R v Liles
[2012] NSWSC 1249
•18 October 2012
Supreme Court
New South Wales
Medium Neutral Citation: R v Liles [2012] NSWSC 1249 Hearing dates: 30 August 2012 Decision date: 18 October 2012 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: 1. In respect of Count 1 the offender is sentenced to imprisonment for 2 years, 6 months commencing on 18 October 2012 and expiring on 17 April 2015.
2. In respect of Count 2 the offender is sentenced to imprisonment for 2 years, 6 months commencing on 18 April 2015 and expiring on 17 October 2017.
3. In respect of Count 3 the offender is sentenced to imprisonment for 2 months, 2 weeks commencing on 21 October 2015 and expiring on 3 January 2016.
4. In respect of Count 4 the offender is sentenced to imprisonment for 5 years, 2 weeks commencing on 4 January 2016 and expiring on 17 January 2021.
5. The offender is to be released on 17 September 2017, upon entering a recognisance to be of good behaviour during the balance of her term, without lodging cash security.
6. The offender is to be fingerprinted in accordance with s 3ZL of the Crimes Act (Cth).
Catchwords: SENTENCE - dishonesty offences - conspire to defraud Commonwealth - s 29D and s 86 Crimes Act 1914 (Cth) - s 135.4(3) of Criminal Code Act 1995 (Cth) - tax - tax avoidance scheme - guilty plea - nature and seriousness of offences - offender's position - overall operation of the tax avoidance scheme - three conspiracies - consequences of offending - term of imprisonment warranted for these offences - personal circumstances - character evidence - deterrence - other comparable offenders - whether delay was relevant - whether discount to be given for plea and assistance - concurrency and accumulation - special circumstances - sentence imposed - recognisance release order Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code Act 1995(Cth)Cases Cited: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Pearce v R [1998] HCA 57
R v Agius; R V Zerafa [2012] NSWSC 94
R v Blanco [1999] NSWCCA (1999) 106 A Crim R 303
R v Boughen; R v Cameron [2012] NSWCCA 17
R v Hinton [2002] NSWCCA 405; 143 A Crim R 286
R v Togias [2001] NSWCCA 522
R v Ronen [2006] NSWCCA 123; (2006) 161 A Crim R 307Category: Sentence Parties: Regina (Crown)
Lynette Kathleen Liles (Offender)Representation: Counsel:
Mr P Neil QC (Crown)
Mr D Price (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
McLachlan Thorpe Lawyers (Offender)
File Number(s): 2010/16234 2008/54698 Publication restriction: None
Judgment
Over a number of years Lynette Kathleen Liles was involved in a significant international tax avoidance scheme. She is now being sentenced in respect of four charges in relation to two conspiracies to defraud the Commonwealth, which arose out of her involvement in that scheme, having pleaded guilty to those charges earlier this year. Ms Liles was also involved in a third conspiracy which was the subject of two other charges. They are to be dealt with under s 16BA of the Crimes Act 1914 (Cth). In the result those offences must be taken into account in the sentences imposed on Ms Liles in respect of the charges to which she has pleaded guilty.
The first two charges relate to a conspiracy to which I will refer as the Mascall conspiracy, which spanned the period from 1 July 1997 to 31 July 2005. The other two charges relate to a conspiracy to which I will refer as the Sakovits conspiracy, which spanned the period from 1 April 2001 to 30 September 2006.
Two charges were brought in relation to each of these conspiracies, one under s 29D and s 86 of the Crimes Act (Cth) and the other under s 135.4(3) of the Criminal Code Act 1995 (Cth). This was because, in each case, the one conspiracy spanned the time that these two statutory regimes were in force (that is up until 23 May 2001 and from 24 May 2001 respectively).
There is no difference in substance between the two charges pursued in relation to each conspiracy, but there is a substantial difference in the maximum penalties imposed for the two offences. The maximum penalty for an offence under s 86 of the Crimes Act (Cth) is a fine not exceeding 2,000 penalty units ($220,000) or imprisonment for a period not exceeding 20 years. The maximum penalty for an offence under s 135.4(3) of the Criminal Code Act is 10 years imprisonment and a fine not exceeding $66,000. In the result, the Crown accepted that the maximum penalty for counts 1 and 3, the two Crimes Act (Cth) offences, should be regarded as 10 years.
The impact of a reduction in the maximum penalty imposed for an offence, such as has occurred in this case, was discussed by Spigelman CJ, in R v Ronen [2006] NSWCCA 123; (2006) 161 A Crim R 300. His Honour there observed at [76] that the situation was one where "the Judge was entitled to take into account that the maximum penalty prescribed was no longer an appropriate yardstick to the sentence to be imposed and had little relevance as a guide to the seriousness of the applicants' conduct."
Similar circumstances were recently dealt with in R v Boughen; R v Cameron [2012] NSWCCA 17. I propose to take a similar approach to that there taken, namely that 'for sentencing purposes, the lesser of the two maximum penalties ought to be regarded as the outer boundary' (see at [3]).
The parties' cases on sentencing
The Crown's case was that these offences fell at the upper end of seriousness and required a significant custodial sentence, notwithstanding Ms Liles' difficult personal circumstances.
On Ms Liles' case, while it was not in contest that there must be a custodial sentence imposed upon her, her offences were not as serious as the Crown contended. She also urged that in sentencing, not only would her difficult personal circumstances be taken into account, but that account would be also taken of the fact that her professional reputation has been destroyed, with resulting financial hardship. Given her age and the sentence which would be imposed upon her, the result will be that she will never be able again to work in her profession, or to rebuild her business, which she has had to sell at a reduced price. She faced a bleak future, given her own health and that of her husband. These were all matters which ought to ameliorate the sentence imposed.
The nature and seriousness of the offences
An assessment of the nature and seriousness of the offences is the starting point for a determination of sentence. While an agreed statement of facts was in evidence, the parties were not agreed about various relevant matters, including importantly, as to the nature and seriousness of the offences for which Ms Liles is being sentenced.
The Crown's case was that the evidence established criminality on Ms Liles' part of the highest order, given the nature of her offending and that it was committed by a very experienced accountant and registered tax agent, a former President of the National Institute of Accountants and its representative on the sub-committee of the National Tax liaison group. The view was urged that her conduct put her in the category, or close to a worst category of such offending, which required a penalty close to the maximum, as a head sentence.
On the Crown's approach, while the tax avoidance scheme in which Ms Liles was involved would not have been possible without the involvement of the Vanuatu accounting firm which devised the scheme, it was established beyond reasonable doubt that Ms Liles was heavily involved in organising its implementation. The participation of her co-conspirators in the three conspiracies, which involved fraud of close to $3million, would not have commenced or continued, but for her actions.
There was also a strong inference that the offences were committed for financial gain. They resulted in a collective financial injury to and loss of confidence in the efficacy and integrity of Australia's taxation system. It was accepted that Ms Liles' pleas could be taken as evidence of her contrition, acknowledgement of wrongdoing and facilitation of the course of justice. That she had offered to give evidence in the prosecution of two of the co-conspirators, Mr and Mrs Sakovits, who were defending the charges, was also a relevant consideration, but still the view was urged that her offending was of the most serious kind, which required the imposition of a substantial custodial sentence.
