Director of Public Prosecutions v Foehn

[2025] VCC 1602

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

CR-25-00308

DIRECTOR OF PUBLIC PROSECUTIONS

v

BAILEY FOEHN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2025
DATE OF SENTENCE:	31 October 2025
CASE MAY BE CITED AS:	DPP v Foehn
MEDIUM NEUTRAL CITATION:	[2025] VCC 1602

REASONS FOR SENTENCE
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Subject: Criminal law – sentence

Catchwords: Pleaded guilty – 1 charge aggravated  carjacking  - 1 charge possessing a drug of dependence – summary charge 7 – drive  while licence suspended – summary charge 5 – possessing a prohibited weapon – victim – Uber driver – car, phone stolen -both offenders drove stolen car - victim still suffering emotionally  - offender 21 years of age -  emotional and physical abuse by mother  drug abuse -  diagnosis of ADHD and ODD – paranoid personality disorder  -suicide attempts   case above  mid-range of seriousness – moderate risk of reoffending  limb 5 of Verdins

Sentence:                  Foehn - TES  3 years 6 months, non parole period 2 years,  licence suspended for 2 years

Co-offender Voice   1 charge  carjacking – 1 charge  dangerous driving  while being pursued by police -  TES  3 years 3 months – non parole period 18 month 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Skepper	Office of Public Prosecutions
For the Accused	Ms F. Banihali	VLA

HER HONOUR:

1Bailey Foehn, you have pleaded guilty to one charge of aggravated carjacking and one charge of possessing a drug of dependence, namely 1,4-Butanediol. You have also pleaded guilty to two related summary offences, driving while your authorisation was suspended and possessing a prohibited weapon without exemption.

The offending

2On 27 November 2024 you were at the home of your older sister, Kassandra Vivianti, at Betula Street, Doveton. She was there, together with your co-offender Zoe Voice, her partner Joshua Saunders and an associate Nicholas Vawdrey.

3The victim of the offending, Muhammad Malik, had commenced his shift as an Uber Eats delivery driver at about 1.00 am that morning, driving his 2006 Toyota Yaris sedan.

4At 1.48 am Voice placed an order for a single cheeseburger to be delivered to a different house on Betula Street, Doveton, via the Uber Eats app on her mobile phone. Malik received that delivery notification at 1.55 am, and he went to McDonalds to collect the order.

5He arrived at Betula Street and parked opposite. He got out of his car and saw you standing behind a truck parked outside number 49. As he walked in front of his car with the McDonalds order and car key in his hand, you walked in front of him wearing a face covering and dark clothing.

6You said to Malik, 'Give me your car keys' and when Malik asked you to repeat it, you did so. You produced what Malik thought was a knife, but it was later identified as an extendable baton.

7Malik was fearful of what you might do and handed over his car key, and then his phone, which you also demanded. Voice then appeared from behind a truck and told you to move. She then got into the front passenger seat of Malik’s car, and you got into the driver’s seat. You started the car, and Malik attempted to open the driver’s door. A third man approached Malik holding what Malik thought was a knife or sword and threatened Malik, saying: 'If you trying to argue with me, I’m gonna fuck you so get away.'

8Fearing for his life Malik backed away from the car with his hands up. You then drove away at speed, but a few hundred yards away you were struggling to control the car and Voice took over driving.

9Malik sought help from a neighbouring house and reported the matter to the police.

10At 2.29 am Highway Patrol police were patrolling south on Hallam Road when they observed the Yaris, and they maintained observations as it travelled at excessive speeds throughout the suburbs of Lynbrook and Cranbourne. About seven minutes later they lost sight of it in Cranbourne.

11At about 3.15 am they saw the car again, with Voice driving. They maintained observations as the car was driven erratically through various streets. At 3.20 am another police member successfully deployed a vehicle immobilising device, deflating all four tyres of the car. The car continued being driven with deteriorating tyres, failing to stop.

12The car then drove over a median strip between a series of bollards before stopping. You and Voice got out of the car and were arrested.

