Astbury v The Queen [No 2] [2020] VSCA 158

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.

2 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.

3 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.

4 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 bungalow, and the house was occupied by three tenants. In the week preceding the offence, the appellant had begun arguing with his partner, accusing her of infidelity. The arguments disturbed those who were living at the premises. On the day before the offending, Mr Demirel spoke to the appellant and his partner and told them that they must quieten down.

5 On the following day, shortly before 2:00 pm, Mr Demirel asked the appellant to speak with him in his bungalow. When the appellant entered the bungalow, Mr Demirel repeated his previous request that the appellant and his partner cease their dispute. The events that followed remained unclear. For some reason, the appellant assaulted Mr Demirel. As a consequence, Mr Demirel sustained a number of blunt force injuries to the head and torso. In particular, he suffered 38 rib fractures, consisting of nineteen symmetrical fractures on each side of the rib cage.

6 The pathologist, Dr Dodd, expressed the view that the symmetrical fracture pattern was typical of a crushing-type injury sustained by Mr Demirel. By its verdict, the jury rejected the appellant's evidence that in the course of a physical struggle with Mr Demirel, he (the appellant) had fallen onto the chest of Mr Demirel who was then lying prone on the ground. On the prosecution case, the large majority, if not all, of the fatal injuries to Mr Demirel's chest were caused by one single application of significant compressive force to Mr Demirel's chest by the appellant.

7 While this Court reached the conclusion, based on the evidence, that it was not reasonably open to the jury to be satisfied, beyond reasonable doubt, that the appellant had inflicted that injury with the intention of killing Mr Demirel or causing him really serious injury, nevertheless it was common ground that, irrespective of the manner in which that injury had been inflicted upon Mr Demirel, it was the product of an unlawful and dangerous act performed by the appellant. For that reason, the Court substituted a verdict of manslaughter.

8 At the time of his death, Mr Demirel was 73 years of age. He was retired, but was still active, performing some part-time work cleaning bricks. He and his wife had three children, a grandson and a son-in-law, each of whom provided victim impact statements to the Court. It is appropriate to record that each of them have suffered significantly due to Mr Demirel's death and the circumstances in which it occurred. The statements provided by each of them reflect the depth and extent of the loss and the distress occasioned to them by the appellant's criminal act.

9 The appellant was born in December 1974. At the time of the offence, he was 42 years of age, and he is now 45 years old. He has a number of previous convictions, although, in context, they are not particularly relevant to resentencing. In 1992, he was convicted by the Melbourne Magistrates' Court on a charge of possessing a drug of dependence, and other charges including theft, burglary and unlicensed driving. He was then sentenced to serve a community corrections-based order for twelve months. Between September 1992 and October 1995, he came before the Magistrates' Court on three further occasions in respect of charges of burglary, criminal damage and associated offending. On each of those occasions, he received a non-custodial sentence. His last previous offence was in November 2003, when he was convicted and fined by the Heidelberg Magistrates' Court on one charge of possession of cannabis.

10 The appellant was raised in the North Carlton area. His parents separated when he was fifteen years of age. Although the appellant performed well at school, he was expelled twice from secondary school due to the consumption of drugs, and engaging in fights and truanting. After he left school, the appellant had a number of different employment positions. For short periods, he worked as a teacher and a labourer in a factory. His longest period of employment was for seven years as a picture framer. The appellant was last engaged in gainful employment in 1996.

11 The appellant had a number of long-term relationships. He had an eight year relationship in which he had his first child. He subsequently had a second relationship, which he commenced with his partner, by whom he had his second child. Both children were removed by the Department of Health and Human Services at an early age.

12 The appellant's history was marked by serious and longstanding mental health problems. As a child, he was sexually assaulted on three occasions when he was aged four years, nine years and thirteen years respectively. He was also subjected to inappropriate touching by a teacher while he was in school.

13 It appears that the first signs of mental illness emerged during the appellant's mid-teen years, when he became withdrawn and started using marijuana as a means of self-medication. His mental health continued to deteriorate in his late teens. At the age of 21 years, he was particularly unwell. He attended North West Area Mental Health where he was diagnosed with a schizoaffective disorder. He formed then a good relationship with his psychiatrist, Dr Leahey, whom he attended for treatment in the following years. However, there were interruptions to his treatment. When his symptoms deteriorated, he became distrustful of everyone, including his psychiatrist. Between 1994 and the date of the offending, the appellant had been hospitalised on sixteen separate occasions. In more recent years, his psychotic symptoms became more difficult to stabilise, and the periods that he spent in hospital became longer. On at least two occasions, he was subject to electro-convulsive therapy ('ECT'). In a statement that was tendered to the sentencing judge, the appellant's mother, who is a psychologist, stated that the appellant's interaction with mental health services outside hospitals had not been good. Typically, when he became unwell, he was extremely suspicious and did not trust anyone.