The case advanced for Ms Liles' was that although there was no dispute about the underlying facts, or that a custodial sentence would be imposed upon her, neither her motive for, or her role in the conspiracies was agreed. It was argued that the nature of her offending was to be gauged in light of the fact that apart from her role in these conspiracies, she had a remarkable and stellar career in accountancy, which all came crashing down because of her involvement with the overseas firm. It would be accepted, it was submitted, that despite her offending, she was a person of good character, who had facilitated only a small number of her clients, some 5 out of 1500, in minimising their tax through this off shore tax scheme, a scheme in which she was involved for no personal gain, apart from professional fees.
On Ms Liles' behalf the view was also urged that she became trapped into her involvement in that scheme, having advised the clients involved of its illegality and they wanting to continue, despite her advice. She then had a feeling of obligation towards her clients, having introduced them to the scheme, with the result that she felt that she had to remain involved and couldn't walk away. Account would be taken of the fact that she had succumbed to social pressure, because she was dealing with those clients not only on a professional basis, but also on a personal relationship of friendship. This was a case of offending motivated by neither need nor greed.
It was also submitted that it would be concluded that Ms Liles was not a promoter or architect of the scheme. It was already in place and she facilitated her clients' participation in it. While she had not acted on the behest of another person, her involvement was not that of a salesman or promoter of the scheme. By comparison to the offenders dealt with by Simpson J in R v Agius; R v Zerafa [2012] NSWSC 978, her role was submitted to be more akin to that of Mr Zerafa, who had received effectively a 3 year suspended sentence for his involvement, than Mr Agius, the promoter who had received a head sentence of 9 years. This was disputed by the Crown.
In considering the respective cases which the parties advanced, one matter which must be born in mind is that Ms Liles did not give evidence at the hearing. That made it difficult to accept many of the submissions advanced on her behalf.
On the evidence, I am not able to come to the view that the nature and seriousness of Ms Liles' offending was of a kind pressed on her behalf. I am satisfied that there can be no question that her offences were serious indeed, considerably more serious than was submitted on her behalf. That conclusion was inescapable, when proper consideration was given to what was revealed by the very detailed agreed statement of facts in evidence, as well as by the statement which Ms Liles made earlier this year, after she entered her plea.
Ms Liles' position
Firstly to be considered is that the agreed statement of facts revealed that these offences were committed by a well experienced, senior, practising accountant. There can be no question on that evidence that Ms Liles was always very well aware of the illegality of her actions, which finally resulted in the entry of her plea to the charges for which she is now being sentenced.
Ms Liles commenced her accounting practice in December 1979. She later formed an association with the Vanuatu firm, Moores Rowland International and in the late 1980s, purchased a 30% share of that partnership. From 22 April 1994 to 26 April 1996, Ms Liles was the President of the National Institute of Accountants. From September 1993 to June 1998, she represented the Institute on the fringe benefit tax sub-committee of the National Tax Liaison Group, the peak consultative forum between the Australian Taxation Office and the tax profession.
In 2001, after being discharged from bankruptcy, Ms Liles became a partner in an Australian firm of which she owned a 50% share. In 2002 she formed her own firm, Phoenix Accounting Group (Aus) Pty Limited, of which she became a director.
The overall operation of the tax avoidance scheme
The nature of the tax evasion scheme in which Ms Liles became so intrinsically involved, must also be considered. It was designed to remove profits from Australian companies, without them paying company tax on those profits and without Ms Liles' co-conspirators, who were directors and shareholders of those companies, paying personal income tax on the monies which eventually came into their hands, by operation of the scheme.
In the case of each conspiracy, Ms Liles helped her clients to incorporate an international company in Vanuatu, using the services of Moores Rowland, which was based in Port Vila. The Vanuatu companies were not permitted to conduct business in Vanuatu, but they could conduct business outside that country. Within the country, they could open and operate bank accounts and obtain professional services from accountants and attorneys. Ms Liles' clients were responsible for dealing with Moores Rowland in relation to the transfer of money to and from the Vanuatu companies and for paying its fees.
Moores Rowland's role was to operate nominee companies which held shares in the clients' Vanuatu companies. Each company had one or more Moores Rowland nominee company as its shareholders and directors. As a result, the names of Ms Liles' clients did not appear on any official documents regarding their Vanuatu company, but the shares in the nominee company were held in trust for them, as beneficial owners.
Moores Rowland also opened accounts at banks operating in Vanuatu for the clients' Vanuatu companies. Moores Rowland's partners and employees were signatories on those bank accounts, ensuring that the clients were not linked with those accounts. Arrangements were put in place so that the clients were able to transfer funds to the Vanuatu accounts from their Australian companies.
The Vanuatu banks periodically required that money laundering questionnaires be completed by account holders. Moores Rowland forwarded those questionnaires to Ms Liles and her clients. They were completed by the clients, in some cases with Ms Liles' assistance and then returned to Moores Rowland.
As for Ms Liles, in order to provide legitimacy for fund transfers, initially she arranged for the preparation and signing of agency agreements between the Vanuatu companies, the 'Agent' in each case, and the client's Australian company. The agreements were signed by the directors of each company. Their terms provided for payment by the Australian company to the Agent for services provided by the Agent, who the agreement stated in each case had 'a very comprehensive knowledge and understanding of the international business environment and has operated successfully in different markets for and on behalf of a wide range of clients'. The Vanuatu companies in fact, however, provided no services to the Australian companies.
Transfers by the Australian companies to the Vanuatu companies were treated by each Australian company as payment of legitimate expenses, posted in accounts as 'management', 'agency', 'service', or 'licensing fees' owed to the Vanuatu company. In some cases, false invoices were prepared, which claimed payment for commission or agency fees allegedly owed to the Vanuatu company under the agreement.
Tax was evaded by the transfer of profits from the Australian company to the Vanuatu company's bank account, disguised as legitimate payment of the cost of such services. Claims for tax deductible business expenses were then made in the Australian company's income tax returns, thereby reducing its taxable income and its liability for tax.
The funds received by the Vanuatu company were then distributed in various ways, including by transfer to personal bank and credit card accounts of the shareholders of the Australian company; or to the accounts of their family members; or to the Australian company, which treated them as loans; or to trusts of which the shareholders were beneficiaries; or to Ms Liles, for investment in property developments; or to pay lawyers or other creditors; or by way of withdrawal from Australian ATMs, using debit cards forwarded to shareholders by Moores Rowland.
These funds were taxable income in the hands of the shareholders, who failed to declare them, with the result, the evasion of their personal income tax liabilities.
This evasion came to light when the Australian Taxation Office audited the Australian companies. The ATO disallowed the deductions, the companies' taxable income was increased and the correct liability calculated. Eventually Ms Liles and her co-conspirators were charged for their offences.
The Mascall conspiracy
This conspiracy resulted from Ms Liles' accounting work for Air Solutions International Pty Ltd, from about 1996. Amongst its directors and shareholders were Paul and Lesley Mascall. Hi-Tech Property Services Pty Ltd, a company which they owned and operated, holding all but one of its shares, was the majority shareholder of Air Solutions.
It was in June 1992, that Hi-Tech acquired 50% of Air Solutions. It purchased the remaining 50% in 1996. Two of the employees, Hamish James McLean and Paul Singleton Sewell, then offered to purchase shares in Air Solutions and in 1997 Christopher Chalinor also acquired shares. They each also became directors.
