Director of Public Prosecutions v Ali
[2024] VSC 601
•26 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0126
S ECR 2023 0129
S ECR 2023 0131
S ECR 2023 0132
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| YUUSUF ALI | Accused |
| AS | |
| MB | |
| MI |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 July 2024, 23 September 2024 |
DATE OF SENTENCE: | 26 September 2024 |
CASE MAY BE CITED AS: | DPP v Ali & Ors |
MEDIUM NEUTRAL CITATION: | [2024] VSC 601 |
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CRIMINAL LAW – Sentencing – Manslaughter – Unlawful and dangerous act – Stabbing – Group attack on deceased – Complicity – Youthful offenders – Guilty plea – Rehabilitation prospects – Exceptional circumstances for Youth Justice Centre Order – The Queen v Verdins (2007) 16 VR 269 – Sentencing Act 1991 (Vic) s 32(2C).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Hayward with Ms S Wallace | Office of Public Prosecutions |
| For Yuusuf Ali | Ms M Brown | Angus Cameron Lawyers |
| For AS | Ms G Connelly with Ms A Balkin | Marshall Jovanovska Ralph Criminal Lawyers |
| For MB | Mr L Richter | Doogue + George Defence Lawyers |
| For MI | Mr M McGrath with Mr W Blake | Slades and Parsons Criminal Law |
HER HONOUR:
Introduction
Yuusuf Ali, AS, MB, and MI, you have pleaded guilty to the manslaughter of Khalid Mahat in October 2022.[1]
[1]Where necessary or appropriate pseudonyms have been used throughout this ruling in accordance with Children, Youth and Families Act 2005 (Vic) s 534.
You have each accepted that you entered into an agreement, arrangement or understanding pursuant to s 323(1)(d) of the Crimes Act 1958 to assault Mr Mahat knowing that during the assault a principal offender would commit an unlawful and dangerous act.
I will begin by recounting the circumstances of the offending.
Circumstances of the offending
In the early hours of 16 October 2022, Abdulahi Abdi (the ‘kidnapping victim’), Khalid Mahat (the ‘deceased’) and others travelled to the family home of MI, in a rented white Toyota Corolla. MI’s sister was inside the house at the time and saw a number of people armed with machetes exit the vehicle. She called ‘000’. The vehicle and its occupants left moments later.
Shortly afterwards, a red Toyota Corolla registered to Yuusuf Ali’s sister, arrived at the address but left without stopping. Police dispatched in response to the ‘000’ call observed this red Corolla pursuing the white Corolla at a rapid speed.
Police apprehended the red Corolla and observed a number of your co-accused inside. Another vehicle, a black Kia, pulled up nearby and police identified three of you (except for you, MB), along with two other individuals, in this vehicle.
Later, in the afternoon, the red Corolla containing Yuusuf Ali, along with two co-accused, was captured on CCTV at Northland Shopping Centre.
Shortly afterwards, the red Corolla was captured parking on a street about 60 metres from the house of the kidnapping victim. Four people, including you, Yuusuf Ali, emerged from the car. The kidnapping victim was approached and threatened with a large knife. The kidnapping victim was then led to a white Toyota Corolla that was in his possession. While you, Yuusuf Ali, are not alleged to be complicit in the kidnapping, your knowledge and presence at these events is relevant to the context of your offending.
The white and red Corollas travelled in convoy to Bundoora Park. After driving deep into the park, the kidnapping victim recalls being told to get out of the car before witnessing knives and being assaulted, including being punched, slapped, humiliated, and struck with a hammer. The kidnapping victim was then pushed into the boot of the white Corolla.
At 2:38pm, the red Corolla, which contained MB and MI, along with two other co-accused, exited the park. Shortly afterwards, at an intersection, AS got into the vehicle along with several other individuals.
