Director of Public Prosecutions (Cth) v Marks
[2018] VCC 837
•7 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No. CR 17-02489
Indictment No. 17-02489
| THE QUEEN |
| v |
| MANODH MONARAGALA MARKS |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 April 2018 |
| DATE OF SENTENCE: | 7 June 2018 |
| CASE MAY BE CITED AS: | Director of Public Prosecutions (Cth) v Marks |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 837 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – attempting to take or exercise control of an aircraft by threat of force whilst other people are on board that aircraft contrary to s11.1(1) of the Criminal Code (Cth)
Legislation Cited: Sentencing Act 1991; Criminal Code Act 1995 (Cth); Crimes (Aviation) Act 1991 (Cth); Drugs, Poisons and Controlled Substances Act 1981
Cases Cited: R v Verdins & Ors (2007) 16 VR 269; Director of Public Prosecutions v O’Neill [2015] VSCA 325; Director of Public Prosecutions v Arvanitidis [2008] VSCA 189; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; Peterson (unreported) VSCA (28 August 1968); R v Martin (2007) 20 VR 14; Director of Public Prosecutions v Kao [2009] VSCA 273; Ibbs v R (1987) 163 CLR 447
Sentence: Convicted and sentenced to 12 years’ imprisonment with a non-parole period of 9 years. Section 6AAA declaration: conviction and sentence of 16 years’ imprisonment, with a non-parole period of 12 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr M Thompson | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr T R Marsh | Victoria Legal Aid |
HIS HONOUR:
1Mr Manodh Marks, born on 2 May 1992 and aged 25 at the time, is now aged 26, pleaded guilty on 26 April of this year to one charge in Commonwealth Indictment number 17-02489. That charge was that on 31 May of last year, Mr Marks attempted to take or exercise control over an airplane. In this instance, it was a Malaysian Airlines Airbus A333, carrying 222 people, including the cabin crew. The charge is by way of combination, a breach of s11.1(1) of the Criminal Code and of s16(3) of the Crimes (Aviation) Act 1991.
2The regime passed by Parliament has s16(3) as the highest offence, where force is actually used and control is taken of an aircraft, whereby punishment is a 20 years’ maximum imprisonment. Insofar as an attempt is concerned, pursuant to the Commonwealth provisions, the same sentence applies. Insofar as the hierarchy of sentencing, it is of note that the charge of hijacking, which is a charge under s13 of this Act, is not the subject of these proceedings and was not laid, nor was the circumstances of hijack which brings with it a life sentence, under s13 of the Act, applicable in this case.
3I am told by both counsel that there is no precedent in Australia for a sentence, insofar as this crime is concerned. I suppose one can say that is a fortunate thing for this country, perhaps unfortunate that a precedent is now about to be established. Exhibit “A” was the prosecution summary. Mr Marsh advised the Court that the facts set out therein were accepted, and they were the facts upon which I am to sentence you, Mr Marks. Those circumstances are objectively very serious. Your crime was committed upon a commercial airline with 222 people aboard. The attempt that you made, which is your crime, comprises you utilising what appeared to be a bomb, and that bomb being very lifelike.
4Passengers and crew certainly were not only concerned, but convinced, that you indeed were in possession of a bomb. The circumstances when this crime occurred could not have been more critical insofar as the progress of the plane is concerned, because it occurred within the first 4000 feet of take-off, a vital time in any plane’s progress. Despite being reprimanded by the hostesses, you in fact left your seat at the rear of the plane, after having taken two objects out of your bag. You announced to those who could hear you, and no doubt any of the passengers close to you - or all the passengers as you passed them - that you had a bomb.
5You ran to the galley outside the pilot’s door. You there announced that you had a bomb and you wanted to destroy the plane. As I said, the only victim impact statement tendered in regard to all of the passengers is exhibit “B”, and that is only in regard to one passenger. As I have earlier indicated to Counsel, it was necessary for me to look further at the depositions to fully appreciate the circumstances of your criminality.
