Marks v The Queen [2019] VSCA 253

1 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.

2 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.

3 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.

4 Further, the case raised issues of some real difficulty relating to two questions. First, whether the fact the applicant used the threat of force coupled with a trick (pretending a Bluetooth speaker and power pack constituted a bomb) bore on the relative gravity of his offending, and secondly, whether the fact that he was floridly psychotic at the time bore on the gravity of the offence, his personal culpability or his suitability for general deterrence.

5 Each of these issues fell to be resolved by reference to the detailed circumstances of the case.

6 The applicant now seeks leave to appeal on two grounds; first that the sentencing judge erred by finding that there was no real difference between the threat of the use of force and the actual use of force, and secondly that the sentence imposed is manifestly excessive.

7 Ultimately, we have come to the conclusion that the relative gravity of the offence was affected by the fact that it was constituted by a threat made by way of a trick and not by the use of an actual weapon. We have also come to the conclusion that the sentence imposed was manifestly excessive. We would set it aside and substitute a term of imprisonment of eight years with a non-parole period of five years.

8 We have reached this latter conclusion recognising that the test of manifest excess is a stringent one and that we must be satisfied that the sentence imposed was outside the range reasonably open to the sentencing judge.

9 In order to explain our conclusion, it is necessary to say something in some detail about the evidence in the case.

10 At the time of offending, the applicant was a 25 year old man who had come to Australia from Sri Lanka in 2016 intending to study hospitality at Holmesglen TAFE. His brother was already resident in Melbourne. On arrival the applicant commenced living with his brother but was unable to maintain employment and in turn unable to pay for his TAFE course. He commenced regular use of methamphetamine and cannabis, and because of his drug use was required to leave his brother's home.

11 On 11 January 2017 the applicant was sentenced without conviction on an adjourned undertaking in the Dandenong Magistrates' Court in respect of a charge of criminal damage by fire and a charge of throwing a missile to endanger a person. These charges arose out of incidents in which the applicant offended whilst in a delusional state and had led to an admission to hospital in November 2016. Both offences involved bizarre behaviour. The first included fire setting and the second throwing furniture from a balcony at a hospital.

12 On 8 March 2017 the applicant was again sentenced to an adjourned undertaking on the single charge of possess methamphetamine following a 'stop and search' of his motor car by police.

13 By May 2017 the applicant had been sleeping in his car for several months. He was not eating much, he was alone and smoking methamphetamine twice a week as well as using cannabis.

14 On 8 May 2017 the applicant was taken to the Dandenong Emergency Hospital after an episode of bizarre behaviour at the house of an acquaintance. The hospital file note recorded that he had taken methamphetamine the night before and that he was threatening and agitated. He was admitted to the Dandenong Psychiatric Unit and on 9 May 2017 saw a consultant psychiatrist. He reported a variety of paranoid delusions.

15 On 12 May 2017 the applicant was made subject to a mental health order under the Mental Health Act 2014 and treatment was commenced with the anti‑psychotic drug Olanzapine following a diagnosis of schizophrenia.

16 The applicant continued to express paranoid delusional beliefs over the following week.

17 On 17 May 2017 the file notes state: 'Schizophrenia - multiple instances of self-referential delusions, delusions of misinterpretation, and polysubstance abuse and antisocial traits'. The dose of his anti-psychotic drug was increased.

18 The file notes of the following two weeks contain recurrent notes of delusional ideation.

19 On 30 May 2017 (the day before the offence) it is noted that an occupational therapist had informed the applicant's brother that the applicant would be discharged on Saturday 3 June 2017. Later that day it was noted that the applicant appeared to be laughing to himself and remained subject to grandiose delusions.

20 On 31 May 2017 the file records further discussion about a plan for discharge and the fact that the applicant denied any paranoia/distressing thoughts. It was noted that he had no perceptual disturbances and that his mood and affect appeared settled. It was concluded that he was 'not in acute psychosis'. This of course does not amount to a finding that he was fully cognate and mentally well. On the contrary, it rather implies that he was still suffering residual symptoms of some psychosis, as he had been the day before.

21 The applicant's brother subsequently telephoned, saying that he had obtained an airline ticket enabling the applicant to return home to Sri Lanka that evening. The applicant was discharged at approximately 5:30 pm on Wednesday 31 May 2017.

