Director of Public Prosecutions v Shillinglaw and Rice
[2019] VCC 801
•30 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEE ERNEST SHILLINGLAW JAKE IAN RICE |
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| JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 27 May 2019 |
| DATE OF SENTENCE: | 30 May 2019 |
| CASE MAY BE CITED AS: | DPP v Shillinglaw and Rice |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 801 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors | ||||||
| D Gray J Barrerio B Newton | Office of Public Prosecutions Daniel Taylor Lawyers Warren Graham & Murphy |
1Lee Ernest Shillinglaw and Jake Ian Rice.
2You, Lee Ernest Shillinglaw, have pleaded guilty to one charge of intentionally causing injury, one charge of home invasion and one charge of prohibited person, possess a firearm. You also pleaded guilty to one summary matter of committing an indictable offence whilst on bail. The indictable matters carry maximum penalties of 10 years, 25 years and I think 10 years, and the summary matter, three months.
3You, Jake Ian Rice, have pleaded guilty to one charge of intentionally causing injury and one charge of home invasion.
4Each of you pleaded guilty at a reasonably early opportunity. I accept in these circumstances that each of you has, ultimately at least, expressed appropriate remorse, and of course each of you must get the utilitarian benefit of that plea of guilty.
5You, Mr Shillinglaw are 35 years of age. You, Mr Rice, are 25 years of age.
6There are two at least potential co‑accused in this matter, one of whom hasn't been charged, and one of whom who is, as I understand it, going to stand trial. Obviously parity plays no part with those two.
7Insofar as you're concerned, Mr Shillinglaw, you do have a significant number of prior convictions and findings of guilt. You've been incarcerated on a number of occasions. You, Mr Rice, have a far lesser criminal history, and indeed this is your first time in custody, and your priors are realistically of no real concern to me.
8The situation is that there's now been a significant delay in the matter coming on before the court, I don't know propose to go into why or how that's come about, but it is significant, and it's a matter which I obviously take into account in a general sort of a way.
9I then look to analyse the offending as succinctly outlined in the Crown opening. The situation is that the victim here was a Mr Blake[1] ‑ I'm not aware of his prior history, but he's clearly got one ‑ and a woman named Martha Elliott[2]. They were in an intimate relationship, as seems to be quite common practice around here, they each had intervention orders against each other, both of which related to family violence.
[1] Mr Blake is a pseudonym
[2] Martha Elliott is a pseudonym
10On 27 July 2017 Mr Blake was involved in a dispute with Ms Elliott. He had attended her premises and become aggressive and made threats to smash up her house. Her eldest child from another relationship was home and telephoned Elliott to tell her what was happening. She became scared to go home by herself, and instead drove her vehicle to McAdam Street in Maffra where a Ms Linda O’Neill[3] resided. That was where you were living, Mr Shillinglaw, as I understand, and where Mr Rice was boarding.
[3] Linda O’Neill is a pseudonym
11When Ms Elliott arrived, she told you, Mr Shillinglaw, what had occurred between Blake and herself and a phone call was made whilst you were actually present. Blake again rang Elliott and threatened her, and I note at this point that he's never been charged with anything, and neither has Elliott, which again seems to be fairly common place in these sets of circumstances.
12In any event, you, Mr Shillinglaw, took the phone from Elliott and you and Blake had a brief but heated argument. The Crown opening says during the argument each man exchanged threats to shoot each other. In fact the description of the conversation is probably best contained within the answers given by Mr Blake. He said, 'I'm fucked, he's going to fuck me up, he said he's not scared of me and he's heard I've got lots of guns at my place. I told him I didn't have any guns, that they were taken off me. Anyway I wouldn't shoot you 'cause the hole's too hard to dig, something like that. I told him that if he was that tough to come up to show his face. I can't recall if he said anything to that. The conversation was quite heated'.
13In any event it makes it clear that Mr Blake's no stranger to firearms, they've been taken from him for some reason. It means that you, Mr Shillinglaw were aware of the fact that he had firearms; whether he still had them might have been another matter.
14It is a set of circumstances where it was put on your behalf that you were ‑ and I know your counsel tried to resile from this position ‑ something of a White Knight in all this looking after the interests of Ms Elliott. As I understand it though, the bail that you were on to commit an indictable offence to breach was in fact for some form of family violence, so I'm not particularly impressed by that line of argument. What I am prepared to accept is though is, as those who still retain a smattering of contract law know, that in that conversation, Mr Blake issued what could be called an invitation to treat, and you accepted it with some enthusiasm.
