Director of Public Prosecutions v Moran

[2023] VCC 1547

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00719

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER MORAN

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JUDGE:	His Honour Judge Rozen
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2023
DATE OF SENTENCE:	31 August 2023
CASE MAY BE CITED AS:	DPP v Moran
MEDIUM NEUTRAL CITATION:	[2023] VCC 1547

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW  

Catchwords:                  Conduct endangering persons – Firearms offences – Single shot fired – Self-defence  - Guilty plea – Limited mitigatory factors – Drug abuse – significant criminal record – Previous non-compliance with community based orders – Specific deterrence – Applicable sentencing objective – Imprisonment only appropriate sentence

Legislation Cited:           Crimes Act 1958 (Vic); Firearms Act 1996 (Vic); Control of Weapons Act 1990 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Avan v The Queen [2019] VSCA 257; DPP (Vic) v Gardner [2004] VSCA 119; Zogheib v The Queen (2015) 257 A Crim R 454; R v Natale [2019] VSC 30; DPP (Vic) v Le [2019] VSCA 258; Cooper v The Queen [2020] VSCA 288; Kelly v The Queen [2020] VSCA 171; Berichon v The Queen; Houssein v The Queen [2013] VSCA 318; R v Verdins [2007] VSCA 102; Bugmy v The Queen [2013] HCA 37; DPP v Moran [2020] VCC 767

Sentence:  2 years and 7 months’ imprisonment – Fine of $1,500 – non-parole period of 20 months

s 6AAA declaration – 3 years, 6 months’ imprisonment and a non-parole period of 2 years and 5 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Roper	Office of Public Prosecutions
For the Accused	Ms Ffyona Livingstone Clark	Doogue + George

HIS HONOUR:

Introduction

1Peter Moran, you pleaded guilty to the following offences:

(a) Conduct endangering persons, contrary to s 23 of the Crimes Act 1958 (Vic), which carries a maximum penalty of 5 years’ imprisonment;

(b) Prohibited person possess a firearm, contrary to s 5(1) of the Firearms Act 1996 (Vic), which carries a maximum penalty of 10 years’ imprisonment or 1200 penalty units;[1]

(c) Prohibited person possess a silencer, contrary to s 5(2) of Firearms Act 1996 (Vic), which carries a maximum penalty of 8 years’ imprisonment or 480 penalty units; and

(d) Handling stolen goods, contrary to s 88 of the Crimes Act 1958 (Vic), which carries a maximum penalty of 15 years’ imprisonment.

[1] This is a rolled-up charge consisting of possession of two firearms.

2You also pleaded guilty to the following related summary offences:

(a) Possess cartridge ammunition without a licence, contrary to s 124(1) of the Firearms Act 1996 (Vic), which carries a maximum penalty of 40 penalty units; and

(b) Possess a controlled weapon, contrary to s 6(1) of the Control of Weapons Act 1990 (Vic), which carries a maximum penalty of 2 years’ imprisonment or 120 penalty units

3You are to be sentenced on the basis of the Summary of Prosecution Opening dated 3 August 2023,[2] which I note is an agreed document.

[2] Exhibit P1.

The Offending

4At about 12:30 am on 12 September 2022, two men approached a home situated at Morris Court, Sunbury. The two men were Ian Edwards and Kristopher Steven. Mr Edwards believed that the occupants of the home, of whom you were one, were selling drugs to his children and to his apprentices; he intended to confront you all. The approach and the incident that gives rise to these charges is captured on CCTV footage which I viewed at the plea hearing.[3]

[3] CCTV Footage dated 12 September 2022 (Exhibit D1).

5At the time, you were present at the home with the following people: Samantha Attard, Stacey Walsh, Taylor Bizzotto, Brian Cairns and Justin Byrne.

6At approximately 12:37 am, Mr Edwards and Mr Steven knocked at the door of the home. After approximately two minutes, Mr Steven began pushing and pulling on the metal screen door in an attempt to open it. In doing so he broke the handle off.  He then punched and headbutted the screen door. The pair remain at the door for approximately four and a half minutes.

