Gorman v The Queen [2019] VSCA 128

1 In circumstances we will later describe in more detail, on Saturday, 15 July 2017, Cody Connell ('Connell'), aged 27,[1] shot Kyle Emery ('Emery'), aged 24, in the left knee using a .22 calibre silenced improvised handgun to do so. Connell shot Emery, it seems, over a small drug debt. For the next four hours, the appellant, Colin Gorman, then aged 43,[2] unlawfully imprisoned Emery, preventing him from getting medical treatment.

2 As a result of these events, the appellant and Connell faced charges in the County Court. Thus, on 29 August 2018 the appellant pleaded guilty before a judge in the County Court to false imprisonment (charge 1)[3] and possession of an unregistered general category handgun (charge 2).[4] He also pleaded guilty to a summary charge of contravening the conditions of his bail (summary charge 13),[5] relating to bail granted with respect to charges 1 and 2.[6]

3 Following a plea hearing, on 7 September 2018 the judge sentenced the appellant to three years and six months' imprisonment on charge 1; to two years' imprisonment on charge 2; and to imprisonment for one month on the summary charge. The judge ordered that three months of the sentence on charge 2 be served cumulatively with the sentence on charge 1, resulting in a total effective term of three years and nine months' imprisonment,[7] upon which the judge fixed a non-parole period of two years and six months.[8]

4 Connell pleaded guilty to an indictment charging him with the possession of an unregistered general category handgun (charge 1) and intentionally causing injury (charge 2).[9] On 7 September 2018, Connell was sentenced to two years' imprisonment on charge 1, three months of which was ordered to be served cumulatively upon a sentence of four years' imprisonment imposed on charge 2. The total effective sentence thus produced was four years and three months' imprisonment, upon which the judge fixed a non-parole period of three years.

5 By a Notice dated 8 October 2018, the appellant sought leave to appeal against sentence. On 24 January 2019, Kyrou JA 'on the papers' granted the appellant leave to appeal on both grounds (as amended), formulated as follows: [10]

1. The individual sentences imposed on charges 1 and 2, the total effective sentence and the non-parole period are manifestly excessive

Particulars:

(a) The sentences imposed are manifestly excessive; and

(b) The sentencing judge did not characterise the objective gravity of the offending on charge 1 as high, yet imposed a sentence that is more consistent with more serious examples of false imprisonment;

(c) The learned sentencing judge erred by treating the victim 'being plied with illicit drugs' as an aggravating feature of the false imprisonment offence in circumstances where it was the co-offender, rather than the [appellant], who gave the victim the drugs;

(d) The sentencing judge erred by treating the [appellant's] possession of a firearm as an aggravating feature of the false imprisonment offence in circumstances where the [appellant] was sentenced separately for the offence of possession of an unregistered general category handgun.

1. The learned sentencing judge erred by imposing a sentence that was not sufficiently disparate from the sentence imposed on the co-offender.

6 Kyrou JA was of the view that ground 1 could be supported by the following considerations:

(a) It is arguable that, as submitted by the applicant, the judge treated Emery 'being plied with illicit drugs' as an aggravating feature of the offending. If the judge did so, she arguably erred because it was Connell, rather than the applicant, who gave Emery the drugs. Even if the judge did not sentence the applicant on the basis that he gave the illicit drugs to Emery, the judge arguably erred by treating Connell's act of giving Emery the drugs as an aggravating feature of the applicant's offending.

(b) It is arguable that ... the judge treated the applicant's possession of the firearm as an aggravating feature of the false imprisonment charge. If the judge did so, she arguably erred because the applicant was sentenced separately for the offence of possession of the firearm.

And his Honour considered that ground 2 was reasonably arguable for the following reasons:

In the circumstances of this case, one would have expected that Connell, who intentionally shot Emery in the knee without any foreknowledge by the applicant, would receive a custodial sentence which was more than 6 months higher than the sentence received by the applicant for keeping Emery in the garage for approximately four hours against his will. Although there are relevant differences in the circumstances of the two offenders, including the applicant's prior criminal history, it is reasonably arguable that these differences do not provide a sufficient explanation for the modest disparity in the sentences.

7 Having had the benefit of full oral argument, we would dismiss the appeal. Our reasons follow.

8 In order to understand the issues raised by this appeal, it is necessary to say a little more about the circumstances of the offending.

9 Connell's girlfriend lived in a unit in Frankston, the garage of which was roughly furnished and used as a 'hang out' for Connell and his associates.

10 Late in the evening of Friday, 14 July 2017, Connell supplied Emery with half a gram of 'ice' (methylamphetamine), so that Emery in turn could supply it to two friends for the agreed sum of $270. As it transpired, however, his friends gave Emery only $100 of the price agreed, swindling him out of the balance and escaping with the half gram of ice.

11 At about 12.04 am on Saturday, 15 July 2017, Emery telephoned Connell and told him what had transpired. Connell repeatedly said, 'where's my money?', and demanded that Emery get it.

12 Responding to Connell's request that he do so, Emery returned to the garage hang out. As Emery sat on a couch, the appellant, holding a tomahawk, took up a position on his left. Connell was on Emery's right, holding what appeared to be a home-made firearm, fitted with a make-shift silencer made from an oil filter.

13 Emery gave Connell $90 cash; and, so as to placate them, handed Connell and the appellant his driver's licence and bankcard. He told Connell that, one way or another, he would get the remaining money in the morning. Emery tried to explain what had happened, but Connell dismissed it as 'all lies'.

14 Connell repeatedly said to Emery, 'left or right', apparently wanting Emery to nominate which leg he was to be shot in. Emery, not believing it would occur, said: 'Left. Just do it, get it over with'. Connell then stepped forward, pushed the firearm into Emery's left knee and shot him. At first, Emery said, his level of pain 'wasn't too bad'. When he got up and tried to walk, however, the pain got worse and he kept falling over. All of a sudden, Emery said, he could feel his foot was wet. When he rolled up his tracksuit pants, he saw 'a heap of blood' and fainted.

15 At 12.50 am, the appellant took a photograph of Emery's licence with his phone. Four minutes later, Emery attempted to call his mother, and then sent a text message saying: 'I have a gun pointed at me over 120 [dollars]'. A few minutes later, the appellant threatened Emery with death 'if anything came back on him'.

16 Connell then progressively gave Emery an assortment of illicit drugs - including gamma hydroxybutyrate (GHB) and cannabis - to help him cope with the pain. He also proposed 'doing surgery' to remove the bullet from Emery's knee, but the appellant told Connell that it was 'a bad idea', as the police would find out. Connell then left the garage, leaving the appellant and Emery behind.

17 By this time, Emery was in extreme pain, unable to walk and wanting medical attention for his leg. He repeatedly told the appellant that he wanted to leave and go and call an ambulance. Emery told the appellant that he would not say where the shooting had happened, but that he needed to get help. The appellant refused to allow Emery to leave the garage, and held him against his will, telling Emery that he was not going anywhere until Connell returned. While he unlawfully detained Emery, the appellant held (or had close to hand) the firearm used to shoot Emery and the tomahawk.

18 At some point before dawn, Connell returned. Emery hobbled to the rear of the garage outside and started vomiting. Connell then assisted Emery back to the couch and gave him cannabis to calm him down. Emery then slept through to late Saturday morning.

19 At about midday, after Emery's mother went to the premises and intervened, Emery eventually was taken to hospital, where he underwent surgery. The surgeon performed an arthrotomy on Emery's left knee joint, removing the metallic fragments from the bone, but leaving a metal fragment at the back of the knee which did not require removal. Substantial cartilage damage was seen at the site where the metal fragments had penetrated and embedded in the bone. The surgeon thought that there was the possibility of further problems within the knee joint in the future.

20 Three days after the shooting, on 18 July 2017, the appellant was arrested. Investigators executed a search on the appellant's property in Frankston, where police found a white automotive oil filter with bullet exit holes, this apparently being the improvised silencer attached to the firearm used to shoot Emery. In a record of interview, the appellant claimed that he had not been at the garage on the night Emery was shot.

21 On 20 November 2017, the appellant was granted bail, a condition of which was that he not contact prosecution witnesses (including Connell's girlfriend). In breach of that condition, however, between 28 October and 3 November 2017, the appellant attempted to contact Connell's girlfriend on Facebook (summary charge 13 - contravention of bail).

22 The shooting, the judge said in her reasons for sentence, 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, Emery 'was given doses of various illicit drugs, apparently as a crude means of pain relief'.

23 Emery provided a victim impact statement which revealed that he was a carpenter before he was shot, but had been unable to walk for six months. Even a year later, he could not stand for long periods. He said that he realised that he was lucky that he did not die from blood loss or the drugs he was given. Emery's mother described her son as battling mixed emotions, partly arising out of loyalty to his friend, Connell, and partly from realising that he was justified in making the statement to police.

24 As to the appellant's 'personal background', the judge considered a number of matters, including that:

• the appellant is the adopted son of parents who themselves had their own biological children, leading to childhood feelings of estrangement, having never met his own biological family;
• his education was interrupted, having left school in his eighth year due to learning difficulties and fights with other school children;
• at age 14, the appellant's adopted family informed him he we was no longer welcome to stay with them, leading him to seek shelter at a number of refuges and charitable institutions, with intervening periods of homelessness;
• the appellant's cannabis use began at age 15, and he progressed to methylamphetamine at age 20;
• he has prior convictions, and was imprisoned in the Australian Capital Territory Supreme Court for assault; and
• the appellant has a daughter, aged 19, with whom he occasionally has Facebook contact, but has preferred not to actively pursue a substantial relationship her with until his life is stable and does not involve drug use or imprisonment.

25 The sentencing judge observed that the appellant had done a number of drug-related courses in custody which had given him some insight into his offending; that he had worked in the prison kitchen; and that he had been exercising and trying to establish a constructive routine. Her Honour then said:[11]

[The appellant's counsel] 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.

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.

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.

[Counsel'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.

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.

26 Under cover of the first ground, the appellant's counsel submitted that the objective criminality attending charges 1 and 2 did not warrant a sentence of the magnitude imposed, given the sentencing judge's observations that the false imprisonment was unsophisticated, did not involve the use of restraints and was for a limited period.

27 In written submissions, counsel contended that the conduct constituting charge 1[12] lacked many of the features often seen in grave examples of false imprisonment. Thus, the victim was not physically restrained; there was no extreme, repeated or sadistic violence; the victim was not placed in a confined space; intimidation, and threats of death or serious injury, were not a feature; the victim's detention was not prolonged; escalation of violence or threats was absent; there was no extortion; and the appellant had no prior convictions for false imprisonment. In circumstances where the sentencing judge did not classify the objective gravity as being 'high', and in the absence of those commonly encountered aggravating features, the sentence imposed was manifestly excessive.

28 It was an error, counsel submitted, for the sentencing judge to aggravate the appellant's offending on the basis that the victim was 'plied with illicit drugs', since the appellant did not provide, and was not complicit in providing, Emery with illicit drugs. Taking that factor into account as a feature of aggravation led the judge to impose an excessive sentence.

29 Counsel further submitted that the judge erred in treating the possession of the firearm as a factor aggravating the false imprisonment, given that the appellant fell to be sentenced separately for that possession on a separate charge. By conflating the facts relevant to one charge as aggravating the other, counsel argued, the judge erred.

30 On charge 2, counsel submitted that the individual sentence is excessive when regard is had to the appellant's lack of criminal history respective of the possession of a firearm; that he did not discharge the gun at any stage; and the limited period in which he possessed it. In those circumstances, the appellant's conduct fell into the lower category of seriousness, and thus the sentence imposed fell outside the range of what was reasonably available.

31 With respect to the second ground, counsel criticised the judge's conclusion that the seriousness of the appellant's offending must result in a sentence that 'should not be very different' from that imposed on Connell. Counsel argued that the seriousness of the appellant's offending was not said to be 'high', and thus should not have led to a conclusion that similar sentences were warranted. The appellant's criminal record, it was submitted, was an insufficient justification for similar sentences being imposed.

