Renee Longbottom appears for sentence after she pleaded guilty in the Local Court to the following offences:
sequence 3 - dishonestly obtain property by deception contrary to section 192E(1)(a) Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment. When dealing with sequence 3 the offender asks the Court to take into account 1 count of dishonestly obtain property by deception on a Form 1.
sequence 6 - break enter and steal contrary to section 112(1)(a) Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment. When dealing with sequence 6 the offender also asks the Court to take into account 1 count of dishonestly obtain property by deception on a Form 1.
sequence 8 - aggravated break and enter and commit serious indictable offence contrary to section 112(2) Crimes Act 1900. The maximum penalty for the offence is 20 years imprisonment. When dealing with sequence 8 the offender also asks the Court to take into account 5 counts of dishonestly obtain property by deception and 1 count of enter dwelling with intent to steal on a Form 1.
sequence 17 - dishonestly obtain property by deception contrary to section 192E(1)(a) Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment. When dealing with sequence 17, the offender also asks the Court to take into account 4 counts of dishonestly obtain property by deception on a Form 1.
sequence 29 - aggravated enter dwelling contrary to section 111(1) Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment.
The parties presented an Agreed Statement of Facts that can be summarised as follows.
At 4.30pm on Sunday 1 November 2015 Glenys Kouvelis was inside her house in Randwick. She left a black Cellini wallet sitting on the dining room table. The wallet contained a St George bank debit card and a National Australia Bank eftpos card, her NSW driver's licence and her Medicare card as well as $250 in cash. At about 7pm Ms Kouvelis noticed her wallet was missing. At about 10.30pm Ms Kouvelis accessed internet banking and noticed a number of unauthorised transactions on the debit card.
At about 9.50pm on 1 November 2015 the offender and her partner attended McDonald's at Kingsford. In two transactions the offender ordered food and beverages and paid for them with Ms Kouvelis' debit card in the total sum of $27.15. The offender was captured on CCTV footage (Form 1 for sequence 3).
At 10.15pm on 1 November 2015 the offender used Ms Kouvelis' debit card to purchased food, drinks, cigarettes and two Apple iTunes Gift Cards in three separate transactions at the Coles Express Service Station at Randwick, in the total sum of $165.75 (sequence 3).
At 7.30am on 2 November 2015 Matthew Lewis left his apartment in Bondi, securing the front and back doors. At 1.45pm Melissa McDonald, Mr Lewis' partner at the time, entered the apartment through the locked front door. On entering the apartment Ms McDonald saw the offender who was walking through the hallway. Ms McDonald confronted the offender and asked her what she was doing inside the apartment. The offender claimed to be there seeing a friend. Ms McDonald observed that the rear door of the apartment was open. Ms McDonald took a photograph of the offender and the offender's driver's licence and then searched the offender's bag before asking her to leave. On 4 November 2015 Mr Lewis accessed internet banking and noticed a number of unauthorised transactions had been made using his American Express Card (sequence 6).
The offender used Mr Lewis' American Express Card at Big W at Pagewood to make a total of four purchases of clothing and iTunes Gift Cards in the total sum of $150. The offender was captured on CCTV footage (sequence 23 on Form 1 for sequence 6).
At about 3.45pm on Saturday 21 November 2015 Juliette Scotto returned home to her house in South Coogee. She entered through the front door, leaving it closed but unlocked as her husband was out the front of the house doing some gardening. Ms Scotto placed her black handbag in the lounge room. At about 3.56pm the offender is captured on CCTV footage entering the garage through an open side door. While in the garage the offender entered Paul Scotto's motor vehicle, which was unlocked in the garage. The offender searched the vehicle and its contents (sequence 28 on Form 1 for sequence 8).
At about 4.05pm the offender returned to the house and was captured on CCTV footage entering the house through the closed but unlocked front door stealing Ms Scotto's handbag. The handbag contained her pension card, her driver's licence, about $150 in cash, a Citibank Visa Card and a Westpac Mastercard. The offender was captured on CCTV leaving the property with Ms Scotto's handbag. At about 5.10pm Ms Scotto noticed her handbag was missing (sequence 8).
