Liu v The Queen; Lv v The Queen

[2017] NSWCCA 148

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Liu v R; Lv v R [2017] NSWCCA 148
Hearing dates:	2 June 2017
Date of orders:	17 June 2017
Decision date:	17 June 2017
Before:	Hoeben CJ at CL at [1] Garling J at [2] Bellew J at [184]
Decision:	(1)   Leave to appeal against sentence be granted to each applicant. (2)   The appeal of Dino Shihang Liu against conviction and sentence be dismissed. (3)   The appeal by Yaxuan Lv against sentence be dismissed.
Catchwords:	APPEAL – appeal against conviction – error in admitting evidence of admission EVIDENCE – admissions – criminal proceedings – official questioning APPEAL – appeal against conviction – error of law – whether substantial miscarriage of justice APPEAL – appeal against sentence – error of law – characterisation of victim as “vulnerable” – whether taking money an inherent aspect of robbery in company APPEAL – appeal against sentence – exercise of re-sentencing discretion
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Couloumbis v R [2012] NSWCCA 264 Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 House v The King [1936] HCA 40; (1936) 55 CLR 499 Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Lane v R [2017] NSWCCA 46 Owens v R [2017] NSWCCA 16 R v Couloumbis [2012] NSWCCA 264 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Henry [1999] 46 NSWLR 346 R v Horton (1998) 45 NSWLR 426 R v Murchie (1999) 108 A Crim R; [1999] NSWCCA 424 R v Naa [2009] NSWSC 851; (2003) 197 A Crim R 192 R v Sharp [2003] NSWSC 1117; (2003) 143 A Crim R 344 Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	Dino Shihang Liu (Applicant – 2014/296510) Yaxuan Lv (Applicant – 2014/296504) The Crown
Representation:	Counsel: G Scragg (Liu) M Ramage QC (Lv) E Balodis (Crown)   Solicitors: Jeffreys Lawyers (both Applicants) C Hyland – Solicitor for Public Prosecutions
File Number(s):	2014/296510 (Liu); 2014/296504 (Lv)
Publication restriction:	Not Applicable
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 9 September 2016 Before: Baly DCJ File Number(s): 2014/296510; 2014/296504

Judgment

1. HOEBEN CJ at CL: I agree with Garling J and the orders which he proposes.

2. GARLING J: From 14 June 2016 to 5 July 2016, Dino Shihang Liu (“Liu”), stood trial with his wife and co-offender, Yaxuan Lv (“Ms Lv”), in the District Court at Sydney on an Indictment containing two counts.

3. On 5 July 2016, Liu was found not guilty of the first count on the Indictment relating to an offence of detaining a person without consent to obtain a financial advantage whilst in company, but guilty of the second count on the Indictment.

4. That second count on the Indictment was that Liu and Lv, on 9 October 2014 at Homebush West whilst in the company of each other and Mr Zuwei Zhou (“Mr Zhou”), did rob Yumiao Yu (“the victim”) of certain property, namely, a mobile phone, photo identification, a WorkCover card and an ANZ bank card. This was an offence contrary to s 97(1) of the Crimes Act 1900 (NSW). Ms Lv was also found guilty of this second count, but not guilty on the first count.

5. On 9 September 2016, Baly DCJ (“the primary Judge”) imposed a sentence on Liu of imprisonment for 3 years to commence on 9 September 2016, expiring 8 September 2019. She fixed a non-parole period of 18 months, which would expire on 8 March 2018. She imposed a sentence on Ms Lv of imprisonment for 2 years and 6 months to commence on 9 September 2016 and expiring on 8 March 2019. A non-parole period of 15 months was fixed, which would expire on 8 December 2017.

Notices of Appeal

6. On 5 April 2017, Liu filed a Notice of Appeal against his conviction and sought leave to appeal against his sentence. Insofar as Liu appealed against his conviction, he did so on a single ground, namely:

'”Her Honour erred in admitting into evidence over objection an admission by Liu to Constable Paton that he threw away a mobile phone belonging to Yumiao Yu as: ‘I don’t like it any more’. ”

7. On 23 March 2017, Ms Lv filed a Notice of Appeal against sentence. She nominated nine grounds of appeal, some of which were the same or similar to the grounds of appeal against sentence raised by Liu.

8. It will be convenient to deal with the Liu’s appeal against conviction first, before moving on to Liu and Ms Lv’s application for leave to appeal against sentence.

Relevant Facts

9. On 8 October 2014, Mr Zhou (“Zhou”) and Liu made an arrangement for Mr Zhou to accompany Liu on the following day to “kidnap” the victim.

10. On the morning of 9 October 2014, the victim was walking towards Flemington train station in order to travel to his place of work as a gyprocker in Frenchs Forest. It was the victim’s usual practice to walk from his home to Flemington train station. He would then catch the train to Parramatta train station, where a colleague would pick him up and drive him to the work site.

11. At 5:10am on that day, as the victim was walking towards Flemington train station, he was approached by Liu, who the victim knew from his job in Frenchs Forest. Liu offered to drive the victim to work. Liu led the victim to a small red hatchback car (“the red car), and the victim was placed in the middle of the backseat between Liu and Zhou. Ms Lv was driving, and her face was covered by a surgical mask so that the victim could only see her eyes. She wore a black hat.

12. Ms Lv drove the red car a short distance to a park, Melville Reserve, near the victim’s home. The victim was threatened by Ms Lv, who demanded that he give them $30,000 in Australian currency. The demand was made in a loud and angry voice. When the victim denied having that sort of money, he was punched by Zhou.

13. Ms Lv then demanded that if he did not have money, he should ask his family or friends for it. The victim acquiesced to this demand because Zhou’s arm was still around his shoulder, and because Zhou said to the victim, “If you say again you don’t have I will hit you again”. Liu suggested that he could call his “cousin brother” who had money.

14. Ms Lv then said to the victim, “I will take the money today otherwise you will get into trouble”. She said, “Take out your wallet. I just want your money”. Ms Lv asked the victim how much money was in his account, to which he replied, “A few thousand”. The conversation was conducted in Mandarin. Ms Lv then took his wallet, which contained his bank card, his work card and his license. Ms Lv also took the victim’s mobile phone, an iPhone 5S, and the money that was contained in his wallet.

15. The victim agreed to Ms Lv’s proposal to “take the money out” because if he refused, he would be hit again. At 5:40am, Ms Lv called the victim’s cousin on the victim’s phone and held the phone while the victim spoke to his cousin on loudspeaker. The victim’s cousin told the victim that he would meet him at the building worksite in Frenchs Forest and that his cousin would give him money there.

16. Shortly before 7:00am, the victim was driven to the ANZ Bank in Burwood. Ms Lv asked the victim for the PIN number of his bank card, which he told her. Liu, Ms Lv and Mr Zhou allegedly locked the victim in the red car whilst they accessed an ATM and withdrew $2,000 from the victim’s account. Mr Zhou said to the victim, “Don’t call the police otherwise you and your cousin brother will all be dead.”

17. The fact that the money was withdrawn from his account was not regarded as a particular of either of the offences for which Liu and Ms Lv were on trial for.

18. The red car was then driven from Burwood to Frenchs Forest by Ms Lv. During the trip the victim was sitting between Liu and Mr Zhou in the backseat of the red car. On the way to the worksite, Ms Lv said to the victim, four times, “If you report to the police, you and your cousin brother will be dead”. When they arrived at the worksite, Ms Lv told the three men to get out of the car. She said to the victim, “Don’t try to call police. We have so many friends that live close to this worksite. If you did, we will rush in to hit you”. At the worksite the victim’s wallet was returned to him but the ANZ bankcard and other ID cards were not included in it; they were retained by Liu and Ms Lv.

