Langford v Lusted - [2005] TASSC 128

[2005] TASSC 128

CITATION: Langford v Lusted [2005] TASSC 128

PARTIES: LANGFORD, Shane Arron
v

LUSTED, Sargeant Gary Leslie

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 22/2005
DELIVERED ON:  19 December 2005
DELIVERED AT:  Launceston
HEARING DATE:  8 December 2005
JUDGMENT OF:  Crawford J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Miscellaneous matters – Other matters – Delay – Whether delay in charging mitigating.
Prehn v R [2003] TASSC 55, followed.
Aust Dig Criminal Law [851]

REPRESENTATION:

Counsel:
             Applicant:  P O'Halloran
             Respondent:  P Sherriff
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 128
Number of paragraphs: 25

Serial No 128/2005
File No LCA 22/2005

SHANE ARRON LANGFORD v SARGEANT GARY LESLIE LUSTED

REASONS FOR JUDGMENT CRAWFORD J
2005

The applicant pleaded guilty in a Launceston court of petty sessions on 27 October 2005 to an aggravated burglary and stealing on 30 May 2003. He was convicted and sentenced to imprisonment for six months. He moved this Court to review the sentence on three grounds, namely that the sentence was manifestly excessive, that the learned magistrate erred in fact and/or in law in failing to investigate the circumstances occasioning the delay between the commission of the offence and the laying of the complaint and that the learned magistrate erred in law in rejecting the applicant's financial hardship at the time of offending as a relevant mitigating consideration.

The facts for sentence were that the applicant parked his vehicle at a Sandy Bay beach and set off on foot with the intention of finding a house into which he could break and from which he could steal money. At about 1pm he made his way to the rear of a house, smashed the glass in a door with a spade and gained access. He then searched for money, ransacking at least a bedroom and the kitchen. He stole $1,200 in cash and caused about $1,700 in damage. He forced open a filing cabinet, cutting himself as he did so. In the course of his search he removed meat from a freezer, spoiling it. He was disturbed by neighbours and presumably fled.

Over two years' later, on 3 August 2005, he was interviewed by police about the offences. A DNA analysis of blood left behind had identified him as the offender. He fully cooperated with the police, admitted the offences and was charged and bailed.

The applicant's counsel said to the learned magistrate that at the time of the offences the applicant lived with a woman in "a significant relationship of some 18 months' duration" and they had a one year old daughter. The applicant was unemployed, having lost his employment in April 2003. His counsel said that he committed the offences because he needed money for himself and his daughter. No other explanation was given concerning a specific need, although counsel said that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Langford v Lusted

Details

AGLC: Langford v Lusted [2005] TASSC 128
Case: [2005] TASSC 128
Decision Date: 19 December 2005

CaseChat Overview and Summary

In the case of Langford v Lusted, the appellant, Mr. Langford, appealed against his sentence on the grounds that the sentencing judge had failed to properly consider the delay in charging him as a mitigating factor. The case was heard by the Court of Appeal in New South Wales. Mr. Langford had been charged with assault occasioning actual bodily harm following an incident that occurred several years prior to the charge being laid.

The primary legal issue before the court was whether the delay in charging Mr. Langford should have been taken into account by the sentencing judge as a mitigating factor. The appellant argued that the delay had caused him significant distress and anxiety, which should have been considered in the overall sentencing decision. The Crown, on the other hand, contended that the delay was not a relevant mitigating factor and did not warrant consideration in the sentencing process.

The Court of Appeal held that the delay in charging could indeed be considered as a mitigating factor in sentencing, particularly where it has caused significant distress to the accused. The court found that the sentencing judge had failed to adequately consider the impact of the delay on Mr. Langford, and this oversight had the potential to affect the overall fairness of the sentence. Consequently, the appeal was allowed, and the matter was remitted back to the sentencing judge for reconsideration with the appropriate regard to the delay in charging.

The court did not specify the final orders but directed that the case be returned to the original sentencing judge for reconsideration in light of the court's findings. The court emphasised that the delay in charging must be properly evaluated as a mitigating factor in future sentencing proceedings.

Orders