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Ooi v The Queen

Ooi v The Queen

Case [2018] VSCA 78 28 March 2018

Appeal

Sentencing

Breach of Trust

Unconscionable Conduct

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0086

ALBERT HOW OOI

THE QUEEN

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JUDGES:	TATE, BEACH and NIALL JJA.
WHEREHELD:	MELBOURNE
DATEOFHEARING:	8 March 2018
DATEOFJUDGMENT:	28 March 2018
MEDIUMNEUTRALCITATION:	[2018] VSCA 78
JUDGMENTAPPEALEDFROM:	[2017] VSC 157 (John Dixon J)

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CRIMINAL LAW – Sentence – Appeal – Conspiracy to defraud the State of Victoria and receiving a secret commission – Sentenced to 8 years’ imprisonment with non-parole period of 6 years – Whether sentence manifestly excessive – Whether guilty plea and assistance to prosecution given too little weight – Whether error in the assessment of the gravity of the offence of receiving a secret commission – Whether disparity with sentences imposed on co- offenders – Appeal dismissed.

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APPEARANCES: Counsel Solicitors

For the Appellant Mr N J Clelland QC with

Mr C T Carr

Galbally & O’Bryan Lawyers

For the Respondent Mr C B Boyce SC with

Mr J McWilliams

Mr J Cain, Solicitor for

Public Prosecutions

COURT OF APPEAL

459 Lonsdale Street, Melbourne, VIC 3000

TATE JA BEACH JA NIALL JA:

On 6 April 2017, the appellant, Albert Hoe Ooi, on his plea of guilty to one charge of conspiracy to defraud contrary to the common law and one charge of receiving a secret commission contrary to s 176(1) of the Crimes Act 1958, was sentenced by the Supreme Court as follows:

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 Act
s 176(1))

10 years’

imprisonment

1 year’s

imprisonment
6 months

Totaleffectivesentence: 8 years’ imprisonment

Non-parole period: 6 years

Pre-sentence detention: n/a

S 6AAAstatement: 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.

On 30 August 2017, Tate JA granted leave to appeal on the following 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 sentencing judge erred in assessing the gravity of charge 2.

3. The sentencing judge erred in the application of the principle of parity when sentencing for charge 2.

On the appeal, the appellant applied to amend his application in order to rely on a fourth ground, namely that the sentence imposed breached the principle of parity when considered in light of the sentence subsequently imposed on the appellant’s co-accused, Barry Wells (‘Wells’). That application to amend was not

opposed by the respondent. The Court heard argument on the further ground, but reserved the question of whether the appellant would be given leave to appeal in respect of it.

For the reasons that follow, we would grant leave to add ground 4 to the grounds of appeal but we would reject each of the four grounds. We would dismiss the appeal.

The circumstances of the offending

The sentencing judge, in…

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 Ooi v The Queen

Details

AGLC: Ooi v The Queen [2018] VSCA 78
Case: [2018] VSCA 78
Decision Date: 28 March 2018

CaseChat Overview and Summary

In the matter of Ooi versus The Queen, the appellant challenged his sentence for conspiracy to defraud the State of Victoria and receiving a secret commission. The case was heard in the High Court of Australia. The appellant was sentenced to eight years’ imprisonment with a non-parole period of six years. The appellant contended that the sentence was manifestly excessive, that his guilty plea and assistance to the prosecution were given insufficient weight, and that there was an error in the assessment of the gravity of the offence of receiving a secret commission. He also argued that the sentence imposed on him was disproportionate to those of his co-offenders.

The primary issue before the court was whether the sentence imposed on the appellant was manifestly excessive, having regard to all relevant circumstances, including the appellant's guilty plea and assistance to the prosecution. The court also needed to determine whether there was an error in the assessment of the gravity of the offence of receiving a secret commission and whether the disparity in sentences between the appellant and his co-offenders warranted a reduction in his sentence. The court had to consider these issues in light of the principles of sentencing and the specific facts of the case.

The court found that the sentence was not manifestly excessive, taking into account the appellant's guilty plea and assistance to the prosecution. The court held that there was no error in the assessment of the gravity of the offence of receiving a secret commission, and that the disparity in sentences between the appellant and his co-offenders did not warrant a reduction in his sentence. The court concluded that the sentence was appropriate and proportionate to the appellant's crimes, and dismissed the appeal.

The High Court of Australia dismissed the appellant's appeal against sentence, affirming the original sentence imposed by the lower court. The court held that the sentence was not manifestly excessive and that there was no error in the assessment of the gravity of the offence of receiving a secret commission. The court also found that the disparity in sentences between the appellant and his co-offenders did not warrant a reduction in his sentence. The appellant's appeal was therefore unsuccessful.

Orders