DPP v Shackley [2025] VCC 622

1. The 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.

1. Turning to your personal circumstances.
2. You identify as having Aboriginal heritage and you also have Fijian and Māori heritage.
3. You 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.
4. You 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.
5. There 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.
6. It 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.
7. You 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.
8. No 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.'
9. Your teenage experiences occurred against the background of those mental health struggles that I accept you were likely battling at that point in time.
10. Your 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.
11. You did report, as you understand it, your late father had suffered schizophrenia.
12. I 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]
13. Despite those influences you have shown that you can lead a productive law-abiding life in society and to be engaged in gainful employment.
14. You 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.
15. You 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.
16. The 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.
17. I 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.
18. I 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.
19. You have expressed remorse. I accept you have expressed remorse particularly through the reference material that I have referred to.
20. Ms 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.

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.

1. I do accept that there has been genuine remorse in your case.
2. I 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.
3. But 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.
4. I 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.
5. No 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.
6. I also take into account your commitment to CISP for the period that there was -a commitment to CISP.
7. Your 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.

1. The 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. I 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.

1. I 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.
2. I 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.
3. In 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.
4. As 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.
5. Having 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.
6. There 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.

1. Accordingly, I sentence you as follows, Mr Shackley:
2. On the charge of recklessly causing serious injury, you are sentenced to two years and three months' imprisonment.
3. Carrying offensive weapon, you are sentenced to 14 days' imprisonment.
4. That makes a total effective sentence of two years and three months' imprisonment.
5. I set a non-parole period of 15 months. PSD Mr Gray.
6. MR GRAY: Pardon, Your Honour.
7. HIS HONOUR: Do we have PSD.
8. MR GRAY: Yes, we do, 121 not counting today, Your Honour.
9. HIS HONOUR: I declare that you have served 121 days as pre-sentence detention attributable to that sentence.
10. Pursuant 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.
11. Were there any other orders sought, Mr Gray.
12. MR GRAY: No, Your Honour.
13. HIS HONOUR: There are no disposals, or anything like that.
14. MR GRAY: Excuse me, Your Honour. No, Your Honour.
15. HIS HONOUR: No disposals. Nothing else, Mr Weinman, that I have overlooked.
16. MR WEINMAN: No, Your Honour.
17. HIS HONOUR: All right. Thank you, we will adjourn the court.
18. MR WEINMAN: As Your Honour pleases.

[1] Bugmy v The Queen (2013) 249 CLR 571.

[2]R v Verdins [2007] VSCA 102; (2007) 16 VR 269.