Ooi v R

Court of Criminal Appeal (NSW)|2023-03-27|Before: Beech-Jones CJ, Adams J, Yehia J

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: 1. 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 2. 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 offence contrary to s 23(2)(a) of the DMT Act, a further offence of knowingly take part in the cultivation of a commercial quantity of prohibited plant by enhanced indoor means, contrary to s 23(2)(a) of the DMT Act, was taken into account on a Form 1. On 21 July 2022, Beckett DCJ (the sentencing Judge) sentenced the applicant in the District Court to an aggregate term of imprisonment of 4 years and 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. 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. The sentencing Judge also sentenced numerous co-offenders. The applicant relied on two grounds of appeal, namely: 1. the applicant had a justifiable sense of grievance when considered against the sentence imposed on the co-offenders (the parity ground); and 2. the sentencing Judge's sentence was manifestly excessive and a different sentence is warranted at law. The Court held granting leave to appeal against the sentence and dismissing the appeal. 1. The sentencing Judge sentenced all related offenders and was alive to the sentences her Honour had imposed on the co-offenders when her Honour sentenced the applicant. The sentencing Judge explicitly considered parity. The applicant did not establish a justifiable sense of grievance and Ground 1 failed (The Court at [29]-[38]). 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; DS v R [2014] NSWCCA 267; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; 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; applied. 1. In order to succeed on a ground of manifest excess, the applicant must establish that the sentence imposed was "unreasonable" or "plainly unjust". The Court will not interfere in a sentence merely because it may have exercised its discretion differently. The applicant did not establish that the sentence imposed was manifestly excessive, therefore, Ground 2 was not made out (The Court at [46]-[47]). Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 21; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, considered. 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; Windle v R [2011] NSWCCA 277, cited.

