1 On 18 March 2013 the Court made orders allowing the appeal against sentence on ground 3. In lieu of the sentence first imposed, the appellant was sentenced to be imprisoned for a period of three (3) years, all but 476 days of that sentence to be suspended for a period of three years. The Court declared 476 days as reckoned as having been already served. It was indicated that the Court would later provide reasons for the orders. These are those reasons.

2 The appellant pleaded guilty on 28 November 2011 to one count of attempting to pervert the course of justice.[1] She was sentenced on 8 December 2011 to four (4) years' imprisonment with a non-parole period of two (2) years and three (3) months. The sentencing judge declared that, but for the plea of guilty, he would have sentenced her to a term of imprisonment for five (5) years with a non-parole period of three (3) years and six (6) months.

3 On 23 November 2012 Tate JA granted the appellant leave to appeal against her sentence confined to a single ground (ground 3), namely:

The sentencing judge's discretion ought to be re-exercised by this Court by reason of:

(a) evidence of events occurring subsequent to sentence but which are relevant to an appreciation of the true significance of facts which were in existence at the time of sentence;

(b) fresh evidence not before the Court below; and

(c) its being necessary to avoid a miscarriage of justice.

Leave was refused on two other grounds (grounds 1 and 2).

4 The appellant filed a notice of election to renew her application for leave to appeal on the two grounds upon which Tate JA refused to grant leave, they being:

Ground 1

The sentencing judge's discretion miscarried by reason of the judge's having declined to have regard, in imposing sentence upon the applicant, to:

(a) s 43 of the Crimes Act 1914 (Cth); and

(b) s 325 of the Crimes Act 1958(Vic).

Ground 2

In all the circumstances:

(a) the head sentence imposed; and

(b) the non-parole period fixed

are manifestly excessive.

5 As we have said, we would uphold ground 3; but we too would refuse the application for leave to appeal with respect to grounds 1 and 2.

6 The appellant was involved, with her husband Bassillios (Byron) Pantazis, in assisting Tony Mokbel to flee Australia in March 2006 while he was on trial for drug trafficking. Her involvement included arranging for her sister to purchase mobile telephones to be used by the appellant's husband to arrange for a yacht to be procured to convey Mokbel from Fremantle to Greece. The appellant and her sister travelled to Sydney to enable her sister to purchase the yacht in the latter's name. And she arranged for her sister to join in the transport of Mokbel across the country by road to Fremantle.

7 In his reasons for sentence, the sentencing judge said that, while he was not prepared to find that the appellant did not know that by these activities she was assisting Mokbel in his flight from justice, he could not 'conclude to the requisite standard that you did [know].' Accordingly, his Honour did not, in determining upon the appropriate sentence, take these actions into account.

8 The judge was, however, satisfied beyond reasonable doubt not only that the appellant made arrangements for an apartment in Greece which was in fact used by Mokbel and his then domestic partner until his arrest, but knew that that was what those arrangements were intended to achieve. She was likewise fully informed when she received and disbursed money between Mokbel and his criminal associates in Victoria through a bank account in her name in Greece. The appellant also delivered money and clothing to one of Mokbel's associates, as well as personally conveying a suitcase to Mokbel in June 2007.

9 The sentencing judge had regard to a report from Mr Patrick Newton, Forensic and Clinical Psychologist. Mr Newton's original assessment was that the appellant's symptoms were 'sufficiently severe to warrant the diagnosis of an "Adjustment Disorder with Depressed Mood" but would not meet the criteria for "Major Depressive Disorder" or other primary mood disorder'.

10 His Honour accepted that the appellant was suffering from two relevant psychological conditions: one being depressive symptoms as a result of facing the charge of attempting to pervert the course of justice, and the other being a 'dependent personality disorder'.[2] He further accepted that imprisonment would be burdensome for the appellant and would involved a significant risk of deterioration in her depression. And while his Honour observed that imprisonment is a depressing prospect for anyone, he took into account that, as a consequence of the appellant's mental condition and personality, together with her age[3] and the absence of any prior convictions, imprisonment would be more burdensome for her.[4]

11 The appellant has sworn an affidavit deposing that in March 2012, after she was sentenced and some days before her husband's appeal against his sentence was due to be heard, she learned that he had been diagnosed with cancer of the lower oesophagus. She has been told that the condition is inoperable and terminal. Since learning this news her own health has 'detonated' (sic.), she now being 'consumed by worry, anxiety and a feeling of helplessness'. Her sleep is troubled and her time in custody is 'near impossible to tolerate.' She feels 'broken'.

