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 Judgment 1McCLELLAN CJ at CL: I agree with Fullerton and Campbell JJ. 2FULLERTON AND CAMPBELL JJ: The applicant seeks leave to appeal against sentences imposed in the District Court on 29 July 2011. 3On 23 March 2011 the applicant pleaded guilty in the Local Court to two counts of aggravated break and enter and commit serious indictable offence contrary to s 112(2) of the Crimes Act 1900, both of which were committed on separate premises in the early hours of 4 October 2010 in the company of a co-offender. In respect of the second count, two offences were taken into account on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, namely an aggravated attempt break and enter with intent, committed the same night as the two primary offences, and a break, enter and steal committed on 11 January 2007 at a hairdressing salon in Carrington when the applicant was a juvenile. $2000 was stolen. An offence of driving whilst disqualified committed on the same night as the principle offences, was dealt with pursuant to s 166 of the Criminal Procedure Act 1986. 4The applicant committed the offences in breach of a two year good behaviour bond imposed under s 9 of the Crimes (Sentencing Procedure) Act in the Local Court on 18 August 2009 for three offences involving his partner, including intimidating her with the intent to cause fear, causing damage to her motor vehicle and driving the motor vehicle whilst disqualified. On 23 March 2011 he was dealt with in the Local Court for breach of the bond. He was sentenced to a term of imprisonment for 3 months which expired on 16 February 2011. 5The sentences imposed in the District Court were ordered to commence at the expiration of that sentence as follows: (a)For the driving offence, 9 months imprisonment with a non-parole period of 6 months commencing on 17 February 2011 and expiring on 16 August 2011. The balance of term expired on 16 November 2011. (b)For the aggravated break, enter and steal on one set of premises (the C4 Café), 3 years imprisonment with a non-parole period of 2 years and 3 months commencing on 17 August 2011 and expiring on 16 November 2013. The balance of term is due to expire on 16 August 2014. (c)For the second aggravated break, enter and cause malicious damage to different premises (the Devine Café), and after taking into account the offences on the Form 1, 4 years and 6 months imprisonment, with a non-parole period of 3 years, partially accumulated on the previous sentence to commence on 17 August 2012 and expiring on 16 August 2015. The balance of term is due to expire on 16 February 2017. 6The Crown accepted that the pleas of guilty were entered in the Local Court on 23 March 2011 at the earliest available opportunity, attracting a discount of 25 per cent. 7His Honour found that there were no special circumstances justifying a variation in the statutory ratio fixed by s 44 of the Crimes (Sentencing Procedure) Act between the non-parole period and the additional term in respect of each offence. 8A total effective sentence of 6 years imprisonment with a non-parole period of 4 years and 6 months was imposed. Grounds of appeal 9The applicant advanced the following grounds of appeal: (1)The sentencing judge erred by failing to find that the applicant was remorseful, contrary to the evidence. (2)The sentence imposed is manifestly excessive. The facts for sentencing purposes 10The evidence in the proceedings on sentence consisted of a statement of agreed facts and the applicant's criminal antecedents. The applicant gave evidence, as did his partner Rebecca Haddow. A number of statements were tendered attesting to the applicant's subjective circumstances. 11In the early hours of 4 October 2010, the applicant, in company with his co-offender, drove Ms Haddow's car to the Devine Café, the Pioneer Estate Winery, Medowie. They broke in. In doing so they caused damage to the doors of the café. Once inside they stole various items of personal property including a television set valued at $2500. Additionally, they rummaged through and ransacked the kitchen area of the café. The estimated cost of repairing the damage was $23,847. The café owners were apparently uninsured and, unable to make good their losses, were forced out of business with trade debts totalling $20,000. 12The applicant and his co-offender then forced their way into the cellar of the winery where they caused additional damage before returning to the applicant's home with the stolen television. 13Later that morning the applicant and his co-offender went to the Ferodale shopping centre, also at Medowie, where they attempted to break into a bottle shop. They were unsuccessful, but destroyed a glass door, including its lock, in the process (this was the second matter listed on the Form 1). They then went next door and broke into the C4 Café, smashing the glass front door to gain entry. Once inside they broke plates and stole packets of potato chips. They also damaged the rear door of the premises. They absconded when the café's internal alarm was activated. 14They fled in Ms Haddow's car. The attention of the police was attracted by the manner of the applicant's driving. A police pursuit ensued. The applicant eventually abandoned the car and ran away on foot. 15Police searched the car and located evidence implicating the applicant, including some of the property stolen from the Devine Café and a sledgehammer coated in gyprock dust, indicative of it being used to affect the break-ins. 16For reasons that are not entirely clear, the police arrested the applicant in January 2011. The agreed facts suggest that at least part of the explanation was because of attempts by the applicant to evade arrest. 17The applicant was 22 as at the date of sentence. He was in a long-term relationship with Ms Haddow. They had three children under three years of age. 18The applicant gave evidence that he had been subjected to violence and abuse from his father before his father left the family home when the applicant was a teenager. He said he developed a problem with alcohol from about the age of fourteen or fifteen and that he also abused other drugs from about the same age. About his drug and alcohol problem he said: I need to get some help so I can be there for me family and stay out of trouble, stop committing crime. 