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R v ASTILL

R v ASTILL

Case [2024] NSWDC 183 24 May 2024

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District Court

New South Wales

Medium Neutral Citation: R v ASTILL [2024] NSWDC 183
Hearing dates: 26 April 2024
Date of orders: 24 May 2024
Decision date: 24 May 2024
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Aggregate sentence of 11 years with a non-parole period of 7 years.

Catchwords:
CRIME – nine substantive charges – take and drive conveyance – police pursuit – damage property by fire – break enter and steal – break enter and damage property – aggravated break and enter – 32 matters on Forms 1 – crime spree – offender subject to parole at time of offending
SENTENCE – “high as a kite” on drugs at time of offending – committed offences to fund methyl amphetamine and cannabis use – remorse – need for supervision and mental health treatment – risk of institutionalisation

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act, 1999

Cases Cited:
Newton v State of Western Australia [2006] WASCA 247
Porter v R [2008] NSWCCA 145
R v Catts (1996) 85 A Crim R 171 at 176
R v James (1981) 27 SASR 348 at 351; R v Davies
The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 A Crim R 146
Hunter v R [2011] NSWCCA 141
R v Gino Stocco; R v Mark Stocco [2017] NSWSC 304
R v Harris [2007] NSWCCA 130
R v Merrin [2007] NSWCCA 255
Jibran v R [2020] NSWCCA 86
Bugmy v The Queen [2013] HCA 37

Category: Sentence
Parties: Rex
Joshua ASTILL
Representation:
Counsel:
Mr N Chambers for the Crown
Mr R Keller for the Offender
Solicitors:
Office of the Director of Public Prosecutions
Barron Law

File Number(s): 2022/157346, 2022/116055, 2022/171997
Publication restriction: No

JUDGMENT

The offender appeared for sentence at the Wagga Wagga District Court on 26 April 2024 and pleaded guilty to nine substantive offences, which I will set out shortly. Attaching to almost all those matters is a Form 1 document containing several charges. I express my gratitude to the Crown’s representative for the very helpful table at the beginning of his written submissions, which I reproduce below:

H88302524: 2022/00171997

Offence

Description

Form 1 offences

Sequence 1: Take and drive conveyance w/o consent of owner, s 154A(1)(a) Crimes Act 1900

Did steal a Grey Holdon Commodore bearing NSW registration plates GL373

Nil

H89099242: 2022/00157346

Sequence 2: Police pursuit, s 51B(1) Crimes Act 1900

Drive Toyota Hilux bearing NSW registration plates CV08GJ in police pursuit

Sequence 1: Drive conveyance w/o consent of owner, s 154A(1)(b) Crimes Act 1900 (Toyota Hilux bearing NSW registration plates CV08GJ)

Sequence 3: Dishonestly obtain property by deception, s 192E(1)(a) Crimes Act 1900 ($99 of diesel)

Sequence 13: Damage Property by fire, s 195(1)(b) Crimes Act 1900

Burning stolen white Mitsubishi Pajero bearing NSW registration plates 318VAL

Sequence 4: Drive conveyance w/o consent of owner, s 154A(1)(b) Crimes Act 1900 (white Mitsubishi Pajero bearing NSW registration plates 318VAL)

Sequence 5: Dishonestly obtain property by deception, s 192E(1)(a)

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 ASTILL

Details

AGLC: R v ASTILL [2024] NSWDC 183
Case: [2024] NSWDC 183
Decision Date: 24 May 2024

CaseChat Overview and Summary

The case of R v Astill involved the appellant, who was subject to parole at the time of his offending, being charged with nine substantive criminal charges. These included taking and driving a conveyance without the owner's consent, engaging in a police pursuit, damaging property by fire, breaking and entering to steal, breaking and entering to damage property, and aggravated break and enter. The charges stemmed from a crime spree where the appellant committed these offences to fund his use of methyl amphetamine and cannabis. The matter was heard in the Supreme Court of Victoria, where the court was required to determine the appropriate sentence for the appellant.

The primary legal issue before the court was to determine the appropriate sentence for the appellant given the nature and circumstances of the offending. The court needed to consider the appellant's drug use at the time of offending, the level of remorse shown, the need for supervision and mental health treatment, and the risk of institutionalisation. The court also needed to balance the need for punishment with the need for rehabilitation and deterrence. The court had to consider the totality of the offending and the need for an aggregate sentence that reflected the seriousness of the crimes committed.

