DPP v Gorman [2018] VCC 1447

1. Cody Connell and Colin Gorman, have each pleaded guilty to charges arising out of the same incident which occurred at Frankston on 15 July 2017. The victim, Kyle Emery, was shot in the knee at close range by Connell and was then unlawfully detained by Gorman and prevented from getting medical attention. Connell was charged with possession of an unregistered general category handgun and with causing injury intentionally. Gorman was charged with false imprisonment and possession of an unregistered general category handgun as well. He also pleaded guilty to a summary charge of contravening bail conditions.
2. The background to the shooting concerned a small drug debt. Late on Friday 14 July 2017, Connell handed to Emery half a gram of ice for him to take to two friends at Hastings. Emery asked his friend, Russell Currie to drive him to Hastings and on the way, they picked up the two friends in question, Luke Case and Billy Heritage.
3. Luke Case was driven to an ATM where he withdrew some money, but he only gave $100 to Emery, which was short of the required price of $270. Currie became angry and said he would take the two men to Frankston, whereupon Luke Case suddenly pulled on the handbrake of the car while it was travelling at about 30 kilometres per hour. This caused it to swerve and as Currie regained control and slowed, Heritage and Case leapt from the car, taking with them the half gram of ice.
4. Shortly after midnight Emery called Connell and told him what had happened. Connell repeatedly demanded his money and said he would go and get it himself. He demanded that Emery go back to Unit 2, 103 Dunsterville Crescent, Frankston, where Connell's girlfriend was living. At this address there was a garage set up as a living area, described as a "hangout" area for Connell and his friends. This was next door to 105 Dunsterville Crescent, where Emery's mother, Deborah Dawson lived at the time. This was how Emery had come to know Connell.
5. On arrival at Unit 2, 103 Dunsterville Crescent, Emery sat on a couch opposite Currie. Gorman took up a position to Emery's left, holding a small tomahawk. Connell was located about five feet to Emery's right, holding what Emery thought was a sawn-off gun. It appeared to be homemade and had a silencer on the end, described by Emery as an "oil filter". Connell had possession of this improvised .22 handgun throughout the time Emery and Currie were there. Gorman took Currie's phone from him and Connell demanded money from Emery, taking $90 from him.
6. To placate Connell, Emery also gave him his driver's licence and bankcard and said he would get the rest of the money in the morning. He continued to try to explain what had happened, but Connell dismissed it all as lies. Connell repeatedly said to Emery, "Left or right?" apparently wanting Emery to nominate which leg he was to be shot in. Connell initially said Currie would get one too, but Emery argued that it was not Currie's fault, because he had just been the driver. Emery did not believe he would be shot, as Connell was his friend, but he said, "Left. Just do it. Get it over with."
7. Emery covered his face, at which time Connell stepped forward and pushed the firearm into Emery's left knee and shot him once to the knee. Emery heard a pop and stunned, he said nothing for minutes afterwards. He turned into the couch and was breathing very deeply, holding his knee. He stated that the pain was not too bad at first, but when he tried to walk, he fell over. The wound began to bleed heavily and when he saw this he fainted.
8. Soon after midnight he tried to call his mother, Deborah Dawson, and sent her a text message saying he had a gun pointed at his head "over 120", referring to the outstanding $120. At around this time, Gorman threatened Emery and Currie that, "If anything came back on him, then they were dead". He had already taken photographs of their driving licences.
9. About two or three hours later, Connell's girlfriend came into the garage to see what they were doing because they were loud. She heard Emery say he had been shot and Connell told him to "shoosh". She thought they were joking. Meanwhile, Emery had sent a text message to his

ex-girlfriend saying he had been shot in the knee. Connell began to give Emery an assortment of illicit drugs, including GHB and cannabis to deal with the pain. He suggested surgically removing the bullet himself. He left the garage, leaving Emery with Gorman and with Currie seemingly asleep on the couch.