22 The applicant's brother drove the applicant to collect some belongings from his car including the objects subsequently used for the purpose of the offence. The applicant also obtained and consumed a small quantity of methamphetamine. He was taken to the airport and boarded a plane without acting unusually.

23 The plane took off at 11:26 pm. There were 222 people on board. Shortly after lift-off the applicant took a bag from the overhead locker and retrieved the Bluetooth wireless speaker and battery power pack contained in the bag.

24 The applicant took both these objects to the front of the plane and told cabin crew that he had a bomb and wanted to see the pilot. The objects he was holding had an appearance consistent with his threat. Members of the crew seated in the galley area heard him say:

I have a bomb with me. I want to talk to the captain. I want to talk to the pilot. Don't come near me. I want to destroy this aircraft, I will destroy this plane.

25 The applicant then moved to the back of the plane. A stewardess confronted him and asked passengers to restrain him. He was quickly restrained but told passengers and crew members that there were other bombs on the plane and someone else was helping him.

26 The pilot had by this stage been informed of the bomb threat and the flight returned to Melbourne. The bomb threat had been made during the ascent stage of the flight when the plane was particularly vulnerable to mishap. The plane was in the air for some 15 minutes but was then held on the tarmac for 1 ½ hours before police boarded and arrested the applicant.

27 The applicant subsequently explained that when the plane took off he heard the noise of a screaming voice which caused him to believe that the plane was going to crash. He tried to force the plane to return to Melbourne in order to prevent it from crashing. Consistently with this, various witnesses on the plane reported him saying things such as:

I am doing this because I want to save all of you.

28 On the plea, psychiatric evidence was called from Prof Andrew Carroll. A written report stated in part:

The witness statements regarding the offence indicate that at the relevant time, Mr Marks was in a state of high arousal and anxiety. The evidence from the police interviews suggests that he was in an over-aroused, disinhibited state on the evening in question and that these symptoms had settled by the following day. This evidence, together with his self-report of hearing screaming in his head that he interpreted in a delusional fashion as indicating that the aeroplane was doomed to crash, is consistent with an acute psychotic state secondary to methamphetamine intoxication.

Diagnostically, he would have met criteria for a stimulant [methamphetamine]-induced psychotic disorder with onset during intoxication [with stimulant use disorder] (DSM-5/ICD-10-CM F15.259) at the time of offending.

Of note, at the time of the offending, Mr Marks had only been released from an acute psychiatric facility some hours previously. There is clear documented evidence of ongoing mild psychotic symptoms, not of a florid nature and not of a kind that were affecting his behaviour in a significant fashion, up to and including the day prior to discharge. 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 their adverse effect on his mental state, and hence on his judgement, reasoning and behaviour.[2]

29 In oral evidence, Prof Carroll stated that the delusional beliefs from which the applicant suffered at the time of offending would have been intense and that they would have terrified the applicant, causing him to act as he did.

30 Further, Prof Carroll expressed the opinion that when the applicant consumed methamphetamine he may have been aware that it was a bad thing to do in a general sense but the applicant would have had impaired understanding of the risks he was taking and would not have anticipated consequences anything like the negative impact which came about.

31 Prof Carroll was unable to come to a concluded view as to whether the applicant has an underlying enduring psychotic illness (schizophrenia) that is independent of his substance use. It is possible that he does suffer from such an illness but it is also possible that he does not. The applicant has been undergoing continuous treatment in prison and it is difficult to say whether he would become unwell again if the treatment were removed.

32 The applicant is coping with the custodial environment and now has insight into the negative effect of methamphetamine use on his mental state.

33 The sentencing judge noted the maximum penalty of 20 years' imprisonment and the fact that the same penalty applied to an attempt as a completed offence. He further noted that in the hierarchy of offences the charge of hijacking under s 13 of the Crimes (Aviation) Act 1991 (Cth) was a more serious offence and carried a life sentence.

34 Turning to the facts, his Honour summarised the evidence in some detail and relevantly found that while the applicant did not actually seize control of the plane and had only been charged with an attempt, it was plain that as a result of the applicant's actions, the aircraft returned immediately to Melbourne Airport - in effect achieving the outcome which the applicant sought.

35 The sentencing judge further rejected a distinction which the applicant's counsel sought to draw between the threat of force and the actual use of force as 'lack[ing] reality', as 'the whole purpose of making such threats is the use of force in itself, in order to obtain control of the plane.'

