Director of Public Prosecutions v Jajo
[2022] VCC 1971
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00907
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZUHAIR JAJO |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May, 2, 3, 6, 10 June and 10 October 2022 | |
DATE OF SENTENCE: | 15 November 2022 | |
CASE MAY BE CITED AS: | DPP v Jajo | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1971 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of causing serious injury intentionally – one charge of theft – one charge of failing to immediately stop a motor vehicle and render assistance at the scene of an accident – offender was intoxicated by methylamphetamine and also had a traumatic brain injury with cognitive impairment – consideration of principle one in Verdins – offender had significant criminal history.
Legislation Cited:
Cases Cited:R v Verdins (2007) 16 VR 269; Byast v The Queen [2021] VSCA 344
Sentence: 6 years 9 months imprisonment with a non-parole period of 4 years.
s.6AAA declaration: 8 years imprisonment with a non-parole period of 6 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C Thomson with Mr R Minson | Solicitor for Public Prosecutions |
| For the Accused | Mr J Shaw | David Barrese and Associates |
HER HONOUR:
1Zuhair Jajo, you have pleaded guilty to one charge of intentionally causing serious injury, which carries a maximum penalty of 20 years’ imprisonment; one charge of theft, which carries a maximum penalty of 10 years’ imprisonment, and one charge of failing to assist at the scene of an accident involving a motor vehicle in which a person suffered serious injury of which you knew or ought to have known, which carries a maximum penalty of 10 years’ imprisonment.
2The circumstances of your offending are detailed in the Prosecution Plea Summary.[1]
[1]Exhibit “A”
3At approximately 6.20pm on 6 December 2019, your victim, Mr David Gordon, then aged 55 years, arrived home from a business trip, driving his Ford Ranger utility, which he parked outside his residence in Balmoral Avenue, Pascoe Vale South, prior to entering his home. You drove into Balmoral Avenue in a Holden Captiva vehicle (“the Captiva”) and stopped in the middle of the road next to Mr Gordon’s vehicle. You got out of the Captiva and opened the door of Mr Gordon’s utility and put your head inside. Another vehicle came along the street and was unable to drive past the Captiva, so you got back into the driver’s seat of it and moved it out of the way into a nearby driveway, before driving it back into the street. You then got out of the Captiva a second time and returned to Mr Gordon’s vehicle and went through his belongings.
4You took Mr Gordon’s laptop bag, which contained an HP Notebook, mouse, keyboard, memory stick and work documents, valued at approximately $2,000. You threw them into the open driver’s side door of the Captiva.
5Mr Gordon ran into the street and asked “What are you doing?”. You told Mr Gordon to “Fuck off” as you got into the driver’s seat of the Captiva and closed the door. Mr Gordon stated “You’re not going anywhere” and dived towards the open driver’s side window of the Captiva and grabbed you in a bear hug, attempting to restrain you. You hit the accelerator pedal and the car began moving forward at a fast rate of speed, with Mr Gordon clinging onto the window ledge with his feet initially dragging along the ground.
6Mr Gordon managed to get his feet onto the external step at the bottom of the driver’s side door and was yelling “Stop the car. Stop the car”. He was concerned that, if he let go, he might get dragged under the vehicle. You yelled “Get off you fucking cunt” and began to deliberately swerve towards parked cars in order to force Mr Gordon to let go. Mr Gordon briefly grabbed the steering wheel of the Captiva but you punched his forearm to make him let go and yelled “I’ll get you, cunt”.
7You accelerated and travelled for approximately 80 metres with Mr Gordon still holding onto the side of the Captiva, and then mounted the kerb, ran over a tree stump, and deliberately drove the Captiva into a metre high brick fence in Balmoral Avenue. Dr Jenelle Hardiman, an expert witness from Victoria Police Collision Reconstruction and Mechanical Investigation Unit, provided a report stating: “In my opinion, based on the information that I have been provided, the Holden Captiva wagon was accelerated heavily over 66 metres. The driver was depressing the accelerator at 100% before commencing to brake and colliding with a tree and a brick fence. There is no evidence that the vehicle was out of control when it left the road. The physical evidence and the CDR data is consistent with the driver having accelerated heavily, likely maximum acceleration, before deliberately steering off the road to the right and colliding with a tree and fence as alleged”.[2]
[2] Statement made on 26 June 2020, depositions page 345, TT at page 353.
8Mr Gordon was trapped between the vehicle and the fence. The airbags in the Captiva were deployed and you jumped through the driver’s side window to escape, saying to Mr Gordon “I told you I’d get you, cunt. I told you”. Mr Gordon grabbed you in a chokehold and tried to pull himself up, but then realised that his right foot and leg were severely injured, with bone protruding through the skin and his foot hanging at a right angle near the ankle joint. He managed to grab a black bag which you were carrying before you left the car and ran away. DNA evidence on the zipper of that bag, as well as DNA evidence from a soft drink can inside the front driver’s door pocket of the Captiva, provided extremely strong support that you were the donor of such DNA.[3]
[3]Statement of Janelle Psaroudis, Forensic Scientist dated 12 April 2021, deposition p327, TT at pp 332-2 and 341
9You abandoned Mr Gordon, who had a number of serious injuries. These included an open dislocation and complete compound fracture of his right ankle. This was a very severe crush dislocation injury which was grossly contaminated, and Mr Gordon’s right foot was detached from his leg and appeared to be attached only by soft tissue. Medical evidence indicated that he may have lost his limb without prompt surgery and antibiotics.
