Director of Public Prosecutions v Sutcliffe

[2024] VCC 931

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00586

DIRECTOR OF PUBLIC PROSECUTIONS

v

BAILEY SUTCLIFFE

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JUDGE:	HIS HONOUR JUDGE O’CONNELL
WHERE HELD:	Warrnambool
DATE OF HEARING:	18 June 2024
DATE OF SENTENCE:	25 June 2024
CASE MAY BE CITED AS:	DPP v Sutcliffe
MEDIUM NEUTRAL CITATION:	[2024] VCC 931

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Two aggravated burglaries and allied assaults committed on the same home/victims within 5 days; Offender armed with machete and then tyre iron; Offender quite seriously injured in second aggravated burglary; Whether injury mitigates; Victim impact; Youthful offender; Previous convictions for drug offending; Offender described as “not without some prospects for rehabilitation”; General deterrence.

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:R v Renzella [1997] 2 VR 88; Barci v R (1994) 76 A Crim R 103.

Sentence:                  Total effective sentence of 5 years imprisonment with a non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. O’Doherty	Office of Public Prosecutions
For the Accused	Mr V. Peters	Dwyer Legal

HIS HONOUR:

1Bailey Sutcliffe, on 18 June 2024 you pleaded guilty to two charges of aggravated burglary, two charges of common assault, and one charge of affray.

2The circumstances in which you committed those offences may be summarised as follows.

3On Friday 15 September 2023 at around 8.30pm one of the victims of this offending, Willis Madden, was at his home at Warrnambool having drinks with his girlfriend Chelsea Oriel and her friend Tigist Lee. They were expecting some friends to join them. Baily Anwyl and Bailey Bushell arrived shortly afterwards.

4A few minutes later, you came through the front door of that house with four or five other males including William Giblin and Coby Bock. At the time you entered you were brandishing a machete and it is that conduct which makes out Charge 1 on the Indictment - aggravated burglary.

5As you entered you said “put your fucking phones on the ground right now” and ran towards Madden. He backed away towards the kitchen and you swung the machete at his stomach but missed him. You then tackled him causing both of you fall onto the couch breaking it. During the ensuing struggle you held the machete to the throat of Madden, although he managed to grab the handle to prevent you from stabbing him. That conduct is said to constitute Charge 2 on the Indictment - common assault.

6As this attack unfolded, Oriel grabbed a steak knife from the kitchen in order to try and stop you. She then saw Bushell moving towards you with a wooden baseball bat and yelled “get the fuck out and if you don’t I am going to stab you and kill you” to deter Bushell.

7As Oriel was trying to get Bushell out, she saw Giblin move towards Madden. She put the knife to Giblin’s chest and told him “get the fuck out of this house”. Giblin then kicked Oriel in her right leg shin area and behind her leg. In response, Oriel pushed Giblin in the chest twice to get him out the front door. As she did this she noticed Bock standing nearby and screamed at him to “stop this”.

8Bock then started to pull you off Madden with Oriel attempting to assist. During the course of that struggle, Oriel stabbed you in the right upper arm and in the back twice.[1] After being stabbed you let go of Madden and Bock dragged you off him. Oriel saw the machete on the ground and picked it up, gave it to Bock and pushed you out of the house locking the front door behind you.

[1] The injuries caused by this stabbing were said to be superficial.

9At 11.23pm that night Oriel received a call from Bushell who told her that if she got the police involved “they” would come and kill her and her family.

10On 17 September 2023 at 3.50pm, Oriel received another call in which she recognised your voice. You demanded to know where Madden was. Bushell also participated in that call and made a number of threats to Oriel such as “you forget that we know where you and your mum live,” “you are all fucked,” and “you better watch your backs we are coming for you”.

11On Wednesday, 20 September 2023 at approximately 12pm, you attended Bushell’s house in Allansford and stated that you were “going into town to sort this fuckin’ Willis lad out”. Soon afterwards, an acquaintance of yours, Georgia Gibb, purportedly arranged to purchase marijuana from Madden. She then drove you, Giblin, and Bock to Madden’s address. You had previously discussed forcing entry into Madden’s house with Giblin, and whilst travelling to the house you spoke with the others about physically confronting Madden.

12When you arrived, Madden, Oriel and a third person, Jesse Carter, were inside sitting in the lounge room. Gibb then entered Madden’s residence with you following closely behind. At the time you entered you were armed with a wheel brace/tyre iron. That conduct makes out Charge 3 on the Indictment, a further charge of aggravated burglary.

13Once you entered, you immediately attacked Madden swinging the tyre iron at him. As this was happening Bushell, Giblin, Bock and Keutenius entered the house. Gibb was also still present. Oriel ran to the spare room to get out of the way. Both Madden and Carter reacted quickly. Carter blocked the swing of the wheel brace, which allowed Madden an opportunity to grab a paring knife that had been sitting on the coffee table.

