DPP v Gommers [2020] VCC 406

Charge 21, commit an indictable offence whilst on bail; and Charge 34, trespass.

Reckless conduct endangering serious injury, 5 years' imprisonment

Possess an unregistered general category handgun, 7 years' imprisonment

Cultivate a narcotic plant, one year' imprisonment or a fine of 20 penalty units

Possess cannabis, being a small quantity, a fine of 5 penalty units

Trespass, a fine of 25 penalty units or six months' imprisonment

Commit an indictable offence whilst on bail, a fine of 30 penalty units or three months' imprisonment.

5 As you will be convicted of stealing a motor vehicle, the court must make an order cancelling or suspending any driver's licence held by you and fix a period of disqualification from obtaining any such licence.

6 At the time of entering your pleas, you admitted your criminal record and had served some 369 days by way of pre-sentence detention.

7 On 10 December 2018 and prior to the instant offending you were placed on bail. Accordingly, each of the offences with which you stand charged on indictment, as well as Summary Charge 34, were committed whilst you were on bail, and this is an aggravating feature of your offending.

8 Tendered as Exhibit A and read aloud in court was the Amended Summary of Prosecution Opening Upon Plea. In respect of Charge 1, intentionally cause injury, between 11 and 12 January 2019, you threatened your victim by text in the following terms: "I'm coming to yours in 1 hour debt is 1850"; "Where the fuck is my money"; "Best you have the 1850 when I get up there this msnioii"; "Where the fuck is my money cunt I'm gonna come by hopefully I don't have t shot your fucking house up goose"; "You're gonna let your dad do this alone".

9 On 12 January 2019, at about 1.30am, you drove a black BMW to your victim's address. Your victim came out of his home and paid you some of the money that he owed you. You became aggressive towards your victim and pulled out a sawn off point .22 calibre rifle from inside your car and shot your victim in the upper thigh of his left leg.

10 Upon hospitalisation, whilst an entry wound could be found, no exit wound could be found. An x-ray of your victim's left thigh showed metal fragments within the muscles of his thigh with one fragment lying adjacent to the superficial femoral artery. Fragments were also seen within the hard outer layer of the femur with an associated non-displaced fracture. The victim underwent left thigh debridement and washout, which is a surgical procedure to remove necrotic tissue to promote wound healing. Surgeons found no evidence of neurovascular damage. The shrapnel fragments from the muscles were removed while those in the bone were left in situ. Your victim's leg fracture did not require surgical intervention or immobilisation of the limb. Your victim's immediate post-operative period was unremarkable, and he went home one day after his admission.

11 Between 10 and 22 January 2019, a Kia Sorrento was stolen during a burglary in Clayton South. On 24 January 2019, police discovered the Kia in the driveway of a unit in Ferntree Gully Road, Notting Hill. While the police were waiting for a tow truck to arrive, the car was remotely locked from an unknown source. The car was towed to the Nationwide Towing Yard in Blackburn.

12 On 25 January 2019, at approximately 12.01 am, you drove to the Nationwide Towing Yard in Blackburn in a white Nissan Navarra dual cab utility bearing stolen registration plates. The Nissan was used to ram the main roller door to the towing yard. You were in company with two other offenders. You used the key fob to unlock the stolen Kia Sorrento in the tow yard and retrieved a long soft firearm case from that vehicle and handed it to one of your co-offenders before you set an item on fire and threw it into the Kia Sorento before slamming the door and leaving the yard. The fire dissipated and you and your

co-offenders left the scene. The Kia was forensically examined and a plastic bottle containing petrol was found in the vehicle (Charges 2 and 3).

13 On 27 January 2019, your older brother was arrested in relation to a stolen Nissan Patrol that had crashed on Finkel Road, Harkaway. While at the scene, your brother called you, and a short time later you drove to the crash scene. You attempted to walk towards the stolen vehicle, but you were stopped by police and asked to leave. You went back to your vehicle and remained on site until a tow truck came and removed the stolen Nissan Patrol. Police located two firearms in the stolen vehicle before it was towed to All Car Towing located in Dandenong.

14 On 28 January 2019, at about 3.19 am, you went to All Car Towing's yard in Dandenong. Using two unknown females to distract an employee of the towing company, you scaled the rear fence of the yard, having disguised yourself by covering your face. You approached the stolen Nissan Patrol and rummaged through the vehicle before leaving the yard in an unknown direction (Summary Charge 34).

15 On 2 February 2019, at about 12.00 am, you drove to an address in Doveton in a dark coloured four-wheel drive BMW. A visitor to this address walked outside and spoke to you while you were still in your car. You said, "Who the fuck tried to run over my brother". The visitor replied, "I'm just leaving", to which you responded, "Don't get chirpy".

