Director of Public Prosecutions v Jago

[2023] VCC 182

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 22-01180

DIRECTOR OF PUBLIC PROSECUTIONS

v

THANE JAGO

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	14 February 2023
CASE MAY BE CITED AS:	DPP v Jago
MEDIUM NEUTRAL CITATION:	[2023] VCC 182

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms T. Theocharous	Kurnai Legal

HIS HONOUR:

1Shane Jago, you have pleaded guilty to one charge of false imprisonment, one charge of robbery, one charge of theft, one charge of dangerous and negligent driving while pursued by police and one charge of handling stolen goods.  Those crimes carry maximum penalties as I understand it of 15 years, 20 years, 10 years, three years and 15 years.  You have pleaded guilty to a settled indictment and must get the benefit of that.

2In your situation, having dealt with you on a number of occasions over the years, I suspect that remorse would be pretty problematic, but you must get the utilitarian benefit of that plea, particularly in these times of Covid when it takes a lot of the stress off the court system if people in your position are prepared to acknowledge their guilt and get the matter over with.  You do have a very significant criminal history, much of which is - I have had the dubious honour of sharing with you.  You have been gaoled on many occasions and a couple of times as I recall for exactly this sort of thing, of - essentially as I am reading between the lines here, but essentially grabbing people who are selling drugs and holding them until you get the drugs off them.  I am not going to go into all the detail of that, you cannot do it, you know that and you have been gaoled for it before.

3It is a situation where one is tempted to almost despair, but I have been given great encouragement by Ms Theocharous on your behalf today, in terms of what you have been doing this time in prison.  I think in the past it has always been just holding yourself out against the system as much as you can and trying to fight people off, but it is pretty clear and I will go through this again in a moment, that you are now doing the best you can.  Insofar as the offending is considered, I have read the victim impact statement and I am sure having seen this sort of thing in the past with you, that would have been a very, very terrifying experience for her and I take those matters into account.  But as I have indicated, I also take into account the milieu in which these matters have occurred.

4In any event, the victim in the matter was essentially going to the store.  She had a number of telephone calls with you earlier in the day, I assume what they are about.  But in any event, you drove to where she was, she approached your car, got into the car and you both drove off towards Bell Street in Morwell.  She then soon felt stressed and (indistinct words) a bit weird.  She did not want to go anywhere.  She said she needed to go back and you said 'Fuck you' and kept driving.  That is the false imprisonment.

5You then were driving all over the place.  You were demanding that she give you everything that she had, which obviously refers to drugs and/or money.  You then grabbed her around her throat, pushed her against the side passenger door, again demanding that she hand over everything she had.  At that point, roughly at about that point, perhaps a bit later on, you saw her purse and ended up stealing that.  That gives rise to the charge of robbery, which I have indicated is, to a large extent, part and parcel of the false imprisonment.

6Eventually she jumped out of the car while it was still moving and yelled out for help and a couple of people assisted her.  The next day you bought $85 worth of petrol and drove off without attempting to pay for it.  This gives rise to Charge 3 of theft.  You were on that same day seen by police, who then effectively pursued you.  You were temporarily held up by traffic in front of you, but you drove through the middle of a roundabout, crossed on the wrong side of Hooligan Road and accelerated away.

7You continued to travel on the wrong side of the road.  At a bend you met an oncoming car, but you were both somehow able to avoid impact and you kept driving on the wrong side of the road until police, for obvious reasons of public safety, stopped the pursuit, that is dangerous driving whilst pursued by police.  The car was found abandoned at twenty past eleven, the licence plates had been removed, there's a screwdriver there.  The licence plates that were found were stolen property.  That is handling stolen goods.  There is also a number of uplifted matters.  I think on each of the two uplifted matters, I will just simply give you 14 days concurrent, make it the end of it.

8So that is the offending, it is a very sensibly settled indictment in the end, if I may say so.  It is clearly the matter that you have done before, when effected by ice in that sense of desperation when having been released from prison.  I then, in terms of imposing a sentence indicated during the course of the sentencing indication, I give you 21 months and now having heard more about what has been going on from Ms Theocharous on your behalf, I am satisfied that that is ample in these circumstances.  I am going to give a straight sentence.  I do not think I have to give reasons when it is between 12 and 24 months, but I will.

