R v Shiell

[2013] NSWDC 279

District Court

New South Wales

Medium Neutral Citation:	R v Shiell [2013] NSWDC 279
Hearing dates:	21 November 2013
Decision date:	21 November 2013
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment for a period of 18 months. Execution suspended under s12 of the Crimes (Sentencing Procedure) Act
Catchwords:	CRIMINAL LAW - Sentence - Aggravation - In company - Home invasion - Assault occasioning actual bodily harm - Vigilantism
Legislation Cited:	Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	The Crown Nathan James Shiell
Representation:	Mr J Booth - Offender Director of Public Prosecutions Legal Aid Commission - Offender
File Number(s):	2013/7490

Sentence

1. HIS HONOUR: What I am about to describe can accurately be categorised, as the offender Nathan Shiell himself recognises, as a home invasion. He, while drunk, together with another man, forced his way into premises where he knew people, including his young son, were inside and whilst in there assaulted someone, causing actual bodily harm, only desisting when he saw his young son crying.

1. The maximum penalty for an offence of this type is 20 years and there is a standard non parole period of five years. Those of course indicate the seriousness with which the legislature believes offences of this type should be treated. I have taken into account both the maximum penalty and the standard non parole period in determining the appropriate sentence in this case. My reasons for not imposing the standard non parole period appear in these remarks on sentence.

1. It is Mr Booth's submission that ultimately I should impose upon his client a suspended sentence of imprisonment. The Crown does not speak in opposition to that, but that does not mean that I should accept the joint position of the parties made to me today. This was a serious offence and considerations of general deterrence and punishment need to be given full weight.

1. The offender was previously in a relationship with a woman called Lauren Barr. They had a child. The relationship broke down and Ms Barr formed a new relationship with a man by the name of Reece Wilkins. One evening the offender received a photograph on his phone from Ms Barr's mother. It showed his son with some bruising. The offender formed the opinion that that bruising was not accidental. He believed his son to be in danger.

1. He had been drinking and so, with a mate of his who drove him, he went to the premises where Ms Barr, Mr Wilkins and the young boy were living. They first banged on the front door. The offender yelled for the door to be opened but, not surprisingly, those inside refused. The offender then removed the flyscreen from the kitchen window and he and his mate climbed in.

1. An altercation then developed. There was wrestling and punching between Mr Wilkins and the offender, with the offender's mate trying to hit Mr Wilkins with a glass bottle. So violent was the fight that two rear windows of the house were smashed. Eventually Ms Barr managed to get between Mr Wilkins and the offender. Notwithstanding that Ms Barr was holding the offender's son in her arms, the offender did not desist. Instead he continued to try and push past Ms Barr, who I repeat was holding their son, to get to Mr Wilkins. Eventually he stopped and left. He was eventually arrested and declined to answer any questions put to him by police.

1. It is remarkable that the offender, who suggests that his primary purpose in committing this offence was to somehow protect his son, would terrify him in the way he did and would not stop to pause at all to think about the consequences for his son of seeing his father break into a home, assault another person and carry on as he did.

1. Mr Shiell is now 23. He was 22 when he committed this offence. His upbringing was not terribly remarkable in context of people who appear before the court. That is not to say that it was ideal. His parents separated when he was about 11. At first he lived with his mother in Sydney but when she moved to South Australia, taking the offender with her, he did not settle in. He only lasted two weeks there before returning to Sydney where he was effectively homeless for some time. Eventually, with the assistance of the authorities, he went to live with his older brother and his partner. He commenced to work and seemed to be doing well. He has largely worked in the building industry. After living with his brother for a while he moved to Sydney to live with his father. He then met Ms Barr, formed a relationship with her and they moved to Newcastle before eventually settling on the Central Coast.

1. He was working at Hornsby Council but gave up that work in the context of the relationship with Ms Barr breaking up. Clearly that affected him to the extent that he did not value working as much as he had in the past.

1. He pleaded guilty in the Local Court to an offence of breaking and entering and whilst in the home assaulting Mr Wilkins, occasioning to him actual bodily harm in circumstances of aggravation, namely that he knew that there were people inside. When looking at that actual charge it is important to notice that there is a risk of double counting. He could not have assaulted someone inside unless there were people there. But it is also to be noted that he was in company at the time, which was a further aggravating feature.

1. The actual bodily harm occasioned to Mr Wilkins in physical terms appears to have been relatively minor. He suffered a bit of soreness and slightly swollen bottom lip with a small abrasion on it. But of course I am sure that Mr Wilkins, Ms Barr and the offender's son were less concerned about the physical injuries to Mr Wilkins than they were about the terribly frightening experience they had undergone.

