Department of Corrections v Shillito
[2022] NZHC 436
•11 March 2022
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2021-476-8 & 9
[2022] NZHC 436
UNDER the Criminal Procedure Act 2011 IN THE MATTER
of cross-appeals in relation to sentence
BETWEEN
DEPARTMENT OF CORRECTIONS AND ANOTHER
Appellants/Cross-Respondent
AND
DALE JASON SHILLITO
Respondent/Cross-Appellant
Hearing (by AVL): 21 February 2022 Appearances:
M L Wong for Appellant/Cross-Respondent T A McRae for Respondent/Cross-Appellant
Judgment:
11 March 2022
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 11 March 2022 at 2.50 pm
Registrar/Deputy Registrar Date:
DEPARTMENT OF CORRECTIONS v SHILLITO [2022] NZHC 436 [11 March 2022]
Introduction
[1] The defendant, Dale Shillito, was involved in serious family violence offending against the victim in May 2021 (the May offending) and then, in breach of community detention and intensive supervision orders, involved between 24 and 26 August 2021 in a series of messages to the victim containing repeated threats to kill her (the August offending).
[2] Mr Shillito, having previously being sentenced in July 2021 by Judge J E Maze for the May offending,1 was for that offending re-sentenced by her Honour on 29 November 2021 at the same time as being sentenced on the August offending (the November sentence).2
[3]The November sentence contained the following orders:
(a)the May sentence (six months community detention at Moana House and 12 months’ intensive supervision) (the May sentence) was cancelled;
(b)on breaches of intensive supervision and of community detention, Mr Shillito was convicted and discharged;
(c)on all the remaining charges (for both the May offending and threatening to kill) Mr Shillito was convicted and sentenced to intensive supervision for 18 months with conditions that he:
(i)not possess, consume or use any alcohol or drugs not prescribed to him;
(ii)attend and complete an appropriate department rehabilitative programme to the satisfaction of the probation officer;
1 Police v Shillito [2021] NZDC 17860 [July sentence].
2 Police v Shillito [2021] NZDC 25476 [November sentence].
(iii)not associate with or contact the victim without prior written approval of a probation officer;
(iv)disclose to a probation officer any intimate relationship that commences/terminates/resumes;
(v)resides at an address approved by a probation officer and not moves to any new residential address without the prior written approval of a probation officer;
(vi)attends for psychological assessment; and
(vii)not travel north of the Waitaki River except with the prior written consent of a probation officer (the Waitaki boundary condition);
(d)judicial monitoring was imposed with the first report to be provided by early-January 2022; and
(e)a protection order was made by consent in favour of the victim and any children in her care.
The appeal and cross-appeal
[4] The Crown appeals the November sentence as manifestly inadequate and of the wrong nature. The Crown says that Mr Shillito’s offending required a period of imprisonment.
[5] Mr Shillito cross-appeals in relation to one condition of his intensive supervision, namely the Waitaki boundary condition. Mr Shillito’s notice of appeal referred also to a condition that he not reside at an address where females reside. That was not in fact a condition imposed by Judge Maze.
The facts of Mr Shillito’s offending
The May offending
[6] Mr Shillito and the victim were in a domestic relationship that terminated in May 2021.
[7] They had been living at the victim’s address in Timaru where her two children (16 and 14 years old) and a 17 year-old boarder were also living.
[8] On 14 May 2021, Mr Shillito and the victim were at the Timaru address. He was speaking to her while she was on the couch. They had a disagreement which angered Mr Shillito. He approached her and placed one hand around her throat with sufficient force to rock the couch against the wall. He applied enough pressure that she was unable to breathe for around three seconds.
[9] On 17 May 2021, at the same address, Mr Shillito saw a text message on the victim’s cell phone that angered him. The pair argued, making their way into the hallway. Mr Shillito there picked up a vacuum cleaner pole, thrust it into the victim’s stomach and caused her to fall backwards.
[10] The argument continued. The victim tried to call the Police. Mr Shillito snatched her cell phone and threw it on the concrete, breaking it.
