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Avan v The Queen [2019] VSCA 257

appeal against sentence — caused 52 articles, namely parcels containing asbestos, to be carried by a postal service and did so in a way that gave rise to a danger of death or serious harm to another person, and was reckless as to that danger offence contrary to s 471.13 of Commonwealth Criminal Code — original sentence imposed 3 years’ imprisonment offender released on recognizance for 2 years in the sum of $5,000 after serving 12 months of sentence — nature and circumstances of offence — s 16A(2)(a) — expert evidence established that so long as asbestos remained in the bags, there would have been no physical risk to health — notwithstanding low risk of any actual physical harm being caused to those opening the parcels, however, it might be expected that some degree of psychological trauma might have been occasioned, particularly given ominous nature of affixed warnings — mental condition — s 16A(2)(m) — offender experiencing episode of psychosis when they sent packages — not contended that offender put on notice by previous cannabis use that their use of that drug could induce in them a psychotic state likely to precipitate criminal offending — offender’s psychotic state at time of offending should be regarded as reducing their moral culpability, despite the fact that their psychosis was precipitated by cannabis use — general deterrence — s 16A(2)(ja) — given psychotic state, offender’s suitability as vehicle for application of principle of general deterrence is somewhat reduced — specific deterrence — s 16A(2)(j) — need for specific deterrence is reduced, albeit offender needs to have the message reinforced that their offending was serious and that they need to avoid further psychotic episodes — manifest excess — in the unique circumstances of this case, sentence imposed is manifestly excessive, being outside range of sentences reasonably open having regard to the circumstances of offence and offender — likely that sentencing judge gave too little weight to offender’s reduced moral culpability and to the ‘low level’ of their offending which was influenced by deranged altruistic and humanitarian motives, and too much weight to general and specific deterrence, and denunciation — re-sentence — offender resentenced to 18 months’ imprisonment — after serving 6 months of sentence, offender to be released by way of recognizance release order in sum of $1,000 to be of good behaviour for 2 years — 6AAA — but for offender’s plea of guilty, sentence of 3 years’ imprisonment would have been imposed with conditional recognizance release order after serving 12 months of that sentence
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