Director of Public Prosecutions v Jago
[2013] VCC 1691
•30 August 2013
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for PublicationAT LA TROBE VALLEY
CRIMINAL DIVISION
Case No. CR-13-01216
DIRECTOR OF PUBLIC PROSECUTIONS v THANE FRANCIS JAGO ---
JUDGE:
HIS HONOUR JUDGE CARMODY
WHERE HELD:
La Trobe Valley
DATE OF HEARING:
26 August 2013
DATE OF SENTENCE:
30 August 2013
CASE MAY BE CITED AS:
DPP v Jago
MEDIUM NEUTRAL CITATION:
[2013] VCC 1691
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW – Sentence.
Catchwords: Robbery – armed robbery – intentionally cause serious injury – delay – totality – drug induced offending.
Sentence: Total effective sentence is three and a half years imprisonment with a non‑parole period of two years imprisonment.
---
APPEARANCES:
Counsel Solicitors For the DPP For the Accused HIS HONOUR:
1 Thane Francis Jago, you have pleaded guilty to two charges of robbery, one charge of intentionally cause injury and one charge of armed robbery. The charges of robbery have a maximum penalty of 15 years' imprisonment. The charge of intentionally cause injury has a maximum penalty of ten years' imprisonment and the charge of armed robbery has a maximum term of imprisonment of 25 years' imprisonment.
2 Your counsel has agreed that the prosecution opening in the summary form, which is Exhibit 1 in the plea, accurately sets out your offending on 26 and 27 October 2011. The offending can only be described as serious.
Charge 1, this is the robbery of Lauren Giles.
3 On Wednesday 26 October 2011, you and Sarah Stanford were in the Morwell area consuming alcohol. At approximately 8 pm, you were walking east along Commercial Road, Morwell, when you came upon Lauren Giles, who was then 29 years old, a female known to both of you. Stanford approached Giles and accused her of owing her money. Stanford demanded that Giles hand over cash. Giles Stanford said she had no money and tried to walk away. You have then grabbed Giles, pulling her handbag from her grasp.
4 The accused, that is you, and Stanford then walked away with the victim's handbag which contained $45 in cash, 20 OxyContin tablets, a mobile phone and assorted personal items. The value of the property stolen from Giles was approximately $200.
5 Some time later, you and Stanford went through the handbag, divided the property between the two of you, and you keeping the OxyContin tablets for yourself. You both have then parted company.
6 The aggravating features of this offence are that you knew your victim and robbed her of her personal property whilst in the company of Sarah Stanford. This type of street offending is common and raises the need for consideration of general deterrence. I have been told that your co‑accused was young and has been dealt with in the Children's Court.
Charges 2 and 3 are related offences when you have robbed and assaulted Bob Metcalfe on that same day, 26 October 2011.
7 After the incident with Ms Giles, later the same night, you caught a taxi to 7 Tolmie Street, Morwell which at the time was occupied by Bob Metcalfe, Nadia Lucjenakov and their infant daughter. You arrived at the house at 11.10 pm. You were invited inside by Metcalfe and Lucjenakov.
8 Shortly after arriving you had a seizure and collapsed. Mr Metcalfe assisted you until you recovered. You then showed Metcalfe the OxyContin tablets and bragged that you had bashed a girl to get them. Metcalfe then asked you to leave the house and after you had made a phone call to a friend to pick you up, you shook hands with him.
9 Before you left, you formed the view or opinion that the OxyContin tablets that you had stolen and the sunglasses were missing. You accused Metcalfe of stealing them and immediately flew into a range forcing Metcalfe on to the floor and repeatedly punching him to the face. You then stole two mobile phones belonging to Metcalfe and Lucjenakov and $302 cash. You left with an acquaintance who was waiting outside.
10 As a result of this assault, Metcalfe sustained severe bruising and swelling to his right eye, the right side of his face and to his nose.
11 As I have said before, these offences occurred on the same night as Charge 1. Similarly, you attacked a person known to you. This occurred in the victim's home after he had assisted you when you had suffered a seizure.
12 It is unclear if the seizure was brought on by a combination of alcohol and drug intake by you on that night. The injuries to your victim are bruising and swelling to the eye and face. There is no evidence to support a proposition that your culpability for these offences is less because you have offended when you have recovered from the seizure.
