R v Huang

Solicitors: Solicitor for Public Prosecutions (Crown) Just Defence Lawyers (Offender) File Number(s): 2022/00078278 Publication restriction: Nil

JUDGMENT

1. Junqi Huang was charged as an accessory after the fact to the murder of Chong Kai "Jacky" Wong ("the deceased") between 28 December 2020 and 31 December 2020 at Killongbutta farm ("the farm"), contrary to s 18(1)(a) and 349(1) of the Crimes Act 1900 (NSW) ("the accessory after the fact to murder offence").
2. On 14 August 2024, Mr Huang entered a plea of guilty to the accessory after the fact to murder offence in the Local Court and, on 6 September 2024, this Court, constituted by her Honour, Wilson J, recorded a conviction with respect to that offence against Mr Huang. For that reason, Mr Huang shall be herein after referred to as the offender both in that respect and with respect to the further charge for which he pleaded guilty and was convicted on the same day.
3. Yilin Liu was charged with the murder of the deceased at the farm. On 28 August 2024, Mr Liu pleaded guilty in the Local Court to the offence of murder. On 6 September 2024 Mr Liu was convicted by Wilson J in respect to that offence. [1]
4. The offender was also charged that, contrary to section 192E(1)(b) of the Crimes Act, he did dishonestly obtain financial advantage by deception, that is, by promise of information regarding the deceased to the mother of the deceased, a Malaysian National, to obtain a financial advantage. The offender was charged that he dishonestly obtained a financial advantage in the sum of $50,000 ("the financial deception offence").
5. Collectively, the accessory after the fact to murder offence and the financial deception offence will be referred to as the "principal offences".
6. As mentioned above the offender pleaded guilty and was convicted of the financial deception offence on 6 September 2024.
7. The accessory after the fact to murder offence attracts a maximum penalty of 25 years imprisonment and has no standard non-parole period. The financial deception offence attracts a maximum penalty of 10 years imprisonment and again has no standard non-parole period.
8. On 6 September 2024, the offender asked the Court to take into account two further offences on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"). The further offences which were entered on two Form 1s were as follows: 1. knowingly deal with the proceeds of crime contrary to s 193B(1) of the Crimes Act ("the Form 1 proceeds of crime offence"); 2. knowingly take part in the cultivation of not less than a commercial supply of a prohibited plant, namely, cannabis, contrary to section 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the Form 1 cultivation of cannabis offence"), (collectively "the Form 1 offences").
9. The maximum penalty for the Form 1 proceeds of crime offence is 20 years imprisonment. These were the proceeds the subject of the financial deception offence. The maximum penalty for the Form 1 cultivation of cannabis offence is 15 years imprisonment.

General Principles

1. I propose to briefly divert attention to more general principles of sentencing.
2. The Crown did not rely on any aggravating factors in this matter pursuant to s 21A of the Sentencing Act. Any other objective or subjective factors revealed by the evidence that affects the relative seriousness of the offender's offence, must also be taken into account.
3. Questions of general and specific deterrence may also be considered in an appropriate case. For offences of accessory after the fact to murder, "[g]eneral deterrence has a substantial part to play in the determination of any punishment. Retribution is also not without appreciable significance." [2]
4. Further, all of the relevant factors must be taken into account by way of the instinctive synthesis which the High Court referred to in Markarian v The Queen. [3] That requires that all of the factors relevant in the offender's case be considered, their significance discussed and a value judgment as to the appropriate sentence for the offender's offending made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon the offender and the circumstances of the crimes he committed. [4]
5. The sentencing judge is required to find the facts material to the sentence which emerged in the course of the sentencing proceedings. [5] In sentencing, it is for the Court to find the facts which are material to the exercise of the judicial discretion. [6] The sentencing judge will determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability. [7] Any findings of fact that are adverse to the offender must be proved beyond reasonable doubt. Matters in mitigation must be proved on the balance of probabilities. [8]
6. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. [9]

Objective facts

1. The parties to the proceedings produced an agreed statement of facts which appeared in the Crown sentence summary bundle (Exhibit 1). I shall refer to that agreed statement of facts as the "ASF". The ASF is divided into four components corresponding to the two principal offences and the Form 1 offences.
2. The Crown also led evidence from Detective Sergeant Arvin Ramalingam, the Officer in Charge ("OIC"). During the course of his evidence in chief, the OIC provided evidence as to an induced statement provided by the offender on 25 March 2022 ("the induced statement"). That induced statement was introduced into evidence by the Crown without objection by the offender (Exhibit 4).

The accessory after the fact to murder offence

1. The Crown relied upon a particular set of acts by the offender which were said to constitute the accessory after the fact to murder offence. I will come to those particular matters below in considering the facts and circumstances having a bearing on the objective seriousness of that offence and, in a similar context, the facts and circumstances relied upon by the offender to demonstrate non-exculpatory duress.
2. The form of the ASF was to set out the facts in the sequence of the Form 1 cultivation of cannabis offence, then the accessory after the fact to murder offence. That sequence is useful because the facts and circumstances bearing upon the Form 1 cultivation of cannabis offence represent a factual background and contextualise the facts arrayed by the parties as bearing upon the accessory after the fact to murder offence.
3. The facts and circumstances the parties assembled as bearing upon the Form 1 cultivation of cannabis offence appear below adjusted in accordance with the style adopted in this judgment.
4. From late 2020, the offender was a member of a group, which, until March/April 2021, cultivated cannabis at the farm ("the group"). This is a remote farm outside of Bathurst, NSW. The group intended to sell any cannabis they harvested in the Sydney region. The activities of the group were directed by Mr Liu and the deceased. Mr Liu asked the offender and other members of the group to make an upfront financial investment of approximately $10,000 to $20,000 and collected that investment from them. Mr Liu told them that the investment would be returned with significant profit for their involvement in the cultivation. The offender never received any payment for his involvement in the cultivation, let alone a refund of the money he paid to Mr Liu. Whilst not of particular significance in this matter, Youzong Chen ("Mr Chen") was also one of the members of the group.
5. The deceased organised the installation of growing igloos, or greenhouses, on the farm, and the preparation and planting of cannabis plants.
6. The offender assisted the deceased with establishing the cultivation at the farm, including obtaining seedlings and was the only member of the group able to drive and operate the excavator and tractor used on site. In the induced statement the offender described his role as follows: "Between September 2020 and April 2021 I was assisting an associate of mine, [the deceased], with a Cannabis Cultivation at 185 Killongbutta Road, Killongbutta. He asked me to work for him, I was a driver first, then a cook and then I became a technical person for growing. I didn't get paid, but he promised he will pay me money when he got a return on his investment. The primary organisers of the cultivation were [Mr Liu] and [the deceased]."
7. Mr Chen farmed the land, assisted in installing the cultivation infrastructure and drove members of the group to Sydney when required.
8. The cultivation consisted of two large growing igloos where the cannabis plants were planted once they had matured enough. Prior to that, the plants were grown in sheds on the property. In both the sheds and the igloos, the group used air filters, heat lamps and lights to assist the plants to grow prior to being moved to the igloo. In the igloo, the plants grew to approximately 1.5 to 2m tall.
9. Mr Chen took photos of the cultivation at various stages between 13 December 2020 and 22 March 2021. Those photos show seedlings being grown indoors at the farm, and then mature plants within the igloo.
10. The group, including the offender, tended to the cannabis plants at various stages of development in both the shed and igloos, by planting, replanting, fertilizing and watering them. The group, including the offender, also built the igloos and installed the lights and heat lamps used on the seedlings in the shed.
11. The offender lived at the farm for extended periods of time across the months that the cultivation took place, sharing a bedroom with the deceased.
12. The cannabis cultivation at the farm continued until the crop was harvested in about March/April 2021. By that stage, the cultivation comprised of approximately 400 mature plants. The group, including the offender, harvested the plants, sealing the cannabis plants in ziplock bags and boxing them up to be transported to Sydney. It took approximately one week to harvest the plants. The offender had been promised payment for his involvement in the cultivation, however, he never received payment.
13. The facts and circumstances the parties assembled as bearing upon the accessory after the fact to murder offence appear below adjusted in accordance with the style adopted in this judgment.
14. On 28 December 2020 at 3.04am, while at the farm, the deceased sent his mother a voice recorded message, of general conversation, via the "Wechat" mobile application. This was the last time the deceased communicated with anyone outside of the group. The offender was also at the farm at this time.
15. Later in the morning on 28 December 2020, Mr Liu was driven by Mr Chen from Sydney to Bathurst, arriving at the farm between 11am and 12pm.
16. Shortly after arriving at the farm, Mr Chen returned to Sydney with two farmers (Mr Shi and Mr Xu) from the group. This left the deceased at the farm with the offender, Mr Liu and Alan Wong ("Mr Wong").
17. Once Mr Chen had left the farm with Mr Xu and Mr Shi, Mr Liu and Mr Wong entered the deceased's upstairs bedroom where he was having a nap. The offender was downstairs at the time and heard Mr Liu say, "this is the order from the boss, don't come back to me, come to the boss". He heard Mr Wong yell "Jimmy" (the offender's nickname). Mr Liu then choked the deceased until he lost consciousness and died.
18. After approximately 10 minutes, Mr Liu called out to the offender to come upstairs to the bedroom he shared with the deceased. The offender entered the room to find the deceased lying on the bed, dead, bleeding slightly from his nose. Mr Liu was red in the face from exerting himself, standing next to the deceased. Mr Liu said to the offender, "you work for me now". Mr Wong had a knife in his hand, which was 30 cm long and had a blue handle and a silver blade. In the induced statement, the offender described that: "[Mr Wong] appeared to have been brought along by [Mr Liu], it appeared [Mr Liu] was instructing [Mr Wong]."
19. Mr Liu and Mr Wong moved the deceased's body from the bedroom, while the offender, on Mr Liu's direction, drove the tractor on site to the house, meeting Mr Liu at the front door. Mr Liu and Mr Wong placed the body in the bucket of the tractor. The offender then drove the tractor away from the house, to a creek on the property.
20. Upon finding a clear space of land near the creek, the offender stopped the tractor. Mr Liu and Mr Wong removed the deceased's body from the front of the tractor. Mr Liu told the offender to dig a hole using the excavator. He said, "you go get the excavator to dig a hole". The offender retrieved the excavator onsite and used it to dig a hole approximately 2 metres deep and 3-4 metres wide. Mr Liu and Mr Wong then placed the deceased's body in the hole and the offender filled the hole in with dirt.
21. Mr Liu and Mr Wong asked the offender to drive them to a bar in town. The offender did so and after some time, Mr Liu instructed the offender to take him back. The offender then drove both Mr Liu and Mr Wong back to the farm. Upon returning to the farm, Mr Liu said to the offender, "don't ever talk about this again, this is from the boss". The offender later told police "I was too afraid to leave the farm to do anything".
22. The induced statement contains the following entries which no doubt form the basis of the agreed facts but which, not inconsistently, expand in some respects upon the particular circumstances involving the offender in such a way as to found the accessory after the fact to murder offence.
23. The two passages in question are paragraph 6 and 7 of the induced statement. The offender also placed reliance on paragraph 9 with respect to a claim for mitigation based on non-exculpatory duress. Paragraph 9 concerns events after the burying of the deceased's body. Paragraphs 6, 7 and 9 of the induced statement were as follows: "6. I heard [Mr Liu's] voice say words to the effect of "This is the order from the boss, done (sic) come back to me, come to the boss". About 10 minutes later [Mr Wong] yelled "Jimmy" from inside the room. I went upstairs to mine and [the deceased's] bedroom. As I entered, I saw [the deceased] lying still on his bed face up. His whole body was on the bed. His head was at the top of the bed, the same as his usual sleeping position, just a bit lower on the bed. He was only wearing underwear at the time. He was lifeless and I could tell he was dead, it did not look like he had any injuries, but he was bleeding from the nose a little bit. I was very frightened at that time. I saw [Mr Liu] standing next to the bed near [the deceased's] head. He looked red like someone who just finished at the gym. I saw [Mr Wong] standing between my bed and [the deceased's], next to [the deceased's] feet. [Mr Liu] walked up to me and said "You work for me now". Because only [the deceased] and me were technical persons, so with [the deceased] gone he said this to me. I previously worked for [the deceased]. I would describe [Mr Wong] as a Chinese male, about 175cm tall of large build, with short curly hair dyed blonde; his hair was shiny. He wore glasses and was clean shaven. I do not remember what he was wearing. [Mr Wong] had a knife in his right hand. The knife had a blue handle and was almost 30cm long with a silver blade. He was holding it in a reverse grip against his forearm. [Mr Wong] appeared to have been brought along by [Mr Liu], it appeared [Mr Liu] was instructing [Mr Wong]. 7. [Mr Liu] and [Mr Wong] carried [the deceased's] body out of the room. One was holding his arms and one his legs, I do not remember which. They asked me to help carry [the deceased] as well but I just could not do it. [Mr Liu] said "drive the tractor here". I went down the stairs through the front door and out, and drove the tractor from the tractor shed to the front door. They carried him down the stairs and through the house to the front door where I was waiting for them. [Mr Liu] and [Mr Wong] placed [the deceased's] body in the bucket part of the tractor. [Mr Liu] and [Mr Wong] stood on the tractor next to me and I drove down the hill towards the growing igloos. I went past the end of the first igloo, between the igloos where there were two large upright tree stumps, which act as a gate to a muddy trail running between the pond and the creek. I drove onto that path and drove the tractor for about 30 seconds, until I approached a very large fallen tree on the right of the path. The tree was at an angle to the path and there was a level clear space between the path and the tree. It was a whole tree fallen down. I stopped the tractor, [Mr Liu] and [Mr Wong] removed [the deceased's] body from the front of the tractor. [Mr Liu] said "You go get the excavator to dig a hole'. I drove the tractor back up to the shed and drove the excavator down and I began using the excavator to dig a hole between the path and that fallen tree. The hole was about as deep as I am tall, approximately 2 metres. It was about half the width of one of the growing igloos about 3 to 4 metres wide. It took a long time to dig. After I dug the hole, [Mr Liu] and [Mr Wong] placed [the deceased's] body in the hole and I filled it with dirt. [The deceased] had a white blanket wrapped around him or on top of him at the time he was buried. I do not remember if I left the ground raised or level. … 9. I was too afraid to leave the farm or do anything. The farm was locked, I couldn't leave. I was scared of them and the boss; they have all my details, they recorded my Driver Licence and my phone. I went out one day and purchased a lock, and installed it on the door to my bedroom at the farm and was afraid every night. One day after that I came downstairs and saw the gun safe was open and all the firearms were removed. I was afraid for my life."
24. Both parties accepted that there were close similarities between the objective facts in this matter and those described by Fagan J in R v Cameron; R v Ford; R v Wilkinson, [10] where Fagan J made the following observations: "I have accepted that Wilkinson was not aware that an attack upon Munro would really take place until it did, suddenly, in his presence on 22 July 2014. Once that had occurred he was faced with a difficult choice. He had just witnessed what his co-offenders were capable of. He was requested by Cameron to assist with transporting the body and burying it. Only by cooperating in this could he assure them of his involvement in the murder and hence that he was committed with them and not likely to speak to police. Hesitation on his part or any attempt to distance himself from the homicide would reveal him to the others as a risk. He may well have perceived that refusal to take part in the disposal of the body would expose him to elimination himself."
25. Both parties accepted, as Fagan J did, that the subjective fear of harm can, and in this case should, be taken into account in the mitigation of penalty and, in particular, the objective seriousness of the offence.
26. That proposition may be readily accepted on the facts and circumstances of this case. However, a further consideration arose in these proceedings as to whether the objective circumstances constituted a proper basis to find non-exculpatory duress. The Court was assisted by supplementary submissions of the parties (both as to law and fact) wherein the offender sought to establish such a proposition and the Crown resisted it. I will return to those considerations below.

