R v Dillon-Shallard

[2022] NSWDC 478

District Court

New South Wales

Medium Neutral Citation:

R v Dillon-Shallard [2022] NSWDC 478

Hearing dates:

29 July 2022 and 14 October 2022

Date of orders:

14 October 2022

Decision date:

14 October 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1    The offender is convicted.

2    I impose a term of imprisonment of 1 year and 9 months.

3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (14 October 2022) and expire on 13 July 2024.

4   The offender must report to the Penrith Community Corrections Office on or before 4pm on 21 October 2022.

5   The standard conditions of the order apply:

(a)   the offender must not commit any offence; and

(b)   the offender must submit to supervision by a Community Corrections Officer.

6   The following additional conditions apply:

(a)   the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner;

(b)   the offender must receive treatment for drug and alcohol rehabilitation as reasonably directed by Community Corrections;

(c)   the offender must participate in and receive mental health treatment as reasonably directed by Community Corrections; and

(d)   the offender is to perform 100 hours of community service work.

Catchwords:

CRIME — Violent offences — Reckless wounding

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v R (2013) 249 CLR 571

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Regina (Crown)
Ian Dillon-Shallard (Offender)

Representation:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Sydney Criminal Lawyers (Offender)

File Number(s):

2019/187357

Publication restriction:

None

Judgment

1. Ian John Dillon-Shallard (the offender) appears for sentence after pleading guilty in the Local Court to an offence of reckless wounding contrary to s 35(4) Crimes Act 1900.

2. The maximum penalty for the offence is 7 years imprisonment. Parliament has also prescribed a standard non-parole period of 3 years.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

6. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

7. The offender is 50 years of age and at the time of the offence, lived alone in Bomaderry. The victim, Trent Booth, also lives in Bomaderry with his wife and two daughters aged 15 and 10 years. The offender and the victim had been friends for about five years.

8. At about 4.30pm on 15 June 2019, the offender went to the victim’s house to watch a rugby league game. It appeared to the victim that the offender had consumed alcohol prior to arriving at the victim’s house. The victim and offender consumed nine to 12 full strength beers each and some cocaine throughout the evening.

9. After the game finished, the victim’s wife, Sarah Bagnall, agreed to drive the offender home. At this point, everyone was in good spirits.

First confrontation

10. The victim and Ms Bagnall’s children became worried after Ms Bagnall did not return for some time. Between 7:37pm and 8:27pm, the victim attempted to call Ms Bagnall and the offender repeatedly, without success.

11. One of the children called Ms Bagnall’s sister, Kirsty Hayton, and arranged for her to drive them to find their mother. Ms Hayton drove the victim, Ms Bagnall’s eldest daughter and her own 10 year old daughter to the offender’s house. Ms Bagnall and the offender were sitting in the car in the driveway. Ms Bagnall’s eldest daughter was visibly upset. She opened the car door and asked the offender what he was doing. The offender laughed and made a sarcastic reply.

12. The offender’s comment upset the victim. He grabbed the offender and pushed him up against his van. He then threw him onto the concrete driveway, pushed his head into the concrete and punched him once in the head. The victim said, “Do you want to keep going cunt? You’re talking like a fucking idiot”. The offender was laying on his back and did not respond. There was blood on his cheek and on the ground.

13. The victim was driven home by Ms Hayton. Ms Bagnall drove herself home. She called the victim a “bloody idiot” as she passed him in her car.

Second confrontation

14. The victim arrived home and, feeling guilty about what had transpired, asked Ms Bagnall to prepare a First Aid kit to take treat the offender’s injury. The victim called the offender at 8:53pm to apologise.

15. On the telephone call, the offender was very upset about how his facial injuries would be perceived in the hearing of his family law proceedings regarding the custody of his children, which was listed in the following week. The offender said “You’ve fucked my life up…how am I supposed to go to Court with a fucked up face?” The victim attempted to apologise but eventually hung up. The offender sent a text message to the victim which read “4 and a half years cunt”, which I interpolate was a reference to how long the family law proceedings had been on foot.

16. Following this exchange, the victim walked toward his shed to have a cigarette and called Ms Hayton at 9:08pm to apologise for being violent in front of her daughter. This call cut out suddenly and at this point, the victim heard yelling to the effect of, “You’ve taken my kids off me”. He saw the offender coming up the driveway toward him.

17. The offender ran toward the victim holding what the victim described as a ‘vegetable knife’ in his right hand and lunged at the victim. The victim was stabbed twice, in the left lower chest and then the left armpit.

