Moran v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0174

PETER MORAN	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2024
DATE OF JUDGMENT:	27 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 13
JUDGMENT APPEALED FROM:	[2023] VCC 1547 (Judge Rozen)

CRIMINAL LAW – Appeal – Sentence – Whether sentencing judge breached procedural fairness by having regard to earlier sentencing reasons – Crown concession – Whether a reasonable prospect of reduction to total effective sentence – Whether a different sentence should be imposed – Application for leave to appeal granted – Appeal allowed.

R v Ulla (2004) 148 A Crim R 356, R v Wise (2000) 2 VR 287 discussed.

Counsel
Applicants:		Mr P Doyle SC with Ms F Livingstone Clark
Respondent/s:		Ms J Warren
Solicitors
Applicant:	Doogue + George Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
BOYCE JA:

On 15 August 2023, the applicant pleaded guilty in the County Court to one charge of reckless conduct endangering persons, one charge of prohibited person possess a firearm, one charge of prohibited person possess a silencer, one charge of handle stolen goods and two related summary offences.
Following a plea hearing, the applicant was sentenced on 31 August 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Reckless conduct endangering persons[1]	5 years	2 years	Base
2	Prohibited person possess a firearm[2]	10 years	18 months	4 months
3	Prohibited person possess a silencer[3]	8 years	1 year	3 months
4	Handling stolen goods[4]	15 years	3 months	Nil
Related Summary Offences
6	Possess cartridge ammunition without a licence[5]	40 penalty units	Fined $1000	Nil
11	Possess controlled weapon without lawful excuse[6]	120 penalty units or 1 year	Fined $500	Nil
Total Effective Sentence:		2 years and 7 months’ imprisonment
Non-Parole Period:		20 months
Pre-sentence Detention Declared:		353 days
Section 6AAA Statement:		Total Effective Sentence: 3 years and 6 months’ imprisonment Non Parole-Period: 2 years and 5 months
Other Relevant Orders: 1. Forfeiture Order

[1]Contrary to s 23 of the Crimes Act 1958.

[2]Contrary to s 5(1) of the Firearms Act 1996.

[3]Contrary to s 5(2) of the Firearms Act 1996.

[4]Contrary to s 88 of the Crimes Act 1958.

[5]Contrary to s 124(1) of the Firearms Act 1996.

[6]Contrary to s 6(1) of the Control of Weapons Act 1990.

The applicant now seeks leave to appeal against sentence on a single ground,[7] namely that the sentencing judge denied the applicant procedural fairness. There were four distinct ways in which that was said to have occurred:
(a)first, by the judge accessing and relying upon the sentencing remarks of another judge in May 2020[8] (the ‘Judge Gwynn reasons’), in relation to one of the applicant’s prior criminal matters;
(b)secondly, by the judge failing to provide the applicant with a sufficient opportunity either to object to his Honour’s reliance on the earlier sentencing remarks or address the finding his Honour intended to make;
(c)thirdly, by the judge relying upon comments made in a Community Corrections Order (‘CCO’) report to reach an adverse view in relation to the applicant’s remorse, without giving him a sufficient opportunity to address the finding his Honour intended to make; and
(d)fourthly, by the judge relying upon comments in the CCO report to reach an adverse view in relation to the applicant’s risk of reoffending, without giving the applicant sufficient opportunity to address that dichotomy nor the adverse finding his Honour intended to make.
[7]The applicant initially relied on two grounds, but at the hearing of the application for leave to appeal he abandoned the second ground.
[8]Director of Public Prosecutions v Moran [2020] VCC 767.
Prior to the hearing of the application for leave to appeal, the prosecution informed the Court that it conceded that ground 1 was made out, on the basis of the matters set out in paragraphs (a) and (b) above. The prosecution did not concede that the matters in paragraphs (c) and (d) constituted a breach of procedural fairness.
For the reasons that follow, we have concluded that the judge’s obtaining and reliance on the Judge Gwynn reasons, without giving the applicant an opportunity to be heard in relation to those reasons, was a breach of procedural fairness. Accordingly, it is unnecessary to consider other matters relied upon by the applicant.
In light of that conclusion, the sentencing discretion is re-opened. For the reasons that follow, we would sentence the applicant as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Reckless conduct endangering persons[9]	5 years	1 year and 9 months	Base
2	Prohibited person possess a firearm[10]	10 years	18 months	4 months
3	Prohibited person possess a silencer[11]	8 years	1 year	2 months
4	Handling stolen goods[12]	15 years	3 months	Nil
Related Summary Offences
6	Possess cartridge ammunition without a licence[13]	40 penalty units	Fined $1000	Nil
11	Possess controlled weapon without lawful excuse[14]	120 penalty units or 1 year	Fined $500	Nil
Total Effective Sentence:		2 years and 3 months’ imprisonment
Non-Parole Period:		18 months
Pre-sentence Detention Declared:		533 days
Section 6AAA Statement:		Total Effective Sentence: 3 years and 4 months’ imprisonment Non Parole-Period: 2 years and 3 months

[9]Contrary to s 23 of the Crimes Act 1958.

