R v Langier

Agreed Facts

1. At approximately 2pm on 24 April 2018, 72 year old Gary Allan, (the 'victim'), started his shift as a taxi drive for Central Coast Taxis. After completing a job nearby, the victim pulled into the taxi rank outside of Wyong train station. The victim saw the offender walk towards the taxi and open the passenger front-side door, wearing an orange and blue hoodie with blue shorts. The victim asked: "Where to mate?", to which the offender replied, "Northlakes Tavern, Charmhaven".
2. The victim turned the meter for the job on at 6.46pm. The victim started driving along the Pacific Highway, Wyong when he initiated small-talk with the offender. The victim asked the offender whether he was going to pay with cash or card. The offender said, "I have $30 cash and the rest on card if I need it". The offender then told the victim that he had to go home and get work clothes for the next day.
3. The victim continued to drive and, as they reached the Northlakes Tavern, the offender said, "Oh just turn right down this street", as he pointed down Alambee Street, Charmhaven. The victim made a left-hand turn into the street and the offender told the victim to continue driving to the end of the street. The victim followed the street around when the offender told him to pull over.
4. At approximately 7.08pm the victim pulled the car over. When the victim looked at the offender he saw that his eyes were wide and that he was holding a flick-knife with a brown handle and silver blade. The knife blade was approximately 30 centimetres in length.
5. The victim feared for his life and tried to get out of the taxi. The offender grabbed the front of the victim's shirt with his left hand to stop him from leaving. The offender pointed the knife at the victim and said, "Give me the money or I will stab you".
6. The victim was wearing a blue rectangular bag. This bag had a zip on top, a black strap and an Aboriginal design on the front. The bag contained most of the victim's night's takings, being $150 made up of all cash denominations, two sets of keys, one phone charger cord, one roll of tape and two taxi books. The victim immediately took off the bag to give to the offender. The offender got out of the taxi with the bag and ran down the footpath. The victim tried to chase the offender in the taxi, however lost sight of him.
7. The victim contacted triple-0 and then drove his taxi to Wyong police station to be forensically examined. The incident was captured on CCTV footage inside the taxi.
8. The following day a pair of blue shorts, a fluoro hooded jumper and a knife were located on a bike track at San Remo. The victim's bag was also found along a shared pathway at Woollahra Creek and taken to Toukley police station where police found two sets of keys, a Rent-A-Car inspection ticket, $3, a phone charger cord and some electrical cable ties.
9. On the afternoon of 27 April 2018, following a number of enquiries, Detective Senior Constable Milton and Detective Senior Constable Kennedy attended Wyong railway station. At approximately 9.35pm the offender was seen to walk onto the western platform of the station. The offender walked up to Detective Senior Constable Kennedy and said, "Does this train go to Newcastle?". Detective Senior Constable Milton said, "No it's terminating here".
10. Detective Senior Constable Milton saw that the offender appeared to be the same person as depicted in the CCTV footage in the taxi. The offender was observed to have swelling to his nose and a number of small scratches to his face. The offender appeared fidgety and nervous. The offender immediately turned and walked out of the railway station.
11. Detective Senior Constable Milton followed him and said, "Hey mate, stop there". The offender stopped and turned back towards the officers. Detective Senior Constable Milton showed the offender his identification and said, "I'm Detective Senior Constable Milton and this is detective Senior Constable Kennedy". He continued, "We're from Wyong police station. What's your name?". The offender replied, "John". Detective Senior Constable Milton said, "John who?". The offender did not reply and Detective Senior Constable Milton asked whether he had any identification on him. The offender said that he did not. Detective Senior Milton asked the offender if he was Douglass Langier to which the offender replied, "No".
12. Detective Senior Milton asked the offender whether he had a knife on him to which the offender also said, "No". Detective Senior Constable Milton said, "Mate, I don't believe you.. I believe you may be in possession of a knife. Under the provisions of LEPRA Legislation we are going to search you for a knife. Do you understand that?". The offender said,"Yes".
13. Detective Senior Constable Kennedy began searching the offender and Detective Senior Constable Milton asked the offender whether he had anything on him that was sharp and could harm police during the search. The offender said, "No". Detective Senior Constable Milton asked the offender, "Are you Doug?". The offender said, "Yeah" and confirmed that he was Doug Langier. Detective Senior Constable Milton again showed the offender his identification and informed the offender he was under arrest for the offence of armed robbery on a taxi driver. The offender then told police that he had a knife down his right side. Police located a medium-sized blue fixed-blade knife behind the offender's belt and removed the knife.
14. The offender was taken to Wyong Police Station where he participated in a record of interview with police. During the interview the offender made full admissions to the offence, advising police that he had been on an "ice bender" and believed that people were after him. The offender told police that he had no money to pay for the taxi and decided at the last minute to rob the taxi driver as he needed money. The offender told the police that he was remorseful for robbing the elderly taxi driver.