10Mr Gordon also suffered three fractured vertebrae at T12, L1 and L2 levels, a torn anterior cruciate ligament in his right knee, and a torn rotator cuff in his right shoulder.
11Forensic medical opinion indicated that he could have been at risk of overwhelming and life-threatening infection, that his injuries were substantial and protracted, as well as being potentially life threatening, and that the fractures to his spine may cause ongoing pain and limitations in function. The injuries which you caused to Mr Gordon by deliberately steering the vehicle into a fence and trapping his body between the vehicle and the fence form the basis of Charge 1.
12The theft of Mr Gordon’s HP Notebook, mouse, keyboard, memory stick and work documents form the basis of Charge 2. Fortunately for Mr Gordon, police recovered these items in the front passenger footwell of the Captiva which you crashed.
13After abandoning Mr Gordon in his seriously injured state, you ran rapidly from the scene. Various neighbours chased you through the neighbourhood but you escaped, by running through properties and jumping over fences. These facts form the basis of Charge 3, failing to render assistance at the scene of a motor vehicle accident in which a person suffered serious injury of which you knew or ought to have known.
14On 31 May 2022, the charges for which I must sentence you formed part of the charges on an indictment which was listed for trial on that day. Your proposed defence at trial was that of identity, claiming that the person driving the Captiva who stole Mr Gordon’s property and caused him serious injury was not you. Over a period of three days – 31 May and 2 and 3 June 2022, various pre-trial issues were argued and rulings made (largely in favour of the prosecution) concerning various items of contested evidence. Prerecording of the evidence of one prosecution witness for use at the trial took place on 2 June 2022,
15The matter was adjourned to Monday, 6 June 2022 for trial, on which date it resolved into a plea of guilty to the three charges upon which I must sentence you. Various charges which had been on the trial indictment were withdrawn. These were two alternative charges to Charge 1 (namely, negligently causing serious injury and recklessly causing serious injury), a charge of theft of the Captiva, which you had been driving, two charges of handling stolen goods relating to vehicle registration plates, and a charge of damaging property relating to the brick fence into which you drove the Captiva.
16The matter was adjourned for plea hearing to 10 June 2022, on which date part of the plea proceeded, but your counsel, Mr Shaw, requested an adjournment in order to obtain a neuropsychological report. The matter was subsequently adjourned on one occasion due to my lack of availability (29 July 2022), on one occasion due to unavailability of the parties (9 September 2022), and on one occasion due to the unexpected public holiday called on 22 September 2022 following the death of Her Majesty Queen Elizabeth II. Ultimately, the plea hearing resumed and was completed on 10 October 2022, although, even after that date, your counsel submitted further written submissions by email on 25 October 2022.[4]
[4] MFI-3, Further plea submissions in relation to the application of Verdins Principal (sic) 1 undated but emailed to the court on 25/10/22.
17You are presently aged 33 years, having been born in March 1989. You come before the court with a criminal history dating back to 12 February 2009. Between that date and 15 May 2020, you have appeared before courts on numerous occasions for driving offences, drug offences, bail offences, weapon offences, failing to obey police directions, unlawful assault and multiple dishonesty offences. The latter include handling, receiving, and retaining stolen goods, theft, burglary, and aggravated burglary. Over the years, you have contravened a suspended sentence and also 3 Community Correction Orders, and have served multiple terms of imprisonment ranging from 1 month to 12 months.
18It is of concern that one year prior to the offences for which I must sentence you, on 7 December 2018, you appeared before Broadmeadows Magistrates’ Court on a variety of offences which included a charge of failing to render assistance after an accident and also dangerous driving whilst being pursued by police, and another charge of driving in a dangerous manner. You were sentenced to an aggregate term of imprisonment of 12 months’ imprisonment with 265 days’ pre-sentence detention reckoned as served. You were released into the community again in or about March 2019, some nine months before the offending for which I must sentence you.
19On 3 December 2019, that is three days prior to the commission of the offending for which I must sentence you, you committed offences of aggravated burglary (with a person present), theft of a motor vehicle, obtaining property by deception, handling/receiving/disposing of stolen goods and burglary. You pleaded guilty to these offences and, on 15 May 2020, were sentenced to a term of 12 months’ imprisonment for them.
20On 5 January 2020, you committed an offence of recklessly causing injury, which involved assaulting a fellow prisoner. You have pleaded guilty to this offence and are, apparently, awaiting sentence for it.
21On 9 March 2021, after you were released into the community on bail for the offences for which I must sentence you, other charges were laid against you relating to offending in late June/ early July 2021. These are allegations of theft of a motor vehicle, failing to stop after an accident, other dishonesty offences, and committing an indictable offence whilst on bail. Those charges remain unresolved, and apparently are due to be the subject of a contest mention at Broadmeadows Magistrates’ Court on some future date. You were remanded in custody on those matters on 12 July 2021 and your bail relating to the charges upon which I must sentence you was formally revoked on 15 October 2021.
22In a plea on your behalf by Mr Shaw, the court was told that you were born in March 1989 in Baghdad, Iraq, and are the fourth of seven children. Your father had been in the army and your family migrated to Australia in 1992 when you were approximately three years old. You attended primary school in Coburg and Campbellfield before commencing secondary school at Fawkner High School.
