R v Shumski [2025] VSC 148

1 In the early hours of Sunday 7 May 2023, Michael Callow, aged 45, was ejected from a hotel in Sale for inappropriate and aggressive behaviour. Shortly afterwards, in the street just around the corner, Mr Callow, who was of imposing size and disposition, threatened Spencer Shumski, aged 20, who had also been at the hotel. As Mr Shumski unwisely moved closer to Mr Callow, he produced a knife to frighten him. Mr Callow kicked out at Mr Shumski, who swung the knife in a round-arm fashion, nicking his thigh. Each man then stepped back from the other and adopted a fighting stance.

2 As this was occurring, Mr Callow's friend Clint Allen, aged 38, had been running towards Mr Shumski. As soon as he noticed Mr Allen, who was still running and had his arms raised in an attempt to assault him, Mr Shumski put his left arm out to protect himself, and retreated. As he retreated and Mr Allen kept coming, Mr Shumski swung the knife, stabbing him in his chest. Mr Allen then stumbled, but gathered himself immediately, and kept running at Mr Shumski, plainly with the intention of assaulting him again. As Mr Shumski continued to retreat, Mr Allen lunged at him with an attempted round-arm punch. As this occurred, Mr Shumski side-stepped Mr Allen slightly and swung the knife again, stabbing him in the chest a second time. Moments later, Mr Allen fell to the roadway, and did not get up again.

3 Tragically, and notwithstanding desperate attempts at resuscitation by friends and paramedics, Mr Allen died shortly afterwards. One of his chest wounds was fatal; the other was minor.

4 Later that day, Mr Shumski went to the local police station with his father and handed himself in. He told police he acted in self-defence. He was charged with murder, and has remained in custody ever since.

5 At his jury trial in Morwell, Mr Shumski gave sworn evidence. He said he pulled the knife on Mr Callow because he was scared for his life, and he hoped it would ward him off. As for Mr Allen, he said he only saw him at the last moment. He neither aimed for any part of his body nor intended to cause him any injury, but instead reacted in a split second to his assaults by just swinging in self-defence.

6 The two principal issues at trial were whether the Crown had proved, beyond reasonable doubt, that Mr Shumski, in stabbing Mr Allen, had the intention to cause really serious injury required for murder and that he had not acted in self-defence.

7 On 13 December 2024, a jury of twelve found Mr Shumski not guilty of murder, but guilty of manslaughter.

8 On 14 February 2025, I heard heartfelt victim impact statements from Mr Allen's loved ones, a plea in mitigation, and submissions on some disputed facts.

9 It is now my task to sentence Mr Shumski. I shall announce the sentence at the conclusion of these reasons.

Summary of circumstances of, and surrounding, offending

Several key events caught on CCTV; others not

10 Before turning to a more detailed summary of the offending and the surrounding circumstances, I note that several of the key events, including the confrontation with Mr Callow and the stabbing of Mr Allen, were captured wholly or partly by CCTV cameras. While the moving and still images are a bit grainy and not so sharp, and are taken from quite a distance at times, they still provide compelling evidence on critical issues.

11 Other parts of the evidence were supplied by witnesses to various events. But some of those witnesses were flatly contradicted by the CCTV footage - which serves as a reminder of the fallibility of human perception and recollection, especially about fast-moving and shocking events. The reliability of some witnesses was also likely affected by intoxication. Others appeared to be both credible and reliable.

12 While many facts were agreed or plain to see, the parties were at odds on some important facts relevant to sentence. I shall address the main disputed facts after giving the following outline of the more significant parts of the evidence.

13 I commence with a summary of the events at the hotel.

14 On the evening of Saturday 6 May 2023, Clint Allen was at Jack Ryan's Irish Bar in Sale with his wife Rebekah Allen, his friends Michael Callow and Lachlan Reynolds, and his daughter's boyfriend Zebulin Hartig. They were celebrating Mrs Allen's thirty-eighth birthday. Earlier, they commenced celebrations at Mr and Mrs Allen's home before heading to another hotel and then to Jack Ryan's.

15 Also at that same hotel at the same time were Spencer Shumski and his friends Lachlan Sherlock and Michael Shortis. They too had been to another hotel earlier in the evening.

16 Very late at Jack Ryan's, Mr Callow inappropriately touched a young female patron on the leg and the backside, and he picked up and then refused to return another young female patron's mobile phone. This led to a confrontation between Mr Callow and others, including hotel staff, which descended into heated words, pushing and shoving, and even punches being thrown. For instance, while Mr Callow was obstinately resisting returning the phone to its owner and arguing with hotel staff, Jesse McGoerk put his hand gently on Mr Callow's shoulder in order to get past him. But Mr Callow's response was to shove him aggressively, twice. So Mr McGoerk punched him. Mr McGoerk then felt punches to the back of his head by Mr Allen. He grabbed Mr Allen, held him down, told him to "stop fucking around", and offered that he was "too old to be doing that". The two men then shook hands.

17 At all events, staff - and others - at the hotel wanted Mr Callow to leave the premises, which he resisted vigorously. Despite that resistance, both verbal and physical, Mr Callow ultimately was ejected from the hotel by staff.

18 Shortly afterwards, Mr Allen and the others in his group joined Mr Callow outside the hotel. While out the front, Mr Callow hung around for a time and made aggressive pointing gestures towards another or others inside. Mr Allen tried to push Mr Callow away. Eventually, at about 12:45 a.m., Mr Callow and Mr and Mrs Allen followed Mr Reynolds and Mr Hartig, who had headed off down the footpath on MacAlister Street moments earlier.

19 As Mr Allen's group walked away from the hotel, Mr Shortis was seen "barrelling" towards the front door. Hotel staff intervened and prevented him from leaving while members of Mr Allen's group were within sight. Mr Shumski and others assisted in holding Mr Shortis and in trying to calm him down. Mr Shortis then attempted to leave via another exit, but again was prevented from doing so by Mr Shumski and hotel staff. Mr Shumski and Mr Shortis then went to the toilets, followed by an acquaintance, Kiara Barker. Meanwhile, from inside the hotel, Mr Sherlock looked out through a fence towards where Mr Allen's group was walking on MacAlister Street. Ultimately, Mr Shumski's group left the hotel at about 12:48 a.m.

20 However, Mr Shumski returned to the hotel briefly and took a satchel from Ms Barker, before finally leaving at 12:49 a.m. He then caught up with Mr Shortis and Mr Sherlock, who were waiting for him on MacAlister Street, outside Sale College.

21 As his group neared the corner of MacAlister and York Streets, at 12:51 a.m., Mr Shumski rang Tyren Smith, who had dropped him off in town earlier in the evening. He asked Mr Smith to come and pick him up "right now", and said it was "important". To Mr Smith's ear, he sounded "stressed". In his evidence, Mr Shumski said he asked Mr Smith to pick them up from Jack Ryan's, but denied he was stressed. He also said that, while they were heading to McDonald's, which was further down York Street, he thought they could be back outside the hotel with the food before Mr Smith arrived.

22 At about 12:52 a.m., Mr Shumski handed Mr Shortis the satchel he had been carrying. Moments later, Mr Shortis returned to the hotel to retrieve a coin purse he had left there, whereas Mr Sherlock, who had drifted behind, ran towards Mr Shumski as he approached York Street.