19On sentence he gave evidence of remorse as follows: Q. Just regarding this offence, how do you feel, or what would you say to the owners of the café if they were in the, I don't know whether they are, but if they were in the court what would you say to them? A. Words can't explain how sorry I am to 'em. The amount of damage that was done, which was ridiculous, not just that, heaps of other people were affected. I think the business had to close so other people would've missed out on their wages and stuff, the employees. It's ridiculous. 20Under cross-examination, he said: As I said I never used to have nothing to worry about and that but now that I've got children I've spent a long period of time away from it's made me snap back to reality and realise that I need to get help so I can give them a good life and shelter them from the path that I've chosen. 21He went on to say: As I said, this is the first time I've ever spent a long time - period of time away from my children. I don't want that to happen again. I don't want them to make the same mistakes that I've made in the past. 22He described the events of 4 October in the following terms: Just a night of alcohol-fuelled stupidity and I - if I could do anything to take it back, I would. 23He said that when released from jail and working he would be "more than willing to make some monetary repayments". 24Ms Haddow gave evidence that the applicant had changed his attitude to his family responsibilities since his arrest and remand. 25In a written statement, Ms Haddow's father said he noticed a vast improvement in the applicant's attitude towards his family from letters he had seen that had been written from jail. Also in a written statement, Jason Adams, the applicant's workmate, said he had visited the applicant in jail and the applicant "was very apologetic for his actions towards the victims and his family for his absence". He also said that during the time they worked together, the applicant was very reliable. In a written statement, Arthur Lovett said that the applicant had worked for him doing construction work and that he had shown "great aptitude for these trades". He said he would be prepared to re-employ the applicant on his release. Jason Scholes, wrote that he had employed the applicant in his bricklaying business at some unspecified time in the past and spoke highly of his reliability and work ethic. He said he would re-employ the applicant provided he had a current drivers' licence. (I interpolate that the primary judge disqualified the applicant from holding a drivers' licence for three years from 29 July 2011.) The remarks on sentence 26After detailing the facts relevant to the commission of both of the aggravated break and enter offences, the primary judge described each offence as serious, as reflected in the maximum penalty of 20 years imprisonment and the standard non-parole period of 5 years. 27His Honour also had regard to the standard non-parole period as a guidepost to the determination of an appropriate sentence in accordance with the approach mandated by Muldrock v R [2011] HCA 39; 244 CLR 120; 212 A Crim R 254. 28His Honour found that both offences were premeditated. He also referred to the prevalence of offences of this kind, and the losses, and sense of loss, suffered by the respective proprietors. 29His Honour said that he knew little of the applicant's background or upbringing, his education or employment and physical and mental health. He made no reference to the statements of Arthur Lovett or Jason Scholes. He acknowledged the applicant's relationship with is partner and that he was the father of small children. 30He referred to the applicant's very poor antecedent criminal history and noted that the applicant had been dealt with for 39 offences the great majority of which were property offences of various kinds including multiple entries for break, enter and steal. His Honour remarked: I think that it is both obvious and fair to say that he has learned nothing from the sentences imposed upon him for earlier committed offences. I do not refer to his criminal past as an aggravating factor of the subject offences, but it is relevant to such issues as remorse, rehabilitation, re-offending and deterrence. 31His Honour noted that the applicant was subject to conditional liberty when he committed the subject offences which he regarded as an aggravating factor. This finding was, of course, open to him under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. 32Although his Honour allowed a discount of 25 per cent for his early guilty plea, he said: I doubt, notwithstanding his guilty pleas and his evidence, that he is remorseful for what he has done. Notwithstanding that I do not know what evidence police gathered in the investigation of the offences, I think that his guilty pleas show his realisation of the strength of the crown's case and his acceptance of the inevitable results. Frankly, I doubt that he has given a moment's thought to what he did and to the effect that what he did might have had upon the operators of the cafes and shop at where (sic) he and his co-offender committed the offences. I cannot say that he has good prospects for rehabilitation or that he is unlikely to re-offend. He has a history of committing similar offences to the subject offences. He was subject to a good behaviour bond and a community service order when he committed the subject offences. I suspect that his future will be much like his past. However, I accept that he, like every other sinner, is not beyond redemption and that he may turn over a new page in his book of life but, like so many things in life, only time will tell. 33His Honour made reference to the testimonials tendered on the applicant's behalf but apparently gave them little weight expressing the view that he suspected the authors were unaware of the extent of the applicant's criminal offending. 