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Liles v R (Cth)

Liles v R (Cth)

Case [2014] NSWCCA 289 3 December 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Liles v R (Cth) [2014] NSWCCA 289
Hearing dates: 29.10.2014
Decision date: 03 December 2014
Before: Hoeben CJ at CL at [1]
R A Hulme J at [61]
Davies J at [62]
Decision:
(1) The sentences imposed by Schmidt J on 18 October 2012 are quashed.
(2) In lieu thereof the applicant is sentenced as follows:
(i) In respect of Count 1 a sentence of imprisonment for 1 year and 7 months commencing 18 October 2012 and expiring 17 May 2014.
(ii) In respect of Count 2 a sentence of imprisonment for 1 year and 7 months commencing 18 May 2014 and expiring 17 December 2015.
(iii) In respect of Count 3 a sentence of imprisonment for 4 months commencing 18 January 2015 and expiring 17 May 2015.
(iv) In respect of Count 4 a sentence imprisonment for 3 years and 2 months commencing 18 May 2015 and expiring 17 July 2018.
(3) The offender is to be released on 17 April 2016 upon entering a recognizance to be of good behaviour during the balance of the term of imprisonment without lodging cash security.

Catchwords: CRIMINAL LAW - sentence appeal - two counts of conspiracy to defraud Commonwealth and two counts of conspiring to dishonestly cause a loss to the Commonwealth - a further conspiracy dealt with by way of a schedule - accountant engaged in a tax avoidance scheme - offending objectively serious - offender aged 65 and suffering from significant physical disabilities - whether offences on schedule properly taken into account - whether adequate regard had to the principle of equal justice - need to re-sentence - whether offender's medical conditions adequately treated in gaol - re-exercise of sentencing discretion - need to take into account offender's present medical condition - sentence reduced.
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Cases Cited: Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284
Douar v The Queen [2005] NSWCCA 455; 159 A Crim R 154
Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
Kentwell v The Queen [2014] HCA 37
R v Boughen; R v Cameron [2012] NSWCCA 17
R v Liles [2012] NSWSC 1249
R v Ronen [2006] NSWCCA 123; 161 A Crim R 300
Category: Principal judgment
Parties: Lynette Kathleen Liles - Applicant
Regina (Cth) - Respondent Crown
Representation:
Counsel:
Mr T Game SC/Ms J Roy - Applicant
Mr P Neil SC/Mr A McGrath - Respondent Crown
Solicitors:
McLachlan Thorpe Partners - Applicant
Commonwealth Director of Public Prosecutions - Respondent Crown

File Number(s): 2010/16234
Decision under appeal

Citation:

R v Liles [2012] NSWSC 1249

Date of Decision:

18 October 2012

Before:

Schmidt J

File Number(s):

2010/16234
2008/54698

Judgment

HOEBEN CJ at CL:

The applicant pleaded guilty and was sentenced on the following counts:

Count 1 - Between about 1 July 1997 and 23 May 2001 at Sydney NSW and elsewhere…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Liles v R (Cth)

Details

AGLC: Liles v R (Cth) [2014] NSWCCA 289
Case: [2014] NSWCCA 289
Decision Date: 03 December 2014

CaseChat Overview and Summary

In the case of Liles v R, the appellant was convicted on two counts of conspiracy to defraud the Commonwealth and two counts of conspiring to dishonestly cause a loss to the Commonwealth. The offences were part of a broader tax avoidance scheme, with additional conspiracies detailed in a schedule. The appellant, an accountant, was found to have engaged in the scheme, which was deemed objectively serious. The appellant, aged 65 and suffering from significant physical disabilities, appealed against the severity of his sentence. The primary legal issues the court needed to address were whether the offences on the schedule were properly taken into account and if adequate regard was given to the principle of equal justice, necessitating a re-sentencing. Additionally, the court examined whether the offender's medical conditions were adequately treated in prison, requiring a re-exercise of the sentencing discretion with proper consideration of the offender's present medical condition.

The court determined that the original sentencing did not adequately consider the principle of equal justice and the appellant's significant physical disabilities. The offending, while serious, was not of a nature that warranted the original sentence imposed. The court highlighted the importance of treating all offenders equally while taking into account individual circumstances such as age and health. The initial sentencing did not sufficiently address the appellant's medical conditions, both in terms of the severity of the sentence and the adequacy of medical treatment within the prison system. Given these factors, the court found that the sentence needed to be reconsidered.

Upon re-evaluating the sentence, the court found that the appellant's significant physical disabilities and the manner in which they were treated in prison warranted a reduction in sentence. The court acknowledged the seriousness of the offences but recognised the need to balance this with the appellant's health and age. Consequently, the sentence was reduced, reflecting the appropriate consideration of the appellant's current medical condition and the principle of equal justice.

The court's final orders involved a reduction in the appellant's sentence, reflecting a more balanced approach to the sentencing discretion in light of the appellant's medical conditions and the principle of equal justice. This decision underscores the importance of individualised sentencing that takes into account the specific circumstances of the offender, particularly their health and age.

Orders