Legal Research
Cases
Dellow v R

Dellow v R

Case [2020] NSWCCA 301 23 November 2020

No judgment structure available for this case.

Type to search within this case.

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)
Solicitors:
Jeffreys Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/003365
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

17 April 2020

Before:

His Honour Judge King DCJ SC

File Number(s):

2019/003365

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dellow v R

Details

AGLC: Dellow v The Queen [2020] NSWCCA 301
Case: [2020] NSWCCA 301
Decision Date: 23 November 2020

CaseChat Overview and Summary

Dellow v R involved an appeal against both conviction and sentence. The applicant, Dellow, was acquitted of the charge of entering premises with intent to commit larceny but was convicted of assault with intent to rob. Dellow's appeal contested the consistency of the jury's verdicts, arguing that since he was found to have stolen from the victim's premises, it was not possible for the jury to reconcile the acquittal of the initial intent to commit larceny with the conviction for assault with intent to rob. The court had to determine whether the jury's findings were logically consistent and whether it was open to them to find that the intent to steal formed during the attack on the victim.

The court held that the jury's verdicts were indeed reconcilable. It was possible for the jury to find that Dellow formed the intent to steal during the attack, even if he had not entered the premises with that intent. The court rejected Dellow's argument that the verdicts were inconsistent and maintained that the jury was entitled to make such findings based on the evidence presented. Regarding the sentence, the court found no error in the trial judge's consideration of Dellow's background or in the decision to impose a sentence that reflected a substantial alteration of the statutory ratio. The court also found that there was no error in the trial judge's discretion to not backdate the sentence to an earlier date.

The appeal against both conviction and sentence was dismissed by the court. The court confirmed that the jury's verdicts were logically consistent and that there was no basis to interfere with the sentence imposed by the trial judge. The decision emphasized the importance of the jury's role in determining the facts and the trial judge's discretion in sentencing. The orders of the lower court were upheld, and Dellow's appeal was dismissed in its entirety.

Orders