23 By this stage, Mr Allen's group had since crossed over MacAlister Street and turned left into York Street. Mr Shumski also turned the corner into York Street and followed Mr Allen's group, the members of which by then were somewhat scattered, with Mr Callow and Mrs Allen in the rear splinter faction. Meanwhile, Ms Barker ran up to join Mr Shumski, and Mr Sherlock was a short distance behind them.

24 There was evidence that someone from Mr Shumski's group yelled out to Mr Allen's group, and that at least Mr Callow stopped and turned around. In his evidence, Lachlan Reynolds said that Mr Callow was angry, yelling and aggressive as the two groups were coming together. On the other hand, parts of Mr Reynolds' evidence were inconsistent with the CCTV footage on related issues.

25 Mr Shumski said that it was Mr Callow who yelled out that he was "fucked", which he took to mean that he wanted to "get" him. While Mr Shumski told Mr Callow to "fuck off" in response, he said he was also terrified of him. For, while they were of similar height (both were quite tall), Mr Shumski weighed only about 63 kilograms at that time, whereas he thought Mr Callow would be 120 kilograms or more. Despite this asserted fear and despite Mr Callow changing his direction to walk back towards him, Mr Shumski accepted that he did not change his direction and instead kept walking towards Mr Callow. As I shall explain later, I regard that as a rash and fateful decision, to say the least.

26 As can be seen on the CCTV footage, it was at about 12:53 a.m. that Mr Shumski and Mr Callow walked towards each other. Ms Barker, who had been immediately behind Mr Shumski, stopped as he neared Mr Callow. Mrs Allen, who was behind Mr Callow, tried to grab him as he neared Mr Shumski.

27 By this stage, Mr Shumski had pulled a knife he had on his person and held it by his side in his right hand, visible to Mr Callow. In his evidence, Mr Shumski said he carried a knife for protection as a result of being assaulted some years earlier at the McDonald's further down York Street. There was no dispute that this had occurred, although one of his attackers turned out to be a friend later in life. Returning to the incident, Mr Shumski denied that he followed Mr Callow from the hotel in order to provoke him into a confrontation. He said that he feared for his life and that he hoped that showing Mr Callow the knife would stop him.

28 After the knife was produced, Mr Callow stepped back and sideways off the footpath and onto the roadway as Mr Shumski kept moving towards him. As Mr Shumski came nearer, Mr Callow kicked out at him. In response, Mr Shumski swung the knife in a low round-arm fashion at Mr Callow, nicking his thigh.

29 Each man then stepped back from the other and shaped up as if ready to fight.

30 While this was occurring, Mr Allen had been running from some distance behind Mr Callow towards Mr Shumski. The two men had just stepped back from each other and adopted a fighting stance by the time Mr Allen passed Mr Callow's left shoulder. As he reached Mr Shumski an instant later, Mr Allen was still running and had his hands raised in an attempt to push or strike him. Mr Shumski retreated immediately by walking backwards. As he did so, Mr Allen kept coming. Mr Shumski tried to ward him off with his left hand. As he did this, in the one motion, he jumped backwards and swung the knife in a round-arm fashion, stabbing Mr Allen in the chest region.

31 Mr Allen faltered, with his hands and knees kissing the wet bitumen for a moment. But, while still in forward motion, Mr Allen got up immediately and kept running straight at Mr Shumski, who was still retreating by walking backwards. By this stage, Mr Callow was jogging behind Mr Allen just to his left but also towards Mr Shumski, and was within a few metres of him and within his field of vision. Then Mr Allen, while still running, lunged at Mr Shumski and threw a right-handed round-arm punch at him. As this occurred, Mr Shumski side-stepped slightly to his left and swung the knife at Mr Allen a second time, again stabbing him in the chest region.

32 While this next event occurred off-camera, there is no dispute that Mr Allen fell to the roadway shortly thereafter. He did not get up again.

33 Desperate attempts were made to revive him by friends and paramedics, but, sadly, he was later declared deceased where he lay.

34 Meanwhile, after Mr Allen fell, Mr Shumski and Mr Sherlock initially walked backwards away from the scene. Together with Ms Barker, they then turned and headed back around the corner to MacAlister Street. Moments later, Mr Smith (and his girlfriend) arrived in a vehicle, collected Mr Shumski and Mr Sherlock there, and drove them away, leaving Ms Barker behind.

35 Mr Shumski was dropped off near the home of his friend Matthew Reynolds, which he reached on foot shortly afterwards. In his evidence, Mr Shumski, who lived with his parents, said he did not go home straight away because he was in shock, he did not want to wake his parents, and he had arranged to meet others at Mr Reynolds' place earlier in the night.

36 While at his friend's place, over the course of the morning, Mr Shumski received various pieces of information from others about what had happened, some of it conflicting, including about whether one or more had been stabbed and whether a person or persons were critically injured, airlifted to hospital or even deceased.

37 It was against that background that, when at Mr Reynolds' home, Mr Shumski sent some relevant messages and received some from others, either in response or (apparently) unsolicited. While Mr Shumski said in evidence that he was in shock and did not have a "great" recollection of their contents, he accepted that he sent and received the following messages.

38 At 4:00 a.m., he messaged the username "lucy.m.weston", saying, "I love you very much, some stuff happened last night and I'm probably going to get [ten], depending if it was DOA or not." (DOA, he said in evidence, meant "dead on arrival".) And then at 4:01 a.m., to the same username, he messaged, "I don't expect you to wait around for me, all I want is you to be happy." Then there is a love heart emoji, and he continued with, "that's all I ever wanted" (followed by another emoji), and, "I love you so much and I hope you understand, I promise I'll call you."

39 From 4:38 a.m., he messaged the username "eli.leggo", saying, "I've done something terrible and I may not be able to talk to you for years, depending on a few factors, but I really enjoy your company and will talk to you as soon as I can," followed by a love heart emoji. A minute later, he said, "But this is to do with the law." After that, he messaged, "I'm in big trouble." At 4:44 a.m., after he received the response, "Okay. Good luck," Mr Shumski replied almost immediately with, "Could be facing [ten] years." After the response "Til we meet again" came, Mr Shumski replied with, "Til we meet again."

40 At 4:49 a.m., Mr Shumski messaged the username "trakellaTKblockstar", saying, "Will speak to you when I can. I'm going away for many years." He received a response three minutes later, which read, "What's going on in the family?" And at 5:08 a.m., Mr Shumski messaged back, "Got into a fight with five people versus me and my mate, and two of them died I'm pretty sure." At 5:41 a.m., Mr Shumski received the reply, "I'm sorry bro, be strong, send me a way I can write to you."

41 The following messages were sent or received by Mr Shumski after he had returned to his family home later in the morning.

42 At 7:20 a.m., Mr Sherlock messaged Mr Shumski, saying, "Two stabbed and airlifted." In fact, no one had been airlifted anywhere.

43 At 10:49 a.m., Mr Shumski messaged the username "bry.carroll", saying, "Some stuff went down last night, I think I'm gone for a long time." A minute later, the response was, "Fuck, no good, man, good luck."

