DPP v Bushell [2025] VCC 1445

(a) Bailey Sutcliffe who was 22 years old at the time of offending;

(b) William Giblin who was 19 years old at the time of offending;

(c) Coby Bock who was 23 years old at the time of offending; and

(d) Nakita Keutenius who was 18 years old at the time of offending.

(a) Willis Madden;

(b) Chelsea Oriel; and

(c) Jesse Carter.

1. Mr Madden resided at Denneys Street Warrnambool along with his girlfriend Ms Oriel. Ms Carter was a friend of Mr Madden and Ms Oriel.
2. You knew Mr Madden and Ms Oriel at the time of offending.

1. On 15 September 2023 at approximately 8:30pm, Mr Madden was at the Denneys Street address with Ms Oriel and her friend Tigist Lee having drinks. Ms Oriel was expecting some friends to join them.
2. You and Bailey Anwyl arrived at the address some time shortly after. A few minutes later, you went to the front door and unlocked it.
3. Mr Sutcliffe came through the front door with four or five other males, including Mr Bock and Mr Giblin. Mr Sutcliffe had a machete in his hand.
4. Mr Sutcliffe said, 'put your fucking phones on the ground right now' and ran towards Mr Madden. Ms Oriel together with Ms Lee, moved down the hallway to get out of the way. Mr Anwyl proceeded to exit the residence.
5. Mr Sutcliffe continued moving towards Mr Madden, as he was backing into the kitchen. He then swung the machete at Mr Madden's stomach and missed him. Mr Sutcliffe then tackled Mr Madden causing both of them to fall on the couch, breaking it.
6. During the assault, Mr Sutcliffe held the machete to the throat of Mr Madden. Mr Madden managed to grab the handle of the machete in order to prevent Mr Sutcliffe from stabbing him.
7. As the attack unfolded, Ms Oriel grabbed a black steak knife from the kitchen to threaten Mr Sutcliffe. Ms Oriel then saw you moving towards Mr Sutcliffe with a wooden baseball bat and to deter you yelled 'get the fuck out and if you don't, I am going to stab you and kill you'.
8. As Ms Oriel was trying to remove you from the house, she noticed Mr Giblin approaching Mr Madden. Ms Oriel left you and moved towards Mr Giblin and held the knife to his chest directing him to 'get the fuck out of my house.'
9. Mr Giblin then kicked Ms Oriel on her right leg shin area and behind her leg. Ms Oriel responded by pushing Mr Giblin in the chest twice to get him out the front door. As she did this she noticed Mr Bock standing nearby and she screamed 'stop this.'
10. Mr Bock then started to pull Mr Sutcliffe off Mr Madden, with Ms Oriel joining in, pulling at Mr Madden to separate them. In the struggle, Ms Oriel stabbed Mr Sutcliffe in the right upper arm and the back twice. Mr Sutcliffe let go of Mr Madden.
11. Ms Oriel saw Mr Sutcliffe's machete on the ground. She picked it up, gave it to Mr Bock and pushed Mr Sutcliffe and Mr Bock out of the house, locking the flyscreen and front door behind them.
12. At 11:23pm that night, Ms Oriel received a call from you on Facebook Messenger. You told her if she got the police involved, that 'they' would come and kill her and her family.
13. On 17 September 2023 at 3:54pm, Ms Oriel received a call on a No Caller ID. Ms Oriel recognised the voice of Mr Sutcliffe who demanded to know where Mr Madden was. You and other persons were also present on this call. You made further threats to Ms Oriel including 'you forget that we know where you and your mum live' and 'you are all fucked' and 'you better watch your backs we are coming for you.'
14. You were not charged in relation to the incident on 15 September 2023.

1. At the time of the offending on 20 September 2023:

(a) Jesse Carter had attended the Denneys Street address during his lunchbreak to catch up with Mr Madden;

(b) Mr Sutcliffe and Georgia Gibb were closely known to each other;

(c) you were in a relationship with Ms Keutenius; and

(d) Mr Giblin's relationship with Ms Oriel had recently ended.

