REGINA v LANGBEIN [2000] NSWCCA 237

New South Wales Court of Criminal Appeal

CITATION : REGINA v LANGBEIN [2000] NSWCCA 237 revised - 11/08/2000 FILE NUMBER(S) : CCA 60389/99 HEARING DATE(S) : 29 May 2000 JUDGMENT DATE : 29 May 2000

Regina

PARTIES : v

Michael Wayne Langbein JUDGMENT OF : Sully J at 27; Adams J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/61/0147; 98/61/0148 LOWER COURT JUDICIAL Karpin DCJ OFFICER :

COUNSEL : D C Frearson (Crown) Ms C Loukas (Applicant) SOLICITORS : S E O'Connor (Crown) T A Murphy (Applicant)

LEGISLATION CITED : Justices Act DECISION : Leave to appeal granted; Sentence in respect of the offence of agreeing to supply amphetamine is quashed and substituted therefor is a sentence of four years imprisonment to commence 1/6/99 and expire on 31/5/2003, with a non-parole period of 2 years to date from 1/6/99.

IN THE COURT OF CRIMINAL APPEAL 60389/99

SULLY J ADAMS J

MONDAY 29 MAY 2000

REGINA v MICHAEL WAYNE LANGBEIN

JUDGMENT

1 ADAMS J: The appellant, who is fifty-three years of age, was sentenced on 18 June 1999 in the District Court at Bathurst to a charge of knowingly taking part in the supply of methylamphetamine, a prohibited drug, to which charge he pleaded guilty. The maximum term of imprisonment prescribed for this offence is fifteen years. 2 The offence occurred in early April of 1998. The prisoner in respect of a charge which came before the District Court by virtue of s 51A of the Justices Act and which related to actual supply of 13.8 gm of methylamphetamine was sentenced to two years imprisonment with an additional one-year term. 3 In respect of the term to which he pleaded guilty on indictment he received a three-year minimum term and an additional term of two years. He appeals to this Court in respect essentially of the latter sentence. 4 The facts may be simply stated; the prisoner and his son, on the afternoon of 8 April 1998, went together to the Robin Hood Hotel at Orange where they met with an undercover police operative and another person who had introduced the appellant to the operative. 5 There was some conversation and shortly after the amount of 13.8 gm of methylamphetamine was supplied by the appellant. There was further conversation relating to the future supply of a pound of amphetamine for the sum of $12,000. 6 The arrangement was made for this supply to occur the following week. When the police attended ready to purchase the drugs the appellant did not appear. In a later telephone conversation the appellant arranged for the would-be purchaser, who was, of course, the undercover operative, to attend at his house for the purpose of acquiring the drug. The police attended the premises on that occasion and the appellant was arrested. No drugs were found on the premises. 7 The appellant gave evidence on his plea and appeared to accept full responsibility for the criminal arrangements in respect of which he pleaded guilty, although he said that he had been influenced in entering them by an acquaintance who owed him money. 8 It is evident that the appellant entered into these transactions for financial gain. On his behalf it is argued in this Court that the appellant was entrapped into committing these offences and this should therefore operate to mitigate his sentence. Although it is true that the foundation of the crime was an arrangement with the acquaintance to which I have referred and which arose out of certain earlier financial dealings between them, I do not think in any relevant sense the appellant was entrapped. I think that he saw the offer as financially advantageous and decided that he may also be able to make a significant profit. 9 It was suggested in cross-examination of the appellant that this was not an isolated transaction. This was denied by him and although there is language used in the conversation, which was recorded by the police for the purposes of their operation, which suggested a familiarity with the way in which drugs might be traded, I do not think that there was a basis for determining, and I do not think her Honour, the learned sentencing judge did, that he had been engaged in the drug trade for a period of time of which the matters for which he was sentenced were but representative examples. It may be that his familiarity with drugs made him all the more ready to seize the opportunity when it came his way. 10 The second ground which was pressed on the appellant's behalf was that her Honour did not, in giving reasons for sentence, advert to what seems to have been a submission made on the appellant's behalf that he did not have any real intention of supplying the pound of amphetamine comprising the indictable offence but that he had only made an empty promise which it was convenient at the time he should make. 11 Accepting that the submission was made, there is no evidentiary basis for it. Indeed, as I read the evidence given by the appellant, it was, in substance, to the contrary. I consider that there was no real issue raised on the evidence as to the appellant's intentions. To my mind the essence of his plea, namely, that he had entered into these transactions for the purpose of influencing favourably the person who was seeking to purchase the drugs, was contrary to any supposition, as advanced here, that he had only invited that would-be purchaser to his premises on the pretence of supplying drugs and with a promise to supply a very substantial quantity, only to disappoint him on his arrival. 