Meanwhile, the white Corolla, with the kidnapping victim inside, remained in Bundoora Park for a time, before joining the red Corolla and proceeding in convoy to Yulong Park. The kidnapping victim was once more removed from the car and all four of you accept that you were part of a group that proceeded to surround him and punch, slap, push and kick him in turns.
At the time you were all at the park, the kidnapping victim placed a one minute and eight second call to the deceased.
The prosecution does not allege that any of you were complicit in the assault on the kidnapping victim. However, you were aware of the brutal assault and the kidnapping.
At 3:10pm, the two Corollas left Yulong Park in convoy and, after brief stops, arrived at the address where the deceased was located.
One of the cars beeped and the deceased exited the front door of the residence and stood in the front yard. CCTV footage then shows the white Corolla accelerate forward. Meanwhile, the red Corolla parked and several people exited and headed in the direction of the deceased. A witness, who was inside the property, saw masked people with knives approach the deceased. She witnessed the deceased stabbed at least once before the assailants departed.
The red Corolla then left the scene, while the white Corolla remained in the front yard where it had crashed. No attempts were made to assist Mr Mahat.
Paramedics arrived at 3:45pm and Mr Mahat was declared dead at the scene. An autopsy later revealed that the deceased had suffered at least four separate applications of blunt force trauma to the forehead and skull, at least four separate applications of blunt force trauma to his face, two non-penetrating stab injuries to the chest, 10 stab injuries to the upper limbs and legs, abrasions to the arms and legs, and a stab injury to the left upper chest which was likely the principle cause of death.
Involvement in offending
Each of you has entered a plea of guilty to a single charge of manslaughter on the basis that you entered into an agreement, arrangement or understanding with others to assault the deceased.[2] You accept that you intended to physically assault the deceased and that you were aware that it was probable that a principal offender would commit an unlawful and dangerous act during this assault. However, you did not reach a specific agreement that the assault would involve driving at or stabbing the deceased. Instead, at the time of the agreement, which you each accept was reached at the very latest when you were all present at Yulong Park, you were aware that your co-offenders had knives, and you held a reasonable belief that a principal offender would possibly use one of the knives during the assault. This is the kind of activity that a reasonable person understands would expose the deceased to an appreciable risk of serious injury.
[2]I will use the term ‘agreement’ as shorthand for agreement, arrangement or understanding.
Beyond this agreement, there is little that I can conclude about your individual involvement.
Post-offence conduct
After the attack on Mr Mahat, you and your co-accused, departed the scene of the crime in the red Corolla and drove to Edgars Creek. You agree that you spent 30 to 40 minutes at this location.
Shortly after leaving the creek, a photograph was taken of you, Yuusuf Ali, posing topless and tensing your biceps. The grey hooded jumper with a red ‘Michael Jordan’ graphic that you had been wearing was recovered from Edgars Creek by police when they conducted an extensive search between 20 and 21 October 2022.
A black Nike tracksuit, distinctive black Nike runners, and a Nike tech jacket with a black ‘V’ across the chest was also recovered from the creek and belonged to you, MI.
Victim Impact Statements
Before I continue, it is important that I say something about the effect your offending has had on others. I have received several compelling and powerfully written victim impact statements from various members of Mr Mahat’s family.
Mr Mahat’s mother, Zahrah, has had her life changed forever. She writes of the special bond between mother and son, and how Mr Mahat was the ‘light of her life’. That light has now been extinguished by his senseless and tragic death. She wakes up every morning, checking to see if his car is parked outside, and hoping this has all been a terrible nightmare. Burying a child is a pain that no parent should have to endure.
Mr Mahat’s father, Mohamed Muhumed, describes how he and his family feel they are no longer safe in their community. He is unable to sleep at night. Seeing the horrific injuries inflicted on his beloved son was traumatic and has taken a toll on his mental health. He is at times overwhelmed with grief and cries uncontrollably.
