Legal Research
Cases
Gorman v The Queen

Gorman v The Queen

Case [2019] VSCA 128 5 June 2019

Appeal

Sentence

Breach of Bail Condition

Causation

Criminal Liability

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0205

COLIN GORMAN	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 June 2019
DATE OF JUDGMENT:	5 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 128
JUDGEMENT APPEALED FROM:	DPP v Gorman [2018] VCC 1447 (Judge Wilmoth)

---

CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to false imprisonment, possession of an unregistered general category handgun and breach of bail condition – Victim shot in the knee by a co-offender, and detained by the appellant for period of four hours – Victim ‘plied’ with illicit drugs as form of pain killers by co-offender – Appellant refused victim allowance to seek medical attention – Appellant sentenced to four years and three months’ imprisonment, with a non-parole period of three years – Whether sentence manifestly excessive – Whether sentencing judge erred by treating victim’s drug affected state as aggravating upon the appellant’s culpability – Whether sentencing judge conflated facts relevant to one charge as aggravating the other – Parity of sentences between appellant and co-offender – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R De Kretser	Emma Turnbull Lawyers
For the Respondent	Mr P L Burke	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

Introduction

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.
[1]His date of birth is 10 August 1989.
[2]His date of birth is 31 May 1974.

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]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 Act1977, 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’…

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 Gorman v The Queen

Details

AGLC: Colin Gorman v The Queen [2019] VSCA 128
Case: [2019] VSCA 128
Decision Date: 5 June 2019

CaseChat Overview and Summary

In the matter of Gorman v The Queen, the appellant, having pleaded guilty to charges of false imprisonment, possession of an unregistered handgun, and breach of bail condition, appealed against the sentence imposed. The sentencing judge handed down a term of four years and three months’ imprisonment with a non-parole period of three years, following a serious incident where the victim was shot by a co-offender and subsequently held captive by the appellant for four hours. The victim was administered illicit drugs by the co-offender as a form of pain relief while being held. The appellant refused the victim's request to seek medical assistance.

The court had to decide whether the sentence was manifestly excessive, if the sentencing judge erred by considering the victim's drug-affected state as an aggravating factor in assessing the appellant's culpability, and whether the sentencing judge conflated facts relevant to one charge as an aggravation of the other. Additionally, the court needed to consider the parity of sentences between the appellant and the co-offender. The court considered these issues and found that the sentence was not manifestly excessive and that there was no error in the judge’s consideration of the victim’s drug-affected state as an aggravating factor. The court also found no conflation of facts between charges and that the disparity in sentences was justified.

The appeal was dismissed by the court. The sentencing judge was found to have appropriately balanced the seriousness of the offences and the appellant's culpability, and the sentence was considered to be fair and reasonable in the circumstances.

Orders