R v Thongskul

[2019] NZHC 2499

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2017-085-2498

[2019] NZHC 2499

THE QUEEN

v

BOONROUEN THONGSKUL

Hearing:	2 October 2019
Counsel:	D La Hood, T G Bain and A Instone for Crown M Lennard and J McVay for Defendants
Sentence:	2 October 2019

SENTENCING REMARKS OF SIMON FRANCE J

[1]                  Mrs Thongskul seeks a discharge without conviction. She is one of five defendants who pleaded guilty to tax evasion charges part way through a ten week trial. The sentencing of the other defendants, who pleaded guilty to offending on a much larger scale, is separately addressed.

[2]                  She pleaded guilty to knowingly filing two false GST returns, and a related incorrect income tax return. The restaurant business in question only opened towards the end of the audit period. Two out of three GST returns filed in the period were the subject of pleas. The amount of tax evaded is approximately $7,000, being $3,000 and $4,000 income tax.

R v THONGSKUL [2019] NZHC 2499 [2 October 2019]

Gravity of the offending

[3]                  There is a broad measure of agreement although different emphasis. Tax evasion is a serious offence and the Court of Appeal has noted a discharge without conviction will be a rare outcome.1 The present case is at the bottom of the range of conduct that will normally underlie a tax evasion conviction. Notwithstanding that it involves three offences of tax evasion, a discharge without conviction is not out of the question due to the low sum evaded, and the short time span.

Consequences

[4]                  Ms McVay accepts the consequences normally identified in such cases, such as impact on work or travel, are not present. She relies on two primary considerations.

(a)the impact of a conviction on a mature woman who has had a blemish- free past. The focus is on the stigma and reputational damage; and

(b)the need to offset adverse publicity.

[5]                  To explain the latter, at the start of the trial the Crown case was widely reported. At that time the allegations of a family conspiracy and money laundering existed, and the full breadth of the allegation was published. Ms Thongskul was portrayed as the head of the family unit, the ringleader, as Ms McVay put it. The publicity was accompanied by a large photo.

[6]                  The initial allegations against Ms Thongskul involved party to evasion of more than $4 million, party to evasion of tax by her companies of $158,000, evasion of personal income tax of $394,000 and the money-laundering allegation.

[7]It is submitted that the impact of three convictions, even though totalling only

$7,000, will keep alive the publicity and visit on her the consequences of the much larger unproven allegations. There is a real and appreciable risk that the consequence will occur and it would be out of all proportion to the actual offending.

1      R v Malu [2017] NZCA 546

[8]                  Evidence is filed by Ms Thongskul’s son confirming the publicity alluded to. He also confirms it has been shared on various Thai-speaking forums so is well known within the Thai community.

[9]                  Other consequences noted, although having already happened they will not not result from a conviction, are the impacts on Ms Thongskul’s health, and the collapse of her business.

[10]              The Crown accepts the evidence of the publicity but submits it does not provide a basis for a discharge without conviction. It submits that there are no consequences that could meet the test of out of all proportion.

Decision

[11]              Although the offending certainly comes at the bottom of the range for tax evasion, it does, nevertheless, involve three false returns that are not the product of pressure or seeking to help another or a business. It is deliberate cheating of the revenue, albeit on a low scale. As I observed, one could not rule out all together a discharge without conviction, but significant consequences would be needed in order to satisfy the test.

[12]              Here such consequences do not exist. The stigma of having a conviction is the product of the offending which was deliberate offending not done in the heat of the moment or as an act of momentary stupidity. It is unfortunate for anyone in their 60s to acquire a first conviction but it is not a consequence that merits particular weight here.

[13]              It is not uncommon that the allegation receives more publicity than the outcome. It is always unfortunate when it happens but that is often the way of it. I do not consider it is correct to offset it by acquitting Ms Thongskul and thereby providing complete vindication when there was in fact offending, albeit on a trivial scale if matched against the original charges.

[14]              The case, in my view, falls well short of meeting the statutory requirements and the application is dismissed.

[15]              I do consider the various features relevant, however, to the penalty. It has been a long and stressful event for Ms Thongskul and the reality is that she has endured much to defend large allegations that have not been made out. There have been significant family events in Thailand she has missed out on and I consider the overall experience has been a burden disproportionate to the final outcome.

[16]              The impact of a conviction, and together with a reparation order are, I consider, sufficient.

[17]Ms Thongskul is convicted and discharged, and ordered to pay reparation of

$5,000 within 10 days.

Simon France J

Solicitors:

Crown Solicitor, Wellington for Crown

Jacobs Florentine, Palmerston North for Defendants