44 At 2:14 p.m., Mr Shumski sent a message to his friend Hayden Allen, saying, "Rest in peace [unprintable[1]]." An almost immediate response came saying, "Red hot," and another was, "Who got stabbed?" Mr Shumski replied, "That was me," and shortly afterwards, he messaged, "I killed him." When the response came, "Say on Mum's," Mr Shumski replied, "On Mum's." A little later, he said, "Stabbed two," and the reply read, "Who?" Mr Shumski responded with, "Love you cuz," and after that he said, "I'm handing myself in."

45 Earlier in the morning, at about 3:00 a.m., Mr Shumski had messaged his parents saying that he would not be home tonight. At about 6:00 a.m., he was driven home by Mr Reynolds' girlfriend. At some point thereafter, he went to bed.

46 Later in the day, at about noon, he first spoke to his mother, Reiki-Ann Shumski. His mother gave evidence that, among other things, her son told her he had been involved in an altercation when on his way to McDonald's after leaving the pub. He told her that, after someone from the group ahead yelled at him, he recognised that person from the pub. He told her that someone rushed or attacked him, and that, as a result of that, he was defending himself. She asked whether he had a knife, and said he had. She told him she heard there was a stabbing and that someone had died.

47 In his evidence, Mr Shumski said that, at his mother's suggestion, he began to write down what had happened. (His mother gave the same evidence.) However, he was deliberately brief in the note, and in his answers to his mother's questions, as he did not want to upset her or anyone else in his family. The note reads in this way:

We [were] at Jack Ryan's. This very tall guy that was groping girls and taking their phones got kicked out. Not long after that, we decided to leave. I called the designated driver [and] told him to come pick us up. I was then left alone to continue walking to get picked up and a large group containing that same guy who was groping, taking phones and talking shit to me was there, and they seen me, turned around and started rushing me.

48 Moreover, the note was incomplete, because Mr Shumski decided to speak to his father, and then completely forgot about the note.

49 In his evidence, his father Shannon Shumski explained that, at about 8:21 a.m., he heard that a person died as a result of a stabbing in Sale overnight. At about 2:00 p.m., he was woken by his wife and son. (He was getting some sleep in before the commencement of his night shift as a paramedic at 6:00 p.m.) While he was not certain about the detail of what was said, and while he found it difficult to distinguish between what he was told then and what he had been told since that time, in substance, he believed his son said the following, among other things. He and three others were walking to McDonald's, but he was left by himself when the others returned to the hotel to retrieve a bag. There was a confrontation between him and members of a group who had been at the hotel, one of whom had been groping a young girl. He had a knife, and he told them to fuck off. They were older and verbally aggressive. He was walking backwards trying to defend himself. Someone who rushed towards him fell back and hit his head on the concrete. He told another person who had confronted him to go and look after his friend.

Attendance at police station; arrest; interview; and charge

50 Soon after their conversation finished, and consistently with the message he sent to Hayden Allen just after at 2:14 p.m., Mr Shumski went to the local police station with his father.

51 Once there, he was arrested and interviewed. He told police that "it was self-defence. Straight up, that's what it was. He rushed me. You got fuckin' heaps of cunt there that rushed me and I'm by myself". He was asked to give further details but declined to do so, and thereafter exercised his right to silence.

52 Mr Shumski was charged with murder. He has remained in custody ever since.

53 The medical and photographic evidence showed that Mr Allen suffered two stab wounds - one to his upper left chest, just under his nipple, and the other in the middle of his chest, near his sternum.

54 Forensic pathologist Dr Hans DeBoer explained that, while the wound to the upper left chest was only five centimetres deep, it was fatal, because of the internal damage associated with it. The other wound was minor and did not contribute to death.

55 However, despite the fact that the incident was captured on CCTV, it could not be determined which strike caused which wound. This led to my ruling and associated jury directions to the effect that, in order to establish murder or manslaughter, the prosecution must prove that both acts of stabbing were accompanied by all of the elements of the offence in question, including mens rea and an absence of self-defence.[2]

Mr Shumski's account of the stabbing of Mr Allen

56 Turning to Mr Shumski's sworn evidence germane to the stabbing, he said he only saw Mr Allen as he passed Mr Callow's shoulder. (This, I should add, is consistent with the CCTV footage.) It all happened very quickly, and he just reacted to Mr Allen's assaults by swinging in self-defence. He tried to keep his feet because he feared that, if he went to ground, he would have his head stomped on. He neither aimed for any part of Mr Allen's body nor intended to cause him any injury. He accepted that he stabbed Mr Allen but, at that time, did not realise he had actually done so. He thought Mr Allen might have slipped on the wet roadway and knocked himself out. It was in that context that he suggested to Mr Callow that he tend to his friend. Only later that morning did he learn from others that Mr Allen had in fact been stabbed and that he had died in consequence.

Disputed facts concerning circumstances of manslaughter

57 I now turn to address the main disputed facts, commencing with a couple of points of principle that govern this exercise, as well as an immutable reality in the application of those principles in this particular case.

58 First, in so far as I can, I am required to sentence on a factual basis that is consistent with the jury's verdicts.[3]

59 Secondly, the law recognises that, if the Crown fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the accused, but the accused fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the accused, the judge may sentence on the basis that neither of the competing possibilities is known.[4]

60 Thirdly, in this case, the jury could have accepted (or failed to reject) the essence of Mr Shumski's account of the key events in his evidence and still found him guilty of manslaughter. The only element in issue on manslaughter was self-defence. If the jury accepted (or failed to reject) that Mr Shumski did not believe that Mr Allen's "conduct" (i.e., his attack on him) was "lawful" (i.e. in defence of Mr Callow)[5] and that he "believe[ed] that [his own] conduct" (i.e. in stabbing Mr Allen) was "necessary in self-defence",[6] they still could have found him guilty of manslaughter if they were satisfied beyond reasonable doubt that "[that] conduct was not a reasonable response in the circumstances as [he] perceived them".[7]

61 While the question whether an accused's allegedly offending conduct was a reasonable response in the circumstances as he or she perceived them has both objective and subjective components, the objective component is, generally speaking, quintessentially a jury question. And, as it happens, while I cannot know, I think it very likely that the jury unanimously reasoned against Mr Shumski on this very issue. For, if I may say so, Mr Glynn, who appeared for the Crown, made a very persuasive final address on the "reasonable response" limb of self-defence. As he said to the jury:

My submission to you is that his actions were not a reasonable response. He may choose to arm himself with a knife. He may choose to pull out a knife. But he doesn't ... get to [be] the final arbiter of whether he's allowed to use that knife. You are.

62 Thus, counsel was invoking ideas of the type found in aphorisms such as "you don't use a knife in fist fight, especially against an unarmed man". It struck me as a powerful argument, nicely put, and one that is nigh on certain to have found favour with the jury, notwithstanding any findings they may have made in respect of Mr Shumski's asserted belief in the unlawfulness of Mr Allen's conduct and in the need for self-defence.

63 Moreover, having seen and heard Mr Shumski give evidence in the flesh, and having regard to the other evidence in the case, I am, in general and in some specific contexts, satisfied of his account on the matters in dispute to the extent that that account is consistent with the verdicts.

64 Thus, I turn to what I regard as the main factual disputes, commencing with Mr Shumski's evidence that he was heading to McDonald's on York Street before the confrontation with Mr Callow occurred.