7They then moved onto the street and to the vicinity of the Morris Court car parking area, approximately 15 to 20 metres away. At around 12:40 am, Mr Steven returned to the front of the home and punched at a CCTV camera, knocking it off the wall and breaking it.

8Mr Steven then returned to the Morris Court car parking area. During this time, Mr Edwards remained in the vicinity of the Morris Court car parking area, near a pink coloured ‘For Sale’ sign.

9At 12:40 am, Ms Walsh emerged from the front door of the home and confronted Mr Edwards and Mr Steven. Both men responded by shouting at Ms Walsh, and the other occupants, “come out, let’s go”, “tell your boy to come out”, “drug dealer” and “you little dog, let’s go”.

10Ms Walsh returned into the home briefly before returning armed with a shovel. She  walked across Morris Court towards the two men telling them to get away from her house and that she had contacted police. Whilst she did this, her partner, Mr Bizzotto stood on the front door step. At around this time, Ms Walsh called triple-zero and can be heard on the CCTV footage speaking with the operator for the next 2 minutes.

11The men responded by shouting “you are selling ice to my kids” and called for Ms Walsh to give that “weapon to her boyfriend and tell him to come at me”. The two men continued to accuse the occupants of the home of selling ice to their children. As Ms Walsh returned to the front door, Ms Attard emerged from the home carrying a rifle.

12Ms Attard stood in front of Mr Bizzotto and raised the rifle to her shoulder, pointing it in the direction of the men who were standing on the road approximately 15 to 19 meters away, and pointed at the two for approximately 8 seconds. She was separately charged and I was informed is contesting those charges.

13Ms Attard lowered the rifle briefly, before raising it to her shoulder again and aiming in the direction of the victims. As she did so, you stood on the doorstep of the home, concealed by the screen door which was opened outwards on to the veranda.

14You were holding a CZ 0.22 calibre rimfire rifle fitted with a silencer and pointing it towards the ground. That is the conduct constituting Charge 2 – Prohibited person possess a firearm and Charge 3 – Prohibited person possess a silencer. 

15You then moved out from behind the screen door, raised the rifle to your shoulder and pointed it in the direction of the ‘For Sale’ sign. After approximately three seconds, you fired a single shot, striking the sign. At the time of the shot, Mr Edwards was standing approximately 2 metres away from the sign. That is the conduct constituting Charge 1 – Reckless conduct endangering persons.

16You and Ms Attard immediately retreated into the home while Ms Walsh remained outside and is seen to be on her phone speaking with triple-zero. There is a further verbal exchange between Ms Walsh and the men. Mr Edwards is depicted walking towards Ms Walsh, who quickly returns to the home, closing the door behind her. Mr Edwards follows and kicks the screen door less than a second after it is closed, before walking back down the veranda where he punches two separate areas, on the side of the house.

17Mr Edwards and Mr Steven remain in the vicinity of the home for some time, shouting abuse at the home.

18The police arrived a short time later and the Critical Incident Response Team attended with an armoured vehicle and conducted a ‘cordon and call’ of the home, calling all occupants to exit the address. By 3:55 am, you and the remainder of the occupants had exited the house and been arrested without incident.

19Whilst police were clearing the home for any further occupants, a rifle bag was located in the roof space and some ammunition was also located inside. Following the execution of search warrants later that morning, the following items were located and seized:

(a)   A CZ 0.22 calibre rimfire rifle equipped with a silencer (Charge 2 – Prohibited person possess a firearm);

(b)   A Sako .370 calibre centre-fire rifle (Charge 2 – Prohibited person possess a firearm);

(c)    3 cartridges of .270 Winchester ammunition (Summary Charge 6 – Possess cartridge ammunition without a licence);

(d)   A samurai sword (Summary Charge 11 – Possess controlled weapon);

(e)   Firearm red-dot sight;

(f)     Vehicle registration plates (Charge 4 – Handling stolen goods); and

(g)   CCTV hard drive

20Police enquires reveal the registration plates URI735 to have been stolen from Sunbury in November, 2021. It is not alleged that you were involved in that theft. Police enquiries also revealed that both of the firearms were stolen from a burglary in Lima South, Victoria in July, 2022. Again, it is not alleged that you were involved in that burglary, nor with the removal of the serial numbers from the CZ firearm.