The financial deception offence

1. The facts and circumstances the parties assembled as bearing upon the financial deception offence appear below adjusted in accordance with the style adopted in this judgment.
2. On 6 July 2021, a friend of the deceased's family, Mr Bruce Wong, who resided in Western Australia, posted to Facebook, a request for assistance locating the deceased as a missing person. This post included a photo of the deceased and contact details for his mother. It was re-posted on various Chinese community Facebook groups in Sydney and Melbourne.
3. From 22 September to 2 October 2021, the offender began a conversation via Facebook messenger with Mr Bruce Wong, in relation to his missing person post for the deceased on Facebook. The offender communicated using a Facebook account in the name "Jimmy". The account was newly created for the purpose of interacting with Mr Bruce Wong. The offender said he had been growing cannabis with the deceased and offered information regarding the deceased's whereabouts and what happened to him for $50,000.
4. On 2 October 2021, the offender messaged the mother of the deceased on WhatsApp. The offender said that the deceased was "gone" and he would give her further information about what happened if she paid him $50,000. The offender told her he had grown cannabis with the deceased and bought all the ingredients for him. The offender said, "he is no longer here" and "I saw where they buried him".
5. On 3 October 2021, Mr Liu contacted the offender on his mobile. The offender explained that he had contacted the deceased's family and so he would likely dispose of this telephone number.
6. In January 2022, a Western Australian Police undercover officer ("WAPOL UCO") engaged in communication with the offender on Facebook Messenger. In the first instance, the WAPOL UCO used Mr Bruce Wong's Facebook account to impersonate him to the offender. The offender refused to speak with him about the deceased prior to being paid $50,000.
7. Following that communication, the WAPOL UCO using the assumed name 'Howe', purported to be a family friend of the victim assisting in the matter. The offender requested $50,000 before he would talk to 'Howe' about the deceased. When 'Howe' asked the offender how he could assist in the recovery of the deceased's body, the offender replied "Geo Location, address and photos", "I will give you everything". These two messages were soon retracted by the offender.
8. On the 28 January 2022, the offender sent 'Howe' a message containing the bank account details of an associate of the offender.
9. On 4 February 2022, police facilitated a $5,000 cash deposit into the account nominated by the offender. Later the same day, a phone call between the offender and his associate was lawfully intercepted, in which the associate confirmed he had received the money.
10. After receiving the initial $5,000, the offender ignored pleas for information from both the mother of the deceased and 'Howe' and insisted he would only disclose the information upon receiving the remaining $45,000. The offender threatened to deactivate his account to cease communication with 'Howe' and the deceased's mother and gave them a deadline to pay the remaining amount.
11. On 12 February 2022, 'Howe' sent the offender a photo of the house at 185 Killongbutta Road Killongbutta, which was obtained from a short video taken by the deceased's friend. 'Howe' asked the offender if that was the location where the deceased had been working and the offender replied "yes". 'Howe' further asked "So he is here, isn't he?" to which the offender replied, "you can go search for him yourself ... if you don't pay up before 20 February, I can't guarantee the validity of the information you want". The offender further indicated he would block 'Howe' (on Facebook) by 20 February 2022 if he did not pay the outstanding amount.
12. On 18 February 2022, police facilitated a $45,000 cash deposit into the same bank account. On the same day, a phone call between the offender and his associate was lawfully intercepted wherein the associate confirmed that the money had been received. The offender and his associate further discussed how to safely withdraw the money without attracting attention. The offender directed his associate to carry out various transfers and withdrawals of these funds.
13. In the following days, the offender and two associates acting at his behest attended various banks in the Hurstville and Lidcombe area on multiple occasions to withdraw the money. The money was sent to the previously mentioned bank account after which part of it was sent to a different account in the name of an associate of the offender. Telephone calls captured between the offender and his associate indicate this action was undertaken to avoid audit or detection.
14. On 22 February 2022, 'Howe' contacted the offender and spoke to him. The offender falsely stated he had been having difficulties withdrawing the money as the bank had suspended the account due to suspicious activities. The offender said he had been told by the teller to wait a few days for the money to reach him and that he would provide the information about the deceased after he had all the money in his possession.
15. On 26 February 2022, the bank confirmed that the money had been withdrawn. The money transferred to the associate's account was ultimately passed onto the offender. The $50,000 was never able to be recovered by police.
16. 'Howe' and the deceased's mother sent further messages to the offender pleading for information. However, the offender never replied and deactivated all accounts used to communicate with Howe and the deceased's mother.
17. In addition to those matters arising from the agreed facts, the Court had a copy of four images, being screenshots of the WhatsApp conversation between the offender and the deceased's mother. The English translation of that WhatsApp conversation appears below. Whilst the document does not nominate the name of the person messaging, it is plain from the context of the statements made that the offender's statements appeared on the left hand side of each page and the statements by the deceased's mother appeared on the right hand side. The English translation of the conversations with appropriate adjustment to the structure of each page and the nomination of a speaker (which does not appear on the page) is as follows: "Offender: You sure you don't want Jacket's (sic) news? 12:36 Unanswered call Deceased's mother: Do you have info? Deceased's mother: Where? Offender: He is no longer here (dead). Deceased's mother: What proof do you have Offender: I can sell you information of those people. Offender: I spoke to his cousin. Offender: His cousin thinks I am scamming him. So I am talking to you. Offender: I used to work with him. He grows cannabis. I bought all the ingredients for him Deceased's mother: Are you Chinese? Offender: Yes. Offender: You have the rights to know this. Deceased's mother: What happened to him. Deceased's mother: I want to know Offender: He is gone (no more). If you are willing to buy information about who hurt him and where Jack location, let me know. Offender: I am in trouble myself right now. I am being chase by other people. Offender: Sorry for your loss. Deceased's mother: What proof do you have? 14:44 Unanswered call Offender: I am the proof. Offender: No one will joke about this. 14:46 Unanswered call 2 October 2021 Offender: Decide what to do then let's have a phone call. Deceased's mother: Got photo? Offender: His? Offender: Did not keep. Offender: At the time, I did not bring anything away including my phone. Offender: But I saw where they put him. Offender: I have never gone back there. Offender: And there will not be a second person telling you this. Offender: Passport, Phone, wallet are all in their hands. Offender: Including jacket's (sic) and mine. 15:04 Unanswered call Offender: I am going to delete now if there's nothing else. Offender: In the beginning, I was together with him. Offender: Someone sent me to go get grocery and food. Offender: In the car, I heard from the people who were changing shifts said something will happened to jacket (sic) today. Offender: I left those people to shop and I sneaked back to the farm. I saw Jacket being carried out. I ran off straightaway. Offender: If you want the buy the info, I will send you once I received the money. Offender: If not needed, you can refused. Deceased's mother: When did that happen? Deceased's mother: Why did they have to do(kill) Deceased's mother: Jacket (sic) Deceased's mother: Ask him Jacky, what role did Jacky do at the farm?"
18. Paragraphs 10 to 13 of the induced statement also contain the following entries in relation to the financial deception offence: "10. I wanted revenge on those responsible for [the deceased's] death. In July 2021, I saw a missing person Facebook post for my friend [the deceased] with a photograph of him on it. I made contact with the author of the post and had conversations with the author as well as [the deceased's] mother. I asked for $50,000 in exchange for information regarding the murder and whereabouts of [the deceased's] remains and to get revenge for them. I asked for this amount because this was the investment, I had committed to the farm at 185 Killongbutta Road, Killongbutta to [the deceased] to assist in getting started. After I made this contact, [Mr Liu] called me on a number I didn't know he had and warned me to stop doing what I was doing. He said if I continued, I would be in danger. 11. Months later I saw another post on Facebook regarding the same thing. I reached back out to the author of the post as well as [the deceased's] mum and was introduced to someone named "Howe" about the exchange, who committed to sending me $50,000. 12. I contacted a friend of mine I know as "Jerry" and I told him that my brother was sending me some money from overseas, and I wanted to use "Jerry's" bank accounts to receive it. I told him there was something wrong with my account. Jerry agreed to assist me, he did not know what the money was for. I instructed Jerry to withdraw the money in intervals and I did not give him any of it. 13. I was afraid that "Howe" was an agent acting on behalf of the "boss" trying to trick me into providing information, to see if I would betray them. That is why I did not provide the information to "Howe". I was asking [the deceased's] mom if "Howe" was trustworthy and asked if she wanted to take revenge. That was before "howe" gave me the money. I thought I was being tricked and I would end up like [the deceased]."

