Director of Public Prosecutions v Jojic

[2016] VCC 468

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00066

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOVAN JOJIC

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 April 2016
DATE OF SENTENCE:	22 April 2016
CASE MAY BE CITED AS:	DPP v Jojic
MEDIUM NEUTRAL CITATION:	[2016] VCC 468

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Thomson	Office of Public Prosecutions
For the Accused	Mr T. Lavery	C Marshall and Associates

HIS HONOUR: 

1Mr Jojic, just before I proceed to the sentence, you have consented to an order to provide a sample for forensic analysis.  And I am required to warn you that when the appropriate officer seeks to take that saliva sample, I will not require you to provide a sample of your blood, but when the appropriate officer seeks to take that saliva sample, if you do not cooperate, he can use reasonable force, do you understand that?

2ACCUSED:  Yes. 

3HIS HONOUR:  All right.  I have signed both those ancillary orders, gentlemen.

4COUNSEL:  Yes, Your Honour.

5HIS HONOUR:  You can stay seated down, Mr Jojic. 

6MR LAVERY:  Just before Your Honour proceeds ‑ ‑ ‑ 

7HIS HONOUR:  Yes?

8MR LAVERY:  I understand from my client that an assessment was not conducted yesterday in respect to a Community Corrections Order. 

9HIS HONOUR:  That is right.

10MR LAVERY:  I understood Your Honour was seeking one. 

11HIS HONOUR:  Who said that?

12MR LAVERY:  I thought that Your Honour was going to seek an assessment. 

13HIS HONOUR:  I never indicated that ever. 

14MR LAVERY:  Very well, Your Honour.

15HIS HONOUR:  You can check the transcript if you want to.

16MR LAVERY:  Yes, I checked my notes, Your Honour, and I understood Your Honour was going to.  I don't say that an order was made, but one being conducted. 

17HIS HONOUR:  Well, you can check the transcript, I never indicated that in any way, shape or form. 

18MR LAVERY:  Yes.  Very well, Your Honour.

19HIS HONOUR:  The prosecutor indicated to me that that could be done. 

20MR LAVERY:  Yes.  I cannot take it any further, Your Honour.

21HIS HONOUR:  Well, do you want to check the transcript before we proceed?

22MR LAVERY:  No, I do not, Your Honour.  I accept what Your Honour says.

23HIS HONOUR:  You have pleaded guilty to one charge of recklessly causing serious injury.  The maximum penalty for this offence is 15 years' imprisonment.  You were originally on trial for intentionally causing serious injury. 

24Your plea of guilty to recklessly causing serious injury was made on the fourth day of listing of your trial on the more serious charge of intentionally causing serious injury. 

25Your Defence Response filed at that trial was a denial you were present at the house in question and a denial you caused any injury to the victim.  Your guilty plea to the lesser charge of recklessly causing serious injury followed Basha inquiries taking place and additional witness statements being served on you by the Crown. 

26During pre-trial argument, hospital records were examined, indicating potential admissions by you to staff, pointing to your involvement in the stabbings.  This led to the additional witness statements. 

27The circumstances of your offending are set out in the Summary of Prosecution Opening read by the prosecutor and tendered as Exhibit A.  The summary speaks for itself about the facts which found the charge. 

28Briefly, you were at a house on 22 December 2012 with the victim and his girlfriend.  You all smoked some methamphetamine, “ice”.  You accused the victim of smoking your ice which he denied.  You became angry and left the house and drove away.  You returned a few minutes later and took out a knife with a blade 15 cm long. 

29After the victim again denied smoking your ice, you then performed something of a countdown, reciting from three down to one and then jumped on him.  You stabbed him multiple times, said by the victim in his statement to be 20 times. (Exhibit B)

30The 24 photographs tendered show multiple wounds in what must have been a frenzy of stabbing. (Exhibit C)  Those photographs speak for themselves, but clearly some wounds were extremely deep.  They were sufficiently deep to puncture his left lung and to sever an artery in his left arm.  A stab to the neck penetrated to the spine. 

31The victim's girlfriend screamed out for help after running out of the house and the victim escaped from the house by jumping out of the window.  You drove away. 

32Police and paramedics then attended the victim who was conveyed to the Royal Melbourne Hospital where he underwent surgery.  He was in Intensive Care Unit in hospital for some days.  Your parents took you to hospital some hours later due to concerns about your behaviour.  You were diagnosed there as being in a psychotic state secondary to recreational drug use. 

