R v Mapp

District Court of NSW|2023-06-30

Judgment

The offender was released on parole on 26 February 2021. Over the course of the following month, he committed a number of property related offences before he was taken into custody again on 12 April 2021. It is not the first time that he has spent so little time out of custody before reoffending and being apprehended. Indeed, since he turned 18, almost 19 years ago, he has spent only a little over 23 months out of custody. The reasons for that will be unsurprising to anybody with experience in the criminal law: early childhood trauma, sexual abuse, very early drug addiction, lack of education and low level of intelligence. The seriousness and number of the present offences require the offender to remain in jail for some time further; however, his background of deprivation will have a significant impact upon the length of that time and the amount of time that he will be subject to supervision in the community.
The offender has pleaded guilty in the Local Court to 7 principal offences and has been committed for sentence to this Court in respect of those offences. In addition to those, there are a number of matters in respect of which the offender has admitted his guilt and asks me to take into account when determining the appropriate sentence in respect of a number of the principal offences. Given the number of those offences, it is convenient to set out in table form the principal offences and the related offences which I will take into account in respect of the relevant principal offences. H number & Seq Offence Maximum penalty H81224078 / Seq 3 Larceny (09/03/2021) 5 years imprisonment H81224078 / Seq 6 Dishonestly obtain financial advantage by deception (09/03/2021, $111.40, Stanmore Shell) 10 years imprisonment Form 1 - H81224078 / Seq 6 Seq 2 - Dishonestly obtain financial advantage by deception (10/03/2021, declined transaction, 7 Eleven Glebe) Seq 4 - Dishonestly obtain financial advantage by deception (09/03/2021, declined $57.99 transaction, Caltex Alexandria) Seq 7 - Enter upon land with intent to commit indictable offence (09/03/2021) H469251792 / Seq 1 Drive conveyance taken without the consent of owner (17-18/03/2021) 5 years imprisonment Form 1 - H469251792 / Seq 1 Seq 3 - Dishonestly obtain financial advantage by deception (17/03/2021, $61, 7 Eleven) Seq 4 - Dishonestly obtain financial advantage by deception (18/03/2021, $59, Speedway) H79087906 / Seq 8 Dishonestly obtain property by deception (31/03/2021, $4,007.80, JB HI FI) 10 years imprisonment Form 1 - H79087906 / Seq 8 Seq 1 - Dishonestly obtain property by deception (31/03/2021, $798, The Good Guys) Seq 6 - Dishonestly obtain property by deception (31/03/2021, $1,735.90, Harvey Norman) Seq 12 - Dishonestly obtain financial advantage by deception (30/03/2021, $1,000 ATM withdrawal) Seq 14 - Dishonestly obtain financial advantage by deception (31/03/2021, $1,000 ATM withdrawal) Seq 15 - Dishonestly obtain property by deception (31/03/2021, $1,349.90, Footlocker) H79087906 / Seq 9 Drive conveyance taken without the consent of owner (31/03/2021) 5 years imprisonment H79087906 / Seq 11 Dishonestly obtain financial advantage by deception (09/03/2021, $4,000, ATM withdrawal) 10 years imprisonment Form 1 - H79087906 / Seq 11 Seq 2 - Dishonestly obtain property by deception (01/04/2021, $1,065.70, Glue Store) Seq 3 - Dishonestly obtain property by deception (01/04/2021, $869.94, Hype DC) Seq 4 - Dishonestly obtain property by deception (01/04/2021, $219.97, Hype DC) Seq 5 - Dishonestly obtain property by deception (01/04/2021, $2,548, Harvey Norman) Seq 7 - Dishonestly obtain property by deception (01/04/2021, $1,495.30, Jaycar) Seq 13 - Dishonestly obtain financial advantage by deception (01/04/2021, $1,000 ATM withdrawal) Seq 16 - Dishonestly obtain property by deception (01/04/2021, $137, Vodafone) H79753734 / Seq 3 Aggravated enter dwelling in company with intent to steal (06/04/2021) 14 years imprisonment

In addition, there is a matter before me pursuant to a certificate issued under s 166 of the Criminal Procedure Act 1986 (NSW), namely, never licensed person drive vehicle on road - prior offence. That offence carries a maximum penalty of 6 months imprisonment and/or 30 penalty units and there is also an automatic disqualification of 12 months with a minimum disqualification of 3 months.
The offender's plea of guilty entitles him to a discount of 25% to reflect the utilitarian value of the plea.