9The fact of the matter is, that you have no hope of getting parole.  To give you a head sentence then with a minimum term would be farcical.  You are a person whose need for some sort of clarity is very important.  By giving you a straight sentence, you will get an early release date and you will be able to work on that from there and hopefully get into place a system of help if you can for when you get out, whether that can be done through liaison officers and the like, I do not know.

10In any event, the offences are serious, call for the application of general and specific deterrence, denunciation, appropriate punishment.  The situation is that you have now been in custody for 478 days.  I am aware that you have done eight months of that in solitary confinement, which is effectively 23 hour lockdown, seven days a week for eight months.  What the authorities think that is going to do in terms of assisting your rehabilitation is utterly beyond my comprehension, but in any event, I am told by your counsel and accept that since you have been out of that solitary confinement, you have been, probably for the first time I would have thought, endeavouring to utilise your time in gaol to achieve things. 

11Ms Theocharous tells me that you started writing poetry, that you started painting and that you have been sending them to her.  The writing obviously and the painting as often is with Aboriginal men, is a very therapeutic thing which enables you to at least express some of the grief and pain, and sorry business that has never been attended to that has occurred in your life.

12I understand that you have been in the Torch Project and you are going to have some paintings in an exhibition.  In gaol you have now become a peer mentor for young Aboriginal clients and I think you will be a very strong person to be doing that and you also worked in the Koori garden at the MRC, becoming much more conscious of your health and fitness and hope to try and do some sort of personal training when you are ultimately released from prison.  It might not be a bad idea to have a yarn, if that - I do not know if you have fallen out with them or not, but have a yarn with Allen Thorpe and the fellas when you are going to get out and see if they can assist you in setting something up in that regard, or maybe work out where such a position would suit.

13The last time that I sentenced you, I sentenced you - I cannot remember what that was, but upon your release you were to go and live with your mother.  I will not go into that, it will upset you again, but what occurred when you went to Tasmania to meet up with your mother was just absolutely disastrous.  I accept that from what occurred that you were essentially destroyed by it and I can well understand that.  You came back to Victoria, you were living in your car, you were homeless, had nowhere to go, no supports and the inevitable occurred.

14I do accept, however, for the first time, as I said probably you are making a genuine effort, as Ms Cockerill, the psychologist says, to try and get something out of this experience, try to do something about getting yourself a decent life when in the community.  You are clearly institutionalised and I suspect have been for some time and nobody disputes that, in fact you say it yourself, that when you have been out and things go wrong, you just commit offences essentially to get put back in.  That is a dreadful state of affairs and I will not parrot on about that, but for Aboriginal men who have been through your background, it just angers me so much to see this as the end result.

15The reports from Ms Cockerill, the earlier reports from Ms Lechner which I have read previously, I am not going to humiliate you by going into the great detail of all that.  It will suffice to just simply - those who have a genuine interest in the matter, relay a couple of reports or a couple of paragraphs from the reports of Ms Cockerill and Ms Lechner, which I think essentially outline what has been done to you as a boy or a man.

16Ms Cockerill says you are a 41 year old male, indigenous heritage, 'Emanates from a highly dysfunctional background, characterised by exposure to family violence, alcoholism and drug abuse, disrupted attachment, incarceration of caregivers, out of home care and child physical and sexual abuse'.  She went onto say:

'Such an adverse in validating and violence undoubtedly compromises emotional, cognitive and behavioural development and contribute to the ensuing pattern of maladjustment.  Evidence by early onset of alcohol and drug abuse and criminality, which in turn resulted in - continue to result in repeated incarcerations, homelessness, unemployment and impoverished in personal relationships'. 

17You were, she said, raised by your maternal grandparents who you thought were your biological parents until you were the age of 13.  That added to the sense of loss and identity when you finally found out the truth.  You were placed in boys homes when you were very young, at around about the age of 13 and you were sexually and physically abused.  I understand there was an action going on about that at one stage, but I cannot remember.  There is no doubt that that all occurred to a very great degree.

18You were raised by your maternal grandparents as I have said.  You were exposed to the dysfunctional dynamic and there was frequent severe violence between them and your uncles and aunties I would imagine.  Your other family members are alcoholic and drug addicts and many have been incarcerated.  It was at 13 that you found out that your grandparents were not your biological parents and again I will not humiliate you, but you discovered at that point in time, just absolutely compounded by what occurred when you were released last time.  But in any event, it is clear that you got - you have PTSD, you have an antisocial personality disorder and you present with borderline personality traits. 

