Director of Public Prosecutions v Shackley
[2024] VCC 243
•6 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01630
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EUGENE SHACKLEY |
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JUDGE: | HER HONOUR JUDGE HAWKINS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2024 | |
DATE OF SENTENCE: | 6 March 2024 | |
CASE MAY BE CITED AS: | DPP v Shackley | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 243 | |
REASONS FOR SENTENCE
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Subject:Criminal Law - Sentencing.
Legislation Cited: Crimes Act 1958 (Vic) s197; Sentencing Act 1991 s3(1), s5.
Cases Cited:Kowski v The King [2024] VSCA 3; R v Verdins [2007] 16 VR
269.
Sentence: Aggregate fine of $2,500 with conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Gurry | Office of Public Prosecutions |
| For the Accused | Mr J. Karitzis | Bowler & Co. |
HER HONOUR:
1Eugene Shackley, you have pleaded guilty to:
· four charges of criminal damage, each charge carrying a maximum penalty of 10 years' imprisonment.[1]
[1]Crimes Act 1958 s197(1).
2On 9 February 2024, after a short trial, you were found not guilty by a jury of your peers of one count of aggravated burglary.
3Those charges relate to events which occurred in the early hours of 25 September 2021.
4You have admitted your prior criminal history.[2]
[2] Exhibit A.
5The circumstances of your offending are set out in the Summary of Prosecution Opening for Trial dated 6 February 2024.[3] I have regard to that document insofar as it addresses the matters to which you have pleaded guilty.
[3] Summary of Prosecution Opening for Trial dated 6 February 2024.
6On 24 September 2021, you attended a birthday party at Growth Drive, Weir Views.
7You had consumed a significant amount of alcohol during the day leading up to the party and continued drinking into the evening.
8At approximately 12.10 am on 25 September 2021, you and friend, Mr Uluivua, left the party together and walked along Growth Drive.
9You stopped outside a house on Growth Drive, where you kicked a glass panel at the front of the house. You then went to the west side of the house and smashed a window with an unknown object. This forms the basis of Charge 1.
10You and Uluivua then walked to a house on Waterbird Circuit. You removed a pink and white garden light from the front garden and threw it toward a car parked in the driveway. This caused the light to break on the ground and forms the subject of Charge 2.
11Next, you walked to another property on Waterbird Circuit where you picked up a bin and threw it toward the road, then kicked the passenger-side wing mirror of the Toyota Aurion parked in the driveway. This caused the wing mirror to break. You then picked up the bin and threw it at the Toyota. This forms the basis of Charge 3.
12You and Uluivua then walked to another property on Waterbird Circuit, where the occupants were asleep. You kicked the door of the house and began aggressively yelling abuse at the occupants, who were unknown to you.
13After yelling at the occupants to come outside, you kicked the front door open with such force that the door hit the wall inside. This forms the basis of Charge 4. The damage you caused to the door enabled you to briefly enter the premises.
14You banged on the door of a final house next door, yelling at the occupants inside, before you jumped over the side fence and the neighbouring backyards.
15Your offending was captured on high-quality CCTV at the homes of your victims.
16Whilst the value of the damage you caused is not excessive and your offending was of relatively short duration, it occurred late at night when several of the victims were present in their homes and heard the damage to their property occurring. Your offending in relation to Charge 5 involved breaking the front door frame of a residential home, allowing entry to that residence.
17Your offending is aggravated by your state of intoxication and the aggression you demonstrated throughout, targeting apparently random properties. Your offending occurred whilst you were subject to a community corrections order.
18Of your conduct on this night, the gravity of your offending in Charge 5 is by far the most serious, because you broke down the front door of an occupied residential property in the middle of the night. Your offending is less serious for the remaining charges. Overall, I conclude that the gravity of your offending is in the low mid-range.
19But for the charges for which you were acquitted at trial, these matters could have been adequately dealt with in the Magistrates' Court.
20No victim impact statements were tendered on this plea. Statements given to police by the victims of Charge 5 principally relate to their response to the offence of aggravated burglary, of which you were acquitted at trial. Noting that, they describe the terror they felt hearing you break down their door in the middle of the night. It is a reasonable inference to infer that they would have been placed in fear by your offending.[4]
[4]Kowski v The King [2024] VSCA 3.
21A character reference from your partner Brooke Weatherall was tendered on this plea.[5] Weatherall stated that she has known you for over eight years and the two of you have been in a relationship for two and a half years. You are the stepfather to her daughter.
[5] Exhibit 1.
22Weatherall notes that you have expressed remorse to her for your offending, that you are disappointed with your choice of actions, but that you have learned a valuable lesson. She also describes that you have struggled with mental health and alcohol use.
23She encouraged you to see a GP and get a mental health care plan. She described that you commenced drug and alcohol counselling in 2022 and responded to the treatment. She says that you now have your alcohol use under control and you are open to receiving further mental health treatment. There has been no evidence confirming your attendance at this counselling tendered to the court.
