R v Armour [2011] VSC 376

2 In addition, on 4 April 2011 I heard submissions from both the prosecutor, Mr Rochford SC and your counsel, Mr Tyrell, as to the sentence that I should impose on you for this crime of murder.

3 My description of the murder of Desmond Moran is based on the evidence I have heard in the trial of Judith Moran and much of that, relevant to you, is based on the evidence of Michael Farrugia. Whilst you have suggested, through your counsel, that you do not accept the version of events put forward in the prosecution case against Ms Moran which the jury in that trial clearly accepted, you have put forward no evidence as to the circumstances nor was any analysis conducted on your behalf of the evidence I have heard for the purpose of explaining why relevant aspects of it should not be accepted by me for the purpose of sentencing you.

4 Desmond Moran was the brother of Lewis Moran. He was shot to death by you, pursuant to an agreement you made with Judith Mary-Anne Moran. He was shot just before midday on Monday 15 June 2009 at a café at 191 Union Road, Ascot Vale in front of a number of horrified witnesses who were going about their business in that shopping area. The deceased suffered seven gunshot wounds. Three of the wounds were to the left side of the chest and two of them were to the back of his head causing rapid bleeding and fatal injuries.

5 Whatever else might be said about Desmond Moran, at the time of his death he was utterly defenceless. This killing also occurred in circumstances where neither you nor Judith Moran cared anything for the fate of Desmond Moran or the risk that other people, who were complete strangers to the machinations of the wider Moran family circle, would at least be thoroughly traumatised by what they saw if not at risk of being severely injured by it themselves. Desmond Moran was shot in a café that the evidence suggests he patronised regularly. According to the owner of the business, he was there for lunch almost every day and, on this day, had sat outside. He was an easy and defenceless target.

6 Based on the evidence I have heard, I am satisfied that during May 2009 you and Suzanne Kane commenced to live at the home of Judith Moran at 10 Ormond Road, Ascot Vale. I accept that a business you conducted in Western Australia had failed and that was, at least in part, why you were living at Ms Moran's house.

7 In or about April 2009, Moran borrowed approximately $400,000 on the security of her property. From those proceeds, she purchased vehicles in May 2009, including a new Land Rover Discovery vehicle that was for your use, valued at about $75,000. Although Moran paid for it, the vehicle was registered in the name of a company known as Environmental Concrete Constructions. Once you took delivery of the car it was placed in the garage at Moran's house. I am satisfied that the vehicle was given to you by Judith Moran in the expectation that you would accept, or had accepted, the task of murdering Desmond Moran, and you accepted it on that basis.

8 You had known Michael Farrugia for some time. Farrugia said in his evidence at Judith Moran's trial that you and he met in 2004 at Lakes Entrance. Whatever the background, you went on a fishing trip together in 2009 and in May 2009 you went to his house for dinner with Suzanne Kane.

9 On 19 May 2009, you purchased a Ford Fairlane from a business known as Lemon Motors in Werribee. The introduction to that business was given to you by Farrugia. The Fairlane was an old vehicle and you purchased it for $2,000. That vehicle was purchased by you in the false name of Daniel Tucker. The only reason for the purchase of that car was that it was to be used in the commission of this crime.

10 At around this time you also went clay shooting with Farrugia, and fishing at Portland. The Portland trip must have been some time in late May 2009 because you arrived in the Land Rover that Moran had bought for you.

11 You and Farrugia spent time together on 12 and 13 June 2009. On 13 June 2009 you and Farrugia were shooting on a farm and, according to his evidence, you had with you a bag of guns which included the firearm used to kill Desmond Moran.

12 The next day Farrugia went to Judith Moran's place for dinner. You, Kane and Moran were also present. Farrugia arranged to return the next day, 15 June 2009, and did so partly for the purpose of working on the Ford Fairlane. On that day, after arriving in the vicinity of Moran's house, Farrugia, yourself and Moran drove to a café and had breakfast together. In the course of the drive back to Moran's place, Moran appeared to identify Desmond Moran and said "there's the bastard". You told Farrugia that you were going to be doing some debt collection on behalf of Moran and Farrugia offered to assist you. According to his evidence you told him he could drive the car. By this stage both you and Judith Moran had made a conscious decision that Desmond Moran was to be murdered in a public shopping area frequented by people going about their daily business.