At about 4.23pm on 21 November 2015 the offender used Ms Scotto's Citibank Visa Credit Card to make two separate transactions at a deli in Maroubra to the total value of $113.45. The offender was captured on CCTV footage (sequence 9 on Form 1 for sequence 8).
At about 4.53pm on 21 November 2015 the offender used Ms Scotto's Citibank Visa Credit Card to purchase goods to the value of $53 at a tobacconist in Coogee. The offender was captured on CCTV footage (sequence 11 on Form 1 for sequence 8).
At about 4.58pm on 21 November 2015 the offender used Ms Scotto's Citibank Visa Credit Card to make two separate purchases at the Caltex Service Station in Coogee in the total sum of $132.30. The offender was captured on CCTV footage (sequence 12 on Form 1 for sequence 8).
At about 5.34pm on 21 November 2015 the offender used Ms Scotto's Citibank Visa Credit Card to purchase goods to the value of $59.50 at a greengrocer in Paddington. The offender was captured on CCTV footage (sequence 14 on Form 1 for sequence 8).
At about 5.36pm on 21 November 2015 the offender used Ms Scotto's Westpac Mastercard to purchase goods to the value of $57.80 at a greengrocer in Paddington. The offender was captured on CCTV footage (sequence 15 on Form 1 for sequence 8).
At about 6.00pm on 17 November 2015 Alana McMahon arrived at her home in North Bondi and placed her handbag on the bed. The handbag contained a wallet and another wallet was on her bedside table. At about 6.30pm Ms McMahon left the house. At about 8.00am on Thursday 19 November 2015 Ms McMahon realised her two wallets were missing. She checked her bank accounts and noticed several unauthorised transactions on two of her credit cards.
At about 4.25pm on 18 November 2015 the offender used Ms McMahon's Amex Credit Card to purchase soft drink to the value of $26.52 at the Caltex Service Station at North Bondi. The offender was captured on CCTV footage (sequence 16 on Form 1 for sequence 17).
At about 4.26pm on 18 November 2015 the offender used Ms McMahon's CBA Credit Card to purchase cigarettes to the value of $53.70 at the Caltex Service Station at North Bondi. The offender was captured on CCTV footage (sequence 17).
At about 5.43pm on 18 November 2015 the offender used Ms McMahon's Amex Credit Card to purchase food to the value of $22.15 at the McDonald's at Bondi. The offender was captured on CCTV footage (sequence 18 on Form 1 for sequence 17).
At about 6.12pm on 18 November 2015 the offender used Ms McMahon's Amex Credit Card to purchase two items of clothing to the value $105.98 at Running Bare at Bondi. The offender was captured on CCTV footage (sequence 19 on Form 1 for sequence 17).
At about 10.56am on 19 November 2015 the offender used Ms McMahon's Amex Credit Card to purchase food to the value of $14.30 at the McDonald's at Bondi. Later that day, around 9.43pm the offender used Ms McMahon's Amex Credit Card to purchase food to the value $8.90 at McDonald's Bondi. The offender was captured on CCTV footage (sequence 20 on Form 1 for sequence 17).
At about 6.30pm on Friday, 27 November 2015 Sarita Lam was at home in her house at Bondi Beach. Ms Lam left her bedroom and noticed the offender standing in the lounge room holding Ms Lam's pink purse in her hand. The front door of the house was open. Ms Lam was scared and confused as to why the offender was in her house. Ms Lam asked the offender what she was doing and took the wallet off her before looking through it to see if anything was missing. Ms Lam noticed that her Commonwealth Bank Mastercard and American Express Credit Card were both missing from the wallet. Ms Lam asked to the see the offender's wallet to recover her missing property. Ms Lam observed a number of cards in the offender's wallet. Ms Lam asked the offender for identification and cancelled her credit cards in front of the offender. The offender provided Ms Lam with her NSW driver's licence in the name of Renee Longbottom. Ms Lam wrote down the details, before the offender left (sequence 29).
