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 JWEDNESDAY 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…
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- AGLC
- Mobbs v The Queen [2005] NSWCCA 438
- Case
- [2005] NSWCCA 438
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: CLELLAN CJ
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