Director of Public Prosecutions v Langsworth

[2019] VCC 56

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 18-01859

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY LANGSWORTH

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	31 January 2019
DATE OF SENTENCE:	31 January 2019
CASE MAY BE CITED AS:	DPP v Langsworth
MEDIUM NEUTRAL CITATION:	[2019] VCC 56

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Brown
For the Accused	Mr T Sullivan

HIS HONOUR:

1Ashley Langsworth, you were in a relationship with the victim for three years up until early January 2018.  When the victim ended the relationship, you reacted badly.  Though at first you simply talked to the victim at her house in an emotional but civil terms, later, you attended her house at 4 am crying and asking her to talk.  She did not let you in and told you to go, which you did.

2On 21 January 2018, the victim was at home with a man she had recently met and established a new relationship with.  You went to her house uninvited and went in through the back door.  You were in possession of a large, frightening knife.  The victim and her new partner were taken by surprise and immediately terrified when they saw you in the house.  You confronted the victims, holding the knife towards them, telling them that they were to listen to you.

3The prosecution summary of the events set out the following.  The victim jumped up from the couch where she was and shielded her arms in front of the male victim.  She said to you, "What are you doing?  Just put the knife down.  Give me the knife."  You then pushed her back on the couch.  She said, "Please put the knife down.  This is not you.  Think of your daughter.  You replied, saying, "I don't give a fuck.  I'll do 20 years for you."

4You and the victim had met while both of you were working as prison officers at Barwon Prison.  You had been a prison officer for a lengthy period of time,
15 years.  In this context, the repeated threat, "I'll do 20 years for you", was interpreted by the victim as a threat to kill her in the sense that both of you knew the term of imprisonment of 20 years would, in broad terms, be in the range for a murder sentence.

5You pleaded guilty to the charge of threat to kill, but I will say more about that shortly.

6Your threats, demands and violent behaviour continued and escalated. 
You demanded that the female victim and the male victim hand over their phones.  
You then told both of them to get on the floor.  They could not do so, as there was a coffee table in the way.

7You then grabbed one of the female victim's dogs and placed it in a headlock, and made a motion to stab the dog.  The female victim screamed at you not to touch the dog, and you then put the dog down and ran out of the room.

8I interpolate that from the victim impact statement, I discern the victim is very attached to her pets.  Your actions against and towards the dog were concerning, revealing your intent to cause distress to the victim.

9You continued to stand over the victims, holding your knife to them as they were on the couch.  Bravely, the female victim jumped up and tried to grab your knife.  You struggled with her, and she was cut on her hand.  Most concerningly was that you then grabbed her by the throat in a tight grip and pushed her back onto the couch.  You swore at her.

10At this point, or shortly thereafter, you broke down and commenced crying. 
The victims were able to disarm you.  In order to keep the situation calm, the victims spoke with you inside and then outside in the backyard, including having a beer with you.

11You told the female victim that you wanted her to go to your house and read a letter that you had written.  The female victim rang for your brother, for him to accompany you both.  He did exactly that, following you in his car.  You were with the female victim.  You were emotional on the journey.  At your house, you read the letter and then the victim took it.  You asked that the police not be contacted, and in the circumstances, the victim said that they would not contact the police.

12A few days later, the victim and her new partner went to New South Wales, where he lived and the female victim's family resided.  They remained there for about two weeks before the victim returned to the Geelong area and reported what you had done to the police.

13You were arrested the next day, and in your interview you claimed the victim, not you, produced the knife.  You were charged and bailed.  A condition of your bail was to abide by a non-contact and a non-approach intervention order, if
I can describe it that way.  The intervention order was also taken out on behalf of the victim at the time of your arrest.

14A month or so later, you breached the intervention order and your bail by being in the vicinity of the victim approaching, trying to talk to her, phoning her, or sending her text messages - albeit the text message was one that apologised.