Ms Faiza Mahat never imagined losing her younger brother in these circumstances. Since his death, Ms Mahat has been plunged into what feels like an endless depression. She has been prescribed sleeping tablets to cope with the pain and had to take six months off work.
Ms Asiya Mahat, Mr Mahat’s younger sister, speaks of an emotional toll that has been tremendously difficult to bear. Her brother was her best friend. She misses his laugh and his beautiful smile the most. Mr Mahat’s death has not only caused her to live in constant fear but has impacted her VCE studies and she has lost friendships, as she no longer trusts people in her community.
Ms Kalthuma Mahat was only 14 years old when her older brother was killed. He was her role model, and taught her about kindness, courage, and the importance of standing up for what is right. His absence has left a hole in her heart that will never fully heal. Her grief and trauma have impacted her VCE studies and her relationships with her friends. She writes that her family has been torn apart by this senseless act of violence.
I have referred to the victim impact statements to properly acknowledge and appreciate the enormity and enduring impact of the serious crime you have committed.
General Comments
Before I turn to consider each of your personal circumstances, I want to make some general comments that have application to each of you. You are all charged with manslaughter, which carries a maximum sentence of 25 years’ imprisonment. Manslaughter is also a ‘Category A serious youth offence’,[3] and therefore, I must not impose a Youth Justice Centre Order unless I am satisfied that exceptional circumstances exist.[4]
[3]Sentencing Act 1991 (Vic), s 3 (‘Sentencing Act’).
[4]Sentencing Act, s 32(2C). Because each of the accused is under the age of 21 at the time of sentence, they are deemed to be a ‘young offender’ in accordance with s 3 of the Act. Further, as they are each over the age of 15, they are not eligible for a youth residential centre order, in accordance with s 32(2B).
Manslaughter is a serious offence and I consider that your offending has serious features. You appeared to engage in your conduct as an act of retaliation. The attack was not impulsive and clearly premeditated.
Although I accept that you were not involved in the kidnapping, you were all part of the broader group and became party to an agreement to assault the deceased by the time you were at Yulong Park. You were aware that your co-accused were in possession of knives, and witnessed the brutal assault inflicted on Mr Abdi. You were all present at the scene when Mr Mahat was killed. Mr Mahat was rendered defenceless when the white Corolla deliberately ran him down. He was then attacked and stabbed while surrounded by a group of people.
The agreement you reached at Yulong Park set in motion a series of events that ultimately led to Mr Mahat’s tragic death. Mr Mahat was just 25 years old when he died. Considering this, the objective gravity of the offending is at the higher end.
The next relevant matter is your age. The youth of an offender is a primary sentencing consideration.[5] For the purpose of determining whether you are considered ‘youthful’, your age is to be considered at the date of sentencing.[6]
[5]R v Mills [1998] 4 VR 235, 241 (Batt JA).
[6]Ibid.
Yuusuf Ali, at 20 years and 5 months old, you are the oldest of the four of you. MI, at 19 years and 4 months old, you are the second eldest of the group. MB, at just over 19 years old, you are the third eldest of this group. AS, you are 18 years old and two months, and the youngest of the group.
I accept that each of you is significantly less to blame for your conduct than an adult who had behaved in the same way.[7] Your youth is significant to an assessment of your prospects of rehabilitation. I consider your youth at the time of the offending, and at the time of sentence, a relevant mitigating factor. Nevertheless, you have committed a serious crime in serious circumstances and the weight to be given to your age must be appropriately moderated.
[7]See CNK v The Queen (2011) 32 VR 641, 661 [71].
You are all also entitled to a sentencing discount on account of your pleas of guilty, which were entered at an early opportunity. Your plea facilitates the course of justice and serves a utilitarian value, avoiding the need for what could have been a lengthy trial, and one which would no doubt have been distressing for Mr Mahat’s family and friends. This incident occurred almost two years ago. You were all initially charged with murder. It was not until June and July this year, following sentence indications given by me, that you pleaded guilty to the charge of manslaughter. Given your age and as a matter of fairness, your sentences should reflect that you have had a charge of murder hanging over your head for almost 18 months.
