Astbury v The Queen (No 2)

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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. 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.

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…

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Details
Case
[2020] VSCA 158
Decision Date

CaseChat Overview and Summary

The appellant, Astbury, appealed against his conviction and sentence for the murder of Rafet Demirel, which was heard in the High Court of Australia. The appellant, who was substantially larger, stronger and younger than his victim, had a history of schizoaffective disorder and no prior convictions for acts of violence. The appellant demonstrated remorse and made two offers to plead guilty to manslaughter. The appeal centred on the adequacy of the sentence imposed, and whether a more lenient sentence would be appropriate given the circumstances.

The court was required to consider the appellant's moral culpability, prospects of rehabilitation, and the impact of COVID-19 restrictions on the appellant's ability to serve his sentence. The court also had to consider the appellant's age, physical and mental health, and demonstrated remorse. The court noted that the appellant had made two offers to plead guilty to manslaughter, which indicated his acceptance of moral responsibility for the offence.

The court found that the appellant's moral culpability was significantly reduced due to his age, physical and mental health, and demonstrated remorse. The court also found that the prospects of rehabilitation were reasonably open, and that the impact of COVID-19 restrictions on the appellant's ability to serve his sentence should be taken into account. The court allowed the appeal, substituted the conviction for murder with a conviction for manslaughter, and resentenced the appellant to nine years' imprisonment with a non-parole period of six years.

The court fixed the period of time the appellant had already served under the sentence, and ordered that a notation to that effect be made in the records of the Court. The court noted that the appellant had already served 1223 days under the sentence, and that this time should be taken into account when calculating the non-parole period. Overall, the court found that the original sentence was inadequate given the circumstances of the case, and that a more lenient sentence was warranted.

Orders

Orders of the court

(1) The appellant is sentenced, for the manslaughter of Rafet Demirel, to nine years’ imprisonment.

(2) We fix a period of six years before the appellant is eligible to be released on parole.

Pursuant to s 18(4) of the Sentencing Act 1991, we declare that the appellant has served 1223 days (not including today’s date) under the sentence, and we shall cause a notation to that effect to be made in the records of the Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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