[10]Contrary to s 5(1) of the Firearms Act 1996.

[11]Contrary to s 5(2) of the Firearms Act 1996.

[12]Contrary to s 88 of the Crimes Act 1958.

[13]Contrary to s 124(1) of the Firearms Act 1996.

[14]Contrary to s 6(1) of the Control of Weapons Act 1990.

Circumstances of the offending

On 12 September 2022, at about 12:30 am, two men approached a home situated in Sunbury (the ‘Sunbury home’). One of the men wished to confront the occupants of that premises because he believed that the occupants were selling drugs to his children and apprentices.
The applicant was present in the premises at the Sunbury home when the two men arrived. There were another five persons, male and female, inside.
At around 12:37 am, the two men approached the door and knocked. After two minutes or so, one of the men began pushing and pulling a metal screen door in an attempt to open it. The man broke the handle off the door. He punched and then headbutted the screen door. The two men remained at the door for approximately four and a half minutes.
The men then moved back onto the street, towards the car parking area located on the same street as the Sunbury home. This area was approximately 15–20 metres away from the Sunbury home. At around 12:40 am, one of the two men returned to the front of the applicant’s residence. He punched at a CCTV camera installed at the front of the house. He knocked it off the wall and broke it.
That man returned to the car parking area. By this time, the other man had positioned himself near a large illuminated ‘For Sale’ sign. This sign was in the front yard of another house on the same street and was about 15 to 19 metres from the Sunbury home.
At 12:40 am, one of the women emerged from the front door of the Sunbury home. She remonstrated with the two men. The men yelled back things like: ‘come out, let’s go’, ‘tell your boy to come out’, ‘drug dealer’, and ‘you little dog, let’s go’.
The woman returned inside the premises, but she exited again soon after. When she emerged she was armed with a shovel. She walked across the street towards the two men. She told them to get away from the house; she said that she had contacted the police. While the woman was doing this, a man emerged from inside the house. He stood on the front door step. The woman with the shovel called 000 on her mobile telephone.
The two men continued to yell at the occupants of the Sunbury home. The men accused the occupants of ‘selling ice to [their] kids’. The men told the woman with the shovel to give the ‘weapon to her boyfriend’; they encouraged the woman to tell the boyfriend to ‘come at them’. The two men continued to accuse the occupants of the Sunbury home of selling ‘ice’ to their children. The woman returned to the front door of the premises where the man who had come from inside the house was standing. It was then that a second woman emerged from the Sunbury home. She had a rifle, which she raised to her shoulder, and for about eight seconds, pointed it in the direction of the two men. The two men were, as has been noted, standing approximately 15 to 19 metres away. She then lowered the rifle, raised it, and pointed it again at the men.
It was at this point that the applicant emerged from the Sunbury home. He came out onto the doorstep of the home. He was concealed by a screen door which opened outwards onto the veranda. He was holding a CZ 0.22 calibre rimfire rifle fitted with a silencer. He pointed the rifle towards the ground. This conduct formed part of the applicant’s guilt of Charge 2. It also constituted the conduct grounding Charge 3.
The applicant moved out from behind the screen door, raised the rifle to his right shoulder and pointed it in the direction of the illuminated ‘For Sale’ sign. The applicant fired a single shot from the rifle at the sign. The bullet struck the sign. At the time the applicant fired, the man near the sign was about two metres away from the sign. The applicant’s firing of the weapon constituted Charge 1.
The applicant and the woman who had previously aimed the rifle then returned inside the house. The other woman — the woman previously with the shovel — remained outside. She was still on the phone to 000. There was a further verbal exchange between that woman and the two men. The man who had been standing next to the ‘For Sale’ sign approached the woman on the telephone. She returned inside the premises, closing the door after her. The approaching man kicked the closed screen door. He walked back down the veranda and punched two separate areas on the side of the house.
The two visiting men remained for some time in the vicinity of the Sunbury home and continued to shout abuse at the occupants. They then left.
Police arrived a short time later. They located a rifle bag in the house containing ammunition. Following the execution of search warrants later that morning, the following items, which were connected with the applicant, were located:
(a)the CZ 0.22 calibre rimfire rifle equipped with a silencer (items, as already noted, substantiating Charges 2 and 3);
(b)a Sako .370 calibre centre-fire rifle (another firearm referable to Charge 2);
(c)three cartridges of .270 Winchester ammunition (referable to Summary Charge 6);
(d)a samurai sword (referable to Summary Charge 11); and
(e)vehicle registration plates (referable to Summary Charge 4).
Police inquiries revealed that the number plates had been stolen in Sunbury in November 2021. Both firearms had been stolen during a burglary in Lima South, Victoria in July 2022. It was not suggested that the applicant had anything to do with these thefts.
The applicant was arrested and transported to Fawkner Police Station where he gave a ‘no-comment’ record of interview.
The applicant’s plea hearing proceeded on 15 August 2023. At the end of the plea hearing the judge ordered that the applicant be assessed for suitability for a CCO.