Each of you has either been involved in incidents while in custody or you have committed further offending whilst on bail. I emphasise that in determining your sentence in the present case, I do not take into account, by way of aggravation, your involvement in that conduct. However, those matters are relevant to an assessment of your prospects of rehabilitation, which I will discuss later in these reasons.
There are other factors that I am required by law to consider when imposing a sentence.[8] General and specific deterrence, denunciation and just punishment require some recognition in determining your sentence. Those objectives will be met by the imposition of a custodial sentence. General and specific deterrence are particularly important sentencing considerations in this case. The offending was carried out in the middle of the day and involved the use of knives. This type of offending has reached a concerning level in our community. It must be made clear that it is unacceptable for young people to take matters into their own hands and to resort to such terrible conduct. It is important that my sentence reflect the Court’s, and the public’s, condemnation of such violence.
[8]Sentencing Act, s 5(1).
Community protection is also an important consideration. However, this is firmly linked to your rehabilitation, which I consider can be achieved through targeted programs for you.
I have had regard to current sentencing practices, particularly the sentences in DPP v ST,[9] DPP v JA & Ors,[10] and R v KV.[11]
[9][2023] VSC 49.
[10][2023] VSC 531.
[11][2022] VSC 805.
I have also had regard to the common law principle of parsimony, reflected in statute,[12] and I have not imposed sentences on you that exceed the sentencing purposes.
[12]Sentencing Act, s 5(3).
I will now turn to consider your personal circumstances, beginning with you, Yuusuf Ali.
Yuusuf Ali
Personal circumstances
You were 18 years old at the time of the offending and are now 20 years old.
You were raised in a supportive family with your siblings. Your parents separated when you were about 10 to 12 years old, and you subsequently moved between their two households. You have remained in contact with your parents while on remand.
You attended school until Year 9, after which you studied building and construction at TAFE. While there is some conflicting evidence, it seems you do not have any substantive employment history.
You were first introduced to cannabis by friends at age 14. This eventually developed into daily use, which continued up until your remand. Similarly, you began using Xanax at age 16, which you took daily until you were prescribed Lyrica following an injury in 2022. Subsequently, Lyrica also became a daily habit. You have never received treatment or rehabilitation for your drug use.
In May of 2020, you were the victim of a stabbing. You suffered a punctured lung and required hospitalisation. The mental impacts of this event on you are apparently ongoing as you reportedly still ruminate on the stabbing.
The Court was assisted by a psychological report prepared by Mr Jeffrey Cummins. Mr Cummins is of the opinion that you may suffer from Post Traumatic Stress Disorder (‘PTSD’) and an antisocial or narcissistic personality disorder. However, these possible diagnoses could not be taken further. Mr Cummins found it difficult to assess your risk of future offending. Nevertheless, he concluded that you are at least a moderate risk of committing a further violent offence. He hopes you will access some anger management support in custody.
Criminal history and previous character
You have no prior criminal history. However, you do have a pending matter, allegedly committed after this offending and whilst you were on bail for a charge of murder.
A number of character references were filed with the Court, indicating that you are generally regarded by those around you as a young man of good character. Some of these letters indicate that your behaviour markedly changed after you were stabbed.
Sentencing considerations
I turn now to sentencing considerations. I consider your moral culpability to be of a high degree. You were present when Mr Abdi was kidnapped. In addition to your agreement with your co-offenders, you discarded items of clothing in a nearby creek and proceeded to pose topless for a photograph, flexing your arms. You appeared almost unaffected in what the prosecution submits was a ‘celebratory’ photo taken shortly after your involvement in a serious crime.