6The first of those that I looked at was one of the cabin crew. He was in fact the person who conveyed what is known in the industry as the hijack message to the captain, “Romeo, Romeo”. He was the person who observed the objects that you had, and ultimately realised that one of those was a power bank. I think it is appropriate to quote what he says at page 267:
“When I first saw the man with the device I felt scared because it has never happened before in my life. When I heard the word bomb I was just thinking I wanted everyone to be safe. When I saw him run fast to the galley area, my instinct told me that something was going to happen that was not good.”
7Commendably, he then says:
“Even though I was scared, I tried to calm myself down and I don’t show my panic face in front of passenger. I’m not sure if passengers saw that I was scared.”
8Once at the galley with these two devices in hand, both of which apparently had flashing blue lights, a passenger bravely tried to assist - in fact, a number of passengers may have, but in particular, I refer to the passenger whose statement is at page 210 of the depositions. I do not use the name of the passenger for the reasons that I have already discussed. But this passenger, again bravely, approached you, got out of his seat and tried to assist the staff. He however, having observed the objects that you had – the flashing devices and the size of what turned out to be a speaker – took the view, similar to the crew member, that he was dealing with someone who had a real bomb and retreated.
9It is appropriate, I think, to quote what he says at page 211. Referring to you,
Mr Marks:“He said he wanted to blow the fucking plane up. And I said, ‘Are you fucking serious?’ He was hovering his finger over the power button, saying ‘I’m going to blow the fucking plane up’. So I stepped back. At this time I had a very unusual feeling, powerless in many ways and nervous about confronting him. I retreated away from him. Around this time, I became aware that one of the hostesses had unbuckled herself. I said something to her like ‘This guy’s fucking serious, he’s got a bomb.”
10I think it is appropriate to mention his other comments, which relate to when the plane landed:
“Once … the plane landed, and I established that the object was going to remain at the front of the plane. …, moved up the plane away from the object to wherever I could find a seat. I did this because I felt if I put a bulkhead and some distance between me and the object, at least I would have some protection if it exploded. I found a seat near a … family.
I then started agitating to get off the plane. I rang triple 0 and my girlfriend. I almost became a contact person for the police and a spokesman.
“Strange, as the pilot didn’t say anything. We were on the plane for an hour and twenty minutes which was just way too long, which if it was a beatbox, it’s fine, but what if it was something else?”
11I consider that that statement is illustrative of the trauma that the passengers went through, not only as to the immediate threat, when you were holding the objects, but afterwards when you were restrained, the objects were isolated, so to speak.
12And then, subsequently, on the ground, where persons – even though it would appear that the objects had been identified, as this passenger indicated, were still particularly scared of what might occur, placed themselves in particular positions to protect themselves, and were then subject, as he said, to a period of one hour and 20 minutes before they were removed from the plane.
13As I said, the crew member had raised with the captain, through the accepted international code, the fact of a hijack being reported. I just use the word because that is what he uses. I make the point that you are not charged in this case with a hijack. Once that was reported, the captain turned the plane back to Melbourne. Again, I think it is necessary to go to the captain’s statement:
“… At 11.23pm the aircraft took off. … It was a normal take-off with no issues.
At about 4,000 feet I heard someone screaming.”
14And then he talks about the mayday call that I have referred to:
“On hearing this I instructed the First Officer to do a mayday call over the radio to the control tower. This is the highest priority and gives the aircraft first priority in airspace.”
15It was a short time after that when he commenced the return flight, that he was told via the intercom that “the passengers have assisted and the guy has been overpowered and pinned down in the Door 3 area”.
16By way of background to that, it would appear that after you had been at the galley next to the pilots, you were there during the period where the passengers and the crew were talking to you and you were making the threats referred to.
