Director of Public Prosecutions v Avan
[2019] VCC 1473
•6 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL DIVISION
Case No. CR-19-01413
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAVAS AVAN |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 2 September 2019 | |
DATE OF SENTENCE: | 6 September 2019 | |
CASE MAY BE CITED AS: | DPP v Avan | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1473 | |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Plea of guilty – Causing a dangerous article to be carried by post |
| Legislation Cited: | Criminal Code Act 1995 (Cth); Mental Health Act 2014 (Vic); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic) |
| Cases Cited: | R v Verdins [2007] VSCA 102; DPP v Arvanitidis [2008] 202 A Crim R 300 |
| Sentence: | Convicted and sentenced to three years imprisonment. The Court directs that one year be served immediately, before the offender is to be released by way of a recognisance release order in the sum of $5,000 to be of good behaviour and subject to conditions for two years thereafter. |
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Brown | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr R. Edney (Plea) Ms S. Condon (Sentence) | Stary Norton Halphen Criminal Lawyers |
HIS HONOUR:
1 Savas Avan who is aged 50, born on 6 March 1969 in Turkey came to Australia for a second occasion as a 15 year old in 1985. He pleaded guilty to a crime that he committed when he was aged 49, on the 2nd of this month to one charge in Commonwealth indictment CR-19-01413 which was signed on behalf of the Director by prosecutor Michelle Sewell.
2
The charge is a breach of s.471.13 of the Criminal Code Commonwealth. It involves criminal activity by Mr Avan in the period 2 January 2019 to
7 January 2019. During this time, from Shepparton he caused 52 parcels containing asbestos to be posted in the mail, giving rise thereby to the danger of death and/or serious injury and was reckless to such danger. The seriousness of such behaviour is obviously self-evident, but it is demonstrated by the fact that Parliament has prescribed a maximum penalty of 10 years' gaol for the crime.
3 The 52 parcels were sent to various embassies and consulates. Clearly dealing with any asbestos creates danger, even to the lay understanding, and it was plain that he was fully aware that those parcels contained such material, and the plea indeed was made on such basis.
4 Further on the basis of the expert evidence of Professor Driscoll, being the statement tendered as Exhibit D, the Professor being a Professor of Epidemiology and Occupational Medicine at the Sydney School of Public Health and the University of Sydney, the bags of either asbestos tiles or fibres so sent, carried with them what he describes as a low risk of harm. In actual fact there was no injury caused by such behaviour, as fortuitously none of the packages were opened.
5 However clearly from reading Exhibit E, the statements of the various employees of the embassies and consulates, one realises what those employees suffered upon opening and dealing with this asbestos, with reading the attached warnings that Mr Avan had placed on them, the use of masks by various employees, the washing of their hands, the direction to them from various safety authorities to remove their clothes and give them to the authorities for analysis. Further the reference by authorities to various of these employees to go to see their local general practitioner as a result of their experience, clearly demonstrates the distress and concern which each of those individuals would have suffered being so involved. As I said during the plea to counsel, I accept such as a totally reasonable reaction in the circumstances, and clearly a consequence of this crime.
6
As to Mr Avan's motivation, the prosecutor in opening described the circumstances as bizarre. Such a term was agreed to by Mr Edney, especially as in his submission these actions were not aggravated by any malicious intent, that is by an intent by Mr Avan to actually injure people. Indeed as accepted and detailed in the first record of interview at Question 222, and the second record of interview at Question 182, Mr Avan expressed that his experience had really led him to make what he understood were discoveries about the qualities of the materials that he was sending, he was of a belief that sending those packages to the various countries because of his perceived qualities of those items, would in some way assist the firefighting abilities of such countries. It is to be remarked that each of the packages had accompanying warnings that
Mr Avan had attached and clearly thereby if nothing else, such demonstrates his recklessness as to the dangers of such activity.
7 Overarching of course upon such criminality is the drug induced psychosis which Mr Avan was suffering at the time. Such diagnosis was made by the forensic psychiatrist as set out in Exhibit 2A, in particular at [45]. The forensic psychiatrist being Dr Prashant Pandurangi. Given the bizarre circumstances of this crime, his words and actions during the record of interviews conducted, the progress he made at the Metropolitan Assessment Prison, the certification made on 31 January 2019 that he be subject to the rigors of the Mental Health Act (Vic), and the transfer to the acute psychiatric unit known as AIRE on 5 February, such I find demonstrates that the diagnosis of the forensic psychiatrist is correct. He was finally discharged from that unit on 2 March 2019. For the purposes of this sentence I accept the diagnosis made.