15She was concerned for your deteriorating mental health and contacted your family.  They arranged for you to be seen by a psychiatrist, and admitted to the Geelong clinic, where you remained as an inpatient for about a week.  Thereafter, you and your lawyers sought and had listed a contested committal.  But on the day of the committal, with the witnesses present, you resolved the matters without cross-examining the witnesses.

16The impact on the victims of your frightening behaviour was and is considerable.  The victim impact statement of the female victim was read in court.  She said this:  the crime committed by you "has had a lasting and significant effect on my life."  She describes herself as being a person known to be, and is, "bubbly, joyful, smiling."  But that faded for some time after the event.

17She had nightmares after the incident.  She stressed a lot more about the safety surrounding her home, and importantly, to her pets she adored.  She even moved them interstate for a time.  She weighed up whether she should relocate, but she ultimately felt that she should not have to uproot her life with great disruption and cost.  But she did have a fear of you returning, and she was worried at night, hypervigilant about doors being locked, and frightened about sudden noises.

18She had trouble sleeping and rarely left the house after dark.  Certain things would make her relive or go cold:  if she saw a black car, or someone that resembled you.  She was not living her normal life that she had had before this incident.  It affected her passion for running, as she could not do it in the same way that she had before because of fears for her safety.

19She had never been one in the past to seek out counselling, but got to a point where she had to.  It has allowed her to express emotions.  She says, "I have cried a lot."  But she has been shown techniques to help ease her stress.  Things have improved, but they are a long way from where they once were.

20She speaks of the impact not only on her, but her partner and her family.  It has been tough, but she feels, with support, she is moving through it.

21And the male victim says the crime has affected him in many ways.  He was anxious and nervous, scared, when he returned to spend any time with the female victim after the event.  He started drinking more than he would regularly, and there were consequences for that with his employment and his sport. 
He is now attending to that.

22He has now moved to be with his partner because he wants to look forward and be happy, but he still lives in fear, locking every door and being worried about you coming, or seeing you, or the like.  And he has flashbacks and nightmares.  Just bear with me.

23Your counsel argued principally by reason of what is described as the de-escalation, and there was a de-escalation, of the violence once you broke down and the victims were able to thereafter maintain some calm.  Your counsel argued that yours was an example of this crime of aggravated burglary at the lower end of the scale.  Also, as evidenced by the charge, the assault was not particularly serious. 

24The crime of aggravated burglary is the entry as a trespasser with an intent to, in this case, assault while armed - in this case, armed with a deadly weapon.  You did not, as you did not have to, break into the house.  But your behaviour once in the house was immediately aggressive and threatening.  The female victim did her best to get you to stop, but you attacked her.  It was a frightening event that has had lasting effects upon her, as her victim impact statement makes patently clear.

25There are, of course, worse examples of this crime, but I do not consider this to be properly described as at the lower end of such offences.  These are - that is, aggravated burglary and assault always grave crimes, and this was a most concerning example of an intimate relationship aggravated burglary.

26The threat to kill was more veiled than explicit, and I do not consider it to be a serious example of that crime.  The assault, by a larger armed man on a smaller woman by choking around her throat, is a concerning example of common assault. 

27I will defer my assessment of your moral culpability until I have discussed your personal circumstances, especially your mental health.

28However, the community has had enough of men resorting to violence when a relationship ends.  Women are entitled to move to new relationships without retribution from ex-partners who break in to what should be the safety of a family home, and therein threatening and assaulting them and their new male friend.

29There is no excuse for such cowardly behaviour.  The courts will stand firm in denouncing these violent crimes and imposing penalties to punish and deter, which almost without exception will involve significant periods of incarceration.

30Your own counsel sensibly conceded that crimes of this kind ordinarily see sentences of imprisonment imposed.  This must be the case in light of what the Court of Appeal has said more than once about these intimate relationship aggravated burglaries.  To take just two examples.  In Filiz v The Queen, the Court of Appeal said:

"Offending of this nature is too often perpetrated by men whose response to the breakdown of a relationship is one of possessive, violent rage. 
It goes without saying that such a response to what is a common human situation is utterly unacceptable.  This Court has made it clear that such offending will attract serious consequences."

