Dellow v R

Court of Criminal Appeal (NSW)|2020-11-02|Before: Leeming JA, Bellew J, Wright J

Judgment

LEEMING JA: Mr Ethan Dellow stood trial in the District Court constituted by Judge and jury of twelve on an indictment containing five counts, all arising out of events in the early hours of 3 January 2019. Count 1 was a charge of entry with intent to commit a serious indictable offence, namely, larceny in circumstances of aggravation, contrary to s 111(2) of the Crimes Act 1900 (NSW). Count 2 was a charge of assault with intent to rob, and at the time use corporal violence, contrary to s 95(1) of the Crimes Act. Count 3 was a charge of stealing property in the dwelling house, contrary to s 148 of the Crimes Act. Count 4 was a charge of intentionally or recklessly damaging property, namely, two glass windows and a fly screen, contrary to s 195(1)(a) of the Crimes Act. Count 5 was a charge of assaulting a police officer while executing her duty and occasioning actual bodily harm, contrary to s 60(2) of the Crimes Act.

Factual background

The appeal against conviction requires close regard to the evidence bearing upon the events of the early hours of 3 January 2019. Although the trial was defended on the basis that the offences had been committed by someone other than the applicant, there was no controversy about any of the following matters for the purposes of the appeal.
The applicant was released on parole on 10 December 2018 following the completion of the non-parole period of concurrent sentences of imprisonment for 18 months, with a non-parole period of 9 months, for custody of a knife in a public place, and stalk/intimidate intending to cause fear or physical harm.
Three and a half weeks later, on 3 January 2019, the applicant was residing in Randwick in a three-storey block of flats owned by the Housing Commission. One of the victims, Mr Blachowski, resided in an adjacent block also owned by the Housing Commission, while another, Ms Partier, resided in the same block.
Shortly after midnight, police attended the applicant's unit as a result of noise complaints. They asked to enter, and he agreed. They gave evidence that the unit was largely unfurnished. "The unit itself was very bare. There was no furniture, just various like clothing items scattered throughout the unit". Photographs of the applicant's unit taken a few hours later, which were tendered at trial, confirm that the unit was scarcely furnished.
Police received a call for assistance at around 1.15am, following the assault of Mr Blachowski. He was a man in his sixties. He gave evidence that he had heard a knock on his door, which he answered as he had been expecting a friend. He had been sitting in the living room of his unit, watching television. He said "I was approximately two and a half to three metres from the front door sitting in an armchair." As soon as he opened the front door, Mr Blachowski was physically assaulted by the applicant, although the two men did not know each other. He gave the following evidence in chief: "Q. So you had dozed off in your arm chair in front of the TV. Were you alone? A. Yes, I was alone. I was expecting a visit from a friend of mine who was working at the time in a restaurant and the usual time that he would come and visit me would be approximately 12.30 to 1 o'clock in the evening, at night. Q. So in the early hours of the morning; is that correct? A. Yes, in the early hours of the morning. Q. And then whilst you had dozed off in your armchair, can you tell the Court what happened after that? A. I heard a very soft knocking. I got up from the armchair and went to the door. I was still under the influence of sleep, so I was a little bit groggy. I did not look through the peep hole, but I opened the door a fraction and straight after the door flew open as it was pushed by force or possibly kicked in. Q. So were you still at the door when the door flew open? A. The force of the door being flung open pushed me possibly half a metre inside the corridor. Q. And what happened once you were pushed back? A. Then I noticed a man walking into my apartment and straight after he proceeded to kick me and punch me. Q. You say you saw a man, had you ever seen that man before? A. No, I did. I did not recognise the person."
Mr Blachowski said that both the kicking and the punching was inflicted with a considerable amount of force. He then gave this evidence: "Q. And did this man say anything when he was in your unit? A. Following the exchange of punches, there was a break and he looked at me and started growling 'Where is it, where is it, where is it'. I did not provide a response but I took a defensive position with my back to the bedroom door. Q. And do you remember him saying anything else or doing anything else? A. Yes. I started screaming 'Help' to which the man looked at me and said 'I'm going to stab you' and took his right hand and proceeded to reach towards his back. Q. And what did you feel at that time? A. Well, as you can understand I was scared. I took the threat to be serious and I've decided that under the circumstances of being threatened to be stabbed I retreated to the bedroom."
Although he shut the door behind him, Mr Blachowski then realised that he was not safe in his bedroom, went into the bathroom, punched the flyscreen out and jumped out the window. He went into a nearby apartment where the lights were on and telephoned police.
Taken from Mr Blachowski's apartment were a 41-inch Samsung television, a Toshiba laptop and a metal pole which had been used to support a desk. The television and lap top were each around 7 years old. The television had been connected using an HDMI cable. That cable was ripped apart when it was removed from Mr Blachowski's flat.
The applicant thereafter used the metal pole to break the glass of the window of ground-storey premises occupied by Ms Partier. She was a woman in her mid-eighties. Both she and Mr Blachowski gave evidence of the fear they felt. Police returned to the applicant's premises and saw the laptop and the television leaning against the wall unattached to anything.
The applicant did not give evidence at trial. He had participated in an electronically recorded interview with police commencing around 10am on 3 January 2019. He said he had been drinking cognac that evening, "maybe 20 to, 18 to 20 standard drinks". He denied being on any other drugs or medication. He said he had been given the television by a friend, "not too long ago" and gave vague answers as to its brand and when he had last watched it. He said that he had found the laptop out on the step near his house. Mr Blachowski's cross-examination was directed to the defence that some other person had attacked and robbed Mr Blachowski. He was only asked one question bearing upon the issue raised by ground 1 of this appeal, which was: "Q. When this person came into your unit and said 'Where is it?', what did you make of that? A. Nothing. I was puzzled by the words."

