Director of Public Prosecutions v Liu

[2024] ACTCA 23

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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