| 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…
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- Moran v The King [2024] VSCA 13
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- [2024] VSCA 13
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