1. On Wednesday 20 September 2023 at approximately 12:00pm, Mr Sutcliffe attended your house in Allansford and stated that he was 'going into town to sort this fuckin' Willis lad out'.
2. Between 1:00pm and 1:15pm on that day, Ms Gibb drove Mr Sutcliffe, Mr Giblin and Mr Bock to Mr Madden's address in Warrnambool. Ms Gibb purportedly arranged to purchase marijuana from Mr Madden.
3. You then arrived at Mr Madden's address, driving Ms Keutenius and Mr Anwyl in another car but did not enter the residence.
4. Around 1:15pm, Ms Gibb entered Mr Madden's residence. Mr Madden, Ms Oriel and Mr Carter were inside sitting in the lounge room.
5. Ms Gibb exited the residence a short time later citing a need to retrieve her purse from the car. As Ms Gibb re-entered, Mr Sutcliffe, who was standing near Ms Gibb's car with the co-offenders, grabbed a blue wheel brace from Ms Gibb's car and quickly followed her back into Mr Madden's residence.
6. Once inside, Mr Sutcliffe immediately approached Mr Madden and swung the wheel brace at him. As this was happening you, Mr Bock, Mr Giblin and Ms Keutenius entered Mr Madden's residence (Charge 1 and 2).
7. At the time of entering the residence, you knew Mr Sutcliffe had the offensive weapon with him and had an intent to commit an assault.
8. After seeing Mr Sutcliffe swinging the wheel brace and witnessing the co-offenders enter the house, Ms Oriel hid herself in the spare room.
9. Mr Carter managed to block the swing of the wheel brace by Mr Sutcliffe. Mr Madden then grabbed a paring knife that was sitting on the coffee table and stabbed Mr Sutcliffe in the stomach.
10. Mr Madden was then restrained by offenders including Mr Giblin and was assaulted.
11. Mr Carter managed to block the swing of the wheel brace by Mr Sutcliffe and pulled Mr Sutcliffe's hoodie over his head dragging him away towards the glass door that led to the kitchen. As Mr Carter was dragging Mr Sutcliffe away, Mr Sutcliffe continued to swing the wheel brace smashing the TV.
12. An unknown co-offender attacked Mr Carter and Mr Carter hit him in the face with his elbow. At the same time, Mr Sutcliffe was attempting to poke Mr Carter in the eye when Mr Carter sunk his fingers into Mr Sutcliffe's face and 'bent him in half'. Mr Carter then grabbed Mr Sutcliffe by the back of his pants and rammed him headfirst into a wall and kneed him in torso. Mr Carter became aware of the injury to Mr Sutcliffe's stomach when Mr Sutcliffe lifted his jumper revealing his 'intestines hanging out'.
13. Ms Oriel returned to the living room and in attempt to assist Mr Carter struck Mr Sutcliffe in the back once. Ms Oriel then saw you running towards Mr Carter with a skateboard while holding it above your head as if to strike Mr Carter.
14. You then proceeded to strike Mr Carter with the skateboard in the back twice (Charge 3). You later published a Snapchat audio admitting the assault.
15. You attempted to hit Mr Carter in the head with the skateboard. Seeing what was occurring, Ms Oriel used the pole again and hit you on the back of your right shoulder.
16. You then attempted to strike Ms Oriel with the skateboard. Ms Oriel used the pole and hit you on your left arm. Ms Oriel then saw Mr Bock running towards Mr Carter and Mr Sutcliffe. She held the pole above her head and said 'get the hell out, what are you doing back here?'.
17. Mr Bock put his hands up as if to strike Ms Oriel. She said to 'go on, hit me, you said you would never hit a woman, so go on and do it.' Ms Oriel then hit Mr Bock with the pole in the right arm. Mr Bock attempted to push Ms Oriel who hit Mr Bock in the head on the right temple using the pole.
18. You started to direct your co-offenders to exit the house.
19. Mr Madden, Ms Oriel and Mr Carter managed to push all remaining trespassers out of the property and lock the door.
20. Ms Oriel noticed Mr Sutcliffe holding his stomach but was not aware of the extent of his injuries as he left the residence.
21. Mr Madden received a puncture to his upper right bicep as a result of the incident. Mr Carter reported marks on his back from the skateboard and Ms Oriel sustained a number of bruises.
22. Mr Madden and Mr Carter believed that their lives, including that of Ms Oriel, were in danger and that they were going to die if they did not continue to defend themselves and fight.
23. Following the offending, you sent an audio message to contact 'Trey' on the application Snapchat, that detailed the offending including that you had struck Mr Carter over the head with the skateboard. The message is produced in the prosecution opening.

1. The co-offenders were all arrested between 21 September and 2 October 2023.
2. You were arrested and participated in an interview on 22 September 2023 where you made a number of admissions which are reproduced in summary form in the prosecution opening.