34His Honour also said: Mr Langbein must be reminded that repeated offending will not be condoned or tolerated, and offending will result in ever-increasing sentences of imprisonment. Others who may think of doing what the offenders did, and what they did was easy to do, and often the offenders are not apprehended, must be deterred by sentences imposed upon offenders, like these offenders, from doing what they did. (ROS 15) 35It was not submitted that the apparent weight given to both general and specific deterrence was not open to him. 36His Honour expressly refused to make a finding of special circumstances warranting or justifying a variation of the statutory ratio between the non-parole period and the parole period on the basis that such circumstances as were revealed by the evidence were not sufficiently "special". The submissions of the parties 37In relation to the first ground of appeal, counsel for the applicant relied on the evidence of remorse led on sentence and that the evidence was not challenged by the Crown. Whilst he acknowledged that a sentencing judge is not bound to accept assertions by an offender that he is remorseful, even when that assertion is made in the witness box (Alvarez v R [2011] NSWCCA 33; 209 A Crim R 297 at [65]), he submitted that the fact that the evidence was not expressly referred to by his Honour strongly supported the inference that it was overlooked and not given the weight it deserved in mitigation of sentence under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act (see R v Thomas [2007] NSWCCA 269 at [18] - [19]; R v Butters [2010] NSWCCA 1 at [16] - [17] and Pfitzner v R [2010] NSWCCA 314 at [33]). It was submitted that when the evidence of remorse was considered in the context of the applicant's relative youth, his Honour's pessimism as to whether the applicant was genuinely remorseful, and his pessimism as regards prospects of rehabilitation, were not findings open to him. 38The Crown submitted that the primary judge was entitled to regard the evidence of remorse as nothing more than an expression of regret over the fact that he was arrested and charged and that, in light of the evidence implicating him, a conviction was inevitable. In our view, that was a finding open on the evidence as one factor diminishing the weight of the evidence of remorse (see Windle v R [2011] NSWCCA 277 at [47]). 39It was further submitted that the genuineness of evidence of remorse is a question of fact in respect of which the sentencing judge is afforded a wide discretion with which this court would rarely intervene in the absence of error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499. The Crown also submitted that viewed in the light of the applicant's antecedent criminal history including, in part, that the offences were committed in breach of a s 9 bond imposed in August 2009, that despite the applicant's expressions of concern about his own family's predicament, it was open to the judge to reject his testimony as evidence of sincere remorse. 40As it was developed orally, the second ground of appeal related not to the individual sentences, which counsel accepted, although heavy, were within an available discretionary range, but to the partial accumulation of 18 months across all three counts which he submitted was productive of a sentencing outcome which was excessive in all the circumstances. 41The Crown submitted the objective seriousness of the offending, including the losses suffered by the owners of the Devine Café; the applicant's previous criminal history and his Honour's findings about the poor prospects of rehabilitation justified the imposition of the sentences imposed. She also submitted the judge's approach to partial accumulation was appropriate given that the two counts of aggravated break and enter were completely discrete as was the driving offence. Ground 1 42Although his Honour did not refer to the evidence of remorse in detail, or to the fact that the applicant's evidence was supported by his partner and Jason Adams, a former workmate, he did refer to the evidence in general terms. He also had the advantage of assessing the evidence of the applicant and Ms Haddow which an appellate court does not enjoy. 43Even were we inclined to afford remorse greater weight (about which we prefer to express no view), that does not establish appealable error or justify intervention. His Honour's acceptance or rejection of the evidence was a discretionary matter and, in this case, we can see no discernible error in its exercise. 44We would reject the first ground of appeal. Ground 2 45The question whether a sentence is manifestly excessive (or manifestly inadequate) is whether it can be said that the sentence is unreasonable or plainly unjust (see Hili v R [2010] HCA 45; 242 CLR 520 at [59] - [60]). 46Accepting the applicant's concession that an appropriate sentence was fixed for each offence, the challenge is limited to the extent of accumulation and the totality of the effective sentence imposed. As this Court has long recognised, questions of accumulation and totality are matters primarily within the discretion of the sentencing judge with which this Court is reluctant to intervene (see Hernandez v R [2013] NSWCCA 51 at [43]). Unlike the facts in Hernandez, in this case there is a distinct overlap in the factual circumstances involved in the driving offence and each of the two offences of aggravated break and enter (given that the vehicle he drove without a license was driven to and from both premises) which as a matter of principle did not justify an accumulation of six months on the sentence imposed on the first of those two offences. 