Facts

The relevant facts appear from statement of agreed facts which are summarised as follows.
The first set of offences occurred on 9 March 2021.
On Monday, 8 March 2021 Michael Zhang parked his car in his front driveway in Forestville. He believed the car to be locked and went to bed around 10:30 PM.
Around 12:57 AM on 9 March 2021, the offender along with another man, approached Zhang's car and then the front door of Zhang's house.
The offender ransacked Zhang's car and stole his wallet that had been left in the glove box. The wallet contained an American Express credit card and a MasterCard credit card.
Zhang awoke at 5:30 AM the following day and noticed that items that were usually kept in the car were on the ground, his wallet and garage remote controller were missing and the garage door was open. The remote control was later recovered at the property.
On 9 March 2021, the offender attended Coles Express Shell service station in Stanmore. He used Zhang's MasterCard to purchase prepaid mobile phone credit for $50 at 3:14 AM and cigarettes and a lighter for $61.40.
On 9 March 2021 at 6:04 AM, the offender attempted to purchase cigarettes to the value of $57.99 at Caltex Alexandria using Zhang's MasterCard. The transaction was declined.
On 10 March 2021 around 5:30 AM, the offender attempted to use Zhang's American Express card to purchase items at a 7 Eleven store in Glebe. That transaction was declined.
The next set of offences occurred between 16 March 2021 and 18 March 2021.
On Tuesday 16 March 2021, the owner of a grey Audi S3 parked his car in the carport in his home at Vaucluse. The following morning, he noticed that the back screen door of his house was ajar. It had been closed the night before. He went out and discovered that his car was missing. Keys that were usually located in a bowl near the front door of the house were also missing.
CCTV from the property depicts 2 men walking along the side path of the house at 5:05 AM and jogging back towards the road at 5:09 AM.
On 17 March 2021 around 12:42 PM, the offender drove the stolen Audi to 7 Eleven Arncliffe and filled the car with $61 worth of petrol before driving away without paying.
On 18 March 2021 around 6:19 AM, the offender filled the stolen Audi with $59 worth of petrol at Speedway Arncliffe before driving away without paying.
The stolen Audi was involved in a collision at 2:30 AM on 21 March 2021 at the intersection of Fig and Wattle Street, Pyrmont. The car crashed into a power pole and an unknown male was seen fleeing the car.
The Audi was searched while at a towing yard on 22 March 2021. A black facemask was located in the passenger footwell. An Audi key was located in the driver's footwell. Tape lifts taken from items in the car including the steering wheel showed DNA that could not be excluded as that of the offender and another male, Jordan Soussan.
The third set of offences occurred between 29 March 2021 and 1 April 2021. In that period, numerous transactions were undertaken using a Visa credit card that had been stolen from a person's mail.
On 30 March 2021 at 7:45 PM, the offender used the victim's stolen Visa card to withdraw $1,000 cash from a Westpac ATM in Newtown.
Between 12:01 AM and 12:10 AM on 31 March 2021, the offender used the victim's stolen credit card to withdraw $1,000 cash from an ATM on Elizabeth Street, South Sydney.
Later on that day, the offender attended Moore Park Supa Centa with the co-offender, Germaine Gilewsky.
At 12:48 PM, the offender and co-offender attended JB HI FI at the Supa Centa where they purchased 2 Apple iPhones, screen covers and iPhone cases with a total value of $4,007.80 using the victim's stolen Visa card.
The offender attended Harvey Norman at the Supa Centa and he and the co-offender purchased 2 series 6 Apple watches and 2 Belkin MagSafe 3-in-1 wireless charges with a total value of $1,735.90 using the stolen Visa card.
The offender then used the victim's stolen Visa card to purchase 2 Apple Airpods Pro from the Good Guys. The total transaction came to $798.
The offender and co-offender then left the Supa Centa in a blue Nissan Qashqai car being driven by the offender. This car had been stolen sometime between the 2 and 3 November 2020 and reported on 3 November 2020 as stolen.
The offender then attended Footlocker at Eastgardens shopping centre with the co-offender. He purchased $1,349.90 worth of clothing and shoes at 2:18 PM using the stolen credit card.
On 30 to 31 March 2021, the offender conducted 6 transactions totalling $9,891.60 using the stolen credit card.
At 12:18 AM on 1 April 2021, the offender is shown on CCTV approaching the Westpac ATM in Newtown and using the stolen Visa card to withdraw $1,000 in cash.
On 1 April 2021, the offender approached a St George ATM in Marrickville, remained there for some time before approaching a bank teller. He then withdrew $4,000 using the victim's stolen credit card.
The offender attended the Central Park shopping centre in Chippendale and went to the Glue Store where he used the stolen credit card to purchase clothing with a total value of $1,065.70.
He then attended Jaycar at Central Park where he purchased various electronic items with a total value of $1,495.30 using the stolen credit card.
He then attended Hype DC at Central Park where he used the stolen credit card to purchase clothing items to the value of $869.94.
He then purchased further items using the stolen credit card from Hype DC to the value of $219.97.
Next, he attended Vodafone at Broadway shopping centre where he used the victim's stolen credit card to purchase items to the value of $137.
He then purchased electronic items to the value of $2,548 from Harvey Norman at Broadway using the stolen credit card.
The total value of the 8 transactions on 1 April 2021 came to the amount of $11,335.91.
The next set of offences took place on 6 and 7 April 2021.
Around 11:07 PM on 6 April 2021, the offender and co-offender Germaine Gilewsky approached the front entrance to 71 Foster Street, Leichhardt. This is a residential complex consisting of a group of townhouses with a secured underground car park. The offender and co-offender looked through the property of residents that was stored in the garage.
On 7 April 2021, a resident noticed that property he stored in the garage was missing. Items to the total value of over $2,000 was stolen from his storage area including a Segway scooter and bicycle helmet.
A helmet valued at $120 was stolen from another resident. Further property worth around $500 was stolen from yet another resident including a number of bicycle helmets.
On 8 April 2021, police located a blue Nissan Qashqai near the residential address of Germaine Gilewsky. Upon search, numerous items including a number of those stolen from the residence in Leichhardt were located in the car.
The offender was arrested on 12 April 2021.

