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Gommers v The Queen

Gommers v The Queen

Case [2021] VSCA 258 15 September 2021

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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)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gommers v The Queen

Details

AGLC: Gommers v The Queen [2021] VSCA 258
Case: [2021] VSCA 258
Decision Date: 15 September 2021

CaseChat Overview and Summary

The appellant, Gommers, was convicted of various offences including intentionally causing injury, recklessly endangering serious injury, possessing a handgun, theft, and burglary. Gommers appealed against the sentence of five years and 10 months' imprisonment, arguing that the non-parole period of four years was manifestly excessive given his youth and dysfunctional upbringing. The appeal was heard by the court, which had to determine whether the sentence was manifestly excessive and whether the considerations applied by the primary judge were flawed.

The court examined whether the sentence imposed was manifestly excessive by considering the totality of the appellant's offending and the principles of sentencing. The court noted that the appellant had a history of offending behaviour, including violent acts, and had shown a persistent disregard for the law. The court also considered the appellant's age and background, but ultimately found that these factors did not warrant a significantly reduced sentence. The court determined that the sentence was not manifestly excessive, as it appropriately reflected the seriousness of the offences and the need to protect the community.

In arriving at this decision, the court emphasised the importance of deterrence, denunciation, and the protection of the community in sentencing. The court also considered the appellant's prospects of rehabilitation and the need for the sentence to be proportionate to the offending. The court found that the primary judge had appropriately considered all relevant factors and had not erred in imposing the sentence. The appeal was therefore dismissed, and leave to appeal was refused.

The final orders of the court were that the appeal against sentence be dismissed and that leave to appeal be refused.

Orders