Applicant’s personal circumstances

The applicant was 47 years of age when he offended, and 48 at the time of sentence. His parents separated when he was 12 or 13 and he resided with his father until the age of 18. His father died in 2015; the applicant had had very limited contact with his mother. The applicant left school during Year 12 and held employment as a dispatch supervisor, inventory and logistics manager and forklift driver until 2015. He was largely unemployed from that time, save that he worked as a full-time carer. He was in receipt of a carer’s pension in relation to a man with an intellectual disability, who resided at the Sunbury home with the applicant.
The applicant was married for 13 years until 2016. He has two daughters who are now adults. The applicant has maintained a positive relationship with his ex-wife and has continued to communicate with his daughters whilst in custody.
The applicant was diagnosed with chronic obstructive pulmonary disease some four or five years prior to sentence. He had to use inhalers for the management of this condition. This caused him some difficulty breathing. Additionally, the applicant, at the time of sentence, had recently been diagnosed with severe gum disease and had been advised that he would require all of his top teeth removed and replaced with dentures.
A psychological report tendered on the plea suggested that it was likely that the applicant had a drinking problem in the period leading up to the offending. The applicant had begun experimenting with amphetamines when he was 15. By the age of 25 he had developed a daily habit. He was then introduced to methamphetamine. He had developed an ‘on-and-off-again’ dependency on that drug, smoking up to half a gram per day. The applicant had also commenced using the drug GHB with some frequency in the two years or so prior to the present offending. The applicant’s drug use had, it seems, been less frequent when he was employed.
The psychological evidence did not establish the existence of a mental health disorder, but the applicant did suffer a degree of depression caused by the separation of his parents, his lack of a close relationship with his mother and his dependency on various substances. The applicant was mildly anxious and reported symptoms of auditory hallucinations. These symptoms normally coincided with methamphetamine intoxication.
The applicant had an extensive criminal record dating back to 1993, having been dealt with by the Magistrates’ Court and the County Court. Relevantly, the applicant had spent time in custody for recklessly causing injury in 2020, handling stolen goods in 2017 and 2018, and assault with a weapon in 2017.

The plea

The applicant relied on his early pleas of guilty, his remorse (as expressed in the psychologist’s report), his solid support network and his efforts to complete courses whilst in custody.
At one point during the plea an issue arose as to how it was that the applicant came to be a ‘prohibited person’ for the purposes of Charges 2 and 3. In this context, the following exchange took place between the prosecutor and judge:
THE PROSECUTOR: … I think I might’ve mentioned it in the submissions, his 2020 conviction in the County Court for attempted armed robbery, that was before Her Honour Judge Gwynn. I was unable to obtain a copy of the sentencing reasons.
HIS HONOUR: I couldn’t find it either.
The applicant’s prior criminal history was reasonably extensive and included the following.
(a)On 12 December 2017, the applicant had been sentenced at the Broadmeadows Magistrates’ Court for burglary, theft, assault, dishonesty offences, drug offences, driving offences and contravention of bail. He had received, on that date, a prison sentence of eight months combined with a CCO lasting 12 months.
(b)On 23 February 2018, he had been sentenced in the Broadmeadows Magistrates’ Court for dishonesty offences and possession of a controlled weapon. On that date, he received 60 days’ imprisonment. This sentence was ordered to run concurrently with the 12 December 2017 sentence.
(c)On 29 May 2020, he was sentenced in the County Court by Judge Gwynn to a prison term of 18 months’ duration combined with a 12-month CCO for attempted armed robbery, recklessly cause injury and drug offences.
(d)On 1 December 2020, the applicant was convicted and fined for having contravened the CCO that had been imposed at Broadmeadows on 12 December 2017.
It became apparent on the plea that, while the applicant had breached the December 2017 CCO, he had in fact completed, without incident, the CCO ordered by Judge Gwynn in May 2020. Relevantly, the following exchange took place between the judge and the applicant’s counsel:
HIS HONOUR: … So he would’ve been—so he’s got an aggregate sentence of 18 months from this court, Her Honour Judge Gwynn in May 2020 but he’s already served the best part of that, or most of it, and would’ve been out pretty soon after.
THE APPLICANT’S COUNSEL: Yes.
HIS HONOUR: He’s then contravened a CCO. Then nothing further.
THE APPLICANT’S COUNSEL: And the most recent Community Corrections order is one that was completed and as I’ve said, he found that to be of some assistance…
At the end of the plea the judge decided that he would have the applicant ‘assessed for a CCO’. That was going to ‘take a little bit of time’. The judge said:
[O]f course the parties will have an opportunity once they receive that report to make any submissions that they wish to make in the usual way. So I’ll allow a bit of time for that to occur if that’s what is the wish of defence and prosecution and I should be in a position to impose sentence… I’ll make it two weeks…
The Community Corrections Assessment Report that had been ordered by the sentencing judge was received by the court and the parties on 17 August 2023. In addition, prior to sentencing the applicant on 31 August 2023, the judge ‘made several minor procedural queries of the parties in relation to the forfeiture orders sought’.
Relevantly, for the purposes of this application, the Corrections Assessment Report assessed the applicant ‘as being high risk of re-offending according to the Level of Service Risk Assessment Tool’. As to the applicant’s remorse, the assessment report stated:
In respect to the offending, Mr Moran stated he had been woken up to two individuals ‘smashing my window and trying to kick in my front door’. Mr Moran stated he took it as a ‘threat’ and believed he was about to experience a ‘home invasion’. Mr Moran stated he had a firearm with him, as the victims ‘were also armed’ and ‘shot at a sign to scare them’. When invited to discuss why he was in possession of a firearm, Mr Moran stated it was due to ‘fear’ as he had a history of ‘drug dealing’. Mr Moran acknowledged his offending stating he was ‘wrong and shouldn’t have had a gun’, however also stated that ‘If I hadn’t done what I did...they would have shot us’. Mr Moran stated ‘hopefully it scared them to ever break into someone’s home’, when discussing victim impacts. When invited to discuss his non-compliance with previous orders, Mr Moran stated he had re-offended. Mr Moran stated he would like to do a further CCO, as he wants support for his drug use and to not re-offend.
While it is of concern that Mr Moran did not provide any remorse to his victims, this service notes Mr Moran has expressed interest to complete a further CCO. Given Mr Moran’s willingness to do a CCO, he is considered a suitable candidate for a CCO. Given the assessed level of risk, the conditions set by your honourable court are supported.

