The Queen v Astbury [2019] VSC 97

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

3 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.

4 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'.

5 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.

6 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.

7 Sometime before 2:00pm Mr Demirel asked you to speak with him in his bungalow. You entered his bungalow and Mr Demirel repeated his earlier request that you and your partner stop fighting. What happened next remains unclear and was the subject of much of the evidence that was led at trial.

8 The following is a neutral summary based on the all the evidence that was before the jury. Firstly, for whatever reason, you assaulted Mr Demirel. Mr Demirel was found to have suffered from blunt force trauma to the head and torso and, in particular, from one, but very likely two, diffuse compressions to his chest. He suffered 38 rib fractures, with 19 'mirror fractures' on each side, in addition to several flail segments. He also suffered isolated fractures to the floating ribs. The cause of death was said to be acute internal blood loss, into the left and right pleural cavities, as a result of blunt force trauma. You admitted, prior to the trial, to having caused these injuries and, in turn, his death.

9 Secondly, shortly after assaulting Mr Demirel, you dragged his body out of bungalow two and into the shared backyard of the property. This was seen by a witness. The witness also saw you wrap the body in a sheet which you took from the clothesline in the backyard. You then left the property. You were arrested by the police at approximately 7:40pm on Sydney Road, in Coburg, not far from the scene of the crime.

10 You have given your account of what happened in bungalow two between you and Mr Demirel. You denied that you intended to kill him or cause him really serious injury. Your evidence was that, after he summoned you his bungalow, he initiated a verbal confrontation and, when you spoke back to him, he rose out of his chair and attempted to strike you. Your evidence was that everything you did from that point on was in self-defence.

11 By returning a verdict of guilty to the charge of murder, the jury rejected your evidence as to self-defence, preferring the prosecution's contention that you murdered Mr Demirel. The law says that a person may be guilty of murder in one of two ways: they may have intended to kill the victim; or they may have intended to cause them really serious injury. Having assessed the evidence that was before the jury, I am not satisfied that you formed an intention to kill Mr Demirel, either prior to or during the assault. Rather, in my opinion, the jury's verdict is consistent with the finding that you intended to cause him really serious injury.

12 In particular, on the evidence of the forensic pathologist, Dr Malcolm Dodd, whose evidence was at the heart of the prosecution's case, I consider that, at the time you assaulted Mr Demirel, your intention was to cause him really serious injury. The fatal injuries were caused by one, but very likely two, diffuse compressions to Mr Demirel's chest. This was what led to the contiguous rib fractures and, in turn, the massive internal loss of blood. Having said that, it was not a prolonged or persistent attack, and it appears to have occurred in a short space of time. There was no evidence of premeditation. You did not use a weapon. And there was no pre-existing hostility between you and Mr Demirel. All the evidence suggests that your intention to cause him really serious injury was formed at the time and not before.

13 You did not try to conceal the body in the bungalow. In fact, you moved it into the open, where it was readily seen by your neighbours. Nor did you seek to conceal your identity or whereabouts after the murder.

14 Regrettably, this was a spontaneous and intense assault, the motivation for which appears to have been born of your complex personal background and circumstances. I will return to this topic in a moment; but first I wish to say something about the effect your offending has had on those around you.

15 Mr Demirel was 73 years old when you murdered him. He was significantly older than you were at the time. He was retired but still active and doing some part-time brick cleaning. He was not frail or infirm. I have had regard to these matters in determining the objective gravity of your offending.

16 Mr Demirel had three children, Ross, Gulson and Yavuz, a grandson, Volkan, and a son-in-law, Onur, all of whom provided moving victim impact statements to the Court. They are all suffering greatly from his death. They have been profoundly affected by your actions. They have lost a loving father and grandfather. They speak as one with feelings of grief, anxiety, anger, depression, loss of trust in others and a loss of enjoyment in work and social life. There is nothing I can say or do to bring back Mr Demirel or heal the pain his family feels.

17 The sentence I am about to impose reflects a large number of factors which judges are required by law to take into account. One of those factors is the victim impact statements that I have received. I turn now to another factor: the personal circumstances of the offender.

18 Alexander Astbury, you are 44 years old now, and were 42 when you killed Mr Demirel. Your parents separated when you were 15 years old and this was a stressful and unhappy time for you.