Objective seriousness

The assessment of the objective seriousness of each of the offences is an important aspect of the sentencing process. It requires an assessment of the objective seriousness of each of the offences taking into account only the objective matters and leaving to one side the subjective aspects of the offending.
The first 2 offences related respectively to the theft of a wallet containing credit cards taken from the victim's car and dishonestly obtaining financial advantage by the use of those credit cards. The first offence did not involve anything of any significant value and, as occurred here, the loss was able to be limited fairly quickly by the owner. The second offence was for a relatively small amount using the stolen credit card. They both fall towards the lower end of the range of objective seriousness.
The second set of offending involved the driving conveyance taken without the consent of owner. The critical matter here is that the car was taken from the owner's residence and driven over a period of more than 1 day. That makes the offending relatively serious.
The related offence of never licensed person drive vehicle on road also relates to this. Once again, given that the period of driving is relatively short it is an offence that falls towards the lower end of objective seriousness.
The third set of offending involved the use of a credit card taken from the owner's mail both to purchase items as well as to withdraw a relatively significant amount of cash. The offending also included the driving of the stolen blue Nissan Qashqai. There is no suggestion that the offender had anything to do with the theft of that car because he was in jail at that time, and he only drove the car for a short period. However, the amount of money involved in the other 2 offences make them relatively more serious.
The final offence of aggravated enter dwelling is towards the lower end of this type of offending because the part of the dwelling entered was the communal garage area rather than any area where there might be greater concerns for security. The objective seriousness is increased somewhat by the fact that the property of 3 separate residents was the target of the entry. The offender was in company with 1 person, his co-offender Germaine Gilewsky. This offence falls towards the lower end of offending for this type of offence.
All of these offences were aggravated by the fact that the offender was on conditional liberty at the time of the offending, he has a significant history of similar offending and committed the offences for financial gain.