14Madden used it to stab you in the stomach. Carter then pulled the hoodie you were wearing over your head and dragged you towards the glass door that led to the kitchen. As this was done, you continued to swing the wheel brace smashing the television. Carter was attacked by one of the others whilst you attempted to poke him in the eye. He then grabbed you by the back of your pants and rammed you headfirst into a wall and kneed you in the torso.

15At one point you lifted your jumper revealing an injury to your stomach which was described as “[your] intestines hanging out”. Giblin and Bock joined in the attack on Madden and your conduct in company with the other offenders constitutes Charge 5 on the Indictment - affray.

16In his struggle with Giblin and Bock, Madden received a puncture wound to his upper right bicep. Oriel returned to the room to see Bushell twice striking Carter to the back with a skateboard. She grabbed a pole and hit Bushell on the back of his right shoulder. He then attempted to strike Oriel with the skateboard but was again hit with the pole.

17Oriel then confronted Bock who was running towards Carter and you. She told him to get out and Bock responded by putting his hands up as if to strike Oriel. She said “go on Bock, hit me, you said you would never hit a woman, so go on and do it”. Oriel then hit him with the pole. During the struggle Keutenius grabbed a stool and threw it at Oriel striking her on the hand. The intruders began to leave the house at this point at the direction of Bushell. You were holding your stomach as you left.

18Madden and Carter told police that during the affray they both feared for their lives and that of Oriel.

19You were arrested in respect of these matters on 2 October 2023. During the course of your interview with police you stated, falsely, that you went to the property because you thought that Gibb was in danger. You described Madden stabbing you as a “cheap shot” and not in self-defence because Madden was nowhere near you at the time. You admitted going into the house with a tyre iron. You referred to Madden and Carter as “dogs” and you suggested that Madden supplied drugs to “good kids aged 15 or younger.”

The co-accused

20Bushell, Giblin and Bock were committed to stand trial in September 2023 and will face trial in the future.

21Keutenius’ matters resolved in the Magistrates Court in May 2024.

Victim impact

22Chelsea Oriel provided a victim impact statement of 12 June 2024 in which she described how much she was affected by these incidents. Although she did not want her statement read in Court, it is clear that Ms Oriel suffered a great deal both psychologically and materially as a result of your crimes. Nine months or so on, she is still dealing with the consequences and felt that she had to move interstate in order to try and recover and feel safe.

23Neither Madden or Carter provided victim impact statements, however I am prepared to infer that they also must have been at the very least left shaken and frightened.

24You should understand that the impact your offending has had on the victims is an important consideration to be taken into account in the formulation of your sentence.

Prior convictions

25This is not the first time you have offended. You were born in June 2001 and are now 23 years of age. You were dealt with in the District Court of South Australia on 1 July 2021 in relation to one charge of trafficking in a controlled drug in a prescribed area. You were sentenced to 3 years and 23 days’ imprisonment, and a non-parole period of 1 year and 10 months was fixed however, the sentence was suspended for 2 years on condition that you perform 40 hours of community service within 8 months. I was told that the effect of that order was to suspend the term of imprisonment provided you complied with the conditions of the order.

26You were also before the Warrnambool Magistrates Court on 3 July 2023 in relation to a charge of trafficking in ecstasy. That matter was adjourned to 2 July 2024 on condition that you complete a drug education and information program.

27You were remanded on this matter in custody on 2 October 2023. However, you were released on bail on 27 October 2023. On 6 November 2023 you were sentenced in the Magistrates Court to 6 months’ imprisonment for trafficking and possessing drugs. On 26 February 2024 you were dealt with for some driving offences for which you were sentenced to 4 months’ imprisonment, 3 months of which was to be served concurrently with the sentence imposed in November. Your sentences, I was told, would expire on 25 June 2024.

Personal circumstances

28Turning to your personal circumstances, you were born in Warrnambool and raised in Port Fairy. I was told that your father built guitars and that your mother was employed as a disability worker with a government agency. Although you grew up in what you describe as a very tough area and your parents separated when you were 12, you still speak of your childhood in positive terms. You participated in local basketball and cricket and developed an interest in mixed martial arts. Indeed, your instructor in martial arts wrote a supportive personal reference confirming your involvement over the last five or so years. 

29You attended a local school and did particularly well in maths, but struggled in other areas and exhibited some behavioural difficulties. You initially left school during Year 10 and completed that year at TAFE. You then decided to return to school and completed Year 11, leaving after the first term of Year 12. You completed your Year 12 during 2019 obtaining your Victorian Certificate of Applied Learning.

30Since leaving school you have worked variously in a bore water company, a bakery, and in local restaurants. Two employment references confirm that you were valued as an employee in the local restaurants in which you worked.

