R v Agostini (No 2)

[2025] NSWDC 369

District Court

New South Wales

Medium Neutral Citation:

R v Agostini (No 2) [2025] NSWDC 369

Hearing dates:

8 August 2025

Date of orders:

8 August 2025

Decision date:

08 August 2025

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentence of imprisonment of 4 years 3 months with a non-parole period of 2 years 2 months

Catchwords:

CRIME — Violent offences — Detain for advantage while in company with intent to commit the serious indictable offence

SENTENCING — Mitigating factors — Late plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — Specific deterrence — Form 1 offences — Moral culpability — Objective seriousness

SENTENCING — Subjective considerations on sentence — Age of offender — Immaturity — Victim of domestic violence— Drug addiction — Mental disorders — Trauma in childhood — ICO not appropriate

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act1986 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Nasrallah v R [2021] NSWCCA 207

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Agostini [2024] NSWDC 363

R v JDX; JDX v R [2017] NSWCCA 9

R v Kelly [2025] NSWDC 281

R v Newell [2004] NSWCCA 183

R v Speechley [2012] NSWCCA 130

Category:

Sentence

Parties:

Jasmine Rose Agostini (the offender)
Director of Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
D Phillips (for the offender)

Solicitors:
Black Heart Lawyers (for the offender)
N Verghese solicitor for Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2022/263404

Publication restriction:

Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the victim

JUDGMENT – ex tempre revised

Introduction

1. I start by going to the events that bring Jasmine Agostini before the Court. They occurred on 2 and 3 September 2022 in southern Wollongong at an apartment complex. Agostini knew, that being in an intermittent de facto relationship with, the victim of the offence. She also knew a man called Kelly. They all knew other people who lived in the local area. Agostini had been given temporary accommodation in the unit in the complex. Earlier that day the victim in this matter met another woman who lived in the complex. The victim is a tattoo artist. He agreed to tattoo her and went to her unit.

2. Agostini saw the victim in the unit complex, and they agreed to meet later that evening.

3. Later that evening, in response to an invitation from Agostini, the victim walked from where he had been administering the tattoo to another unit block. He knocked on the door of the unit Agostini was staying in. He heard her say, "Who is it?" He identified himself. Agostini opened the front door and allowed him to step inside. As he did so, he was hit in the back of the head with a black kettlebell that weighed four kilograms. It was swung by Kelly. He was knocked to the ground.

4. There was a third man there who hit the victim with a frying pan. After he fell, Kelly and the unidentified man began punching and kicking him. He was unable to get up off the floor. He was forcefully pinned to the ground. Kelly knelt down and told him, "I told you I'm not someone to fuck over".

5. Agostini was also speaking, but the victim was unable to understand what she was saying. The victim asked Kelly to stop. Kelly and the unidentified man then; removed the victim's shoes, tied him up with an extension cord and used a knife to remove the clothing he was wearing. He was stripped completely naked.

6. The third man inflicted an indignity on him with the frying pan's handle, while on the ground. The prosecution accept that this act was not within the scope of the joint criminal enterprise that Agostini was part of, and she is not in any way liable for that act.

7. After the act, Kelly put his knee on the victim’s back and said things to him. He cut the victim’s ear with the knife that he had used to remove his clothes. At that point, Agostini said to the victim, “I may have saved your life last week, but this might be different”. She and the unidentified man left the unit and walked across to the unit where the victim had been administering the tattoo. At those premises, Agostini demanded the victim's “stuff”, meaning his personal property, which she eventually left with. She also approached the woman who had been tattooed, grabbed her mobile phone out of her hand, directed her to type in the passcode. Out of fear, that woman complied with her demands. As Agostini left the unit, she took the phone with her. She removed the passcode requirement and said, “Thanks that's mine now”. She returned to the unit.

8. When she was back at the unit, Kelly made demands of the victim for the payment of money. He made further threats, and he then said to Agostini and the third man, "You guys go. I can sort this myself". Agostini said, "No I'm not going anywhere. I'm in this with you”.

9. Eventually, the extension cord that had been used to tie the victim up was removed. Kelly then poured a bottle of disinfectant over him and urinated over his body. Afterwards, something such as methylated spirits was poured over him, and a further threat was made by the third male.

