Director of Public Prosecutions v Wedding

[2018] VCC 1120

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01773

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY WEDDING

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 July 2018
CASE MAY BE CITED AS:	DPP v Wedding
MEDIUM NEUTRAL CITATION:	[2018] VCC 1120

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Swadesir	Office of Public Prosecutions
For the Accused	Mr J. Barrera	Stary Norton Halphen

HIS HONOUR: 

1As was noted many years ago by Gleeson CJ, when he was then in the New South Wales Court of Criminal Appeal and again when he was the Chief Justice of the High Court, that:

"Persons suffering from mental disorders frequently come into collision with the criminal justice system.  Sentencing such persons commonly confronts judicial officers with the need to make sensitive discretionary decisions.  Sentencing is essentially a discretionary exercise requiring consideration of extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by common law."

2This is a case where a person with a significant mental illness has collided with the criminal justice system for the first time in his life.  I am required, as the courts often are, to make sensitive discretionary decisions about the appropriate punishment.  By "sensitive", I do not mean simply showing compassion to the accused man because of his mental illness, but also I mean by being sensitive to the victims in this case and to acknowledge the fear created by the accused.  I also have to be well aware of the concerns of the public that social welfare agencies and institutions dealing with the public need to be protected from attacks.

3Mr Wedding, you are now 50 years of age.  You were brought up in a large and loving family.  Many aspects of your life as you grew up and as an adult were not as straightforward for you as they were for your siblings.  However, you did live, by and large, as a working man, without causing any concern to anyone for many, many years.  However, what needs to be understood is that things changed significantly for you from 2014.  You began to show signs of mental illness.  A prominent feature of your mental illness was your paranoia. 

4That paranoia quickly expanded to include all those that were trying to help you at Barwon Mental Health.  Thus, while you had some brief improvement based on taking anti-psychotic medication, that was short-lived.  Thus, following a short inpatient stay in the psychiatric wards of the Geelong Hospital in 2014, your condition and importantly your engagement with mental health carers deteriorated. 

5Not surprisingly, you were not able to perform at work and became unemployed.  You had a deep desire to work, so being unemployed caused you real mental anguish.  You were directed to a job agency to assist you.  There were problems relating to schemes like Work for the Dole.  As time went on without you getting work, your relationship with a job agency became a problem.  Throughout this time your mental health continued to deteriorate. 

6So as the community can understand the extent of your mental illness,
I propose to read parts of the two reports provided by the expert psychiatrists engaged by the prosecution and by your lawyers.  I will endeavour to be concise and speak of only some aspects, as I do not wish to simply embarrass you.  There is an important point though about all this, that is, in referring to these reports, but it should be understood that these that I speak of are a small example of many like matters raised by the psychiatrist or contained in the records of Barwon Health. 

7Dr Sonny Atherton, consultant psychiatrist at the Victorian Institute of Forensic Mental Health, wrote in his report of 10 April 2018, that when you were speaking to him about the weeks leading up to your offending, you related to him that you had been hearing "voices" coming through for some time.  You said the voices were like "a protective entity", which you experienced as emanating from inside your head.  You went on that you could mumble or verbalise these voices coming through as if they were part of you, like a spiritual thought talking in tongues.  These voices never actually told you to do anything, nonetheless you would hear the voices if you hurt yourself or dropped something.  You also said that your thoughts were racing and that you had had the bizarre experience of thinking in different languages. 

8As to the day of the offending, you told Dr Atherton that you had had limited sleep, which was a concerning pattern for you in the weeks leading up to the offending.  He wrote that you recalled having, at the time, suicidal thoughts and pondering if it is all worth it.  You then said that, "An Arabic voice started coming through real aggressive."  This is just after you got out of bed.  You realised you had a meeting at the job network later that day and you described anger towards the job network, but you said that this anger was in another language.  You went on in explaining to him that you took a sledgehammer and you have a visual of the sledgehammer, but it was more like a sword.  It became unclear whether this was a prominent factor in leading to the ultimate offence. 