19. The victim’s evidence was that when he walked into the worksite accompanied by the two men, and notwithstanding threats being made to him as to what would happen if he called the police, he made an immediate complaint to a fellow worker, Mr Collins, about what was happening and asked him to call the police.

20. Mr Collins sought instructions from the work foreman over the telephone and was told to lock the site up, close the gates, call the police and wait for them to arrive. Mr Collins followed those instructions.

21. Constables Paton and Madden, both uniformed police officers, were rostered on general duties. They attended the building worksite in Frenchs Forest in a marked police vehicle, having received a radio message which informed them that there were some males of Asian appearance harassing and intimidating workers at that building site.

22. Upon attending, Constable Paton spoke to a man at the building site and was informed that two Asian males who were walking away from the site, but who were still visible to Constable Paton, were the males who had been at the worksite harassing and intimidating an employee.

23. Constable Paton observed those two males get into the red car, which made a U-turn and headed towards a main road in the area. She returned with her colleague to their marked police car, and began to follow the red car. She did so in an attempt, she said, to pull it over and speak to the males in question.

24. As the red car was driving around the residential streets of Frenchs Forest, Constable Paton observed a hand holding a handful of objects protrude out of the front passenger window of the red car and proceed to throw the objects onto the roadway and footpath. The police car stopped. Constable Madden alighted and collected an item which turned out to be an Apple iPhone. The police car then resumed following the red car. They observed the red car come to a stop. They then stopped behind the stationary red car.

25. Constable Paton left the police car and walked to the driver’s window of the red car. She informed the driver of her name and the police station to which she was attached. She also informed the driver that she (the driver) had been stopped for a random breath test and enquired of her (the driver) whether she had had any alcohol to drink. She further required the driver to produce her driver’s licence. The driver responded that she had not had any alcohol to drink and handed over what appeared to be an international driver’s licence.

26. Constable Paton then said this:

“The reason you’ve been stopped by us today is because we were called to the location [in Frenchs Forest] about you guys possibly harassing and intimidating the workers there. I haven’t spoken to everyone involved yet, but do you want to tell me what has exactly happened today?”

27. Liu responded:

“No, I don’t know what you mean by intimidating. I just went to get my tools.”

28. Constable Paton returned the police vehicle with the various identification documents where further checks were undertaken. It became apparent once those checks were undertaken, that the driver’s licence was suspended.

29. Constable Paton left Constable Madden in the police vehicle to undertake further inquiries, and returned to the red car to speak to the driver about her licence being suspended. A conversation about that occurred between Constable Paton and the driver of the red car, Ms Lv. The driver and the two males were still seated in the red car. At the conclusion of the conversation with the driver of the red car about her licence, Constable Paton then directed two questions to Liu who was seated in the front passenger seat of the red car. The conversation was to this effect:

Constable Paton:   “Why did you throw your phone out the window before?”

Applicant:   “What?”

Constable Paton:   “You threw your phone out the window. But that’s OK because we picked it up and we have it now.”

Applicant:   “Oh, yeah, no, I didn’t like it anymore.”

30. At that point Constable Paton returned to the police motor vehicle and discussed with Constable Madden the additional information which Constable Madden had obtained from his enquiries whilst Constable Paton was speaking with the occupants of the red car. It was during those enquiries that Constable Paton was informed that the mobile phone that had been thrown out of the car belonged to Yu, the victim of the offence for which Liu and Ms Lv were convicted.

31. Constable Paton undertook further enquiries, including ensuring that Detectives were contacted and informed.

32. Included in those further enquiries was asking Constable Madden to return to the area where the iPhone had been retrieved from the roadway and to search the area for any other property that might have been thrown out there. Constable Madden did so and returned to Constable Paton with a WorkCover card, an ANZ Bankcard and an RTA identification card – all in the victim’s name.

33. At that point, Constable Paton return to the red car and had a conversation which commenced in this way:

“I’m Constable Paton from Dee Why Police Station. At this time, I am investigating an intimidation incident which occurred at … Frenchs Forest. You do not have to do or say anything if you do not want to, do you understand that?”

34. Each of the occupants of the red car responded affirmatively. Constable Paton then said:

“Anything you say or do will be recorded and may be used as evidence in court. Do you understand that?”

35. Each of the occupants of the red car affirmed their understanding of that proposition.

36. The occupants were then instructed to get out of the red car. A search of the car then took place. In the course of that search, $1,950 in cash was found. The cash had been found hidden in two different locations. Other police officers arrived at the scene, and the three individuals were taken back to the Dee Why Police Station where they were, in due course, charged with the offences.

Applicable Legislation

37. Liu’s ground of appeal on sentence raises the provisions of s 281(1) of the Criminal Procedure Act 1986 (NSW) which relevantly provides:

“281 Admissions by suspects

(1) This section applies to an admission:

(a)    that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and

(b)    that was made in the course of official questioning, and

(c)    that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.

(2) Evidence of an admission to which this section applies is not admissible unless:

(a)    there is available to the court:

(i)    a tape recording made by an investigating official of the interview in the course of which the admission was made, or

(ii)    if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or

(b)    the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.

(3)    …

(4)    In this section

‘investigating official’means:

(a)    a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or

(b)    a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.

‘official questioning’ means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.

‘reasonable excuse’includes:

(a)    a mechanical failure, or

(b)    the refusal of a person being questioned to have the questioning electronically recorded, or

(c)    the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned

‘tape recording’includes:

(a)   audio recording, or

(b)    video recording, or

(c)    a video recording accompanied by a separately but contemporaneously recorded audio recording.”

The Voir Dire on Liu’s Admission

38. The Crown sought to tender only against Liu the evidence of the false statement made by him to Constable Paton about the reason why the telephone had been thrown out of the red car, namely that he did not like it anymore. The Crown’s case was that that statement was knowingly false in two respects. First, that it was not his telephone but rather it was the victim’s telephone; secondly, that he did not throw it away because he did not like it anymore, rather he threw it away to avoid inculpating himself in the offence with which he was ultimately charged, and for which he was ultimately convicted.

39. Counsel appearing for Liu objected to the admissibility of that statement. On the eighth day of the trial, 27 June 2016, a voir dire was conducted.

40. Evidence was elicited from Constable Paton which described all of the events that have been set out above. Her statement was tendered as part of her evidence-in-chief.

41. She was cross-examined by Liu’s lawyer. She agreed that she had received an allegation of harassment and intimidation. She also agreed that she had not cautioned Liu at the time she asked the relevant question as to why he threw the phone out of the window of the red car. The following exchange then took place:

“Q.   The question that you asked them, that question, was official questioning, would you agree with that?

A.   Yes. But in the sense I generally thought that it was their property or something, so I had no suspicion to believe it was relating to any victim because at that point we didn’t have one.

Q.   You had already told him that you were …

A.   Yeah, but I had no …

Q.   The reason that they had been stopped was because of an allegation of intimidation at that point?

A.   Yes.”

42. Re-examination consisted of one question and answer. It was in the following form:

“Q.   Just in relation to that issue with the phone, you were just asked a question there, at the time you asked that question of the front passenger, about the phone, what was your state of knowledge about the phone?