16 The three occupants of the house came out and you yelled to one of them "Who drives a Magna that's always parked out the front". The person replied, "I don't know mate. I don't live here". Another of the occupants told you, "It's probably from next door, they're always parking their car out the front".

17 You drove to the house next door and returned a short time later and called out to one of the occupants of the house, "Where's the fucking owner of the fucking Magna". The person that you yelled at told you that he did not know. A further occupant of the house walked up to the passenger window of your vehicle and put her hands on the window and said, "What's your problem, we haven't done anything". You then said, "Someone from around here hit my little brother with their car". The female occupant of the house responded, "No one here drives". You then produced a sawn-off rifle and fired two shots near to the female at your passenger side window. You drove off and did a U-turn and came back past the house and fired two further shots. You then drove towards a roundabout, did a U-turn and drove past the house again.

18 On 2 February 2019, crime scene officers attended at the address in Doveton and conducted a forensic and firearm examination and detected two points of impact from fired bullets (Charge 4).

19 On 7 February 2019, police conducted convert surveillance on you. Surveillance operatives observed an unoccupied dark coloured 2010 Ford Territory bearing stolen number plates outside one house east of your address in Rowville. The registration plates were stolen between 21 December 2018 and 7 February 2019 from a 2010 Ford Territory located at an address in Berwick.

20 At about 5.35 pm, you were identified by surveillance operatives leaving your address in company with two other males. You were observed as a rear passenger in the Ford Territory bearing the stolen number plates (Charge 6).

21 On 9 February 2019, at about 6.15 pm, you attended an address in Armadale and stole a Land Rover that was parked in the driveway (Charge 7).

22 Between 30 and 31 January 2019, registration plates TAH 328 were stolen. On 11 February 2019, police conducted covert surveillance on you and observed you driving a white Ford Ranger with the stolen number plates referred to above attached to the vehicle (Charge 9).

23 At about 11.05 pm on 11 February 2019, you and another male exited your house and drove the Ford Ranger to your mother's address in Dandenong. The Ford Ranger was confirmed to be a stolen vehicle that had been stolen from a Cranbourne North address between 14 and 15 January 2019 (Charge 8).

24 At approximately 3.38 am on 11 January 2019, you were seen to get out of the driver's seat of a light coloured utility at an address in Jells Road, Wheelers Hill. You stole registration plates 1GK 1GU from the Ford Ranger that was parked on the nature strip outside the Wheelers Hill address.

25 On 12 February 2019, police surveillance of you noted that at 6.30 pm the stolen Ford Ranger was located in a street one street north of your address in Rowville. The Ford Ranger was observed to be bearing a front stolen registration plate number IGK 1GU.

26 At 7.23 pm on 12 February 2019, police attended and recovered the stolen Ford Ranger (Charge 10).

27 On 13 February 2019, at about 5.35 am, you drove with another man in a dark coloured Ford Territory to the Nationwide Towing Yard in Dandenong. You jumped the front fence of the towing yard, whilst the unknown co-offender remained in the Ford Territory. You entered an unlocked tow truck where you located keys to the tow yard office and to two Nationwide BP Petrol Cards. You then used the keys stolen from the tow truck to enter the towing yard office. Whilst in the office, you stole two sets of keys to a black Jaguar sedan and a white Volkswagen sedan. You used the stolen keys to unlock the Jaguar sedan and you drove it out of the yard.

28 At about 5.52 am, you and your unknown co-offender drove the Jaguar back to Nationwide Towing. At this time, a tow truck driver was at the yard. The unknown co-offender got out of the front passenger seat and used the key to unlock and get into the white Volkswagen. You got out of the black Jaguar and began to walk towards the white Volkswagen. The tow truck driver, having observed this, yelled out at you, and you ran back to the black Jaguar and got into the driver's seat. The tow truck driver stood between the black Jaguar and the exit driveway. You reversed your vehicle towards the exit and swerved around the tow truck driver, narrowly missing him (Charges 11, 12, 13, 14 and 15).

29 At about 4.20 am on 14 February 2019, two vehicles were stolen during an aggravated burglary at an address in Whelers Hill. These vehicles were a 2008 BMW X6 coupe and a 2014 white BMW wagon.

30 At about 2.53 pm on 14 February 2019, the stolen BMW X6 coupe was driven by you into an underground carpark in Murray Street, Clayton.

31 On 14 January 2019, at about 4.38 pm, you were seen as an occupant of the 2014 white BMW station wagon when it was driven to a Dan Murphy's store in Rowville (Charges 16 and 17).

32 Between 14 and 15 February 2019, you attended at an address in Notting Hill where you removed the registration plates from a BMW X5 sedan and attached them to the white BMW that you had earlier stolen from a Wheelers Hill address (Charge 18).

