AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 23 November 2018

R v Longbottom

[2018] NSWDC 351

Fraud & dishonestyTheft & property
CRIMINAL LAW OFFENCES ENTER DWELLING WITH INTENT TO STEAL AGGRAVATED BREAK ENTER AND STEAL INDICTABLE OFFENCE SENTENCING AGGRAVATING FACTORS

Citation: R v Longbottom [2018] NSWDC 351
Court: District Court of New South Wales
Date: 23 November 2018
Judge: Scotting DCJ

Background

The offender pleaded guilty in the Local Court to five principal offences committed across November 2015 in Sydney's eastern suburbs: two counts of dishonestly obtaining property by deception, one count of break enter and steal, one count of aggravated break and enter and commit a serious indictable offence, and one count of aggravated enter dwelling. A series of related offences were listed on Form 1 documents for the court to take into account at sentencing.

The offences followed a consistent pattern. The offender entered or gained access to private homes, stole wallets, handbags, and the credit cards within them, and then used those cards at service stations, fast food outlets, grocery stores, and retail shops within hours of each theft. Victims included residents of Randwick, Bondi, South Coogee, North Bondi, and Bondi Beach. In one incident, the offender was caught inside a victim's home by the victim herself; in another, a resident returned home to find the offender standing in the lounge room holding her purse.

The offender was arrested in November 2015, and the matter proceeded to the District Court for sentencing. The agreed facts indicated she had acted, at least in part, under duress from her then partner.

  • What was the appropriate objective seriousness of the offences, taken individually and in combination?
  • What weight should be given to the offender's claim of duress as a mitigating factor?
  • How should significant personal mitigating factors, including serious health problems and the needs of a dependent child, affect the sentence?
  • Whether an aggregate sentence was appropriate under section 53A of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the circumstances justified serving the sentence by way of an Intensive Correction Order rather than full-time custody.
  • Whether "exceptional hardship" to the offender's son was established, warranting a finding of special circumstances.

Decision

Scotting DCJ treated the offences as falling in the low to mid range of objective seriousness, notwithstanding that break-ins into private dwellings are always regarded as serious criminal conduct. The pattern of offending across multiple victims over a short period, combined with the use of stolen cards shortly after each theft, was an aggravating feature. The offender's prior criminal record was also an aggravating factor.

On duress, the court accepted that the offender's then partner had placed her under pressure to commit the offences, and treated this as a mitigating factor, though duress of this kind does not excuse criminal conduct. The offender's guilty plea attracted a sentencing discount, and the court accepted that she demonstrated genuine remorse.

The offender's personal circumstances received significant attention. She had serious health problems, and her son had significant needs that were best met by his mother's presence and good health. Applying the principles in Dipangkear v R, the court found the hardship to her son was highly exceptional, justifying a finding of special circumstances.

Applying the totality principle and taking into account all Form 1 matters, the court determined that an aggregate sentence of three years' imprisonment was appropriate. Given the offender's rehabilitation prospects and the exceptional hardship finding, the court concluded the sentence could properly be served by way of an Intensive Correction Order.

Orders Made

  • The offender was convicted of each of the five principal offences.
  • An aggregate sentence of three years' imprisonment was imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999, commencing 23 November 2018 and expiring 22 November 2021.
  • The sentence was ordered to be served by way of an Intensive Correction Order (ICO) pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999.
  • Standard ICO conditions applied: no further offending, and submission to supervision by a Community Corrections Officer.
  • An additional condition required abstention from all illicit and non-prescribed prescription drugs.
  • The offender was directed to report to the City Community Corrections Office by 4pm on 30 November 2018.

Key Takeaways

  • Duress falling short of a complete defence can still operate as a mitigating factor at sentencing, though its weight depends on the circumstances and does not reduce the objective seriousness of the underlying conduct.
  • Where a dependent child has significant special needs, hardship to that child caused by a parent's imprisonment may rise to the level of "highly exceptional" hardship, warranting a special circumstances finding. The court applied Dipangkear v R [2010] NSWCCA 156 in reaching this conclusion.
  • An aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 was appropriate where multiple related offences spanning a short period were dealt with together, provided the court identified what individual sentences it would otherwise have imposed.
  • Under section 66 of the Crimes (Sentencing Procedure) Act 1999, a three-year term of imprisonment is not automatically served in full-time custody; an Intensive Correction Order remains available where the offender's circumstances and rehabilitation prospects support it.
  • A consistent pattern of entering private homes and using stolen credit cards across multiple victims, even over a relatively short period, will be treated as a significant aggravating feature, notwithstanding mitigating personal circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(1), 112(1)(a), 112(2), 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7(1), 53A, 66

Cases
- Dipangkear v R [2010] NSWCCA 156
- Hoskins v R [2016] NSWCCA 157
- R v Borkowski (2009) 195 A Crim R 1
- R v Todorovic [2008] NSWCCA 49
- R v Thomson & Houlton (2000) 49 NSWLR 383