36 His Honour acknowledged that no actual weapon was used but again regarded this distinction to be illusory, comparing it to the use of a fake gun in an armed robbery. He observed that those present certainly thought they were dealing with a real bomb, notwithstanding that there was never a risk of explosion as a matter of fact. The absence of an actual bomb had 'no role' in the terror felt by those on board.

37 His Honour further observed that it 'must have felt like an eternity' for those on board in the circumstances, despite the flight only lasting 15 minutes.

38 His Honour did not consider the applicant's motivations to be germane, stating about the lack of an ulterior motive, 'whether that makes any difference is a moot point.' He further stated 'I am certain the passengers and the crew were not particularly interested, at that time, as to what was the purpose.'

39 In his Honour's view the fact that the applicant's conduct constituted an attempt did not greatly reduce the objective seriousness of the criminality. There was no substantial difference in so far as culpability was concerned, between an attempt and a completed offence. His Honour emphasised the fear and terror which the passengers and crew felt during the offending.

40 The sentencing judge then analysed the evidence as to the applicant's mental condition. He accepted that the offending involved drug-induced psychosis but found further that the applicant was a person with a history of recurrent regular drug use who had been admitted to psychiatric institutions a number of times. After analysing relevant authorities,[3] he concluded that Verdins[4] principles did not apply:

I 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.[5]

41 His Honour acknowledged the utilitarian value of the applicant's guilty plea and further accepted that the applicant was remorseful. The applicant's prior offending was of limited significance.

42 With respect to issues of deterrence, the sentencing judge acknowledged that the applicant was not a terrorist, had been in a psychotic state at the time and that there was no evidence of pre-planning.

43 However, the sentencing judge found that, given the applicant's psychotic state was self-induced, and, given the seriousness of the crime, there was a need for general and specific deterrence.

44 The sentencing judge did not accept that the applicant's insight into the deleterious effects of methamphetamine had not yet formed at the time of the offending. His Honour found that the applicant must have known, given his experience, that methamphetamine had an adverse impact upon him.

45 The applicant's counsel had submitted that the offending should be classified at the 'lower end'. The sentencing judge rejected this submission, stating that the offending was clearly and obviously at the very serious level.

46 Section 16A of the Crimes Act 1914 (Cth) requires the Court to have regard to the following matters when passing sentence for Federal offences.

(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(a) the nature and circumstances of the offence;

...

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct;

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence - any victim impact statement for the victim;

(f) the degree to which the person has shown contrition for the offence:

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner;

...

(g) if the person has pleaded guilty to the charge in respect of the offence - that fact;

...

(j) the deterrent effect that any sentence or order under consideration may have on the person;

(ja) the deterrent effect that any sentence or order under consideration may have on other persons;

(k) the need to ensure that the person is adequately punished for the offence;

(m) the character, antecedents, age, means and physical or mental condition of the person;

(n) the prospect of rehabilitation of the person; ...[6]

47 In summary, in our view, the following circumstances aggravated the seriousness of the applicant's offending:

• The credibility of the initial threat made by the applicant derived from the appearance of the packages with which he armed himself.
• The number of passengers and crew to whom the threat was directed.
• The fact that the aircraft was in take-off mode and particularly vulnerable to interference with its management and control during this stage of the flight.
• The need for physical restraint to be imposed by way of effective response to the threat.
• The stress that passengers and crew must have felt at the time of the initial confrontation, at the time the applicant was overpowered, during the return flight, and whilst waiting on the tarmac until police boarded the plane and arrested the applicant.
• The fact that the threat of force did in fact lead to the plane returning to Melbourne as the applicant intended.
• The consequential financial loss to the airline suffered by reason of the need to refuel.

48 These considerations are embraced by ss 16A(2)(a), (e) and (ea) of the Crimes Act 1914 (Cth) and give rise to the need for a sentence imposing just punishment and giving proper effect to considerations of specific and general deterrence under ss 16A(2)(k), (j) and (ja).