65 Mr Glynn submitted that this was inconsistent with Mr Shumski's own evidence that, just before the confrontation with Mr Callow, he had rung Mr Smith and asked him to collect him outside Jack Ryan's straight away. Given that Mr Shumski knew Mr Smith was only a five-minute drive away, so the argument ran, he would not have had time to get to McDonald's, buy food, and get back near the hotel before his ride arrived. It was submitted that this evidence was fabricated by Mr Shumski to explain why he would be walking in the same direction as Mr Callow, when the truth was that he followed him in order to provoke him into some kind of fight.[8] Mr Glynn also pointed to the CCTV evidence that suggested Mr Callow and Mrs Allen were stationary for a good while, and that Mr Callow only moved towards Mr Shumski as he neared him.

66 I accept the latter evidence about the respective movements (or lack thereof) of Mr Callow and Mr Shumski. I also accept that the logistics show that it was at least woolly thinking or poor planning on Mr Shumski's part, and that there is force in Mr Glynn's submission that it was more sinister than that. But, having seen and heard Mr Shumski's evidence, including in cross-examination, I am satisfied, on the balance of probabilities, that he was truthful in his evidence that he was heading to McDonald's. If he did not make it back to Jack Ryan's by the time Mr Smith came to collect him, it would have been a simple matter to arrange with him to be picked up at McDonald's or anywhere between that point and the hotel. Moreover, both of his parents gave evidence that he told them the next morning that he was on his way to McDonald's when the confrontation occurred. They were not challenged on that evidence. I also accept Mr Shumski's evidence that he was not "stressed" when he rang Mr Smith.

67 Further, as for the Crown's alternative theory - namely, that he wanted to provoke Mr Callow and have it out with him - there was no dispute that Mr Shumski behaved as a peacemaker at the hotel when Mr Shortis appeared intent on involving himself in the fracas concerning Mr Callow. In those circumstances, it would be quite an about-face for Mr Shumski to turn punisher once on the street. Further, Mr Shortis was not even present when Mr Shumski walked towards and ended up confronting Mr Callow. While Mr Sherlock was nearby, there is no suggestion that he was egging Mr Shumski on to take up any beef he or Mr Shortis might have had with Mr Callow.

Did Mr Shumski believe it necessary to approach, or use knife in response to, Mr Callow?

68 A related issue concerns whether Mr Shumski believed he needed to produce the knife to ward off Mr Callow. Again, I accept his evidence on this score. Mr Callow was a very large and imposing figure. He had behaved aggressively in the hotel, and he was uttering threatening words to Mr Shumski on the street. Notwithstanding his deliberate steps towards Mr Callow in the face of that threat, I accept that Mr Shumski was terrified of him. Fear can make people do strange things, foolhardy things. Also, it must be remembered that Mr Shumski was only 20 at the time.

69 That said, his decision even to walk towards Mr Callow was at least rash, even for one so frightened, young and immature. He should have just turned the other cheek and walked away. His decision to produce the knife, while spontaneous, is even harder to fathom, and was itself an unreasonable upping of the ante. And his decision to swing the knife at Mr Callow was even more unreasonable, notwithstanding the kick he faced. I also accept Mr Glynn's submission that, but for Mr Shumski's decision to march up to Mr Callow in the manner he did, Mr Allen would not have seen any need to help his friend or assault Mr Shumski, and he would still be alive. Would it were so. But it is not, and Mr Shumski's precipitating behaviour vis-à-vis Mr Callow necessarily has some bearing on his moral responsibility or culpability.

70 Nevertheless, I accept that, in the heat of the moment, Mr Shumski was acting impulsively and out of fear, and that he believed his actions towards Mr Callow were necessary, rash and/or unreasonable though those thoughts and actions were. To that extent, these subjective considerations offset his moral culpability or responsibility to some extent.

Did Mr Shumski believe he needed to act in self-defence of Mr Allen's attack?

71 Next, I am satisfied that, in the agony of the moment, Mr Shumski believed that he needed to lash out as he did towards Mr Allen in self-defence. As I indicated earlier, it is plain from the CCTV that he did not see Mr Allen coming until he passed Mr Callow's left shoulder. Mr Allen was running fast, and he had his arms raised in an attempt to push or punch Mr Shumski, which allowed him, at most, only an instant to react. The same is true of Mr Allen's second attack, which came immediately after the first. By that time, Mr Callow was also coming towards him with a sense of foreboding, and he was close. That Mr Shumski's reaction on each occasion was not a reasonable response in the circumstances as he perceived them does not deny the truth of his evidence that he believed it was necessary to react as he did. I accept that he believed that, if he did not defend himself, he would go to ground and have his head stomped on. In my opinion, the CCTV footage showing Mr Allen's attack and Mr Shumski's response is consistent with the latter's evidence of his belief in the need for self-defence.

72 Next, the CCTV footage makes clear that Mr Allen came running to assist his friend Mr Callow. From Mr Allen's position, and in his condition (he had a blood-alcohol reading of 0.27), I think it is unlikely that he could have formed a view distinguishing whether Mr Callow was participating in an assault or was acting in self-defence, or that he (Mr Allen) was entitled to act in defence of his friend. But, either way, he was prepared to assist Mr Callow, as is clear from his running at and his attempts to punch Mr Shumski. He had done a similar thing only minutes earlier in the hotel after Mr McGoerk punched Mr Callow - namely, from behind Mr McGoerk, he punched him to the back of the head, twice.

73 Section 322L of the Crimes Act 1958 (Vic), when both of its limbs are engaged, operates so as to preclude reliance on self-defence provided for in s 322K. For the first limb (in s 322L(a)) to have been engaged, the jury would have to have been satisfied, beyond reasonable doubt, that Mr Shumski was responding to lawful conduct by Mr Allen. Put another way, if there were a reasonable possibility that Mr Allen's conduct was not lawful, then this first limb of s 322L could not operate in favour of the Crown. However, on the evidence, I cannot exclude that reasonable possibility. Equally, however, I am not positively satisfied in mitigation, on the balance of probabilities, that Mr Allen's conduct was not lawful. This is because, as I see it, there is insufficient evidence from which I might infer, on the civil standard of proof, critical aspects of what Mr Allen saw or thought he saw and what was running through his mind.

74 In those circumstances, and consistently with the second point of principle mentioned earlier, I shall act on the basis that neither of the relevant possibilities concerning this first limb of s 322L is known.[9]

Did Mr Shumski believe that Mr Allen was acting unlawfully?

75 Next, however, I take a different view of the operation of the second limb of s 322L, which is in paragraph (b) of that provision. In particular, I am not satisfied that, at the time of his acts of stabbing, Mr Shumski knew or believed that Mr Allen's attack was lawful. Instead, I am satisfied, on the civil standard, that he believed that Mr Allen was acting unlawfully when he tried to attack him.

76 This conclusion tends to follow (albeit not necessarily so) from the foregoing findings. While he may well have believed that Mr Allen was attempting to assist Mr Callow, since I am satisfied that Mr Shumski also believed (albeit unreasonably) that it was necessary to confront and swing the knife at Mr Callow, and that he believed it was necessary to defend himself from Mr Allen's attacks (albeit his response was not reasonable), it is likely (and in any event I am satisfied) that he also believed that Mr Allen was acting unlawfully in attempting to assist his friend - or, put another way, that he did not believe that Mr Allen was acting lawfully.