17But for a period, it appears, of some three to five minutes, you then went to the rear, and it was when you were at the rear that you were in fact overpowered by crew and passengers, placed in a position of restraint, ties put around your hand and, as I understand it, passengers essentially surrounding you, if not sitting on you. As I say, the captain announced to his inflight communication that the passengers had assisted and “the guy has been overpowered and pinned down in the Door 3 area”.
18He said this after the plane had landed:
“Security took 40 minutes to reach the aircraft. … passengers were upset and getting out of their seats. The passengers were concerned about the device being on board. I had to make 3 or 4 announcements to the passengers. … .”
19The Captain, at paragraph 20, went on to say this, which is the matter I raised with Mr Marsh earlier, and it is not a matter that had been spoken about in the plea:
“The initial take-off and climbing to 10,000 feet is a high concentration period for me. This is a busy time of the flight for the Captain and First Officer. This time is known as the Sterile Period, the cabin crew cannot disturb the Captain during take-off and landing. The consequences can be dramatic. 70% of aircraft crashes occur during take-off or landing. I am trained for this type of thing, but it is quite different when it actually occurs. My stress levels increased, because I was so concerned with getting the aircraft down. I believe the passengers and crew were placed in danger.”
20As I say, after that 15-minute flight with all those circumstances I have referred to, the plane returned and landed at Melbourne at 11.41pm. The reason for referring to those matters is to demonstrate, somewhat dramatically, what one can imagine, the distress and feelings of all on board during those 15 minutes of flight and during the subsequent period when they were still on the ground. As I say, there is only one victim impact statement tendered by the prosecution in this matter. Insofar as that is concerned, it, I suppose, can be used as a representative example of what people may have felt.
21Again, since there are no names mentioned, I will not mention the name of this particular passenger, who says:
“This vision of confrontation is etched in my memory and flashes before me whenever I step into dark and confined areas. Yes, there was a moment when I feared for my life. The scene of confrontation plays in my mind a lot. Whilst directly after, there was some physical discomfort resulting from the exertion required to subdue the incident, it is the memory that remains, that replays whenever someone else innocently makes a gesture, a sudden movement, runs where no one else is, or just appears to be. At times, these memories leave me unsettled and momentarily fearful.”
22As I say, there really is no need to quote from any more statements than I have. It would be universally understood, I would think, the circumstances that people were going through in this particular time. It seems that it is not appropriate for me to say anything further as to the security and police reactions once the plane got on the ground. The prosecutor has agreed today that the
pre-sentence detention already served by Mr Marks - or both counsel have agreed - is now 371 days.23The prosecutor submitted that certainly more imprisonment needs to be served than has been served to date, and stressed in submission, the overwhelming importance here in sentencing is general deterrence, insofar as it plays a role in community protection and in particular, punishment for the gross criminality in this matter. I accept those propositions totally.
24As to the culpability of Mr Marks in the circumstances of this case, it is of course necessary for this Court to consider only the actual offending in this matter, and to render individualised justice to Mr Marks on the basis of that offending and the matters put to me on his behalf, as has been recently pointed out by the High Court in Dalgliesh (2017) ALJR 91, 1072 [49].
25It is of course, necessary to consider the objective circumstances which I have detailed. Mr Marks made some submissions in regard to those circumstances which I want to deal with. He submitted, which was a fact, that Mr Marks never actually seized control. While that is true, he certainly acted in a manner and of course, he is only charged with an attempt, and that is to be borne in mind. However, immediately as a result of his actions, this plane turned around and headed back to Melbourne.
26According to the statements he subsequently made, one of the reasons he acted in this way, albeit under psychosis, was because he felt there was a risk at the time of the plane crashing, and that is what he wanted to achieve, to have the plane return to Melbourne. Clearly, while not seizing actual control in the sense of getting into the cabin and seizing control, he did effect the return of the plane as he wanted.