31The second and important decision in this area of offending, the Court of Appeal said in DPP in Meyers the following:

"We would wish to endorse the remarks in Filiz about a particular seriousness of offending involving former domestic partners.  Violence of this kind is alarmingly widespread and extremely harmful.  The statistics about the incidence of women being killed or seriously injured by vengeful former partners are truly shocking.  Although the cases under consideration do not fall into that worst category, they are symptomatic of what can fairly be described as an epidemic of domestic violence.

General deterrence is, accordingly, a sentencing principle of great importance in cases such as these.  Those who might, in a mood of anger or frustration or bitterness, contemplate this kind of violent entry into the home of a former spouse or partner must realise that if they do so they will almost certainly spend a long time in prison."

32As to your personal circumstances, you are now 46.  You were raised in a loving and supporting family in Corio and Lara.  You remain close to your parents, your siblings, and their partners, many who came to court to support you. 
You were involved, as was your father, in sport as you grew up and moved into adulthood.  Indeed, you remain active, completing marathons and raising money for charity.

33I pause to note that in your letter read to the victim on the night and tendered before me, you acknowledge that you had, in the year or so before the offence, lost your way - become physically unfit, unmotivated, and you drank to excess.  You have set about reversing that of late. 

34To return to your personal circumstances as they unfolded, you secured and have remained in solid work your whole life since leaving school.  A 15-year career as a prison officer has involved incidents causing problems with your mental health.  I will discuss the relevance of that to sentencing shortly.  However, your solid work history is to your credit.

35You have never been in any trouble before, and you are entitled to call on your previous good character as a basis for seeking a merciful sentence.  It is also a foundation for your ultimate reform, a solid foundation.

36Beyond the absence of your prior offending, your friend, Mr Stohl, wrote positively of your good character and your qualities.  He has been impressed with your generosity, with all involved in the sporting clubs that you and he have been involved in all your life.  He is impressed with your role as a father.

37You have had two other significant relationships.  The second was long-term, and you have a daughter, now nine.  You share parenting with your ex-wife, and your ex-wife remains positive.  Your daughter means a lot to you.

38During the course of your work in the prisons, you have been attached to high security units.  Although you were not present, you were required to give some evidence at a trial for a notorious murder on the basis of what you heard the accused say the following day.  You told Dr Walton, the very experienced forensic psychiatrist who was engaged by your solicitors, that the experience of giving the evidence was very stressful, made worse by the threats from hardened prisoners when it became known that you had given evidence.

39You were ultimately diagnosed with post-traumatic stress disorder. 
You received counselling and continued to work in the same prison.  Another later incident involving an assault on you exacerbated or reignited your post-traumatic stress disorder.  As a consequence, you are hyper-alert and hyper-vigilant at work.

40I take these matters into account in mitigation - not just the effect upon you, but the fact that you assisted the authorities in respect of the murder trial as a witness.

41Physically, you have had arthroscopes on your knee - separately, first, in
mid-2018 and again just days before your plea.  You are or were using crutches at the time of your plea, but it is anticipated you will have a good recovery.

42Sometime in 2018, you fell off a ladder and broke both arms.  This interrupted attendance at planned voluntary rehabilitation courses, being a men's behaviour change program and other courses to deal with problems with alcohol.

43As to the latter matter of alcohol abuse, you have significantly curbed your drinking since your arrest.  You have also sought out retraining, securing truck and forklift qualifications in the sad anticipation that you will no longer be able to work as a prison officer.  All of that is to your credit.

44You were, after being charged with these offences, suicidal.  And as mentioned, you were admitted to the Geelong Clinic.  You report now to be much better.  Dr Walton wrote that:

"Mr Langsworth was pleased to report that his previous suicidal ideas have subsided, and laterally, depression has been minimal.  He stated... "

45That is, Dr Walton wrote that you stated:

"I can see a new future."