In September 1997, Ms Liles went to Vanuatu with Paul and Lesley Mascall, and with the assistance of Moores Rowland arranged for the incorporation of Zax International Corporation. One share in Zax was issued to a company owned and controlled by Moores Rowland, Southpac Nominees, with the beneficial interest in that share vested in Air Solutions. Amongst other instructions then given was that the principal main beneficial owner and client contact were to be Paul and Lesley Mascall. Paul Mascall was also identified as the person authorised to act on behalf of the owners and instructions were given to open an account at the ANZ Bank (Vanuatu) Limited.
Paul Mascall signed an agency agreement with Zax on behalf of Air Solutions on 24 September 1997. Another identical agreement was made in 2002, signed by Paul Mascall as secretary and Paul Sewell as director. Ms Liles' husband signed the agreement for Zax.
In November 1999 Ms Liles attended an Air Solutions' directors' meeting. Meeting notes recorded Ms Liles' advice in relation to how individual shareholders could access offshore funds. Confidentiality agreements in relation to that advice were entered by the directors, Paul Mascall, Lesley Mascall, Hamish McLean and Paul Sewell and instructions were given to Moores Rowland in March 2000 as to the opening of four subsidiary accounts. One was accessible only by Paul Mascall and Lesley Mascall and the other three by respectively Christopher Chalinor, Hamish McLean and Paul Sewell.
Between June 1997 and April 2003 over $689,000 was sent by Air Solutions to Zax. Between June 2000 and May 2003, some $630,000 was distributed from its bank account to the Air Solutions shareholders' accounts, split according to their shareholding. The funds were transferred to Australia either by bank transfer or withdrawal of funds from ATMs in Australia.
Paul Mascall and Ms Liles were responsible for preparing Air Solutions' accounts and tax returns for the years ending June 1998 to 30 June 2003. Payments made to Zax were treated as legitimate business expenses, reducing its taxable income and tax liability.
Ms Liles prepared personal tax returns for Paul Mascall and Lesley Mascall for each year during the period of the charges, except for 1999. She also prepared Hamish McLean's return in the 2000 financial year,
Zax was stuck off the Register of Companies in Vanuatu in 2004. There were then still 'deferred' and 'accrued' agency agreement fees in Air Solutions' accounts. In November 2005, Ms Liles advised how they could be removed from the balance sheet.
As a result of ATO audits, deductions which Air Solutions had claimed in income tax returns, of some $848,015, were later disallowed.
The ATO also audited Hi-Tech, Paul Mascall, Lesley Mascall and Paul Sewell. The payments made to them by Air Solutions through Zax were considered to be dividends. As it had not paid tax on those repayments they were unfranked dividends, which were added to the taxable incomes of Air Solutions' shareholders.
As a result of audits and objections, the additional income tax liabilities which resulted were some:
Air Solutions: $452,504
Paul Mascall: $174,723
Lesley Mascall: $166,011
Hamish McLean: $66,454
Paul Sewell: $25,101
The Sakovits conspiracy
This conspiracy was the result of Ms Liles' work for Jane and Ron Sakovits. They bought an advertising and public relation business in 1997, setting up a discretionary trust with themselves and their children as beneficiaries, the Sakovits Family Trust. The trustee was Inform Promotions Pty Ltd ('Inform Promotions'), which was also the trading name used by the Family Trust. Jane and Ron Sakovits were Inform Promotion's directors and shareholders and signatories to its bank accounts.
Ms Liles began advising Jane Sakovits in 1999. She gave Jane and Ron Sakovits advice about 'international accounting' in 2001. Moores Rowland was then instructed to incorporate International Promotions Inc in Vanuatu. Jane Sakovits was the principal and beneficial owner of International Promotions. Ron Sakovits was another beneficial owner. Its sole director was Equity Holdings Limited and its two shares were allotted to Guardian Trustees Ltd, as trustee for the International Prestige Promotions Trust ("IPP Trust").
It was Ms Liles and Jane Sakovits who signed a document settling a trust with Guardian Trustees, which created the IPP Trust. Ms Liles was both the appointer of that trust and a person authorised to act on behalf of Jane Sakovits in relation to an agreement for services between her and Guardian Trustees.
Moores Rowland arranged a bank account to be opened for International Prestige Promotions. Jane Sakovits and Ron Sakovits paid their fees and transferred the first deposit into this account. Moores Rowland then arranged for a debit card, which Ron Sakovits instructed be sent to their home and they were later advised of the PIN number for the account by a Moores Rowland employee.
Under a 1999 agency agreement, Inform Promotions was required to make payments of monthly agent fees of up to $25,000 and debit card withdrawals for set up costs of up to $4,000 per month were provided for. Jane Sakovits created an International Prestige Promotions statement of account for marketing and promotion costs for the year ended 30 June 2000 addressed to Inform Promotions, amounting to some 15% of its turnover. There was a 1 May 2001 agreement in similar terms to the 1999 agreement, except that the monthly set up cost withdrawals were for a maximum of $1,000 per month.
These accounts and agreements all pre-dated the incorporation of International Prestige Promotions. They were false and prepared not to create legal obligations, but to be available to produce to government authorities and banking institutions, should questions be asked about the transfer of funds to Vanuatu.
Numerous sums were deposited into International Prestige Promotions' account. Jane Sakovits and Ron Sakovits treated the funds in the International Prestige Promotions' bank account as their own and transferred money out of that account to bank accounts which they controlled, or by way of withdrawal of cash from ATMs using a debit card. Between May 2001 and June 2006 some $1,432,850 was sent by Inform Promotions to International Prestige Promotions. Between August 2001 and July 2006, International Prestige Promotions transferred some $790,000 to bank accounts in Australia and some $141,600 cash was withdrawn from ATMs in Australia.
Accounts and income tax returns for the Family Trust and Inform Promotions in the years ending 30 June 2000 to 30 June 2006 included numerous false claims for deductible expenses for marketing and promotion fees.
Ms Liles assisted Jane Sakovits to calculate money purportedly owed to International Prestige Promotions for the 2000/01 tax year. Using her business letterhead, Ms Liles instructed International Prestige Promotions to transfer $190,000 to Jane Sakovits and Ron Sakovits' account in Australia. Her accounting firm Phoenix also prepared an International Funds Loan Agreement between International Prestige Promotions and the Family Trust, with Jane and Ron Sakovits as guarantors. This agreement provided for an interest free loan of $190,000 for a year, then repayable at the rate of 10.5% per annum thereafter. She also provided further advice as to transfer of funds in September 2001. Phoenix also prepared further such loan agreements in 2002 and 2004.
In 2002, Inform Promotions began trading in its own right, rather than as trustee for the Family Trust. A dispute then arose with Moores Rowland over its fees. Ms Liles negotiated a deduction of 20% of those fees and was later involved in other negotiations over fees. In 2004, Ms Liles advised Moores Rowland that its services were no longer required and that files were to be transferred to a George Vasaris. He did not provide bank account operation services. Those services were then provided by a Vanuatu company beneficially owned by Ms Liles and her husband.
In 2004, two other companies were set up, Independent Corporate Services Limited and Global Accounting Limited and steps were taken to change banks from ANZ to National Bank of Vanuatu. ANZ required Ms Liles and her husband to provide written confirmation that the business they were conducting was not for purposes of tax avoidance. In March 2005, Jane Sakovits authorised payment to be made by International Prestige Promotions to Global Accounting Limited for professional services rendered.