77 Thus, since both limbs of s 322L must be met in order for that provision to be a basis for ousting self-defence,[10] I am satisfied, on the balance of probabilities, that, for the purposes of sentencing, this provision cannot operate to explain the guilty verdict on manslaughter.

Did Mr Shumski have any intent to harm Mr Allen?

78 Finally, I am satisfied that both of Mr Shumski's acts of stabbing were committed spontaneously. He had almost no time to think. He just reacted, albeit in a dangerous manner. Further, I accept his evidence that he did not aim for any part of Mr Allen's body.

79 Mr Shumski also said that he had no intention to cause him any injury, and less still any grave injury. Having regard to all of the evidence, including the CCTV footage, the medical evidence, and Mr Shumski's own evidence, I am satisfied, beyond reasonable doubt, that the most he intended was to wound or cause minor injury to Mr Allen. He had no intention to cause, and was not reckless as to causing, serious injury.

80 This, of course, is consistent with the jury's acquittal on murder - which was only ever put on the basis of an intention to cause really serious injury, and not an intention to kill. It is also consistent with the jury's verdict of guilty of manslaughter, for the test of dangerousness required to establish the offence in this case is objective.[11]

81 I turn now to the victim impact statements before the Court, of which there were fourteen. In particular, I read and/or heard such statements from Mr Allen's wife Rebekah Green (formerly Allen); his daughter Stefanie Allen; his step-daughter Micheala Lister; his sister Lisa Wayne; his aunts Anna-Liese Garth and Sylvia Dobbin; his niece Amber Walker; his cousin Angela Dobbin and her partner Christopher Cumming; his cousin Melissa Dobbin; his parents-in-law Scott Green and Diana Thomson-Greene; his niece's partner Lachlan Reynolds (who was present at the scene of the crime); and his friend Upali Romanelli.

82 Inevitably, Mr Shumski's crime has had a profound impact on Mr Allen's loved ones. His wife Rebekah no longer celebrates her birthday as it reminds her of his death. The only way she can see him now is through pictures. His daughter Stefanie, who was only thirteen when he died, misses him terribly. She tries to think of the good times they had, but her heart is broken because he is not here, and never will be. His stepdaughter Michaela was 35 weeks' pregnant when he died. She laments the sad reality that her child will never get to meet his grandfather. His sister Lisa remembers him as a kind and gentle soul, but she is angry that his life was taken, and in such a senseless and violent way. The others who made victim impact statements expressed similar sentiments.

83 These and the other things said by Mr Allen's loved ones are deeply moving. In so far as it is permissible to do so, I have had regard to these victim impact statements in considering sentence.

84 I wish to add this. The sentence to be imposed is not a reflection of the worth of Mr Allen's life. It cannot be. Rather, it simply reflects the many factors I am required by law to take into account, only one of which is the impact on victims.

85 I turn now to the nature and gravity of manslaughter in general and of this offence in particular, including Mr Shumski's level of culpability.

86 Manslaughter in this State is (mostly) a common law offence.[12] It carries a maximum penalty of 25 years' imprisonment.[13]

87 While manslaughter is one of the more serious crimes known to the law, the circumstances of the offence and the offender, and the resulting sentences, vary widely.

88 The form of manslaughter relied on here is manslaughter by an unlawful and dangerous act. The stabbing of Mr Allen was unlawful because it involved an assault. It was also dangerous because a reasonable person in Mr Shumski's position performing the act causing death would have realised that there was an appreciable risk that Mr Allen would suffer serious injury.

89 Mr Shumski's offence had some serious features about it, including the following:

90 First, every offence of manslaughter has a grave component in that, by definition, the life of another has been lost in circumstances amounting to a crime. The law must maintain a special concern for the sanctity of human life.

91 Secondly, here, the life of a beloved husband, father, stepfather and brother, and one who was part of a wider family and circle of friends, aged only 38, has been taken as a result of unlawful and dangerous conduct. As is apparent from the victim impact statements, the loss suffered by his loved ones is incalculable.

92 Thirdly, other serious features of the offence are Mr Shumski's use of a knife on a public street late at night to stab an unarmed Mr Allen, twice, during an incident prompted, at least in part, by unnecessary and unreasonable aggression towards Mr Callow. As I said earlier, Mr Shumski should have just walked away. He must carry a heavy responsibility for that fateful choice and the resulting consequences, albeit his moral culpability is reduced somewhat by his subjective belief both for the need to confront Mr Callow and in the way that he did.

93 Fourthly, by his own admission, Mr Shumski was habitually carrying a knife at the time of the offending. As I indicated earlier, he explained he did this for protection because of the assault upon him five years earlier. While I accept that evidence, and while I accept that he did not arm himself for the purposes of using the knife on either Mr Callow or Mr Allen, or anyone else, for that matter, it is, in my opinion, still an aggravating factor to be carrying such a potentially dangerous weapon in public.

94 Finally, the offence is also aggravated by the fact that Mr Shumski was on bail for alleged firearms and drug offences at the time.

95 The foregoing matters must be weighed against factors limiting the gravity of this instance of manslaughter, which include the following:

96 First, as indicated earlier, contrary to the Crown's submission, I am satisfied that Mr Shumski was on his way to McDonald's when Mr Callow threatened him. While he should have turned the other cheek, and certainly should not have produced a knife, let alone swung it at Mr Callow, as I have said, I accept that Mr Shumski was in genuine fear of Mr Callow given his imposing size, the threat he made, and the way he had behaved at the hotel.

97 Secondly, as I have said, I am satisfied that Mr Shumski believed that Mr Allen was acting unlawfully when he ran at and attacked him. This belief lessens his moral culpability for his offence.

98 Thirdly, as also indicated earlier, while I am persuaded that the jury's verdict implies that they were satisfied on the criminal standard that Mr Shumski's conduct was not a reasonable response in the circumstances as he perceived them, I am also satisfied, on the civil standard, and consistently with that verdict, that, when Mr Allen came at him, he was caught off guard; he felt (and was) outnumbered (with Mr Callow closing in); he had barely any time to react, let alone for calm reflection; he was terrified; and, in the heat of the moment, he believed it was necessary in self-defence to act as he did.[14] In consequence, Mr Shumski's moral culpability is a good deal lower than it would be absent those factors.

99 Fourthly, Mr Shumski's intention was at most to wound or cause minor injury to Mr Allen, and he had no intention to cause, and was not reckless as to causing, any serious injury. These states of mind also lessen the gravity of the offence.

100 Finally, the offence was neither protracted nor gratuitous in its execution. It happened in a matter of seconds. Mr Shumski's acts of stabbing were responsive to Mr Allen's attack upon him, and no more. There were no gratuitous further acts of violence when Mr Allen went to ground.

101 Mr Glynn submitted that this was a serious example of the crime of manslaughter. However, that submission was premised, at least in part, on my acceptance of more culpable facts than I have found. Mr Cronin submitted that this was a "moderate" instance of manslaughter. I prefer to say that, for the reasons I have given, while the offence is serious - after all, a man has died as a result of an unlawful and dangerous act - it is a good deal less serious than many other manslaughters commonly encountered in practice. And this is mostly because of Mr Shumski's subjective, albeit objectively unreasonable, states of mind he had at the relevant times, which reduce his moral culpability significantly.