21You were transported to Fawkner Police Station on the day and gave a no comment record of interview.

Objective Gravity

22I turn to an assessment of the objective gravity of your offending.

23Despite the disparity in maximum sentences, I consider the most serious of your offences to be the discharge of the firearm in the direction of Mr Edwards, as described earlier.

24In assessing the gravity of an endangerment offence, the key factors are the nature and degree of risk created, and whether a weapon was used and, if so, what the weapon was.[4] As the Court of Appeal has regularly observed, it is difficult to imagine a more serious instance of this offence than where a firearm is deliberately fired at close quarters in the direction of another person.[5]

[4] Avan v The Queen [2019] VSCA 257.

[5] DPP (Vic) v Gardner [2004] VSCA 119, [8]; Zogheib v The Queen (2015) 257 A Crim R 454, 458; R v Natale [2019] VSC 30, [22]; DPP (Vic) v Le [2019] VSCA 258, [4], [54]; Cooper v The Queen [2020] VSCA 288, [69] (‘Cooper’).

25In assessing the gravity of a charge of reckless conduct endangering persons, the Court of Appeal in Cooper had regard to a number of factors that are also present in this case, including:

(a)   the risk of injury was not low – there were at least two persons conceivably within the line of fire or in danger of being struck by shrapnel, being Mr Edwards and an occupant of the home.[6] The potential manifestation of that risk was of course extremely serious; had Mr Edwards been struck by the bullet, the consequences could have been grave; and

(b)   you did not act instinctively – at the time you discharged the firearm, you and the other occupants were not at immediate risk of harm, and the authorities had been contacted. It was you who opened the door to your house.

[6] That person is briefly visible on the CCTV footage.

26Your counsel sought to characterise your conduct as retaliatory and a form of ‘excessive self-defence’. While I accept that what can only be described as an attempted home invasion would have been frightening, I conclude that it provides no justification for your conduct.

27As I said to your counsel at the hearing, the appropriate response was to call the police and certainly not to escalate the problem by firing a gun. Instead you took the law into your own hands. The courts have repeatedly emphasised that the sentences for such conduct ‘must be sufficiently high to deter others from adopting that course’.[7]

[7] Kelly v The Queen [2020] VSCA 171, [46]; Cooper, [74].

28Accordingly, I reject your counsel’s submission that your offending falls in the low-mid range of this type of offending. This is correct in respect of the balance of the charges, but yours is a mid to high range example of reckless conduct endangering persons.

29Charge 2 is a rolled up charge reflecting that you had two weapons. Given that you were, at the time, a prohibited person, this can only be seen as mid-level offending.[8] The same is to be said for charge 3.

[8] Berichon v The Queen; Houssein v The Queen [2013] VSCA 318, [26]-[27].

30With respect to the ammunition offences, I assess their objective seriousness as falling towards the lower end of the spectrum. While it is concerning that you had ammunition at home as well as the guns, there is no evidence that you were implicated in the theft or removal of the serial numbers of the firearms, or that they, including the samurai sword, were used in the furtherance of other offending.

31The objective seriousness of the handling stolen goods charge is low, for the same reasons I have explained above.

Personal Circumstances

32You were 47 years of age at the time of the offending; you are now 48. You are the youngest in a sibship of four and, after your parents separated when you were between 12 and 13, you were raised by your father until the age of 18. Your mother resided interstate through much of your adult life and your father passed away in 2015, following a long battle with lung disease.

33You left school part-way through year 12 and maintained employment in various industries between then and 2015, including as  a dispatch supervisor, inventory & logistics manager, and forklift driver. You were unemployed from 2015 onwards, save for the period between 2019 and 2020, and your remand, during which you worked as a full-time carer, receiving a carers’ pension for doing so.