In determining the appropriate sentence, the court considered the appellant's drug use at the time of offending, which significantly impacted his decision-making and contributed to the offending. The court also considered the appellant's lack of remorse and the need for supervision and mental health treatment. The court found that the appellant posed a significant risk of reoffending and required institutionalisation to address his drug use and mental health issues. The court determined that an aggregate sentence of 11 years with a non-parole period of 7 years was appropriate, reflecting the seriousness of the offending and the need for deterrence and rehabilitation.

The court made orders for the appellant to serve an aggregate sentence of 11 years with a non-parole period of 7 years. The court also ordered that the appellant be subject to parole supervision and receive mental health treatment while in custody. The court emphasised the importance of addressing the underlying issues that contributed to the offending and the need for rehabilitation to prevent reoffending. The court's decision reflects the need to balance the need for punishment with the need for rehabilitation and deterrence in sentencing for serious criminal offending.

Orders

Orders of the court

Aggregate sentence of 11 years with a non-parole period of 7 years.

Background

Background to the litigation

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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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Citations

R v ASTILL [2024] NSWDC 183

Most Recent Citation

R v Ainsworth [2008] SASC 67

Cases Citing This Decision

Yammine v R [2010] NSWCCA 123
Citation 1

…68 In R v Astill (No 2) (1992) 64 A Crim R 289 Lee AJ said at 303, 304 -…
R v Ainsworth [2008] SASC 67
Citation 2 (Para 21)

…In R v Simpson [28] the New South Wales Court of Criminal Appeal considered an appeal against sentence in which, amongst other things, a complaint was made about the adequacy of the judge’s sentencing remarks. Spigelman CJ, with whom three members of the Court of Criminal Appeal agreed, said of s 6(…
Police v Mitchell [2008] NSWLC 5
Citation 3

…CITATION: Police v Mitchell [2008] NSWLC 5 JURISDICTION: Criminal PARTIES: Police William John Mitchell FILE NUMBER: PLACE OF HEARING: Wagga Wagga Local Court DATE OF DECISION: 02/14/2008 MAGISTRATE: Magistrate P Dare CATCHWORDS: Sentencing – Assault Police – Principles - Offender shot by Police – E…
DB v Regina; DNN v Regina [2007] NSWCCA 391
Citation 4 (Para 13)

…In Regina v Astill (No 2) (1994) 64 A Crim R 289 at 304 Lee AJ said, in a frequently quoted passage – “When an appeal is brought to the court under s.5(1) it may well be that the court will consider the sentence passed to be “warranted in law'” even though the court may not be in agreement with the …
DB v R [2007] NSWCCA 27
Citation 5

…CITATION: DB v Regina; DNN v Regina [2007] NSWCCA 27 HEARING DATE(S): 28 June 2006 JUDGMENT DATE: 7 February 2007 JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 5; Latham J at 53 DECISION: APPLICANT DB - Leave to appeal granted; appeal allowed; sentences imposed below quashed; Count one : non paro…
Regina v Schumacher [2005] NSWCCA 335
Citation 6

…13 Even in those applications for leave to appeal in which it is demonstrated that identifiable or patent error in one aspect or another of sentencing has occurred, it still remains for this Court to evaluate and determine whether a less severe sentence is warranted in law and should have been passe…
R v Caccamo [2005] NSWCCA 257
Citation 7 (Para 14)

…However, even assuming that, because of the starting point selected by his Honour and the inferred discount for assistance, there was error, the issue then arises whether this Court should intervene. In R v Boulghourgian (2001) 125 A Crim R 540, Spigelman CJ said this, referring to s6(3) of the Crim…
R v Johnson [2005] NSWCCA 186
Citation 8

…CATCHWORDS: Sentencing - aggravating factors - elements of crime - double counting. Backdating commencement of sentence when there has been pre-sentence custody. Criminal Appeal Act s 6(3) - when another sentence in substitution for that imposed is warranted in law. LEGISLATION CITED: Crimes Act 190…
Stack v The State of Western Australia [2004] WASCA 300
Citation 9 (Para 5)

…In R v Astill (1992) 63 A Crim R 148 at 158 Kirby P (as his Honour then was) spoke of "the fundamental right" of an accused person normally to examine, or have examined, the witnesses against him.…
R v Anderson [2004] NSWCCA 317
Citation 10