102 Before addressing the matters in mitigation, I shall say something about Mr Shumski's personal history, commencing with his family background as outlined by Mr Cronin.

103 Mr Shumski was born in Sale in July 2002. He was therefore 20 at the time of the offence, and is now 22. He is the eldest of three boys to his parents Reiki-Ann and Shannon Shumski. One of his brothers, aged 19, has moved to Melbourne to attend university. His other brother is 18, and is currently in Kapooka undergoing basic training in the Australian Army.

104 His mother is a registered nurse, and his father is a paramedic. They have worked in those respective fields for their entire careers. Mr Shumski has a close and loving relationship with both of his parents.

105 The family have undertaken charitable work in Australia and overseas, and have made financial donations to those less fortunate. An example of their charitable work is when the family travelled to Uganda some years ago. They lived and volunteered in the local communities for five months, and the boys attended a local school for a term. Mr Shumski's parents' aim was to show their children what it was like to be less fortunate.

106 Mr Shumski attended a primary school in Guthridge, and then Years 7 and 8 of secondary school at Gippsland Grammar. He returned to Sale College for Years 9 to 12 because he missed his friends from primary school. While at school, Mr Shumski enjoyed sports, particularly basketball and Australian rules football.

107 His VCE was disrupted by the Covid-19 pandemic, and he struggled with the loneliness and isolation this caused. This situation was heightened because both his parents were emergency service workers who were required to work through the pandemic. This meant that their children, including Mr Shumski, were left alone to rely on their own motivation to study during that period.

108 Mr Shumski's first job was a casual position at Grill-em Kebabs (in Stratford) when he was aged 15. He worked there while he was at school.

109 In 2020, he completed his VCE and started work at Supercheap Auto. He was employed as a casual but was working full-time hours, and he remained there for 18 months.

110 While working at Supercheap Auto, he undertook further training and obtained a Certificate III in Construction, a basic scaffolding certificate, a power card, and a white card.

111 He then obtained work as a scaffolder for Waco Kwik Form, a company contracted to complete shutdowns at power plants in the Latrobe Valley. In this role, he had the opportunity to make more money and learn new skills. He was employed there at the time of his arrest but was on modified duties after sustaining an injury to his arm while at work.

112 When he was aged twelve, Mr Shumski started using cannabis, and then in increasing amounts. By the time he was fifteen, he was using about one gram a week. By seventeen, he was using up to 3.5 grams per day. He continued smoking until he was about nineteen, when he stopped regular use of cannabis, preferring stimulant-based substances instead.

113 At fourteen, Mr Shumski was diagnosed with ADHD and depression. He trialled numerous ADHD medications until settling on Vyvanse, which he used until he was nineteen. At the time of the offence, he was not taking any ADHD medication, and is not doing so now.

114 He was placed on benzodiazepines at sixteen to counter the effect that Vyvanse was having on his appetite and his ability to sleep. He felt regular use of benzodiazepines led to his further experimentation with stimulant-based medications, including oxycodone, amphetamines, cocaine, LSD, GHB and "Lean".

115 He suffered from suicidal ideation and behaviours, which resulted in his admission to a psychiatric institution for a week following an overdose when he was seventeen. Both he and his family feel that the public mental health system let him down and did not properly treat his underlying problems.

116 As for his previous efforts at rehabilitation in relation to drug use, when he was sixteen, Mr Shumski completed a court-ordered stint of alcohol and drug counselling with the Youth Substance Abuse Service ("YSAS").

117 He also completed an at-home detoxification supported by his parents and facilitated by an addiction specialist, Dr David Jacka. This took place in about October 2022, when Mr Shumski was 20. The rehabilitation was successful in that Mr Shumski stopped using amphetamine-based drugs. But he was still being prescribed Lyrica and oxycodone for his arm injury, and he was taking increased doses of those drugs.

118 Mr Shumski has two prior appearances for criminal matters.

119 In March 2021, at the age of eighteen, he appeared in the Children's Court on charges of unlawful assault and possession of a longarm without a licence. Five males attended outside Mr Shumski's family's home, wanting to fight him. He took his father's rifle out of the gun safe and brandished it, unloaded, at the gathered mob. His father took the gun off him and put it away. Mr Shumski ended up being assaulted anyway. The assault charge resulted from Mr Shumski and a friend assaulting another young person. For these offences, without conviction, he was placed on a good behaviour bond. Conditions of the bond included that he continue with drug and alcohol counselling and mental health supports.

120 In July 2021, at the age of nineteen, Mr Shumski appeared in the Magistrates' Court on charges of threatening serious injury, possessing a controlled weapon (a machete), criminal damage, wilful damage, and breaching a family violence safety notice taken out by police in favour of his parents. In the January before, while in a chemist shop, he became agitated when the chemist would not supply him with certain medication. He showed the chemist a machete tucked inside his pants and threatened him and another staff member. The other offences were committed against his parents around the same time. His parents did not want the intervention order in place. Mr Shumski was very unwell at the time of committing these offences. Upon arrest, police took him to a psychiatric ward of a hospital, where he spent four days. Without conviction, he was placed on an adjourned undertaking, with a condition that he continue to obey all lawful directions of YSAS.

121 Mr Cronin explained that both instances of offending occurred when Mr Shumski's drug use was heavy and his mental health was very poor. This, plainly enough, is reflected in the orders the magistrates made.

122 Mr Cronin also informed the Court of Mr Shumski's pending criminal matters. One concerns his alleged possession of firearms on various dates, said to be evidenced by photographs taken on his phone and things found at his premises.[15]

123 As we have seen, on the afternoon following the stabbing, Mr Shumski went to the Sale police station with his father and handed himself in. He was held in the police cells for three or four days before being transferred to the Melbourne Assessment Prison ("MAP"). After spending three or four days at the MAP, he was moved to the Melbourne Remand Centre where he has remained. He has been housed in mainstream units.

124 Mr Shumski has used his time in custody productively. He has completed a bevy of courses, including a Certificate IV in Drug and Alcohol Counselling. He is exercising regularly and focusing on his health. He has held the coveted roles of billet in the gym and in the yard, and, more recently, he has had the role of the unit billet. He has also worked in the laundry and the kitchen.

125 At the start of his incarceration, he returned a positive result on a urine drug screen, which was attributed to his being provided the wrong medication. Since that time, none of his urine screens has been positive for any illicit substance.

126 Mr Shumski is allowed two visits per week. He has been receiving weekly visits from his family, who travel from Sale to Melbourne see him. He has also received visits from various friends. In addition, he speaks to his family on an almost daily basis.

127 When released from prison, Mr Shumski plans to live with his family in Sale. He is hopeful of getting work in scaffolding, but is willing to do anything.

128 Mr Cronin submitted that these proceedings have served, and will continue to serve, as a fork in the road for Mr Shumski to make positive changes in relation to his lifestyle, behaviour and substance use issues.

