AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
19
Court of Criminal Appeal 9 August 2021

Mbele v R

[2021] NSWCCA 182

Homicide
HELD, NO ERROR HELD, ERROR ESTABLISHED APPLICANT RE SENTENCED

Citation: Mbele v R [2021] NSWCCA 182
Court: NSW Court of Criminal Appeal
Date: 9 August 2021
Judges: McCallum JA; N Adams J; Cavanagh J

Background

The applicant was convicted of murder following a jury trial in 2013. The killing occurred at Bankstown train station on 25 May 2011, when the applicant, then aged 22, stabbed a 16-year-old victim during a confrontation that followed an earlier altercation between the two. The victim, a member of an opposing group in the Bankstown area, died on the platform within minutes of being stabbed.

The sentencing judge found that the applicant had armed himself with a large knife, disguised himself by changing clothing, and deliberately sought out the deceased at the station with the intention of confronting him. She concluded that the applicant had intended to inflict grievous bodily harm rather than to kill, but treated the offence as premeditated. The applicant was sentenced to 26 years imprisonment with a non-parole period of 18 years.

Some eight years later, the applicant sought leave to appeal out of time against that sentence, raising three grounds. The extension of time was opposed on the basis that the appeal lacked merit.

  • Whether the sentencing judge fell into "Muldrock error" by treating the standard non-parole period (SNPP) of 25 years as a determinative benchmark (a two-stage approach rejected by the High Court in Muldrock v The Queen (2011) 244 CLR 120), rather than as one of many relevant factors in an instinctive synthesis
  • Whether the sentencing judge erred by finding that the applicant would not experience particular hardship in custody arising from post-traumatic stress disorder (PTSD), despite evidence that he had been kidnapped at gunpoint approximately three weeks before the offence and had already consulted a psychologist for PTSD symptoms
  • Whether the sentence imposed was manifestly excessive

Decision

Muldrock error: The Court found no error on this ground. Although the sentencing judge described the objective gravity as "very high" and observed that, but for the applicant's youth, she would have considered the SNPP appropriate, a fair reading of the sentencing remarks as a whole showed she did not place determinative significance on the SNPP. The sentence ultimately imposed, at 18 years' non-parole period, was significantly below the SNPP of 25 years, which itself indicated the benchmark had not driven the outcome.

PTSD and hardship in custody: The Court upheld this ground. The sentencing judge had found that the applicant would not experience any particular hardship in custody due to PTSD, but this conclusion was not supported by the evidence. The applicant had been kidnapped at gunpoint approximately three weeks before the offence and had consulted a psychologist for PTSD symptoms before the killing occurred. Those facts required the sentencing judge to take the PTSD into account both as a mitigating circumstance at the time of the offence and as a source of particular hardship during incarceration.

Re-sentencing: Having identified error, the Court re-sentenced the applicant pursuant to the approach confirmed in Kentwell v The Queen (2014) 252 CLR 601, exercising its discretion afresh without reference to the original sentence. By the time of the appeal, the applicant was 32 years old. The Court noted that he had developed genuine insight into his offending, had continued to suffer from PTSD throughout his incarceration (exacerbated by COVID-19 restrictions), and now presented more favourable prospects of rehabilitation. The Court found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and imposed a reduced sentence.

The manifestly excessive ground was not separately addressed as a live issue, given the decision to re-sentence.

Orders Made

  • Time for filing the notice of application for leave to appeal extended to 12 January 2021
  • Appeal allowed
  • Sentence imposed by Latham J on 20 September 2013 quashed
  • In lieu thereof: non-parole period of 16 years imprisonment, commencing 25 May 2011 and expiring 24 May 2027, with a balance of term of 7 years expiring 24 May 2034
  • Applicant eligible for release on 25 May 2027

Key Takeaways

  • No Muldrock error arises merely because a sentencing judge references the SNPP and describes objective gravity in terms that echo it; the question is whether, reading the sentencing remarks fairly and as a whole, the SNPP was given determinative significance rather than being treated as one factor among many.
  • Where evidence establishes that an offender suffered a traumatic event shortly before an offence and had already sought psychological treatment, a finding that custody will occasion no particular hardship from resulting PTSD is likely to constitute error.
  • Under the re-sentencing approach confirmed in Kentwell, the appellate court exercises its discretion afresh, and is not constrained by the original sentence. Developments during a lengthy period of incarceration, including improved prospects of rehabilitation and ongoing mental health impacts, are properly before the re-sentencing court.
  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) permits the court to depart from the standard ratio between non-parole period and balance of term, allowing a longer supervision period upon release.
  • In granting an extension of time to appeal, the Court did not treat a delay of approximately eight years as fatal where merit was ultimately established on at least one ground.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 44(2), 54B, 54D, Pt 4, Div 1A
- Crimes Act 1900 (NSW), s 18
- Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Aboud v R [2021] NSWCCA 77
- Aubourg v R [2013] NSWCCA 154
- Griffin v R [2018] NSWCCA 259
- R v Speechley [2012] NSWCCA 130
- Ryan v R [2019] NSWCCA 200
- Tepania v R [2018] NSWCCA 247
- TO v R [2017] NSWCCA 12
- Trevor Essex v R [2013] NSWCCA 11
- W v R [2014] NSWCCA 110
- Zreika v R [2012] NSWCCA 44