Mbele v R [2021] NSWCCA 182

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mbele v R [2021] NSWCCA 182 Hearing dates: 9 June 2021 Date of orders: 9 August 2021 Decision date: 09 August 2021 Before: McCallum JA at [1]; N Adams J at [2]; Cavanagh J at [108]. Decision: (1) Pursuant to r 3B(1)(c) of the Criminal Appeal Rules, extend the time within which the notice of application for leave to appeal may be filed to 12 January 2021. (2) Allow the appeal. (3) Quash the sentence imposed by Latham J on 20 September 2013. (4) In lieu thereof impose a non-parole period of 16 years imprisonment to date from 25 May 2011 and expire on 24 May 2027, with a balance of term of 7 years expiring 24 May 2034. The applicant is eligible for release on 25 May 2027. Catchwords: CRIME — Appeals — Appeal against sentence – whether sentencing judge fell into Muldrock error – where sentencing judge found "very high" objective gravity and observed that but for the applicant's young age she would have considered the SNPP appropriate – where sentence imposed was significantly less than SNPP – where sentencing remarks read fairly and as a whole demonstrate that sentencing judge did not place determinative significance on SNPP – held, no error – whether sentencing judge erred in finding that applicant would not experience hardship in custody due to PTSD – where applicant was kidnapped at gunpoint three weeks prior to the offence – where applicant consulted psychologist for PTSD symptoms prior to offence – held, error established – applicant re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 44(2), 54B, 54D, Pt 4, Div 1A Crimes Act 1900 (NSW), s 18 Criminal Appeal Act 1912 (NSW), ss 5, 6 Cases Cited: Aboud v R [2021] NSWCCA 77 Aubourg v R [2013] NSWCCA 154 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Griffin v R [2018] NSWCCA 259 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Speechley [2012] NSWCCA 130 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Ryan v R [2019] NSWCCA 200 Tepania v R [2018] NSWCCA 247 TO v R [2017] NSWCCA 12 Trevor Essex v R [2013] NSWCCA 11 W v R [2014] NSWCCA 110 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Mosa Julius Mbele (Applicant) Regina (Respondent) Representation: Counsel: D Marr (Applicant) E Balodis (Respondent)