Ms Liles prepared personal income tax returns for Jane Sakovits for the years ending 30 June 2001 to 30 June 2005 and Ron Sakovits for the years ending June 2005 and 2006. In 2006, Ms Liles instructed George Vasaris that International Prestige Promotions should be struck off and some $476,383 was transferred out of its bank account. The transfer was in reality a distribution of profits from Inform Promotions to Jane Sakovits and Ron Sakovits, which should have been declared as dividends and personal income in their hands. Because no tax was paid on such transfers, they were later treated by the ATO as unfranked dividends.
Ms Liles became the subject of ATO investigation in June 2005. As the result of ATO audits, deductions claimed for transfers made to International Promotions totalling some $1,590,647 were disallowed. In the result Inform Promotion's additional tax liability was $494,139.24; that of Jane Sakovits $326,432.12 and Ron Sakovits $320,671.85.
The Boughen and Cameron conspiracy
This conspiracy resulted from Ms Liles' work for Concept Television Productions Pty Ltd. It produced television shows in Australia. Its initial directors were Michael Boughen and his wife Fiona Susan Wadey, (now Boughen) and Wayne Francis Cameron became a director in 1985. Ms Liles was a director from June 1993 to December 1998. She prepared its accounts and tax returns, knowing that false claims were being made for deductible expenses. Concept Television was deregistered in February 2004.
The charges relate to the period 1 July 1997 to 31 July 2004. During the period of the charges, some $2,080,421 was transferred by Concept Television to Universal Entertainment Corporation Limited ('Universal') in Vanuatu. On Ms Liles's instructions Universal was incorporated in 1991 by Moores Rowland, as an International Exempted Private Company. Its directors were Equity Holdings Limited and Southpac Nominees Limited, service companies controlled by Moores Rowland.
Ms Liles advised as to the establishment and operation of the entities, accounts and structures used in this conspiracy. Declarations of trust were executed by Equity Holdings in favour of Wayne Cameron and by Southpac, in favour of Michael Boughen. An 'at call' bank account was also then opened.
Some $2,264,622 was transferred by Universal. The money transferred was remitted by Michael Boughen and Wayne Cameron to Moores Rowland bank and credit card accounts in Australia and New Zealand and by cash withdrawal using ATM cards. Michael Boughen and Wayne Cameron deposited and withdrew funds from that 'at call' account.
In 1994, two further accounts were opened for Universal to which Michael Boughen and Wayne Cameron transferred and withdrew funds as they saw fit. Another US dollar account was opened in 1995 and fees owed to Concept Television by overseas companies were then deposited into that account. Term deposit accounts were also opened.
In the period of the charges, Concept Television claimed deductions for payments to Universal, described as service fees, licensing fees and management fees, of some $2,076,886, with the result that Concept Television's reported taxable income for the period was a loss of $24,144. Universal also received payments from companies based in the UK, of some $152,112. Overall, Michael Boughen transferred some $1,169,013 from the account and Wayne Cameron some $1,095,608. Neither declared the receipt of these funds as income. These arrangements came to an end in July 2004, after Concept Television was deregistered.
Ms Liles was responsible for preparation of Concept Television's accounts and tax returns, as well as Michael Boughen and Wayne Cameron's personal tax returns. She prepared the financial statements and income tax returns, by which false expenses were claimed and payments received from overseas companies were not disclosed. She also prepared 'Money Laundering Prevention Questionnaires' which Michael Boughen and Wayne Cameron signed.
In the years ending June 1998 and 1999, Concept Television paid no income tax. In June 2000, $200,000 was transferred from Wayne Cameron's account to Phoenix, for an investment he had made which was due to settle. That year Concept Television recorded a taxable income of $1,133. In 2001, its taxable income was $14,853.
In October 2001, Ms Liles provided information to the Vanuatu Bank as to what payments of almost $300,000 made to Universal were for. Management fees paid that year were over $774,000. Ms Liles and Wayne Cameron later signed tax returns recording a loss for that year of some $39,548. In 2003, after transfers of over $179,470 from Concept Television to Universal, which also received payments from overseas, Concept Television's financial statements and tax returns reflected no taxable income.
There were no more remittances to Universal after April 2003 and only one small overseas payment. Concept Television was then wound up and deregistered. The Vanuatu accounts were closed in July 2004 and Universal struck off the Register. The ATO investigation revealed additional tax liabilities of Concept Television of some $727,578 but there are no funds available to pay that shortfall, or any penalties or interest. Michael Boughen had additional liabilities of some $522,034 assessed and Wayne Cameron some $506,001.
Ms Liles' statement
While Ms Liles did not give evidence at the hearing, the Crown tendered a statement which she made after her plea, which shed further light on her involvement in these conspiracies. Ms Liles explained her past dealings with a client who had entered agreements with Village Roadshow, in relation to the payment of royalties overseas. It was then that she first went to Vanuatu and met the practice manager of Moores Rowland International and other of its partners.
A Vanuatu company was incorporated for this client. There was then no intention to evade tax. The payments received were later declared in Australian tax returns.
It was in the late 1980s that Ms Liles established closer ties with Moores Rowland, eventually becoming a partner. She then came to understand the structure of Vanuatu companies and began referring her Australian clients to Moores Rowland. Initially, clients so referred had legitimate reasons for setting up Vanuatu companies, such as real estate investments. Pro forma documentation for structures offered to such clients were then developed.
In about 1991 Ms Liles met Jane and Ron Sakovits. They wanted to minimise the tax they had to pay in Australia. She helped them establish International Promotions, knowing of Moores Rowland's understanding with Jane and Ron Sakovits, by which they were able to maintain control over the company, of which it was trustee. That was reflected in a Declaration of Trust executed at the time, by the Moores Rowland company, which held the shares in International Prestige Promotions.
Ms Liles later downloaded and prepared the agency agreement which Inform Promotions and International Prestige Promotions entered. A standard confidentiality agreement was also entered. It was not long after the establishment of this structure, that Ron Sakovits explained to Ms Liles that the purpose of the arrangement was a tax evasion scheme and how it was operated. This confirmed suspicions which Ms Liles already had about their activities, as well as those of other of her clients.
She then reviewed documentation for all the clients she had referred to Moores Rowland and identified several other clients who were involved in tax evasion schemes. She examined ledgers as to transfer of funds to Vanuatu and thus came to understand how the scheme operated. She also became aware that some clients, including the Sakovits, created invoices to substantiate false expense claims which were being made.
Ms Liles then met with Jane Sakovits and advised her that the scheme was illegal and that it needed to stop. She later gave further advice as to what ought to be done about accounting entries and declaring the income in question to the ATO.
The Sakovits did not accept that advice. It was then that Ms Liles agreed to assist them further, both in the ongoing operation of the scheme and in preparation of documents designed to hide it from the ATO.
Ms Liles then also contacted other clients who she had identified and gave them similar advice. Ms Liles said in her statement:
"In each case I agreed to assist them with continuing the fraud. I felt unable to stop assisting them as by this stage all of the clients using the scheme had become very good friends as well as clients."
Ms Liles explained at length the various practical assistance which she then gave those clients in preparation of financial statements, balance sheet records, profit and loss statements, loan agreements and tax returns for various entities and persons. She was fully aware of the false information which they contained and the resulting reduction in taxable income declared, to reflect expenses which should never have been claimed.
Ms Liles herself signed some documents knowing that they contained false statements and were designed to disguise the true nature of the funds being dealt with. In the case of loan agreements, she said that there was never any expectation that loans would be repaid, it was intended that they were to be forgiven. She was aware that invoices created reflected services which were not ever actually provided and that some documents were only created after funds were transferred.