R v Johnson

1. Hamill J in R v Johnson [11] stated that an assessment of the objective gravity of the crime of accessory after the fact to murder involves a consideration of a number of factors, which include but are not limited to: 1. the circumstances of the murder itself; 2. the extent of the knowledge in the accessory of those circumstances; 3. the precise act, or acts, which constitutes the offence of being an accessory after the fact; 4. the length of time over which the offender assisted the principal offender in escaping justice; 5. the extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the principal offender; 6. the motivation of the offender in committing the crime; 7. related to the question of motivation is the question of whether the offender's conduct was motivated by a sense of misguided loyalty or emotional attachment to the principal offender. This is a circumstance of particular significance in cases where a family member assists the principal offender; 8. it has generally been held that offences which involve the disposal or destruction of a corpse are cases which fall at the upper end of the range of criminality for the offence, (herein referred to as the "Johnson factors").
2. However, Hamill J in Johnson [12] also stated that, as the judgment of the majority in Kaminic v R [13] establishes: "It does not follow that if the assistance an accessory renders is of a different or less direct kind (as well it might be in the case of a contract killing of the kind alleged here) that it necessarily constitutes offending of a lesser order of objective seriousness. Each case must be assessed on its own facts."
3. With great respect to his Honour's analysis, with which I agree, it should be emphasised that the Johnson factors do not purport to be an exhaustive list of factors which must be considered in every case involving the crime of accessory after the fact to murder. The significance of each Johnson factor in assessing the objective seriousness of an offence will vary depending on the facts and circumstances of each case.

Johnson factors

1. The murder of the deceased by Mr Liu was, as submitted by the Crown, a senseless killing in the context of the criminal activity that I have described in the summary of the objective facts above.
2. The Crown also submitted that the murder was planned. That is no doubt correct. The Crown contended that the Court should take into account the fact that the murder was planned in assessing the objective seriousness of the offence although did not expressly submit that that factor, in and of itself, increased the objective gravity of the offence. Mr J Stratton SC who appeared for the offender disputed that the Court should take that approach, contending that the significance of a factor of that kind in sentencing with respect to an accessory after the fact charge will depend upon the particular circumstances of the murder and the acts of the accessory in relation thereto. That approach is certainly consistent, in my view, with a proper understanding of Johnson.
3. Before I turn to that question specifically, it is important to mention two other factors: the precise acts which constitute the offence of being an accessory after the fact to murder and the extent of the knowledge of the accessory of the circumstances of the murder.
4. In this case there is no dispute that the acts of the offender which constituted the offence of accessory after the fact to murder included moving the body of the deceased using a tractor to transport the deceased (after Mr Liu and Mr Wong had carried the body to the machinery) to an area on the farm, and then using an excavator to excavate a large hole and bury the corpse under the direction of his supervisor.
5. It was common ground that the offender did not have any advance knowledge of the intended murder but rather was confronted with the situation of the murder after he was called to his own bedroom after the deceased had been killed.
6. I consider that the offenders lack of knowledge of any aspect of the murder other than in being confronted with the fact of it significantly diminishes planning as a factor in assessing the objective seriousness of the offence. Nonetheless, the circumstances of the murder, including the criminal context in which it was undertaken, must have some role in the assessment of the objective gravity of the offending.
7. The Crown submitted that the offender's assistance to the murderer was not in the category of a "spur-of-the moment" reaction as discussed in R v Farroukh and Farroukh. [14] The Crown did not dispute that the conduct of the offender, which constituted the offence, occurred throughout the course of one day, namely, 28 December 2020.
8. There appeared to be two circumstances relied upon by the Crown in this respect. The first concerned the fact that there was a gap in time between when the offender observed the deceased and the various acts which then occurred as constituting the offence up to the point of burying the body. The second consideration was that the offender was aware of the murder and undertook his accessorial actions on the day of the murder, namely 28 December 2020, but was not arrested until 25 March 2022 where upon a day later (after initially declining to answer questions) he provided an induced statement in which he nominated the murderer and gave information about the location of the deceased.
9. The offender accepted that he gave assistance during the course of the day when the deceased was moved and buried. However, the offence could not be considered as continuing over time particularly given the ultimate confinement of the offence to one day.
10. There would seem to be no dispute that the Court should have regard to the accessorial acts occurring during the course of the day of the murder nor could there be any doubt that the offence itself did not continue over a longer period of time. The Crown is correct to submit that the accessory after the fact to murder charge was not strictly a "spur of the moment" offence having regard to the discussion in Farroukh.
11. However, this finding is not conclusive of the question of whether the accessorial acts were undertaken in circumstances of non-exculpatory duress because that requires a consideration of whether any implied threat continued to act upon the offender when he undertook the accessorial acts.
12. Turning to the extent to which the principal offenders were assisted, there was no dispute that the Court may have regard to the length of time between the date of the murder and the arrest of Mr Liu on 29 March 2022. That matter will be taken into account in assessing the objective seriousness of the offence.
13. In Johnson, consideration was given, in the context of the motivation of the offender, as to whether the offender's conduct was motivated by a sense of misguided loyalty or emotional attachment to the principal offender. I accept in that respect that there was no personal relationship (in the sense of a familial relationship or sense of loyalty) with the principal and that, in those circumstances, the acts which constitute the accessory after the fact to murder offence might be viewed more seriously. However, I do not accept the submission of the Crown that the motive for the offender's acts, or at least the factors resulting in the accessorial acts, may not be discerned. Even on the Crown case, it was accepted that the accessorial acts were motivated by a sense of fear and the internal conflict associated with making a difficult choice, qua Wilkinson. Both of these considerations feed into the question of non-exculpatory duress to which I will now turn.

Submissions

1. The offender submitted that the Court should find in relation to the accessory after the fact to murder offence that there was non-exculpatory duress operating on the offender. [15]
2. It was submitted by the offender that in The King v Anna Rowan (A Pseudonym), [16] the Court made it perfectly clear that the Court accepted that the defence of duress could be made out where the threats made to the accused were implied, rather than express.
3. It was further submitted by the offender that an implied threat of violence to an accused may be sufficient for an accused to raise the defence of duress. A fortiori, an implied threat of violence towards an accused may be sufficient to satisfy the Court that non-exculpatory duress is a mitigating factor.
4. In the present matter, the Court should conclude that there was an implied threat of death or extreme violence being made against the offender unless he did what he was told.
5. The offender emphasised the following matters from the objective facts: 1. After being called to the upstairs room and observing Mr Liu and Mr Wong in the room with the deceased lying dead on a bed Mr Liu said to the offender "you work for me now" whilst Mr Wong was holding a 30cm long knife in his hand. The offender was "directed" by Mr Liu to transport the body of the deceased and dig a hole in which the deceased's body was buried. 2. In the induced statement the offender stated that he was "very frightened at that time". Reliance was also placed on the induced statement where the offender stated that he was "too afraid to leave the farm or do anything. The farm was locked. I couldn't leave. I was scared of them and the boss; they have all my details, they recorded my Driver Licence and my phone… I was afraid for my life.". 3. The offender stated to Dr Gerald Chew, a consultant general and forensic psychiatrist who prepared a psychiatrist assessment of the offender after interviewing him on 20 January 2025, that he was "involved after the murder under duress, being threatened by others there". The offender is also recorded as stating that those present threatened to kill him if he did not assist.
6. Having regard to the supplementary submissions by the Crown the position which may be ultimately distilled out of the Crown submissions is as follows: 1. Duress requires a threat (express or implied) by another. 2. The evidence adduced does not provide a sound basis to find that the offender has met his onus of establishing non-exculpatory duress. The gap in time between when the offender observed the deceased and the various acts which then occurred as constituting the offence up to the point of burying the body, raises a question as to whether the offender had other options available to him, as opposed to a situation where there is an immediate and ongoing threat. 3. Subjective fear of harm, in absence of a threat, express or implied, can still be taken into account in mitigation of penalty. However, this should not be classified as duress. 4. The doctrine of 'duress of circumstances' has not yet been adopted at common law. [17] 5. The Court is entitled to approach non-exculpatory duress claims with a significant degree of circumspection. That sceptical approach should be applied in the present matter because no express threat to the offender by Mr Liu or Mr Wong is recorded in the ASF or the induced statement. The reference to acting under duress in the report given to Dr Chew should be understood in the context of it being an unsworn statement by the offender to his psychiatrist that was not the subject of cross examination and which was inconsistent with the ASF. 6. None of the statements or facts in the ASF, induced statement or the passage of Dr Chew's report would properly permit the Court to draw an inference from the facts that there was non-exculpatory duress as sought by the offender.

