Liles v R

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 1HOEBEN 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 she did conspire with Paul William Ernest Mascall, Leslie Ann Mascall and divers others to defraud the Commonwealth contrary to ss29B and 86(1) of the Crimes Act 1914 (Cth). Count 2 - Between about 24 May 2001 and 31 July 2005 at Sydney NSW and elsewhere she did conspire with Paul William Ernest Mascall, Leslie Ann Mascall and divers others with the intention of dishonestly causing a loss to a third party, namely the Commonwealth, contrary to s135.4(3) of the Criminal Code 1995 (Cth). Count 3 - Between about 1 April 2001 and 23 May 2001 at Sydney NSW and elsewhere she did conspire with Jane Maria Sakovits and Ronald Rudolf Sakovits to defraud the Commonwealth, contrary to ss29D and 86(1) of the Crimes Act 1914 (Cth). Count 4 - Between about 24 May 2001 and 30 September 2006 at Sydney NSW and elsewhere she did conspire with Jane Maria Sakovits and Ronald Rudolf Sakovits with the intention of dishonestly causing a loss to a third person, namely the Commonwealth, contrary to s135.4(3) of the Criminal Code 1995 (Cth). 2Sentence proceedings were heard by Schmidt J on 30 August 2012 and her Honour passed sentence on 18 October 2012. The sentences imposed were as follows: Count 1 - Imprisonment for 2 years, 6 months commencing on 18 October 2012 and expiring on 17 April 2015. Count 2 - Imprisonment for 2 years, 6 months commencing on 18 April 2015 and expiring on 17 October 2017. Count 3 - Imprisonment for 2 months and 2 weeks commencing on 21 October 2015 and expiring on 3 January 2016 (wholly concurrent with Count 2). Count 4 - Imprisonment for 5 years and 2 weeks commencing on 4 January 2016 and expiring on 17 January 2021 (of which 1 year 10 months and 13 days were concurrent with Count 2). 3The resulting head sentence was 8 years and 3 months to date from 18 October 2012. Her Honour made a recognizance release order pursuant to which the applicant would be eligible for release after serving 4 years 11 months in custody. This reflected a ratio of 60 percent of the head sentence which her Honour arrived at having regard to "special circumstances". 4The applicant seeks leave to appeal against those sentences on the following grounds: Ground 1 - The sentencing judge erred in the manner in which she took the schedule offences into account Ground 2 - The sentencing judge made a mistake of fact in finding that the applicant received personal gain beyond the professional fees earned. Ground 3 - The sentencing discretion miscarried as evidence now available demonstrates that the basis on which the discretion was exercised, namely that the applicant's medical conditions would be adequately treated in gaol and her forecast life expectancy, have been thwarted. Ground 4 - The sentencing judge erred in failing to have adequate regard to the principle of equal justice. Ground 5 - The sentence is otherwise manifestly excessive. Factual background 5The applicant was operating a tax avoidance scheme, which sent profits from Australian companies to Vanuatu, disguised as legitimate payment for services. The funds were then distributed back to shareholders in Australia directly and indirectly. The general operation of the tax avoidance scheme is set out in the sentencing judgment at [21] - [31] (R v Liles [2012] NSWSC 1249.) 6Counts 1 and 2 relate to the "Mascall" conspiracy set out in more detail at [34] - [43] of the judgment on sentence. The applicant established the scheme in Vanuatu with Paul and Leslie Mascall in 1997. The Mascalls owned and operated a company which was the majority shareholder of the Australian company, Air Solutions International Pty Ltd. They along with three other Air Solutions directors were co-conspirators. Between June 1997 and April 2003 over $689,000 was sent by Air Solutions to Zax International Corporation, the Vanuatu company established for the scheme. Between June 2000 and May 2003 approximately $630,000 was distributed from Zax to Air Solutions shareholders' accounts. 7Paul Mascall and the applicant prepared Air Solutions' accounts and tax returns for the years ending June 1998 to June 2003, which treated the payments made to Zax as legitimate business expenses reducing the company's taxable income. The applicant prepared the personal tax returns for the Mascalls for each year during the charged period, except 1999 and prepared one of the other director's returns in 2000. The tax liabilities avoided by the scheme totalled $884,793. 