10. By this time, Emery was unable to walk and was in extreme pain and wanted medical attention. He repeatedly told Gorman that he wanted to go next door and call an ambulance. Gorman refused to let him go and told Emery he was not going anywhere until Connell returned, although there is nothing to suggest that Connell had agreed with Gorman to falsely imprison Emery. While Emery was being held against his will, Gorman variously had with him, or close to him, the firearm and a tomahawk. Emery sent text messages to Luke Case and to his girlfriend between 2 and 3 am, saying he had been shot in the knee and was being held at gunpoint until he could provide the money.
11. Towards daylight Emery's condition deteriorated and he began vomiting, at which stage Connell gave him more cannabis to calm him down and he slept until late the next morning. At about 11 am, Ms Dawson returned to the next door house, 105 Dunsterville Crescent, and she rang her son, who told her he had been badly hurt and was actually next door at No.103. She came to the garage and as a result, Emery was driven to hospital by Connell's girlfriend, together with Currie, but it should perhaps be observed that this was not before they had stopped at McDonalds to buy food.
12. Just before arriving at hospital, Emery sent a message to Connell saying he did not know who did it and that it happened before he came to Connell's place. Emery underwent surgery to remove metallic fragments of the bullet from the bone in his left knee joint, leaving a metal fragment in the back of the knee which did not require removal. The doctor noted that there was substantial cartilage damage at the site where the metal fragments had penetrated and become embedded in the bone and there was a possibility of further problems with the knee joint in the future.
13. Both men were arrested on 18 July 2017 and Connell was interviewed that day. He claimed that Emery was already injured when he and Gorman went to the garage that night. He claimed that a friend had then driven him to Portsea and they had returned to Frankston a few hours later. Enquiries and investigations proved this to be false.
14. When Gorman was interviewed, he said he had not been at the premises that night, but had been at home. On his mobile phone, police found the photographs taken that night of the driving licences of Emery and Currie, placing Gorman at the scene in the garage. Gorman was eventually released on bail by the Supreme Court, on condition that he not contact a witness but he breached the condition by contacting her between 28 October and 3 November 2017.
15. Each of the offences committed on this occasion represents a serious example of the specific crime. The fact that they are serious offences is reflected in the substantial prison sentences available as maximum penalties. For causing injury intentionally, the maximum penalty is ten years' imprisonment. For possession of an unregistered general category handgun, it is seven years or 600 penalty units. For false imprisonment, ten years and for the summary offence, three months or 30 penalty units.
16. Even though it seems to have been unplanned, the shooting was carried out in a calculated and cruel manner, using a homemade gun, and the victim was held against his will and denied the medical treatment he needed, which would have been obvious. In addition, he was given doses of various illicit drugs, apparently as a crude means of pain relief.
17. The victim, Emery, has provided a victim impact statement, as has his mother, Deborah Dawson. Mr Emery stated that he was a carpenter before he was injured in the shooting, but he was unable to walk for six months, and even a year later, he cannot stand for long periods. He realises that he is lucky he did not die from blood loss or the drugs he was given.
18. His mother expressed the same fear, that her son might have died if she had not found him when she did. Her immediate fears that day were that he could die and that not knowing who had done this to him, he could still be in danger. She has ruminated over what she could have done to have avoided her son being shot. She described his emotions in the aftermath of the crime as being very mixed, partly out of loyalty to Connell, who was his friend and partly from realising he was justified in making his statement to the police.
19. Ms Dawson had to support her son emotionally and financially and physically as well, because he was on crutches. She said it has been the worst parenting job she has ever had to do and I take her to mean that it has been the most difficult. However, she also reported that her son had changed for the better as a result of the incident that night and he is now working and has moved on from where he was before.
20. Mr Connell, I now turn to your personal background and circumstances. In pleading guilty to these two charges, you are relying on the fact that you have no prior convictions and have good prospects for rehabilitation. You are said to be now a very different person than the man who committed the offences. Mr Emery was your friend and neighbour and your instructions to your counsel are that you know that what you did was very bad and that you hoped to be forgiven one day.

