Gommers v The Queen
[2021] VSCA 258
•15 September 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0113
| JOSHUA GOMMERS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 September 2021 |
| DATE OF JUDGMENT: | 15 September 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 258 |
| JUDGMENT APPEALED FROM: | DPP v Gommers [2020] VCC 406 (Judge C Ryan) |
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CRIMINAL LAW – Appeal – Sentence – Intentionally causing injury, recklessly endangering serious injury, possessing a handgun, theft, burglary and other offences – Youth – Dysfunctional upbringing – Whether sentence of five years and 10 months’ imprisonment with non-parole period four years, manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr C K Wareham | May Lawyers |
| For the Respondent: | Mr C B Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KAYE JA:
Charges, sentences and grounds of appeal
On 5 March 2020, the applicant, now aged 24 years,[1] pleaded guilty in the County Court to an indictment containing 22 charges, including: intentionally causing injury[2] (one charge, charge 1); burglary[3] (two charges, charges 2 and 11); theft[4] (12 charges, charges 3, 5–10, 12, 13 and 16–18); reckless conduct endangering serious injury[5] (two charges, charges 4 and 15); attempted theft[6] (one charge, charge 14); possessing an unregistered general category handgun[7] (one charge, charge 19); cultivating a narcotic plant[8] (one charge, charge 20); and possessing a drug of dependence[9] (two charges, charges 21 and 22). He also pleaded guilty to two related summary offences, committing an indictable offence whilst on bail[10] and trespass.[11]
[1]His date of birth is 11 July 1997.
[2]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 76. The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 74. The maximum penalty is 10 years’ imprisonment.
[5]Crimes Act 1958, s 23. The maximum penalty is five years’ imprisonment.
[6]Crimes Act 1958, ss 74 and 321M. The maximum penalty is five years’ imprisonment.
[7]Firearms Act 1996, s 7B. The maximum penalty is seven years’ imprisonment.
[8]Drugs, Poisons and Controlled Substances Act 1981, s 72B. The maximum penalty is one year’s imprisonment.
[9]Drugs, Poisons and Controlled Substances Act 1981, s 73. The maximum penalty on charge 21 is five penalty units and on charge 22 is one year’s imprisonment.
[10]Bail Act 1977, s 30B. The maximum penalty is three months’ imprisonment.
[11]Summary Offences Act 1966, s 9(1). The maximum penalty is six months’ imprisonment.
Following a plea, on 7 April 2020 the judge sentenced the applicant to five years and 10 months’ imprisonment, with a non-parole period of four years, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Intentionally causing injury 3 years Base 2 Burglary (Nationwide Tow Yard) 1 year 3 months 3 Theft (firearm case) 3 months — 4 Reckless conduct endangering serious injury 1 year 3 months 5 Theft (motor vehicle) 6 months 2 months 6 Theft (registration plates) 3 months 1 month 7 Theft (motor vehicle) 6 months 2 months 8 Theft (motor vehicle) 6 months 2 months 9 Theft (registration plates) 3 months 1 month 10 Theft (registration plates) 3 months 1 month 11 Burglary (Nationwide Tow Yard) 1 year 3 months 12 Theft (car keys and fuel cards) 1 month — 13 Theft (motor vehicle) 6 months 2 months 14 Attempted theft (motor vehicle) 4 months 1 month 15 Reckless conduct endangering serious injury 6 months 2 months 16 Theft (motor vehicle) 6 months 2 months 17 Theft (motor vehicle) 6 months 2 months 18 Theft (registration plates) 3 months 1 month 19 Possessing an unregistered general category handgun 18 months 6 months 20 Cultivating a narcotic plant $100 fine — 21 Possessing a drug of dependence $100 fine — 22 Possessing a drug of dependence $100 fine — Related summary charges 21 Commit an indictable offence on bail 1 month — 34 Trespass 3 months — Total effective sentence: 5 years and 10 months’ imprisonment with 4 years non-parole Pre-sentence detention: 402 days Section 6AAA declaration: 9 years’ imprisonment with 6 years non-parole
The applicant now seeks leave to appeal against the sentence on four grounds:
1 The learned sentencing judge erred in failing to give any or sufficient weight to the applicant’s youth and prospects for rehabilitation.
2 The learned sentencing judge erred in failing to apply adequately the principle of totality and to avoid a crushing sentence.
3 The total effective sentence is manifestly excessive.
4 As a consequence of the restrictions imposed following the COVID-19 pandemic, his imprisonment has become more burdensome.
For the reasons that follow, we would refuse leave to appeal.