Relevant Principles

1. Both parties relied on the principles set out in Tiknius in relation to the question of whether the offender was acting under non-exculpatory duress. It is useful to set out the facts of that case.
2. Mr Tiknius was sentenced in the District Court of NSW for two serious drug importation offences. He was a Lithuanian national who had come to Australia in 2007 and again in 2008 in order to facilitate the recovery and distribution of imported border controlled drugs. The sentencing judge in the District Court accepted his evidence that he did so in order to expunge a substantial debt owed to a man who, for about a year prior to the first offence, had been regularly supplying him with cocaine. Mr Tiknius had not been required to pay for the drug but then the man demanded repayment of AUD$42,000.
3. The man threatened Mr Tiknius and his girlfriend with serious harm unless he performed "a job" for him which involved travelling to Australia in order to collect some freight, store it and then pass it on to some people. The threats included holding a gun to Mr Tiknius' head and statements to the effect that his girlfriend would be raped and shot. Although Mr Tiknius was not informed of the nature of the "freight", he assumed it was something illegal. He said that he could not inform the police because he suspected that the man had connections with corrupt officers.
4. It was contended on appeal that, whilst the sentencing judge had found, on the balance of probabilities, that Mr Tiknius had committed the offences under duress, her Honour had failed to take this into account in assessing the objective seriousness of the offences and subsequently failed to give it adequate weight in allowing an appropriate reduction in the sentences imposed.
5. It was held that the primary factual findings of the sentencing judge ought to have translated into a finding of a significant reduction in Mr Tiknius' moral culpability and a corresponding reduction in the objective seriousness of the offences.
6. Before further turning to the principles and authorities governing the relevance of non-exculpatory duress as a factor on sentence, it is helpful to distinguish the concepts of duress and non-exculpatory duress.
7. The notion of "non-exculpatory duress" as a mitigating factor on sentence was discussed at some length by Johnson J in Tiknius. [18] Before turning to the question of non-exculpatory duress, Johnson J first considered the concept of duress, stating: [19] "The concept of duress is well known to the common law. In R v Z [2005] UKHL 22; (2005) 2 AC 467 at 489 [17], Lord Bingham of Cornhill said: "The commonsense starting point of the common law is that adults of sound mind are ordinarily to be held responsible for the crimes which they commit. To this general principle there has, since the fourteenth century, been a recognised but limited exception in favour of those who commit crimes because they are forced or compelled to do so against their will by the threats of another. Such persons are said, in the language of the criminal law, to act as they do because they are subject to duress."
8. In doing so, Johnson J drew a distinction between duress, being a complete defence to a charge, and non-exculpatory duress, being a mitigating factor on penalty. That mitigating factor was described thus: [20] "Where an offender commits a crime whilst acting under duress which falls short of a complete defence to the charge, that duress is capable of being a mitigating factor on penalty."
9. The concept of non-exculpatory duress will only ever arise on sentence, which further underscores the distinction from the defence of duress.
10. This is an important distinction to make as a matter of principle and is particularly apposite given the recent High Court decision on the defence of duress, Rowan, to which both parties drew attention (in supplementary submissions). Accordingly, I will now turn to Rowan.
11. In June 2021, the respondent (Anna Rowan - a pseudonym) was tried before a jury in the County Court of Victoria for 13 counts of sexual offences committed with her partner, "JR", against two of their daughters between 2009 and 2015. The respondent denied committing the offences and before the trial commenced sought to have a defence of duress put to the jury.
12. The respondent contended that, even if she was found to have committed the acts, she was not guilty of the offences as she reasonably believed that JR had threatened harm to both her and their children, which would be carried out unless she committed the offences. In support of her application, the respondent relied on evidence given by her two daughters, a forensic psychologist's report and tendency evidence concerning JR, all of which described JR's threatening, violent and controlling behaviour towards the family.
13. The trial judge ruled that there was no factual basis for the defence of duress to be properly raised before the jury. The jury found the respondent guilty of 12 of the 13 counts.
14. The respondent sought leave to appeal against her convictions and sentence in the Court of Appeal of the Supreme Court of Victoria ("VCA"). That Court upheld the respondent's appeal, quashing the conviction of the County Court jury and ordering a retrial on the basis that the trial judge had erred in not allowing the defence of duress to be put to the jury.
15. The VCA held that it could be inferred, given the combined psychological, physical and sexual abuse inflicted by JR against the respondent over a period of years, she was "the subject of a continuing or ever-present threat", which was a sufficient form of harm to establish the threat required for the defence of duress. The VCA also found that, based on the evidence given by the respondent's daughters and the forensic psychologist's report, it would have been open to the jury to conclude that the respondent was subject to an "unstated" demand that she commit the acts that constituted the offences or she would be subject to physical and sexual abuse.
16. The issue for determination by the High Court was whether the VCA erred in concluding that evidence adduced before a trial judge on a voir-dire of "a continuing or ever-present threat" was sufficient to raise the defence of duress both at common law and under s 322O of the Crimes Act 1958 (Vic).
17. In the High Court, the appellant contended that, by inferring that the respondent was the subject of a continuing or ever present threat, the VCA had erroneously extended the law of duress so as to include 'duress of circumstances', which has not been adopted in "non-code" Australian jurisdictions that applied the common law defence of duress, despite being an accepted defence in England and Wales.
18. The High Court unanimously dismissed the appeal, finding that the VCA did not adopt or apply the doctrine of 'duress of circumstances'. The High Court held that the decision of the VCA was consistent with the accepted understanding of the nature of the threat required for the defence of duress at common law in Australia, in that a threat may be implied or "left unsaid", as long as it was "sufficiently present and continuing, imminent and impending" at the time the crime was committed. [21]
19. The High Court did not need to decide in Rowan whether the common law should be extended in the same manner as England and Wales where a doctrine of 'duress of circumstances' has developed.
20. In addressing the appellant's complaints about the VCA's reasoning and conclusion, the High Court first considered the common law concerning duress. [22]
21. The High Court noted [23] that the following statement of Smith J in R v Hurley [24] has been frequently cited as the authoritative statement of the "elements" of the defence of duress: "Where the accused has been required to do the act charged against him (i) under a threat that death or grievous bodily harm will be inflicted unlawfully upon a human being if the accused fails to do the act and (ii) the circumstances were such that a person of ordinary firmness would have been likely to yield to the threat in the way the accused did and (iii) the threat was present and continuing, imminent and impending (as previously described) and (iv) the accused reasonably apprehended that the threat would be carried out and (v) he was induced thereby to commit the crime charged and (vi) that crime was not murder, nor any other crime so heinous as to be excepted from the doctrine and (vii) the accused did not, by fault on his part when free from the duress, expose himself to its application and (viii) he had no means, with safety to himself, of preventing the execution of the threat, then the accused, in such circumstances at least, has a defence of duress."
22. However, as submitted by Mr Stratton SC, the High Court made it clear that the defence of duress could be made out where the threats made to the accused were implied rather than confined to express threats. The High Court referred to two Victorian cases R v Dawson [25] and R v Lorenz [26] to illustrate the nature of the requisite threat, noting that: [27] "[37] The necessity for the accused to be subject to a threat of infliction of the relevant form of harm if the accused fails to commit the acts that constitute the offence charged has been a consistent feature of the consideration of the common law of duress by intermediate courts of appeal in the common law jurisdictions in this country. …. [39] However, neither Dawson nor Lorenz suggests that a threat to inflict the relevant form of harm if the accused fails to commit the acts constituting the charge cannot be implied." (Footnotes omitted)
23. I note that the Crown conceded that non-exculpatory duress may be established by an implied threat (contrary to the Crown's original submissions).
24. Their Honours go on to refer to two further cases, Hurley and Director of Public Prosecutions for Northern Ireland v Lynch, [28] to support their proposition that a threat may be left "unsaid" or implied by the antecedent conduct and violent character of the maker of the threat, as long as the threat (whether express or implied) is "sufficiently present and continuing, imminent and impending" during the execution of the commission of the offence: [29] "[39]… In Hurley, Smith J postulated the scenario of armed men taking possession of a house at gunpoint and sending the accused to commit a crime on their behalf while retaining a hostage such that "the threat to the hostage's life, whether it is formulated in words or left unsaid, may be held to be, during the execution of the commission, sufficiently present and continuing, imminent and impending to found the defence of duress" (emphasis added). [40] The references in Hurley to the threat being "present and continuing, imminent and impending" do not require that all the conduct relied upon as giving rise to the threat be engaged in immediately prior to the crime being committed. Instead, those statements should be taken as conveying a requirement that the threat conform with the description of the equivalent aspect of duress noted in other cases, namely that the threat be "operative" or "effective" at the time the accused committed the acts that constitute the offence charged. The relevant threat does not have to immediately precede the accused's criminal act if there was no reasonable opportunity to avoid committing the offence in the meantime (that being the issue raised by element (viii) in Hurley). [41] The significance of antecedent conduct of the maker of the threat and what is known about their character in determining whether there is a threat to inflict violence unless the accused commits the acts that constitute the offence can be illustrated by the facts in Director of Public Prosecutions for Northern Ireland v Lynch, which was decided before the developments in the law of duress in England and Wales discussed below. In Lynch, the appellant drove a motor car containing a group of gunmen, who shot and killed a police officer. The appellant said that he acted under a threat that, if he did not co-operate, he would be shot. The debate at trial and at two levels of appeal concerned the availability of duress as a defence to murder, a matter that is not of present significance in this case. [42] What is of present significance is the facts that were found to be sufficient to raise the defence of duress in Lynch. The appellant was summoned to meet Meehan, a known "member of the IRA and a ruthless gunman", and was told to drive Meehan and two other gunmen to the scene of the killing. Lord Edmund- Davies described the balance of the evidence that was adduced in support of duress as follows: "It was ... proved that, before the date of the shooting, six policemen had already been murdered in the Ardoyne area, which was a stronghold of the Provisional IRA, and where the appellant lived, and that Sean Meehan was a well-known and ruthless gunman, and the appellant and Bates gave evidence that Meehan was the kind of person whom it would be perilous to defy or disobey and who, on the occasion in question, gave his instructions in a manner which indicated to them that he would tolerate no disobedience. There was no evidence of a direct threat by Meehan or any other person against the life or personal safety of the appellant or any member of his family, but both the appellant and Bates testified to their fear of Meehan and their clear view that their disobedience of his instructions would cause them to be shot." (emphasis added) [43] In the Court of Criminal Appeal of Northern Ireland, it was accepted that this evidence "raised a question for the jury whether Meehan impliedly threatened the appellant with death or serious personal injury". The implication that Meehan threatened the appellant with serious violence or death unless he committed the acts charged arose from Meehan's violent character, antecedent conduct and direction to the appellant on the day of the crime that he assist Meehan in the murder of the police officer." (Footnotes omitted)
25. It is important to emphasise that those passages from Rowan come into sharper focus when it is understood that in Lynch, the violent character and antecedent conduct of Mr Meehan was considered in light of the way in which he gave his instructions to the appellant - in a manner which indicated that he would not tolerate any disobedience. The appellant testified to his fear of Mr Meehan and their clear view that any disobedience of his instructions would cause him to be shot.
26. In supplementary submissions the Crown submitted, as mentioned above, that duress requires a threat (express or implied) by another, and the evidence adduced does not provide a sound basis to find that the offender has met his onus of establishing non-exculpatory duress. The Crown submitted that subjective fear of harm (in absence of a threat, express or implied) should not be classified as duress. Reference was made by the Crown to the fact that the High Court in Rowan did not ultimately consider whether the common law of Australia should adopt a duress of circumstances.
