Astbury v The Queen (No 2)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0074

ALEXANDER DAVID ASTBURY	Appellant
v
THE QUEEN [No 2]	Respondent

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JUDGES:	KAYE, NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 June 2020
DATE OF JUDGMENT:	18 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 158
JUDGMENT APPEALED FROM:	[2019] VSC 97 (Incerti J (formerly Zammit J))

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CRIMINAL LAW – Appeal – Conviction – Appeal allowed – Conviction for murder substituted with conviction for manslaughter – Resentence – Serious offending – Appellant substantially larger, stronger and younger than victim – Appellant suffers from schizoaffective disorder – Appellant’s moral culpability significantly reduced – No prior convictions for acts of violence – Demonstrated remorse – Appellant made two offers to plead guilty to manslaughter – Prospects of rehabilitation reasonably open – Impact of COVID-19 restrictions taken into account – Appellant resentenced to 9 years’ imprisonment with non-parole period of 6 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Marsh with Ms E Ramsay	Victoria Legal Aid
For the Respondent	Ms D I Piekusis QC with Ms R Sharp	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
NIALL JA
WEINBERG JA:

1. The appellant was convicted, by the jury empanelled on his trial, of the murder of Rafet Demirel on 11 February 2017. An appeal by him to this Court was upheld on two grounds, the second of which was that the verdict was unreasonable and could not be supported by the evidence. As a consequence, the verdict of murder was quashed and, in lieu, the Court entered a judgment of conviction for manslaughter pursuant to s 277(1)(c) of the Criminal Procedure Act 2009.[1]  Accordingly, it is necessary for the Court to resentence the appellant for that offence. 

   [1]Astbury v The Queen [2020] VSCA 132.

1. For that purpose, the Court had access to the plea, the materials tendered on the plea, and the trial judge’s reasons for sentence.[2]  In addition, the solicitor for the appellant provided an affidavit setting out the disposition of the appellant since sentence, and other relevant matters.  The respondent provided an affidavit setting out the appellant’s placements in custody, and describing the steps that have been taken by the corrections authorities to protect prison inmates from infection with the COVID-19 virus.  The Court also had the advantage of submissions made on behalf of the parties.

   [2]R v Astbury [2019] VSC 97.

The offending

1. For the purpose of resentencing the appellant, it is not necessary to set out, in any detail, the circumstances of the offending.  They are sufficiently described in the trial judge’s sentencing reasons and in this Court’s reasons on the conviction appeal.  A brief summary will suffice. 

1. The appellant and his partner had been tenants of the property owned by Mr Demirel and his wife in Coburg for 11 months before the offence.  The appellant and his partner lived in a bungalow at the rear of the premises, Mr and Mrs Demirel lived in a second…