24You wrote a letter of apology dated 26 February 2024[6] after the conclusion of your trial. You speak of your alcohol addiction, your mental health challenges, and the support your partner has given you. Whilst you acknowledge your wrongdoing, this letter speaks of your personal circumstances and challenges rather than demonstrating an awareness of the harm you caused to the victims of your crimes. Whilst your apology demonstrates you hold a degree of insight and self‑awareness, in my view it is limited evidence of genuine remorse for your victims.
[6] Exhibit 2.
25Mr Shackley, you are a 25-year-old Aboriginal man with connection to culture and mob in Queensland through your mother's side of the family, and also Fijian/Maori heritage through your father.
26You were raised by your mother and have two younger half-brothers. Your father passed away the year you were born.
27You left the family home at around the age of 15 and have experienced subsequent periods of transience and homelessness.
28You completed Year 9 at school and have obtained various work machinery tickets and have completed a Certificate II in IT and Civil Construction. You have worked in a variety of fields including sales, distribution, handyman and cleaning and landscaping. You have not maintained your previous full-time employment due to your participation in this criminal trial. You are currently unemployed and in receipt of Centrelink benefits.
29You assist your partner in the care of her child and report that you are motivated to re-enter the workforce and embark on further study once your court matters are finalised.
30You maintain contact with your family, who live in regional Victoria.
31You reported to the Forensicare assessor for the purposes of your CCO assessment[7] that you have modified your cannabis intake and rarely if ever smoke now. You remain abstinent from alcohol. The mental health nurse notes that you appear to have neglected your physical and mental health and you should find a local GP who can assist with a mental health care plan and referral to a psychologist to assist you to identify your values and focus on achieving prosocial life goals.
[7] Mental Health Advice and Response Service assessment report dated 28 February 2024.
32I urge you strongly to follow up on those recommendations, as they will significantly enhance your prospects of rehabilitation and reduce your prospects of reoffending.
33No psychiatric or psychological material was filed on your plea to either describe or confirm any mental health diagnoses. Accordingly, you do not rely on the principles in Verdins' case.[8]
[8]R v Verdins [2007] 16 VR 269.
34You filed a CISP progress report dated 21 March 2023,[9] which confirms that you commenced drug and alcohol counselling in 2022. I accept that it demonstrates that you have made efforts towards reform and rehabilitation.
[9]Exhibit 3.
35At the relatively youthful age of 23 at the time of your offending, whilst you are not technically a 'young offender',[10] you have a limited criminal history and, as such, rehabilitation remains a significant sentencing consideration. Whilst general deterrence and community protection remain important sentencing considerations for you, I consider that your offending is not sufficiently serious to reduce the weight which ought to be accorded to rehabilitation.
[10] Sentencing Act 1991 s3(1)
36You were committed by way of straight hand-up brief and entered a plea of not guilty to the charges you faced at that time. The Crown concedes that you indicated an intention to plead guilty to the charges of criminal damage for some time and that you are therefore entitled to the resultant utilitarian benefit to the administration of justice by virtue of your plea in relation to these charges.
37There has been considerable delay not of your making. Delay is relevant to the sentencing process in two ways. Firstly, it provides you with a lengthy period to demonstrate any steps you have taken towards your rehabilitation. This is relevant to specific deterrence. Secondly, and more relevantly in your case, you have had the anxiety and uncertainty of the prospect of a sentence hanging over your head for close to two years. This is a form of punishment in itself.
38In all the circumstances I will accept your plea of guilty as an early one.
39At the time of committing these offences you were subject to a Community Correction Order for injury and property offences.
40You have no other prior convictions.
41I had you assessed for your suitability to be placed on a further Community Correction Order and you were assessed as suitable. That assessment suggested that you pose a high risk of reoffending.
42The Crown submit that a conviction is required in the circumstances of your case and that a Community Correction Order is open and within the available sentencing range. Your counsel submits that a fine alone is sufficient to address the relevant sentencing considerations.
43Your prospects of reoffending will undoubtedly be reduced by your voluntary continuation of alcohol and drug, and mental health counselling and treatment. I am not satisfied that your prospects of rehabilitation will be significantly enhanced by encouraging your association with offending peers were I to order that you participate in unpaid community work, nor am I satisfied that in all the circumstances your offending is sufficiently serious as to otherwise require the imposition of a Community Correction Order.
44In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it, and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct and deterring you and others from engaging in similar offending, with the interests the community has in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.[11] I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances, and the sentence must be no more than is necessary to satisfy those various objectives of sentencing.
[11]Sentencing Act 1991 s5.
45Having regard to these factors, together with current sentencing practices for the offences to which you have pleaded guilty, I consider that a fine will adequately address all relevant sentencing considerations.
Sentence
46Accordingly, Eugene Shackley, I sentence you as follows:
47On Charges 1, 2, 3 and 5 you are convicted and fined an aggregate of $2,500.
48You must pay this amount to the Registrar of the County Court. If the fine is not paid to the Registrar of the County Court today, it will be referred to the Director of Fines Victoria for collection and management under the Fines Reform Act 2014.
Section 6AAA Declaration
49Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial in respect of these four charges I would have sentenced you to a community corrections order for a period of 12 months.
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