JUDGMENT

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.
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").
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").
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.
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.
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.
The applicant seeks leave to appeal on two grounds, namely: 1. The applicant has a justifiable sense of grievance when considered against the sentence imposed on the co-offenders (the parity ground); and 2. Her Honour's sentence was manifestly excessive and a different sentence is warranted at law.
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.
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.
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.
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.
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: 1. the sophisticated nature of the enterprise; 2. the scale of the enterprise; 3. the fact that the applicant was involved in the cultivation at two separate properties; 4. the number of plants and the stages of production; and 5. the different infrastructure to support each cultivation.
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]
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.
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.
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. OFFENCES MAX PENALTY & SNPP ROLE/OBJECTIVE SERIOUSNESS INDICATIVE SENTENCES AGGREGATE / FINAL SENTENCE Applicant Offending at 2 properties: Schofields and Old Guildford Seq 2: Participate in criminal group contribute to criminal activity 5 years Crop sitter - but holding a position of trust over that of Teoh and Chen. [4] 12 months 4 years, 6 months Slightly above Teoh and Chen due to being seen with Boo on two occasions and material on phone indicating she was given information about harvest and timing of fertilising. [5] NPP 2 years, 8 months ('32 months') Seq 9: Take part in cultivation of large commercial quantity (Schofields, 2,143 plants) 20 years 4 years, 6 months SNPP 10 years NPP 2 years, 8 months ('32 months') Form 1 attached to Seq 9: 15 years Seq 10: Take part in cultivation of commercial quantity (Old Guildford, 190 plants) TEOH Offending at 1 property: Schofields Cultivate large commercial quantity (Schofields, 2,143 plants) 20 years SNPP 10 years Crop sitter - no difference between Teoh and Chen. [6] - 2 years, 6 months "Below the mid-range of criminality but not at the lowest end". [7] NPP 18 months CHEN Offending at 1 property: Schofields Cultivate large commercial quantity (Schofields, 2,143 plants) 20 years SNPP 10 years Labourer - no difference between Teoh and Chen. [8] - 2 years, 8 months "Below the mid-range of criminality but not at the lowest end". [9] NPP 19 months Form 1: Use/consume electricity without authority, s 64(1) Electricity Supply Act 1995 (Schofields, $194,745) 5 years &/or 1,000 p/u GAN Offending at 1 property: Minto Labourer. [10] 2 years, 8 months Seq 1: Cultivate large commercial quantity (Minto, 2,379 plants) 20 years SNPP 10 years Minto: 16/11/20 and 03/02/21 (day of warrant): Sae, Gan, Tan, Tay and Yam seen at Minto. [11] - NPP 19 months "Below the mid-range […] but not at the lowest end". [12] Form 1: Recklessly deal with proceeds of crime ($1,120 found at Minto) 10 years SAE Offending at 1 property: Minto Labourer. [13] Seq 1: Cultivate large commercial quantity (Minto, 2,379 plants) 20 years SNPP 10 years Minto: 16/11/20 and 03/02/21 (day of warrant): Sae, Gan, Tan, Tay and Yam seen at Minto. [14] - 2 years, 8 months "Below the mid-range […] but not at the lowest end". [15] NPP 19 months 16/01/21: Sae seen at Minto driving rental truck. [16] Form 1: Recklessly deal with proceeds of crime ($2,470 found at Minto) 10 years YAM Offending at 2 properties: Minto and Moorebank (Moorebank charged as concealing) Labourer. [17] Minto: 16/11/20 and 03/02/21 (day of warrant): Sae, Gan, Tan, Tay and Yam seen at Minto. [18] 3 years Seq 1: Cultivate large commercial quantity (Minto, 2,379 plants) 20 years SNPP 10 years Lack of specificity as to when Yam commenced involvement at Minto property. [19] "Below the midrange […] but not at the lowest end". [20] - NPP 22 months Moorebank: 07/02/21 seen at property with Boo and Tan. They then drove to Minto. [21] Yam seen at Moorebank again same day. [22] "Below the mid-range towards the lower range". [23] Form 1 offences: Seq 4: Participate in criminal group contribute to criminal activity 5 years Seq 8: Recklessly deal with proceeds of crime ($3,695 found at Minto) 10 years Seq 9: conceal serious indictable offence (Moorebank, 2 plants) 3 years TAY Offending at 2 properties: Minto and Old Guildford (Old Guildford charged as concealing) Seq 4: Participate in criminal group contribute to criminal activity 5 years No SNPP 8 months 3 years, 2 months NPP 23 months Labourer. [24] Minto: 16/11/20 and 03/02/21 (day of warrant): Sae, Gan, Tan, Tay and Yam seen at Minto. [25] Seq 1: Cultivate large commercial quantity (Minto, 2,379 plants) 20 years SNPP 10 years "Below the mid-range […] but not at the lowest end". [26] 3 years, 2 months Old Guildford: 03/12/20: Tay seen with Mr Boo. [27] NPP 23 months Precise role at Old Guildford unclear other than being there once with Boo, but accepted generally he was the labourer. "Towards bottom of the range but not at the very bottom". [28] Form 1 offences attached to Minto offence: 10 years Seq 9: Recklessly deal with proceeds of crime, s 193B Crimes Act 1900 ($315 found at Minto) 3 years Seq 10: Conceal serious indictable offence, s 316 Crimes Act (Old Guildford) TAN Offending at 4 properties: Minto, Moorebank, Auburn, Old Guildford Labourer. [29] Minto: 16/11/20 and 03/02/21 (day of warrant): Sae, Gan, Tan, Tay and Yam seen at Minto. [30] Tan was residing at Minto. [31] "Below the mid-range […] but not at the lowest end". [32] Seq 1: Cultivate large commercial quantity (Minto, 2,379 plants) 20 years SNPP 10 years Moorebank: 07/02/21 seen at property with Boo and Yam. They then drove to Minto. [33] 4 years, NPP 29 months 5 years, 6 months "Below the mid-range towards the lower range". [34] NPP 3 years, 3 months (39 months) Auburn: fingerprints on globe and transformer in two rooms, DNA on straw in third room. [35] "Below the middle of the range, but not at the very bottom of the range". [36] Old Guildford: Seen on 06/10/20 with unidentified male. [37] Labourer; role limited to delivering equipment to persons who maintained the properties. "Below the mid-range but not at the very bottom of the range". [38] Form 1 attached to Minto offence: 5 years Seq 8: Use/consume electricity without authority (Moorebank, $69,530) 10 years Seq 10: Cultivate prohibited plant by enhanced indoor means, less than small quantity (Moorebank, 2 plants) 15 years Seq 1: Take part in cultivation of commercial quantity of prohibited plants (Auburn, 107 plants) Seq 3: Recklessly deal with proceeds of crime (> $5,000), s 193B(3) of the Crimes Act ($21,915 found in bag at Minto) 10 years 18 months Seq 4: Participate in criminal group contribute to criminal activity 5 years 8 months Seq 11: Knowingly take part in cultivation of commercial quantity of prohibited plant (Old Guildford, 190 plants) 15 years 2 years Form 1 attached to (Old 2 years Guildford offence: Seq 6: Use/consume electricity without authority (Old Guildford, $269,595.65) 5 years

Ground 1 - Parity

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.
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".
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.
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

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.
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].
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).
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].
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].
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).
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