A.   I had no idea that it belonged to anyone other than the person who threw it out of the car.”

43. Counsel for Liu then briefly addressed the Court. He said this:

“Constable Paton stopped the car. She informed the occupants that she [was] investigating a suspected intimidation. It was clear at that stage that she was investigating a suspected offence, albeit at the time intimidation, it was official police questioning. It related to an indictable offence, that is, intimidation pursuant to s 13 of the Crimes (Personal and Domestic Violence) Act, an offence whereby prosecution only has an election right.

So the fact that Constable Paton was investigating a suspected offence, that satisfies s 281(1)(a) of the Criminal Procedure Act. It was official police questioning, that satisfies s 281(1)(b) of the Criminal Procedure Act. It related to an indictable offence, whereby the prosecution only has an election right … that satisfies s 281(1)(c). Therefore, relying on s 281, the evidence satisfies that section and it is inadmissible.”

44. The primary Judge did not call upon the Crown to make any submissions and indicated that she would give her judgment the following day.

Judgment on the Voir Dire

45. The judgment noted that both Liu and the Crown accepted that the relevant evidence, namely the answer given by Liu to Constable Paton’s question about the iPhone was properly regarded as an admission. Her Honour then posed the question for determination as being whether s 281 of the Criminal Procedure Act had application on the facts which were proved.

46. Her Honour set out the evidence, to which reference has been made. Her Honour concluded that the evidence of the admission was capable of showing consciousness of guilt on Liu’s part and that it was highly probative.

47. Her Honour, having referred to the requisite legislation, noted that no tape recording of the admission had been made, and that the Crown had not sought, by evidence or otherwise, to provide a reasonable excuse as the legislation required. Her Honour then considered the particular issue before her, identified above.

48. Her Honour’s judgment then concluded as follows:

“In this case, I find that s 281(1) does not apply. At the point that Officer Paton asked the question and made the statement concerning the phone, she was simply concerned with the phone, and the fact that it had been thrown from the car and retrieved by police. The information she was in possession of was general and concerned an allegation of harassment and intimidation; no victim had been identified and nothing at all had been said about the phone. In her view, the phone belonged to an occupant of the car. The phone had no relevance, at all, to any investigation that was being undertaken. Even accepting a broad interpretation of the term ‘official questioning’, some causal connection is required between the question and the investigation. In my view, there was none. Again, the questioning about the phone had nothing to do with the allegation. It, therefore, does not amount to official questioning, because it was not in connection with the investigation of the commission or possible commission, of an offence.”

49. Because her Honour found that s 281 did not apply, and that there was no other basis for exclusion of the evidence, she concluded that the evidence was admissible.

Liu’s Submissions

50. Liu accepted that he had to demonstrate an error of law of one of the kinds identified in House v The King [1936] HCA 40; (1936) 55 CLR 499.

51. He submitted that the trial Judge had fallen into error by acting upon a wrong principle of law, namely that her Honour held that there had to be some “causal connection” between the question about the iPhone and the investigation into the allegation of intimidation, whereas there is no requirement for such causal connection and insistence upon such causal connection, was contrary to authority.

52. Liu submitted that Constable Paton was engaged, as she accepted, in official questioning and that, even if the question asked, and the answer given, was unrelated to the purpose of the official questioning, it nevertheless occurred in the course of that official questioning and was inadmissible. As Liu put it, the proper test was connection and not causation.

Crown Submissions

53. The Crown submitted that her Honour’s conclusion was correct. The Crown submitted that in order for there to be official questioning, the police officer needed to be attempting to elicit from the person a response, which that officer foresaw might provide information relevant to the investigation of the commission of an offence or possible offence, or else be to the person’s prejudice in that regard: R v Sharp [2003] NSWSC 1117; (2003) 143 A Crim R 344.

54. The Crown submitted that Constable Paton’s evidence was that she was not attempting to elicit a response relevant to any investigation, and upon that basis it was open to the primary Judge to permit the evidence to be led.

55. The Crown accepts that there does not have to be a connection between the admission and the official questioning, but submitted that that was not relevant to the decision here. Rather, the Crown submitted that the issue correctly determined by the primary Judge was whether the admission was made in connection with the investigation of the commission, or possible commission, of an offence.

56. The Crown submitted that should the ground be upheld, then the Court ought apply the proviso pursuant to s 6(1) of the Criminal Appeal Act 1912, because no substantial miscarriage of justice has actually occurred as a result of the admission by Liu to Constable Paton having been in evidence before the jury.

Authorities

57. The High Court of Australia in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216, considered Tasmanian legislation which was in essentially identical form to s 281. At [45], Gleeson CJ, Hayne and Heydon JJ, noted that a person may make admissions during official questioning without those admissions necessarily being responsive to any particular question. They said:

“The words ‘in the course of’ do not require that there be any causal connection between the admission and the official questioning. Thus, ‘a monologue in response to a general enquiry about what happened’ has been held to be in the course of official questioning for the purposes of s 85 of the Evidence Act 1995 (NSW) and an answer volunteered by the person being questioned is in the course of questioning even though it is not directly responsive to any question.” (footnotes omitted)

58. In considering the breadth of construction to be given to the phrase “in the course of official questioning”, their Honours said at [52]:

“The expression ‘in the course of official questioning’ … marks out a period of time running from when questioning commenced to when it ceased.”

59. Wood CJ at CL in R v Horton (1998) 45 NSWLR 426, stated at 438-439 that the mischief to which an earlier but identical version of the legislation was directed was:

“… to ensure the integrity of the evidence of police witnesses concerning representations of any form attributed to accused persons, and to provide an objective means of resolving any dispute concerning that kind of evidence. …

…

The provision is protective legislation, and in the absence of a clear legislative intention to the contrary, I am unpersuaded that it should be read down in the manner suggested …”

60. In Sharp, Howie J considered the policy behind the provision. Sharp was a case in which a police officer questioned the accused who was seated in a motor vehicle outside her premises that they were about to search. The conversation concerned her co-offender, who was inside the premises, and whether he was dangerous. Howie J held that the questioning fell within the ambit of s 281.

61. In the course of that judgment, at [17], Howie J said:

“[17]   The policy behind the legislation is, as I have stated, obvious. It is an attempt to limit the opportunities both for a police officer to fabricate the making of an admission by a suspect, and for an accused person to challenge evidence of the making of an admission at a trial of a criminal offence. … there is nothing in the Second Reading Speech to indicate that its purpose was other than to regulate police questioning.

…

[19]   But it seems to me that because the legislation does not require that all admissions be electronically recorded, police should be able to determine with some degree of certainty what is and what is not ‘official questioning’ for the purposes of the section …

[20]   I hesitate to attempt to give any more meaning to the words of the section that arise from the definitions contained in it and the policy behind the legislation. But the word used is ‘questioning’ and it seems to me that it at least implies that the police officer is attempting to elicit from the person a response that the officer foresaw might provide information relevant to the investigation of the commission of an offence or possible offence, or be to the person’s prejudice in that regard.”

62. His Honour noted that it was unnecessary for the police officer to have actually asked a question before an admission is made.