19 You were sexually assaulted on three occasions during your childhood at ages four, nine and thirteen, and you also experienced inappropriate touching on your leg by a teacher while at school. You were an above-average student. You were expelled from secondary school in year 12 because of drug taking, fights and truanting, and boarded at a college for six months before you were again expelled for drug use. Your mother asked you to leave home when you were 19 years old.

20 Since leaving school you have had numerous jobs. For short periods you worked as a teacher and labourer in a factory. For seven years you worked as a picture framer.

21 You have had a number of long-term relationships. You had an eight-year relationship in which you had your first child. You had a second relationship, which commenced in 2015, in which you had your second child. Your children are currently aged seven and two. Your second child was removed by the Department of Health & Human Services. You continue to enjoy the support of your mother and father. In particular, you have maintained a close relationship with your mother, who visits you in prison. You have recently resumed contact with your father and I note that he attended the committal and trial.

22 You are currently housed in St Paul's Unit at Port Phillip Prison. You have used your time in prison productively. I am told that you have worked as a bin billet and have been promoted to a kitchen billet.

23 You have a history of non-violent offending. You were first convicted at 17 years of age for charges including theft and placed on a 12-month community corrections order. The same year you received a three-month fully suspended sentence for burglary, theft, possessing a drug of dependence and criminal damage. Your final conviction was for possessing cannabis, at the age of 28, for which you were fined.

24 I have read Dr Zimmerman's report dated 11 December 2018. She notes that you have had a long history of mental health problems. Your first admission to a psychiatric hospital was in 1996 when you were 21 years old. You were diagnosed with schizoaffective disorder. You have had 16 admissions since then. You intermittently sought treatment from a private psychiatrist from 1996 until 2015.

25 You responded well to medication, and received a course of 12 treatments of electroconvulsive therapy during a recent admission, with good effect. Management of your illness has been complicated by poor adherence to medication and

poly-substance abuse. Dr Zimmerman concludes that you have a well-documented history of chronic schizoaffective disorder and that you are currently in remission in the context of compliance with treatment. You also meet the criteria for poly-drug dependence and are currently in remission. You told Dr Zimmerman that you abstained from drugs throughout most of 2016.

26 Dr Zimmerman is of the opinion that when you murdered Mr Demirel you were in a state of manic psychosis. She says that your untreated illness and manic state made it difficult for you to think in an organised and clear fashion and to comprehend the consequences of your actions. She considers that your behaviour suggests you were unable to inhibit your impulses and that there was a direct relationship between your manic psychosis and the offending.

27 Dr Zimmerman notes that a custodial sentence is likely to have a greater impact on you than on an individual without a diagnosis of schizoaffective disorder.

28 In R v Verdins,[1] the Court of Appeal set out a series of principles which judges must have regard to when sentencing offenders who present with impaired mental functioning ('Verdins principles').

29 Counsel for the defence submitted that the Verdins principles should influence your sentence due to your diagnosis of schizoaffective disorder. Specifically it was submitted that:

(a) your impaired mental functioning reduces your moral culpability;

(b) the weight given to general deterrence should be moderated;

(c) the weight given to specific deterrence should be moderated; and

(d) any custodial sentence imposed on you will weigh more heavily than it would on a person of normal health.

30 For the first three factors to apply, there must be a direct connection between your impaired mental functioning and your moral culpability. In this case, I am satisfied that your illness impaired your ability to make calm and rational choices, and made you incoherent and disinhibited. The degree to which your mental condition contributed to your offending will also be relevant to any moderation in general or specific deterrence.

31 Counsel for the prosecution conceded that the Verdins principles outlined above have work to do in your case. I am satisfied that sufficient evidence has been placed before the Court to enliven the Verdins principles.

32 I consider that your mental functioning was impaired to some degree at the time you murdered Mr Demirel. In my opinion, your level of mental impairment significantly contributed to your offending, in that it rendered you confused and agitated and unable to think in a clear and coherent fashion. Your actions are in keeping with your behaviour when unwell in the past.

33 I wish to reiterate that what happened in bungalow two between you and Mr Demirel remains unknown. I am not satisfied that Mr Demirel was the one responsible for the confrontation or that he initially assaulted you.