14 On 1 December 2015, the appellant was admitted to the Northern Psychiatry Unit pursuant to an inpatient assessment order. He presented as a risk to himself and others and he was not agreeable to undergoing treatment. He was discharged from that unit on 17 February 2016, having undergone a course of ECT treatment. He was discharged on a mandatory treatment order that required his compliance with depot injections. However, the North West Medical Health Service did not see the appellant again after his discharge, and the inpatient treatment order was varied to a community treatment order. On 1 April 2016, the order was revoked as it was not possible to provide immediate treatment.

15 As described in the Court's reasons on the conviction appeal, the appellant's conduct, after the offence, was somewhat bizarre. He dragged Mr Demirel's body into the backyard of the property and wrapped it in a sheet. He then departed the premises, walking or jogging to Parkville. He caught a train to Flemington, and then caught a train back to Coburg station. He was arrested walking near the premises. After his arrest, he was assessed on two occasions by Dr Jo Ann Parkin of the Victorian Institute of Forensic Medicine, and on each occasion he was deemed to be unfit to be interviewed.

16 The appellant was charged with the murder of Mr Demirel on 12 February 2017. On 17 February, he was certified by the Metropolitan Assessment Prison psychiatrist, and held in isolation in prison while awaiting a bed in Thomas Embling Hospital. Subsequently, on 13 April 2017, he was admitted to Thomas Embling Hospital, where he remained until his discharge on 17 August 2017. The appellant was then housed in St Paul's Forensicare Unit at Port Phillip Prison until early May 2020, when he was moved into the mainstream unit, Fishburn West.

17 Dr Nina Zimmerman, a forensic psychiatrist, examined the appellant in November 2018 in the St Paul's Unit. Having reviewed his psychiatric history, and examined the appellant, Dr Zimmerman concluded that the appellant had a well-established diagnosis of schizoaffective disorder and polydrug abuse. She considered that the schizoaffective disorder is a lifelong condition, and is typically characterised by remissions and relapses. The appellant's symptoms had been at the severe end of the spectrum, warranting 16 inpatient admissions, some of which were involuntary, and involving ECT treatment, oral and depot antipsychotic medication and oral mood stabilisers. The appellant's management had been hampered by substance abuse, poor engagement with psychiatric services and non-compliance with medication. Dr Zimmerman was of the view that the appellant met the criteria for schizoaffective disorder, currently in remission, in the context of compliance with treatment with the mood-stabilising antipsychotic medication Olanzapine.

18 Dr Zimmerman expressed the view that, at the time of the offending, the appellant was manic. Having been discharged from an acute psychiatric unit in February 2016 on antipsychotic medication, he had avoided follow-up treatment and remained untreated for a year, up to and including the time of the offending. Dr Zimmerman was of the view that the appellant's assault on Mr Demirel was in keeping with his behaviour when he was unwell in the past. She concluded:

I believe that as a result of his untreated illness and manic state, Mr Astbury found it difficult to think in an organised and clear fashion and to think through the consequences of his actions at the time of the offending. His behaviour suggests that he was unable to inhibit his impulses, in keeping with manic psychosis. I believe that there was a direct relationship between Mr Astbury's manic psychosis and the offending behaviour.

19 Dr Zimmerman also considered that a custodial sentence was likely to impact more on the appellant than on an individual without a diagnosis of schizoaffective disorder. The stresses, that are an unavoidable part of life in a custodial environment, carry a risk of precipitating a deterioration in the appellant's mental state. Dr Zimmerman strongly supported ongoing case management and close psychiatric treatment, including monitoring the appellant's compliance with his treatment.

20 In her sentencing reasons, the judge, having assessed the evidence, was not satisfied that the appellant had formed an intention to kill Mr Demirel either before or during the assault. Her Honour found that the jury's verdict was consistent with a finding that the appellant intended to cause Mr Demirel really serious injury.[3] The judge noted that the assault was spontaneous and intense, and the motivation for it had been borne of the appellant's complex personal background and circumstances.[4] Her Honour further accepted that the appellant's mental functioning was impaired to some degree at the time at which he killed Mr Demirel. The judge considered that the appellant's level of mental impairment significantly contributed to his offending, in that it rendered him confused and agitated and unable to think in a clear and coherent fashion.[5] Accordingly, her Honour concluded that the appellant's moral culpability for the offending was reduced.[6] She also accepted that it would not be appropriate to use the appellant for the purpose of general or specific deterrence.[7] The judge accepted 'to a limited degree' that the appellant was likely to find his sentence more onerous than a person of normal mental health.[8]

