The Queen v Ajil [2015] VSC 725

4 On the evening of Thursday 2 January 2014, at the request of your friend Mohammed Al Oachey, also known as Coco, you agreed to drive him and some other males into Yarrawonga. The other males were Corey Burkitt, Kieran Dakin and Rory Heaton.

5 On the way, you stopped at a Caltex Service Station in Station St, Cobden. It was around 10.20pm.

6 Coco got out and went into the shop. Daken also got out to speak with some friends.

7 There was another group at the service station comprising Mr Thring, his girlfriend Kelli Berdini, and his friends, Tallon Farrell and Tobias Townley. Mr Thring had been drinking heavily and consuming methylamphetamine prior to attending the Service Station in Ms Berdini's car. Analysis of blood and urine samples taken from Mr Thring post mortem revealed a blood alcohol concentration of between 0.18 and 0.19g/100L and the presence of both MDMA and methylamphetamine in his system.

8 At the service station, Mr Thring got out of Ms Berdini's car and walked across to your car and began talking to Mr Heaton from your group. According to Mr Heaton, you were "being a smart arse" and told Mr Thring that you were selling drugs. Mr Thring abused you. He began swearing and, according to you and Mr Burkitt, made racist remarks.

9 Your group got back in your car. You started to drive off but there was a big bang at the back of the car. At A1242 to A1253 of your record of interview, you said someone had kicked your rear bumper bar. You stopped the car. You got out of the car with a knife in your hand. Coco also got out and started fighting.

10 A male named Reid Wilson was at the service station with a female named Meg Armstrong. Mr Wilson saw Coco fighting with Mr Thring and Mr Townley. He noticed you with a knife, waving it around and yelling out.

11 Mr Wilson and Ms Armstrong got back in their car. From inside his car, Mr Wilson saw Mr Thring walk quickly towards you and you back off about five metres. Although you were showing the knife, he saw Mr Thring keep advancing on you. He saw you throw what he thought was a punch which connected with Mr Thring's chest.

12 From Mr Wilson's car, Ms Armstrong used her mobile phone to film what was happening. Of particular note, the video shows you near the driver's door of your car and Mr Thring running towards you. Just before you and Mr Thring begin fighting, Coco is struck to the head by Mr Farrell, who also grabs Coco around the neck. In the seconds that followed, Mr Farrell is yelling he will kill Coco. As this is happening, you run off, Mr Thring lurches forward and falls to the ground, fatally wounded from a single stab wound to the chest, as was confirmed later at the autopsy.

13 You disposed of the knife. The next day you turned yourself into the police.

14 A physical examination of you found "tenderness to the left side of the face, lower chest and right big toe ... soft tissue injuries", which you may have sustained in your altercation with Mr Thring.

15 In your record of interview with police on 3 January 2014, you said at A319, with reference to the fact that you used a knife:

Even whatever I tried to use or used, not tried to hurt anyone or kill anyone or damage anyone. I try them to - I was trying to scare them, keep them away from me. Please leave me alone. I'm not here to fight with no-one. I came in my car. I wanted to open my car and leave. I was supposed to go to Yarrawonga to see girls. I didn't want this to happen.

16 Mr Thring was only 20 years of age when you took his life. That is a tragic waste of a life. He was your immediate victim but his family and friends, who have been so deeply affected by his violent death, are victims too. I have taken into account the victim impact statements received from members of Mr Thring's family, that is, from his mother (Raelene Atkinson), father (Steven Thring), sister (Kara Lee Atkinson), grandmothers (Heather Atkinson and Trish Quirk), aunties (Sharon Atkinson and Gail Heard) and cousins (Norma Fuller and Jason Williams). I have also taken into account victim impact statements from Mr Thring's girlfriend (Kelli Lee Berdini), his friends (Adam Brewster and Rory Heaton) and his friend's mother (Debbie Townley). No exceptions were taken to the contents of these victim impact statements[1] but, given the description of your offence in one of those statements, it needs to be said that I am sentencing you for manslaughter, not murder.

17 You have a limited criminal history, mainly for driving and dishonesty offences. I do not consider those priors as relevant to the sentence I have to impose on you for the current offence. There is one prior conviction for a violent offence. At Perth Magistrates Court, on 18 March 2010, you were fined $1000 for unlawful assault with circumstances of aggravation. According to your counsel, the victim of that offence was your then girlfriend whom you slapped. Whilst the fact that it was an offence involving violence makes it relevant, it was some time ago and the level of violence was minor compared to the current offence.

