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[2024] ACTCA 23
appellant. Appeal allowed. The sentences imposed on 18 July 2023 were quashed and replaced by the sentences set out in [47] and [171]. The total effective sentence was stated to be 5 years, 5 months and 20...
The Court of Appeal split on whether the sentencing judge had to find that the massage therapist acted for sexual gratification. The majority considered that the repeated conduct against six clients could have no other reasonable explanation, and that motive affected the seriousness of the offending. It also concluded that the original sentence was inadequate and that the respondent's certain deportation did not justify leaving it unchanged. The respondent was resentenced to a longer overall term with a three-year non-parole period. Loukas-Karlsson J would have dismissed the appeal, considering that the motive was properly left uncertain and the sentence was not shown to be manifestly inadequate.
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2,431 words · generated 08/10/2026
The ACT Court of Appeal considered a prosecution appeal against sentences imposed on W Liu, a traditional Chinese massage therapist who had pleaded guilty to eight sexual offences against six female clients. The offences occurred during massages at a clinic in Phillip, ACT, between late 2019 and October 2021. The clients were alone with their masseur in curtained treatment areas, semi-naked and lying on massage tables ([57]-[59]).
3 cited instruments linked from this judgment.
The counts comprised three offences of sexual intercourse without consent, constituted by digital penetration, and five acts of indecency without consent. Some counts were rolled up, meaning each covered repeated acts rather than only one incident. The offending included genital touching and digital penetration, and, in count 5, the therapist pressing his erect penis against a client's arm on three occasions ([62], [67], [72]-[74], [79]-[80], [82]-[84], [87]-[92]).
On 18 July 2023, Mossop J imposed a total sentence of 3 years, 5 months and 22 days. The sentence was to be suspended after the respondent had served 16 months, on entry into a good behaviour order. The order included 200 hours of community service ([50], [53]). The judge found neither that the offending was sexually motivated beyond reasonable doubt nor that it was committed under the offender's proposed mistaken business rationale on the balance of probabilities. The motive was therefore left uncertain, as Loukas-Karlsson J records from the sentencing reasons ([100], [106]).
The prosecution appealed, alleging error about motive and manifest inadequacy in the individual sentences, the aggregate sentence and the period of actual custody ([54]). The Court divided. McCallum CJ and Taylor J found specific error on the motive issue, declined to exercise the residual discretion, allowed the appeal and resentenced the offender. Loukas-Karlsson J would have dismissed the appeal ([1]-[2], [47]-[48], [55], [170]-[171]).
The final orders imposed individual sentences for all eight counts, with dates of commencement and expiry stated in [47] and [171]. The Court stated that the total effective sentence was 5 years, 5 months and 20 days, and fixed a non-parole period of three years, commencing 16 July 2023 and ending 15 July 2026 ([45]-[47]).
The decisive disagreement concerned whether the sentencing judge could leave motive uncertain. The majority accepted that sentencing is not a binary exercise: failure to prove a mitigating explanation does not automatically prove a competing aggravating fact ([4]). It nevertheless concluded that, on this record, sexual gratification was proved beyond reasonable doubt.
The majority identified the conduct's sexual character, its repetition against six clients over almost two years, the insertion of fingers into clients' vaginas, and the respondent's conduct after some clients reacted or complained ([5]-[13]). It regarded the pressing of an erect penis against a client as unequivocally sexual and incapable of another explanation ([10]). It also considered the rejected account that the respondent had thought sexual services might attract clients or improve his income. In the majority's view, that account recognised the sexual character of the conduct, and its rejection left no room for uncertainty about the respondent's purpose ([15]-[16]).
The majority's conclusion was case-specific. It did not state that every sexual offence must be sexually motivated. It expressly acknowledged that the sexual nature of an offence does not invariably establish sexual motive, but found that these facts permitted no other reasonable inference ([5], [14], [16], [19]). It treated sexual motivation as aggravating because the sentencing judge had not made that finding and had consequently sentenced on a more favourable basis ([17]).
Loukas-Karlsson J's dissent emphasised the different proof standards for aggravating and mitigating facts and the possibility that neither competing explanation is proved. Her Honour considered that the sentencing judge had properly applied those standards and that motive could remain uncertain ([101]-[105], [117]-[128]). She also reasoned that the objective seriousness would not differ appreciably whether the conduct was sexually motivated, reflected the proposed business rationale, or remained unexplained ([127]). That was not the Court's operative conclusion.
After finding error, the majority considered whether to leave the sentence undisturbed under the residual discretion. It discussed the limiting purpose of Crown appeals, namely to guide sentencing courts rather than generally correct every error ([22]-[24]). Deportation was certain, but the respondent was liable to deportation as an unlawful non-citizen independently of these offences. His wife and child had already returned to China ([25]-[30]). The majority also considered that community service and the good-behaviour condition attached to the suspended portion of the original sentence would not be experienced after deportation ([31]). Those matters did not outweigh the seriousness of the offending and the need to promote adequate sentencing standards ([32]).
In resentencing, the majority treated the offences as repeated breaches of therapeutic trust and exploitation of clients' vulnerability. It distinguished the seriousness of the counts, treating the rolled-up sexual-intercourse counts as more serious than count 1 and identifying counts 2 and 6 as the more serious indecency counts ([33]-[35]). It also considered the respondent's remorse, lack of criminal history, family circumstances and prospects of rehabilitation, while finding specific deterrence relevant in light of sexual motivation ([38]-[40]). The majority concluded that the substantial concurrency adopted below did not sufficiently reflect the separate offending against six victims. It rejected a suspended sentence as an appropriate outcome ([41]-[43]).
The decision applies established sentencing and appeal principles to a particular factual dispute; the judgment does not announce a general new statutory test. Before the appeal, the sentencing judge had treated the motive as uncertain because the prosecution had not proved sexual motivation beyond reasonable doubt and the respondent had not proved his proposed alternative explanation on the balance of probabilities ([100]-[106]).
The majority's approach illustrates the distinction between those standards. Facts adverse to an offender must be established beyond reasonable doubt, while a matter relied on in mitigation must be established on the balance of probabilities. It accepted that a sentencing court may be unable to resolve all relevant facts and may have to proceed without finding either competing account proved ([4], [18], adopting the discussion of Filippou v The Queen by Loukas-Karlsson J at [102]-[104]). The majority's intervention did not displace that general proposition. It held that the evidence in this particular case was so strong that the judge could not reasonably remain unsatisfied beyond reasonable doubt ([14], [19]).
On Crown appeals, the judgment reiterates that proof of error is not the end of the inquiry. The prosecution must also negate a reason for the residual discretion not to intervene ([22]-[24], [30]-[32]). The majority considered deportation and the practical effect of the original sentence, but concluded that those considerations did not justify leaving the sentence in place. Its discussion does not make deportation irrelevant in all cases: it expressly left open that certain deportation might support the residual discretion in another case ([30]).
The resentencing also demonstrates the interaction between totality and the separate criminality of multiple offences. The Court accepted that some concurrency was necessary, but concluded that significant concurrency did not adequately reflect offending against six victims over time ([41]-[42]). It treated totality as requiring an overall just and appropriate sentence, rather than mechanically applying a uniform concurrency approach.
The decision should not be read as establishing a fixed tariff for massage-related sexual offending. The Court considered the relevant circumstances, the maximum penalties and sentencing authorities, and stated that the result depended on the facts and individual circumstances ([36]-[40]). Loukas-Karlsson J's reasons additionally caution against treating individual sentences in other cases as binding benchmarks ([141]-[155]).
At [16], the majority said: “The only reasonable inference is that the offender engaged in conduct that was unequivocally sexual, not because his clients wanted it but for his own sexual gratification.” In plain English, the majority did not regard the prosecution's case as merely more likely than the alternatives. It considered the evidence strong enough to exclude any reasonable competing explanation.
At [19], the majority said it was “not open to the sentencing judge not to be satisfied beyond reasonable doubt” of sexual motivation. This is the critical appellate conclusion. The question was not simply what the appeal judges themselves would have found; the majority concluded that the sentencing judge's contrary state of satisfaction was not reasonably available on the evidence.
At [17], the majority explained that the finding mattered because the respondent had been sentenced on a more favourable basis. In plain English, leaving motive unresolved removed a potentially aggravating feature from the sentencing assessment.
At [24], the Court stated that it was for the prosecution to negate a reason to exercise the residual discretion against intervention. The practical meaning is that even after establishing error, the prosecution still had to address why the appeal court should leave the original sentence undisturbed.
At [31], the majority identified the consequences of deportation for the original sentence. It considered that community service would remain outstanding and that the respondent would not be subject to the contemplated good-behaviour period. In plain English, the majority viewed parts of the original sentence as unlikely to have any practical effect after release.
At [42], the majority said that “the criminality of one offence cannot encompass the criminality of the other offences.” This explains why the Court considered that greater accumulation was needed: offending against separate victims involved additional criminality not captured by treating the incidents as substantially interchangeable.
At [168], Loukas-Karlsson J said: “Leniency is not a sentencing crime. A lenient sentence is not perforce a manifestly inadequate sentence.” In plain English, her Honour considered that a sentence is not appealably wrong just because an appeal court might have imposed more. The passage belongs to the dissent, and should not be mistaken for the majority's conclusion on the appeal.
The decision is most directly relevant where a sentencing court must assess motive as a disputed aggravating fact, and the prosecution appeals after the court leaves that motive unresolved. The majority's reasoning depended on unusually strong and cumulative features in this record: repeated genital touching and digital penetration; six victims; a course of offending over almost two years; conduct that the Court regarded as unequivocally sexual; and the rejection of the respondent's explanation ([5]-[16]).
The case also concerns a breach of professional or therapeutic trust. The clients attended for treatment and were alone with the therapist during massages. The majority regarded the offender as having exploited the access and vulnerability created by that relationship ([33]). The decision may therefore be relevant to sentencing appeals involving sexual conduct carried out under the guise of treatment, but its reasoning does not establish that all conduct in that setting must be assigned the same motive or seriousness.
The appeal also involved a prosecution challenge to concurrency and a suspended sentence across multiple offences and victims. The majority's analysis may be relevant where separate episodes have distinct victims and the appellant argues that the overall sentence does not reflect their cumulative criminality ([41]-[43]). The judgment does not say that concurrency is generally inappropriate. It accepts that some concurrency is required and assesses the proper structure against these offences and their duration ([42]).
Deportation was another fact-specific issue. The respondent was certain to be deported, but that outcome was independent of the sentences under appeal, and his family had already returned to China ([25]-[31]). The Court left open that deportation might support the residual discretion in a different case ([30]). The precedent therefore calls for attention to the cause, certainty and practical consequences of deportation, rather than treating it as automatically decisive.
The material supplied is the judgment itself, dated 1 August 2024. It does not provide decisions made after that date, so the later treatment of DPP v Liu cannot be determined from this source. No subsequent court's application, distinction or criticism of this case should be inferred from the judgment's list of authorities.
The decision itself refers to authorities available to the Court in 2024. For Crown appeals and the residual discretion, it relies on Green v The Queen; Quinn v The Queen and the ACT Court of Appeal's decision in R v Ralston ([22]-[24]). It discusses Hussian and Afford as examples in which deportation was considered but did not prevent appellate intervention ([28]-[30]). Those cases are authorities considered by Liu, not later treatment of Liu.
For totality, the majority cites O’Brien v The Queen and refers to R v Toumo'ua and Laipato v The Queen in relation to the utility of range descriptions ([36], [41]). Loukas-Karlsson J discusses R v DK and R v Meyboom on concurrency and the totality principle ([165]). These citations show the legal framework the Court used; they do not establish how later courts have applied Liu.
