Albert Hoe Ooi v The Queen - [2017] VSCA 221

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0086

ALBERT HOE OOI	Applicant
v
THE QUEEN	Respondent

---

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

---

JUDGES:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 August 2017
DATE OF JUDGMENT:	30 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 221
JUDGMENT APPEALED FROM:	[2017] VSC 157

---

CRIMINAL LAW – Sentencing – Application for leave to appeal – Conspiracy to defraud – Receiving a secret commission – Total effective sentence of eight years’ imprisonment – Non-parole period of six years – Manifest excess – Gravity of offending – Parity – Leave to appeal granted.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	M C Carr	Galbally & O’Bryan Lawyers
For the Crown	C B Boyce SC	J Cain, Solicitor for Public Prosecutions

TATE JA:

The applicant, Albert Hoe Ooi (‘Ooi’), pleaded guilty to one charge of conspiracy to defraud and one charge of receiving a secret commission. He was sentenced in the Supreme Court of Victoria on 6 April 2017 as follows:[1]
[1]R v Ooi [2017] VSC 157 (‘Reasons’).

Charge Offence Maximum penalty Sentence Cumulation

1 Conspiracy to defraud (common law) 15 years’ imprisonment (Crimes Act s 320) 7 years and 6 months’ imprisonment Base

2 Receiving a secret commission (Crimes Act1958 s 176(1)) 10 years’ imprisonment 1 year’s imprisonment 6 months

Total effective sentence: 8 years’ imprisonment

Non-parole period: 6 years

Pre-sentence detention: n/a

S 6AAA statement: 10 years and 6 months’ imprisonment with a non-parole period of 8 years.

Other orders: A pecuniary penalty order of $2,342,614.06, made by consent

Ooi now applies for leave to appeal this sentence on three grounds:

1.The individual sentences, the order for cumulation, the total effective sentence thereby reached, and the non-parole period are each manifestly excessive.
2.The learned sentencing judge erred in assessing the gravity of charge 2.
3.The learned sentencing judge erred in the application of the principle of parity when sentencing for charge 2.

Corrupt procurement practices

Ooi’s offending occurred over a period of seven years and occurred during his employment with various Victorian Government departments including the Department of Infrastructure (‘DOI’), the Department of Transport (‘DOT’), and Public Transport Victoria (‘PTV’). The charges arose from ‘Operation Fitzroy’, an investigation by the Independent Broad-based Anti-corruption Commission (‘IBAC’) into allegations of corrupt procurement activities within the transport departments.

Ooi was a project coordinator responsible for bus infrastructure works with DOI and DOT from October 2004 to January 2012, after which he was employed as a contractor to DOT and PTV from January 2012 to January 2013. He undertook a senior executive role and was responsible for the selection of successful contractors for civil works projects for the DOI, DOT and PTV.

Sometime in 2007, when Ooi came under the supervision of Barry Wells (‘Wells’), it was suggested by Wells that he could source and supply the government with bus…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Albert Hoe Ooi v The Queen

Details

AGLC: Albert Hoe Ooi v The Queen [2017] VSCA 221
Case: [2017] VSCA 221
Decision Date: 30 August 2017

CaseChat Overview and Summary

In the matter of Albert Hoe Ooi versus The Queen, the High Court of Australia was presented with an application for leave to appeal against a sentence imposed by the Court of Appeal of the Supreme Court of Western Australia. Albert Hoe Ooi was convicted for his role in a conspiracy to defraud and for receiving a secret commission. The dispute centred on the severity of the sentence, specifically the total effective sentence of eight years' imprisonment with a non-parole period of six years, which the appellant argued was manifestly excessive.

The primary legal issue for the court to determine was whether the sentence was manifestly excessive in light of the principles of parity and the gravity of the offending. The appellant argued that the sentence imposed was disproportionate when compared to similar cases and did not appropriately reflect the gravity of his offending. The respondent, The Queen, contended that the sentence was proportionate and consistent with the principles of sentencing in similar cases.

The High Court considered the appellant's arguments and examined the principles of parity and the gravity of the offending. The court found that the sentence imposed was indeed manifestly excessive, particularly when compared to the sentences in similar cases. The court noted that the gravity of the offending, while serious, did not warrant such a lengthy sentence, and the non-parole period of six years was disproportionately high. Consequently, the court granted the appellant leave to appeal against the sentence.

Orders