R v Astbury - [2019] VSC 97

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0290

THE QUEEN

ALEXANDER DAVID ASTBURY

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	1–19 October 2018, 25 February 2019
DATE OF SENTENCE:	13 March 2019
CASE MAY BE CITED AS:	R v Astbury
MEDIUM NEUTRAL CITATION:	[2019] VSC 97	1^st Revision: 18 March 2019

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CRIMINAL LAW – Sentence – Murder – Jury verdict – Blunt force trauma to head and chest – Intention to cause really serious injury – Limited remorse – Schizoaffective disorder – Verdins principles – Moderation of general and specific deterrence – Custody more onerous – Prospects of rehabilitation reasonably open – Sentenced to 18 years’ imprisonment with non-parole period of 14 years and six months – Sentencing Act 1991 s 5(1).

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr B Walmsley QC with Mr S Devlin	Mr J Cain, Solicitor for Public Prosecutions
For the Defence	Mr T Marsh with Ms E Ramsey	Victoria Legal Aid

HER HONOUR:

Alexander Astbury, you have been found guilty by a jury of twelve of the murder of Rafet Demirel, whom you killed on Saturday 11 February 2017. It now falls to me to sentence you according to law.

You were born on 6 December 1974 and were 42 years old at the time of the murder.

In February 2017, you and your partner were living at a property in Coburg, which was owned by Mr Demirel. Mr Demirel was your landlord. You lived in bungalow one and Mr Demirel and his wife lived in bungalow two. There was also a house, at the front of the property, which was occupied by three tenants.

You and your partner had been tenants of the Demirels since around March 2016. Your tenancy had been, by all accounts, unexceptional. However, in the days leading up to the murder, you started arguing with your partner. This was observed by several neighbours. The conflict escalated to the point that you locked her out of your bungalow and piled her belongings outside on the ground. You were seen to be in an emotionally distressed state: crying; talking out loud to yourself; hitting yourself in the head; and muttering the words ‘jealous, jealous’.

On the Friday morning, the day before the murder, Mr Demirel spoke to you and your partner. He told you both to calm down. That night you and your partner fought again and she ended up leaving you.

On the day of the murder, at approximately 1:20pm, the three tenants from the house returned from a trip to the supermarket. They had some difficulty lifting their shopping trolley into the front yard. You helped them and were apparently in good spirits. You were joking about having big muscles. Shortly afterwards, you were seen to be upset, hitting your head against the wall of the house and putting your fist near your mouth.

Sometime before 2:00pm Mr Demirel asked you to speak with him…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Astbury

Details

AGLC: R v Astbury [2019] VSC 97
Case: [2019] VSC 97
Decision Date: 13 March 2019

CaseChat Overview and Summary

The case of R v Astbury involved the sentencing of the appellant who had been found guilty of murder. The crime was committed with a significant degree of violence, involving blunt force trauma to the victim's head and chest. The appellant's actions were deliberate, with an intention to cause really serious injury. The court acknowledged that the appellant's remorse was limited. Additionally, the appellant was diagnosed with schizoaffective disorder. The primary legal issues for the court were to determine the appropriate sentence for the crime of murder, considering the principles of Verdins and the need to balance general and specific deterrence with the appellant's prospects of rehabilitation.

The court carefully considered the principles of sentencing as outlined in the Sentencing Act 1991. It was necessary to determine the appropriate level of punishment that would adequately reflect the seriousness of the crime while also taking into account the mitigating factors. The court found that the nature of the crime was particularly heinous, involving severe violence and a clear intention to cause significant harm. However, it also recognised the appellant's mental health condition and limited remorse, which could potentially influence the sentence. The court emphasised the importance of ensuring that the sentence was not excessively onerous and that it allowed for the possibility of rehabilitation.

After weighing the various factors, the court decided that the appropriate sentence was 18 years’ imprisonment with a non-parole period of 14 years and six months. This sentence aimed to appropriately reflect the gravity of the crime while also considering the appellant's circumstances. The court concluded that the sentence would adequately serve the purposes of punishment, deterrence, and rehabilitation, balancing the need for general deterrence with the specific circumstances of the offender. The court's decision was based on a thorough analysis of the principles of sentencing and the unique aspects of the case.

The final orders of the court included the appellant's conviction for murder and the imposition of a sentence of 18 years’ imprisonment with a non-parole period of 14 years and six months. The court's detailed reasoning and consideration of the relevant principles provided clarity and guidance on the appropriate sentence in this complex case.

Orders