Subjective factors

The subject material before the Court arises from a number of matters: first, the report of Dr Paul Pusey dated 16 March 2022, second, a Sentencing Assessment Report dated 28 June 2023, third, the offender's criminal history, fourth, a number of other Sentencing Assessment Reports dating back to May 2022, fifth the reasons for decision of the Court of Criminal Appeal in Mapp v Regina [2010] NSWCCA 269 and finally, the offender's own evidence.
The offender was born in 1986. He is currently 36 years old. At [34] of Mapp v Regina, Justice Kirby of the Court of Criminal Appeal summarised the offender's early life as following: "The applicant's early life was chaotic and violent. His mother was described as being of Aboriginal descent. She was said to be an alcoholic, a drug addict and abusive. At one point she set fire to their house. The father was described as also violent. Whilst they were children he was in jail for unspecified offences. DoCS intervened when the applicant was very young. He and his sister were made wards of the State. They were then looked after by a foster mother."
The offender told Dr Pusey that when he and his 3 siblings were placed into foster care, although it was originally together, they were then separated with him going to Kempsey and his sisters being sent to board in Victoria. He said that he had experienced a significant amount of trauma throughout his childhood and adolescence, disclosing that he was a victim of sexual abuse perpetrated by a staff member in a care facility that he resided in whilst in the care of DoCS as well as when he was an inmate in the juvenile justice institution.
The offender said that he estimates that he moved between 15 and 20 places but was always separated from his sisters. He left school in year 9 because although he liked sports and maths, he was just bored.
He commenced the use of substances between the ages of 11 and 12, drinking alcohol and smoking cannabis and then gradually developing from there, so that by the time he was 14 to 15 he was a full-blown heroin addict.
Although it was not before me, the Court of Criminal Appeal considered a report from a psychologist, Peter Champion, who concluded from a number of tests administered by him that the offender demonstrated a significant level of intellectual limitation, his score notionally placing him in the lowest 10% or so, stating that his results were just above the level where a formal diagnosis of mild developmental disability could be made.
Mr Champion gave an opinion that the history showed a childhood/adolescent conduct disorder which was probably secondary to intellectual limitation, ADD, familial dysfunction, the experience of physical and emotional abuse and then increasing polysubstance abuse and dependency.
The Court of Criminal Appeal reports that the offender was repeatedly brought before the Children's Court between the ages of 15 and 18 for many offences, some serious. He was also admitted to a psychiatric unit after a failed suicide attempt, having doused himself with kerosene. I note this history of self-harm and suicide ideation is consistent with the notes in the offender's custodial history.
Dr Pusey says that the offender would likely meet the diagnosis for a psychological or psychiatric diagnosis characterised by prominent and long-standing mood and trauma pathology and that his use of substances was a coping strategy in relation to these. He gave an opinion that a diagnosis of major depressive disorder with a comorbid diagnosis of post-traumatic stress disorder and substance use disorder would be appropriate in relation to explain the nexus between the offender's experience of psychiatric pathology and his engagement in his offending behaviour. He says that the ongoing impact of the psychosocial challenges continues to influence the offender's behavioural decision-making and best accounts for both the criminal history as well as.
Dr Pusey was hesitant in making any assessment of the offender's risk of recidivism saying that that was impossible to decouple from the offender's current and ongoing psychopathology and its associated impact on his behavioural decision-making, in particular his use of substances.
The offender came into the Walama List in this Court and was released on bail on 2 occasions for the purpose of entering residential rehabilitation programs. The first program was WayBack and the second was WHOS. However, the offender did not continue with those programs and his reoffending meant that he was no longer engaged in the Walama List.
In his evidence to the Court, the offender explained that during the first program he received notice after about a week and a half about the sexual abuse of his son and that because he was required to give a statement to the police he was late signing back into the program. It appears that he had some dispute with those involved in the program and he left it. In respect of the second program, he says that he was there for 4 days before some people who were using prohibited substances started to blame him for that and so he left that program.
He also said that during the Walama List he butted heads with one of the people involved.
He said that his only criticism of the List was that what he particularly needed was support in the community in terms of counselling to address his long-standing issues arising from his traumatic childhood rather than rehabilitation in the first instance. That evidence is reflected in what he told the author of the Sentencing Assessment Report on 28 June 2023. However, it appears that although the offender does realise that his childhood and early life has had a significant impact upon him, he is not yet cognisant of the correlation between his offending, the impacts of that background and his drug abuse. In that respect, it is important to note that Dr Pusey himself places weight upon the need for psychological assistance over support for the offender remaining abstinent from substance abuse: see paragraph 66 of his report.
Whether the offender is right about the relative importance of the need for counselling over rehabilitation is a matter beyond the expertise of the Court. It is a matter that Community Corrections will no doubt consider and determine once the offender is released on parole to be supervised by them. Nevertheless, for present purposes, it may simply be noted that the offender has a growing awareness of the issues that underlie his offending, reporting that it has simply become his learnt behaviour. To my mind, together with several other matters, this leads me to have a more positive outlook on the prospects of his rehabilitation than others have previously had.
Those further matters are first, the offender's expression that he is "fully sick of being in jail", secondly, that while the custodial records relating to the offender showed that he has had many transgressions against the rules while in custody, he seems most recently to have had a period of significant improvement. He is now engaged in the sought after and trusted occupation of sweeper. Further, in his evidence, he explained that while he was on bail last year, he took active steps to find housing and to otherwise engage with the social security services. This includes what he reported as a positive relationship with the author of the Sentencing Assessment Report.
That said, the risk of reoffending must still be high given his background and, given his apparent lack of genuine remorse, his prospects of rehabilitation must still be rather guarded.

