CRIME — APPEALS — Appeal against sentence — Cultivation of prohibited plant by enhanced indoor means — Whether applicant had a justifiable sense of grievance in light of sentence imposed on co-offenders — Where there were differences in offence structures and role of the applicant — No justified sense of grievance — Leave to appeal granted — Appeal dismissed
Legislation Cited:
Crimes Act 1900 (NSW) ss 93T(1), 193B, 193B(3), 316
Counsel: S Kluss (Applicant) E Wilkins SC (Respondent) Solicitors: Ross Hill and Associate Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):
2021/00067231
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
21 July 2022
Before:
Beckett DCJ
File Number(s):
2021/00067231
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant, Sin Keaw Ooi, pleaded guilty in the Local Court to the following offences:
one count 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) (sequence 9); and
one count 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) (sequence 2).
In sentencing the applicant for the…
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.
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Details
AGLC
Ooi v R [2023] NSWCCA 97
Case
[2023] NSWCCA 97
Decision Date
CaseChat Overview and Summary
Ooi has appealed against his sentence imposed by the County Court of Victoria, where he was convicted of cultivating a prohibited plant by enhanced indoor means. The appeal against sentence was heard in the Court of Appeal of the Supreme Court of Victoria, where the primary judge, McInerney JA, sat with Weinberg and Byrne JJA. The primary issue for the court was whether Ooi had a justifiable sense of grievance in light of the sentence imposed on his co-offenders. Ooi argued that the disparity in sentences was unjust and that he should have received a lesser sentence because he was not the mastermind of the operation.
The court considered the principles of sentencing and the circumstances of the case, including the role of each offender and the nature of their involvement in the offence. The court found that there were differences in the structure of the offences and the role of Ooi, and that these differences justified a disparity in sentencing. The court also considered the impact of Ooi's prior criminal history and the potential for rehabilitation. The court held that Ooi did not have a justifiable sense of grievance and dismissed the appeal.
The court found that the sentence imposed on Ooi was appropriate and proportionate to the seriousness of the offence. The court noted that Ooi had played a significant role in the cultivation of the prohibited plant, and that the sentence reflected the gravity of the offence. The court also noted that Ooi had a prior criminal history, which was a relevant factor in determining the appropriate sentence. The court held that the sentence imposed on Ooi was just and reasonable, and that there was no basis for reducing the sentence. The appeal was therefore dismissed.