32 The respondent's counsel submitted that a fair reading of the judge's reasons for sentence reveals that, having first set out the circumstances of Connell's offending, and having expressly described Connell as administering the illicit drugs, her Honour's later reference to the administration of drugs when sentencing the appellant constituted no more than a description of the general milieu of the offending. The judge did not expressly say that the appellant was responsible for the administration of drugs. But, so counsel submitted, even if the judge did wrongly take the administration of drugs into account as an aggravating feature of the appellant's offending, the sentence imposed was well within the range of those open in the proper exercise of discretion.

33 Further, the respondent's counsel submitted, the judge did not doubly punish the appellant for possession of the firearm. The judge had regard to the fact that the firearm was in the appellant's possession during the false imprisonment, and was a means by which the victim was detained after having been shot and badly wounded. Modest cumulation of the sentence on charge 2 demonstrates that the judge avoided double punishment.

34 As to ground 2, parity, the respondent's counsel submitted that in imposing sentence the judge distinguished the appellant and Connell to a modest degree according to their different roles in the offending. The sentence imposed on the appellant was justified.

35 In our view, it is plain from her sentencing remarks that the judge took into account as aggravating features of the false imprisonment both 'the fact that medical assistance was denied to the victim during this time and that he was being plied with illicit drugs'. But, even assuming in the appellant's favour that the judge was wrong to do so, that cannot avail him, since we do not consider that the sentence imposed on the charge of false imprisonment is manifestly excessive or that a different sentence should be imposed.[13]

36 Manifest excess, as has been said many times before, is a conclusion which does not depend upon the attribution of specific error. It is a conclusion that generally does not admit of sustained argument,[14] since manifest excess will be plainly apparent. Manifest excess may have resulted from the wrong type of sentence having been imposed, or because the sentence imposed is manifestly too long.[15] Appellate intervention will not be warranted, however, simply because the judges of the appellate court regard the impugned sentence as stern, or because they would not themselves have passed the same sentence. To justify appellate intervention the sentence must be wholly outside the range of those open in the sound exercise of discretion.[16]

37 We regard the sentence on charge 1, false imprisonment, as being well within the range of those open in the proper exercise of the sentencing discretion. The appellant's offending may not have involved some of the aggravating features of objectively worse examples of false imprisonment, but it was still a serious example of the offence. Emery had been shot, was bleeding, was in extreme pain and was in obvious need of medical treatment to alleviate his pain and to deal with his gunshot wound. Necessary surgical treatment was denied to him, and as a result his pain was unnecessarily prolonged, by the appellant's callous actions in falsely imprisoning him. The appellant's possession of the firearm (and tomahawk) was an essential means by which he was able to maintain Emery's detention.

38 So far as the appellant's possession of the firearm is concerned, s 51 of the Interpretation of Legislation Act 1984 provides that where an act (or omission) constitutes an offence under two or more laws, an offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act (or omission). That provision will not necessarily be infringed because an offender is sentenced on two offences, and the same fact constitutes both an element of one offence and an aggravating circumstance of the other, so long as the sentencing judge avoids punishing the offender twice for the same act.[17]

39 In this case, the appellant's possession of the firearm constituted the elements of charge 2. It was also part of the means by which he accomplished Emery's false imprisonment, and was thus an aggravating feature of the first charge, that fact needing to be given some recognition in the sentence imposed (subject to the additional need to avoid double punishment for the same act). Since the judge cumulated only three months of the sentence on charge 2 upon the sentence imposed on charge 1, it is plain that the judge was astute to avoid doubly punishing the appellant with respect to his possession of the firearm. Contrary to the appellant's submissions on this aspect, we cannot see that the judge's approach was wrong. But even were it so, in our opinion no different sentence ought to be imposed. Thus, although the individual sentence imposed on charge 2 might be seen as stern (given the available maximum), cumulation of three months of the sentence upon that on the first charge is relatively modest, and the total effective sentence is well within the proper range.