12 I consider that it was proper for her Honour to deal with this matter upon the basis that there was a real intention to supply the drugs, if they could be supplied. 13 At the sentence proceedings the prisoner established that significant hardship would be caused to his family, his children in particular, if he went to gaol, at least for any extended period. 14 Her Honour has, it seems to me, appropriately deal with this offence saying, "Whilst one feels sorry for the children, unfortunately it is not a matter that can loom large in the calculation of an appropriate sentence for this prisoner." 15 It is regrettably often the case that the law, and indeed public policy, requires the imposition of a sentence which causes hardship and sometimes great hardship to persons who may rely upon the prisoner for help, one way or another. It is not inappropriate, in those circumstances, for the judge to express a human sympathy for the situation which has arisen but, as has often been said, such hardship can only be effective in reducing sentences in very rare cases. I am quite satisfied that this is not one of them and that her Honour the learned sentencing judge dealt with the evidence of hardship adduced before her in an appropriate way. It is true that she made, some time after the passage which I have quoted, an observation about the matter which may have been somewhat awkward, but I do not consider that it indicated any error on her Honour's part. 16 There were substantial subjective matters capable of being weighed and which ought to have been weighed in the appellant's favour qualified somewhat, however, by his willingness to involve his son in a small way in the supply of the first amount of drug. I think it is a mark of his inexperience that he should have thought that this was nevertheless not exposing his son to serious risk but, for myself, I would accept that it was an act of folly rather than of calculation. 17 The appellant's criminal history is relatively slight and he has not committed any offences since November 1992. I think it would be fair to consider him as a person who had substantially rehabilitated himself and was making a proper contribution to society. 18 Most significantly in his favour was the responsibility which he has undertaken in respect of his young children, in particular taking over the care of a daughter because his partner was having difficulty in caring for her young son from another relationship who suffers from severe hyperactivity. 19 The appellant's daughter wrote - "I just moved up from Sydney because I had nowhere else to go. My mum has brain damage so I have to look after her as well as my little sister. I dropped out of school in year 7 to look after them. I would have liked to start school here but I need my dad's help. I was moving up so I could be looked after instead of the other way round." 20 The appellant has tendered statistical information from the Judicial Commission of New South Wales concerning the supply of a prohibited, namely, amphetamine, of less than the commercial quantity. Here, of course, the minimum commercial quantity was substantially exceeded and the Crown Prosecutor has rightly submitted that it must follow that when one looks at the statistics, that this case falls into the upper range of culpability 21 Even so, this case falls, on the sentence passed by her Honour, so far into the most serious class of cases as demonstrated by the statistics as to leave little room for those cases which might be regarded legitimately as being significantly more culpable. I do not see it as the role of this Court, constituted as it is, to make any significant change to the range of sentences which is demonstrated by the statistics which have been produced. 22 I am satisfied, therefore, that the sentences passed by her Honour, which fell significantly short in point of culpability of the class of cases reflected in the range usually passed for these crimes, that error has been demonstrated. 23 As I have said, in respect of the first offence, a term of three years imprisonment with a minimum term of two years was imposed. I do not consider that there should be any change to that sentence. 24 In respect of the second offence, however, I propose that a sentence of four years imprisonment should be imposed with a minimum term of two years. The departure from the statutory formula is justified, to my mind, by the special circumstances that arise from the degree of family support which the appellant has had for his children and which, not only in their interest but I think in the public interest, should be enabled to resume as soon as possible, consistent with the imposition of the minimum term which reflects appropriately the seriousness of the crime. 25 The consequence is that the sentence in respect of the offence of agreeing to supply amphetamine is quashed. He is sentenced to a term of four years imprisonment to commence on 1 June 1999 and expire on 31 May 2003 with a non-parole period of two years to date from 1 June 1999. 26 Leave to appeal is granted. 27 SULLY J: I agree with the orders proposed. I am in agreement with the orders given by his Honour and with the reasons given by his Honour for those orders. The orders of the Court will be as announced by his Honour. **********