46Dr Walton wrote of the earlier period in the following terms:  that on 13 March 2018, you were admitted to the Geelong Clinic, remaining as an inpatient to
20 March 2018, and there has been continuing outpatient follow-up under the care of Dr Janowska thereafter, ongoing consultations occurring around every four to six weeks at this stage.

47You initially minimised your criminality in treatment, but ultimately, you have accepted full responsibility and you have benefited from your treatment from
Dr Janowska.  She noted your previous work-related depressive symptoms and post-traumatic stress disorder.  She also noted your excessive drinking, seeing that as your ill-considered way of coping.

48She wrote the following:  that after your discharge and regular monthly follow-up, she said that you remain on antidepressants, but she concluded:

"Ashley has been progressing well, and his depressive symptoms improved.  He has not been experiencing suicidal thoughts and has been keeping quite active."

49She then concluded that prior to admission, the suicidal behaviour was driven by a sense of loss.  You had lost your partner, your reputation, and your role as a prison officer. 

"Ashley is also facing possible future losses - loss of his job, and loss of freedom as a result of his charges.  I do believe that Ashley needs ongoing support as the additional stress of his ongoing court proceedings will be operational in the near future.  With the experience of his admission and ongoing support provided by myself, I believe that Ashley has a better understanding of accessing help and keeping safe."

50Dr Walton opined the following:  that you would attract the diagnosis of chronic post-traumatic stress disorder and a parallel mixed anxiety/depressive disorder.  Whilst there are these dual diagnoses, you experience a single psychiatric syndrome only, and the picture is complicated by alcohol abuse.  Dr Walton went on:

"Rather more importantly from a psychiatric perspective was his mood disturbance:  the depression, in particular, likely rendered him compromised in terms of properly considering the consequences of his actions and encourage self-destructive behaviour.  The anxiety would have heightened his sense of rejection with consequent anger."

51He says that he believes it is a fair comment that you were suffering from a reasonably severe psychiatric condition at the material time which has made a direct contribution to the offending and perhaps might be seen by the sentence as ameliorating general deterrence, at least to some extent.

52It was submitted by your counsel on the basis of that evidence that your mental conditions of depression and post-traumatic stress disorder were implicated in your poor thinking and actions in committing the crime.  He argued that as a consequence, your moral culpability ought be seen as lower, and thus, less weight ought be attributed to denunciation.  The prosecution submitted that there was some basis for assessing the moral culpability as lower, but only slightly so, and any mitigatory effect ought be minimal.

53Each case is of course different.  However, the approach of the sentencing judge and the Court of Appeal in endorsing that aspect of the sentencing judge's sentencing in Meyers is generally helpful.  What was set out in the Court of Appeal is the following:

"The Judges' findings was as follows."

54Here, they are quoting from the sentence of the judge:

"I accept, on the basis of Dr Sullivan's report, that your capacity to make calm and rational choices was impaired by your depressive disorder.  I am not able to conclude that your use of opiates had any such impact.  You clearly set out deliberately with a very muddled and irrational plan, which was inevitably going to be counterproductive.  That said, I have no doubt that you knew you were doing was wrong.  Your moral culpability is reduced, but to a limited extent by reason of your mental impairment."

55Before going on to discuss what the Court of Appeal said, in the case of Meyers, Mr Meyers suffered long-term serious depression due to unrelieved or unrelievable chronic pain as the consequence of a serious motor vehicle accident many years before.  He was assessed by the experienced forensic psychiatrist, Dr Sullivan, as set out.  The Court of Appeal went on:

"On appeal, counsel for Mr Meyers maintained the plea submission that his conduct should be seen as being irrational, and that this warranted a substantial reduction in moral culpability.  We are not persuaded by that argument.  On the evidence, Mr Meyers appears to have acted rationally and purposefully.  As his counsel said, his objective was to persuade the victim, in the interests of his sons, to resolve their property dispute in a way that protected their futures.  He took a series of steps to equip himself in precisely the way required in order for him to achieve that purpose by confrontation.  He was able to plan, and give effect to the plan.