The reasons for sentence

The sentencing judge considered that the most serious of the applicant’s offences was the endangerment offence — his firing of the rifle ‘in the direction of’ the man who was standing close by the ‘For Sale’ sign.[15] The judge observed that ‘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’.[16]
[15]DPP v Moran [2023] VCC 1547, [15] (‘Reasons’).
[16]Ibid [24].

In assessing the gravity of the endangerment offence, the sentencing judge noted that:
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 [the man next to the ‘For Sale’ sign] and an occupant of the home. The potential manifestation of that risk was of course extremely serious; had [the man next to the ‘For Sale’ sign] been struck by the bullet, the consequences could have been grave; and
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.[17]
[17]Ibid [25].
The judge noted that the applicant’s conduct had been characterised by his counsel as a form of ‘excessive self-defence’.[18] The judge was prepared to ‘accept that what can only be described as an attempted home invasion would have been frightening’,[19] yet concluded that ‘it provides no justification for [the applicant’s] conduct’.[20] As put by the judge:
[T]he 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’.[21]
[18]Ibid [26].
[19]Ibid.
[20]Ibid.
[21]Ibid [27].
On this basis, the judge rejected a contention made on the applicant’s behalf that the applicant’s offending fell in the ‘low-mid range of this type of offending’.[22] The judge concluded that such a description may have been appropriate for the balance of the charges, but that ‘yours is a mid to high range example of reckless conduct endangering persons’.[23]
[22]Ibid [28].
[23]Ibid.
In light of the fact that the Charge 2 offending was essentially a ‘rolling-up’ of two instances of possession of a firearm as a prohibited person, the judge thought that ‘this can only be seen as mid-level offending’[24] and that ‘the same is to be said for Charge 3’.[25] As to the ammunition offences the judge said:
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.[26]
[24]Ibid [29].
[25]Ibid.
[26]Ibid [30].
The judge considered that the objective seriousness of the handling stolen goods charge was ‘low’ for similar reasons.[27]
[27]Ibid [31].
The judge took into account the utilitarian value of the guilty pleas but he assessed, for reasons that his Honour said would ‘become clear’, that the applicant’s prospects of rehabilitation were ‘poor’.[28]
[28]Ibid [45].
The judge stated that he had ‘doubts’ about how remorseful the applicant was:
On the question of remorse, while you told Mr Cummins that you should not have discharged the firearm, 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.[29]
[29]Ibid [46].
Importantly, for the purposes of this application, and in apparent justification of his Honour’s earlier remarks concerning what he said would ‘become clear’,[30] the judge, towards the end of his reasons for sentence, expressed himself as follows:
I 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.
In May 2020, Her Honour Judge Gwynn sentenced you to 18 months’ imprisonment and a 12 month CCO for attempted armed robbery, recklessly cause injury among other offences. 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’.
Her 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’. Her Honour acknowledged that the sentence she was imposing was ‘somewhat lenient’ given your offending.
It 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.[31]
[30]Ibid [45].
[31]Ibid [49]–[52].
Finally, when it came to the risk of re-offending, the judge said:
Despite the fact that you have again been found suitable for a CCO notwithstanding once again being assessed by Corrections as a high risk of reoffending, 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 objectives.[32]
[32]Ibid [53].