23Not long after your fifteenth birthday, you were riding your bicycle without a helmet when you were struck by a vehicle travelling at approximately 40 kilometres per hour. This took place on 8 April 2004. You suffered loss of consciousness and were taken by ambulance to the Royal Children’s Hospital where you were intubated and transferred to the Intensive Care Unit due to a deteriorating conscious state.
24A neuropsychological report from the Royal Children’s Hospital detailed assessments on 13 and 20 May 2004[5] noted that a cerebral CT scan revealed an acute haemorrhage adjacent to the left lateral ventricle and a further area of haemorrhage at the grey/white junction of the parafalcine right frontal lobe. You were extubated and transferred to a ward 15 hours following admission and, over the next week, confusion, irritability and wandering was noted in the nursing reports. You absconded on two occasions and successfully arrived at your home by public transport. You were transferred to the Victorian Rehabilitation Centre on 16 April 2004 where you became agitated, restless and aggressive. Against medical advice, your family discharged you three hours after your admission. Your father stated that, initially, upon your return home you displayed very difficult behaviour (agitation, wandering and aggression), but, within days, this behaviour ceased and you returned to school and both you and your father denied any ongoing behavioural or cognitive difficulties except that you were suffering regular headaches.
[5] Exhibit “1”
25The neuropsychological report referred to you having suffered a moderate traumatic brain injury seven weeks earlier and that you appeared to lack insight into and awareness of your cognitive difficulties. It was considered that your premorbid level of functioning was within the “low average” range, with some skills in the average range, but, at that stage, your intellectual ability overall fell within the low average range with vocabulary a significant weakness, and a decreased speed of processing and attentional difficulties were noted. You also demonstrated significant difficulties with auditory/verbal memory and learning, and were not able to adequately retain verbal information over time. Further, you had significant difficulties with more complex visual material and retaining visual material over time as well as difficulties with planning and organisation. It was thought that the deficits were consistent with an acquired traumatic brain injury but, given that the assessment was within only two months of the injury, it was likely that your cognitive difficulties would considerably improve over the next six months to one year and a number of strategies were suggested together, with the provision of an integration aide at school and a neuropsychological review in one year’s time.
26It would appear that you did not engage in very extensive follow up. A report from your general practitioner, Dr Abdullah Wassouf[6], stated that, after he saw you on 27 May 2004, he did not see you again until 20 August 2004, when you were complaining of dizziness and weakness and your father described you as having become very angry, nervous and verbally abusive. Notwithstanding this, you did not present to Dr Wassouf again until 2 March 2006. By that stage, you were almost 17 years old. You complained of headache, general weakness, forgetfulness and lack of concentration. Dr Wassouf referred you to the neuropsychology clinic at the Royal Children’s Hospital, where you were assessed on 30 October 2006 and various strategies were provided to deal with your working memory difficulties and fatigue and irritability. In Dr Wassouf’s report, he stated that he did not see you again after 2 March 2006. However, another report tendered, which is subsequent to the date of Dr Wassouf’s report, refers to what would appear to be one further consultation with Dr Wassouf, on 15 December 2009. On that later date, he apparently noted that you were “still suffering from consequences of the injury (you) sustained in … the accident. (Your) main concerns was (your) lack of concentration and mood changes besides inappropriate behaviour”. Dr Wassouf “expected (your) condition to remain as such for many years, if not permanently”.[7]
[6]Exhibit “2”
[7] Report dated 12 March 2009, Exhibit “7”, page 4 paragraph 15
27There is no material before the court to indicate that you engaged in treatment with any health practitioner relating to consequences of your traumatic brain injury after seeing Dr Wassouf in December 2009. By 2014, you were due to appear before the County Court on a number of dishonesty and other offences. Preparatory to that appearance, your solicitor had organised for you to be assessed by Ms Angeline Swan, forensic psychologist, whose report dated 24 August 2014 was tendered before me.[8] By that stage you were 25 years old. The history taken by Ms Swan states that you had finished school at the end of Year 10 (albeit apparently without passing that year). You undertook a panel beating apprenticeship for two or three years, but did not complete it and had then been employed at a number of different panel beaters, but left each employment because of conflict with work colleagues. It appears that you have been on a disability pension since the age of 21 years.
[8]Exhibit “3”
28By the time you saw Ms Swan you were consuming up to 15 cans of alcohol on most days and had been using cannabis since the age of 16 years. By your early twenties, you had begun using amphetamines and told her that, by age 23 years, you were using up to $1,000 worth of methylamphetamine daily. You also described regularly having used ecstasy and cocaine between the age of 19 years and 23 years, with cocaine costing you $500 per day and ecstasy $200 per day. In addition, you had periodically used heroin, GHB, Ketamine and “acid”. You had never engaged in drug treatment or rehabilitation programs, notwithstanding that you stated that you had experienced auditory and visual hallucinations, grandiose delusions and thought disturbance. In addition, from about the age of twenty, you had commenced gambling at poker machines at the Casino, which you described as a way of reducing stress and anxiety experienced by you since childhood. You also told her that you had suffered daily migraine headaches since the accident which occurred back in 2004.