First, the judgment does not resolve the broader question of what threshold governs appellate intervention where a sentencing judge makes an allegedly erroneous factual finding. McCallum CJ and Taylor J said it was unnecessary to resolve the different approaches discussed in Stott v The Queen, because they considered the higher test satisfied on these facts ([18]). Loukas-Karlsson J discussed the competing formulations but found no error under either ([120]-[121]).
Second, the case does not establish that sexual motivation will always aggravate objective seriousness by a fixed amount. The majority found it aggravating here and resentenced on that basis ([17], [33]). The dissent considered motive made no appreciable difference to objective seriousness in this case ([127]). The extent of any sentencing effect will therefore remain dependent on the circumstances and the sentencing assessment.
Third, the judgment does not specify when certainty of deportation will justify exercising the residual discretion in favour of an offender. It says that deportation could be relevant, while finding the particular circumstances insufficient ([28]-[32]). It leaves room for future consideration of cases where deportation is caused by the sentence, family separation remains, or the practical effect of the original sentence differs.
Fourth, the reasons do not prescribe a formula for concurrency across multiple offences or for fixing a non-parole period. The majority required the sentence to reflect additional criminality, but accepted some concurrency ([41]-[44]). It also stated that there is no mathematical formula for the non-parole period ([44]).
Finally, the source cannot show how later courts have interpreted the decision or whether the reasoning has been extended beyond its facts. Any account of subsequent treatment would require judgments not included in the material supplied.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: DPP v Liu Citation: [2024] ACTCA 23 Hearing Date: 14 February 2024 Decision Date: 1 August 2024 Before: McCallum CJ, Loukas-Karlsson and Taylor JJ
Decision: (1) The appeal is allowed.
(2) The sentences imposed by Mossop J on 18 July 2023 are quashed and instead the offender is sentenced as follows: a. For the offence of sexual intercourse without consent in count 1 (CC2021/11084), the offender is sentenced to 18 months and 20 days of imprisonment commencing on 16 July 2023 and ending on 4 February 2025. b. For the offence of an act of indecency without consent in count 2 (CC2021/11086), the offender is sentenced to 13 months and 15 days of imprisonment commencing on 21 June 2024 and ending on 4 August 2025. c. For the offence of sexual intercourse without consent in count 4 (CC2021/10500), the offender is sentenced to 22 months of imprisonment commencing on 5 August 2024 and ending on 4 June 2026. d. For the offence of an act of indecency without consent in count 3 (CC2021/11079), the offender is sentenced to 6 months and 20 days of imprisonment commencing on 16 February 2026 and ending on 4 September 2026. e. For the offence of an act of indecency without consent in count 5 (CC2021/11082), the offender is sentenced to 8 months and 15 days of imprisonment commencing on 21 May 2026 and ending on 4 February 2027. f. For the offence of an act of indecency without consent in count 6 (CC2021/11080), the offender is sentenced to 15 months and 10 days of imprisonment commencing on 25 June 2026 and ending on 4 October 2027. g. For the offence of sexual intercourse without consent in count 8 (CC2021/10499), the offender is sentenced to 25 months and 15 days of imprisonment commencing on 20 August 2026 and ending on 4 October 2028. h. For the offence of an act of indecency without consent in count 7 (CC2021/11076), the offender is sentenced to 6 months and 20 days of imprisonment commencing on 16 June 2028 and ending on 4 January 2029. (3) The non-parole period is 3 years commencing on 16 July 2023 and ending on 15 July 2026.
Catchwords: APPEAL – CRIMINAL LAW – Prosecution appeal against sentence – sexual intercourse without consent – act of indecency – sexual offending by massage therapist – whether sentencing judge erred in not being satisfied beyond reasonable doubt of the offender’s motive – specific error established – offender was motivated by sexual gratification – residual discretion not exercised – appeal allowed – offender resentenced Legislation Cited: Crimes Act 1900 (ACT) ss 54(1), 60(1) Crimes Act 1900 (NSW) ss 61I, 61J, 61KC, 61L, 61M, 61N(2), 61P Crimes (Sentencing) Act 2005 (ACT) s 33(1)(o) Criminal Appeal Act 1912 (NSW) s 5D Supreme Court Act 1933 (ACT) s 37E(2)(a) Cases Cited: Awraham v The Queen [2021] NSWCCA 241 Baines v The Queen [2016] NSWCCA 132 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 Cheung v The Queen [2001] HCA 67; 209 CLR 1 DPP (Cth) v Afford [2017] VSCA 201 DPP (Vic) v Drake [2019] VSCA 293 DPP (Vic) v Karazisis [2010] VSCA 350; 31 VR 634 DPP (Vic) v Smith [2022] VSCA 4 DPP v Krutsky (No 2) [2024] ACTSC 120 DPP v Padreny [2024] ACTCA 4 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312; 198 A Crim R 565 House v The King (1936) 55 CLR 499 Jiang v The Queen [2010] NSWCCA 277 Jung v The Queen [2017] NSWCCA 24 Lacey v Attorney-General (Qld) [2011] HCA 10 Laipato v The Queen [2020] ACTCA 35 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Markarian v the Queen [2005] HCA 25; 228 CLR 357 Nona v The Queen; R v Nona [2015] ACTCA 34 O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Andries Dijkstra [2019] NSWDC 776 R v Azzi [2004] NSWCCA 398 R v BJW [2000] NSWCCA 60; 112 A Crim R 1 R v Bates [2007] NSWCCA 297; 68 ATR 265 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v DK [2016] ACTCA 7 R v Douglas [2021] NSWDC 646 R v Engert (1995) 84 A Crim R 67 R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Horsfall [2023] NSWDC 269 R v Ibrahim [2021] NSWCCA 296 R v Kennedy [2000] NSWCCA 527 R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unrep) R v Liu [2023] ACTSC 188 R v Meyboom [2012] ACTCA 48 R v Miller [2019] ACTCA 25 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pham [2015] HCA 39; 256 CLR 550 R v Qin; Qin v The Queen [2008] NSWCCA 189 R v Qin [2008] NSWDC 41; 7 DCLR (NSW) 108 R v Ralston [2020] ACTCA 47; 285 A Crim R 159 R v Ruwhiu [2023] ACTCA 18 R v Shen [2019] NSWDC 499 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Walker [2023] NSWCCA 219 R v Woodland [2007] NSWCCA 29; 48 MVR 360 Salmond v The Queen [2010] NSWCCA 141 Stott v The Queen [2021] ACTCA 18 The State of Western Australia v Hussian [2020] WASCA 186 Veen v The Queen (No 2) (1988) 164 CLR 465 Wong v The Queen [2001] HCA 64; 207 CLR 584 Parties: Director of Public Prosecutions (Appellant) W Liu (Respondent) Representation: Counsel A Williamson SC (Appellant) N Deakes (Respondent) Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Respondent) File Number: ACTCA 32 of 2023
Decision Under Appeal: Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 18 July 2023 Case Title: R v Liu Citation: [2023] ACTSC 188 McCALLUM CJ AND TAYLOR J:
We have had the benefit of reading the judgment of Loukas-Karlsson J in draft. We respectfully disagree with her Honour’s conclusion concerning ground one. In our respectful opinion, the only reasonable inference from the facts on which the offender was sentenced is that his offending was sexually motivated. The sentencing judge erred in not being satisfied of that fact beyond reasonable doubt.
The comprehensive discussion of the relevant facts and the applicable legal principles set out in the judgment of Loukas-Karlsson J, which we gratefully adopt, permits us to state our reasons relatively briefly.
As her Honour has noted, the sentencing judge was not satisfied on the balance of probabilities of the offender’s bizarre explanation that his offending was motivated by an understanding that the provision of sexual services during therapeutic massage might prove lucrative; but nor was his Honour satisfied beyond reasonable doubt that the offender’s conduct was sexually motivated. The offender was accordingly left to be sentenced on the basis that the motivation for the conduct was “uncertain”: R v Liu [2023] ACTSC 188 at [28].
It may be accepted that, in principle, the choice between a mitigating factor and an aggravating factor is not binary. As Loukas-Karlsson J has observed, the absence of proof on the balance of probabilities of a mitigating factor does not of itself compel the acceptance of proof beyond reasonable doubt of an alternative or competing aggravating factor. It is frequently the case that neither is established.
In the present case, however, the evidence that the offending was sexually motivated was overwhelming. The prosecution identified six factors to support the inference that the offender was motivated by a desire for sexual gratification. The first is that the conduct was inherently sexual. That the offender’s conduct was inherently sexual cannot be doubted. In addressing that issue, Loukas-Karlsson J has emphasised the prosecution’s concession “that the sexual nature of an offence does not mean that an offender’s motivation is invariably sexual”. However, as we explain below, the offender’s conduct in the present case admits of no other inference or interpretation.
The second point made by the prosecution is that the conduct was not isolated. Indeed, the sexual conduct persisted over almost two years and involved six different victims.
The first victim had sought treatment for pain in her neck, shoulder and arm. Her treatment plan was for massage and acupuncture in those areas. During a massage in late November or early December 2019, the offender suggested that he should work on her hips. He moved her legs in such a way as to bring his hand in contact with her groin, put his fingers inside her underpants, touched her clitoris and inserted a finger in her vagina. After the massage, Mr Wang, the owner of the clinic, came in to perform acupuncture on the victim. The offender later checked in with her, asking what she had said to Mr Wang. The obvious inference is that the offender appreciated he had done something that might be a cause for complaint. The victim did not in fact complain until October 2021, when she heard about the case on the radio, but she did not return to the clinic.
Residual discretion
It is, however, necessary to consider whether to exercise the residual discretion to decline to interfere with the sentences imposed. The parties provided supplementary submissions on that issue.
In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [36], the High Court stated that the purpose of Crown appeals under s 5D of the Criminal Appeal Act 1912 (NSW) is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. The Court described that as “a limiting purpose” which “does not extend to the general correction of errors made by sentencing judges” but instead “provides a framework within which to assess the significance of factors relevant to the exercise of the discretion”.
This Court has held that the High Court’s statement as to the “limiting purpose” of Crown appeals is applicable in the Australian Capital Territory, notwithstanding differences between New South Wales and the ACT in their respective statutory rights of appeal: R v Ralston [2020] ACTCA 47; 285 A Crim R 159 at [91] (Murrell CJ, Mossop and Loukas- Karlsson JJ). The Court in Ralston further held at [96] that the limiting purpose “may provide a basis to decline to intervene either by itself or in combination with other discretionary factors”. Relevant discretionary factors include delay, parity, the totality principle, rehabilitation and fault on the part of the Crown: DPP v Karazisis [2010] VSCA 350; 31 VR 634 at [104] (cited in Green at [36]). However, that list is not exhaustive.
It is for the prosecution to negate any reason why the residual discretion not to intervene should be exercised.
The offender relied, as a discretionary factor favouring the exercise of the residual discretion, on the fact that, since being sentenced, he has received notice from Australian Border Force that he is to be taken into immigration detention immediately upon his release from custody for the present offences and deported to China. That is not, as is commonly the case, because he will fail the character test, and so be deported, as a result of the sentences imposed by Mossop J. Rather, it is because, quite apart from the consequences of his commission of the present offences, he is an unlawful non-citizen and is liable to be deported in any event. Deportation is certain and only awaits the conclusion of the custodial portion of the sentences imposed by Mossop J.