In the mid-2000s Ms Liles had a falling out with Moores Rowland and transferred her client files to George Vasaris. When the ATO investigation known as Project Wickenby came to public attention, she discussed with Jane Sakovits what might happen, if they became the subject of investigation.
Jane Sakovits then asked her to have all documents and files relating to Inform Promotions and International Prestige Promotions destroyed, but she did not do so. Later she did help Jane Sakovits create documents asked for by the ATO, including further loan and agency agreements, in order to explain payments made from Vanuatu to Australia. She also assisted answering questionnaires provided by the ATO. Ms Liles also agreed with Jane Sakovits to take steps to terminate the agency agreement between Inform Promotions and International Promotions, in order to cover up the scheme and close it down.
In 2006, the ATO inspected documents which Ms Liles held as part of its investigation. When interviewed by the ATO in relation to her clients, she continued to assert that the scheme was legal, in the hope that the ATO would accept her assertions. Even in 2007, Ms Liles prepared financial statements and tax returns which reflected agency fees which had never been paid, in order to reduce taxable income.
The consequences of the offending
In assessing the nature and seriousness of these offences, it is necessary to consider the considerable losses suffered by the revenue, as well as the intangible losses Ms Liles caused to the Australian taxation system. As Simpson J observed in Agius at [63]:
"The Australian taxation system, based as it is on self-assessment, depends for its integrity upon the honesty of citizens. Of course, there will always be those who choose to cheat. They are cheating their fellow citizens, casting a greater burden on each of them. Further, when it is known that the system can be, and is, cheated, the very structures of society are damaged. The self-assessment system depends not only on the honesty of taxpayers, but on the confidence of taxpayers that others will make their proper contributions, or that, if they do not, they will be adequately punished."
In this case, Ms Liles' understanding of the damage which her offending caused to the system is also unquestionable. This, together with the matters earlier referred to, cannot leave any doubt as to the seriousness of Ms Liles' offending and that it cannot be characterised in the way for which it was contended on her behalf. These were serious offences knowingly committed by a person well placed to conceal the offending from the investigating authorities, who on her own account took considerable steps to conceal what had been done, even when the offences became the subject of investigation.
There can be no question that there was personal gain from the offending, beyond the professional fees earned. After the falling out with Moores Rowland, Ms Liles clearly stepped into its shoes and then operated the scheme in its place, with the assistance of Mr Vasaris. This is an aspect of her conduct which may not be overlooked in assessing the seriousness of her offending.
A term of imprisonment is warranted for these offences
Sentencing of Commonwealth offences such as this must be approached in light of the provisions of Part IB of the Crimes Act - Sentencing, imprisonment and release of federal offenders. Section 16A of that Act requires that the sentence imposed be 'of a severity appropriate in all the circumstances of the offence' and by s 17A, that a sentence of imprisonment not be imposed, 'unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case'.
Given the nature and seriousness of these offences, I am satisfied that no sentence other than imprisonment is appropriate for Ms Liles' offences. The period of the sentence must be determined having regard to the other relevant matters identified in s 16A(2) of the Crimes Act, including her personal circumstances. That section relevantly provides:
"(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a) the nature and circumstances of the offence;
...
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct;
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(f) the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
...
(g) if the person has pleaded guilty to the charge in respect of the offence - that fact;
(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
(j) the deterrent effect that any sentence or order under consideration may have on the person;
(k) the need to ensure that the person is adequately punished for the offence;
(m) the character, antecedents, age, means and physical or mental condition of the person;
(n) the prospect of rehabilitation of the person;
(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants."
As I have already observed, after the entry of her plea, Ms Liles provided a statement which has been of obvious assistance. That co-operation and her plea itself, evidences her contrition and prospects of rehabilitation. I turn to other relevant considerations.
Ms Liles's personal circumstances
In evidence was a June 2012 report of Dr John Obeid, a consultant physician and geriatrician. There he outlined the history he had been given by Ms Liles, then aged 65 years.
Ms Liles' 71 year old husband is unwell, with multiple medical problems, including spinal problems. She is his principal carer. She is presently at liberty on bail, working and involved with certain charities.
The report indicates that Ms Liles is suffering from a number of serious, chronic and ongoing medical problems for which she is being treated. They include hypertension; non-insulin dependent diabetes; hypercholesteroleamia; possible ischaemic heart disease; left ventricular hypertrophy; a condition requiring regular review of her breasts; hepatitis; presumed irritable bowel syndrome; depression; and benign skin lesions. She has a family history of heart disease and cancer and herself was treated for ovarian carcinoma some 25 years ago.
Dr Obeid found Ms Liles stressed and emotional, as well as suffering from severe depression and anxiety, likely brought on by the stress of her current legal situation, although Dr Obeid noted that his expertise was not in psychiatry. She was diagnosed as facing multiple cardiovascular risk factors, suffering symptoms of recurring chest pain and undiagnosed gastrointestinal symptoms. Dr Obeid noted that life expectancy of a 66 year old women in NSW is 21 years, but given Ms Liles' multiple medical and psychiatric problems, especially cardiovascular risk factors, in his opinion her life expectancy was reduced to 7 years.
Dr Obeid was of the view that Ms Liles' symptoms of panic, depression and anxiety were likely to worsen with a custodial sentence and concern about the care of her frail husband. He noted that her medical conditions had worsened with the commencement of these proceedings. In his view there was a substantial risk that a custodial sentence would exacerbate her underlying conditions, increasing the risk of a vascular event and death. Dr Obeid outlined Ms Liles' immediate, medium term and ongoing care requirements, including age related requirements.
I note that there was no evidence as to what steps had been pursued in this regard, but it was not suggested that Ms Liles' medical needs could not be met, if she received a custodial sentence. To the contrary, that such a sentence would be imposed, was accepted.
There was also a June 2012 report from the forensic psychiatrist Dr Stephen Allnut in evidence. Dr Allnut noted that Ms Liles was seeing a psychologist. Dr Allnut noted that during the period of her offending, she was not taking drugs or alcohol to any great extent, but that she had received medication as the result of treatment for her past ovarian cancer. The history which she gave Dr Allnut was to somewhat different effect to that recorded by Dr Obeid. On the history which he took, Ms Liles had not been diagnosed with any major medical problems and had never been prescribed any psychiatric medication. He found that her mental state was stable, that she did not experience significant mood fluctuations, periods of anxiety or symptoms of psychosis.
Ms Liles gave a history that she had experienced personal stress when she had to declare herself bankrupt in 1997/98, the result of a failed project, where she had given a director's guarantee and had been pursued by creditors. In 1999, she had financial problems and had to start again. She commenced her offending when aged 52, at a time when she was attempting to deal with her financial difficulties. She then had a client base of 1,200 clients and apart from what she charged for her accounting services, received no benefit from her offending in respect of the five clients involved.
In hindsight, Ms Liles told Dr Allnut that she should have said 'No, you can't do this'. She took responsibility for not stopping the offending behaviour and accepted the charges of conspiracy, but said that 'her role was in relation to dealing with the paperwork related to the transactions'.
It is apparent from Ms Liles' statement tendered in these proceedings, that this is not an accurate reflection of the nature and extent of her involvement in the conspiracies she has admitted to.