12 A further report from Mr Newton, dated 14 March 2013, was received on the hearing of the appeal. Of importance, Mr Newton found that the appellant's condition 'has deteriorated significantly' since he last assessed her; and her depressive symptoms have progressed to the point that she is now manifesting 'a fully-fledged depressive disorder'. She has 'responded with substantial deterioration to the adverse life events that have overtaken her and especially to the diagnosis of her husband with terminal cancer'. The intensity of the appellant's reaction to her husband's diagnosis, 'is more intense as a result of her dependence upon him'. Indeed, the symptoms have 'grown considerably more intense', to the extent that the appellant now meets the criteria for 'Major Depressive Disorder'.

13 Thus it might be appreciated that at the time she was sentenced the appellant was suffering from depressive symptoms and a 'dependent personality disorder', which the sentencing judge paid due regard to. But it may also be appreciated that, following sentence, and particularly upon news of her husband's inoperable cancer, the appellant's symptoms have considerably worsened to the extent that the she now meets the criteria for 'Major Depressive Disorder'. Hence the true significance of the appellant's depressive symptoms and dependant personality disorder have only become apparent following sentence.

14 The principles to be applied upon a ground relying upon fresh evidence of the kind relied upon under cover of ground 3 were conveniently set out by Redlich JA (with whom Maxwell P and Neave JA agreed) in Nguyen:[5]

It is common ground that this Court may, in limited circumstances - sometimes described as 'rare and exceptional' - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:

(i) the new evidence must relate to events which have occurred since the sentence was imposed;

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;

(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;

(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and

(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.

15 As we have observed, the fresh evidence demonstrates the true significance of facts in existence at the time that the appellant was sentenced. Thus the question for the Court is whether a different sentence should be substituted so as to avoid a miscarriage of justice. In our opinion it should.

16 The appellant is now aged 61 years, and was aged 56 when the offence was committed, having been born in 1951 in Rhodes, Greece.

17 Various testimonials before the Court spoke highly of the appellant as an employee, as a parent, and as a person. She has no prior convictions. Until the present offending the appellant was a person of good character.

18 The appellant was one of four children. Her early years in Greece were hard. She received little formal education and grew up in a strict environment. In 1964 she came to Australia with her family. At the age of 16, in 1968, she entered into an arranged marriage. The marriage was a very unhappy one. There were three children of that marriage. The appellant married her present husband in 1982. She had three children with him.

19 It seems that the appellant had worked hard throughout her life and had confronted many difficulties. In particular, from the time of her husband's arrest until the time she was imprisoned, she worked at two jobs in an endeavour to meet mortgage payments on her home in Reservoir.

20 The sentencing judge concluded that the guilty plea was a significant factor to be taken into account in mitigation. It facilitated the course of justice and saved the community the time and cost of a trial (although the extent of the mitigation was reduced by the lateness of the plea). However, his Honour was 'unable to conclude that it is indicative of remorse or acceptance of responsibility'.

21 In the appellant's favour, the sentencing judge accepted that save for the present offending, the appellant otherwise was a person of good character. He also accepted that delay was 'a significant mitigating factor'. His Honour also accepted that there are good prospects for the appellant's rehabilitation and that specific deterrence is not a significant factor in her case.

22 This was a serious example of a serious offence. Ordinarily, general deterrence will be of great importance, as will denunciation and just punishment. In this case, however, the need for specific deterrence is somewhat reduced, and the prospects of rehabilitation appear to be good.