Ground 1(a) & 1(b)

As noted above, the applicant has a single ground of appeal, which turns on four sub-grounds. The prosecution conceded that sub-grounds (a) and (b) were made out. If we accept that concession it will be unnecessary for us to determine grounds 1(c) and 1(d).
Acceptance of the Crown’s concession would mean that the sentencing judge’s discretion is vitiated and it would be necessary to determine whether leave should be refused on the basis that there was ‘no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed’.[33] If leave is granted, we must allow the appeal if we are satisfied that ‘a different sentence should be imposed’.[34]
[33]Criminal Procedure Act 2009, s 280(1)(b) (‘CPA’).
[34]CPA, s 281(1)(b).
The applicant submitted that the sentencing judge denied him procedural fairness by obtaining the Judge Gwynn reasons and relying on them in order to take an adverse view of the applicant’s prospects of rehabilitation without first having notified the applicant’s legal representatives of his Honour’s intention to do so.
In support of this submission the applicant cited Re Media Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd where Mason CJ, Brennan, Deane, Dawson and Gaudron JJ observed that a judge’s decision must be made on the basis of the evidence and arguments in the case and not ‘on the basis of information which is independently acquired’.[35] The applicant also relied on this Court’s statement of principle in SD v The Queen, namely, that a court ‘is not entitled to take into account factual material not in evidence without notice to the parties’.[36]
[35](1994) 119 ALR 206, 210; [1994] HCA 66.
[36](2013) 39 VR 487, 496 [37] (Ashley, Redlich and Priest JJA); [2013] VSCA 133.
As noted above, the respondent conceded that there had been a breach of procedural fairness caused by the sentencing judge’s use of the Judge Gwynn reasons.
We accept the applicant’s contention of error and the respondent’s concession in this regard concerning Ground 1(a) and (b). The concession is consistent with the decisions of this Court in R v Ulla[37] and R v Wise.[38] Each was a case where procedural fairness was denied when a sentencing judge sentenced a person by reference to earlier sentencing reasons concerning that person, in circumstances where those reasons had not been brought to the attention of the sentenced person’s legal representatives.
[37](2004) 148 A Crim R 356; [2004] VSCA 130 (‘Ulla’).
[38](2000) 2 VR 287; [2000] VSCA 169 (‘Wise’).
The sentencing judge’s use of the Judge Gwynn reasons for sentence was material to the exercise of the sentencing discretion. Those reasons were used by the judge in a manner that was adverse to the applicant’s interests. They were used, in part, to assess the applicant’s prospects of rehabilitation as ‘poor’. The applicant’s legal representatives did not have the Judge Gwynn reasons. The sentencing judge had previously indicated that he had looked for those reasons but could not find them. The judge’s decision to continue to search for the reasons, read them and then make use of them in the exercise of the sentencing discretion ought all have taken place on notice to the applicant.[39] The applicant was deprived of the opportunity to make submissions at each step of that process.
[39]Ulla (2004) 148 A Crim R 356, 361–3 [19]–[22] (Eames JA, Batt JA agreeing at 357 [1], Vincent JA agreeing at 357 [2]; [2004] VSCA 130; Wise (2000) 2 VR 287, 293–4 [19]–21] (Ormiston JA, Brooking JA agreeing at 288 [1], Chernov JA agreeing at 298 [33]); [2000] VSCA 169; R v Carlstrom [1977] VR 366, 367 (Young CJ, Menhennitt and Kaye JJ).

The consequences of upholding Grounds 1(a) & 1(b)