18. Ms Bagnall repeatedly told the victim to run and, when the victim threatened to “knock [the offender] out”, Ms Bagnall placed herself between the two men. The victim tried to swing at the offender but had started to feel “funny” and realised he was bleeding. A neighbour heard the offender yelling, “Don’t fuck with my family, Trent” and heard Ms Bagnall call out for help and the victim yell, “Me chest, I’ve been stabbed” and “Get back here, I’ll kill you, you fucking stabbed me”.

19. At this point, the victim’s eldest child told the offender if he didn’t leave, she would call the police. She called the police at 9:13pm. The offender left the scene.

20. Police and ambulance arrived at the scene and the victim was taken to Shoalhaven Memorial Hospital for his injuries. The victim suffered a 2cm stab wound to the anterior part of the left axilla and a 1cm stab wound to the left lower chest in the midaxillary line with bleeding. A CT scan revealed a small apical left sided pneumothorax. His wounds were sutured and he was discharged.

21. The offender attended Nowra Police Station on 17 June 2019 and he was arrested. He declined to be interviewed. He was remanded in custody until he was released on bail on 28 June 2019.

Offender’s Case on Sentence

22. The offender tendered the following documents:

1. reports of Chafic Awit, psychologist, dated 28 July 2022 and 13 October 2022;

2. letter of Dr Mario Farina, psychologist, dated 28 July 2022;

3. letter of offender, Ian Dillon-Shallard, dated 20 July 2022;

4. letter of Margaret Craig (offender’s sister) dated 23 June 2022;

5. letter of Stephen Bowe (offender’s colleague) dated 21 July 2022;

6. letter of Lorraine Bowditch (offender’s family friend) dated 25 July 2022;

7. Family Law Court Orders dated 19 June 2019 and 10 March 2022;

8. Hair Analysis Drug Test results dated 26 March 2022;

9. affidavit of Margaret Craig (offender’s sister) dated 3 April 2019; and

10. affidavit of Catherine Dillon-Shallard (offender’s sister) dated 6 April 2019.

23. The following is a precis of the evidence relied upon by the offender.

24. The offender was born in Northwest Victoria and is the fifth of six children. Throughout his childhood and until leaving home at 16, the offender experienced significant domestic abuse at the hands of his father. He also witnessed his father’s abuse of his mother and siblings. The affidavits of Margaret Craig and Catherine Dillon-Shallard, the offender’s sisters, detailed the frequent emotional and physical abuse of their father during their childhood and the continued psychological impact of that abuse.

25. When the offender was 13, his 12-year-old sister was sexually abused by a family friend. Despite knowledge of the abuse, the family did nothing and his father remained friends with the perpetrator. This significantly impacted the offender’s relationship with his parents.

26. Mr Awit opined that the offender likely suffered anxiety and depression during his teenage years stemming from his father’s ongoing abuse and his sister’s assault, but there was no contemporaneous material to confirm this.

27. The offender was a regular smoker of cannabis from age 12 until approximately his mid-twenties. The offender also started consuming alcohol at around the age 12, although his consumption was irregular until the age of 15, when he started drinking several times a week.

28. When he was 16, the offender’s older brother was killed in a car accident. He was close to his brother and struggled with his grief. He moved out of the family home to Melbourne one month after his brother’s death for about four years. At this time, the offender started consuming alcohol daily.

29. In Melbourne, the offender commenced an Aircraft Maintenance Engineer/Avionics apprenticeship with Ansett. He worked for Ansett for six years. He then moved home for a year and worked as a labourer during that time, before securing a job with the Singapore Airforce as an aircraft electrician. The offender worked in the avionics industry for 18 years, living and working in England, Melbourne, Perth, Sydney and Brisbane, before settling in Nowra.

30. The offender commenced an Engineering entry program at the University of New South Wales at age 30 and after completing this six-month program, was accepted into the Bachelor of Electrical Engineering. However, the offender did not ultimately pursue this course.

31. The offender ceased working in the avionics industry at age 35, to do electrical work in construction. Since 2010 he has worked for himself doing domestic electrical work.

32. The offender met his wife in 2005. They married in 2008 and had two children, now aged 13 and 10.

33. In 2010, after the birth of their first child, the offender’s ex-wife suffered a miscarriage and the following year required an abortion following an atopic pregnancy. These events placed significant strain on their relationship.

34. In January 2015, the offender asked his wife for a divorce. A few days later, he came home from work and had a conversation with his mother-in-law and sister-in-law, who told him that if he went through with the divorce, he would get nothing and not be able to see his children. This upset the offender and he found a sledgehammer and damaged his kitchen in front of his in-laws. As a result of these actions, the offender was charged with damaging or destroying property (domestic violence).

