Liles v R (Cth) [2014] NSWCCA 289

Liles v R (Cth) [2014] NSWCCA 289

The sentencing discretion miscarried because the schedule offences were wrongly taken into account across all four counts instead of only the relevant counts, and because the judge made an unsupported finding that the applicant received personal gain beyond professional fees. The accumulation of sentences also failed to give proper effect to the applicant's lesser criminality compared with Mr Agius. On resentencing, taking into account the objective seriousness of the tax fraud, the need for general deterrence, the applicant's health and current custodial circumstances, the s16BA schedule in respect of Counts 1 and 2, and a 30 percent combined discount for the plea and assistance, a...

Jurisdiction
Australia
Judgment Date
03 December 2014
Procedural Posture
Criminal Law Sentence Appeal / Application for Leave to Appeal Against Sentences; Resentencing in the Court of Criminal Appeal
Outcome
Leave granted and appeal allowed; sentences quashed; applicant resentenced to an aggregate head sentence of 5 years and 9 months with release on recognizance on 17 April 2016.
Legal Topics
['conspiracy to Defraud the Commonwealth' 'conspiracy to Dishonestly Cause a Loss to the Commonwealth' 'tax Avoidance Scheme' 'schedule Offences Under S16 Ba' 'equal Justice' 'general Deterrence' 'medical Condition in Custody' 'guilty Plea and Assistance Discount']
['criminal Law' 'sentencing' 'commonwealth Offences'] ['conspiracy to Defraud the Commonwealth' 'conspiracy to Dishonestly Cause a Loss to the Commonwealth' 'tax Avoidance Scheme' 'schedule Offences Under S16 Ba' 'equal Justice' 'general Deterrence' 'medical Condition in Custody' 'guilty Plea and Assistance Discount']

Case Brief

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Procedural Posture

Criminal Law Sentence Appeal / Application for Leave to Appeal Against Sentences; Resentencing in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in the manner in which she took the schedule offences into account.' 'Whether the sentencing judge made a mistake of fact in finding that the applicant received personal gain beyond professional fees earned.' 'Whether updated medical evidence showed the sentencing discretion miscarried on the basis of treatment in gaol and life expectancy.' 'Whether the sentencing judge failed to have adequate regard to the principle of equal justice.' 'Whether the sentence was otherwise manifestly excessive.' 'What sentences should be imposed on re-exercise of the sentencing discretion.']

Ratio Decidendi

The sentencing discretion miscarried because the schedule offences were wrongly taken into account across all four counts instead of only the relevant counts, and because the judge made an unsupported finding that the applicant received personal gain beyond professional fees. The accumulation of sentences also failed to give proper effect to the applicant's lesser criminality compared with Mr Agius. On resentencing, taking into account the objective seriousness of the tax fraud, the need for general deterrence, the applicant's health and current custodial circumstances, the s16BA schedule in respect of Counts 1 and 2, and a 30 percent combined discount for the plea and assistance, a...

Court Disposition

Leave granted and appeal allowed; sentences quashed; applicant resentenced to an aggregate head sentence of 5 years and 9 months with release on recognizance on 17 April 2016.

Orders

  • ['The sentences imposed by Schmidt J on 18 October 2012 are quashed.' 'In respect of Count 1 the applicant is sentenced to imprisonment for 1 year and 7 months commencing 18 October 2012 and expiring 17 May 2014.' 'In respect of Count 2 the applicant is sentenced to imprisonment for 1 year and 7 months commencing 18...