Director of Public Prosecutions v Jago
[2017] VCC 918
•30 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-02216
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN JAGO |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 June 2017 | |
DATE OF SENTENCE: | 30 June 2017 | |
CASE MAY BE CITED AS: | DPP v Jago | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 918 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea – Armed Robbery – Failure to Answer Bail
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:
Sentence: Community Corrections Order for a period of 2 years and Fine of $250.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E Tueno | Office of Public Prosecutions |
| For the Accused | Mr A Malik | Victoria Legal Aid |
HER HONOUR:
1 Darren Jago, you have pleaded guilty to one charge of armed robbery, which carries a maximum sentence of 25 years’ imprisonment, and one charge of failure to answer bail, which carries a maximum sentence of two years’ imprisonment.
2 The circumstances of your offending were set out in full in the Summary of Prosecution Opening which was tendered on the plea and I sentence you on the basis of the facts contained in that document. I mention them briefly here.
3 On 23 August 2016, at around 7.00 am, in a state of intoxication, you stopped at a reserve to pick up a one-metre long piece of timber, then walked a short distance to a 7-Eleven store in Punt Rd, St Kilda. You waited for a customer to leave the store, asked the attendant for three packets of cigarettes, removed the piece of timber from your pants, held it over your shoulder, and demanded that the attendant give you all the money and all the cigarettes. The attendant took money from the till, which was later calculated to be $300, and gave it to you along with three packets of cigarettes. You put one packet of cigarettes back on the counter and said: “I’m sorry, I’m pissed”.
4 You were arrested later that afternoon, and made full admissions to police, telling them that you were very drunk at the time of the offending. You pleaded guilty at the Committal Case Conference on 19 September 2016.
5 I note that disposal orders are sought for a number of items. You have consented to those orders being made today and I will make them shortly.
6 You have prior convictions in 2010 (fail to answer bail, drunk in a public place, criminal damage), two in early 2014 (drunk in a public place), and several in October 2015 (drunk and disorderly, theft, contravene condition of bail, assault emergency worker on duty, commit indictable offence whilst on bail). The last of these resulted in a 12 months' Community Corrections Order with conditions including 50 hours of unpaid community work, supervision, drug and alcohol treatment and rehabilitation, mental health assessment and treatment and offending behaviour programs. You completed 37 hours of unpaid community work, but failed to engage with the assessment and treatment conditions of the order. You breached this Community Corrections Order by your current offending, and the breach hearing will take place later this year in the Magistrates’ Court.
7 Your personal circumstances were outlined by your counsel and are set out in full in the psychological report of Warren Simmons dated 7 June 2017. You are 43 years old. Your parents separated when you were ten and you moved around after that, living with your grandparents, then your father, then moved from Tasmania to Victoria with your mother. You attended six or seven different primary schools. Your younger sister died from meningitis at the age of 12, when you were 16. After moving to Victoria, you gave up on a potential football career. You completed Year 11 at school with no social, academic or disciplinary issues, but started drinking around that time. You have had two significant relationships, the second of which produced a son, now aged 17, with whom you maintained limited contact until about 18 months ago. You have been paying child support for him. You have worked consistently as a factory hand since leaving school, changing jobs every year or so, when you became tired of the repetitive nature of the work.
8
Your alcohol consumption was high on weekends, but limited during the working week. However, about five years ago you started drinking heavily on a daily basis, to the point when you would drink daily a four litre cask of wine with an additional slab of beer twice on the weekend. You then lost your job. You have reduced your drinking somewhat, but it is still problematic.
Mr Simmons concluded that you currently suffer from Substance Use Disorder, and that your offending behaviour has all occurred in the context of alcohol abuse and the impaired judgment you had whilst intoxicated. He also noted that there are a number of unresolved issues for you including the death of your sister, your sudden move to Victoria, the loss of a potential career in football, and the lack of a stable relationship. He considered that you need ongoing drug and alcohol counselling and that if this succeeds your likelihood of further
re-offending would be decreased.
9 You have also used cannabis since the age of 15, and intermittently used methamphetamines. For the past four years you have been in receipt of a Newstart Allowance and currently live in boarding accommodation, where you are doing very little.
10 In relation to assessing the gravity of the offending, your counsel acknowledged the seriousness of the offence of armed robbery but submitted that a number of relevant factors include that: the offending was spontaneous and unsophisticated; you acted alone; you made no attempt to disguise yourself or avoid detection; there was no actual violence; the weapon used was an object retrieved opportunistically from a nearby reserve; and the value of the property taken was low. In relation to your cooperation with police, your counsel relied on the admissions made upon arrest, your very early guilty plea, your acknowledgment to Mr Simmons that your behaviour may have had a significant impact on the victim, and Mr Simmons’ remark that you did not attempt to justify your behaviour to him, or to use alcohol as an excuse for it, even though, as Mr Simmons wrote “it may very well have impaired his judgment”.
11 In relation to your prospects of rehabilitation, your counsel noted that your first contact with the courts came when you were 36 years old and that your offending between 2010 and 2015 was mainly of a public nuisance kind, related to your consumption of alcohol. In this context, your present offending is out of character with your previous offending.
