New South Wales Court of Criminal Appeal CITATION: Regina v Steven Orban [2005] NSWCCA 312 HEARING DATE(S): 01/09/05 JUDGMENT DATE: 22 September 2005 JUDGMENT OF: Simpson J at 1; Smart AJ at 2; Patten AJ at 3 DECISION: 1. Leave to appeal against sentences granted. 2. Appeal allowed in part. 3. Non parole period of 2 years 6 months on count 1 quashed and in lieu thereof a non parole period of 2 years is set commencing on 8 July 2004 and expiring on 7 July 2006. 4. Otherwise appeal against sentences dismissed. CATCHWORDS: Two counts of supplying heroin involving multiple individual acts of supply - Relevance of comparison with co-offenders sentenced for "ongoing supply" - No breach of "De Simoni" principle - Powerful subjective circumstances justifying reduction of non parole period. Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 R v Hamzy (unreported 5 August 1994) CASES CITED: Queen v De Simoni (1981) 147 CLR 383 R v Kamminga (2003) NSWCCA 337 Regina - (Respondent) PARTIES: Steven Orban (Applicant) FILE NUMBER(S): CCA 2005/961 CCAP Ms S McNaughton (for the Applicant) COUNSEL: Mr D. Arnott (for the Crown) S E O'Connor (for the Applicant) SOLICITORS: S Kavanagh (for the Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/1138 LOWER COURT JUDICIAL OFFICER: Judge G S Hosking - 8 - IN THE supreme COURT OF New South Wales court of CRIMINAL APPEAL No: 2005/961 CCAP SIMPSON J SMART AJ PATTEN AJ 22 SEPTEMBER 2005 REGINA v STEVEN ORBAN Judgment 1 Simpson J: I agree with Patten AJ. 2 Smart AJ: I agree with Patten AJ. 3 Patten AJ: The applicant Steven Orban (Mr Orban) seeks leave to appeal under section 5 (1)(c) of the Criminal Appeal Act against sentences imposed upon him by His Honour Judge Hosking in the District Court on 1 October 2004. 4 Mr Orban previously pleaded guilty before His Honour Judge Shadbolt to 2 counts contrary to section 25 (1) of the Drug Misuse and Trafficking Act (the Act). The first count was that between 1 April 2002 and 28 June 2002, he supplied a prohibited drug, namely, heroin and the second count, in similar terms, was that between 1 April 2002 and 30 June 2002, he supplied the same prohibited drug. The maximum penalty prescribed for each such offence was imprisonment for 15 years and a fine of 2,000 penalty units. 5 Judge Hosking upon the first count imposed a sentence of imprisonment for 4 years, commencing 8 July 2004 and expiring 7 July 2008. He set a non-parole period of 2 years and 6 months, expiring 7 January 2007. In imposing that sentence, the learned judge took into account, upon a Form 1 pursuant to s32 of the Crimes (Sentencing Procedure) Act, one charge of goods in custody, under section 527C (1)(a) of the Crimes Act, an offence which, when, as here, it relates to a sum of money carries a maximum penalty of imprisonment for six months and a fine of 5 penalty units. 6 Upon the second count, Mr Orban was sentenced to imprisonment for a fixed term of 2 years, commencing 8 July 2004 and expiring on 7 July 2006. The sentences were thus wholly concurrent. 7 I take the facts of the matter from the sentencing judge's reasons as follows: "From February 2002, detectives from Blacktown and other police were investigating what was thought to be and was, the illegal distribution and supply of heroin by the offender Mr Orban and three associates of his, a man called Alexander Stojek, a woman Gaye Iffland and a woman Wendy Sproule. At the relevant time the offender was employed as a hairdresser (his life's occupation) by his former wife, Wanda Orban, in her hairdressing salon in a suburban shopping area of Blacktown. The offender sold heroin to Stojek, Iffland and Sproule from the hairdressing business and it was the practice of those three people to contact the offender by mobile telephone, and place orders with him on behalf of prospective customers. They would attend the salon personally to collect heroin as required from the offender. Acting on information received, the investigating police obtained warrants to intercept and monitor telephone calls between the offender and Stojek, Iffland and Sproule and police, using female undercover police operatives, and a male police undercover operative made a number of controlled drug purchases from the offender, or from drugs supplied by the offender to one or other of the three people, for evidentiary purposes. In relation to Count 1, (the offence) covers sixteen separate supplies of small quantities of heroin, each individual transaction significantly less than one gram of heroin (in some cases as little as a tenth of a gram). Count 2 is constituted by agreements by the offender to supply small amounts of heroin between the dates mentioned to his three co-offenders which were intercepted and recorded and indicate a willingness to supply other amounts in coded language such as "two little ones" and "a little one" indicating multiples, apparently of a quarter of one gram each." 8 At the time of his arrest on 27 June 2002, Mr Orban was found to have in his possession banknotes with serial numbers matching the numbers in the controlled purchases by undercover police officers. Those banknotes, totalling $380 in Australian currency, were the subject of the charge of goods in custody. 