1. You are aged 29, born in Australia of an Australian father and a Maori mother. Unfortunately, alcohol problems and family violence featured in your early life and your parents separated, although even before then, your eldest sister, Anita, had been the stable anchor in your life and she remains supportive of you. You lived with your father until his death on 2009, when you went to live with your brother, who sadly died of a drug overdose.
2. You were apparently well behaved at school, because you feared your father's wrath and the physical consequences if bad behaviour were to be reported to him. You were an average student and left school after Year 10, then working as a labourer and later as a carpenter.
3. You had a relationship with Marilyn for seven years and with her, you had a daughter, who is now six. After the deaths of your father and brother, you drank heavily in order to deal with your grief, ignoring Marilyn's pleading for you to get professional help. She told you that you would have to leave if you continued to use illicit drugs and, indeed, you separated when your daughter was four.
4. There followed a period of instability and increased substance abuse, when you mixed with a negative peer group and used excessive amounts of methylamphetamine daily.
5. By the time you were remanded for these matters, you had not seen your daughter for a year. You are now in touch with your ex-partner and with your daughter, who will be visiting you in prison soon, as part of a program called "Day With Dad", meaning that your ex-partner will wait outside while you have time with your daughter.
6. Recently you were assessed by a clinical psychologist, Mr Matthew Staios, whose formal opinion was that you are in early remission in a controlled environment from a stimulant use disorder. Mr Staios concluded that the various factors summarised in his report, to which I have just referred, led to "the normalisation and integration of a number of dysfunctional values into his personality structure".
7. Mr Staios went on to say that you have limited practical and emotional supports and poor problem-solving skills and these deficits, as well as your tendency to be dominated by others, have likely impacted on your ability to exercise appropriate judgment when acutely intoxicated. He thinks you have some insight into this and I am told that you now understand that you need to have grief counselling. Mr Staios noted that if you had had treatment earlier, you might have avoided this offending altogether and the fact that you have no previous criminal history would tend to support that opinion.
8. You have used your time in prison to considerable advantage, in terms of completing a large number of courses which are available for remand prisoners at Ravenhall Prison. You have a job in the kitchen, you attend classes and you go to church services. You are promoting your health through diet and exercise. You are exploring your Maori culture, which will likely assist in your relationship with your daughter, as her maternal grandmother is also a Maori woman.
9. The indications are that you have good prospects for rehabilitation, having achieved some insight into the problems which led you to offend so seriously and having already taken steps to developing a different way of living your life.
10. Your plea of guilty, entered on 23 April 2018, was not early on the face of it, because it occurred after a contested committal held in January, but it resulted in the less serious charge of causing injury intentionally and it must be accorded its value, in terms of a utilitarian benefit by avoiding the trial. I also accept it as an indication of remorse and your acceptance of responsibility for the offending.
11. For these mitigating reasons, the sentencing submission by your counsel is for a combined imprisonment and Correction Order. However, after careful consideration, I have formed the view that the offending was too serious to permit that course and so you will be sentenced to a term of imprisonment with a non-parole period.
12. The objective gravity of the crime is high, given that it was a deliberate shooting with a handmade gun and there was a high risk of serious injury. Indeed,

Mr Emery was fortunate that he was not left with a disability.

13. Would you stand now please, Mr Connell.
14. For charge 1, possession of an unregistered general category handgun, you are sentenced to two years' imprisonment.

For charge 2, causing injury intentionally, you are sentenced to four years' imprisonment, and that will be the base sentence.

I order that three months of the sentence for Charge 1, be served in cumulation upon charge 2, this results in a total effective sentence of four years and three months.

I order that you serve three years before being eligible for parole.

You have spent 416 days in pre-sentence detention. I declare that time to be reckoned as already served and I shall note it on the court record.

1. If you have pleaded not guilty to these charges, I would have sentenced you to five years, with a non-parole period of three and a half years.
2. Take a seat please, Mr Connell.
3. Mr Gorman, I now turn to your circumstances. As I said to Mr Connell, this is very serious offending. Your role in the crime differs from Mr Connell's role, in that you did not fire the gun, but you had possession of it at the relevant time, during the period of detaining Mr Emery. You detained him against his will, a crime in itself, but in addition to that, he was badly injured and needed medical attention and you delayed that for many hours. You achieved this partly by being in possession of the handgun which had been used to shoot him. By any reckoning, it was a shocking crime.

1. You had initially been granted bail for these matters, but had remained in custody upon your arrest because of other Magistrates' Court matters, and for these you were sentenced to seven days' time served and released from custody. An application was made by the Director for your bail to be revoked, but this was unsuccessful and it was only after you breached the bail conditions by contacting the witness that you were again remanded in custody on

