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: