MOBBS v R

R v De Simoni (1981) 147 383 CASES CITED: R v Pearson [2005] NSWCCA 116 R v Thomson and Houlton (2000) 49 NSWLR 383

Kelly Francis Mobbs (Appl) PARTIES: The Crown

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

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

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 1 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. 2 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. 3 The applicant seeks leave to appeal against the severity of the sentence.

The facts 4 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. 5 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. 6 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. 7 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. 8 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. 9 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. 10 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." 11 On the Saturday morning Lucas Mobbs had a conversation with Richards in which Richards said words to the effect "You can't do this, it's not worth it, they're gunna find out and … its gunna look worse for both of us." Later, Lucas Mobbs telephoned Bathurst police station and left a message for Det Nightingale to the effect that he wanted to change his statement although he did not then clearly state that he was not the driver. On 25 August 2003 Corey Richards rang the police and informed them that he was the driver. Earlier that day the police had requested a drug test to be undertaken on Lucas Mobbs' blood, which suggests that at that time the investigation was still focused on Mobbs as the driver. 12 The applicant, Lucas Mobbs and Corey Richards were subsequently charged with offences. The applicant was charged with one count of pervert the course of justice pursuant to s 319 of the Crimes Act 1900 and one count of hinder investigation pursuant to s 315 of the Crimes Act 1900. All three were committed for trial. On 8 March 2005 following discussions between the defence representatives and the Crown, the Crown accepted pleas of guilty from Lucas Mobbs and the applicant in relation to a single offence under s 315(1)(a) of the Crimes Act 1900 of hindering the investigation of a serious indictable offence committed by another person. 13 Corey Richards was ultimately re-indicted for an offence under s 314 of making an accusation intending a person to be the subject of an investigation knowing the other person to be innocent, in relation to his nomination of Lucas Mobbs as the driver. 14 The sentencing judge passed sentences on each of the offenders. For the offence under s 314 his Honour imposed a term of 12 months full time imprisonment cumulative upon other sentences in relation to his manner of driving in respect of Corey Richards. His Honour imposed a sentence of 15 months full time imprisonment with a 12 month non-parole period in relation to Lucas Mobbs. With respect to the applicant his Honour imposed a sentence of 15 months with a 12 month non-parole period, the sentence to be served by way of periodic detention. In respect of the applicant his Honour said: "Kelly Mobbs would have been sentenced to exactly the same sentence as her cousin but for the fact that she has a small child which constitutes a strong subjective feature, but not strong enough to keep her from prison." 15 On 20 October 2005 this Court reduced the sentence imposed on Lucas Mobbs to one of 4 months imprisonment.

