Citation: R v Agostini (No 2) [2025] NSWDC 369
Court: District Court of New South Wales
Date: 8 August 2025
Judge: Haesler SC DCJ
Background
The offender was sentenced following a late guilty plea to detaining a person while in company with intent to commit the serious indictable offence of occasioning actual bodily harm, contrary to s 83(3) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years imprisonment. Two Form 1 matters were also taken into account: possession of a small quantity of methylamphetamine and theft of a mobile phone from a witness.
The offence took place on the night of 2 to 3 September 2022 in southern Wollongong. The offender lured the victim, a tattoo artist with whom she had an intermittent relationship, to the unit where she was staying. When he arrived, a man named Kelly struck him in the back of the head with a four-kilogram kettlebell, and a third unidentified man struck him with a frying pan. The victim was then pinned to the floor, stripped naked, tied with an extension cord, cut with a knife, and subjected to further humiliations including being urinated on. The offender was present throughout, left temporarily to retrieve the victim's property from a nearby unit, and on returning declared she was "in this" with the others.
The offender did not directly inflict any of the physical violence. However, she lured the victim to the location, opened the door knowing the ambush was planned, participated in demanding property, and remained throughout the prolonged detention. The victim was found on the floor by the unit's owner, shaking and covered in blood, and required emergency services attendance.
Legal Issues
- What was the appropriate assessment of the offender's objective seriousness, given her role as organiser and facilitator rather than direct perpetrator of violence?
- To what extent should the sentence reflect parity with the co-offender Kelly, who received a starting point of approximately six years?
- How should the court weigh the offender's significant subjective circumstances, including youth, immaturity, history of childhood trauma, domestic violence victimisation, drug addiction, and mental health conditions?
- Was an Intensive Correction Order (ICO) a viable sentencing option?
- Did special circumstances exist justifying a variation to the standard non-parole period ratio?
Decision
Objective seriousness and role
His Honour assessed the offence as objectively serious. The period of detention was approximately 45 minutes, the victim was restrained and stripped, weapons were used, there were three offenders present, and the purpose was senseless humiliation and punishment. The court was careful not to double-count elements of the offence itself as additional aggravating factors. While the offender did not participate directly in the physical violence, she lured the victim there, opened the door with knowledge of the planned ambush, retrieved his property, and affirmed her joint participation. His Honour accepted only a modest distinction between her role and Kelly's, noting she was "in it together" with the co-offenders by her own admission.
Parity with Kelly
Kelly had been sentenced with a starting point of approximately six years imprisonment. His Honour adopted a starting point of four years and six months for the offender, reflecting the modest role distinction. A five percent reduction for the late guilty plea was applied, resulting in a total sentence of four years and three months. The discount was rounded slightly in the offender's favour.
Subjective circumstances
His Honour gave full weight to a range of mitigating factors: the offender's youth and immaturity, a severe history of childhood trauma, experience as a victim of domestic violence, chronic methylamphetamine addiction at the time of the offence, and diagnosed mental health conditions. Consistent with the principles in Bugmy v The Queen, the court acknowledged that the offender's moral culpability was reduced by her background and circumstances. Prospects of rehabilitation were described as guarded but not negligible, and the court observed that the sooner she is released with appropriate support, the better those prospects may be.
ICO and special circumstances
His Honour rejected the submission that a sentence of under two years was appropriate, which would have opened the possibility of an ICO. The seriousness of the offence required a period of actual custody beyond what an ICO would permit. A finding of special circumstances was made, justifying a longer parole period than the statutory default, to allow for supervised reintegration into the community given the offender's complex needs.
Orders Made
- Total sentence of 4 years and 3 months imprisonment
- Non-parole period of 2 years and 2 months, commencing 16 June 2024
- Earliest release date (eligibility for parole): 15 August 2026
- Parole period of 2 years and 1 month, commencing 16 August 2026
- Total sentence expires: 15 September 2028
Key Takeaways
- A participant in a joint criminal enterprise can bear substantial criminal responsibility even where they did not personally inflict violence, particularly where they planned and facilitated the offence and declared shared purpose throughout.
- The District Court confirmed that elements of the charged offence, such as being in company and the occasioning of actual bodily harm, should not be double-counted as additional aggravating features in the sentencing exercise.
- Parity with a co-offender's sentence requires careful analysis of relative roles; the court here accepted only a modest distinction between the offender's role and that of the principal perpetrator.
- Under Bugmy v The Queen, entrenched disadvantage, childhood trauma, domestic violence victimisation, and addiction can reduce moral culpability, but those factors must be weighed against the objective gravity of the offence.
- A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 extended the parole period beyond the default ratio, reflecting the offender's complex rehabilitation needs and the importance of supervised community reintegration.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 83(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW) (Form 1)
- Children (Criminal Proceedings) Act 1987 (NSW)
Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Nasrallah v R [2021] NSWCCA 207
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v Agostini [2024] NSWDC 363
- R v JDX; JDX v R [2017] NSWCCA 9
- R v Kelly [2025] NSWDC 281
- R v Newell [2004] NSWCCA 183
- R v Speechley [2012] NSWCCA 130