Dr Allnut also recounted that:
"When I enquired what she thought her personal weakness in this process had been, she said that she had always been the type of person who had a commitment to helping people; at that time she was [at] a stage where she did not know how to say stop; she tended to be a person who preferred to avoid confrontation, that she did not keep her eye on the ball at the time; she accepted it was not a difficult thing to recognise but that she was not aware of the extent of event; in addition she thought that partly the(sic) inadequate response was because she did not want to create a rift in her relationship with the people involved because they had become friends of hers."
Dr Allnut noted Ms Liles' account of her very depressed mood, her acceptance of her responsibility for what she had done and her embarrassment and regret. He noted poor sleep and appetite, poor self-esteem and difficulty in concentrating, as well as panic attacks and anxiety about her husband. She also recounted having been the victim of harassment, after publicity of her offences, a matter about which she also called evidence at the hearing.
Dr Allnut also noted Ms Liles' family background, her educational and business success and her two marriages, amongst other matters.
Dr Allnut's opinion was that Ms Liles was manifesting symptoms consistent with a depressive disorder, but not a personality disorder. He noted that she was suffering from a number of medical conditions and the significant stressors which she faced, given her circumstances and her fall from grace as a professional. He assessed that overall, she presented as an individual who had manifested remorse and contrition. He recommended further treatment.
These reports must be considered in a context where Ms Liles did not give evidence at the hearing. It follows that statements which she has made to doctors, including in relation to the motivation for her offending and its consequences for her, and the submissions advanced about such matters, must be approached with some caution.
Ms Liles' mental state is what one might well expect of a person in her position, given the loss of her reputation, her profession and her business and that she is facing an extended term of imprisonment. That cannot mitigate the gravity of this offending, but the difficulty of her imprisonment, given her age, her physical and psychological health and her resulting reduced life expectancy, are all matters which must be properly taken into account in the sentencing exercise.
As to the evidence about the position of her husband, that is evidence which must be approached in the way discussed by Simpson J in Agius, namely, that such evidence may not be given substantial weight unless it can be "categorised as "exceptional" as discussed in R v Togias [2001] NSWCCA 522 at [9] - [17] and R v Hinton [2002] NSWCCA 405; 143 A Crim R 286 at [31]. That Ms Liles' imprisonment will have a significant impact upon her husband, given his medical conditions and her role to this point as his principal carer, may well be accepted. In the circumstances, I take the view that these are matters which may properly be taken into account in sentencing, although I do not consider that they can be given substantial weight.
Character evidence
Also to be considered is that to this point Ms Liles has no criminal record. Character evidence was called from two of her clients, Daniel Milevich and Robert James, who both attested to her professional competence and the regard in which they held Ms Liles, given their personal and professional experiences of her, as well as what they had observed of the impact of her circumstances upon her following her being charged and entering her plea. It was Mr James who gave evidence of the material he had received anonymously, while Ms Liles continued to give him professional advice, in relation to these offences and what impact that had. It did not alter his high opinion of her.
All of this evidence showed a side to Ms Liles, which, sadly, she plainly abandoned during the entire course of the serious criminal conduct, for which she is now being sentenced.
On her own statement Ms Liles' extensive, ongoing, knowing and wilful participation in this serious offending, was initially engaged in at a time when she was working to recover from financial difficulties. After the falling out with Moores Rowland, her involvement became even greater, resulting, it must be inferred, in greater financial gains for her and her businesses involved in this offending. Once the ATO pursued its investigations, the offending did not cease and Ms Liles pursued active steps to conceal her offending and that of her clients. Without her involvement, these conspiracies could clearly not have succeeded as they did, or for as long as they did.
On all of this evidence it must be concluded that Ms Liles did not, in fact, have the good character which her prior unblemished record suggested. To the contrary, Ms Liles abused her professional position and apparent good character, in order that these offences could be committed.
In the circumstances, it must be concluded that the character evidence led on her behalf can be given but little weight in this sentencing exercise. But for entry of the pleas and the assistance which was finally forthcoming in 2012, there is little in the evidence which mitigates the gravity of this offending.
Other matters necessary to be taken into account in sentencing
Deterrence
It is well established that deterrence, both general and specific, must be considered in sentencing. It cannot be doubted that it must feature in the sentences here imposed.
Like in Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520, here there was repeated, deliberate, calculated and systematic fraud on Australian taxpayers, in which the offender was actively involved. There the majority in the High Court observed:
"63. The applicants' offending was sustained over a long time. It was planned, deliberate and deceitful, requiring for its implementation the telling of many lies. The applicants acted out of personal greed. The amount of tax evaded was not small. Detection of offending of this kind is not easy. Serious tax fraud, which this was, is offending that affects the whole community. As was pointed out in Ruha [R v Ruha, Ruha v Harris ex parte the Commonwealth DPP ] [2010] QCA 10 at [45], the sentence imposed had to have both a deterrent and a punitive effect, and those effects had to be reflected in the head sentences and recognizance release orders that were made."
Here, as Ms Liles was well aware, she actively pursued a course of conduct which resulted in large losses to the revenue over a period of some 9 years. Her offending continued even after she became aware of the ATO's investigations. She then took active steps to conceal what had occurred.
It may be accepted that Ms Liles was initially not an active promoter of this scheme, but her understanding of its operation and criminality was undoubted, when she decided to assist the clients who she had advised of its criminality and who wanted to persist in that offending. She then actively prepared false documentation, including tax returns and various financial records, advising her clients, not only as to the ongoing implementation of the scheme, but as to steps to be taken in order that it could be concealed from Australian authorities. Later, she also devised aspects of its practical implementation, initially in conjunction with its promoters at Moores Rowland and after their falling out, on her own account. She then became the effective operator of the scheme, in part through services offered by her own companies.
At that point the scheme could clearly not have operated as it did without her ongoing involvement. She did not only file false tax returns, she also provided advice, created documents and provided other services which facilitated its ongoing operation. Throughout, she was active in devising steps to be taken to conceal the scheme from Australian and Vanuatu authorities.
There is no question that Ms Liles received financial benefit from her involvement in this scheme, in the form of the professional fees which she earned for her work, even though there is no evidence of what these earnings were.
The case advanced for Ms Liles as to the nature of her offending may not be accepted. It did not reflect the evidence of her actual role in this scheme. There is no basis in the evidence for a conclusion that Ms Liles was trapped, or that she felt that she was obliged to remain involved, once she had determined that the scheme in which a number of her clients were actively involved, was a criminal one. Ms Liles gave no evidence as to her motivation, which could be tested. A feeling of social pressure of the kind that she reported to the two doctors who assessed her, even if it existed, is not a basis upon which the criminality of this offending can be thought to have been mitigated or to reduce the role which deterrence must play in the sentence imposed.
In the result it is necessary that the sentences include a strong element of general deterrence, given the serious breach of trust involved in Ms Liles' offending in the context of Australia's self assessment tax system. I do, however, accept the parties' common position that specific deterrence does not have a large role to play, given Ms Liles' final acceptance of her responsibility for her offending, evidenced by her pleas and assistance and given her age and health and the consequences of her offending on her ability in future to practise her profession.
Other comparable offenders
Also to be considered are the sentences imposed on other comparable offenders. Again, the parties were not agreed about this.
The Crown's case was that the nature of Ms Liles' offending substantially exceeded that considered in Hili and that the only comparable case involving greater criminality was that of Mr Agius (see Agius).
For Ms Liles it was argued that her position was more akin to that of Mr Zerafa, whose effective sentence was release to perform 500 hours of community service, than that of Mr Agius, who was sentenced to a total term of 9 years, with a non-parole period of 6 years and 8 months.