Given that we have upheld grounds 1(a) and 1(b), the next questions (which we will deal with together) are whether, notwithstanding the judge’s error, there is a reasonable prospect of a reduction to the total effective sentence and whether a different sentence should be imposed. The parties joined issue on these matters. Given the structure of the total effective sentence, argument centred upon the length of the base sentence — the two-year term of imprisonment imposed for the endangerment offence.
The applicant submitted that more weight should have been given to the context surrounding his discharge of his weapon. He submitted that he was effectively acting in excessive self-defence; the applicant was responding, he submitted to ‘a very alarming and confronting situation outside his home.’ He emphasised that the psychological report relied on before the primary judge revealed that, when the intruders smashed a window at the front of the Sunbury home, a shard of glass fell near the bed of a man who was within the house at that moment. As noted above, this man had an intellectual disability and was in the applicant’s care.
Insofar as the events of that night would have engendered fear in the applicant, the applicant emphasised that one of the intruders had bashed on the screen door of the house and had wrenched the handle off the door. He also pointed to the fact that one of the intruders smashed the CCTV camera installed on the porch.
The applicant submitted that he had fired a single shot from a .22 rifle and had aimed solely at the ‘For Sale’ sign. He further submitted that the primary judge had not truly appreciated how frightening the events were that led to him carrying out such an action. The applicant emphasised the primary judge’s conclusion that the fear felt by the applicant ‘provides no justification’ for his conduct.[40] The applicant submitted that he had never at the plea suggested his actions were ‘justified’. The judge’s resort to ‘justification’ meant that the reality of the applicant’s experience had to have been erroneously downplayed.
[40]Reasons, [26].
The applicant submitted, moreover, that, notwithstanding it was dangerous for him to discharge a firearm in the circumstances in which he found himself, it was in error to find that his offending was in the ‘most serious category’. He had aimed at an illuminated sign. There was little chance that he might miss and hit the man standing nearby. He accepted that there may have been some danger due to a risk of ricochet, but submitted that this risk was not pronounced. And any danger presented to the woman standing next to the applicant on the porch could only have been minimal.
To make good his submission critical of the judge’s use of the ‘most serious category’ descriptor, the applicant relied upon various other endangerment sentencing cases that involved discharge of a firearm.[41] Insofar as these cases might establish a relevant ‘yardstick’, he submitted that they demonstrated why the sentence on Charge 1 should be reduced.
[41]Many of these cases concerned sentences imposed for the more serious offence of conduct recklessly endangering life, which carries a maximum penalty of 10 years’ imprisonment. We accept that it is appropriate to have regard to such cases for the purpose of considering current sentencing practice in relation to the lesser, but related, offence of conduct recklessly endangering persons.
The applicant pointed to the sentence of four years’ imprisonment imposed on two respondents to a successful Crown appeal in DPP v Gardner.[42] The respondents in that case had been charged with the offence of conduct endangering life.[43] Both had prior convictions. They had carried out an audacious armed robbery against security personnel employed to transfer cash from an Armaguard van to various ATMs installed at a bank. One had repeatedly fired at the security guards; the other had aided and abetted his companion. Both respondents disputed at trial that they were in any way involved in the firing of a weapon. The applicant acknowledged that in that case the sentences of four years’ imprisonment imposed would have been moderated on account of double jeopardy.
[42][2004] VSCA 119.
[43]Crimes Act 1958 s 22.
Next, the applicant took the Court to Zogheib v The Queen,[44] another case of reckless conduct endangering life. The accused had pleaded guilty. This case involved a car chase where the accused pursued another vehicle at a speed in excess of 140 kph. During the chase the accused fired three shots at the pursued vehicle. One shot shattered that vehicle’s rear windscreen. The accused had previously been threatened by others; he mistakenly believed that the occupants of the car he was chasing had been involved in the earlier threatening behaviour. This accused’s offending was in breach of two CCOs as well as bail. This Court found that the sentence of 5 years’ imprisonment imposed on the endangerment charge was not manifestly excessive.
[44](2015) 257 A Crim R 454; [2015] VSCA 334.
The applicant also relied on R v Natale.[45] In that case the endangerment consisted in the accused twice firing a double barrel 12-gauge shotgun at the victim from relatively close range. Miraculously the victim was unharmed. The accused was 87 years’ old when he offended and 89 at the time of sentence. He pleaded guilty and had no prior convictions. He was sentenced to 4 years’ imprisonment for the offence of reckless endangerment of life.
[45][2019] VSC 30.
Next, the applicant referred to DPP v Le.[46] In that case a man who was inside his house fired at his front door, and through his front window, at a number of police who, under cover of darkness, were conducting an armed forced entry. The prosecution did not establish that the man either knew or suspected that the intruders were police. Nevertheless, the man’s offending was aggravated by virtue of him having fired in defence of his drug manufacturing enterprise, which was conducted at his premises. He pleaded guilty to numerous charges of reckless endangerment of life; each charge was made referable to an individual police officer endangered. He was sentenced to 3 years’ imprisonment on each charge of endangerment. He had a limited prior criminal history. On appeal this Court described the endangerment sentences as ‘lenient’.[47]
[46][2019] VSCA 258.
[47]Ibid [67] (Maxwell P, Niall and T Forrest JJA).
The only case of reckless endangerment of persons, as distinct from life, upon which the applicant relied was Cooper v The Queen.[48] In Cooper, the accused suffered a blow from a hammer wielded by a man who lived near the accused. This man had entered the accused’s front yard. Later, the accused armed himself with a rifle and entered the man’s property. The man challenged the accused to shoot him and laughed at the accused. The accused discharged the rifle at the man’s driveway. The fired bullet ricocheted off the concrete and lodged in a wooden gate at the end of the driveway. A fragment of the bullet passed through this gate. A fragment of concrete struck the man in the leg. The accused had an extensive criminal history. The accused was sentenced to 3 years’ imprisonment on the endangerment charge. This Court described that sentence as ‘stern’.[49]
[48][2020] VSCA 288 (‘Cooper’).
[49]Ibid [68] (Kyrou and Osborn JJA).
The applicant submitted that in this case, when it is recalled that the applicant fired at the ‘For Sale’ sign out of fear and in, albeit excessive, self-defence, a sentence of 2 years’ imprisonment exhibited inconsistency with the sentences imposed in the cases discussed above.
The applicant submitted the primary judge was wrong to have doubted the level of the applicant’s remorse on account of the CCO assessor’s opinion. He submitted he had consistently acknowledged his wrong-doing and had offered an early plea. His prior convictions were bound up with his drug habit, a habit which had reared its head in 2014 when the applicant was made redundant from his employment. He was capable of holding down employment, he submitted, and gaps in the chronology of his prior criminal history showed that he was capable of staying out of trouble.
The applicant provided the Court with updated evidence that related to the applicant’s situation post sentence. He tendered updated references and informed the Court that he had completed courses while in custody and was working five days a week. He had undertaken education and was willing to retrain. The applicant submitted that the updated material showed that he was determined to get his life back on track and that he had strong family support.
The Court was provided with the Judge Gwynn reasons in respect of the sentence imposed by her Honour in the County Court in May 2020. Judge Gwynn sentenced the applicant to a gaol term of 18 months’ imprisonment (with 451 days reckoned as having already been served) combined with a CCO of 12 months’ duration. This order included conditions relating to drug treatment as well as a work component. As noted above, Judge Gwynn had sentenced the applicant for offences of attempted armed robbery, recklessly cause injury, trafficking in methylamphetamine and possession of cannabis.
The attempted armed robbery and recklessly cause injury charges dealt with by Judge Gwynn related to an attempted robbery and assault of a courier who was tasked with covertly transporting cash from metropolitan businesses. The applicant assisted in the attempted robbery by striking the courier numerous times with a baton. The courier escaped. The drug charges emanated from a search of the applicant’s residence.
The applicant emphasised that before Judge Gwynn the prosecution had not opposed the applicant being assessed for a CCO. The applicant submitted the offending dealt with by Judge Gwynn was of a very different kind from the present offending, that his role in the attempted armed robbery was that of a ‘reluctant’ or ‘lesser’ player in comparison to his co-accused, and that he had originally thought that the courier-victim was complicit in the plan to take the money. He had successfully completed the Judge Gwynn CCO and thus he submitted that his prospects of rehabilitation could be described as ‘guarded’ rather than ‘poor’.