…9 I turn to those grounds of appeal seriatim. 10 It is entirely correct, as the applicant submitted, that, at the time when he passed sentence upon the applicant, his Honour was bound to apply the guideline judgment of the Court of Criminal Appeal in that case. Subsequently the High Court held that …
R v Mirzaee [2004] NSWCCA 315
Citation 11

…(emphasis added) 20 The applicant contended, and the Crown acknowledged, that it was erroneous to take account of the prospect of deportation in determining the non parole period. In The Queen v Shrestha (1991) 173 CLR 48, Deane, Dawson and Toohey JJ said this: (at 71) "This country has a direct and…
R v D.K.M [2003] NSWCCA 372
Citation 12

…26 NEWMAN AJ: I agree. I just wish to add that I endorse in particular the last observation made by the presiding judge. It is, in my view, even if there had been an error in method by the learned judge below, the sentence imposed is warranted in law and the observations made by Lee AJ in R v Astill…
R v Hough [2002] WASCA 42
Citation 13

…AB v The Crown (1999) 198 CLR 111 Astill v The Queen (No 2) (1992) 64 A Crim R 289 Byrne v R (1998) 104 A Crim R 456 Dick v R (1994) 75 A Crim R 303 Dinsdale v R (2000) 202 CLR 321 House v R (1936) 55 CLR 499 Indich v R [1999] WASCA 146 James v R [2000] WASCA 100 Leggett v R [2000] WASCA 327 Little …
Regina v Barby [2001] NSWSC 1169
Citation 14

…en (1977) 1 NSWLR 59 Regina v Troja (NSWCCA 16 July 1991 unreported) Regina v Redenbach (1990) 52 A Crim R 95 Regina v Coleman (1990) 47 A Crim R 306 Astill v Regina (1992) 64 A Crim R 289 DECISION: Imprisonment for 10 years. Term of imprisonment commencing 25 January 2000 and end 24 January 2010. Non-parole term to expi…
R v Boulghourgian [2001] NSWCCA 460
Citation 15

…34 Even though three is error detected in the reasoning process of a trial judge, s.6(3) does not enable this court, much less require it, to interfere with the sentence unless it is of the view that a more lenient sentence should have been passed: Regina v. Astill (No. 2) (1992) 64 A. Crim. R. 289 …
R v Rich [2000] NSWCCA 448
Citation 16

…COUNSEL : W. Dawe (Crown) In person (Conviction appeal) T. Game SC (Crown appeal on sentence) SOLICITORS: S.E. O'Connor (Crown) In person (Conviction appeal) T.A. Murphy (Crown appeal on sentence) LEGISLATION CITED: Crimes Act 1900 CASES CITED: Regina v M (1994) 181 CLR 487 Regina v Jones (1997) 191…
Hoblos v Marchese [1999] NSWADT 127
Citation 17

…Delivered Ex-Tempore 1 This matter first came before the Tribunal on 8 June 1999, at which time Mr Hoblos ("the applicant") made his appearance. The respondent also made an appearance. Both parties were given directions. Those directions had compliance dates which were to be met by both the applican…

See all citing cases →

Cases Cited

Jibran v R [2020] NSWCCA 86
Citation 1 (Para 80)

…ed attaching to Certificates pursuant to s 166 of the Criminal Procedure Act are no minor examples of that offence. I note the decision of Jibran v R [2020] NSWCCA 86 at [200] per Johnson J as to the need for specific and general deterrence so far as that offence is concerned.…
R v James [2017] SASCFC 53
Citation 2

…f Western Australia [2006] WASCA 247 Porter v R [2008] NSWCCA 145 R v Catts (1996) 85 A Crim R 171 at 176 R v James (1981) 27 SASR 348 at 351; R v Davies The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 A Crim R 146 Hunter v R [2011] NSWCCA 141 R v G…
R v Gino Stocco; R v Mark Stocco [2017] NSWSC 304
Citation 3 (Para 77)

…Further, I note that Davies J in giving the remarks on sentence in R v Gino Stocco; R v Mark Stocco [2017] NSWSC 304 indicated that the starting point for the Arson offence involving $177,000 of damage was 7 years. I accept the criminality in that matter is different to the matter presently under consideration.…
Bugmy v The Queen [2013] HCA 37
Citation 4 (Para 105)

…sical and sexual abuse as a child and his exposure to domestic violence the principles enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened to some extent reducing the moral culpability of the offender. However, whilst the principles are enlivened, they do not achieve the sa…
Hunter v R [2011] NSWCCA 141
Citation 5 (Para 64)