13 The three of you returned to Moran's house and ultimately got into the Ford Fairlane. At the time you got into the vehicle, Moran was in the driver's seat. In that vehicle, fitted with stolen number plates, you all drove to the Union Road shopping area where Desmond Moran was again identified. The Fairlane was driven around behind the shops and you and Moran arranged a collection point from which you would be picked up after you had shot Desmond Moran.

14 You then left the vehicle, walking to Union Road, and as you left the car you put a wig on and then replaced the baseball cap you were wearing. Followed by Farrugia, you walked into the Delicatessen where Desmond Moran was and where he had been for some time. He was, at that stage, paying his bill. In front of terrified witnesses you fired seven shots into his body inflicting, as I noted earlier, injuries to his chest, neck and head. You then ran out of the shop and down the road in the opposite direction from which you had come. Farrugia then ran after you and yelled out to people in the vicinity, "run, he's got a gun". He caught up with you when he went around the corner and into the car park. There was another female walking out of the car park and although Farrugia yelled to her to "run", she stopped straight away.

15 You ran to the Fairlane which was parked in the car park, with Moran still behind the wheel. The engine was running. You and Farrugia got into the car and it drove away. Moran was telling you to keep your heads down. Farrugia said "what the fuck just happened?". You told Farrugia he should have stayed in the car. You were then asked by Moran, "Did you get him?" and you said "Yeah, no worries, I got him" and she replied "Well done" and started patting you to show her approval.

16 As the three of you were driving, Moran said "Start taking your jackets off and put them in the bag". You took off your jacket and put it in the bag and also threw the handgun in the bag that you had used to murder Desmond Moran. You were concerned that Suzanne Kane not know what had just happened.

17 The three of you returned to Moran's house. There was apparently some kind of confrontation between you and Farrugia but later you left that house. At about 4:00pm you spoke to Judith Moran on the phone and during that conversation you expressed concern that "they could be around". I am satisfied that that was a reference by you to the prospect of the police that were investigating the killing being "around" or near Moran's house. You then left Melbourne and drove to Portland where you were arrested the following day. You were interviewed by police but declined to answer questions. You have been in custody since your arrest.

18 During the course of a plea on your behalf, Mr Tyrrell put an account of what occurred on 15 June 2009 which corresponded with what you also told the psychologist Jeffrey Cummins. According to what you told Mr Tyrrell, you had known your accomplice Michael Farrugia since being at school. On the night before the killing of Desmond Moran you are said to have offered to stand over Desmond Moran on behalf of Judith Moran for money you understood was owed to her. You claimed not to know how much money was owed, only that it had something to do with monthly payments. You claimed that you were told by Farrugia that he knew Desmond Moran was always armed and that therefore you and Farrugia should also be armed. You claim that Farrugia then supplied two pistols, one of which was given to you.

19 As to the shooting itself, Mr Tyrrell put on your behalf that when you entered the shop where Desmond Moran was in Union Road you were going to put a demand for money to Moran, but you claim that Moran looked around and saw you at which point you drew your firearm and shot him. You claim to have believed that Moran had recognised you and panicked. Thus, it was being suggested that the shooting of Moran was a spontaneous reaction to the circumstances that arose in the shop. The prosecutor submitted that I should reject that account and should, instead, accept that the evidence demonstrated that what you did was involve yourself in a planned and pre-meditated killing of Desmond Moran.

20 It is sufficient for me to say that I unhesitatingly reject what was put to the Court by Mr Tyrrell. It was not the subject of any evidence from you or anyone else called on your behalf. In addition there was an obvious lack of detail in what Mr Tyrrell put to me. I accept the evidence of Michael Farrugia and I am positively satisfied beyond reasonable doubt that the shooting of Desmond Moran occurred essentially as he described it. It follows that you have carried out the crime of murder in circumstances where you have done it purely for financial gain and where you have been prepared to participate in the planning and completion of the killing at the instigation of Judith Moran. I also reject your suggestion that the firearm used in the killing of Desmond Moran came from Farrugia.

21 A Victim Impact Statement was tendered in evidence during the plea on your behalf from a person who witnessed the killing of Desmond Moran. To the extent that any reminder was needed of the trauma and consequences for people unfortunate enough to witness a killing like this, the victim impact statement does it eloquently. I have taken that victim impact statement into account in the sentence I will impose on you. In my opinion, I am entitled to assume that all witnesses who actually saw what occurred suffered some consequence as a result. The owner of the delicatessen said in his evidence that there were apparently several people who were upset as a result.[1] Indeed, he himself was at the back of the premises when you shot Moran. When he came into the shop area, he saw his wife on the floor and threw himself on her. The trauma for him must have been very dramatic.