49 On the other hand, the applicant was entitled to rely on the following matters in mitigation of sentence:

• His plea of guilty which was entered at an early stage of the proceeding and was accepted as having benefit both of a utilitarian nature and as demonstrating remorse.
• The fact that the applicant had demonstrated contrition for his offending and now had insight into that offending.
• The fact that the offending was triggered by a psychosis in consequence of which the applicant's intention was to prevent rather than cause harm and did not involve an ulterior motive.
• The fact the applicant did not utilise actual force and the purported bomb was not capable of causing real harm.
• The fact that (for reasons we shall explain) the applicant's mental state reduced his moral culpability and his suitability as a vehicle for general deterrence.
• The fact that, as the prosecutor conceded, the applicant is now isolated from his family and other social support, rendering imprisonment relatively more burdensome than it is for the ordinary prisoner.
• The applicant's relative youth and the fact that he has some positive prospects of rehabilitation.

50 These considerations raise matters relevant under ss 16A(2)(g), (f), (a), (m), (ja) and (n) of the statute.

51 As we have said, there are two aspects of the circumstances of the offending which give rise to issues of particular difficulty of analysis in this case. The first relates to the evaluation of the gravity of the applicant's actual conduct. The second relates to the applicant's mental condition at the time of the offending. We shall deal with each area of difficulty in turn before returning to the question of the proper overall synthesis of the relevant sentencing considerations.

52 It may be accepted that, as the applicant submits, s 16(3)(a) of the Crimes (Aviation) Act 1991 (Cth) refers to what are in effect cascading modes of criminal behaviour, namely force, threat of force, trick or false pretence. It does not follow, however, that the use of the threat of force necessarily constitutes less grave offending than the actual use of force. The gravity of the offending ultimately falls to be assessed by reference to all the circumstances of a case. Thus, a threat of force which led others to believe the destruction of the plane was imminent might in some circumstances be regarded as more grave than the use of some actual force which was of a minor nature and occasioned no substantial harm.

53 There is no doubt that the judge was entirely correct when he observed that the effect of the applicant's conduct was just as terrifying for the passengers and crew as if he had had a real bomb, and the judge was entirely correct to take that matter into consideration when assessing the gravity of the offending.

54 That said, the means adopted to commit the offence must be a relevant consideration. When the relative gravity of the offending is considered within the range of conduct contemplated by the offence, it is of relevance that the applicant did not use actual force and that the purported bomb was not in fact a bomb or other device capable of causing harm to the plane or those travelling on it. To state the obvious, the applicant's offence would have to have been assessed as more grave had the bomb been real. Counsel for the respondent conceded in argument that this factor bore on the assessment of the place of the offending within the range of conduct which the offence was intended to capture.

55 While the judge properly took into account the effect of the offending conduct on the passengers and crew, a consideration unaffected by the fact that there was a threat and no real bomb, he otherwise treated the offending conduct as if there had been a real bomb. We do not consider that that is the correct approach. Accordingly, the thrust of proposed ground 1 of appeal is made out and this in itself is sufficient to enliven the exercise of the sentencing discretion afresh by this Court.

56 There is a further issue which also bears on the relative gravity of the offending which relates to the applicant's intention. This is that the offending was not motivated by any financial, political or like motive. The applicant had a delusional belief that he was acting in the best interests of those on board the plane. He believed he was acting to save them.

57 Once again this factor bears on the relative gravity of the offending within the range of conduct contemplated by the offence. Again, conduct of this kind directed at achieving a rational or selfish objective would clearly be more serious.

58 When these two aspects of the applicant's conduct are taken together, it seems to us that the objective gravity of the applicant's conduct fell within the mid-level of seriousness contemplated by the offence.

59 The applicant falls to be sentenced on the basis that he is criminally responsible for his actions. At the time he was suffering from psychosis triggered by the ingestion of an illicit drug, perhaps combined with an underlying psychiatric illness.

60 In the circumstances of this case the applicant's psychotic state should be regarded as reducing his moral culpability. We take this view despite the fact that generally speaking an offender's culpability is unlikely to be reduced by a state of mind resulting from the use of illicit drugs if that person has a history of drug use leading to hallucinations and bizarre behaviour.[7]

61 Indeed, in some circumstances, the fact that an offender is mentally incapacitated following the ingestion of illicit drugs will aggravate the culpability of the offender.

62 The critical question in judging whether an offender's own actions prevent a mental condition from constituting a mitigating circumstance involves considering 'what the probable consequences of the ingestion of the particular drug by the particular offender were, and whether the offender foresaw those consequences.'[8] The onus fell on the applicant to establish that his mental condition constituted a mitigating factor.

