R v Langbein

[2020] NSWDC 855

District Court

New South Wales

Medium Neutral Citation:

R v Langbein [2020] NSWDC 855

Hearing dates:

22 October 2020

Decision date:

22 October 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of three years nine months. Non parole period of two years.

Catchwords:

CRIME – Reckless grievous bodily harm

SENTENCING — Relevant factors on sentence —guilty plea to alternative count not accepted in Local court but accepted in District Court - friends and neighbours fall out - a wrestle and then a stabbing- offender realises seriousness and offers assistance- serious injury - weapon used - sister prepares victim impact statement - victim impact- victim has intellectual disability

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

John Charles Langbein (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr K Averre (for the offender)
Mr M Fox, Crown Prosecutor

Solicitors:
Lisa Stone Lawyer (for the offender)

File Number(s):

2019/00287591

sentence – ex tempore revised

1. John Langbein is for sentence today on a charge that he, at Batemans Bay, recklessly caused grievous bodily harm to Mr Neil. Although the guilty plea was only formally entered today, Langbein indicated that he would plead guilty to that charge when he was before the Local Court. At the time, the Director of Public Prosecutions did not accept that offer but they now do. Accordingly, I will reduce the otherwise appropriate sentence by 25 per cent to reflect his early offer to plead guilty to that charge: s 25E Crimes (Sentencing Procedure) Act 1999.

2. The incident that puts him in custody also put a former friend in intensive care. Langbein was born in 1967. He lived in a unit in Batemans Bay. The victim Mr Neil was born in 1970. The two men resided in the same unit complex. Mr Neil has an intellectual disability but had been living independently at this address for some years. It appears that the two men were not just neighbours; they were friends. Their relationship was amicable and they would spend time together. As with some friendships there were at times arguments and fights.

3. On 11 September 2019 the two men went together to visit the offender’s son. Whatever the genesis for it, the discussion turned into an argument which turned into a physical altercation. The offender’s son intervened to get him to back away. He left swearing at Mr Neil. He also left his mobile phone behind. Police were called and they drove Mr Neil home. He took the offender’s mobile phone, intending to return it to him. But when he did so, he was met by a barrage of abuse: so much abuse that Mr Neil decided that he would be better off spending the night at his mother’s house.

4. During the night Mr Neil received abusive text messages from the offender. He did not reply to them. The following day, 12 September 2019, Mr Neil received telephone calls from the offender; he was calling him names and saying he wanted to “sort this shit out.” At 6:15pm there were a series of abusive text messages which again showed a level of anger. Again, Mr Neil did not reply. At about 7pm, Mr Neil returned to his unit. As he got out of his car the offender ran towards him swearing.

5. The two men engaged in a wrestle and a scuffle. Both held each other around the throat. During the scuffle, the offender reached for and took out a knife from his clothing. He stabbed Mr Neil. At the time, Mr Neil thought that he had been Tasered. Then he as felt down towards his stomach he noticed that his intestines were coming out into his hand. He shouted, “My guts are hanging out.” He held his abdomen with one hand and got into his car. He started to drive towards the hospital.

6. The offender, realising the seriousness of what he had done, tried to get in to the car and assist but Mr Neil was able to drive himself to Batemans Bay Hospital. There he was; treated, stabilised and then airlifted to Canberra Hospital. He had received two stab wounds. They penetrated into his abdomen and pierced the bowel. A laparotomy was performed. A 10 to 15‑centimetre section of his small intestine had to be removed. Police were soon called and they arrested the offender.

7. I have received a Victim Impact Statement prepared by Mr Neil’s sister. Section 30 Crimes (Sentencing Procedure) Act allows for a representative, on behalf of the victim, to provide a statement. Because of his intellectual disability and the trauma associated with this matter, Mr Neil was incapable of preparing the statement himself. As a Victim Impact Statement must only set out the particulars of personal harm, emotional suffering or distress suffered by the primary victim as a direct result of the offence, I will take that document into account subject to those proscriptions.

8. The Victim Impact Statement notes how Mr Neil arrived at Canberra Hospital in a critical condition. It notes the impact upon him and his family of his spending time in intensive care; how he had to be supported by breathing tube, with fears that he may have a brain injury from loss of blood. He spent some time in intensive care and on discharge was unable to eat, shower, drink, walk independently, unable to care for himself at the same level he had been able to previously.

9. Mr Neil suffered such trauma that he was assessed by a mental health team and scheduled at the Chisholm Ross Psychiatric Unit for a period. The statement speaks of the trauma resulting from this matter and how he had difficulty sleeping, with continual nightmares. He is still taking medication and he continues to fear for himself; with a particularly fear of residing alone. He is now subject to a Community Treatment Order and is being assessed is a managed community for Post‑Traumatic Stress Disorder. He still has problems and still has trouble living alone. He sees a therapist on a fortnightly basis.

