Director of Public Prosecutions v Jago

[2020] VCC 307

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
 Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-01951

DIRECTOR OF PUBLIC PROSECUTIONS

v

THANE JAGO

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	23 March 2020
DATE OF SENTENCE:	23 March 2020
CASE MAY BE CITED AS:	DPP v Jago
MEDIUM NEUTRAL CITATION:	[2020] VCC 307

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S. MacDougall	Office of Public Prosecutions
For the Offender	Ms T. Theocharous	Kurnai Legal

HIS HONOUR:

1Thane Jago, you have pleaded guilty to one charge of theft of a car, one charge of recklessly exposing emergency worker to risk by driving, two charges of conduct of endangering persons, one charge of damaging property and two charges of destroying property.  Those crimes carry maximum penalties of
10 years, 10 years, five years, 10 years, 10 years respectively.

2You pleaded guilty at a reasonably early opportunity and you must get the benefit of that.  I accept that there is a limited degree of remorse in your case but the utilitarian benefit of your plea of guilty has saved a significant deal of trouble and time if a trial had been run.  I understand that your having gone to a committal was not based on a denial of the offending at all; it was simply a situation where the seriousness of one particular charge was under challenge and you have now pleaded to a settled indictment.  As I have said, you must get the benefit of that.

3You have now been in custody for well over 400 days, but the situation is that 60 days of that has been used up on some Magistrates' Court sentences, but I take that 60 days into account in a Renzella way.

4You have a very long and significant criminal history, you have been gaoled many times, and you have been gaoled for years.  On the face of it, the prospects of your rehabilitation are pretty limited.  It is clear to me that – and, again, having sentenced you some two years ago – that you are, if not completely institutionalised, very close to it.  This, it seems to me, is the last chance that is going to be given for you to endeavour to turn your life around.  I think it is important that that happen not just for you, but for the overall community.

5The offending all occurred in one day and there are two uplifted summary matters which I will be dealing with as well.

6On 30 December 2018 police saw you attending certain premises and endeavoured to restrain you.  You left and you went back to those premises after police had left and stole a motor vehicle.  You then, when police came back, drove directly towards them and then swerved onto the nature strip, and that gives rise to part of Charge 2.

7You then, having collided with rubbish bins on the nature strip, narrowly avoided two older people; a Ms Ware and a Ms Waughton, who were standing nearby.  That gives rise to Charges 3 and 4 of conduct endangering persons.

8The police then performed a U-turn in an attempt to arrest you.  You reversed the stolen vehicle directly into the divisional van at around about 30 kilometres per hour, causing extensive damage to the same and rendering it inoperable.  That is also part of Charge 2 and gives rise to Charge 6 of destroying property.  This was witnessed by the two ladies as well as an Andrew O'Connell.  You then drove at fast speed along High Street, towards Carbine Street, where you lost control of the vehicle and hit the front left-hand corner of a unit located in High Street, causing extensive damage to both the unit and the stolen vehicle you were driving, and that gives rise to Charge 5 of damaging property and Charge 7 of destroying property. It was one ongoing incident.

9You got out of the vehicle and fled.  The next day you were arrested by police and gave a no comment record of interview, which you are perfectly entitled to do.  At the time of the offending you did not have a driver's licence.  At the time of the offending you were also on bail from the Moe police station to go to Latrobe Valley Magistrates' Court on 10 January of 2019, and that gives rise to the other summary matter.  I do not think I need to go into any of the other details of it.  There are no compensation orders.  I have obviously read the victim impact statement of Ms Ware and take that into account in determining the level of fear that you caused in an otherwise innocent person.  As I have said, you have a very long criminal history and, again, nothing useful can be achieved by going through all that.

10It is a situation where a gaol sentence is inevitable, as it unfortunately nearly always is for you, Mr Jago.  The Crown submission is a head term and a minimum term, and I think in the normal course of events that would be about right.  The defence submission is that a community corrections order with a gaol sentence would also be available.  I think in the overall circumstances here I am prepared to put you onto a CCO at the conclusion of the gaol sentence, and it is for very simple reasons.  You have never been granted parole, and whilst I do not anticipate what the authorities might do, it seems to me that for you to be released - as you have the last two times that I have dealt with you - with no supervision and no assistance at all, is just simply a recipe for disaster. I think in my sentencing remarks from back in 2018 I pointed out then that you had been released from prison without parole; simply released into the community without supervision, without any assistance.  I asked the Parole Board to give serious consideration to at least giving you some assistance on your release but apparently that never occurred.  In any event, I think a community corrections order offers a far greater protection to the community than having you simply walking out of gaol into who knows what sort of circumstances.

11A number of matters were put on your behalf by your counsel and I have a report from Ms Lechner, who saw you late last year, and obviously I have a detailed knowledge of you from previous appearances before me, and also from various members of your family, who I have dealt with in Koori Court.

12Yours is a very, very unfortunate background indeed.  You, since you have been in gaol this time, have again been working as a billet.  Of some importance is that for the bulk of that period of time you have been in solitary confinement, isolated – only out of your cell for an hour or two a day.  The working as a billet, you tell me from the dock, is washing the clothes for the unit.  That is a very onerous situation for a man to be in; particularly an Aboriginal man with all the difficulties that you have got.  You have attempted suicide in the past and I do not think that would be all that helpful towards it.  I deliberately have not asked why you are in isolation and I do not really need to know.  The fact of the matter is that you have done your 388 days, or whatever it is, far harder than would somebody in a different set of circumstances.