1. The offender has a relatively minor criminal history. Apart from one matter involving possession of a knife committed after this offence, his other offences were only driving offences, and there are not too many of them, but it is important to point out that this is his first offence of violence.

1. He has expressed his remorse and now accepts that he was wrong to think that the child was being harmed. He accepts, I guess, that he flew off the handle and over-reacted.

1. This was not some spur of the moment decision to actually commit the offence. He had plenty of time, between receiving the photographs and arriving at the home, to reflect on what he was going to do. He had plenty of time to contemplate other, more appropriate, ways of dealing with this matter.

1. As I say he now expresses his remorse for what he has done. Consistent with that expression of remorse is the early plea of guilty. That plea of guilty has a utilitarian benefit which will mean that the sentence I impose upon him is 25 percent less than it would otherwise have been and is one of a number of factors that have caused me to impose upon Mr Shiell a different form of sentence from that I would have otherwise contemplated.

1. There are some aspects of this case where issues of vigilantism arise. People are not allowed to take the law into their own hands and where they do, the courts regard such offences as serious. But this is not a case where Mr Shiell was intent on punishing someone for what he perceived to be an injury to a stranger. At the time he committed this offence he genuinely believed that his son was at risk of harm from those inside the house. I imagine that almost every parent has overreacted at some time to what they perceive to be risk to their children. Not many of us I trust would commit a serious offence such as this but what led to Mr Shiell doing what he did was the emotional reaction he felt and the desire he felt to protect his son when he believed his son was at risk. That is a significant matter in assessing the likelihood that Mr Shiell will commit further offences of violence in the future. It is for that reason that I did not mention personal deterrence when I was discussing the important factors that I needed to consider earlier in these remarks. It is to be hoped that Mr Shiell's conduct on this occasion is a one-off.

1. Notwithstanding there remains, as I mentioned before, the importance of general deterrence and punishment. Courts need to mark in a very concrete way the inappropriateness of conduct such as this and it has to be recognised that, in the circumstances of this case, imposing a suspended sentence on Mr Shiell does little by way of deterring others or punishing Mr Shiell.

1. It cannot be denied that if Mr Shiell complies with the conditions of a bond imposed as part of a suspended sentence, then those in the community might regard him as having undergone little or no punishment. The expression "He got off without punishment" might be one used in the community if a s 12 suspended sentence were to result. As far as punishment is concerned, Mr Shiell would be required to obey the law for the term of his suspended sentence; something he is required to do anyway.

1. At most I suppose it could be said that he is punished by knowing that if he breaks the law he will be sent to prison. I fully understand what the authorities in this state say about suspended sentences. They remain an option in the sentencing weaponry, despite other jurisdictions abandoning them recently, and I am not entitled to take an idiosyncratic view of what suspended sentences are, based on what I perceive to be the reality of those sentences. I am bound by the authorities in the Court of Criminal Appeal which I must apply. They tell me that a suspended sentence of imprisonment is a real punishment.

1. The matter has been very finely balanced. What has persuaded me to accept the joint submission of the parties is the unusual circumstance in which this offence was committed. Mr Shiell was not trying to hit Mr Wilkins because Ms Barr had formed a new relationship. He did not break into the house to remonstrate with Ms Barr about their relationship having broken down. He did what he did to protect his son, foolishly as it turns out, but that was what motivated him and I repeat it is for that reason primarily that I will not send Mr Shiell into prison at this stage.

1. The offender is convicted. He is sentenced to imprisonment for a period of 18 months. Under s 12 of the Crime (Sentencing Procedure) Act the execution of that sentence is suspended for the term of the sentence on condition that he enter into a good behaviour bond. The terms of that bond are that Mr Shiell is to be of good behaviour. He is to advise the Registrar of this court of any change in his residential address and he is to appear before this Court if called upon to do so at any time.

1. Mr Shiell, Mr Booth appears before me quite regularly. I am sure he is going to tell you how close - because he knows me well - how close I was to sending you to gaol. So if you breach this bond I will have no hesitation in sending you to gaol. It is important therefore for you, for your benefit, that you do not breach the bond, you do not commit any criminal offences. You are starting a history of driving offences, that has got to stop too because committing another driving offence, driving whilst disqualified, will have you before me and a driving offence can put you in gaol. If you do end up there, they are terrible places, but you will only have yourself to blame.

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Decision last updated: 13 February 2014