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Commissioner of Inland Revenue v Macaskill [1991] FJLawRp 16; [1991] 37 FLR 134 (4 December 1991)

[1991] 37 FLR 134

HIGH COURT OF FIJI

COMMISSIONER OF INLAND REVENUE

v

MALCOLM STUART MACASKILL

[HIGH COURT, 1991 (Jesuratnam J), 4 December]

Appellate Jurisdiction

Sentence - failing to provide information as required by the CIR - consideration of adequacy of sentence - need for sentencing consistency. Income Tax Act (Cap 201) - sections 50(1) and 96(1).

The Respondent was fined a total of $54 for 3 offences of failing to supply information requested by the Commissioner of Inland Revenue. On appeal by the Commissioner the High Court HELD: allowing the appeal that the sentences imposed were manifestly lenient given the legislature's view of the gravity of the offences. The Court also stressed the need for broad parity and consistency in sentencing.

Cases cited:

Attorney-General v Hari Chand 14 FLR 245
Commissioner of Inland Revenue v Armogam Pandaram (Cr. App. 75/90)
Mohammed Hakim Dean v Reginam 19 FLR 158

Appeal against sentence imposed in the Magistrates' Court.

S. Senaratne for the Appellant
R. Matebalavu for the Respondent

Jesuratnam J:

In this case the respondent was charged in the Magistrates' Court of Suva on 27th April 1990 on three counts of having failed to deliver to the Commissioner of Inland Revenue on or about 29th December 1988 and on other days between that date and 26th April 1990 (1) returns of income for the years 1983, 1984, 1985, 1986 and 1987 (2) statements of assets and liabilities in respect of those years and (3) analysis of drawings account in respect of those years as demanded by the Commissioner by his letter dated 29th November 1988 contrary to sections 50(1) and 96(1) of the Income Tax Act (Cap. 201).

The respondent pleaded guilty to all three counts and the learned Magistrate convicted him and sentenced him to pay a fine of $18.00 in default 1 month's imprisonment on each of the three counts and costs of $15.00 in default 1 month imprisonment. The fines total $54 on all 3 counts.

The Commissioner of Inland Revenue has appealed against the sentence on the ground that the fines and costs are manifestly lenient and grossly inadequate. It should be emphasised that section 96(1) of the Income Tax Act makes provision for a maximum fine of $40.00 per day for each day of default. The offence is a continuing one.

The fines imposed therefore should bear some proportionality to the scale prescribed by the legislature having of course regard to the individual circumstances of the particular case. In Cr. Appeal No. 75 of 1990 (Commissioner of Inland Revenue and Armogam Pandaram this court cited the guideline judgment of Hammett C J in Attorney-General v. Hari Chand (14 FLR 245). His Lordship said at 246:

"The maximum fine prescribed by the legislature for this offence is £20 a day for each day during which default continues which for a 53 day default amounts to more than £ 1000. This is a clear indication of the gravity with which the offence is regarded by the legislature offending, as it does, the uniform collection of one of the government's main sources of revenue, namely income tax. A wide discretion is left to the court in imposing the penalty for such offences. In the exercise of its discretion the court must of course have due regard to the means of the offender but the penalty imposed must also have some reasonable bearing on the gravity of the offence."

The emphasis is mine. In that case the learned Chief Justice considered that a fine of 2 shillings per day was manifestly inadequate and substituted a daily fine of 10 shillings which works out to one-fortieth of the then maximum of £20. The maximum under the present Act is $40 per day.

However this court went on to say in the Pandaram case "This court cannot and will not fix an ideal rate in these cases because each case will depend on its own facts. But it is worth while keeping in mind the range and proportionality suggested by Chief Justice Hammett."

The fine imposed should act as a deterrent to taxpayers who adopt an indifferent and uncooperative attitude towards the legitimate calls made by the Commissioner of Inland Revenue. Tax collection will be greatly hampered if taxpayers disregard their civic responsibilities.

It is regrettable to note that two different magistrates of the same Magistrates' Court of Suva have, taken widely divergent attitudes in cases of default in responding to demand notices sent, by the Commissioner. I have today disposed of another appeal in which the learned Chief Magistrate has imposed fines totalling $900.00 on 3 identical counts in respect of another taxpayer. It is highly undesirable that there should be such wide disparity in sentencing. Of course there cannot be any uniformity in the sentences that are imposed. Nobody expects it. It is impossible to apply a uniform tabulated formula. But it is important to avoid extremes which give to a litigant the feeling that he has been discriminated against. I find that in the instant case nothing at all has been said in mitigation by the respondent in the Magistrates Court. If the written submissions which were supported by Mr. Matebalavu for the respondent, are indeed true I fail to see why no attempt was made by the respondent to apply to the Commissioner for further time to comply in view of his difficulties. Over 1 year and 4 months had elapsed before the Commissioner decided to file charges in court. It is my view that any sentence must be deterrent.

I have no doubt at all that the fines and costs imposed were paltry and grossly inadequate.

However in accordance with the judgment of Grant ACJ in Mohammed Hakim Dean v. Reginam (19 FLR 158) the period of default has to be confined to 6 C months from the date of the laying of the charge for purposes of sentence in view of the provisions of section 219 of the Criminal Procedure Code.

I therefore set aside the fines imposed on the respondent and substitute therefore a fine of $1.00 per day for 180 days i.e. $180.00 in default 2 months' imprisonment on each of the three counts making a total of $540.00 on all three counts.

Although the costs of $15 are low in my view I do not wish to disturb it in view of the need to maintain uniformity with the same quantum of costs that has been ordered in the other two cases which have disposed of today.

The respondent is given 2 months from today to pay the fines and costs.

The appeal is allowed.

(Appeal allowed; sentence varied.)