10. At about midnight, the owner or the tenant of the unit, where Agostini had been staying, returned, but the door was closed against her. It was not for 10 to 15 minutes that the door opened. Agostini and the two men left immediately. As she left, the woman who had allowed her to stay in the house asked, "Can I have my fucking keys?" Agostini replied, "Fuck off!"

11. When the woman entered, she found the victim lying on the lounge room floor, shaking, covered in blood. She helped him with a blanket, a shower, and found him some clothes. Triple-0 was called, and police and ambulance soon arrived.

12. The victim, on medical examination, had; injuries to his head and face, including abrasions to his face, lacerations to his scalp, significant bruising to his upper lips. Multiple abrasions were also noted across his body, particularly around his lower back and hips.

13. Kelly was arrested on 3 September 2022. Agostini was arrested on 4 September 2022. The police search of the premises occupied by her at the time recovered the iPhone that had been taken. The third man was never identified.

Matters for sentence

14. On arrest, Agostini was charged an offence of detaining a person while in company, with intent to commit the serious indictable offence of occasioning actual bodily harm to him. That offence is charged pursuant to s 83(3) Crimes Act 1900 (NSW) and carries a maximum penalty of 25 years imprisonment. That maximum is one important guide to the exercise of my sentencing discretion. She is to be sentenced today, having entered a late guilty plea.

15. On her arrest, she was found with a reasonably small quantity of methylamphetamine. She was charged with a drug possession offence. She was also charged with taking the other woman's mobile phone. Those matters were placed on the Criminal Procedure Act1986 (NSW) Form 1, and I am asked to take them into account today. I will do so. However, I note that the possessed drug matter would not have led to a custodial sentence, almost inevitably have been dealt with by a Community Release Order. It will have no impact on this sentence. But it does help inform me as to what she was doing, confirming other evidence relevant to her history; that the fact she was heavily using, chronically using, methylamphetamine at the time.

16. So far as the taking of the property of the other lady, I will, take it into account, applying the principles set out in the guideline judgement: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146. I do not sentence for that matter, but it does increase the need for personal deterrence and retribution in the matter for sentence. But I note; only modestly so.

Objective seriousness

17. That actual bodily harm was occasioned, and being in company, are elements of the offence. They are not further aggravating features. Additional care needs to be taken because an element of the crime is intimidation, it is the serious indictable offence charged. It is coextensive with the purpose of the detention as I have been asked to discern it, being the senseless punishment and humiliation of the victim, which are implicit of this offence and many offences such as this. It should not be double counted.

18. In formulating my assessment of objective seriousness, I have regard to principles set out by the Court of Criminal Appeal in R v Speechley [2012] NSWCCA 130 at [50] and R v Newell [2004] NSWCCA 183 at [32]. Here I take into account;

1. The period of detention, about 45 minutes;

2. The nature of the advantage sought, intimidation, that is to humiliate and frighten the victim;

3. The absence of any real motivation, which appears to be petty in the extreme;

4. The nature of the threats made, and the high level of violence inflicted. The victim was restrained, he was kept naked, weapons were used against him. He would have suffered severe anguish and discomfort; matters I take into account. He had the injuries noted above. And there were the additional humiliations involving urination and items being poured over him; and

5. There were three offenders present, and the force of those numbers was applied against him.

19. A defence submission was made that the different role of Kelly, as opposed to Agostini, required that I come to a conclusion that her role was significantly less than Kelly's. There are reasons to distinguish Agostini’s personal case from Kelly’s, to which I will later refer.

20. Sometimes the role of an offender as party to a joint criminal enterprise can lead to differences in the penalties imposed or different assessments of the objective seriousness of their particular role. I have to be careful because Kelly of course committed another serious offence against the victim.

21. Agostini did not directly participate in any of the physical violence and physical humiliation of the victim. But it was she who lured him to the flat. When she opened the door, she must have been aware that Kelly was armed with a kettlebell and the other man with a frying pan, and that they intended to use those weapons. She was present during the incident. She only left to get the victim's property. After she returned, the further humiliations were occasioned to the victim. As she said, and the Agreed Facts reflect, they were “in it together”.

22. There is only room for modest distinction between her and Kelly so far as the actual acts occasioned to the victim because Kelly, obviously, was more involved with the victim. But by any measure, the crime that she chose to join in, and her role in it, were serious, so serious that a significant penalty involving full time imprisonment could be the only response.

23. I do not have the advantage of a Victim Impact Statement. But its absence does not give rise to any inference the crime had little or no impact upon the victim. I am sure it could not but have such an impact.