Charge 4 is the armed robbery at Advantage Pharmacy
13 The following day, 27 October 2011, at approximately 2.17 pm, you went to see Dr Fred Edwards at the Hazelwood Health Centre in Churchill. You had been to Dr Edwards two days earlier and had been prescribed OxyContin for pain relief sufficient for ten days.
14 You claimed you were in severe pain and had used all your medication prescribed by Dr Edwards on the previous two days. Dr Edwards refused your request to prescribe further drugs and you left the medical centre in an agitated state.
15 You then walked to the Richies Super IGA supermarket and selected a large kitchen knife from the shelf. You place the knife down your shorts and walked out of the store without making any attempt to pay for it. You have walked from the supermarket to the nearby Advantage Pharmacy. You removed your thongs outside and then entered the pharmacy still in possession of the knife. You then immediately approach the pharmacist, Ian Pockney, and grabbed him by the front of his coat. You produced the knife and pushed the pharmacist against the serving counter. You demanded to be shown where the morphine was kept.
16 Mr Pockney took you to the rear of the store, whilst you still had him by the coat with the knife to his chest. At the rear of the store Mr Pockney pointed out where the open safe was which contained the OxyContin tablets. You let go of Mr Pockney, scooped up as many boxes of OxyContin as you could manage and ran out of the pharmacy.
17 The wholesale value of the OxyContin tablets stolen by you is $150.
18 Mr Pockney sustained no physical injuries during this offence.
19 This is offence is the day after the offending in charges 1, 2 and 3. You were becoming a one‑man crime wave by your actions. OxyContin tablets are the common factor in each of these offences.
20 The offending of armed robbery has a degree of planning to it in that you have stolen the knife from the supermarket and then gone to the pharmacy and used it to rob the pharmacist. The threat of using the knife is a very concerning factor here. Your health professionals but more particularly the pharmacist in this case, are entitled to expect reasonable treatment from you when all they are interested in is your welfare. You have just overridden those considerations in pursuit of obtaining morphine. Fortunately, the pharmacist did not sustain any physical injuries. That is probably due to good luck rather than any good management on your part.
Post offence behaviour
21 You obviously knew the police would be looking for you after this rash of criminal activity against people that you knew well and could identify you as the offender. So, you have hit the road.
22 At approximately 10.40 on 28 October 2011, you were arrested in New South Wales at Eden. Subsequently detectives from Victorian police attended at Batemans Bay police station on 31 October 2011 and conducted an audio visual record of interview with you. During the interview, you have made full and detailed admissions regarding your involvement in the offences.
23 You have cooperated with the police and made admissions to your offending. You were committed for trial on 27 June 2013. I have been told that the reason for the delay between 31 October 2011, the date of your arrest, and the committal date is that you were serving a prison sentence in New South Wales.
Personal circumstances
24 You are now 31 years old. You have an unsettled family life. You have been estranged from your mother and stepfather since you were approximately 15 years old.
25 At the age of 13 to 15 you were told your stepfather was not your biological father. It was put on your behalf that this has set you on a path of cannabis and alcohol abuse. Originally you moved with grandparents to Tasmania.
26 By the age of 15 you were an uncontrollable teenager and in 1997 you were made a ward of the state in Tasmania. You were sent to Ashley Detention Centre. At Ashley Boys' Home, as it is known, you were abused physically, sexually and emotionally. It was said your heavier and more serious drug abuse started at that time. Your only support from family is your grandmother.
27 Your life, unfortunately, has revolved around drug abuse and imprisonment that has resulted from your criminal activities in Victoria which date now back to 2004. All of that activity involves violence and aggravated burglary, back at that stage.
28 Since that time, you have 11 court appearances to do with driving, violence and dishonesty charges. Whilst in Tasmania between 1999 and 2002, you had numerous court appearances for driving, violence and dishonesty charges.
29 You have had all the sentencing options in the past including imprisonment.
30 Your offending has centred on and revolved around your drug abuse. Only you and you alone can change that problem.
Impact on your victims
31 There were no victim impact statements filed in this proceeding. It goes without saying that a person who is robbed in the street by people known to her undermines her sense of personal security and trust in people generally. In respect of Mr Metcalfe, he has helped you when you had a seizure, induced by drug taking, no doubt, you then turn on him in his own home and assault him and rob him of his personal property. The violent response by you to his care for you is inexplicable.