Mr Agius and Mr Zerafa were also accountants, partners in firms involved in the conduct of another conspiracy in relation to tax fraud, involving a large number of Australian companies and another New South Wales firm of accountants. There, too, fraudulent claims were made as to the provision of services never provided to the Australian companies, with the result that profits were not declared and income tax not paid. Mr Agius actively promoted the scheme to clients of the New South Wales firm, recruiting their involvement. It was under his direct control and supervision and implemented with the administrative support of employees of the New South Wales firm, including Mr Zerafa. Mr Agius received financial benefit from his involvement, although like here, there was limited evidence about this.
Mr Zerafa was involved in the initial arrangements to set up the structures used and in the maintenance of the accounts and preparation of tax returns of companies involved. Initially, he acted under direction of a partner of the New South Wales firm. His knowledge of the fraudulent nature of the arrangement grew over time to the point where he had an understanding of the scheme. He eventually became a partner of the New South Wales firm and when he came to understand the scheme fully, no further clients were joined to the scheme.
Mr Zerafa became involved in providing fabricated responses to the ATO when it began investigating clients, initially not on his own initiative, but under direction. Mr Agius was involved to a significant degree in protecting and perpetuating the conspiracy after the ATO's interest became apparent and concealing the nature of payments being made. He was found to be a promoter of the scheme. Mr Zerafa was found to have been led into his involvement by an unscrupulous immoral and overpowering employer.
It is apparent that the evidence in this case does not leave open the conclusion that Ms Liles' role in these conspiracies was more akin to that of Mr Zerafa than that of Mr Agius. The only explanation she has given in relation to her offending was the social obligation she felt towards clients who had become her friends. As I have said, real caution must be exercised in accepting that this was so. She has not been cross-examined on this account. Given what was revealed by the agreed statement of facts and her own statement, this seems to be quite an implausible explanation.
On her own account, Ms Liles initially had suspicions about the illegality of what Moores Rowland was doing. When its illegality was confirmed, not only did she actively support her clients' ongoing involvement in that illegal scheme when they rejected her initial advice as to its illegality and that it should cease, she then devised ways in which their illegal activities could be better concealed and eventually, operated the scheme herself, after she had fallen out with Moores Rowland. Her role from that point was even more akin to that of Mr Agius, than it had previously been. This must be reflected in the sentence imposed.
Was there relevant delay?
Again, the parties were not agreed about this.
For Ms Liles it was argued that account would be taken of the impact of the long delay between the time of the ATO investigations and her sentencing. The Crown disputed that there had been any relevant delay, submitting the time which had elapsed had in large part reflected what Ms Liles had herself done, not any delay in the investigation or prosecution of her offences.
I am not able to accept the submission that there has been delay which constitutes a powerful mitigating factor of the kind discussed in the authorities to which reference was made for Ms Liles. Her pleas were entered in 2012 only after committal. This year the sentence hearing has been twice adjourned as the result of applications made by Ms Liles, once when she was suffering from whooping cough and once because of a desire to gather further evidence, as to her assistance.
It was in 2006 that Ms Liles became aware that the ATO was conducting an investigation into her activities. There was subsequently not only further offending, but also active steps taken to conceal the offences to which pleas were entered this year. That followed negotiations after committal, which led not only to the withdrawal of some charges laid against Ms Liles, but also an agreement that the charges in relation to the third conspiracy would be dealt with by way of schedule. Given the nature and seriousness of the offences involved in that conspiracy, perhaps the most serious of the three on the facts, that agreement has obviously had very significant benefits for Ms Liles. She now faces a much lower sentence than she would have otherwise faced. In the result, any suspense in which Ms Liles has been kept, has been resolved in a way which has been to her considerable benefit.
That is not a delay which may be dealt with as a mitigating matter of the kind discussed in R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at [16], for example. This is not a case where there is evidence that prosecuting authorities have not acted promptly to pursue serious offending which has come to light. To the contrary, on the evidence there was an effective investigation to which Ms Liles responded by taking active steps, not only to conceal the nature and extent of the offending in question, but to pursue the conspiracies in which she was actively involved even further. On the evidence, Ms Liles was always aware of her guilt of the offences to which she entered a plea only in 2012. In my view in sentencing no consideration can be given to such delay, to Ms Liles' further advantage.
What discount is to be given for Ms Liles' plea and assistance?
The parties were also not agreed about this.
In evidence was the assessment of the Australian Federal Police of the assistance which Ms Liles has provided. There it was noted that Ms Liles had entered her pleas on 3 February 2012, after which she met with investigators to provide a statement. The information then provided in relation to Jane and Ronald Sakovits was considered valuable, corroborating documentary evidence in the prosecution brief; providing additional details and context as to the creation of certain documents; direct evidence of relevant conversations; and details of the establishment and operation of the scheme. It was said that it was likely that she would be called to give evidence in those prosecutions. Otherwise, the statement had not led to additional intelligence or investigations. The assistance was rated to be of low to medium value.
The Crown's case was that Ms Liles was entitled to a discount for her assistance and pleas, but that in total it should be less than 40%, given the nature of her assistance and because the pleas had not been entered at the earliest opportunity.
For Ms Liles it was argued that account would be taken of the difficulty in dealing with the Commonwealth as to the charges to be pressed, with the result that it would be concluded that the pleas were entered early, at the first practical opportunity, in response to the final indictment. Again, the view was urged that the delay also had to be taken into account, given that it was 6 years since the offending had come to light. It followed that there would be a discounted of 20 to 25% for the plea, plus a discount for assistance, with the result a combined discount of 40 to 50%.
Ms Liles' pleas were entered in 2012 after committal and then negotiation over the charges to which the pleas were entered. It was agreed that one charge would be withdrawn and that the charges relating to the third conspiracy would be scheduled. It was only then that the pleas were entered and a statement made. In the result, it is apparent that while Ms Liles was always aware of the nature of her offending, assistance was not given immediately, but rather at a comparatively late stage.
Even so, it must be accepted that a willingness to facilitate the course of justice was then demonstrated. The pleas were clearly not entered at the earliest opportunity and the assistance provided after the entry of the pleas was obviously somewhat belated, which explains the police assessment that it was of low to medium assistance. That must all be taken into account. In the result, weighing all of those considerations, I have concluded that there should be a combined discount of some 37%, 15% of which should be for future assistance.
Concurrency and accumulation
As I have said, the charges relating to the third conspiracy must be taken into account in fixing the penalty for the offences for which Ms Liles is being sentenced. That conspiracy commenced in July 1997, lasting a total period of some 7 years and involving very large sums. These were also very serious offences, perhaps the most serious of all of the offences which here arise for consideration.
On the evidence the result must clearly be an increase in the penalties which would otherwise have been imposed on Ms Liles for the offences in respect of which she is being sentenced. Questions of totality also arise to be considered.
The Crown accepted that there was an overlap in the criminality involved in the four counts for which Ms Liles is being sentenced. There is clearly some overlap, which has to be taken into account in sentencing. Thus questions of concurrency and accumulation of sentence arise to be considered.
What must be ensured, however, is that an appropriate sentence is imposed for each of the four separate offences being dealt with (see Pearce v R [1998] HCA 57; (1998) 194 CLR 610). The two offences charged in the case of each conspiracy are consecutive. Like Simpson J in Agius, I take the view that the sentences for the two charges involved in each conspiracy should thus be cumulative, ensuring in the result an aggregate sentence in each case, equivalent to that I would have imposed, had there been a single offence committed over the total period of each conspiracy.