15Anyway, in that set of circumstances, you recruited three others, one of those being, of course, you, Mr Rice. A Mr Doo has been charged but he's running identification, and neither of you have ever, as I understand it, been prepared to identify the fourth person.
16The group of you went around to Elliott's house and, in Mr Doo's car on the factual basis that I sentence on, and changed to her car. When that car arrived at Blake's house, he, believing it was Elliott, came out. I am prepared to accept in these circumstances that was in fact the purpose of the exchange of cars. I find that when you actually arrived there, there was probably no intention to actually enter the premises, and that luring him out was in fact what did occur. As the four of you walked towards the house, I'm also prepared to accept at that point there was still no intention to enter. You, Mr Rice, were carrying a shotgun, loaded, which had apparently been provided by you, Mr Shillinglaw. As I understand it CCTV discloses that that shotgun was in fact broken in the sense it had broken open, as you were walking towards the house.
17Outside the house, you, Mr Shillinglaw, had a fist fight, you were wearing knuckle dusters, with Mr Blake, and that fist fight went into the house. This wasn't a situation of a premeditated home invasion, it was one that occurred on the spur of the moment during the course of a fight, and I take that into account. Unfortunately you, Mr Rice, went into the premises carrying that shotgun. At some point in time the shotgun was closed, and I'm not aware of whether it had a safety catch or not. But in any event, what is claimed by Mr Blake is that the shotgun was put up against a wall by you, Mr Rice, which showed there was no intention on your part to use it, and it was there to inflict fear rather than to do violence. The fact of the matter is though it was loaded, and it's hard to escape the concept that if you're going to load a shotgun you must be prepared to use it.
18In any event Mr Blake, who was obviously experienced with weapons, said he saw the gun was within his reach, reached over to it and pulled the trigger causing it to discharge into the wall and timber coat rack affixed to the wall. That stopped the proceedings. Whether that's particularly accurate in how it call came about, I wouldn't be too sure; whether it was just simply an over anxious pulling of the trigger by Mr Blake or not, I don't know, but I do take into account that a firearm was discharged, it doesn't really matter who by in one sense, in a very, very dangerous situation. And that takes this crime into a serious level, and I don't think either of the barristers representing you two resiled from that point. It's certainly out of the range of a combination sentence for either of you.
19In any event, Mr Blake, who has not filed a victim impact statement, which doesn't surprise me, did not immediately report the matter to the police, though he reported it a couple of days later when his parents convinced him to. Each of you basically denied the offending, but you've ultimately pleaded guilty, and I've been through all that.
20I am well aware of many of the authorities, from Hogarth down, I suppose is a fair way of putting it in this sort of offending. The fact of the matter is, as each of you must be fully aware, you can't go around to threaten somebody with a loaded shotgun, and you can't enter premises with a loaded shotgun. In those circumstances the home invasion aspect of it is just simply too dangerous, and matters such as general deterrence must play a very significant part in the sentencing process. Specific deterrence is problematic as far as you're concerned, Mr Shillinglaw, I'm not too sure about all that. As far as you're concerned Mr Rice, I'm satisfied that there's probably not any real need for it. There must obviously be denunciation, and obviously there must be an appropriate punishment. A significant custodial sentence is unavoidable in the situation of each of you.
21This is a circumstance though where, although the matter was very sensibly presented by both counsel, there is a significant differential between you in terms of the culpability and sentence that should be imposed.
22I then turn to matters personal to each of you. Each of you provided through your counsel a report from a psychologist, Mr Parker. I indicated at the commencement I was concerned about that, that a psychologist should not be seeing both the accused in a matter where there could be a little bit of finger pointing or blaming. However, after, again, discussion between counsel, very sensibly, the matter proceeded on the basis that where there were any aspects of that in those reports I was not to take it into account.
23You, Mr Shillinglaw, would appear to suffer from depression, and you, Mr Rice, severe depression. It's not really I don't think a Verdins scenario, but situations such as Van Boxall where I do take into account that each of you will have more difficulty in gaol because of your mental condition, and you, Mr Rice, more so because of the more seriousness of your mental condition.
