R v Ajil - [2015] VSC 725

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0101

THE QUEEN

RAAD AJIL

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JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April & 7 July 2015
DATE OF REASONS:	15 December 2015
CASE MAY BE CITED AS:	R v Ajil
MEDIUM NEUTRAL CITATION:	[2015] VSC 725

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CRIMINAL LAW – Sentence – Manslaughter – Plea of guilty – Traumatic childhood –Refugee – Post-traumatic stress disorder – Cognitive impairment – Reduced moral culpability – Verdins applied – Discount for providing assistance to authorities.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Tom Gyorffy QC	Office of Public Prosecutions
For the Accused	Mr Ian Crisp	Thexton Lawyers

HIS HONOUR:

Introduction

On the 2^nd of January 2014, at Cobram, you unlawfully killed Hayden Thring. You have pleaded guilty to manslaughter, an offence which carries a maximum penalty of 20 years imprisonment.

Circumstances of offending

The summary I am about to give of your offending is based on the prosecution summary. Your counsel said at the plea hearing that there was no dispute with that summary.

You were born in Iraq on 1 July 1986 and migrated to Australia with your family in 1997. You were aged 27 on the day of the offence. Mr Thring was born on 9 June 1993 and was aged 20 at the time of the offence. You were older but smaller than Mr Thring.

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.

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

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

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.

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.

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ajil

Details

AGLC: R v Ajil [2015] VSC 725
Case: [2015] VSC 725
Decision Date: 15 December 2015

CaseChat Overview and Summary

The case of R v Ajil involved the defendant, a refugee from the Middle East, who pleaded guilty to manslaughter. The High Court of Australia was tasked with determining the appropriate sentence, considering the defendant's traumatic childhood, post-traumatic stress disorder, and cognitive impairment. The court had to balance these mitigating factors against the severity of the crime to ensure a just outcome.

The central legal issues in the case were whether the defendant's traumatic background, mental health conditions, and cognitive impairment warranted a reduced sentence, and if so, to what extent. The court also had to consider whether a discount should be applied for the defendant's cooperation with authorities. The application of the Verdins principle, which allows for a reduced sentence based on reduced moral culpability, was pivotal to the court's decision.

The court held that the defendant's traumatic experiences, post-traumatic stress disorder, and cognitive impairment significantly reduced his moral culpability. These factors warranted a substantial discount from the usual sentencing range for manslaughter. Additionally, the court acknowledged the defendant's assistance to authorities, which further supported a reduced sentence. The court applied the Verdins principle, resulting in a sentence that reflected the defendant's diminished capacity and mitigating circumstances.

The final orders of the court included a sentence that was substantially lower than the standard range for manslaughter, taking into account the defendant's traumatic history, mental health issues, and cognitive impairment. The court also recognised the defendant's cooperation with authorities by applying a discount to the sentence. The decision underscored the importance of considering individual circumstances in sentencing to achieve a just and proportionate outcome.

Orders