At 9.00am on 30 November 2015 the offender was arrested outside her home in Bondi with her partner.
The offender first appeared for sentence on 6 October 2017, at which time the matter was adjourned pursuant to section 11 Crimes (Sentencing Procedure) Act 1999 to 21 September 2018. The matter was adjourned to 26 October 2018 for sentence, before being adjourned to 23 November 2018 for the purposes of receiving a report as to whether the offender was suitable to perform community service.
The Court received a Pre Sentence Report (PSR) dated 3 October 2017. The contents of that report can be summarised as follows.
The offender has been known to Corrective Services since 1998. She has previously been the subject of Pre Sentence Reports, parole orders and supervised bonds. Her response to previous supervision has been satisfactory with case management mainly focussed on intervention with substance abuse.
At the time of the PSR the offender was 37 years of age living at home with her parents in Botany. The offender has a daughter aged 19 and a son aged seven. The offender's son attends a special school that assists with his Attention Deficit Hyperactivity Disorder and Tourette's Syndrome. The offender's mother assists with his care, by housing him and driving him to and from school each day and to appointments when necessary.
The offender left school at the age of 14 and nine months and worked in retail for a period of three years. She gave a history of drug use commencing at age 13 when she started using cannabis progressing to heroin at aged 17. She struggled with illicit drug use for about eight years from age 19. After giving birth to her son in 2010 she maintained a drug free lifestyle until relapsing in 2015, again using heroin at the time of the offences. Since the date of her arrest she reported that she has been abstinent from illicit substances. The offender has been on the methadone program for the last 10 years. The treatment provider verified that she has been attending their service since July 2015 and has presented as stable and compliant with treatment.
The offender agreed with the Police Facts and stated that she was embarrassed for committing the crimes. She told the author of the PSR that she could not recall the events of the offences as a result of her drug use at the time she committed the offences to finance her drug habit.
The offender was assessed as a medium risk of re-offending. She was assessed as suitable for supervision and community service.
The Court has received an updated Sentencing Assessment Report dated 16 November 2018 (SAR). The SAR provides that the offender is unsuitable for community service as a result of the need to care for her son.
[2]
Offender's Case on Sentence
The offender tendered a letter from Claire McMahon, a senior transition worker with the Community Restorative Centre (CRC) dated 4 October 2017.
CRC is an organisation that supports ex-prisoners and their families with a focus on providing transitional support to offenders leaving custody. The Women's Transitional Program is a voluntary program. Ms McMahon reported that the offender had been living in community housing since October 2016.
CRC has been trying to secure her long term housing so that she could reside with her seven year old son. The offender's son has complex emotional behavioural issues and has been formally diagnosed with ADHD and Tourette's Syndrome. He has difficulty at school and was attending a school for his complex needs four days a week and a main stream public school for one day per week. The offender's son was living with his grandmother as he requires assistance with transport to and from school.
Ms McMahon reports that the offender has complex physical and mental health needs of her own. She has been diagnosed with an anxiety disorder, obsessive compulsive disorder, depression and a chronic heart condition, all of which require daily medication. In 2009 the offender underwent double bypass surgery whilst in custody following a heart attack on 27 May 2008 at a police station. The offender is under the ongoing care of a cardiologist.
In the months leading up to her arrest on 30 November 2015 CRC had become aware that the offender was in an abusive domestic relationship. The abuse included physical, emotional, psychological, social and verbal abuse. The offender had experienced prolonged physical assaults with the use of hands and other household objects. She was physically assaulted with a metal pole on one occasion. She was usually assaulted in areas of her body that could be covered by clothing. Her partner deliberately isolated the offender from her support network. He was monitoring her mobile phone and she was only allowed to access it with permission.