31Drug abuse has been a problem for you since your early teens and seems to explain much of the reason for your descent into offending. You started smoking cannabis at about the age of 14 and quickly became dependent. From the age of 17 you regularly used MDMA and from 19, cocaine. In addition, you have abused ketamine and prescription medications such as xanax quite frequently. Although your criminal history did not start as early as is often the case with drug offenders, it now consists of serious offending relating to the trafficking of drugs albeit, that until these matters there had been no previous convictions for violence.

32In January this year, you were assessed for the purposes of this hearing by Mr Warren Simmons, psychologist. In his first report of 10 January, he reviewed your history of substance abuse and identified what may be its underlying causes. He stated:

Although there has been a history of polysubstance abuse, it was noted that Mr Sutcliffe did not first come before the court until recent years. There was no evidence of significant antisocial personality traits nor a tendency towards offending that often commences in one's early to mid-teens. Mr Sutcliffe's offending appears to be related to his substance use rather than towards any other types of significant offending.… Mr Sutcliffe is having significant difficulties with substance use, although it was thought that this is most likely related to underlying difficulties, including anxiety and depression and potential disorders such as attention deficit disorder and autism spectrum disorder.[2]

[2] Mr Warren Simmons, Psychological Report (10 January 2024), [29-31].

33Mr Simmons concluded that you were not without some prospects for rehabilitation.

34In a supplementary report of 25 May 2024, Mr Simmons addressed the issue of whether you in fact suffered from an Attention Deficit Disorder and/or Autism Spectrum Disorder. The results of the testing he conducted suggest a potential diagnosis of Adult Attention Deficit Disorder and a possible diagnosis of Autism Spectrum Disorder. Those results however were inconclusive and further assessment is required. In Mr Simmons view that should take place once your symptoms of depression and anxiety are appropriately managed.

35Although the circumstances in which you came to commit these offences are by no means clear, it is safe enough to conclude that it related to drugs. Your counsel suggested that you had become fixated on the victim and suggested he was trafficking drugs to children. As I will explain shortly, the notion that you should take the law into your own hands or attempt to justify this conduct as some form vigilantism, is wholly unacceptable and not something our community can tolerate.

Defence submissions

36Mr Peters who appeared on your behalf relied on, amongst other matters:

a)    your early plea of guilty;

b)    the fact that you received a serious injury when engaging in this offending and that that injury will serve as a valuable lesson to you;

c)    your youthfulness; and,

d)    what was submitted to be your good prospects for rehabilitation.

37As to your plea of guilty, the procedural chronology of this matter demonstrates that after a period of negotiation in the lead up to committal you waived your right to cross-examine witnesses, thus sparing the victims from that ordeal and pleaded guilty to appropriately amended charges in the Magistrates Court. It follows that you entered your plea of guilty at an early stage in that proceeding. Thus, unlike your co-offenders you accepted responsibility for your role in these attacks. It followed that the reduction in your sentence should be tangible and substantial.

38As to the second matter in mitigation, you presented at the Warrnambool Base Hospital that day and underwent an emergency laparotomy and were found to have a number of small injuries/holes to your bowel. You discharged yourself against medical advice shortly afterwards although you were readmitted a few hours later until you again discharged yourself four days later.

39It was submitted that your injuries were clearly serious and they continue to render your time in custody more onerous. I was provided with a Discharge Summary from Sale Hospital of 19 January 2024 which confirms the history of trauma to the intestine and continuing difficulties with bowel obstruction/function.

40It was further submitted that you are still a relatively young person who did not start offending until after your substance abuse caught up with you. It followed that there should still be a significant emphasis on rehabilitation as a sentencing purpose and that purpose was enhanced by the very real support you enjoy from your family, in particular your mother and your grandparents. I note that they were present in court and your grandmother provided a helpful personal reference.

Prosecution submissions

41Mr O'Doherty, who appeared on behalf of the prosecution, submitted that this offence had to be viewed very seriously. It was preplanned and occurred in circumstances where you recruited a group of offenders to invade the victim's house with a machete and then a steel tyre lever.

42It was a prolonged concerted attack designed to inflict lasting harm. After the first occasion serious threats were made after which you returned to attack the victims again. The impact on Oriel has been considerable. Nothing short of the imposition of a total effective sentence involving a head sentence with a non-parole period was appropriate given the seriousness of this offending.

Consideration

43In assessing these submissions, I need first to return to the point that anyone who chooses to invade someone’s home, as you did in these instances, must expect to be punished severely. It matters not whether it is to exact some form of vigilante justice or to further some real or imagined grievance. There is simply no justification for running into anyone’s home, whoever they might be and whatever they might have done and terrorising them. It is fundamental that everyone is entitled to feel safe in their own home and violating that sanctuary in the way that you did, cannot be tolerated.

