Langbein v R [2013] NSWCCA 88

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Langbein v R [2013] NSWCCA 88 Hearing dates: 9/11/2012 Decision date: 26 April 2013 Before: McClellan CJ at CL at [1] Fullerton and Campbell JJ at [2] Decision: 1. Grant leave to appeal. 2. Appeal allowed. 3. Confirm the sentences imposed by the sentencing judge in respect of the offence of driving whilst disqualified including the period of disqualification imposed by his Honour. 4. Otherwise, the sentences imposed by the sentencing judge are quashed and the following sentences are imposed in substitution: (a) In respect of the offence under s 112(2) of the Crimes Act 1900 committed at the C4 Café, the applicant is sentenced to 3 years imprisonment comprising a non-parole period of 2 years commencing on 17 February 2011 and expiring on 16 February 2013, with a balance of term of 1 year commencing on 17 February 2013 and expiring on 16 February 2014; (b) In respect of the offence under s 112(2) of the Crimes Act 1900 committed at the Devine Café, the applicant is sentenced to 4 years and 6 months imprisonment comprising a non-parole period of 3 years commencing on 17 May 2011 and expiring on 16 May 2014, with a balance of term of 1 year and 6 months commencing on 17 May 2014 and expiring on 16 November 2015. Catchwords: CRIMINAL LAW - sentence appeal - two counts of aggravated break and enter and commit serious indictable offence - Form 1 offences - whether sentence was manifestly excessive - principle of totality Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: Alvarez v R [2011] NSWCCA 33; 209 A Crim R 297 Hernandez v R [2013] NSWCCA 51 Hili v R [2010] HCA 45; 242 CLR 520 House v R [1936] HCA 40; 55 CLR 499 Muldrock v R [2011] HCA 39; 244 CLR 120; 212 A Crim R 254 Pfitzner v R [2010] NSWCCA 314 R v Butters [2010] NSWCCA 1 R v Carter [2003] NSWCCA 243 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704; 126 A Crim R 525 R v Thomas [2007] NSWCCA 269 Windle v R [2011] NSWCCA 277 Category: Principal judgment Parties: Luke Langbein (Applicant) The Crown (Respondent) Representation: Counsel: P Winch (Applicant) S Dowling (Crown) Solicitors: Legal Aid Commission of NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/14368 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-07-29 00:00:00 Before: Nield ADCJ File Number(s): 2011/14368