27The other matter put by Mr Marsh was the distinction that should be drawn, he submitted, between the threat of force and the actual use of force. It seemed to me, as I said to Mr Marsh at the time, that distinction lacks reality, in the circumstances of this case. The whole purpose of threats of this type, encompasses the threat of force. Obviously, if the force is used and it actually happens to be a bomb, that is the end of the circumstance. But the whole purpose of making such threats is a use of force in itself, in order to obtain control of the plane.
28The third matter he referred to as the circumstances, was that there was no actual weapon. There was, in fact, a speaker and a charger. But again, as I said to Mr Marsh during the plea, it seems to me that is similar to the argument made in regard to persons using a fake gun, when they are doing an armed robbery. The reality is, as is demonstrated from the statements, that the crew and the passengers certainly thought, consistent with the statements of intent made by Mr Marks, that they were dealing with a real bomb, and that that is what was on board.
29It is clear that there was not, and could never have been, as a manner of fact, a risk of explosion, and I accept that, because this was not an actual bomb. However, insofar as the actuality of feelings of the passengers in this matter, clearly, the factor of not being an actual weapon has no role in the terror that they felt. Also, Mr Marsh made the point that the duration was short, and I accept that. The total time of flight was a period apparently of some 15 minutes. The only point that needs to be made in regard to that is one would think that 15 minutes, for the passengers and the crew, must have felt like an eternity, given the circumstances in which they found themselves.
30The next matter put by Mr Marsh was there was no pre-planning. On the materials, in particular, the evidence that I will come to of Dr Carroll, clearly, Mr Marks was in a psychotic state. That psychotic state, on all the evidence, being produced by the taking of amphetamine. In those circumstances, Mr Marsh raised the issue of pre-planning. I must say, I have had some concerns about that submission. Mr Marsh submitted that I should accept that consistent with the psychotic state of Mr Marks, the actions were spontaneous.
31The concern I have about that submission is that he had in his luggage the very USB power charger and the portable speaker that he used. They were dark, and the photographs show both of them, and both had flashing lights on them. I must say, I have some concerns as to whether there was pre-planning or to whether I should accept the submission that it was spontaneous. However, I am, insofar as factors that are aggravating against Mr Marks, required to be satisfied beyond reasonable doubt in my determination. Despite my concerns about this matter, I accept the proposition put that I cannot be satisfied that there was pre-planning in this matter.
32The next matter put was that there was no aim of Mr Marks to achieve anything by way of terrorism or by way of intent to gain money. In the totality of the circumstances, neither was a factor as best as we can understand. An analysis of the statements made by Mr Marks subsequently, and the interpretation of Mr Mark’s actions by the psychologist, clearly show that whatever his motivation, it was not for gain or for the purposes of terrorism, and I accept that. Whether that makes any difference is a moot point. There is no purpose required, insofar as this crime is concerned. I am certain the passengers and the crew were not particularly interested, at that time, as to what was the purpose.
33In this case, I need, of course, to concentrate on the objective seriousness of the offending. Insofar as the fact of it being an attempt, I find that such does not greatly reduce the objective seriousness of the criminality in this case. I consider this actual offending to be very grave indeed. There has been consideration on this issue, when one is sentencing for an attempt, as to how it relates to the offence, had it been completed. It is said that a sentencing judge must take care not to give undue weight to the failure of the accused to complete the intended criminal enterprise. In this case, the failure to take actual control.
34In Peterson, an unreported Court of Criminal Appeal case of 6 August 1968, the following was said:
“It was suggested that there is something illogical in this because the moral blame involved may be the same whether a crime is completed or not; and so it may be, but in relation to sentences the criminal law is not concerned solely with equating punishments to degrees of moral blame. It is concerned with additional matters as the impairment of the community’s sense of security, and how far severe punishment may be necessary for deterrence; with the harm inflicted on the victim, and with the gain made by the criminal. … .”
