Ooi v R

1. [1]

   THE COURT: The applicant, Sin Keaw Ooi, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed upon her on 21 July 2022 by Beckett DCJ (the sentencing Judge) in the District Court of New South Wales sitting in Penrith.

2. [2]

   The applicant entered a plea of guilty to an offence of knowingly take part in the cultivation of a large commercial quantity of prohibited plants by enhanced indoor means, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act). The maximum penalty is 20 years imprisonment, with a standard non-parole period of 10 years imprisonment (sequence 9). This offence related to 2143 cannabis plants cultivated at an address in Schofields (the “Schofield cultivation”).

3. [3]

   In sentencing the applicant for this offence, the sentencing Judge took into account a further offence of knowingly take part in cultivation of a commercial quantity of prohibited plant by enhanced indoor means, contrary to s 23(2)(a) of the DMT Act (the “Form 1” offence). This offence related to 190 cannabis plants cultivated by enhanced indoor means at an address in Old Guilford (the “Old Guilford cultivation”).

4. [4]

   The applicant also pleaded guilty to an offence of participate in a criminal group, knowing it contributed to the occurrence of criminal activity, contrary to s 93T(1) of the Crimes Act 1900 (NSW) (Crimes Act) (sequence 2). The maximum penalty is five years imprisonment.

5. [5]

   The applicant’s pleas of guilty were entered in the Local Court and the matter was committed for sentence. The sentencing Judge applied a 25% discount to the indicative sentences for each principal offence. The indicative sentence for sequence 9, taking into account the Form 1 offence, was 4 years and 6 months imprisonment, with a non-parole period of 32 months. The indicative sentence for sequence 2 was 12 months imprisonment.

6. [6]

   The sentencing Judge imposed an aggregate term of imprisonment of 4 years 6 months, commencing on 8 March 2021 and expiring on 7 September 2025, with a non-parole period of 32 months. The first date that the applicant is eligible for release to parole is 7 November 2023.

7. [7]

   The applicant seeks leave to appeal on two grounds, namely:

8. [8]

   At the time the applicant was sentenced, two related offenders, Han Syen Teoh (Teoh) and Wei Yin Chen (Chen), had already been sentenced by the same sentencing Judge. On 20 May 2022, Chen was sentenced for one offence of cultivating a large commercial quantity of prohibited plant by enhanced indoor means (the Schofield cultivation). In sentencing this offender, her Honour took into account, on a Form 1, an offence of use/consume electricity without authority, contrary to s 64(1) of the Electricity Supply Act 1995 (NSW). Chen also pleaded guilty in the Local Court. In sentencing him to a term of 2 years and 8 months imprisonment, with a non-parole period of 19 months, the sentencing Judge applied a 25% discount.

9. [9]

   On 20 May 2022, Teoh was also sentenced for one offence of cultivating a large commercial quantity of prohibited plant by enhanced indoor means (the Schofield cultivation). Following the application of a 25% discount, he was sentenced to 2 years and 6 months imprisonment, with a non-parole period of 18 months.

10. [10]

    A summary of the facts, the applicant’s subjective case, her Honour’s findings and statement of relevant principle, can be found in the clear and comprehensive remarks on sentence provided by the sentencing Judge. Rather than slavishly reproducing that material here, it is appropriate in this case, to attach the sentencing Judge’s remarks on sentence to our judgment.

11. [11]

    Essentially, the applicant was sentenced for her participation in the cultivation of prohibited plants by enhanced indoor means at two separate properties, Schofield and Old Guilford. The number of cannabis plants cultivated at the Schofield’s address was 2,143, over 10 times the commercial quantity. The quantity of cannabis plants, the subject of the Form 1 offence, was significantly less, although still over the threshold for commercial quantity.

12. [12]

    Her Honour assessed the objective seriousness of the applicant’s offending as being “below the mid-range but not greatly below mid-range”. [1] Her Honour took into account on sentence:

13. [13]

    The sentencing Judge described the role of the applicant as a “crop sitter”. Her Honour found that, although all three offenders occupied a position of trust, the applicant’s position of trust was slightly above Chen and Teoh. [2] With respect to parity, as between the applicant and Chen and Teoh, the sentencing Judge concluded that the applicant’s case sat above that of Chen and Teoh both in the structure of the sentences and “slightly” in respect of the role. [3]

14. [14]

    The sentencing Judge found that the applicant was a person of good character with good prospects of rehabilitation who is unlikely to reoffend. Her Honour took into account the applicant’s circumstances of financial hardship and her background of coming from poverty and travelling to Australia to escape a violent relationship.

15. [15]

    After the applicant was sentenced, five other related offenders were sentenced by the same Judge on 7 September 2022. These related offenders are Deric Tan (Tan), Yuen Sae (Sae), Choong Tay (Tay), Swee Gan (Gan) and Hiu Yam (Yam). A further related offender, Mr Bui, is yet to be sentenced.

16. [16]

    The table below was provided by the Crown in written submissions. It helpfully sets out the structure of the offences for each offender and her Honour’s findings as to each offender’s role.