27. Given those submissions of the Crown, I propose to briefly discuss the defence of duress of circumstances which the High Court did not ultimately pass upon in Rowan. I emphasise that neither party in Rowan contended that the common law of Australia should adopt duress of circumstances as an aspect of either necessity, duress or any other defence. It is clear, from the discussion below, that the concept (which in any event is a defence in the common law of England and Wales) has no bearing in the context of a discussion of non-exculpatory duress, particularly in the circumstances of this matter. Although, it may serve to inform the discussion of duress by acting as a counterpoint.
28. The High Court's discussion of duress of circumstances was as follows: [30] "[47] As noted, the appellant's concern is that the Court of Appeal's judgment in this case reflected the adoption of a relatively recent doctrinal development in England and Wales known as duress of circumstances. In In re A (Children) (Conjoined Twins: Surgical Separation) ("Re A"), Brooke LJ traced the development of this doctrine through a series of cases in which the accused was said to be compelled by circumstances to drive unlawfully, such as driving on a pavement to escape a violent gang. The doctrine was described by Simon Brown J in R v Martin as follows: "The principles may be summarised thus: first, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure on the accused's will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called 'duress of circumstances'. Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury." [48] This passage subsumes two forms of "duress", being duress from threats and "duress of circumstances", into a single defence of necessity that is conditioned upon the need for the accused's response to be reasonable and proportionate. In R v Howe, Lord Hailsham described duress arising from wrongful threats as a "species of the genus of necessity". However, in Re A, Brooke LJ distinguished between the form of "necessity" discussed in the above extract from Martin, and "pure necessity" as discussed in Stephen's Digest, and which has been developed in this country. Brooke LJ noted that with "pure necessity the [accused's] mind is not irresistibly overborne by external pressures" as is the case with duress by threats or circumstances. Instead, the accused's "conduct [is] not harmful because on a choice of two evils the choice of avoiding the greater harm was justified". Whether there is a distinction in England and Wales between necessity and duress of circumstances has not been finally determined. [49] It is not necessary to explore this doctrinal development further given neither party contended that the common law of this country should adopt duress of circumstances as an aspect of either necessity, duress or any other defence. Both parties accepted that it is an element of duress that there be a threat to impose the relevant form of harm unless the accused commits the acts that constitute the offence charged." (Footnotes omitted)
29. In addition to the authorities set out in Rowan, it is helpful to turn to a number of secondary sources which describe the defence of duress of circumstances. Halsbury's Laws of England describes the defence of duress of circumstances as follows: "The defence of duress of circumstances is concerned with the situation where the defendant acts to avert what he reasonably believes to be a threat of death or serious physical injury to himself (or to another person for whom he is, or for whom he would reasonably regard himself as, responsible), where from another person or from a natural cause. Unlike the defence of duress by threats, the threat does not have to be accompanied by the instruction to commit an offence 'or else'." [31] (Footnotes omitted)
30. The rationale to the defence of duress of circumstances is discussed by Williams and Baker in 'Treatise of Criminal Law' 6th Edition: [32] "If the reason for allowing the defence of duress is the unlikelihood that the law's threats will be effective on a person who is wrongfully threatened with death or serious injury, the same reason should support a defence where the duress arises not from a direct human threat, but from pressure of circumstances. The circumstances may be an act of nature or may be human made. If D starts shooting at V and as a result V commits criminal damage by breaking into a house to take refuge, the circumstances that force D to commit criminal damage are human made. If D takes a motor vehicle without authority to escape from a village because it is about to be engulfed by a tsunami, the circumstances that force D to take the vehicle are created by a natural event. Therefore, this is another way of looking at some (by no means all) cases of necessity, and it should be a valid argument even if the courts reject the defence of necessity. The defence has been called duress of circumstances. It operates not theoretically as a justification (as necessity is) but as an excuse, similar to the excuse of duress in the pure sense. This may be more palatable to some people on facts like those in R v Dudley and Stephens, where a moralist may be unwilling to accord a justification but will accord an excuse. (D's will is overborne.)" (Footnotes omitted)
31. Where the authors reference "duress in a pure sense" they note that duress in a pure sense involves direct commands - D1 commands D2 to commit crime X, and threatens death or serious injury to get D2 to follow their command. [33]
32. Therefore, as noted by the High Court in Rowan, the difference between duress and duress of circumstances is the absence (in duress of circumstances) of any threat to inflict harm if an accused fails to commit the offences in question. [34] For example, "[i]f the defendant steals a motor vehicle to avoid being shot, it is enough to show that the defendant committed the crime to avoid the threatened harm," [35] rather than, for example, being told by the shooter to steal the motor vehicle in order to avoid being shot.
33. Having embarked upon that introductory discussion of relevant principles regarding duress and non-exculpatory duress, I will now focus particular attention on the relevance of non-exculpatory duress in sentencing. Where duress falls short of a complete defence to a charge, it is capable of being considered as a mitigating factor on penalty. In this regard, Johnson J in Tiknius set out a number of ways in which a consideration of non-exculpatory duress on sentence may arise: [36] "[37] The relevance of non-exculpatory duress in mitigation of sentence may arise after trial and conviction, where duress has been a trial issue. In that case, it will be necessary for the sentencing Judge to make factual findings as part of an assessment whether this factor assists the offender on sentence and, if so, to what extent. Of course, the fact that the jury has rejected the defence of duress does not mean that threats or other conduct falling short of the defence, cannot be taken into account on sentence: R v Oblach at 86 [69]-[70]. [38] Where the trial has proceeded before a Judge sitting alone, the findings made leading to the rejection of the defence of duress may assist a determination of the relevance of non-exculpatory duress on sentence: R v Lorenz (1998) 146 FLR 369 at 377. [39] Where an offender pleads guilty to an offence, there is, of course, an admission of all the elements of the offence and an acceptance that a complete defence of duress is not available: R v Razzak at 140 [27]."
34. As expressed by Johnson J (with whom Payne JA and Simpson AJA agreed) in Tepania v R: [37] "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way."
35. In Tiknius, Johnson J cited the following passage from R v Day [38] to describe the role of non-exculpatory duress on sentence: [39] "There may be instances in which a person acts under fear or from threats as a result of which he may be considered to be less culpable than an offender who is not under pressure to offend. The rationale for regarding such circumstances as a mitigating factor were discussed by King CJ in Trocko [(1988) 142 LSJS 412]. He said: "I think that as a matter of principle threats made to an offender which fall short of supporting a defence of duress may nevertheless be taken into account by way of mitigation of penalty. I think that that must be so for two reasons. The fact that a person acts out of fear in consequence of intimidation may well in certain circumstances affect the degree of his subjective or moral culpability with respect to the conduct for which he is before the court. Moreover, the same consideration may affect his prospects of rehabilitation. The fact that the offence has not been committed out of motives of greed or malice but rather out of fear may carry with it the consequence that if the cause of the fear is removed, the offender will be unlikely to offend again. But whether in a particular case the fact that fear of intimidation has played a part in the commission of offences, should result in a reduction in penalty must depend on the circumstances of the particular case."
36. Hence, duress, falling short of a complete defence to a charge, may be taken into account on sentencing as a factor which reduces an offender's moral culpability and consequently the objective seriousness of the offence. This is the essence of non-exculpatory duress.
37. The onus of proving non-exculpatory duress on the balance of probabilities lies upon the offender. [40]
38. The approach to non-exculpatory duress is, therefore, as follows: 1. The offender must prove on the balance of probabilities that their involvement in an offence was affected by duress. This may be established, for example, by documentary evidence such as a record of interview or police statement or oral testimony from the offender themselves which may be tested in cross-examination. 2. Where the offender discharges this onus, the Court will then determine what weight should be given to that factor on sentence, which will depend on the circumstances of the particular case. [41]
39. The Court in Lindsay v The Queen [42] also emphasised the need for the offender to establish (and not merely assert) claims of duress.
40. A consideration of whether the offender had other motivations, such as financial gain, in addition to acting under duress will also be relevant in determining whether a causal connection exists between the non-exculpatory duress and the commission of the crime. [43] This will involve a consideration of what the principal motivation of the crime was [44] and whether the offender acted as a result of the duress (or some other motive).
41. It must be emphasised that "sentencing courts are entitled to approach claims of non-exculpatory duress with a significant degree of circumspection" and "[a] careful and close assessment of evidence adduced to support such a claim should be made, with the onus of proof upon the offender kept firmly in mind". [45]
42. Reference may be made in that respect to the judgment of Payne JA in R v Adam Cranston [46] where his Honour made the following observations about non-exculpatory duress with which, with respect, I agree: 1. The Court is entitled to approach non-exculpatory duress claims with a significant degree of circumspection. It is easy to make claims as to the conduct of persons applying pressure on an offender. 2. The Court is required to make careful assessment of the evidence in support of asserted non-exculpatory duress. The onus of proof is on the offender. Even where that onus is discharged, the Court still has to decide what weight non-exculpatory duress has on sentence. 3. The Court is also required to consider the form and duration of the offender's conduct, the nature of threats made and the opportunity to report this to the authorities. 4. The Court is required to articulate the objective gravity and moral culpability of the offending in light of the duress.
43. As was described above, in the event that the Court were to find non-exculpatory duress then there remains the further discussion as to what weight should be given to that factor on sentence. I turn to the relevant principles bearing upon such an assessment.
44. I set out below a number of factors which may, amongst others, be considered in attributing weight to the existence of non-exculpatory duress on sentence: 1. The form and duration of the offender's criminal conduct. [47] 2. The nature of the threats made. [48] 3. Consideration of opportunities which were available to the offender to report the matter to relevant authorities. [49] 4. The relevance of other choices available to the offender than to commit the offences charged. [50]
45. While it is recognised that the fact an offence is committed out of fear may mean that the offender is unlikely to offend again, [51] it has also been established that general deterrence will have a particular significance in matters where duress is relied upon. In Tiknius, Johnson J observed: [52] "[51] General deterrence has a very substantial role on sentence in cases where non-exculpatory duress is relied upon by the offender: R v Riddell at 536-539 [54]-[63]. The grooming and pressuring of persons to become involved in drug importation offences have been said to be "unremarkable features of many importation offences": Anna Le v R at [32]; R v Huynh at [11]. At times, the persons targeted by those recruiting them are said to have submissive or compliant personalities (R v Liu at [34]) or to be naive (Anna Le v R at [32]). [52] In R v Roach [2005] VSCA 162, Callaway JA (Ormiston and Charles JJA agreeing) observed at [15]: "General deterrence is not excluded by threats. On the contrary, general deterrence may provide a counter-threat." [53] In R v Z, Baroness Hale of Richmond adverted to considerations of this type at 509-510 [70]: "As Professor Andrew Ashworth, Principles of Criminal Law, 4th ed, (2003), p 228 points out, there are other policy problems with relying on duress as a mitigating factor: 'Mitigation may be right if 'desert' is the basis for sentence, but supporters of deterrent sentencing have a particular problem. Their general approach is to maintain that the stronger the temptation or pressure to commit a crime, the stronger the law's threat should be in order to counterbalance it. The law and its penalties should be used to strengthen the resolve of those under pressure.' That is, indeed, a common approach to sentencing: in drug smuggling cases, for example, the 'mule' may well have been subjected to intense pressure to carry the goods into the United Kingdom, but heavy sentences are imposed, not only to deter others from succumbing to such pressures, but also to deter the barons from using them. Mr Perry, for the Crown, argued that it was doing the vulnerable no favours to expand the scope of duress for their benefit, as this would merely encourage their duressors to exploit them." [54] An assessment of these various considerations, some of which pull in different directions, is required in a case where non-exculpatory duress is established by an offender."