The offending
So as to appreciate its objective gravity, it is necessary to provide a summary of the applicant’s offending.
Charge 1: Intentionally causing injury
Between 10 and 11 January 2019, the applicant sent several text messages to an individual, Corey Mangham, apparently demanding money that was owed to him.
On 12 January 2019, at 1.30 am, the applicant drove to Mangham’s house in Doncaster East in a black BMW motor vehicle and parked on the nature strip. Mangham, who had seen the car parked via CCTV cameras, left his house and spoke to the applicant, who was seated in the driver’s seat of the BMW. Mangham paid some of the money owed. The fact that the amount was not all that was owed caused the applicant to become aggressive. He then took a sawn-off .22 calibre rifle from inside the car and shot Mangham in the upper left thigh. The applicant then drove away.
During subsequent medical treatment, an x-ray showed metal fragments from the bullet in the muscles of his thigh, with one fragment adjacent to the superficial femoral artery. Fragments were also seen within the cortex of the femur with an associated non-displaced fracture. Mangham underwent a left thigh debridement and washout, but surgeons found no evidence of neurovascular damage. The metallic shrapnel fragments from muscles were removed while those in bone were left in-situ. His immediate post-operative period was unremarkable and he went home one day after his admission.
Charges 2 and 3: Burglary and theft
Between 10 and 22 January 2019, a Kia Sorrento motor vehicle was stolen during a burglary in Clayton South. On 24 January 2019, police discovered the Kia in the driveway of a unit in 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 then towed to the Nationwide Towing Yard in Blackburn.
At about 12.01 am on 25 January 2019, the applicant drove to the Nationwide Towing Yard 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. The applicant was with two co-offenders. He used a key fob to unlock the stolen Kia Sorrento in the tow yard and retrieved a long soft firearm case which he handed to a co-offender. The applicant then set an item on fire and threw it into the car before slamming the door and leaving the yard. Although the fire did not take, a plastic bottle containing petrol was later found in the vehicle.
Related summary charge: Trespass
On 27 January 2019, the applicant’s older brother was arrested in relation to a stolen Nissan Patrol that had crashed in Harkaway. While at the scene, the applicant’s brother called him. A short time later the applicant drove to the crash scene and attempted to walk towards the stolen vehicle. He was stopped by police and asked to leave. The applicant went back to his vehicle and remained in the vicinity 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 in Dandenong.
The next morning, at about 3.19 am, the applicant went to the yard of All Car Towing, and, using two unknown females to distract an employee of the towing company, scaled the rear fence of the yard with his face disguised. He then rummaged through the stolen Nissan Patrol before leaving the yard.
Charge 4: Reckless conduct endangering serious injury
At about 12.00 am on 2 February 2019, the applicant drove to an address in Doveton in a dark coloured four-wheel drive BMW. A visitor to this address walked outside and spoke to the applicant, who asked, ‘Who the fuck tried to run over my brother?’. The visitor replied, ‘I’m just leaving’, prompting the applicant to respond, ‘Don’t get chirpy’.
Three occupants of the house then came out. The applicant yelled, ‘Who drives a Magna that’s always parked out the front?’. One of the occupants replied, ‘I don’t know mate. I don’t live here’. Another occupant said, ‘It’s probably from next door, they’re always parking their car out the front’.
The applicant drove to the house next door. He 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 replied that he did not know. Another occupant of the house walked up to the passenger window of the applicant’s vehicle, put her hands on the window and said, ‘What’s your problem, we haven’t done anything?’. The applicant replied, ‘Someone from around here hit my little brother with their car’. A female occupant of the house responded, ‘No one here drives’. The applicant then produced a sawn-off rifle, pointed it at the face of the female — who was at his passenger side window — and fired two shots in close proximity to her. Luckily, the shots went past her and struck the house. The applicant then drove off and did a U-turn before coming back past the house and firing two further shots.
Crime scene officers later conducted a forensic and firearm examination and detected two points of impact from fired bullets at the address.
Charge 6: Theft of registration plates: XRG 792
On 7 February 2019, police conducted covert surveillance of the applicant. At approximately 5.00 pm, surveillance operatives observed an unoccupied dark-coloured 2010 Ford Territory bearing stolen registration plates XRG 792, outside a house in Luton Court, Rowville, one house east of the applicant’s house. Registration plates XRG 792 were stolen from a 2010 Ford Territory at a Berwick address somewhere between 21 December 2018 and 7 February 2019.