8 Further, the psychiatrist notes at [45] this particular drug induced psychosis was a brief episode, and clearly due to the taking of cannabinoids. There is no, he found, enduring mental issue with Mr Avan, nor does Mr Avan suffer a bipolar mood disorder. Further, as of 4 July of this year when he was so examined by the psychiatrist, Mr Avan had no psychotropic symptoms, nor was he on any medication for same. He was not at that time depressed or anxious despite having a prior history for such.
9
In further support of the finding as to his condition at the time of this criminality, I take into account the sworn evidence given in this Court by his ex-wife
Pembe Avan, and his friend Muzaffer Aykin.
10 During the hearing the learned prosecutor submitted that in all the circumstances I should not accept that the condition so diagnosed was such that it should lead to a moderation of the sentencing factors that apply to an offence of this type. In support of his alternate submissions in that regard, Mr Edney in fact called Mr Avan to give evidence.
11 Upon the totality of that evidence, supported as I say by his wife and friend, and the professional opinion given to this Court, and indeed the totality of all of the evidence before this Court, I am indeed satisfied that on the balance of probabilities at the time of this crime, Mr Avan was suffering a psychiatric reaction to cannabinoids as a result of which he committed the acts that make up this criminality. That he was not aware from his previous experience with such drug, that such could produce in him the said mental state. Hence on the principles which limit the operation of the Verdins' principles, [2007] VSCA 102, [32], and the limiting principles where persons indulge in criminal behaviour who are drug induced and well aware of their impact and the effect it would have upon them. Those limitations are set out in DPP v Arvanitidis [2008] 202 A Crim R 300.
12 I find, having considered those principles, Mr Avan was not aware that such drug could cause the psychosis, and the degree of psychosis, of which he suffered, nor that it could impact upon his rationality or affect, to the degree that it clearly has, his ability to control his actions.
13 Again consistent with such finding, as put by Mr Edney, is Mr Avan's lack of relevant priors, indeed from the age of 18, his limited history prior to that date, the history of hard work in this community as a labourer, his social activities within the community and the matters referred to by his former wife and friend, who have both vouched for his otherwise unblemished behaviour.
14 In his plea, Mr Edney also concentrated on as I have already remarked, the lack of any malicious motive, the plea of guilty at the earliest opportunity in the circumstances of this case as being an indication of remorse, and of course of being of particular utilitarian benefit in this case, and of assistance to justice by the fact that the large number of witnesses which had been identified, had it run as a trial, were relieved from being involved.
15
Further Mr Edney went, in particular [27] – [31], to the good prospects that
Mr Avan given his history presents as to rehabilitation, provided of course that he does not indulge in drugs again. Also the significant service of
pre-sentence detention during the time he has been on remand, this being of course the first time he has been subject to such an experience.
16 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.
17
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 Commonwealth Crimes Act, and in this regard I note the reference in Exhibit C, being the prosecutor's submissions on sentence, to the explanatory memoranda and the second reading speech which accompanied this legislation being promulgated, in particular as set out in the learned prosecutor's submissions from
[8] – [12]. 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.
18 In final submission, Mr Edney put to the Court that given the amount of time served, a period of 240 days, his submission was that Mr Avan should be subject to an order which allowed for his immediate release on a Community Corrections Order.
19 Considering all of the matters that I have talked to, I have decided it is not appropriate to release Mr Avan immediately. It is my view that a further period of imprisonment is appropriate, and indeed I intend to order that the period of immediate imprisonment be one year, minus of course the 240 days he has already served. So, that approximately as I understand it that will be about another four months.
20 I intend also once Mr Avan provides formal consent through his counsel as to this matter, to order that upon service of that year he be released upon a recognizance release order on his own recognizance of $5,000, to be of good behaviour for a period of three years, and for the next two years after his release to subject himself to a number of conditions.
21 Those conditions have previously been forwarded and they are as follows:
22 (a) As I have said to be of good behaviour of three years;
23 (b) That this order be supervised, managed and directed by the Secretary of the Department of Justice Victoria;
24 (c) That the defendant be assisted with drug rehabilitation and treatment as directed by the Secretary;
25 (d) That the defendant 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;
26 (e) That the defendant be assisted to ensure there is no further offending as directed by the Secretary involving any appropriate programs;
27 (f) That he, during the term, complies with any written directions of the Secretary;
28 (g) Also during the term 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.