21 The judge accepted that the appellant's prospects of rehabilitation remained reasonably open.[9] Based on evidence that the appellant gave at trial, on a statement that he made to Dr Zimmerman, and on observations by his mother, the judge accepted that the appellant had demonstrated some remorse for killing Mr Demirel.[10]

22 As mentioned, at the time of sentencing in February 2019, the appellant was located in St Paul's Forensicare Unit at Port Phillip Prison. He remained there until early May 2020, when he was moved into the mainstream unit, Fishburn West. While he was in the St Paul's Unit, the appellant participated in a number of voluntary self-help courses directed to his behaviour, mental health and relationships. He also undertook vocational courses, and he worked two jobs as a kitchen billet and induction billet. Since moving to Fishburn West, he has worked five days each week for each morning in the packaging factory.

23 As a result of the COVID-19 lockdown restrictions (which commenced in Port Phillip Prison on 1 April 2020), the appellant's day has changed from eleven hours out of cell each day to four hours each day. Contact visits have ceased since late March 2020, and all contact with the appellant's parents has been by telephone or video conferencing. He also continues to have weekly telephone contact with his eight year old son.

24 Following the appellant's remand in custody, due to his longstanding history of mental illness, it was not possible for his solicitors to take detailed instructions from him. An initial report from his treating psychiatrist, Dr James Leahey, was received in July 2017 indicating he was fit to plead. A second report was then sought from Dr Leahey whether a mental impairment defence was available. That report was received on 31 August 2017. It indicated that such a defence was not available. On 19 October 2017, the appellant, through his solicitors, made an offer to plead guilty to manslaughter (on the basis of an unlawful and dangerous act of kicking and punching Mr Demirel). That offer was refused on 8 November 2017. In light of the appellant's long history of mental illness, a report was obtained from a second psychiatrist in February 2018. In the meantime, a committal proceeding had taken place in November 2017. The only witnesses, who were required to attend for cross-examination, were professional witnesses. The two areas of focus at the committal were the injuries sustained by Mr Demirel and the appellant's mental state at the time of the incident. Following the second assessment of the appellant, in February 2018, the appellant's solicitors proceeded to take instructions from him. As a result, a second offer to plead guilty to manslaughter was made on his behalf on 9 August 2018. It was rejected by the prosecution.

25 In the circumstances of the case, it is not possible to determine precisely how the appellant inflicted the fatal injury which resulted in the death of Mr Demirel. Some conclusions, however, may be safely drawn from the evidence, the verdict of the jury, and the findings by the trial judge on sentencing.

26 First, it is clear that the jury was satisfied, beyond reasonable doubt, that the version of events, given by the appellant in his evidence, was neither truthful nor reliable. Accordingly, the jury rejected the evidence given by the appellant that he had acted in self-defence. Further, the judge did not accept the evidence of the appellant that Mr Demirel had instigated the incident that led to his death. In our view, her Honour's finding of fact, in that respect, was soundly based.

27 It is clear that the incident, which led to Mr Demirel's death, involved the appellant assaulting Mr Demirel by striking him a number of blows to the face and torso. The jury rejected the appellant's evidence that the particular impact by him on the body of Mr Demirel, which resulted in Mr Demirel's death, was accidental. Further, as we have discussed, the fatal injury, consisting of the compressive injury to Mr Demirel's chest, was the result of a dangerous act by the appellant, namely, an action which a reasonable person in the position of the appellant would have realised would have involved an appreciable risk of serious injury to Mr Demirel.[11] The evidence of Dr Dodd was that the compressive force involved in the infliction of the fatal injury would have been very significant.

28 An aggravating feature of the offending consisted of the significant disparity in both the age and size of the appellant on the one hand and Mr Demirel. The appellant was thirty years younger than Mr Demirel. He was 35 centimetres taller than Mr Demirel, and weighed 25 kilograms more than him. Thus, clearly, the appellant, by a very significant degree of force, inflicted a severe compressive injury to Mr Demirel's chest in circumstances in which the appellant had a very substantial physical superiority over his victim. Although it is not possible to postulate precisely how the injury was inflicted, it would appear, on the evidence, that at that critical time Mr Demirel was supine on the ground.

29 On the other hand, as the judge accepted, the offending by the appellant was spontaneous and it was not premeditated. His assault of Mr Demirel was of short duration, and there is no evidence that any weapon was used by the appellant. He made no attempt to conceal his offending. There was no aggravating post-offence conduct by him.