35The result, of course, therefore is that the weight to be accorded to the failure of an attempt, is not be treated as uniform across all offences. I find that there is not a substantial difference in this case, insofar as culpability is concerned, between the attempt and what may have been the culpability that would have been part of a completed offence. No doubt that is the reason why the Commonwealth Parliament has prescribed an equal sentence for an attempt, as for the completion of this crime.
36True it is, as Mr Marks says, that is different generally to the regime in Victoria. However, there is an exception in Victoria, in the provisions under the Drugs, Poisons and Controlled SubstancesAct, where attempts carry the same maximum penalty as completed offences. So there are circumstances where the same situation applies, as we have in this case. It must of course, however, be accepted, and I have stressed that Mr Marks, at no stage, got actual control, and that we are sentencing for the attempt, and I take that into account, albeit that, as best we can understand it, he did achieve his purpose.
37The plea made formally by Mr Marsh on behalf of Mr Marks was in written form and was tendered as exhibit 1. He took me to the personal background which I will not go over in regard to Mr Marks, except to say that he comes from a relatively well off family. He was born in Colombo in Sri Lanka, to, as I have said, a prosperous family. He has been in the position where his family was able to send him to Australia for education, and I must say that I was impressed with the character references, in particular that of his father, insofar as his son was concerned, and the family friend that were tendered. I note in particular his father’s words. Taking account of the difficulty of this being not his native tongue, but in English, he says:
“Not only my son and my family your hono[u]r, but all good people in the Nation of Sri Lanka will praise and respect the Australian Judiciary and the Australian Government, for granting a penitent soul who is laying open his own wrongs, as a turning point and pleading for your Mercy and pardon.”
38I accept the genuine interest and support of the family for their son in these circumstances.
39One of the major issues insofar as understanding this crime, is the mental state of Mr Marks at the time. Given the Verdins’ principles, as detailed by the Court of Appeal in Director of Public Prosecutions v O’Neill [2015] VSCA 325, and the rigorous nature in which this Court is required to assess such, it seemed to me important, having made his own assessment, that Mr Marsh did not proceed to argue that the first four principles are applicable in this case, on the evidence.
40It is, however, necessary to go to both Professor Carroll’s oral evidence and his report, dated 21 March 2018, exhibit 3, to try to understand how this crime occurred. Insofar as that is concerned, this is the report of Associate Professor Andrew Carroll. The Professor, at paragraph 229, says this: “Diagnostically” – talking of Mr Marks, obviously – “he would have met criteria for a stimulant [methamphetamine] induced psychotic disorder, with onset during intoxication” – that is, intoxication by way of stimulant.
41At paragraphs 230 and 231, he said this (he was on discharge from the psychiatric institution on that day):
“He was hence in an early, very fragile stage of partial recovery from his earlier psychotic episode at time of discharge, which would have rendered him particularly sensitive to the psychosis inducing effect of the methamphetamine that he took en route to the airport.
The acute psychotic symptoms at time of offending proved to be short-lived (hours) but were severe in degree and severe in an adverse effect on his mental state, and hence on his judgment, reasoning and behaviour.”
42At paragraph 235, the Professor says:
“There is clearly a direct relationship between the condition of his psychotic state and the offending, his delusions appear to be a necessary and sufficient explanation for his extraordinary behaviours and I can find no other obvious motivation or explanation for them.”
43Insofar as the circumstances that have emanated since and in particular, his position in gaol, accepting that he has been in a position where he has not been able to get drugs, and of course that in reality is not necessarily always so, but the Professor says this, at paragraphs 242 and 244:
“He has now been in custody for nearly a year and if anything, his mental health has improved over that period as compared to the year prior. I can find no evidence that his condition is likely to deteriorate as a result of being imprisoned.
…
Overall, it appears his condition has responded well to a combination of desistance from illicit drugs and compliance with antipsychotic medications.”