1. Aggravated burglary, by its nature, is an inherently serious offence which is reflected in the maximum penalty set by Parliament, being 25 years imprisonment. In this instance your offending is particularised as entering the home with the intent to assault, knowing that Mr Sutcliffe was in possession of the wheel brace.
2. Mr Chisholm who appeared on your behalf submitted that while your offending is serious, you played a lesser role than that of Mr Sutcliffe. He submitted that your actions in the house were limited and reactive after you saw the injury suffered by Mr Sutcliffe. Nonetheless you made the decision to strike Mr Carter with the skateboard giving rise to the common assault charge.
3. Ms Duckett who appeared on behalf of the Director of Public Prosecutions submitted that the seriousness of the aggravated burglary can be assessed by the fact that it involved a degree of planning and that it was confrontational, ultimately resulting in an affray where people suffered injuries including a serious injury to your co-offender, Mr Sutcliffe.
4. In my view while your role was less than that of others and your actions in the house reactive to what occurred to your co offender, you nonetheless were part of a group that entered into a home in order to assault another person and it is a relatively serious example of this type of aggravated burglary.

1. Chelsea Oriel provided a victim impact statement which was read out by the prosecutor on the plea. The statement details how this offending has caused significant pain to Ms Oriel. She notes that since the offending she has lost connection with family and friends, and her mental health has significantly declined. She feels scared to meet new people, has suffered financially and has difficulty obtaining safe and stable housing.

1. You were born in 2001 and are currently 23. You are the eldest of three children. You grew up in Warrnambool and more recently have been living in Baccus Marsh.
2. You are part of the Yorta Yorta community and you have maintained a connection to your Aboriginal heritage, encouraged by your maternal aunt.
3. Throughout your childhood your parents struggled with substance abuse, mental health issues and cycles of severe family violence and, as a result, you were often placed in the care of your maternal grandparents. Both your mother and father report also suffering turbulent childhoods, experiencing child sexual abuse, illicit substance abuse and untreated mental health issues.
4. You recall your parent's unstable relationship, largely impacted by family violence perpetrated by your father to your mother. You report that you had to take on a caring role as a child and felt responsible for both protecting your sisters and managing your parent's emotional needs. Your sister describes instances of you distracting her and playing music in order to drown out your parent's yelling. At age five, child protection became involved in your care.
5. You describe your paternal grandmother as a second mum and state the period you were in her care as one of the happiest times in your childhood. Sadly, in 2023, your grandmother was diagnosed with cancer and passed away two weeks later. You suffered significantly with this loss and started associating with the 'wrong crowd'.
6. You attended various schools and struggled with the inconsistency. You found it hard to sit still and felt labelled as the 'naughty kid'. You completed Year 7 to Year 11 at Terang Secondary College where you successfully completed VCAL.
7. You first met your partner in year 7. You have remained close friends over the years and share connection through similar family experiences. Your partner has been in attendance throughout the Court process and remains supportive of you. You hope to build a family together in the future.
8. You have had sporadic periods of employment however you have lost new employment opportunities due to this offending. You have worked in outdoor labouring and physical roles and have volunteered with community events and organisations. You are motivated to obtain full time work at the conclusion of this matter and have been active in applying for employment opportunities. You have ambitions to pursue a career in youth work, helping vulnerable individuals who share similar experiences to you.
9. You report using drugs from a young age, starting with cannabis and progressing to the use of benzodiazepines (including Valium and Xanax). You are currently prescribed medicinal cannabis. You report that you find cannabis to be a therapeutic way to manage your trauma.
10. You currently present with symptoms of complex Post Traumatic Stress Disorder (PTSD) and attention deficit hyperactivity disorder (ADHD), although you have not been formally diagnosed. You also suffer from chronically low self-esteem, interpersonal mistrust, hypervigilance to conflict and emotional and behavioural dysregulation. You have reported symptoms of severe psychological distress, largely as result of your volatile childhood.
11. Since November 2023, you have been actively committed to counselling with your psychologist Milan Pekic. Mr Pekic provided a letter of support. He opines that you have shown a genuine commitment to therapy and show signs of progress in managing your mental health and decision making. He observes that you would benefit from a structured environment to continue your personal development and should utilise community based programs that focus on peer support and employment assistance.
12. An Aboriginal Community Justice Report, prepared by Djallarna Hamilton was tendered on the plea and provides a comprehensive history of your family background and childhood. Ms Hamilton notes that you have been immersed in trauma, stemming from both your personal experiences and the repercussions of intergenerational trauma thereby hindering your childhood development and your capacity to self-regulate your behaviours and emotions. She observes that your pivotal role within your family and the pressure of ensuring that your family's needs were, and are continued to be met, places you at high risk of burnout and emotional exhaustion.
13. Sentencing in this matter was deferred following the plea (in the Koori Court) to allow you to engage with the relevant cultural and psychological supports. Since February you have actively participated well in rehabilitation services at both Bunjilwarra and Galiamble. Letters outlining your progress were tendered on each of the further pleas which I have taken into account. You exited Bunjilwarra due to a breach of guidelines relating to bringing in and using illicit substances while at the program. Despite this, you engaged well with the program, developing insight into your substance use and offending behaviour. You have maintained strong connections with your family and partner and connected well with the Aboriginal cultural elements of the program.
14. You entered Galiamble following your departure from Bunjilwara in June 2025. You have consistently attended programs and have shown insight into your past behaviours. Further, you have engaged with a psychologist and participated in anger management, mindfulness, relapse prevention sessions and the Dardi Munwurro men's healing and behavioural change group. You have also obtained a specialist alcohol and other drug (AOD) referral, which will connect you with comprehensive AOD treatment and have continued to return clean weekly urine and breath tests. You have commenced a work placement at Wind-Mara Aboriginal Corporation and commenced a Certificate IV in Community Services with Hader Institute which you expect to complete in July 2026. You also have arranged to begin volunteering at Sacred Heart Op-Shop in St Kilda.
15. A psychological report of Ms Carla Lechner dated 28 December 2024 was tendered on the plea. Ms Lechner asserts that, at the time of assessment, you portrayed yourself as independent, coping and in control of your anxiety and that you responded to her questions reactively and impulsively. Ms Lechner also opines that you will improve the rehabilitative gains you have made with the appropriate ongoing treatment and support services.
16. It is clear from your progress throughout the deferral period that you require ongoing supports to continue to promote maturity, accountability and self-awareness. Those involved in your rehabilitation process, including through the programs at Galiamble and Bunjilwara encourage you to continue your commitment to making lasting changes by living a pro-social life and abstaining from drugs. You have expressed a sincere commitment to positive change and engaged well with programs, staff and other residents.
17. You continue to enjoy the support of your family and partner. You plan to live with your grandfather who resides in Bacchus Marsh following the conclusion of this matter and you have expressed your commitment to moving forward with employment, starting a family and engaging with your community and your family's Kamilaroi connections.