63. Howie J in R v Naa [2009] NSWSC 851, considered the application of s 281. At [77]:

“Although, as James J noted, the words ‘in connection with an investigation’ are of wide import, in effect they confine or focus the scope of the questioning between a police officer and a suspect. Without these words ‘official questioning’ would arise whenever a police officer is questioning a person who is or, ought reasonably to have been, suspected of committing an offence whatever be the content or circumstances of the questioning. As I pointed out in Sharp, that is not what Parliament sought to achieve by the provisions. There may be formal or informal police procedures before or after arrest that do not fall within the ambit of the section because they are not in connection with an investigation. …”

64. His Honour concluded that an admission made during the course of a police standoff, at a time when police officers were armed with weapons trained on the accused, and when the officers were attempting to build some rapport with the accused so as to peacefully end the confrontation, could not be described as official questioning.

Discernment

65. Constable Paton, in response to a radio message, attended a building worksite in Frenchs Forest. She was there informed that the two males who were ultimately stopped in the red car had been at the worksite harassing and intimidating an employee. Such was that information that she determined she should investigate it further by following the red car and, in due course, stopping it.

66. After the car was stopped and there was an initial conversation with the driver about a random breath test, Constable Paton returned to the red car and informed the male occupants that the reason the car had been stopped that day related to the call to the worksite “… about you guys possibly harassing and intimidating the workers there”. She then asked the males to tell her “… what has exactly happened today”? This was a question by which Constable Paton attempted to elicit information relevant to the subject matter of the complaint – namely the possible commission of the offence of intimidation.

67. Liu denied any intimidation and asserted an innocent purpose for the visit to the worksite.

68. Constable Paton returned to the police vehicle and undertook various identity checks. She dealt with the female driver and her potential status as an unlicensed driver. She then turned to address a further question to Liu. Liu’s answer to that question is the subject matter of the application for leave. But it is important to recall the circumstances in which the conduct occurred and about which Constable Paton questioned Liu. The conduct was the jettisoning by Liu of a mobile telephone and other objects. Constable Paton did not know at that point in time what those other objects were, but the jettisoning occurred as the red car drove away from the building site at which the alleged intimidation took place, and whilst the red car was being followed by a marked police vehicle. Constable Paton knew at that stage that there was an allegation that some money had been taken in the course of the harassment and intimidation.

69. Constable Paton accepted that the question was asked in the course of official questioning, but said that she had no suspicion at that point in time, or cause to believe, that the mobile phone related to any victim.

70. However, it cannot be gainsaid that the red car had been stopped because it had been seen driving away from the building site at which the alleged intimidation had occurred. Intimidation is an indictable offence of the kind to which s 281(1)(c) refers. The two male passengers were the only people who had, at that point in time, been identified as being involved with the alleged intimidation. Accordingly, I am satisfied that Constable Paton suspected, or else could reasonably have suspected, that one or other of the males to whom the question was addressed had committed a relevant offence.

71. Was this admission made in the course of official questioning? Constable Paton had some information about the possible commission of an indictable offence, namely intimidation. She had information which indicated that the two male passengers in the red car had been involved in the commission of that offence. She determined that she would follow the red car so as to enable her to undertake further investigation. When the red car stopped, she undertook that investigation. First, she dealt with a question of road safety with the female driver. She then turned her attention to the two male passengers. She sought to establish what had occurred, including the conduct which occurred after the alleged event, while the two males were leaving the scene in the red car and being followed by the police car.

72. Whilst at that time I accept that she did not know whether the mobile phone belonged to the male passenger or the victim or anyone else, that in my view is beside the point. What she was seeking to ascertain was why the male passenger in the front seat had jettisoned the mobile phone in the circumstances described. At that time she was investigating the possible commission of an offence. The question was in connection with, and in the course of, that investigation.

73. Accordingly, I conclude that the questioning was in connection with an investigation and, hence, official questioning.

74. That is an unsurprising conclusion having regard to the fact that Constable Paton herself told the male passengers that she had been called to the worksite because of possible intimidation there. And she commenced the conversation by asking the males to tell her exactly what had happened. In other words, she was investigating what had occurred at the worksite and whether an offence may have been committed.

75. The question which followed, albeit after some further investigations were undertaken, was a continuation of her attempts to establish what had occurred at the worksite.

76. In my view, the admission was not admissible because it contravened s 281 of the Criminal Procedure Act. Her Honour fell into error in failing to so conclude.

77. It would only have been admissible had the Crown established one of the exemptions to that section. No attempt was made by the Crown to do so. The primary Judge noted that in her judgment the Crown had not embarked on the task of so doing. In those circumstances, the evidence was inadmissible and its admission was erroneous.

Proviso

78. The Crown submitted that if the Court were to conclude that the evidence of the admission was wrongly admitted it should apply the proviso. Section 6(1) of the Criminal AppealAct provides that, even where the Court is minded to allow an appeal on the basis of an error of law, it may dismiss the appeal “… if it considers that no substantial miscarriage of justice has actually occurred”.

79. In Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, Brennan, Dawson and Toohey JJ said, at 371-372:

“… Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost ‘a chance which was fairly open to him of being acquitted’ to use the phrase of Fullagar J in Mraz v The Queen (1955) 93 CLR 493, at 514 or ‘a real chance of acquittal’ to use the phrase of Barwick CJ in Reg v Storey (1978) 140 CLR 364, at 376. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen (1977) 137 CLR 517, at 524; Reg v Storey (1978) 140 CLR 376 at 376; Gallagher v The Queen (1986) 160 CLR 392, at 412-413. … The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case.”

80. In Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 at [15], the plurality explained that:

“By ‘substantial miscarriage of justice’ what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description.” (citations omitted)

81. As this Court said in Lane v R [2017] NSWCCA 46 at [48]:

“The appellant will have been denied a chance of acquittal which was fairly open unless this court concludes from its review of the record that in the absence of the omission to give the unanimity direction his conviction was inevitable; or to put it another way, assuming that direction had been given, that it would not have been open to the jury to entertain a reasonable doubt as to his guilt …”

82. Applying those statements of principle to this case, it is apparent that in considering the proviso this Court should proceed on the basis that Liu will have been denied a chance of acquittal which was fairly open unless the Court concludes from its review of the record that had the evidence of the admission not been given, Liu’s conviction would have been inevitable or, to put it another way, had the evidence not been given, it would not have been open to the jury to entertain a reasonable doubt as to his guilt.

83. It is to be recalled that Liu stood trial with his wife, Ms Lv, who was also found guilty by the jury of the same offence as Liu.

84. As is apparent from the summing up of the trial Judge, the case against Liu, as compared with Ms Lv, involved additional evidence. First, the Crown led evidence about an interaction between Liu and Mr Zhou, who was another participant in the offence, as to what had occurred between them on 8 October 2014, the day prior to the offence. Secondly, the Crown relied upon the actions of Liu in throwing the mobile telephone and various other items (being the ID cards and ANZ card of the victim) out of the window of the red car when being followed by police, and then thirdly, the false explanation given by Liu which was said to amount to a consciousness of guilt.

85. The jury were instructed fully and carefully that the additional evidence was not available to be used in the case against Ms Lv.

86. The Crown case was that Liu, acting jointly with Ms Lv and Mr Zhou, had taken the mobile phone, together with his photo identification, his WorkCover card and an ANZ bank card, from the victim by force and threat.

87. Liu and Ms Lv each gave evidence in answer to the Crown case. Liu denied that he had taken the property and in so doing had used, or threatened to use, force. Liu’s case was that the property was voluntarily handed over by the victim and left in the red car. His evidence was that there was never any intention to permanently deprive the victim of the property. The property came to be in the red car because the victim had left it there when he alighted from the red car at the worksite and prior to the red car driving away from the worksite.

