Director of Public Prosecutions v Feder

[2024] VCC 19

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00156

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY FEDER

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May, 7 June, 19 June, 7 July, 26 October 2023
DATE OF SENTENCE:	25 January 2024
CASE MAY BE CITED AS:	DPP v Feder
MEDIUM NEUTRAL CITATION:	[2024] VCC 19

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE

Catchwords:              Attempted armed robbery – assault emergency worker on duty – schizophrenia – psychosis – Verdins – deferral of sentence

Legislation Cited:      Sentencing Act 1991

Cases Cited:R v Verdins [2007] VSCA 62

Sentence:                  Total effective sentence of 13 months’ imprisonment served by way of pre-sentence detention

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ashley Harrold	OPP
For the Accused	Amit Malik	Sean Kelly Stary Norton Halphen

HER HONOUR:

1Bradley Feder you have pleaded guilty on indictment N10999369 to one charge of attempted armed robbery and one charge of assault an emergency worker.

Circumstances of offending

2The complete factual basis of your offending is detailed in the Summary of Prosecution Opening for Plea dated 4 May 2023. This document was tendered on your plea as exhibit A, what follows is a summary of what occurred on 19 May 2022.

3At approximately 5.00pm on 19 May 2022, you attended at Heidelberg Police Station and spoke with an officer at the front counter. You informed the officer that you wanted to report a number of burglaries you had committed, one from 1994 and others from 10 years ago. You could not provide any specific information regarding these burglaries. During this conversation, the police officer noticed you were agitated, erratic, and you mumbled when you spoke.

4Police offered to arrange crisis accommodation for you, however, you asked to be arrested. The police told you the cells were full, meaning you could not stay the night. You were told by a police officer that if you were able to get a mobile phone, they could get in touch and provide further updates regarding any investigation.

5You were disappointed by this and left the station.

6Shortly after leaving, at 5.47pm, you attended at a 7/11 service station in Heidelberg, nearby to the police station. The 7/11 staff member was in the back storeroom at the time. Upon hearing you enter, they walked to the front counter.

7You also walked to the front counter, produced a pair of scissors, pointed them towards the attendant and said “just gimme the cash”. This is the basis of Charge 1: Attempted armed robbery.

8The attendant took a step back from the counter and pressed the emergency button. You left the store and stood outside the entrance for a short time. The attendant served other customers and phoned 000.

9You went back inside the 7/11, and again pointed the scissors at the attendant and said “gimme the money”. The attendant was on the phone to 000 and did not respond.

10You again left the store and stood outside holding the scissors. The attendant described you as calm and not acting in an aggressive manner.

11Police officers attended the scene shortly after the phone call, due to the proximity of the 7/11 to Heidelberg Police Station. Some officers drove, whilst others ran to the scene.

12Upon police attendance, you were ordered to get on the ground, but did not comply. You started walking towards an officer, holding the scissors. OC foam was used to slow your movement, but it did not work. You continued walking towards an officer with the scissors in your hand. This is the basis of Charge 2: Assault emergency worker on duty.

13Another officer deployed OC foam on your face, which caused you to run back towards the 7/11, before laying on the ground, face down, and placing your hands behind your back. During this, you dropped the scissors.

14You were arrested and transported to Heidelberg Police Station. Shortly after arrival, you were assessed by a Forensic Medical Officer and deemed unfit for interview.

Nature and gravity of offending

15Attempted armed robbery is an inherently and objectively serious offence as evidenced by the maximum penalty. Your offending involved confrontation of innocent and vulnerable victim. Further when police attended you used the scissors you had and were threatening towards the police officer. OC foam was used multiple times in order to facilitate an arrest.

16However, your offending must be seen in the context of your mental state at the time. In the lead up to the offending, you had attended at Heidelberg Police Station in an attempt to be taken into custody. The way in which you presented at the time indicates you were not well.

17As submitted by your counsel, you believed you would be safer in police custody. It is clear that your offending was driven by a desire to be arrested, rather than any malicious intent.

18While no victim impact statements were provided, I accept that your offending would have been frightening and confronting for your victims. This is mitigated somewhat by the 7/11 attendant’s description of your calm and non-aggressive manner when inside the 7/11.

19Further, as submitted by your counsel, the defence of mental impairment was open to you. This is supported by the psychiatric report of Dr Clare McInerney dated 30 December 2022 and Dr McInerney’s further report dated 5 May 2023.

Personal circumstances

20You were born in November 1976 and grew up in the Heidelberg area. Your parents separated when you were 2 years old, at which time you and your siblings lived with your father and stepmother.

21You had a challenging relationship with your father, who now resides in NSW with the rest of your family. You speak only occasionally.