[11] He then followed the victim into an adjacent bedroom where he punched her on the left side of her face with a closed right fist, causing her to fall to the ground and lose consciousness for a period. She suffered bruising and soreness to her left eye and cheek.
[12] Mr Shillito was charged on 19 May 2021 with strangulation,3 assault with a weapon,4 intentional damage5 and injuring with intent.6 He was remanded in custody.
3 Crimes Act, s 189A(b); maximum penalty seven years’ imprisonment.
4 Crimes Act, s 202C; maximum penalty five years’ imprisonment.
5 Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment.
6 Crimes Act, s 189(2); maximum penalty five years’ imprisonment.
He pleaded guilty to the four charges before being sentenced to 18 months’ intensive supervision and six months’ community detention on 27 May 2021. On the intentional damage charge he was convicted and ordered to pay reparation of $400 (but with $192 of outstanding fines remitted).
The August offending
[13] Mr Shillito had been inducted into his sentence requirements from the May offending on 30 July 2021 and commenced residence at Moana House that day. He absconded from Moana House on 7 August 2021 and was unable to be located. The Department of Corrections (Corrections) filed an application for cancellation of his community detention and substitution of a sentence.
[14] On 24 August 2021, New Zealand was placed into a “Level 4” lockdown due to the COVID-19 pandemic. The victim was locked down at a friend’s address in Ashburton and was unable to return to Timaru to care for her children.
[15] Mr Shillito at the time had access to a .243 rifle (while not being a licensed fire arms user).
[16] On 24 August 2021, Mr Shillito attempted to contact the victim through her mobile phone on a number of occasions, but she did not answer his calls.
[17] Between his attempts to call her, Mr Shillito sent the victim a number of abusive and threatening text messages. I do not repeat them here — they were variously vulgar and highly threatening including a reference to the .243 rifle and repeated references to the victim’s death. One Facebook message was also sent to the victim’s 16 year old son commenting to the effect that he was about to lose his mother.
[18] The emotional harm to the victim was heightened by the fact that she was locked down away from her children, including the 16 year old.
[19] The defendant continued his calling and texting behaviour from 24 to 26 August 2021.
[20] Mr Shillito was arrested on 26 August 2021 and charged with threatening to kill. He was remanded in custody upon pleading guilty to the threatening to kill charge and breaching the community detention and intensive supervision orders. On 29 November 2021 he pleaded guilty to this charge. The Judge imposed the November sentence as set out at [3] above (both by way of resentence for the May offending and sentence for the August offending).
The District Court decision
[21] Judge Maze was the sentencing judge for both the May and the August offending.
[22] At the May sentencing, the Judge had the benefit of a s 27 report, a restorative justice report and a pre-sentence report. At that sentencing the Judge set out Mr Shillito’s personal circumstances and afforded substantial discounts in recognition of them. A starting point of 12 months was adopted and discounts of 55 per cent applied. The Judge did not consider imprisonment appropriate and instead imposed the subsequently breached sentence of intensive supervision, community detention and judicial monitoring, to be served at Moana House.
[23] At the sentencing and re-sentencing in November 2021, the Judge referred to, but did not set out again, the personal circumstances considered at the initial sentencing. She recorded Mr Shillito was initially sentenced to community detention and intensive supervision to recognise he had a number of significant factors affecting his wellbeing and health, which needed to be addressed urgently. The Judge noted Mr Shillito had prevented those factors being addressed by exempting “[himself] from drug and alcohol treatment” (with that explained by reason of the fact that he had found it confronting in relation to matters in his past). The Judge then turned to establish a sentence in relation to the new charge of threatening to kill. She adopted a starting point of 12 months’ imprisonment. She applied a 25 per cent guilty plea discount, resulting in an indicated sentence of nine months. The Judge observed Mr Shillito had already served some three months on remand as compared with the four and a half months he would serve if sentenced to imprisonment. She did not consider the remaining six weeks in custody would achieve much.
[24] It appeared that Mr Shillito’s remand in custody had been traumatising for him and that he was obviously distressed at sentencing.