8Counts 3 and 4 relate to the "Sakovits" conspiracy, set out in detail at [44] - [56] of the judgment on sentence. Jane and Ron Sakovits were the directors and shareholders of Inform Promotions Pty Ltd, the trustee of the discretionary trust of which they and their children were beneficiaries. In 2001 International Promotions Inc was incorporated in Vanuatu. Other subsidiary entities were established in Vanuatu with the assistance of the applicant for the purpose of carrying out the scheme, one of which was the International Prestige Promotions Trust. Between May 2001 and June 2006 Inform Promotions Pty Ltd paid $1,432,850 to International Prestige Promotions. Between August 2001 and July 2006 International Prestige Promotions transferred approximately $790,000 to bank accounts in Australia and approximately $141,600 cash was withdrawn from ATMs in Australia. 9The income tax returns and accounts for the family trust and Inform Promotions included false claims for deductible expenses. The applicant prepared loan documents and gave advice facilitating the scheme. She began providing Vanuatu bank account operation services through a Vanuatu company beneficially owned by the applicant and her husband after a falling out with the person who had previously provided this service. She provided written confirmation that the business they were conducting was not for tax avoidance purposes, and prepared the personal income tax returns for Jane Sakovits for the year ending June 2001 to June 2005 and Ron Sakovits for the years ending June 2005 and June 2006. The tax liabilities avoided by the scheme totalled $1,141,243. 10Each conspiracy was subject to two charges because of the introduction of a new statutory regime on 24 May 2001. The maximum penalty under s86(1) of the Crimes Act 1914 (Cth) was 20 years. The maximum penalty under the new regime, s135.4(3) of the Criminal Code 1995 (Cth) was 10 years. The sentencing judge stated that the maximum penalty she would have regard to in respect of each conspiracy was 10 years, having regard to R v Ronen [2006] NSWCCA 123; 161 A Crim R 300 per Spigelman CJ at [76] and R v Boughen; R v Cameron [2012] NSWCCA 17. 11Two further offences relating to a third conspiracy, the "Boughen and Cameron" conspiracy were taken into account on a s16BA schedule: (i)Conspiracy to defraud the Commonwealth with Wayne Francis Cameron, Michael Boughen and divers others, contrary to s29D and 86(1) of the Crimes Act 1914 (Cth) which was to be taken into account on Count 1. (ii)Conspiracy to dishonestly cause a loss to the Commonwealth with Wayne Francis Cameron, Michael Boughen and divers others, contrary to s135.4(3) of the Criminal Code 1995 (Cth), which was to be taken into account on Count 2. 12The details of the Boughen and Cameron conspiracy are set out in the judgment on sentence at [57] - [66]. Michael Boughen and his wife were directors of Concept Television Productions Pty Ltd. Wayne Cameron became a director in 1985 and the applicant was a director from 1993 to 1998. She prepared tax returns and accounts knowing that false claims were made for deductible expenses. The applicant advised as to the establishment and operation of entities, accounts and structures used in the scheme between 1 July 1997 and 31 July 2004 during which $2,080,421 was transferred by Concept Television to Universal Entertainment Corporation Ltd in Vanuatu. $2,264,622 was transferred out by Universal which was ultimately received by Boughen and Cameron. 13The applicant prepared Concept Television's accounts and tax returns and Boughen and Cameron's personal tax return claiming false expenses and failing to disclose payments received. The tax liabilities avoided by the scheme totalled $1,755,613. Sentence Proceedings 14The applicant did not give evidence in the sentence proceedings. The sentencing judge noted that this made it difficult to accept many of the submissions advanced on her behalf. The sentencing judge did have available a lengthy statement made by the applicant to the Federal Police of 30 May 2012 in which she set out her version of what had occurred. 15The applicant's professional history was relevant not only to her subjective case, but to the objective seriousness of the offending. She had commenced working as an accountant in 1979. She formed an association with the Vanuatu firm, Moores Rowland International, in the late 1980s and purchased a 30 percent share of that partnership. From 1994 until 1996 she was the President of the National Institute of Accountants and between 1993 and 1998 she had represented the Institute on the fringe benefit tax subcommittee of the National Tax Liaison Group, the peak consultative forum between the ATO and the tax profession. Her career suffered a setback in late 1998/9 when she was made bankrupt. In 2001 after being discharged from bankruptcy, she became a partner in an Australian firm in which she owned a 50 percent share. In 2002 she formed her own firm, Phoenix Accounting Group (Aus) Pty Ltd, of which she was a director. 