Dellow v R

1. [1]

   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.

2. [2]

   Following a six day trial in February 2020, the jury returned verdicts of not guilty of counts 1 and 5, and guilty of counts 2, 3 and 4.

3. [3]

   Subsequently, the Court imposed an aggregate sentence of imprisonment for 3 years and 6 months, back-dated to 11 September 2019, with a non-parole period of 1 year and 9 months. The applicant had been in custody since his arrest on 3 January 2019, shortly after the events giving rise to the prosecution. The backdating to 11 September 2019 reflected the expiry of the balance of term of a sentence of imprisonment he had previously been serving on parole, parole having been revoked following the commission of the present offences.

4. [4]

   The proposed grounds of appeal are narrowly focussed, which means that it is unnecessary to traverse much of the evidence at trial.

   1. (1)

      First, leave is sought to appeal against the guilty verdict for count 2, on the basis that it is inconsistent with the not guilty verdict for count 1 and is therefore unreasonable.

   2. (2)

      Secondly, leave is sought to appeal against sentence, on the basis that the sentencing judge erred in failing to take into account the principle enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

   3. (3)

      Thirdly, leave is sought to appeal against sentence on the basis that wholly accumulating the aggregate sentence upon the applicant’s earlier sentence breached the principle of totality.

Factual background

1. [5]

   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.

2. [6]

   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.

3. [7]

   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.

4. [8]

   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.

5. [9]

   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:

6. [10]

   Mr Blachowski said that both the kicking and the punching was inflicted with a considerable amount of force. He then gave this evidence:

7. [11]

   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.

8. [12]

   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.

9. [13]

   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.

10. [14]

    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:

First ground – inconsistent verdicts

1. [15]

   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.

2. [16]

   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:

3. [17]

   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.

4. [18]

   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.

5. [19]

   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.

6. [20]

   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”.

7. [21]

   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:

8. [22]

   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.

9. [23]

   Section 95 of the Crimes Act 1900 relevantly provided:

10. [24]

    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).

11. [25]

    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.

12. [26]

    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.

13. [27]

    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.

14. [28]

    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.

15. [29]

    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

1. [30]

   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:

2. [31]

   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.

3. [32]

   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.

4. [33]

   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.

5. [34]

   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:

6. [35]

   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”.

7. [36]

   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.

8. [37]

   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.

9. [38]

   Importantly for the third ground of appeal, the primary judge said:

10. [39]

    His Honour went on to summarise the lengthy juvenile history, concluding that:

11. [40]

    His Honour stated that the assessment that he was at a high risk of reoffending must be regarded as accurate.

12. [41]

    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.

13. [42]

    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).

14. [43]

    The primary judge addressed with some care the interrelationship between the non-parole period and the commencement of the aggregate sentence, saying as follows:

15. [44]

    In light of the above, the grounds of appeal may be addressed concisely.

Second ground – failure to have regard to Bugmy

1. [45]

   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.

2. [46]

   There was the following exchange:

3. [47]

   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.

4. [48]

   In Egan v Regina [2017] NSWCCA 206, it was said at [36]-[38]:

5. [49]

   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:

6. [50]

   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]:

7. [51]

   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.

8. [52]

   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.

9. [53]

   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

1. [54]

   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:

2. [55]

   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.

3. [56]

   This had been raised during the sentencing hearing as follows:

4. [57]

   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.

5. [58]

   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.

6. [59]

   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”.

7. [60]

   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.

8. [61]

   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.

9. [62]

   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”.

10. [63]

    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).

11. [64]

    Once again, while there should be a grant of leave to permit these grounds to be argued, neither is established.

Orders

1. [65]

   I propose the following formal orders:

   1. (1)

      Grant leave to appeal against conviction and sentence.

   2. (2)

      Appeal dismissed.

2. [66]

   BELLEW J: I agree with Leeming JA.

3. [67]

   WRIGHT J: I agree with Leeming JA.