenue HC Auckland CRI-2011-404-205 [2011] NZHC 991 (8 August 2011)

Last Updated: 28 September 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-205}

ROBERT JOHN MOON

Appellant

v

COMMISSIONER OF INLAND REVENUE

Respondent

Hearing: 8 August 2011

Appearances: G Gotlieb for the Appellant

N Malarao and C Mitchell for the Respondent

Judgment: 8 August 2011

_{ORAL JUDGMENT OF WHITE J}

_{Counsel: G Gotlieb, Auckland:} [e-mail]

Solicitors: M Malarao, Crown Solicitors, Auckland: [e-mail]

C Mitchell, Inland Revenue Dept, Auckland: [e-mail]

MOON V COMMISSIONER OF INLAND REVENUE HC AK CRI-2011-404-205 8 August 2011

[1] Mr Moon appeals against his sentence of five months’ home detention and

150 hours community work imposed on him in the District Court at Auckland on

26 May 2011 on 24 charges for breaches of the Tax Administration Act 1994 in relation to non-payment of PAYE and Kiwisaver deductions. The maximum penalty on each charge was five years’ imprisonment and/or a fine of $50,000.

[2] The appeal is on the ground that the sentence was manifestly excessive because it prevents Mr Moon from continuing to work. A sentence of community detention and community work is sought instead.

[3] In support of the appeal Mr Gotlieb submitted in his memorandum for Mr Moon that at the time of the sentencing in the District Court it was believed that there should be a sentence of home detention imposed and that Mr Moon would still be able to continue in his present job of working for his wife in her landscape gardening business, but it had since become clear that the sentence would entirely prevent him from doing so and that this would lead to the closure of the business and significant financial hardship for both Mr and Mrs Moon and an employee.

[4] After referring to an affidavit from Mr Moon describing in detail his responsibilities in his wife’s business and the impossibility of carrying them out while subject to home detention, Mr Gotlieb submitted in his memorandum that Mr Moon’s sentence should be “reconsidered in light of the fresh information now available” and that the “fresh information” weighs strongly in favour of substituting the sentence of home detention with one of community detention.

[5] It was clear from Mr Gotlieb’s memorandum that the appeal was based on the “fresh information” now available relating to Mr Moon’s difficulties in complying with the detention conditions rather than on any submission that the sentence of home detention was itself manifestly excessive. Such a submission would have been difficult in the face of Mr Moon’s affidavit in the District Court in which he deposed that:

33. As the Court will be aware, I have been interviewed by Probation Officer Gloria O’Connell during the preparation of my Pre-Sentence Report. At that point in time, I signed documentation refusing consent to a sentence of Home Detention. When I signed this I was

confused as to what I was in fact signing and did not realise that signing the document would bar me from a sentence of Home Detention. It was simply my belief that the sentence of Home Detention would prevent me from assisting my wife in some aspects of her business and as such it was not a sentence I would have preferred.

34. However now that I am aware that the consequence of my refusal of consent may lead to a term of imprisonment being imposed, I indicate that I certainly would consent to a sentence of Home Detention being imposed. If such a sentence were to be imposed, I would adjust my life however necessary in order to comply with the sentence.

[6] In these circumstances in the course of the hearing today Mr Gotlieb conceded that:

(a) the sentence of home detention for the 24 charges for breaches of the Tax Administration Act 1994 involving over $84,000 was not manifestly or clearly excessive in terms of s 121(3)(b) of the Summary Proceedings Act 1957; and

(b) the “fresh information” relied on by Mr Moon did not relate to his offence or his character or personal history so as to bring the appeal within the latter parts of s 121(3)(b).

[7] On the basis of these concessions, which were properly made by Mr Gotlieb, the appeal must fail.

[8] As Mr Gotlieb acknowledged, however, Mr Moon is really seeking to have his sentence of home detention cancelled and substituted with a sentence of community detention under s 80F(4)(d) of the Sentencing Act 2002 on the grounds that he is unable to comply with the detention conditions because of his work commitments.

[9] An application under s 80F(4)(d) must be made to the sentencing court: Case v R.[1] Mr Moon should therefore make his application to the District Court at

_Auckland.

[10] Whether the sentence of home detention should be replaced with a sentence of community detention on the grounds put forward by Mr Moon is entirely a matter for the District Court, at least in the first instance, and not for this Court on this appeal.

[11] The appeal against sentence to this Court is therefore dismissed.

[12] By consent bail is to continue until Mr Moon’s proposed application under

s 80F(4)(d) of the Sentencing Act is able to be considered in the District Court at

_Auckland.

D J White J

---

[1] Case v R [2010] NZCA 518 at [11].