The offender acknowledges that the prospect of possible deportation was relied upon as a mitigating factor in the proceedings on sentence, but only on the basis of the probable effect deportation would have on the offender’s family: cf s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT). As the deportation will not be due to the sentences imposed, but would have occurred in any event, that submission appears to have been misconceived.
Be that as it may, the offender relies on two further things that have changed since he was sentenced. One is that he is now certain to be deported, whereas previously that was identified as a possibility that would weigh on his mind. The other is that his wife and child have now returned to China.
Totality and concurrency considerations
The principles in relation to totality considerations are set out in O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26]. The overall sentence imposed must be “just and appropriate” for all of the offences and must not “crush” the offender. The sentencing judge considered that “a significant degree of concurrency” was required to achieve “an overall appropriate sentence”. In our view the extent of concurrency allowed did not pay sufficient regard to the separate nature of the offences and contributed to the inadequacy of the overall sentence imposed.
While some concurrency is required, we do not consider, in light of the period over which the offending occurred and the fact that there were six victims, that “significant” concurrency is warranted. This is a matter where the criminality of one offence cannot encompass the criminality of the other offences. Accordingly, the structure of the sentence must properly reflect the additional criminality involved.
We do not consider that a suspended sentence in view of the seriousness of the offending, or the scope of it, to be a “just and appropriate” outcome in all the circumstances. It follows that a community service work condition cannot be imposed and, in any event, as we have already set out, such a condition could not be completed by the offender.
Accordingly, we must determine the appropriate non-parole period to be imposed. In doing so, we have had regard to observations of this Court in R v Ruwhiu [2023] ACTCA 18 at [112]-[113] that “there is no mathematical formula by which the length of a non-parole period, or its proportion to the head sentence, is fixed” and that “the actual period of full-time imprisonment will often be more important than its mathematical relationship with the head sentence”. As will be seen, the sentences imposed reflect the increased criminality involved in some of the offences. Those offences necessarily see a longer period attributed solely to those offences.
The sentences we would impose appear in the table below: Count Starting Point Sentence Cumulation
1 22 months 18 months 20 days 2 16 months 13 months 15 days 6 months 4 26 months 22 months 10 months 3 8 months 6 months 20 days 3 months 5 10 months 8 months 15 days 5 months 6 18 months 15 months 10 days 8 months 8 30 months 25 months 15 days 12 months
7 8 months 6 months 20 days 3 months
Those sentences give a total effective sentence of imprisonment for 5 years and 5 months and 20 days. We would fix a non-parole period of 3 years.
For those reasons, the orders we propose are: (1) The appeal is allowed. (2) The sentences imposed by Mossop J on 18 July 2023 are quashed and instead the offender is sentenced as follows: (a) For the offence of sexual intercourse without consent in count 1, the offender is sentenced to 18 months and 20 days of imprisonment commencing on 16 July 2023 and ending on 4 February 2025. (b) For the offence of an act of indecency without consent in count 2, the offender is sentenced to 13 months and 15 days of imprisonment commencing on 21 June 2024 and ending on 4 August 2025. (c) For the offence of sexual intercourse without consent in count 4, the offender is sentenced to 22 months of imprisonment commencing on 5 August 2024 and ending on 4 June 2026. (d) For the offence of an act of indecency without consent in count 3, the offender is sentenced to 6 months and 20 days of imprisonment commencing on 16 February 2026 and ending on 4 September 2026. (e) For the offence of an act of indecency without consent in count 5, the offender is sentenced to 8 months and 15 days of imprisonment commencing on 21 May 2026 and ending on 4 February 2027. (f) For the offence of an act of indecency without consent in count 6, the offender is sentenced to 15 months and 10 days of imprisonment commencing on 25 June 2026 and ending on 4 October 2027. (g) For the offence of sexual intercourse without consent in count 8, the offender is sentenced to 25 months and 15 days of imprisonment commencing on 20 August 2026 and ending on 4 October 2028. (h) For the offence of an act of indecency without consent in count 7, the offender is sentenced to 6 months and 20 days of imprisonment commencing on 16 June 2028 and ending on 4 January 2029. (3) The non-parole period is 3 years commencing on 16 July 2023 and ending on 15 July 2026. LOUKAS-KARLSSON J:
Introduction
This is an appeal against the sentence imposed by Mossop J (the sentencing judge). As this is an appeal by the prosecution, I will refer to the appellant as the prosecution for the sake of clarity.
On 24 February 2023, Mr Liu (the respondent), a traditional Chinese massage therapist, pleaded guilty to the following 8 charges. The offences were committed during the course of a number of massages on different female clients: (a) Count 1: Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act) (CC2021/11084) (b) Count 2: Act of indecency without consent, contrary to s 60(1) of the Crimes Act (CC2021/11086); (c) Count 3: Act of indecency without consent, contrary to s 60(1) of the Crimes Act (CC2021/11079); (d) Count 4: Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act (CC2021/10500); (e) Count 5: Act of indecency without consent, contrary to s 60(1) of the Crimes Act (CC2021/11082); (f) Count 6: Act of indecency without consent, contrary to s 60(1) of the Crimes Act (CC2021/11080); (g) Count 7: Act of indecency without consent, contrary to s 60(1) of the Crimes Act (CC2021/11076); and (h) Count 8: Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act (CC2021/10499).
On 18 July 2023, the sentencing judge imposed a sentence of imprisonment totalling three years, five months and 22 days (total sentence) for the 8 counts: R v Liu [2023] ACTSC 188 at [52] (R v Liu). The sentence was backdated to take into account the two days the respondent had spent in custody solely attributable to these offences: R v Liu at [44], [53]. I note that the sentencing judge also considered that a discount of between 10 and 15 percent for the respondent’s plea of guilty was appropriate: R v Liu at [43].
The sentence imposed for each count was summarised in a table at [51] of R v Liu. It is convenient to reproduce that table below: Count Starting Point Sentence Cumulation 1 18 15 months 22 days 2 11 9 months 19 days 4 months 4 20 17 months 15 days 6 months
3 4 3 months 15 days 1 month 5 4 3 months 15 days 1 month 6 12 10 months 15 days 5 months 8 24 21 months 8 months 7 4 3 months 15 days 1 month 41 months 22 days
The sentencing judge retained a “significant degree of concurrency” between the sentences so as “to achieve an overall appropriate sentence”: R v Liu at [50]. This was a straightforward application of the principles of totality.
The total sentence is to be suspended after the respondent has served 16 months of imprisonment, subject to the respondent entering into a good behaviour order: R v Liu at [52]. With the sentence beginning on 16 July 2023, the relevant date of suspension will be 16 November 2024. The conditions of the order require the respondent to perform 200 hours of community service and to obey all reasonable directions of the Director- General: R v Liu at [52], [54](9)(ii).
The prosecution seeks to set aside the overall or aggregate sentence and for this Court to resentence the respondent. The grounds are as follows: (a) the sentencing judge erred in his finding as to the respondent’s motivation for the offending; and (b) the sentence is manifestly inadequate, particularised as follows: (i) the individual sentences are manifestly inadequate; (ii) the aggregate sentence is manifestly inadequate; and (iii) the unsuspended portion of the sentence is manifestly inadequate.
For the following reasons, I have determined that I would dismiss the appeal. At the outset, it is important firstly, to set out the facts (see [56]-[95]) and secondly to briefly set out the well-established principles concerning prosecution sentence appeals (see [96]- [98]), before dealing with the substance of the appeal grounds beginning at [99].
Facts
The facts of the offending were serious and repeated and outlined in detail in [2], and [4]- [23] of R v Liu by the sentencing judge. No issue has been taken on appeal with the facts, as such. The only issues on appeal are the motivation of respondent and the question of manifest inadequacy. It is therefore convenient to refer to the sentencing judge’s summary of the facts as follows.
The respondent was a traditional Chinese massage therapist at the time of the offending. He was working in a clinic in Phillip, ACT that offered massage and acupuncture services. The clinic was managed by the cousin of the respondent’s wife.
The offending involved sexual acts committed upon six female clients of the respondent during the course of a massage. Clients of the clinic would receive treatment in a room containing several massage beds, each partitioned by curtains. During treatment, the clients would be alone with their treating masseur or masseuse.
Each victim was semi-naked and lying on a massage table within one of the cubicles when the offences occurred. A summary of the offences and the aftermath of each offending as it relates to each victim follows. The pseudonyms employed in this judgment also correspond to the pseudonyms used by the sentencing judge. It should also be noted that a number of the offences are “rolled-up” charges.
KT (Count 1)
KT attended the clinic a couple of times a week between 30 August 2019 and December 2019. She was treated by different staff, including by the respondent on at least a dozen occasions.
On either 29 November 2019 or 3 December 2019, KT attended the clinic for a 30-minute massage and followed by acupuncture. While KT was lying on the massage table with only her underwear and covered with a sheet, the respondent indicated that he would be working on her hips on that day.
During the course of the massage, the respondent lifted KT’s left leg over his arm. When the respondent did this, the little finger of one hand was touching KT’s underpants on her groin. The respondent then moved to the right side and placed KT’s right leg over his arm. The respondent fumbled to get his fingers into KT’s underpants, placed two fingers on her clitoris and pressed against it. A third finger went into her vagina, up to the first joint. This constitutes count 1, sexual intercourse without consent.
KT froze and did not say anything. The owner and manager of the clinic, Mr Wang, then entered the cubicle at the end of the massage and commenced acupuncture treatment for KT for 30 minutes. When the respondent re-entered the cubicle to remove the acupuncture needles, he asked KT “What did you say to [Mr Wang]?” KT said “Nothing”.
KT made two more appointments with the clinic after the offence. She did not attend these appointments and never returned to the clinic.
MK (Count 2)
MK attended the clinic in 2017. In November 2019, she recommenced attending the clinic for fertility treatment, attending on 12 occasions between November 2019 and February 2020.
The respondent became her regular masseur. MK would receive acupuncture treatment first, followed by a massage.
On one occasion in February 2020, MK was having a massage wearing her underwear and possibly her blouse. At some point as she was lying face down, the respondent was massaging the back of her leg. The respondent spent a significant amount of time massaging her inner thigh and bikini line. The respondent’s hand reached into her underwear and touched MK’s vulva with his little finger and ring finger. His fingers touched and separated her labia. His fingers did not penetrate MK’s vagina but did touch the inside of her labia. These acts constitute count 2, act of indecency without consent.
MK pulled her legs together quickly in response. She felt shocked and confused at what had occurred.
TI (Counts 3 and 4)
TI attended the clinic on 20 February 2020 for treatment of an existing shoulder and hand injury. Mr Wang recommended a five-week treatment plan involving massage and acupuncture sessions twice a week. That afternoon TI received a massage.
TI returned on 22 February 2020. While lying on the massage table, she was wearing a green singlet and her underpants. During the course of the massage the respondent occasionally touched the outside of her vagina through her underpants. This is count 3, act of indecency.
On 25 February 2020, TI returned for her massage and acupuncture treatment. She was wearing a pink dress and her underwear. She was covered by a sheet. The respondent massaged her right arm and then moved back up, close to her breast, which he then rubbed for approximately three or four minutes in a manner perceived by TI to be sexual. The respondent then massaged down her lower back with the sheet between his hands and her skin.
After the respondent reached TI’s toes, he stopped using the sheet and moved up to her thigh. The respondent bent TI’s knee so that TI’s right hip was off the table, pushed her dress to the top of her buttock and moved his hand over her vagina on her underwear, rubbing the top of her vagina. The respondent pulled her underwear up and used his fingers to rub the top of her vagina, pushing a finger into her vagina several times. The second time, the respondent pushed two fingers into TI’s vagina.