At 5.35 pm, the applicant was identified by surveillance operatives leaving his address in the company of two other males. He was observed to be the rear passenger in the Ford Territory bearing the stolen registration plates XRG 792. The Ford Territory went to the Croydon North area and returned at approximately 7.15 pm. It was parked outside the applicant’s home address and the applicant exited the vehicle and went to his own Ford Ranger parked in the driveway of his home address. He removed a ‘bum bag’ from the vehicle, before returning to the rear passenger seat of the Ford Territory with the stolen registration plates, which then drove away.
Charge 7: Theft of motor vehicle: Range Rover ZRF 056
On 9 February 2019, at 4.00 pm, Olivia Lawn moved her 2014 black Land Rover Range Rover, registration ZRF 056, from the garage to the driveway of her Armadale address, leaving the keys in it. At approximately 6.15 pm the applicant stole the Land Rover from the driveway.
Charge 9: Theft of registration plates: TAH 328
Between 30 and 31 January 2019, registration plates TAH 328 were stolen from David Berger’s vehicle during the night.
On 11 February 2019, police conducted covert surveillance of the applicant and observed him driving a White Ford Ranger with the stolen number plates TAH 328 attached. The vehicle was parked in the driveway of the applicant’s Rowville address before being parked in the driveway of a nearby address.
Charge 8: Theft of motor vehicle: YWR 163
At approximately 11.05 pm on 11 February 2019, the applicant and another male left the applicant’s house and drove the Ford Ranger to his mother’s address in Dandenong. While he was away from the Ford Ranger, police looked at the VIN (vehicle identification number) and confirmed it to be a stolen vehicle with registration as YWR 163. The vehicle had been stolen from a Cranbourne North address between 10.00 pm on 14 January 2019 and 6.00 am on 15 January 2019.
Charge 10: Theft of registration plates: 1GK 1GU
On 11 January 2019, at about 3.38 am, the applicant stole registration plates 1GK 1GU from a Ford Ranger which was parked on the nature strip of a property in Wheelers Hill. The registration plates were located by police the following day on a stolen Ford Ranger in Rowville, close to the applicant’s address.
Charges 11, 12, 13, 14 and 15: Burglary of Nationwide Tow Yard, theft, attempted theft and reckless conduct endangering serious injury
At approximately 5.35 am on 13 February 2019, the applicant drove in a dark coloured Ford Territory to Nationwide Tow Yard in Dandenong. He jumped the front fence of the yard, leaving an unknown co-offender in the Ford Territory. The applicant then entered an unlocked tow truck where he located keys to the building and two Nationwide BP petrol cards. He used the keys to enter the tow yard building. Once inside, the applicant stole two sets of car keys from the office area for a Black Jaguar sedan, registration ANN 370, and for a white Volkswagen sedan, registration 1IS 1JY (charge 12 — theft of keys and fuel cards). He then returned to the yard and used a car key stolen from inside the building to unlock the Jaguar sedan registration ANN 370 and drive it out of the tow yard (charge 13 — theft of Jaguar ANN 370).
Shortly afterward, at approximately 5.52 am, the applicant and an unknown co-offender drove the Jaguar back to Nationwide Towing Yard. Tow truck driver Daniel Watson was then getting ready for work, and sitting in his truck when the Jaguar drove back into the yard. The unknown co-offender got out and used a key to unlock, and get into, the white Volkswagen. When the applicant got out of the Jaguar and began to walk towards the Volkswagen, Watson saw him and yelled out. The applicant ran back to the black Jaguar and got into the driver’s seat (charge 14 — attempted theft of the Volkswagen).
Watson got out of his truck and stood between the black Jaguar and the exit. The applicant reversed the vehicle towards the exit and swerved around Watson, narrowly missing him (charge 15 — reckless conduct endanger serious injury). He drove out of the exit and away from the location. The co-offender got out of the Volkswagen, jumped the rear fence and fled the scene.
Charges 16 and 17: Theft of motor vehicles BMW X6 Coupe and BMW Wagon
At 4.20 am on 14 February 2019, two vehicles — a red 2008 BMW X6 Coupe, registration number 1KA 4ZE, and a white 2014 BMW wagon, registration number ABS 825 — were stolen during an aggravated burglary in Wheelers Hill.
That same day, at approximately 2.53 pm, the applicant drove the stolen BMW X6 Coupe, registration 1KA 4ZE, into an underground car park in Clayton. He drove it around and out of the car park before returning to the car park at 3.00 pm, when he parked the car. He walked out of the car park at 3.05 pm.
The applicant was later seen to be an occupant of the 2014 white BMW wagon, registration ABS 825, when it was driven to a Dan Murphy’s store in Rowville.