34The one significant adult relationship you had ended in 2016 following 13 years of marriage; it yielded two daughters (one step and one biological) who are now adults. You maintain a positive relationship with your ex-wife who has supported you through these proceedings and she and your daughters speak with you daily and visit you in custody.

35With respect to your physical health, you were diagnosed with Chronic Obstructive Pulmonary Disease 4 or 5 years ago and you are prescribed inhalers for its management. During your time in custody, your affliction has been causing you increased difficulty breathing and snoring. In addition, you have recently been diagnosed with severe gum disease and have been advised that you require all of your top teeth removed and replaced with dentures.

Alcohol and Drug Use

36You report drinking regularly whilst in the community, although not to excess. However, your psychologist, Mr Jeffrey Cummins opines that you likely had a drinking problem leading up to and around the time of the offending.[9]

[9] Psychological Report of Jeffrey Cummins dated 18 July 2023 (Exhibit D2).

37Drugs have also marred much of your adolescent and adult life. You began experimenting with amphetamine at the age of 15 and by 25 your experimentation had devolved into a daily habit. You were then introduced to methamphetamine and have since had an on-and-off again dependency on the drug, smoking up to half a gram per day. In the two years leading up to your arrest in relation to this offending, you used GHB frequently. On a positive note, you do report a number of years of infrequent drug use before your redundancy in 2014.

Mental Health

38In his report, Mr Cummins does not diagnose you with a mental health disorder. You presented to him as being moderately depressed and mildly anxious. You report experiencing symptoms of paranoia and occasionally experiencing symptoms of auditory hallucinations, although these coincided with methamphetamine intoxication.

39You also report feeling depressed from time-to-time about your parents’ separation and, in particular, about your mother’s absence when you were aged between 19 and 35. You told Mr Cummins you felt intermittently depressed about your dependency on various substances, although you were of the opinion that  your illicit substance use enabled you to better moderate your emotions.

40The report to the Court from the Mental Health Advice and Response Service concludes that you have a mild mental health problem or difficulty and that you would benefit from ongoing assessment and, where necessary treatment.[10]

Criminal Record

[10]

41You have an extensive criminal record dating back to 1993 and have been dealt with by this court and the Magistrates’ Court for a range of offending, some of which I consider bears upon the need for specific deterrence to play a role in the sentence I impose.

42Of relevance I note that you have spent time in custody for recklessly causing injury in 2020, handling stolen goods in 2018 and 2017, and assault with a weapon in 2017. Unfortunately, the sentences you received for that offending failed to deter you.

Submissions

43While accepting that your offending is serious, your counsel identified the following mitigating factors:

(a)   Your plea of guilty;

(b)   Remorse as evidenced by the plea and comments in the report of Mr Cummins;

(c)   Solid support network; and

(d)   Efforts in custody to complete courses[11]

[11] Summary of Defence Submissions in Plea of Mitigation dated 10 August 2023, [13]-[16].

44I have taken into account the utilitarian benefit of your guilty plea saving the need for witnesses to re-live what must have been a terrifying experience.

45Your counsel accepted that your prospects of rehabilitation ‘could be said to be guarded’, but submitted that they are not nil. For reasons that will become clear later in these reasons I assess your prospects as poor. I note that you have some family support from your daughter Ebony;[12] your step-daughter Jade;[13] and your ex-wife Rebecca.[14] However, your ongoing challenges with alcohol and drugs both of which are longstanding stand in the way of true rehabilitation.

[12] Letter to Court from Ebony Moran dated 13 August 2023 (Exhibit D6).

[13] Letter to Court from Jade Kimpton dated 13 August 2023 (Exhibit D7).

[14] Letter to Court from Rebecca Moran dated 13 August 2023 (Exhibit D8).

46On the question of remorse, while you told Mr Cummins that you should not have discharged the firearm,[15] I have doubts about how remorseful you are. When asked by Corrections to reflect on the impact of your offending on the victims, you responded ‘hopefully it scared them to ever break into someone’s home’. This lack of remorse was ‘of concern’ to the assessor.