The respondent then went to the left side of the table and continued the massage. When the respondent massaged her upper thigh, he touched the outside of her vagina and inserted his finger into her vagina again. TI did not know how to stop the respondent and remained silent. At some point the respondent put his finger inside her vagina a third time. TI pulled her legs tightly shut so her legs were straight down the table to stop him doing this again.
These three occasions of digital penetration constitute count 4, sexual intercourse without consent.
The respondent completed the massage. Mr Wang subsequently gave TI acupuncture, and TI made a complaint to Mr Wang after the treatment was finished. Mr Wang then had a discussion with the respondent that day about what had occurred. His note of the conversation recorded that the respondent asserted that there may have been some possible confusion on the part of the client and that the respondent did not touch her breast or private parts.
That same evening, TI also made a complaint to her husband that the respondent had put his fingers deep inside her vagina, up to the second finger joint. The next day (26 February 2020), TI made a complaint to police. On 28 February 2020, two police officers attended the clinic and spoke to Mr Wang. Mr Wang identified the respondent as the masseur.
On 3 March 2020, TI received an email from the respondent’s wife (who also worked at the clinic). The email suggested that there may have been some confusion because of the respondent’s language limitations and that he had worked for a long time that day.
DD (Count 5)
DD had attended the clinic for remedial massage and acupuncture since December 2016. In December 2020, she attended the clinic on five or six occasions, and the respondent was responsible for her treatment on a number of these occasions.
On one occasion, during the massage, DD was lying face down and she could feel the respondent press his erect penis against her left upper-arm, near her elbow. She believed this was an accident and pulled her arm close enough so as not to embarrass the respondent. On another occasion, the respondent did the same, pressing his erect penis against her left arm. This occurred a third time on 23 December 2020.
The three occasions on which the respondent’s erect penis was pressed against DD’s arm constitute count 5, an act of indecency.
SD (Count 6)
SD attended the clinic for massages to treat pain in her shoulders, back, lower back and hips. She received a one-hour massage from the respondent on 10 occasions in 2021.
On 5 June 2021, SD was lying face down on the massage table dressed only in her bra and underwear. While massaging her right leg, the fingers of the respondent’s left hand went under her underwear and onto her genitals. One finger moved directly to her clitoris and the respondent commenced rubbing it. The respondent then used two fingers to rub her clitoris. The respondent rubbed it at least five times before SD pulled her legs together to stop him.
While massaging her left leg the respondent used two fingers from his right hand to push through her underwear and touch her clitoris. She put her legs together to stop him. The massage session continued and at the conclusion she did not book another appointment.
The touching of SD’s clitoris while massaging her right and left legs constitute count 6, an act of indecency.
LS (Counts 7 and 8)
LS attended the clinic to receive treatment for a neck injury. She first attended on 24 September 2021 and attended again on 1 October 2021.
On 8 October 2021, during the course of massaging her right leg, the respondent’s thumb “nudged the opening to her vagina fleetingly” outside her underwear. LS thought it was an accident. However, the respondent then did the same thing when massaging her left leg. These events constitute count 7, act of indecency.
On 15 October 2021, LS attended the clinic again. When massaging her upper-right thigh, the respondent touched the top of her vagina over her underwear. The respondent then put his finger under her underwear into LS’ vagina and wiggled his finger.
LS was in shock and lay frozen on the massage table.
The respondent did the same when he was massaging her left leg.
The respondent then asked LS to roll onto her back and he commenced rubbing his fingers on her forehead. LS could feel the fluids from her vagina on her forehead and felt disgusted. The respondent moved down to massage her stomach. The respondent pulled her knees up and separated her legs. The respondent moved one hand under her underwear, placed a finger in her vagina and wiggled it vigorously. The respondent then removed it before inserting two fingers into her vagina and moving them vigorously backwards and forwards for about 30 seconds.
LS was building up the courage to scream when the respondent removed his fingers. She remained frozen in fear.
The occasions of digital penetration of LS’ vagina constitute count 8, sexual intercourse without consent.
LS sent a message to one of the owners of the business via LinkedIn the next day, outlining her complaint in broad terms. The sentencing judge observed that although not stated in the Agreed Statement of Facts, it appears that LS made a complaint to the police as they attended the premises on 21 October 2021 and enquired about the booking with LS on 15 October 2021: R v Liu at [23].
The respondent was not at work. Police then attended the respondent’s residence and arrested him for sexual assault on TI and LS. He was granted bail the next day.
KT, MK, DD and SD then contacted police after hearing reports of the respondent’s arrest.
General principles concerning prosecution sentence appeals
This Court has jurisdiction pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT). The principles applicable to a sentencing appeal are well established. Criminal sentencing is a discretionary decision. This appeal stands to be decided on the application of principles stated in House v The King (1936) 55 CLR 499 at 504-505 (House v The King). That is, whether a specific error has been made in the exercise of the discretion (House v The King at 505) or that the sentence is “unreasonable or plainly unjust” such that a court of appeal may infer that there has been a failure of the sentencing judge to properly exercise the sentencing discretion in some way: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [22] (Gleeson CJ and Hayne J) (Dinsdale); Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] (Gaudron, Gummow and Hayne JJ) (Wong); Hili v The Queen [2010] HCA 45; 242 CLR 520 at [58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (Hili).
In a prosecution appeal, the prosecution must both demonstrate error and negate any reason why the residual discretion not to interfere with the sentence should be exercised: see CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 at [34] (French CJ and Gageler J), [60] (Kiefel, Bell and Keane JJ); R v Nicholas; R v Palmer [2019] ACTCA 36 at [115]-[118] (Nicholas). The injunction against “tinkering” of sentences is also enlivened in a prosecution appeal: Dinsdale at [62] (Kirby J); R v Woodland [2007] NSWCCA 29; 48 MVR 360 at [53] (Simpson J); Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312; 198 A Crim R 565 at [48] (Basten JA).
In assessing manifest inadequacy, an appellate court must not substitute its own opinion for that of a sentencing judge. This is basic; the legal test is not simply whether an appeal court would have given a higher sentence: see Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15] and DPP (Vic) v Drake [2019] VSCA 293 at [29]. That is not the test. That is not the test for the reason that a mere difference of sentencing opinion on the part of a court of appeal compared with the judge at first instance does not of itself ground a successful appeal. It bears repeating that there is no single “correct” sentence. It is well established that judges at first instance must be allowed as much flexibility in sentencing as is possible, while taking into account and being in accordance with consistency of approach and application of principle: see Markarian v the Queen [2005] HCA 25; 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ) and Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [46]. See also DPP v Padreny [2024] ACTCA 4 at [28]-[29]. The rationale behind this approach is that sentencing must be individual. As Mahoney ACJ stated in R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unrep), “if justice is not individual, it is nothing”. Individualised justice is a basic tenet of our criminal law.
Ground 1: Was there an error concerning motivation in this case?
At the sentencing hearing, the prosecution submitted that the offending was sexually motivated. The respondent’s case was that he was motivated by a “misguided understanding that by providing sexual services he may improve his earning capacity and hence address the difficult financial situation he was facing”: R v Liu at [25].
The sentencing judge was not satisfied of either the prosecution’s case nor of the respondent’s case to the requisite standard of proof: R v Liu at [27]. Ultimately, this left “the motivation or the combination of motivations for the offending uncertain” to the sentencing judge: R v Liu at [28].
Before dealing with the prosecution’s submissions concerning motivation, it is important to observe the following well-established, unexceptional and relevant propositions: 1. The High Court in R v Olbrich [1999] HCA 54; 199 CLR 270 (Olbrich) made it clear that a sentencing judge may not take facts into account in a way that is adverse to the interests of an offender unless the facts have been established beyond reasonable doubt: at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). 2. In Olbrich, the High Court also made it clear that if there are circumstances which the sentencing judge proposes to take into account in mitigation the evidential standard is the balance of probabilities: at [27].
Nevertheless, sentencing is not binary. It is on occasion not possible for the sentencing judge to determine to the requisite standard all matters that may be relevant. In this context, it is important to refer to the High Court decision of Filippou v The Queen [2015] HCA 29; 256 CLR 47. Indeed, it is worthwhile to quote at some length the High Court on this topic (French CJ, Bell, Keane and Nettle JJ): 69. …In a case like this, the choice is not between absence of proof beyond reasonable doubt of an aggravating circumstance and proof on the balance of probabilities of a mitigating circumstance, but rather between absence of proof beyond reasonable doubt of an aggravating circumstance and absence of proof on the balance of probabilities of a mitigating circumstance. 70. Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard… … 72. … Obviously, it is undesirable that a judge should be required to sentence an offender without knowing all of the relevant facts and circumstances of the offending. Hence, at one level, the idea of making an assumption in favour of an offender in relation to facts and circumstances which are unknown to the court has a deal to commend it. But, as against that, the requirements of proof laid down in Olbrich are informed by principles of fairness which would not be served by making assumptions that could lead to an offender being sentenced on too favourable a basis. It is preferable to recognise that as a consequence of the rules of proof which those principles inform there will be some few cases, of which this is one, where an offender must be sentenced without the judge having a complete knowledge of what is relevant. For the reasons explained in [Weininger v The Queen [2003] HCA 14; 212 CLR 629], justice is likely to be better served if that approach is adhered to. (emphasis added)
Conclusion: no error in relation to motivation on the part of the sentencing judge
I have considered all the evidence and in particular the cumulative matters addressed in submissions outlined above. In my view, there was certainly sufficient evidence for the sentencing judge to be persuaded on the balance of probabilities that the motivation was sexual. Nevertheless, the test for the prosecution is not balance of probabilities. It is proof beyond reasonable doubt.
