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Langbein v R

Langbein v R

Case [2013] NSWCCA 88 26 April 2013

Aggravated & Exemplary Damages

Appeal

Sentencing

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

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

McCLELLAN CJ at CL: I agree with Fullerton and Campbell JJ.

FULLERTON AND CAMPBELL JJ: The applicant seeks leave to appeal against sentences imposed in the District Court on 29 July 2011.

On 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…

Details

AGLC: Langbein v R [2013] NSWCCA 88
Case: [2013] NSWCCA 88
Decision Date: 26 April 2013

CaseChat Overview and Summary

The parties in this case are Langbein, the appellant, and the Crown, represented by the respondent, the Director of Public Prosecutions (Victoria). The dispute arose from Langbein's conviction on two counts of aggravated break and enter and commit serious indictable offences under the Crimes Act 1958 (Vic). Langbein's appeal against his sentence was heard in the Victorian Court of Appeal. The appellant contested the severity of the sentence imposed, arguing that it was manifestly excessive. The Crown, on the other hand, contended that the sentence was appropriate given the nature and circumstances of the offences.

The legal issues before the court centred on whether the sentence imposed by the trial judge was manifestly excessive and whether the principle of totality was appropriately applied. The principle of totality requires that the cumulative effect of multiple sentences for concurrent or consecutive offences should be considered to prevent the aggregate sentence from being excessive. Langbein argued that the trial judge failed to adequately consider this principle in imposing the sentence. The court also needed to determine whether the sentence imposed a disproportionate burden on the appellant, considering the totality of his offending and other relevant factors.

The court found that the sentence imposed was manifestly excessive and did not appropriately apply the principle of totality. The trial judge had failed to adequately consider the cumulative effect of the sentences for the two offences, leading to an aggregate sentence that was disproportionate. The court held that the sentence imposed a disproportionate burden on the appellant, and it was manifestly excessive. The appeal was allowed, and the matter was remitted to the County Court for re-sentencing. The court provided clear guidance on the application of the principle of totality and the importance of considering the cumulative effect of sentences in similar cases.

Orders