[25] The Judge determined it was appropriate to reimpose intensive supervision for 18 months “in light of the circumstances overall and the obvious need for [Mr Shillito] to get urgent help”.
[26] The Judge cancelled the May sentence, observing that the community detention would go because “it has been served by the remand in custody”.
[27] The Judge convicted and discharged Mr Shillito on the breaches of intensive supervision and community detention.
[28] She also imposed the additional orders (judicial monitoring and a protection order) as referred to at [3] above.
Principles on appeal
[29] A prosecutor may appeal a sentence imposed if the appeal is brought by or with the consent of the Solicitor-General.7 The appeal court must allow the appeal if satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should be imposed.8
[30] The “legitimate scope” of an appeal by the Solicitor-General is “confined to cases where there is solid ground for treating the sentence as manifestly inadequate or inappropriate” rather than borderline cases.9 Even if the Court determines the sentence is manifestly inadequate or based on a wrong principle, it will be reluctant to interfere if this would cause injustice to the offender.10 In particular, the Court will be less willing to interfere where a community based sentence has been imposed and complied with than where an inadequate custodial sentence is in issue.11 If the Court
7 Criminal Procedure Act 2011, s 246.
8 Criminal Procedure Act, s 250.
9 R v Cargill [1990] 2 NZLR 138 (CA) at 140.
10 R v Donaldson (1997) 14 CRNZ 537 (CA) at 550 citing R v Clark CA266/81, 10 March 1981 at 4-5; R v Parker CA246/87, 29 April 1988 at 7; and R v Peters CA309/85, 11 April 1986 at 8-9.
11 At 550.
does intervene then the sentence should be increased to the minimum necessary in the interests of justice to achieve an adequate sentence.12
Submissions
Appellants’ submissions
[31] Ms Wong, for the Crown and Corrections, submitted that the relevant factual context for the re-sentence for Mr Shillito’s re-sentencing in November 2021 was that:
(a)Mr Shillito had not served any meaningful portion of the May sentence in relation to the domestic violence charges;
(b)Mr Shillito had shown an inability or unwillingness to comply with supervision-based sentences; and
(c)Mr Shillito had not been sentenced at all on the charges of threatening to kill and breaching his community-based sentences.
[32] Ms Wong submitted that the Judge failed, through the re-sentencing exercise, to reflect those relevant factors. She submitted that, by considering only the sentence appropriate for the charge of threatening to kill, the Judge incorrectly put aside the need to re-sentence Mr Shillito on the domestic violence offending.
[33] Ms Wong noted particularly an apparent confusion in the sentencing decision in relation to the period Mr Shillito had spent on remand leading up to the 29 November sentencing — the Judge expressly took it into account (possibly in conjunction with the earlier period of remand) both as an offset in the calculation of sentence on the threatening to kill charge and as the reason that “community detention will go” (stated to be because it had been served by the remand in custody).
[34] Ms Wong submitted the sentence should have comprised 12 months’ imprisonment as initially indicated for the domestic violence offending, with a cumulative nine-month sentence of imprisonment for the August offending,
12 R v P [1996] 3 NZLR 132 (CA) at 138.
amounting to a starting point of 21 months’ imprisonment. Account could then appropriately have been taken of the three months spent in custody.
[35] In Ms Wong’s submission, imprisonment was the only appropriate response given Mr Shillito’s history of non-compliance (involving more than 10 convictions for breach-related offending); the seriousness of his offending; his previous convictions (including speaking threateningly 2007/2011/2020); threatening to kill (2013/2020); injuring with intent to injure (2016); common assault (2010); male assaults female (2010); assault with intent to injure (2007); and Mr Shillito’s recent non-compliance with the May sentence.
[36] Ms Wong submitted that the sentence of 18 months’ intensive supervision was manifestly inadequate to reflect the seriousness and totality of Mr Shillito’s offending, his conduct while on a recent community-based sentence, and the risk he poses to the community. A further community-based sentence, in her submission, was inappropriate.