Prior to 30 November 2015 the offender had reported that she was finding it difficult to cope psychologically and experiencing high levels of anxiety and depression. She was in a highly emotional state experiencing prolonged low mood, lack of appetite and lack of sleep. CRC had encouraged the offender to attend the emergency room for a mental health assessment.
Both the offender and her partner have a history of substance use particularly heroin which has resulted in a long term opioid dependency. Her partner relapsed in the months prior to November 2015 and was using heroin regularly. He blamed the offender for his drug taking and used the drug in front of her, and encouraging her to use with him as a means to make up for what she had done. As a result of his psychological manipulation the offender genuinely believed she had been the cause of his relapse and began using heroin herself in the beginning of November 2015.
After being granted bail on the 8 December 2015 she re-engaged with CRC and other services, including the CRC's transitional Alcohol and Other Drug (AOD) project. The offender has been referred to the Kobi Clinic for Methadone Dosing and has remained abstinent whilst on bail. The offender attends six-weekly appointments with the doctor at the Kobi Clinic and is required to provide regular urine samples. As a result of being able to supply clean urine samples for an extended period the offender receives the maximum number of take away doses the Clinic is able to provide.
CRC also referred the offender to a wellbeing group facilitated by a clinical psychologist, Kara Homes. The offender has attended a number of groups which focus on building resilience and coping with anxiety. This group therapy continues to be available to the offender in the community.
The offender tendered a number of reports confirming her participation in group counselling and drug counselling.
The offender tendered a number of reports prepared on behalf of Dr Karen Zwi, a community Paediatrician at the Sydney Children's Hospital at Randwick relating to the offender's son written in the period 28 June 2016 to 29 August 2016.
The offender's son was being reviewed at that time for escalating behaviour leading to concerns at school and reduction of the amount of hours that he was permitted to attend. The reports described the child's behaviour as very disruptive. He can be aggressive towards other children and teachers at times. He suffers a number of repetitive and uncontrolled movements and uncontrolled verbal expression. It is clear from the reports he has been unable to attend school at times as a result of the severity of his condition. He has been treated with medication and that medication has been reviewed from time to time. He has also experienced sensory issues that have led to problematic behaviour including biting his clothes and the desire to inappropriately touch other children's clothes. The reports establish that the offender's son's condition is very serious and continuing.
The offender tendered a letter from her daughter, Sherie Manesis, dated 4 October 2017. Ms Manesis informs the Court that the care for her brother is complex and provided by her grandmother, her mother and to some extent, herself. In particular the offender cares for her son on the weekends and in school holidays as well as assisting her mother from time to time when required. Ms Manesis expresses concern as to what would happen to her brother should her mother be sent to gaol.
The offender tendered a series of reports from Dr Jo-Dee Lattimore, Consultant Cardiologist. Those reports confirm that the offender's cardiac condition was serious in the period 2008 to 2010. I accept that it requires ongoing monitoring.
The offender tendered a letter to the Court dated 6 October 2017. In that letter the offender acknowledged the seriousness of her offences and conduct and the effects it had on the victims. She describes herself as being completely embarrassed and ashamed of what she did in November 2015. She describes herself as being very surprised at reverting back to drug use after years of stability.
The offender informed the Court that when she committed the offences that she had been using heroin for about three to four weeks. At the time she was in a relationship that became controlling and violent. Her partner was monitoring her phone calls and would withhold her medications. She tried to leave her partner but he was very manipulative and she ended up going back. He used heroin in front of her which was very confronting. He told her that it was all her fault that he was using heroin. She described herself as becoming depressed and alone and as a result started using heroin with him. She spent all her money on heroin and the abuse got worse. He took her out for a walk and told her to steal anything she could find on a number of occasions. She does not remember much about what she did but she was concerned that her partner would be violent towards her if she did not do what he asked her to do. He would call her every five minutes to find out where she was and if she had stolen anything. He was with her when she used the credit cards to purchase goods and would stand over her when she made the purchases.