1. I first take into account your plea of guilty. Your plea was entered at the earliest reasonable opportunity following negotiation with the prosecution. Your plea has saved the court the time and expense of a trial and significantly, has spared the victims from having to give evidence. You are entitled to a discount in sentence as a result.
2. Over and above your plea of guilty it was submitted that you have demonstrated genuine remorse. You participated in the Koori Court and spoke during the 'Sentencing Conversation' expressing your remorse and demonstrating insight into your offending conduct. In later reports that have been tendered, the writers also have observed your insight and remorse. In the Extended Pre-Sentence Report of Corrections Victoria, you spoke of the impact of your offending on the victims expressing your desire to apologise to all of those impacted by your involvement in the offending. In the circumstances I accept that you have gained insight into the impacts of your conduct and you have expressed genuine remorse.
3. You were 21 at the time of the offending and are now 23. You were and are a youthful offender and while you have some unrelated minor matters in the Children's Court in 2019, you have no prior convictions. As such, it was submitted that rehabilitation should, despite the seriousness of the offending, take a primary role in the sentencing discretion. While I accept the well settled principles in relation to young offenders, and that they do have application, I must also weigh those considerations with the seriousness of the offending in this instance. However, given the significant steps you have taken in advancing your rehabilitation since the offending, in my view rehabilitation must remain very prominent in the sentencing calculus in this instance.[1]
4. It was submitted on your behalf that the evidence of your difficult childhood years supports the application of Bugmy principles. The historical Children's Court Clinic reports, the Aboriginal Justice Report and the psychological material reveal your exposure to family violence, drug use and neglect from a very early age, informing your current psychological profile. In my view Bugmy principles are able to be taken into account in the general sense.
5. It was submitted that Verdins principles have application. While I have taken into account your complex psychological profile, your drug use is also relevant when considering Verdins principles. By your own admission you were substance affected on the day of the offending having consumed Valium and cannabis. Accordingly, in my view the evidence does not support a realistic connection or causal link between your mental health and the offending in order to reduce your moral culpability or deterrence. That said based on the psychological material provided, I accept that were you to receive a term of imprisonment, Verdins 5 is able to be given weight.
6. I take into account your participation in the Koori Court. The Court of Appeal has recognised that the 'Sentencing Conversation' in the Koori Court is designed to 'further the reformation of an Aboriginal offender'[2] and is rightly considered to be a mitigating factor.[3] These principles have been reiterated in Director of Public Prosecutions v Heyfron.[4] After referring to the principles outlined in Honeysett v The Queen, Kaye JA stated:

