R v Goussis [2009] VSC 16

2 The maximum penalty for murder is life imprisonment and for intentionally causing serious injury it is 20 years imprisonment.

3 There was a substantial delay before these matters were heard by this court, due to a number of factors, including the prior murder trial in which you were involved, but more substantially the number of matters with which your then co-accused Carl Williams had been charged, which had to be dealt with by the court.

4 The plea in this matter was not heard until 2 October 2008, at the request of your counsel.

5 The murder was a contract gangland execution, carried out in the most public of places, at a time of day when there were many persons present in the area of the shooting. These crimes were committed for financial gain by you and others, at the request of Carl Williams and allegedly also "A". Whilst I will not use the word allegedly on each occasion that I refer to "A", these findings that I make are for the purpose of sentencing in this case and represent no concluded view of any of the alleged activities of "A".

6 I find that the murder and intentional causing of serious injury occurred in the following circumstances. A few weeks prior to 31 March 2004, Keith Faure was contacted by Carl Williams and asked to perform a murder, being the killing of Lewis Moran.

7 The background to that murder was that there had been, for some time, a gangland "war" in Melbourne in which the participants had been the Williams and the Moran families and their associates. Carl Williams had already contracted the murder of Jason Moran and his friend Pasquale Barbaro, who were murdered whilst sitting in their vehicle while collecting children from an 'Ozkick' clinic being conducted in Essendon. That had also been a particularly brutal murder in very public circumstances, once again involving innocent people and terrifying the citizens of Melbourne. Mark Moran, the sibling of Jason Moran, also had been previously murdered in the driveway of his home, allegedly by Carl Williams. Lewis Moran was the father of two of those men, one by birth and the other by marriage.

8 The agreement was made shortly before the murder of Andrew Venamin, a close associate of Carl Williams, but carried out on the day of his funeral. The evidence being that the murder which was initially planned for an unknown purpose, other than a continuation of the gangland war, was used ultimately as a statement of defiance by Williams to those involved with Lewis Moran. Moran was regarded as being part of the Carlton crew, as was Mick Gatto, who had shot and killed Andrew Venamin. Gatto was subsequently acquitted of a charge of murder in relation to the killing of Venamin.

9 It was agreed that Williams and "A" would pay the sum of $150,000 for the murder of Lewis Moran. Some days after the murder you and Keith Faure collected the payment and received only $140,000 a shortfall of $10,000, which it was determined could be resolved later. That shortfall was never paid.

10 It was with this background that the murder was committed.

11 The murder and infliction of really serious injury occurred on 31 March 2004, when you, Keith Faure and Noel Faure travelled to Melbourne from Geelong, for the purpose of committing the murder. You had with you three firearms and two balaclavas, you had travelled in two vehicles and it was arranged that you would be the shooter of Moran, Noel Faure would stand at the entrance to the Brunswick Club to cover your back and protect you, and Keith Faure would be the driver of the getaway vehicle.

12 You had previously done surveillance upon the Brunswick Club with Keith Faure, as well as alone, and had ascertained that Lewis Moran had a habit of standing in a particular position in the club.

13 After making arrangements to meet at a hotel in the Brunswick area, you and the Faure brothers then checked that Moran was in the Brunswick Club, which you did by looking through the large, clear windows of the club. You then travelled further away from the club parking your vehicle off Melville Road. The three of you then returned back to the rear of the club, where the car was parked in a laneway with Keith Faure waiting in that laneway area with the vehicle.

14 You and Noel Faure - wearing coats concealing your weapons, which were two pistols and a longarm - walked around to the front of the club, you had balaclavas rolled up and being worn as beanies as you walked around and up Sydney Road in Brunswick, and when you got near to the club, you pulled the balaclavas down to cover your faces. At the entrance you ran ahead of Noel Faure, who stood in the doorway. You bounded up the stairs of the club at a fast pace carrying the shotgun in front of you which was pointed in the direction of Lewis Moran, you ran in the direction of where Lewis Moran stood at the bar. He habitually occupied a position that allowed him to see anyone coming into the premises of the club and also ensured that he had his back to a wall. The manner in which you approached the club ensured that neither of you were visible to anyone in the club until you appeared in the doorway. Moran was clearly concerned something of this nature may have occurred. He had in fact been warned by the police on a number of occasions that his life was at risk in this gangland war, but chose to live his life in the manner that he did.

