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Manodh Marks v The Queen

Manodh Marks v The Queen

Case [2019] VSCA 253 8 November 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0192

MANODH MARKS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	Whelan, Emerton and Osborn JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2019
DATE OF JUDGMENT:	8 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 253
JUDGMENT APPEALED FROM:	DPP (Cth) v Marks (Unreported, County Court of Victoria, Judge McInerney, 7 June 2018)

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CRIMINAL LAW – Appeal – Sentence – Attempting to take or exercise control of an aircraft making an international flight by threat of force – Sentence of 12 years’ imprisonment with non-parole period of nine years – Whether sentencing judge erred in finding no real difference between threat of use of force and actual use of force – Relative gravity of offending – Offending less grave because bomb not real or capable of causing harm and actual force not used - Offending motivated by delusional belief rather than financial, political or other like motive – Whether sentence manifestly excessive – Applicant experiencing psychosis triggered by illicit drug use - Possible underlying psychiatric illness – Whether applicant foresaw probable consequences of illicit drug use – Reduced moral culpability - General and specific deterrence – Leave to appeal granted – Applicant resentenced to eight years’ imprisonment with non‑parole period of five years - Crimes (Aviation) Act 1991 (Cth) s 16(3) - Criminal Code Act 1995 (Cth) s 11.1(1) - R v Martin (2007) 20 VR 14, DPP v Arvanitidis (2008) 202 A Crim R 300 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C K Wareham	Valos Black and Associates
For the Respondent	Ms K Breckweg	Director of Public Prosecutions (Cth)

WHELAN JA
EMERTON JA
OSBORN JA:

On 7 June 2018 the applicant, Manodh Marks, was sentenced in the County Court by his Honour Judge McInerney[1] for the offence of attempting to take or exercise control of an aircraft making an international flight by threat of force. His Honour imposed a sentence of 12 years’ imprisonment with a non-parole period of nine years.
[1]DPP (Cth) v Marks [2018] VCC 837 [58] (‘Reasons’).

Section 16 (3) of the Crimes (Aviation) Act 1991 (Cth) provides:

A person who takes or exercises control of a Division 3 aircraft and who does so:
(a)by force or threat of force, or by any trick or false pretence; and
(b)while anyone else, other than an accomplice of the person, is on board the aircraft;
commits an offence punishable on conviction by imprisonment for 20 years.

The offence of attempting to commit a Commonwealth offence is provided for by s 11.1(1) of the Criminal Code Act 1995 (Cth). The sentencing task with which his Honour was confronted was novel in that no prior sentences had been imposed in respect of an attempted offence under s 16(3) of Crimes (Aviation) Act 1991 (Cth) establishing sentencing practice which might guide him.

Further, the case raised issues of some real difficulty relating to two questions. First, whether the fact the applicant used the threat of…

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 Manodh Marks v The Queen

Details

AGLC: Manodh Marks v The Queen [2019] VSCA 253
Case: [2019] VSCA 253
Decision Date: 8 November 2019

CaseChat Overview and Summary

Manodh Marks has appealed against the sentence imposed by the County Court, which found him guilty of attempting to take or exercise control of an aircraft making an international flight by threat of force. Marks' appeal was heard by the Supreme Court of Victoria, where the court granted leave to appeal against both the sentence and conviction. The primary focus of the appeal was the severity of the sentence imposed by the County Court, which was 12 years' imprisonment with a non-parole period of nine years. Marks contended that the County Court erred in its assessment of the relative gravity of the offending, and that the sentence was manifestly excessive.

The legal issues that the Supreme Court needed to address included whether the sentencing judge was correct in finding no real difference between the threat of force and the actual use of force in the context of this offence. Marks argued that the offence was less grave because the bomb he claimed to have was not real or capable of causing harm, and no actual force was used. Furthermore, Marks' offending was motivated by a delusional belief rather than a financial, political, or other similar motive. The court was also required to consider whether the sentence was manifestly excessive, given Marks' experience of psychosis triggered by illicit drug use, which may have indicated an underlying psychiatric illness. The court needed to consider whether Marks foresaw the probable consequences of his illicit drug use, which could have led to a reduced moral culpability.

The Supreme Court found that the County Court had erred in its assessment of the relative gravity of the offending. The court recognised that the threat of force, while serious, was not as grave as the actual use of force. The court also accepted that Marks' offending was motivated by a delusional belief rather than a financial, political, or other similar motive. The Supreme Court found that Marks' experience of psychosis, triggered by illicit drug use, and the possibility of an underlying psychiatric illness, should have been considered in the sentencing process. The court held that Marks did not foresee the probable consequences of his illicit drug use, which resulted in a reduced moral culpability. Considering these factors, the Supreme Court determined that the sentence imposed by the County Court was manifestly excessive.

As a result of the appeal, the Supreme Court resentenced Marks to eight years' imprisonment with a non-parole period of five years. The court considered the general and specific deterrence factors, as well as the principles set out in R v Martin and DPP v Arvanitidis. The Supreme Court acknowledged the seriousness of the offence, but also recognised the mitigating factors present in this case. The final orders of the court included the resentencing of Marks to the aforementioned terms.

Orders