13Voice was searched and police found Malik’s bank card in her pocket. Later, her phone and yours were found in the car, along with Malik’s wallet and a bottle containing 1,4-Butanediol. You later admitted this was yours. Also found were a screwdriver and baton believed to have been used to threaten Malik.

14You were interviewed and admitted you had been at the scene of the carjacking but did not remember or did not know what happened. You said you had been given a 'pole thing' and you may have held it but you never intended to 'harm the bloke.' You said Ms Voice took the car, and you saw nothing after that. You only drove the car for about two minutes. You said: 'I don't know why I did. I don't know what I was thinking, but I jumped in the driver's seat which is the dumbest mistake of my life.'

15When Voice was interviewed, she admitted driving saying she was drug affected by ice and GHB. She pleaded guilty to one charge of carjacking and one charge of dangerous driving while pursued by police. On 30 June 2025 I sentenced her to total effective sentence of a term of imprisonment of three years and three months, with a non-parole period of 18 months. The individual sentences were three years for carjacking and nine months for dangerous driving.

Sentencing issues

16The maximum sentence for the crime of carjacking is 15 years' imprisonment as a Category 2 offence. The maximum sentence for aggravated carjacking, as committed by you with the production of the extendable baton, is 25 years. It is a Category 1 offence. For possession of a drug of dependence the maximum penalty is imprisonment for one year, and two years for each of the other summary offences.

17In their submissions, both counsel agreed that while there was some evidence of pre-planning, the offending was unsophisticated. The food order was for a single item, and the delivery address was one associated with you. It was an effective way to lure the driver to the scene while under cover of darkness and with no-one around at that hour so that he could be robbed. There were three offenders and the victim was alone. You exposed a weapon to him which indicates a degree of planning and reduces somewhat any impulsivity of your behaviour.

18Mr Malik described the effects upon him in his victim impact statement provided to the court. The immediate aftermath of the crime was that the victim was left alone at night without his car or phone and had to call upon strangers to help him. The longer-term effects upon him were also serious,

19He explained that when it happened he called out for help in the street but no-one came. Apparently, he eventually knocked on a neighbour's door and was able to use their mobile phone. That feeling of being alone has persisted as he is an international student, already far from home, and he now feels completely alone and unprotected.

20He said the moment of being threatened with the weapon has also stayed with him as it plays over in his mind every day causing constant fear and anxiety. He has lost weight as he cannot eat properly and he suffers from frequent headaches and exhaustion. His hand shakes when he is in public and he jumps at sudden noises.

21He had worked hard to support himself and had put all his savings into his car and phone and lost virtually everything. He is still paying for the phone he no longer has. He no longer works at night or even goes out with friends after dark. He feels that even his own home is not safe, and he double-checks locks and sleeps with the lights on.

22While taking care not to permit the contents of the victim's statement to overwhelm the case, I have quoted this detail to emphasise the effects of your offending on the entirely innocent victim who has lost so much and still suffers emotionally.

My conclusion is that the circumstances of this case place it well above the mid-range of seriousness.

23Section 10AD of the Sentencing Act requires the court to impose a prison sentence with a non-parole period of not less than three years, unless a special reason exists. Ms Banihali on your behalf submitted that your impaired mental functioning enlivened the provisions of s10A(2)(c)(ii) and (e).

24Sub-section (2)(c)(ii) provides that a special reason may exist where the offender can show on the balance of probabilities that:  

He or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.

25Sub-paragraph (e) provides an alternative pathway to finding the existence of a special reason, where:

There are substantial and compelling circumstances that are exceptional and rare and that justify doing so.

26A finding under sub-section (2)(e) is restricted by the sub-paragraphs which follow it, requiring greater importance to be given to deterrence and denunciation, with less weight to be given to the offenders' personal circumstances, and no regard to be given to previous good character or an early plea of guilty, prospects for rehabilitation or parity.