The offender has subsequently watched the CCTV footage of herself and it made her feel sick. She did not recognise herself and it bought home to her the enormity of what she had done.
After she was arrested she was kept in the clinic in custody because of her heart condition and anxiety. She was very upset by the fact that her daughter was overseas at the time when she was arrested and only found out that she was in custody when she arrived back. The offender's daughter has told her about the impact her earlier periods of incarceration had on her growing up. The offender is very concerned not to repeat the same history with her son. Her son now needs a lot more attention and is very demanding, giving rise to occasions when he cannot be controlled by his grandmother. He has an emotional attachment to the offender and gets anxious if she does not see him regularly.
The offender was called to give evidence before me on 6 October 2017 and was cross-examined. Her evidence was consistent with the content of her letter to the Court and the matters I have already referred to. The offender was a thoroughly impressive witness. I have no hesitation in accepting that she is truly remorseful and dedicated to remaining abstinent. I was impressed with the insight of the offender concerning her need to care for her health and for the needs of her son. I accept that she was truly ashamed of the example she had set for her daughter.
The offender tendered an updated report from Claire McMahon of CRC dated 25 October 2018. Since October 2017 the offender's son's behaviour has improved significantly and he is now at a public school on a full time basis. Ms McMahon puts this down to the stability of his home environment, including the presence of his mother. Since October 2017 the offender has been hospitalised on four occasions due to urinary retention and lower abdominal pain. She has required treatment with a catheter on different occasions for weeks at a time. She continues on methadone treatment. She is now being provided with support by CRC on an on-needs basis as she presents as stable in all aspects of her life.
[3]
Objective Seriousness
The offences are objectively serious. They demonstrate a pattern of intrusion into the victims' homes and stealing their personal belongings which were then used to commit fraud offences. In each of sequences 6, 8 and 29 it is appropriate to note the following, the offending occurred during the day, there was no violence or threat of violence, there was no damage caused, the offender was alone, the value of the property stolen was minimal and there was minimal amount of planning.
The loss incurred (including for the substantive offence and the Form 1 offences) in sequence 3 was $192.90, sequence 6 was $150, sequence 8 was $566.05 and sequence 17 was $205.03.
In sequence 6 and sequence 29 there was some contact with occupants of the homes, causing them some fear and concern.
I am satisfied that the offender was acting under duress as a result of the circumstances of her relationship in which she was a victim of domestic violence. This is relevant to the objective seriousness of the offences because she was committing the offences as a result of the psychological manipulation and threats of physical violence that had been acted on in the past. The extent of the abuse led to her relapse into illicit drug use, which reduced her ability to resist the duress being applied to her and led to the commission of the offences.
[4]
Deterrence
General deterrence is significant to the offences before the Court. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with appropriate punishment.
There is a need for specific deterrence. The offender has a history of offences related to her drug addiction and the penalty imposed on her needs to convey the message that she must address her offending behaviour.
[5]
Aggravating Factors
The offender has a record of previous convictions: section 21A(2)(d) Crimes (Sentencing Procedure) Act 1999. The offender has a lengthy criminal record by reason of her drug addiction including a number of similar offences and a large number of dishonesty offences.
Sequences 6, 8 and 29 were committed in the home of the victim: section 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999. This aggravating factor recognises the breach of the sanctity of the home and the right of victims to feel safe there.
The offences were committed for financial gain: section 21A(2)(o) Crimes (Sentencing Procedure) Act 1999.
[6]
Mitigating Factors
The offender was acting under duress: section 21A(3)(d) Crimes (Sentencing Procedure) Act 1999. I am satisfied on the balance of probabilities that the offender was acting under the duress caused by the physical and emotional abuse of her partner. This psychological manipulation led her to relapse into drug use after a lengthy period of abstinence and rehabilitation. I accept the offender's evidence that she would have subjected herself to further abuse had she not been prepared to commit the offences.