Ground One - the sentencing judge erred by sentencing the applicant on the basis of facts which give rise to the more serious offence of pervert the course of justice. 17 The original charge laid against the applicant was the more serious offence of perverting the course of justice contrary to s 319 of the Crimes Act. It is suggested that this charge was laid by the police due to a suspicion that the false nomination of Lucas Mobbs as the driver was with the intention of preventing Corey Richards from being charged with an aggravated offence such as driving in a manner dangerous due to the influence of alcohol. It is apparent that the acceptance by the Crown of a plea to the lesser offence under s 315 of hindering an investigation was a significant change in the objective criminality for which the applicant was required to be sentenced. 18 In his remarks on sentence his Honour said: "If the intention of the 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 a video in which the 2 Mobbs resiled from the falsehoods and Richards was charged under s 52A(1) which carries 10 years rather than the aggravated offence which carries 14." 19 The applicant submits, as was apparently successfully submitted to this Court in the appeal by Lucas Mobbs, that this passage in his Honour's remarks discloses a view that the applicant had perpetrated the falsehood with the intent applicable to the more serious offence of perverting the course of justice rather than the offence charged of hindering an investigation. It is submitted that the sentencing judge should be understood as having expressed a view that, but for the falsehoods advanced by the applicant and her cousin Lucas, Corey Richards could have been charged with an aggravated offence such as driving in a manner dangerous due to the influence of alcohol. 20 It is submitted that error is demonstrated in two respects. Firstly, it is submitted that his Honour has passed sentence upon a basis that would support the more serious offence and, accordingly, the principles identified by the High Court in R v De Simoni (1981) 147 CLR 383 have been breached. Secondly, it is submitted that there was no evidence before the sentencing judge which could justify a finding that Richards would, but for the falsehood advanced as to the driver on the night of the accident, have been charged with an aggravated offence. In this respect the applicant points to the fact that blood was taken from Corey Richards at the hospital which could have been tested for its blood alcohol level. 21 In response to the applicant's submission the Crown points to an exchange which occurred which the sentencing judge recorded as follows: "HH: What the combination of 315 on behalf of two and 314 on behalf of him was to deprive the police of an opportunity to properly investigate the matter. Rosser: Yes. HH: Now you are not saying that? Rosser: No but I am saying that that's not - HH: What they would have found out would be a matter of mere speculation. Rosser: Certainly. … HH: Well what they did was to deprive them of the chance of finding out. Rosser: Yes. HH: Of confirming one way or the other, what his state was." 22 The Crown also emphasises that in his remarks on sentence the sentencing judge said: "Silence is a right, but to wilfully place an obstacle in the way of an investigation must be dealt with severely. The more serious the crime the more serious is the offence under s 315. This was a very serious offence. Their lies were, in the first instance, accepted and the police, in this regard, seriously hindered in their investigation." 23 The Crown submits that when the whole of his Honour's remarks on sentence are considered, particularly in the context of the earlier discussion, it is apparent that his Honour was mindful of the difference between the offence of hinder investigation and that of pervert the course of justice. It is submitted that in the circumstances of this case, the effect of the applicant's actions was to hinder the investigation, and she was sentenced accordingly. It is submitted that the sentence was well within the range of penalty available for the lesser offence. If the applicant was being sentenced for the more serious offence of pervert the course of justice for which the maximum penalty is fourteen years it is submitted a significantly greater sentence would have been appropriate. 24 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. 25 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. 26 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." 27 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. 28 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 29 This ground of appeal turns upon an understanding of the evidence which the applicant gave at the sentencing hearing. 30 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." 31 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. 32 The applicant draws attention to the cross-examination by the Crown when it was put to her that she had said to the ambulance officer on the night of the accident that her cousin was sitting "in the front on the passenger side." It was then put to her that she had made a completely different statement to the police at the hospital and she was pressed for an explanation for her change in the story. The prosecutor suggested that the applicant had changed her story in a calculated manner between the version she gave to the ambulance officer and the version she gave to the police. 33 This line of cross-examination, although not objected to, was fundamentally erroneous. There was no evidence that the applicant had spoken to anyone either at the scene or in the ambulance before "going along" with what had been stated assertively at the scene by Lucas Mobbs. It may be that this passage of cross-examination has adversely influenced the sentencing judge in relation to the applicant. 34 However, a more serious problem is reflected in his Honour's Remarks on Sentence. Having described the accident his Honour continued: "What happened thereafter is hard to believe. Richards and his passengers escaped any serious injury. Mr Freebody was ordered by Mobbs to go to a farmhouse and call for help. It took some time for the police and the ambulance to arrive, but when they did both Mobbs gave false information with the intention of protecting the driver Richards. Further to that description, Kelly Mobbs said that it was Lucas Mobbs who was driving, as did Corey Richards, and Lucas Mobbs confirmed this to the police. Kelly Mobbs continued this pretence whilst in hospital by including this falsehood in a statement to police. Lucas Mobbs also continued this pretence to seven people and in consequence of which a blood alcohol sample was taken from him rather than from Richards. Although the hospital took a sample from Richards it was never tested. Mobbs even placed a P-plate, as he only held a provisional licence, on the back of Richards' car." 35 It is apparent from these remarks that his Honour concluded that the applicant made a false statement to the police and the ambulance officers at the accident scene. Apart from the fact that this finding was contrary to the assertion put by the Crown to the applicant there was no evidence that the applicant had made any statement as to who was the driver until she later spoke with the police at the hospital. 36 The consequence is that the sentencing judge has sentenced the applicant upon the basis that she and Lucas Mobbs participated in the same deception and to the same extent and, accordingly, were equally culpable for any hindrance of the police investigation. The reality, having regard to the evidence, is quite different. In fact, the applicant did not speak about the matter until much later when the course of the police investigations had been set in response to the statements made by Lucas Mobbs and Richards. 37 Emphasis is also placed by the applicant on the fact that there was evidence before the sentencing judge that the applicant had been charged at Oberon Local Court with an offence which was said to have occurred at Oberon on 7 November 2003. The applicant was charged with failing to "give information that it was in her power to give that may have led to the identification of the driver of the motor vehicle … who was alleged to have committed an offence, to wit, drive unregistered … under the Road Transport Legislation." 38 She was questioned by his Honour about this incident. The exchange was as follows: "Q: After this accident, on 1 January last year, 2004, you were convicted of not providing information of the identity of a driver, what was that? A. I didn't know the information. That's - I didn't know the information so I couldn't - Q: No, you were charged with and fined for, as a result of your plea of guilty, of not providing the information? A: Yes. Q: No not knowing the information, not providing the information. Who was it that you were protecting on that occasion? A: It was Lucas Mobbs but I wasn't protecting him in any way. Q: So you did know his identity after all. A: Pardon? Q: You did know his identify after all? You did know his identity? A: I do know Luke Mobbs, yeah. Q: Yes, but you just told me you didn't. A: I must … Q: Do you just tell lies just to … A: No. Q: No no, not - you just don't tell lies as they come to mind? A: No. Q: You just told me you didn't know the name of the driver. A: No, I do know the name of - I didn't know what, about the information, like that they were asking me. Q: No, the information of identity of the driver? A: Oh. Q: It's much simpler, isn't it? A: Yeah. Q: You did know who he was? A: I do know who he is, yes, but I don't know that he was driving a vehicle at that time, no, because I wasn't' home. Q: I see, but you pleaded guilty to that offence? A: It went to court and then it was adjourned. It was over the Christmas period which I didn't attend the court day because I didn't get a letter and they proceeded without me." 39 The sentencing judge undoubtedly formed an adverse view of the applicant's credit and appears to have come to his view largely as a result of this sequence of questions and answers. He said of her in his remarks on sentence: "Kelly Mobbs' evidence was equally incapable of being accepted. I gained the very distinct impression that Kelly Mobbs would say anything to protect her interests as she saw them at the moment. Not only did she decline to answer or proffer any explanation as to why she lied to police, she was equally evasive in regard to her more recent conviction, claiming that she had pleaded not guilty but because she had failed to attend she was found guilty and did not appeal." 40 However, the applicant's counsel points out that her account of this subsequent matter is correct. The court record demonstrates that on 12 November 2003 the applicant appeared in the Local Court represented by Mr Ireland, solicitor. The matter was mentioned and adjourned for hearing, not for a plea, to 14 January 2004 with an estimate of 1½ hours. 41 On 14 January 2004 there was no appearance by the applicant and her legal representative withdrew. In her absence the offence was found proven and she was convicted and fined. Accordingly, although his Honour formed the conclusion that the applicant's testimony in relation to this matter was false, this is not correct. In fact she pleaded not guilty but was convicted in her absence, although that absence is not explained. 42 I am satisfied that the view which the sentencing judge formed of the applicant's credit has significantly affected his ultimate decision as to the appropriate sentence. However, it was substantially based on an erroneous understanding of her situation. That error is largely the responsibility of the applicant's counsel at the sentencing hearing where he failed to ensure that a proper account of the matter was placed before his Honour.