22 You have previous convictions in Victoria between 1997 and 2003 for offences such as unlawful assault, theft and possession of drugs. In each case the matters were dealt with in the Magistrates' Court and the penalties imposed in each case did not involve you serving any period of custody. You also have previous convictions in South Australia, Western Australia and Queensland for offences which included assault occasioning actual bodily harm and theft. The remainder were driving offences. Again, no periods of custody were imposed on you. Except to note that two of your previous convictions are for assault, I do not regard these matters as being significant.

23 You are 45 years of age, having been born in Melbourne in 1965. Your education lasted only to year nine when you were 14 years. When you were 12 your parents separated. Your mother is still alive, aged 78 years, and lives in Queensland. You are apparently close to her and regret that your contact with her in what remains of her life will be very limited. Your older sister died when you were a young boy and, not surprisingly, that had a significant effect on you.

24 You have apparently maintained regular employment over your adult life. You had your own business in concreting and that was followed by another business in Western Australia which suffered as a result of the global financial crisis from 2008. I heard evidence from one of your employees, a Mr Cooper, about the demise of your business. It was after that in May 2009 that you returned to Melbourne and stayed at Judith Moran's house in Ormond Road, Ascot Vale, with her and with Suzanne Kane. You apparently were and had been close to Ms Moran.

25 You have been involved in a relationship with Suzanne Kane for more than 10 years. She was also involved in this matter and pleaded guilty to the offence of assisting an offender (accessory after the fact), that being you, after the shooting. She is presently the subject of a suspended sentence. She has two children whom you have apparently treated as though they were yours and with whom you apparently had a close relationship. Your imprisonment has meant that you have lost contact with those children and, I am told, for most of the time you have been in custody you have not been allowed to have any contact with Suzanne Kane or her children. However, during your time in custody, I understand that you have been visited by other family and friends.

26 I note that since you have been in custody you have apparently conducted yourself well, and there are several factors that suggest that your rehabilitation is being advanced. Senior Prison Officer Brendan Smith gave evidence and described activities on your part to assist in the Youth Management Unit at the Metropolitan Remand Centre. You are apparently sent down to the gymnasium at the same time as the young offenders and you help out with various different exercises at the gymnasium. He described you as effective in your guidance to the younger offenders. Another Senior Prison Officer, Michael Teskey, described what you did in February 2010 when you intervened to avoid the suicide of another prisoner who had tried to hang himself. You were the one who alerted prison staff to the incident. Your efforts on that day are to your credit.

27 In the course of the plea on your behalf, your counsel suggested that I should conclude that your moral culpability for this offence was reduced by your psychological state at the time the offence was committed. It was put that at the time you were suffering from reactive depression and anxiety as a consequence of an adjustment disorder caused by the unexpected closure of your business in Perth. In support of that conclusion, evidence was given on your behalf by Forensic Psychologist, Jeffrey Cummins. Mr Cummins had prepared a report based on a consultation with you on 20 February 2011. One of the significant difficulties confronting an acceptance of Mr Cummins' conclusions and evidence is that it depends, at least in part, on acceptance of the version events related to me by Mr Tyrrell from the Bar table. I have already indicated that I do not accept it.

28 In his evidence, Mr Cummins said he spent about one and a half hours with you on 20 February 2011. Based on what he was told by you, he said that as at 15 June 2009, you were on the antidepressant medication Effexor and you were suffering from an adjustment disorder. That adjustment disorder was said to have affected your decision-making ability.

29 In considering the submission made by Mr Tyrrell on your behalf, the law says that I must consider what the expert evidence shows about the nature, extent and effect of any mental impairment or psychological condition experienced by you at the time you committed this offence.[2] The question is whether that evidence establishes on the balance of probabilities that for that reason you are less blameworthy than you would otherwise have been.