24I then go to the personal history of each of you, and it's always a sad state of affairs in respect of each. You, Mr Shillinglaw, as I said, are 35. You grew up in Maffra. Your father was a furniture removalist and your mother worked as a cook at a local pub. They separated when you were young, however the relationship continued and was at times violent. After the separation, you lived with your mother, you had one sister, and your father passed away late last year while you were on remand for these offences, and I take that into account. You attended local schools, you were bullied because of your weight, you had difficulties as a child in school, and I am informed were diagnosed with an attention deficit disorder. You left school at the end of Year 9. To your credit you had consistent employment in spraying, labouring, concreting, plastering, and such occupations since then. You left home at 16, and for a time lived out of your car. It was around about that age you began to use illicit drugs including amphetamines and cannabis. You had one long‑term problematic relationship with one child aged 11. By the time you were in your teens you were going to the Children's Court, and that's just basically continued ever since.
25Over the last 15 years, as your counsel pointed out, you've had several terms of imprisonment, the longest being four months. This is the first of what can be described in criminal law terms, I suppose, as a serious sentence for your offending and it's to be hoped that it's a sufficient warning to you that you should never take this sort of risk again.
26I note that to your credit, after you'd been interviewed by police you did provide them with the shotgun that had been taken to those premises, and you must get some credit for that in terms of at least starting to understand the destructiveness of your conduct.
27I have been told that you have a long‑term relationship with a Ms Linda O’Neill, although it seems pretty clear, I'm not going to go into the detail of it, that there's prior convictions, or subsequents at least, for family violence in relation to her, whether that's pie in the sky or a genuine relationship, I'll never, I suspect, know. You do, however, have full‑time employment lined up for your ultimate release, which unfortunately is going to be some time from now, in a pine plantation business run by a long‑term school friend.
28As was pointed out you were a friend of Elliott's, and I obviously take that into account in terms of provocation, at least, I suppose, in these circumstances. In other words you've got a good work record, there's no reason why when you ultimately get out you shouldn't be able to work. This should have been a salutary lesson to you in terms of criminal conduct.
29Insofar as your injuries are concerned, the hospital report basically said they were superficial, and I have no reason to doubt that. The firearm was a friend's BB gun that was broken. There's pellets that went with it, so I accept that it was a BB gun, and not a dangerous firearm in that sense, and accordingly with those matters I intend to give substantial concurrency.
30You, Mr Rice, are in a set of circumstances where you have, as I've indicated, very limited criminal history, and one that's not of real concern to me. Your parents lived initially around Pakenham, before moving to an area near Maffra. That occurred when you were around about five years of age. When you were seven years of age your father died in bed of a severe coronary, and that was sudden obviously and unexpected. Subsequently to your father's death your mother developed chronic alcoholism which she struggled through for the remainder of her years. She formed a new relationship with a man who was physically and verbally abusive and you and your brother and mother were regularly beaten by him. DHS were informed on a number of occasions, but on what I'm told, did very little about the set of circumstances. During all that time your mother continued nursing work in the Aged Care Wing in the Maffra Hospital, and would drink heavily at night. The family home was, for reasons you don't understand, ultimately sold, and moved into rental property in Hayfield. At the end of Year 9 you left school to undertake a farming apprenticeship, and it seemed that you did pretty well with that and got close to finishing it. Unfortunately by the age of 14 or so, you were using amphetamines and cannabis, and began to use other drugs at around about the age of 19. This is due to self‑medication, due to emotional distress over your father's death, and also your mother's illness. It's to your credit, I suppose, in a strange way, that despite those usages of drugs, you have no prior convictions for dishonesty or violence or anything along those lines.
31In the period of time leading up to this hospitalisation your mother became very ill and you and your sister were endeavouring to tend for her. You were attending her on a regular basis in firstly the Sale Hospital and then the Alfred Hospital in Melbourne, which would take some doing. I can accept that. Then she ultimately returned to the Sale Hospital to die. During that, as I've said, you and your sister were visiting her on an almost nightly basis and I accept that you would have been suffering considerable stress, and I have no doubt that added to your depression. There seems to be a suggestion of self‑harm or suicidal behaviour in that period of time.