29 So at this stage Ms Condon, what I do obviously for him to be released and enter into such a recognisance he must consent to same and to those conditions. So have you got a formal - - -
30 MS BROWN: Your Honour's associate has provided me with a copy of the draft recognisance, if I could just show Ms Condon.
31 HIS HONOUR: All right.
32 MS BROWN: Thank you Your Honour, we have had an opportunity to review the draft recognisance. If I could provide this back to Your Honour's associate.
33 HIS HONOUR: I just wonder if Ms Condon wants to seek instructions in regard to it.
34 MS CONDON: Just a very brief moment thank you Your Honour.
35 HIS HONOUR: I'm happy to stand down, I just want to make sure he fully understands.
36 MS CONDON: I don't expect that it will take me more than 30 seconds thank you Your Honour.
37 HIS HONOUR: All right.
38 MS CONDON: Thank you Your Honour.
39 HIS HONOUR: Thank you.
40 MS CONDON: The order is consented to.
41 HIS HONOUR: Yes if you stand up Mr Avan.
42 Can I say firstly that the purpose of these conditions is to ensure that you never get into a condition, and particularly a drug induced condition, where you present these risks to the community. I am confident upon the matters put to me that clearly you have been a hardworking person and have never been involved in criminality of this type. However the crime was of such potential dimension that it is my view that you need to serve a further period in gaol, which will total one year. But in addition that you be subject to restriction over the next period of three years whereby you undertake to be of good behaviour. Now, I am again confident given the matters that have been put to me about your life and the sworn evidence about you that without being so affected, you will live a law abiding life that you have otherwise led.
43 However to ensure that that happens I have placed these conditions upon you to be part of over the next two years and to be supervised by the Secretary of the department. And essentially they are to ensure that you are not involved with drugs, that you are assisted in being able to learn how to resist the partaking of any drugs, that you are assisted in regard to any issues involving your mental health and further you are assisted in being able to avoid any further criminality. In order to do that of course it is necessary for you to be subject and to abide by the written conditions of the Secretary, and in particular insofar as the concern that this court has about your drug taking, to be subject to appropriate analysis and relevant testing to ensure that you are abiding by your obligations. You understand that?
44
Formally the orders of the court will be upon conviction of this offence that
Mr Avan is sentenced to a term of imprisonment of one year.
45 Then pursuant to s.19AC, upon the service of such period of imprisonment he be released upon a recognisance release order on his own recognisance of $5,000 upon condition firstly, to be of good behaviour for a period of three years, and in the two years of that three years, to be subject to the following conditions. Those conditions are the conditions that I have already read out and they are the conditions (a) to (g).
46 What I will ask Ms Condon to do now is to get those acknowledged before I proceed further. That document is signed?
47 MS CONDON: It is Your Honour thank you.
48 HIS HONOUR: Yes Mr Avan if you just remain standing.
49 Having acknowledged that order I will formally therefore make that order.
50 I also declare that the 240 days that you have served be deemed as service of this sentence of imprisonment and a declaration to that effect that such service has already been effected pursuant to s.18 of the Victorian Sentencing Act be recorded in the records of this court.
51 Also as best I understand the law I am obliged to make a declaration under s.6AAA albeit that this is a Commonwealth matter and no doubt one day the High Court will finally decide this issue. But doing as best I can to comply with the Parliament's request that somehow I tell you Mr Avan, what the worth of your plea of guilty is on the basis of one factor only and that is your plea, is almost in my view in a case like this impossible. But doing as best I can to comply with what Parliament said can I just say to you that had you not pleaded guilty you would not have got a sentence and recognisance release order.
52
The final question is the application by the learned prosecutor for an order as to reparation. The totality of the costs of if I use the words 'clean up' by the various departments but in particular this claim by the Metropolitan Fire Brigade for attending the various embassies and consulates was the sum of $97,992. As I understand it that is simply an employment cost of persons utilised. There is a discretionary power under s.21B of the Crimes Act (Cth) for me to make such an order. Given the economic situation of Mr Avan, the practical nature of such order is really of nil value. I do have some concern if I made such an order and it was registered as it is able to be as a civil debt, it may have some impact on Mr Avan returning to a healthy mental state and living a healthy crime free life. It seems to me that as the unusual nature of this case and his limited culpability has been taken into account, or reduced culpability in the sentence, I should not take any step in my discretion that might interfere with his recovery. So in my discretion despite recognising the excellent work that was put in and no doubt the costs involved, I suppose like many issues involving the mentally ill in our community, it seems to me that that cost is something that the whole community has to bear rather than me specifically putting the burden on
Mr Avan in this case. So I will decline to exercise that discretion Madam Prosecutor.