In my view, there was no error in the approach of the sentencing judge. It is necessary to quote at some length what was stated in the sentencing reasons by the sentencing judge in relation to objective seriousness and the issue of motivation: 25․ The principal issue in contention at the sentencing hearing was whether or not the offending was sexually motivated (as the prosecution contended) or (as the offender contended) motivated by a misguided understanding that by providing sexual services he may improve his earning capacity and hence address the difficult financial circumstances he was facing. The submissions on behalf of the offender were put on the basis that an intention to provide sexual services to improve his income would reduce the seriousness of his offending. There are two difficulties with this submission. First, the pleas of guilty involve acceptance that the conduct was, at least, reckless as to the consent of the victims. Recklessness as to consent is inconsistent with a characterisation of the conduct as being a misguided business strategy being a mitigating factor. That is, he would be committing the acts knowing of the risk that they were non-consensual in order to pursue the possibility that they were or would be treated as consensual in order to improve his financial prospects. Second, providing sexual services as a misguided business strategy would indicate that the offending was premeditated, in the sense of being a deliberate course of conduct engaged in for a financial reason. That might tend to make it more serious offending. 26. On the other hand, if the offending was sexually motivated then it might be simply opportunistic, albeit repeated. It is not obvious that this would necessarily be a more serious form of offending. Clearly the existence of a sexual motivation would be relevant to the prospects of rehabilitation, but that is a matter I address below. 27. Bearing in mind the respective onuses of proof as described in R v Olbrich [1999] HCA 54; 199 CLR 270 at [27]: (a) I am not satisfied beyond reasonable doubt that the offending was sexually motivated; and (b) I am not satisfied on the balance of probabilities that the offending was engaged in under a mistaken belief that it was consensual or as a means of improving the offender’s financial circumstances. 28․ That leaves the motivation or the combination of motivations for the offending uncertain. 29. The reasons why I am not satisfied that the offending was engaged in under a mistaken belief that it was consensual or as a means of improving his financial circumstances are: (a) it is inconsistent with the response of some of the victims to the offending conduct, for example, closing their legs so as to prevent him from continuing and the absence of any indication that the victims consented; (b) it is inconsistent with the making of a complaint by TI and his discussion of that complaint with Mr Wang; (c) evidence was not given on oath by the offender of his belief in this rationale and the offender has previously given self-serving explanations of his conduct to Mr Wang and to the police; and (d) there is a motivation on his part to explain his conduct in this way, even if not true, because it would be a more acceptable rationale to explain his conduct to his wife and relatives. 30. So far as the counts of sexual intercourse are concerned, each incident was relatively brief and involved digital penetration. There was no violence or coercion. Each victim was in a vulnerable situation and was required to place trust in the offender. Of these charges, count 8 is the more serious, then count 4 and then count 1. Count 8 is in the mid-range of objective seriousness, counts 4 and 1 are below that. 31․ In relation to the acts of indecency, they all occurred in an environment where the victims were required to and did place their trust in the offender. All of the incidents were brief and involved no coercion or threats of violence. The degree of physical contact and the part of the body involved indicates that count 6 is the most serious example of this offence. It is above the mid-range of objective seriousness. After that comes count 2. It is in the mid-range of objective seriousness. It is only less serious than count 6 because the extent of touching is less well-described. Counts 3 and 7 involve touching of the genital area through the underwear. They are in the low to medium range of objective seriousness. Count 5 involves a number of occasions of pressing his erect penis into the victim’s arm. Having regard to the repetition this is still in the low to medium range of objective seriousness. (emphasis added)
Ground 2: Manifest inadequacy
Finding at first instance
As discussed earlier at [53], the sentencing judge imposed a total sentence of three years, five months and 22 days imprisonment, to be suspended after 16 months upon the respondent entering into a good behaviour order: R v Liu at [52].
The sentencing judge noted that the principal issue in contention at the sentencing hearing was the respondent’s motive. The sentencing judge was not satisfied either way as to the respondent’s motive, that is, not satisfied beyond reasonable doubt of a sexual motive nor satisfied on balance of probabilities of the respondent’s would-be professional motive: R v Liu at [27]-[28]. In my view as I have stated above, in dealing with ground one, his Honour was not in error.
As to the overall objective seriousness of the offence, the sentencing judge found that the counts of sexual intercourse without consent (counts 1, 4 and 8) fall within and around the mid-range of objective seriousness. Count 8 is in the mid-range of objective seriousness, while counts 4 and 1 are below that: R v Liu at [30]. The sentencing judge observed that each incident was “relatively brief” and involved digital penetration as to the charges of sexual intercourse without consent, and that each victim “was in a vulnerable situation and was required to place trust in the [respondent]”: R v Liu at [30].
As for the counts of act of indecency, the sentencing judge found that count 6 falls above the mid-range of objective seriousness. Count 2 comes next at mid-range of objective seriousness, because the extent of touching is less well-described than count 6. The sentencing judge found the rest of the counts (count 3, 5 and 7) to be in low to mid-range: R v Liu at [31].
Importantly and relevantly, the sentencing judge accepted that the respondent was genuinely remorseful and that he was unlikely to reoffend: R v Liu at [47]-[48]. The respondent was ultimately described by His Honour as having a “good subjective case”. Nevertheless, the subjective case needed to be balanced against the need to give significant weight to denunciation, general deterrence, and recognition of the harm that the respondent caused to the victims and the community: R v Liu at [49]. Importantly, the sentencing judge expressly discussed the question of balancing the purposes of punishment.
In determining the respondent’s subjective circumstances, the sentencing judge had before him the Respondent’s pre-sentence report of July 2023, the Borenstein report also from July 2023 discussed earlier at [125], a letter from the Respondent to the court and a letter from the Respondent’s wife to consider in determining the respondent’s subjective circumstances: R v Liu at [32].
Finally, the sentencing judge gave reasons for structuring the sentence as he did. As mentioned above at [52], his Honour retained a significant degree of concurrency to achieve an “overall appropriate sentence”: R v Liu at [50]. His Honour accepted that the respondent should receive a suspended sentence after a period in custody given the respondent’s “strong subjective case and the potential difficulties” the respondent might face in obtaining parole: R v Liu at [49]. The factors that might impede parole are described at [49] of R v Liu: (a) the respondent’s difficulties with English; (b) the requirement that the respondent first complete a sex offender course; and (c) the respondent’s lack of stable accommodation.
The prosecution’s submission
The prosecution submitted that the sentence imposed on the respondent was manifestly inadequate in that it was unreasonable or plainly unjust: see House v The King at 505. The particulars all refer to manifest inadequacy as follows: (a) the aggregate sentence is manifestly inadequate; (b) the individual sentences, particularly for counts 2, 4, 6, 8, are manifestly inadequate; and (c) the minimum period of time of actual confinement is manifestly inadequate.
As to the overall or aggregate sentence, the prosecution properly highlighted that care must be taken to avoid the perception that there is a discount for multiple offending when a court is sentencing for multiple, discrete offending separated in time, place and victim: R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [92]. It is undoubtedly correct on the authorities to observe that sentencing judges must be astute to the principles concerning totality and their proper application in each individual case.
The prosecution highlighted that the sentences for count 2 would be “wholly subsumed” by the sentences for counts 1 and 4. In written submissions, the prosecution submitted that the concurrency resulted in a total sentence that failed to “acknowledge the additional and separate harm occasioned to six victims in respect of eight different offences”.
The prosecution also took issue with the sentences imposed for individual counts. In written submissions, the prosecution submitted that the offences were “objectively very serious”. The prosecution made specific submissions concerning each count along with the importance of the maximum penalty.
The prosecution referred to the case of R v Horsfall [2023] NSWDC 269 (Horsfall). In doing so, the prosecution correctly acknowledged that individual sentences are not binding precedent. I note in this regard Wong at [57]; R v Pham [2015] HCA 39; 256 CLR 550 at [29] and DPP v Krutsky (No 2) [2024] ACTSC 120 at [107].
The prosecution submitted that the facts of the offending in Horsfall had parallels to this case. Nevertheless, the prosecution properly acknowledged that there is a difference in maximum penalties for the equivalent NSW offences: cf Crimes Act 1900 (NSW) ss 61I, 61KC. As submitted by counsel for the prosecution, the current maximum penalty for sexual assault in NSW (Crimes Act 1900 (NSW) s 61I) is 14 years’ imprisonment, compared with 12 years’ imprisonment for non-aggravated sexual intercourse without consent in the ACT (Crimes Act s 54(1)). By contrast, the current maximum penalty for non-aggravated act of indecency without consent in the ACT is higher than the NSW-equivalent of non-aggravated sexual touching, being 7 years’ imprisonment compared to 5 years’ imprisonment: cf Crimes Act s 60(1) and Crimes Act 1900 (NSW) s 61KC.
Sutherland DCJ sentenced the offender in Horsfall to an aggregate sentence of 10 years’ imprisonment with a non-parole period of 6 years and 6 months: Horsfall at [295]. The prosecution emphasised that the indicative sentence for sexual touching in Horsfall was 12 to 18 months, and 4 to 4 ¾ years for sexual intercourse without consent: Horsfall at [294].
Conclusion: manifest inadequacy is not established
Manifest inadequacy of a sentence, whether of an individual sentence or of an overall sentence, is revealed by a consideration of all matters relevant to fixing a sentence and by its nature does not allow for a lengthy exposition nor call for a detailed treatise on sentencing generally. As stated by the High Court, reference to the circumstances of the offending and the subjective factors concerning an offender may sufficiently reveal whether a sentence is or is not manifestly inadequate: Hili at [59]-[61] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
It is important to emphasise at this juncture that the discretion to overturn a sentence, as I stated at the outset of this judgment (when discussing general principles concerning prosecution sentencing appeals at [96]-[98]), is not enlivened by a finding that the appeal court would have attributed less weight to subjective matters and more weight to objective factors. The High Court made the following relevant observations underlining the lack of significance of questions of weight on appeal in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (at [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ)): The Director submits that it is implicit in the reasons of the Court of Criminal Appeal that the Court concluded that the sentence for the offence against Mr Gould was manifestly inadequate. The difficulty with acceptance of the submission is that the Court expressly refrained from making that assessment. Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed by [the sentencing judge] and favoured a more severe sentence. The difference between the Court of Criminal Appeal’s assessment of the appropriate sentence and [the sentencing judge] assessment may be explained by saying that [the sentencing judge] gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for [the sentencing judge]. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by [the sentencing judge] was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant’s subjective case. The power could only be engaged if the Court was satisfied that [the sentencing judge]’s discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards... (emphasis added)
It bears repeating that the question for this Court is not whether if this Court were sentencing the respondent this Court would have imposed the same avowedly lenient sentence imposed by the sentencing judge. It is whether the leniency of the sentence demonstrates a latent error in the sentencing discretion.
Orders
I certify that the preceding one-hundred and seventy-one [171] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: 1 August 2024
DPP
Liu [2024] ACTCA 23
(1994) 181 CLR 295
(1936) 55 CLR 499
(1988) 164 CLR 465
(1977) 137 CLR 293
(2013) 248 CLR 483
(2013) 249 CLR 571
(1988) 166 CLR 58
Appeal allowed. The sentences imposed on 18 July 2023 were quashed and replaced by the sentences set out in [47] and [171]. The total effective sentence was stated to be 5 years, 5 months and 20 days, with a non-parole period of 3 years commencing 16 July 2023 and ending 15 July 2026.
The second victim initially attended the clinic to address fatigue and tonsil issues. Some years later, she returned for fertility treatment. Her treatment plan included massage, acupuncture and Chinese herbal medicine. During a massage in February 2020, the offender put his fingers inside her underpants and touched her vulva. When she reacted by pulling her legs together, he apologised. This again indicated the offender’s appreciation that he had done something that might be a cause for complaint. The victim told the receptionist she did not want to be treated by the offender again.
The third victim sought treatment for a shoulder and hand injury. During one massage in February 2020 the offender touched the top of her vagina. She thought it may have been an accident. A week later, he massaged his way up her legs and repeatedly inserted his fingers in her vagina. She complained to Mr Wang and the offender was confronted. He told what must (in light of his plea) have been a lie. His explanation as recorded by Mr Wang was that there “may have been possible confusion of the client, based on mobile phone usage and placement on the massage table using the phone music”. The offender’s wife later sent an email to the victim recording a different but equally implausible explanation, that because of his language limitation and working long hours, “he couldn’t have sufficient communication and explanation of his treatment plan with you” (evidently suggesting that repeated digital penetration of the vagina might sensibly be part of a treatment plan for a shoulder injury).
In December 2020, the fourth victim attended the clinic for remedial massage and acupuncture, only to have the offender on two separate occasions press his erect penis against her body as she lay on the massage table. That was an unequivocal act of sexual gratification. It is incapable of any other explanation. That is the third point made by the prosecution.
The fifth victim attended the clinic for treatment of neck, shoulder, lower back and hip pain. At the beginning of a massage in June 2021, in what could only be construed as a sexual overture, the offender leaned in close to her and rubbed his cheek against hers. While massaging her right leg, he put his fingers inside her underpants and rubbed her clitoris. He did the same on the left side.
The sixth victim sought treatment for neck pain. During one massage in October 2021, while the offender was massaging her right leg, his thumb nudged close to her vagina. The same thing happened on the left side. She thought it may have been accidental. The following week while he was massaging her legs, he inserted his fingers in her vagina. She reported the matter to police.
