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Court of Criminal Appeal 26 April 2023

Ooi v R

[2023] NSWCCA 97

Drugs

Citation: Ooi v R [2023] NSWCCA 97
Court: Court of Criminal Appeal, New South Wales
Date: 26 April 2023
Judges: Beech-Jones CJ at CL, Adams J, Yehia J

Background

The applicant pleaded guilty in the Local Court to two offences: knowingly taking part in the cultivation of a large commercial quantity of prohibited plants by enhanced indoor means (under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW)), and participating in a criminal group knowing it contributed to criminal activity (under s 93T(1) of the Crimes Act 1900 (NSW)). A further cultivation offence involving a commercial quantity of cannabis plants at a second property was taken into account at sentencing on a Form 1 (a document listing additional related offences that are considered alongside the main charges but not separately convicted).

The applicant's involvement spanned two properties: a Schofields address, where 2,143 cannabis plants were cultivated (more than ten times the commercial quantity threshold), and an Old Guilford address, the subject of the Form 1 offence. The sentencing judge described her role as a "crop sitter" and found that she occupied a position of trust slightly above that of two co-offenders who had been sentenced earlier by the same judge.

On 21 July 2022, Beckett DCJ in the District Court sentenced the applicant to an aggregate term of 4 years and 6 months imprisonment, with a non-parole period of 32 months. The two co-offenders had previously received sentences of 2 years 8 months (with 19 months non-parole) and 2 years 6 months (with 18 months non-parole) respectively.

  • Whether the applicant had a justifiable sense of grievance about her sentence when compared with the lighter sentences imposed on co-offenders (the parity ground).
  • Whether the sentence was manifestly excessive such that a different sentence was warranted at law.

Decision

On the parity ground, the Court of Criminal Appeal found that the applicant had not established a justifiable sense of grievance. The sentencing judge had sentenced all related offenders and was explicitly alive to the parity question when imposing sentence on the applicant. The court noted meaningful differences between the applicant's case and those of her co-offenders: the applicant was involved in cultivation at two separate properties, her position of trust was assessed as slightly higher, and her offence structure differed from those of Chen and Teoh, who faced only the Schofields cultivation and different Form 1 matters.

The court confirmed that parity does not operate as a mathematical levelling exercise. Differences in offending conduct, role, and offence structure can legitimately justify sentencing disparities, and the existence of a lower sentence for a co-offender does not automatically produce a grievance that the law will recognise.

On manifest excess, the Court restated the established threshold: an applicant must demonstrate that the sentence is "unreasonable" or "plainly unjust." The mere fact that the appellate court might have exercised its sentencing discretion differently is not sufficient to warrant interference. The applicant did not clear that bar, and Ground 2 accordingly failed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A justifiable sense of grievance for parity purposes requires more than a numerical comparison with co-offenders' sentences; differences in role, offence structure, and the number of properties involved are legitimate sentencing distinctions.
  • In dismissing the parity ground, the Court of Criminal Appeal emphasised that the sentencing judge had explicitly considered parity and had articulated reasons why the applicant's case sat above that of her co-offenders.
  • The threshold for manifest excess remains demanding: a sentence must be "unreasonable" or "plainly unjust," not merely different from what an appellate court might have imposed.
  • Where a sentencing judge has sentenced multiple co-offenders personally and has turned her mind to parity, an appellate court will be slow to find that the exercise of that discretion miscarried.
  • No error was established on either ground, notwithstanding that the applicant's aggregate sentence was substantially longer than those of the two co-offenders sentenced for the Schofields cultivation alone.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW) s 23(2)(a)
- Crimes Act 1900 (NSW) ss 93T(1), 193B, 193B(3), 316
- Criminal Appeal Act 1912 (NSW) s 5(1)(c)
- Electricity Supply Act 1995 (NSW) s 64(1)

Cases:
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 211
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- DS v R [2014] NSWCCA 267
- Dawson (a pseudonym) v R [2021] NSWCCA 33
- Moran v R [2022] NSWCCA 217
- Chamon v R [2020] NSWCCA 112
- Tatana v R [2006] NSWCCA 398
- Huckstadt v R [2016] NSWCCA 22
- Berryman v R [2017] NSWCCA 297
- Cabezuela v R [2020] NSWCCA 107
- Goodbun v R [2020] NSWCCA 77
- Vuni v R [2006] NSWCCA 171
- Simmons v R [2020] NSWCCA 16
- Hayek v R [2010] NSWCCA 139
- Smith v R (2020) 93 MVR 345; [2020] NSWCCA 181
- Stewart v R [2009] NSWCCA 152
- Turner v R [2021] NSWCCA 5