Assessment of Objective Seriousness

1. Those facts clearly disclose very serious objective criminality. The victim was doing no more than working and was submitted to a frightening episode of violence. Both general and specific deterrence are important considerations on sentence.
2. In assessing the objective seriousness of the offending, I have taken into account the guideline judgment of R v Henry [1999] 46 NSWLR 346. Specifically, I have had regard to the following matters: 1. The offender is not young. 2. He has no criminal convictions as an adult. 3. There were threats of violence during the commission of the offence and the offender grabbed the victim's shirt. 4. A relatively small amount was taken. 5. There was an early plea of guilty. 6. The weapon used was capable of inflicting serious injury. 7. The victim was vulnerable, being an elderly taxi driver.
3. Having regard to those factors, I am satisfied that the matter is at the lower end of the Henry guideline.

Aggravating Features

1. The Crown relied upon two aggravating features, namely the vulnerability of the victim because of his occupation and also his age. In circumstances where I have already taken into account those factors in assessing the objective seriousness, I do not propose to rely upon either as an aggravating feature.

Victim Impact Statement

1. I note that no victim impact statement has been provided to the Court by the victim, Mr Allen. Notwithstanding that I have not received a victim impact statement, I have no doubt that this would have been a very terrifying and traumatic incident for him. The Agreed Facts indicate that the victim feared for his life during the commission of the offence.
2. One of the purposes of sentencing is to recognise the harm that is done to the victim (see s 3A (g) of the Crimes (Sentencing Procedure) Act).

Subjective Circumstances

1. The offender is now 27 years of age. As previously noted, he has no adult criminal convictions. In such circumstances, he is entitled to leniency on sentence. The following material was tendered on behalf of the offender:

• Exhibit 1: A report of Dr Richard Furst, forensic psychiatrist, dated 19 February 2019.
• Exhibit 2: A letter prepared by the offender.

1. The offender's background is outlined in the report of Dr Furst. Dr Furst assessed the offender for one hour on 9 November 2018.
2. The offender is the youngest of three children. He has a 47 year old brother and a 36 year old sister. At the time of the preparation of Dr Furst's report, the offender's father was in a nursing home on the Central Coast. Sadly, he passed away last week. His mother has remarried and lives in San Remo. His parents separated when the offender was approximately 15 years of age.
3. For about two to three weeks before his arrest, the offender reported that he was living in bushland in the San Remo area on the Central Coast. Prior to that, he had had been living with a friend in Brisbane. Between 2012 and 2017 he had been living and working on the Central Coast as a metal roofer and landscape gardener.

Medical History

1. The offender reported no significant medical issues.

Education

1. The offender reported a history of learning and behavioural difficulties at school. He was diagnosed with ADHD by a paediatrician when he was ten years old. He was medicated until he was 15 to 16 years old. He was expelled from school in Year 9 as a consequence of truancy, fighting and smoking cannabis at school.
2. He reported commencing smoking cannabis and drinking alcohol from 11 years of age. He described that he would binge-drink approximately two to four litres of wine at a time by his late teens and he would "black out".
3. He reported being seriously assaulted by a group of Rebel Outlaw motorcycle gang members when he was 12 to 13 years of age. He believes the trauma of being assaulted made him paranoid and he reported anxiety symptoms. The offender reported that he was often drunk and disorderly as a teenager and in those circumstances came to the attention of police and Juvenile Justice. He had drug and alcohol counselling when he was 16 years old.
4. Dr Furst noted that there had been no criminal offending between the age of 16 years and the current offence.