30 Further, as the judge found, the evidence revealed that the appellant's moral culpability for the offending was materially reduced as a consequence of his mental impairment that significantly contributed to his offending. As the judge found, his mental illness rendered him confused and agitated, and unable to think in a clear and coherent manner, nor was he able to inhibit his impulses. As such, as the judge found, the sentencing purposes of general deterrence and specific deterrence were materially moderated. In addition, as a consequence of the appellant's mental impairment, the judge was persuaded that, to a limited degree, he was likely to find a sentence of imprisonment more onerous than a person of normal health. As a further mitigating circumstance, the judge accepted that the appellant had demonstrated some remorse for killing Mr Demirel.

31 In addition, it is clear that the appellant, at an appropriately early stage, made two offers to the prosecution to plead guilty to manslaughter. If either of those offers had been accepted, the community would have been saved the expense of a criminal trial, and the victims would have been spared the trauma of such a proceeding. On resentencing, the appellant is entitled to have taken into account, as a mitigating factor, the utilitarian value of the two offers that were made on his behalf to resolve the proceeding by pleading guilty to manslaughter. On the other hand, the evidence given by the appellant at trial was inconsistent with the plea by him to manslaughter. Essentially, his evidence was to the effect that he acted in self-defence, and that the fatal blow inflicted on Mr Demirel was accidental, when he fell on Mr Demirel in the course of the struggle. To that extent, the conduct by the appellant at trial diminished the weight to be given to his remorse.

32 In submissions on resentencing, counsel for the appellant referred the Court to a number of sentences in cases which, he contended, were comparable. In particular, counsel referred to the sentences in R v Phan,[12] DPP v Bryan,[13] R v Brooks[14] and DPP v Li.[15] As has been emphasised on a number of occasions, sentences imposed in other cases are not precedents for the sentence to be imposed in a particular case. At best, a collection of previous sentences may give a court some guidance as to current sentencing practices, which is one factor that the court must take into account in determining the sentence to be imposed in the instant case. In the cases referred to by counsel, the facts of the offending, and the circumstances of each offender, were quite different from the facts and circumstances in the present case. At best, the cases, referred to by counsel for the appellant, give a most broad impression of current sentencing practices. Importantly, they are not, and should not be regarded as, sentencing precedents in the instant case. By their nature, sentences for manslaughter fall into a very broad spectrum.[16] Accordingly, the sentences, referred to by counsel for the appellant in this case, are of particularly limited assistance in determining the sentence to be imposed on the appellant.

33 Finally, it is relevant to take into account, in this case, the impact of the COVID-19 lockdown restrictions that have been applicable to the appellant (and other prisoners) in Port Phillip Prison since 1 April last. As a result of those necessary restrictions, the appellant has had significantly less time out of his cell each day. He also has not had the opportunity to have contact visits with his parents. In addition, it is relevant to take into account that, notwithstanding the commendable (and thus far successful) efforts by the prison authorities to prevent an outbreak of the pandemic in our prison system, prisoners such as the appellant are subject to some degree of stress as a result of their apprehension that they are vulnerable to infection in the prison environment. In resentencing the appellant, we take each of those matters into account.[17]

34 In summary, the offending in this case was serious. As discussed, the action of the appellant, which inflicted the fatal injury on Mr Demirel, consisted of a blow (or blows) inflicted with a significant degree of force. The appellant was physically substantially larger and stronger than Mr Demirel, and he was thirty years younger than Mr Demirel. On the other hand, for reasons discussed, the moral culpability of the appellant, for the offending, was significantly reduced by reason of his mental impairment, so that the sentencing considerations of general and specific deterrence must be moderated. The appellant did not have any previous convictions for acts of violence. He has demonstrated remorse. He is entitled to a benefit, on sentencing, for the utilitarian value of the two offers he made to plead guilty to manslaughter.

35 Taking those matters into account, we consider that the appropriate sentence, by way of resentencing, is to impose a sentence of nine years' imprisonment, with a non-parole period of six years.

36 We therefore propose making the following orders:

(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.

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

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

[11] Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313, 332-3 (Mason CJ, Toohey, Gaudron and McHugh JJ); R v Holzer [1968] VicRp 61; [1968] VR 481, 482 (Smith J).

[12] [2019] VSC 153.

[13] [2014] VSCA 54.

[14] [2011] VSC 211.

[15] [2015] VSC 598.

[16] Mocenigo v The Queen [2013] VSCA 231, [84] (Priest JA, with whom Buchanan and Neave JJA agreed).

[17] Cf Brown v The Queen [2020] VSCA 60, [48] (Priest and Weinberg JJA).