Mobbs v The Queen - [2005] NSWCCA 438

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: MOBBS v R [2005] NSWCCA 438

FILE NUMBER(S):
2005/2089

HEARING DATE(S): 8 December 2005

JUDGMENT DATE: 14/12/2005

PARTIES:
Kelly Francis Mobbs (Appl)
The Crown

JUDGMENT OF: McClellan CJ at CL Studdert J James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/61/10092

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

COUNSEL:
R Sutherland SC (Appl)
J Dwyer (Crown)

SOLICITORS:
Robertson Saxton Primrose Dunn (Appl)
Solicitor for Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
appeal against sentence
false statement with intent to hinder the investigation of the person responsible for serious indictable offence
whether erred, as a result of lack of assistance from counsel, in taking into account certain matters resulting in an adverse impression of the applicant's credibility
whether erred by sentencing on basis of facts which give rise to more serious offence
whether erred in not making reference to guilty plea
whether manifestly excessive

LEGISLATION CITED:
Crimes Act 1900

DECISION:
1. Leave to appeal against sentence is granted
2. Appeal allowed
3. The sentence imposed is quashed
4. In lieu thereof the applicant is sentenced to a term of imprisonment of 6 months and 11 days commencing on 28 May 2005 and expiring on 8 December 2005, that sentence to be served by way of periodic detention.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2089
McCLELLAN CJ at CL
STUDDERT J
JAMES J
WEDNESDAY 14 DECEMBER 2005

MOBBS, Kelly Francis v R

Judgment

McCLELLAN CJ at CL: The Court heard the appeal on 8 December 2005. At the conclusion of the hearing the decision was announced and orders made. These are my reasons for joining in those orders.
The applicant pleaded guilty to one count on an indictment of making a false statement with intent to hinder the investigation of the person responsible for the serious indictable offence of driving in a manner dangerous occasioning death, contrary to s 315 of the Crimes Act 1900. The maximum penalty for that offence is seven years. The applicant was sentenced to a non-parole period of 12 months and a total term of imprisonment of fifteen months. The sentencing judge directed that the sentence be served by way of periodic detention. The sentence was ordered to commence on 28 May 2006.
The applicant seeks leave to appeal against the severity of the sentence.
The facts
The offence occurred following a tragic motor car accident. On 22 August 2003 at about 4.30 pm Corey Richards, the applicant’s de facto husband, drove in a dangerous manner while trying to overtake another vehicle (the second vehicle) and caused a collision with an oncoming vehicle. The accident occurred on Duckmaloi Road near Oberon. The oncoming vehicle was driven by Mr Simon Gray. After the collision Mr Gray’s vehicle careered some distance down a gully. Mr Gray was killed, his wife in the front passenger seat was seriously injured and each of his daughters (respectively aged thirteen and eleven) were also seriously injured.
In the vehicle driven by Richards…

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 Mobbs v The Queen

Details

AGLC: Mobbs v The Queen [2005] NSWCCA 438
Case: [2005] NSWCCA 438
Decision Date: 14 December 2005

CaseChat Overview and Summary

The applicant in this case sought leave to appeal against the severity of her sentence. The case involved a motor vehicle accident that resulted in the death of one person and serious injuries to others. The applicant, who was seated in the back of the vehicle, made a false statement to the police following the accident, which hindered the investigation. The legal issues before the court were whether the sentencing judge erred by not taking into account the applicant’s guilty plea, whether the sentence was based on facts that amounted to a more serious offence, and whether the sentence was manifestly excessive. The court found that the sentence imposed was excessive, and that the sentencing judge had erred in not making reference to the applicant’s plea of guilty. The court also found that the lack of assistance from counsel did not affect the outcome, as the sentence was excessive regardless. The applicant was granted leave to appeal against the severity of the sentence.