The applicant submitted that he ought receive a lesser sentence than had been imposed at first instance, that the head term should be measured in ‘months’ from the date of the hearing of his application for leave to appeal, and that he ought be made immediately eligible for parole.
In response, the respondent submitted that the use of a firearm was a significant factor when it came to an assessment of the objective seriousness of the endangerment offence. The risk was ‘painfully obvious’ that the applicant might have missed the sign and struck the victim. There was also the risk of ricochet and ‘secondary strike’.
The respondent disputed that the applicant’s firing of the rifle was an act of ‘excessive self-defence’. The respondent submitted that, to the contrary, the applicant had wished to confront the two men. He had exited the safety of his home and the other two men had retreated some distance away. One of the women from the Sunbury home was already on the phone to 000. The sensible thing to have done was to remain inside until assistance arrived.
The respondent also emphasised the applicant’s ‘relatively lengthy criminal prior history’, which included relevant offending in respect of weapons, although not firearms. There were prior matters ‘of violence’. The applicant had, in the past, been ordered to perform CCOs, some of which he had contravened. The respondent submitted that it was a ‘fine distinction’ concerning whether the applicant’s prospects of rehabilitation could be described as ‘guarded’ rather than ‘poor’. The respondent emphasised the CCO assessor’s opinion that the applicant presented as a ‘high risk’ of reoffending.
The respondent submitted that the sentence imposed sat ‘very comfortably’ when compared to the other sentencing cases upon which the applicant had relied.
The respondent ultimately submitted that there was ‘no reasonable prospect’ that this Court would reduce the total effective sentence notwithstanding the conceded error.