44It is to be noted, and I will not go into the details, but the circumstances as detailed in that report show that Mr Marks has a drug history in regard to heroin, prior to coming to Australia, and has had quite a concerning history in regard to amphetamine since 2016. Insofar as the Professor is concerned, he was also called to give evidence as to his report, and was cross-examined. Insofar as the condition, he said, of course, the history of Mr Marks does not help. That is, his drug history. He could find no prior fascination with the circumstances that occurred on this day; he could find no previous plane premonitions, insofar as his prior psychiatric state.
45The Professor noted what he had been told, that apparently as the result of this psychotic state, Mr Marks heard screaming voices, thought that the plane was about to crash and therefore had to do something. Similar to what he wrote in his report, he said in evidence, “This was a very intense delusion”. He accepted the proposition that there was ostensibly no pre-planning. In cross-examination, he agreed that this was, in response to a question from the prosecutor, “an ice caused event”.
46He was asked how does this occur where persons who have had such a history can still consume ice. He said:
“Well, despite counselling with types of persons and their perhaps limited emotional appreciation, despite the appreciation of risk brought about by their own backgrounds, their emotional appreciation of the consequences may well be impaired.”
47And there was reference of course to his earlier history, where he has been involved in bizarre events resulting in charges of criminal damage at the Children’s Hospital by way of throwing furniture.
48When pressed on this point as to what was Mr Marks’ realisation of the impact that would come about from taking drugs – that is, between discharge from the institution and getting on the plane – the Professor said:
“Well in real life, there is impairment as to the insight and emotional appreciation of persons as to the impact of drugs. And in those circumstances despite a long history and despite admissions for drug-induced psychosis, persons still continue, as has happened with Mr Marks on this date, to consume drugs.”
49He did make the point, of course, consistent with his comments that:
“Since he’s been incarcerated and has been abstaining from drugs, his insight as to such consumption and the impact upon him of such consumption has been enhanced.”
50As part of Mr Marsh’s submission, he took me to the authorities, and no doubt those authorities were the reason why he did not put Verdins’ principles to the Court as a basis of reduced culpability, where the incident has been caused by the induction of amphetamines.
51He took me firstly to Director of Public Prosecutions v Arvanitidis (2008) 202 A Crim R 300, which also involved a drug-induced psychosis and the question as to foreknowledge of probable consequences of drug use. Under such heading, it is noted that, of the respondent’s conduct involved, a siege and the reported psychotic symptoms on the day of the offending were due to amphetamine intoxication.
52That was so found, as has been found in this case. And it was clearly a matter on the plea. The trial judge cited a particular proposition and observed that a person cannot expect leniency from the courts in those circumstances. The trial judge referred to Verdins and concluded, at [27], that:
“The respondent had failed to discharge the onus of demonstrating that his psychiatric state, consequential upon his use of ice, reduced his moral culpability or the seriousness of his offending.”
53Redlich JA says, at [29], in reference to a case of R v Martin (2007) 20 VR 14, that:
“… Martin makes clear that the fact that a psychiatric illness that has been induced by the offender’s own illegal act will not always prevent the mental condition from constituting a mitigating circumstance. In each case, the Court must consider ‘what the probable consequences of the ingestion of the particular drug by the particular offender were and whether the offender foresaw those consequences’.”
54The Court relied, in that case, upon the considerable experience that the offender had with drugs, as also in this particular case. Redlich JA said, at [34]:
“… If the respondent was aware that by taking the drug, his judgment would be so affected that he would behave irrationally or that it would effect (sic) his ability to exercise control, his self-induced state would not constitute a mitigatory circumstance.”
55I was also referred to the case of Director of Public Prosecutions v Kao [2009] VSCA 273 by Mr Marsh. Again, consideration of the Verdins’ principles were relevant in that case. And this was the consumption of ice, which had accounted for the paranoia. Again, the medical evidence was similar to the evidence before me that the paranoia stemmed from the poly-substance abuse. The Court said, at [34] and [35]:
“It is true that there was some basis, in the evidence [in that case] for a finding that, at the time of the incident, the respondent was affected by some form of drug-induced psychosis. … .
