Solicitors:
Legal Aid NSW (for the offender)
Ms A Bird (for the Director of Public Prosecutions)
File Number(s): 2018/00389017
[2]
SENTENCE - EX TEMPORE REVISED
Kolby Langlo is to be sentenced today for two serious offences;
1. Discharge a firearm with intent to cause grievous bodily harm section 33 A(1)(a) Crimes Act 1900; maximum penalty 25 years' imprisonment, with a standard non-parole period of nine years, for an offence that taking into account only objective features fall within the middle of the range; and
2. Intimidation, section 13(1) Crimes (Domestic and Personal Violence) Act 2007, maximum penalty five years' imprisonment.
The bulk of these sentencing remarks will focus upon the offender, but before I start it needs to be made clear to Langlo, and everyone in Court and the community, that these were not victimless crimes. What Langlo and his associate did on this day in May 2017 has had a terrible and continuing impact on its victims.
Ms Williams suffered a gunshot wound. When she was shot, she fell heavily. The shooting and the consequences of her fall has led to continuing medical issues. She still receives treatment for pain and paraesthesia. She will require ongoing counselling for the trauma and the other mental impact of the offences. She is unable to work. She still no longer feels safe. Her daughter, who was directly confronted by Langlo, had to leave her home. She too still no longer feels safe. Her social life is diminished. She still has dreams about the event. She no longer leads the life she used to live.
R v Langlo [2020] NSWDC 875 | Case summary | Zoe
Kolby Langlo was born in 1996. On 9 March 2016, together with another, he committed an offence of assault occasioning actual bodily harm. He went into custody for the first time on 10 March 2016. On 1 August 2016, he was bailed. In June 2017 he was acquitted by a jury of another matter. He is to have the full benefit of that acquittal. On 15 June 2017, I sentenced him for the 9 March 2016 incident and, taking account of 145 days he spent in custody until bailed, I put him on a bond to be of good behaviour. He was not of good behaviour.
On 23 June 2017 he was sentenced in the Local Court for further offences and older matters going back to 2015. He appealed to this Court. I reduced his sentence and he was to have been released on 22 March 2019. His was release not released because he was charged with the present offences on18 December 2018; that is, after he had been in custody for over a year. He was not released on 22 March 2019 and remains in custody.
That chronology is important because the event that brings him for sentence today occurred on 29 May 2017. That is about a month before his trial, less than a month before I sentenced him and gave him his bond. During that period, his counsel submits, he was "out of control." The evidence before me supports that conclusion.
Despite a significant amount of evidence implicating him in the offences, including his own admissions Langlo did not plead guilty in the Local Court. He chose, as is his right, to go to trial. The trial was delayed because of the COVID-19 pandemic. The relaxation of social distancing rules and innovative court practices meant the charges were able to be for a jury trial on 26 October 2020. Guilty pleas were entered on 6 October 2020. Langlo still receives some benefit for that plea. A ten per cent reduction is required. I do not take the view that mathematical precision is required, so while I intend to give him the benefit of a 10 per cent reduction, there will need to be some rounding of days and hours.
The guilty pleas had other benefits. It meant that his two victims were not required to give evidence in the trial and subject themselves to cross-examination. It also indicates that, at long last, he has taken responsibility for his offending behaviour and I take that into account.
I turn now to what occurred on 29 May 2017. In the early hours of that morning Langlo sent a text to an associate that read, "Can you bring me a W-E-P, please?" At 1.20am he and two others arrived at a house in Primbee in a blue Subaru Forrester. Ms Williams and her daughter, then aged 17, were home at the time. Ms Williams heard her dog barking and went to investigate. She was confronted by a man waving a gun at her and telling her to "Get in here. Get in here." As that man stepped towards her she pushed him. There was a struggle. She tried to fight him off. He then moved the gun towards her knee and fired it. The bullet entered Ms Williams' leg above her knee and exited the other side of her left leg. She ran away but was followed. Her shooter attempted to drag her inside the premises.