15 Upon sighting you running into the premises, Moran turned and ran around the corner against which he had been leaning, down a corridor and around the back area of the club, past the gaming machines. You caught up with him as he left the gaming machine area. As he was leaving the gaming area and literally running for his life, he ran into Sandra Sugars the gaming manager at the premises at that time, she grabbed hold of him to steady herself and then you appeared holding a shotgun. You swapped the shotgun for a handgun as the shotgun had jammed, and then, leaning down, as Moran had slipped towards the ground area, you put two bullets into his head at very close range. Sandra Sugars in the interim had seen you and was fleeing the area as you were firing.

16 At a similar time, Bert Wrout had backed away from where he was standing with his friend Lewis Moran, and was backing in the direction of where Noel Faure stood in the doorway of the club, Faure had a gun out and pointed into the club. As Wrout came stepping backwards to the area where Faure was located he started to turn and at that stage he was shot in the arm and chest area. There were a number of shots fired at this time, most of which missed Wrout, one even ending up in the ceiling of the premises, others appeared to be aimed in the direction of Wrout, but missing him. There were at least four shots fired from the handgun of Noel Faure, and more likely five. How someone else was not hit by these shots is nothing short of miraculous.

17 You then reappeared from the rear of the premises coming around from the opposite side to where you had run into the club and joined Noel Faure and you left the club, went around the back to the laneway where Keith Faure was waiting with the vehicle and the three of you left in the car. You were driven back to your car and, taking the guns with you, drove back to Geelong in two separate cars meeting up at your premises before you disposed of the guns.

18 Lewis Moran was dead and Bert Wrout was very severely injured and those injuries still have a significant impact upon him to this day. Those injuries included, the bullet smashing through the arm and travelling in pieces into his body, involving many operations related to the bullet damage to his liver, kidney, the removal of his spleen, the bullet travelled into the diaphragm and through his lung, he was on life support for some time, he was in a coma, and remained in intensive care until the 24 April, and thereafter had many months in rehabilitation. There are ongoing problems with his health and he is best described as being "lucky to be alive"

19 The shooting of these men was captured on CCTV at the Brunswick Club and make horrific viewing. The fear and shock of the other patrons is obvious. The terror of Ms Sugars patently clear. This was a community club, there were numerous people there, either playing the gaming machines, or having a drink with friends, they were there to meet friends, to have a game of pool or just a coffee, they were of all ages. There were people walking past, young girls on their way to dancing classes, grandmothers pushing prams, ordinary citizens of this community going to and from work, going about their everyday business. Your actions, apart from killing Lewis Moran and very severely wounding Bert Wrout, also shattered the confidence and instinctive belief in their own safety for many members of the community.

20 This was a cold calculated execution of a man for financial gain which places the murder and the intentionally inflicting of serious injury at the highest level of offences of their type. This does not mean that they are worst case examples, but they are a case of murder and a case of intentionally causing serious injury that are very much at the higher end of the scale for those charges. This community, rightly, expects that persons who are prepared to kill other people for money, will be dealt with severely. Your role was that of a paid assassin, you had no grievance with either of these men, you didn't even know them - you were just a gun for hire. You put so many other lives at risk, running through a relatively crowded social and gaming club where a number of people were located, carrying with you two loaded firearms, and having another person Noel Faure standing ready to protect you, as was demonstrated by his willingness to shoot anyone that may be considered a risk to either of you, as he did on this occasion.

21 You contested the trial, which is your right, but equally it means that there will be no discount for a plea of guilty, nor is there any behaviour of yours that demonstrates any indication of remorse for your involvement.

22 You have a criminal history of which the most relevant matters are one count of trafficking in heroin and one count of attempted murder for which you were sentenced in the Supreme Court by Justice Hampel on 28 August 1989. You were sentenced to three-and-a-half years imprisonment on the count of attempted murder, and 18 months imprisonment on the count of trafficking, of which six months was cumulative, making a sentence of four years with an overall minimum term of 18 months. You were aged 20 at the time of the commission of these offences, you pleaded guilty, and the Judge determined that you had excellent prospects of rehabilitation. It is clear that however good your prospects of rehabilitation were at the time, that you did not take the opportunity that was extended to you.

