Citation: Regina v Steven Orban [2005] NSWCCA 312
Court: New South Wales Court of Criminal Appeal
Date: 22 September 2005
Judges: Simpson J, Smart AJ, Patten AJ
Background
The applicant was a Blacktown hairdresser who, between April and June 2002, supplied heroin from his salon to three associates, who in turn sold it at street level. Police used intercepted phone calls and controlled undercover purchases to build the case. He pleaded guilty to two counts of supply of a prohibited drug under the Drug Misuse and Trafficking Act 1985, with each count encompassing multiple individual acts of supply.
In the District Court, Judge Hosking sentenced the applicant to four years' imprisonment on the first count with a non-parole period of two years and six months, and a fixed term of two years on the second count, both running concurrently from 8 July 2004. The sentencing judge took into account the applicant's criminal record, the organised nature of the offending, and several mitigating factors including age, health, remorse, and his role as primary carer for his elderly mother.
Two co-offenders, Stojek and Iffland, had been convicted of the more serious offence of "ongoing supply" under section 25A of the Act and received lighter sentences. The applicant sought leave to appeal, arguing that the sentencing judge had erred in comparing his sentence to theirs without properly accounting for the difference in the offences charged, and later adding a ground that the non-parole period was excessive given his subjective circumstances.
Legal Issues
- Whether the sentencing judge erred by using the co-offenders' sentences as comparators without adequately accounting for the fact that they had been convicted of the more serious offence of ongoing supply under section 25A of the Drug Misuse and Trafficking Act 1985.
- Whether sentencing the applicant on two counts of supply, each constituted by multiple individual acts, amounted to a breach of the De Simoni principle (that a court must not sentence for an offence of which the offender has not been convicted).
- Whether the non-parole period of two years and six months on the first count was excessive in light of the applicant's subjective circumstances.
Decision
On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's approach. The sentencing judge had expressly recognised that the applicant occupied a higher position in the supply chain than his co-offenders, acting as a wholesaler to them, and had imposed a higher sentence accordingly. The comparison was appropriate in that context, and the sentencing judge was not obliged to treat the co-offenders' sentences as benchmarks.
On the De Simoni ground, the court found no breach. Charging each count as a single offence of supply under section 25(1), where that charge was constituted by multiple individual acts, did not amount to sentencing the applicant for ongoing supply under section 25A. The court noted that section 25A requires proof of supply on three or more occasions within 30 consecutive days for financial or material reward, and those elements had not been charged or established in a formal sense. The form of the indictment did not convert the proceedings into ones for the more serious offence.
The head sentences were not found to be manifestly excessive, given that each offence carried a maximum of 15 years and the conduct involved a small but organised heroin supply operation. However, the court accepted the additional ground regarding the non-parole period. The sentencing judge appeared to have overlooked that the applicant had not been convicted of any offence since 1991, and had also misstated the date of the previous supply offence as 1998 rather than 1988. Combined with the applicant's powerful subjective circumstances, including his health, difficult early life, genuine remorse, and the impact of his incarceration on his ailing mother, a longer period on parole was considered appropriate. The non-parole period on count one was reduced from two years and six months to two years.
Orders Made
- Leave to appeal against sentences granted.
- Appeal allowed in part.
- Non-parole period of two years and six months on count one quashed; a non-parole period of two years substituted, commencing 8 July 2004 and expiring 7 July 2006.
- Appeal against sentences otherwise dismissed.
Key Takeaways
- A sentencing court may draw comparisons with co-offenders who were charged under a different (and more serious) provision, provided the court expressly accounts for the difference in the nature and gravity of the respective offences.
- The De Simoni principle was not engaged simply because a single supply charge was constituted by multiple individual acts of supply. Structuring an indictment in that way does not equate to charging or sentencing for the distinct offence of ongoing supply under section 25A of the Drug Misuse and Trafficking Act 1985.
- Under section 25A, the prosecution must prove supply on three or more occasions within 30 consecutive days for financial or material reward. That is a meaningfully higher threshold than charging multiple acts within a single supply count.
- Powerful subjective circumstances, including poor health, an aged dependant, genuine remorse, and a lengthy gap in offending history, can justify a reduction in the non-parole period even where the head sentence is upheld.
- The Court of Criminal Appeal treated a factual error in the sentencing judge's recitation of the applicant's criminal history (misstating the year of a prior offence by a decade) as a relevant factor warranting intervention on the non-parole period.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), sections 25(1) and 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 32 and 44
- Criminal Appeal Act 1912 (NSW), sections 5(1)(c) and 6(3)
- Crimes Act 1900 (NSW), section 527C(1)(a)
Cases:
- Queen v De Simoni (1981) 147 CLR 383
- R v Kamminga [2003] NSWCCA 337
- R v Hamzy (unreported, 5 August 1994)