The Mascall conspiracy charges relate to the period between 1 July 1997 to 31 July 2005, with the first offence spanning a period of just under 3 years and 11 months and the second a period of just over 4 years, 2 months, a total period of over 8 years. These offences involved additional tax liabilities exceeding $884,793.
The Sakovits conspiracy operated from 1 April 2001 to 30 September 2006, with the third offence spanning a period of 1 month and 23 days and the fourth offence a period of just over 5 years, 4 months, a total period of over 5 years, 5 months, involving additional tax liabilities in excess of $1,141,243.21.
The overall gravity of the offending clearly increased with time. The Sakovits conspiracy commenced when the Mascall conspiracy had already been on foot for almost four years. It commenced at a time when the Boughen and Cameron conspiracy was already on foot. In the later period of these conspiracies, the offending continued even after the investigations came to light, with active steps being pursued to conceal the conspiracies. This must all be reflected in the sentences imposed in respect of the individual offences.
While there is a considerable overlap in the criminality involved in the two conspiracies for which Ms Liles is being sentenced, it is not identical. They were separate conspiracies involving distinct conspirators and different frauds. It follows that the total criminality of Ms Liles' offending cannot be dealt with by imposing sentences in respect of the two conspiracies which are wholly concurrent. The sentences must mark out the distinct criminality involved in the two conspiracies.
In the result the sentences I impose will be partially cumulative, with the result that the total head sentence will be some 8 years, 3 months.
Special Circumstances
The parties were also not agreed about this.
On Ms Liles' case on the evidence special circumstances would be found, with the result, given her age, antecedents, health, plea, assistance and excellent prospects of rehabilitation, that the ratio between the head sentence and non-parole period imposed would be fixed at 50%.
While it was accepted that only a full time custodial sentence could be imposed for these offences, it was argued for Ms Liles that her sentence should not start at the top of the range, but rather at 7 to 8 years, which would be discounted by 40 to 50% for plea and assistance, with a ratio of 50% reflecting special circumstances, with the result a sentence of 18 months to 2 years. Given her life expectancy of only 7 years, that would give her some hope of a few years together with her husband at the end of their lives. Her circumstances warranted leniency.
The Crown opposed such an approach, submitting that the result would be a sentence which did not adequately reflect the nature and seriousness of Ms Liles' offending. On its case there should be a sentence imposed with a non-parole period close to the maximum head sentence.
There is no question that sentences have been imposed which reflect the 50% ratio urged for Ms Liles, but in sentencing, consideration must also be given to the interaction between discount and the ratio adopted. The resulting minimum time that an offender must serve in custody, must properly reflect the nature and seriousness of the offending.
It was settled in Hili that the relationship between the time that an offender must serve in custody and the length of the head sentence imposed must be determined by reference to all of the relevant circumstances, including the matters specified in the non-inclusive list appearing in s 16A(2) of the Crimes Act (Cth). The sentencing court must "make an order that is of a severity appropriate in all the circumstances of the offence" (s 16A(1)). What the appropriate severity is, must determined having regard to what the appropriate minimum term of imprisonment for the offence in question is, that being the punitive or retributive element of the sentence imposed. That must reflect the nature and seriousness of the offence and the offender's subjective circumstances. Consideration must thus also be given to the mitigation of the punishment imposed, in favour of rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that the sentencing judge determines that justice requires that the prisoner must serve, having regard to all the circumstances of the offence. In a tax fraud case such as this, the deterrent and punitive aspects of the head sentence must be reflected both in the head sentence and any provision made for early release.
Ms Liles' offending was sustained over a long time. It was planned and deliberate offending, involving a significant breach of trust on the part of a qualified and highly placed accountant. As observed in Hili at [63], detection of sophisticated tax fraud such as this, which affects the entire community, is difficult. The sentence imposed must thus have both a punitive and a deterrent effect. Also to be considered in this case, however, is the evidence of Ms Liles' ill health and its ongoing impact and the other relevant circumstances to which I have referred. On that evidence, it seems to me that some amelioration of the minimum custodial sentence which would otherwise have to be imposed upon her, must result.
In the result I have concluded that there should be a ratio between the head sentence and the recognisance release order which I propose to make, which has the result that Ms Liles will become eligible for release after serving 4 years and 11 months in custody. This reflects a ratio of some 60% of the total effective head sentence of 8 years, 3 months. In my assessment, any lesser period of imprisonment would not adequately reflect the criminality of the offending for which Ms Liles is being sentenced.
I have also come to the view that it is appropriate to fix one recognisance release order for all these offences.
The sentences
In each case it is necessary to specify the sentence which would have been imposed in respect of each charge, but for the discount. I note that the aggregate sentence is what I would have imposed, had Ms Liles been liable for a single 10 year maximum for the offending involved in each conspiracy. I propose to fix a single recognisance release order without surety for all counts.
The Mascall Conspiracy
These two offences cover relatively similar periods and should in my opinion be sentenced on a similar basis. The sentences I have determined should be imposed are as follows:
Count 1
- the sentence but for the discount would be 4 years
- the sentence with discount is 2 years, 6 months
Count 2
- the sentence but for the discount would be 4 years
- the sentence with discount is 2 years, 6 months
The total resulting sentence for the Mascall conspiracy is 5 years.
The Sakovits conspiracy
These two offences cover quite disparate periods, which must be reflected in the sentences imposed. The sentences I have thus determined should be imposed are as follows:
Count 3
- the sentence but for the discount would be 4 months
- the sentence with discount is 2 months, 2 weeks
Count 4
- the sentence but for the discount would be 8 years
- the sentence with discount is 5 years, 2 weeks
The total resulting sentence for the Sakovits conspiracy is some 5 years, 3 months.
Orders
Lynette Kathleen Liles you are convicted of the four counts to which you have entered a plea and are sentenced as follows:
1. In respect of Count 1 you are sentenced to imprisonment for 2 years, 6 months commencing on 18 October 2012 and expiring on 17 April 2015.
2. In respect of Count 2 you are sentenced to imprisonment for 2 years, 6 months commencing on 18 April 2015 and expiring on 17 October 2017.
3. In respect of Count 3 you are sentenced to imprisonment for 2 months, 2 weeks commencing on 21 October 2015 and expiring on 3 January 2016.
4. In respect of Count 4 you are sentenced to imprisonment for 5 years, 2 weeks commencing on 4 January 2016 and expiring on 17 January 2021.
5. You are to be released on 17 September 2017, upon entering a recognisance to be of good behaviour during the balance of your term, without lodging cash security.
6. You are to be fingerprinted in accordance with s 3ZL of the Crimes Act (Cth).
Under s 16 F of the Crimes Act (Cth), I am required to explain this sentence to you. I have ordered that you are to be sentenced to a total period of imprisonment of 8 years and 3 months, but that you are to be released from imprisonment after 4 years, 11 months, on a recognisance that you be of good behaviour during the balance of your term, without lodging cash security. You should understand that this condition may later be altered, in accordance with the provisions of s 20AA of the Crimes Act (Cth). This means that unless there is such an alteration, while your sentence will not expire until 17 January 2021, you will be released from imprisonment on 17 September 2017, subject to the condition that you be of good behaviour during the balance of the term of your sentence. If you fail to comply with that condition, or any other condition later imposed before your release, you may be returned into custody to serve the balance of your sentence there.
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Decision last updated: 15 July 2013
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