Whatever adverse effect his depressive condition may have had been having on him, it did not relevantly interfere with his ability to function or make decisions.  Rather, it would seem, it was his anger and frustration, and his fear of a likely property settlement litigation, which made him embark on this venture.  That the plan was 'foredoomed' is beside the point.  All too often, anger is the cause of foolish, self-destructive, criminal behaviour.  But that has never been thought to reduce the culpability of the perpetrator."

56The court went on to indicate that:

"Counsel pointed out - quite correctly - that Dr Sullivan had made specific findings about how depression had affected the respondent's mental functioning at the time of the offending, and that this court was bound by that finding.  We accept, moreover, that this is the kind of evidence which the court in R v Verdins said was required before a sentencing court could entertain arguments about reductions in moral culpability and deterrence."

But in the end, it was for the sentencing judge to determine whether the effect of a particular condition was such as to justify a reduction of moral culpability, or to reduce the importance of specific and general deterrence.  In our view, there can only ever be very modest mitigation when a condition such as depression is said to have impaired the offender's capacity to think clearly or make calm and rational choices.  Occasionally, the evidence may establish that the impairment of mental functioning was so significant as to leave the offender with no real sense of what he was doing.  In such a case, the attribution of criminal responsibility is properly mitigated.  But the present case is not of that kind.

Put another way, the culpability of someone like Mr Meyers is not to be viewed as materially different - in relation to his aggressive conduct - from that of a person who is not suffering from depression.  Although the first proposition in Verdins does not require a plausible connection, in practice this is how sentencing judges have approached it.  That reflects what we think to be a correct view, namely, that it is only when there is a real connection between the mental condition and the offending that the attribution of moral responsibility for the conduct is appropriately lessened."

57It goes on:

"On the evidence in this case, the existence of the depression does not provide any real causal explanation of this offending.  Plainly enough, it was Mr Meyers' distress about the property dispute, and the anxiety occasioned by the imminence of the court proceeding, which prompted this action.

58He was, it goes on to say:

"in an emotional state, as explained on the plea."

59It goes on to discuss about the burden of imprisonment, which I will turn to shortly.

60In my view, after anxious consideration, I have come to the conclusion that some but slight lowering of your moral culpability is warranted - principally on the basis of post-traumatic stress disorder, but also some impact of the underlying depression.  But that said, on any assessment, any proper assessment, your moral culpability is very high.  Thus, the slight amelioration means the remaining weight to be attributed to denunciation is significant.

61I do not agree that there ought be any even slight reduction in the significant weight that must be given to general deterrence.  The community would not be troubled, on the contrary, if you as another angry, self-centred man who reacted to a relationship breakdown with appalling violence and knife-wielding threats was used as a standard example to others who, like you, are upset, sad, even traumatised by what is happening in their personal lives.

62I consider that given your current stable, medicated and positive state, as articulated by both psychiatrists, any burden of imprisonment as a consequence of any current impaired mental functioning is not in any way mitigatory.

63But that is not to say that prison for you would not be more onerous.  That is because of your previous occupation and your previous experience as a prison officer, including, importantly, as a witness in a murder trial.  I give real weight to those matters.

64You have pleaded guilty, and that is important as it relieved the victims of reliving the trauma.  The community was saved the cost of a trial. 
Your sentence will be less than it otherwise would have been.  I take your plea and your efforts to rehabilitate, albeit thwarted in some degree, as an acknowledgement of the wrong you did and the need for you to take a better path.

65Your friend Mr Stohl, and to a degree, your sister Ms Tomkin who gave evidence, have seen your remorse.  I accept you are regretful about what has become of your life.  I consider you do feel for the victim, but have not been able to articulate that explicitly. 