29Ms Swan diagnosed you as suffering a generalised anxiety disorder, a low average IQ with some cognitive deficits from the traumatic head injury, a gambling disorder, a stimulant use disorder and schizophrenia (which at that time, had mild or reduced symptoms and was in partial remission). She considered that you “lacked insight regarding the impact of (your) mental health issues and (your) behaviour and current life situation. However, (you) had some awareness regarding the negative effect of substance use on (your) functioning.”[9] She also noted that, in relation to the offending for which you were to appear before the court in 2014, you believed your psychotic symptoms, including visual hallucinations, occurred due to increased methamphetamine use. She went on to note that you “believed that the majority of (your) offending had occurred due to substance use and gambling issues.” She went on to quote you as stating “I lose money and get angry and frustrated and steal to make up for it” and that you “believed finding employment, remaining abstinent from illicit substances, and avoiding antisocial peers would assist with (you) remaining offence-free.”[10] She considered that you were at high risk of reoffending, which would likely be reduced through abstinence from illicit substances and management of your mental health issues. She made specific recommendations, which included you engaging in extensive psychological treatment in order to assist with increasing your insight into your mental health issues, engaging in a psychiatric review in order to ascertain your pharmacotherapy needs for your mental disorder, engaging in a substance use treatment program of sufficient duration to address your complex substance use and related gambling issues, obtaining psychological treatment to increase your emotional and behavioural coping skills at times of stress and supporting your engagement with prosocial groups and activities and receiving social skills training as part of any rehabilitative options.
[9](ibid) page 2
[10](ibid) page 5
30Subsequent to Ms Swan’s report, you appeared at the Melbourne County Court on 27 August 2014, and were given a sentence of 103 days imprisonment (being time served) on a number of offences and, in relation to possession of methylamphetamine and amphetamine, you were given a without conviction adjourned undertaking for a period of one year, with a condition that you continue to receive treatment from your general practitioner and accept his recommendations for treatment. Unhappily, it would appear that there has been no engagement by you with any general practitioner either in relation to your substance abuse or mental health conditions and none of the recommendations incorporated in Ms Swan’s report in 2014 have been implemented.
31Also tendered on your behalf was a recent neuropsychological assessment in a report from Mr Sam Humphrey, clinical neuropsychology registrar at Eastern Neuropsychology, dated 22 July 2022.[11] He noted the history of head injury and various assessments at the Royal Children’s Hospital, the last of which had been on 30 October 2006, together with the lack of engagement with your general practitioner, Dr Abdullah Wassouf, who had last seen you on 15 December 2009. He further noted that, since the report of Ms Angeline Swan on 12 August 2014, there had been no engagement with any mental health or drug rehabilitation service until 20 April this year when you engaged with the mobile forensic health service whilst in custody at the Metropolitan Remand Centre. That letter of engagement dated 20 April 2022[12] had been tendered as part of your plea hearing and stated:
“Mr Jajo has attended six individual psychology sessions to enhance his mental health literacy. We discussed the causes and symptoms of anxiety and depression as well as provide basic psychological skills to assist in managing symptoms of anxiety. To date, Mr Jajo has completed six sessions and is now discharged from our service with no outstanding mental health goals.”
[11]Exhibit “7”
[12]Exhibit “4”
32The report from Mr Humphrey went on to note that you had undergone a psychological assessment with Dr Matt Treeby at the Metropolitan Remand Centre on 24 May 2022. Dr Treeby had noted that it was impossible to obtain a valid assessment due to your less than genuine effort during testing and that you were only superficially cooperative.
33Mr Humphrey undertook a formal cognitive assessment. He assessed your premorbid level of intellectual ability to be in the low average range, whereas it currently falls within the borderline range overall. However, he noted that language-based abilities including vocabulary and general knowledge (within the borderline range) were the only decline from premorbid estimates and he attributed this to being secondary to your culturally and linguistically diverse background. He noted that your attention span and your ability to hold and manipulate information in working memory was slightly below premorbid estimates, but your new learning and memory were well below the age-expected level and, in a practical sense, your new learning and memory capacity was inefficient and unreliable. He also noted that your language was below the expected level for your age and likely to have been impacted upon by your slow processing speed. Further, your executive functioning was well below the expected level for your age. You had significant difficulty with response inhibition and flexibly dividing your attention between competing demands, with your performances on these tasks falling withing the extremely low range. Also, you had difficulty with verbal and non-verbal abstract reasoning, with performances falling within the borderline range. He noted that your literacy skills were at Year 7 level.
34Mr Humphrey stated that you showed clear evidence of a moderate traumatic brain injury from 2004 and that such injury was permanent and enduring. He considered that the cognitive assessment that he had conducted showed performances which were broadly consistent with the neuropsychological assessments conducted in 2004 and 2006. However, there was also evidence of a further decline in processing speed and executive functioning which he attributed to your longstanding history of methylamphetamine use.