30 Examining the material from Mr Cummins on that topic I am left with the following. He said in his report that at the time of committing the offence you were experiencing symptoms of reactive depression and anxiety. That was part of an adjustment disorder following on from your failed business. In his evidence, Mr Cummins agreed that, in part, his assessment was based on the version of events which you gave him to explain why you committed the offence. He said if the facts were different, as I have concluded they are, that would make a significant difference. Nonetheless, in answer to Mr Tyrrell, he said the adjustment disorder would have affected your decision-making ability. How that occurred on 15 June 2009 was not stated in any significant detail. However the difference between what you told Mr Cummins had occurred and what I have concluded occurred may be significant. On the version of events put to me by your counsel, your decision to shoot was spontaneous. On the facts as I have found them, you had planned to shoot Moran for some time and prepared accordingly, in return for a financial benefit. Mr Cummins also said that in general terms such an adjustment disorder would affect the ability of anyone to make calm and rational choices.

31 You told Mr Cummins that you had been taking the drug Effexor for some five to six years, going from 75mg to 150mg until 2010, when you terminated it whilst in custody. Mr Cummins was asked during his evidence before me whether the fact that you were on Effexor at the time of committing this offence would have affected you by making you disinhibited. He said it could have had that effect but the more likely effect was that your emotional tone would have been very limited and you would have considered that your feelings fluctuated minimally. I do not understand Mr Cummins to be suggesting that the effect of that drug would be to reduce your appreciation of the wrongfulness of what you were doing.

32 In answer to a question from me as to whether your psychological state would have contributed to you committing this offence of murder, Mr Cummins said that it would not have done so directly. However he said your state was compromised and was therefore "indirectly" relevant.

33 I do not accept that the psychological condition from which Mr Cummins has suggested you suffered at the time of this offence contributed to you committing the offence in a way that made you less blameworthy.

34 In my view the evidence does not establish any causal connection between your mental state at the time and your offending by:

• impairing your ability to make calm and rational choices,

• reducing your ability to appreciate the wrongfulness of what you did;

35 Indeed, the evidence I accept compels the conclusion that you made a planned, considered and rational decision to commit the offence of murder and your actions support that view.

36 However, I am willing to accept that, as Mr Cummins said, your mental state is such that it will make your time in custody more burdensome. Your depressive condition is predicted to worsen with time and being in custody for a long period will, in all likelihood, cause a deterioration. Given that aspect of Mr Cummins' evidence I take that into account in the sentence that I impose on you.

37 An important sentencing consideration in this case is that this was an appalling murder both in the way it was carried out and the very public manner in which it occurred. The public location for this killing was consciously selected. This was a deliberate and brutal killing for money. The objective seriousness of what you did is very high indeed and those who might be minded to commit such offences must know that if they do, the sentence that will follow will be very substantial.

38 This crime was planned and thoroughly pre-meditated. It was done only for your personal gain by agreement with Judith Moran. I might say at this point that I sentence you on the basis that you murdered Desmond Moran and I make no finding about whether you were also involved in the events of March 2009 when a failed attempt was made to kill him. You deny you were involved in that incident. For the purpose of sentencing you, I ignore that event in all respects.

39 On the other hand, you have pleaded guilty to the crime of murder. Having committed the offence there is not much more that you can do to atone for it than to do that. I do accept that your plea of guilty was, at least in part, a display of remorse for your actions. Your plea has had a substantial effect in reducing the complexity of this matter and hence saving public funds. You do suffer from a depressive condition, which will make your time in custody more burdensome. Your long period in custody will have a significant effect not only on you but on members of your family and your contact with them will be limited. By the time you are eligible for release, based on the evidence I have heard, I suspect you will be unlikely to pose a threat to the community. You are paying a high price for your part in this crime.

40 As I have already said this was a terrible murder and your conduct deserves the highest condemnation. However, you have pleaded guilty and you are not without prospects of rehabilitation. At age 45 years you are going to lose most of the best years of your life. You will be imprisoned for a period of 26 years. I direct that you serve 21 years before being eligible to make an application for release on parole.

41 I declare that your pre-sentence detention is 785 days, not including today, and that that period be reckoned as having been served as part of this sentence. I direct that those declarations and their details be entered into the records of the court.

42 Pursuant to s 6AAA of the Sentencing Act I indicate that had you not pleaded guilty to the count of murder I would have sentenced you to 30 years imprisonment and directed that you serve 25 years before being eligible for parole.

43 I have already made the disposal order sought by the prosecution under s 78 of the Confiscation Act 1997. I will also order that the forensic sample provided by you be retained pursuant to s 464ZF(2) of the Crimes Act.

[1] Transcript of trial (3 February 2011) at 262.

[2] See R v Carroll [2011] VSCA 150 at [19].