16The conclusion arrived at by the sentencing judge was that the applicant was "a well experienced senior practising accountant [who] was always very well aware of the illegality of her actions". In her statement the applicant admitted that in 2006 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 assertion. Even in 2007 she prepared financial statements and tax returns which reflected agency fees which had never been paid in order to reduce the taxable income of her clients. 17In relation to the seriousness of the offending the sentencing judge had regard to its consequences. Her Honour noted the considerable actual losses suffered by the revenue as well as the intangible losses caused to the Australian taxation system. Her Honour said: "82 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. 83 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." 18Her Honour concluded that no sentence, other than a sentence of imprisonment, would be appropriate for the offending. In assessing the length of sentence her Honour had regard to the matters identified in s16A(2) of the Crimes Act, including the applicant's personal circumstances. 19Her Honour reviewed the applicant's personal circumstances. She was born in 1947 and was aged 65 at the time of sentence. Her 71 year old husband was unwell with multiple medical problems. The applicant was his principal carer. At the time of sentence she was at liberty on bail. 20Her Honour referred to a report of Dr Obeid, a consultant physician and geriatrician. This report indicated that the applicant was suffering from a number of serious chronic and ongoing medical problems for which she was being treated. They included hypertension, non-insulin dependent diabetes, hypercholesteroleamia, possible ischaemic heart disease, left ventricular hypertrophy, hepatitis, presumed irritable bowel syndrome, depression, and benign skin lesions. She had a family history of heart disease and cancer and had herself been treated for ovarian carcinoma some 25 years before sentence. 21Dr Obeid assessed the applicant as stressed, emotional and suffering from severe depression. When he examined her in June 2012 he opined that this had been brought on by the stress of her current legal situation. He thought that she was facing multiple cardio-vascular risk factors, was suffering symptoms of recurring chest pain and undiagnosed gastrointestinal symptoms. He gave her a life expectancy at that time of 7 years (compared with the normal life expectancy for a woman of that age of 21 years). He thought that her symptoms of panic, depression and anxiety would worsen with a custodial sentence. 22Her Honour found that there was no evidence as to what steps had been taken to arrange for appropriate care for the applicant while in prison. She noted that it was not suggested that the applicant's medical needs could not be met if she received a custodial sentence. 23The applicant was seen by a forensic psychiatrist, Dr Stephen Allnutt. The history which he took was somewhat different to that of Dr Obeid. On that history the applicant 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. He took a history that, apart from what the applicant charged for her accounting services, she received no benefit from her offending. He concluded that the applicant was showing symptoms consistent with a depressive disorder. 24Her Honour set out her conclusions as follows: "102 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." 25When considering general deterrence her Honour had regard to what the High Court said in Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 where the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said: "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, the sentences imposed had to have both a deterrent and a punitive effect, and those effects had to be reflected in the head sentences and the recognizance release orders that were made." 26Her Honour found that the scheme could not have operated as it did without the applicant's ongoing involvement. Her Honour noted that the applicant not only filed false tax returns, she provided advice, created documents and provided other services which facilitated the scheme's ongoing operation. Her Honour found that throughout she was active in devising steps to be taken to conceal the scheme from Australian and Vanuatu authorities. Her Honour specifically rejected that part of the submissions put forward on behalf of the applicant to the effect that she was "trapped" or that she felt "obliged to remain involved". Her Honour concluded that the sentences should include a strong element of general deterrence. 27Her Honour had regard to the sentences imposed on other offenders involved in the scheme, i.e. Messrs Hili and Jones, Mr Zerafa and Mr Agius. Having examined the roles of these persons, her Honour concluded that the offending of the applicant was closer to that of Mr Agius than those other persons. 