27As to mental impairment, you were seen and assessed by a forensic psychologist, Dr Tiffany Lewis, in May 2025, and by Laura Scott, a neuropsychologist, in September and October 2025. Each has provided a detailed and extensive report, setting out aspects of your early and more recent background and providing opinions as to relevant diagnoses and the effects on your behaviour.

Personal background and circumstances

28Now aged 22, you have had a difficult childhood. You are the youngest of your parents three children, and your parents separated before you were born. The family was known to Child Protection with more than 24 reports being made concerning you before you were 15. You were placed variously with each parent, and in out-of-home care. Abuse by your mother was documented by workers who heard her tell you that you were not wanted by her or your father. She subjected you to emotional and physical abuse and when returned to her home at one point against your wishes you damaged her property and set fire to the veranda of her house.

29There was little money in the family, and you never had new shoes or clothes, which caused difficulties with your peer group. You were often bullied at school, and you did not develop literacy and numeracy skills, although you have tackled this now with some success. You left school at 14 or 15 and began living independently at 17, working as an apprentice roof tiler. This ended due to Covid, and you then became an apprentice boilermaker. However, the aggressively violent culture caused you to leave after four weeks. Various jobs after that were short-lived as you had relapsed into drug use and were consistently late.

30At age 16 you began a relationship with Grace with whom you have a son, but this relationship broke down and there is an intervention order against you. This break-down caused the relapse of your substance abuse which had been ongoing since the age of 13 except for the duration of the relationship with Grace.

31As a child you were diagnosed with ADHD and ODD (oppositional defiance disorder) and eventually you were prescribed the medication Vyvanse which was given to you at school each morning to overcome inconsistent compliance. You had an apparent eating disorder, but this improved at high school when you made friends and trusted the teachers. Dr Lewis retrospectively diagnosed this as bulimia nervosa in childhood.

32However, depressive symptoms emerged at this time with self-harm and constant feelings of worthlessness, leading to lack of energy and motivation. You attempted suicide three times in the past. Eventually, feelings of stress and paranoia led to the recent diagnosis by Dr Lewis of paranoid personality disorder.

33Dr Lewis considered you are at moderate risk of re-offending, linked to substance abuse, paranoid personality disorder, lack of supportive relationships and emotional dysregulation. [1]You were under the influence of ice, cannabis and GHB at the time of the offending, and you were trying to impress Ms Voice. Dr Lewis considers you engaged in offending as a way to ingratiate yourself with your peers and to be liked by others, as an expression of seeking attachment. This was in the context of your '…difficulties with impulse control, rigid thinking and inefficiencies with planning and organisation, likely to have contributed to poor decision-making on the day of offending. His choice to participate in the offending appeared to have been taken on impulse.'[2]

[1] Report of Dr T Lewis dated1 June 2025 at [105]

[2] Report of Ms Laura Scott dated 6.10.2025 at [5]-[6]

34Dr Lewis stated:  'He has a diagnosis of ADHD and was likely experiencing paranoid personality disorder and persistent depressive disorder at the time of the offending. His difficulties contribute to his impulsivity, executive functioning and problem-solving capacity.'

35She considered that your difficulties did not cause you to offend, but they were a considerable factor towards it.

36Significantly, Dr Lewis noted your problems with insight, stating that you do not yet have a clear understanding of your offence pathway, as she termed it, and so you are unable to plan alternative pathways. On the other hand, you have good insight into your substance abuse and mental health and the need for treatment. You told Dr Lewis that you have strong family support and an intention to remain substance -free. I am told your mother and father have each visited you in custody and you are on good terms with your older sister.

37Overcoming substance abuse may be the main key to your rehabilitation. Ms Scott noted that continued drug use would place you at risk of an acquired brain injury, but if you remain abstinent there might be some modest improvements in cognitive function. It is a hurdle that will not be easy for you to overcome and together with your quite complex psychological needs it means your prospects for rehabilitation are guarded.

