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10
Court of Criminal Appeal 23 November 2020

Dellow v R

[2020] NSWCCA 301

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION INCONSISTENT VERDICTS WHETHER JURY’S VERDICTS RECONCILABLE APPEAL DISMISSED CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Dellow v R [2020] NSWCCA 301
Court: NSW Court of Criminal Appeal
Date: 23 November 2020
Judges: Leeming JA (with Bellew J and Wright J agreeing)

Background

The appellant was released on parole in December 2018 after serving sentences for knife possession and stalking. Less than four weeks later, in the early hours of 3 January 2019, he entered the apartment of an elderly male neighbour, subjected him to a violent assault, threatened to stab him, and stole a television and laptop. He also broke the window of an elderly female neighbour's ground-floor unit using a metal pole.

At trial in the District Court, the appellant was acquitted of entering the premises with intent to commit larceny (count 1) and of assaulting a police officer (count 5), but was convicted of assault with intent to rob (count 2), stealing property from a dwelling house (count 3), and intentional or reckless property damage (count 4). He received an aggregate sentence of three years and six months imprisonment, with a non-parole period of one year and nine months, backdated to 11 September 2019 (the expiry of his revoked parole sentence, not to his arrest date of 3 January 2019).

The appellant sought leave to appeal against his conviction on count 2 and against his sentence on two separate grounds. The Court of Criminal Appeal granted leave but dismissed the appeal in full.

  • Whether the guilty verdict on assault with intent to rob (count 2) was irreconcilably inconsistent with the acquittal on entry with intent to commit larceny (count 1), and therefore unreasonable
  • Whether the sentencing judge failed to apply the principles from Bugmy v The Queen (2013) 249 CLR 571 regarding the relevance of severe childhood deprivation to moral culpability
  • Whether wholly accumulating the aggregate sentence on the balance of the appellant's earlier sentence breached the principle of totality by failing to backdate the sentence to an earlier date

Decision

Conviction appeal: inconsistent verdicts

The unchallenged conviction for theft from a dwelling (count 3) established that the appellant had entered the victim's apartment and stolen his property. The only basis on which the two verdicts could be reconciled was that the jury was not satisfied, to the criminal standard, that the appellant had formed an intention to steal at the moment of entry, but was satisfied that he formed that intention during the subsequent attack on the victim. The victim's own evidence, particularly his inability to make sense of the appellant's repeated demand "Where is it?", was consistent with the appellant having entered for some other purpose and only deciding to steal once inside. The Court found this reconciliation was open on the evidence and the verdict was not unreasonable.

Sentence appeal: Bugmy principles

The appellant argued that the sentencing judge never mentioned Bugmy by name and thereby failed to apply its principles. The Court rejected this as a question of substance, not form. The sentencing judge had made extensive reference to the appellant's severely disadvantaged background, including his exposure to violence and substance abuse from childhood, and had treated those matters as relevant to his moral culpability. The absence of the case name from the reasons did not constitute appellable error.

Sentence appeal: backdating and totality

The appellant contended that the sentence should have been backdated to 3 January 2019 (the date of arrest) rather than 11 September 2019, on totality grounds. The Court applied the discretion recognised in Callaghan v R [2006] NSWCCA 58 and declined to disturb the sentencing judge's exercise of that discretion. The period between January and September 2019, during which the appellant's parole was revoked, was not a period in which he could realistically have obtained parole: he had committed the present serious offences shortly after release and had accumulated twelve internal prison infringements for fighting, intimidation, and related conduct during that period. The Court also noted that the sentencing judge had already made a substantial variation of the statutory ratio between the total term and the non-parole period in the appellant's favour, and found no appellable error.

Orders Made

  • Leave to appeal against conviction and sentence granted
  • Appeal dismissed

Key Takeaways

  • Apparently inconsistent jury verdicts do not require appellate intervention where a rational basis for reconciling them is disclosed on the evidence; in this case, it was open to the jury to find that the intent to steal was formed during the attack rather than at the point of entry.
  • A sentencing judge's failure to cite Bugmy v The Queen by name does not establish appellable error where the substance of that decision's principles (the relevance of severe childhood deprivation to moral culpability) is clearly addressed in the reasons.
  • In dismissing the totality ground, the Court confirmed that the discretion to backdate a sentence to a date earlier than the expiry of a preceding sentence is not exercised as of right; the circumstances of the offending and the realistic prospects of parole during the intervening period are material considerations.
  • Twelve internal prison infringements for fighting and intimidation during a period of revoked parole were treated as rendering it inconceivable that a parole grant could have occurred, weighing against any further backdating of the fresh sentence.
  • Under s 44(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an express finding of special circumstances is not required provided the variation of the statutory ratio is necessarily implicit in the sentencing judge's reasons.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 60, 95, 111, 148, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A
- Criminal Appeal Act 1912 (NSW), s 7

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
- Egan v Regina [2017] NSWCCA 206
- Farrell v R [2020] NSWCCA 195
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Pethybridge v R [2020] NSWCCA 185
- Prince v The Queen [2020] NSWCCA 268
- R v Markuleski (2001) 52 NSWLR 812; [2001] NSWCCA 290
- Roos v R [2019] NSWCCA 67
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151