Regina v Steven Orban - [2005] NSWCCA 312

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.

LEGISLATION CITED:

Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED:
R v Hamzy (unreported 5 August 1994)
Queen v De Simoni (1981) 147 CLR 383
R v Kamminga (2003) NSWCCA 337

PARTIES:
Regina - (Respondent)
Steven Orban (Applicant)

FILE NUMBER(S):
CCA 2005/961 CCAP

COUNSEL:
Ms S McNaughton (for the Applicant)
Mr D. Arnott (for the Crown)

SOLICITORS:
S E O'Connor (for the Applicant)
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 -

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…

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 Regina v Steven Orban

Details

AGLC: Regina v Steven Orban [2005] NSWCCA 312
Case: [2005] NSWCCA 312
Decision Date: 22 September 2005

CaseChat Overview and Summary

The court in Regina v Steven Orban addressed the sentencing of Steven Orban, who had been convicted on two counts of supplying heroin involving multiple individual acts of supply. The case was heard by the court, which was tasked with determining the appropriate sentence for Orban's crimes. The legal issues that the court had to decide included the relevance of comparing Orban's sentence with those of his co-offenders, who had been sentenced for ongoing supply, and whether the "De Simoni" principle had been breached in the sentencing process. Additionally, the court needed to consider whether Orban's powerful subjective circumstances warranted a reduction in his non-parole period.

The court carefully considered the legal principles applicable to the sentencing of Orban. In terms of the comparison with co-offenders, the court found that there was no breach of the "De Simoni" principle, which ensures that sentences for similar offences are comparable but not necessarily identical. The court determined that the differences in the nature and extent of Orban's involvement in the drug supply, as well as his individual circumstances, justified a variation in his sentence. Regarding the reduction of the non-parole period, the court acknowledged Orban's powerful subjective circumstances, including his difficult upbringing, mental health issues, and history of substance abuse. These factors were considered significant enough to warrant a reduction in the non-parole period, reflecting a more lenient approach to his sentencing.

In reaching its decision, the court balanced the need for consistency in sentencing with the importance of tailoring sentences to the individual circumstances of the offender. The court recognised that while Orban's actions were serious, his personal background and circumstances provided compelling reasons for a reduced non-parole period. The court's reasoning was grounded in the principles of justice and proportionality, ensuring that Orban's sentence was both fair and reflective of his unique situation. The outcome of the case demonstrated the court's commitment to considering the full context of each offender's life and criminal conduct when determining an appropriate sentence.

The final orders of the court included a reduction in Orban's non-parole period, reflecting the court's consideration of his subjective circumstances. The court's decision provided clarity on the principles to be applied in sentencing for similar offences, ensuring that future cases would be handled with a similar nuanced approach. The outcome underscored the importance of individualised sentencing in the criminal justice system, balancing the need for consistency with the imperative to address the unique factors that contribute to criminal behaviour.

Orders