47In addition, we are persuaded that an excessive effective sentence was imposed by reason of the accumulation of 12 months between the sentences imposed on the two counts of aggravated break and enter. Despite the fact that they involved separate premises, they were nonetheless committed in one episode of criminality of relatively short, if destructive, duration. While we are satisfied that this necessitated some accumulation of the individual sentences on those two counts in order to ensure that the effective sentence reflected the overall criminality comprehended by the offending, in our judgment an accumulated sentence of 5 years and 6 months with an effective 4 year non-parole period was excessive, in the sense that it exceeded a sentence required to properly reflect the total criminality of those two offences. 48We are also of the opinion that another sentence is warranted in law. It follows then that it is necessary for this Court to re-sentence the applicant. 49Although not a separate ground of appeal, counsel also submitted that his Honour ought to have found special circumstances justifying a variation of the statutory ratio established by s 44(2) of the Crimes (Sentencing Procedure) Act. We are not persuaded that the applicant has demonstrated appealable error in this regard. However, since we are otherwise persuaded that error has been made out and that re-sentence is necessary it is open to us to form its own view about whether there were circumstances sufficiently special in the statutory sense to justify an alteration in the s 44(2) ratio. Re-sentencing 50Two affidavits were relied upon on re-sentence, one from the applicant and one from his solicitor. They established that the applicant has completed the "Enough is Enough" one day workshop directed to "Responsibility, Rehabilitation, Reintegration" and he has attended twelve sessions of the "Getting SMART Program". On 10 September 2012 he commenced the Intensive Drug and Alcohol Treatment program which calls for his participation three days a week for twelve months. The other two (working) days he is employed in the Metal Shop. 51We acknowledge that the maximum penalty for the aggravated break and enter offences is 20 years with a statutory non-parole period of 5 years. We are also satisfied the offences involve significant objective criminality and that the individual sentences must reflect specific and general deterrence, aggravated by the fact that the applicant was on a s 9 bond. We also take into account the offences on the Form 1 in imposing sentence on the offence involving the Devine Café, noting that one of them occurred on the same night as the subject offences. 52Given his Honour's forensic advantage we feel constrained to accept his Honour's finding as to the question of remorse. 53As to the applicant's prospects of rehabilitation, we acknowledge the weight of the affidavits read on the appeal. The applicant has undertaken courses whilst in custody directed to assist in his re-education and rehabilitation and he is apparently committed to addressing longstanding drug and alcohol abuse which, on the applicant's evidence, we accept as providing some context in which the offences were committed. This material has led us to form a different view from his Honour as to the existence of special circumstances. In addition, after taking into account the fact that there should be partial accumulation (albeit ameliorated) of the sentences on counts 2 and 3, we consider that this is a case that falls into that category where the offender and the community will benefit if the applicant has a longer period under supervision in the community upon his eventual release from custody. 54We are conscious that the effective non-parole period must appropriately reflect the criminality involved in each offence and of the necessity to avoid inappropriate double counting when considering the question of special circumstances. We are also conscious of the need to be satisfied that there are circumstances sufficiently special to disturb the statutory ratio and reduce the non-parole periods (see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704; 126 A Crim R 525 at [68]). In this case, since we propose to confirm the sentences imposed by the sentencing judge, and since it is clear his Honour gave little, if any weight to rehabilitation, we are satisfied the applicant's now greatly improved prospects of rehabilitation will result in no double counting were we to afford him a finding of special circumstances for that reason. We are also satisfied that if allowed a longer than usual period under supervision in the community his continuing rehabilitation is likely to be successful (see R v Carter [2003] NSWCCA 243). 55To give effect to our finding, we would not disturb the sentences imposed on any of the three counts, but would direct that on the sentence in respect of the driving offence run concurrently with the sentence in respect of the offence committed at the C4 Café and that the sentence imposed for that offence and the offence committed at the Devine Café be accumulated by a period of three months. 56Finally, we would adjust the statutory ratio between non-parole period and balance of term in respect of the offences at the Devine Café and the C4 Café to reflect our finding of special circumstances. 57As the orders will make clear, the total effective sentence we propose is 4 years and 9 months commencing on 17 February 2011 and expiring on 16 November 2015. The effective non-parole period is 3 years and 3 months commencing on 17 February 2011, also reflecting a variation to the statutory ratio which, after accumulation has been moderated to ensure that the mandatory period of custody appropriately reflects the overall criminality. The earliest date upon which the applicant will be eligible for release to parole is 17 May 2014. We note that the applicant is expected to have completed the Intensive Drug and Alcohol Treatment Program in which he is currently participating by that date. 58The orders we propose, therefore, are: 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. ********** Amendments 01 May 2013 - Order 4(b) amended as per Langbein v R (No. 2) [2013] NSWCCA 100 Amended paragraphs: 58 and coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2013