R v Langi [2014] NSWDC 339

District Court New South Wales

Medium Neutral Citation: R v Langi [2014] NSWDC 339 Decision date: 17 November 2014 Jurisdiction: Criminal Before: COGSWELL SC DCJ Decision: An aggregate sentence of 3 years and 11 months imprisonment with a non-parole period of 2 years and 4 months. Catchwords: CRIMINAL LAW - particular offences - property offences - robbery in company - sentence - relevant factors - prior criminality - extensive criminal record - majority of previous offences dealt with in the Local Court - offence committed whilst on good behaviour bond - evidence of contrition - parity between co-offenders - sentencing guidelines - Henry factors - special circumstances for adjusting ratio between head sentence and non-parole period - need for supervision in the community - evidence of rehabilitation Legislation Cited: Crimes Act 1900 (NSW), s 97(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 98(1)(a), 98(2)(a), 98(2)(c) Cases Cited: R v Henry (1999) 46 NSWLR 346 Category: Sentence Parties: Regina (Crown) Fine Anthony Langi (Offender) Representation: Counsel: B Campbell (Crown) R Suters (Offender)

Solicitors: Office of the Director of Public Prosecutions (Crown) Advantage Lawyers (Offender) File Number(s): 2013/00161362

Judgment 1. I am sentencing Fine Langi for a robbery in company. Robbery in company is a crime against s 97(1) of the Crimes Act 1900 (NSW). Parliament regards it as a serious crime because it has fixed to it a maximum penalty of 20 years imprisonment. 2. In sentencing an offender, a judge needs to set out what happened to bring about the charge. The judge also needs to set out and take into account information personal to the offender. I will start with what happened. 3. Mr Langi and his partner, Jade McKinley, were at a shopping centre in Mayfield on 19 November 2013. They are in a relationship and share a son, Connor. Mr Langi is 37 now; he was then 36. Ms McKinley was then 25. 4. A woman named Ashley Irvine was sitting at a bus stop nearby. She was speaking on her mobile phone. Jade McKinley went up to Ms Irvine and said "Fuck you, you slut, you bitch. You fucking talking to me?" It appears that Ms McKinley thought that Ms Irvine was speaking to her, when in fact she was speaking on the mobile phone to somebody else. Apparently Ms Irvine had injured her wrist and was wearing a cast. She was also wearing some jewellery. Jade McKinley "grabbed the victim's earrings and ripped them from her ears. McKinley continued to shout at the victim, who was apologising to McKinley, trying to calm her down." (I am quoting from the agreed facts which became exhibit B in the sentence proceedings.) 5. Ms McKinley went into a nearby shop and spoke to Mr Langi. She claimed that she had been assaulted by Ms Irvine. Mr Langi said that he would come out. They both went out together and they both went back towards Ms Irvine. The facts go on to say that "McKinley screamed at the victim 'You fucking bitch. You fucking cunt.'" Mr Langi then joined in the abuse by saying "You're fucking nothing." They were both standing over and leaning over Ms Irvine. Not only that, Mr Langi was "holding down the victim, who was screaming". Then Ms McKinley "ripped the victim's necklaces from around her neck. The chain broke and two pendants fell to the ground. McKinley took the victim's purse from the seat beside her and picked up the pendants from the ground." Mr Langi "reached over and took the victim's two mobile phones which the victim had tucked into the top of her dress." They both then walked away, still yelling abuse at her. 6. The value of the jewellery stolen has been estimated by Ms Irvine as four and a half thousand dollars. The two phones were about $700. 7. Ms McKinley was arrested on 30 November 2013 and Mr Langi a couple of days later on 3 December 2013. They were both charged with robbery in company and I have had the benefit of the sentencing remarks of her Honour Judge Wilson SC, as her Honour then was, in sentencing Ms McKinley. I will return to that. 8. I turn now to some matters personal to Mr Langi. He has a criminal record. It is a long one. Most of the offences were dealt with by the Local Court. They include offences of dishonesty as well as an assault and matters to do with apprehended violence orders. All his offending was as an adult. There are many traffic matters. There is a break enter and steal. The dishonesty offences include goods in custody, larceny and shoplifting. He has been in gaol before, mostly for traffic matters. 9. It is important to note that at the time that he committed this offence, he was on a good behaviour bond. In other words, he had been released by another court into the community instead of being given a gaol sentence, on condition that he behave himself. He failed to do this and committed this crime instead. It is an aggravating factor which I am required to take into account. 10. Ms R Suters of counsel represented Mr Langi. She called her client to give evidence last Thursday. He has been in custody at Bathurst for the last five months where he is employed as a sweeper. He enjoys the work. He gave evidence that he has a history of drug abuse. He has been using amphetamines since his early teenage years when he was introduced to the drugs by an older friend of the family. His amphetamine use includes methamphetamine, the drug commonly known as ice. He has also abused prescribed medication. He has been on the methadone program and was on the methadone program before being released from custody on a previous occasion. He has also been on the methadone program in the community. 