34 Your dragging of his body after the murder was ill-conceived and demonstrates impaired judgment. So does your behaviour over the next few hours, when you travelled towards the city, only to turn around and head back towards Coburg. The circumstances of your arrest also fit with this picture.

35 After your arrest, you were found to be unfit for interview, and six days after the murder you were certified under the Mental Health Act 2014 and transferred to Thomas Embling Hospital. I am satisfied that your untreated illness and manic psychotic state were directly connected to your offending. I accept that you were unable to think clearly or coherently nor inhibit your impulses. As such, I accept the findings of Dr Zimmerman, whose report was not challenged by the prosecution.

36 It follows from this that, applying the Verdins principles, your moral culpability for the crime of murder is reduced. I accept that each limb of Verdins is enlivened in your case and that, in particular, it would not be appropriate to use you as a vehicle for general or specific deterrence. The question of whether a custodial sentence will weigh more heavily on you, however, is somewhat equivocal.

37 On the one hand, defence counsel submitted that a term of imprisonment will weigh more heavily on you because of your mental condition, since it may cause a deterioration in your mental state. On the other hand, it appears that you are receiving appropriate treatment in St Paul's Unit, such that your mental health has stabilised. I note Dr Zimmerman's opinion that a custodial sentence is likely to weigh more heavily on a person with schizoaffective disorder. I note also that in the future you will likely be discharged from St Paul's Unit into mainstream prison. If that occurs, it will no longer be possible to enforce your medication, which is a concern given your history of non-compliance and involuntary admissions. I accept on the evidence that your placement in St Paul's Unit has been a positive factor in your recovery whilst in custody. Dr Zimmerman strongly supports ongoing case management, close psychiatric treatment and monitoring of your compliance. She recommends that you should be housed in whichever area of the prison will give you the highest level of psychiatric care. I agree, although I note that decisions as to the housing of prisoners are for Corrections Victoria, as this Court has no jurisdiction in such matters.

38 In the circumstances, I will allow some moderation to the degree of your moral culpability, as well as to the weight to be given to general and specific deterrence. I also accept to a limited degree that you are likely to find your sentence more onerous than a person of normal health.

39 Another sentencing objective that I must take into account is protection of the community. The prosecution submitted that your history of non-compliance with medication and the fact that you will be in jail for a considerable time may mean that your illness will continue to go untreated or, at least, without adequate treatment and that return into the community under those conditions would be fraught.

40 I note also that you have a number of prior convictions for non-violent offences and a history of drug dependency. You will be significantly older by the time you are released from custody. However, you are showing insight into your illness and taking your medication, which is promising. In my view, your prospects of rehabilitation are not closed; they remain reasonably open.

41 In the circumstances I do not consider that protection of the community is a sentencing objective that should be given much weight.

42 I turn to the issue of remorse.[2] While you admitted prior to the trial to killing Mr Demirel, you maintained throughout the trial that you acted without an intention to kill or cause him really serious injury. You further maintained that at all times you acted in lawful self-defence.

43 Specifically, in the course of your evidence, you said:

I was very upset, worried and genuinely sad at what had occurred ... that I had caused Rafet's death, it was very upsetting to me, he certainly wasn't someone that I had any prior arguments with or bad blood with, and he was someone who I genuinely liked as a person, so it was very upsetting to me.[3]

44 In addition to your evidence, Dr Zimmerman said in her report:

Mr Astbury described being appalled at the consequences of his behaviour - that is, that as a result of his actions, an elderly man, who he stated he had no particular grudge against, is dead.[4]

45 I note also your mother's comments in her letter to the Court dated 15 February 2019.

46 It was submitted by your counsel that you cooperated in the conduct of the trial, in that you admitted to having caused Mr Demirel's death, which confined the issues and thereby shortened the length of the trial. Counsel further submitted that, due to your co-operation, none of Mr Demirel's family were required to give evidence.

47 It was submitted by counsel for the prosecution, in reply, that the Court should be slow to recognise remorse in the circumstances of this case. It was contended, in fact, that you had shown no real remorse.