35Mr Humphrey concluded:
“As a result of the moderate TBI, Mr Jajo displays a range of cognitive and behavioural deficits which are likely to impact his decision making and offending behaviour. Most notably, he had significant difficulty on a measure of response inhibition, a cognitive process that allows an individual to inhibit or control their impulses and behaviour. Mr Jajo’s alleged offending appears to be opportunistic in nature and his difficulties with impulse control make it more likely for him to make poor decisions and engage in this behaviour than someone with normal cognitive function. Mr Jajo also reported smoking half to one gram of methamphetamines per day leading up to and at the time of the alleged offending, with the acute effects of methamphetamine use also known to have a negative impact on cognitive functioning, including response inhibition.” [13]
[13]Exhibit “7” page 9, paragraph 45
36In response to a specific question posed by your solicitor as to how your condition affected or is likely to have affected your mental functioning at the time of the offending or in the leadup to it, Mr Humphrey stated as follows:
“As a result of the moderate TBI, Mr Jajo displays a range of ongoing and cognitive and behavioural deficits which are likely to have impacted his mental functioning at the time of the offending behaviour. Most notably, he has significant difficulty with response inhibition and is likely to have had difficulty managing his impulses at the time of the offending. Mr Jajo is also likely to have a reduced ability to reason through the consequences of his actions, exercise appropriate judgement, and make rationale (sic) choices. The actual effects of his methamphetamine use leading up to and at the time of the offending is (sic) also likely to have impacted his mental functioning and exacerbated his underlying cognitive and behavioural difficulties, with methamphetamine use known to have a negative impact on cognitive functioning. Mr Jajo also has previously documented diagnoses of schizophrenia, generalised anxiety disorder, and gambling disorder. The impact of these psychiatric conditions on his mental functioning at the time of the offending is better assessed and commented on by a Psychiatrist and/or Forensic Psychologist.”[14]
[14](ibid) page 10, paragraph 49
37Many of your counsel’s submissions were devoted to relying upon those two sections of the report of Mr Humphrey in support of the application of the first principle in The Queen v Verdins.[15] Mr Shaw submitted that the opinion of Mr Humphrey that, as a result of your traumatic brain injury you had significant difficulty with response inhibition which likely caused you to have difficulty managing your impulses at the time of the offending, could to some extent explain why you did not stop the Captiva and drove into a brick fence while your victim was holding onto the side of the vehicle. Thus, he urged the court to find that the first principle in Verdins’ case applies to reduce your moral culpability and that there should be some mitigation of sentence particularly related to both denunciation and just punishment. He submitted that, although at the time of the offending, you were under the influence of methamphetamine, which was also a contributing factor to the offending, this factor did not mean that the first principle in Verdins referrable to the effects of your traumatic brain injury had no application.
[15](2007) 16 VR 269
38Although, sadly, you did sustain a moderate traumatic brain injury at the age of 15 years, it is plain that, for many years you have declined to take any responsibility for your mental health and have simply engaged in the life of a drug addict committing offences of dishonesty to support that habit. On one level your pulling up the Captiva and getting out of it in Balmoral Avenue in order to look into your victim’s utility, might be described as opportunistic, however the fact is that, according to history that you gave to Mr Humphrey “leading up to and at the time of the offending” (my emphasis) you were smoking a half to one gram of methamphetamine per day. You had committed offences of dishonesty three days prior to the offending for which I must sentence you in order to satisfy your illicit drug habit, and I am satisfied beyond reasonable doubt that the primary motivating factor for your dishonesty on 6 December 2019, was the same. You had seen items of value, particularly Mr Gordon’s laptop, inside his utility and, even the fact that you had to move the Captiva out of the way to let a passing car through on Balmoral Avenue, did not deter you from returning to Mr Gordon’s car to steal the items.
39When you were confronted by Mr Gordon attempting to retrieve his own property, you told him to “Fuck off”. In my view, there is no lack of consequential thinking evident in what followed thereafter. Obviously you were aware that Mr Gordon was hanging onto the window ledge of the driver’s side of the Captiva because you yelled “Get off you fucking cunt” and began deliberately swerving towards parked cars to try to ensure that Mr Gordon either fell off or let go. As he grabbed the steering wheel, you punched him and said in no uncertain terms, “I'll get you cunt” and you then maniacally accelerated and deliberately drove into a brick fence. Whilst this offending behaviour took place rapidly, your utterances leave me in no doubt that you were fully aware of what you were doing.
40Even after the air bags were deployed in the Captiva and you knew that Mr Gordon was trapped between the Captiva and the fence, you acknowledged what you had done by stating “I told you I'd get you cunt, I told you.” You had sufficient rationality of thought processes to jump through the driver’s side window in order to escape, as well as to take with you a black bag containing a stolen ring worth $10,000, which was part of the proceeds of offending which you had committed some three days earlier. You were thinking sufficiently clearly to know that there was something valuable in that bag which you needed to take it with you, even though you had just very dramatically crashed the vehicle and seriously injured Mr Gordon. You appear to have had no difficulty in appreciating that you were in a great deal of trouble, and artfully escaped pursuit by several people in the area by employing strategies of cutting through properties and jumping over fences.
41To my mind, your statements and conduct to which I have referred are not the actions of someone whom Mr Humphrey opined was “likely to have a reduced ability to reason through the consequences of his actions, exercise appropriate judgement, and make rationale (sic) choices.” You wanted the goods that you had stolen to buy drugs. You wanted the valuable $10,000 ring which was in the black bag that you were taking with you from the crashed car to buy drugs and, you were not going to let any number of pursuers catch you as you quite athletically sprinted away from the scene and over fences to avoid being caught.