Parity

24. When I come to determine the sentence, I have to have regard to my sentencing of Kelly whose remarks are before the Court, and their respective degrees of culpability: R v Kelly [2025] NSWDC 281. They did different things, and she was not as involved as Kelly, but only modestly so. Her role however was, as the Crown submit today, “pivotal “to this crime.

25. Like should be compared with like: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. But she is not the same person as Kelly. She did not do the same things as Kelly. Her criminal antecedents are quite different, and she was not on conditional liberty at the time. Every offender is individual. Those differences and personal histories justify a difference in the time each will serve in prison.

Case for the offender

26. Agostini was born in 2001. She is young and still very immature. This was obvious from my interactions with her during the course of these proceedings. She has a criminal record; but it is of no consequence. She, obviously, is not a first offender, but they are minor matters that were dealt with by fines or s 10 bonds.

27. She has been in custody since 27 August 2024. And prior to that she spent 72 days, on my calculation, in custody. She will have the full benefit of that time in custody. Her sentence, I calculate, should start on 16 June 2024.

28. She did not give evidence before me. She has no obligation of doing so. But to her psychologist, Dr Rodriguez, and to the author of the Sentence Assessment Report, she put forward a version of events where she sought to distance herself from the activities in the flat and the direct assaults upon the victim of this matter.

29. Through her counsel, it was explained that she accepted responsibility for this offence on the basis of the Agreed Facts. And I will sentence on that basis. It is on that basis I made my findings, not on what was repeated second hand by others. Where another person simply and uncritically parrots such claims, they have little, if any, probative value: R v JDX; JDX v R [2017] NSWCCA 9. Here, however, the subjective material set out in the report and the Sentence Assessment Report is relatively uncontroversial, and I can act on it.

30. A submission was made that she has shown remorse. I cannot accept that submission. That does not mean that I do not take into account her acceptance of responsibility and her acceptance of legal responsibility. To the author of the Sentence Assessment Report, she showed some insight and empathy towards the victim. But by seeking to distance herself from what occurred, that acceptance of responsibility was moderated. Because she sought to distance herself from the very thing she had pleaded guilty to, it shows her immaturity, and it shows that her claims of insight are limited.

31. Agostini must have however, the benefit of assisting the course of justice by her guilty plea. The utilitarian value of the plea must be recognised by a reduction of 5% in the otherwise appropriate sentence. The date for calculating the plea has to be the date of her first trial.

32. She initially said she was not guilty when in the Local Court. The matter went to trial. She chose to absent herself from the trial after two days. I dealt with that in an earlier judgement: R v Agostini [2024] NSWDC 363. She was then arrested on a bench warrant, spent time in custody, and the matter was again listed for trial. But she pleaded guilty before that second trial to the matter which I am sentencing her today. And that plea, while late, did enable the court to fix other matters to fill the vacancy. All matters I will take into account but provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D, preclude any further utilitarian discount than the 5%.

33. There is material before the Court from both the Sentencing Assessment Report and Mr Rodriguez's report as to the offender's background and personal history. I will not go through it in any detail.

34. She was raised locally. She thought at the time that her childhood was relatively normal, but she had no real basis for comparison. All the material before me, which is I said is uncontroversial, indicates she came from a disadvantaged home. She did not take well to schooling. She was teased and bullied and left school early. She has only worked briefly in the community.

35. She took up with a young man when she was very very young herself. That relationship was characterised by mutual immaturity and violence. As was her second relationship with a person she thought was “perfect” but who was in fact an intravenous drug user.

36. She has been subject to domestic violence in her relationships. She has been subject to controlling behaviour by men. From the age of 18 she has been using methylamphetamine, or ‘ice’. I accept that the material before me demonstrates a history of psychological trauma: Nasrallah v R [2021] NSWCCA 207.

37. I accept Dr Rodriguez's assessment that at the time of this offending, she had likely experienced cognitive impairment associated with chronic methylamphetamine use. This he says would have impaired her reasoning and increased her impulsivity. Dr Rodriguez says she clearly requires treatment for Post Traumatic Stress Disorder (‘PTSD’) and a likely Borderline Personality Disorder.

