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Marks v The Queen [2019] VSCA 253

appeal against sentence — attempting to take or exercise control of an aircraft making an international flight by threat of force offence contrary to s 16(3) of the Crimes (Aviation) Act 1991 (Cth) — original sentence imposed 12 years’ imprisonment with a 9 year non-parole period — manifest excess nature and circumstances of the offence — s 16A(2)(a) — injury, loss or damage — s 16A(2)(e) — seriousness of offending aggravated by credibility of initial threat, number of passengers and crew to whom threat directed, aircraft in take-off mode and particularly vulnerable to interference with its management and control during this stage of flight, need for physical restrain to be imposed, stress passengers and crew must have felt, threat of force did lead to plane returning to Melbourne as offender intended and consequential financial loss to airline suffered by need to refuel — offending triggered by psychosis in consequence of which offender’s intention was to prevent rather than cause harm and did not involve ulterior motive — when relative gravity of offending is considered within range of conduct contemplated by offence, it is of relevance that offender did not use actual for and purported bomb was not a bomb or other device capable of causing harm to plane or those travelling on it — sentencing judge otherwise treated offending conduct as if there had been a real bomb, do not consider that that is the correct approach — offending not motivated by any financial, political or like motive — offender had delusional belief that they were acting in best interests of those on board the plane, to save them — objective gravity of offender’s conduct fell within mid-level seriousness contemplated by offence — mental condition — s 16A(2)(m) — offender’s mental state reduced moral culpability and suitability as vehicle for general deterrence — at time of offending offender suffering from psychosis triggered by ingestion of an illicit drug, perhaps combined with underlying psychiatric illness — in circumstances of this case offender’s psychotic state should be regarded as reducing moral culpability despite fact that generally speaking offender’s culpability is unlikely to be reduced by state of mind resulting from use of illicit drugs if that person has history of drug use leading to hallucinations and bizarre behaviour — evidence established offender in early very fragile state of partial recovery from earlier psychotic episode at time of discharge, which would have rendered them particularly sensitive to psychosis inducing effect of methamphetamine which they took — offender would not have known or anticipated likely degree of consequences of taking the consumed methamphetamine — general deterrence — s 16A(2)(ja) — offender’s psychotic state means suitability as vehicle for general deterrence is somewhat reduced — general deterrence significant factor for this kind of offence because consequences of actions which may be of limited subjective culpability are potentially disastrous and class of persons for deterrence includes those who may be tempted to ingest illicit drugs before boarding plane flights — need to reflect general deterrence in sentence remains but relevance must be moderated when regard had to applicant’s mental condition — specific deterrence — s 16A(2)(j) — nature of offending coupled with character of prior offending raises issues of protection of community and supports view that sentence imposed must be influenced by need to bring home to offender gravity of offending and need to avoid further delusional behaviour resulting from consumption of illicit drugs — re-sentence — imposed 8 years’ imprisonment with a 5 year non-parole period — but for offender’s guilty plea, would have imposed 12 years’ imprisonment with a 8 year non-parole period  
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