First ground - inconsistent verdicts

The applicant's conviction on the third count of theft from dwelling house, which is unchallenged on appeal, establishes - incontrovertibly for present purposes - that it was the applicant who entered Mr Blachowski's apartment in the early hours of 3 January 2019 and stole his property. It follows that, and it was common ground in this Court, that the only possible basis for reconciling the not-guilty verdict on count 1 with the guilty verdict on count 2 was that the jury had not been satisfied to the criminal standard that at the time the applicant entered Mr Blachowski's home he had an intent to commit larceny.

The parties' submissions

Mr McLachlan, who appeared for the applicant in this Court, but not at trial, with commendable candour and succinctness, accepted that at some stage his client had formed the intention to steal Mr Blachowski's property. However, consistently with the verdict on count 1, he submitted that just as the jury was not in fact satisfied to the criminal standard that at the time of his entry into Mr Blachowski's flat he had formed that intention, they could not reasonably have been satisfied to the criminal standard that he had formed that intention while he was assaulting Mr Blachowski. The focus was upon the immediacy of the assaults upon Mr Blachowski after the applicant had entered his apartment. The applicant further submitted that the evidence concerning his asking "Where is it?" should have been regarded as the "basically incomprehensible rantings of a person labouring under some form of disordered mind" but that even if they were to be given weight, they would not affect the conclusion that the jury could not have been satisfied of this count, because they took place after the completion of the physical assault. it was put thus: "Ultimately, what is said is that if he didn't have the intent before entry, when did he have it, and why did the jury find that he had it, and how could they say he had it when he had it. In my respectful submission, whatever intent he had thereafter, and clearly in accordance with their verdicts, he left with the television, the laptop, and the metal pole clearly, so there was an intention at some later stage, but that count can't stand with count 1."
It was submitted that this Court should, in accordance with s 7 of the Criminal Appeal Act 1912 (NSW), substitute a conviction for the offence of assault occasioning actual bodily harm.
The Crown's primary submission was that there was a single "continuous" assault comprehending both the punches and kicking and also the threat of stabbing. Ultimately, that appears to have been a submission to the effect that the elements of count 2 would be satisfied if the requisite intention was formed at any time during the whole of that period.
Thus the Crown submitted that the threat to stab Mr Blachowski was "part of the continuing assault on the victim" and that "[i]t was open to the jury to find that either before the [physical] assault but after entry, or during this continuing assault, the appellant formed the intention to rob the victim and was looking around the unit for items to steal". The Crown emphasised that an intention may be formed in an instant notwithstanding that the whole affair was over in a very short period of time.
By supplementary submissions filed, with leave, after the appeal was heard, the Crown identified the elements of the offence, advised that no authority was able to be found on the time at which the violence which was an element of the offence must have occurred, but drew attention to the fact that it was sufficient if the corporal violence occurred "immediately after" the robbery. The applicant accepted as much in point of law, but maintained that the Crown should not be permitted on appeal to depart from the way the case had been left to the jury, which was on the basis that the corporal violence was used "at the time of" the assault. The applicant also maintained that the case had been run on the basis that the assault had concluded with the kicking of the victim, and "was therefore not some continuing offence which included the later threat to stab".