10. It is necessary to make an assessment of how objectively serious this matter was. A weapon was used. That weapon was a knife. For anyone to possess a knife, particularly when angry and emotionally charged, carries with it a significant risk that the knife will be used, as occurred here. Although the offence is one of recklessly causing the harm, once the knife was used and used to the abdomen of the victim, the prospect of substantial harm is almost inevitable.

11. “Substantial harm” is an aggravating circumstance set out in s 21(a)(2) of the Crimes (Sentencing Procedure) Act. In matters such as this, the extent of the grievous bodily harm and the harm that results is a critical factor in my assessment of the objective seriousness of the offence. As Mr Averre, who appears for the offender points out, care needs to be taken not to double count such features.

12. The use of a weapon, the nature of the injuries, where the injuries were inflicted, the continuing harm and the fact that there were two separate strikes with the weapon are all matters that go to the seriousness of this matter. The offender, I am sure, now understands and the community has to understand, that to carry a weapon carries with it the risk it will be used. If a knife is used, the risk of serious injury and possibly even death is a possibility. It is one reason we have very strict laws about carrying knives. The use of the knife does make this matter a particularly serious example of its type. Although I have had experience of more serious injuries being occasioned, I do not in any way devalue the objective seriousness of this matter. That seriousness is obvious from the Victim Impact Statement that was read to me.

13. The incident occurred after a series of aggressive acts by the offender. He was ready for a fight and he armed himself preparatory to that fight. That said, I have to be careful. The charge is one of recklessly causing grievous bodily harm. I am prepared to accept, consistent with the guilty plea accepted by the prosecution that the knife was used recklessly and the wounds were caused recklessly, without serious thought as to the consequences. This conclusion is supported by the behaviour of Langbein, who as soon as he realised the extent of the injury that he had caused to his former friend. It is also reflected in the letter that he sent me today which, although it is not on oath, I am prepared to accept:

“I acknowledge my actions were reckless and dangerous. I apologise unreservedly. Mr Neil has needlessly suffered as a result and the incident has destroyed a long‑term friendship which I valued greatly. Mr Neil’s family must have been devastated and the situation is one that I hope my family never have to endure.”

14. In his letter Langbein speaks of how he is a proud family man. He tells me about the impact of gaol on him, particularly since the loss of his mother. But the main focus of his letter was to acknowledge the effect of his actions on Mr Neil and his family and the sorrow he feels for all the pain and suffering he has caused.

15. The maximum penalty for this matter and the maximum penalty of ten years and the standard non parole period of four years are significant guides to the exercise of my sentencing discretion. My assessment of the objective seriousness of the offence is also an important sentencing measure. I am required to give some content to the standard non parole period. In doing so I am required to assess objective seriousness without reference to matters personal to the offender, wholly by reference to the nature of the offending.

16. I do not engage in a staged approach to sentencing. My finding as to objective seriousness does not compel any one result, nor do I need to compare this matter with some other abstract offence. I have to synthesise all the competing features including; the objective circumstances, the principles of sentencing and the case for the offender. I must discuss their significance and make a value judgment about the appropriate sentence and its structure.

17. The material on behalf of the offender, apart from his apology, consists of a letter from his son, which sets out certain losses that his father has suffered and the stresses that he was under at the time, particularly as the offender was looking after his mother who had dementia. He says that it all got too much for his father and he was feeling the effect of her having to go to a nursing home, where she subsequently died while he was in custody.

18. I am assisted by a report from Dr Dayalan of 9 October 2020. What his report sets out is uncontroversial. It sets out the offender’s background which, details a degree of neglect. As a child Langbein struggled academically at school. For most of his life he appears to have suffered from depression. As is not unusual, he resorted to the use of alcohol to manage that condition. His alcohol history goes back to when he was 15 and it would appear that he suffers from both long-term and short-term memory impairment. He has also been prescribed psychiatric medication. He acknowledges a degree of irritability.

19. Dr Dayalan says that Langbein’s current medical state is consistent with the usual distress that prisoners feel, but aggravated by the fact that he could not attend his mother's funeral and the guilt that he feels in relation to that. He noted that Langbein had not had any panic attacks since he was incarcerated.

20. In Dr Dayalan's opinion he suffers from recurrent depressive disorder, related alcohol use disorder and adjustment disorder with anxiety symptoms. His mental state appears to have improved while in custody and that is related primarily to abstinence from alcohol and the antidepressant medication he is receiving.