88. He responded to the evidence about throwing the mobile telephone out of the car by saying that when he threw the property out of the car’s window, he was nervous and scared because he thought that the police would think that he had stolen it. He said that was why he lied to the police.

89. Liu relied upon his good character, and the fact that he had no criminal convictions as being relevant to the jury being persuaded that he was not guilty.

90. The Crown case involved evidence being adduced from the victim, Yu. The victim gave evidence the contents of which comprise the majority of the relevant facts which are recounted at the commencement of this judgment.

82. The Crown called the victim’s “cousin brother” who was working at the building site at Frenchs Forest but who was not there when the victim arrived. In general terms, this witness corroborated the victim’s essential evidence, namely that on the morning of 9 October 2014, he received a telephone call in which the victim’s need for $30,000 was made known to him and arrangements were made to discuss the matter at the Frenchs Forest worksite. In cross-examination, the witness was challenged as to his evidence about the content of the telephone call of 9 October 2014. He adhered to his version.

83. Following that witness, the Crown called Mr Zhou. It is to be recalled that Mr Zhou was arrested by the police on 9 October 2014, at the same time as Liu. On 11 December 2015, Mr Zhou pleaded guilty to robbery in company in relation to what had happened on 9 October 2014. He was sentenced on that day. Mr Zhou gave evidence of an arrangement made with Liu on 8 October 2014, for him to accompany Liu on the following day to “kidnap” the victim. Liu, he said, asked him to help by keeping watch on the victim, and then to get money from him. He said that Liu had instructed him to kick the victim if the victim did not comply with his demands for money.

84. He gave a description of the events of 9 October 2014, which largely accorded with the description which the victim had given. He agreed that he had hit the victim, who was sitting in the car between him and Liu, when the victim had said he did not have any money. He gave evidence that the victim had been told to telephone his relatives, in particular his cousin, to obtain money. He gave evidence that Ms Lv had participated in making the demands, and had been involved in driving the car. He said that he had been asked to, and he did, take the victim’s wallet, including his ID, his money and his bankcard. He said he gave them to Ms Lv.

85. Mr Zhou corroborated the victim’s account of what occurred, in general, on the way to the worksite.

86. In cross-examination, although there were significant difficulties with the interpretation of questions and the answers that were given, it seems that Mr Zhou did not substantially vary from his account in chief.

87. In addition to these witnesses, the Crown also called Mr Angus Collins, a bricklayer who was working at the worksite. Mr Collins was the person to whom the victim spoke at the worksite on that morning. Mr Collins described the victim as being a bit distressed and asking him for help. He said the victim had said “Help me, help me, I need you to call police”. The victim had told him that there were “guys here that are trying to hurt me”.

88. Mr Boyd was also called. He was another bricklayer who was working on the site at Frenchs Forest. He described the victim as seeming like he was a little distressed. He was not normal. He said he later observed a Chinese man and woman visiting the worksite. He said that the two people had gone directly to the victim and spoken with him.

89. The Crown case finished by calling a number of police witnesses, including Constable Paton who gave evidence about her attendance at the scene and surrounding circumstances. She gave evidence about the fact that Liu threw the mobile phone out of the red car, and that he also gave the false excuse to which earlier reference has been made.

90. Constable Madden, who accompanied Constable Paton to the scene, gave evidence which in substance corroborated that of Constable Paton. He gave evidence of some additional enquiries which he had made.

91. One matter of which the police gave evidence was the search of the red car when it was stopped and after the three occupants got out of it. That search found $950 in cash in the glove box of the motor car, and $1,000 in cash concealed underneath the seat cover of the front passenger seat. Whilst the cash did not form any part of any of the offences being alleged, it was nonetheless significant evidence corroborating the evidence of the victim, that he had handed over his ANZ Bank card to Liu and Ms Lv, and that they had used it to withdraw $2,000 from his account.

92. It also corroborated, in general terms, the account of the victim in that his account was that the money having been withdrawn from the ANZ Bank, the party made its way directly to the worksite. It corroborated the verbal account given by the victim to the police at the scene.

93. Liu then gave evidence, as did Ms Lv.

94. Liu’s account was that the victim consensually handed over his wallet and the funds, and consensually went to the worksite to enable Liu to recover his tools which remained there. No tools were recovered there according to Liu. In his evidence-in-chief, he said that when he was told that the police had arrived at the worksite, he decided to leave and whilst doing so, threw some things out of the window of the red car. When asked why he had done so, he said that he was scared that the police would misunderstand and think that he had stolen those things from the victim. He said that he had possession of the mobile phone and the ID cards because the victim still owed him $700 in wages and that he intended to return them to him after that sum of money had been paid.

95. In short, Liu contended that the dispute between him and the victim was over unpaid wages, that Liu was entitled to be paid wages and that he had not in any way threatened the victim. He denied that he had any intention of permanently depriving the victim of his mobile phone and ID cards.

96. Ms Lv gave evidence. She denied any knowledge of or involvement with the particular crime. Her account was substantially that she merely followed her boyfriend’s directions as a driver. She denied being involved in the delivery of any threats to the victim, and she denied being involved in any active way with the crime.

97. The two applicants, Liu and Ms Lv, each also relied upon their previous good character on the question of whether they were guilty of the offences charged and whether they ought be believed in their evidence.

98. On my assessment of the evidence tendered at the trial (ignoring the evidence of the admission which was wrongly admitted), the Crown case on the robbery in company was a very strong one. The victim’s evidence was corroborated by Zhou, about whose evidence the trial Judge gave the jury the appropriate warning, and also by the observations of the two independent witnesses at the worksite in Frenchs Forest. The victim’s bank accounts and telephone records also corroborated his version. As well, the Crown case on robbery was substantially supported by the fact that Liu was observed throwing the victim’s mobile phone and the cards removed from the wallet out of the window of the red car in circumstances where he knew that the police car was following the car in which he was a passenger.

99. The jury was entitled to, and I do, regard that conduct as an attempt by Liu to put beyond the reach of the pursuing police officers, albeit unsuccessfully, objects which, if he was found in possession of them, would strongly point to his guilt of the robbery offence.

100. It is also of importance to observe that the evidence which I have earlier indicated was inadmissible, and wrongly admitted against Liu, was not part of the Crown case against Ms Lv. The jury were warned appropriately that they were not entitled to rely upon that as part of the case against Ms Lv. The case against Ms Lv was in some respects weaker than that against Liu. It was certainly entirely reliant on the victim’s evidence and such corroboration as other witnesses gave to that evidence. Clearly the jury were persuaded of the truth of the victim’s evidence in relation to this offence.

101. Also, it is clear that the jury was unpersuaded of the truth of the evidence given by Liu or Ms Lv with respect to how the mobile phone and cards were taken, and how they were disposed of. Having carefully considered what they have said, I regard their account of what occurred as not worthy of any credibility – I would not be prepared to accept them.

102. In the case against Liu, the reliance by the Crown on the “admission” was a small part of an otherwise very strong Crown case.

103. I am wholly unpersuaded that, if the disputed evidence had not been admitted, the jury may have come to a different conclusion. On the contrary, I am positively persuaded that once the jury determined that they would not accept the exculpatory evidence of Liu and Ms Lv, it was inevitable that they would be convicted. The Crown case was very strong.

104. Having read the transcript of the evidence, and examined the exhibits which were tendered, I have formed the view that, had the disputed evidence not been admitted, it was inevitable that Liu would have been convicted.