Consideration

It was common ground that the basal principles were stated by the High Court in MacKenzie v The Queen (1996) 190 CLR 348 at 367; [1996] HCA 35. More recently, they were summarised in this Court in Roos v R [2019] NSWCCA 67 at [42]-[44], and reiterated in Pethybridge v R [2020] NSWCCA 185 at [80], relevantly as follows: "The legal test to be applied to the appellant's contention is one of logic and reasonableness: MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35 (MacKenzie). In MacKenzie at 366, Gaudron, Gummow and Kirby JJ approved the test as stated by Devlin J in R v Stone (unreported, 13 December 1954). In order to succeed on this ground, the appellant: … must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. Nevertheless, if there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury properly performed its functions, that conclusion is generally to be preferred: MacKenzie at 367 (Gaudron, Gummow and Kirby JJ). ... There is a further important consideration to a challenge to the verdicts based on inconsistency. As stated by Simpson J (McClellan CJ at CL and Latham J agreeing) in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128]: In determining whether convictions are unreasonable, ... the focus of the enquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least on that basis."
In many cases, appeals based on inconsistent verdicts arise where the credibility of the complainant is in issue (and part of the passage from Roos which has not been reproduced above, deals with that, by reference to MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] and R v Markuleski (2001) 52 NSWLR 812; [2001] NSWCCA 290 at [34]). The present case turned on whether there was evidence sufficient to satisfy the jury beyond reasonable doubt that the Crown has established the intentional element of count 2.
Section 95 of the Crimes Act 1900 relevantly provided: "(1) Whosoever robs, or assaults with intent to rob, any person, or steals any chattel, money, or valuable security, from the person of another, in circumstances of aggravation, shall be liable to imprisonment for twenty years. (2) In this section, circumstances of aggravation means circumstances that (immediately before, or at the time of, or immediately after the robbery, assault or larceny) involve any one or more of the following: (a) the alleged offender uses corporal violence on any person, ..."
The indictment pleaded that the applicant had assaulted Mr Blachowski with intent to rob him. It thereby relied upon the second of the three formulations of the offence in s 95(1).
The essential question is whether there is a proper way to reconcile the verdicts, so that it may be concluded that the jury properly performed its functions.
The verdicts of the jury on counts 1 and 2 are readily explicable. The jury may have taken an appropriately careful approach, not being satisfied beyond reasonable doubt that at the time of entry into the apartment (of a person unknown to the applicant) the applicant had the requisite intention. There was certainly evidence available to support the conclusion that the applicant had entered the wrong apartment. He did not know Mr Blachowski, yet was asking "Where is it?". Although it is difficult to understand the applicant's mental state, his question is at least consistent with an intention to be in some other flat, where he expected to find some (unidentified) thing.
On the other hand, plainly the applicant did in fact form an intention to steal. The intention was formed prior to his ripping the television from its connection. It was open for the jury to proceed on the basis that the applicant, immediately upon entering Mr Blachowski's front room, where his armchair and television were prominent, formed the intention to take the television. He had no television of his own. It would have been impossible not to notice the television immediately upon entering the room - it was large, it was turned on and it faced the armchair which was 2.5 - 3m from the door.
What reasons were there for the applicant to attack Mr Blachowski with considerable violence? One possibility is that he intended to rob him. Another, conceivably, is that it was a wholly gratuitous act of violence to a stranger, done for no purpose at all. That is theoretically possible, but the difficulty this ground faces is that it needs to be reconciled with the incontrovertible fact that the applicant did in fact steal Mr Blachowski's possessions. This possibility therefore amounts to the proposition that there was gratuitous violence upon a defenceless man in his sixties in his home, including a threat to stab him, but unaccompanied by any intent to steal, and only then after his victim had fled did the applicant decide to steal his valuables. That is the sort of theoretical possibility which it was well open to the jury to exclude beyond reasonable doubt.
I see no difficulty in reconciling the two verdicts. No other possibility was advanced in the written or oral submissions in support of this ground. Although there should be a grant of leave, I would dismiss this ground of appeal.