38Ms Banihali submitted that Verdins principles 1, 3 and 4 apply to reduce your moral culpability. The opinion of Dr Lewis was that your difficulties did not cause you to offend, as I said a moment ago, but were a considerable factor in your behaviour because your depression makes you more likely to be impulsive and your attachment deficits lead you to seek peer group approval. She stated: 'When coupled with Mr Foehn's early life experiences, his propensity for violence can be understood as both a result of his environment and his difficulty with internal regulation and executive functioning.'[3]

[3] Report of Dr Lewis, at [128]-[130]

39On behalf of the prosecution, Mr Cookson's submission was that there is no realistic connection to bring the Verdins principles into play other than in respect of Limb 5. He submitted that there was no connection between your impulsivity and paranoia and the offending.

40Dr Lewis' reference to your early life experiences is a reference to a difficult childhood, as mentioned earlier, which gives rise to the application of the Bugmy principle, that is, the acknowledgment that the effects of childhood deprivation do not disappear over time.

41Your only criminal conviction as an adult offender is for the contravention of a family violence order for which you were placed on an adjourned undertaking. Your considerable criminal history as a child is not a matter I may take into account in terms of previous offending. However, it is an indication of the deprivation recognised by the Bugmy principle. You were placed on several supervision orders for a variety of serious offending including violence during 2019 when you were 16. There appear to be two breaches of those orders. It also appears that the scene was set for further offending as an adult.

42While Verdins Limbs 1, 3 and 4 in isolation are not enlivened, clearly your diagnoses do have some bearing on your behaviour. Your offending did not occur in isolation from those conditions and the effects of early deprivation. The links are observable but of course are modified by your use of illicit substances at the time, which would have had an adverse effect on your judgment and decision-making.

43In combination, these principles result in your criminal culpability being reduced to a modest extent, and that will be reflected in sensible moderation of your sentence.

44It was submitted on your behalf that Limb 6 of Verdins is enlivened, that is, it is a mitigating factor if there is a serious risk that imprisonment might have a significant adverse effect on the offender's mental health. Mr Cookson conceded that Limb 5 might apply, that is, that mitigation will follow if a sentence will weigh more heavily on the offender than it would on a person of normal health.

45Ms Scott in her report considered that you are at risk of a deterioration of your mental state by being imprisoned, with a history of suicidal and self-harming behaviours. Dr Lewis considered that your depression, paranoia and ADHD will likely make prison more difficult and although your ADHD will not be affected the other disorders may deteriorate.

46I have concluded that both Limbs 5 and 6 are brought into play and will operate to mitigate your sentence.

47Ms Banihali submitted that your mental functioning is impaired, independently of your drug abuse, and that this constitutes a special reason under s10(2)(c)(ii). It provides that a special reason may exist where the offender can show, as I said earlier, on the balance of probabilities that: 'He or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.'

48In her written submissions Ms Banihali identified the impairments to your mental functioning, as referred to by Dr Lewis in her report. She pointed to your diagnoses of persistent depressive disorder, chronic mood disorder and paranoid personality disorder, which is characterised by a pervasive pattern of distrust and suspicion of others. It was Dr Lewis' opinion that these conditions, together with ADHD, are likely to make it difficult for you to cope in custody.  I now add the comment that indeed there is evidence of that having occurred already. You have encountered difficulties arising from rumours that you were in prison for sex offences, and there have been physical altercations and verbal disputes. This led to you being transferred to a protection unit at Ravenhall, which was your fifth move within the prison system.

49Ms Scott raised concerns as to your history of suicide attempts and self-harming behaviours and the increased risks of those behaviours re-emerging in custody.

50Ms Banihali further submitted that s10A(2)(e) also applies by way of substantial and compelling circumstances that are exceptional and rare. Again, she raised the diagnoses to which I have just referred, as well as your relative youth, childhood trauma and the impact of this in custody and in the community, the inadequate support provided by Child Protection services relating to ADHD resulting in lack of treatment since a young age, and finally, the principles in Verdins and Bugmy.

51It was on this basis that she submitted that a combination sentence would be appropriate. The prosecution's submission was that neither provision applies and you should be sentenced to a head sentence with a non-parole period as required by s10AD.

