R v Tito [2010] VSC 372

3 You had attended the barbecue earlier at about 6.30pm for a short time. At that time you were observed drinking from a bottle of Crown Lager. At about 10.30pm you returned to that address. You were, I accept, substantially intoxicated. Witnesses have said so. In your evidence at trial, you described drinking a number of Crown Lager bottles, together with a "large" bottle of Jim Beam bourbon whiskey.

4 You brusquely left the blue Ford in which you arrived. You walked up to Afram Kodi, another young Australian of Sudanese descent. You immediately struck him several times about the head. He attempted to defend himself by blocking your punches. After a short time, you were dragged apart. This attack upon Afram Kodi was entirely unprovoked. You wished to continue your assault upon Mr Kodi and he was invited to fight "one on one".

5 Tragically, Mr Kodi rejected the advice of his friends to go inside. He took off his jacket and hung it over a letter box on the nature strip. You armed yourself with a screwdriver for this second fight. It is unclear whether you possessed this screwdriver throughout your hostile activities, or whether you retrieved it from a supporter just prior to the second fight. What is clear, however, is that Afram Kodi went into that second fight unarmed and you did not. By its verdict the jury has rejected your assertions of self-defence. You used the screwdriver on at least three occasions to inflict injury on Mr Kodi. The first two injuries were superficial lacerations to his left ear and neck region. The final injury was to the left forehead region at the hairline.

6 You described in evidence at trial a roundhouse blow to Mr Kodi's head whilst you held the screwdriver handle in your clenched fist. The blade of the screwdriver pierced Mr Kodi's skull, and tracked a path through the underlying dura into the cerebral cortex, the lateral frontal lobe and finally into the left front basal ganglia. Mr Kodi became unconscious immediately. As he lay in that state, you kicked him in the chest and finally you removed the screwdriver embedded in his head and decamped. You were arrested almost immediately. Mr Kodi died in hospital the next day.

7 You were presented for trial on one count of murder and you were convicted of manslaughter. The jury inevitably must have reached the conclusion that they were not satisfied beyond reasonable doubt that, at the time you struck the fatal blow, your intention was either to kill Afram Kodi or cause him really serious injury. I consider the likely explanation for the verdict lies in your state of intoxication, as there is no doubt you were the aggressor throughout and there is also no doubt you armed yourself with a weapon in a fight against an unarmed man.

8 Through your solicitors, you offered to plead guilty to manslaughter on 30 September 2009. This offer was made a few days after the committal hearing and was rejected. You are entitled to the benefit of this offer which I consider has been made at an early stage.

9 Victim Impact Statements from the deceased's younger sisters, Isra and Albin, his older brother Atif and his mother, Samira Koko, were read to the Court. They speak of desolation and hopelessness. Your actions have cut short the life of a decent young man. His family, like your family, came to this country in search of a better life. By your actions, you have inflicted a blow from which the Kodi family may never recover. Your family may never fully recover either.

10 You have admitted prior convictions incurred only six weeks before this tragic incident. On 5 November 2008, you were convicted at the Heidelberg Magistrates' Court of affray and causing injury intentionally. You were sentenced to an aggregate term of two months imprisonment, wholly suspended for 12 months. Mr Stuart, your counsel, informed me that you were a member of one group who engaged in fighting with another group at a suburban railway station. Apparently no weapons were used, although the nature of the charges and the sentence imposed indicate that this was not a trivial incident. You gave evidence on the manslaughter plea, and in cross-examination accepted that consumption of alcohol was associated with the previous offending.

11 You were aged twenty when you killed Afram Kodi. You are now twenty-two. You have experienced considerable hardship in you early life, being exposed to the tribulations of the Sudanese civil war, initially in your family's village and then in Khartoum. Your family left Sudan as refugees when you were 12 and fled to Cairo. In part this was to avoid the risk of you, as the only male child then, being kidnapped and forced into child soldiering. Your schooling in Khartoum was necessarily desultory, although things improved a little in Cairo, and you completed the equivalent of Year 7.

