SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0205
| COLIN GORMAN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| 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) |
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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.
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| 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’…
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- AGLC
- Colin Gorman v The Queen [2019] VSCA 128
- Case
- [2019] VSCA 128
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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Ratio Decidendi
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