105. Accordingly, I accept the Crown submissions that this is a case in which the Court should apply the proviso because no substantial miscarriage of justice has occurred.

106. On that basis, I am persuaded that although leave to appeal ought to be granted, the appeal against conviction should be dismissed.

Sentence

116. Liu and Ms Lv were sentenced in the same ex tempore judgment, which was delivered by the primary Judge on 9 September 2016, immediately on the conclusion of the sentencing hearing.

117. As earlier indicated, the sentence imposed on Liu was one of 3 years commencing on 9 September 2016, with a non-parole period of 18 months. The non-parole period will expire on 8 March 2018.

118. Ms Lv was sentenced to a term of imprisonment of 2 years and 6 months with a non-parole period of 1 year and 3 months, expiring on 8 December 2017.

Remarks on Sentence

119. In her Remarks on Sentence, her Honour said that she was unpersuaded that the mask and black hat worn by Ms Lv were used by her deliberately as a disguise as the Crown contended.

120. Her Honour concluded that the offence in question was reasonably well planned and orchestrated. She said this:

“Objectively, I find that this was a reasonably well planned and orchestrated offence. Liu picked the victim up when he was on his way to work. A number of demands for money were made and Ms Lv made her demands in a loud and angry voice. Mr Zhou, on behalf of Liu, hit the victim. Both offenders before me acting as a joint criminal enterprise, and they were each responsible for the acts that took place in this robbery. When it comes to seriousness I am not required to categorise this offending, but I have chosen to do so. I place this matter into the middle of the range for like offences of robbery in company.”

121. Her Honour formed the view that Liu played a greater role in the offence than did his wife. However, she did not accept that it was appropriate to categorise the wife’s role as being toward the lower end of the scale.

122. Her Honour considered Liu’s subjective case. She noted that he was only 20 years old when he committed the offences, and had no prior criminal convictions. Her Honour took into account the fact that he was reasonably well educated and that he regretted his offending. Her Honour was not satisfied that Liu had demonstrated remorse with respect to the victim.

123. She was persuaded that Liu was reasonably young and immature when he committed the offence, and that he had a low risk of reoffending. She noted that Liu had good prospects of rehabilitation and that he was unlikely to reoffend.

124. Her Honour then described the subjective cases of Ms Lv. Her Honour noted that Ms Lv had no prior convictions, had completed a Bachelor of Nursing in 2016, and was gainfully employed as a nurse at the time of the offending.

125. Her Honour accepted that Ms Lv had worked and studied hard, and that she had excelled in calligraphy and art. Indeed, her Honour observed in her Remarks on Sentence:

“Frankly, it is difficult to reconcile the person who committed with offence with the person who I saw in the witness box. She struck me as intelligent, articulate, and somewhat shy. That is not consistent with her conduct when she committed this offence.”

126. Her Honour characterised Ms Lv as a “pro-social woman”, and stated that there was no doubt that Ms Lv had made, and would continue to make, a positive contribution to the community. Her Honour found that Ms Lv had not expressed remorse, continued to deny her involvement in the offending and maintained her innocence. However her Honour found that Ms Lv was unlikely to reoffend.

127. Her Honour then turned to consider the question of parity. That issue arose because Liu and Ms Lv’s co-offender, Mr Zhou, had been sentenced by the District Court (Cogswell DCJ) after a plea of guilty. Mr Zhou was sentenced for the offence of robbery, but the primary Judge also took into account on a Form 1, the offence of detaining for advantage. Both Liu and Ms Lv were found not guilty of that offence at trial.

128. Mr Zhou was sentenced to a total term of 2 years imprisonment, which was ordered to be served by way of an Intensive Corrections Order in the community. Mr Zhou’s sentence followed a 25% discount for his early plea of guilty. As her Honour noted, there were a number of relevant factors in addition to that, namely that Mr Zhou demonstrated remorse for his actions, that his role was not as an instigator in the robbery but was merely there as a “back up”, and that expert psychiatric opinion disclosed Mr Zhou suffered from developmental disability and was on the autism spectrum. His intellectual performance was at the bottom of the normal range, and he was a person who was very malleable. As well, the primary Judge was persuaded that Mr Zhou would find the experience of imprisonment more onerous because of that condition.

129. Her Honour then turned to consider the guidelines set out in R v Henry [1999] 46 NSWLR 346. She accepted that the Henry guidelines were applicable in cases of armed robbery, but noted that they were nevertheless a relevant consideration when dealing with robbery in company. Her Honour was correct in so doing because the offence against s 97(1) of the Crimes Act 1900 (NSW), of which the applicants were convicted, is broadly equivalent to the offence of armed robbery: R v Murchie (1999) 108 A Crim R; [1999] NSWCCA 424 at [20]; Owens v R [2017] NSWCCA 16 at [51].

130. The primary Judge emphasised the need for general deterrence and the other relevant factors. In particular, her Honour noted that the sentence of imprisonment which she was imposing would represent the first time that both of the applicants would serve time in prison.

131. Her Honour found special circumstances for both applicants.

Grounds of Appeal

132. Liu relied upon five grounds of appeal, and Ms Lv on seven grounds. There is some commonality between their respective grounds of appeal. It is not necessary to set out all of the grounds of appeal, since I have concluded that an error of law is apparent on two grounds of appeal. Accordingly, it will be necessary to proceed to sentence both Ms Lv and Liu afresh as required by Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [43].

133. The first relevant ground of appeal was that the primary Judge erred in characterising the victim as being “vulnerable”. This ground was pleaded by Liu as Ground 3 on his sentence appeal, and was pleaded by Ms Lv as Ground 3 of her appeal as well.

134. The second relevant ground of appeal can be broadly described as one impugning the manner in which the primary Judge treated the relevance of the fact that $2,000 was withdrawn from the victim’s bank account using the victim’s bank card which was taken from him by Ms Lv and Liu. This ground encompasses Grounds 1 and 2 of Liu’s appeal on sentence, and Grounds 6 and 7 of Ms Lv’s appeal.

Ground 1: Her Honour erred in finding that the victim was vulnerable

135. In her Remarks, the primary Judge dealt with the vulnerability of the victim in a number of ways, including:

1. when dealing with the objective seriousness of the offence, the primary Judge accepted the Crown’s submission that Liu “… was aware of [the victim’s] immigration status and sought to exploit his vulnerability by committing the offence”;

2. the primary Judge later found that “… [the victim] was vulnerable by virtue of his immigration status”. However, she said that this was not a finding of an aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999;

3. when considering the factors relevant in the application of the Henry guidelines, her Honour said: “I have found the victim here was vulnerable because he was in the car with the three offenders”.

136. The findings and Remarks at (a) and (b) above are, on their face, difficult to reconcile. The Crown’s submission was directed to a finding of an aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW) in undertaking the assessment of objective seriousness. Her Honour seems to accept the submission, but then declines to make a finding of vulnerability as an aggravating factor. Finally, the finding of vulnerability in (c) above seems to stand alone and be based upon different considerations.

137. In considering this ground, it is appropriate to keep in mind that her Honour’s Remarks on Sentence were delivered straight after the hearing on sentence. As ex-tempore remarks, this Court is constrained, appropriately, from subjecting them to a fine and unduly technical analysis. Due allowance must be made for the hearing workload of the primary Judge and her fellow Judges in the District Court.

