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Moran v The King

Moran v The King

Case [2024] VSCA 13 27 February 2024

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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…

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 Moran v The King

Details

AGLC: Moran v The King [2024] VSCA 13
Case: [2024] VSCA 13
Decision Date: 27 February 2024

CaseChat Overview and Summary

The applicant, Peter Moran, appeals against his sentence following his conviction on five charges, including reckless conduct endangering persons, possession of a firearm as a prohibited person, possession of a silencer as a prohibited person, handling stolen goods, and two summary offences. The applicant contends that the sentencing judge breached procedural fairness by relying on sentencing reasons from an earlier case without notifying his legal representatives, and by considering a Community Corrections Order (CCO) report to assess his remorse and risk of reoffending without giving him an opportunity to address these findings. The prosecution conceded that grounds 1(a) and 1(b) were made out, which concerned the use of the earlier sentencing reasons. The Court found that the sentencing judge's use of the earlier reasons was a breach of procedural fairness, as it was material to the exercise of the sentencing discretion and was used in a manner adverse to the applicant's interests. The Court accepted that there was a reasonable prospect of reducing the total effective sentence and that a different sentence should be imposed. The Court granted leave to appeal, treated the appeal as instituted and heard instanter, and allowed the appeal. The Court re-sentenced the applicant to 21 months’ imprisonment for the endangerment offence, 18 months’ imprisonment for possessing a firearm as a prohibited person, 12 months’ imprisonment for possessing a silencer as a prohibited person, and 3 months’ imprisonment for handling stolen goods. The total effective head term was set at 27 months’ imprisonment, with a non-parole period of 18 months. The Court confirmed the sentences imposed in the County Court on the summary offences and all other ancillary orders.

Orders