129 As Mr Cronin explained, illicit substance use has been a problem for Mr Shumski in one form or another since he was twelve. He has twice undertaken rehabilitation courses in the community, but has continued to have problems with drugs. This period in custody is significant in relation to his rehabilitation, Mr Cronin submitted, as it has been confronting for him to be on remand for a murder charge in particular. It also represents his longest period of abstinence since he was twelve, and he has undertaken oodles of further courses in custody. This, Mr Cronin submits, has fostered a new mindset in Mr Shumski, in which he is motivated and well placed, if and when released on parole, to maintain the progress he has made in custody.

Pretrial offer to plead guilty to manslaughter

130 I turn now to the mitigating factors urged by Mr Cronin, commencing with Mr Shumski's offer to plead guilty to manslaughter.

131 While such an offer may have been of even more weight in mitigation if that plea had been entered before the jury,[16] Mr Shumski's plea offer was very significant, for several reasons.

132 First, according to the Crown's chronology, that offer was made on 16 August last year, which was well before the trial.

133 Second, it was also made in the context that there had been an examination of only one (civilian) witness at a pretrial hearing in this Court,[17] and no witnesses at all were called at the committal hearing. Thus, acceptance of the offer would have avoided all witnesses bar one from ever having to go through the ordeal of giving evidence in either a murder committal or a murder trial.

134 Third, in my opinion, the Crown case was weak on the mens rea required for murder. As I have explained, the Crown at trial did not press intention to kill, but only intention to cause really serious injury. While it was not hopeless, it was plain from the CCTV footage of the incident that this was always going to be a problematic case on the intention to cause really serious injury. Pleading guilty before the jury, then, would have given the Crown a forensic advantage to which there was no real entitlement without risking an acquittal on manslaughter, and would have denied Mr Shumski any corresponding forensic advantage.

135 Accordingly, I consider that Mr Shumski's offer to plead guilty to the very charge of which he was convicted is a very significant matter in mitigation, and should be treated as approaching the equivalent in mitigation of his having pleaded guilty.

Appreciation of profound loss and damage caused, but not remorse

136 Next, Mr Cronin submitted that, while Mr Shumski maintains his belief that it was necessary for him to act in self-defence, it is also apparent that he appreciates and regrets the fact that his actions have caused Mr Allen's death and that his death has had a profound impact on his loved ones.

137 Mr Glynn resisted the categorisation of this appreciation and regret as remorse, since Mr Shumski did not - and perhaps does not, at least formally - accept responsibility for manslaughter.

138 Mr Glynn is right. While the many testimonials I received speak of positive aspects of Mr Shumski's character, and while his mother in her reference in particular speaks of his being "fully conscious of just how this event has shattered [Mr Allen's family and friends], [his own] family and the community [his parents] have served", none of those documents speaks of his remorse.

139 That said, I accept that his appreciation of the devastation he has caused and his regret for Mr Allen and his loved ones are positive signs, albeit short of remorse.

Previous good character despite modest criminal history

140 The third factor in mitigation concerns Mr Shumski's good character. While he has struggled with drugs since he was twelve and has a modest criminal history, I accept that the thrust of the testimonials is that he is, and has been, a young person of essentially good character. The references speak of his kindness, empathy, courtesy, respectfulness, community-mindedness (especially with the elderly), integrity, and hard-working nature. I accept that he has these qualities.

141 The fourth matter in mitigation concerns Mr Shumski's relative youth. He was only 20 at the time of the offence, and is now still only 22.

142 All else being equal, a younger person is less likely to appreciate risk or consider consequences fully. Mr Shumski's offence, I accept, is a product, at least in part, of youthful limitations of that kind.

143 As Hollingworth J said in DPP v JA & Ors:[18]

[26] The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises. In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender. There is a significant public benefit in rehabilitating a young offender, and maximising the prospect that they will go on to live a peaceful, productive and law‑abiding life.

[27] However, those principles are not absolute; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending. Generally speaking, the more serious the offending, the less the weight to be attached to youth. But the mitigatory effect of youth will be extinguished only in circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation.

144 While these remarks were made by her Honour in the context of a case involving younger offenders than Mr Shumski, they apply with full force in this case, bearing in mind his particular age and circumstances. For, while this is a manslaughter case, as I have explained, this instance of the offence is a good deal less serious than many other manslaughters commonly encountered in practice. Further, Mr Shumski has only a modest criminal history and, as we shall see shortly, also has strong prospects of rehabilitation. Rightly, one of the great aims of the criminal law is to rehabilitate younger offenders. Given the foregoing factors, this is not a case in which the weight to be accorded to youth is to be subjugated to other considerations, let alone extinguished, because of the nature of Mr Shumski's offence or his past history.

145 The fifth matter in mitigation is that I am satisfied that Mr Shumski has strong prospects of rehabilitation. In coming to that conclusion, I have taken into account his criminal history (modest though it is), his long history of drug use and the fact that this offence, like one of his prior matters, concerns the carrying and use of a weapon. I have also balanced those factors against his good character traits, his relative youth, his offer to plead guilty, his strides towards reform and education in custody, and his very supportive family.

146 As for his family, like most do, I expect Mr Shumski's parents see their children's faces in golden rays.[19] As we must. But I am confident they have given their son - and will continue to give him - more than adoration and love. They have shown, by their words and actions, that they will provide him with practical and moral support in dealing with whatever comes, including his need for guidance, reform, self-improvement and atonement. Their actions in this matter started with his father, responsibly, taking him to the police station immediately upon becoming aware of what had happened. They continued with his parents giving evidence for the Crown at trial, even though they could have objected to this course.[20] While, as it happens, some of their evidence was helpful to their son's cause, other parts were adverse. When giving their evidence and when otherwise sitting in Court throughout the trial, it was plain to see that they were torn between acknowledging the irreparable harm their son had caused (whether or not it was without legal justification), and their love for him and concern for his welfare. These are good people who, through their work as a nurse and a paramedic, see, more than most, the aching sadness that comes with the death of a loved one. Their references show that they have concrete plans to assist their son, as best they can, on his path through the prison system and beyond. Mr Shumski should count himself lucky to have them.

Murder charge until verdict increased burden of custody

147 Finally, the last matter in mitigation is that I accept Mr Cronin's submission that Mr Shumski's time in custody has been more burdensome than otherwise because he has had a murder charge hanging over his head, at least until the verdict late last year.

148 I turn now to the purposes of sentencing. Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment, and rehabilitation.

149 General deterrence, denunciation and just punishment are important sentencing purposes in this case. All persons, whether young or old, should understand that the carrying of knives can lead to tragic consequences of the kind that occurred here. No good can come from carrying weapons like these. It just has to stop. All should also understand that persons who, by an unlawful and dangerous act, stab an unarmed person to death with a knife, on a public street, usually will receive a substantial term of imprisonment for manslaughter, even if they believe it was necessary to act in self-defence and even if they are relatively young and have excellent prospects of rehabilitation or other strong mitigating factors. The loss of life in criminal circumstances, and the impact that that loss inevitably has had on Mr Allen's loved ones, whose lives have been marred forever, must be denounced and met with just punishment.

150 As for specific deterrence and protection of the community, those purposes, while relevant, are of lesser moment in view of Mr Shumski's offer to plead guilty, his insight into the devastation he has caused, his modest criminal history, his positive character traits, his relative youth, the hardship he has experienced in custody while facing a murder charge, and his strong prospects of rehabilitation.