66Your counsel argued that all the matters raised in mitigation pushed your case to that category where a community corrections order or a combined gaol and community corrections order was sufficient or was just and appropriate for these crimes.  The prosecution disagreed, contending the gravity of the circumstances meant only a sentence of imprisonment, and one beyond what would allow for a community corrections order in combination would be just and appropriate.

67I had you assessed for a community corrections order so as to get further information.  Unsurprisingly, you were found to be suitable.  I have no doubt that you will ultimately return to your lawful ways. 

68I have given your case anxious consideration.  The step of incarcerating you with your background is a grave one.  However, in the end, I conclude I have no other option.  The Court of Appeal, in the cases that I have referred to and others, have emphasised the community's abhorrence of offences of this kind.

69I have considered all this as well as the important guideline decision and guidelines set out in Boulton v The Queen.  In my view, the sentence that I must impose must be longer than would allow for a sentence incorporating imprisonment and a community corrections order. 

70I will allow for the potential for parole.  That is a matter for others.  Indeed,
I think in all the circumstances and in the articulation of what I see to be mercy, albeit probably you will not, that the period on parole will be long - achieved by a lower minimum term than might have been the case in other circumstances.

71The separate crimes and the breaches of the intervention order require some acknowledgement by moderate cumulation. 

72Can you please stand, Mr Langsworth?

73For committing the crime of aggravated burglary, you are sentenced to two years and nine months' imprisonment.

74For committing the crime of threat to kill, you are sentenced to one month imprisonment.

75For committing the crime of common assault, you are sentenced to three months' imprisonment.

76I order that one month of the sentence on the common assault been cumulative upon the sentence imposed on the aggravated burglary.  In respect of the summary matters, as an aggregate term, you are sentenced to four months' imprisonment, two months of which will be cumulative upon the sentences that I imposed on the indictment.

77Thus giving a total effective sentence of three years.

78And I fix a minimum non-parole period of 14 months.

79Had you pleaded not guilty to these offences and been found guilty of them,
I would have imposed a sentence of five years with a minimum of three years and two months.

80Are there any other orders required?

81MR SULLIVAN:  If it please Your Honour.  No, Your Honour.

82MR BROWN:  There is the sample, Your Honour, and also the disposal order.

83HIS HONOUR:  Yes.  The disposal of the knife - what do you say about the forensic sample?

84MR SULLIVAN:  No submissions, Your Honour. 

85HIS HONOUR:  Mr Langsworth, the prosecution have applied that you undergo a forensic procedure - the scraping of your mouth, so your DNA can be obtained and placed on a database.  It is not just a rubber stamp, but the seriousness of the circumstances of the offending, including that you in effect reoffended after being charged by the breaches, and that facing your DNA on the database enhances the database generally.  Thus, the order is in the public interest. 
I intend to grant the order for those reasons, or grant the application for those reasons.

86Thus, you have to understand that in time the authorities will come to take the scraping from your mouth.  If you do not consent, they can use reasonable force to secure the forensic sample.  The way forward is to cooperate.

87MR BROWN:  As it please Your Honour.

88HIS HONOUR:  Mr Langsworth, there is no opportunity in this court to spend any time with those that care for you.  You have to be taken by prison authorities who are under a very acute responsibility to look after you.  And they have a duty of care, as I hope they well understand, more acute than perhaps in other instances.  And if it was not made clear, the fact that you will be under that regime of protection and the like has operated to mitigate the penalty.  That is what I meant by speaking about your circumstances as a prison officer and someone who has given evidence.

89So you must go with the prison officers now.  Your lawyers will be in touch with you very shortly, no doubt - likewise, your parents, to make it clear how to get in contact with you.  Just be removed. 

90There is no reason for this to be in any other way not available to anyone who wants to read it?

91MR SULLIVAN:  No. 

92HIS HONOUR:  I thank the parties.  I thank those that have been involved for the dignity they have shown, and their forbearance as things took longer than might otherwise have been the case.

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