R v Mobbs
[2005] NSWCCA 371
•19 October 2005
CITATION: R v Mobbs [2005] NSWCCA 371
HEARING DATE(S): 19 October 2005
JUDGMENT DATE:
19 October 2005JUDGMENT OF: Simpson J at 1, 60; Adams J at 61; Johnson J at 2
DECISION: 1. Leave to appeal granted; 2. Appeal allowed; 3. Sentence imposed in the District Court quashed and, in lieu thereof, Applicant sentenced to a fixed term of imprisonment for four months to date from 22 April 2005.
CATCHWORDS: SENTENCING - hindering investigation of serious indictable offence - impermissible finding of aggravating circumstances - unusual example of offence under s.315(1)(a) Crimes Act 1900 - sentence manifestly excessive.
LEGISLATION CITED: Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912CASES CITED: The Queen v De Simoni (1981) 147 CLR 383
R v Selvage (1982) 1 QB 372
The Queen v Rogerson (1992) 174 CLR 268
R v Hamze [2005] NSWSC 136
R v El-Zeyat [2002] NSWCCA 138
Regina v Thomson and Houlton (2000) 48 NSWLR 383
R v Potter (1994) 72 A Crim R 108
R v Sharma (2002) 54 NSWLR 300
R v Skinner [2000] NSWSC 303
R v Derbas [2003] NSWCCA 44
R v Ahmad [2005] NSWSC 848PARTIES: Regina (Respondent)
Lucas Rodney Mobbs (Applicant)FILE NUMBER(S): CCA 2005/1719
COUNSEL: Ms A Francis (Applicant)
Mr W Dawe QC (Respondent)SOLICITORS: Mr S O'Connor - Legal Aid Commission (Applicant)
Mr S Kavanagh - Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 04/61/0092
LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ
2005/1719
19 October 2005SIMPSON J
ADAMS J
JOHNSON J
1 SIMPSON J: I will ask Johnson J to deliver the first judgment.
2 JOHNSON J: This is an application for leave to appeal by Lucas Rodney Mobbs against sentence imposed on him by his Honour Judge Shadbolt in the Sydney District Court on 17 May 2005 upon one count of hindering the investigation of a serious indictable offence under s.315(1)(a) Crimes Act 1900. The maximum sentence for that offence is imprisonment for seven years.
3 The Applicant was sentenced to imprisonment for 15 months with a non-parole period of 12 months, with both periods to date from 22 April 2005, being the date upon which he went into custody.
Facts of Offence
4 The facts of the matter are essentially not controversial. At about 4.30 pm on 22 August 2003, the Applicant was a passenger in a vehicle being driven by Corey Edward Richards on Duckmaloi Road, Oberon. The Applicant's cousin, Kelly Frances Mobbs, who was the de facto partner of Richards, was also a passenger in the vehicle.
5 The vehicle driven by Richards gained upon a car driven by Robert Freebody. At a straight in the road, Richards’ vehicle attempted to overtake Mr Freebody’s vehicle and, in so doing, moved to the wrong side of the road, straight into the path of a vehicle driven by Mr Simon Gray, in which were passengers, Mr Gray's wife Katherine, and their two daughters, Kayla aged 13, and Rhiannon aged 12.
6 A collision occurred in which Mr Gray was killed instantly and Mrs Gray was seriously injured. Kayla also received serious injuries. Rhiannon received even more serious injuries resulting in brain damage. It was apparent immediately that the collision had tragic and catastrophic consequences for the Gray family.
7 The Applicant, Richards, and Kelly Mobbs escaped serious injury although each received some injuries and were, in due course, taken to hospital for examination.
8 Immediately after the collision, Mr Freebody was directed by the Applicant to go to a farmhouse and call for help. It took some time for police and an ambulance to arrive. When they did, Kelly Mobbs, the Applicant and Richards gave false information to police and ambulance officers in which it was said that the Applicant had been the driver of Richards’ vehicle. There is no evidence that any person suggested that the Applicant should claim falsely to have been the driver.
9 The Applicant maintained this pretence in conversations with no fewer than seven people at the scene and at the hospital.
