Director of Public Prosecutions v Jago

[2017] VCC 1797

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01877

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL JAGO

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 November 2017
CASE MAY BE CITED AS:	DPP v Jago
MEDIUM NEUTRAL CITATION:	[2017] VCC 1797

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 D. Glynn
For the Accused	Mr I. Polak

HER HONOUR:

1Daniel Jago, you have pleaded guilty to one charge of threatening to inflict serious injury.  The maximum penalty for that offence is five years' imprisonment.

2The circumstances of your offending are set out in prosecution opening dated 30 October 2017.  The victim of this matter, Thomas Hughes, is the part owner of the Parlour Diner in Chapel Street in Windsor.  You were, at the relevant time, a plumber and living in close proximity to that restaurant.  You had done some plumbing work for the restaurant and were yourself a regular customer.

3Sometime in January of 2015, you had been paid to do some plumbing work at the premises.  That ultimately led to some dispute in relation to whether the work had been left unfinished and it seems clear that there was at least some ongoing animosity in relation to that issue.

4On 8 April at around 9.00 pm to 9.30 pm, Mr Hughes was outside his restaurant with some friends, including a man named Mr. Sirillis.  You walked past and some words were exchanged.  Subsequently, Mr Sirillis got up and followed you up Chapel Street for a short distance, before returning to the location outside the Parlour.

5At about 10 pm, Mr Hughes and some of his friends went to a nearby bar, 56 Bricks.  The Parlour was by that stage closing for the evening and the only persons remaining at the premises were a number of staff.  A staff member named Collette was cleaning outside and turned around to see you walking across towards her carrying a hammer in your right hand.  You were demanding to know where Mr Hughes was, saying, "Where's that fucking cunt?"  You repeated that and said, "I'm going to smash his fucking skull in."  This threat forms part of the charged act.

6Collette told you to leave, and indeed, is described as begging you to leave.  She continued packing up, hoping you would do so.  Instead, you entered the premises armed with the hammer where you approached another staff member and said, "Hey, this is a small community, mate.  I live here and your fuckwit mate, Tom is gone.  He's fucking gone."  At the time, you performed a cut throat gesture with your own hand against your own throat.  It is the combination of these threats which founds the charge to which you have pleaded before this court.

7Subsequently, what is clear is that you were assaulted and indeed, Mr Hughes has been convicted and fined in relation to a charge of intentionally causing injury as regards his conduct in the time immediately following the criminal act which was committed by you.

8You suffered significant injuries as a result of that incident as a whole.  You have fractures to your right eye socket, a fracture to your maxillary bone just above your front teeth, but it was thought that those fractures had been caused by actions which were viewed by the prosecution in previous proceedings as lawful self-defence.  You also, however, had a 7 to 8 centimetre scalp laceration which it seems was caused as a result of the conduct which founded the charge of intentionally causing injury in relation to which Mr Hughes was convicted and fined.

9In my view, your conduct is a serious example of the offence of threatening to inflict serious injury.  It is relevant that you made the threat while armed, which no doubt increased the fear that the threat would be carried out. 

10In my view, you have no relevant prior matters.  I have been told in relation to a subsequent matter involving parties from the same restaurant but that is obviously not a prior conviction for the purposes of sentencing.  It is of course, however, relevant in terms of determining what is required in terms of rehabilitation.

11As regards your background, you were born on 9 July of 1968.  You grew up in Melbourne.  Upon completing school, you immediately entered the workforce and you have what has been described as a very good employment history, having completed an apprenticeship in plumbing and gas fitting.  You have held various positions in various industries including supervising, managing a restaurant at a private hospital in London, as a café supervisor, croupier.  You returned to plumbing and gas fitting where you have worked and owned your own business for the last five years.

12In addition to paid employment, you have engaged in voluntary work, largely in relation to the area of surf lifesaving.  You have also, as a result of your own involvement with Narcotics Anonymous, now completed volunteer work with them, in effect, speaking to others who have difficulties of a similar kind.