Your counsel submitted that your prospects of rehabilitation are good by virtue of your young age and your strong family supports. Unfortunately, Mr Cummins’ report and the Youth Justice Suitability Report prepared by Adrees Shah paint a very different picture. While I accept your counsel’s submission that I must not entirely close off any optimism for your rehabilitation, it would fly in the face of reason to ignore the opinion of these relevantly qualified individuals who have interviewed you.
The suitability report prepared by Adrees Shah indicates that you have been involved in incidents while you have been on remand in adult custody, including two that have resulted in you being placed into isolation. You have not participated in rehabilitative programs available to you in prison and have shown only brief engagement in education programs. I accept Mr Shah’s assessment that you demonstrate a ‘disconcerting lack of insight’. At present, you are only considering the impact that the offending has had on you, and this can only leave me guarded about your prospects of rehabilitation
Your timely plea of guilty indicates some degree of remorse for your involvement in this offending and serves a utilitarian purpose. At the same time, you indicated to Mr Cummins that the offending was ‘tit for tat’ and you otherwise refused to discuss the circumstances. More troublingly, you suggested to Mr Shah that the deceased was not an ‘innocent victim’ and that ‘you win some, you lose some’. At this point in time, I consider that you display little more than a cursory sense of remorse.
Youth Justice Centre Suitability
Mr Shah’s report finds that you are unsuitable for a Youth Justice Centre Order, because neither your prospects of rehabilitation nor your current experiences in adult gaol indicate that your circumstances favour such an order.[13]
[13]Pursuant to the Sentencing Act, s 32(1).
Although it is open to me to make such an order despite the report, I am not satisfied that exceptional circumstances exist to justify such a decision. You are at the upper age limit of offenders for whom such an order is available, and no evidence before me indicates that adult prison will prove more onerous on you or will hinder your rehabilitation.
AS
Personal circumstances
AS, I now turn to your personal circumstances.
At the time of your offending, you were 16 years old. You are now 18 years old.
Your parents are from Somalia. Prior to your arrest, you were residing with them and your siblings. Your family has provided letters of support to the Court. You were raised as part of a very loving family, and still maintain a close relationship with them.
You frequently moved schools as a child and reportedly found it difficult to pay attention in class. This disengagement ultimately coincided with the period of remote learning during the COVID-19 pandemic, and you ceased attending entirely at the start of Year 10. Instead, you commenced an apprenticeship in carpentry. You worked in that capacity for several months prior to your remand and resumed that apprenticeship whilst on supervised bail. Unfortunately, you re-offended on bail and were returned to custody.
Mental health
You were assessed by clinical psychologist Ms Carla Lechner in July 2024. Ms Lechner found you to be an emotionally and socially immature young man, easily influenced by peer pressure. Since being on remand you have been diagnosed as having attention deficit hyperactivity disorder (‘ADHD’), and verbal cognitive skills in the borderline range, explaining your learning difficulties. You are now prescribed medication for the ADHD and are engaging well with appointments.
Criminal history and previous character
You have no prior convictions, although you have previously been dealt with for a number of matters, largely involving property offences, in the Children’s Court. Concerningly, a number of these matters are offences committed while you were on bail.
Sentencing considerations
I turn to sentencing considerations. You were not present when Mr Abdi was initially kidnapped, nor when he was assaulted at Bundoora Park. However, other details go to your moral culpability. You knew of the kidnapping. You knew about the assault on Mr Abdi at Yulong Park. You knew that the attack on Mr Mahat proceeded with the use of knives. I therefore assess your moral culpability at the mid to high end.
You first offered to resolve the matter to a similarly serious charge in November 2023. This offer was made prior to the preliminary hearings, in which you did not participate. The offer was rejected in April of this year, and you subsequently offered to plead guilty to manslaughter on 9 May 2024.[14] You were the first of the group to seek a sentence indication. In these circumstances, it must be said that your plea of guilty was at the earliest opportunity and carried real utilitarian value.
[14]This date was before the case conference.