12
Your counsel acknowledged that by your non-compliance with the current CCO, you demonstrated your failure to take up the chance to address your alcohol dependency. This failure was due to your shame at having to discuss personal matters with strangers, as well as to periods of impaired physical capacity due to back pain. However, your counsel submitted that you have recently
re-engaged with your mother, who was in court to support you. Also present in court was a friend of yours who is a recovering alcoholic and who will assist you in the future to deal with your drug and alcohol issues. You have expressed a recognition that you are at a turning point in your life in terms of the need to address your issues to avoid being sentenced to time in prison and are now willing now to re-engage with Corrections and complete a Community Corrections Order.
13 I requested an assessment by Corrections of your suitability to undergo a Community Corrections Order. By report dated 29 June 2017, you were assessed as suitable to undertake a Community Corrections Order. The author of the report noted that you provided good insight into your behaviour and presented as remorseful for your offending and as willing to undergo counselling and participate in community work. The report noted that the Court may credit your participation in counselling as hours of unpaid community work. The conditions recommended were those I propose to impose, namely, supervision, drug and alcohol treatment, unpaid community work and any offence specific programs.
14 The prosecution provided me with a table of recent cases showing the sentences imposed in this court for armed robbery. The prosecution acknowledged that Community Corrections Orders have been imposed in a considerable number of cases, including cases where weapons such as knives, machetes, hammers were involved, where the offenders were disguised and where there was physical injury sustained by them. However, the prosecution submitted that your offending should attract an immediate term of imprisonment.
15 I accept the matters put on your behalf by counsel. In relation to the gravity of the offending, I consider that offending against a soft target is of particular concern, and the attendant in question can be assumed to have been frightened by the incident. In addition, it is troubling that the offending occurred while you were on a Community Corrections Order and that this is the first time you have committed such a serious offence.
16 However, because your offending was spontaneous, committed alone when you were heavily intoxicated, with a weapon in the form of a piece of timber which you obtained a few moments earlier, did not involve any threats to the attendant nor any violence against the attendant and involved the taking of a small amount of money and cigarettes, I consider that your offending lies at the lower end of seriousness for this kind of offence. You are entitled to a sentencing discount for having pleaded guilty at the very earliest opportunity and for demonstrating genuine remorse. Your prospects of rehabilitation must be viewed as guarded. I note that you have re-engaged with family and a friend, have expressed an insight into the need for treatment of your alcohol addiction and expressed a willingness to engage fully with all the conditions of a Community Corrections Order.
17 Moreover, I note that the Community Corrections Order is a punitive disposition available even in relatively serious cases such as those of aggravated burglary. I consider that having regard to the circumstances of your offending, your lack of related prior convictions, your insight into the need to treat your alcohol addiction and deal with some of your personal issues and your willingness to engage appropriately in a Community Corrections Order, that the interests of the community lie in giving you an opportunity to rehabilitate yourself in the community with the structure, supervision and support which can be provided under a Community Corrections Order.
18 Would you please stand. On Charge 1 of Armed Robbery, you are convicted and placed on a Community Corrections Order for a period of two years.
19 On Charge 2 of Failure to Answer Bail, you are convicted and fined $250. I order a stay of six months on the payment of that fine.
20 In relation to the Community Corrections Order, you will be subject to Supervision, and are required to complete 100 hours of unpaid community work, as well as to undergo drug assessment and treatment, mental health assessment and treatment, and any other offender-specific programs deemed appropriate. All of these will be tailored to deal with the difficulties that you have with your alcohol consumption. I remind you that you are being given an opportunity by this order to address your alcoholism and other emotional issues which are clearly connected to your offending, and that it is vital that you engage with the treatment options provided to you during the order, so as to minimise any risk of re-offending.
21 In addition to the conditions I have specifically imposed, you must also abide by the terms that apply to all Community Corrections Orders. These are: that you must not commit any other offences during the period of the order being in force - that is, two years from today - any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Community Corrections officer. You must report to the Community Corrections Centre at Carlton within two clear working days, which will be 4 July 2017.
22 Also, you must not leave Victoria without first getting permission from a Community Corrections officer and you must inform the Community Corrections Office of any change of address, where you live or work, within 48 hours of that occurring. Finally, you must obey all lawful instructions from, and directions of, Community Corrections officers.
23 Do you understand the conditions I have imposed and the general terms that apply?
24 OFFENDER: Yes, Your Honour.
25 HER HONOUR: Before you consent to the making of such an order, you must understand that contravening of any condition attached to the Community Corrections Order, except for a contravention of a direction by the Secretary, is itself an offence punishable by three months' imprisonment. Contravention of a Community Corrections Order also carries with it the prospect that you will be brought back before me and resentenced for the original offending.
26 Do you consent in those circumstances to the imposition of such an order?
27 OFFENDER: Yes.
28 HER HONOUR: I indicate pursuant to s.6AAA of the Sentencing Act[1] that but for you plea of guilty I would have sentenced you to 18 months’ imprisonment. Take a seat, Mr Jago, I will just sign the relevant orders, thank you.
(Orders signed and acknowledged.)
[1]1991 (Vic)
29 HER HONOUR: You have seen the compensation order?
30 MR MALIK: I have, Your Honour.
31 HER HONOUR: All right. We are just going to change the date of the order. If you want to approach him and explain the terms to him before he signs it. Thank you.
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