Sentence Appeal

Following a sentencing hearing on 15 April 2020, the Court imposed sentence on 17 April 2020. The sentencing judge summarised the facts established at trial and reconciled the verdicts on counts 1 and 2 thus: "The only rational basis on which the jury may have acquitted him of Count 1 was that they were unable to find that at the time he entered the dwelling house he did so with the requisite intent. That may have been predicated on the basis that Mr Blachowski's evidence was that when the offender had forced his way in, and either immediately before or while punching him, yelled at him, 'Where is it?', indicating that he was there for some specific reason which might not necessarily have been to steal the TV or the laptop. However, once he had entered the unit, the jury clearly accepted that he had the requisite intention beyond reasonable doubt to rob Mr Blachowski at the time he assaulted him, and that in doing, so used corporal violence against him."
The sentencing judge then summarised the injuries inflicted upon Mr Blachowski, but concluded that the objective seriousness of count 2 was "towards the bottom end of the relevant level of objective seriousness for such an offence", aggravated by the fact that it took place in his home. His Honour said that count 3 was towards the bottom of the range of objective seriousness and that count 4 fell at the bottom of the range for objective seriousness.
It is necessary to set out in some detail the balance of what was said when imposing sentence, in order to address both remaining grounds of appeal. The points that matter fall into three categories: (a) what was said as to the applicant's unfortunate childhood and youth, (b) what was said of the psychologist's report, and (c) what was said of the applicant's predilection to commit further crimes while on bond or subject to parole.
His Honour referred to the effect the offending had on Ms Partier and then turned to the reports which had been tendered at the hearing, which included a report from the Department of Corrective Services, a breach of parole report, a sentencing assessment report, and, importantly, a report from a psychologist, Ms Jessica Pratley. His Honour said that the latter was "very helpful and well-balanced and objective". His Honour compared it favourably with other psychological reports which he had seen.
His Honour then addressed at some length the applicant's unfortunate childhood. He had never met his father, believing that his step-father was his biological father until, when he was aged 8, his mother and step-father separated. When he was aged 12, his mother formed a relationship with a man whom the applicant described as "violent and emotionally abusive" towards him. The primary judge continued: "He was apparently required to live in a caravan in the backyard and not provided with food. He overcame that on occasion by breaking into the family home to access food, which resulted in his mother's partner locking all of the doors and windows, and eventually chaining the fridge and freezer doors, as well as the food cupboard, with a padlock. He informed the psychologist that his response to that, on one occasion, was to enter the house through a window one night, and hit his mother's then partner over the head with a golf club, resulting in a period of juvenile detention. From that point onwards, he resided in a number of juvenile detention centres, refuges, and spent a number of periods living on the streets."
Although the applicant maintained a relationship with his mother and sisters as well as his step-father, the sentencing judge stated that Ms Pratley's opinion was "he was exposed to significant attachment disruption in his childhood". The primary judge said explicitly that he "accept[ed] that description is appropriate".
The primary judge then described his schooling (which ended after year 7) and his refusal to participate in further education whilst in juvenile detention or gaol. He had had very little employment since leaving school and no further vocational training. He has a 7 year old son as a result of a past casual relationship, but he has had no contact with that child. He had been diagnosed with ADHD at the age of 4, but ceased taking medication at the age of 13, at the same time as commencing drinking alcohol and smoking cannabis. His drinking extended to up to 4 litres of cask wine per day when he was 16 and he consumes cannabis when he has access to it, on a daily basis when available. He was using it daily between the ages of 14 and 18. He has also consumed other prohibited drugs, including amphetamines, ecstasy, cocaine, hallucinogens and crystal methamphetamine, and has never participated in any meaningful substance abuse treatment. The reasons then addressed the opinions of Ms Pratley as to his psychological condition in some detail, and his Honour concluded stating that he regarded the report as being helpful in understanding the applicant's nature and personality.