23 Moreover, there is a variety of strong mitigating factors, which include previous good character, delay and the plea of guilty. Additionally, it may now clearly be seen that the appellant suffers from a Major Depressive Disorder, which will doubtless make her time in custody more burdensome than for someone unafflicted by that condition.

24 Given that the sentencing discretion has been reopened, and it is now for this Court to sentence the appellant; and synthesising, as best we are able, the various factors relevant to sentence; we are of the opinion that the appellant should be sentenced to be imprisoned for three years, to be released after serving that part of the sentence already served.

Election - Ground 1, failure to have regard to less punitive alternatives

26 The appellant's husband, Bassillios Pantazis, and co-offenders George Elias and Chafic Issa, also pleaded guilty to the offence of attempting to pervert the course of justice at common law. On appeal to this Court, each sought to rely on the matters raised by ground 1 of the present application. Their appeals were dismissed.[6] The High Court, however, granted them special leave to appeal on 15 March 2013.

27 So far as the present appellant is concerned, ground 1 was initially abandoned and then reinstated given that an application by her co-offenders had, at that stage, been made to the High Court for special leave. That leave has, as we have said, now been granted. The issue sought to be agitated by this ground will therefore in due course be determined by the High Court.

28 In the meantime, however, we are bound by the previous decision of this Court unless, exceptionally, we are of the opinion that it is plainly wrong. It is enough to observe, we think, that given that it was a considered decision on a five member bench of this Court, on the very same point sought to be raised under cover of the first ground, as presently advised we would not be prepared to say that it is attended by any doubt.

29 In these circumstances, this Court must refuse leave to appeal on this ground.

Election -Ground 2, manifestly excessive sentence

30 Since the sentencing discretion has been reopened by the third ground of appeal, it is strictly unnecessary to consider ground 2, which claims that the sentence is manifestly excessive.

31 But we add this. Had ground 2 been the only ground available to the appellant, in our opinion she would have had difficulty in establishing that the sentence - at the time at which it was passed - was other than proportionate. She was knowingly involved in attempting to pervert the course of justice in a notorious case in which the fugitive was involved in gross criminality. This was an extremely serious example of its kind. All other things being equal, in a case reflecting the criminality which was attendant in this case, a sentence of four years' imprisonment (where the maximum term is 25 years) generally could not be characterised as manifestly excessive.

33 For these reasons the Court made orders allowing the appeal against sentence on ground 3; in lieu, sentencing the appellant to be imprisoned for a period of three years, suspending all but 476 days of that sentence for a period of three years; declaring 476 days as reckoned as having been already served under the sentence; and refusing the application for leave to appeal against sentence on grounds 1 and 2.

34 Pursuant to s 6AAA of the Sentencing Act 1991, we declare that but for the plea of guilty we would have sentenced the appellant to be sentenced for four (4) years, and would have fixed a non-parole period of two (2) years.

[1] Attempting to pervert the course of justice is a crime at common law for which the penalty fixed by s 320 of the Crimes Act 1958 is 25 years' imprisonment.

[2] R v Foula Pantazis [2011] VSC 629, [25].

[3] At the time of sentence the appellant was 60 years old.

[4] R v Foula Pantazis [2011] VSC 629, [28].

[5] R v Nguyen [2006] VSCA 184, [36] (citations omitted). See also R v Babic [1998] 2 VR 79; R v Palmieri [1998] 1 VR 486; R v WEF [1998] 2 VR 385; R v Yaldiz [1998] 2 VR 376; R v Zehir [1998] VSCA 119; (1998) 104 A Crim R 109; R v Mitchell [2000] VSCA 54; (2000) 112 A Crim R 315; R v Spagnolo [2000] VSCA 126; (2000) 114 A Crim R 98; R v Ta [2002] VSCA 142; R v McLachlan [2004] VSCA 87; (2004) 8 VR 403; R v Ahmed [2005] VSCA 279; R v SH [2006] VSCA 83; Cardona v R [2011] VSCA 58; AWP v R [2012] VSCA 41.

[6] Pantazis & Ors v The Queen [2012] VSCA 160 (Warren CJ, Redlich, Hansen and Osborn JJA, and Curtain AJA).