… Anyone accustomed, as the respondent was, to using drugs of a kind that can lead to paranoia, auditory hallucinations and sudden and unprovoked acts of violence, can hardly expect to be heard to invoke Verdins as the basis for moderating any punishment inflicted upon him. … .”
56Before the Court, it had been submitted in that case, that the respondent had done what he had done, only because he had been in a drug-induced psychosis. The difficulty, of course, they found in that submission was that it rests on a slender foundation insofar as reduction of culpability was concerned. The Court went on to say, at [42]:
“… there is a real question as to whether, as a matter of policy, a person experienced in the use of drugs, and who therefore must know their effect upon him, should be entitled to call in aid, the moderating effect of Verdins in relation to reduced moral culpability.”
57At [44], and in the circumstances of that case, the Court of Appeal said this: “In our opinion, the sentence imposed below” - sorry, generally in regard to the matter, they increased the sentence because it failed to impose a sentence which protected the community, which was a paramount matter, and the need to achieve both general and specific deterrence in circumstances where Verdins’ principles did not apply. I also find in the circumstances of this case, that the Verdins’ principles do not apply.
58I accept the proposition put that on all the circumstance in this case, as detailed by the expert, this was a drug-induced psychosis by a person who had been well-experienced in the partaking of methamphetamine, at least on his own admission, from early 2016, of the rate of one point a week. And in one statement to the doctor, to the degree of one point a day, sometimes during 2016. He had had a number of admissions, which were drug-induced, to psychiatric institutions, and, in those circumstances, his decision between discharge and getting on the plane to further partake of methamphetamine is such that the principles cannot be enlivened in this case. I consider it was professional of Mr Marsh to accept that.
59Insofar as the other matters to be taken into account, Mr Marsh put, of course, the issue as to the gravity, and I have discussed those matters and the submissions put. He put the fact that his client, Mr Marks, has pleaded guilty and is entitled therefore, to be considered as being remorseful. He has obviously indicated to both the Professor and his own family, how remorseful he feels for all the trauma that he has put people through. He is entitled to a discount because of that plea, not only for the remorse it effects, but for the utilitarian impact it has. It has not always been necessary for this Court to stress that a discount is given for those reasons, but given recent pronouncements across the road, I make it clear that I do give such discount.
60As is quoted in Mr Marsh’s submission, Professor Carroll, in his reported conversations, noted that Mr Marks recognised that the passengers and crew would have been scared by his actions, and that he felt sorry for them. Insofar as his character, it is noted that he does have prior court appearances. However, I accept that, broadly, those matters occurred at about the same time, and came about from him again being drug-induced and having disturbed thinking at the time that those offences took place.
61As to the necessity for deterrence, I accept that he is not a terrorist. On the evidence, I cannot find there was any pre-planning. I accept that he was in a psychotic state at the time. However, that psychotic state was induced by his own actions. It seems to me that there is, clearly, given the serious nature of this crime, a need for general deterrence and also specific deterrence. I accept, however, that the explanation for this crime was the partaking of the methamphetamine on this night.
62Insofar as that, Mr Marsh made the submission to the Court that his insight into the deleterious effects of methamphetamine had not yet formed. Clearly, the insight as reported by Professor Carroll, now, subsequent to his pre-sentence detention and not ingesting any further drugs and taking his medication, is much better than it was. However, the reality is that he must have known, given his own experience since 2016 , as to methamphetamine and its impact, and the fact that he had been admitted to psychiatric institutions as the result thereof, as to the impact upon him. As to motivation, the final matter put by Mr Marsh was that he was responding to powerful delusion, and I accept that. That is, in the sense that he was not motivated by greed, or some terrorist type matter.
