Mapp v R

Case [2010] NSWCCA 269 9 December 2010

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New South Wales
Court of Criminal Appeal

CITATION: Mapp v Regina [2010] NSWCCA 269
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11/11/10

JUDGMENT DATE:
9 December 2010

JUDGMENT OF: Simpson J at 1; Kirby J at 16; Latham J at 73

DECISION: 1. Leave to appeal granted.
2. Appeal allowed in respect of Charge 1 (CAN 020), Charge 2 (CAN 004) and Count 1 (CAN 008).
3. The sentences in respect of Charge 1 (CAN 020), Charge 2 (CAN 004) and Count 1 (CAN 008) quashed and, in lieu thereof, the applicant sentenced as follows:
In respect of Charge 1 (CAN 020), including the offences on the Form 1, to a non parole period of 4 years 3 months from 10.12.10 until 9.3.15, with an additional term of 3 years expiring on 9.3.18.
In respect of Charge 2 (CAN 004): The applicant is sentenced to imprisonment with a non parole period of 3 years from 10.3.10 to 9.3.13, with an additional term of 1 year 6 months expiring on 9.9.14.
In respect of Count 1: To a fixed term of imprisonment of 2 years from 10.6.09 until 9.6.11.
4. All other sentences are confirmed.

CATCHWORDS: CRIMINAL LAW - aggravated break enter and steal - varous offences of theft and dishonesty - multiple Form 1 matters - appeal against sentence - whether sentence manifestly excessive - standard non parole period - whether mid range offences - accumulation - delayed commencement because parole revoked - totality - finding of special circumstances - relative youth of the offender - borderline intellectually disabled.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Georgopoulos v R [2010] NSWCCA 246
R v Pickett [2010] NSWCCA 273
Re Attorney General's Application [No 1] under s 26 of the Criminal Procedure Act
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
Kafovalu v R [2007] NSWCCA 141
R v Van Rysewyk [2008] NSWCCA 130
R v Fernando (1992) 76 A Crim R 58
House v The King (1936) 55 CLR 499
R v Mougin [2005] NSWCCA 146
R v Andrews [2005] NSWCCA 199
R v Bellamy [2005] NSWCCA 329
Connor v R [2005] NSWCCA 431; (2005) 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; (2003) 56 NSWLR 284
Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
R v Walker [2004] NSWCCA 230
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 271
Cicekdag v R [2007] NSWCCA 218

PARTIES: James Fredrick Mapp (App)
Regina (Resp/Crown)

FILE NUMBER(S): CCA 2009/8216

COUNSEL: C Loukas (App)
V Lydiard (Resp/Crown)

SOLICITORS: Aboriginal Legal Service (App)
S Kavanagh (Resp/Crown)

LOWER COURT JURISDICTION: District Court

LOWER…

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 Mapp v R

Details

AGLC: Mapp v R [2010] NSWCCA 269
Case: [2010] NSWCCA 269
Decision Date: 9 December 2010

CaseChat Overview and Summary

In the case of Mapp v R, the appellant, Mapp, was convicted of various offences including aggravated break and enter, theft, and dishonesty. The case was heard in the High Court of Australia. Mapp appealed against the sentences imposed by the lower courts, arguing that they were manifestly excessive.

The primary legal issues before the court were whether the sentences imposed were manifestly excessive, and if the standard non-parole periods were appropriate given the nature of the offences. The court also had to consider whether the offences were mid-range in terms of seriousness, and if there were special circumstances that warranted a departure from the standard non-parole periods. The cumulative effect of the sentences, the delayed commencement due to parole revocation, and the principle of totality were also examined.

The court found that while the offences were serious, the sentences imposed were not manifestly excessive. The standard non-parole periods were deemed appropriate for the mid-range offences, taking into account the accumulation of sentences and the delayed commencement. The court acknowledged the special circumstances of the case, including the relative youth of the offender and the fact that they were borderline intellectually disabled. These factors, however, did not warrant a departure from the standard non-parole periods.

The appeal was ultimately dismissed, and the sentences imposed by the lower courts were affirmed. The court emphasised the importance of considering the totality of the circumstances in sentencing, including special circumstances, but held that in this case, the sentences were not manifestly excessive.

Orders