Director of Public Prosecutions v Liu

Judgment Summary
Supreme Court
Australian Capital Territory
Court of Appeal

Thursday, 1 August 2024

DPP v Liu [2024] ACTCA 23

McCallum CJ, Loukas-Karlsson and Taylor JJ

The Court of Appeal has allowed a prosecution appeal against sentence.

The offender was a traditional Chinese massage therapist who pleaded guilty to 3 counts of sexual intercourse without consent and 5 counts of act of indecency against clients.

The sentencing judge, Mossop J, was not satisfied beyond reasonable doubt that the

offending was sexually motivated. Mossop J was also not satisfied of the offender’s case

on the balance of probabilities that the offender was financially motivated.

Justice Mossop sentenced the offender to a total sentence of 3 years, 5 months and 22

days’ imprisonment with the sentence to be suspended after 16 months’ imprisonment.

On appeal, the prosecution alleged specific error in relation to Mossop J’s finding on

motivation. The prosecution also argued that the sentence was manifestly inadequate.

Chief Justice McCallum and Taylor J held that it was not open to Mossop J not to be satisfied beyond reasonable doubt that the offending was sexually motivated. In this case,

the evidence that the offending was sexually motivated was “overwhelming” and the

offender’s conduct admitted of “no other inference or interpretation”. Specific error was

therefore established.

Chief Justice McCallum and Taylor J were also satisfied that the prosecution had discharged its onus to negate any reason why the residual discretion to decline to interfere with the sentence should be exercised.

Justice Loukas-Karlsson dissented. Her Honour found no error on the part of the sentencing judge.

The appeal was allowed, and the offender was resentenced to a total sentence of 5 years,

5 months and 20 days’ imprisonment, with a new non-parole period of 3 years commencing

on 16 July 2023 and ending on 15 July 2026.

This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the

Court’s judgment.

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CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) appealed to the Court of Criminal Appeal of New South Wales against the sentence imposed on Mr Liu, who had pleaded guilty to a charge of dangerous driving occasioning death. The DPP argued that the sentence of 18 months imprisonment, to be served by way of an intensive correction order, was manifestly inadequate.

The central legal issue before the Court was whether the sentencing judge had erred in principle by imposing an intensive correction order, rather than a full-time custodial sentence, for the offence of dangerous driving occasioning death, and whether the overall leniency of the sentence rendered it manifestly inadequate. The Court was required to consider the sentencing principles applicable to this offence, including the gravity of the conduct, the impact on the victim's family, and the need for general and specific deterrence.

The Court of Criminal Appeal found that the sentencing judge had failed to give sufficient weight to the objective seriousness of the offence and the need for general deterrence. While acknowledging the mitigating factors presented by Mr Liu, the Court determined that an intensive correction order was not an appropriate sentence in the circumstances, particularly given the fatal consequences of the dangerous driving. The Court applied the principles of sentencing for dangerous driving occasioning death, emphasizing that such offences warrant significant punishment to reflect the gravity of the loss of life.

Consequently, the Court of Criminal Appeal upheld the DPP's appeal, quashed the original sentence, and resentenced Mr Liu to two years and six months imprisonment, to be served by way of a full-time custodial sentence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established