The court found that the sentencing judge had erred in not making reference to the applicant’s plea of guilty and its influence on the sentencing decision. The court noted that a failure to explicitly indicate that a plea has been taken into account generally indicates that it has not been given appropriate weight. However, the court found that the sentence imposed was excessive, and that the error identified in this ground of appeal did not contribute to the excessive sentence. The court also found that the sentencing judge had erred in taking into account certain matters that resulted in an adverse impression of the applicant’s credibility. However, the court found that this error did not affect the outcome, as the sentence was excessive regardless. The court found that the lack of assistance from counsel did not affect the outcome, as the sentence was excessive regardless.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks leave to appeal against the severity of the sentence.The facts The offence occurred following a tragic motor car accident. On 22 August 2003 at about 4.30 pm Corey Richards, the applicant’s de facto husband, drove in a dangerous manner while trying to overtake another vehicle (the second vehicle) and caused a collision with an oncoming vehicle. The accident occurred on Duckmaloi Road near Oberon. The oncoming vehicle was driven by Mr Simon Gray. After the collision Mr Gray’s vehicle careered some distance down a gully. Mr Gray was killed, his wife in the front passenger seat was seriously injured and each of his daughters (respectively aged thirteen and eleven) were also seriously injured. In the vehicle driven by Richards was Lucas Mobbs, a cousin of the applicant. He was in the front passenger seat and received only very minor injuries. The applicant was seated in the rear of the vehicle and suffered, amongst other injuries, a fractured vertebra which required her hospitalisation. After the collision she was freed from the vehicle but was immobilised and lay on the ground until medical attention arrived. Mr Richards was also injured, sustaining an injury to his right foot. The applicant and Richards were assisted from the car by Lucas Mobbs and lay down on the side of the road next to each other. Lucas Mobbs approached the vehicle driven by Mr Gray and realised that he had died. He pulled the hood of Mr Gray’s jacket over his head to obscure him from the view of his seriously injured wife. He also removed glass from the mouth of one of the children who was unconscious and not breathing. Apparently Lucas Mobbs had a conversation with the driver of the second vehicle and at about the same time he used a mobile phone to call the applicant’s mother. After these events Lucas Mobbs returned to the roadway and told Richards that he would tell the authorities that he, rather than Richards, had been driving Richards’ car. Richards apparently indicated agreement with this course. Lucas Mobbs also told Richards that the driver of the other vehicle had died. He then placed his P-plate on the rear of Richards’ car to support his assertion that he was the driver. Lucas Mobbs told police officers and ambulance officers at the scene and later hospital staff that he was the driver. The effect of this untruth was to hinder the investigation, in particular the requirement that the driver of the vehicle be blood tested following the appropriate procedures. Although a blood sample was taken from Richards within the appropriate time it was taken for pathology purposes at the hospital and was not tested for Richards’ blood alcohol level. When a warrant was subsequently executed on the hospital the sample of Richards’ blood had been destroyed. However, a sample was taken of Lucas Mobbs’ blood which was sent to the Division of Analytical Laboratories for analysis. Shortly after 9 pm that evening a police constable attended at the hospital and spoke with Corey Richards. Richards said that Lucas Mobbs had been driving the vehicle. Richards gave a detailed statement. At about 10.30 pm the applicant also signed a statement from her hospital bed which read:“At about 5 pm on Friday the 22/08/2003 I was sitting in the back seat behind the driver in a VT Holden Commodore travelling toward Sydney on the Hampton Road as I know it. It is a raven mica colour and belongs to Cory Richards. The driver at the time was Luke Mobbs, my cousin. Also in the car was Cory Richards who was in the front passenger seat. We went to overtake a car that we had been following for a while and on a straight stretch of road Luke pulled out onto the other side of the road and then pulled back in as there was not enough time to overtake the vehicle in front as another was coming toward us. The next thing I know there was a big bang because we hit the car that was coming toward us. I then slipped forwards and down in the seat. Luke was driving the car as Cory had worked and did not want to drive.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

I do not believe it is necessary to resolve this ground of appeal. To do so would require this Court to traverse the analysis undertaken and the conclusion reached by a differently constituted bench in the appeal of Lucas Mobbs. If it had been necessary to resolve this matter the task urged upon this Court by the Crown would have to have been undertaken. However, this appeal can be determined without resolving this ground of appeal.Ground two – the sentencing judge erred in not making reference to the applicant’s plea of guilty, its timing and its influence, if any, on his sentencing decision. The Crown acknowledges that an error has occurred and accepts that the sentencing judge did not, as he was required to do, refer to the timing of the guilty plea or its utilitarian or evidentiary value in sentencing as was required by the decision in R v Thomson and Houlton (2000) 49 NSWLR 383 at para 160. A failure to explicitly indicate that a plea has been taken into account generally indicates that it has not been given appropriate weight. The guideline judgment in Thomson and Houlton encourages quantification to be given to the discount which will usually be expressed in percentage terms. Notwithstanding these omissions the sentencing judge had in mind that both the applicant and her co-offenders had pleaded guilty. He remarked “They have each pleaded guilty, they get the full discount for that.” The Crown’s ultimate response is that even assuming that his Honour has failed to provide any discount for the plea of guilty, it could not be said that a starting point of 20 months for a public justice offence, in the circumstances of this case, is too high: see R v Pearson [2005] NSWCCA 116. For the reasons I express in relation to Grounds 3 and 4, I am of the opinion that the sentence imposed on the applicant was excessive. In the circumstances it is unnecessary to determine whether the error identified in this second ground of appeal has contributed to the sentence which I am otherwise satisfied was excessive.Ground three: His Honour erred as a result of lack of assistance from counsel, in taking into account certain matters resulting in an adverse impression of the applicant’s credibility This ground of appeal turns upon an understanding of the evidence which the applicant gave at the sentencing hearing. During that evidence she was questioned about her recollection of the events following the accident. She indicated that Lucas Mobbs had assisted both her and Richards to get out of the vehicle and to put them down behind it. She indicated that she was not able to move and that after Lucas Mobbs had gone to check on the driver of the other car he came back and “he just said like ‘I was driving’ like it was ‘I was driving’ that’s pretty much all it was.” She stated that “it was the last thing I remember before going in the ambulance and the first thing I remember in hospital … .” At the hospital she made a statement to the police, to which I have earlier referred, which contained the relevant falsehood. She gave evidence that Lucas had subsequently told her that he and Richards had changed their minds about the deception and had rung the police and told them the statement was incorrect and that they were willing to make new statements.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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