9You had long suffered from a sense that you had voices in your head, often voices speaking in foreign languages, prominently Arabic.  You also believed that you had thoughts in foreign languages.  You told Dr Atherton and here he is speaking generally over the deterioration of your mental health since 2014, that your thoughts were racing, your sleep reduced and that things were coming up in different languages, including Arabic, Finnish, Polish, Africans, to both coming into your head and vocalised by you. 

10You cited to him a number of unusual insights developed, including believing that you had figured out the "most logical way that pyramids could have been built in ancient times", adding, "There were more boat builders than stonemasons", or words to that effect.  You felt that these insights had come to you from external sources.  You continued to hear polylingual voices until around September 2017.  That is after the event itself and after Olanzapine had taken effect, but you have reported in recent times that the drug Olanzapine has been life-changing, it slowed your thoughts down and it has improved the way that you can deal with your circumstances.

11From earlier reports and from documents from Barwon Health, it seems clear that from 2014, you had developed ideas and obsessions that you were a well-known street poet with special talents or insights.  You believed you were being monitored by the Government and spoken about by many people on Facebook.  You said you studied aspects of quantum physics, especially with regard to unassisted propulsion force fields and energy production.  You spoke of having the answer or solutions to many grand problems or conundrums, but you thought that your ideas and thoughts were being stolen, particularly by Governments. 

12Both Dr Atherton and Dr Turnbull, who you were referred to by your own lawyers, indicated - both of them said that, to each of those men, you expressed bizarre conspiracy theories about nefarious sides of freemasons and the scouts.  I will not repeat those matters, but they were intrusive and strongly held beliefs that you had at the time. 

13When Dr Turnbull asked you about your state of mind on the day of your offending, what he wrote was the following, as to your response:  That you told him that your mind had been taken over by an Arabic individual who provided you some instructions to attend the premises and cause some scene.  You said that since you had benefitted, in part, from the Arabic man being able to down the original designs of the pyramids, you thought that there was some blessing in you being able to communicate with your unique linguistic skills. 

14You then said to him that your actions were, that is, your actions in the foyer of the job agency, were a result of many months of being unnecessarily
well-known on the streets for being a philosopher and a poet and that you had to abandon your social media pursuits because you were being surveilled.  You went on that recent and current Governments had adopted many of your economic and planning ideas and you wondered intensely how they came upon your plans, suggesting that they did so through unconventional means.  You wondered whether there were listening devices in your house.  Indeed, your sister recounts that you took the air conditioning unit out of your house because you believed it was the source of surveillance of you.

15But both psychiatrists were of the firm view that you have a serious mental illness and that you were particularly unwell on the day of the offending.  What this means with respect to the sentence I must pass is twofold.  First, your mental illness is part of your personal circumstances.  It is part of who you are.  It plays a role in determining therefore what type of punishment would be fair and just to you.  It means you may not be a suitable person to use as an example for others. 

16Secondly, your mental illness, if it has some causative role in what you did, it may be that your moral culpability ought not be seen as high as it would be with someone without a mental illness who did the things that you did.

17On all the evidence of the psychiatrists and indeed on all the circumstances of your bizarre behaviour on the day, it seems clear and unequivocal that your deteriorating mental health was very much behind you doing what you did.  The prosecution did not argue to the contrary.  There is a causative relationship between your mental ill health and the crime that you committed.

18To understand this point, I need to briefly outline what it was that you did.  As mentioned, you were required to engage with a job agency and by reason of your lengthy period of being unemployed.  The relationship had difficulties.  You, with your deteriorating mental health were hard to engage with and hard to give directions to.  In your paranoia, you believed you were being treated differently and that your complaints were not being dealt with seriously. 

19You had an appointment, or you believed you had an appointment with a job agency on 9 February 2017.  You went to the agency, but bizarrely you took a sledgehammer.  The CCTV footage shows you with the sledgehammer over your shoulder in the reception area.  You were obviously agitated and out of sorts.  Two other people in the waiting area left, obviously worried about what you were doing, or what you were going to do. 

20A worker spoke to you at the reception desk, but quickly you were aggressive, yelling, "I want a fucking job."  You also shouted about your previous complaint.  The worker naturally moved back from the reception desk.  You moved a few steps to where there was a secured door leading from the reception area to the office area.  You raised your sledgehammer and hit the door hard.  It quickly gave way and you went through.  You moved quickly to a desk and hit it, leaving a hole the size of the sledgehammer head in the top of the desk.

21The office workers had all left once you began hitting the door, except one brave man, Mr Munoz.  He spoke to you to try and calm you down and it seems he succeeded.  You spoke to him about not having a job and that you would rather be dead than not have a job.  You also told him you had enormous ideas in your head that needed to be researched.  After what was a short period, you walked out of the building, walking down Ryrie Street in Geelong, still with your sledgehammer over your shoulder.

22The police had been called and once they came upon you, you complied with their requests, including dropping the sledgehammer.  You made admissions to the police that you intended to cause damage in the job agency.  By reason of that, you were charged with aggravated burglary, as you were a trespasser in that part of the building beyond the security door and you had an intent to cause damage.  And further, you had a weapon, being the sledgehammer.  You were also charged with the damage to the door and the desk.

23After a thorough analysis of whether you had a defence of mental impairment and whether you were fit to stand trial, these matters resolved, you pleaded guilty to those charges that I have just outlined.  Both psychiatrists considered very carefully the question of whether you had a defence of mental impairment.  In the end you did not pursue this course, though the evidence made it clear you were very unwell at the time. 

24As noted, there can be no debate that what caused you, a man who has never been in trouble with the law before, to act in the bizarre way you did, was because you were not able to make rational decisions or understand the consequences of what you were doing.  Thus, there can be no doubt that your moral culpability is much lower than it might otherwise have been the case. 

25The practical effect of that is, that I must significantly moderate the weight
I would otherwise have given to denunciation of your crime.  This significantly lessens thereby the appropriate punishment for you. 

26As noted, the other impact of your impaired mental functioning is that, given all your circumstances of your deteriorating mental health and the acute episode on the day, you are not someone who is suitable to use as an example to others, thus the ordinarily weighty consideration of deterrence to others must be, in this case, significantly moderated.  So too must deterrence to you, but in any event, it is not a matter that is of much weight, given your absence of any other criminal behaviour in the past and your good character up to the time of this offending.

27I must also consider that because of your mental illness and because it is enduring, is there a risk that punishment like imprisonment would make things worse?  Given your paranoia and your entrenched beliefs and your reliance on your family, I have no doubt your mental health would get worse if you were imprisoned.  Incarceration would be much harder for you with your mental illness than it would be if you did not have a mental illness. 

28Finally, all the circumstances of your impaired mental function, compel consideration of punishment of a different kind than would ordinarily be the case for crimes of this sort if committed by people without mental illnesses.

29I should say that this particular example of aggravated burglary has some concerning aspects.  All those who necessarily work with the public and with individuals who are in need of help and welfare, should be protected from being exposed to violence.  Their job is hard enough, more so than many in the community would appreciate.  There are those who are trying to help vulnerable individuals who are - those individuals are and necessarily have to be subject to strict rules and requirements in order to qualify for welfare payments and the like.  Those payments themselves being low, adds to the stresses all round. 

30The workers, such as those who were at the job agency, meet flashpoints with those who are individually suffering mental illness and other problems.  Those workers must be protected.  However, your actions, though frightening, were brief and not directed specifically at a worker.  Your intent was to damage the infrastructure or the desks and computers and the like, albeit that you only damaged a desk and a door.  But your intent to cause damage, contrasts to other aggravated burglaries which mostly involve frightening home invasions involving an intent to assault someone inside and they usually do involve some direct violence of the person inside. 

31There are many other examples of more serious aggravated burglaries than this one.  I do not, however, lose sight of the frightening use of the powerful sledgehammer on this day.  Your actions, prompted by your deteriorating mental health, naturally gave rise to concern, or gives rise to concerns as to whether you present as an ongoing danger.  This leads to an analysis of what has happened since your arrest in February 2017.  As a general overview of things, you have markedly improved for the better.

32Your sister perhaps articulates this best.  She wrote a letter after your plea was heard and I must say that I was glad she did.  At your plea, the material indicated what important role she and your other siblings play.  I am grateful arrangements were made after the plea to seek from her what she could say.  Her insights are telling.  She has, herself, relevant professional experience, as well as being your sister. 

33She wrote and I will recite from her letter at some length.  She wrote that she would possibly have the closest relationship with you in the family and she has done her best to support you in the last few years.  She works at Gateways as a support worker for many years, having worked in out-of-home care and supporting people with mental health issues and disabilities.  She writes:

"I have training in counselling mental health and drug and alcohol issues, therefore have a good understanding of my brother's problems and have been involved with my brother over the past last few years and have witnessed what he has gone through."

34She writes to repeat some of the things that I have spoken of.  She writes:

"It first came to my awareness that Anthony was having severe mental health problems in November of 2014, when he approached a GP with his concerns and was admitted to the Swanston Centre for four to five days."

35The Swanston Centre, I interpose, is the psychiatric wards in the Geelong Hospital. 

36She goes on:

"He was diagnosed with paranoia and grandiose fantasies.  On release, there appeared to be a plan in place for him, but there appeared nothing to keep it in place.  My brother developed a paranoid attitude towards Barwon Health as a result of being locked up in the Swanston Centre and would not seek help from them again."

37It appeared that that remained the position for some time.  She went on that over the next few years, it appeared to her that you had cracked.  There was a change in you that was not healthy, as your mental health appeared to have suffered in ways that was very confronting and worrying to the family.  You had become delusional and extremely paranoid, "Totally out of character to the brother I'd always known."

38She said that your mental condition worsened and you alienated yourself from family and friends, became depressed and extremely paranoid.  She notes, and this is a matter that was referred to by all the clinicians.  You started to smoke synthetic marijuana, as you said it helped you sleep and relax, but you were often very vacant when you were visited, you lost weight and became a shell of your former self, so your sister said. 

39She writes that:

"My brother was out of touch with reality.  He was paranoid that people were spying on him and the Government was deliberately making life hard for him and that was why he couldn't find work." 

40She then writes:

"After the offence happened, Anthony had no choice but to follow what he was ordered to do, which was a blessing, as it meant that he was forced to deal with his issue and get the help he needed.  A case worker was organised through Barwon Health.  He went on to medication which stabilised him and he received some support with managing his life through this time." 

41She goes on:

:Currently Anthony appears to be back to his own character.  His mental health appears to have stabilised and he feels - he appears like his old self.  His head appears clear and I have seen no signs of him using marijuana in the last few months."

42She writes:

"My brother owns what he has done, has expressed remorse for his actions.  I think he just wants to get this out of the way and appears accepting of dealing with the consequences and is ready to move ahead with his life."

43The improvement in your mental health since the offending was indicated by both - by the psychiatrists.  The key seems to be you having been prescribed now again the strong anti-psychotic Olanzapine.  You are compliant with taking your medication.  This has seen you gain real insight, especially into your foolishness of using synthetic cannabis.  What is clear to me, is the fog has, to a significant degree, lifted for you.  There remains the need for you to fully engage, or remain fully engaged with your general practitioner and your other mental health practitioners. 

44Your mental health has signs that are clear that you have returned to your lawful insightful past behaviours.  Thus, there is no reason to emphasise protection of the community from you.  This is often a key aspect of those who, with mental illness, commit violent offences, but I can be confident in giving real weight to your rehabilitation, given what progress you have made now that you are medicated and engaging with mental health practitioners.

45Your counsel, in a thorough plea, urged that I not impose a gaol term. 

46The prosecution deterred submissions until there was a report from the Community Corrections officer was done.  I ordered a lengthy pre-sentence assessment by the office of Corrections.  Thus, you were seen by a worker, who again, though having different tasks to the job agency, but nonetheless this worker was undertaking an assessment, surrounded by the sorts of bureaucracy that you had confronted at your job agency.  What needs to be noted, is that you engaged well with the assessment, came across as a pleasant and cooperative man.  You went on with the worker to indicate that you wanted to move forward and you were accepting of your behaviour on the day.

47On receipt of that report and importantly, the letter from your sister that I have read from, together with a letter from another sister and a life-long friend, once the prosecution absorbed this material, the prosecution argued that the proper sentence was one of a community corrections order and no more. 

48It seemed that just taking the seriousness of the crime, a submission from the prosecution was likely to be that gaol was appropriate, however, the circumstances of the offence are one aspect of the sentencing task, a matter well understood by the prosecution in this case. 

49The other side of the equation is, of course, all the personal factors of you, which I have outlined. 

50I hope you understand that your behaviour was serious criminality, which would usually see the offender gaoled for a significant period of time.  However, because of the significant matters relating to your mental health and in particular, your recovery and improvement, I consider a community corrections order is the only appropriate penalty.  All sentencing purposes moderated, as
I have discussed, such as denunciation and deterrence to others, all those purposes are met by a community corrections order.

51The community corrections order that I will impose will be no soft option.  You will have to comply with onerous conditions over some length of time.  It is important that you do cooperate with all the workers that you become involved with who may change from time to time. 

52Doing the best I can, I impose an aggregate sentence.  It is, with conviction, a community corrections order for 20 months.  There will be certain conditions that apply to you.  Those conditions are:

·That you do unpaid work for 150 hours; 

·That you engage in treatment and rehabilitation relating to your drug use and to your mental health and;            

·That you be under the supervision of a Community Corrections officer for the duration of the community corrections order.

53I have also considered in this case, just to be certain relating to your mental health and compliance with medication and cooperation with mental health workers, that you should return back to see me for judicial monitoring.  It may only require one such attendance at that will be at a convenient date in December of this year.

54In completing the 150 hours of unpaid work, I will order that you will be able to include, as part of that 150 hours, any time that you spend engaging in programs.

55Now, I expect that the assessment and treatment for mental health will dovetail with the community mental health people at Barwon Health. 

56Had you pleaded not guilty to these offences, other than not guilty by reason of mental impairment, but if you simply pleaded not guilty and a jury found you guilty, I would have imposed a penalty of 12 months' imprisonment, together with a three year community corrections order.  Thus, it should be understood that albeit that there were complications relating to whether you had a defence and whether you were fit to stand trial, nonetheless, your plea of guilty and your acknowledgement of your responsibility is an important matter that I have factored into the sentence that I have imposed. 

57A document will be produced shortly and I will read it to you.  It will set out all the conditions, including those that are specific to you.  There is an application made by the job agency for compensation for the damage to the door and the like.  I intend to make that compensation order.  I will sign that order.  That becomes effectively a civil debt, or a debt that you have to that agency and it is a matter for you to sort out a payment regime.

58I have not named the agency, out of deference to their privacy, but it is named on the particular document that you signed.  It seems to me that although there is one agency, the principles of protection apply to everyone such as those that were involved on this occasion. 

59Is there any other orders required?

60MS SWADESIR:  Your Honour, the disposal order in relation to the sledgehammer. 

61HIS HONOUR:  There is a disposal order and a 464 order. 

62MS SWADESIR:  Yes.

63HIS HONOUR:  What do we say about the 464?

64MR BARRERA:  Your Honour, 50 years old.  He has lived most of his life out of crime, significant mental health issues.  DNA didn't play a role in the investigation either.

65HIS HONOUR:  Yes. Thank you.  What do you say, Ms Swadesir?

66MS SWADESIR:  I make the usual submissions, Your Honour.

67HIS HONOUR:  Yes.

68MS SWADESIR:  The seriousness of the offence ‑ ‑ ‑

69HIS HONOUR:  Yes.  Sometimes these things backfire.  He is a man without any criminal history.  He would simply be adding to a database which - because the risk that he will commit further offences and need DNA to discover that he has committed further offence is remote to the point of disappearing.  However, there can be, from time to time with those of mental illness, some real sense of paranoia develop which might throw things off the rails.  I decline to order that he provide his DNA.

70MS SWADESIR:  If the court pleases.

71MR BARRERA:  As Your Honour pleases. 

72HIS HONOUR:  Thank you.  Mr Wedding, what is - the community corrections order that I placed you on, it will go for 20 months.  Thus, from 23 July 2018 to 22 March 2020. 

73Now, there are certain conditions that apply to every single community corrections order and of course they apply to the one that I have imposed on you. 

74The first condition is obviously very important and it is that you do not commit any offence for which you could be imprisoned during the time the order is in force.  So just go back to your previous lawful ways, do not commit any crimes.  If you do in that period of time, then you will breach this order and you will come back before me. 

·You must comply with any obligation requirements under sentencing regulations.  I am told that that prominent - the most prominent of those, the most important of those is, they will need to take a photograph of you, so they know who you are.  All right?  Just cooperate with that.  Indeed many of the things I will read to you are just about cooperating;

·So you must report to and receive visits in the office of Corrections;

·You must report to the Community Corrections Centre within two clear working days.  That is down in Little Malop Street in Geelong.  You will see the address; 

·You must let the Community Corrections officer know within two clear working days if you change your address or job; 

·You must not leave Victoria without getting permission to do so; and

·You must obey all lawful instructions and directions.  So cooperate with them and tell them what you are doing. 

75The conditions that apply to you are:

·That you have to perform 150 hours of unpaid community work over the 20 month period.  I order that all hours of treatment and rehabilitation satisfactorily undertaking are to be counted as hours of unpaid community work for the purposes of that condition;

·You must be under the supervision of a Community Corrections officer for 20 months.  As best I can explain it, they will need to keep in touch with you.  You might have to go and meet them and probably will, just to see how things are unfolding.  You have to go.  Cooperate and be straightforward with them;

·Also you must undergo assessment and treatment for drug abuse or dependency.  You were dealing with this synthetic cannabis and it is important that that does not loom again;

·You must undergo mental health assessments and treatments, which may include psychological or psychiatric, as directed by the Regional Manager.  I think that will dovetail then, as I have said, with your treatment regime at the community mental health at Barwon Health run with your case worker;

·You must participate in programs and courses that address factors relating to your offending, as directed by the Regional Manager.  In fact I might not have said that at the outset, but it is necessary that you do that.  All right.

76If you sign this, then that will - and I do that, will bring the matter to the end, so come out of the dock where you are.  Come up to where your lawyer is.  Look at this document, sign it. 

77I also add - sorry, judicial monitoring, is that on the - we might have to do this all again.  And the date for that will be Monday 3 December.

78MR BARRERA:  As Your Honour pleases.

79HIS HONOUR:  We just have to do something again. 

80This is now a condition.  You must attend for review for judicial monitoring on
3 December 2018.  That is going to be at 9.30.  You will have to get here a bit earlier. 

81MR BARRERA:  Yes, Your Honour.

82HIS HONOUR:  And it will be in Melbourne too. 

83MR BARRERA:  Yes, Your Honour.

84HIS HONOUR:  So, just look at all that and sign it. 

85MR BARRERA:  Thank you for that time, Your Honour. 

86HIS HONOUR:  Not at all.  Signed that. 

87Mr Wedding, head off to the Office of Corrections and they will assist you, get you to do some unpaid community work.  You do not know where that might lead, it might lead to other things opening up, in terms of work.  But there will be people there at the unpaid community work.  It is usually done in a group.  Some of them might be more interested in continuing with drug use and bad behaviour and so on.  You have just got to stand firm against it, because that, without losing the perspective that you need to go, or so make other arrangements.  Just deal with it as best you can.  I am sure you can.  All right?

88There is nothing further?

89MR BARRERA:  No, Your Honour. 

90HIS HONOUR:  Thank you, Ms Swadesir. 

91MS SWADESIR:  Thank you, Your Honour. 

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