Citation: R v Dillon-Shallard [2022] NSWDC 478
Court: District Court of New South Wales
Date: 14 October 2022
Judge(s): Scotting DCJ
Background
The offender, a 50-year-old electrician, had been friends with the victim for approximately five years. On the evening of 15 June 2019, the two men watched a rugby league game together at the victim's home in Bomaderry, each consuming nine to twelve full-strength beers and some cocaine throughout the night.
After a dispute arose, the victim physically assaulted the offender at the offender's home in front of children and family members, throwing him onto a concrete driveway and punching him in the head. Later that evening, the offender returned to the victim's property armed with a knife and stabbed the victim twice, once in the left lower chest and once in the left armpit, causing wounds and a small collapsed lung (pneumothorax).
The offender pleaded guilty in the Local Court to reckless wounding contrary to s 35(4) of the Crimes Act 1900, and the matter came before the District Court for sentencing.
Legal Issues
- What was the appropriate sentence for the reckless wounding, having regard to the objective seriousness of the offence and the statutory maximum and standard non-parole period?
- To what extent did the offender's deprived upbringing, childhood trauma, and resulting mental health conditions reduce his moral culpability?
- Whether the sentence should be served by way of an Intensive Corrections Order (ICO) rather than full-time custody, having regard to the offender's rehabilitation prospects and community safety.
Decision
Objective seriousness: The court found the offence involved some objective gravity, but noted that the wounds were relatively small, the most serious injury being a small pneumothorax, and the injuries were treated with sutures. The mental element was recklessness rather than intention, and while there was some limited planning in the offender arming himself before returning to confront the victim, there was also significant provocation from the victim's earlier physical assault (at [42]-[46]).
Aggravating factors: The offence involved the use of a weapon and was committed in the presence of children, both statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. The offence also occurred at the victim's home (at [49]-[51]).
Moral culpability and background: The court accepted that the offender's deprived upbringing, which included sustained domestic violence, childhood trauma, his sister's sexual assault, and the early death of a sibling, had led to significant mental health difficulties and problematic alcohol use from a young age. Applying Bugmy v R (2013) 249 CLR 571, the court was satisfied that the offender's moral culpability for the offence was reduced as a result (at [47]).
Rehabilitation, remorse, and the ICO: The court found the offender had demonstrated genuine remorse, had abstained from alcohol and drugs since the offence, and had undergone regular drug and alcohol screening. His good work history and motivation to regain access to his children supported a finding of good rehabilitation prospects. The court concluded that community safety would be best served by allowing the offender to continue rehabilitation in the community on an ICO, noting the low risk of reoffending (at [52]-[53], [61]). A 25% discount was applied for the early guilty plea, and the court imposed a sentence of 1 year and 9 months to be served by way of an ICO (at [5], [59]-[62]).
Orders Made
- The offender is convicted of reckless wounding.
- A term of imprisonment of 1 year and 9 months is imposed, to be served by way of an Intensive Corrections Order commencing 14 October 2022 and expiring 13 July 2024.
- The offender must report to the Penrith Community Corrections Office by 4pm on 21 October 2022.
- Standard ICO conditions apply: no further offences; submission to supervision by a Community Corrections Officer.
- Additional conditions: abstinence from restricted or prohibited drugs (except those prescribed); drug and alcohol rehabilitation treatment as directed; mental health treatment as directed; and 100 hours of community service work.
Key Takeaways
- The District Court applied Bugmy v R (2013) 249 CLR 571 to reduce the offender's moral culpability, finding that a childhood marked by domestic violence, trauma, and early substance use had contributed to the mental health conditions present at the time of the offence (at [47]).
- A 25% sentencing discount applied where the offender entered a guilty plea in the Local Court, consistent with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (at [5]).
- Where an offender demonstrates low reoffending risk, genuine remorse, and strong rehabilitation prospects, a court may order that a sentence of imprisonment be served by way of an ICO rather than full-time custody, on the basis that community safety is best served by supported rehabilitation in the community (at [61]).
- Significant provocation by a victim can be treated as a mitigating factor in sentencing, even where it does not reduce the gravity of the offence itself (at [46]).
- Consequences flowing from conviction, including loss of contact with the offender's children and the forced relocation of his business, were among the circumstances taken into account in arriving at the sentence (at [54]-[55]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999
Cases
- Bugmy v R (2013) 249 CLR 571
- R v Olbrich (1999) 199 CLR 270