Dellow v R [2020] NSWCCA 301

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dellow v R [2020] NSWCCA 301 Hearing dates: 2 November 2020 Decision date: 23 November 2020 Before: Leeming JA at [1]; Bellew J at [66]; Wright J at [67]. Decision: 1. Grant leave to appeal against conviction and sentence. 2. Appeal dismissed. Catchwords: CRIMINAL LAW – appeal against conviction – inconsistent verdicts – applicant acquitted of entry with intent to commit larceny but convicted of assault with intent to rob – whether jury's verdicts reconcilable – applicant did in fact steal from victim's premises – open to jury to find that applicant formed intention to steal during attack on victim – appeal dismissed CRIMINAL LAW – appeal against sentence – failure to have regard to principles in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 – no reference to the case by name – extensive reference to applicant's disadvantaged background – question one of substance rather than form – whether error in failing to backdate sentence to earlier than end of previous sentence – discretion in Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 exercised – offending committed soon after release on parole – applicant returned to custody and parole revoked – sentence imposed reflected substantial alteration of statutory ratio – series of prison infringements throughout balance of term of previous sentence – no appellable error Legislation Cited: Crimes Act 1900 (NSW) ss 60, 95, 111, 195 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A Criminal Appeal Act 1912 (NSW), s 7 Cases Cited: 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 Category: Principal judgment Parties: Ethan Dellow (Applicant) Regina (Respondent) Representation: Counsel: I McLachlan (Applicant) E Wilkins SC (Respondent)