44It is more than troubling that you and your co-offenders thought you could indulge in this lawless kind of thuggery with impunity. That fact alone points to the need to ensure that in sentencing you, others who might be disposed to offend in this way understand that if they do so they will lose their liberty for a lengthy period of time.

45There are some features of what was done here that substantially aggravates your offending. This was not some spontaneous reaction to an unexpected event. On both occasions what you did was planned and calculated to instil terror. You chose to act in combination. You wielded weapons, particularly the machete, so as to terrify your victims. Nor were these short-lived attacks, they were sustained and frenzied.

46That you yourself suffered what appears to have been a substantial injury is yet another measure of the objective gravity of this offending. It is apparent that you were lucky not to have been more seriously injured or to have even lost your life. Likewise, the victims were lucky not to have been seriously physically injured. That is not to suggest they were not affected by what you did. Ms Oriel’s victim impact statement confirms that the affects have been serious and lasting.

47Taking all those matters into account, I must accept the prosecutor’s submission as to the seriousness with which this offending must be viewed.

48That said, I need to weigh the gravity of what you have done against the matters personal to you that tend to mitigate your position.

49I accept that you entered a plea of guilty to these charges at what was effectively the first practicable opportunity. That plea has certainly facilitated the course of justice, it has real utilitarian value and is consistent with remorse. It is a plea which stands in stark contrast with that of your co-offenders who I understand wish to proceed to trial whilst you have taken responsibility for your role in this offending. The law requires that in those circumstances I should substantially reduce your sentence and I shall do so.

50The law also allows that even though you essentially brought your injury on yourself, the sustaining of that injury may mitigate where it could render your imprisonment more burdensome and constitute a form of extra-curial punishment.[3] The evidence here, confirms that the injury was indeed serious and that you continue to have difficulty with bowel function which necessitated hospitalisation whilst you have been in custody. Whether your injury serves to specifically deter you remains to be seen, but I accept that it has rendered your time in custody more burdensome and constitutes a measure of extra-curial punishment. Your sentence will be mitigated in accordance with the principle to which I have referred.

[3] Barci v R (1994) 76 A Crim R 103;

51Your youthfulness is a powerful sentencing consideration. You are fortunate to still have the support of your mother and extended family. It is encouraging that you have been trying to make use of your time in custody by undertaking some Narcotics Anonymous sessions and vocational certificates. In that sense, it may be that Mr Simmons’ opinion, that you are not without some prospects of rehabilitation, understates your potential.

52Although general deterrence must be the dominant sentencing purpose in offending of this gravity, given that you are a young person with a relatively recent criminal history which is bound up with your drug problems it is, I think, important to try to emphasise your rehabilitation to the extent possible. That is a matter that is particularly relevant to the fixing of the non-parole period that will be imposed.

53Totality is also an important consideration in your case. That principle operates in two relevant ways. First, it might have been more appropriate to have had your Magistrates’ Court matters dealt with after this matter rather than to have served those sentences before this sentence. That would have allowed for a greater opportunity for concurrency. To do justice to your circumstances, I am permitted to take into account the time in custody you have served between November 2023 and now, as what is sometimes called Renzella time,[4] and I will do so.

[4]R v Renzella [1997] 2 VR 88.

54Second, totality has an important role to play in compressing cumulation between offences to achieve a just and appropriate sentence. I will need to cumulate the sentences between the two incidents to reflect their distinct character but I will moderate the cumulation so as to ensure the overall sentence is proportionate.

Sentence

55Taking all relevant matters into account you will be sentenced as follows:

a)    On Charge 1 - aggravated burglary, you will be convicted and sentenced to serve a term of imprisonment of 4 years;

b)    On Charge 2 - common assault, you will be convicted and sentenced to serve a term of imprisonment of 15 months;

c)    On Charge 3 - aggravated burglary, you will be convicted and sentenced to serve a term of imprisonment of 4 years;

d)    On Charge 4 - common assault, you will be convicted and sentenced to serve a term of imprisonment of 15 months;

e)    On Charge 5 – affray, you will be convicted and sentenced to serve a term of imprisonment of 15 months.

56I will further order that 12 months of the sentence imposed on Charge 3 should be served cumulatively upon the sentence imposed on Charge 1. I will direct that all other sentences imposed on this day be served concurrently with the sentence imposed on Charge 1.

57Those orders render a total effective sentence of 5 years imprisonment. I will fix a non-parole period of 3 years.

58I will order pursuant to section 18 of the Sentencing Act 1991 (Vic) that you have served 26 days by way of pre-sentence detention and I will cause that declaration to be noted in the records of the court.

59I will further declare pursuant to section 6AAA of the Sentencing Act that but for your plea of guilty you would have been sentenced to a total effective sentence of 6 years and 6 months. I would have fixed a non-parole period of 4 years and 6 months.