Substance Use History

1. The offender reported that he commenced using drugs from 15 to 16 years of age. Whilst there was some abstinence in his twenties, he started using ice when he was 24 years old. This habit escalated and the offender reported developing psychosis. Dr Furst considered that this was most likely drug-induced. This resulted in two to three admissions to a mental health unit.
2. In relation to the offender's mental health, Dr Furst noted the following: "His paranoid symptoms and mood swings have been more persistent over recent years, prompting an apparent diagnosis of schizophrenia and/or schizoaffective disorder. Treatment over recent years has included the anti-psychotic medication Olanzapine and Seroquel. He was also receiving injections of Invega Susteena over the last two years, seeing the Community Mental Health team at Newcastle. His apparent psychotic illness was exacerbated by stopping his medication and going on 'benders' for one to two weeks at a time, Mr Langier's smoking and/or injecting around one gram of ice per day during those periods. His psychotic symptoms re-emerged including believing that cars were following him and that he was going to be killed".

Mental Health at the time of the offending

1. The offender reported that he had used ice in the days leading up to the offending and had been up for about 12 days. He said that he was feeling paranoid, was "hiding in the bush" and was "hearing voices". The offender said he now regrets the offence.

Current Mental Health

1. The offender is currently under the care of a Justice Health psychiatrist and mental health nurse. He is being treated with a combination of antipsychotic and antidepressant medication.
2. Dr Furst noted that there are no current symptoms of paranoia or hallucinations although the offender is "prone to feeling depressed at time".
3. Dr Furst was of the opinion the offender had reasonable insight into his addiction and mental health issues. He was further of the opinion that the offender meets the criteria for the following mental disorders: 1. Substance abuse disorder (methylamphetamine and alcohol); 2. Substance-induced mental disorder (drug-induced psychosis); and 3. ADHD.
4. I note that self-induced intoxication is not a matter in mitigation (see s21A(5AA) of the Crimes (Sentencing Procedure) Act).

Future Treatment

1. Dr Furst recommended the following treatment whilst the offender is in custody: 1. That the offender remain under the care of Justice Health Mental Health Services. 2. Drug and alcohol counselling with a focus on relapse prevention. 3. Access to education and vocational training and work experience for assistance over the longer term.
2. Upon release, Dr Furst recommended: 1. Placement in a structured residential drug and alcohol programme such as Dooralong Transformation Centre, Adele House or Odyssey House. 2. Follow-up with the offender's GP and/or local mental health team in relation to the risk of more serious mental health emerging over the coming years.
3. Dr Furst conclude as follows: "Mr Langier has a long history of addiction problems. He has accepted his guilt. He was open to accepting counselling rehabilitation and it is noteworthy that he managed to avoid any offending until the robbery offence in question, from the age of 16 years until April 2018. In my opinion he had a moderate risk of re‑offending, largely relating to the risk of him relapsing into further drug use when released from custody and his lengthy history of drug addiction. However in my opinion he had reasonably good prospects of being successfully rehabilitated especially if he engages in the treatment measures outlined above".
4. The offender gave evidence during the sentence proceedings. He stated that he is currently medicated, taking Seroquel, Avanza and a Depot injection once a month for schizophrenia. He read out to the Court a document he had written (see Exhibit 2). He stated at the time of the offending he was unmedicated and in a "bad state of mind". He also stated that he was under the influence of drugs. He said he would like to say sorry to the victim and his family and he takes "full responsibility" for his offending. He hopes that the victim had been able to return to work and that "he didn't suffer stress or anxiety". In relation to his future plans, the offender stated he wants to return to his employment as a roofer and to go the gym as he considers it helps his mental health.

Prospects of Rehabilitation

1. Any view of the offender's prospects of rehabilitation must necessarily be guarded given his longstanding substance use issues which are currently untreated. It is encouraging that he has expressed a willingness to engage in treatment, also he is still relatively young and he has previously demonstrated he can be gainfully employed. He also has some insight into his mental health issues.
2. In those circumstances, the Court is hopeful that with appropriate counselling and treatment he can remain drug-free once released from custody and look forward to a much more positive future. At this stage, I am unable to find he is unlikely to re-offend.