Ground 1 – Parity

1. [17]

   This ground of appeal invokes the parity principle. It is accepted by both the applicant and the Crown that the sentence imposed on the related offender Tan, has little, if any, bearing on the question of parity given that he was sentenced for his participation in the cultivation of prohibited plants at four separate properties, namely, Minto, Moorebank, Auburn and Old Guilford.

2. [18]

   There is no challenge to the findings made by the sentencing Judge with respect to objective seriousness and the role of the offender. Although the applicant accepts that her Honour’s findings informed the decision to impose a higher sentence upon the applicant than that imposed on the related offenders, Chen and Teoh, the complaint is that the sentence is “markedly above” and “disproportionate in the overall sentencing exercise”.

3. [19]

   The applicant submitted that the sentencing Judge should have sentenced the applicant at a level closer to that of the other participants in the cultivations (with the exception of Tan) because the various participants were identified as crop sitters or labourers, holding menial positions. Although the applicant was responsible for receiving the fertilisation schedules and passing on various bills that came to the properties, her position of trust was found to be only “slightly above the others”. The sentence imposed upon her was said to be disproportionate to that finding, and disproportionate when one considered the applicant’s subjective case which included growing up in poverty in Malaysia and escaping a violent and abusive partner to come to Australia.

4. [20]

   The Crown submitted that the difference in outcome was justified across all of the offenders and that it was open for the sentencing Judge to make the findings that she did with respect to the role of the applicant and the other participants. The Crown emphasised that a number of key factors differentiated the applicant from the other offenders, including the fact that she had a different structure of offences compared to all other offenders, and that her role was found to be slightly higher than Chen and Teoh.

Applicable Principles Relating to Parity

1. [21]

   The principles to be applied are well-established. They have been comprehensively referred to in various judgments of this Court. The relevant principles can be distilled as follows.

2. [22]

   Firstly, the parity principle is an aspect of equal justice which requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them: Postiglione v The Queen (1997) 189 CLR 295 at 301–302; [1997] HCA 26 (Postiglione) (Dawson and Gaudron JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green) at [28]–[29].

3. [23]

   Secondly, the parity principle holds that there should not be a disparity, or “marked disparity”, between the sentences imposed on co-offenders such as to give rise to “a justifiable sense of grievance in one of them”: Lowe v The Queen (1984) 154 CLR 606 at 610; [1984] HCA 46 (per Gibbs CJ, Wilson J agreeing at 616, Mason J at 612–613 and Dawson J at 623).

4. [24]

   Thirdly, the sense of grievance complained of when the sentence for one offender is compared relative to that of the co-offender or co-offenders, is to be assessed objectively and governed by considerations of substance rather than form: DS v R [2014] NSWCCA 267 (DS) at [39]. It is an aspect of the parity principle that it is not just concerned with identical outcomes in cases that “are relevantly identical”. It also seeks “different outcomes in cases that are different in some relevant respect”: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65] (Gaudron, Gummow and Hayne JJ); Dawson (a pseudonym) v R [2021] NSWCCA 33 at [79]–[80].

5. [25]

   Fourthly, the question is whether the sentencing discretion miscarried, not whether this Court would have imposed a different sentence to that imposed at first instance: Moran v R [2022] NSWCCA 217 at [29] (per Beech-Jones CJ at CL, Price and Yehia JJ agreeing at [41]–[42]). An appeal on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary Judge in drawing distinctions between co-offenders: see Green at [31]–[32].

6. [26]

   Fifthly, this Court has previously noted that “considerable obstacles” are placed before an applicant contending error, on the basis of parity, where a sentencing Judge is fully aware of the sentences imposed upon co-offenders and provides reasons for departing from those sentences: see Chamon v R [2020] NSWCCA 112 at [35]–[37] (per RA Hulme J, Hamill and Wilson JJ agreeing); Tatana v R [2006] NSWCCA 398 at [28] (per Howie J, Sully and Latham JJ agreeing).

7. [27]

   Sixthly, where the same Judge hears the sentence proceedings of two (or more) co-offenders, he/she is “in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way”: see Huckstadt v R [2016] NSWCCA 22 at [90].

Consideration

1. [28]

   The same Judge sentenced all related offenders. The sentencing Judge was alive to the sentences she had imposed on Chen and Teoh when she sentenced the applicant. Her Honour was fully aware of the sentences imposed on the applicant, Chen and Teoh, when she subsequently sentenced the other related offenders on 7 September 2022.

2. [29]

   There is no doubt that the sentencing task was rendered complex by virtue of the different structure of the offences for each offender, as set out in the table at [16]. However, the sentencing Judge explicitly considered parity. Her Honour found:

3. [30]

   The sentencing Judge returned to the issue of parity when addressing the principle of totality, reiterating:

4. [31]

   Her Honour’s finding that the applicant’s role was slightly higher than that of Chen and Teoh, and that the applicant “does appear to have been involved in purchasing of groceries…and to be at least the conduit of information as to harvest and fertilisation”, [41] was based on evidence obtained from the applicant’s phone. The applicant’s phone had been forensically examined and a number of messages were located which related to the applicant seeking reimbursement for groceries purchased for use at the property, messages concerning fertilising schedules for the cannabis plants, and fertilising formulas used on a week-by-week basis. [42]

5. [32]

   That evidence established that the applicant’s role could be distinguished from that of Chen and Teoh (and Gan, Sae, Yam and Tay) because it could be inferred that the applicant was a conduit of information with unknown members of the enterprise who held more senior positions.

