Director of Public Prosecutions v Shackley
[2025] VCC 622
•20 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR -23-01568
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EUGENE SHACKLEY |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 April 2025 |
DATE OF SENTENCE: | 20 May 2025 |
CASE MAY BE CITED AS: | DPP v Shackley |
MEDIUM NEUTRAL CITATION: | [2025] VCC 622 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE – Causing Serious Injury Recklessly
Catchwords: Causing Serious Injury Recklessly – Possess Controlled Weapon Without Excuse -Stabbing attack- very serious offending- Delay
Legislation Cited: Sentencing Act (Vic) 1991
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269.
Sentence:Two years and 3 months imprisonment, non-parole period 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecutions |
For the Accused | Mr M. Weinman | Chester Metcalfe & Co. |
HIS HONOUR:
1Eugene Shackley, you have pleaded guilty before me to a charge of recklessly causing serious injury and a relevant summary offence of possessing a controlled weapon without an excuse.
2The maximum penalty for recklessly causing serious injury is 15 years' imprisonment. The maximum penalty for possessing a controlled weapon is a maximum of two years' imprisonment.
3You have admitted a very limited criminal history, although it does disclose a relevant prior matter.
4You were 24 at the time of the offending and are now 26.
Circumstances of Offending
5The circumstances of your offending are set out in the Summary of Prosecution opening which was Exhibit A on the plea and which forms part of these reasons. CCTV footage was also played in Court as part of the opening, it provides a graphic portrayal of your criminality. I have relied on the opening, being Exhibit A, the photographs tendered and the CCTV footage in arriving at an understanding of the objective gravity of your offending and your moral culpability.
6I will not summarise your offending in the same detail as is contained in Exhibit A.
7On Sunday 4 September 2022 you attended the vicinity of the Coles supermarket at Melton South, Market Square, in a Ford Territory driven by your partner Ms Wetherall. You were there apparently to support your brother and his associates in an armed altercation. Apparently one of your co-accused had been in an altercation with a group of youths who were also near the supermarket at some prior time.
8It is quite unclear why there was animosity between your group and the other group. The other group armed themselves with knives by stealing them from the supermarket. Around this time your brother rang you to indicate that there was likely going to be an altercation with another group of youths. You headed to the area in the Ford Territory and brought weapons with you.
9After arriving at Coles your six co-accused, all of whom ranged around 15 or 16, got into the Ford Territory, you were driven a short distance away and stopped, you armed yourself with a large knife and gave knives to your brother, and another co-accused.
10You and your co-accused then charged towards the other group. You headed for your victim and attacked him. He fell and stumbled, and you stabbed him repeatedly while he was on the ground. You stabbed him to the abdomen amongst other places, eviscerating him. His injuries were life-threatening. It was only through good fortune and through no action of yours that he was attended to in sufficient time. Unless he was treated promptly, he could have died.
11Your brother received stab wounds during his part in the attack. His injuries were also life-threatening.
12As I stated on the plea, it is only through good fortune that you do not face a murder charge and lose a brother as a result of your decisions on that day.
13The most serious injury inflicted by you was the stab wound to your victim's abdomen which resulted in the partial evisceration of the small bowel and an unspecified laceration to the small bowel, as I say, life-threatening if untreated.
Objective Gravity
14The objective gravity of your offending is obvious. It was an attack which involved a degree of premeditation, it was an attack in company, and it involved repeated stabbing. You stabbed someone in vulnerable areas of the body, a person who was lying on the ground. There is great concern in the community in relation to these sorts of violent incidents.
Personal Circumstances
15Turning to your personal circumstances.
16You identify as having Aboriginal heritage and you also have Fijian and Māori heritage.
17You grew up in a loving environment, however, your early life was afflicted by the loss of your father, and I was told he passed away due to a heroin overdose when you were young.
18You grew up in a Housing Commission area in Broadmeadows. In those circumstances you stated to a psychologist and others that you were exposed to situational violence and criminal elements in that vicinity.
19There was also some conflict at home, and you left home at around 15 and endured a period of homelessness thereafter for a period of time. You were couch surfing and living with friends.
20It is probably around this time that some of your mental health issues started to manifest and that might be part of the reason for that conflict and periods of transience, homelessness, sleeping on benches and at train stations. You were not engaged with any support services at that time of your life.
21You were also exposed to the trauma of having close friends killed in violent attacks during your late teens, and I accept that this deeply affected you and contributed to your sense of needing to protect your family and close friends.