42You had been assessed back in 2014 by Ms Swan as having awareness regarding the negative effect of substance use on your functioning and you acknowledged that the majority of your offending behaviour, then, had occurred due to substance use and gambling issues. You told her that, if you found employment and remained abstinent from illicit substances and avoided antisocial peers, then that would assist you in remaining drug free,[16] but there is no evidence that you took any steps between then and this offending to try to address your illicit substance abuse issue. When being assessed by Mr Humphrey this year, you had acknowledged that “there was a gradual improvement in (your) cognitive functioning followed by a decline due to heavy methamphetamine use throughout (your) 20s”.[17]
[16]Exhibit “3”, pages 2 and 5
[17]Exhibit “&”, page 6, paragraph 30
43As mentioned, you told Mr Humphrey that you had been smoking half to 1 gram of methamphetamine per day leading up to and at the time of the offending and he stated that this is “likely to have impacted (your) mental functioning and exacerbated (your) underlying cognitive and behavioural difficulties, with methamphetamine use known to have a negative impact on cognitive functioning.”[18] Although I do not accept that there is evidence that your consequential thinking skills were impacted upon at the time of your offending, I observe that, when you were assessed in 2014 by Ms Swan, she had noted that your personality assessment inventory showed problems with impulsivity.[19] Eight years later, when Mr Humphrey assessed you, he noted that as a result of your moderate traumatic brain injury you still have “significant (my emphasis) difficulty with response inhibition and (were) likely to have had difficulty managing your impulses at the time of offending”.[20] This is a factor of some subtlety.
[18]Exhibit “7”, page 10, paragraph 49
[19]Exhibit “3”, pages 6 and 7
[20]Exhibit “7”, page 10, paragraph 49
44On formal cognitive assessment, Mr Humphrey summarised your executive functioning as follows:
“Mr Jajo’s performances on measures of executive functioning were well below the age-expected level. He had significant difficulty with response inhibition and flexibly dividing his attention between competing demands (my emphasis) with his performances on these tasks falling within the extremely low range (at or below 0.1 percentile of his aged peers).”[21]
[21]Exhibit “7”, page 8, paragraph 40
45I accept the portion of Mr Humphrey’s opinion to which I have just referred. Doing the best I can, taking into account that you were focused upon extricating yourself from the circumstances whereby Mr Gordon was trying to retrieve his property and clinging to the car you were driving, I find that I cannot exclude as a reasonable probability that your impaired impulse control was, in part, a material contributing factor to your appalling behaviour in intentionally crashing the car and injuring Mr Gordon, as well as fleeing from the scene and failing to render assistance to him in his seriously injured state. However, in the light of your heavy use of methylamphetamine up to and at the time of offending, which I am satisfied you knew you should not be taking due to their negative effect on your functioning, and which Mr Humphrey states most likely did exacerbate your underlying cognitive and behavioural difficulties, I consider that you should not receive the full mitigatory benefit of the first principle in Verdins’ case.
46This is not simply a case of an acquired brain injury causing you to have a lack of impulse control. Indeed, Mr Humphrey has not suggested that, even were you not intoxicated by methylamphetamine, your criminal conduct would still have occurred because of your problem with impulsivity. There is no getting away from the fact that your long term voluntary ingestion of illicit drugs has negatively impacted upon your impaired cognition, including your response inhibition. The application of the principles in Verdins’ case to reduce moral culpability and, hence, their impact upon the extent to which general and specific deterrence are emphasised, rests on the notion that impaired mental functioning resulting in criminal conduct is to an extent to be regarded as involuntary. However, the position is different if a person voluntarily engages in taking illicit substances so that any resulting criminal conduct cannot be regarded simply as the involuntary consequences of the mental impairment.[22] Thus, whilst acknowledging that your cognitive impairment relating to response inhibition and difficulty dividing attention between competing demands, in part, contributed to your offending on charges 1 and 3, I find that your voluntary intoxication by methylamphetamine is the most significant contributing factor to that offending. For that reason, I consider that any reduction in moral culpability by reason of the application of principle one in Verdins should not be a major reduction and there is still significant emphasis that should be placed upon general and specific deterrence in sentencing you.
[22]Byast v The Queen [2021] VSCA 344
47Leaving aside my finding upon the reduced application of the first principle in Verdin’s case, it should be acknowledged that your cognitive deficits mean that a sentence will be more onerous for you than for someone without such deficits. Specifically, you are slow to process information and have limited problem-solving abilities, difficulty adapting to new situations, and reduced ability to learn new information. You are also more vulnerable to the influence of others, in addition to suffering a generalised anxiety disorder and stimulant use disorder, and prior diagnoses of schizophrenia (albeit currently apparently in remission). It is accepted by the prosecution, and I take into account in sentencing you, that these factors attract the fifth principle of Verdins.
48I regard this as a grave example of the charge of intentionally causing serious injury and failing to assist a seriously injured person. To say that your conduct in deliberately injuring Mr Gordon lacked empathy, is a gross understatement. It is behaviour of an uncivilised and deplorable nature, which is likely to shock decent members of the community.
