STATE OF TASMANIA v JOSHUA DILLON ASTELL 4 APRIL 2023
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant in this matter, Joshua Dillon Astell, aged 24, has pleaded guilty to one count of using a prohibited firearm and one count of recklessly discharging a firearm. He has also pleaded guilty to summary offences of possessing a shortened firearm, possessing ammunition without a firearm licence, and possessing a loaded firearm in public without a firearm licence.
At about 12.30am on Thursday, 24 November 2022, the defendant and three associates attended Wrest Point Casino. They arrived in a silver Subaru Forester which was parked on the top floor of the casino carpark, in a parking space that was close to the walkway ramp into the second level of the casino.
The group became involved inside in a brief verbal altercation with another casino patron, Patrick Smith, and two other males. The defendant and his group did not know Mr Smith or his friends. The defendant left the casino with his group and encouraged Mr Smith to follow him. The defendant encouraged Mr Smith and his friends to follow them back up the walkway ramp onto the top level of the carpark.
The defendant returned to the car and opened the door of the rear passenger seat on the driver’s side. He reached in and retrieved a shortened .22 calibre bolt action rifle from within the vehicle. He sat the firearm on his lap before loading it with a magazine, and one round of ammunition into the chamber. The car door was open. The defendant pointed the firearm in the direction of the walkway ramp, but held it low and close to his body. The defendant closed the car door and wound down the window. The car reversed out of the parking space at a slow speed. Mr Smith and one of his friends were on the walkway ramp at the time. As the vehicle reversed out and drove towards the ramp, the defendant fired the rifle out of the car window two or three times. He fired the first shot up in the air. The defendant was only 10-20 metres away from Mr Smith and the other male at the time he fired, and then he fired the second two shots within metres of them.
As the car left the carpark the defendant held the firearm out of the window, hung his upper body out, swung the firearm back in the direction of the walkway and fired it again.
However the Crown facts were stated and the charge is framed, I have seen video footage of the incident. The rooftop appeared deserted apart from those involved and I am satisfied that the shots fired, absent an, always possible, mishap, had no real likelihood of hitting any person.
The defendant was not the holder of a firearm’s licence. He sold it for $300 about a week after the commission of these crimes. Significantly, it has not been recovered.
The defendant was arrested on 9 December 2022 and made full admissions to police. He told police that had been using methylamphetamine and he was in a bad drug psychosis at the time. He expressed regret at his actions. He was arrested and has been in custody since that date, almost four months.
For a young man, the defendant has an extensive record of prior convictions including for common assault, aggravated burglary and aggravated armed robbery. He has, however, no prior convictions for firearm offences.
The defendant did not know his father and was raised by his maternal grandparents. Domestic violence was a feature of his upbringing and there was extensive involvement from Child Safety Services. From the age of 12, he lived in a number of residential care placements up until the age of 16. His teenage years were turbulent and unstable. He experienced a lack of family connection, although he was often placed in care with his older brother and maintained a close relationship with his grandfather.
He left school in Year 8. He found mainstream schooling difficult due to ADHD and overarching instability of his life. Though he has not engaged in formal education since, he has a good level of literacy and numeracy.
The defendant’s offending as a youth began when he was 15, committing the type of offence that is often seen in children in residential care, including damage to property and disputes with other young people and care workers. This ultimately led him to being ejected from residential care at the age of 16.
His offending as a youth continued to the point where he turned 18 whilst in custody serving a period of Youth Justice detention. He spent the last six weeks of that sentence in adult prison and he reflects that due to exposure to adult imprisonment, he became institutionalised at a young age and was not discouraged from offending.
The defendant has had ongoing difficulties with drug use, in particularly methylamphetamines, which have been a primary causative factor in his continued offending and general instability. Prior to his remand in custody, he was living in Clarendon Vale in rental accommodation. When in the community, he receives a Centrelink benefit of Job Seeker. He has a limited employment history but has some work experience in concreting.
He has one son, aged 2. He is no longer in a relationship with his son’s mother but seeks to be as involved as possible as a parent.
He was in prison from February 2020 to June 2022 in the midst of COVID-19 and with the persistent lockdowns. His focus during that term of imprisonment was his son, who was born whilst he was in prison. When in person visits where allowed during this period, his former partner visited him with their son. He undertook a parenting course in prison in the hope of being an active and responsible father on his release.
Upon his release in June 2022, his personal circumstances were stable for a number of months. He was not using drugs at all or involved in offending. He was seeing his son regularly and had become attached to him. His son’s mother then wanted to rekindle their relationship, which he did not want. She then stopped him from seeing their son. He had considered his role as a father to be his pathway to rehabilitation. When he was unable to see his son, he turned back to drug use.
During the current period on remand, the defendant has been housed in Maximum Security, mostly in a cell with one other person. He has had very little time out of the cell and no access to rehabilitative programs. He describes ongoing lockdowns, recounting that during a recent week he was locked down for five out of seven days.
It is submitted that it is a positive that he has been abstinent from drug use and has applied for suboxone medication. He has also repaired the tensions in his relationship with his former partner and she continues to visit with their son as regularly as possible.
It is unnecessary to state that all firearms offences are serious and that possessing a shortened firearm and recklessly discharging it in public, particularly so. I take into account, however, the defendant’s age, his disadvantaged background, his co-operation with police and his plea of guilty, as well as his expressed regret and his continued desire to change for the better. The defendant is convicted of each of the offences to which he has pleaded guilty and I impose a single sentence of nine months’ imprisonment, backdated to 9 December 2022 with the balance from today suspended on condition that the defendant commit no offence punishable by imprisonment for a period of 12 months from today.