33 At approximately 1.52 am on 15 February 2019, you were an occupant of a stolen Ford Territory (Charge 5) bearing stolen number plates (Charge 6). While travelling east in Glen Waverley, the Ford Territory collided with a power pole near the intersection of Hamence Street and High Street. You and the other occupant left the vehicle, which was damaged and could not be driven.

34 On 15 February 2019, police followed you as you were driving the white BMW stolen from Wheelers Hill that was bearing stolen number plates. You were arrested at the Knox Shopping Centre. A search was conducted of a black satchel that you wore over your shoulder, and in that satchel was found a BMW key and a Jaguar key. A further search of you located a small zip-lock bag containing methylamphetamine (Charge 22).

35 A search warrant was executed at your address in Rowville by police and during the search they located:

A sawn off .22 calibre rifle on the kitchen bench (Charge 19);

Two Nationwide Towing BP Fuel Cards stolen from Nationwide Towing in Dandenong;

A small amount of cannabis (Charge 21, possess cannabis);

Two small cannabis plants in the rear yard (Charge 20, cultivate cannabis).

36 On 15 February 2019, you were conveyed to the Box Hill Police Station and interviewed under caution and remanded in custody.

37 On 24 February 2019, police were called to attend the underground carpark at Clayton in relation to an abandoned vehicle. There, the police located the BMW X6 which was stolen from Wheelers Hill and the black Jaguar stolen from the Dandenong towing yard.

38 Both vehicles were recovered and towed for forensic analysis. The BMW and Jaguar keys located on you when you were arrested were forensically examined and found to match the BMW and Jaguar cars abandoned in Clayton.

39 On 11 April 2019, a further interview under caution was conducted to which you responded, "No comment" to questions asked of you.

40 Mr Gommers, you have 16 prior convictions or findings of guilt from four appearances, three of which were in the Children's Court. Your prior offending includes offences of violence, dishonesty, and drug matters.

41 Mr Gommers, you are presently 22 years of age and, at the time of your plea, you were held in the Penhyn Youth Unit, where you were employed as a cleaning billet. Further, you have completed a number of courses whilst in custody and so are using your time in custody productively. Importantly, you are drug free (See Exhibit 2).

42 However, according to Ms Sankaran, psychologist, your mood is low (See Exhibit 2),

43 As to your personal history, you are the younger of two male children born to your parents. You reported to Ms Sankaran that you had a dysfunctional upbringing characterised by neglect and physical and emotional abuse. Your parents abused drugs and have criminal histories. Your parents separated when you were aged 18 months and you were placed in the care of DHHS until you were three years of age.

44 Your father obtained custody of you, although he was an abuser of cannabis, and used violence as a form of discipline. Your father re-partnered, and your stepmother treated you and your brother differently, and I infer adversely, to how she treated her own children.

45 When you were aged about eight or nine years, your father suffered an industrial accident and never worked again. From that time to this, you have witnessed more than one suicide attempt by your father. To make matters worse, you regarded your older brother as a role model, and he was involved in drug abuse and criminal activity.

46 You informed Ms Sankaran that you have reconciled with your stepmother and her seven children.

47 You attended school to Year 9 and claim to have been bullied at school. Upon leaving school at about 14 or 15 years of age you lived with two of your older stepsisters and, despite your dysfunctional upbringing, you completed a Certificate III in roof-tiling and completed your apprenticeship with Mr Tanner. Mr Tanner was called as a witness to give evidence on the plea. Mr Tanner swore that you were a good apprentice, that you took pride in your work and, at the end of your indenture, he convinced you to start your own roof tiling business. Further, Mr Tanner said that he regarded your offending as

out-of-character with the apprentice that he trained. By my calculations, you completed your indenture when aged 18 or 19 years and thereafter you started your own business which employed on occasions more than one roof tiler on a casual basis.

48 You have a long history of drug abuse. You commenced abusing cannabis when you were about 13 years of age. You started using GHB and Ice at about 16 years of age. Ms Sankaran reported, "He reported habitual use of alcohol, cannabis, Ice, and GHB over several years and reported an increase in drug use following his father's attempted suicide in 2018".

49 You further reported that you were typically affected by 7 grams of Ice, 25-30 millilitres of GHB, and about 1 gram of cannabis daily during the period of your offending (See also the report of Maria Hutchison dated 18 November 2019 that forms of Exhibit 1).

50 In addition to the matters to which I have referred, tendered as Exhibit 3 was a reference from Mrs Fiona Calvert, the mother of your partner, Ainsley Calvert. In 2016 and 2017, for some months you lived as a couple with Ainsley Calvert's mother. Mrs Calvert, a bookkeeper, gave you advice in respect to setting up your business and while you resided with her you gave her no reason to be concerned about you.