I consider that your plea of guilty carries with it a degree of genuine remorse. Your remorse and insight into your actions is further borne out in your statements to Ms Lechner and to Ms Kiara Cameron from Youth Justice. You have reported feeling sick with shame and guilt at your involvement in the offending, and the impact it has had on both Mr Mahat’s family and your own family.
Suitability for Youth Justice Centre Order
Ms Cameron’s Youth Justice Suitability Report, dated 9 September 2024, indicates that you have some prospects of rehabilitation, and that your immaturity would make you particularly impressionable and susceptible to negative influences in an adult prison. She has assessed you as suitable for a Youth Justice Centre Order.
During your time on remand, you have engaged well with literacy and numeracy classes and in behavioural programs. Your home environment is stable, and you report having a close and loving relationship with your family. Ms Lechner assessed you as a low to moderate risk of reoffending.
You have been involved in a number of reported incidents while on remand that are of some concern. However, as was noted in Ms Cameron’s report, on many occasions you were not the instigator or main perpetrator. You appear to have settled following your ADHD diagnosis and the commencement of treatment. In addition, you have demonstrated a willingness to engage in programs and assessments whilst in custody to further your rehabilitation.
Ms Cameron’s opinion is that you have ‘some’ prospects of rehabilitation, and based on the information before me, I would agree that your prospects are at least reasonable, if not good.
I consider that there are exceptional circumstances justifying the imposition of a Youth Justice Centre Order in your case. The support for this conclusion derives from a number of factors, including your youth, early guilty plea, lack of prior convictions, supportive family, positive engagement with Youth Justice, diagnosis of ADHD, and cognitive difficulties. Your prospects of rehabilitation and vulnerability to negative peer influences call for the imposition of a Youth Justice Centre Order.
MB
Personal circumstances
MB, I now turn to your personal circumstances. At the time of your offending, you were 17 years old. You are now 19 years old.
Your parents are from Somalia and migrated to Australia in the mid-1990s. You were born in Australia. You have three older siblings. You also had a younger sister, who sadly passed away in infancy. The effects of this loss caused your parents to separate around this time.
You are reportedly close with your mother and two older sisters. You have continued to communicate daily with your mother while on remand. You had little contact with your father following your parents’ separation and felt rejected and abandoned by him. However, you reconnected with your father in 2019 and he is supportive of you in custody.
Prior to your remand, you were attending a local secondary school. You apparently experienced attention difficulties but received average grades. You were extremely introverted and shy as a child, which made school difficult and led to behavioural difficulties. Nevertheless, you completed Year 12 as part of the VCAL program and commenced a plumbing apprenticeship. While on remand you have continued your studies to improve your numeracy and literacy. You are reportedly a ‘deeply valued’ and dedicated student of the Umoja African diaspora cultural program at Parkville College.
There have been a number of incidents in your time on remand, however this behaviour has reportedly settled since you have begun to engage with Orygen mental health services.
Mental health and Verdins
The Court was assisted by a psychological report of Ms Carla Ferrari dated 26 August 2024. While she notes that you have a limited psychiatric history, Ms Ferrari identifies that you have likely been experiencing symptoms of Persistent Depressive Disorder, Generalized Anxiety Disorder and Social Anxiety Disorder prior to the offending, making you more susceptible to peer pressure and negative influences. She said that since being on remand you are experiencing severe Post Traumatic Stress Disorder (‘PTSD)’ symptoms arising from your involvement in the offending. This diagnosis is confirmed in the Youth Justice Suitability Report dated 13 September 2024, which conveys that you are receiving medication and therapy from an Orygen psychiatrist for the PTSD.
Ms Ferrari conducted a risk assessment and considered that you are a moderate risk of future violence.