11. He and Ms McKinley's son, Connor, is now six. He is being cared for by Family and Community Services. 12. Ms Suters pointed out that Mr Langi had been out of custody for some three years or so between 2007 and 2011. She asked him what happened around 2011. There was an argument between him and Ms McKinley. Connor was taken away by the State authorities. That had a serious impact on Mr Langi's stability and, as he said, he went downhill from there and started to use drugs again. He was taking drugs at the time that he committed this offence. He remains in contact with Connor by exchanging letters whilst he is in custody. 13. Since being in custody Mr Langi has put on about 20 kilograms in weight because of his more healthy lifestyle in prison. It involves exercise and eating and he has not been using drugs in prison. This is borne out, as Ms Suters argues, by his record for misbehaviour in custody. He has transgressions over the years but none for this recent period. He has found that his employment as a sweeper and staying off drugs and his personal regime have brought a degree of stability for him on this occasion. 14. He expressed regret and contrition for the crime that he committed and some understanding of the impact that it would have had on the victim. He wants to build a new life away from bad influences and re-establish contact with his son, Connor. 15. Ms Suters, in her written and oral submissions, focused on two issues, parity and the length of the non-parole period. Judge Wilson SC sentenced Ms McKinley to a sentence of three years and 10 months. The non-parole period was two years and 10 months. Ms Suters points out that although her client played a less significant role in the offence than Ms McKinley, Mr Langi pleaded guilty at a much later stage than Ms McKinley. Mr Langi pleaded guilty only late in the week before the trial. As Ms Suters pointed out, it no doubt saved the witnesses and perhaps the witnesses having to prepare, but the plea was nevertheless very late. In addition, Mr Langi is older than the offender Ms McKinley. Both of them have similar criminal records, reflecting offences dealt with by the Local Court. 16. Ms Suters said, both in her written and oral submissions, that there was not a marked disparity between the two offenders so far as sentencing is concerned. Mr Campbell, who appeared for the Director of Public Prosecutions, acknowledged the late plea and the involvement of Ms McKinley and the age difference. In my opinion there is little difference between the two offenders so far as a sentencing judge is concerned. 17. The second aspect which Ms Suters dealt with was special circumstances for adjusting the non-parole period downwards. Normally a non‑parole period is 75% of the head sentence. A sentencing judge can adjust that figure downwards if the judge finds that there are special circumstances. 18. Ms Suters argued that there were special circumstances in this particular case. First she pointed to the fact that her client has been in and out of custody regularly over the years, apart from two periods, one from 2004 to 2006 and the other from 2007 to 2011. In other words, her client has not had a lot of time in the community with an opportunity to stabilise his life in the community as distinct from being in custody. I think that there is a good deal of force in that submission. The second is that it is apparent that her client is making an effort whilst in prison to rehabilitate himself. That is obvious from the weight that he has put on, his regime of training and the fact that there are no institutional punishments which he has incurred this time. I accept that submission too, and in due course I am going to fix a non-parole period which will be about 60% of the head sentence. 19. One last matter that both Ms Suters and Mr Campbell dealt with was the fact that in committing this offence, Mr Langi had breached a number of good behaviour bonds imposed under s 9 of the Crimes (Sentencing Procedure) Act 1999. 20. Three of them were imposed on 16 January 2012 for a common assault and for two offences of contravening a prohibition or restriction in an apprehended violence order. For each of those three offences, Mr Langi was given a good behaviour bond for two years. The good behaviour bond would have commenced on 16 January 2012 and would have expired on 15 January 2014. Ms Suters pointed out that I should take no action in respect of those three offences because the offending behaviour, and therefore breach of the bonds, occurred towards the very end of the period of two years. I propose to accept that submission. 21. However, the fourth good behaviour bond was imposed on 24 May 2013, only a few months before the offence in this case. That was a six month good behaviour bond for possessing a restricted substance, which was a tablet. Although Mr Langi was also towards the end of the good behaviour bond in respect of that offence, it was a much shorter bond and had been imposed much more recently. In respect of that case, I propose to fix a sentence of one month imprisonment upon which the other sentence will be accumulated. In fact, what I will do is to indicate the two sentences that I would impose and then I will aggregate the two sentences. 