Remorse

1. Having regard to the offender's full admissions to police, his early plea of guilty, his admissions to Dr Furst and his evidence before me in the sentence proceedings, I am satisfied he is genuinely remorseful for his conduct.

Special Circumstances

1. It was submitted on behalf of the offender that the Court would find special circumstances and vary the statutory ratio between the non-parole period and the parole period in circumstances where: 1. The offender is still relatively young; 2. It is the offender's first time in custody; and 3. The need for extensive supervision on release to address drug and mental health issues.
2. Having regard to those factors, I am satisfied that special circumstances exist and I do propose to vary the statutory ratio between the non-parole period and the parole period pursuant to s 44 (2) of the Crimes (Sentencing Procedure) Act.

Mental Health Issues

1. Having regard to the evidence of Dr Furst, I am satisfied that the offender has a substance-induced mental disorder (drug-induced psychosis) which is relevant to sentencing in the following ways (see generally DPP Commonwealth v De La Rosa [2010] NSWCCA 94 at 77): 1. Firstly, because his mental health issues have persisted, it will mean his time in custody will be more onerous. 2. Secondly, in circumstances where I am satisfied his mental health issues were existing at the time of the offending (exacerbated by drug use) it is appropriate there be some moderation of the need for general deterrence.
2. Accordingly, I do propose to moderate the otherwise appropriate sentence.

Determination

1. In determining the appropriate sentence, I have had regard to the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act.
2. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate (see s 5(1) Crimes (Sentencing Procedure) Act)).
3. I have had regard to the maximum prescribed penalty, the objective gravity of the offence, the offender's subjective circumstances and the guideline judgment of R v Henry. I have also had regard to the submissions made on behalf of the offender and the Crown.
4. Mr Langier, in relation to each offence you are convicted.
5. In respect of the offence of robbery armed with an offensive weapon, I sentence you to a non-parole period of two years and two months to date from 27 April 2018 and expire on 26 June 2020. The total term of imprisonment is three years and four months which will expire on 26 August 2021.
6. The starting point for that sentence was five years imprisonment which I have discounted by 25% for your plea of guilty. I have found special circumstances in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act.
7. The earliest date upon which you will be eligible for parole is 26 June 2020.
8. In relation to the offence on the s 166 certificate of carry cutting weapon, you are convicted and you are ordered to comply with a Community Corrections Order for a period of 12 months pursuant to s 8 of the Crimes (Sentencing Procedure) Act to commence today. The Community Corrections Order is subject to the following standard conditions: 1. You must not commit any offences. 2. You must appear before the Court if you are called on to do so during the term of the Order.
9. Are there any other matters which I am required to refer to?
10. ROWE: No your Honour.
11. MANOOKIAN: No your Honour.
12. HER HONOUR: So Mr Langier that completes the matter.
13. OFFENDER: Yeah.
14. HER HONOUR: You understand that your earliest release date is 26 June next year?
15. OFFENDER: So a whole another year?
16. HER HONOUR: You have got another year and one week, approximately.
17. MANOOKIAN: So how much parole have I got?
18. HER HONOUR: Parole you have got - after that you have got another one year and two months parole.
19. OFFENDER: Okay.
20. HER HONOUR: That will mean you would have spent two years two months in custody and one year two months on parole.
21. OFFENDER: And you took that I've done 14 months, does that go into it?
22. HER HONOUR: I have backdated it by the time you've spent in custody.
23. OFFENDER: Okay. So I don't get released til next year, June?
24. HER HONOUR: Correct. So that completes the matter so I will now disconnect the audio visual link.
25. OFFENDER: Okay.
26. AUDIO VISUAL LINK CONCLUDED AT 10.35AM
27. HER HONOUR: Are those dates correct.
28. ROWE: Yes they are.
29. MANOOKIAN: Yes your Honour.
30. MATTER STOOD IN LIST
31. HER HONOUR: I will just re-mention the matter of Langier. There is one mathematical error that I want to correct. It doesn't require Mr Langier, it is just the starting point of the sentence. The starting point for the sentence was four years six months, not five years, which I have reduced by 25%. Thank you.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 August 2019