48 Having reflected on these matters I am of the view that, while your admission did shorten the trial to an extent, the major issues remained alive and, as such, warranted thorough investigation. It can hardly be said, in this context, that your conduct implied an acceptance of responsibility. It follows, in my view, that you should only be given minor credit for the utilitarian benefit that the community received from your approach to the trial.

49 As I have said, after the murder, you dragged Mr Demirel's body into an open area and covered it with a sheet. I do not infer from this, as was suggested by the prosecution at trial, that you intended to conceal the body but were thwarted in the act. Rather, your actions suggest confusion and a lack of clear thinking, which is consistent with your illness. In any event, and it hardly needs be said, I do not infer from your post-offence conduct that you were remorseful.

50 In short, when I consider all the matters in combination and, in particular, your viva voce evidence at trial, I am satisfied you have demonstrated some remorse for murdering Mr Demirel.

51 In sentencing you, I am required to have regard to the following matters: just punishment, deterrence, rehabilitation, denunciation, protection of the community, or a combination of the above.[5]

52 In this case, your counsel acknowledged that just punishment and denunciation are important factors, due to the inherent seriousness of the offence of murder. This is consistent with the prosecution's position and I respectfully agree. The community should have absolute confidence that the Courts will severely punish and denounce those who murder another human being. I hardly need remind you that the lives of Mr Demirel's loved ones have been marred forever.

53 As for general deterrence, I agree with the defence that there would be real injustice if you were to be used as a vehicle for general deterrence, given the long-standing and serious nature of your illness. This submission was not challenged by the prosecution.

54 As for specific deterrence, I have given it less weight because of your lack of violent priors, your remorse and reasonable prospects of rehabilitation. I also allow some moderation to specific deterrence given the link between your mental illness and the offending and repeat what I said earlier about your inability to exercise appropriate moral judgment when in a manic psychotic state.

55 I am satisfied that your prospects of rehabilitation are reasonably open. Your history demonstrates that when you are not compliant with treatment, or abuse drugs, you become very unwell and liable to relapse. At its worst, when untreated, you are at risk of manic and dangerous behaviour. This can have tragic consequences.

56 When I balance your poor mental health in the past against your progress in recent times, including your receptiveness to treatment and work in custody, I see reason to be hopeful in the longer term. You will be a much older man by the time you become eligible for parole.

57 I note for completeness that a court must not impose a sentence that is more severe than that which is necessary to achieve the purposes for which the sentence is imposed.[6] I have had regard to this principle in fixing your sentence.

58 I accept that your offending was a less serious example of the offence of murder. As I have said, because your intention was to cause really serious injury rather than to kill, the objective gravity of your offending falls at the lower end of the scale. This conclusion does not diminish in any way the fact that you killed another human being. The seriousness of the offence of murder is clearly reflected in the maximum penalty that Parliament has prescribed, namely life imprisonment, which I am bound to consider in fixing your sentence.

59 I repeat that, on the facts before me, there was no pre-existing animosity between you and Mr Demirel. I consider your actions were spontaneous and not premeditated. You present with a complex set of mental health issues and I have taken those into account in conformity with the Verdins principles. I have also had regard to a number of comparable cases which were handed up to me by counsel as well as current sentencing practices for the offence of murder.[7]

60 For the murder of Rafet Demirel, on 11 February 2017, I sentence you to a term of imprisonment of 18 years. I fix a period of 14 years and six months before becoming eligible for parole.

61 Further, I declare that the period to be reckoned as pre-sentence detention is 760 days, not including today's date. I direct that this declaration, and its details, be noted in the records of the Court.

[1] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[2] See, as to the principles to be applied in determining remorse, Lyddy v The Queen [2019] VSCA 35. See also Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354.

[3] Transcript of Proceedings, R v Astbury (Supreme Court of Victoria, Zammit J, 1-19 October 2018) 643.24-644.2 ('T').

[4] Report of Dr Zimmerman dated 11 December 2018 [53].

[5] Sentencing Act 1991 s 5(1).

[6] Sentencing Act 1991 s 5(3).

[7] Defence counsel relied on DPP v Hosking [2009] VSC 549 ('Hosking') in support of a submission that it may be appropriate, in the circumstances of this case, to impose a shorter than usual non-parole period. I disagree as I do not regard Hosking as a comparable case. The offender there had not only mental health problems but also a pronounced intellectual disability.