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Court of Criminal Appeal 26 April 2013

Langbein v R

[2013] NSWCCA 88

Theft & property
CRIMINAL LAW SENTENCE APPEAL FORM 1 OFFENCES PRINCIPLE OF TOTALITY

Citation: Langbein v R [2013] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 26 April 2013
Judges: McClellan CJ at CL; Fullerton and Campbell JJ

Background

The appellant was a 22-year-old man who pleaded guilty in the Local Court to two counts of aggravated break and enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900. Both offences occurred in the early hours of 4 October 2010, when the appellant and a co-offender broke into two separate cafés in the Medowie area. The offending caused substantial property damage, and the owners of one café were forced out of business with trade debts of $20,000.

Two additional offences were listed on a Form 1 (meaning they were taken into account at sentencing without separate conviction): an aggravated attempt to break and enter committed the same night, and a break, enter and steal from 2007 committed when the appellant was a juvenile. A driving whilst disqualified offence, also committed on the night of the primary offences, was dealt with separately. The offending occurred while the appellant was subject to a good behaviour bond imposed for prior domestic-related offending.

The District Court sentenced the appellant to a total effective term of 6 years imprisonment with a non-parole period of 4 years and 6 months. The appellant sought leave to appeal, arguing the sentencing judge failed to find remorse and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred in failing to find that the appellant was genuinely remorseful, contrary to the evidence before the court.
  • Whether the total effective sentence of 6 years with a 4 years and 6 months non-parole period was manifestly excessive.
  • Whether the principle of totality had been properly applied when structuring the accumulated sentences.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal on the ground of manifest excess, finding it unnecessary to resolve the remorse question as a separate issue.

On the question of manifest excess, the Court found that while the individual sentences for each offence were not themselves excessive, the accumulation structure produced a total effective sentence that did not adequately reflect the totality principle. That principle requires a sentencing court to step back and assess whether the combined effect of accumulated sentences appropriately reflects the overall criminality, rather than simply adding sentences together. The original accumulation arrangement resulted in an aggregate term the Court considered disproportionate when viewed as a whole.

The Court also found that special circumstances existed justifying a variation to the statutory ratio between the non-parole period and the additional (balance of) term. The appellant's significant drug and alcohol issues, his participation in a treatment program, and his prospects for rehabilitation supported a longer period on parole supervision to assist his reintegration. The original sentences had not recognised this.

In resentencing, the Court restructured the accumulation so that the sentences overlapped to a greater degree, and adjusted the non-parole periods to reflect the finding of special circumstances. The result was a total effective sentence of 4 years and 9 months with an effective non-parole period of 3 years and 3 months, both commencing 17 February 2011.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences for driving whilst disqualified (including disqualification period) confirmed.
  • All other sentences quashed and the following substituted:
  • C4 Café offence (s 112(2)): 3 years imprisonment, non-parole period of 2 years commencing 17 February 2011, expiring 16 February 2013; balance of term expiring 16 February 2014.
  • Devine Café offence (s 112(2)): 4 years and 6 months imprisonment, non-parole period of 3 years commencing 17 May 2011, expiring 16 May 2014; balance of term of 1 year and 6 months expiring 16 November 2015.

(Note: Order 4(b) was subsequently amended by Langbein v R (No. 2) [2013] NSWCCA 100.)

Key Takeaways

  • The totality principle requires a sentencing court to assess the overall effect of accumulated sentences and moderate them where the aggregate does not proportionately reflect the totality of the criminal conduct, even where each individual sentence is within range.
  • Individual sentences that are not themselves excessive can still produce a manifestly excessive total when accumulated without sufficient regard to totality.
  • Special circumstances justifying a departure from the statutory non-parole to balance-of-term ratio can include an offender's entrenched drug and alcohol dependency and the need for extended supervision on parole to support rehabilitation.
  • A 25% sentencing discount for a guilty plea entered at the earliest available opportunity was accepted without dispute by the Crown in this matter.
  • The Court of Criminal Appeal confirmed the driving disqualification imposed by the District Court, demonstrating that resentencing on appeal does not automatically disturb all components of the original sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 33, 44
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Alvarez v R [2011] NSWCCA 33
- 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
- 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
- R v Thomas [2007] NSWCCA 269
- Windle v R [2011] NSWCCA 277