49In a Victim Impact Statement made by Mr Gordon on 9 June 2022, one receives a dramatic picture of a fit man with a very fulfilling work, family, sporting and recreational life prior to your criminal offending and what has been a protracted period of hospitalisation and rehabilitation, accompanied by enduring horrible physical and psychological consequences of such offending.[23]
[23]Exhibit “B”
50At the time of your offending, Mr Gordon was 55 years old. He had a university degree in science and three post graduate diplomas in sales, marketing and logistics. He was successfully employed by a tyre company, which involved extensive travel. He was a sportsman who, in the past, had achieved gold medals in world championships for rugby, as well as having competed in athletics and swimming. He was engaged in surf lifesaving and motor sports. He had an active family and social life with his four children and was a handyman, keen gardener and home mechanic. Your dreadful offending inflicted a multiplicity of injuries to various parts of his body including his right and left shoulders, three fractured vertebra (at thoracic and lumbar levels), a dislocated jaw and eight fractured teeth, a damaged right optic nerve, and multiple burns and lacerations to his hands, thighs, chest and face. The most confronting injury was that to his right leg. He suffered injury to the ligaments of his right knee but an almost completely severed right foot resulting in major surgery, skin grafts and nerve damage.
51Mr Gordon spent almost 11 weeks in hospital and had an exterior “X-fix” frame with embedded titanium rods attached to his leg and foot to assist the re-attachment process. He was confined to a bed or wheelchair for this time and has undergone multiple subsequent surgical procedures over the ensuing years. He has endured complications of bone necrosis in the right foot and undergone fusion surgery to his right ankle. He now suffers advanced arthritis in that foot. In addition, he suffered a very large upper abdominal trauma-induced hiatus hernia for which he had to undergo surgery. He continues to suffer hot stabbing and shooting nerve pain and excruciating tingling sensations in his right leg to the point that amputation is still a realistic consideration in order to reduce the pain and enhance his quality of life. Nearly three years later he still undergoes daily rehabilitation and hydrotherapy treatment, weekly chiropractic treatment, bimonthly orthopaedic surgical consultations, as well as optometry and podiatry consultations and ongoing review relating to his extensive dental damage.
52Mr Gordon has not been able to return to work or to participate in any of the sports or other leisure activities and hobbies which he used to enjoy. His immobility has caused him to gain weight and to develop sleep apnoea. He suffers from depression and Post-traumatic Stress Disorder, impaired concentration and low self-esteem, which has impacted adversely on his personal relationships. He feels angry, frustrated and fearful and continues to undertake therapy with a psychologist to try to address his mental health issues. He is on a significant daily regime of medication for his pain: 300 milligrams of Gabapentin for nerve pain, 15 milligrams of Targin, an opiate painkiller, and three dosages of two Panadol. The medication makes him drowsy and he needs to rely upon taxis to travel. He seldom ventures out of his home and has suffered very significant financial loss relating to his inability to work and lost commissions, bonuses and incentives.
53In a further Victim Impact Statement from Mr Gordon’s daughter, Courtney Gordon, made on 9 June 2022,[24] she speaks of the complex trauma her father endures which includes struggling to sleep and experiencing vivid nightmares associated with your crime. She describes the terrible emotional effect upon him of bursts of uncontrollable anger, frustration, fear, depression and anxiety, which have left him in a state of isolation, enduring immense amounts of pain, which he finds difficult to bear, and having to endure ongoing physical rehabilitation. He is unable to walk for long periods, has an unsteady gait, misses his physical fitness and knows that he cannot go for a walk on the beach without the fear of not being able to make it back onto the path due to his pain.
[24]Exhibit “C”
54A medical report from Dr Camilla Holdstock, Mr Gordon’s general practitioner, dated 8 June 2022 was tendered in evidence.[25] This confirms the ongoing physical and mental pain for which Mr Gordon is treated and the fact that he suffers obstructive sleep apnoea due to weight gain and immobility. She confirms that amputation is still a real possibility and that Mr Gordon still needs to attend a variety of medical, psychological and allied health appointments regularly on a weekly to fortnightly basis for rehabilitation.
[25]Exhibit “E”
55A third Victim Impact Statement was provided by Anna Prinzi who was the resident of the house surrounded by the fence into which you drove the Captiva. She describes in her statement made on 9 June 2022[26] how the impact shook her house as if the foundations had moved and she became extremely scared. There are still times when she looks outside the kitchen window and sees the terrible image of the injured man under the car screaming for help. She states that she no longer feels safe in her own home because of your criminal offending.
[26]Exhibit “D”
56Your counsel, Mr Shaw, stated that he had been instructed that you have now been free of illicit drugs since mid-September 2020. He stated that, whilst in custody between 11 January 2020 and 9 November 2020, you were subjected to five urine tests which showed that you were free of illicit drugs. Once you were released on bail, it was a condition of your bail that you undergo urine screens. On eight occasions between 15 March 2021 and 25 June 2021, whilst you were still at liberty in the community, you underwent urine tests which gave negative results for illicit drugs. Since being remanded back in custody on 12 July 2021, you have undergone five further urine screens in custody between 30 July 2021 and 7 September 2022, which have shown negative results for illicit drugs. The reports for these various urine screens were all tendered as Exhibit “8”.
57If in fact you have been drug-free over that period of time, then it certainly is to your credit, although I note that, even whilst apparently drug-free in custody, on 5 January 2020, you were charged with recklessly causing injury to another prisoner. This involved striking a fellow prisoner with an open palm with such force that you fractured his cheekbone and he required surgery. Perhaps this is an indicator that your impulse control is cause for concern in terms of the protection of the community, whether you are using drugs or not.