138. Liu and Ms Lv submitted that it was not open to the primary Judge to find that the victim was a vulnerable person within the meaning of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act, because that provision is concerned with a particular class of victim who need to be especially protected as being vulnerable to the commission upon them of criminal offences.

139. As well, the applicants submitted that the primary Judge had erred in finding that the victim was vulnerable having regard to his place in the car, namely seated with the three offenders.

140. The vulnerability of a victim is a relevant consideration both by reason of section 21A(2) of the Crimes (Sentencing Procedure) Act, and also as a relevant factor to be considered as a part of the Henry guideline, particularly at [162]. But both circumstances deal with vulnerability arising by virtue of the victim being a member of a group or class of people with similar features For example, old or young age is a factor making people in that category more vulnerable to the offences being perpetrated upon them. So, too, is a particular occupation such as being a taxi driver, because such an occupation makes a person undertaking that role of providing a form of public transport vulnerable to the offence of armed robbery (or robbery in company) being perpetrated upon them.

141. Leaving to one side whether her Honour did or did not find vulnerability to be an aggravating factor within the meaning of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act, I am satisfied that her Honour did make a finding that the victim was vulnerable by reason of his immigration status and that this was a relevant consideration in the sentencing process. I have concluded that having regard to the comments made, her Honour found the existence of vulnerability, as a matter of fact, that Liu told Mr Zhou when he enlisted his assistance, that the victim was an “illegal immigrant” and because of that fact, would not go to the police to report any offences.

142. The victim came to Australia lawfully, having been granted a student visa. It appears that at the time of the offence the visa had expired, although the victim’s evidence was that at that time he did not know if his visa had expired or not. He said that he first learnt that fact after the robbery occurred.

143. In Henry, as in the statute, the concept of vulnerability was found relevant because the particular feature, age or occupation made it easier for those individuals to be the victims of the offence, and because the nature of the offence made it more likely to be perpetrated upon such individuals. The immigration status of a person does not readily fall within either of those reasons for the commission of this offence. It may of course be a relevant factor in a particular case. Here, that was not so.

136. The finding of vulnerability in [135(c)] above ought be categorised, properly, as a finding of situational vulnerability. That is, the victim was in a position by virtue of the dynamic factors of the particular offence, where he was vulnerable to, and could not escape from, the conduct of the offenders. That seems to be what her Honour meant when she said that the victim was vulnerable because he was in the car with the three offenders. Her Honour had earlier noted that he was sitting between the two male offenders in the rear seat. This particular reference to vulnerability by her Honour seems to be in the context of the guideline decision in Henry.

137. However, it is clear from the Henry guidelines that the vulnerability there being discussed was not one of situational vulnerability as was the case here, but rather of vulnerability by reason of being the holder of a particular occupation or a member of a particular class.

138. It is clear that in terms of his particular situation, the victim here was in a vulnerable position, but that was not an aggravating factor to be considered in the way in which her Honour has done. The fact that the victim was sitting in the back seat reflected the circumstances in which the robbery occurred, namely that he, in effect, had no choice but to comply with the demand to hand over his wallet and its contents. Having regard to the range of factual ways in which compliance with demands may be achieved, this particular circumstance suggested conduct more towards the lower end of the range of methodology.

139. I am satisfied that an error of law has been demonstrated with respect to both aspects of the finding by her Honour that the victim in this case was vulnerable in a way which aggravated the circumstances of the offence. This ground succeeds.

Ground 2: The relevance of the taking of $2,000 from the victim

148. In her Remarks on Sentence in the course of describing the factual sequence, her Honour referred to the fact that the red car being used by Liu was driven to, and parked in, Burwood. She referred to the fact that the victim told Liu what his PIN was and her Honour then said:

“$2,000 was taken out of his account by [Liu] at an ATM using the victim’s bank card. Taking the money was not the subject of any charge. Eventually, after some time, the victim was driven in the car to his place of work at Frenchs Forest.” (emphasis added)

149. Her Honour again referred to the fact that $2,000 had been taken from the victim’s bank account when she was describing the evidence which Liu gave at trial. She noted his account that he had taken the money from the victim’s bank account in circumstances where he was owed more than that. Her Honour noted that the jury must have rejected Liu’s claim of right, and she herself found that she was not satisfied, on the balance of probabilities, that Liu was owed any money for wages. Accordingly, the taking of the money could not be found to be pursuant to any lawful entitlement.

150. Her Honour then recorded the submission of the Crown that the Court should find as an aggravating feature that the offence was committed for financial gain. The Crown relied upon the decision of Couloumbis v R [2012] NSWCCA 264 to support this submission.

151. Her Honour distinguished that decision firstly by noting that the offence in question was a completed robbery and not a conspiracy. She then went on:

“And I have decided, notwithstanding that authority – which has not been handed up and I emphasise I have not read it, I do not intend to find as an aggravating factor in this case that the offence was committed for financial gain. I find on the evidence before me that that in fact is or was an inherent aspect of this offence.”

152. A further comment was made in the Remarks on Sentence, perhaps somewhat obliquely, to the withdrawal of $2,000. What was said by her Honour was this:

“When it comes to the objective seriousness of this offence, the Crown, in her written submissions, has made a number of contentions. In assessing the objective seriousness of the offending, she submits that it is relevant that there were three offenders in company, that repeated demands and threats were made to [the victim]; that the card taken from him was used by the male offender to take money from the victim’s account, and that the male offender was aware of [the victim’s] immigration status and sought to exploit his vulnerability by committing the offence.

Each of these submissions should be accepted.” (Emphasis added)

153. Thereafter, her Honour did not refer to the taking of the $2,000 again.

Liu’s Submissions

154. First, Liu submitted that the taking of the $2,000 to which reference has been made, was not the subject of either Count 1 or Count 2 on the Indictment, and formed no part of the facts relevant to Liu’s sentence. Liu submitted that her Honour took this factor, wrongly, into account.

155. Secondly, Liu submitted that her Honour had, by referring to the absence of any claim of right with respect to the removal of the $2,000 from the victim’s bank account, in effect been punishing Liu for another offence, namely the wrongful taking of the $2,000 which was not part of any charge. This was the basis of a submission that the sentence imposed was excessive.

156. Thirdly, Liu submitted that her Honour erred in failing to apply Couloumbis, where Harrison J (with whom McClellan J at CL and Adamson J agreed) held at [28]-[33] that financial gain was not an inherent aspect of the offence of conspiracy to commit aggravated armed robbery, since examples of the subject offence in which financial gain was wholly absent could readily be identified.

157. Finally, Liu submitted that there was some confusion arising out of apparently conflicting findings of fact by the primary Judge. Liu’s submission was to this effect:

“At ROS 3, her Honour notes that the $2,000 taken from the victim’s account by the offender was not the subject of any charge. Yet at ROS 4, her Honour finds on balance she is not satisfied that the applicant was owed money for wages and at ROS 13, when assessing the seriousness of the offence as against the factors in Henry, finds that a small amount was taken. Her Honour should not have made the findings at ROS 4 and 13 in assessing the seriousness of the offence.

It is submitted that the money errors at ROS 4 and 13, can be traced back to her Honour’s finding that the motive of financial gain is an inherent aspect to the offence and therefore required findings of fact to be made about financial gain.”