28Her Honour was asked to take into account the applicant's plea of guilty and the assistance which she had provided to the authorities and was likely to provide in the future. Having pleaded guilty in February of 2012, the applicant provided the Federal Police with a lengthy statement. It was anticipated that she would be called to give evidence in relation to the prosecution of Jane and Ronald Sakovits. The Crown submitted that the applicant's combined discount should be less than 40 percent, given the nature of her assistance and because the pleas had not been entered at the earliest opportunity. The applicant pressed for a combined discount of 40 to 50 percent. 29The sentencing judge noted that the pleas were entered in 2012 after committal and also after negotiation over the charges which resulted in one of the charges being withdrawn and the Boughen and Cameron conspiracy being dealt with on a schedule. It was only then that the pleas were entered and a statement provided. Her Honour found that while it was apparent that the applicant was always aware of the nature of her offending, the assistance was not given immediately but at a comparatively late stage. 30Her Honour's conclusion was: "135 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." 31Her Honour decided that the sentences would be partially cumulative with a total head sentence of 8 years and 3 months. The applicant had submitted that a finding of special circumstances should be made and that the ratio between the head sentence and the non-parole period should be 50 percent. Her Honour ultimately fixed a non-parole period which was 60 percent of the head sentence. Her Honour set her reasoning out as follows: "151 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." Ground 1 - The sentencing judge erred in the manner in which she took the scheduled offences into account 32In order to understand this ground, it is necessary to set out the paragraphs of her Honour's judgment which were the subject of challenge: "136 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. ... 137 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. ..." 33The applicant submitted that the sentencing judge erred by taking the schedule offences into account in respect of all four charged offences. What should have happened, in the applicant's submission, was that the schedule offences were only to be taken into account in respect of Count 1 (schedule offence 1) and Count 2 (schedule offence 2) respectively. 34The applicant submitted that the schedule offences were thus erroneously taken into account in respect of all four offences and the likely result was to impermissibly increase the overall sentence. The applicant submitted that the result was that each schedule offence was taken into account at least twice, thereby occasioning double counting and impermissibly increasing the overall sentence. The applicant submitted that as a result, her Honour's sentencing discretion had patently miscarried. 35The Crown conceded error in this regard. Moreover, it could not be said that this was an error which in reality would have had little or no effect on the exercise of the sentencing judge's discretion. 36In those circumstances, error having been established it was necessary for this Court to independently re-exercise the sentencing discretion. In doing so, the Court was required to take into account events which have occurred since the applicant was sentenced (Douar v The Queen [2005] NSWCCA 455; 159 A Crim R 154 at [124] and Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284 at [19]). 37In Baxter Spigelman CJ said: "19 ... Section 6(3) is directed to ensuring that the Court of Criminal Appeal does not proceed in that manner, but re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides." 38More recently the High Court in Kentwell v The Queen [2014] HCA 37 has provided further guidance as follows: "42 Spigelman CJ's analysis in Baxter should be accepted. When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion. 43 After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal." 39Although it was necessary for this Court to re-exercise the sentencing discretion, I should say something about the other Grounds of Appeal. Ground 2 - The sentencing judge made a mistake of fact in finding that the applicant received personal gain beyond the professional fees earned. 40The applicant submitted that there was no evidence to substantiate that finding of fact. 41That Ground of Appeal has also been made out. While there was evidence that the applicant received professional fees (perhaps substantial professional fees) from her offending, there was no evidence that she received any financial benefit beyond those professional emoluments. Accordingly, when re-exercising the sentencing discretion, this Court could not rely upon that erroneous finding of fact. Ground 3 - The sentencing discretion miscarried as evidence now available demonstrates that the bases upon which the discretion was exercised namely that the applicant's medical conditions would be adequately treated in gaol and her forecast life expectancy have been thwarted. 