22You left your father’s home at aged 13 and began living with your mother for a brief period. After this, you became homeless. During this period, you were abusing alcohol and cannabis.

23Your mother was suffering from schizoaffective disorder and abused cannabis. She passed away from lung cancer when you were 16 years old.

24During your mid-teens, you engaged in heroin use, which continued until about 5 years prior to this current offending. Since your mid-twenties, you have been a heavy methamphetamine user.

25There is limited evidence to suggest you were using illicit drugs at the time of the offending before this Court.

26You told Dr McInerney that you have memories of being sexually abused as a child, which was noted by Dr McInerny to be a particularly strong pre-occupation when psychotic.

27You struggled at school; you attributed these difficulties to the sexual abuse you suffered as a child. Your parents moved you to a private school and engaged a psychologist and maths tutor to assist you. However, you ultimately left school after completing Year 10.

28During your teen years, you were also subject to a protection application for a period. You spent time at Turana and Baltara accordingly.

29In terms of employment, you worked in some unskilled roles in early adulthood. You do not currently work. You receive a disability support pension and a small NDIS package.

Mental health

30Medical records from St Vincent’s Hospital show that you first presented with psychosis at age 16. At the time of the offending, you had an established diagnosis of treatment resistant schizophrenia.

31Your psychotic relapses were often associated with beliefs about being poisoned, threatened, and being investigated by the police. Dr McInerney noted your illness is characterised by a complex delusional belief system, which is supported by auditory hallucinations.

32You told Dr McInerney of a friend dying of a drug overdose in your presence in 1996. You have developed a large number of delusional beliefs in relation to this incident.

33You reported to Dr McInerney that you were being investigated for the death of your friend and that the police had involved others around you in order to monitor, harass and threaten you. You said police had put speakers in your room to communicate with you.

34You decided to get yourself arrested in the hope of being imprisoned, as you felt you would be safer in prison, away from those who put speakers in your room. This is what prompted your attendance at Heidelberg Police Station to report the burglaries.

35You told Dr McInerney that you pretended to commit an armed robbery with the hope that the police would attend and shoot you. You explained this offending was not motivated by financial gain, or an intention to hurt someone. The purpose of the offending was to get yourself arrested or killed.

36Dr McInerney also noted, as was indicated on your medical records, that your psychotic relapses are also marked by self-neglect. During your admissions to hospital, and indeed your time in custody following your arrest for this offending, multiple records indicate poor self-care and a reluctance to eat or drink.

37You have explained that you fear people are trying to poison you, be it either your fellow residents in your accommodation or guards or other prisoners in custody with you.

38In terms of treatment, your medical records indicate that you had a positive response to the medication clozapine, which you took for approximately 10 years before stopping of your own accord in late 2021. It is noted that taking this medication comes with significant side effects and risks, which require blood monitoring. This monitoring is one of the difficulties that caused you to decide to stop taking clozapine.

39You have rejected recent attempts to restart the taking of clozapine.

40In the six months prior to your arrest, you had three admissions to hospital related to a relapse of psychosis. The most recent was nine days prior to the offending.

41During the May admission, you detailed to staff your belief that residents in your accommodation were trying to poison you, and people were trying to communicate with you through your earphones.

42It is Dr McInerney’s opinion that your offending is closely connected to your psychotic disorder, which is evidenced by the lack of offending during the period of successful treatment with clozapine.

43As submitted by your counsel, and confirmed by Dr McInerney, it is clear you were suffering from an episode of psychosis at the time of this offending.

Application of Verdins

44It was submitted by your counsel that all the principles of Verdins were enlivened in your matter.[1] I accept this submission. As discussed above, it is clear that you were suffering from a psychotic episode during your offending. For the reason that follow I find that each of the principles in Verdins apply to your case and as such general deterrence should be substantially moderated.[2]

[1] R v Verdins [2007] VSCA 62.

[2] Ibid.

45Dr McInerney noted in her report that you said you had not taken your psychiatric medication for approximately one month prior to the incident. This must be viewed in the context of both the potential side effects of your medication, and the underlying reason for not taking your medication being the delusional belief that fellow residents were breaking into your room, urinating on the floor, and stealing your medication.

46Dr McInerney also discussed the relationship between your mental illness and the offending for which you are to be sentenced. Dr McInerny concluded that your offending behaviour appeared to have come about in direct response to the delusions and hallucinations you were experiencing at the time.

47Further, Dr McInerney stated that your mental illness symptoms would have substantially contributed to your actions by impairing your judgment and decision-making capacity.

48Your mental health difficulties have also made your time in pre-sentence detention very difficult. This would be the same for any further period of imprisonment.

49During your custody, you spent most of your remand in mental health placements. Further, your period of remand has seen you experience a large array of psychotic symptoms which cause you distress and can limit your consumption of food and drink.