12 You came to Australia with your parents and your younger sister when you were about 16 and your two other siblings were born here. Apparently you had an older brother who disappeared as a child in Sudan. Your family settled in Reservoir and you attended English language school and then TAFE for a short period. You obtained work selling clothes at the Preston Market for a time and then combined factory work with a metal work course. At the time of this offence you were part way through a spray painting course at Docklands TAFE and I am told this is your preferred vocation. You have been in custody since 26 December 2008 and have occupied yourself usefully over the last twenty months, completing numerous courses including for anger management, interpersonal conflicts and the drug and alcohol program.

13 It is clear enough that the abuse of alcohol is a problem for you, as it is for so many young Australians. Both of your adult court appearances relate to incidents that occurred when you were intoxicated. I was impressed by your evidence on your plea, and accept that you have a determination to make something of your life. Those aspirations will be frustrated if you allow alcohol to control you. The challenge for you is to take control of your life. You are young enough and intelligent enough to do so.

14 Ms Pamela Matthews, a Forensic Psychologist, prepared a report which was tendered on your behalf. She was supplied with details of your offending and criminal history, together with certificates reflecting the completion of the various courses I have referred to earlier. She reported on a history given by you of heavy alcohol consumption from a young age. She formed the view that you are not inherently anti-social, although developmentally immature. She is of the opinion that you are remorseful for your actions, and that your prospects for significant rehabilitation are sound. For reasons that I will shortly express, I agree with both these opinions.

15 Mr Stuart, on your behalf, did not seek to argue that there was any nexus between your offending and any psychological or psychiatric disorder. I have reservations about the finding that you suffer from significant cognitive limitations. The Stanford Binet 5th edition IQ Test administered was the abbreviated version and has not been normed on a Sudanese population base. Having viewed you as a witness on two occasions, I consider that your capacity to understand, process and respond to questioning was incompatible with any cognitive deficit whatsoever. Giving evidence and being cross-examined as an accused on trial for murder is, I suspect, at least as revealing as any IQ test on this issue.

16 There being no nexus between your offending and any psychiatric or psychological illness or disorder, I do not propose to make any allowance in the sentence for these sorts of factors. On the other hand, I consider that your prospects for rehabilitation are significant. You have demonstrated a wish to improve yourself and have taken concrete steps along that path during your time in prison. Character references have been tendered on your behalf. Mr Nyadang Dei Wal speaks of your determination to contribute positively to the Australian Sudanese community and the broader community. As I have said, I was impressed by your evidence in this regard.

17 I accept that you are genuinely remorseful for your actions. I consider that you have some insight into the devastation that you have caused the Kodi family and I am prepared to accept at face value your letter to the Court of 16 April 2010 (Exhibit A):

"Your Honour, the amount of regret I have inside me (is) un-explainable and although I cannot take back what I have done, I just had to apologise for all this and am promising you that when I am released I will never take my freedom for granted and act like I did again."

Either you are sincere in what you say, or this is a cynical manipulative exercise. As I say, I am prepared to accept it. Do not let me or, more importantly, yourself down.

18 Factors of general and specific deterrence must be given real weight in the sentencing exercise. Young people in this State are being killed or seriously injured in alcohol fuelled fighting on an alarmingly regular basis. I regard the fact that you used a weapon in a fight against an unarmed young man as an aggravating feature. People inclined to participate in these sorts of drunken fights must understand they do so at their peril and that the courts will not tolerate that type of conduct. Conduct of this type also requires denunciation by the courts, and the fact that you had engaged in a recent unrelated episode of drunken violence means that I must reflect the need to deter you personally in the sentence I am about to impose.

19 I have endeavoured to temper these factors in the sentence I am about to impose because of your plea offer, your youth, your difficult personal background and the prospects for rehabilitation that I have found. I have imposed a lower minimum term before parole eligibility and a longer parole period than otherwise I would have to reflect these factors.

20 On the count of manslaughter, I sentence you to 10 years imprisonment. I direct that you serve 6 years 3 months imprisonment before becoming eligible for parole. I declare that 602 days of pre-sentence custody be reckoned as served.