51 Mrs Calvert wrote that you were generous in your financial support to your immediate and extended family. You left Mrs Calvert's home in June 2017 to reside with your partner in Rowville. Mrs Calvert wrote that in the period prior to your offending, she had little to do with you as she was kept away from you by her daughter. Mrs Calvert wrote that her contact with you was mainly by text and that your texts became increasingly rambling in nature over time.

52 Mr Gommers, you were 21 at the time of your offending. You entered your plea at the earliest opportunity and are entitled to the benefits that flow to you from this plea, being that it is some evidence of your remorse and that it has utilitarian benefit. You are now 22 years of age and are a youthful offender. However, your offending is of a most serious kind. You deliberately shot a man in the leg. On another occasion, you discharged a firearm on more than one occasion near to another person and at a dwelling.

53 Furthermore, your theft of and use of stolen motor vehicles camouflaging their true identity by stealing and using year appropriate registration plates demonstrates a high level of criminality, both violent and dishonest in nature. In my opinion, your conduct is so serious that the normal emphasis in the exercise of the sentencing discretion of rehabilitation of youthful offenders must take a backseat in your case. General deterrence, specific deterrence, just punishment, and public denunciation of your conduct must be the dominant sentencing factors when arriving at an appropriate sentence in your case.

54 Having said that, I must and do give weight to your dysfunctional upbringing and your ability to rise above that and obtain a trade and work at that trade as a self-employed person who employed others. Likewise, I must take into account your conduct, indeed progress, whilst in prison, including your abstinence from drugs of addiction.

55 However, your prospects for rehabilitation I assess as guarded, as they are entirely dependent upon you remaining drug free in circumstances where you have been a drug abuser since the age of 13.

56 Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:

57 In respect to the charges on the indictment, I order that six months of the sentence imposed on Charge 19 together with three months of each of the sentences imposed on Charges 2, 4, and 11, together with two months of each of the sentences imposed on Charges 5, 7, 8, 13, 15, 16 and 17, together with one month of the sentences imposed on each of the sentences on Charges 6, 9, 10, 14, and 18 be served cumulatively upon each other and upon the sentence imposed on Charge 1.

58 In respect to the related summary offences: On Charge 21, I sentence you to one month' imprisonment. On Charge 34, I sentence you to three months' imprisonment.

59 This results in a total effective sentence of five years and 10 months' imprisonment, and I order that you serve a period of four years of imprisonment before you will become eligible for parole.

60 I declare that you have spent 402 days by way of pre-sentence detention not including today.

61 I order that all licences and permits held by you under the Road Safety Act 1986 be cancelled and that you be disqualified from obtaining any such licence or permit for a period of three years.

62 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to nine years' imprisonment with a minimum of six years' imprisonment.

63 Mr Gommers, there was an application for a forfeiture order in respect to the firearm and one fired bullet and I have made a forfeiture order in respect of that. In addition, there was an application for a disposal order in respect to a number of items in property that are set out in the schedule, which include a hockey mask, a container containing a small amount of cannabis, a plastic zip-lock bag containing a small quantity of methylamphetamine, a zip-lock bag containing methylamphetamine, a small plastic bottle containing viscous liquid, dry cannabis, and two cannabis plants, and I have made that order.

64 Are there any other matters arising out of the sentence?

66 MS DAWSON: I would certainly benefit, if Your Honour might - either by pronouncement orally or maybe perhaps in written version, so that I can ascertain - I did not quite catch some of the cumulation.

67 HIS HONOUR: I will repeat them for you if you like.

68 MS DAWSON: I was writing as quick as I could, but I think I might have missed at least one.

71 HIS HONOUR: No, there is nothing to apologise about. Do you have a record of the sentences that were imposed?

73 HIS HONOUR: Then, in respect to the charges on the indictment, I order that six months of the sentence imposed on Charge 19 together with three months of each of the sentences imposed on Charges 2, 4, and 11, together with two months of each of the sentences imposed on Charges 5, 7, 8, 13, 15, 16 and 17, together with one month of the sentences imposed on each of the sentences on Charges 6, 9, 10, 14, and 18 be served cumulatively upon each other and upon the sentence imposed on Charge 1.

74 That results in a total effective sentence of five years' and 10 months' imprisonment.

76 HIS HONOUR: That is all right, with a minimum term of four years. Anything else?

79 MS POULTER: Your Honour, I am just wondering if Your Honour, I could have a brief word with Mr Gommers when Your Honour rises from the Bench.

80 HIS HONOUR: Yes, certainly. I will stand down while you have that conversation with Mr Gommers. That will be held in the absence of the two persons who are present in court. Would you please absent yourself from court, this is a confidential communication, and the Crown will do the honourable thing. I excuse you from the Bar table, and I will stand down until the next sentence. There are those orders.