10 There was evidence before the learned sentencing judge that a Mr Haslop observed the Applicant at the scene of the accident walking around, seemingly in a state of shock. There was evidence from an ambulance officer, who attended the scene of the collision, that the Applicant needed assistance including bandaging of the right hand and other treatment for abrasions.
11 A blood sample was taken at the hospital in the ordinary course, from the Applicant, as he had admitted being the driver of a motor vehicle engaged in a serious collision. Upon later analysis, the sample provided a negative result. A blood sample was also taken from Richards, although it appears that his blood sample was never analysed.
12 The day after the accident, 23 August 2003, the Applicant informed police that he had not, in fact, been the driver. Richards confirmed to police that he was the driver. On 27 August 2003, police undertook an electronic interview with the Applicant. During the interview, the Applicant said that he "figured that I was in a better position" than Richards and that he “didn't want them to hassle them [Kelly Mobbs and Richards] anymore” so he “just said [I] was driving".
13 In a pre-sentence report, which was tendered in the sentencing proceedings, the Applicant explained that he had initially stated that he was the driver of the vehicle out of a sense of loyalty to the driver whom, he was aware, might lose his licence and livelihood as a truck driver. He said that he was not initially aware of the consequences of his actions. Shortly after being hospitalised, the reality of the situation became obvious to the Applicant and he contacted the police to advise them of the need to change his statement.
14 Insofar as it bears upon an issue in the appeal, it is noteworthy that Richards gave evidence in the sentencing proceedings before his Honour Judge Shadbolt. He indicated that he had finished work at about 4 o'clock on 22 August 2003, and that he had not been drinking alcohol nor had he taken any other substance during that day (transcript, 22 April 2005, pages 8 - 9). Under cross-examination, Richards acknowledged that he told the police that he had something to drink, but that was after the collision and not before (transcript, 22 April 2005, pages 13-14). There was no evidence, certainly no satisfactory evidence, that Richards had been drinking alcohol before the accident.
Sentences Imposed on Kelly Mobbs and Richards
15 Kelly Mobbs was sentenced to 15 months imprisonment with a non-parole period of 12 months to be served by way of periodic detention, following a plea of guilty to an offence under s.315 Crimes Act 1900. Richards was sentenced to a total period of imprisonment for five years with a non-parole period of four years for a range of offences, including culpable driving offences and an offence under s.314 Crimes Act 1900.
The Applicant’s Subjective Circumstances
16 The Applicant was 21 years of age at the time of the offence. According to the pre-sentence report, he was the eldest of five children raised by their natural parents. When the Applicant was 14 years of age, his parents separated. According to the probation officer, the Applicant bore substantial responsibility for raising his siblings due to the lack of other assistance available to his father. It was said in the pre-sentence report that the Applicant’s various problems stemmed from poor parenting.
17 The Applicant had generally been employed in unskilled short-term positions as a labourer or in rural industry. At the time of sentencing he was employed as a saw operator at a local timber mill.
18 The Applicant has a criminal record including:
(a) matters in the Children's Court in July 2001 for assault, firearm offences, assault occasioning actual bodily harm and larceny, for which he received a bond under s.33 Children (Criminal Proceedings) Act 1987 ;
(b) a matter in the Bathurst Local Court in February 2002 of remaining in a building with intent to commit an indictable offence, for which he received a full-time sentence of imprisonment which, on appeal to the District Court, in June 2002 was converted into a sentence of seven months to be served by way of periodic detention;
(c) in September 2002, an offence of passing a valueless cheque for which he was sentenced to three months imprisonment;
(e) an offence of driving whilst suspended (committed at the end of 2004) in relation to which, in January 2005, he was fined $300.00 and disqualified for 12 months.(d) in February 2003, an offence of obtaining money by deception for which he was sentenced to three months imprisonment;
19 The Applicant failed to comply with his periodic detention in 2002 and the order was revoked. As a result, he was certified as being unsuitable for periodic detention when he appeared for sentence before his Honour Judge Shadbolt.
Ground 1 – Impermissible Finding of Aggravated Circumstances
20 The first ground of appeal asserts that the learned sentencing judge erred by taking into account on sentence facts which were not open on the evidence and which constituted the more serious offence of acting with intent to pervert the course of justice under s.319 Crimes Act 1900.
