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R v Agostini (No 2) [2025] NSWDC 369 | Case summary | Zoe

NSWNSWDC

R v Agostini (No 2)

[2025] NSWDC 369

District Court of NSW|2025-08-08|Before: Haesler SC DCJ

View on NSW CaselawOr email me a plain-English summary of this case

General information, not legal advice.

At a glance

Source facts

Court

District Court of NSW

Decision date

2025-08-08

Before

Haesler SC DCJ

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 —

Source

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Catchwords

CRIME — Violent offences — Detain for advantage while incompany with intent to commit the serious indictableoffence SENTENCING — Mitigating factors — Late plea ofguilty SENTENCING — Penalties —Imprisonment SENTENCING — Relevant factors on sentence— Co-offenders — Parity — Deterrence — Specificdeterrence— Form 1 offences — Moral culpability — Objectiveseriousness SENTENCING — Subjective considerations onsentence — Age of offender — Immaturity — Victim of domesticviolence—Drug addiction — Mental disorders — Trauma inchildhood — ICO not appropriate

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: R v Agostini (No 2) [2025] NSWDC 369

Hearing dates: 8 August 2025

Date of orders: 8 August 2025

08 August 2025

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

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.
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;
The period of detention, about 45 minutes;
The nature of the advantage sought, intimidation, that is to humiliate and frighten the victim;
The absence of any real motivation, which appears to be petty in the extreme;
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
There were three offenders present, and the force of those numbers was applied against him.
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.
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.
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”.
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.
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.

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.
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.
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.
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.
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.
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.
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%.
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.
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.
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.
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.
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.
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.
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”.
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.
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.
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.