Was the offender acting under non-exculpatory duress?

1. I will turn now to the principles associated with non-exculpatory duress as they relate directly to this particular matter.
2. At the risk of some repetition, it is important to acknowledge the context in which the consideration of non-exculpatory duress has arisen, namely, that the offender has plead guilty and been convicted of the accessory after the fact to murder offence and as Johnson J acknowledges, there is consequently an admission of the elements of that offence and an acceptance that a complete defence of duress is not available to the offender. [53]
3. The precise acts which constitute the accessory after the fact to murder offence have already been set out in this judgment. Whilst involving some repetition, what follows draws from that source more generally the factual substratum from the ASF and the aforementioned statements made by the offender in the induced statement, which I have accepted, in a roughly chronological order. This structure serves to sharpen focus on the issues particularly bearing upon the consideration as to whether the accessorial acts were carried out in circumstances of non-exculpatory duress. Those facts were as follows: 1. Mr Liu called out to the offender to come upstairs to the bedroom he shared with the deceased. The offender entered the room to find the deceased lying on the bed, dead, bleeding slightly from his nose. The offender was "very frightened at that time" (Mr Liu looked red like someone who just finished at the gym and was standing next to the deceased). Mr Liu walked up to the offender and said, "you work for me now". Mr Wong was also present in the bedroom at that time and had a knife in his hand, which was 30 cm long and had a blue handle and a silver blade. Mr Wong was holding the knife in a reverse grip against his forearm. Mr Wong appeared to have been brought along by Mr Liu and it appeared Mr Liu was instructing Mr Wong. 2. Mr Liu and Mr Wong moved the deceased's body from the bedroom. Mr Liu and Mr Wong asked the offender to help carry the deceased's body out of the room, but the offender "just could not do it". The offender, on Mr Liu's direction, drove the tractor to the front door of the house. Mr Liu and Mr Wong carried the deceased's body down the stairs and through the house to the front door where the offender was waiting for them. 3. Mr Liu and Mr Wong placed the deceased's body in the bucket of the tractor. Mr Liu and Mr Wong stood on the tractor next to the offender while the offender drove the tractor away from the house past the "growing igloos", to a creek on the property. Upon finding a clear space of land near the creek, the offender stopped the tractor. Mr Liu and Mr Wong removed the deceased's body from the front of the tractor. Mr Liu told the offender to dig a hole using the excavator. He said, "you go get the excavator to dig a hole". 4. The offender drove the tractor back to the location of the excavator and then drove the excavator to the burial site and began using it to dig a hole approximately 2 metres deep and 3 to 4 metres wide. It took a long time for the offender to dig. Mr Liu and Mr Wong then placed the deceased's body in the hole and the offender filled the hole in with dirt. 5. Mr Liu and Mr Wong asked the offender to drive them to a bar in town, which was about a 30 minute drive. The offender did so and after some time Mr Liu instructed the offender to take him back. The offender then drove both Mr Liu and Mr Wong back to the farm. Upon returning to the farm, Mr Liu said to the offender "don't ever talk about this again, this is from the boss". 6. The offender told police that "[Mr Liu] and [Mr Wong] remained [at the farm] for three or four nights" and "[n]o other people came during that period". The offender then told police, "I was too afraid to leave the farm to do anything. The farm was locked, I couldn't leave. I was scared of them and the boss; they have all my details, they recorded my Driver Licence and my phone. I went out one day and purchased a lock, and installed it on the door to my bedroom at the farm and was afraid every night". The offender also stated "[o]ne day after that I came downstairs and saw the gun safe was open and all the firearms were removed. I was afraid for my life".
4. The Crown submitted that little weight could be attached to the offender's account to Dr Chew that others had threatened to kill him if he did not assist. For reasons given later in the consideration of subjective factors, I have rejected that submission.
5. It must be at least implicit in the Crown's submissions that, in accepting the 'Wilkinson factors' were present in the present matters but nonetheless there was not a proper basis to find non-exculpatory duress, that in substance the Crown was contending that there was not an implied threat made to the offender, even though there was a subjective sense of fear. The further limb of the Crown case was that, even if there was an implied threat in the offender's bedroom, the threats did not operate upon the offender at any subsequent time up to and including the burial of the deceased. It follows that the fulcrum of the Crown case in this respect was that, at least, there was no implied threat operating from the time the offender left the bedroom to obtain the tractor.
6. I have accepted that the offender did not have any advance knowledge of the intended murder and was confronted with the situation of the murder when he was called to his bedroom after the deceased was killed. The circumstances the offender was confronted with when he entered the bedroom were: 1. an observation that Mr Liu, who was standing near the deceased, had killed the deceased by some violent act having regard to Mr Liu's appearance and position and the appearance of the deceased; 2. a declaration by Mr Liu that "you work for me now"; and 3. Mr Wong (who according to the offender in the induced statement was instructed by Mr Liu) held a 30cm knife.
7. It should also be observed that the role of the offender in the criminal undertaking was not that of a leader or principal. Nor did the offender appear to take any role in controlling or directing the criminal enterprise, although he had hoped for financial gain and had invested money into the enterprise.
8. A conclusion may be readily reached in those circumstances that the offender was not only fearful in an abstract way but feared for his life when he was in the bedroom with Mr Liu, Mr Wong and the deceased. The declaration by Mr Liu at that very point that "you work for me now" surely indicated to the offender that if he did not comply with Mr Liu's instructions that he may befall the same fate as the deceased. Put slightly differently, in the circumstances of this matter, Mr Liu had conveyed an implied threat that, if the offender did not comply with his instructions, the offender may be killed or suffer serious harm. There was a proper basis to find in those circumstances the existence of non-exculpatory duress for the period the offender was in the bedroom during which period the offender received the first instruction, namely, to bring the tractor to the front door of the farmhouse.
9. The question that then arises is whether that implied threat continued to operate upon the balance of the acts of the offender said to constitute the accessory after the fact to murder offence. The starting point for that analysis is that it is clear that the offender was directed by Mr Liu to assist with transporting and burying the body of the deceased. Those instructions were not in the abstract. The induced statement records that the offender was specifically directed to bring the tractor to the farmhouse and later directed to obtain the excavator when located at the burial site. It follows that to do neither of those things (or to flee) would have been in direct contravention of Mr Liu's direction.
10. To those foundational facts there may be added a further consideration. Whilst the offender was alone between leaving the bedroom (when he received the first instruction) and collecting the tractor, and leaving the burial site and returning with the excavator, at all other times referable to the acts constituting the accessory after the fact to murder offence the offender was accompanied by (in the case of the tractor) or in the presence of (in the case of the burial process) Mr Liu and Mr Wong. That proximity between the offender and Mr Liu and Mr Wong was at all times in the presence of the deceased in that the tractor conveyed the deceased to the burial site and then the deceased was plainly the subject of the burial. In my view, during those occasions (which represented a substantial proportion of the acts constituting the offence) there is no substantial difference to the pressures operating upon the offender at that time than those involved whilst he was situated in the bedroom. Mr Liu did not need to repeat his earlier declaration, which formed an important part of the implied threat, namely, "you work for me now", in order for that concern to remain active in the offender's mind on the above occasions. In other words, the implied threat made in the bedroom was still active upon the offender at these times.
11. In reaching the above conclusions, I have given consideration to the fact that the offender was requested by Mr Liu to carry the deceased's body but the offender stated he "just could not do it". Whilst not raised by the Crown, it may be suggested that that fact might give rise to an inference that the offender did actually retain a choice as to whether or not to be involved in transporting and burying the deceased. However, in my view, the fact that the offender retrieved the tractor rather than carrying the deceased's body does not go so far as to suggest that the offender had a choice of whether or not to be involved at all. Clearly, the offender was distressed by the idea of touching the corpse of the deceased and as a result was instead instructed by Mr Liu to retrieve the tractor. What is clear is that whatever course was taken at that juncture was under the edict of Mr Liu.
12. That does not entirely resolve the question of whether the Court should find non-exculpatory duress. That is because there were periods of time between the offender attending the bedroom and the burial of the deceased in which the offender, as I have mentioned, was not physically in the presence of Mr Liu and Mr Wong.
13. The first time period in which the offender was left alone was to retrieve the tractor and drive it to the house. It can be inferred from the facts, and in particular the fact that the offender had presented the tractor to the front door of the farmhouse before Mr Liu and Mr Wong had reached that location with the deceased's body from the bedroom, that this time period must have been quite short. There is no inconsistency, in my view, between that conclusion and the conclusion that the accessorial acts were not 'spur of the moment' because there was a relevant gap in time. What is noteworthy here in considering non-exculpatory duress is that the period from the offender receiving the instruction and acting upon that instruction was very short. The opportunity for deliberation by the offender in this period was exceedingly small given the pressure under which he was operating.
14. There is a further consideration in this respect. Unless it is surmised that Mr Liu and Mr Wong were delayed in bringing the deceased to the front door of the farmhouse (and nothing on the facts would tend to that conclusion) then it may be inferred that the tractor was located not far from the farmhouse itself. Thus, it would have been readily apparent to Mr Liu and Mr Wong (and presumably the offender) that if the tractor was not available shortly after Mr Liu and Mr Wong had reached the front door that the offender had not complied with the direction or there was some delay in him acting upon the direction. This may well account for the swiftness of the offender retrieving the tractor. That is particularly significant because, as in Wilkinson, it is reasonable to conclude that any hesitation by the offender would have revealed him as a risk to the co-offenders who had only a short time earlier been involved in the murder of the deceased.
15. I turn then to consider the last time period relevant to the offending.
16. It is unclear on the evidence just how close the burial site was to the farmhouse and, in turn, how close the burial site was to the location of the excavator. There are some suggestions in the induced statement which might suggest proximity - the tractor drove past the igloos for about another 30 seconds and there was no indication of significant delay involved in driving the tractor back to the location of the excavator, retrieving the excavator and returning to the burial site. Nonetheless, there must remain some doubt as to the time involved between leaving the burial site, retrieving the excavator, and returning.
17. That does not mean that the question of the time to engage in this part of the accessorial acts is entirely irrelevant. Mr Liu and Mr Wong would have been well aware of the time that it would take to retrieve the excavator as, of course, would the offender. Furthermore, Mr Liu and Mr Wong were waiting for the offender to return, no doubt anxious to have the body disposed of by means of burial by the use of the excavator which was being retrieved by the offender under the direction of Mr Liu.
18. The factors indicating the continued existence of the implied threat in this last time period are, therefore, not as strong as any earlier period but I have nonetheless reached the conclusion that, whilst a greater (and perhaps only) real opportunity for the offender to escape presented itself after he left the burial site to retrieve the excavator, the implied threat that emanated from the encounter at the bedroom and the likely consequences of non-compliance with instructions would have, on the balance of probabilities, still been acting upon the offender during this last time period.
19. The offender had, after all, left the menacing Mr Liu and Mr Wong waiting with the deceased and had been directed to return with the excavator for the express purpose of burying the deceased. Neither the effluxion of time nor the prevailing circumstances would have dissipated, in my view, the impact of the implied threat upon the offender's actions to the point where they were irrelevant to the consideration of non-exculpatory duress in this last period.
20. I have given consideration to the descriptions of fear encountered by the offender after the return from the burial over some number of days following the burial. Contrary to the submission of the offender, I do not think these matters, as significant as they may be in illustrating the offender's fear of Mr Liu and Mr Wong, may be taken into account directly in relation to the last time period here under consideration. However, they do tend to underscore in a real and practical sense the fear held by the offender, which did not appear in any way exaggerated given the circumstances, and how they continued to operate well after the time of the burial.
21. Having approached the question of the offender's case for a finding of non-exculpatory duress with a significant degree of circumspection and undertaken the aforementioned careful assessment of the evidence said to support that claim, I am satisfied that the offender has discharged his onus to prove the existence of non-exculpatory duress with respect to the accessory after the fact to murder offence.
22. There still remains the question of the weight to be given to this factor. Little attention was given by the parties in their submissions as to that consideration. In my view, the factors bearing upon that question are as follows: 1. The accessory after the fact to murder offence, as previously mentioned, occurred throughout the course of a single day. The precise accessorial acts constituting the offence involved part of that day. 2. The offending did not constitute acts in direct association with the murder but acts involved in the disposal of the deceased's body, although all of the events occurred in the context of a criminal enterprise. 3. The threat made to the offender was not express and has been implied from the evidence having regard to the circumstances in which the offender found himself after being called to the bedroom. 4. Whilst there was a theoretical prospect that the offender may escape or make a report to the authorities when he left the burial site to obtain the excavator, the choice involved was somewhat illusory given the prevailing and ongoing threat to the offender. However, it must be acknowledged that the force of that duress was, to some extent, less in that last time period. 5. The opportunity for the offender to make a report to authorities was impacted by that implied threat and the circumstances applying on the day of the offending after the burial. Those factors operated for some days after the offence.
23. In the circumstances, I find that a mitigating factor, in considering the sentence for the accessory after the fact to murder offence, is non-exculpatory duress. Considerable weight should be attached to this mitigating factor, but not of the highest order because of the moderating factors involved in the weighing exercise above.

