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Court of Criminal Appeal 14 December 2005

MOBBS v R

[2005] NSWCCA 438

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER MANIFESTLY EXCESSIVE

Citation: MOBBS v R [2005] NSWCCA 438
Court: New South Wales Court of Criminal Appeal
Date: 14 December 2005
Judge(s): McClellan CJ at CL; Studdert J; James J

Background

A fatal collision on a rural road near Oberon in August 2003 set in motion a deception that led to criminal charges against three people. The driver of the vehicle, Corey Richards, caused the crash while overtaking, killing one person and seriously injuring others. Immediately after the accident, a passenger, Lucas Mobbs, told police he had been driving rather than Richards, and placed his P-plate on Richards' vehicle to support that false account.

The applicant, Kelly Mobbs (the other passenger and Richards' de facto partner), was seriously injured in the crash, suffering a fractured vertebra. While hospitalised, she signed a statement corroborating the false account that Lucas Mobbs had been driving. Richards himself also gave a false statement to police that night. Within days, Richards contacted police and admitted the truth.

Kelly Mobbs pleaded guilty to making a false statement with intent to hinder the investigation of the person responsible for a serious indictable offence, contrary to section 315 of the Crimes Act 1900. The maximum penalty for that offence is seven years' imprisonment. She was sentenced in the District Court to 15 months' imprisonment with a 12-month non-parole period, to be served by way of periodic detention. She sought leave to appeal against the severity of that sentence.

  • Whether the sentencing judge erred, due to lack of assistance from counsel, by taking into account matters that created an adverse impression of the applicant's credibility
  • Whether the sentencing judge erred by sentencing on a factual basis that gave rise to a more serious offence than the one charged (contrary to the principle in R v De Simoni)
  • Whether the sentencing judge erred by failing to make adequate reference to the applicant's guilty plea
  • Whether the sentence was manifestly excessive

Decision

The Court of Criminal Appeal found multiple errors in the sentencing below and allowed the appeal. The sentencing judge had, in the absence of adequate assistance from counsel, taken into account matters that unfairly damaged the applicant's credibility. This constituted an error that warranted appellate intervention.

The Court was also satisfied that the sentencing judge erred by treating the applicant's conduct as giving rise to a more serious offence than that charged. This engaged the principle from R v De Simoni, which prohibits sentencing an offender on the basis of facts that would constitute a more serious offence for which the offender has not been convicted.

On the question of manifest excess, the Court assessed the applicant's culpability as significantly lower than that of her co-offenders. She had not initiated the deception, was suffering from shock and serious physical injury at the time she signed the false statement, and nothing she did actually impeded the police investigation. Lucas Mobbs, who had initiated the scheme and made false statements at the scene, had already been resentenced by the Court to four months' imprisonment on a separate appeal.

The Court concluded that the applicant's offending fell at the lower end of the relevant offence. A significantly lesser sentence than that imposed on Lucas Mobbs was appropriate, and the Court resentenced her to a term that expired on the day of the appeal hearing, allowing her immediate release from any further obligation under the sentence.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed by the District Court quashed
  • In lieu thereof, the applicant sentenced to 6 months and 11 days' imprisonment commencing 28 May 2005 and expiring 8 December 2005, to be served by way of periodic detention

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge must not take into account facts that would constitute a more serious offence than the one charged, consistent with the principle in R v De Simoni.
  • Where a sentencing judge proceeds without adequate assistance from counsel and, as a result, takes into account matters that unfairly damage the offender's credibility, that constitutes a sentencing error warranting appellate correction.
  • Culpability for an offence of hindering an investigation is assessed by reference to factors including whether the offender initiated the deception, whether their conduct actually impeded police, and the circumstances in which the false statement was made.
  • Upholding the appeal, the Court gave material weight to the fact that the applicant did not initiate the false account, was injured and in shock at the time, and that the investigation was not, in practice, hindered by her specific conduct.
  • A guilty plea is a matter the sentencing court must address; failure to make adequate reference to it is a recognised sentencing error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 314, 315, 319

Cases:
- R v De Simoni (1981) 147 CLR 383
- R v Pearson [2005] NSWCCA 116
- R v Thomson and Houlton (2000) 49 NSWLR 383