The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated her ability to rehabilitate herself from drug addiction for lengthy periods. The offender has reconnected with her support services after the termination of her domestic relationship. She is actively involved in caring for her son who has special and indeed exceptional needs. I accept that she has been abstinent from illicit drug use following her arrest. I am satisfied on the balance of probabilities that the offender has good prospects of achieving long term drug abstinence again and thereby has good prospects of rehabilitation.
The offender entered a plea of guilty in the Local Court: sections 21A(3)(k) and section 22 of the Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The primary consideration in determining where in the range a particular case should fall is the timing of the plea so that the earlier the plea the greater discount R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.
[7]
Other Matters
The offender has significant health problems. She continues to suffer a significant heart condition, from which she has suffered a cardiac arrest and required surgery in the past. Her condition requires ongoing specialist monitoring. In addition, she has been suffering from urinary tract dysfunction that has required her hospitalisation on a number of occasions in the period of the section 11 adjournment.
The offender became addicted to drugs at a very early age and this should be considered as a mitigating factor because her addiction could not be classified as personal choice: R v Todorovic [2008] NSWCCA 49. The rehabilitative aspects of sentencing should assume a more significant role in those circumstances. The offences were committed as a direct result of the offender's addiction to heroin. I am satisfied that this is an exceptional case and that the offender is at the 'cross-roads' of her life. She has serious ongoing health conditions for which it would be very dangerous for her to continue with her addiction. The need to care for her son is also likely to discourage her from committing further offences or continuing with illicit drug use. The offender shows good insight into the circumstances of her life and how they led her to a relapse into heroin use. Finally, I accept that the offender understands that her mother and daughter will not necessarily continue to be in a position to provide care for her son in the future.
The offender's son has significant medical needs. The absence of the offender from his life will have a significant impact on him and also the offender's mother. The general principle is that hardship to a family member is the natural consequence of imposing a term of imprisonment and is not a mitigating consideration unless the hardship is "wholly", "highly" or "truly" exceptional: Hoskins v R [2016] NSWCCA 157 at [63]. If the Court is so satisfied it can suspend the sentence or impose a term of imprisonment that does not involve incarceration, shorten the length of the sentence or reduce the non-parole period: Dipangkear v R [2010] NSWCCA 156 at [34].
In my view the hardship to the offender's son is highly exceptional in this case. He has significant needs and it has been demonstrated that those needs are best met by the presence and health of his mother.
I have considered section 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate.
The offender is convicted of each offence.
This is an appropriate matter in which to impose an aggregate sentence pursuant to section 53A of the Crimes (Sentencing Procedure) Act 1999.
The sentence, after allowing for the discount and taking into account the offences on the Form 1 that I would have imposed if separate sentences were imposed, are:
sequence 3 - 6 months;
sequence 6 - 15 months;
sequence 8 - 18 months;
sequence 17 - 9 months; and
sequence 29 - 15 months.
I impose an aggregate term of imprisonment of 3 years.
I have considered section 66 of the Crimes (Sentencing Procedure) Act 1999 and consider that this is an appropriate matter that can be dealt with by ordering that the sentence be served by way of an Intensive Correction Order.
Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999 the sentence imposed is to be served by way of an Intensive Correction Order. The sentence will commence on 23 November 2018 and expire on 22 November 2021.
The offender must report to the City Community Corrections Office on or before 4pm on Friday 30 November 2018.
The standard conditions of the order apply:
1. The offender must not commit any offence; and
2. The offender must submit to supervision by a Community Corrections Officer.
The following additional conditions apply:
1. an abstention condition requiring abstention from all illicit and prescription drugs, unless prescribed by a medical practitioner.
If the offender fails to comply with the conditions of this order sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. These sanctions may include a formal warning, imposing more stringent conditions, or it may include the revocation of this order.
If the order is revoked, the offender may be required to serve all or some of the period of her sentence in full time custody.
Finally, the offender is directed to attend the Court Registry where a copy of this order will be explained and given to her.
[8]
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Decision last updated: 26 November 2018