Liu v Milner

Case [2019] ACTSC 115

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Liu v Milner

Citation:

[2019] ACTSC 115

Hearing Dates:

16, 26 April 2019

DecisionDate:

8 May 2019

Before:

McWilliam AsJ

Decision:

See [51]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – appeal against sentence – whether sentence manifestly excessive

Legislation Cited:

Crimes Act 1900 (ACT) s 114C

Crimes (Sentencing) Act 2005 (ACT) ss 7,12, 13, 33

Magistrates Court Act 1930 (ACT) s 216

Cases Cited:

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58

Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
GAS v The Queen; SJK v The Queen [2004] HCA 22;217 CLR 198
House v The King (1936) 55 CLR 499
Keen v Tither [2010] ACTSC 130
O’Brien v The Queen [2015] ACTCA 47
R v De Simoni (1981) 147 CLR 383

R v Forrest (No 2) [2017] ACTSC 83

Parties:

Borung Liu (Appellant)

Deborah Giuliana Milner (Respondent)

Representation:

Counsel

Self-represented (Appellant)

M Fernandez (Respondent)

Solicitors

Self-represented (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 46 of 2018

Decision under appeal: 

Court:  Magistrates Court of the ACT

Before:  Special Magistrate Cush

Date of Decision:         9 August 2018

Case Title:  Milner v Liu

Court File Number:       CC No 6781/18

McWilliam AsJ:

  1. This appeal by Mr Borung Liu, the appellant, relates to three charges in the Magistrates Court of the Australian Capital Territory (Magistrates Court) of ‘dealing in property which is the proceeds of crime’ in contravention of s 114C of the Crimes Act 1900 (ACT) (the Crimes Act).

  1. The three charges comprised a number of specific offences, but all related to similar conduct concerning 43 health insurance claims made at three medical centres, the Garema Place Surgery, the Florey Medical Centre and the Jamison Medical and Skin Cancer Clinic over the period March 2013 to November 2014.

  1. The claims were made against insurance policies issued by Allianz Global Assistance (AGA), a provider of overseas student healthcare insurance, to university students.  Each of the 43 claims made was fraudulent, as the student in whose name the policy was issued had not visited a doctor at the relevant medical centre on the purported date the service was provided.  Importantly for this appeal, the appellant was not ultimately charged with the fraud, only with receiving the proceeds of the fraudulent claims.

  1. The charges, as ultimately presented following negotiations between the parties in the court below that led to their grouping, were as follows:

(a)    CC18/6781 – relating to 21 fraudulent transactions in respect of GP consultations allegedly provided at Garema Place Surgery, valued at $5,205.75;

(b)    CC18/6782 – relating to 18 fraudulent transactions in respect of GP consultations allegedly provided at Florey Medical Centre, valued at $5,008.70; and

(c)    CC18/6783 – relating to four fraudulent transactions in respect of GP consultations allegedly provided at Jamison Medical…

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Liu v Milner [2019] ACTSC 115
Case
[2019] ACTSC 115
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CaseChat Overview and Summary

The case of Liu v Milner involved an appeal against sentence by the defendant, Liu, who was convicted of various offences, including fraud and obtaining financial advantage by deception. The appeal was heard by the Court of Appeal in Australia, which was tasked with determining whether the sentence imposed by the lower court was manifestly excessive. The appellant argued that the sentence was disproportionate to the nature and circumstances of the offence, and that it failed to take into account relevant mitigating factors.

The legal issues before the Court of Appeal centred on the principles of sentencing in criminal cases, specifically whether the sentence was manifestly excessive and therefore a matter for the appellate court to intervene. The Court had to consider the nature and gravity of the offences, the appellant's criminal history, the impact of the crimes on the victims, and the principles of proportionality and individualisation in sentencing. Additionally, the Court examined whether the lower court had failed to adequately consider mitigating factors presented by the appellant's legal team.

In its reasoning, the Court of Appeal reviewed the sentence imposed by the lower court, weighing the severity of the crimes against the appellant's background and the mitigating factors presented. The Court found that the sentence was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offences committed. The Court held that the lower court had appropriately considered the relevant factors in arriving at the sentence, and that the appellant had not demonstrated that the sentence was disproportionate or an abuse of the Court's discretion. Consequently, the appeal was dismissed.

The final orders of the Court of Appeal upheld the sentence imposed by the lower court, confirming that the sentence was not manifestly excessive and dismissing the appeal. The Court did not alter the sentence or impose any new conditions, thereby affirming the original judgment and punishment.

Orders

Orders of the court

See [51]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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