2. You entered a plea of guilty at the final directions hearing in April. That plea means you are entitled to a discount on your sentence for having avoided the expense and inconvenience of a trial and importantly, for having spared the victim and witnesses from having to give evidence again, however, you also will be sentenced to a term of imprisonment and I shall explain why.
3. First I turn to your personal background. You are 42 years old and you were 41 at the time of the crime. As a young child, you were adopted and you never met your biological family. You grew up in New South Wales. Your adoptive parents had their own biological children and you saw yourself as being different. You were disruptive at school and occasionally got into fights with other children. You left school in Year 8, after having difficulties learning.
4. Your parents became increasingly frustrated with you and when you were aged 14, they gave you the telephone number of a refuge in Sydney and told you that you were no longer welcome to stay with them. You have not seen them or your adoptive siblings since. From that time you lived in a number of refuges and charitable institutions and also experienced periods of homelessness.
5. You began smoking cannabis at 15 and moved onto methylamphetamine aged 20 and you began offending. In your early-20s, you were convicted of a violent offence, along with other offences and you were imprisoned. Some six years passed when you lived a stable life with a partner, but later in 2008, you were convicted of assault in the ACT Supreme Court and sentenced to two years' imprisonment to be served by home detention for 12 months and the remainder suspended, but with a Community Based Order as well. That conviction had resulted from an assault you committed when a patron at a pub harassed your girlfriend who worked there.
6. After serving that sentence you remained in the ACT for several years, before moving to Melbourne. You worked here in construction and labouring jobs and in recent times, you worked on the level crossings removal in Frankston, but when this work finished, you were unemployed. This was a period of stability for some years, demonstrating that you respond well to routine and the discipline of work. You have reported that being unemployed led to feelings of futility and depression and you relapsed into drug use, which led to the offending, by which time, you were using methylamphetamine regularly.
7. You have a daughter aged 19 who lives in New South Wales and you are in occasional contact with her via Facebook, but you prefer now not to pursue a substantial relationship with her until you have been able to return to a more stable life that does not involve drug use or imprisonment.
8. In prison, you have completed a number of drug-related courses, which have given you some insight and you have worked in the prison kitchen at Ravenhall. You have been exercising and trying to establish a constructive routine.
9. Your counsel, Ms Brown, submitted that this indicates that your prospects for rehabilitation are at least reasonable, despite the nature of the offending. She sought to cast the gravity of the offending in this case as less grave than in some other cases, because it was fairly unsophisticated and the victim was not restrained physically and it was for a limited period of four hours. She characterised it as an attempt at bravado while you were heavily drug affected.
10. In my view, however, the fact that medical assistance was denied to the victim during this time and that he was being plied with illicit drugs, should be regarded as an aggravating feature of the offence.
11. Your plea of guilty was entered at the final directions hearing in April this year, after the contested committal hearing in January, so it is not an early plea, but you are entitled to a modest discount for it, because the expense and inconvenience of a trial has been avoided. I think I have already made that reference. I also accept it as an indication of remorse, in that you have accepted responsibility for your offending, but I note there is no direct evidence that you are remorseful.
12. Ms Brown's submission is that a combination prison term and a Community Correction Order would provide the best protection for the community by means of your rehabilitation to be achieved through structured drug and alcohol counselling and employment with all its benefits. Although these are sound reasons in support of such a disposition, the offending in this case is too serious. The need for general deterrence in relation to such a serious example of the offending is a significant sentencing factor and the sentence

I impose should reflect that in order to deter others from such crimes.

13. Although your role in the offending was different from that of Mr Connell, your role in detaining the victim, while in possession of the gun, was a serious crime and certainly not at the lowest range. The result is that punishment should not be very different from that imposed on Mr Connell.
14. Would you stand now please, Mr Gorman.
15. I sentence you as follows:
16. For possession of an unregistered general category handgun, you are sentenced to two years' imprisonment.
17. For false imprisonment, you are sentence to three years' and six months' imprisonment.
18. That will be the base sentence and I order that three months of the sentence for Charge 1 be served in cumulation upon it.
19. For the summary offence, you are convicted and sentenced to one month's imprisonment, which will be served concurrently with the other sentences.
20. This results in a total effective sentence of three years and nine months.
21. I order that you serve two years and six months before being eligible for parole, which when it does happen, if and when, will likely provide the structure you need, while allowing you the opportunity to gain employment and restore routine and discipline to your life.
22. You have spent 335 days in pre-sentence detention and I declare that time to be reckoned as already served and I shall note it on the court record.
23. If you have pleaded not guilty to these charges, I would have sentenced you to four years, with a non-parole period of three years.
24. In each case there is an application for a disposal order, which I understand is not opposed and I make those orders.
25. Now, is there anything further, Mr Regan, that I have omitted or neglected?
26. MR REGAN: No, Your Honour, those orders can be sent down to OPP, or

27. HER HONOUR: Very well. Anything further?
28. MR MILLER: Nothing, Your Honour.
29. MS BROWN: No, Your Honour.
30. HER HONOUR: Thank you.