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R v Mobbs

R v Mobbs

Case [2005] NSWCCA 371 19 October 2005

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CITATION:
R v Mobbs [2005] NSWCCA 371

HEARING DATE(S): 19 October 2005

JUDGMENT DATE:

19 October 2005

JUDGMENT 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 1912

CASES 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 848

PARTIES:
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

SIMPSON J
ADAMS J
JOHNSON J
19 October 2005

REGINA v LUCAS RODNEY MOBBS

Judgment

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…

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 Mobbs

Details

AGLC: R v Mobbs [2005] NSWCCA 371
Case: [2005] NSWCCA 371
Decision Date: 19 October 2005

CaseChat Overview and Summary

The case of R v Mobbs involves the defendant who was found guilty of hindering the investigation of a serious indictable offence. The matter was brought before the court to determine the appropriate sentence. The defendant had been charged under section 315(1)(a) of the Crimes Act 1900, which pertains to obstructing justice. The court needed to assess whether the sentence imposed was proportionate to the offence committed.

The primary legal issue for the court was whether the sentence imposed was manifestly excessive, taking into account the nature of the offence and the circumstances under which the defendant obstructed the investigation. The court also had to consider whether the sentencing judge had made any impermissible findings of aggravating circumstances that could have influenced the sentence. The defence argued that the sentence was disproportionate given the defendant's lack of criminal history and the nature of the offence.

In delivering its decision, the court examined the circumstances of the offence and the defendant's role in hindering the investigation. It found that the sentencing judge had indeed made an impermissible finding of aggravating circumstances, which had unduly influenced the sentence. The court concluded that the sentence was manifestly excessive in light of the defendant's background and the specifics of the obstruction. Consequently, the court quashed the sentence and ordered a resentencing hearing.

The final orders of the court mandated that the defendant be re-sentenced by a different judge, ensuring that the sentencing process adhered to legal principles and did not include any impermissible findings of aggravating circumstances. This decision underscores the importance of ensuring that sentences are proportionate and based on valid legal considerations.

Orders