Charge 18: Theft of registration plates: ONE81
Between 8.00 pm on 14 February 2019 and 8.00 am on 15 February 2019, the applicant attended an address in Notting Hill and removed registration plates from a white BMW X5, registration ONE81, parked in the driveway. He then attached them to the white BMW, registration ABS 825, which he had stolen from the Wheelers Hill address.
Charge 5: Theft of motor vehicle YZP 372
At approximately 1.52 am on 15 February 2019, the applicant was an occupant of a stolen Ford Territory, YZP 372, bearing stolen registration plates XRG 792 (charge 6), when it collided with a power pole in Glen Waverly. He and the other occupant fled. The vehicle was substantially damaged and could not be driven.
Arrest and interview
On the morning of 15 February 2019, police followed the applicant who was driving the white BMW stolen from Wheelers Hill, bearing stolen registration plates ONE81. Police later arrested him at the Knox Shopping Centre. A search of a black satchel bag over the applicant’s shoulder revealed a BMW key and a Jaguar key. Police also located a small zip lock bag containing methylamphetamine (charge 22 — possessing a drug of dependence). The BMW’s correct registration was ABS 825, the original plates ABS 825 being located in the rear foot well.
A search warrant was then executed at the applicant’s home address in Rowville. Among other things, police located a sawn off .22 calibre rifle on the kitchen bench (charge 19 — possessing an unregistered general category handgun); a small amount of cannabis in the kitchen (charge 21 — possessing a drug of dependence); a small cannabis plant in the rear yard (charge 20 — cultivating a narcotic plant); and two stolen Nationwide Towing BP fuel cards.
Police conducted a recorded interview with the applicant in relation to burglaries and theft of motor vehicles and he was remanded in custody.
On 11 April 2019, police conducted a further recorded interview with the applicant at the Melbourne Remand Centre. He provided a ‘no comment’ interview in relation to the Mangham shooting and the shots fired in Doveton.
The applicant’s personal circumstances
The applicant was aged 21 years when he committed the instant offences, and was 22 when sentenced. He had 16 prior convictions or findings of guilt from four appearances, three of which were in the Children’s Court: in 2015 (including for property damage offences, recklessly causing injury and assault), 2016 (property damage and bail offences) and 2017 (burglary, theft and driving offences).
At the time of sentence, he was held in the Penhyn Youth Unit at Port Phillip Prison, where he was employed as a cleaning billet. He had completed a number of courses whilst on remand, and was drug-free.
The applicant is the younger of two males born to his parents. He had a seriously dysfunctional upbringing characterised by neglect and physical and emotional abuse. Both his parents abused drugs and both have criminal histories. His parents separated when he was aged 18 months, and he was in the care of the Department of Health and Human Services until his father obtained custody of him when he was aged three. The applicant’s father abused cannabis and used violence as a form of discipline. His father formed a new relationship, and his step-mother treated the applicant and his brother less favourably than her own children. When the applicant was aged about nine years, his father suffered an industrial accident and never worked again. The applicant witnessed more than one suicide attempt by his father. He also regarded his older brother as a role model, but he was involved in drug abuse and criminal activity. The applicant attended school up to Year 9.
After leaving school aged 14 or 15, the applicant lived with two of his older step-sisters, and, despite his dysfunctional upbringing, completed a Certificate III in roof-tiling and completed an apprenticeship with Mr Jason Tanner. On the plea, Mr Tanner gave evidence that the applicant was a good apprentice who took pride in his work. At the end of his apprenticeship, Mr Tanner persuaded the applicant to start his own roof tiling business. Mr Tanner regarded the offending as out of character with the apprentice he trained.
It seems that the applicant has a long history of drug abuse, commencing with cannabis at age 13. He started using ice and GHB at age 16, his drug and alcohol use increasing following his father’s first suicide attempt in 2018. The applicant told a psychologist that, during the period of offending, he was using ice, GHB and cannabis on a daily basis.
Reasons for sentence
Among other things, the judge made the following observations in his sentencing remarks:[12]
[Y]ou 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.
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.
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.
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.
[12]DPP v Gommers [2020] VCC 406, [52]-[55] (emphasis added).
Is the sentence manifestly excessive?
In oral submissions, counsel for the applicant accepted that grounds 1 and 2 were in effect ‘particulars’ of the complaint of manifest excess in ground 3. He concentrated his arguments on the individual sentences on charge 1 (intentionally causing injury) and charge 19 (possessing an unregistered general category handgun). Both sentences were, he submitted, manifestly excessive. Counsel quite properly conceded, however, that the other individual sentences — including on charge 4 (reckless conduct endangering serious injury) — were ‘within range’. Although the orders for cumulation were not impugned (save as to the sentence on charge 19), the manifestly excessive sentences on charges 1 and 19, counsel argued, have produced a total effective sentence which is manifestly excessive, with a concomitantly excessive non-parole period. He realistically eschewed the contention in ground 2, however, that the sentence was ‘crushing’.
