AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 7 July 2023

R v Mapp

[2023] NSWDC 259

Theft & property
CRIME SENTENCE LARCENY BACK UP OFFENCES ON A S 166 CERTIFICATE PARITY TOTALITY

Citation: R v Mapp [2023] NSWDC 259
Court: District Court of New South Wales
Date: 7 July 2023
Judge: J Smith SC DCJ

Background

The offender was released on parole on 26 February 2021 and, within roughly six weeks, committed a string of property offences before being taken back into custody on 12 April 2021. The offending spanned stolen credit cards, stolen vehicles, and a dwelling break-in, and involved multiple co-offenders and victims across Sydney.

The offender pleaded guilty in the Local Court to seven principal offences and was committed to the District Court for sentencing. A number of additional offences were admitted on a Form 1 (taken into account but not separately punished) alongside those principal charges. A further driving offence was placed before the court on a certificate under section 166 of the Criminal Procedure Act 1986 (NSW).

The court noted that since the offender turned 18, almost 19 years earlier, he had spent only around 23 months out of custody. His background included early childhood trauma, sexual abuse, drug addiction from a young age, limited education, and a low level of intelligence.

  • What aggregate sentence was appropriate across the seven principal offences and associated Form 1 matters, having regard to objective seriousness and the offender's subjective circumstances?
  • How should the principles of parity and totality be applied, particularly in light of a separate aggregate sentence imposed in the Local Court in April 2023?
  • What commencement date was appropriate for the sentence, given the complex custody history involving revoked parole, bail, and a separate Local Court sentence?
  • Whether special circumstances warranted a departure from the standard ratio between non-parole period and balance of term.
  • What disqualification period applied for the driving offence dealt with on the section 166 certificate?

Decision

The court accepted a 25% discount on sentence to reflect the utilitarian value of the guilty pleas entered in the Local Court. The offending was characterised as serious: it involved repeated exploitation of stolen payment cards for large sums, use of stolen vehicles, and an aggravated break-and-enter of a dwelling in company with intent to steal, which carried a maximum penalty of 14 years.

Against that objective seriousness, the court weighed strong subjective factors. The offender's deeply disadvantaged background, including childhood trauma, sexual abuse, early addiction, and limited cognitive capacity, significantly moderated the length of the sentence. The court noted the matter had been dealt with through the Walama List, a specialist list in the District Court designed to address the circumstances of Aboriginal and Torres Strait Islander offenders. Special circumstances were found to exist, resulting in an extended parole period beyond the standard statutory ratio, to allow for greater supervision in the community upon release.

Determining the commencement date required careful analysis of a complicated custody history. The offender's parole had been revoked from 12 April 2021, a separate Local Court sentence commenced on 29 September 2022, and there were periods on bail (including for residential rehabilitation) and bail refusals. The court treated the breach of parole conditions as an aggravating factor, but held it would be unfair not to backdate the sentence to some degree in light of that very factor and the time already served. Applying totality principles and allowing partial concurrency with the April 2023 Local Court sentence, the court backdated commencement to 8 November 2022.

For the section 166 driving offence, the court imposed a disqualification period of 6 months, which fell between the statutory minimum of 3 months and the automatic disqualification period of 12 months.

Orders Made

  • The offender was convicted of each principal offence.
  • An aggregate term of imprisonment of 3 years and 6 months was imposed, commencing 8 November 2022.
  • The non-parole period is 1 year and 10 months, expiring 7 September 2024.
  • The balance of term is 1 year and 8 months, expiring 7 May 2026.
  • The offender is first eligible for parole on 7 September 2024.
  • The offender is disqualified from driving for 6 months.

Key Takeaways

  • Strong subjective factors, including childhood trauma, sexual abuse, early drug addiction, and cognitive limitations, can materially reduce the length of an otherwise serious aggregate sentence for property offending.
  • Where parole breach is treated as an aggravating factor, fairness may require the sentencing court to backdate the new sentence to some degree, even where custody was not solely referable to the offences being sentenced.
  • Totality principles require the court to consider any concurrent or overlapping sentences already imposed, including those from a separate Local Court proceeding, when fixing the commencement date of a District Court sentence.
  • A finding of special circumstances under the applicable sentencing legislation allows the court to extend the parole (balance of term) period beyond the standard ratio, to provide a longer period of post-release supervision for an offender with complex rehabilitation needs.
  • Participation in the Walama List was noted as a relevant feature of the sentencing process, consistent with that list's focus on the individual circumstances of Indigenous offenders.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), section 166 (back-up offences by certificate)

Cases:
- Mapp v Regina [2010] NSWCCA 269