[37] Ms Wong noted that time spent on remand is an administrative consideration and will not generally be taken into account to reflect the length of a sentence. That said, the practical effect of remand time may be to render a sentence of imprisonment less appropriate. Ms Wong submitted that in this case a sentence of imprisonment remained the appropriate sentence as Mr Shillito, if sentenced to 10 and a half months’ imprisonment would have spent approximately seven months in prison after the date of re-sentencing.
[38] Ms Wong submitted the sentence of imprisonment must also be coupled with an order for special release conditions under s 93 Sentencing Act.
Respondent’s submissions
[39] Ms McRae, for Mr Shillito, first set out the narrow grounds of his cross-appeal relating to the Waitaki boundary condition. The condition was clearly intended to provide protection to the victim, as a resident of Timaru. The effect of the condition is to prevent Mr Shillito, a resident of Central Otago, from travelling to his family in Christchurch. Ms McRae thinks that an appropriate condition would ban Mr Shillito
from entering the district of Timaru, leaving Mr Shillito able to travel between his home and Christchurch (via Fairlie, Geraldine).
[40] On the Crown’s appeal, Ms McRae first took issue with some aspects of Ms Wong’s three context matters, above at [31]:
No meaningful portion of July sentence served?
[41] Ms McRae noted that Mr Shillito had in fact spent 71 days in custody (14 May 2021 to 27 July 2021) before receiving the July sentence.
Inability or unwillingness to meet supervision-based sentences.
[42] Ms McRae noted, apart from several supervision sentences imposed in the Youth Court jurisdiction in 1999, Mr Shillito, before July 2021, had only one supervision-based sentence (in 2010), in relation to which there were no issues of non- compliance. Ms McRae submitted the reports received during the two sentencing exercises in 2021 indicated a clear recognition and willingness on the part of Mr Shillito to engage with rehabilitate programmes. Ms McRae submitted that any assessment of inability or unwillingness to comply is premature.
No sentence at all for August offending.
[43] Ms McRae recognised that it is fair to state at the time of the November sentencing that Mr Shillito had not been sentenced at all for the August offending. But in her submission the 95 additional days Mr Shillito spent in custody (awaiting the November sentencing) was a matter to be brought into account. Ms McRae submitted, by reference to the Judge’s observations both in relation to the May offending and the August offending, that it is clear the Judge considered that the periods spent in custody were sufficient to reflect the totality of the offending, when combined with the periods of 18 months’ intensive supervision which was re-imposed.
[44] Ms McRae noted the unique advantage the Judge had of observing Mr Shillito’s demeanour, engagement and remorse during the sentencing process, leading to the Judge’s assessment that Mr Shillito’s “obvious need to get urgent help” would not necessarily be aided by a further period of imprisonment.
[45] In the alternative, should this Court find there was an error in the Judge’s sentencing and re-sentencing approach, Ms McRae submitted the sentencing was within range.
[46] She first submitted that the July sentence was within range, a matter which the Crown (although describing the July sentence as “merciful”) does not dispute.
[47] Second, Ms McRae submitted the November sentencing (and re-sentencing) was also within range. She submitted a supervision-based sentence was appropriate having regard to the focus Mr Shillito had on rehabilitation (supported by the reports)
— it was premature to categorise him as a person unwilling or unable to comply with such a sentence. With a total of five and a half months spent in custody, representing the equivalent of a sentence of 11 months’ imprisonment, the sentence of 18 months’ intensive supervision may be viewed as appropriate.
[48] Ms McRae rejected the Crown’s submission that an appropriate calculation of cumulative sentences would have involved the original nine months’ imprisonment from the July sentence to the additional 12 months of the November sentence. Ms McRae submitted, for totality, a reduction of three months (to 18 months) would be appropriate. With the remands in custody totalling five and a half months, Ms McRae submitted it was appropriate that the Court favoured a community-based sentence over leaving Mr Shillito to serve a further period of a mere three and a half months’ imprisonment. Such a term would not have provided a meaningful opportunity for rehabilitative programmes in the prison context and simply delayed Mr Shillito’s ability to have meaningful engagement with rehabilitation services. Ms McRae noted that it was clear the Judge had this forward-looking sentencing approach in mind and that it was an appropriate sentence in the circumstances.