22. For reasons that I have given, I would regard an appropriate sentence for Mr Langi as being the same as the sentence imposed in respect of his co‑offender, Ms McKinley. I emphasise that, although she had a greater role, Mr Langi pleaded guilty much later. That sentence I have indicated of three years and 10 months takes into account the plea of guilty which he entered late, and it also takes into account the guideline judgment for sentencing in robbery cases given by the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346. Ms Suters, I might add, correctly conceded that I had no other choice than a sentence of custody. 23. In respect of the breaches of three good behaviour bonds imposed on 16 January 2012, I would take no action. 24. In respect of the breach of the good behaviour bond imposed in 2013, I would have fixed a one month sentence. 25. In respect of the robbery in company that I am sentencing him for in this case, I would regard a sentence of three years and 10 months as appropriate. However, the non-parole period I would fix at two years and four months on the overall sentence. 26. Accumulating, as I would do, the three years and 10 months onto one month, that would yield an overall sentence of three years and 11 months, or 47 months. In due course I will impose one aggregate sentence in respect of both crimes. 27. Were I to fix the normal non-parole period envisaged by the Crimes (Sentencing Procedure) Act, the non-parole period would be two years and 11 months. Instead, I propose to fix a non-parole period of two years and four months. HIS HONOUR: I will make the orders now. 1. I am satisfied that Mr Langi has failed to comply with the conditions of the three good behaviour bonds imposed on 16 January 2012 in the Newcastle Local Court. Under s 98(2)(a), I decide to take no action with respect to those failures. 2. I am also satisfied that Mr Langi has failed to comply with the conditions of the good behaviour bond imposed by the Newcastle Local Court on 24 May 2013. Under s 98(2)(c), I revoke that good behaviour bond. I would have re-sentenced Mr Langi to one month imprisonment under s 99(1)(a) of the Crimes (Sentencing Procedure) Act and I would have imposed a sentence of three years and 10 months, cumulative on that one month, in respect of the robbery in company. 3. But in respect of both of those offences, instead of imposing separate sentences, I impose an aggregate sentence of imprisonment of three years and 11 months. That commenced on 3 December 2013, when Mr Langi went into custody, and it will expire on 2 November 2017. I fix a non-parole period of two years and four months which commenced on 3 December 2013 and will expire on 2 April 2016. The balance of the term is one year and seven months commencing 3 April 2016 and expiring on 2 November 2017. HIS HONOUR: Now, Mr Campbell, Mr Bruce, take your time to check the mathematics. So, three years and 11 months aggregate sentence commencing 3/12/13, expiring 2/11/17; non-parole period two years and four months commencing 3/12/13, expiring 2/4/16; balance of the term, one year seven months, 3/4/16 to 2/11/17. Do you agree with the figures, mathematics, Mr Campbell, Mr Bruce? BRUCE: Yes, your Honour. CAMPBELL: Yes, your Honour. HIS HONOUR: And I do not order release on parole because it is over three years. I am pretty sure I am right. Yes. The Parole Authority deals with it. BRUCE: That's so. HIS HONOUR: All right. Now, Mr Langi, you have received the same sentence as Ms McKinley of three years and 10 months. I have also given you one month for one of the breaches of your bond. So, all in all, you have got three years and 11 months, do you understand? That commenced when you were arrested on 3 December last year, so you are nearly a year through your sentence. Your sentence will expire eventually on 2 November 2017. But the important consideration for you is your non-parole period. That also commenced when you were arrested on 3 December 2013 and your non‑parole period will expire on 2 April 2016. Now, I do not order your release on that date-- BRUCE: Would your Honour allow me to be excused, your Honour; in fact, because the parole period is less than three years-- HIS HONOUR: No, it is the overall sentence, three years. BRUCE: I apologise, your Honour. HIS HONOUR: Yes, I think I am right - section 51. Your parole period expires 2 April 2016, and then you have got after that one year and seven months of your sentence to go till the sentence finally ends on, as I said, 2 November 2017. The Parole Authority will consider your application for release on parole, hopefully favourably, because you have been doing very well so far. Do you understand that now? OFFENDER: Yes I do. HIS HONOUR: Okay. Do you have any questions? I am not saying you should, I am just checking. OFFENDER: No. HIS HONOUR: No. Good. All right, thanks, Mr Langi. Good luck. OFFENDER: Thank you. HIS HONOUR: I will give the exhibits back to my associate, and in due course I will - what has happened to the 166 certificate, of affray? CAMPBELL: If your Honour will just dismiss that. 1. All right, I dismiss the charge of affray.