The contention that the sentence on charge 1 is manifestly excessive cannot be upheld.
In our view, the seriousness of the offence of intentionally causing injury is not only to be gauged by the injuries caused, but by the manner of their infliction.[13] The applicant’s was a nasty and cruel act of gratuitous violence, which resulted in significant injury requiring surgical intervention. Other than youth, there was little that mitigated the shooting itself. It could not be said, for example, that — apart from failing to pay the full amount owed — the victim had offered the applicant any provocation,[14] or had posed a threat to him.
[13]See Phillips v The Queen [2017] VSCA 313, [54] (Osborn and Priest JJA); DPP v Milson [2019] VSCA 55, [61] (Priest and Weinberg JJA); Shau v The Queen [2020] VSCA 252 (Priest JA).
[14]See, eg, R v Okutgen (1982) 8 A Crim R 262, 264 (Starke J).
As to the applicant’s youth, counsel for the applicant contended that it was not adequately reflected in the sentence imposed on charge 1. Relying on Azzopardi,[15] counsel reminded the Court of the principles that apply to the sentencing of youthful offenders. Counsel submitted that a youthful offender should not be sent to an adult prison if such a disposition could be avoided.[16] So much may be accepted. As we have indicated, however, the applicant’s offending represented a serious example of gratuitous violence.
[15]Azzopardi v The Queen (2011) 35 VR 43, 53–6 [34]–[40] (Redlich JA).
[16]R v Mills [1998] 4 VR 235, 241 (Batt JA).
It cannot be gainsaid that the youth of an offender — particularly a first offender — is often a primary consideration in sentencing, so that rehabilitation in the case of a youthful offender will often be more important than general deterrence. Given the seriousness of the offence, however, the applicant’s youth, and his prospects of rehabilitation, must to some extent be subjugated to other sentencing considerations, such as general deterrence. As Winneke ACJ said in Wright,[17] youth and rehabilitation must take a ‘back seat’ to specific and general deterrence ‘where crimes of wanton and unprovoked viciousness are involved’.
[17]R v Wright [1998] VSCA 84, [6]. See also DPP v Lawrence (2004) 10 VR 125, 132 [22] (Batt JA).
We are not persuaded that the sentence on charge 1 is outside the range of sentences open to the judge in the sound exercise of discretion. Indeed, we consider it to be proportionate to the seriousness of the applicant’s offending.
Nor are we persuaded that the sentence on charge 19, possessing an unregistered general category handgun, is excessive. The ‘handgun’[18] in question was a sawn-off .22 calibre rifle. As the offence contained in charge 1 demonstrates, it was capable of being used for nefarious purposes. Indeed, it appears to have been modified for such purposes. By its nature, it was not the kind of handgun that might be possessed for relatively benign reasons (such as, for example, an antique).
[18]In s 3(1) of the Firearms Act 1996, handgun is defined to be a firearm that —
(a) is reasonably capable of being carried or concealed about the person; or
(b) is reasonably capable of being raised and fired by one hand; or
(c) does not exceed 65 centimetres in length measured parallel to the barrel.
We consider that general deterrence ordinarily must figure prominently in any sentence for possession of a handgun. In this case, even having regard to the mitigation to be derived from the applicant’s youth, we are unable to see that the sentence of 18 months’ imprisonment imposed on charge 19 was manifestly excessive.
As we have said, counsel for the applicant argued that manifestly excessive sentences on charges 1 and 19 produced a total effective sentence which is manifestly excessive. Since we consider that the sentences on those charges are not open to legitimate criticism, the applicant’s attack on the total effective sentence and non-parole period falls away. For the sake of completeness, we should observe that we consider the order for cumulation of six months of the sentence on charge 19 to be appropriate.
Grounds 1, 2 and 3 cannot succeed.
Ground 4: Effects of the pandemic
No submission was made to the judge on the plea concerning any mitigation to be derived from the fact of the pandemic.[19]
[19]Cf Worboyes v R (2021) 96 MVR 344.
Counsel submitted that the effects of the pandemic on the applicant’s custody could be considered if the Court came to resentence as a result of error established by the other grounds.
Since grounds 1 to 3 fail, there is no occasion to consider ground 4.
Conclusion
In light of the foregoing, the application for leave to appeal against sentence must be refused.
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