As already explained, the offender’s responses to the victims from the outset indicate that he knew his conduct was wrong and was unwanted by them. That is the fourth point made by the prosecution. The fifth point is that the offender persisted in the conduct after being warned of the potential consequences, indicating that sexual gratification must have been his motivation. We agree that the offender’s persistence in those circumstances tends to indicate there being a sexual motive.
The most compelling consideration is the unequivocally sexual nature of the conduct. In our assessment, there can be no uncertainty about the offender’s motivation in repeatedly touching the genitals and digitally penetrating the vaginas of his clients.
The offender was interviewed by police about the allegations of the third victim and the sixth victim. He denied any sexual touching and repeated the explanation (now known to be a lie) about the mobile phone, saying that he took it out of his pocket during the massage to play music and that it may have been on the bed between the victim’s calf and her knee. The pleas of guilty were accompanied by a different implausible explanation, being the one the sentencing judge found not proved (that the offender thought providing sexual favours for clients might improve his income).
The sixth point made by the prosecution is that the question of the offender’s motivation must be assessed in light of that explanation and its rejection. We agree. His account is damning. Its implications cannot be ignored in the assessment of the nature of the offences. The offender recognises and admits that his conduct was sexual, the import of his explanation being that he saw a potential market for sexual services among the clientele of a clinic that offered traditional Chinese medicine. The rejection of that explanation leaves no space for uncertainty about the nature of his conduct. There is no suggestion that sexual touching was any part of any treatment plan or necessary for traditional Chinese medicinal purposes. The only reasonable inference is that the offender engaged in conduct that was unequivocally sexual, not because his clients wanted it but for his own sexual gratification.
Justice Loukas-Karlsson holds in any event that a finding of sexual motivation would not affect the assessment of the objective seriousness to any appreciable degree. We respectfully disagree. There is force in the view shared by her Honour and the sentencing judge that the establishment of the so-called mitigating factor of the offender holding an intention to provide sexual services to improve his income would not have reduced the seriousness of his offending. However, the aggravating factor of sexual motivation was not equivocal in that same way. It necessarily followed from the sentencing judge’s findings that the offender was sentenced on a more favourable basis. Having declined to find that the motivation was sexual, the sentencing judge said at [28], “[t]hat leaves the motivation or the combination of motivations for the offending uncertain”. Had his Honour not considered sexual motivation to be an aggravating factor, he would not have applied the requirement in R v Olbrich [1999] HCA 54; 199 CLR 270 at [27] of proof beyond reasonable doubt to that factor.
As noted by Loukas-Karlsson J, there are divided views as to what is required to be established for an alleged factual error to warrant appellate interference with a sentencing decision. Her Honour refers to the decision of this Court (in which she participated) in Stott v The Queen [2021] ACTCA 18. It is not necessary to resolve that issue in the present case. Of the two tests that have been posited in the authorities, the higher test requires an appellant to establish that it was not open to the primary judge to be satisfied beyond reasonable doubt that a fact in issue was proved. The same test is applied where a fact is found not proved; it can be asked in such a case whether it was open to the primary judge not to be satisfied beyond reasonable doubt of a fact in issue: R v Bates [2007] NSWCCA 297; 68 ATR 265 at [17].
We are of the view that it was not open to the sentencing judge not to be satisfied beyond reasonable doubt that the offender’s conduct during therapeutic massages of putting his fingers inside his client’s underpants, touching or rubbing their genitals, in three cases inserting his fingers in the client’s vagina and in one case rubbing his erect penis against a client was motivated by his desire for his own sexual gratification.
Specific error having been established, it is not necessary for us to consider ground two.
The prosecution accepts “that as a matter of general principal the burden of the prospect of an offender being deported may be relevant to residual discretion” citing the inclusion of this consideration in the context of the residual discretion in The State of Western Australia v Hussian [2020] WASCA 186 and DPP (Cth) v Afford [2017] VSCA 201.
In Hussian the Court assumed in the offender’s favour at [47], without deciding the point, that the deportation of an offender back to a country where they had faced discrimination was a factor “capable” of enlivening the residual discretion. However, the Court ultimately determined that intervention was required to maintain adequate standards of sentencing. Similarly, while certain deportation was taken into account in Afford, the Court determined that the discretion was not enlivened because it would result in an inappropriate outcome, namely a significantly lower sentence than that which the seriousness of the offending warranted.
The offender submitted that the exercise of the residual discretion in his favour will avoid an injustice in the circumstances. We do not agree. That is not to say that we do not consider that certain deportation could never be a factor justifying the discretion being exercised in an offender’s favour. In this instance however, despite that certainty, there are several factors that warrant intervention.
First, the offender’s deportation is not as a direct consequence of the offending conduct. Second, the offender’s wife and child have already returned to China, removing the consideration that the offender’s deportation will lead to family separation with no prospect of reunification. Third and significantly, the offender’s deportation immediate upon his release from custody will see the community service hours imposed upon him as part of the suspended portion of the sentence remain forever outstanding. The imposition of a community service work condition was part of the justification for the imposition of a suspended period of imprisonment “substantially below the usual range”. Further, the offender will not be obliged to be of good behaviour for the suspended portion of the sentence meaning the prospect of a period of imprisonment being imposed upon him, should he re-offend during the period of the good behaviour order, will not hang over him. Both aspects of the sentence imposed upon him therefore are punishments of which he will never feel the effect.
In our view, the seriousness of the offending and the inadequacy of the sentence are significant. Taken together with the need to promote adequate standards of sentencing, the significance of these factors is not outweighed by the offender’s certain deportation. In the circumstances, we do not consider that the respondent’s certain deportation results in an injustice that warrants the exercise of the residual discretion. The resentencing task
As to the sentences imposed, the features of the conduct that influence the objective seriousness of the offences have been identified above in the factual summary of each count. We approach an assessment of the objective seriousness of the offences on the basis that the sexual motivation of the offender, of which we are satisfied, was an aggravating feature. The offending persisted over a significant period and each instance involved a breach of trust. The offender deliberately exploited the vulnerability of the victims having been granted access to their bodies, for what should have been a therapeutic purpose.
Of the three counts of sexual intercourse without consent, two were “rolled up” counts (count 4 and count 8) making them necessarily more serious examples of the offence than count 1. The rolled-up counts involved several acts of digital penetration, with count 8 the more serious offence, given the extent of the offender’s conduct.
The remaining counts were acts of indecency involving touching by the offender on and around the vagina of the victims. Counts 2 and 6 were the more serious examples of this offence given the nature and extent of the contact involved. Count 5 was a “rolled up” count.
Like the sentencing judge, we acknowledge that the offending did not involve any actual or threatened violence. We do not necessarily consider that the sentencing judge was wrong when he characterised the offences by reference to “range”, though note observations made in this Court as to the utility of such references: R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24] and Laipato v The Queen [2020] ACTCA 35 at [156]. Rather, the sentences imposed in our view, regardless of the “range” at which they were assessed to be, were inadequate in the circumstances.
Justice Loukas-Karlsson has set out the cases to which we were taken to as part of the appeal submissions made by the prosecution. We need not repeat those references here and have taken them into account.
The subjective features of the offender including the absence of any criminal history, his letter of remorse and family circumstances were set out in the primary judgment at [32]- [42] and those matters remain relevant considerations for the purposes of the resentencing exercise. As we have already noted, the position with respect to deportation is now certain. The harm suffered by the victims was outlined by the sentencing judge at [24] and remains a factor that must be considered.
The purposes of sentencing for sexual offending are punishment, deterrence, denunciation and recognition of the harm done to the victim: R v Miller [2019] ACTCA 25; 279 A Crim R 232. The sentencing judge acknowledged as much. Of course, individualised justice demands that in each sentencing exercise the subjective circumstances of an offender are part of the instinctive synthesis. In this case the offender’s prospects of rehabilitation were good in light of his stable family circumstances and the finding of genuine remorse. That said, given we are satisfied as to the sexual motivation for the offending, specific deterrence is a factor that must be taken in account.
There was no complaint made about the appropriate discount to be applied in light of the timing of the entry of the pleas of guilty. We will apply a discount of 15 percent.
Therefore, a sentencing judge must do their best to find the facts which determine the gravity of the offending. Nevertheless, in a particular case the prosecution may fail to prove beyond reasonable doubt an adverse or aggravating matter relating to the offence. Further, in the same case the offender may fail to establish on balance of probabilities a competing matter which if proved would have been a mitigating matter for the offender.
In such a case, as in this case, a judge may proceed to sentence the offender on the basis that neither the aggravating nor the mitigating matter was established according to the relevant requisite standard of proof.
The prosecution on appeal submitted that the sentencing judge made a specific error in not making a finding beyond reasonable doubt that the offending was motivated by sexual gratification. In other words, the prosecution seeks to impugn the sentencing judge’s finding that the motivation for the offending cannot be proven to the requisite standard: see R v Liu at [27]-[28].
The sentencing judge expressed his conclusions as follows, based on the strictures of Olbrich: 27. Bearing in mind the respective onuses of proof as described in R v Olbrich [1999] HCA 54; 199 CLR 270 at [27]: (a) I am not satisfied beyond reasonable doubt that the offending was sexually motivated; and (b) I am not satisfied on the balance of probabilities that the offending was engaged in under a mistaken belief that it was consensual or as a means of improving the offender’s financial circumstances. 28․ That leaves the motivation or the combination of motivations for the offending uncertain.
If this court is satisfied beyond reasonable doubt of the sexual motivation, the prosecution submitted that this will “invariably” lead to a greater sentence as such a finding will impact the assessment of objective seriousness.
The prosecution conceded in their written submissions that there was “no direct evidence from the respondent as to the sexual motivation of the offending”. Nevertheless, it was contended that such a finding should nevertheless have been made based on the cumulative force of a number of aspects of the evidence. Additionally, the prosecution submitted at hearing that the evidence was “all one way”. The following aspects were addressed.
First, the prosecution submitted that the conduct of the respondent was inherently sexual, involving both touching and digital penetration of the victims’ vagina and vaginal area generally, for example encompassing clitoris, labia, vulva, and in-between buttocks. The respondent also did not wear gloves, and the sexual touching in counts 1, 2, 4, 6, and 8 therefore involved skin-on-skin contact.
Further in written submissions, the prosecution accepted that the sexual nature of the offence “does not mean that an offender’s motivation is, axiomatically, always sexual”. Nevertheless, the prosecution submitted that the nature of the sexual touching in this case is consistent with “behaviour productive of sexual gratification” and “an attitude of entitlement to physical intimacy with the victims”. It is important that the prosecution properly accepted that the sexual nature of an offence does not mean that an offender’s motivation is invariably sexual.
Second, the prosecution submitted that the offending was not isolated. The offences were committed against six different women otherwise unknown to him, on 10 different occasions over a period short of approximately 2 years.
Third, the prosecution emphasised the conduct constituting count 5 where the respondent pressed his erect penis against DD’s arm on three separate occasions in December 2020 (see [78]-[80]), as well as the respondent’s actions of pressing his groin against MK’s head – outlined in the agreed facts for sentencing - and the wiping of LS’ vaginal fluids against the LS’ head (see [90]).
The prosecution highlighted that the sentencing judge did not discuss the significance of the respondent’s erect penis. Additionally, it was submitted that the sentencing judge did not give detailed reasons for rejecting the proposition that the offending was sexually motivated.
