Avan v The Queen - [2019] VSCA 257

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Avan v The Queen

Details

AGLC: Savas Avan v The Queen [2019] VSCA 257
Case: [2019] VSCA 257
Decision Date: 8 November 2019

CaseChat Overview and Summary

In the High Court of Australia, the matter of Avan v The Queen was heard and determined. The appellant, Avan, had been convicted of causing a dangerous article to be carried by post, specifically asbestos sent to embassies and consulates. The conviction arose from Avan's belief, influenced by a psychotic episode induced by cannabis use, that sending asbestos was beneficial. Avan had no prior knowledge that his cannabis use could precipitate such a psychosis. The trial judge found the offending to be of a ‘low level’ and sentenced Avan to three years’ imprisonment, with release on a recognizance release order after 12 months. Avan appealed the sentence, arguing it was manifestly excessive.

The legal issues before the court included whether the sentence imposed was manifestly excessive given the low-level nature of the offending, and if so, whether the sentence should be set aside and a new sentence imposed. The court was required to balance the principles of punishment, deterrence, and rehabilitation in determining an appropriate sentence. The appeal hinged on the severity of the sentence relative to the nature and circumstances of the offending.

The court found that the original sentence was indeed manifestly excessive, particularly considering the low-level nature of the offending. The trial judge had not adequately considered the proportionality principle in light of the appellant’s state of mind and the lack of prior knowledge of the effects of cannabis. The court resentenced Avan to 18 months’ imprisonment, with release on a recognizance release order after six months, finding this to be a more proportionate and appropriate sentence. This decision underscored the importance of considering individual circumstances, including mental health, in sentencing.

The final orders of the court were that the appeal be allowed, the original sentence set aside, and a new sentence of 18 months’ imprisonment imposed, with release on a recognizance release order after six months. The decision highlighted the need for courts to carefully consider the totality of circumstances, including mental health factors, when determining an appropriate sentence for an offence.

Orders