42This Ground of appeal is now moot since a substantial quantity of medical material is before the Court which came into existence after the applicant was sentenced. In accordance with Douar v The Queen, Baxter v The Queen and Kentwell v The Queen this Court took that up to date medical material into account when re-exercising the sentencing discretion. Ground 4 - The sentencing judge erred in failing to have adequate regard to the principle of equal justice. Ground 5 - The sentence is otherwise manifestly excessive. 43In support of Ground 4, the applicant submitted that her Honour should have had regard to the sentences imposed on other offenders who were involved in similar offending arising out of the similar transference of funds to and from Vanuatu. The applicant submitted that she was not relying upon parity principles, but on the general principle of equal justice in that these sentences established an appropriate range for offences of this kind. 44She submitted that when one had regard to the 37 percent discount given by the sentencing judge in her favour it was obvious that the starting point for her sentence was significantly higher than that imposed on any other similar offender, in particular Mr Agius. She submitted that Mr Agius had been acknowledged by the Crown in the sentence proceedings to have been guilty of more serious offending, but had received a significantly lower sentence. The applicant submitted that when one allowed for the 37 percent discount, the starting point for her sentence was 13 years and 1 month whereas that for Mr Agius was 8 years and 11 months. 45There are difficulties with the applicant's approach. Implicit in it is the assumption that in a multi offence sentencing exercise, the correct approach is to apply a discount to the accumulated term. This is not so. The correct approach is to apply discounts to individual sentences (which her Honour clearly did) and then accumulate in such a way that the effect of the discount is not eroded. 46There is, however, a problem with the result of the accumulation after the individual sentences were discounted. In the sentence proceedings, the Crown in its written and oral submissions accepted that the criminality of the applicant fell below that of Mr Agius. In oral submissions (T.27.7) the Crown said: "NEIL: Your Honour just dealing with the closing parts of my learned friend's submission, we have submitted in the written outline of submissions that this is a case that falls below the criminality in Agius ..." 47While her Honour was not bound to accept that concession by the Crown there is nothing in her Honour's judgment to indicate that she rejected it and if she did reject it, she did not explain why. On the appeal the Crown accepted that it was bound by the concession but submitted that while it accepted that the applicant's criminality was below that of Mr Agius, it was only just below. 48It follows that the accumulation of the individual discounted sentences did not give proper effect to the discount found to be appropriate by her Honour. When one has regard to the discount, the applicant has received a heavier sentence than Mr Agius for criminality which was acknowledged to be less. In that sense Ground 4 has been made out. 49For the above reasons, Ground of Appeal 5 is now irrelevant and need not be considered further. Re-sentence 50Having re-read the evidence I agree with the findings as to objective seriousness of the offending made by her Honour. I also accept the submission of the Crown that while the criminality in the applicant's offending was below that of Mr Agius, it was not significantly so. This is because although the applicant did not devise the scheme, she not only operated it from the Australian end and sought to enable clients to deceive the revenue authorities, but also in the later stages of the conspiracies played a significant role at the Vanuatu end. Nevertheless, as a result of the Crown's concession, the accumulated term of her sentence should be below that of Mr Agius. 