Citation: R v Dela Pena; R v Whitehouse [2026] NSWDC 247
Court: District Court of New South Wales
Date: 23 March 2026
Judge: Bourke SC DCJ
Background
Two offenders, a man and a woman, appeared for sentencing following a burglary at a residential property at Salamander Bay on 12 January 2025. The woman had visited the property during the day and swum in the pool, before returning that evening with the man. Together they entered the home and removed 12 high-end wristwatches, including Rolex and Cartier pieces, with a total approximate replacement value of around $402,728.
Both offenders pleaded guilty to aggravated entry into a dwelling with intent to steal (under s 111(2) of the Crimes Act 1900, carrying a maximum of 14 years' imprisonment) and to stealing within a dwelling house (under s 148, carrying a maximum of 7 years' imprisonment). The male offender faced an additional charge under the Inclosed Lands Protection Act 1901 arising from a separate incident on 8 March 2025, where he and a co-offender were detected on CCTV at another residential property carrying bags and a large metal item before fleeing when the occupier turned on a light.
The female offender voluntarily attended a police station on 9 April 2025 after seeing a Facebook post about the stolen watches, identified herself as a participant, made admissions, and named her co-offender.
Legal Issues
- What sentence was appropriate for each offender, having regard to the objective seriousness of the offending and their individual circumstances?
- What discount should apply for early guilty pleas, and what additional discount (if any) should be given for the female offender's cooperation and assistance to police?
- What sentence structure was appropriate, including whether an Intensive Correction Order was suitable?
- How should totality principles apply, particularly in relation to the male offender's separate Local Court matter and the commencement date of his sentence?
Decision
Objective Seriousness and Aggravating Features
The court found the break-and-enter offending to be of moderate to moderately serious objective gravity. The aggravating feature giving rise to the s 111(2) charge was that the offending occurred at night. The absence of damage or ransacking was noted in the offenders' favour, though the very high value of the stolen property remained a significant factor.
Guilty Plea Discounts and Cooperation
Both offenders received a 25% discount reflecting the utilitarian value of their early guilty pleas. The court awarded the female offender a further 10% discount for her cooperation. Although the court accepted the Crown's submission that CCTV evidence would likely have identified both offenders regardless, her voluntary attendance at the police station, admissions, and identification of her co-offender warranted recognition.
Individual Circumstances
The court considered the personal circumstances of each offender, including background, mental health, substance use history, and prospects of rehabilitation. The female offender's emotional vulnerability and cooperation were reflected both in her discount and in the nature of the order imposed. The male offender's separate Local Court matter for similar unlawful entry offending, committed around the same period, was relevant to totality.
Totality and Sentence Structure
The court applied totality principles in fixing the commencement date of the male offender's aggregate sentence. Backdating to the date of arrest (11 April 2025) was rejected because it would have provided no effective punishment for the Local Court matter. The sentence was instead set to commence on 11 July 2025, three months after arrest. The male offender received an aggregate sentence with a non-parole period of two years and two months, running from 11 July 2025, with a head sentence expiring 10 October 2028 and the non-parole period expiring 10 September 2027. The female offender's sentence was ordered to be served by way of an Intensive Correction Order, with pre-sentence custody and time spent in residential rehabilitation taken into account in the overall determination.
Orders Made
- Both offenders convicted on the charges to which they pleaded guilty.
- Male offender (Dela Pena): aggregate custodial sentence imposed with a non-parole period of two years and two months, commencing 11 July 2025; non-parole period to expire 10 September 2027; head sentence to expire 10 October 2028.
- Female offender (Whitehouse): sentence ordered to be served by way of an Intensive Correction Order; pre-sentence custody and residential rehabilitation time taken into account.
- Inclosed Lands Protection Act offence (Dela Pena, sequence 2): dealt with pursuant to s 166 of the Criminal Procedure Act 1986 (no term of imprisonment).
Key Takeaways
- A 25% discount for early guilty pleas was applied to both offenders, consistent with the utilitarian value principle under the Crimes (Sentencing Procedure) Act 1999.
- Where an offender voluntarily surrenders to police, makes admissions, and identifies a co-offender, an additional cooperation discount may be warranted even if existing CCTV evidence would likely have established the offending independently.
- Totality principles operated not only to shape the overall sentence length but also to determine the commencement date of the aggregate sentence, with the court declining to backdate to arrest where doing so would neutralise punishment for a related Local Court matter.
- The District Court treated the absence of damage or ransacking during the burglary as a mitigating circumstance in assessing objective seriousness, while the high value of the stolen property and the fact that the offending occurred at night remained weighty factors.
- An Intensive Correction Order remained available as a sentencing option in this matter, with pre-sentence custody and time in residential rehabilitation taken into account in the overall determination rather than as a formal adjustment to the sentence length.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 111(2), 148
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Inclosed Lands Protection Act 1901 (NSW), s 4(1)(b)
Cases
- Bugmy v The Queen [2013] HCA 37
- Lane v R [2025] NSWCCA 113
- MacBlaine v R [2025] NSWCCA 52
- R v Ponfield (1999) 48 NSWLR 327
- Stanley v DPP [2023] HCA 3