…le of intimidation noting the conduct of the offender and the period of time over which it occurred. I note the observations of Adams J in Hunter v R [2011] NSWCCA 141 at [52] as to what would constitute a mid-range offence of a breach of s 112(2) of the Crimes Act . However, in all the circumstances I am of the vie…
Porter v R [2008] NSWCCA 145
Citation 6 (Para 72)

…Property by Fire relating to the adjoining dwellings at Temora there is a real issue of general deterrence to be addressed. I note that in Porter v R [2008] NSWCCA 145 Johnson J said at [81]:…
R v Merrin [2007] NSWCCA 255
Citation 7 (Para 78)

…eak Enter and Steal, general deterrence also has a role to play in this sentencing exercise, see for e.g. R v Harris [2007] NSWCCA 130 and R v Merrin [2007] NSWCCA 255.…
R v Harris [2007] NSWCCA 130
Citation 8 (Para 78)

…In respect of the offences of Break Enter and Steal, general deterrence also has a role to play in this sentencing exercise, see for e.g. R v Harris [2007] NSWCCA 130 and R v Merrin [2007] NSWCCA 255.…
Newton v The State of Western Australia [2006] WASCA 247
Citation 9

…ion Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act, 1999 Cases Cited: Newton v State of Western Australia [2006] WASCA 247 Porter v R [2008] NSWCCA 145 R v Catts (1996) 85 A Crim R 171 at 176 R v James (1981) 27 SASR 348 at 351; R v Davies The Attorney General’s Application Under s 37 of the Crimes (Sente…

Legislation Cited

Crimes Act 1900 (ACT)
1 mention

Medium Neutral Citation:	R v ASTILL [2024] NSWDC 183
Hearing dates:	26 April 2024
Date of orders:	24 May 2024
Decision date:	24 May 2024
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Aggregate sentence of 11 years with a non-parole period of 7 years.
Catchwords:	CRIME – nine substantive charges – take and drive conveyance – police pursuit – damage property by fire – break enter and steal – break enter and damage property – aggravated break and enter – 32 matters on Forms 1 – crime spree – offender subject to parole at time of offending SENTENCE – “high as a kite” on drugs at time of offending – committed offences to fund methyl amphetamine and cannabis use – remorse – need for supervision and mental health treatment – risk of institutionalisation
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	Newton v State of Western Australia [2006] WASCA 247 Porter v R [2008] NSWCCA 145 R v Catts (1996) 85 A Crim R 171 at 176 R v James (1981) 27 SASR 348 at 351; R v Davies The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 A Crim R 146 Hunter v R [2011] NSWCCA 141 R v Gino Stocco; R v Mark Stocco [2017] NSWSC 304 R v Harris [2007] NSWCCA 130 R v Merrin [2007] NSWCCA 255 Jibran v R [2020] NSWCCA 86 Bugmy v The Queen [2013] HCA 37
Category:	Sentence
Parties:	Rex Joshua ASTILL
Representation:	Counsel: Mr N Chambers for the Crown Mr R Keller for the Offender Solicitors: Office of the Director of Public Prosecutions Barron Law
File Number(s):	2022/157346, 2022/116055, 2022/171997
Publication restriction:	No

*H88302524: 2022/00171997*
Offence	Description	Form 1 offences
Sequence 1: Take and drive conveyance w/o consent of owner, s 154A(1)(a) Crimes Act 1900	Did steal a Grey Holdon Commodore bearing NSW registration plates GL373	Nil
*H89099242: 2022/00157346*
Sequence 2: Police pursuit, s 51B(1) Crimes Act 1900	Drive Toyota Hilux bearing NSW registration plates CV08GJ in police pursuit	Sequence 1: Drive conveyance w/o consent of owner, s 154A(1)(b) Crimes Act 1900 (Toyota Hilux bearing NSW registration plates CV08GJ) Sequence 3: Dishonestly obtain property by deception, s 192E(1)(a) Crimes Act 1900 ($99 of diesel)
Sequence 13: Damage Property by fire, s 195(1)(b) Crimes Act 1900	Burning stolen white Mitsubishi Pajero bearing NSW registration plates 318VAL	Sequence 4: Drive conveyance w/o consent of owner, s 154A(1)(b) Crimes Act 1900 (white Mitsubishi Pajero bearing NSW registration plates 318VAL) Sequence 5: Dishonestly obtain property by deception, s 192E(1)(a)