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10
Court of Criminal Appeal 19 October 2005

R v Mobbs

[2005] NSWCCA 371

Public order & justice offences
SENTENCING SENTENCE MANIFESTLY EXCESSIVE.

Citation: [2005] NSWCCA 371
Court: NSW Court of Criminal Appeal
Date: 19 October 2005
Judges: Simpson J, Adams J, Johnson J

Background

Following a catastrophic head-on collision near Oberon in August 2003, the applicant falsely told police and ambulance officers at the scene that he, not the actual driver, had been behind the wheel. The crash killed one person and caused serious injuries to three others, including two children. The applicant was a passenger in the at-fault vehicle and made the false claim spontaneously, apparently out of misguided loyalty to the driver, who was his cousin's de facto partner and worked as a truck driver.

Within 24 hours, the applicant admitted to police that he had not been driving. He later pleaded guilty to one count of hindering the investigation of a serious indictable offence under s 315(1)(a) of the Crimes Act 1900, which carries a maximum sentence of seven years imprisonment.

In the District Court, the applicant was sentenced to 15 months imprisonment with a non-parole period of 12 months. He sought leave to appeal to the Court of Criminal Appeal, arguing that the sentencing judge made impermissible findings of aggravating circumstances and that the sentence was manifestly excessive.

  • Whether the sentencing judge impermissibly found aggravating circumstances by treating the applicant as though he had committed a more serious offence than that charged (specifically, that he had assisted the driver to avoid prosecution for a more serious driving offence)
  • Whether the sentence of 15 months with a 12-month non-parole period was manifestly excessive given the objective and subjective circumstances

Decision

The Court found that the sentencing judge had erred by effectively treating the applicant as if he had committed a graver offence than the one to which he pleaded guilty. There was no satisfactory evidence that the driver had been drinking before the accident, yet the sentencing approach appeared to assume that the applicant's false claim had shielded the driver from a more serious prosecution. Under the principle in The Queen v De Simoni (1981) 147 CLR 383, a court cannot take into account circumstances of aggravation that would have warranted a conviction for a more serious offence.

The Court also characterised the offence as an unusual example within the s 315(1)(a) category. The applicant acted on impulse for no personal gain, and his false claim actually exposed him to risk of prosecution. The hindrance was short-lived, lasting less than 24 hours, and the applicant voluntarily corrected his account the following day.

Taken together, the Court was satisfied the original sentence was manifestly excessive. It quashed the District Court sentence and re-sentenced the applicant to a fixed term of four months imprisonment, dating from the same commencement date of 22 April 2005.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed and replaced with a fixed term of imprisonment of four months, to date from 22 April 2005

Key Takeaways

  • A sentencing court cannot treat uncharged, more serious conduct as an aggravating factor when doing so would effectively punish an offender for an offence of which they were not convicted, consistent with The Queen v De Simoni.
  • The Court of Criminal Appeal confirmed that the absence of satisfactory evidence that the driver had been drinking meant the sentencing judge could not treat the applicant's conduct as having shielded the driver from a more serious charge.
  • Under s 315(1)(a) of the Crimes Act 1900, the objective seriousness of hindering a police investigation is affected by factors such as the duration of the hindrance, whether the offender acted spontaneously or with planning, and whether any personal gain was obtained.
  • In dismissing the aggravated approach to sentencing, the Court noted that if the applicant had told the truth at the scene, he would not have been liable for any offence at all, which was relevant to assessing the overall criminality involved.
  • A fixed term of four months imprisonment was substituted where the original 15-month sentence (with a 12-month non-parole period) was found to be manifestly excessive for a spur-of-the-moment act of false reporting retracted within 24 hours.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 314, 315, 319
- Children (Criminal Proceedings) Act 1987 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- The Queen v De Simoni (1981) 147 CLR 383
- R v Selvage [1982] 1 QB 372
- The Queen v Rogerson (1992) 174 CLR 268
- R v Hamze [2005] NSWSC 136
- R v El-Zeyat [2002] NSWCCA 138
- Regina v Thomson and Houlton (2000) 48 NSWLR 383
- R v Potter (1994) 72 A Crim R 108
- R v Sharma (2002) 54 NSWLR 300
- R v Skinner [2000] NSWSC 303
- R v Derbas [2003] NSWCCA 44
- R v Ahmad [2005] NSWSC 848