9 Two of Mr Orban's associates referred to, Alexander Stojek and Gaye Iffland were also arrested. Mr Stojek pleaded guilty to 2 counts of ongoing supply under s25A of the Act and was, in December 2003, sentenced to imprisonment for 3 years with a non-parole period of 18 months on one count and to imprisonment for a fixed term of 18 months on the other count. Ms Iffland pleaded guilty before Judge Blackmore SC to one count of ongoing supply under s25A of the Act and four related summary matters on a Form 1. She was sentenced to imprisonment for 2 years with a non-parole period of 12 months. 10 Judge Hosking noted that Mr Orban had a criminal record "for drug related matters", but mistakenly, according to the transcript of his reasons, referred to a conviction in 1998 for supply a prohibited drug. In fact Mr Orban was convicted in 1988 for such offence but it did result, as Judge Hosking indicated, in a sentence of imprisonment for 18 months to be served by way of Periodic Detention. The only subsequent matter on Mr Orban's criminal antecedents is a conviction in 1991 for possession of heroin. His Honour did not indicate how he took Mr Orban's previous offences into account and did not mention the fact that there has been no further offence since 1991, or that the offence he expressly adverted to was committed as long ago as 1988. 11 In his remarks on sentence, His Honour listed as aggravating factors, Mr Orban's criminal record and also the fact that the offences were part of an organised and planned criminal activity. He categorised the criminality involved as "significant", adding, "This does not appear to be a case of the apprehension of a major drug supplier, but rather of the proprietor of a small commercial heroin supply operation. The offender was supplying to his three co-offenders who, in turn, were obviously selling heroin at street level, as evidenced by the controlled sales to the undercover police officers." 12 As mitigating factors, Judge Hosking concluded that Mr Orban is unlikely to re-offend and that he has "good prospects of rehabilitation". He also concluded that he had demonstrated genuine remorse and in respect of the pleas of guilty, held that he was entitled to a discount of 20% on the sentence which would otherwise be appropriate. He recorded that Mr Orban, then aged 56, had health problems, was the primary carer for his 81 year old mother and that he had a difficult early life, escaping with his family from Hungary in 1956. Judge Hosking accepted that his primary motive for the offences was to finance his own addiction to illegal substances. 13 The first ground of appeal was that Judge Hosking erred in using the sentences imposed upon Mr Stojek and Ms Iffland as relevant comparative sentences, while failing to take into account that each had been sentenced for a more serious offence, namely, ongoing supply under s25A of the Act. 14 In support of the ground, reference was made to the passage in the learned judge's reasons on sentence: "It appears clear to me, as the Crown contends, that the offenders role in these matters was significantly more serious than that of Stojek or Iffland, for the simple reason that in real terms, the offender was a wholesaler in relation to the supplies in turn by them and was higher up the supply chain than they were. Accordingly it is appropriate that the offender receive a higher sentence". 15 The written submissions on behalf of Mr Orban refer to R v Kamminga (2003) NSWCCA 337 where Barr J, with whom Miles AJ agreed, referred to section 25A of the Act, and after pointing out that the section introduced in 1998 was designed to provide for the punishment of persons who were in the business of dealing with prohibited drugs, often in small amounts to retail customers, in a way which, taken individually, would be unlikely to attract severe sentences, said: "The offence of ongoing supply is a much more serious offence. The maximum penalty of 20 years imprisonment and a substantial fine demonstrates as much. The offence differs from ordinary supply offences in that there is in it no hierarchy of commercial and less than commercial quantities and corresponding ranges of maximum sentence." 16 In my opinion, the reference by Judge Hosking to the respective criminality, on the one hand, of Mr Orban and, on the other hand, of Mr Stojek and Ms Iffland reveals no error. It is, in my opinion, manifest from his remarks on sentence that he had in mind that Mr Orban was being sentenced for an offence under s25 of the Act, carrying a maximum penalty of imprisonment for 15 years and not under s25A which provides for a maximum penalty of imprisonment for 20 years. In my opinion, it was quite appropriate for His Honour to take into account the sentences imposed upon Mr Stojek and Ms Iffland as a factor to be considered when sentencing Mr Orban. As the Crown pointed out in its written submissions, the fact that Mr Stojek and Ms Iffland were charged with offences which carry a higher maximum penalty than the maximum penalty provided for by the section under which Mr Orban was charged, by no means requires that Mr Stojek and Ms Iffland should receive a higher sentence. In taking into account the sentences imposed upon Mr Stojek and Ms Iffland, Judge Hosking was perfectly entitled, in my opinion, to regard Mr Orban's level of criminality as of a higher order, in that he was, in effect, a wholesaler higher in the chain of supplying heroin than Mr Stojek and Ms Iffland who were selling heroin at street level. 