35. He separated from his wife at this point but, following marriage counselling, they recommenced their relationship in April 2015. However, their relationship broke down again by August 2015. They lived together until September 2015, when they got into a heated argument about division of assets in the divorce. The offender’s brother-in-law intervened and told the offender to leave, or he would get nothing in the divorce. The offender then got into a physical fight with his brother-in-law, resulting in the offender’s second set of domestic violence charges (stalking and intimidation; assault occasioning actual bodily harm; contravene prohibition/restriction in AVO).

36. After these incidents, the offender attended alcohol counselling and reduced his alcohol intake significantly, from three cartons of beer per week to one carton every six weeks. There have only been a couple of occasions where the offender has engaged in binge-drinking since the commission of this offence, including the night of the offence for which the offender is to be sentenced.

37. Mr Awit diagnosed the offender with an Adjustment Disorder with mixed anxiety and depressive symptoms and opined that he did so in the period leading up to the offence. He also suggested that the offender’s anxiety and depression dated back to his childhood, stemming from the abuse he experienced and witnessed.

38. Prior to committing the offence, the offender had joint custody of his children with his ex-wife and had regular contact with his children. He has not seen his children since the offence (June 2019). According to his sister, Margaret Craig, this has impacted the offender greatly.

39. The offender expressed regret in his letter to the Court. He states that since committing the offence, the offender has not consumed alcohol or any other drug. He has submitted to regular drug and alcohol hair testing to be relied on in the family law proceedings. He tendered the results for the testing in March 2022, which returned negative results.

40. All of the character referees state that the offender’s actions were out-of-character and that they were shocked to hear of them. They also state that the offender is very remorseful.

41. The offender is presently undertaking psychological counselling with Mr Awit focussed on anger management and remaining abstinent.

Objective Seriousness

42. The offence involves some objective gravity.

43. The offence caused two relatively small wounds involving some violence over a short period. The most serious aspect of the injuries sustained was a small pneumothorax. The injuries were treated with sutures.

44. The mental element of the offence was recklessness.

45. The offence involved some, but limited planning. The offender armed himself with the knife before going to the victim’s house to confront him.

46. There was significant provocation involved in the first confrontation.

47. The offender had a deprived upbringing in which he was exposed to domestic violence and trauma. He became introduced to drugs and alcohol at a young age when he was not of an age to make an informed choice. He developed a significant mental condition as a result of his exposure to trauma as a child and self-medicated with alcohol and cannabis. I am satisfied that the offender’s moral culpability for the offence is reduced: Bugmy v R (2013) 249 CLR 571.

48. I have taken into account the maximum penalty for the offence and the standard non parole period as legislative guideposts to arriving at an appropriate sentence.

Aggravating Factors

49. The offence involved the use of a weapon: s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999.

50. The offence was committed in the presence of children: s 21A(2)(ea) Crimes (Sentencing Procedure) Act 1999.

51. The offence was committed at the home of the victim.

Mitigating Factors

52. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken steps to abstain from drugs and alcohol and has agreed to undertake regular screening to prove his abstinence. The offender has a good work history and remains gainfully employed in his own business. I am satisfied that he is committed to pursuing access to his children and that is likely to encourage him to actively participate in his rehabilitation.

53. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has accepted responsibility for his actions and expressed remorse. I am satisfied that the offender is truly contrite. The offender’s plea also indicates remorse.

Other matters

54. As a result of committing the offence the offender has been prevented from seeing his daughters.

55. The offender has moved away from his home in Bomaderry as a result of the offence. This has included moving his business to the Penrith area away from his established customer base. The re-establishment of his business has been adversely impacted by the pandemic.

56. I have taken into account that the offender has served 11 days in pre-sentence custody in coming to the appropriate term of imprisonment.

Penalty

57. The offender is convicted.

58. I have considered section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

59. I impose a term of imprisonment of 1 year and 9 months.

60. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the following reasons.

61. The risk of the offender re-offending is low. The offender has committed to a regime of abstinence and has demonstrated that he has good prospects of rehabilitation. He is remorseful and willing to engage in interventions. I am satisfied that community safety will be best ensured by allowing the offender to continue his rehabilitation in the community on an ICO.

62. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (14 October 2022) and expire on 13 July 2024.

63. The offender must report to the Penrith Community Corrections Office on or before 4pm on 21 October 2022.

64. The standard conditions of the order apply:

1. the offender must not commit any offence; and

2. the offender must submit to supervision by a Community Corrections Officer.

65. The following additional conditions apply:

1. the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner;

2. the offender must receive treatment for drug and alcohol rehabilitation as reasonably directed by Community Corrections;

3. the offender must participate in and receive mental health treatment as reasonably directed by Community Corrections; and

4. the offender is to perform 100 hours of community service work.

66. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or a revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full-time custody.

67. The offender must attend the Registry where a copy of the order will be explained and given to him.

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Decision last updated: 17 October 2022