63 In the present case, Prof Carroll's evidence established that the applicant was in an early very fragile state of partial recovery from his earlier psychotic episode at the time of discharge, which would have rendered him particularly sensitive to the psychosis inducing effect of the methamphetamine which he took.

64 Further, his evidence was that the applicant would not have known or anticipated the likely degree of the consequences of taking the methamphetamine which he consumed.

65 We accept Prof Carroll's opinion. It is supported by the circumstantial evidence as a whole.

66 It follows that in the special circumstances of this case, the applicant's moral culpability should be regarded as reduced despite the fact that his psychosis was triggered by the consumption of an illicit drug.

67 There are two further issues arising out of the evidence as to the applicant's mental state. The first relates to his underlying condition. Prof Carroll's evidence was that it cannot be determined whether the applicant suffers from underlying schizophrenia or whether his difficulties have been substantially caused by the consumption of illicit drugs. Whatever be the true position, it seems to us that the applicant's psychotic state means that his suitability as a vehicle for general deterrence is somewhat reduced. There remains a serious possibility that the underlying reason for his mental condition was one of illness. Further, as we have noted, he was in a very fragile state of partial recovery from an extended psychotic episode when he consumed the methamphetamine which triggered his mental state at the time of offending.

68 General deterrence is of course a significant factor in sentencing for offences of this kind because the consequences of actions which may be of limited subjective culpability are potentially disastrous. Further, the class of persons to whom general deterrence is directed in the present case includes those who may be tempted to ingest illicit drugs before boarding plane flights. It follows that the need to reflect considerations of general deterrence in the sentence remains but its relevance must be moderated when regard is had to the applicant's mental condition.

69 The applicant's mental state also bears on questions of specific deterrence. The nature of the applicant's offending in this case, coupled with the character of his prior offending, raises issues of protection of the community and supports the view that the sentence imposed must be influenced by the need to bring home to the applicant the gravity of his offending and the need to avoid further delusional behaviour resulting from the consumption of illicit drugs. The evidence of Prof Carroll is that, after treatment and abstinence from illicit drugs in prison, the applicant has insight into his offending. It nevertheless remains necessary for the sentence to give effect to specific deterrence.

70 As we have said, the task facing the sentencing judge was a difficult one because this was the first occasion on which an offender fell to be sentenced for the offence charged. His Honour thus had to proceed from first principles.

71 We also note that the case concerning the Verdins considerations was not put to his Honour in the same way that it was put to us.

72 On the appeal, counsel for the respondent conceded that the sentence imposed was high and that the ground of manifest excess was reasonably arguable.

73 Upon analysis we have reached the conclusion that the sentence imposed was manifestly excessive having regard, in particular, to:

• the applicant's plea of guilty;
• the applicant's mental state at the time of offending;
• the fact that the threat was made by way of a trick and not by way of a real explosive device;
• the fact that the threat was made without an ulterior motive deserving of condemnation;
• the applicant's contrition;
• the applicant's relative youth;
• the applicant's prospects of rehabilitation; and
• the applicant's isolation whilst in custody.

74 We would grant leave to appeal on both grounds, allow the appeal, and set aside the sentence imposed at first instance. We would substitute a sentence of eight years' imprisonment with a non-parole period of five years. It will be declared that the applicant has served 890 days by way of pre‑sentence detention excluding this day and directed that this declaration be entered into the records of the Court.

75 But for the applicant's plea of guilty, we would have imposed a sentence of 12 years' imprisonment with a non-parole period of eight years.

[1] DPP (Cth) v Marks [2018] VCC 837 [58] ('Reasons').

[2] Report of Associate Professor Andrew Carroll dated 21 March 2018, 23 {228]-[231] (emphasis in original).

[3] DPP v Arvanitidis [2008] VSCA 189; (2008) 202 A Crim R 300; DPP v Kao [2009] VSCA 273 ('Kao').

[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] ('Verdins').

[6] Crimes Act 1914 (Cth) s 16A.

[7] Kao [2009] VSCA 273 [35].

[8] R v Martin [2007] VSCA 291; (2007) 20 VR 14, 22 [30]; DPP v Arvanitidis [2008] VSCA 189; (2008) 202 A Crim R 300, 310 [29].