Her daughter, who was in her bedroom, heard the bang and the screaming. She walked to the rear of the house, where she thought her mother was, and saw Langlo standing inside the house. He pointed a gun at her and said in an aggressive tone, "Get out." She ran out of the house. Both women were able to escape. The offenders also left in the blue Subaru Forrester.
On 2 June 2017, the Forrester was located in near where the offender lived. Forensic evidence linked the offender to the crime. In addition a number of witnesses were interviewed each deposed to admissions being made by the offender. He told them he was not the shooter but that he was there, intending to obtain money he believed was kept in a safe at the premises.
Despite a very strong circumstantial case and his admissions, the offender persisted in refusing to accept responsibility for his crime. Although he was not the shooter, he is still criminally liable for the acts of his co-offender. There was clearly an agreement between them to enter the premises while armed and that agreement carried with it a possibility one of those weapons would be discharged. That someone could be hurt would have been obvious to anyone.
There was some planning and premeditation, although I can reach no finding that there was, in fact, any money at the home or, as was later raised by the offender, any debt owed. From the perspective of the victims, the offence was purposeless, making it even more terrifying. There was a successful attempt to obtain firearms and the vehicle. But in many respects the offending was inept - the men made no attempt to disguise themselves; the Forester was left only minutes' drive from where the offender lived and has resided for most of his life; ammunition with forensic links to the offender was left in the car.
The offender told his psychologist that he was significantly affected by drugs at the time he committed the offence. This circumstance can be accepted given what I know of Langlo but it does not and cannot mitigate. A crime is not excused because the offender is drug affected. In fact, where a person is drug affected and is in possession of a firearm, it makes the offence objectively more serious because, as the offender well knows, when affected by illicit drugs you do not act rationally and terrible things can happen. If someone is not capable of rational thought and is also armed, the potential for even more serious harm than what was occasioned does not need to be spelt out.
The offender was, as I have indicated, on bail at the time for two matters. He did, at the time, have a criminal record but it was not at that stage significant.
The fact that there were others people involved is also relevant. The use or possession of unauthorised firearms in connection with criminal activity and their involvement in a crime makes any crime more serious, but here it is one of the critical elements of the section 33A(1)(a) offence and should not be double counted. To intimidate somebody at their home with a firearm is a serious aggravating feature of the intimidation offence.
I have already mentioned the maximum penalty and the standard non-parole period. Every offence and every offender requires individualised treatment. Judges in the exercise of their sentencing discretion, take guidance from a number of sources. They include the maximum penalty and the standard non-parole period where applicable. Content should be given to that non-parole period. I have regard to sentencing practises of this Court and the guidance offered by the Court of Criminal Appeal. It does not need really to be restated how serious a crime it is to invade someone's house in company with others while armed with a firearm.
As I have said, there will be a reduction of 10 per cent for the late plea. There will be some accumulation here to recognise the fact that each offence had a separate victim. Although, that accumulation can be modest as both offences occurred in the same context.
While this offender was equally liable for the crime of discharging the firearm as the person who pulled the trigger, the facts reveal that he was not actually present when this act occurred. As a matter of logic, his culpability is less than the person who intentionally fired the firearm because he is being punished for his inferred awareness of the possibility that that crime might be committed and role is always an important part when assessing criminal liability.
In terms of his subjective case, as the long-term list judge in this town, I have some information about his background having worked and lived in Wollongong since the 1980s. I am specifically informed by my having dealt with Langlo on two prior occasions. I have also, sadly, sentenced other close relatives.
I am, as always, indebted to Ms Van De Velde, psychologist, for her comprehensive report. Although not supported by evidence on oath, it accords with what is known and accepted. It is not controversial and it appears to be a 'warts and all' assessment of the offender. However, where there are untested statements going to the objective seriousness of the offence, I have no regard to them except for those that, in fact, aggravate the offence; an example being Langlo's drug use at the time of the offence.