Fourth, the respondent is said to have demonstrated both awareness of the wrongfulness of his conduct and that the conduct was unwanted by the victims. The prosecution pointed in support to the query made by the respondent to KT as to what KT said to Mr Wang (see [63]), the denials given by the respondent to Mr Wang following the complaint made by TI, and the denials in the Record of Interview on 8 March 2020.
Fifth, the prosecution also submitted that to “continue committing sexual offences against massage clients” in light of the “victims’ own indication of non-consent” and after “being put on notice of potential professional and criminal consequences” is reflective of the respondent’s motivation being “concerned only with his own sexual gratification".
Finally, the prosecution noted that the respondent’s subjective evidence as to his motivation must be considered in light of the sentencing judge’s rejection of the respondent’s case theory on his motivation. This includes the denials the respondent made to the psychologist, Mr Borenstein as to sexual gratification.
In my view, the sentencing judge’s analysis was consistent with authority and consistent with the facts in this case. His Honour’s analysis was not a binary or simplistic analysis.
Different views have been expressed regarding when a factual error is such as to require appellate intervention: see Stott v The Queen [2021] ACTCA 18 at [27]-[40] (Murrell CJ, Mossop and Loukas-Karlsson JJ) (Stott). The two views expressed as questions are (Stott at [27]): (a) Is it enough that there has been a factual error?; or (b) Must the impugned factual finding be such that it was not reasonably open to the sentencing judge to make that finding?
In this case, on either view, I am not satisfied that there was an error on the part of the sentencing judge, for the following reasons.
A finding of fact about a matter such as motive or degree of involvement may be important on the assessment of an offender’s moral culpability. Nevertheless, it is well established that there are sentencing cases where the task of assessing such a matter is more difficult than that of determining guilt: Cheung v The Queen [2001] HCA 67; 209 CLR 1 at [8] (Gleeson CJ, Gummow and Hayne JJ) (Cheung).
In this case, the sentencing judge made two findings at [27]. He stated that bearing in mind the relevant onus of proof in accordance with Olbrich he was: (a) not satisfied beyond reasonable doubt that the offending was sexually motivated; and (b) not satisfied on balance of probabilities that the offending was engaged in under a mistaken belief that it was consensual or as a means of improving the offender’s financial circumstances.
As a consequence of these two findings the sentencing judge concluded properly that this “leaves the motivation or the combination of motivations for the offending uncertain”: at R v Liu at [28]. Such uncertainty is not unusual in the criminal law as underlined by the High Court in Cheung.
It is relevant in relation to the sentencing judge’s finding to underline the following background which formed part of the evidence in this case arising from the psychologist report of Mr Borenstein (Borenstein report). The respondent was born in Inner Mongolia in China. The psychologist referred to the following in his opinion: With the benefit of hindsight, [the respondent] accepts his reasoning and logic was bizarre. [The respondent] concedes he lacks maturity, worldliness and his reasoning to enter into the offending behaviour is flawed. [The respondent] accepts full responsibility for the offending behaviour, for which express guilt, remorse and contrition. [The respondent] said he and his wife are happily married. The offending behaviour, in part, coincides with his wife’s pregnancy and birth of their daughter, who is now aged eighteen months. [The respondent] repeatedly denied sexual motivation and/or gratification from the offending behaviour, and he held the erroneous view women he offended against may have had a need he was meeting, which would lead to further referrals. In summary, [the respondent] presents as emotionally immature and naïve. He lacks worldliness and sophistication, which had its origins in early childhood and adolescent development raised in an environment defined by poverty and subsistence living. [The respondent] said he has now become more aware of the inappropriateness of the offending behaviours, for which he repeatedly expressed guilt, remorse and contrition.
Also importantly the sentencing judge made clear at [25] and [26] of R v Liu that the offender’s purported motivation was not necessarily mitigating and the prosecution submissions on motivation were not, in the result, necessarily aggravating in comparison. That is, taking into account issues of the premeditation inherent in the purported, flawed business strategy compared with the opportunism of sexual motivation.
Forensic realism dictates that the offending is at a broadly similar level of seriousness regardless of either version being accepted. Indeed, the motivation being uncertain by application of the relevant standard of proof as stated by the sentencing judge nevertheless leaves an objectively serious offence. On all three approaches, the offences are objectively serious. Whether the offences are: (a) firstly, proven to be sexually motivated beyond reasonable doubt, or (b) secondly, a flawed and bizarre business strategy proven on balance of probabilities, or (c) thirdly, uncertain as between the two approaches as a matter of the proper application of the standard of proof is not the crux of objective seriousness on the facts of this case. On any of the three analyses outlined above, the level of objective seriousness could not be said to be distinctly different to any appreciable or significant degree. Uncertainty regarding the respondent’s motivation, on the facts of this case, does not, in my view, derogate from the seriousness of the conduct.
This ground of appeal has not been established and should be dismissed.
In doing so, the sentencing judge correctly and appropriately acknowledged that there were six different victims and there was no connection between the offending other than the so-called “therapeutic massage”: R v Liu at [50]. It must be stated that “[t]herapeutic” massage is clearly a misnomer.
The prosecution further noted an inability to locate comparable ACT decisions. The Court notes the ten NSW decisions discussed by Sutherland DCJ in Horsfall at paragraph [216]-[287]. Below is a table containing a brief summary of each decision. No Decision Offence and Sentence 1 Jiang v The Queen [2010] • Two counts of sexual intercourse without NSWCCA 277 (Jiang) consent (Crimes Act 1900 (NSW) s 61I), No Decision Offence and Sentence sentenced to two years’ imprisonment with a non-parole period of 18 months. • Indecent assault (Crimes Act 1900 (NSW) s 61L), sentenced to six months’ imprisonment, to be served concurrently with sentences imposed for the two counts of sexual intercourse without consent. 2 R v Qin [2008] NSWDC 41; 7 • Sexual intercourse without consent, DCLR (NSW) 108 (Qin) sentenced to 10 months’ imprisonment to be suspended upon entering into a good Appeal against sentence behaviour order (a “s 12” bond). dismissed: R v Qin; Qin v The Queen [2008] NSWCCA 189. • Indecent assault, a good behaviour order (a “s 9” bond) is imposed for a period of 5 years. 3 R v Williams [2002] NSWCCA • Aggravated sexual intercourse without consent (Crimes Act 1900 (NSW) s 61J), 458 (Williams) sentenced to three years, nine months’ imprisonment commencing 29 November 2000 and to expire on 28 August 2004, with a non-parole period of two years expiring on 28 November 2002. • Aggravated indecent assault (Crimes Act 1900 (NSW) s 61M), sentenced to a concurrent term of fourteen months imprisonment with a non-parole period of ten months. • Four counts of sexual intercourse without consent (Crimes Act 1900 (NSW) s 61I), sentenced to three years and 2 months’ imprisonment for 1 count, commencing on 29 November 2002 and expiring on 28 January 2006 with a non-parole period of twelve months. The offender was also sentenced a concurrent term of three years and two months’ imprisonment for the remaining three counts beginning on 29 November 2000. • Eight counts of indecent assault (Crimes Act 1900 (NSW) s 61L), sentenced to twelve months’ imprisonment for 4 counts and fourteen months’ for the other 4 counts, served concurrently with each other and commencing on 29 November 2000. • The total head sentence is five years, two months imprisonment with a non-parole period of three years. Sans the 25% discount, Sutherland DCJ observed that the notional head sentence would be a period of “approximately” 6 years and 10 months: Horsfall at [243]. No Decision Offence and Sentence 4 R v Shen [2019] NSWDC 499 • Three counts of assault with an act of indecency (Crimes Act 1900 (NSW) s 61L), (Shen) sentenced to a community corrections order for three years, to be served concurrently, and 100 hours of community service. 5 R v Andries Dijkstra [2019] • One count of sexual intercourse without consent (Crimes Act 1900 (NSW) s 61I), NSWDC 776 (Dijkstra) sentenced to 2 years and 4 months’ imprisonment with a non-parole period of 10 months. 6 R v Douglas [2021] NSWDC • Three counts of indecent assault (Crimes Act 1900 (NSW) s 61L). 646 (Douglas) • Four counts of sexual intercourse without consent (Crimes Act 1900 (NSW) s 61I). • Six counts of sexual touching without consent (Crimes Act 1900 (NSW) s 61KC). • The aggregate sentence imposed is 9 years’ imprisonment, with a non-parole period of 6 years. The indicative sentences for each is outlined by the sentencing judge (Bourke SC DCJ) as follows: o Twelve months’ imprisonment for one count of indecent assault and 18 months’ for the remaining two counts; o Three years’ imprisonment with a non-parole period of 2 years for three counts of sexual intercourse without consent; o Two years, 10 months’ imprisonment with a non-parole period of 22 months for one count of sexual intercourse without consent; o Eighteen months for four counts of sexual touching, with 14 months’ and 12 months’ imprisonment for the remaining two counts. 7 R v Azzi [2004] NSWCCA 398 • One count of attempted sexual intercourse without consent (Crimes Act 1900 (NSW) ss (Azzi) 61I and P), sentenced to a wholly cumulative term of imprisonment of four years, with a non-parole period of two years (see Azzi at [3]). • Four counts of indecent assault (Crimes Act 1900 (NSW) s 61L), sentenced to a concurrent fixed term of 2 years No Decision Offence and Sentence imprisonment, commencing 20 June 2003 (see Azzi at [3]). • The offender also asked that two other offences on a Form 1 in sentencing, namely two other counts of committing an act of indecency on a person above the age of sixteen years (Crimes Act 1900 (NSW) s 61N(2)) (Azzi at [3]). 8 Jung v The Queen [2017] • Ten counts of indecent assault (Crimes Act 1900 (NSW) s 61L), consisting of 8 counts, 2 NSWCCA 24 (Jung) charges, as well as 2 offending taken into account on a “Form 1”. • The aggregate sentence imposed was five years’ imprisonment, with a non-parole period of three years and six months. The indicative sentences for the individual offences were outlined by the NSWCCA (at [6]) as follows: o Two years’ imprisonment for the ninth offence. o Twenty-two months’ imprisonment for the third offence, after taking into account two other offending (second and fourth offences) on a “Form 1”. o Twenty months’ imprisonment for the first, eight, eleventh and twelfth offence. o Eighteen months’ imprisonment for the fifth, sixth, and tenth offence. o Fifteen months’ imprisonment for the seventh offence. 9 R v Ibrahim [2021] NSWCCA • One count of sexual intercourse without consent (Crimes Act 1900 (NSW) s 61I), 296 (Ibrahim) sentenced to two years’ imprisonment with a non-parole period of 15 months. 10 Salmond v The Queen [2010] • One count of indecent assault (Crimes Act 1900 (NSW) s 61L, sentenced to two years’ NSWCCA 141 (Salmond) imprisonment. • One count of sexual intercourse without consent (Crimes Act 1900 (NSW) s 61I), sentenced to four years and six months’ imprisonment with a non-parole period of two years served concurrently with the above sentence.
The prosecution submitted that these cases involved “a masseur or a breach of patient relationship”: see also Horsfall at [218]. I note specifically that the offenders were: (a) masseurs (see Horsfall at [219], [230], [241], [247], [256] and [283]): see Jiang, Qin, Williams, Shen, Dijkstra and Salmond; (b) physiotherapists, or at least persons “purportedly administering a massage” (see Horsfall at [266], [280]): see Douglas and Jung; (c) hairdressers: Azzi, cited in Horsfall at [279]; or (d) pharmacists: Ibrahim, cited in Horsfall at [281].