13I note in relation to this matter that you had been attending upon a psychiatrist, even prior to the event.  You continue to attend upon Dr Richard Baker on a regular basis.  Dr Baker has provided a report in relation to this matter.  He diagnoses you as suffering from a major depressive disorder with anxiety, chronic pervasive depression and also, since 12 April 2015, post-traumatic stress disorder.

14I note that as a result of the injuries, you have been required to attend upon physiotherapists and doctors as a consequence.  Your condition is described as improving and I have been told that you are hopeful of returning to work as a plumber, you currently being in receipt of very little income.

15In relation to this matter, I must take into account not only matters which have been put on your behalf but other factors which are relevant to sentence.  In my view, this type of offending necessarily attracts a significant element of general deterrence.  We all have a right to go about our business, especially in public places, and not be subjected to this kind of offending.  Any sentence must justly punish you as regards your conduct and be clear in the denunciation of this court in terms of the conduct in which you engaged.  I must seek to deter you from future offending, but in my view, this can be given lesser weight in light of your history.

16The prosecution submit that a CCO is within range with an anger management condition attached.  I note that I have had you assessed but that corrections are of the view that the only appropriate recommendation is for community work, as they form the view that you are a low risk of reoffending.  Nevertheless, the matter is ultimately a question for me and I have acted on that basis.

17Your counsel somewhat boldly submitted to this court that this matter should not attract a conviction.  In my view, there is simply no disposition open which does not include the recording of a conviction in relation to this matter.

18On the single charge of threatening to inflict serious injury, you are convicted and fined $2,500.  I grant you four months to make payment of that amount.  If you cannot pay the amount, speak to Mr Polak and he will tell you what you need to do.  But basically, you need to attend our registry within the four months and seek a payment plan.

19Are there ancillary orders?  I think there were.

20MR GLYNN:  Yes.

21HER HONOUR:  Can you just remind me, Mr Prosecutor?

22MR GLYNN:  The forensic sample and forfeiture or disposal of the hammer.

23HER HONOUR:  Forfeiture and disposal, I assume no issue?  Order in the terms sought.  464?

24MR POLAK:  That is not opposed either, Your Honour.

25HER HONOUR:  Yes, very well.  I just did not bring a copy of that order in.  Can you print it again?  Yes, just print it for me.  I just want to make sure that I have read the relevant parts.  Thank you.  What's the appropriate police station your client to report to now?

26MR POLAK:  Prahran, Your Honour.

27HER HONOUR: Very well, Mr Jago. Could you stand please? Pursuant to s.464ZF(2) of the Crimes Act, you are directed to undergo a forensic procedure for the taking of a scraping of your mouth and/or blood sample in accordance with sub-division 30A of the Crimes Act, until a sample of sufficient standard is obtained to place on the database.

28I further order pursuant to s.464ZF(9) that for the purposes of undergoing the procedure, you report to the officer in charge of the Prahran Police Station during the period of four weeks commencing 28 days after the date of this sentence or once an instituted conviction appeal is finally determined, and the conviction for forensic sample offences upheld, whichever is later.

29In my view, the seriousness of the circumstances of the offending and noting that the order is made by consent, warrant the making of the order.  I find it to be in the public interest.

30I am obliged to tell you that police may use reasonable force to enable that procedure to be conducted.  What that means in simpler terms is, in four weeks from now, a period of four weeks will start and it is those four weeks where you will have to present yourself at the Prahran Police Station.  If you cooperate, it will just be like a big cotton bud that they put on the inside of your mouth.  If they cannot get a sample that is sufficient to place on the database through that method, they may take a blood test.  But usually it is simply a swab of the mouth.

31OFFENDER:  Thanks, Your Honour.

32HER HONOUR:  All right.  I make that order as well.  I will just confirm the address of Prahran Police Station onto the record, which is 396 Malvern Road, Prahran.  Counsel, is there anything else?

33MR GLYNN:  No, Your Honour.

34HER HONOUR:  Thanks very much.  Nine o'clock tomorrow morning.  Thank you.

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