38. A Justice Health's report before me indicates that she is now on the buprenorphine program to help with her drug dependence. In my experience those who have kept to that program have been assisted greatly in dealing with their chronic drug problems. The report, Exhibit 2, notes her current health conditions are Attention Deficit Disorder, chronic back pain, depression, Generalised Anxiety Disorder and opioid dependence, and it notes treatment that she is receiving for that condition and the medication she is being treated with.

39. Agostini expresses a desire to cease methylamphetamine use, but Dr Rodriguez notes that she will require “management within a multi-disciplinary framework” an approach which will “require psychiatric, psychological, and general medical care”. He notes that she will have to receive “structured ongoing treatment and rehabilitation”.

40. He also notes that she has only just begun, in the custodial setting, to reflect on the seriousness of her behaviour. But he cautions that path, “given the chronicity of her addiction”, that treatment will need to be carefully applied and monitored.

41. He puts forward a plan for post-release and post-release management. I will have a copy of his report sent with the warrant. I will take into account all those matters.

42. The Sentence Assessment Report notes the ongoing support of family members, some of whom are here today. It notes her history and her denial that she had violent tendencies; matters reflected in her prior criminal history. It notes her medications and her mental health history. It says she would never wish what occurred on anyone. That sentiment came as too little and far too late.

Submissions

43. Submissions were made that the principles set out by the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 and by the Chief Judge in common law in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 apply here.

44. The Crown accept that submission, as do I. There are matters here personal to the offender and her background that have affected her capacity to reason and appreciate the full wrongness of her acts at the time these events occurred. There are multiple paths to reduce her moral culpability. They include the effects of childhood deprivation: Bugmy. The impacts of trauma, particularly multiple episodes of domestic violence and coercion: Nasrallah. And the mental health conditions she suffered from: De La Rosa. Often, they are interrelated and, as here, inextricably so.

45. As the High Court noted in Bugmy, the pervasive effects of such matters are not confined to the commission of a single offence. Where they impact on a person's childhood, adolescence and early adulthood, they can inhibit the development of prosocial values, the acquisition of a moral compass, and impact on the capacity to make behavioural decisions and consequential thinking, that is, compromise their "capacity to mature and learn from experience": Bugmy at [43]. That is how I was asked to read the opinions expressed by Dr Rodriguez; which I accept.

43. Those matters will be given as much weight as I can. That does not mean that Agostini does not bear moral responsibility for her crime. But her background is a very relevant matter.

Synthesis

47. I have to synthesise all relevant factors. I will try to do so. Ultimately, I have to fix a custodial sentence of some length. There are reasons to differentiate Agostini from Kelly.

48. Her prognosis, as the Crown submit, is guarded. She is still young, she is still immature, and some of her growing up has occurred, and will occur, in custody. She will need to be assisted in custody. She will need to be monitored on release. This effectively is her first time in custody, made up over the various periods relating to this matter.

49. When she ran from the Court, from her trial, she could not face the consequences of her own actions, and that level of immaturity also requires my consideration. As her prospects are guarded, the sooner she is released to the community, the better those prospects may be – if she is supported.

50. The mitigating factors, while they must be given full weight, have also to be balanced with the seriousness of the offence which the short description I have given illustrates was very serious. Another human being was detained and humiliated in an extreme way. She was the person who led him there, and she was present while these events occurred.

51. While there will be a finding of special circumstances, the minimum time she has to spend in custody must properly reflect all of the purpose of sentencing, in particular the seriousness of the offence she committed. For that reason, I cannot accept the submission, that a sentence of less than two years could be imposed, thus removing any possibility of an Intensive Correction Order. And secondly, that a release date in the very near future applies. There will have to be a further time in custody.

52. Taking into account the 5% reduction, noting the starting point so far as Kelly was concerned, was about 6 years imprisonment. My starting point for this sentence is 4 years and 6 months. I have rounded the 5%, slightly to her advantage, which gives the total sentence of 4 years and 3 months.

Orders

53. To give effect to my finding of special circumstances, the formal Order of the Court is:

54. There will be a non-parole period of 2 years and 2 months which will date from 16 June 2024, meaning she will be eligible for consideration for release to parole on 15 August 2026. There will be a parole period of 2 years and 1 month to allow for supervision and monitoring in the community. It will commence on 16 August 2026. Total sentence will expire on 15 September 2028.

55. To reiterate; 4 years 3 months; 2 years 2 months minimum; earliest release date 15 August 2026; total sentence expires 15 September 2028.

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Decision last updated: 18 September 2025