18 I will now briefly trace your personal history, as best as I can. In the various reports about you, there is a reasonable degree of consistency in the accounts you have given of your background, although there are some significant discrepancies.[2]

19 You were born in Iraq 29 years ago when Saddam Hussein was in power. Members of your family suffered under his regime, especially your father and maternal grandfather who were incarcerated, in your grandfather's case for some 10 years.

20 In 1991 - when you were five - your family fled Iraq and spent approximately five years in a refugee camp in Saudi Arabia. Whilst at the camp, you suffered physical and sexual abuse from Saudi Arabian guards. Your schooling in the camp was limited.

21 In 1997 your family migrated to Australia, settling in Perth. You were bullied at school because of your Arabic background.

22 In about 2012, when you were in your mid-20s, you were kidnapped by some men over a girl and severely assaulted. No charges were ever laid. This traumatic experience led to your family moving to Cobram in Victoria.

23 In addition to the head injuries you have suffered when assaulted, you have been in a number of motor vehicle accidents over the years, where your head has also been injured.

24 There is a history of drug abuse, especially ice, which is very concerning. Dr Sullivan writes that you told him you had used ice weekly from 2012.[3] In combination with your mental difficulties - discussed below - this causes me to be guarded about your prospects of rehabilitation.

25 You have had limited employment. You worked in a drink factory and the fruit industry. You have been a recipient of a Disability Pension for some years.

26 Your family continues to support you. Your mother is in regular contact with you.

27 A large number of your friends[4] have signed a reference that says you are a very loving and kind person who is respected by all. It says you have never been involved in violence - which is not accurate given your prior matter for assault. The reference speaks of your involvement in sports, especially soccer, and your helpfulness to friends in need.

28 Turning now to particular mitigating factors, I accept that you were not the initial aggressor in the confrontation with Mr Thring. According to the agreed summary of facts and the accounts of eyewitness such as Wilson, Armstrong and Townley, Mr Thring was substance affected, acting aggressively,[5] shrugging off attempts by his friends to physically restrain him,[6] and advancing threateningly towards you.[7] At least initially, you retreated,[8] showing him the knife and warning him off.[9] But neither is it in dispute that in getting out of the car with a knife and ultimately stabbing Mr Thring in the chest, you were not acting in lawful self-defence. Your plea of guilty is an acceptance of that fact. When your group got back in your car, you should have driven off. You had the opportunity to do so. Someone may have kicked the back of your car but you were not personally under physical attack when you chose to get out of the car armed with a knife. Your conduct, which led to a young man's death, calls for denunciation, just punishment and a sentence that deters others who are tempted to arm themselves with, and resort to, deadly weapons.

29 In the course of the plea hearing, a number of reports on you were tendered. There were consultation records from your GP, Dr Chabbou, covering the period 27 July 2010 to 9 October 2013, two reports from neuropsychologist Dr Vowels dated 24 January 2010 and 15 May 2015, a report from consultant psychiatrist Dr Danny Sullivan dated 5 April 2014, and a report from Forensicare consultant psychiatrist Dr Gunvant Patel dated 11 June 2015.

30 The main points that I draw from these reports are:

• First, you have suffered from post-traumatic stress disorder[10] for many years, stemming principally from your childhood experiences in a Saudi Arabian refugee camp. Dr Patel says:

Mr Ajil has chronic PTSD from his childhood stemming from severe abuse of a physical and sexual nature whilst in a refugee camp in Saudi Arabia. This is evidenced by sleep disturbance with intrusive nightmares, hypervigilance and fear of being attacked, triggering of abuse memories and flashbacks by situations that mimic the abuse....... It would appear highly probable that at the time of the offence, due to the presence of chronic PTSD that Mr Ajil would have been at significantly greater risk of fearing for his life and feeling trapped with severe anxiety leading to a diminished capacity for exercising self control. Therefore I believe the Verdins principles are relevant to this matter.[11]

• Secondly, you suffer from a recurrent depressive disorder[12] and at times your depression is acute.[13]
• Thirdly, formal intellectual testing conducted by Dr Vowel puts your intelligence in the extremely low to borderline range.[14]
• Fourthly, it is likely, according to Dr Vowels, that you have an acquired brain injury.[15] You have a very poor memory.[16]
• Fifthly, Dr Vowel's also diagnosed you with moderate to marked Dysexecutive syndrome (that is, Frontal Lobe Syndrome).[17]
• Sixthly, you have experienced and expressed remorse over Mr Thring's death,[18] and the loss suffered by his family.[19]

31 I accept that your impaired mental functioning clouded your judgement on the night in question and contributed to your offending - thereby reducing your moral culpability - and that you will find jail harder because of your mental difficulties. The prosecution conceded as much.[20] I also consider it appropriate to moderate general and specific deterrence as a consequence of your mental problems, but, as I indicated earlier, general deterrence still remains an important sentencing consideration.