33I regard this as a very serious example of this type of offending.  There are a number of features which render it so.  These include your use of a weapon being the large knife.  You inflicted multiple wounds, some very penetrating.  Your returning to the house after initially becoming angry and driving away indicates to some extent both a degree of planning and premeditation in relation to the attack.  The countdown you went through before starting the stabbings does not indicate spontaneous offending.  Very serious injuries were inflicted. 

34The Victim Impact Statement needs little elaboration.  It bears out the stark reality of the significant physical, cosmetic, emotional and mental trauma and distress that your actions have caused. (Exhibit B)  I am satisfied that a number of these effects will be permanent. 

35I turn now to matters personal to you. You are now aged 25 years.  You have no prior convictions.  Your history of drug abuse with ice had commenced some two or so years before this offence.  I am told that periods in custody on remand have apparently been beneficial in terms of getting you off drugs but I have no testing data.

36You are said to be highly motivated to work, but no evidence has been produced about any work or from any employer, past, present or proposed.  

37It was submitted you are caring for your unwell mother but again I have no evidence about this or her condition.  Your father was pointed out as sitting in court but was not called. 

38Tendered on your behalf were four reports from 2013 in the context of Court Integrated Services Program, CISP. (Exhibit 1)  These are largely in a context of bail conditions.  Two pages of handwritten Western Hospital notes from nurses on the day of the offence were tendered. (Exhibit 2)  An Outline of Defence Submissions on Plea was also provided. (Exhibit 3)

39No evidence was placed before the court by way of tender or orally as to your personal circumstances since the 2013 reports in Exhibit 1.  Accordingly, I have been given no up-to-date evidence with which your current prospects of rehabilitation are able to be properly measured.  At best, I can say no more than they are guarded.

40Your counsel pointed to a number of matter you are entitled to have taken into account in mitigation.  I do not accept that your plea at the stage and in the circumstances it was given was indicative of much, if any, genuine remorse,  but more to the realities of additional witnesses being discovered in those hospital records tendered at the pre-trial stage.  The muddled statements tendered from the Western Hospital on the day point more to the effects on your mind of ice than genuine remorse. (Exhibit 2)

41Nevertheless, there is some utilitarian advantage to the community in saving time and expense involved in a trial.  You have also saved witnesses the ordeal of giving evidence.  I take these matters into account.  Also, you have spent 41 days in pre-sentence detention on this matter. 

42I have also been told that you have spent 129 days on remand in relation to another matter for which you were acquitted. It was described in submissions as "dead time". I do not consider this time as pre-sentence detention under s.18 of the Sentencing Act in this case, but I take some account of it.

43Your counsel submitted that a term of imprisonment combined with a Community Correction Order (CCO) was the appropriate disposition.  A term of imprisonment, being 40 days in custody at the stage of the submission for this offence, together with the dead time was submitted as satisfying the imprisonment part of the suggested combined disposition.  The prosecution submitted a combined disposition was within range and pointed to authority that stands for the proposition that a sentence of imprisonment of two years minus one day plus a CCO was open. 

44After having regard to all matters to be considered in the sentencing process, I am of the view that the purposes for which sentence is imposed cannot be achieved by a CCO, even combined with a term of imprisonment of that length. 

45As well as matters personal to you which I have referred to, I must take into account other relevant sentencing considerations.  General and specific deterrence must be given weight in the sentence I will impose.  The community cannot and will not tolerate offending which so seriously compromises a citizen's right to feel safe from an altogether too frequent form of violence in the nature of stabbings. 

46It is offending that can have devastating physical and emotional consequences involving in this case stabs being so deep as to penetrate the lung and spine, as well as severing an artery in the left arm.  The message must be clear and consistent that appropriate punishment will result in such circumstances.

47Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must protect the community from any repetition of this type of offending.  I must seek to deter you from other offending as well as deterring others. 

48Your use of ice, leading to self-induced psychotic state might provide some explanation of your offending to a degree but provides no excuse.  General deterrence requires primary concern in this type of offending involving use of a weapon as dangerous as a large knife.  These are without doubt serious offences.  Stand up, please.

49In the circumstances, you are convicted and I impose a sentence of four years' imprisonment and I direct that you serve two years and nine months before being eligible for parole. I declare 41 days pre-sentence detention pursuant to s.18 of the Sentencing Act. Pursuant to s.6AAA of the Act, I declare that but for your plea of guilty, I would have imposed a sentence of five years' imprisonment with a three years and six months period.  I make the two ancillary orders consented to.  Take Mr Jojic, please. 

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