His Honour then addressed the lengthy criminal history, involving assault, domestic violence, larceny and illicit drug matters. His Honour said that since June 2014, when he turned 18, he had spent around 2 years in community life. While incarcerated during the 15 months following the offending the subject of this appeal, he had incurred some 13 breaches of prison regulations relating to fighting, intimidation and other charges. The primary judge recorded that his account as to how he came to be in possession of the television and laptop "bordered on the ludicrous" and noted that the psychological report had also recorded that he contended that he did not perpetrate the offences, but rather had been incorrectly identified and blamed because he had accepted the stolen property into his home. The primary judge described, in my view entirely accurately, that that account was demonstrably false and that there was overwhelming evidence before the jury concerning how he came to be in the possession of those items.
Importantly for the third ground of appeal, the primary judge said: "Mr Dellow was last supervised following his release to parole in December 2018 and he faced breach action within a month as a result of this offending. As to past supervision, he has been viewed as being unco-operative and confrontational. During two interviews, and following further offending, the State Parole Authority found him to be in breach of his parole and revoked it. Previous periods of supervision have been marked by periods of homelessness, disengagement and re-offence. He has been assessed as being a high risk of re-offending."
His Honour went on to summarise the lengthy juvenile history, concluding that: "The most remarkable thing about his record is the number of times on which, having been dealt with leniently, he has had to be called back before the Court to be dealt with for breaching the conditions of his bond."
His Honour stated that the assessment that he was at a high risk of reoffending must be regarded as accurate.
His Honour was alert to the possibility of the applicant becoming institutionalised, considering that that had not as yet occurred, but that he was very much at risk of becoming institutionalised in the future.
The primary judge imposed an aggregate sentence, stating that the indicative sentences for counts 2, 3 and 4 were imprisonment for 3 years, 1 year and 6 months and 1 year respectively, in compliance with Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b).
The primary judge addressed with some care the interrelationship between the non-parole period and the commencement of the aggregate sentence, saying as follows: "I recognise that the sentencing discretion includes the ability to make the sentences imposed in this matter concurrent, partially concurrent with, or wholly cumulative upon the sentence to which the offender was serving as a consequence of the revocation of parole, for the reasons referred to by Simpson J in Callaghan [2006] NSWCCA 58. In my view, the appropriate commencement of the sentence in relation to this offender, having taken into account the matters that I have just referred to both in determining the actual sentence and also the commencement date of the sentence is at the conclusion of the revoked parole period, which was 10 September 2019. Accordingly, the sentence of three years and six months will commence on 11 September 2019. He will be first eligible for parole on 10 June 2021, because I will specify a non-parole period of one year and nine months, being 50% of the term imposed. I have varied the statutory relationship between the non-parole period and the balance of term substantially in favour of the offender in order to return the matter to have slightly better than the customary relationship of the non-parole period representing 75% of the overall term, taking into account the period of custody from 3 January 2019. Taking into account that he has been in custody from that date. and the commencement date of the sentence I have just imposed, and the completion of the total sentence, it will be seen that the total time in custody, including the earlier period, is slightly better than 75% of the overall term. I have also taken into account what I perceive as being a need for a significant period on parole to assist the offender in rehabilitating in the community and receiving ongoing assistance in relation to his problems, and in my view one year and nine months is a sufficient period to allow for that."
In light of the above, the grounds of appeal may be addressed concisely.