The financial deception offence

1. Senior counsel properly conceded that this offence is serious. The offender offered information regarding (1) the whereabouts of the deceased's body, (2) who had "hurt him", and (3) information about "those people", in exchange for the payment of the sum of $50,000 by the deceased's family. Senior counsel for the offender contended that this sum was a relatively low amount having regard to offences of this kind but conceded that quantum is but one factor in the consideration of the objective seriousness of the offence.
2. The Crown was correct to submit that the Court should place weight upon the actual nature of the dishonesty involved which, in essence, involved a heartless act whereby the offender sought to extract monies from a grieving family desperate to find out details of their loved one, including details of his location after being told that he was dead. The offender properly accepted that this was a relevant consideration bearing upon the objective seriousness of this offence.
3. However, there are additional objective facts which also bear upon the seriousness of this offence.
4. The offender undertook this financial deception independently of Mr Liu, Mr Wong, or any other criminal associate connected to the cannabis cultivation and distribution. Further, the role taken by the offender was one of directing other associates who he engaged to acquire the monies received under the deception.
5. The offender engaged in these acts some 10 months after the murder and his engagement with the family or those acting as the surrogate for the family (including an undercover police officer) extended for a period of approximately 6 months. The monies were received and never recovered.
6. No submissions were advanced as to the remorse of the offender. That approach may be explained upon the basis that there was an absence of expressions of remorse by the offender in the evidence. None were expressed to Dr Chew. Nor were there any expressions akin to remorse within the induced statement.
7. Rather, the induced statement contained a curious statement by the offender that: "I wanted revenge on those responsible for [the deceased's] death. In July 2021, I saw a missing person Facebook post for my friend [the deceased] with a photograph of him on it. I made contact with the author of the post and had conversations with the author as well as [the deceased's] mother. I asked for $50,000 in exchange for information regarding the murder and whereabouts of [the deceased's] remains and to get revenge for them. I asked for this amount because this was the investment, I had committed to the farm at 185 Killongbutta Road, Killongbutta to [the deceased] to assist in getting started. After I made this contact, [Mr Liu] called me on a number I didn't know he had and warned me to stop doing what I was doing. He said if I continued, I would be in danger."
8. Whilst the offender's statement is unclear, and in some respects nonsensical in that he apparently wished to obtain the financial advantage from the deceased's family as a means of obtaining "revenge" against Mr Liu, there is one component of the above extract which may explain the rationale behind his statement which is relevant to the consideration of any remorse.
9. What the offender appears to be stating is that he sought the money from the deceased's family because he had paid that amount of money to the deceased and, in a perverse way, wished to be recompensed by the deceased's family for that payment. His statement was: "I asked for $50,000 in exchange for information regarding the murder and whereabouts of [the deceased's] remains and to get revenge for them. I asked for this amount because this was the investment, I had committed to the farm at 185 Killongbutta Road, Killongbutta to [the deceased] to assist in getting started."
10. I do note that the ASF states that the money was paid by the offender to Mr Liu rather than the deceased but the extracting of payment from the family in order to seek revenge on Mr Liu is, as I have said, nonsensical. On the other hand, his perception of the deceased being responsible for him paying the money (to whoever) would account for a motivation for the offending in relation to the family.
11. In the light of that analysis and the nature of the offending itself, there would be required a very clear statement as to how the offender had reflected upon these acts and was remorseful on the basis of that reflection, or a realisation as to the impact upon the family at the time of the offence or afterwards to demonstrate any remorse. As I have mentioned, no party pointed to anything of that kind in the evidence and that corresponds to my assessment of it, namely, that there is no demonstrated remorse by the offender with respect to this offending.

Form 1 matters

1. As previously mentioned, the funds the subject of the financial deception offence are the funds the subject of the Form 1 proceeds of crime offence. I agree with the submissions advanced for the offender that there is a considerable degree of overlap between the criminality involved in the dealing with the Form 1 proceeds of crime offence, and the obtain financial benefit by deception offence, which is considered above.
2. I consider that the Form 1 proceeds of crime offence should be wholly subsumed into the assessment of the financial deception offence.
3. I accept the submissions of the Crown that, in relation to the knowingly take part in the Form 1 cultivation of cannabis offence, the offender: 1. intended to profit from the operation, but did not; 2. assisted establishing cultivation; 3. was the only heavy machinery driver involved in the operation; 4. tended to the cannabis plants in numerous ways (the operation involved approximately 400 mature plants); and 5. harvested, sealed and boxed or vacuum sealed the produce.
4. As to the second matter raised by the Crown, it should be observed that whilst the offender was a worker on the plantation, he had invested not insignificant monies into a sophisticated cannabis operation.
5. The aggregate sentence I will impose will be increased as a result of the Form 1 cultivation of cannabis offence.

Plea of guilty

1. The offender pleaded guilty to the principal charges in the Local Court. There is no dispute that in those circumstances he should be given the benefit of a 25% discount for the utilitarian value of his pleas of guilty. I shall adopt that approach.

Subjective features

1. The Crown did not attend to the question of subjective features in detail except to respond to Dr Chew's report.
2. The offender gave an outline of the subjective features of the offender's case which was derived from Dr Chew's report and which appeared to be uncontroversial, save as to the diagnosis given by Dr Chew. What follows immediately next is derived from that source after which I will deal with any controversy concerning Dr Chew's opinions.
3. The offender was born on 20 August 1988. He was 32 years old at the time of the offence and is now 36 years old.
4. The offender was born in China. He was an only child and his parents separated when he was around 6 years old. After his parents separated, he was raised by his grandmother and his aunt. He left school at around the age of 17. He was an "average" student. He started training with the police before migrating to Australia.
5. The offender migrated to Australia when he was aged 18 or 19. He is an Australian citizen. He has two children in China, who are cared for by his father. His mother had been in Australia for about 30 years. She had multiple health issues including hypertension, kidney problems, diabetes and heart attacks. She died in hospital in May 2024 while the offender was in custody.
6. In Australia, the offender initially studied English and worked in restaurants, cafes, and a supermarket. From 2015 until 2019 he worked in a food supply company called PMF. After that he had various jobs including building, driving, and working as a chef.
7. While he has been in custody, reports from Corrective services staff show him to have been polite, a hard worker, and all in all a model prisoner.
8. Dr Chew diagnosed the offender as suffering from a major depressive disorder. He developed symptoms in the context of the murder.
9. The Crown invited the Court to regard that psychiatric condition in mitigation, even though the offender was not medicated with respect to the psychiatric condition.
10. The Crown also submitted that the Court may take into account that the offender would have some greater difficulty in obtaining treatment for that psychiatric condition in custody.
11. However, the Crown said that the veracity of the psychiatric report was diminished because it depended upon self-reporting by the offender which was incorrect. In that respect the Crown pointed to: 1. The offender having received death threats. 2. The offender denying being directly involved in the cannabis cultivation or distribution. 3. The offender telling Dr Chew that his involvement after the murder was under duress, being threatened by others there. 4. The offender telling Dr Chew that his associates had threatened to kill him if he did not assist.
12. I have earlier rejected that submission, but will here develop reasons for my conclusion.
13. As to the first of those matters, the Crown did not direct the Court's attention to any material to contradict the offender's account. It is true that in the Corrective Services records the offender is recorded as stating that "he does NOT want protection and does not fear for his safety" [54] in the context of a threat assessment conducted by a prison officer on 31 March 2022. However, this is contradicted by another entry made on 23 May 2022 in which the offender stated to a psychologist in Justice Health that he is "fearful of gang reprisal" and "fearful for his safety". [55] There might be many reasons why the offender may not seek protection notwithstanding his fear for his safety. I am not prepared to, in the absence of other evidence, place less weight on the offender's account on this basis.
14. As to the second consideration, the Crown's submission is correct. However, given the lesser role played by the offender in the cannabis cultivation and distribution, I do not consider that this consideration significantly diminishes the weight to be attached to Dr Chew's report.
15. As to the third consideration, the observations of the offender were not legal propositions or in the nature of a submission. What he was communicating to the psychiatrist was that he felt that he was acting under duress because he was being threatened by others. Even if the matter was approached as Fagan J did in Wilkinson and any threat was entirely indirect, I do not consider that the offender was misleading the psychiatrist as he was attempting to communicate the circumstances in which he found himself after the murder. That position is a fortiori given the Court has found non-exculpatory duress. Furthermore, there is real strength in the submission made by Mr Stratton SC that the approach to the Crown's submissions as to the psychiatrist report should be treated with care given that the Crown did not seek to cross-examine the psychiatrist.
16. As to the fourth consideration, if the offender's statement was intended to be a reference to an express threat, then, plainly on the above analysis, it could not be accepted and would have the effect of diminishing the weight of Dr Chew's opinion in that respect. However, that fine parsing is not appropriate in these circumstances because the offender's statement to Dr Chew may just as easily be understood as communicating an implied threat.

Criminal history

1. The Court will take into account in sentencing that the offender has no prior criminal history and will extend leniency accordingly. I further note that during his time in custody since 25 March 2022 he has had no disciplinary offences.