Parity

The offender had 2 co-offenders: Soussan in respect of the second set of offences and Gilewsky in respect of the third and fourth sets.
In those circumstances, the principle of parity has some operation. That is a principle of equal justice that requires, as far as the law permits, that like be treated alike and that differential treatment be meted out to reflect differences between those that are relevantly different. Complications arise where, as here, the co-offenders are charged with different offences and are dealt with in different courts.
The relevant similarities between all of the offenders are that they have significant criminal histories, were on conditional liberty at the time of the offences and had more or less the same level of culpability for what they did.
On the other hand, the other 2 co-offenders were each dealt with summarily in the Local Court which has a jurisdictional limit in respect of sentences of imprisonment. The offender was charged with more offences that Gilewsky, however, Gilewsky was sentenced in respect of a number of matters which are to be dealt with in respect of the offender on a Form 1.
Gilewsky was sentenced to an aggregate term of imprisonment of 8 months and 7 days taking into account 5 months and 23 days of pre-sentence custody. This was to be served by way of an Intensive Correction Order. The indicative sentences for each of the 10 counts of dishonestly obtain benefit by deception was 2 months imprisonment and for the 1 count of enter dwelling with intent to steal (as opposed to the aggravated form with which the offender was charged) received an indicative term of 6 months.
Soussan was sentenced to a term of imprisonment of 12 months in relation to the drive vehicle taken without the consent of owner. This was to be served by way of an Intensive Correction Order. He received a fine of $750 in respect of the offence of drive whilst disqualified.
I do not agree with the Crown's submission that the parity principle has little role to play here: there remain relevant similarities between both the offending and the subjective cases of each of the co-offenders that need to form part of the overall synthesis involved in determining the appropriate sentence. The relevant differences mean, though, that that role must necessarily be weighed in a broad and impressionistic way.