In the present case, those factors apply, in fair measure, to the manner in which the respondent has participated in the Sentencing Conversation in the course of the plea hearing. While the participation of an offender, in that process, is by no means a ticket to freedom, nevertheless, as a matter of sentencing principle, it is appropriate to take it into account for the reasons explained by the Court in Morgan and Honeysett.

1. I acknowledge that the 24 weeks you have spent in residential rehabilitation is a significant matter I take into account in the sentencing discretion, noting the comments of the Court of Appeal in Akoka v The Queen:[5]

As has been demonstrated in the present case, residency at a rehabilitation facility has the potential to significantly assist an offender's rehabilitation. In particular, such residency may assist an offender to overcome drug dependency and other factors that have contributed to his or her offending and to develop strategies for becoming a law abiding citizen. These outcomes benefit not only the offender but also the community. It is in the interests of the community for offenders - particularly young offenders - to reform and make positive contributions to the community rather than spend their lives in and out of prison for increasingly more serious offending.

1. Turning more specifically to your prospects of rehabilitation. This matter was first listed for plea in January of this year. I deferred sentencing to enable you to participate in residential treatment programs and without repeating the chronology of your progress over the past eight months, it is clear that you have embraced the supports and assistance you have been committed to. As noted you have gained insight into the traumas you have suffered and are addressing your drug use and mental health. In my view your prospects of rehabilitation can be assessed as very good.

1. Despite your youth and the weight that is to be placed on rehabilitation, general deterrence remains a prominent sentencing consideration together with denunciation of your conduct. Confrontational aggravated burglary that results in injury to victims is serious offending that must be deterred. Specific deterrence in my view has a more limited role given your lack of criminal history and your very good prospects of rehabilitation.
2. In considering the type of sentence I will impose I have also had regard to parity. Both parties agreed that the co offender most closely comparable to you in role in the offending on 20 September 2023 is Coby Bock who was sentenced to 8 months imprisonment together with a community correction order. Mr Chisholm submitted that there are a number of factors that allow for disparity in your case. He pointed to your aboriginality and your participation in the sentencing conversation through the Koori Court, your deferral of sentence that resulted in you spending some 24 weeks in residential rehabilitation and your demonstration of genuine remorse. Further, each of the other co-offenders fell to be sentenced for offending on both 15 and 20 September 2023. You were not charged with any offending related to 15 September 2023.
3. Mr Chisholm submitted that despite the serious nature of the offending, in the unique circumstances that exist, including most importantly your relative youth and your very positive prospects of rehabilitation over the deferral period, a community correction order is able to meet the relevant sentencing considerations. While the prosecution also accept that you have made significant advances, Ms Duckett submitted that the serious nature of the offending still calls for a period of imprisonment.
4. In my view a community correction order is able to meet the relevant sentencing considerations while still recognising the unique circumstances of this case. As the Court of Appeal noted in Boulton v The Queen,[6] a community correction order 'may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.'
5. Further, in Williams v The Queen,[7] Priest and Hargraves JJA said:

As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender's rehabilitation. And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.[8]

1. Mr Bushell, would you please stand.
2. Bailey Bushell on Charge 1 aggravated burglary, Charge 2 affray and Charge 3 common assault, you are convicted and placed on a community correction order for a period of 2 years and 6 months. While all community correction orders are punitive in nature, the order I am imposing will contain both punitive and therapeutic conditions.
3. In addition to the standard conditions you will be require to complete 250 hours of unpaid community work, your will be subject to treatment and rehabilitation in relation to drug use and your mental health. You will also be subject to supervision.
4. Pursuant to s 48CA of the Sentencing Act, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation conditions, may be credited as hours of unpaid community work.
5. Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 20 months imprisonment with a non parole period of 14 months.

[1] Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, [44].

[2] The Queen v Morgan [2010] VSCA 15; (2010) 24 VR 230, [36].

[3] Honeysett v The Queen [2018] VSCA 214; (2018) 56 VR 375, [54].

[4] [2019] VSCA 130, [66]-[69].

[5] [2017] VSCA 214, [106].

[6] Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308 [131].

[7] Williams v The Queen [2018] VSCA 171.