I also have a report from the Illawarra Aboriginal Medical Service in regard to the medical condition of his mother She too is also known to me as she has appeared before me for sentence. I am sympathetic to her plight. It is clear that she would like her son with her to provide solace and assistance to her. But Courts must harden their hearts in such circumstances, unless those circumstances are truly exception and, with great respect, they are not. Nevertheless, Langlo's mother's condition is a matter I can and should take into account when I synthetise all relevant factors.
There is material before me about Langlo's upbringing and background, and I was made aware of what is colloquially called "the situation at the Mission," when I last sentenced Langlo. His grandmother provided a reference. She has given evidence before me on other occasions. She has done her best in difficult situations to raise her children and her grandchildren.
While not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence, some homes on what is still called the Coomaditchie Mission, have been so blighted. The offender's father and mother have both spent time in custody. The family history of alcohol abuse and violence has been fully set out both in the reports and the references. They were summarised in the submissions of Mr Fraser, Public Defender, who appears for Langlo. Given that we are late on a Friday and given the presence of family members here, I will not spell that history out, but the reports have been taken into account. It needs to be said that a background of that kind can leave a mark on a person and compromise their capacity to mature and learn from experience. Such a deprived background should be given full weight in a case such as this.
The Court must also recognise, as Ms Bird who appears for the Director, submits, that there are countervailing factors which require careful consideration. They include the harm to the victims and risk to the community occasioned by offences such as this and what steps should be taken to reduce or eliminate that risk.
Courts in Australia, in accordance with principles in Neal v The Queen (1982) 149 CLR 305 at 326, are bound to take into account all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. If at all possible, culturally appropriate and tailored sentencing should be engaged in. Courts should were possible aim to target the underlying causes of an individual's criminality and meet those causes and deal with the crime committed in a proportionate manner. A sentence should be, if at all possible, built around the offender's individual circumstances and outcomes which are realistic and achievable. An attempt should be made to provide the offender with some ownership, direct or indirect, of his sentencing outcome: Lessons Lost in Sentencing: Wielding Individualised Justice to Indigenous Justice, Anthony, Bartels, and Hopkins, Melbourne University Law Review 2015, 39-47.
Langlo was also very young and very immature when he committed these offences. What growing up he has done since has occurred in a gaol.
When sentencing youthful offenders, Courts often do not put as great a weight on general deterrence and retribution as they would when sentencing a mature adult. Allowance can be made for an offender's youth and immaturity, not just their biological age: KT v R [2008] NSWCCA 51. At the same time, the Courts of Criminal Appeal has made it clear that when young and immature people commit offences such as armed home invasions, they cannot, by reason of their age, avoid being treated in a similar manner to adults who commit such offences. However the law recognises younger people have more capacity to reform and learn and their cognitive and emotional or psychological immaturity can contribute to their breaching of the law. It is also recognised that emotional immaturity and impulse control may not develop until their mid-20s: Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159; Howard v R [2019] NSWCCA 109.
The matters I have referred to have resonance here because of what Ms Van De Velde sets out in her thorough report. Particularly what was occurring at the time he committed this offence. At the time he was suffering from a stimulant and opioid use disorder. He had, because of his background and substance use, little capacity to think consequentially. In other words, he did not consider the consequences of his actions on himself let alone others. He was spending more time conforming with what he thought his friends would want him to do, and no time thinking about the impact of his crimes on his mother, his grandmother, his siblings, or his child.
Ms Van de Velde takes the view that Langlo would benefit primarily from concerted efforts to assist him to abstain from the use and abuse of illicit substances; something he failed to do while he was first in custody. He would benefit from drug and alcohol and relapse prevention treatment. He would benefit from cognitive behavioural therapy and other therapeutic interventions. He will, on release, require considerable supervision and assistance if he is to get off the trajectory he is currently on - that is, of spending the rest of his life in custody.
The references all speak highly of the young man he was before he started taking illicit drugs, committing offences and losing control of his life. Langlo used to have skills as a sportsman. He was described by Nicole Archibald as a "fine young man". Well, since he started appearing before me I did not see much of the fine young man. I saw the developing criminal.