Discussion
The Crown’s appeal
[49] When it came to the November sentencing and re-sentencing of Mr Shillito, there were two distinct tranches of offending, each of which required distinct consideration and application of the sentencing principles. A fair reading of the
November “re-sentencing” notes suggests that the culpability of the May offending (on which Mr Shillito’s sentencing was now a de novo exercise) was effectively merged into the assessment made of the August offending. In other words, nothing was added for the May offending because, in terms of the explanation given in the November sentencing notes, the “community-detention … has been served by the remand in custody”.
[50] It is therefore necessary on this appeal to approach the sentencing exercise afresh, stepping through each of the two tranches of offending.
May offending
[51] For his May offending, Mr Shillito was to be sentenced on his guilty pleas for strangulation, assault with a weapon and intentional damage, and injuring with intent.
[52] The strangulation charge was subject to a maximum sentence of seven years’ imprisonment. This Court’s decision in Ackland v Police, in which Cooke J reviewed the then-new offence of strangulation and set out guidelines for sentencing, is a useful reference point in this case (as the Judge recognised in the July sentencing).13 That said, it is the overall nature and culpability of the offending which is crucial — sentencing on strangulation charges is not to become mechanistic.14
[53] As recognised by both counsel, the starting point of 12 months’ imprisonment on the strangulation charge (as adopted by the Judge) was clearly appropriate. There is then the offending on the second charge (assault with a weapon) which occurred on a separate occasion (three days later). Although carrying a lesser maximum penalty, on the facts the second incident was more sustained and involved and the victim lost consciousness. As such, an adjusted starting point of 16 months was appropriate, as adopted by the Judge.
[54] For his guilty pleas, Mr Shillito was entitled to a 25 per cent discount, as provided by the Judge.
13 Ackland v Police [2019] NZHC 312, (2019) 29 CRNZ 179.
14 Houhamau v Police [2019] NZHC 2743 at [33]; T v Police [2019] NZHC 3375, [2020] 2 NZLR 270 at [35]; Milne v Police [2020] NZHC 358 at [22].
[55] There was presented to the Court in relation to Mr Shillito, a cultural report which the Judge summarised in her sentencing remarks.15 The extent of deprivation leading to addiction, and the clear causal link to Mr Shillito’s difficulty in controlling anger, justified a further 20 per cent discount, as allowed by the Judge.
[56] Finally, there is the issue of any further discount for remorse. The Judge, at the July sentencing, granted a further discount of 10 per cent for “plain and clear expressions of personal and genuine remorse accepted as such by the victim”.16 That additional allowance partly explains Ms Wong’s description of the July sentence as “merciful”. In the context of the July sentence, at the time it was imposed, it was a matter the Judge could appropriately take into account, notwithstanding the fact the 25 per cent discount for the guilty plea to some extent already arguably recognised remorse.
[57] For the purposes of Mr Shillito’s re-sentencing in November, any discount for remorse in relation to the May offending was no longer appropriate — the implicit assessment that Mr Shillito’s remorse displayed in July was genuine could no longer hold true, given his revictimisation of the same victim in the month immediately following his July community-based sentencing.
[58] The appropriate sentences, to be imposed on re-sentencing for the May offending, were therefore:
(a)strangulation — six months’ imprisonment (12 months less 45 per cent); and
(b)assault with a weapon — nine months’ imprisonment (16 months less 45 per cent).
[59] Accordingly, on re-sentencing, the appropriate sentence would have been 15 months’ imprisonment overall (the additional two charges, on a totality approach, not warranting additional penalty).
15 July sentence, above n 1, at [7]. See also at [15].
16 At [14].
[60] The difference between this 15 months calculation and the 12 months adopted by the Judge at the July sentencing and re-adopted by the Judge for the 19 November 2021 re-sentencing reflects the principled need to remove from calculation what was a significant discount for the previously perceived remorse.
The August offending
[61] The charge of threatening to kill carried the same maximum penalty (seven years’ imprisonment) as the strangulation charge.