22No doubt that part of your makeup can also be attributed to the Borderline Personality Disorder that has been identified by Dr Cunningham in his report. Symptoms associated with that diagnosis are a pervasive pattern of instability of self-image, emotions and impulsivity, and being prone to outbursts. You are in the words of Dr Cunningham, 'prone to emotional outbursts, impulsivity, anger and paranoia. The abuse of drugs in addition to these symptoms significantly increases his risk of violent behaviour.'
23Your teenage experiences occurred against the background of those mental health struggles that I accept you were likely battling at that point in time.
24Your mother has also had some challenges in relation to her mental health over the years, but based on the reference material provided by her you were otherwise provided with a loving and stable home.
25You did report, as you understand it, your late father had suffered schizophrenia.
26I do accept that there was some turbulence, disruption and instability in your early life and exposure to negative influences which attracts to some slight degree the mitigation often referred to as Bugmy mitigation.[1]
[1]Bugmy v The Queen (2013) 249 CLR 571.
27Despite those influences you have shown that you can lead a productive law-abiding life in society and to be engaged in gainful employment.
28You attended Staughton College in Melton until part-way through Year 10, partly you left school due to wanting to get into the workforce but partly due to your housing instability.
29You have worked in a variety of fields including roof tiling. You worked as a sales representative for around two years and then worked at warehousing. Whilst on bail for this matter you worked for an extended period in a landscaping role with a landscaping business in Caroline Springs. You have also been involved working in your partner's mother's cleaning business on a full-time basis.
30The testimonials relied upon on your behalf speak to this work ethic and ability to be involved in gainful employment, and that is a factor which goes to, amongst other things, your prospects of rehabilitation. I accept that your prospects are reasonable if you can address your substance use issues which are closely associated with what I will refer to as mental health ailments or personality disorders which will be a lot more difficult to address.
31I received a letter of support from Mr Stuart, Regional Sales Manager associated with Alinta Energy, and I accept the contents therein, and of course your mother's reference, your partner's reference and her mother's reference all speak to your ability to engage in gainful employment and work well.
32I also received a letter of support dated February 2023 in relation to alcohol and drug counselling from Cliff Deo and I received the CISP report which spoke to your efforts at rehabilitation, particularly during the latter part of 2022 and 2023 where during that period of delay you did show that you had an ability to be engaged in rehabilitative services, a willingness to accept them, and a reasonable ability to rehabilitate. I say 'reasonable' because of course your period on bail during that period of delay was not unblemished, and those matters were canvassed both at the Sentencing Indication Hearing and at the Plea.
33You have expressed remorse. I accept you have expressed remorse particularly through the reference material that I have referred to.
34Ms Walker, who is referred to as your mother-in-law, said:
He has expressed deep regret and disappointment in his actions to both my husband and me. I can attest that he has learnt from his mistakes and is determined to never be a part of the court legal system again. We as a family are fully committed to supporting him through his rehabilitation process and encourage him to focus on his strengths and continue working towards his gaols.
35Your partner also stated in her reference:
He has expressed his remorse numerous times to me and others for his actions and the victim. I genuinely believe that he understands the gravity of his behaviour and the impact it has had on the victim and the community. He has spent just over two years daily reflecting on his poor behaviour and choices and he has expressed he is extremely disappointed and ashamed of himself.
36I do accept that there has been genuine remorse in your case.
37I also accept that during the period of delay, since the offence occurred in September 2022, and now it is over two and a half years beyond that period that the likely outcome of the situation has been hanging over your head, no doubt for a substantial period of that delay. There has been considerable stress and anxiety about what charges would ultimately prevail in the court, what charges you would ultimately be able to either plead guilty to or whether you would have to contest a trial. I do accept, and was told, that the offer to plead to reckless cause serious injury was made some time ago. Your plea is a significant matter in discount of sentence and has a significant utilitarian effect, and in your case I also accept it is reflective of some remorse, so you are entitled to a discount in that degree.
38But in relation to delay it has been hanging over your head. There have been some steps towards rehabilitation during that period. I say 'some' because I mentioned a moment ago that period was not unblemished. It was concerning that given your very limited history and given the seriousness of what was hanging over your head that you nonetheless found yourself in circumstances where there was another charge, albeit of a more minor nature, but nonetheless it did not bespeak of unblemished commitment towards consistent rehabilitation.