32 In the various reports, there were repeated references to the fact that you are in protective custody but you appear to have grossly exaggerated the restrictions this has placed on you. The prosecution tendered an affidavit from a Mr Brendan Money, an assistant commissioner of the Sentence Management Branch, Corrections Victoria. The contents of that affidavit were not challenged by your Counsel.[21] Mr Money indicates that you have received, and will receive, the same out of cell time as mainstream prisoners. The main limitation as a protection prisoner is that you will mix with fewer prisoners.[22]

33 By reason of your mental difficulties and the fact that you are a prison informer - a matter to which I will return shortly - imprisonment will be harder for you than the average prisoner but not to the extent that you suggested to the report writers. I do not find that that there is a serious risk of imprisonment having a significant adverse effect on your mental health.

34 You are entitled to a significant discount for your plea of guilty. Whilst, at first blush, it might be thought a late plea, I take the view that it was entered at the first reasonable opportunity. I will explain why.

35 You were originally charged with murder. There was a contested committal in July 2014, at the conclusion of which you were committed to stand trial in the Supreme Court for murder. You pleaded not guilty to murder before the committing magistrate.

36 The murder trial in the Supreme Court was listed to commence on 13 April 2015. A formal offer to plead guilty to manslaughter was made on 25 March 2015, following the prosecutor Mr Gyorffy QC becoming involved in the case shortly beforehand. He undertook a careful analysis of the evidence and, I infer, initiated fruitful discussions with the defence.[23]

37 Shortly after your plea offer of the 25 March 2015, the prosecution accepted that offer. A fresh indictment for manslaughter was prepared and filed over on 13 April 2015. You were arraigned and pleaded guilty on 13 April 2015.

38 Mr Gyorffy QC rightly submits that it was open to you to make an offer to plead guilty to manslaughter at an earlier stage[24] but there is nothing in the materials to suggest that the prosecution were likely to be receptive to such an offer prior to Mr Gyorffy QC commencing his involvement in March 2015, at which time he made a careful and sensible assessment of the strengths and weakness of the prosecution case.

39 Accordingly, applying the reasoning of the High Court in Cameron,[25] I find that the plea was entered at the first reasonable opportunity.

40 You have provided assistance to investigators and prosecutors in relation to two murders. I received a confidential letter from Victoria Police in relation to your assistance, which has been significant. Sentencing law requires that your assistance in relation to these other prosecutions be rewarded with a substantial discount in respect of your own sentence. It is in the community's interest that such assistance be encouraged.

41 Nonetheless, a substantial sentence of imprisonment is still called for, given the seriousness of your offending. The production of the knife, when you had the option of driving off, and the stabbing of Mr Thring in the chest, place your offending at the upper end of the spectrum of manslaughter, notwithstanding Mr Thring's aggressiveness once you got out of the car. There are significant mitigating factors in your case but not to the extent that I could impose a sentence of only 2 years of further imprisonment combined with a Community Corrections Order, as your counsel requested.

42 On the charge of manslaughter, I sentence you to 5 years and 6 months imprisonment.

43 I order that you serve 4 years before you are eligible for parole.

44 I declare that you have served 711 days by way of presentence detention.

S6AAA Sentencing Act 1991

45 Section 6AAA of the Sentencing Act requires me to indicate the sentence I would have imposed on you but for your plea of guilty. I would have imposed a sentence of 7 years with a non-parole period of 5 years and 6 months.

[1] Transcript of Plea, The Queen v Ajil (Supreme Court of Victoria, Beale J, 13 April and 7 July 2015), 22 ('Plea transcript').

[2] For example, in some reports, based on your accounts, it is said that your parents had six children, you being the youngest. In Dr Danny Sullivan's report of 15 April 2014, to which I will return, you are said to be the youngest of three children.

[10] Dr Sullivan, 5 April 2014, 5 [42].

[12] Dr Sullivan, 5 April 2014, 5 [42].

[13] Dr Patel, 11 June 2015, 5. See also Dr Vowels, 15 May 2015, 5.

[15] Dr Sullivan, 5 April 2014, 5 [43].

[16] Dr Vowels, 24 January 2014, 6; Dr Vowels, 15 May 2015, 5.

[19] Dr Vowels, 24 January 2014, 2; Dr Vowels, 15 May 2015, 2.

[22] Affidavit of Brendan Francis Money, sworn 7 July 2015, [6]; note also [20].

[23] Plea transcript 46-7. See also 29, especially at lines 29 to 30.

[25] Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339.