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Mbele v R

Mbele v R

Case [2021] NSWCCA 182 9 August 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mbele v R [2021] NSWCCA 182
Hearing dates: 9 June 2021
Date of orders: 9 August 2021
Decision date: 09 August 2021
Before: McCallum JA at [1];
N Adams J at [2];
Cavanagh J at [108].
Decision:
(1) Pursuant to r 3B(1)(c) of the Criminal Appeal Rules, extend the time within which the notice of application for leave to appeal may be filed to 12 January 2021.
(2) Allow the appeal.
(3) Quash the sentence imposed by Latham J on 20 September 2013.
(4) In lieu thereof impose a non-parole period of 16 years imprisonment to date from 25 May 2011 and expire on 24 May 2027, with a balance of term of 7 years expiring 24 May 2034. The applicant is eligible for release on 25 May 2027.

Catchwords:
CRIME — Appeals — Appeal against sentence – whether sentencing judge fell into Muldrock error – where sentencing judge found “very high” objective gravity and observed that but for the applicant’s young age she would have considered the SNPP appropriate – where sentence imposed was significantly less than SNPP – where sentencing remarks read fairly and as a whole demonstrate that sentencing judge did not place determinative significance on SNPP – held, no error – whether sentencing judge erred in finding that applicant would not experience hardship in custody due to PTSD – where applicant was kidnapped at gunpoint three weeks prior to the offence – where applicant consulted psychologist for PTSD symptoms prior to offence – held, error established – applicant re-sentenced

Legislation Cited:
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 Cited:
Aboudv R [2021] NSWCCA 77
Aubourg v R [2013] NSWCCA 154
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Griffin v R [2018] NSWCCA 259
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Speechley [2012] NSWCCA 130
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
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

Category: Principal judgment
Parties: Mosa Julius Mbele (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Marr (Applicant)
E Balodis (Respondent)
Solicitors:
Australian Criminal Law Group (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2011/172471
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2013] NSWSC 1394

Date of Decision:

20 September 2013

Before:

Latham J

File Number(s):

2011/172471

Judgment

MCCALLUM JA: I agree with N Adams J.
N ADAMS J: The applicant,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mbele v R

Details

AGLC: Mbele v R [2021] NSWCCA 182
Case: [2021] NSWCCA 182
Decision Date: 09 August 2021

CaseChat Overview and Summary

In the case of Mbele v R, the appellant, Mbele, appealed against the sentence imposed by the sentencing judge following his conviction for several offences. The appeal centred on two primary issues: whether the sentencing judge had erred in the weight given to the sentencing principles, and whether the sentencing judge had erred in finding that the appellant would not experience hardship in custody due to his post-traumatic stress disorder (PTSD). The appeal was heard in the Court of Appeal of the Supreme Court of Queensland.

The first legal issue was whether the sentencing judge had erred by potentially falling into the Muldrock error. This refers to the error of giving determinative weight to the standard non-parole period (SNPP) without fully considering the individual circumstances of the case. The court had to determine if the sentencing judge had appropriately balanced the objective gravity of the offence with the appellant's personal circumstances, despite finding the objective gravity to be "very high" and considering the SNPP inappropriate due to the appellant's young age. The second issue was whether the sentencing judge was correct in finding that the appellant would not experience hardship in custody due to his PTSD, given his history of trauma, including being kidnapped at gunpoint shortly before the offence, and his consultation with a psychologist for PTSD symptoms.

The court found that the sentencing judge had not erred in the weight given to the SNPP. The remarks of the sentencing judge, read fairly and as a whole, demonstrated that while the objective gravity was very high, the judge did not place determinative significance on the SNPP. Instead, she considered the appellant's personal circumstances, including his young age, and imposed a sentence significantly less than the SNPP. Regarding the second issue, the court found that the sentencing judge had erred in finding that the appellant would not experience hardship in custody due to his PTSD. The history of trauma and the appellant's consultation with a psychologist prior to the offence indicated that he would indeed experience hardship in custody due to his PTSD.

The court quashed the sentence and ordered a re-sentencing of the appellant, taking into account the correct findings regarding the appellant's PTSD.

Orders