Second ground - failure to have regard to Bugmy

The primary judge did not explicitly refer to Bugmy. However, there is no obligation to do so: as Mr McLachlan candidly and properly acknowledged, the question is one of substance rather than form. Mr McLachlan's point was that nowhere did the sentencing judge address the effect of his disadvantaged background on his moral culpability.
There was the following exchange: "BELLEW J: His Honour did spend some time and it's predominantly at p 9, starting at p 9 of the sentencing remarks which is 19 of the appeal book, where his Honour commenced to deal with matters of childhood and went into some on that page and the following page. Although his Honour didn't refer specifically to Bugmy and although his Honour didn't use the term disadvantaged background all of the factors that he took into account point towards that background. MCLACHLAN: Yes, he certainly went through various aspects of the history, I accept that, but there's no discussion I guess of the reduction in moral culpability which is obviously one of the big points about Bugmy and obviously Bugmy isn't, it doesn't mean you can commit crimes forever without being held to account but it is important because it is an enduring principle in terms of moral culpability and I accept that his Honour seems to have given some attention to that report that was tendered but it is one of those matters that at the end of the day I'm unable to point to what extent, if anything, his Honour took Bugmy into account and that's really the complaint and I can't put it any higher than that."
The primary judge spent a deal of time explaining the applicant's very disadvantaged family background. All of this was contained in the psychologist's report, which the primary judge said, twice, was extremely helpful.
In Egan v Regina [2017] NSWCCA 206, it was said at [36]-[38]: "Counsel for the applicant in this Court noted in that context that moral culpability is to be distinguished from an assessment of objective seriousness, making brief reference to the decision of the High Court in Muldrock v R (2011) 244 CLR 120; [2011] HCA 39. I took that to be a reference to the statement at [27] of the judgment in Muldrock that "the objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending". It does not follow that the assessment of moral culpability can be divorced altogether from the objective seriousness of the offence. Weighing the measure of a person's moral culpability for the offence is the essence of the sentencing task but often not explicitly so. A failure to attach the label "moral culpability" to any specific finding or give it a precise value in reaching an appropriate sentence does not reveal error. Indeed, the decision in Muldrock disapproves that kind of approach. In my respectful opinion, it is clear in the present case that the sentencing judge undertook a thorough evaluation of the features of the case that informed an assessment of the offender's moral culpability."
More recently, in Prince v The Queen [2020] NSWCCA 268 at [47], Beech-Jones J said of a submission which appears to be substantially identical to that advanced by the applicant: "… the real complaint of the applicant simply concerns the absence of any express reference to the phrase 'moral culpability' in the sentencing judgment. However, in the context of an offender presenting with a deprived background of the kind contemplated in Bugmy, then provided that the various "conflicting purposes of punishment" (Bugmy at [44]) are properly addressed in light of the findings made about that background, it is not necessary for a sentencing judge to expressly use the phrase "moral culpability" (see Egan v Regina [2017] NSWCCA 206 at [37]). Ultimately, it is the application of proper principle, and not the use of appropriate labels, that matters."
I respectfully agree. The "conflicting purposes of punishment" to which Beech-Jones J referred, were prominent in the Crown's submission, which emphasised that the principles in Bugmy are capable of cutting both ways. The majority said at [44]: "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." (footnote omitted)
I see no reason to doubt that the primary judge had regard to the fact that the applicant had had a highly disadvantaged childhood, which had contributed to his offending. The moral culpability of the applicant was apt to be diminished by the unfortunate circumstances of his upbringing. However, those considerations did not point in one direction. The applicant's upbringing was also a partial cause for his becoming highly intoxicated (as he had repeatedly done since aged around 14), and then violently assaulting and robbing a stranger in his own home, and intimidating an elderly neighbour in her own home.
The issue of specific deterrence having regard to the applicant's demonstrated inability to control his predilection to violence was, appropriately, at the forefront of the matters informing the sentencing discretion.
While there should be a grant of leave, this ground is not made out.