63Mr Marsh, in submission to me, put that this offending, in all the circumstances, should be classified at the lower end. It seems to me what he was essentially referring to is what is known as the scale of heinousness, which is referred to by the High Court in Ibbs v R (1987) 163 CLR 447 at 452 when trying to assess the relevant heinousness of a particular crime, upon the scale of heinousness that it relates.
64In the totality of the circumstances, I would reject Mr Marsh’s submission. I find that this crime is, clearly and obviously, at the very serious level, despite all of the matters that I have referred to. It calls, in my view, for a sentence which effects general deterrence. It calls for a sentence which by its nature, effects, hopefully, protection of the community and appropriate punishment. In those circumstances, Mr Marks, I would ask you to stand.
65For this offence of attempting to obtain control of a division three aircraft, pursuant to the sections that I have detailed, you will be sentenced to a period of imprisonment of twelve (12) years. I order that the period that you must serve before being eligible for parole is a period of nine (9) years. I further order that the pre-sentence detention that you have served to date, being 371 days, be taken into account, and I declare that to be part service of this sentence, and that a record of such declaration of you having served part of the sentence by way of pre-sentence detention be recorded in this Court.
66Albeit this being a Commonwealth offence, I think the generally accepted view is that a declaration under the State, of the Sentencing Act, that 6AAA is still appropriate. That declaration requires this Court to indicate to you, Mr Marks, the benefit of pleading guilty. Parliament requires the Court to state, so that a person who has so pleaded, understands what was the actual difference between the sentence imposed and that which would have been imposed had you not pleaded guilty. There are difficulties with that declaration, because it relates to only one factor, and anyone who has been in this Court realises that the sentencing of you today does not relate to one factor only.
67However, doing as best I can to comply with the requirements of Parliament, I indicate to you that had you not pleaded guilty, the sentence that I would have imposed on you would have been 16 years, with a minimum to be served of 12 years. Take a seat, please.
68Perhaps I should explain, Mr Interpreter. Perhaps I should explain and if you could explain this. The sentence handed down to Mr Marks today is one of 12 years, with a minimum of nine years before he is eligible for parole. That sentence is the sentence given to you because you pleaded guilty. Had you not pleaded guilty, the sentence that would have been handed down to you is a sentence of 16 years, and 12 years before you would be eligible for parole.
69The final factor I should mention, of course, that was not really pursued by
Mr Marsh, is the status of Mr Marks. Mr Marks, unfortunately, disappointed his family and the dream of his father that spent money on sending him out here to be educated. And this again can be put down to his drug affliction. He had support from his family and had lived, up until very shortly before this event, with his brother. However, he had abandoned his studies and as a result, his status is such that he will be obviously, given the federal policy on this matter, return to his country upon service of his sentence. In the circumstances as set out by Mr Marsh, he wants to return, as indicated by him in a number of statements, to his family as soon as he can. And I accept that, and it is not necessary for me to say anything further than that. Yes, gentlemen, any matters that I need to attend to?70MR THOMPSON: I may have missed - did Your Honour set today as the commencement date under the overall? Legislation requires a date to be set for commencement.
71HIS HONOUR: I would have thought that is clear.
72MR THOMPSON: I would have thought so too, Your Honour.
73HIS HONOUR: Yes.
74MR THOMPSON: Yes, thank you.
75HIS HONOUR: Yes, Mr Marsh?
76MR MARSH: Your Honour indicated at the outset that you’d be providing a copy of written reasons for this sentence, is that so?
77HIS HONOUR: I will be when they are prepared.
78MR MARSH: I’m very grateful for that, Your Honour. Thank you.
79HIS HONOUR: Yes, not a problem. I will try and attend to that as soon as I can, Mr Marsh. Yes, thank you all. The prisoner can be removed. We will stand down. There is another matter listed, which is a breach of - is it? Where is that? Have you got the - Brockdorff. Is counsel in here for that? I’ll have a break. What is happening in that matter?
80HIS HONOUR: Yes. I thank counsel for their assistance in the matter. Yes, thank you.
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