Your counsel submitted that your diagnoses enliven limbs 2, 5 and 6 as articulated in The Queen v Verdins.[15] These limbs call for the mitigation of your sentence to reflect that a sentence will prove more burdensome due to your mental health. I accept that your time in custody will be more onerous because of your mental health and that this ought to mitigate your sentence. At the same time, any mitigation must be suitably tempered by an understanding that that you are receiving treatment for the escalation of these symptoms for the first time and, in the words of your counsel, you have ‘turned the corner’. A positive response to treatment is understood to reduce the perceived burden.[16] In terms of your sentence exacerbating this condition and the type of sentence, I consider that this is best addressed in the determination of a Youth Justice Centre Order.
[15](2007) 16 VR 269.
[16]Ibid, [83].
Criminal history and previous character
You have no prior convictions. However, you have subsequently been dealt with for other matters, largely involving property and bail offences.
Sentencing considerations
Turning to sentencing considerations, I accept that your psychological susceptibility to peer pressure reduces your moral culpability to some degree when compared to your co-offenders. I have taken into account that you were not present when Mr Abdi was initially confronted and kidnapped. However, you knew about the kidnapping and the assault on Mr Abdi and you knew that the attack on Mr Mahat proceeded with people having knives. I therefore assess your moral culpability at the mid to high end.
You have indicated to those around you that you are ‘determined to do better’ upon your release from custody and that you feel bad about your involvement. You have expressed sadness for the family of the deceased, although you have minimised your own involvement in the offending. You have pleaded guilty at an early opportunity and this serves a utilitarian value and indicates a further degree of remorse
Unfortunately, you re-offended while on bail and were returned to custody. You have expressed a desire to undertake a plumbing apprenticeship upon release, and it seems that you are getting the opportunity to confront some mental health issues and this has lessened your behavioural issues while on remand. If you continue on the current trajectory, I consider your prospects of rehabilitation are good.
Youth Justice Suitability
The suitability report of Ms Leanna Iacopino, dated 13 September 2024, indicates that you have reasonable prospects of rehabilitation, and that you would be very vulnerable in an adult custodial setting. You have therefore been assessed as suitable for a Youth Justice Centre Order.
I accept the assessment in the suitability report. As I have said, I consider that your prospects of rehabilitation are good. I take into account that your mental health diagnoses calls for a sentence that does not exacerbate your conditions further, and that you are particularly impressionable to influences because of your conditions. As a result, I consider these are exceptional circumstances that warrant a Youth Justice Centre Order.
MI
Personal circumstances
I now turn to you, MI.
At the time of your offending, you were 17 years old. You are now 19 years old.
Prior to your birth, your parents lived in Somalia. During the civil war, they fled to Kenya, where you were born. Your family migrated to Australia the following year.
You share a close relationship with your family. You completed your Year 12 equivalency in 2023 and subsequently commenced a carpentry apprenticeship in January of this year, although you have had to temporarily cease working due to an injury. You volunteer with a local community centre and mosque twice a week. You have recently indicated an intention to pursue a Bachelor of Marketing when you are released from custody.
You have been involved with your local soccer club since your early youth, and although you no longer play, you still assist with training and the running of games.
You have demonstrated particularly good progress and compliance with your Youth Justice Supervised Bail for an extended period.
Mental health
You were assessed by Ms Carla Lechner in July 2024. You do not present with any underlying psychological or psychiatric illnesses, substance abuse problems, or cognitive impairments. Ms Lechner considers that you are a low risk of re-offending.
Criminal history and previous character
You have no prior, or subsequent, convictions.
Sentencing considerations
In terms of sentencing considerations, your counsel did not submit that your moral culpability was at the lowest end, however, it was contended that it was certainly at the low to mid-range.
It was accepted by your counsel that you were motivated to engage in the assault on Mr Mahat, due to his earlier attendance at your residence. However, it was submitted that the evidence of motive does not necessarily speak to moral culpability.
You indicated to Ms Lechner that you got caught up in the offending and were ‘shocked’ at how the events turned out. However, at a later assessment by Youth Justice, you suggested that you were asleep and could not remember anything. This inconsistency gives me some concern. I consider your moral culpability is at the mid to high end.
