In 2022 he was sentenced to two years and eight months in prison but remained on bail pending the outcome of an appeal.
Foley’s appeal was successful and the matter was sent back to the Auckland District Court, which last month re-sentenced him to 25 months and 2 weeks in prison and ordered him to pay $120,000 reparation to Inland Revenue.
The tax agency described Foley as the director of “many failed companies”. He was adjudicated bankrupt in 2001 and again in 2018. In 2006 he was prohibited from being a director for almost three years.
HPTP, which was incorporated in 2014, went into voluntary liquidation in January 2017. Point to Point, which was incorporated in 2016, went into liquidation in June 2017.
From December 2014 until April 2017 Foley deducted PAYE from his employees’ wages but failed to pay this to Inland Revenue.
The total PAYE withheld across both companies was $481,964 but the total amount that remained outstanding was $356,132.
Foley’s lawyer submitted on appeal that the sentence imposed was manifestly excessive for several reasons including the three-year starting point adopted, and that the judge erred in declining to apply a discount for factors outlined in a report into Foley’s background, as well as prior good character.
The defence also argued that the judge erred in failing to take into account the employment opportunity identified by Foley, and the reparation offer made by him concerning the unpaid tax, and insufficient discount granted for Foley’s health conditions.
In his appeal, Foley argued that he established the companies because he was concerned about the large number of unemployed people in New Zealand and believed a number of those people had the potential to work in construction.
Justices Goddard, Whata and Downs said in their Court of Appeal decision last September that in determining the starting point of three years, the District Court appeared to have taken into account Foley’s previous conduct as a director of insolvent companies that failed to meet tax liabilities and his disqualification as a director.
Foley’s previous conduct should not have been taken into account when determining an appropriate starting point, but, rather, the focus should have been on the offending for which he was being sentenced.
The appeal court said Foley’s previous conduct as a director of failed companies was (appropriately) taken into account when considering the level of good character discount.
The District Court judge also erred in suggesting that losses caused by the offending were felt not only by IRD (and thus, the public) but also by the employees of the companies whom Foley was seeking to help.
The defence argued that the judge erred by not providing a discount for Foley’s background, as set out in a cultural report.
The Court of Appeal felt that those arguments had developed on appeal and that his desire to assist others as a relevant causative factor was “problematic at several levels”.
There was agreement that the judge did not err in awarding a 5 per cent discount for good character.
The appeal court found Foley’s sentence was manifestly excessive and should be set aside, and that a starting point of two years and six months’ imprisonment should be adopted, with discounts of at least 10 per cent.
Inland Revenue said Foley’s lawyer had indicated that he may appeal his re-sentence, back to prison.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.