As to the features of the offending, I note that the cases apparently involved: (a) digital penetration of a victim’s vagina: see Jiang at [13]; Williams at [7], Dijkstra at [7]; Douglas at [35], [64]; Ibrahim at [17]; and Salmond at [18]. (b) touching of the vaginal or a victim’s genital area: see Jiang at [12]-[13]; Qin at [14]; Shen at [4]-[5]; Douglas at [22]; Jung at [6]; Salmond at [18]; (c) an erect penis being in contact on a victim’s body: Azzi at [6]; and (d) “massaging” a victim’s breast: Jiang at [11]; Shen at [8]; Dijkstra at [7], Douglas at [15]; Jung at [6].
In oral submissions, the prosecution properly and correctly accepted that the sentencing judge was entitled to synthesize the evidence available (including the Borenstein report and the pre-sentence report) before his Honour and come to a view as to the risk of reoffending.
The prosecution also cavilled with the sentencing judge’s approach to the purposes of sentencing in this case. It was submitted that the sentencing judge appeared to have placed “limited weight” on the need for specific deterrence, on the basis of the respondent’s “good subjective case”. While the prosecution conceded that the respondent had no criminal history and was, otherwise, of good character, the prosecution submitted that excessive leniency was engendered on account of these factors: see Baines v The Queen [2016] NSWCCA 132 at [128]-[129] (Fagan J); R v Kennedy [2000] NSWCCA 527 at [21]-[22].
Ultimately, the prosecution submitted that the individual sentences were “plainly unreasonable and unjust” when considering the gravity of the offending and purposes of sentencing. The respondent’s submission
Counsel for the respondent in his oral submissions noted that the right of the prosecution to appeal for manifest inadequacy is “exceptional”: R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at [29] (Sheller JA, James and Dowd JJ agreeing): The right of the Crown to appeal against a sentence on the grounds of inadequacy is exceptional. However, where sentences imposed are so inadequate as to indicate error or departure from principle, or depart from accepted sentencing standards, they demonstrate error in point of principle which the Crown is entitled to have this Court correct; see Griffiths v The Queen (1977) 137 CLR 293 at 310; [Everett v The Queen (1994) 181 CLR 295] at 300 and R v Barbara (unreported) CCA, 24 February 1997 at 6. The case must be a compelling one before this Court can interfere. It is not sufficient that this Court would itself, in the position of the sentencing Judge, have imposed a more severe sentence. However, sentences outside the permissible range of those the product of a properly exercised sentencing discretion prima facie manifest error; see House v The King (1936) 55 CLR 499 at 505. Even so, in the case of a Crown appeal, there remains a residual discretion as to whether the Court will interfere; R v L at 10. (emphasis added)
Counsel for the respondent referred the court to the case of Ibrahim. Ibrahim was one of the cases discussed in Horsfall. In Ibrahim, the offender was a pharmacist who preyed on a young client. Reference was made to the principles set out by Dhanji J (Johnson and Lonergan JJ agreeing) in [105]-[106]: 105. The principles to be applied to appeals of this nature can be found in Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31, the High Court (per French CJ, Hayne, Kiefel, Bell and Keane JJ) at [27]: It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted. 106. Also pertinent is Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24], where it was observed by the plurality: … within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for [the sentencing judge]. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by [the sentencing judge] was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant’s subjective case. The power could only be engaged if the Court was satisfied that [the sentencing judge’s] discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. In that event, the Court was required to consider whether the Director’s appeal should nonetheless be dismissed in the exercise of the residual discretion. (emphasis added)
In his submissions, counsel for the respondent challenged reliance on Horsfall. Aside from also involving a masseur, Horsfall was submitted to be clearly distinguishable from this case. The offender in Horsfall was charged with other offences, including aggravated sexual assault of a victim with a disability. The offender in Horsfall had not pleaded guilty to all counts and, unlike the respondent, there was no “full acceptance of responsibility” and only limited remorse on the part of the offender in Horsfall. The offending in Horsfall was also said to be “significantly more serious and brazen” as well as being protracted.
Counsel for the respondent also submitted that, contrary to the prosecution’s submissions, the sentencing judge did reconcile evidence of remorse and insight, the strong subjective factors, and the psychological report when evaluating the respondent’s motivation.
Counsel for the respondent properly submitted that “care must be taken” in considering sentences imposed in other cases: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [41]-[42], Awraham v The Queen [2021] NSWCCA 241 at [5], [79]. Their limited utility is also acknowledged by Sutherland DCJ in Horsfall at [216].
In oral submissions, counsel for the respondent concluded his submissions by stating that the lack of relevantly comparable cases does not establish a range, let alone that the respondent’s sentence was below the proper range of sentences and manifestly inadequate.
Finally, the respondent submitted that the suspended sentence period is appropriate, taking into account the difficulty the respondent will face in being granted parole due to the challenges the respondent will face in completing a sex offender course in custody due to his limited English.
The reasons of the sentencing judge demonstrate that his Honour gave careful consideration to the evidence. This sentencing exercise was undertaken by an experienced judge who was demonstrably aware of the facts, the victim impact statements and the objective seriousness of the offences. His Honour’s discussion in the judgment on motivation was not in error, as discussed earlier in this judgment concerning the first ground.
The sentencing judge was across all the evidence concerning both the charges and the evidence relevant to the subjective matters relating to the offender. The sentencing judge’s consideration involved a proper discussion on the vulnerability of the victims and the number of victims. At [48] of R v Liu, the sentencing judge relevantly and carefully stated the following: The case is one in which the purposes of sentencing very clearly pull in different directions. In my view, the evidence indicates that the offender is at a low risk of reoffending. The consequences of his offending will be to destroy his anticipated future with his wife and daughter. I accept that he is genuinely remorseful in relation to the conduct that he engaged in and also deeply regrets the consequences of that conduct for his wife and daughter. Notwithstanding the good subjective case, it is necessary to give significant weight to the need to denounce the conduct, the need for general deterrence and the need to recognise the harm done by his offending to the victims and to the community. (emphasis added)
The sentencing judge’s statement reflect the well-known, often-quoted passage in Veen v The Queen (No 2) (1988) 164 CLR 465 (Veen (No 2)). The purposes of punishment were eloquently and succinctly distilled in Veen (No 2) at 476 (Mason CJ, Brennan, Dawson and Toohey JJ): …sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. (emphasis added)
Subsequently, in R v Engert (1995) 84 A Crim R 67 Gleeson CJ of New South Wales (as his Honour then was) emphasised (at 68) after discussing Veen (No 2) that it is an error to approach sentencing as though automatic consequences follow from particular factual circumstances: It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise. (emphasis added)
The sentencing judge referred to the following in his discussion of subjective matters: 36. As discussed earlier in these reasons, [the respondent] explained to the author of the pre-sentence report and to a psychologist that he believed that the sexual touching of the victims involved the provision of an extra service which would lead to more patients and greater income. In his interview with Mr Borenstein [the respondent] denied any sexual motivation but accepted that his reasoning and logic that his conduct would lead to further referrals was bizarre. 37. Mr Borenstein described the [respondent] as emotionally immature, naïve and lacking worldliness. He also indicated that the [respondent] repeatedly expressed guilt, remorse and contrition. [The respondent] is concerned about the possibility of incarceration and fears the impact on his wife and daughter. Mr Borenstein suggests that [the respondent] would benefit from consulting a Chinese speaking psychologist, preferably an older male, to address the obvious gaps in his emotional and psychosexual development. 38. In his letter to the court the [respondent] describes his devotion to his wife and daughter and his work to support them. He describes being “helpless, anxious and petrified” because he does not know how his wife and child will be able to live when he is in prison. He reflects upon the circumstances of the victims of his offending: Putting my feet in the other party’s shoes, I can see, if my wife, or my daughter, is wrongfully violated, I will never ever forgive the perpetrator! The more I am now feeling the pain the victims suffered, the more I hate my own stupidity. I apologize to all the victims and I apologize for the abominable notoriety that tarnished my workplace. 39. In a letter to the victims [the respondent] says: At the foremost I want to say my apologies to you. I feel deeply sorry for the harm and distress brought to you by my action. I do sincerely apologise to you, and I like to ask for your forgiveness. … Now, I make this undertaking that I will thoroughly reflect upon and rectify my wrongdoing. I will also proactively seek knowledge of law. Never again will I conduct such wrongdoing and hurt others out of ignorance. Finally, I once again want to sincerely apologize to you and wish to ask for your forgiveness and understanding. 40. [The respondent] is assessed by the author of the pre-sentence report as having a low risk of general reoffending and an average risk of sexual reoffending. 41. [The respondent] is assessed as suitable for community service work condition and for an intensive correction order.
At this juncture it is important to underline that the application of significant concurrency for the purposes of totality does not of itself equal manifest inadequacy: R v DK [2016] ACTCA 7 at [70] (Refshauge, Penfold and Perry JJ). It is instructive to quote from R v Meyboom [2012] ACTCA 48 at [64]-[65] (Refshauge, Penfold and North JJ) concerning the application of the overarching principle of totality when considering concurrency and cumulation: 64. That is, the High Court [in Mill v The Queen (1988) 166 CLR 58] recognised that the task of imposing the appropriate sentence for the totality of the offender's criminal behaviour may require more than just choosing the appropriate individual sentences and then providing for them to run concurrently or consecutively in accordance with the concurrency and accumulation principles. A sentencing judge may need to provide for more or less concurrency or accumulation than the concurrency and accumulation principles would suggest, in order to ensure that the total sentence matches the totality of the criminal behaviour. 65. On that analysis, a failure to provide for concurrency or accumulation in accordance with the concurrency and accumulation principles might reflect not an error in applying those principles but rather the use of those techniques in order to comply with the totality principle, a principle which, in our view, must take priority over the general guidance provided by the concurrency and accumulation principles. It seems to follow from that possibility that an apparent failure to apply the concurrency and accumulation principles should not necessarily be identified as erroneous unless the total sentence concerned seems to be inadequate or excessive. (emphasis added) See also R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at [7] (Simpson J), R v Walker [2023] NSWCCA 219 at [79]-[80] (Weinstein J, Leeming JA and Yehia J agreeing), DPP (Vic) v Smith [2022] VSCA 4 at [85] (Emerton JA, Priest and Niall JJA agreeing).
It must not be forgotten, when considering the application of consistency at the appellate level, that sentencing must nevertheless remain individual: further that consistency cannot mean an overly constrained conformity of sentencing. This is in accordance with the purpose and limitations of prosecution appeals: see Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [16] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Everett v The Queen (1994) 181 CLR 295 at 300 (Brennan, Deane, Dawson and Gaudron JJ); Dinsdale at [61]-[62] (Kirby J).
It is clear that his Honour was called upon to consider in the process of instinctive synthesis the many purposes of sentencing that, as Veen (No 2) underlined, may and in this case did point in different directions. It is clear from reviewing his Honour’s judgment in full, that his Honour did just that, that is, properly considered all the purposes of sentencing.
In my view, the result of the sentencing exercise undertaken by the sentencing judge is not manifestly inadequate. It is undoubtedly lenient. Nevertheless, leniency is not a sentencing crime. A lenient sentence is not perforce a manifestly inadequate sentence. The prosecution has not established that the individual sentences nor that the overall sentence was below the range that could “justly be imposed consistent with sentencing standards”: Nona v The Queen; R v Nona [2015] ACTCA 34 at [89] (Murrell CJ, Refshauge and Wigney JJ).
In my view, this ground of appeal has not been established and should therefore be dismissed.
Accordingly, the appeal should be dismissed.