6. [33]

   In addition, the structure of the offences in the applicant’s case meant that the applicant’s criminality involved participation in the cultivation of prohibited plants by enhanced indoor means at two separate properties. Namely, the cultivation of a large commercial quantity of prohibited plant at Schofields, and the cultivation of a commercial quantity of prohibited client at Old Guilford. The sentencing Judge was entitled to take into account the admitted offence on the Form 1, in the exercise of the sentencing discretion, with a view to increasing the penalty that would otherwise be appropriate for the substantive offence by giving greater weight to personal deterrence and retribution: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; Abbas v R [2013] NSWCCA 115.

7. [34]

   The sentencing Judge again addressed the principle of parity when her Honour sentenced the related offenders on 7 September 2022. Her Honour specifically referred to the different charges that had been brought against the applicant, Tan and Tay, particularly with regard to the Old Guilford cultivation and the “sizeable differences” in the applicable maximum penalties. [43] Her Honour referred, in those remarks, to the applicant being sentenced in respect of the criminality involved in two cultivations and the participation in a criminal group. [44]

8. [35]

   The subjective cases were in many respects similar. Each offender entered a plea of guilty in the Local Court and a discount of 25% was applied. The sentencing Judge found that the offenders were motivated to participate in the offending due to their difficult financial circumstances. None of the offenders had criminal records and all were assessed as being at a low risk of reoffending and having positive prospects of rehabilitation. Although the sentencing Judge did not make specific reference to the applicant being a victim of domestic violence when addressing the principle of parity, her Honour was fully cognisant of the applicant having been a victim of domestic violence at a very young age which resulted in her having to flee from Malaysia to Australia. [45]

9. [36]

   It was entirely open to the sentencing Judge to impose the sentence of 4 years and 6 months imprisonment, having regard to the applicant’s slightly higher role and the different offence structures, not only as between the applicant and Chen and Teoh, but also between the applicant and other related offenders.

10. [37]

    The applicant has not established a justifiable sense of grievance and Ground 1 must therefore fail.

Ground 2 – Manifest Excess

1. [38]

   Although the focus of the submissions was on the parity ground, the applicant also relied upon a ground of appeal asserting that the sentence is manifestly excessive and that a different sentence is warranted at law. The submissions made in support of that contention were inextricably linked with the parity ground.

2. [39]

   The principles as to whether a sentence imposed is manifestly excessive were concisely summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 211 at [443] (per RA Hulme JA, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) as follows:

3. [40]

   See also Berryman v R [2017] NSWCCA 297 at [35]; Cabezuela v R [2020] NSWCCA 107 at [102]; Goodbun v R [2020] NSWCCA 77 at [254]; Vuni v R [2006] NSWCCA 171 at [33]; Simmons v R [2020] NSWCCA 16 at [30] (Simmons); Hayek v R [2010] NSWCCA 139 at [37]; Smith v R (2020) 93 MVR 345; [2020] NSWCCA 181 at [45]; Stewart v R [2009] NSWCCA 152 at [16]; Turner v R [2021] NSWCCA 5 at [62] (Turner); and Windle v R [2011] NSWCCA 277 at [55] (Windle).

4. [41]

   To this oft-cited summary of principles, several additional observations were made by Bell P (as his Honour then was) in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42] (Gleeson JA and McCallum JA agreeing):

5. [42]

   The principal offence (sequence 9) carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of 10 years imprisonment, both of which remain relevant statutory guideposts in the exercise of the sentencing discretion. The principal offence involved participation in the cultivation of a large commercial quantity of prohibited plant by enhanced indoor means. The quantity of the prohibited plants was over 10 times the commercial quantity.

6. [43]

   In sentencing the applicant for this offence, her Honour took into account the Form 1 offence and noted that it “is not an insignificant matter”. [46]

7. [44]

   The sentencing Judge assessed the objective seriousness of the offending as being: “below the mid-range but not greatly below mid-range”. The nature and extent of the applicant’s role has already been referred to. Neither finding is challenged on the appeal. Her Honour observed that general and specific deterrence play an important part in sentencing for this type of offending and that there is a need for adequate punishment and denunciation of this conduct.

8. [45]

   In order to succeed on a ground of manifest excess, the applicant must establish that the sentence is “unreasonable” or “plainly unjust”. This Court will not interfere in a sentence merely because it may have exercised its discretion differently.

9. [46]

   The applicant has not established that the sentence imposed was manifestly excessive. It follows that Ground 2 has not been made out.

10. [47]

    Accordingly, the orders of the Court are: