Avan v The Queen
[2019] VSCA 257
•8 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0194
| SAVAS AVAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 November 2019 |
| DATE OF JUDGMENT: | 8 November 2019 |
| DATE OF REASONS: | 11 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 257 |
| JUDGMENT APPEALED FROM: | DPP v Avan [2019] VCC 1473 (Judge McInerney) |
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CRIMINAL LAW — Appeal — Sentence — Causing a dangerous article to be carried by post — Asbestos sent to embassies and consulates — Psychosis caused by cannabis ingestion — Psychotic belief that sending asbestos of benefit — No prior knowledge that cannabis use precipitated psychosis — Finding that offending was ‘low level’ — Whether sentence of three years’ imprisonment with release on recognizance release order after 12 months manifestly excessive — Appeal allowed — Resentenced to 18 months’ imprisonment with release on recognizance release order after six months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Edney | Stary Norton Halphen |
| For the Respondent | Ms K Breckweg | Commonwealth Director of Public Prosecutions |
PRIEST JA
HARGRAVE JA:
When in the grip of psychosis brought on by the ingestion of cannabinoids, between 2 January and 7 January 2019 the appellant dispatched by post to various embassies and consulates 52 parcels containing asbestos. His deluded belief was that the sending of those packages of asbestos would enhance the firefighting abilities of the various countries represented by the embassies and consulates to which the items were posted.
The appellant was arrested on 9 January 2019, and, on 2 September 2019, pleaded guilty before a judge in the County Court to a single charge laid under s 471.13 of the Criminal Code (Cth),[1] alleging that the appellant at Shepparton between 2 January 2019 and 7 January 2019
caused 52 articles, namely parcels containing asbestos, to be carried by a postal service and did so in a way that gave rise to a danger of death or serious harm to another person, and was reckless as to that danger.
[1]The section, in the following terms, provides for a maximum penalty of 10 years’ imprisonment:
471.13Causing a dangerous article to be carried by a postal or similar service
Offence
(1) A person (the first person) commits an offence if:
(a)the first person causes an article to be carried by a postal or similar service; and
(b)the person does so in a way that gives rise to a danger of death or serious harm to another person; and
(c)the first person is reckless as to the danger of death or serious harm.
Penalty: Imprisonment for 10 years.
Danger of death or serious harm
(2) For the purposes of this section, if a person’s conduct exposes another person to the risk of catching a disease that may give rise to a danger of death or serious harm to the other person, the conduct is taken to give rise to a danger of death or serious harm to the other person.
(3) For the purposes of this section, a person’s conduct gives rise to a danger of death or serious harm if the conduct is ordinarily capable of creating a real, and not merely a theoretical, danger of death or serious harm.
(4) For the purposes of this section, a person’s conduct may give rise to a danger of death or serious harm whatever the statistical or arithmetical calculation of the degree of risk of death or serious harm involved.
(5) In a prosecution for an offence against subsection (1), it is not necessary to prove that a specific person was actually placed in danger of death or serious harm by the conduct concerned.
Definition
(6) To avoid doubt, the definition of carry by post in section 470.1 does not apply to this section.
Following a plea hearing on 2 September 2019, the judge sentenced the appellant on 6 September 2019 to three years’ imprisonment, to be released on a recognizance release order (‘RRO’) for two years in the sum of $5,000 after serving 12 months of the sentence.[2] The terms of the RRO included conditions[3] that:
[2]See Crimes Act 1914 (Cth), s 19AC(1).
[3]See Crimes Act 1914 (Cth), ss 20(1)(a) and (1A).
(a) the [appellant] be of good behaviour of three years;
(b) the order be supervised, managed and directed by the Secretary of the Department of Justice Victoria;
(c) the [appellant] be assisted with drug rehabilitation and treatment as directed by the Secretary;
(d) the [appellant] be assisted in coping with his mental functioning as directed by the Secretary including any appropriate assessment and treatment by a psychologist including treatment in a hospital or residential facility;
(e) the [appellant] be assisted to ensure there is no further offending as directed by the Secretary involving any appropriate programs;
(f) the [appellant], during the term of the order, complies with any written directions of the Secretary;
(g) the [appellant], during the term of the order, not partake in the consumption of any drug of dependence except as directed by a medical practitioner; and direct himself as directed by the Secretary to random urine samples or any other relevant testing in this regard.
The appellant sought leave to appeal against his sentence on a ground complaining that the
sentence imposed is manifestly excessive given the findings by the sentencing judge that the offending was at a ‘low level’ and that the applicant was unaware that his cannabis use would cause the drug induced psychosis that led to the offence.
At the conclusion of oral argument on 8 November 2019, we pronounced the following orders:
1. The application for leave to appeal against sentence is granted.
2. The appeal is treated as instituted and heard instanter, and is allowed.
3. The sentence imposed upon the appellant in the County Court on 6 September 2019 is set aside.
4. In lieu, the appellant is sentenced to 18 months’ imprisonment. After serving 6 months of this sentence, the appellant is to be released by way of a Recognisance Release Order in the sum of $1,000 to be of good behaviour for 2 years thereafter.[4]
5. It is declared that the period of 303 days, not including today, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that declaration was made and its details.
[4]The RRO is in the following terms:
THE COURT ORDERS the release of the appellant under paragraph 20(1)(b) of the Crimes Act 1914 after serving six months of the term of imprisonment upon the appellant giving security by recognisance of $1000 to comply with the following conditions:
(a) that the appellant is to be of good behaviour for 2 years; and
(b) that the order be supervised, managed and directed by the Secretary to the Department of Justice (Vic);
(c) that the appellant be assisted with drug rehabilitation and treatment as directed by the Secretary, including appropriate assessment and medical treatment; and
(d) that the appellant be assisted with coping with his mental functioning, as directed by the Secretary, including any appropriate assessment and treatment by a psychologist including treatment in a hospital or residential facility;
(e) that the appellant be assisted to ensure there is no further re-offending, as directed by Secretary, including any necessary assessment and attending of relevant programs; and
(f) that the appellant, during the term of the order, must comply with any written direction made by the Secretary.
Our reasons for those orders follow.
The charge against the appellant was a ‘rolled up’ charge, embracing the sending of 14 parcels on 2 January 2019, and 38 parcels on 7 January 2019.
It seems that on 2 January 2019 the appellant entered an Australia Post office in Shepparton South carrying a bag containing 16 envelopes, 14 of which were addressed to various embassies in Australia. The appellant asked an Australia Post staff member if he knew the addresses of two other embassies, and was told that he would have to ‘Google’ the addresses. In the result, the appellant did not send the two unaddressed envelopes, but requested that the 14 addressed parcels be sent, paying $116.20 postage for that to be done. Each of the 14 parcels sent contained asbestos.
On 7 January 2019 the appellant went to the Australia Post Shepparton Business Centre carrying a box and bag containing 38 parcels. He spoke to an Australia Post staff member and arranged to send the parcels, one of which was addressed to an international address. The appellant filled in an international declaration form providing his own details, and paid $322.85 postage. Each of the 38 parcels contained asbestos.
Packages sent by the appellant containing asbestos were received by various consular staff, disrupting the operations of their embassies and causing fear and stress. Some staff members were inspected by authorities for exposure to asbestos. State and Federal Police, and emergency services, responded to the suspicious packages received by various embassies. Many embassies were forced to close for between one and five hours.
Ultimately, police recovered 47 of the 52 packages. Each contained fibrous material consistent with asbestos. The consignments also contained various handwritten notes. Forensic examination confirmed the presence of asbestos in a representative sample of the seized packages.
Police executed a warrant on the appellant’s home on 9 January 2019 and found:
· an Australia Post receipt with tracking numbers for 14 parcels, dated 2 January 2019;
· an Australia Post receipt with tracking numbers for 38 parcels, dated 7 January 2019;
· sheets of handwritten notes with the words ‘Asbestos Sheets, Doesn’t Burn, Must Wear Mask + Gloves 4 Dust’ and ‘Asbestos Fibre (must wear mask + gloves)’ and ‘Asbestos Fibre Washed in Washing Machine’;
· sheets of handwritten notes with various consulates and their addresses;
· a bag containing a quantity of burned material and plastic bags containing a substance consistent with asbestos; and
· a telephone which revealed Google searches for various international consulates.
In the course of two records of interview on 9 January and 10 January 2019, the appellant told police that he had ‘discovered’ that the fiberglass at his home ‘didn’t burn’, so that it could be used for firefighters or on any sort of fire. Thus, he needed to let the world know about it. The appellant said that he thought he was ‘doing a good thing, helping people out’. He needed to tell the world about the fire resistant qualities of asbestos: ‘the fabric’s good for firefighters’, and ‘you can make blankets to help people in fires’. The appellant stated that he ‘wanted every country to know about it, because every country has fires’.
The parcels sent by the appellant consisted of white envelopes within which were freezer and zip-lock bags containing solid asbestos sheet. Affixed to the bags were hand-written warnings, including: ‘Asbestos sheets doesn’t burn * Must wear mask + gloves 4 dust pressed in cement’; and ‘Asbestos dust pressed with cemment [sic] must wear mask + gloves’.
Expert evidence established that so long as the asbestos remained in the bags, there would have been no physical risk to health. Harm from asbestos exposure only results from inhaling asbestos fibres, which could not happen if the asbestos remained contained in the bags. Asbestos is not flammable and there is no explosive potential. Although it might have been possible that some asbestos would have been loose in the envelopes and outside the bags, there was no evidence that this was so. Notwithstanding that there was a low risk of any actual physical harm being caused to those opening the parcels, however, it might be expected that some degree of psychological trauma might have been occasioned, particularly given the ominous nature of the affixed warnings.
It was not disputed that the appellant was experiencing an episode of psychosis when he sent the packages. Dr Prashant Pandurangi, a consultant psychiatrist employed by the Victorian Institute of Forensic Mental Health (Forensicare) offered the following opinions in a report dated 4 July 2019:
There is ample evidence to suggest that Mr Avan was suffering from psychosis around the time of the alleged offences. By his own account he was experiencing persecutory and referential beliefs, including concerns about his safety and he began isolating himself. The Federal Police brief indicates that during their interview, he frankly acknowledges to sending packages containing ‘fibres’ to various Consulates and Embassies, in a psychotic belief that he is helping them to develop a fire-resistant blanket, for both domestic and commercial purposes.
…
I am of the opinion that Mr Avan would have been aware of the nature and quality of his conduct, in that he was sending the packages to various Consulates. However, in my opinion, his actions were completely driven by underlying psychotic beliefs, that he was assisting other countries by making them aware of his discovery. His judgement, at the material time, would have been impaired and would have obscured his ability to understand the wrongfulness of his actions.
However, as Mr Avan was suffering from a drug induced psychosis, in my opinion, it would not satisfy the concept of the ‘disease of the mind’ or be considered a mental impairment within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act, 1997. This is because, his condition was a reaction of a healthy mind to an external stimulus …
In a later report, dated 23 August 2019, Dr Pandurangi said:
From our interview and the collateral information available to me Mr Avan developed a paranoid psychotic illness, in the weeks leading to the offence, which was in context of heavy use of cannabis. He was experiencing persecutory delusions regarding his safety, referential ideas and unusual beliefs that he may not be the biological father of his daughter. His mental state improved in the weeks following his incarceration, without any antipsychotic medications, whilst abstaining from using illicit drugs. This brief episode of psychosis, represents a mental and behavioural disorder due to use of cannabinoids, as set out in the International Classification of Diseases (ICD-10), rather than an enduring mental illness such as schizophrenia. There is no evidence to suggest that he suffers from a bipolar mood disorder.
It was not contended in this case that the appellant had been put on notice by previous cannabis use that his use of that drug could induce in him a psychotic state likely to precipitate criminal offending.[5] In those circumstances, we consider that the appellant’s psychotic state at the time of offending should be regarded as reducing his moral culpability, despite the fact that his psychosis was precipitated by cannabis use.[6] Moreover, given his psychotic state, his suitability as a vehicle for the application of the principle of general deterrence is somewhat reduced.[7] We also consider the need for specific deterrence is reduced, albeit the appellant needs to have the messages reinforced that his offending was serious and that he needs to avoid further psychotic episodes brought on by the ingestion of cannabis.[8]
[5]DPP v Arvanitidis (2008) 202 A Crim R 300, 308–10 [24]–[29], 311–12 [38]; DPP v Perry (2016) 50 VR 686, 719–20 [129]; DPP v L’Eveille [2018] VSCA 60, [18], [31].
[6]Marks v The Queen [2019] VSCA 253, [62]–[66].
[7]Ibid [67].
[8]Cf ibid [69].
In this case, the sentencing judge was required by s 16A(1) of the Crimes Act 1914 (Cth) to impose a sentence ‘of a severity appropriate in all the circumstances of the offence’; and, in so doing, to apply the various criteria spelled out in s 16A(2). His Honour’s reasons for sentence reflect that he was satisfied that the appellant, aged 50, was not aware that his drug use could cause psychosis or affect his ability to control his actions. The judge also seemed to accept that: the offending lacked ‘any malicious motive’; the appellant had a lack of relevant prior convictions; he had a history of hard work; the offending was out of character; the appellant was a good father, and had involvement in the community in sporting clubs; and he had good prospects of rehabilitation. But the judge remarked:[9]
All of such factors of course are appropriate for me to take into account and I do. However as put by the learned prosecutor in I think her opening sentence, this case presents a particular balance of not only taking into account those factors, but the very important factors for such a serious crime with such a heightened public risk, the issues of specific deterrence, general deterrence and denunciation are important, albeit moderated given my findings.
Balanced against such principles of course not only is my finding, but is the nature and circumstances of the offending, albeit at a low level as agreed, and the fact that this very section was designed by Parliament to protect the public. One is conscious therefore of the importance of the deterrent effect of this sentence, in particular the principles set out in s 16(2)(ja) [of the Crimes Act 1914 (Cth], and in this regard I note the reference in … the prosecutor's submissions on sentence, to the explanatory memoranda and the second reading speech which accompanied this legislation being promulgated ... As I have said, the learned prosecutor said that taking all of those factors into account this case presents a very unique balancing process in the synthesis that is required as to sentencing.
[9]Emphasis added.
We have concluded that, in the unique circumstances of this case, the sentence imposed by the sentencing judge is manifestly excessive, being outside the range of sentences reasonably open having regard to the circumstances of the offence and of the appellant. Although such a conclusion does not depend on the identification or attribution of specific error, we consider it likely that his Honour gave too little weight to the appellant’s reduced moral culpability and to the ‘low level’ of his offending — which, as we have indicated, was influenced by deranged altruistic and humanitarian motives — and too much weight to general and specific deterrence, and denunciation.
In the special circumstances of this case, we consider that a sentence of 18 months’ imprisonment is appropriate, the appellant to be released on a conditioned RRO after serving six months of that term.
Pursuant to s 6AAA of the Sentencing Act 1991, we declare that, but for the appellant’s plea of guilty, we would have imposed a sentence of three years’ imprisonment, the appellant to be released on a conditioned RRO after having served 12 months of that sentence.
Self-evidently, having regard to the unique circumstances of this case, including the bizarre motivation underlying the appellant’s offending, the sentence that we have seen fit to impose should not be regarded as a paradigm for the kind of sentences that an offence under s 471.13 of the Criminal Code (Cth) might ordinarily attract.
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