51A matter of significant controversy between the parties was the state of the applicant's health, both following sentence and at the time when the appeal was heard. Based on the conclave of doctors which occurred on 8 August 2014 (Dr John Obeid on behalf of the applicant and Professor Rosenfeld, Consultant Geriatrician and Physician and Dr Simm, Staff Specialist in Geriatric Medicine on behalf of the Crown) it is clear that following her imprisonment the applicant experienced substantial health difficulties. That situation, however, appeared to have improved considerably by the time of the conclave. By that time, the doctors agreed that although the applicant suffered from a range of chronic and sub-acute medical symptoms and conditions, she was not acutely medically unwell. These conditions were not active. While she remained depressed, that condition had also improved. She was at the time of the appeal living in an Independent Living Unit (ILU) where she had her own room with access to toilet and washing facilities. While there had in the past been difficulties in her obtaining medical aids while in prison, those difficulties at the time of the appeal had been largely overcome. 52Although Dr Obeid recommended that she should be receiving regular psychiatric treatment by a psychiatrist, she had been seeing a psychiatric nurse and was regularly attending a psychologist. While access to laundry facilities and medication was not as good as it would have been had she not been in the prison system, the most recent report from Dr Sim was to the effect that the provision of these facilities, while not ideal, was adequate. 53There was agreement between the doctors that the applicant's life expectancy had increased during her imprisonment. At the time of sentence, Dr Obeid estimated her life expectancy at 7 years. By the date of the appeal he assessed her life expectancy at 8 years and the assessment by Professor Rosenfeld was 10½ years. 54Many of the difficulties identified by Dr Obeid and by the applicant in her affidavit were sources of irritation and in some respects demeaning but were a usual concomitant of institutional living, particularly where that institution was a prison. One could well understand the existence of the applicant's psychiatric difficulties with depression when one had regard to her position as a highly qualified accountant of senior years who had not been to prison before. In that context, the apparent improvement in her depressive condition is of significance. Nevertheless, it is evident that in the past, particularly in the months following her admission to prison, her circumstances must have been very difficult and certainly more difficult than for someone who was younger and in better health. These matters have been taken into account on re-sentencing. 55As was made clear in Kentwell v The Queen the re-exercise of the sentence discretion by the Court does not simply involve an adoption of findings already made by the sentencing judge. It involves a genuine re-exercise of the discretion which extends to all matters relevant to sentencing. In this case, an important consideration is the extent of the discount of 37 percent allowed by her Honour for facilitating the course of justice by a plea of guilty and for past and future assistance. 56At the time of the appeal, there was no need for future assistance since pleas of guilty had been entered by all of the applicant's clients. Other than making a statement when she pleaded guilty, there was little evidence of past assistance. Moreover, the plea of guilty was not an early plea but one entered after considerable negotiation and the achievement of a significant benefit for the applicant in that one charge was withdrawn and two were dealt with by way of a schedule. In the circumstances, the combined discount which I assess for the applicant's assistance and facilitation of the course of justice is 30 percent. 57Otherwise I adopt the findings of the sentencing judge as to the need for general deterrence, the need to ensure that the person was adequately punished for the offence and the other matters set out in s16A(2) of the Crimes Act 1914 (Cth). 58Taking those matters into account, and taking into account the matters on the s16BA schedule in respect of Counts 1 and 2, the sentences which I would impose are as follows:- (2)In respect of Count 1 imprisonment for 1 year and 7 months commencing 18 October 2012 and expiring 17 May 2014. (3)In respect of Count 2 imprisonment for 1 year and 7 months commencing 18 May 2014 and expiring 17 November 2015. (4)In respect of Count 3 imprisonment for 4 months commencing 18 January 2015 and expiring 17 May 2015. (5)In respect of Count 4 imprisonment for 3 years and 2 months commencing 18 May 2015 and expiring 17 July 2018. The resulting head sentence is imprisonment for 5 years and 9 months commencing 18 October 2012. 59I would impose a single recognizance release order without surety for all counts of 3 years and 6 months commencing 18 October 2012 and expiring 17 April 2016. 60The orders which I propose are: (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. 61R A HULME J: I agree with Hoeben CJ at CL. 62DAVIES J: I agree with Hoeben CJ at CL.