41 We also consider that the essential complaint embodied in ground 2 - that the judge erred 'by imposing a sentence that was not sufficiently disparate' from the sentence imposed on Connell - cannot be upheld. Ground 2 invites attention to whether it was reasonably open to the judge in the circumstances of the case to differentiate between the appellant and Connell in the way that she did. The relevant principles were conveniently summarised in Collins:[18]

The principles governing parity are well-established.[19] Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a 'marked' or 'manifest' disparity between sentences which gives rise to a justifiable sense of grievance on an appellant's part, then the principle of parity may be said to have been infringed.[20] However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did.[21] When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[22]

42 It was not suggested in argument that the sentence of four years' imprisonment imposed on Connell for intentionally causing injury was inappropriate. Reduced to its essence, the appellant's complaint under cover of ground 2 is that Connell actually shot Emery and injured him, whereas the appellant did no more than detain him for four hours after he was shot, yet the appellant received a sentence of imprisonment that was only six months shorter than Connell's.

43 As we have said, the appellant's was a serious example of false imprisonment. Using a firearm to keep the suffering Emery from obtaining medical treatment for four hours merited a sentence of the order imposed by the judge, notwithstanding that he had not caused the initial injury.

44 But there were other reasons justifying a sentence that was only relatively modestly less than Connell's. First, the appellant was older (aged 43) than Connell (aged 27).

45 Secondly, and perhaps more importantly, Connell had no prior convictions and, as the judge remarked, had 'good prospects for rehabilitation'. By way of comparison, the appellant had a significant criminal history, including several convictions (beginning in 1994) for breaking, entering and stealing; larceny; stealing; possessing stolen goods; malicious damage; maliciously setting fire to property; destroying or damaging property; possessing prohibited drugs; cultivating a prohibited plant; weapons offences; contravening an interim intervention order; and assault occasioning actual bodily harm. He had been imprisoned more than once. Although the appellant was not again to be punished for his prior convictions, self-evidently his prior convictions bore on his prospects of rehabilitation, and the need for specific deterrence.

46 In our view, the appellant's age and criminal history justified the judge taking a different approach to imposing sentence upon him when compared to Connell.

47 For the foregoing reasons, we would dismiss the appeal.

[1] His date of birth is 10 August 1989.

[3] False imprisonment is a common law offence. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 10 years' imprisonment.

[4] Firearms Act 1996, s 7B. The maximum penalty is 7 years' imprisonment or 600 penalty units.

[5] Bail Act 1977, s 30A. The maximum penalty is 3 months' imprisonment or 30 penalty units.

[6] The charge wrongly recorded that the appellant had contravened a condition of bail imposed by the Supreme Court. Given that there was no dispute that the relevant bail had been granted in the Magistrates' Court, on the hearing of the appeal we gave the respondent leave to amend the charge by deleting 'Supreme Court' and substituting 'Magistrates' Court'.

[7] The judge declared 335 days as reckoned to having already been served.

[8] Pursuant to s 6AAA of the Sentencing Act 1991, the sentencing judge declared that, but for the appellant's plea of guilty, the judge would have sentenced him to four years' imprisonment, with a non-parole period of three years.

[9] Crimes Act 1958, s 18. The maximum penalty is 10 years' imprisonment.

[10] Gorman v The Queen (Unreported, 24 January 2019, Court of Appeal).

[12] The written case refers to charge 2, not charge 1. Read in context, however, the submissions on this aspect clearly relate to the charge of false imprisonment.

[13] Criminal Procedure Act 2009, s 281(1)(b).

[14] R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].

[15] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

[16] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672 [15].

[17] See Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; R v Amistead [2011] VSCA 84; R v Langdon [2004] VSCA 205; (2004) 11 VR 18; R v Nor [2005] VSCA 46; (2005) 11 VR 390; Hudson v The Queen (2010) 30 VR 610; Loader v The Queen [2011] VSCA 292; (2011) 33 VR 86; Lecornu v The Queen [2012] VSCA 137; (2012) 36 VR 382; Berichon v The Queen [2013] VSCA 319; (2013) 40 VR 490.

[18] Collins v The Queen [2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA) (citations as in original).

[19] See Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; and Roujnikov v The Queen [2015] VSCA 97, [24]-[25] (Weinberg and Kyrou JJA).

[20] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; R v Postiglione [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.

[21] Roujnikov v The Queen [2015] VSCA 97 quoting McCloskey-Sharp v The Queen [2015] VSCA 87, [17] (Osborn JA).

[22] Hilder v The Queen [2011] VSCA 192, [38]-[39] (Maxwell P).