R v Mbele - [2013] NSWSC 1394

Supreme Court

New South Wales

Medium Neutral Citation: R v Mbele [2013] NSWSC 1394
Hearing dates: 11, 12, 13, 14, 18, 19, 20, 21, 24, 25, 26, 27, 28 June and 30 August 2013
Decision date: 20 September 2013
Jurisdiction: Common Law - Criminal
Before: Latham J
Decision:
Convicted of the murder of Brandon Siaa. Sentenced to a non-parole period 18 years, to date from 25 May 2011, expiring 24 May 2029, with a balance of term of 8 years, expiring 24 May 2037. Eligible for release on 25 May 2029

Catchwords: SENTENCE - murder - knife stabbing on railway station - victim under 18 years of age - intent to inflict grievous bodily harm - premeditated attack - offender on conditional liberty at time of offence - very high level of objective gravity - standard non-parole period would be appropriate but for offender's youth - no show of remorse - reasonable prospects of rehabilitation - finding of special circumstances to moderate degree for offender's youth
Category: Sentence
Parties: Regina - (Crown)
Mosa Julius Mbele - (Offender)
Representation: Counsel
N Williams - (Crown)
M Dennis - (Offender)
Solicitors
Solicitor for Public Prosecutions - (Crown)
Legal Aid NSW - (Offender)

File Number(s): 2011/172471

SENTENCE

The offender, Mosa Julius Mbele, was found guilty by a jury on 28 June 2013 of the murder of Brandon Siaa. The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 25 years, arising out of the fact that the victim was under the age of 18 years, namely 16 years and 9 months, at the time of the offence.

The circumstances immediately surrounding the commission of the offence on a railway platform at Bankstown at about 6:50pm on Wednesday 25 May 2011 were largely not in dispute at trial, given that they were comprehensively captured by CCTV on the station concourse and the platform itself. What was said between the offender and the victim was disputed to some extent, as was the origin of the confrontation between them about two hours earlier. The hostility between the offender and the victim appeared to reside in their respective membership of opposing groups in the Bankstown area. Whether these respective groups might be described as "gangs" is of little moment.

The summary of these events in these remarks represents the findings of fact that I have made from the evidence at trial. To the extent that they are adverse to the offender, I am satisfied beyond reasonable doubt of those findings.

At about lunchtime on 25 May 2011 the offender was in a park in Padstow with a number of his associates. A number of them were drinking wine from a 5 litre cask. The offender was in possession of a large knife. The offender in his evidence claimed that he drank just over a litre of wine and that he did not finish the cask until shortly before the commission of the offence at Bankstown railway station. In any event, the jury clearly…

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 R v Mbele

Details

AGLC: R v Mbele [2013] NSWSC 1394
Case: [2013] NSWSC 1394
Decision Date: 20 September 2013

CaseChat Overview and Summary

The matter before the court involved the sentencing of an offender, Mbele, who had been found guilty of murder for stabbing a victim on a railway station. The victim, under 18 years of age, succumbed to the injuries inflicted by Mbele, who had acted with intent to cause grievous bodily harm in a premeditated attack. At the time of the offence, Mbele was on conditional liberty, which significantly contributed to the gravity of the crime. The court was tasked with determining an appropriate sentence, balancing the high level of objective gravity of the offence with the mitigating factor of Mbele's youth, as well as his lack of remorse and reasonable prospects of rehabilitation.

The primary legal issues the court had to address included the appropriate standard non-parole period for the offence, the impact of the offender's youth on that period, and whether special circumstances existed that could moderate the sentence. The court considered the high level of objective gravity of the offence, the premeditation involved, and the fact that the victim was a minor. Furthermore, the court examined the absence of remorse shown by Mbele and the potential for his rehabilitation. These factors played a critical role in determining whether the standard non-parole period should be applied and whether special circumstances existed that warranted a reduction in the sentence.

The court concluded that while the standard non-parole period for such an offence would typically be appropriate, the youth of the offender warranted consideration. It found that special circumstances existed to a moderate degree due to Mbele's age at the time of the offence. Consequently, the court determined that the standard non-parole period should be reduced to reflect these special circumstances. The court found that, despite the high level of objective gravity and the lack of remorse, there were reasonable prospects for Mbele's rehabilitation, which supported a moderated sentence. The court then proceeded to impose a sentence that took into account the reduced non-parole period and the special circumstances identified.

The final orders of the court included the imposition of a sentence with a non-parole period reduced by a moderate degree, recognising the special circumstances of Mbele's youth. The sentence also included specific conditions aimed at ensuring Mbele's rehabilitation and the protection of the community. The court's decision balanced the need for punishment and deterrence with the potential for rehabilitation, reflecting the nuanced considerations required in sentencing for such serious offences.

Orders