Assistance to authorities

1. The offender submitted, and the Crown accepted, that there should be a mitigation of sentence for the assistance (and undertaking to assist) provided to law enforcement authorities with respect to the accessory after the fact to murder offence. On the evidence to which I will turn below I accept this common position.
2. However, there was a dispute as to the level of assistance provided and what corresponding discount on sentence should be afforded to the offender for these factors. The Crown submitted that the Court should apply a discount of 5% in addition to a discount of 25% for the utilitarian value of a plea of guilty although the Crown accepted that the amount of discount may extend to 7.5% and 10% ("at an extreme").
3. The offender contended that the assistance was of a "high order" resulting in a discount of 15% to 20% in addition to the discount for the utilitarian value of the plea. There was evidence on this question from the OIC and a solicitor employed in the Office of the Director of Public Prosecutions, Katherine Reardon.
4. The nature and extent of the assistance provided by the offender was as follows: 1. The assistance of the offender was provided some year and a couple of months after the murder. 2. The offender gave an induced statement to police on 25 March 2022 and provided a walk-through on 1 April 2022. The induced statement of the offender indicated that Mr Liu was the person who killed the deceased and provided information surrounding the circumstances of the death, how the death was occasioned, and how the deceased's body was disposed of. 3. Mr Liu was arrested four days after the offender gave the induced statement, on 29 March 2022. Prior to the 25 March 2022 (the date of the induced statement of the offender) police did have a basis to charge Mr Liu with the murder of the deceased and the officer in charge had applied for and been issued a warrant for the arrest of Mr Liu for the offence of murder. In or about May to July 2021, the police had available to them evidence of various admissions made by Mr Liu in relation to the murder of the deceased. 4. However, the offender was the only "live witness" that police had available to give evidence of seeing Mr Liu both shortly before and shortly after the time when the deceased was murdered. 5. The total sum of the assistance provided by the offender was that the information filled in real-time information gaps regarding the actual occurrences around the time of the murder and the offender was able to successfully point out the location of the clandestine grave of the deceased which was corroborative of "another offender" who had undergone the same process. 6. Prior to the offender's assistance, police had information that the deceased's body may have been buried somewhere in a 44-hectare area, which the OIC accepted was quite densely vegetated and quite difficult to search. The offender gave police information regarding the location of the deceased's body within that 44-hectare area, and correctly indicated to police the precise location of the deceased's body. Another police witness also identified the precise location of the deceased's body the day prior to the offender's walk through. The offender was correct to say that the order of the persons identifying the location of the gravesite was decided by police. 7. On 29 September 2023, counsel for Mr Liu advised the Crown that his client was likely to plead guilty to murder. On 4 April 2024, Mr Stratton SC advised the Crown that the offender was willing to plead guilty and give evidence against Mr Liu. I agree that some significance should be attached to senior counsel providing that information. The offender's preparedness to give evidence against Mr Liu was conveyed to Mr Liu on 5 April 2024 with the consent of senior counsel for the offender. Between 5 April 2024 and 30 July 2024, the Crown and representatives for Mr Liu negotiated facts for a plea to murder. Those facts and the plea were confirmed on 30 July 2024. On 14 August 2024, the offender pleaded guilty in the Local Court. Mr Liu pleaded guilty in the Local Court on 28 August 2024. 8. The Crown accepted that the offenders' plea and offer to give evidence had some impact on Mr Liu's decision to plead guilty.
5. In coming to a final conclusion on this matter, I have also had regard to the pre-trial facilitation (and readiness to do so) of the administration of justice by the offender but without double counting other factors concerning assistance referred to above.
6. It is plain that the offender's undertaking to give evidence against Mr Liu was instrumental in Mr Liu entering a plea of guilty, even if police had other facts available to them which may have induced that response. The offender did provide valuable information to police that was not otherwise available to them because he was "a live witness" but police did have sufficient evidence regarding Mr Liu that had led them to the point of intending to make an arrest. Given the size of the farm, the provision by the offender of the location of the body was valuable but principally as confirmatory of the indication of the burial site which had already been given by another offender.
7. In all the circumstances, I have come to the conclusion that the assistance afforded authorities by the offender was significant but not of the highest order in the circumstances as I have found them above. The discount that should be afforded to the offender for assistance to authorities over the discount for the utilitarian value of the plea is 10%.

Deterrence

1. General deterrence must feature in this matter with respect to the financial deception offence, particularly given the callous and opportunistic nature of the offending.
2. Having regard to the earlier discussion of principle and the circumstances of the offending, general deterrence should also feature with respect to the accessory after the fact to murder offence but would attract significantly less weight.

Special circumstances

1. As was stated in Nguyen v R: [56] 58. Section 44(1) of the Sentencing Act, relevantly, provides that when sentencing an offender to imprisonment for an offence, the Court must first set the non-parole period, being that portion of the sentence which the offender is required to serve in custody. Section 44(2) then provides: (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). 59. In Casey v R [2015] NSWCCA 142, Hoeben CJ at CL (with whom Hidden and Adams JJ agreed) stated the principles governing special circumstances as follows (at [36]-[37]): [36] Whether the ratio of the non-parole period to head sentence should be adjusted to less than the 75% prescribed by s 44(2) Crimes (Sentencing Procedure) Act 1999 involves a "discretionary finding of fact" in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]; Caristo v R [2011] NSWCCA 7 at [27]. The decision to find special circumstances is first one of fact to identify the circumstances and secondly, one of judgment to determine that those circumstances justify a lowering of the non-parole period below the statutory ratio: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [73]. [37] The presence of circumstances which are capable of constituting special circumstances does not compel the Court to make such a finding and reduce the non-parole period: R v Fidow [2004] NSWCCA 172 at [22]. The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp [2004] NSWCCA 264 at [31]; Trad v R [2009] NSWCCA 56; 194 A Crim R 20 at [33]; MD v R [2015] NSWCCA 37 at [38]. It follows that no error has been identified in her Honour's finding or approach to special circumstances.
2. Senior counsel made the following short submission in relation to special circumstances. He stated that: [57] "In my submission these are matters where your Honour might think, particularly given the objective factors relating to the matters, it would be a matter where your Honour would be entitled to find that there were special circumstances permitting variation of the statutory ratio between the non-parole period."
3. It is not entirely clear what senior counsel for the offender was referring to in that respect, but I do not consider the objective features of the matter warrant a finding of special circumstances. The Crown did not address the question of special circumstances at all.
4. Notwithstanding the limits of the parties' submissions in this respect, I have turned to consider whether special circumstances should be found because this is the offender's first time in custody. However, I do note that this factor alone would not often result in a finding of special circumstances [58] and I do not consider it forms a proper basis as to find special circumstances in this case. Nothing was raised by the parties with respect to the prospects of rehabilitation, but I would observe that there would not appear that the offender's subjective circumstances would indicate the need for a longer parole period.
5. Accordingly, I do not find the existence of special circumstances in this matter. In coming to that conclusion I have had regard to the principle that the ultimate constraint upon the non-parole period is the criminality involved and, where relevant, an offender's subjective circumstances, must not be reduced to a level beyond that which is "necessary to punish the offender….". [59]

Back date of sentence

1. The offender has been in custody for the offences since the date of his arrest on 25 March 2022. The aggregate sentence I will impose will be backdated to that date.

Totality, concurrency and accumulation

1. In sentencing of the offender, I have had regard to the statutory guidelines of the maximum sentence [60] together with the facts bearing upon the objective seriousness of the offence and subjective features. In all the circumstances, the only appropriate penalty for both the accessory after the fact to murder offence and the financial deception offence is full-time incarceration.
2. In circumstances where the offender is to be sentenced for two discrete offences, consideration should be given to principles of totality and proportionality. In my view, there must be significant accumulation of the principal offences in this matter to ensure that the total sentence reflects the total criminality of the discrete and individual instances of the offending behaviour. [61]
3. The financial deception offence was a reasonably significant time after the accessory after the fact to murder offence and involved different discrete acts by the offender. There was a high degree of moral culpability in this offending behaviour.
4. I have increased the aggregate sentence as a result of the Form 1 cultivation of cannabis offence but consider that the Form 1 proceeds of crime offence should be wholly subsumed by the penalty for the financial deception offence.
5. In all the circumstances, I shall impose an aggregate sentence pursuant to s 53A of the Sentencing Act after applying the discount for a plea of guilty and assistance to authorities and taking into account the Form 1 cultivation of cannabis offence and the maximum penalty for the same.

Sentence

1. For the reasons I have given, I now make the following orders: 1. You are sentenced to an aggregate sentence of 4 years 6 months imprisonment, to date from 25 March 2022 and expiring on 24 September 2026 with a non-parole period of 3 years 4 months, expiring on 24 July 2025. 2. The indicative sentences (having regard to the charges under Form 1 with respect to each offence) are as follows: 1. for the accessory after the fact to murder offence, imprisonment of 1 year 9 months; and 2. for the financial deception offence, imprisonment of 3 years 6 months. 1. The earliest date upon which you will be eligible for release on parole is therefore 24 July 2025.

Endnotes

1. In those circumstances the conditions in s 347 of the Crimes Act are satisfied.
2. R v Ward [2004] NSWSC 420 at [51] (Hulme J).
3. (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J).
4. R v Scott [2005] NSWCCA 152 at [15] (Howie J).
5. See Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [12]-[17] (Gleeson CJ, Gummow and Hayne JJ).
6. R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 at (378).
7. Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70] (French CJ, Bell, Gageler, Keane and Nettle JJ).
8. R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 ("Olbrich") at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
9. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 ("Muldrock") at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
10. [2016] NSWSC 1342 ("Wilkinson") at [34] (Fagan J).
11. [2014] NSWSC 1254 ("Johnson") at [13] (Hamill J).
12. Johnson at [14].
13. [2014] NSWCCA 116 at [45] (Fullerton J (with whom Ward JA agreed)).
14. (Court of Criminal Appeal (NSW), 29 March 1996, unrep) ("Farroukh") (Gleeson CJ (with whom Levine J and Dowd J agreed)).
15. Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365 ("Tiknius").
16. (2024) 278 CLR 470; [2024] HCA 9 ("Rowan").
17. Rowan at [49].
18. Tiknius at [30]-[54] (Johnson J (with whom Tobias AJA and Hall J agreed)).
19. Tiknius at [31].
20. Tiknius at [32].
21. Rowan at [39].
22. Rowan at [33] - [36].
23. Rowan at [34].
24. [1967] VR 526 ("Hurley") at 543 (Smith J).
25. [1978] VR 536.
26. (1998) 146 FLR 39.
27. Rowan at [37] and [39].
28. [1975] AC 653 ("Lynch").
29. Rowan at [39] - [43].
30. Rowan at [47] to [49].
31. Halsbury's Laws of England (5th ed), vol 25 (2020), Criminal Law ("Halsbury's Laws of England"), at par 49.
32. Glanville Williams and Dennis Baker, Treatise of Criminal Law (6th ed, 2024, LexisNexis) ("Treatise of Criminal Law") at par 27.37.
33. Treatise of Criminal Law at par 27.37 fn 2.
34. Rowan at [2].
35. Treatise of Criminal Law at 27.37.
36. Tiknius at [37] - [39].
37. [2018] NSWCCA 247 at [112].
38. (2009) 262 LSJS 187; [2009] SASC 84 ("Day") at [35].
39. Tiknius at [41].
40. Tiknius at [32] citing Olbrich at 281 [26]-[27].
41. See Tiknius at [40] - [49].
42. [2012] NSWCCA 124 (Allsop P (with whom Davies J and Schmidt J agreed).
43. See Cherdchoochatri v R (2013) 277 FLR 126; [2013] NSWCCA 118 at [6], [46]; Jackson v R [2020] NSWCCA 230; WG v R; KG v R [2020] NSWCCA 155 at [1554].
44. R v Dev Menon [2023] NSWSC 768 at [47], [51], [112].
45. Tiknius at [45] - [46].
46. [2023] NSWSC 1004 at [44].
47. Tiknius at [49].
48. Tiknius at [49].
49. Tiknius at [49].
50. Hernandez v R [2013] NSWCCA 51 at [35].
51. Day at [35].
52. Tiknius at [51] to [53].
53. Tiknius at [39].
54. Affidavit, Eloise Howard, 31 January 2025 at p 5.
55. Affidavit, Eloise Howard, 31 January 2025 at p 8.
56. [2021] NSWCCA 118 at [58] and [59].
57. Tcpt, 7 February 2025, p 36(10).
58. Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353 at [79] (R A Hulme J)
59. Goodbun v R [2020] NSWCCA 77 at [124] (Fullerton J (with whom Bathurst CJ and Bellew J agreed).
60. Muldrock at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
61. R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 March 2025