58Mr Shaw asked the court to note that you have the support of your parents and also your brother, Wisam Jajo, who wrote a letter to the court on your behalf dated 10 June 2022.[27] Your brother stated that you have lived with your parents and six siblings throughout your life, and that you are a hardworking person who worked as a stonemason and also, for a time, as a mechanic with him. He described you as being “a quick learner”, which is perhaps somewhat surprising given the reports concerning your cognitive impairment after your traumatic brain injury. He stated that you are surrounded by family and friends who support you. However, presumably they were available to you on the many occasions that you have committed offences in the past, and I am not sure how your brother’s history that you are a “hard worker” fits in with the fact that you have been in receipt of a disability support pension since the age of 21 years, which is now some 12½ years ago.
[27]Exhibit “5”
59Over the last 10 years you have repeatedly been given sentences of imprisonment and, unhappily, other dispositions by way of a wholly suspended sentence and Community Correction Orders or an adjourned undertaking have been breached by you and not resulted in any alteration of your ways.
60My overwhelming impression of you is that until incarcerated or compelled to undertake urine tests as part of a bail condition, you have done nothing, yourself, to try overcome your drug abuse. Unfortunately, you appear to have little insight into your cognitive deficits. This was commented upon by Ms Swan back in 2014 and was, no doubt, part of the reason for her careful recommendations as to your future management, all of which seem to have come to nothing.
61More recently, Mr Humphrey noted that, when he reviewed you, you showed that the effects of your moderate traumatic brain injury were permanent and enduring, and that “there was also evidence of further decline in processing speed and executive function, with this likely due to your longstanding history of methamphetamine use”.[28] Mr Humphrey commented that you would benefit from a drug and alcohol treatment program, as well as services which aim to optimise your mental health, but these were measures which had been recommended by Ms Swan eight years ago.
[28]Exhibit “7”, page 9, paragraph 44
62I consider that your drug addiction is well-entrenched and the fact that you can produce a few negative urine screens whilst under scrutiny, either in custody or on bail, does not necessary indicate any sustained capacity to remain clear of what has been a dominant lifestyle factor for you since your late teenage years/early twenties. Moreover, your lack of insight into your need for mental health monitoring means, unfortunately, that the community needs protection from you.
63You wrote an apology to your victim which was tendered to the court at your plea hearing.[29] In it, you state that you are remorseful for what you have done to Mr Gordon. I place little weight on that document, particularly given that when this matter first came before me for trial on 31 May 2022, you were running a defence of identity, claiming that it could not be proven that you were the person who perpetrated the crimes for which I must sentence you.
[29]Exhibit “6”
64In sentencing you, I take into account your plea of guilty and its utilitarian value. I also take into account that, during the period of remand referable to this offending you have been subjected to the constraints occasioned by the restrictions imposed because of the COVID-19 pandemic. This has involved limited out of cell hours, restricted programs and suspension of contact visits with family and friends.
65I have also taken into account, as previously mentioned, that your psychological conditions of depression and anxiety, and your cognitive deficits, make serving time in prison harder for you than for a person without those conditions. You have also served another sentence since the commission of the crimes for which I must sentence you, and I take that into account, in a general way, as part of the application of the principle of totality albeit that it is for totally unrelated offending. Unhappily, I do not consider that it has reduced the likelihood that you will offend in any material way. In 2014, Ms Swan assessed your likelihood of re-offending as being high, and I see no reason to revise that assessment on the material before me. You present an ongoing risk to other members of the community, and that is a factor which I must take into account in sentencing you.
66To effectively use a car as a weapon to seriously injure a person and then abandon him, as you did, and then abandon him, is brutal behaviour. It demonstrates a lack of basic decency and humanity. I reject the notion that Mr Gordon in any way contributed to his own terrible injuries by trying, as he was entitled to do, to retrieve his property which you had stolen. This was brazen, intemperate offending. It is fortunate that no one else was injured as you were leaving the Captiva along Balmoral Avenue with full acceleration. Even allowing for some reduction of moral culpability due to your cognitive impairment relating to impulsivity, I still regard your moral culpability as high. Following your court appearance in 2014, you were given an opportunity to address your drug and mental health issues but you did nothing about it. Effectively, you have lived on a disability pension for a long time and led a wasted life, taking illicit drugs and committing crimes to support your habit and in taking such drugs you have worsened your cognitive deficits.
67As already stated, notwithstanding some diminution of your moral culpability in relation to Charge 1 and 3, there is still an obligation upon this Court to denounce your conduct, and there is still a scope for emphasis upon general and specific deterrence. Whilst it would be wrong of this Court to disregard your prospects of rehabilitation, generally speaking, I consider them to be poor.
68On Charge 1, intentionally causing serious injury, you are convicted and sentenced to be imprisoned for a period of six years.
69On Charge 2, theft, you are convicted and sentenced to be imprisoned for a period of 9 months.
70On Charge 3, failing to assist at the scene of an accident involving a motor vehicle, where you knew or ought to have known that such person had suffered serious injury, you are convicted and sentenced to be imprisoned for a period of 18 months.
71The base sentence is that of six years imposed on Charge 1. I direct that three months of the sentence imposed on Charge 2, and six months of the sentence imposed on Charge 3, be served cumulatively upon the sentence imposed on Charge 1 and upon each other.
72The total effective sentence is thus six years and nine months.
73I direct that you serve a period of four years before becoming eligible for parole.
74I declare a period of pre-sentence detention of 572 days to be time reckoned as already served under the sentences imposed this day.
75Pursuant to s6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been eight years, with a non-parole period of six years.
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