21 In the course of his remarks on sentence, the learned sentencing judge said:
- "If the intention of Mobbs was to shield Richards from investigation, either in regard to his driving record, or his state of sobriety at that time, they were successful.
- The police conducted further interviews, recorded in video, in which the two Mobbs resile from their falsehoods and Richards was charged under s 52A(1) which carries ten years rather than the aggravated offence which carries fourteen."
22 Ms Francis, counsel for the Applicant, submits that two errors are revealed in his Honour’s statement, one of which involves an infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383.
23 Reference should be made to s.52A Crimes Act 1900. His Honour referred to the aggravated offence under that section which carries 14 years imprisonment. That is a reference to “circumstances of aggravation” under s.52A(7) which, in this case, relates to circumstances where:
(b) the accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination): s.52A(7)(d).
(a) the driver had the prescribed concentration of alcohol present in his blood at the relevant time: s.52A(7)(a); or
24 If the learned sentencing judge had s.52A(7)(a) or (d) in mind, as appears to be the case, then his Honour considered that Richards was liable to prosecution for the aggravated s.52A(7) offence but for the intervention of the Applicant and his cousin.
25 I return to the two errors which are said to arise under this ground. The first argument is that there was no evidence which permitted a finding that Richards had consumed alcohol or a drug prior to the collision. The evidence before his Honour did not support such a finding. Indeed, there was direct evidence from Richards that he had not been drinking. For reasons which could not be explained at the hearing in this Court, the blood sample taken from Richards was not analysed, although the police learned on 23 August 2003 that Richards had been the driver.
26 Secondly, it is submitted that even if there was evidence that Richards would have been liable for prosecution for the aggravated offence under s.52A, but for the hindrance of the Applicant, this was not a factor which the sentencing judge could take into account in passing sentence for an offence under s.315(1)(a) Crimes Act 1900.
27 That offence involves a person doing anything, intending in any way to hinder the investigation of a serious indictable offence committed by another person. The offence is to be contrasted with that under section 319 Crimes Act 1900 of perverting the course of justice. That offence involves a person doing any act or making any admission intending in any way to pervert the course of justice. That offence carries a maximum penalty of 14 years imprisonment. The meaning of “pervert the course of justice” appears in s.312 Crimes Act 1900 which states:
- “A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.”
28 Ms Francis referred to R v Selvage (1982) 1 QB 372, where it was held that, for the purposes of the common law offence of attempting to pervert the course of justice, the relevant intention required that the accused must either know that judicial proceedings are on foot, or that they are imminent or might occur. The Applicant submits that the finding made by his Honour was not open on the facts and was not, in any event, permissible on the De Simoni principle.
29 The Crown submits that the consequence of the hindrance by this Applicant was that an investigation was actually interfered with for 24 hours and that his Honour did not err in the manner alleged by the Applicant.
30 The offence under s.315(1)(a) lies within a statutory scheme in Part 7 of the Crimes Act 1900 which abolished the common law offences of perverting the course of justice or attempting or conspiring to do so (s.341). Accordingly, care must be taken in considering authorities concerning the common law offences such as Selvage or The Queen v Rogerson (1992) 174 CLR 268 where the scope of those offences was considered in the context of interference with a police investigation.
31 The offence under s.319 is regarded by the legislature as being more serious than an offence under s.315. As Howie J observed in R v Hamze [2005] NSWSC 136 at paragraph 24, insofar as the maximum penalty for a s.315 offence reflects Parliament’s assessment of the conduct giving rise to the offence, a maximum penalty of seven years is “a relatively modest one”. In passing sentence for a s.315 offence, it is necessary to keep in mind the different elements and penalties referable to offences under ss.315 and 319. A sentencing judge must not attribute to an offender conduct which would constitute a more serious offence that that for which he is to be sentenced: De Simoni; R v El-Zeyat [2002] NSWCCA 138 at paragraph 46.
32 An offence under s.315(1)(a) involves action by the offender with the intention to hinder the investigation of a serious indictable offence committed by another person. The relevant intention is not that required for the more serious offence under s.319 being an intent to obstruct, prevent, pervert or defeat the course of justice or the administration of the law. A finding that, but for the actions of a s.315 offender, another person would have been prosecuted for a more serious offence appears to me to move beyond the elements of a s.315 offence to a s.319 offence so as to infringe the De Simoni principle.