39I do accept that based on the matters referred to in Dr Cunningham's report that you do have some significant mental health challenges. He writes that you had significant elevations of major depressive disorder and schizophrenic spectrum, that in his opinion the profile was consistent with borderline personality disorder, and he went on to set out the symptoms associated with that.
40No doubt during your life since teenage years, but also during that period of delay on bail, there has no doubt been times - and I base this in part also on the letter from Ms Wetherall - there have been times when you find you are unable to cope with and process your experiences and you become overwhelmed with matters in a way that others who do not suffer borderline personality disorder likely would not.
41I also take into account your commitment to CISP for the period that there was -a commitment to CISP.
42Your youth is a relevant sentencing factor still, notwithstanding you are now 26 and you were 24 at the time, and I balance that in part against what I have described as a limited history. At your age there is no reason why I should not have confidence, based on your work history to and the supports around you, your mother and your partner and her family, that you can move forward from this period in your life and again show that you can be a law-abiding productive member of the community.
Dr Cunningham Report
43The borderline personality and the issues raised by Dr Cunningham also enliven some of the Verdins' principles but in particular hardship in custody. You also have a need for treatment of mental health issues, and speaking pragmatically, the opportunities for those treatments in custody are sub-optimal.[2]
[2]R v Verdins (2007) 16 VR 269.
44I also accept what Dr Cunningham has written in relation to the impulsivity and anger outbursts, increasing the risk of violent outbursts when drug-affected, and that issue might have some very slight connection to the criminal conduct before me, in particular you feeling the need to protect your brother somehow and then act in this outrageously criminal manner which not only seriously injured another but incidentally put your brother in more danger. No doubt on reflection you would realise that the better thing to do would have been to collect your brother and his friends and leave the area.
Matters in Mitigation
45I have noted your prospects of rehabilitation, and I do accept that they are reasonable given your work history and the supports. However, general deterrence is a very significant factor in a case such as this, as is denunciation.
46I was provided with some reference to other court cases by the prosecutor Mr Gray and those cases set out some of the principles and considerations in relation to a charge such as this, not just a charge of reckless cause serious injury but one that is occasioned in like circumstances.
47In relation to specific deterrence, I am satisfied that given the period you have spent in custody and what now awaits you, your limited history and the motivations you have to remain offence free in the community, that specific deterrence is not such a significant factor in your case.
48As you know there was a Sentence Indication Hearing where your counsel on your behalf sought an indication that time served, which at that time was 78 days, and a Community Corrections Order was the appropriate sentence. That was well outside the range for offending of this gravity, and I rejected that. I indicated that I would not be accepting that proposition, I indicated it was outside the range. I did indicate I would consider a CCO in combination with a lengthier period of custody.
49Having now considered all the sentencing factors, I have settled on a sentence of considerable mercy and leniency taking into account the period of delay. However, I am not of the view that a combined sentence with a CCO can meet all of the sentencing factors that I must consider.
50There is a lot of material before me about your remorse and reflection and your ability to rehabilitate. I accept all of that, but I also must have regard to the range of sentences for offences of this type, current sentencing practices, and in particular a sentence that reflects general deterrence and community denunciation. I give due weight to those factors. I find a combination lies outside the range.
Sentence
51Accordingly, I sentence you as follows, Mr Shackley:
52On the charge of recklessly causing serious injury, you are sentenced to two years and three months' imprisonment.
53Carrying offensive weapon, you are sentenced to 14 days' imprisonment.
54That makes a total effective sentence of two years and three months' imprisonment.
55I set a non-parole period of 15 months. PSD Mr Gray.
56MR GRAY: Pardon, Your Honour.
57HIS HONOUR: Do we have PSD.
58MR GRAY: Yes, we do, 121 not counting today, Your Honour.
59HIS HONOUR: I declare that you have served 121 days as pre-sentence detention attributable to that sentence.
60Pursuant to s6AAA, were it not for your pleas of guilty I would have sentence you to three and a half years' imprisonment with a two-year non-parole period.
61Were there any other orders sought, Mr Gray.
62MR GRAY: No, Your Honour.
63HIS HONOUR: There are no disposals, or anything like that.
64MR GRAY: Excuse me, Your Honour. No, Your Honour.
65HIS HONOUR: No disposals. Nothing else, Mr Weinman, that I have overlooked.
66MR WEINMAN: No, Your Honour.
67HIS HONOUR: All right. Thank you, we will adjourn the court.
68MR WEINMAN: As Your Honour pleases.
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