17 As the Crown also pointed out, it was entitled as it did in this case, to charge Mr Orban with a number of supply offences over a period, as one offence under s25 of the Act. Such a course was expressly approved by this court in R v Hamzy (unreported 5 August 1994). At page 6 of the judgment, Hunt CJ at CL said: "In my view, the Crown is entitled to plead in the one count a charge of supply where it intends to prove a number of individual acts of supply by the accused to different people and at different times, provided that those acts can fairly and properly be identified as part of the same criminal enterprise or the one criminal activity, but the trial court has power to direct the Crown either to elect or to separate the offences where the indictment would otherwise produce an unfairness to the accused. Where objection is taken to the indictment, the trial judge should apply common sense and decide what is fair in the circumstances." The criteria identified by Hunt CJ at CL were clearly present in this case. 18 In my opinion, the Crown correctly submitted that the passage in R v Kamminga, referred to, did not apply to a case such as this, where each count encompassed multiple acts of supply. 19 The second ground of appeal was that the sentencing judge breached the rule in "De Simoni". It was submitted on behalf of Mr Orban that Judge Hosking took into account, as a matter of aggravation, something which would have rendered him liable to a greater sentence than provided for in respect of the offences to which he pleaded guilty. This would be contrary to what was said by the High Court in The Queen v De Simoni (1981) 147 CLR 383. The common law principle was there stated by Gibb CJ in these terms: "A judge in imposing sentence is entitled to consider all the conduct of the accused, including that which would aggravate the offence but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence". 20 In this case the contention is that the sentencing judge erroneously took into account as a matter of aggravation the gaining by Mr Orban of a material advantage. This, so it was submitted, arises from the sentencing judge's use of the word "wholesaler" in the passage quoted earlier. That reference, so it was asserted, necessarily brought the offences within s25A of the Act as upon each count the Crown proved multiple acts of supplying heroin. 21 However, in my opinion, the fact that Judge Hosking categorised Mr Orban as a "wholesaler" did not necessarily imply that each proved, individual act of supply constituted supply for "financial or material reward". As the Crown pointed out in its written submissions, Mr Orban may have carried out some acts of supply without financial or material reward for some reason peculiar to the transaction, such as a sense of obligation, either to the person or persons benefiting from the supply, or conversely, someone higher in the chain. In that situation, the generic description of "wholesaler" would remain appropriate. 22 Indeed, in the present case the Crown expressly told Judge Hosking that it was unable to prove, beyond reasonable doubt, the elements required to be proved in order to constitute an offence, or offences, under s25A, which, it might be noted, requires not only the supply of a prohibited drug on 3 or more occasions for financial or material reward, but that such occasions occur within a period of 30 consecutive days. 23 In my opinion, there is no substance in the second ground relied upon by the applicant. 24 Nor, in my opinion, could it be said that the head sentences imposed by Judge Hosking were manifestly excessive. In respect of each offence, Mr Orban exposed himself to a sentence of imprisonment for 15 years and a pecuniary penalty. I respectfully concur with Judge Hosking's opinion that there was a high degree of criminality, in that, each case involved multiple acts of illegal supply of heroin. Mr Orban was plainly conducting the business of supplying illegal drugs, on quite a significant scale, albeit he was dealing in small quantities. 25 During the hearing of the Appeal, Ms McNaughton, who appeared for Mr Orban, was given leave to add a further ground of appeal, namely, that the non-parole period fixed by Judge Hosking when sentencing on the first count was excessive. He had found special circumstances within s44 of the Crimes (Sentencing Procedure) Act, arising from the need for his continuing drug rehabilitation to be supervised upon his release into the community, and because this is his first significant custodial sentence. 26 He also recognised some quite powerful subjective circumstances, including the state of Mr Orban's health; his difficult childhood; his remorse; the poor state of his mother's health and the fact that his incarceration deprives her of her carer. When those matters are taken into account with the fact, (possibly overlooked by Judge Hosking), that Mr Orban has not been convicted of any offence since 1991, and the fact that the previous offence of supplying a prohibited drug was committed in 1988, not 1998, as stated in the transcript of His Honour's reasons, I am of the opinion that a longer period of parole than that fixed by Judge Hosking would be appropriate. 27 Having regard to the terms of s.6(3) of the Criminal Appeal Act 1912, I would propose the following orders: 1. Leave to appeal against sentences granted. 2. Appeal allowed in part. 3. Non parole period of 2 years 6 months on count1 quashed and in lieu thereof a non parole period of 2 years is set commencing on 8 July 2004 and expiring on 7 July 2006. 4. Otherwise appeal against sentences dismissed. ******* 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.