151 Rehabilitation is an important consideration in fixing sentence in this case. Mr Shumski's relative youth and his strong prospects of reform make rehabilitation a sentencing purpose that must be afforded substantial weight. It is also necessary to recognise the interplay between rehabilitation and protection of the community. Mr Shumski will be returning to the community eventually. It is therefore in the community's interests that his prospects of rehabilitation be maximised, so that, when he is released from prison, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into society are as strong as they can be.

152 Finally, under this heading of sentencing purposes, I note that s 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. This provision reflects the fundamental common law principle of parsimony, which I have applied in arriving at the sentence I shall announce shortly.

153 In so far as I can determine them, I have had regard to current sentencing practices for manslaughter. This is but one factor in sentencing, and certainly not a controlling one at that, but it is nevertheless important in the sentencing synthesis.

154 To this end, I have had regard to sentencing statistics for the offence.[21] During the period from 2017-18 to 2021-22, prison sentences for manslaughter averaged between seven years and seven months and nine-and-a-half years, with non-parole periods averaging between five years and two months and seven years. However, in considering these statistics, I recognise that they are of limited utility. This is mainly because they do not distinguish cases according to their most important sentencing considerations, such as the gravity of the offence, the age of the offender, whether there was a plea of not guilty or guilty (or, like here, an offer to plead guilty that was rejected by the Crown), whether there was a significant criminal history or not, and so on. Nevertheless, these statistics do give some guidance.

155 I have also considered the specific manslaughter sentences to which counsel referred.[22] In doing so, however, I have kept in mind that, in the area of sentencing, it is almost always difficult usefully to compare cases. As it happens, none of those cases I considered was quite the same as Mr Shumski's case. And, in any event, sentences are not precedents to be applied or distinguished.

156 In the end, as always, because of the limits of statistics and the process of comparison, I have been driven to rely mostly on the circumstances of this case and sentencing principles and purposes to arrive at the appropriate sentence for this manslaughter.

159 For these reasons, and as Mr Cronin conceded, while a prison sentence with a non-parole period must be imposed on Mr Shumski, the sentence at which I have arrived is somewhat shorter than those more commonly seen in manslaughter cases in recent times.

160 Balancing all matters as best I can, for the manslaughter of Clint Allen, Spencer Shumski is convicted and sentenced to six years' imprisonment with a non-parole period of three years.

161 The non-parole period is a bit shorter than usual, both as a proportion of the head sentence and in absolute terms. This reflects a range of factors relevant to the head sentence as well, but which have especial importance when fixing a non-parole period. Those factors include Mr Shumski's offer to plead guilty to this very offence, his limited criminal history, his positive character traits, his relative youth, and his strong prospects of rehabilitation.

162 Pursuant to s 18 of the Sentencing Act, I declare that, not including today, 691 days of pre‑sentence detention be reckoned as served under this sentence.

163 This should mean that, putting aside any emergency management days, Mr Shumski will be eligible to apply for parole by May next year.

[1] In context, I think the omitted word is so offensive to the ordinary sensibilities of so many that it should not be printed or uttered, even in reasons of this nature. In any event, its omission does not, in my view, strip the message of its meaning.

[2] See R v Shumski (Rulings 1-3) [2024] VSC 828 at [1]-[6] & [31]-[42].

[3] See, e.g., Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 12-13[14] (per Gleeson CJ, Gummow and Hayne JJ), citing R v Isaacs (1997) 41 NSWLR 374 at 377-378 (per Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ).

[4] See, e.g., Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 at 69-70[64] (per French CJ, Bell, Keane and Nettle JJ).

[5] See s 322L(b) of the Crimes Act 1958 (Vic). In order for s 322L to operate so as to oust self-defence under s 322K, the Crown must prove, beyond reasonable doubt, both that the accused was responding to lawful conduct (s 322L(a)) and that, at the time of the accused's response, he or she knew that that conduct was lawful (s 322L(b)). See, e.g., R v Shumski (Rulings 1-3) [2024] VSC 828 at [7] & [62]-[65] (per Croucher J); and, more recently, Edmunds v The King [2025] VSCA 31 at, e.g., [175]-[180] (per Emerton P, Taylor JA and Kidd AJA).

[6] See s 322K(2)(a) of the Crimes Act 1958 (Vic).

[7] See s 322K(2)(b) of the Crimes Act 1958 (Vic).

[8] Mr Glynn did not press a related submission to the effect that Mr Shumski left Jack Ryan's with the intention of stabbing someone. Had he pressed that submission, I would have rejected it.

[9] See, e.g., Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 at 69-70[64] (per French CJ, Bell, Keane and Nettle JJ).

[10] See, e.g., R v Shumski (Rulings 1-3) [2024] VSC 828 at [7] & [62]-[65] (per Croucher J); and, more recently, Edmunds v The King [2025] VSCA 31 at, e.g., [175]-[180] (per Emerton P, Taylor JA and Kidd AJA).

[11] See, e.g., Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 325-334 (per Mason CJ, Toohey, Gaudron and McHugh JJ).

[12] The notion of dangerousness, for the purposes of the common law concept of manslaughter by unlawful and dangerous act, has been modified by s 4A of the Crimes Act 1958 (Vic), but that provision has no application to the present case.

[13] See s 5 of the Crimes Act 1958 (Vic).

[14] See s 322K(2) of the Crimes Act 1958 (Vic).

[15] I was told that Mr Shumski was also on bail for alleged drug offences at the time of the offending. Indeed, as we have seen, I accepted Mr Glynn's submission that this fact was part of one of the aggravating factors. However, unlike the outstanding charges for firearms offences, I was not told anything about the nature of or the alleged circumstances of the drugs charges.

[16] As to which, see, e.g., DPP v Pennisi [2009] VSCA 322 at [11] and R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 at 540[20].

[17] Conducted pursuant to s 198B of the Criminal Procedure Act 2009 (Vic).

[18] DPP v JA & Ors [2023] VSC 531 at [26]-[27].

[19] So sang the great British singer-songwriter David Bowie in Oh! You Pretty Things, the second track from the studio album Hunky Dory, released through RCA Records in 1971. (It's said that the song is actually about other heady - perhaps kooky - things that need not be mentioned here.)

[20] Neither objected, pursuant to s 18 of the Evidence Act 2008 (Vic), to giving evidence on the basis that there was a likelihood that harm might be caused to their relationship with their son.

[21] See Sentencing Advisory Council, Sentencing Trends for Manslaughter in the Higher Courts of Victoria 2017-18 to 2021-22, Snapshot 274 (29 June 2023), pp 3-4.

[22] Counsel referred to DPP v Nguyen [2024] VSC 99; DPP v Devey (No 2) [2021] VSC 121; DPP v Ali & Ors [2024] VSC 601; R v Aliti [2021] VSC 825; DPP v Yassin [2021] VSC 780; R v Deng [2023] VSC 257; R v Farrell [2021] VSC 414; DPP v Smart & Ors [2023] VSC 469; DPP v Ford [2024] VSC 797; R v Tovey [2023] VSC 530; DPP v Volpe [2021] VSC 353.