Ms Lv’s Submissions

158. In addition to adopting Liu’s submissions, Ms Lv submitted on this ground that her Honour erred in taking the withdrawal of the $2,000 into account in assessing the objective criminality of the offence and as a result breached the rule in R vDe Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389, namely that a sentencing court cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

Crown Submissions

159. The Crown submitted that the recitation of the facts relating to objective seriousness and the removal of the $2,000 from the victim’s bank account extracted above at [152] was appropriate contextual material to which the trial Judge was entitled to refer, and that was all she had done. In addition, the Crown submitted that the obtaining of the $2,000 was relevant to Liu’s post‑offence conduct to which the Court was entitled to have regard when assessing the seriousness of the offence.

160. On Liu and Ms Lv’s submission that the $2,000 was incorrectly taken into account by the primary Judge as forming a separately punishable part of the offence, the Crown submitted that there was nothing in the sentencing judgment which indicated that the primary Judge impermissibly increased the sentence in relation to the taking of the $2,000, or that Liu or Ms Lv were being punished for an offence of robbery of $2,000 with which they were not charged.

161. The Crown further argued that there was no breach of the principle in Di Simone because her Honour regarded the taking of the $2,000 into account as part of the factual matrix of the offence when determining its objective seriousness and that the applicants were not being subjected to any greater punishment than was appropriate.

Discernment

162. The applicants’ first and second submissions can be regarded together as constituting an argument that the primary Judge wrongfully took the $2,000 into account as being relevant to, or as an inherent part of, the offence on the Indictment.

163. Her Honour’s remarks which are extracted at [148] above are remarks which were no more than a chronological recitation of all facts, which she found consistently with the verdict of the jury. As well, the remarks referred to at [150], namely that at no time did Liu have any basis for asserting an entitlement to the victim’s property, were also a part of the finding of all of the facts and circumstances relating to Liu’s case on sentencing. These findings were clearly correct, or at the least, well open to her Honour.

164. I do not read these Remarks on Sentence as indicating that her Honour was in fact punishing either applicant for any offence other than that with which they were convicted. I am therefore unpersuaded that this aspect of the applicants’ submissions have been made out. There has been no order of the kind noted in De Simoni.

165. However, her Honour’s remarks dealing with the objective seriousness of the offence, and the role of the taking of $2,000 as being an inherent aspect of the offence, are more troubling.

166. The decision of this Court in Couloumbis concerned an offence of conspiracy to commit an aggravated armed robbery. The substantive offence is found in s 97(2) of the Crimes Act. At [31], Harrison J (with whom McClellan CJ at CL and Adamson J agreed) said:

“An inherent characteristic suggests something that is always present as a permanent and essential attribute of the thing under consideration. As counsel for the applicant quite properly conceded in this court, examples of the subject offence in which financial gain was wholly absent, could be readily identified. It follows that financial gain is no more an inherent characteristic of the offence than it is an element of the offence. His Honour had earlier remarked on the necessity to be careful to separate, and identify a difference between the concept of something which was an element of the offence and that which may ‘possibly be described as its motive or its inspiration’.”

167. It is not correct to regard the taking of $2,000 as either an element of the offence of robbery in company, or else as an inherent aspect of the offence. First, there is no necessity for any financial gain to be part of a robbery in company. Secondly, in this case the Crown made it clear to the jury and the primary Judge that it was not alleging that the taking of the $2,000 was the subject of any charge. A fortiori, that it was an element or inherent aspect of the offence for which the applicants were convicted.

168. I am persuaded that it was erroneous for the primary Judge to describe the taking of the $2,000 as an inherent aspect of the offence. In so doing, it is inevitable that the primary Judge, properly understood, and took into account the taking of the $2,000 as being relevant to the objective seriousness of the offence. When, in her Remarks on Sentence, the primary Judge accepted the thrust of the Crown’s submissions relevant to objective seriousness, she was having regard to the fact that the card had been during after the robbery to remove $2,000 from the victim’s account in circumstances where the Crown’s case did not include that fact. I am persuaded that in this respect there is error here.

169. Since I have concluded that the primary judge made an error of law in relation to the two grounds identified above, it is not necessary for me to consider the remaining grounds of appeal.

Exercise of the Sentencing Discretion Afresh

170. It is necessary for the Court to exercise afresh discretionary exercise involved in sentencing each of the applicants.

171. In the event that this Court was to do so, there was tendered on behalf of each applicant a number of certificates evidencing the successful conclusion of courses whilst each has been in custody.

172. This additional material demonstrated that each of the applicants have continued their progress towards rehabilitation whilst in custody, and have continued to demonstrate the good character demonstrated by them prior to the subject offence. To that extent, they add to the subjective case on behalf of each applicant as found by the primary Judge.

173. Counsel for each of the applicants submitted that sentences of significantly less severity than those imposed by the primary Judge ought be imposed by this Court when exercising its sentencing discretion. Counsel for Ms Lv went as far as to submit that it would not be appropriate for a sentence imposed upon his client to extend past the time which she has already spent in custody.

174. When considering the objective seriousness of the offence, the primary Judge held that the matter fell within the middle of the range for similar offences of robbery in company. She found that Liu played a greater role than Ms Lv, although she found that Ms Lv was a willing and active participant and that she fully and equally participated in the robbery from the point of time that the victim entered the car, if not before.

175. I do not take into account any finding or suggestion that the victim was a vulnerable person, nor do I consider it necessary to have regard to the fact that $2,000 was removed from the victim’s account in the course of the robbery.

176. In my assessment of the objective seriousness of the facts, I too would conclude that the matter falls into the middle of the range of like offences of robbery in company. It was planned. Mr Zhou was enlisted to provide physical assistance when required, and he did so. The circumstances of, and surrounding, the robbery indicated that it occurred over a significant period of time and involved, as the trial Judge found, the use of threats of physical violence and physical violence itself.

177. Both applicants have strong subjective cases. They were both young, they were people of good character prior to this offence. They were married and had a good positive relationship. Both were well educated, Ms Lv had obtained a university degree in nursing and was a valued employee. As the primary Judge said of Ms Lv, she was an intelligent, articulate although somewhat shy individual.

178. I am also satisfied, as was the primary Judge, that each of the applicants has good prospects of rehabilitation and that each of them is unlikely to reoffend.

179. I do not regard the sentence in Mr Zhao’s case as compelling this Court on a resentence to impose a sentence the equivalent of that imposed in his case. Although he was involved in the robbery, his subjective circumstances and the role which he played in the robbery, in particular having regard to his limited intellectual capacity, are all sufficiently different from the involvement of each of the applicants as to indicate that it would not be appropriate to regard the sentence in that case as determining the sentence in this case.

180. I agree with her Honour’s categorisation that there are significant distinctions between the sentence imposed for Mr Zhao, and the factors which underlined it, and those present with respect to each of these applicants.

181. The nature of the offence of which the applicants were convicted is such as to require emphasis on the need for general deterrence. The maximum penalty of 20 years imprisonment is a guideline to which regard must be had. It indicates the seriousness with which the legislature regards an offence of this kind. I also have regard to the guidelines in Henry, although it is necessary to make adjustments having regard to the particular circumstances of this case in considering them.

182. Taking all of these matters into account, I have reached the conclusion in respect of each applicant that no lesser sentence is warranted in law.

183. In those circumstances I propose the following orders:

1. Leave to appeal against sentence be granted to each applicant.

2. The appeal of Dino Shihang Liu against conviction and sentence be dismissed.

3. The appeal by Yaxuan Lv against sentence be dismissed.

184. BELLEW J: I agree with Garling J.

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Decision last updated: 01 August 2017