Penalties for Stealing from a Dwelling House in NSW

By Sahar Adatia and Jimmy Singh.

The mind of a burglar is one regularly associated with dysfunctional expertise – an ability to think outside the box and calculate every move.

They don’t simply bust in to property on a whim. Instead, the job is often thoroughly planned, and they – along with your valuables – are gone in a matter of minutes.

Well, that is, for most robbers.

On 4 January 2019, a burglar decided to enter a Melbourne home, upon which security cameras captured what would be a bewildering two hours of strange thievery and odd tasks inside the residence.

According to video footage obtained by 9News, the male offender, wearing sunglasses and carrying a bag over his shoulder, heedlessly wandered up the Laverton property driveway of Steven Freeman.

He was then greeted by a sociable German Shepard named Jesse, who he tried to calm down, before climbing over the fence and walking bare foot over the back door.

Indeed, in a case of perplexing behaviour, upon entering the property, the burglar did not make a quick dash for the master bedroom in search for cash, jewellery, phones, credit cards or other valuables.

Instead, he proceeded to raid the truck driver’s fridge and then dawdled around for the next two hours.

Burglar Eats Cadbury Favourites, Puts Load of Washing On, and Cuts Toenails

According to a puzzled Mr Freeman, the burglar allegedly engaged in a series of strange tasks during his stay.

“He ate all my Cadbury Favourites,” Mr Freeman said, noting that the thief did, however, leave behind all the Turkish Delights.

“There were several cans of drink which he demolished… he probably would have cooked himself dinner if I didn’t come home about midday.”

The intruder then decided to put a load of washing on.

“I had probably enough laundry powder for two days, but that’s all gone,” Mr Freeman said.

The man also cut his toenails in the bathroom.

As Mr Freeman returned to his Melbourne home, the imposer was about to jump in the shower. Instead, with his pile of washing and the 55-year-old victim’s speakers, the man fled the scene, leaving behind his underwear.

“I suspect he was going to have a shower and get changed into clean ones… which he’d just washed,” Mr Freeman said, referring to the intruder’s behaviour as “strange”.

Investigators Suspect 42-Degree Heat may be to Blame

Given Friday’s 42-degree weather, police investigating the robbery suspect the offender, who is described as Caucasian in appearance, may have been homeless and was trying to seek refuge inside the home.

There are a number of vacant properties in the area.

“It’s been happening apparently to a few houses around the area according to local police,” Mr Freeman said.

“There’s a creek down the road… he could have jumped down the creek if it was hot,” he said.

“Or he could get his own house, or a job. That could help.”

The intruder is believed to be aged in his 30s.

Understanding Burglary and Home Invasion in Australia

According to the Australian Institute of Criminology, burglary is defined as the “unlawful entry of a structure with the intent to commit an offence where the entry is either forced or unforced”.

Unlawful entry with intent offences can include burglary, break and enter offences, and some theft offences. This ranges from offences where property is taken or where no property is taken.

According to the Australian Bureau of Statistics’ Crime Victimisation Australia 2015-16 report, of the 9 million households in Australia, 185,900 experienced at least one instance of unlawful entry to their home, garage or shed. This is roughly one house broken into every 3 minutes.

It can take as little as five minutes for a burglar to enter a property. So, leaving the house unlocked while off for a quick stroll around the block can be disastrous for the home.

Meanwhile, the most popular items grabbed in home thefts, in order, include cash, laptops, jewellery, cameras, mobile phones, wallets or handbags, identification documents, TVs, computer or video games, watches and power tools.

The Offence of Stealing From a Dwelling House

In NSW, it is an offence to steal property from a dwelling house – which, put simply, refers to situations where you are alleged to have stolen items from somebody’s home.

What is a “dwelling house”? Section 4 of the Crimes Act 1900 (NSW) defines this as including a building or structure intended for occupation and capable of being occupied, even if it’s never occupied. It also includes a boat or vehicle where a person lives in, or any building or structure that is in the same curtilage as the dwelling-house “and occupied therewith or whose use is ancillary to the occupation of it.”

In a recent decision of the case of DPP v Williams [2018] NSWSC, the accused person and 2 others entered the secure underground car park of an apartment complex. One of them had broke the window of a vehicle that was owned by a resident before taking a wallet from it.

The court said that the underground car park of an apartment complex includes the same ‘curtilage’ as the resident’s dwelling. This means that the car park is ancillary to the dwelling, falling within the definition of “dwelling-house”.

It must be noted that this offence differs from the offence of “break, enter and steal,” which requires there to be a “breaking and entering” as an element of the offence for a person accused to be found guilty. “Breaking and entering” can include actually breaking an object, window or door to enter or entry by opening an un-latched window or opening a closed but un-locked door.

In contrast, stealing from a dwelling house refers to cases where, for example, property has simply been entered without a “breaking”.

The key difference in the offence of stealing property in a dwelling-house is that the police are only required to prove that you stole something from a place that is considered to be a dwelling house. Police are not required to prove that there was a break-in.

The Law and Penalties for Stealing from A Dwelling-House in NSW

The offence of stealing property in a dwelling-house carries a penalty of up to 7-years imprisonment under section 148 of the Crimes Act 1900 (NSW).

To be guilty for this offence, the police prove beyond reasonable doubt that you stole something in a dwelling-house.

What does “stealing” mean under the law? Stealing is also referred to as “larceny”. Stealing occurs where:

1. You take and carry away someone else’s property; and
2. Where that property was owned or possessed by someone else; and
3. You had the intention of permanently depriving the owner of the property at the time; and
4. Where the owner did not consent to you taking it away.

The property carried and taken away can include any property, including the stealing of a motor vehicle or vessel which is a separate offence.

Common defences to the charge of larceny or stealing include, having a claim of right where you ‘steal’ the property while holding an honest belief that you have a legal entitlement to it to justify the stealing. Other defences include necessity or duress.

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