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.
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: "Parity is the complicating feature of this case. As I have said, offenders Chen and Teoh have previously been sentenced before me, both of those offender's entered pleas of guilty of 25%. As with this offender, all of the matters are structured differently, Mr Chen had only the s 23(2)(a) offence concerning the Schofield property, Mr Teoh had the 23(2)(a) offence concerning the Schofield property and the diversion of electricity on a Form 1, this offender of course has the 23(2)(a) offence of Schofields property and the Old Guildford property on a Form 1, being not an insignificant matter, and the participation in a criminal group which I will come back to in a moment. As to roles, as I referred to in an earlier judgment, Mr Chen was referred to as a labourer; Mr Teoh a crop sitter and I discern no difference between them. This offender is a crop sitter. I have found all of them held the position of trust however I would put this offender's position of trust slightly above the others, she at least on one occasion was sighted with the co-offender Bui, she had the schedules on her phone but other than that she certainly did not occupy any significant position of authority. She resided in the same location as the other two males with her bed located next to theirs. In terms of subjectives, she is in her early fourties, being older than the other two males with Mr Chen being 25 and Mr Teoh being 30. Other than that all of them were involved in the offending as a result of financial need, all of them submitting before me that as a result of the Covid circumstances they were unable to access financial assistance from the government. All of them had hardship in custody in terms of Covid lockdowns and all of them have language situation where they have limited communication which I accept makes custody that much harder and that ought to be reflected in a finding of special circumstances". [39]
The sentencing Judge returned to the issue of parity when addressing the principle of totality, reiterating: "As I have said in relation to parity, I find this offender to sit above the cases of Chen and Teoh both in the structure of the sentences for which she sentenced but also slightly in respect of role". [40]
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]
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.
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.
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]
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]
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.
The applicant has not established a justifiable sense of grievance and Ground 1 must therefore fail.

Ground 2 - Manifest Excess

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.
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: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this Court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
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).
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): "(a) Sentencing is an "exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions" - Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56]; (b) Each case has to be considered on its own merits, and no case is entirely similar to any other - Windle at [61]; (c) There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate - Windle at [61]; (d) An applicant seeking to challenge a sentence on the ground of manifest excess has a "very heavy practical burden", and must show a kind of disproportion which is so "manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law" - R v Elemes [2000] NSWCCA 235 at [22]-[23]; (e) The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 - Matthews v ASIC [2009] NSWCA 155 at [181]; Dowling at [59]; (f) The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) - Turner at [68]; (g) Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process - Dinsdale at [6]; Simmons at [30]; (h) Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range - Martinez v R [2020] NSWCCA 250 at [39]; (i) Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight - Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]-[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74]; and (j) Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender - Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64]."
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.
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]
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.
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.
The applicant has not established that the sentence imposed was manifestly excessive. It follows that Ground 2 has not been made out.
Accordingly, the orders of the Court are: 1. Leave to appeal granted. 2. Appeal dismissed.

Endnotes

Remarks on Sentence dated 21 July 2022 (ROS (21 July 2022)) at 16.
Ibid at 15.
Ibid at 16.
Ibid at 9.
Ibid at 8.
Ibid at 14-15.
Ibid at 8.
Ibid at 14-15.
Remarks on Sentence (Chen and Teoh) dated 20 May 2022 at 7.7.
Remarks on Sentence (Tan; Sae; Tay; Gan; Yam) dated 7 September 2022 (ROS (7 September 2022)) at 11.8.
Ibid at 7.9-8.3; 9.5.
Ibid at 15.6.
Ibid at 11.8.
Ibid at 7.9 - 8.3; 9.5.
Ibid at 15.6.
Ibid at 9.3.
Ibid at 11.8.
Ibid at 7.9 - 8.3; 9.5.
Ibid at 15.
Ibid at 15.6.
Ibid at 9.1.
Ibid at 15.10.
Ibid at 16.3.
Ibid at 11.8.
Ibid at 7.9-8.3; 9.5.
Ibid at 15.6.
Ibid at 4.
Ibid at 7.
Ibid at 11.
Ibid 7.9-8.3; 9.5.
Ibid at 11.7.
Ibid at 15.6.
Ibid at 9.1.
Ibid at 16.3.
Ibid at 7.
Ibid at 13.9-14.2.
Ibid at 6.10-7.1.
Ibid at 14.8.
ROS (21 July 2022) at 14-15.
Ibid at 16.
Ibid at 7.
Ibid at 5-6.
ROS (7 September 2022) at 30.
Ibid at 31.
ROS (21 July 2022) at 10.
Ibid at 16. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2023

Crimes Act 1900(NSW)ss 93T(1), 193B, 193B(3), 316

(2021) 104 NSWLR 518

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