You have pleaded guilty at an early opportunity and in your conversations with Ms Lechner and Youth Justice, it appears that you have expressed a genuine sense of remorse about your involvement in this offending, and the impact it has had on Mr Mahat’s family.
Youth Justice Suitability
The Youth Justice Suitability Report of Ms Kiara Cameron, dated 11 September 2024, indicates that you have good prospects of rehabilitation, and that you are susceptible to negative influences. You have therefore been assessed as suitable for a Youth Justice Centre Order.
Unlike your co-offenders, you have remained on bail since April 2023. You have engaged consistently with your appointments while on bail and have reportedly had no further involvement with police. This is a significant achievement and speaks very positively to your prospects of rehabilitation.
In your own opinion, and the opinion of those around you, you have matured considerably since the offending. You have indicated a desire to better yourself, focus on your personal goals, and to stay out of trouble. It appears that the aftermath of your involvement in this offending has been a salutary experience for you. You have clearly set yourself up on an alternative path, and your prospects of rehabilitation now are good, if not very good.
You told Ms Cameron that you understand you will be returning to custody but have indicated that you intend to utilise that time by accessing services to help you to move on with your life. Regrettably, if you are returned to detention, your rehabilitation will be interrupted. On the one hand, it is hard to see how your rehabilitation is best served by returning you to detention. On the other hand, your rehabilitation is not the only consideration. As I have said, sadly, the circumstances surrounding Mr Mahat’s death appear more common - that is, teenagers in groups going to a confrontation armed with knives. The tragic result is that people, often young people, are killed. In my view, a sentence that consists of no further period of detention cannot and would not meet all the sentencing requirements.[17]
[17]I have had particular regard to the cases of DPP v KV [2022] VSC 805 and DPP v ST [2023] VSC 49 in reaching the sentence for MI.
I am satisfied that exceptional circumstances exist justifying the imposition of a Youth Justice Centre Order in your case. Although you have matured significantly in the last two years, your relative youth would leave you particularly susceptible to negative influences in adult custody. Placing you in that environment would evidently be counterproductive to the rehabilitative gains you have made. You have engaged very well with Youth Justice, have no criminal history, and have a supportive family.
I will now sentence each of you.[18]
[18]For each offender, I direct that there be noted in the records of the Court the fact that I have made a declaration as to days served and the details. Pursuant to s 6AAA of the Sentencing Act, I have also specified the sentence I would have imposed but for the plea of guilty by each offender.
Yuusuf Ali sentence
Yuusuf Ali, would you please stand.
For the offence of manslaughter, I sentence you to four years’ imprisonment.
I order that you serve two years and nine months before becoming eligible for parole.
Further, I declare that the period to be reckoned as already served under this sentence is 635 days, not including today’s date.
But for your plea of guilty, I would have sentenced you to six years’ imprisonment with a non-parole period of four and a half years.
AS sentence
AS, would you please stand.
For the offence of manslaughter, I sentence you to a three year Youth Justice Centre Order.
Further, I declare that the period to be reckoned as already served under this sentence is 492 days, not including today’s date.
But for your plea of guilty, I would have sentenced you to five years’ imprisonment with a non-parole period of three and a half years.
MB sentence
MB, would you please stand.
For the offence of manslaughter, I sentence you to a three year Youth Justice Centre Order.
Further, I declare that the period to be reckoned as already served under this sentence is 429 days, not including today’s date.
But for your plea of guilty, I would have sentenced you to five years’ imprisonment with a non-parole period of three and a half years.
MI sentence
MI, would you please stand.
For the offence of manslaughter, I sentence you to a two year Youth Justice Centre Order.
Further, I declare that the period to be reckoned as already served under this sentence is 141 days, not including today’s date.
But for your plea of guilty, I would have sentenced you to detention in a Youth Justice Centre for a period of four years.
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