19She opines and I agree entirely, that the impacts of institutionalisation are massive upon you.  Since you were 17, that is in twenty-four years, you have done something like twenty years gaol and you have been doing that since you were a little boy almost.  She says, and I am grateful for this, that she thinks that what you are doing in gaol now and having been - having had explained to me by Ms Theocharous is genuine and is something that you should be really quite proud of and they are obviously matters I take into account.  Going back to when I sentenced you last time, the report of Ms Lechner essentially says the same thing:

'Mr Jago has a history of complex developmental traumas, undermining his vocation, emotional and social development.  He suffers symptoms of PTSD, he has previously been diagnosed with a bipolar and mood disorder, which at that time I suspect since, has not been treated.  He had borderline being his social personality traits, periods of substance abuse, dependency and abuse'. 

20You have been in and out of prison for most of your adult life.  This is what really concerns me and there is nothing much - you are the one who is going to work this one out I think.  She said:

'He has no social support network or adequate housing.  He suffers a parlous mental health and the absence of intensive support falls back into offending, plus ensuring the predictable prison environment to which he has now habituated'.

21I accept that what Ms Theocharous says that there is, desperate as it may be, a glimmer of hope in terms of what might happen in the future if you are able to turn yourself around and stay out of strife when you are in the community.  The risk of you reoffending if you do not is almost high, there is no other way of describing it.  So I take all of those matters into account Mr Jago and as is so often the case with situations of young Aboriginal and older Aboriginal men, in your circumstances in the end I am left with really no choice but to despair of the system that allows such lives to be created, through an absolute no fault of people such as yourself.

22Anyway enough said about all that.  On Charge 1, twelve months.  Charge two, twelve months.  Charge 3, fourteen days concurrent.  Charge 4, twelve months.  Charge 5, fourteen days concurrent.  I direct that three months of the sentence imposed on Charge 2 and six months of the sentence imposed on Charge 4 be served cumulatively upon each other and upon the sentence imposed on Charge 1.  That gives an effective head sentence of twenty-one months.

23I direct that 478 days be reckoned as having been served under this sentence and I say that but for your plea of guilty, those are somewhat academic in all these circumstances, I would have sentenced you to be imprisoned for a period of three years, with a minimum term of two and I have no doubt that you will have had to do the whole three.  Are there any other orders I have to make?  There is no licence losses I do not think?

24MR MOORE:  What about the summary offences?

25HIS HONOUR:  They are all - 2, 4 and 8 incurrence. 

26MR MOORE:  Sorry.

27HIS HONOUR:  Yes.  There is two I think.  I have made each of them 14 days concurrent.

28MR MOORE:  Yes, thank you.  No that completes the case, Your Honour.

29HIS HONOUR:  Yes all right.  Very well, I will just have a yarn to him and we will get going from there.  Stick with it Thane, this is the best you have done, all right?  And you know it is the best you have done. 

30OFFENDER:  Yeah.

31HIS HONOUR:  I was tempted to give you an extra couple of months for that vest, but decided against it, decided against it.

32OFFENDER:  I want to say ‑ ‑ ‑

33HIS HONOUR:  Stick with it.  Look, you are 41, you are fit, there is still a chance mate.

34OFFENDER:  Can I say to you ‑ ‑ ‑

35HIS HONOUR:  I will let you talk to Tess, she can explain.

36OFFENDER:  I just want to say something - I just want to say something to you.  I'm not (indistinct) - I haven't been on any drugs at least three years now, so it's ‑ ‑ ‑

37HIS HONOUR:  Sorry I can't hear you.

38OFFENDER:  I said I haven't been on drugs now for at least three years, so I've been clean three years now, so - so there hasn't been any drug issues for three years and I know no drugs (indistinct) you know.  No, no ‑ ‑ ‑

39HIS HONOUR:  Yes I see that.

40OFFENDER:  ‑ ‑ ‑ (indistinct), no methadone, nothing.

41HIS HONOUR:  Yes well that's - it's when you get out Thane, it's when you get out mate, all right? 

42OFFENDER:  Yep.

43HIS HONOUR:  But I will let Tess talk to you and she will tell - explain all to you.

44OFFENDER:  All right.

45HIS HONOUR:  You know what's happening.

46OFFENDER:  I understand that.

47HIS HONOUR:  Very well, good one.

48OFFENDER:  Yep, all right.

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