Ground 4 - in all the circumstances the sentence was excessive 43 The applicant submits that there were a number of matters to which his Honour failed to give appropriate weight when sentencing. She is a very young mother in a country town with a six year old child and a six month old baby in her care. It is accepted that the sentencing judge had correctly determined that there was no alternative but to impose a significant prison term on her husband, Richards. However, if this was imposed the consequence would be that the children, for any period which the applicant was required to serve a prison term, would be without the supervision of either parent. 44 It is submitted that although the applicant joined in supporting a false account of the circumstances of the accident, she had not initiated the deception and was caught up in it when she was suffering shock and injury from the accident itself. It is submitted that although she had the relevant intent, nothing which she did had the effect of actually hindering the police investigation of the incident. 45 Having regard to these and other matters I have referred to in relation to ground 3, it is submitted that the sentence imposed was excessive.

Conclusion 46 Hindering the authorities in the investigation of a criminal offence is a serious matter deserving of appropriate punishment. This is particularly the case if the telling of a falsehood actually interferes with the investigation of the offence or the apprehension of the offender. However, where, as was the case with the applicant, the activities of the offender do not result in any difficulties for the police and she soon recants and admits the falsehood, a lesser penalty may be justified. 47 In this case I am satisfied that the applicant's offence should have been considered to be at the lower end of the offence of hindering. Unlike Lucas and Richards who initiated and agreed upon the deception, the applicant merely went along with it. Unlike Lucas she did not make a false statement at the scene of the accident and nothing she did actually affected the investigation. 48 Following an appeal to this Court Lucas was re-sentenced to a prison term of four months. The appropriate sentence for the applicant would have been a significantly lesser term of imprisonment than that which was imposed on Lucas. In my view, the appeal must be upheld and the applicant re-sentenced so as to enable her immediate discharge from any further obligation under the sentence. 49 Accordingly, the orders which the Court has made are:

1. Leave to appeal against sentence is granted. 2. The appeal is 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. 50 STUDDERT J: I have had the opportunity of reading the judgment of McClellan CJ at CL expressing his Honour's reasons for the decision announced and the orders made on 8 December 2005. I agree with what his Honour has written. 51 JAMES J: I agree.

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