32About three weeks prior to this offending occurring you carried her coffin at her funeral in Maffra. I'm sure that, as they say in the vernacular, at the time of this offending, you were not travelling very well at all. You do have a disadvantaged background and I take that into account. The drug addiction here doesn't seem to have anything to do with it, from what I can see, but it may have caused you to have misguided loyalties and for your moral compass to being somewhat astray.
33Your counsel has provided a very helpful chronology, it shows you working for years as a farmhand, milking cows, and also working earth moving in Bairnsdale for a significant period of time. That apprenticeship apparently was ceased because of your drug use. You then worked for a farmer in Cobain for approximately 12 months or so.
34You were endeavouring to get assistance for your drug use at around the time all this occurred, but you were remanded in custody, which is where you've been ever since. I have explained what Mr Parker has to say about it all, I don't think there's much more I can say. It is serious offending, it does call for significant gaol sentences, and I think the only other matter that needs to be dealt with is that there will be a significant disparity between the sentences, and I'll explain in very succinct and simple terms the reason for that.
35The attendance at this house was your idea, Mr Shillinglaw, and it could be said that you owned it. Where you got it from, I have no idea, but you clearly provided the shotgun and were able to give it to police afterwards. It was loaded, and I've got no reason to doubt that that was to your knowledge, as well as yours, Mr Rice, in that sense. You, Mr Shillinglaw, are some 10 years older. You have a far more significant criminal history. I think the prospects of your rehabilitation should be good if you can stay off drugs, but I think the prospects of Mr Rice's rehabilitation are far greater. Mr Rice, I think has a more serious, and I hesitate to use that word, form of mental disturbance, which has given him and will give him a harder time in gaol.
36You, Mr Rice, are still a young man, you, Mr Shillinglaw, are in a situation where you can turn your life around if you want to, it's a matter for you. I think in this situation, and bearing in mind also a decision of Lu of Judge Tinney's which I've read, which I think very succinctly points out those differences, a disparity is only appealable when there's a reasonable sense of grievance, and I just don't this in this situation that that's the case, and I have no hesitation in making this distinction with you. Each of you has shown a lot of common sense in gaol, each of you is endeavouring to do courses and each of you is working within that environment. I accept from the materials provided on your behalf that it's been a lesson to each of you.
37There was reports filed on your behalf, Mr Rice, from Mr Gillies, and from your sister, and they are ones which give me confidence, as I think I've just indicated, in the potential for your rehabilitation.
38You, Mr Shillinglaw, are going to have to make a greater effort, I suspect, but that's out of my hands, and it will ultimately be obviously a matter for the Parole Board, as it will be with you too, Mr Rice.
39I don't think there's any other matters I can add to all this, each of you does have family support and some sort of community support for when you're released, and all I can do is pass a sentence which is appropriate bearing in mind the seriousness of the offence of home invasion, particularly with a loaded firearm.
40Accordingly, Mr Shillinglaw, on Charge 1, six months, on Charge 2, four years, on Charge 3, one month, and on the summary matter, seven days. Charges 3 and the summary matter are to be served concurrently with the sentence imposed on Charge 2. Two months of the sentence imposed on Charge 1 is to be served cumulatively with the sentence imposed on Charge 2, which gives a total effective sentence of four years and two months. Because of your prospects of rehabilitation, I direct that you serve a minimum of two years and eight months before becoming eligible for parole, and I direct that 344 days be reckoned as having been served under this sentence. So you understand the benefit of your having pleaded guilty to this and not run a trial, I say that but for your plea of guilty, had you fought this out in front of a jury, so you can understand this, and been convicted, I would have given you six with a four.
41So far as you're concerned, Mr Rice, Charge 1, three months, Charge 2, two years and three months. One month of charge one cumulative on Charge 2, giving an effective head sentence of two years and four months. I direct that you serve a minimum term of 14 months before becoming eligible for parole, and I direct that 244 days be reckoned as having been served under this sentence.
42Just so that you understand the benefit that you gained by pleading guilty to this and not fighting it out before a jury, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of three and a half years with a minimum term of two.
43I direct that 224 days be reckoned as having been served under this sentence.
44I've made the forfeiture for the firearm. No other orders I need to make. They've got DNA for each of them. So that's that, isn't it?
45COUNSEL: Yes, Your Honour.
46HIS HONOUR: Nothing else I need to do?
47COUNSEL: No, Your Honour.
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