[15] Exhibit D2, [34].

47Your counsel placed no reliance on the principles in Verdins[16] or Bugmy[17]. Her ultimate submission was that a combination sentence was appropriate to both punish you and promote your rehabilitation.

[16] R v Verdins [2007] VSCA 102.

[17] Bugmy v The Queen [2013] HCA 37.

48Prosecuting counsel submitted that when one has regard to the objective seriousness of the firearms offences and your prior criminal record the only appropriate sentence is a term of imprisonment with a non-parole period.[18]

[18] Outline of Prosecution Submissions on Sentence filed 14 August 2023, [12].

Consideration

49I have referred earlier in these reason to your concerning criminal record. The most recent offending before this present incident for which you were sentenced by this court occurred in February 2019. On that date you and a co-accused violently attacked a security guard and attempted to rob him. Your co-accused had a gun and you were armed with a baton which you used to strike the guard more than once.

50In May 2020, Her Honour Judge Gwynne sentenced you to 18 months’ imprisonment and a 12 month CCO for attempted armed robbery, recklessly cause injury among other offences.[19] Her Honour expressed ‘some reservation’ about your suitability for a combination sentence in light of your prior criminal history and the assessment of you as a high risk of re-offending but noted that you had told the assessor that your time in custody had ‘given you the opportunity to reflect on your life and your future’.[20]

[19] DPP v Moran [2020] VCC 767.

[20] Ibid, [79].

51Her Honour told you that the sentence she was imposing gave you a chance to change your life in a positive fashion should you choose to take up the opportunity and the supports that will be made available to you’.[21] Her Honour acknowledged that the sentence she was imposing was ‘somewhat lenient’ given your offending.[22]

[21] Ibid, [92].

[22] Ibid, [93].

52It appears to me that, for whatever reason, you did not take that chance just as you had not taken previous chances that the justice system gave you. On 1 December 2020 you were sentenced in the Sunshine Magistrates’ Court for contravening a CCO and fined. The offending for which I am sentencing you occurred in September of 2022.

53Despite the fact that you have again been found suitable for a CCO notwithstanding once again being assessed by Corrections as a high risk of re-offending, I will not give you a further chance to serve a sentence in the community. You are no longer a young man whose youth provides some explanation for violent offending. A community-based sentence will not meet the applicable sentencing objectives.[23]

[23] Sentencing Act 1991 (Vic), s 5(4).

54I accept the prosecution submission that the need for denunciation, community protection and deterrence, both general and specific, mean that the only appropriate sentence is a head sentence and a non-parole period.

55Accordingly, I sentence you as follows:

(a)   On charge 1, conduct endangering persons, you are convicted and sentenced to 2 years’ imprisonment;

(b)   On charge 2, a rolled up charge of being a prohibited person possessing a firearm, you are convicted and sentenced to 18 months’ imprisonment;

(c)   On charge 3 of being a prohibited person possessing a silencer, you are convicted and sentenced to imprisonment for 1 year;

(d)   On charge 4, handling stolen goods, you are convicted and sentenced to 3 months’ imprisonment;

(e)   On related summary charge 6, a rolled up charge of possessing cartridge ammunition whilst unlicensed, you are convicted and fined $1,000; and

(f)     On related summary charge 11, possessing a controlled weapon without lawful excuse, you are convicted and fined $500.

56The sentence on charge 1 is the base sentence. I order that 4 months of the sentence on charge 2 and 3 months of the sentence on charge 3 be served cumulatively on the charge 1 sentence and on each other.

57The sentence on charge 4 is to be served concurrently.

58The total effective sentence is therefore 2 years and 7 months imprisonment and a total fine of $1,500.

59I order that you serve 20 months in prison before you are eligible for parole.

60Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that the 353 days you have spent on remand be reckoned as time served in respect of the sentence I impose today.

61Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) I state that, but for your pleas of guilty, the total effective sentence would have been 3 years and 6 months’ imprisonment and the non-parole period would have been 2 years and 5 months.

62Finally, I make the forfeiture orders sought by the prosecution noting that they are not opposed.