33 I have concluded that it was not open to his Honour on the evidence to find that, but for the intervention of the Applicant, Richards would have been charged with an aggravated offence within s.52A(7) which carried a maximum penalty of imprisonment for 14 years. That is sufficient to result in the first ground being upheld. However, even if such evidence was present, the finding would not be available by application of the De Simoni principle.
34 Accordingly, I am satisfied that the error alleged in Ground 1 has been established.
Ground 2 – Insufficient Regard to Applicant’s Subjective Circumstances
35 Ground 2 asserts that the sentencing judge erred by having insufficient regard to the Applicant’s subjective case. His Honour Judge Shadbolt made relatively brief reference to the Applicant’s subjective circumstances. Reference was made to his employment, his relationship with a lady (who was then pregnant) and the fact that his de facto wife's mother had given evidence favourable to the Applicant. His Honour referred to the Applicant's criminal record, which forms part of the circumstances relevant to the sentencing discretion.
36 The Applicant submits that there was material in the pre-sentence report concerning his upbringing and family circumstances, some of which I have referred to in these reasons, which his Honour did not advert to and that, in those circumstances, his Honour gave insufficient weight to the Applicant's subjective case.
37 I am not satisfied, in the circumstances of this case, that this ground has been made good but it is not necessary to further examine the issue given other conclusions which I have reached.
Ground 3 – Plea of Guilty, Contrition and Remorse
38 The third ground of appeal is that the sentencing judge erred by failing to give weight, or appropriate weight, to the Applicant's plea of guilty and his contrition and remorse.
39 The Court has been informed that the Applicant was charged in the Local Court with an offence of perverting the course of justice under s.319 Crimes Act 1900 and was committed for trial on that charge. There is some uncertainty, on the material before the Court, as to when a charge under s.315 Crimes Act 1900 was first laid against the Applicant. It is clear, however, that on 23 August 2003, the Applicant admitted to police that he had made a false statement the day before and, four days later, on 27 August 2003, he provided an elaborate and electronically recorded confession with respect to a s.315 offence.
40 It is clear that a live issue existed as to whether the Applicant could be liable for conviction for a s.319 offence if the Crown had persisted with that charge. The Applicant's matter was listed for trial in March 2005 and he pleaded guilty to an indictment alleging a single offence, being the s.315 charge.
41 His Honour Judge Shadbolt referred to the pleas of guilty of the co-offenders, Richards and Kelly Mobbs and appears to have treated their pleas as ones entered at the first available opportunity. His Honour did not specify a quantified discount in that regard. In relation to the Applicant, his Honour made no mention of the utilitarian value of the plea of guilty, nor was any express discount indicated.
42 In my view, the Applicant’s plea of guilty ought to have attracted a significant quantified discount in accordance with the principles in Regina v Thomson and Houlton (2000) 48 NSWLR 383.
43 As I have indicated, the co-offender, Kelly Mobbs, received a sentence of the same duration as the Applicant but the sentence was to be served by way of periodic detention. Insofar as his Honour expressly took into account the plea of guilty of Kelly Mobbs in calculating sentence, it might be said that, in reaching the same quantified sentence for the Applicant, his Honour had, inferentially, extended the same discount to the Applicant.
44 However, it is not clear that his Honour gave a Thomson and Houlton discount to this Applicant. The sentence of periodic detention imposed upon Kelly Mobbs had, as this Court has recognised, a built-in element of leniency because the sentence was to be served by way of periodic detention: R v Potter (1994) 72 A Crim R 108. Further, the Applicant had made admissions on 23 August 2003 and further extensive recorded admissions on 27 August 2003. The content of these admissions demonstrated remorse and contrition which ought to have been taken into account, in addition to the R v Thomson and Houlton utilitarian element. The Applicant was entitled to a significant quantified discount to reflect these various elements: R v Sharma (2002) 54 NSWLR 300 at 308.
45 The sentencing remarks of his Honour did not refer expressly to remorse and contrition. His Honour observed that the Applicant’s counsel had advanced s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (remorse) as a mitigating factor which his Honour did not accept. However, on the face of it, the Applicant had pleaded guilty to a charge under s.315 at the first available opportunity and in circumstances where he had, from an early time, confessed to that crime.