13Your background, as I indicated back in 2018, is classic Bugmy.  An Aboriginal man from Tasmania, you were in care by the age of 11 or 12.  You were out for a period of time and again taken back into care at around 13 or 14.  You were seriously assaulted during that period of time and back then you were seeking compensation for that assault - I do not know whether that culminated in anything or not – and you were placed and made a ward.  You were released from wardship and ultimately came to Victoria – again, with no assistance.  You do have a family here in Victoria.  You have a father in Moe and, as I understand, another relative that you will be able to get assistance from when you get out.

14In fact, despite all the difficulties you did complete Year 12.  There was a period of time in the early 2000s where you hardly offended at all.  It is to be hoped you can get back to those circumstances.  You do not use alcohol to any great extent, and you do not use ice, but you have had a longstanding heroin addiction.  I do not think I need to go through the report of Ms Lechner, I can simply direct that that remain on the court file.

15I recall that the last time I sentenced you you had been the victim of a stabbing - that having been carried out by someone I sentenced a few weeks earlier – and it was clear that that was a very close call, and it is also clear from all the material that you at least had a pre-existing condition of post-traumatic stress disorder accentuated by that experience.  You have been described as having a complex developmental trauma, you have had anti-social personality disorder traits, borderline as well, and as I said, symptoms of PTSD and a reported history of bipolar disorder.  In other words, you have had, since you were very young, a very difficult road to hoe, and unfortunately you endeavour to solve problems by acting out in a very angry manner, or high risk behaviours.  At some stage, if you keep doing this, you are either going to die or someone is going to give you a very, very long sentence indeed, Mr Jago.

16Ms Lechner says at this stage you do appear to have some sort of insight into the origins of your behaviours.  At one stage in regard to this offending, which occurred back in December of 2018, you indicated to Ms Lechner that you thought that a part of it might simply have been trying to get yourself back in gaol.  As has been said a number of times, that is one of the dangers of gaol - that you do not have to make decisions and everything is done for you - and that is essentially almost a definition of institutionalisation.  You yourself believe that you are institutionalised, and you have always had no support when you get out.

17The risk of you reoffending has to be regarded as high.  The prospects of your rehabilitation are really up to you.  I was hoping that the Parole Board might have given you such a chance back two years ago - that did not eventuate – so all I can really do here, in the interests of everybody I think, is give you the opportunity, at least upon release, of going onto a CCO.  I make it very clear to you that – sorry.  And that CCO will have supervision, treatment for drugs, mental health and offending behaviour programs.  Sorry, drugs?

18ASSOCIATE:  The duration of the CCO.

19HIS HONOUR:  Two years, yes.  It is for two years, and that is if you agree to enter into it.  What you are going to need to understand is I am going to gaol you as well.  I am giving you some extra time to get your head around getting out.  Phone calls can be made, things can be put in place, rather than have you simply walking out the door of some gaol somewhere.  But I make it clear to you, Mr Jago, that if you reoffend in this sort of way someone is going to give you a really big serve at some stage.  You just cannot do it.  You know you cannot do it.  So you are going to have to try and do something about it yourself.

20All right, so what I am going to do – and I believe I can do this, because it all happened in the one day.  I will give an aggregate sentence on all the matters on the indictment of 400 days, which means you have got about another 10 days to go.  Ms Theocharous, you can explain to him why I am doing that?

21MS THEOCHAROUS:  Yes, Your Honour.

22HIS HONOUR:  There will then be a two year CCO in the terms I have described, with conviction.  I direct that 388 days be reckoned as having been served under this sentence and pursuant to s.6AAA, three with a two.

23OFFENDER:  So I do another, what, 10 days?

24HIS HONOUR:  About that.

25OFFENDER:  Come on, man.

26HIS HONOUR:  I don't want you just walking out the door.  You get your ‑ ‑ ‑ 

27OFFENDER:  I've got everything organised, that's all.

28HIS HONOUR:  Get your head around getting out.

29OFFENDER:  I've got everything organised already.

30HIS HONOUR:  You talk to Tess, all right?

31OFFENDER:  This is bullshit, man.  Fucking 10 days, Mr Smallwood.

32HIS HONOUR:  You haven't signed it yet.  Summary Charges 7 days on each, concurrent.

33OFFENDER:  There's a chance I'm going to get locked into gaol and not be able to get out of there anyway.  As soon as you get locked down, fucking strewth, I can't get out.  That's what I'm worried about.  Fucking serious.  It's 10 days that I'm going to get fucked in the ass is what it is.  It's fucking bullshit.  It's fucking shit, mate.  It's 10 days and I'm going to be fucking stuck in the city and I can't get back here again.  Yeah, but it's fucking worse for me.  It is worse for me, 'cause I'm fucking stuck in the fucking city again.  This is fucking – you don't understand.  You don't understand.  What have I already told you about before?  That's what's going to happen.  I'm going to walk out the fucking gate into that.  Now you know what I'm talking about?  It doesn't matter, I'm fucked.  As soon as I sign this, I'm screwed.  Fucking bullshit, mate.  Fucking organise everything and just fucked in the ass.  What's 10 days going to do, Mr Smallwood?  No one's going to see me.  I'm just going to get thrown out the gate (indistinct words) 10 days.

34HIS HONOUR:  Some judges would have given you a lot more, Thane.  A lot more.

35OFFENDER:  Yeah, but this fucking ‑ ‑ ‑ 

36HIS HONOUR:  A lot more.  Take him, thank you.

37MS THEOCHAROUS:  Your Honour, there's also the issue of the order and the licence.

38HIS HONOUR:  Licence, two years off the road on the – one and seven days on the theft.

39MS THEOCHAROUS:  Sorry, Your Honour.

40HIS HONOUR:  Good luck, Tess.  I knew that I'm not having him just walk out the door.

41MS THEOCHAROUS:  I understand, Your Honour.

42HIS HONOUR:  No way.  Okay, here we go.  All right.

43TIPSTAFF:  Half past nine.

44HIS HONOUR:  Yes, all right.

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