53 MS BROWN: As Your Honour pleases.
54 MS CONDON: As Your Honour pleases.
55 HIS HONOUR: Is there anything else I need to attend to?
56 MS BROWN: No Your Honour.
57 MS CONDON: No.
58 HIS HONOUR: All right, Mr Avan can be removed. Yes good luck Mr Avan.
59 OFFENDER: Thank you Your Honour.
60 HIS HONOUR: Thank you. I will stand down while we get ready for the next matter.
- - -
Transcript of Mention heard on Wednesday 11 September 2019
1. MS JAMES: Good morning, Your Honour, I appear on behalf of the Crown.
2. HIS HONOUR: Yes, good morning. Sorry, I apologise ‑ ‑ ‑
3. MS CONDON: If Your Honour pleases ‑ ‑ ‑
4. HIS HONOUR: Ms Condon, where are you?
5. MS CONDON: I am also in Melbourne, Your Honour.
6. HIS HONOUR: You're also in Melbourne? Good.
7. MS CONDON: Yes.
8. HIS HONOUR: I thank you both for your emails, Ms James and Ms Condon, but the simple fact is this, that albeit inappropriately expressed at the last occasion, what was always the intent of the Court was that a three year recognizance release order apply, and that only 12 months of that be served by way of imprisonment and that he be released on recognisance release for two years. My associate indicated the way it should read, and I wasn't sure, so we contacted Ms Brown, who said I could do it the way I in fact pronounced it. That clearly is wrong, and what has to be pronounced is that he's sentenced to a period of imprisonment of three years, and he, having served one year, is to be released on a recognizance release order with the terms and conditions that I indicated, and that was certainly, as I had conveyed at the time, always my intent, it was just wrongly expressed. All right.
9. MS JAMES: Thank you, Your Honour. So ‑ ‑ ‑
10. HIS HONOUR: Both happy with that?
11. MS JAMES: ‑ ‑ ‑ apologies, can I clarify, so the term of actual imprisonment is three years ‑ ‑ ‑
12. HIS HONOUR: That's right, so that what wasn't clearly expressed was that upon breach of the recognizance release order, he suffers the consequence of the balance of the two years.
13. MS JAMES: Thank you, Your Honour, and the period of recognizance is for two years?
14. HIS HONOUR: Two years. And I had set a good behaviour bond of three years, but I think in the circumstances that probably has to be two.
15. MS JAMES: Yes, Your Honour, so the period of good behaviour is the same length as ‑ ‑ ‑
16. HIS HONOUR: Yes.
17. MS JAMES: ‑ ‑ ‑ the period of conditions ‑ ‑ ‑
18. HIS HONOUR: Yes.
19. MS JAMES: ‑ ‑ ‑ to be complied with. Thank you, Your Honour.
20. HIS HONOUR: So all the other conditions will apply. That is the supervision by the secretary et cetera, et cetera, et cetera.
21. MS JAMES: Thank you, Your Honour. Thank you for the clarification, I appreciate it.
22. HIS HONOUR: Any issues, Ms Condon?
23. MS CONDON: No, Your Honour, if it was just a matter of the way in which Your Honour expressed the sentence, then ‑ ‑ ‑
24. HIS HONOUR: Well, I agree totally, but we had sought advice, and unfortunately that turned out to be incorrect, and my associate's advice was right all the time and I should have taken that, but there were are.
25. MS CONDON: Yes, Your Honour.
26. HIS HONOUR: All right, so we'll amend that accordingly. Now, I do apologise, Mr Avan, for bringing you back to Court, but the order was expressed incorrectly. Totally my fault. However, it's necessary to have you execute the new order in those terms, all right? So I do apologise. Ms Condon, I'll get my associate to do what you would otherwise do, and have your client sign the recognisance release order, all right?
27. MS CONDON: Yes, Your Honour, thank you.
28. HIS HONOUR: Yes, thank you both for your assistance. Mr Avan, I apologise again, but you can - Mr Avan can be removed now. Thank you very much, officers.
29. MS JAMES: Thank you, Your Honour.
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