46 I am satisfied that insufficient weight overall was given to the Applicant's plea of guilty and his contrition and remorse and, to that extent, Ground 3 has been made good. It is not necessary to further explore the consequences of that specific error taken alone.
Ground 4 – Sentence was Manifestly Excessive
47 Ground 4 alleges that the sentence was manifestly excessive in the circumstances of the case.
48 This was an unusual example of a s.315(1)(a) offence. That section, of course, is capable of encompassing a wide range of conduct by reference to objective criminality.
49 In sentencing for an offence under this section, it is appropriate to take into account the seriousness of the “serious indictable offence”, the investigation of which was hindered by the offender: R v Skinner [2000] NSWSC 303 at paragraph 15; R v Derbas [2003] NSWCCA 44 at paragraph 30; R v Ahmad [2005] NSWSC 848 at paragraph 11. This case involved a serious example of a “serious indictable offence”. There had been a tragic collision causing the death of one person and serious injury to a number of people. For a period of about 24 hours, the Applicant hindered the police investigation. He told a number of people that he was the driver and he placed his P plates on Richards’ vehicle. These were aggravating features of this offence.
50 There are other factors, however, which bear upon an assessment of the objective criminality of the offence. The fact that the offence is committed on the spur of the moment, without planning or premeditation, is relevant: Hamze at paragraphs 24, 33; Derbas at paragraph 17; Ahmad at paragraph 14. The length of time during which the hindering is maintained is also relevant: Ahmad at paragraph 14. The motive of the offender in committing the offence is relevant: Derbas at paragraph 28; Hamze at paragraph 33; Ahmad at paragraph 14. General deterrence is significant: Derbas at paragraph 28; Hamze at paragraph 33.
51 This was not an offence where the Applicant stood to gain or receive any benefit for himself. Indeed, an admission that he was the driver of a motor vehicle which had just been involved in such a catastrophic collision could only be regarded as an admission attracting substantial detriment to the Applicant. This is a most unusual feature of this case. The Applicant’s hindering of the investigation of the offence attracted investigation by police of himself for serious offences.
52 The evidence indicates that the Applicant was in a state of shock, and had sustained some injuries, at the time when he made the false statement. The hindrance of the investigation was relatively short lived.
53 Within 24 hours, the Applicant admitted the offence. The Crown submits that the admission of the offence is self-serving and saved the Applicant from the more dire consequences of maintaining that he was the driver. I do not see how this factor can operate against the Applicant in assessing the objective seriousness of the crime.
54 The offence appears to have been a spur of the moment one committed for reasons of misguided loyalty, involving no gain for the Applicant. To the contrary, the Applicant’s claim to be the driver exposed him to the risk of prosecution. If he had told the truth at the scene, the Applicant would not have been liable to prosecution for any offence whatsoever, whether by way of culpable driving or a public justice offence.
55 If there was evidence that the Applicant’s actions prevented Richards being prosecuted for a more serious offence, no doubt the Crown would have persevered with the s.319 prosecution. It did not do so, and the Applicant should not be sentenced as though he had committed such an offence.
56 This is not the occasion to attempt to classify types or classes of offences which may lie within s.315(1)(a) Crimes Act 1900. I am satisfied however, that in the unusual circumstances of this case, the sentence imposed by the learned sentencing judge was manifestly excessive.
Re-Sentencing the Applicant
57 I have already indicated that I am satisfied that error has been demonstrated with respect to the first ground of appeal and, to an extent, the third ground of appeal. I am satisfied that the sentence imposed was manifestly excessive. I am satisfied that another sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912.
58 Having regard to the objective circumstances of the offence and the subjective circumstances of the offender, I am satisfied that the appropriate sentence is a fixed term of imprisonment for four months to date from 22 April 2005.
59 The orders which I propose are as follows:
(a) that leave to appeal be granted;
(c) that the sentence imposed in the District Court be quashed and, in lieu thereof, the Applicant be sentenced to a fixed term of imprisonment for four months to date from 22 April 2005.(b) that the appeal be allowed;
60 SIMPSON J: I agree with Johnson J.
61 ADAMS J: I agree with Johnson J.
62 SIMPSON J: The orders of the Court will be as proposed by Johnson J.
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