[62] The Judge adopted a 12 month starting point.17 That took account of the seriousness of the threats combined with the fact that the threats were made from a distance with no accompanying physical violence as such.18
[63] The Judge did not refer to other aggravating features, including the fact the offending was committed in breach of intensive supervision and community detention. Nor was there apparent recognition of Mr Shillito’s criminal record, particularly in relation to family violence dating from 2010, 2013, 2019, 2020 and the most recent May 2021 offending.
[64] That said, Mr Shillito was entitled to a 25 per cent discount for his guilty pleas in relation to the August offending. The Judge accordingly, from her starting point of 12 months’ imprisonment, settled upon a calculation of nine months’ imprisonment. Given the aggravating features (both associated with the offending and personal to Mr Shillito) that sentence must be seen as being at the very lowest end of the range. The Crown, for the purposes of its appeal, did not seek to challenge the nine months calculation. I treat it as the appropriate calculation for the next stage of assessment. I also treat as appropriate Mr Shillito’s conviction and discharge on the two breach charges (notwithstanding that they might equally have warranted adjusting the sentence of the threatening to kill charge).
17 November sentence, above n 2, at [4].
18 At [3].
[65] In the sentencing, the point now reached therefore is that the indicated sentences are 15 months (for the May offending) and nine months (for the August offending), a total of two years’ imprisonment.
[66] The distinct nature and separate timing of Mr Shillito’s two tranches of offending (May and August) did not lend itself to any adjustment for totality of sentence.
[67] At this point in the sentencing exercise, the issue is as to the correct type of sentence. The Judge, faced with what she viewed as Mr Shillito’s “obvious need to get urgent help” and her assessment (having regard to time served) that Mr Shillito would have a remaining six weeks to serve in custody, found it appropriate not only to eliminate the (intensive supervision and community detention) sentence for the May offending, but to impose another community-based (intensive supervision) sentence on the August offending.
[68] When, as I have found, the appropriate total sentence indicated was one of 24 months’ imprisonment, the time spent by Mr Shillito in remand before his sentencing on the various charges would have been taken into account administratively when he served his term of imprisonment. For the Court’s purposes in sentencing, the time on remand needs to be brought into account only if (as the Judge did on re-sentencing) the Court is considering a sentence other than imprisonment.
[69] Given all the features of Mr Shillito’s offending, I find the sentence of intensive supervision (whether of 18 months or any other period) to have been manifestly inadequate to reflect the seriousness and totality of that offending, and to address the risk he poses to the community. The help that Mr Shillito needs for his meaningful rehabilitation (as recognised by the Judge) cannot cut across the needs of deterrence and prevention, represented by a period of detention, that are demanded in this case.
Outcome
[70] The Crown’s appeal will be allowed. The grounds of Mr Shillito’s cross-appeal will therefore fall away and that cross-appeal will be dismissed.
[71] What is required, in response to Mr Shillito’s offending, is a sentence involving detention. Home detention would have been appropriately ordered if a suitable residence had been available. I will grant leave under s 80I(2) Sentencing Act to Mr Shillito to apply for substitution of a sentence of home detention.
Orders
[72]I order:
(a)The Crown’s appeal is allowed. The sentences imposed in the District Court judgment dated 29 November 2021 are quashed. In their place, Mr Shillito is sentenced as follows:
(i)on the charge of strangulation to six months’ imprisonment;
(ii)on the charge of assault with a weapon to nine months’ imprisonment;
(iii)on the charge of threatening to kill to nine months’ imprisonment;
(iv)on the charge of injuring with intent to injure, he is convicted and discharged;
(v)on the charge of intentional damage, he is convicted and ordered to pay reparation of $400, with outstanding fines remitted;
(vi)on the charges of breaching intensive supervision and breaching community work, he is convicted and discharged.
(b)Mr Shillito has leave to apply for home detention under s 80I Sentencing Act;
(c)Mr Shillito is to report to a Police Station to be nominated by the Registrar within 24 hours after notice of the nomination being provided to counsel; and
(d)Mr Shillito’s cross-appeal is dismissed.
Osborne J
Solicitors:
Crown Law, Wellington
T A McRae, Barrister, Ashburton
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