Consideration

The applicant is a mature man with not insignificant prior convictions. Some of his prior matters have relevance to the present sentencing exercise. Apart from prior drug and dishonesty matters, the applicant does in his past have a smattering of weapons and violence matters. There is, for instance, the offending dealt with in May 2020 by Judge Gwynn. The applicant was sentenced on 23 February 2018 at the Broadmeadows Magistrates’ Court, as part of an aggregate term of imprisonment, for the offence of possession of a controlled weapon without an excuse. On 12 December 2017, again as part of an aggregate term of imprisonment, the applicant was sentenced for the offence of assault with a weapon. At Broadmeadows on 26 October 2007, the applicant was fined for possessing a controlled weapon without an excuse. At Broadmeadows on 9 April 1999, the applicant was sentenced to a community based order for the offence of intentionally causing injury. He was fined at Broadmeadows on 13 May 1997 for ‘intentionally or recklessly’ causing injury and assault by kicking. As indicated above, the applicant has contravened CCOs on numerous occasions.
Where no issue was taken with the CCO assessor’s opinion that the applicant presented as a ‘high risk’ of re-offending, it perhaps matters little whether the applicant’s prospects of rehabilitation are described as ‘guarded’ rather than ‘poor’. If the applicant is able to stop taking drugs and maintain steady employment, it seems that he does have the capacity to remain offence-free. It is certainly encouraging that the applicant was able successfully to complete the recent CCO imposed upon him by Judge Gwynn.
When it comes to remorse, we consider that the applicant, as he stated to the CCO assessor, knew that what he did was ‘wrong’. He knew that he ‘shouldn’t have had a gun’. Indeed, the psychological report tendered on the plea discloses that the applicant ‘felt angry with himself for discharging the firearm and for having firearms in his possession’. The applicant told the psychologist:
These two guys came to the front of the house and they smashed our windows and they were threatening us and calling us drug dealers. Yes, I fired at a ‘For Sale’ sign but it was never my intention to fire at either of them. I fired the shots to get them to leave us alone. We’d been in the house feeling petrified and wondering what was going on. When these guys smashed the front windows a shard of glass fell onto the bedhead where the guy… [name supplied]…who I was caring for was sleeping. Even now I have no idea who these two males were—like I didn’t know them.
We consider that the applicant possesses a level of insight into the wrongfulness of his actions. To the extent that the applicant may have hoped that he taught the intruders a lesson, we agree that this is a worrying sentiment. The applicant’s response to the threat that he faced was a very dangerous overreaction, and general deterrence must loom large in consequence. As was noted in Cooper:
[T]he courts are faced with a disturbing number of offences involving the discharge of firearms and the need to condemn such offending in the strongest possible terms on behalf of the community.[50]
[50][2020] VSCA 288, [72] (Kyrou and Osborn JJA).
The offences to which the applicant pleaded guilty are serious. The maximum penalty for the prohibited person possess a firearm is 10 years’ imprisonment. Here, the applicant’s guilt in respect of that offence consisted in his possession of two firearms. The sentence the applicant received for this offence — 18 months’ imprisonment — we consider to be very moderate notwithstanding that there was no suggestion in this case that these firearms were possessed for a criminal purpose.[51] It is also concerning that the applicant possessed a silencer as a prohibited person. The applicant received an individual sentence of imprisonment for one year on the silencer possession charge; the applicable maximum for that offence is 8 years’ imprisonment.
[51]Berichon v The Queen; Houssein v The Queen (2013) 40 VR 490, 496 [26] (Redlich JA); [2013] VSCA 319.
And yet, as the primary judge acknowledged, the most serious aspect of the applicant’s offending — his commission of the conduct endangering persons offence — carried the lowest maximum penalty — 5 years’ imprisonment.
This firing of a weapon in the general direction of an intruder so as to scare the intruders away is entirely unacceptable. As the respondent submitted, there was an alternative means by which the applicant could have sought protection. The CCTV footage reveals that the closed front security door to the dwelling at the Sunbury home sufficed to repel the intruders despite their repeated efforts at entry. And, as the applicant accepted, the police had been called.
Nevertheless, we accept that the events of the night of 12 September 2022 must have been quite frightening for the occupants of the Sunbury home. This legitimate fear bears upon the applicant’s moral culpability. Perhaps the level of fear can be measured in this case by reference to the fact that — on the objective facts — it seems unlikely, if not inconceivable, that the calling of 000 might have escaped the applicant’s attention. And yet he fired nevertheless. The risk of detection seems obvious. After all, everything was caught on CCTV.
Having regard to all the circumstances of this case, including the relatively limited assistance that may be derived from the sentences imposed in the other sentencing cases to which the Court was taken, we are persuaded that there should be a very modest reduction to the base sentence imposed on the endangerment charge. By no means could it be said that the 2 years’ imprisonment imposed on that charge was manifestly excessive; indeed no such suggestion was made. But the sentencing discretion in this case has been re-opened. A substantial term of imprisonment is warranted. In view of the applicable maximum (5 years), the applicant’s early plea of guilty, which had an enhanced utilitarian benefit by reason of the pandemic and this Court’s decision in Worboyes v The Queen,[52] his insight and level of remorse and, most importantly, the fear instilled in the applicant by the two intruders, we would re-sentence the applicant to a lesser sentence.
[52](2021) 96 MVR 344; [2021] VSCA 169.
We would, therefore, grant leave to appeal, treat the appeal as instituted and heard instanter, and allow the appeal. In substitution for the sentences imposed in the County Court we would, in the circumstances, impose a sentence of 21 months’ imprisonment on Charge 1. We would otherwise maintain the individual sentences imposed on all of the other charges. We would maintain the levels of cumulation ordered in respect of those other sentences save for the cumulation on Charge 3, which we would set at 2 months.
We would therefore convict the applicant and order that he be sentenced as follows:
(a)Charge 1 — 21 months’ imprisonment;
(b)Charge 2 — 18 months’ imprisonment;
(c)Charge 3 — 12 months’ imprisonment;
(d)Charge 4 — 3 months’ imprisonment.
We would direct that the sentence on Charge 1 form the base sentence and that 4 months of the sentence imposed on Charge 2, and 2 months of the sentence imposed on Charge 3 be served cumulatively upon each other and upon the sentence imposed on Charge 1. This produces a total effective head term of 27 months’ imprisonment. We would direct that the applicant serve a minimum period of 18 months before becoming eligible for parole. We would otherwise confirm the sentences imposed in the County Court on Summary Charges 6 and 11 and all other ancillary orders imposed in the County Court.
Pursuant to section 6AAA of the Sentencing Act 1991, we record that, but for the pleas of guilty, we would have imposed a total effective sentence of 3 years and 4 months’ imprisonment, with a non-parole period of 2 years and 3 months.

[2024] VSCA 13

27 February 2024