32 The pharmacist, Mr Pockney, was, I am told, a relief pharmacist, a health care professional going about his daily activity and making an honest living. He complies with your demands. It is clear he suffered no physical injury. Who knows what would have happened if he had resisted your demand for drugs? However, the psychological harm or upset to him is unknown. No doubt there are days when he turns up to work wondering what the day holds, "Is it another armed robbery today".
Your plea of guilty
33 You have pleaded guilty at the earliest time and it was clear from your admissions to police that you were always going to do so.
34 Your plea of guilty has a utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and resolution of the substantive issues raised by your offending. Your plea also preserves the court and police resources to deal with other matters. Your plea vindicates public confidence in the legal process set up to protect the community.
35 You have, by your plea, relieved your victims from giving evidence against you. It facilitates some closure for them as victims of your offending. Your plea of guilty also indicates and demonstrates your remorse. I accept your remorse is genuine in this case. Your plea acknowledges that you accept responsibility for your criminal behaviour and your plea also recognises you are willing to facilitate the course of justice in the community.
36 The trouble for you, of course, is that your actions in these offences are always happening whilst under the grip of drug use and after you have straightened up, you have a regret and remorse about your actions.
Sentencing considerations
37 The basic purpose for which a court may impose a sentence of imprisonment is just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and the protection of the community.
38 In sentencing you I must have regard to a range of factors such as the seriousness of your offences, your culpability for them and your personal circumstances and those of your victims. I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible you as an offered are rehabilitated and reintegrated into society.
39 The prosecutor urged that the considerations of general and specific deterrence are paramount in your case. The prevalence of street violence and armed robbery to innocent victims calls for a term of imprisonment. The prosecution submitted a range of three to five years as a maximum sentence with 18 to two and a half years non‑parole period.
Issue of delay and totality
40 You were imprisoned for matters in New South Wales immediately after these offences. After completing that sentence, you were then transferred to Victoria to face these charges. The delay in finalising these matters is not your doing except of course whatever your offences were to get you imprisoned in New South Wales.
41 You have been on remand in Victoria for 155 days, on my calculation, awaiting the final outcome of these charges. Whilst the whole period from your arrest to the present is not directly attributable to these offences, the totality principle applies in this sentence to the extent of recognising that you have been in custody for a considerable time prior to being finally sentenced here for these offences. I take that factor into account when fixing your total sentence from these offences. I will also set a longer period of parole eligibility to give you a chance to take up drug rehabilitation and to get yourself off what I call the prison carousel. As I say, only you can activate that properly.
42 Would you mind standing please.
43 For Charge 4, you are convicted and sentenced to two and a half years' imprisonment. This is the base sentence.
44 Charge 2, you are convicted and sentenced to 12 months' imprisonment.
45 Charge 3, you are convicted and sentenced to nine months' imprisonment; and
46 Charge 1, you are convicted and sentenced to 12 months' imprisonment.
47 Three months of the sentence of Charge 2 is cumulative on Charge 4 and three months of the sentence on Charge 3 is cumulative on Charge 4 and two and six months of the sentence in Charge 1 is cumulative on charges 4, 2 and 3 and they are cumulative on one another.
48 Have I messed that up for you all?
49 MR DOYLE: Three and a half.
50 HIS HONOUR: Three and a half total effective sentence?
51 So the total effective sentence is three and a half years and I fix a non‑parole period of two years. Do you understand what I have just ‑ yes.
52 I declare you have served 155 days pre‑sentence detention that is to be deducted administratively. That is a correct calculation, is it, 155?
53 PRISONER: Yeah, it said.
54 HIS HONOUR: I declare that but for your plea to these charges, pursuant to s.6AAA of the Sentencing Act, I declare that the sentence would have been a total effective sentence of five years with a minimum of three and a half. So your plea has saved you some considerable time.
55 I have also made the forensic sample order which was on the last occasion and I have made the disposal order on 26 August 2003.
56 Is there anything further?
57 COUNSEL: No, Your Honour.
58 HIS HONOUR: Thanks very much for your assistance in this matter. Mr Jago, good luck.
59 PRISONER: Thank you.
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