50Dr McInerney was of the opinion that your mental health deteriorated whilst in custody. This was partly due to the inherently stressful nature of the prison environment. Other factors that have impacted this are your impacted ability to fully adhere to treatment recommendations, the fact you entered custody in a psychotic relapse, and the increased prominence of your pre-existing delusion about those around you poisoning you being made worse by the close living arrangements in prison.

51Your time in custody also severed your relationship with your outside supports, for example, the Hawthorn Continuing Care Team. As raised by your counsel, there was a lack of appropriate systems in place to support any transition to the community at the time of your first hearing, 12 May 2023.

Matters in mitigation

52There were a number of matters raised in mitigation by your counsel. You entered an early plea of guilty to the charges. I accept your plea of guilty was entered at a very early stage in the proceedings.  Further, I accept that this is demonstrative of your remorse and your willingness to facilitate the course of justice. It shows that you have accepted responsibility for your offending. There is also a significant utilitarian benefit in your plea of guilty, in that you have spared the victim the need to give evidence and you have spared the court the cost and time of a trial. 

53Further, your counsel submitted that a plea of guilty during the pandemic should attract a more pronounced amelioration of sentence than at another time, due to the enormous backlog in the cases before the courts.  In the circumstances, where your plea was entered on 12 May 2023 when the backlogs were still in existence, I have given you a significant sentencing discount for your plea of guilty.

54I accept that a further impact of the Covid-19 pandemic in your case was that your time in custody on remand was served in very difficult circumstances.

55Your plea of guilty also comes after the receipt of psychiatric reports that opined the very real possibility of a mental impairment defence to you.

Deferral of sentence

56On 7 July 2023, pursuant to s83A of the Sentencing Act 1991,[3] your sentence was deferred and you were released on bail. This was done to facilitate your potential rehabilitation out of custody.

[3] Sentencing Act 1991 (Vic) s 83A.

57The Court Integrated Services Program (‘CISP’), Disability Talk, and Forensicare were all involved in ensuring you had the appropriate supports available upon your release. You remain involved with CISP and Disability Talk, although your engagement has been inconsistent.

58Monthly CISP reviews have been held to monitor your progress, with reports also being provided to the Court. To begin with, you engaged meaningfully and consistently with CISP, as well as your Alcohol and other Drug (‘AOD’) counselling.

59More recently, there has been more limited engagement and difficulties in your support workers making contact with you. By 26 October 2023 I was advised that you had been admitted as an inpatient at St Vincent’s hospital. In the circumstances I finalised your obligations with CISP and adjourned the further hearing of your matter for sentence.

60Unfortunately I have had to adjourn your sentence hearing on several occasions as you have not been well enough to attend.

Sentencing considerations

61The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  Given the application of Verdins in your case general deterrence must be significantly moderated as there is a clear link between you offending and your poor mental health. Further I am of the view that you are not an appropriate vehicle for general deterrence.  The weight to be given to specific deterrence must also be moderated in light of your experiences in custody and rehabilitative needs.

62In your case, I regard protection of the community to be a relevant consideration, but I consider this is best achieved by supports and interventions to address the ongoing issues you have. In your case, this is what will reduce the risk of further offending. I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case.[4]  In particular, I have had regard to the sentencing landscape for the offending before me. 

[4] Ibid s 5.

63Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.  The principle of totality is also a very important consideration here.  I have had regard to the fact that you have spent an extended period of time custody on remand in relation to the matters you face now. I have also taken the principles of proportionality and parsimony into account in fixing the sentence I will now impose, that is, the punishment I impose must fit your crime and I must do no more than is necessary to punish you for your particular offending.

64In addition, I have taken into account our time on deferral of sentence. I appreciate that you made every effort to comply but that this was interrupted by your very poor mental health. There have been several services who have assisted your transition into the community, this has included CISP workers in particular, Ms El-Achkar and Ms Souris, Gerard DiFluri from the Mental Health Transition Support and Ms Maria J from Disability Talk.

65It is my intention to now finalise your matter. Mr Feder you are convicted of each of the charges before the court. In relation to the charge of attempted armed robbery you are sentenced to 12 months imprisonment. In relation to the charge of assault on an emergency worker you are sentenced to 3 months imprisonment. I order that 1 month of the sentence on charge 2 be served cumulatively. Therefore the total sentence is 13 months.

66In circumstances where you have already served this time on remand do not intend to set a non-parole period. I reckon that you have served 414 days by way of pre-sentence detention.

67I will make the order for disposal sought by the crown.

68Pursuant to s. 6AAA of the Sentencing Act had you pleaded not guilty and been found guilty the sentence I would have imposed is 24 months with a non-parole period of 13 months