Synthesis

As I said at the outset, the offender's significantly deprived background has a large impact on the appropriate sentence. It has been causative of and, to a large extent, explains the offender's criminal history and these present offences. His moral culpability for them is far lower than someone with a so-called 'normal upbringing'. This reduces the weight to be given to several of the purposes of sentencing, in particular, general and specific deterrence, and increases the weight to be given to rehabilitation. That will be the most effective way of protecting the community in the future. That said, the Court's duty still requires that the offender be punished for his crimes, that they be denounced, and his victims be vindicated.
In addition to those matters, I must have regard to the maximum penalties for these offences and the objective seriousness of each offence. Further, taking into account the matters on Forms 1, the penalty for each of the related principal offences must be increased slightly to account for the need for retribution arising from the additional criminality of those offences.
Assessing all of those matters, it is plain that the only appropriate penalty is one of imprisonment. The number of offences and the short period in which they were committed makes an aggregate sentence appropriate. I indicate the following sentences for each principal offence with some rounding both up and down: Offence Indicative sentence Larceny (09/03/2021) 12 months (less 25%) = 9 months Dishonestly obtain financial advantage by deception (09/03/2021, $111.40, Stanmore Shell) 9 months (less 25%) = 7 months Drive conveyance taken without the consent of owner (17-18/03/2021) 15 months (less 25%) = 11 months Dishonestly obtain property by deception (31/03/2021, $4,007.80, JB HI FI) 9 months (less 25%) = 7 months Drive conveyance taken without the consent of owner (31/03/2021) 12 months (less 25%) = 9 months Dishonestly obtain financial advantage by deception (09/03/2021, $4,000, ATM withdrawal) 9 months (less 25%) = 7 months Aggravated enter dwelling in company with intent to steal (06/04/2021) 2 years (less 25%) = 18 months S166 matter - Never licensed person drive (prior offence) 2 months (less 25%) = 1.5 months and a disqualification period of 6 months

There should be some notional accumulation to reflect the different sets of offences, however in light of the totality principle, there should also be some concurrency to recognise that there were a number of offences committed as part of 1 course of offending. I assess the appropriate aggregate sentence to be 3 years and 6 months.
The offender's need to address his underlying mental health, his requirement for close supervision on release from custody and the very real risk of further ingraining institutionalisation constitute special circumstances which warrant a reduction in the ratio provided for by the legislation. The appropriate non-parole period is 1 year and 10 months.
The appropriate commencement date presents difficulties. The offender has been in custody since 12 April 2021 apart from about 2 months when he was granted bail to allow him to participate in residential rehabilitation programs. However, the time spent in custody has not been solely referable to these matters. First, because of these offences, his parole was revoked with effect from the date of his arrest, namely, 12 April 2021. That sentence was to expire on 26 August 2022, but the offender was released on bail on 18 July 2022. On 25 August 2022, he was arrested for an unrelated matter and was bail refused. He was then bail refused on the present matters on 8 September 2022. On 28 February 2023 he was again granted bail but was arrested on 23 March 2023 pursuant to a bench warrant issued when he failed to attend Court. He was again bail refused. In April 2023, he was sentenced in the Local Court in respect of 3 offences committed in 2022. Two of those offences attracted an aggregate sentence of 18 months commencing on 29 September 2022 with a non-parole period that will expire on 28 July 2023.
The length of the parole period that the offender was to serve as a result of these offences means that there was some possibility that parole would have been granted earlier than his eventual release on bail in July 2022. Given, too, that I have counted the offender's breach of a condition of his liberty as an aggravating factor, it would be unfair not to backdate the sentence to some degree. I also have to consider the issue of totality in respect of the sentence imposed in April this year. Allowing part of the time spent serving the balance of parole period in custody, and some concurrency with the sentences imposed in April 2023, it is appropriate to backdate the commencement of this sentence to 8 November 2022.

Orders

I make the following orders: 1. The offender is convicted of each principal offence. 2. The offender is sentenced to an aggregate term of imprisonment of 3 years and 6 months commencing on 8 November 2022, with a non-parole period of 1 year 10 months expiring on 7 September 2024. The balance of the term is 1 year 8 months, expiring on 7 May 2026. 3. The offender is first eligible for parole on 7 September 2024. 4. The offender is disqualified from driving for a period of 6 months.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2023

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