52My conclusion is that your circumstances do amount to substantial and compelling circumstances, but it is sad to say that even in combination they are not exceptional or rare. The provisions of sub-s(e) do not apply, but I am satisfied that the mental impairment test in sub-s(c) does apply.

53That conclusion brings into play the other mitigating circumstances which include your youth and your prospects for rehabilitation. You were a youthful offender at the time, aged 21, and this is your first time in adult custody and it has already proved to be difficult for you.

54You have consistently worked whilst in prison earning $7 an hour in order to provide funds, as you have no savings and your parents cannot provide any funds.

55Your youth is to be taken into account in terms of your rehabilitation, being of significant importance, and its value to the community given the long life ahead of you. The report from the Secure Welfare section of Berry Street dated October 2018 provides details of your very difficult childhood with many aspects of it referring to your distress and vulnerability. The writer noted your desperate need to belong and lack of relationships at that time, but that you had insight into your attachment needs, and the writer regarded you as capable of developing better relationships.

56Your father has written a letter stating that he is prepared to help you when you are released, in practical ways and by supporting your rehabilitation.

57Of course, the fact of your youth must be balanced against the seriousness of the offending and there is no doubt that this was a serious example of a serious offence, as Mr Cookson observed.  There is an important need for general deterrence when an offence with this level of seriousness occurs, and the sentence I impose needs to reflect that need.

58The question of parity must also be addressed. It becomes more relevant once a special reason has been found to exist which avoid the requirements of s10AD of the Sentencing Act, that the court imposes a prison sentence with a non-parole period of not less than three years.

59The accused Ms Voice was sentenced by me to a total effective sentence of imprisonment for three years and three months with a non-parole period of 18 months. The individual sentences were three years for carjacking and nine months for dangerous driving. The maximum sentence for carjacking is 15 years.

60You have pleaded guilty to aggravated carjacking, with a maximum sentence of 25 years, a much higher maximum sentence which constrains the application of the principle of parity.

61In that regard Mr Cookson submitted that you played the greater role in the offence, taking the lead with the baton. I am able to consider some degree of proportionality taking this aspect into account.

62Would you stand please, Mr Foehn.

63I sentence you to the following terms of imprisonment:

·        For Charge 1, aggravated carjacking, three years and six months;

·        For Charge 2, possessing a drug of dependence, one month;

·        For Summary Charge 7, driving while your licence was suspended, one month;

·        For Summary Charge 5, possessing a prohibited weapon, two months.

All sentences are to be served concurrently.

64This results in a total effective sentence of three years and six months.  I order that you serve two years before being eligible for parole.

65In respect of Charge1 your licence to drive is cancelled and you are prohibited from applying for any licence or permit for two years.

66You have been in custody for 338 days by my calculation.  I declare that to be reckoned as already served and shall note it on the court record.

67If you had pleaded not guilty, I would have sentenced you to five years' imprisonment with a non- parole period of four years.

68The prosecution seeks a disposal order and a compensation order in the sum of $1,074.50 payable to the victim.

69Ms Banihali, is there any objection to those orders being made.

70MS BANIHALI:  No.

71HER HONOUR:  Thank you.  I make those orders.  And furthermore, is there any comment about my calculation of pre-sentence days.

72MS BANIHALI:  No, Your Honour, that was agreed to.

73MS SKEPPER:  That was agreed to, Your Honour.

74HER HONOUR:  Thank you very much.  Finally, the last question; I don't think that for Summary Charge 7, driving whilst licence suspended  requires a mandatory licence order so I will leave that as it is. 

75MS BANIHALI:  It doesn't Your Honour.  As Your Honour pleases. 

76HER HONOUR:  Are there any other matters.

77MS BANIHALI:  Nothing further from defence, Your Honour.

78MS SKEPPER:  Nothing further, Your Honour.

79HER HONOUR:  Thank you.  Thank you, officers, you may take Mr Foehn. 

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