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Court of Criminal Appeal 9 December 2010

Mapp v Regina

[2010] NSWCCA 269

Also reported as (2010) 206 A Crim R 497
Fraud & dishonestyTheft & property
CRIMINAL LAW AGGRAVATED BREAK ENTER AND STEAL VAROUS OFFENCES OF THEFT AND DISHONESTY MULTIPLE FORM 1 MATTERS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Mapp v Regina [2010] NSWCCA 269
Court: NSW Court of Criminal Appeal
Date: 9 December 2010
Judges: Simpson J, Kirby J, Latham J

Background

The appellant was a relatively young, borderline intellectually disabled offender who had been convicted of multiple offences including aggravated break, enter and steal, and various other theft and dishonesty offences. A number of additional offences were taken into account on Form 1 (a procedural mechanism allowing the court to consider related uncharged matters when passing sentence). The offending spanned from June 2008 to September 2009.

The appellant had been sentenced in the District Court by Frearson DCJ. The sentences included a delayed commencement because the appellant's parole had been revoked at the relevant time. He appealed to the Court of Criminal Appeal on the ground that the overall sentence was manifestly excessive, raising issues about the assessment of objective gravity, accumulation of sentences, totality, and the finding of special circumstances.

The two principal charges each carried a standard non-parole period of five years under the Crimes (Sentencing Procedure) Act 1999. The appellant had pleaded guilty to both.

  • Whether the sentencing judge erred by incorporating the appellant's personal circumstances into the assessment of objective gravity, rather than treating them as a separate consideration
  • Whether the offences under Charges 1 and 2 were correctly assessed as mid-range or lower mid-range in objective gravity
  • Whether the degree of accumulation of sentences was appropriate, having regard to totality
  • Whether a finding of special circumstances was adequately reflected in the resulting parole period
  • Whether the aggregate sentence was manifestly excessive given the appellant's relative youth and borderline intellectual disability

Decision

The Court found that the sentencing judge had technically erred by taking the appellant's personal circumstances into account when assessing objective gravity. All three judges agreed that objective gravity is a discrete assessment of the seriousness of the offending conduct itself, and that personal factors (including intellectual disability) are relevant at the subsequent stage of determining the actual sentence. However, the Court concluded that this error had no practical operative effect in the circumstances, because the judge had proceeded to find the Mosman offence at mid-range and the Vaucluse offence at the lower end of mid-range in any event.

Simpson J used the occasion to comment on the broader complexity of sentencing law. Her Honour observed that the introduction of section 21A of the Crimes (Sentencing Procedure) Act 1999, together with the standard non-parole period provisions in Part 4, Division 1A, has significantly increased the technical burden on sentencing judges. She also noted that the earlier guideline judgment in Ponfield has been largely overtaken by statute, particularly because one of the aggravating factors listed there (offending while on conditional liberty) is no longer treated as relevant to objective gravity following subsequent Court of Criminal Appeal authority.

The Court, applying the principle from House v The King that appellate intervention requires identifiable error, allowed the appeal in part. The appeal succeeded on the basis that the aggregate non-parole period of six years failed adequately to reflect the totality of the appellant's criminality across two charges each attracting a five-year standard non-parole period, combined with significant Form 1 offending. The Court substituted a revised sentencing structure that produced an aggregate non-parole period of seven years, adjusting commencement dates to reduce the degree of accumulation, while also ensuring the parole period remained sufficient to support supervision and rehabilitation given the appellant's circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in respect of Charge 1 (CAN 020), Charge 2 (CAN 004), and Count 1 (CAN 008)
  • Sentences for those three matters quashed and replaced:
  • Charge 1 (CAN 020), including Form 1 offences: non-parole period of 4 years 3 months from 10 December 2010 to 9 March 2015, with an additional term of 3 years expiring 9 March 2018
  • Charge 2 (CAN 004): non-parole period of 3 years from 10 March 2010 to 9 March 2013, with an additional term of 1 year 6 months expiring 9 September 2014
  • Count 1 (CAN 008): fixed term of 2 years from 10 June 2009 to 9 June 2011
  • All other sentences confirmed

Key Takeaways

  • Objective gravity is a discrete analytical step in sentencing: personal circumstances such as intellectual disability are not properly taken into account at that stage, but remain highly relevant to the ultimate sentence imposed.
  • The Court of Criminal Appeal confirmed that the guideline in Ponfield regarding offending on conditional liberty as an aggravating factor relevant to objective gravity has been displaced by subsequent authority and the enactment of section 21A of the Crimes (Sentencing Procedure) Act 1999.
  • Where a standard non-parole period applies and the offender has pleaded guilty, the sentencing court is expected to depart downward from that benchmark, calibrated against where the offence sits on the scale of objective gravity and any other relevant factors including Form 1 matters.
  • A sentence can be technically stern without being manifestly excessive: the Court declined to intervene on grounds of manifest excess for Charge 2 alone, even while acknowledging the sentence was at the upper end of what was appropriate.
  • Totality remains a live and operative consideration when an offender faces accumulation across multiple charges each carrying a standard non-parole period, particularly where the overall sentence must also accommodate findings of special circumstances based on youth and intellectual disability.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A; Pt 4, Div 1A; Pt 3, Div 3

Cases
- House v The King (1936) 55 CLR 499
- R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Fernando (1992) 76 A Crim R 58
- Kafovalu v R [2007] NSWCCA 141
- R v Van Rysewyk [2008] NSWCCA 130
- Georgopoulos v R [2010] NSWCCA 246
- R v Pickett [2010] NSWCCA 273
- R v Mougin [2005] NSWCCA 146
- R v Andrews [2005] NSWCCA 199
- R v Bellamy [2005] NSWCCA 329
- Connor v R [2005] NSWCCA 431; 158 A Crim R 389
- R v MAK; R v MSK [2006] NSWCCA 381; (2007) 167 A Crim R 159
- R v Nai Poon [2003] NSWCCA 42; 56 NSWLR 284
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
- KT v R [2008] NSWCCA 51; 182 A Crim R 271
- Cicekdag v R [2007] NSWCCA 218
- R v Walker [2004] NSWCCA 230