21. The report makes an important recommendation that on release he engage in a comprehensive program in a residential rehabilitation facility. The report justifies, in my view, a finding of special circumstances to enable the State Parole Authority to put that in place. That potential quasi custody at a rehabilitation facility is a matter that goes to the structure of the sentence.

22. The report also sets out matters from his childhood that reduce, to a degree, his moral culpability. He was, as a result of that background, vulnerable to aggressive outbursts. It seem clear that, because of his background and mental illness, he does not have the capacity that many of us do, to calmly evaluate situations; as is obvious from his offending on this occasion. The more help he can get in dealing with those problems when he is in the community, the better it will be for him and the community itself.

23. Mr Fox, Crown Prosecutor, and Mr Averre, Counsel for the offender, have provided me with comprehensive written submissions. They are not controversial. They set out general sentencing principles that apply in a matter such as this. I have sought to do justice to them in this judgment. Although Mr Averre mentions the fact that s 35(2) matters can be dealt with summarily, this is not a case that would have been dealt with in the Local Court. Mention is made of the offender's criminal record. It does deny him the leniency often given to first offenders.

24. I am prepared to accept that if Langbein can deal with his alcohol problem, he will be in a better position to deal with his other underlying mental health issue. His prospects of rehabilitation will be significantly improved if he is given that assistance when he is released to parole.

25. All of the studies that I have read indicate that parole and supervision can assist in preventing reoffending and ultimately lead to better chances of community protection. With that help his chances of leading a law abiding life in the community will be enhanced.

26. I am prepared to accept that he now appreciates the harm that he caused his friend. I am prepared to accept that his background means that his moral culpability is lessened. Care needs to be taken because the background and the mental health issues raised by Dr Dayalan go hand in hand and while I do not double count matters in aggravation of sentence, I have to be equally careful not to double count matters which go to mitigation.

27. I have had regard to the cases to which I have been referred by Mr Averre. While every offence and every offender are individual, I have to formulate a sentence appropriate to this offender, sentence with help and guidance offered by the decisions of this Court and the Court of Criminal Appeal.

28. Although a strong case in mitigation has been made, mitigating factors can only go so far. Both written submissions speak of the need for a deterrent sentence. I am quite sure that his time in custody has caused Langbein to think about the consequences of his actions. I suspect he does so every day and I am sure that he will think twice before ever again arming himself with a knife. That purpose of sentencing has already been achieved.

29. I am also urged by Mr Fox to consider the principle of general deterrence. That is, by the severity of the sentence imposed to signal to others in the community who might think to do what Langbein has done - engage in a fight when angry and aggressive, while armed, and then stab someone - about the consequences of their actions to themselves, their victims and particularly, the fact that they might end up in gaol. The community has to understand that there is a maximum penalty of 10 years and a standard minimum non-parole period of 4 years imprisonment, set by Parliament. Matters such as this call for a retributive punishment, again to signal the consequences of such action to others. Sentences also must attempt to vindicate the dignity of the victim of an act of violence, and to signal the community’s disapproval of such behaviour.

30. Sentences should, by appropriate and just punishment, mean that disputes between community members are resolved by the sentence, and not continue. Ultimately, sentences have to be about community protection.

31. Because of his action, Langbein has to be removed from the community for a period, but he has to be restored to the community, and he should be restored in a better position than when he went in. His progress so far has been encouraging. And, although there has to be a further time in custody, I will, as suggested by Mr Averre, try and reduce its minimum term necessary to reflect all of the purposes of sentencing, but particularly the seriousness of what he did. That will still mean a fairly lengthy period on parole.

32. If you breach your parole, you go back to gaol. Do you understand, Mr Langbein?

OFFENDER: Yes, your Honour. Yes, your Honour.

33. HIS HONOUR: Mr Langbein, had it not been for the offer of an early plea of guilty, there would have been a sentence of five years imprisonment. The term of the sentence is three years and nine months. To give effect to my findings and my recommendation that when released to parole, you spend time in a residential alcohol rehabilitation facility, I make a finding of special circumstances.

Orders

34. The formal orders of the Court are, in accordance with your plea, you are convicted. There will be a non-parole period of two years, to will date from the date you went into custody, 12 September 2019. You will be eligible for consideration for release to parole by the State Parole Authority, on 11 September 2021. There will be a parole period of one year and nine months. That parole period is to be supervised in accordance with the general conditions. The term of the sentence is three years and nine months.

35. I recommended you be assessed for the residential drug rehabilitation facility.

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Decision last updated: 22 February 2021