There are others, however, who have known him longer than I have who speak of him highly. They point out the difficulties he has had with education and learning, and say that there is something in Langlo that if he is given guidance means he can do some good. His father, after using drugs and committing violent crimes and going in and out of gaol, has finally matured. He appears to be making something of his life. The role model his father originally offered was one of crime, gaol, drugs, violence. That has changed. His father writes to me and says that he can, with the assistance of elders and those involved in the South Coast Dirinjanj community, provide a learning environment for Langlo that he did not get at Coomaditchie
Returning to what I said about taking control of his life in a positive way, I will, as Mr Fraser urged upon me, make a finding of special circumstances to enable a significant proportion of the sentence that must be served to be served in the community.
First, however Langlo will have to earn parole. His present behaviour in gaol means that he may well do so. Second, he will have to take positive steps to engage in the sort of treatment that Ms Van De Velde recommends. Third, he should, on release, take up the opportunities offered by his father of accommodation and the opportunities offered by the elders on the South Coast. I know this move away from Coomaditchie will be hard, given his mother's illness and his grandmother's needs for him to be with her. But he must think first of himself because if he cannot get himself together he will not be of any use to anyone in Wollongong.
What that means, Mr Langlo, in simple terms is; if you, on your release after you have served the minimum time necessary, go to your father and engage with the elders on the South Coast, who I know well because I am still the judge down there; and if you take that opportunity to turn your life around, then you may avoid what happened to your father and so many of your friends. If you return to Wollongong, return to the use of drugs, start hanging out with the people you used to hang out with, then not only will you hurt people you may hurt someone worse than you did to your victims here. If you follow that path you may spend the rest of your life in custody.
I seem to recall that I have given you that lecture before. You did not listen then, I suspect because you were coming down from whatever drugs you were using. All the material before me indicates that you are now a bit more mature, you are not affected by drugs and your brain has slowed down. I will be around for a while. I am not going to give you that lecture again.
The maximum penalty that you face on this occasion is 25 years' imprisonment with a standard minimum of nine years. You took a long time to come to your senses and accept responsibility for your actions. Your victims are here in Court. They have heard me speak favourably of you and heard others speak favourably of you. They have no reason to trust you or trust the orders I am making. The only way they can have trust in you is never to see you again, and if you to take the opportunities given to you and not appear before Courts again. I am guarded in my assessment because you have appeared before me and I have given you a break before.
That does not mean that you will be getting out today. Far from it. You will be released next year. The minimum term has to be properly related to the seriousness of the crimes you committed. It will be back dated to take into account time spent in custody and to take into account what is called the principle of totality. There will be a long period of parole because all the evidence shows if people take parole supervision seriously they are less likely to commit further offences. If there is a program in place for you parole may help you.
Another reason I have found special circumstances is this. There is a limit to how long someone can be removed from the community. And, while the community is protected from you while you are in custody you will have to be returned to the community. The longer you spend in custody and the longer you spend mixing with criminal associates, the less prepared you will be for return to the community and the more likely it will be that you commit further offences.
Having balanced and attempted to synthesise all those factors, including time in custody, I propose that this sentence commence a year after you went into custody, which will be 23 November 2018. For transparency's sake, in relation to the 33 offence, had it not being for your plea of guilty, a sentence of four and a half years would have been imposed.
[3]
Orders
For the offence of discharge firearm intending cause grievous bodily harm, I indicate a sentence of 4 years.
For the offence of Stalk/intimidate, had it not been for your plea of guilty, a sentence of three years would have been imposed, I indicate a sentence of 2 years 9 months.
The total aggregate sentence will be one of four years and four months. It will commence on 23 November 2018. There will be a non-parole period of two years and four months, meaning you will be eligible, and I emphasise, eligible that is subject to the State Parole Authority's decision, for release to parole on 23 March 2021.
There will be a parole period of two years from that date and expiring on 22/03/2023. If you breach your parole, you will go back to gaol for the balance of your sentence.
[4]
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Decision last updated: 17 March 2021