Third Ground - Failure to backdate the starting date of the sentence

Mr McLachlan very properly accepted that there was a discretion in determining the extent to which the sentence would be backdated. As much was held in Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145, to which the sentencing judge referred, and which has been repeatedly applied. For example, in Farrell v R [2020] NSWCCA 195 at [89], it was said that: "The scope of the discretion is discussed by Simpson J (as her Honour then was) in Callaghan. In that matter the offender's parole had been revoked because of the commission of a subsequent offence and the sentencing judge had commenced the offender's sentence after the balance of parole had expired. Simpson J, with whom James and Hall JJ agreed, held that a discretion exists in terms of whether to backdate the sentence to the date parole was revoked, to another point in time during the parole period, or to after the head sentence had expired: at [24]-[25]. That is, when an offender has been in custody both serving a balance of parole and bail refused on the subject offences, the question as to when the sentence could commence is a matter of a broad discretion exercised to do justice in the circumstances of the particular case."
The applicant acknowledged that the fact that the offending took place so soon after the completion of the non-parole period counted against him. The applicant also acknowledged that his lengthy history of prison infringements also counted against him. Nonetheless, he made two related submissions. The first was that while it was open to the primary judge to impose sentence with a commencement date at the conclusion of the term of the previous sentence, it was necessary not merely to reduce the non-parole period, but it was also necessary to reduce the head sentence on the basis of totality. The second was that if that were not done, he was in effect being sentenced on the basis that there was no prospect of his obtaining parole during the non-parole period of his previous sentence.
This had been raised during the sentencing hearing as follows: "[Counsel then appearing for the applicant]: "... in accordance with the application of totality principles your Honour would also back-date the commencement from the time before 10 September, taking into account the other sentence that he served. HIS HONOUR: There are several ways of achieving that. I can back-date the sentence as is permitted and referred to in Gallagher by Simpson J. Alternatively, one can take it into account in relation [to] the serving of the non-parole period and adjusting that to reflect the extended period in custody as a result of the revoked parole. [Counsel]: Yes, as I understand it the preferred position is to back-date and to nominate a starting point ..."
Neither of the points now sought to be advanced were made to the sentencing judge. That, presumably, is why they were not addressed in terms.
I return to first principle. It is necessary for the applicant to identify House v The King error. The primary judge concededly had a discretion to exercise when determining when the start date of the sentence was to be. It was open to his Honour to backdate it to 11 September 2019, and his Honour explained that in the particular circumstances of the applicant's woeful criminal history, replete as it was with offending during periods on probation or parole, it would be wrong to make the present sentence in any way concurrent with the balance of term being served following the revocation of his parole. To do so might readily be interpreted as an incentive for future offending whilst on parole. That accorded with authority.
Further, his Honour said expressly that he would vary the statutory relationship between the non-parole period and the balance of term "substantially". The ratio of the sentence imposed was 50%. This was done expressly by "taking into account the period of custody from 3 January 2019".
The overall sentence may fairly be said to be modest. The maximum sentence for count 2 was 20 years' imprisonment. Further, his Honour did have regard to the principles of totality in making a substantial variation of the statutory ratio. I see no appellable error in not reducing the total term of the sentence - something he was not even asked to do - as opposed to the non-parole period.
The second submission likewise had not been made to the sentencing judge in explicit terms. Even so, it may be addressed on its merits. It might have force if there was a basis for concluding that the applicant might have successfully applied for parole in the period between 3 January and 10 September 2019. However, in that period he had not merely committed a serious offence shortly after being released on parole (automatically, because he had been serving a sentence less than 3 years). A sentence assessment report provided to the sentencing judge stated that "[d]uring this last period in custody Mr Dellow has incurred twelve internal offences related to fighting, intimidation and other charges". The offences commenced in the first week of April 2019 with fighting (leading to 3 days in the cells), intimidation (leading to 28 days off Buy-Ups) and disobey direction (leading to 7 days off phone-calls). In May 2019 he was convicted of fighting and punished with 7 days in the cells. In June he was convicted of fighting and punished with 7 days in the cells. In July he was convicted of two separate charges of fighting, one resulting in 3 days in the cells, and 7 days off various privileges. In July he was also convicted of intimidation, and reprimanded.
It is inconceivable that Mr Dellow would have been granted parole between January and September 2019. The primary judge attended to this, noting that "[d]uring the period of incarceration since being arrested in respect of this offending, he has incurred approximately 13 breaches of prison regulations relating to fighting, intimidation and other charges".
It is true that his Honour did not expressly make a finding of special circumstances, but that is necessarily implicit in his reasons, and does not invalidate the sentence: Crimes (Sentencing Procedures) Act 1999, s 44(3).
Once again, while there should be a grant of leave to permit these grounds to be argued, neither is established.

Orders

I propose the following formal orders: 1. Grant leave to appeal against conviction and sentence. 2. Appeal dismissed.
BELLEW J: I agree with Leeming JA.
WRIGHT J: I agree with Leeming JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2020

Crimes Act 1900(NSW)ss 60, 95, 111, 195

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