23 On 24 March 2004 at Melbourne Magistrates' Court you were convicted of two charges of possessing an unregistered handgun without a licence, one charge of possessing an unregistered handgun, one charge of carrying an unregistered handgun without a licence, three charges of failing to store ammunition correctly, one charge of possessing property suspected of being the proceeds of crime, four charges of possessing a prohibited weapon without an exemption of approval, two charges of possessing a controlled weapon without excuse and one charge of cultivating a narcotic plant. You were sentenced on the first seven charges to an aggregate of six months imprisonment, to be served by way of intensive correction order, imprisoned for one month on the eighth charge and on the remaining charges in relation to firearms sentenced to an aggregate term of six months imprisonment, both of those terms of imprisonment were wholly suspended for a period of 24 months. You were fined in respect of the cannabis.

24 You committed these offences for which you are being sentenced six days after being placed on a suspended term of imprisonment and an intensive correction order in relation to unlawful firearm offences.

25 On 3 May 2006 you were sentenced for the murder of Lewis Caine, another person associated with the gangland war in Melbourne, that murder occurring on 8 May 2004, some eight days after the murder of Lewis Moran. That also involved the use of a firearm, and you indeed were the shooter. The person who was with you on that occasion was again Keith Faure. You both ran a trial based upon self defence which was rejected by the jury. This is not a prior conviction, as such, but it is of great relevance in determining the sentence to be imposed upon you.

26 When sentencing you for that murder his Honour Justice Teague stated:

The prosecution case was not, despite some indications the other way, that this was a premeditated execution. I must sentence you on the basis that the murder was not premeditated. The murder cannot therefore be seen as warranting a sentence towards the top of the range. On the other hand, it cannot be seen as being the bottom of the range. This is a far cry from a spontaneous domestic stabbing. This was a shooting, with a gun that should not have been on hand, in the context of other shootings and camps and divided loyalties, and by a man whose record shows no great respect for the law.

27 In this case there are three victim impact reports, being one from Sandra Sugars, who was the gaming manager of the Brunswick Club, one from Judith Moran the partner of Lewis Moran and also one from the Brunswick Club. The report from the club talks about the impact this has had on the staff and the patrons of the club, in terms of their fears and the insecurity that they feel, as well as the financial loss to the club. Judith Moran talks about the loss of her partner, the loss of the financial support that he provided, not only to her, but to his grandchildren, and her feelings of loss of a loved one under such brutal circumstances coming on top of the loss of both of her children in a similar manner. Sandra Sugars refers to the emotional rollercoaster on which she feels she has been riding since this shooting occurred. She has been unable to return to the position that she held, and receives constant assistance to try to get through everyday tasks, and remove the horror of what occurred from her mind.

28 I accept what is contained in those reports, and they are but a brief glimpse of the horror that so many people now have to deal with as a consequence of your actions on that day.

29 You have been held in custody, firstly, on remand and then undergoing sentence, in circumstances that are considered harsh. For the initial period of your remand you were held in 23 hour lockdown, which meant that you were allowed out of your cell for only one hour a day, that was changed to six hours a day out of cell time. You are currently in acacia unit and share with only three other prisoners. You still have only six hours out of cell time, and your movements within the prison are severely curtailed. It is not possible to assess how long you are likely to remain in that environment, but I act upon the basis that whilst the whole of your sentence will not be served in that particular limited way, you will serve a portion of your sentence in this manner, and that the conditions under which you are serving your sentence are such that it is appropriate for me to take those matters into account in mitigation of your penalty.

30 I equally have to take into account your personal circumstances in assessing the appropriate penalty to be imposed for these crimes.

31 You are now aged 41, and were 36 years of age at the time of the murder. Your parents were Greek, but after the second world war fled as refugees to Uzbekistan and you were born in Tashkent in Uzbekistan, you have an older sister Elizabeth, married with three children, an older brother Thomas, married with three children, and another older sister Olga, who gave evidence in the trial, who is also married with three children. You are the youngest of the siblings. None of your parents or siblings have been in trouble with the police and have all worked very hard to build successful lives.

32 You spoke Greek at home and Russian at school. Your family migrated to Australia when you were aged 8 and you attended Fairfield Primary School and Thornbury High School, you were described as performing well at school academically when younger and also excelled in the sporting area.

33 You ultimately became bored with school and being obsessed with cars left school at the beginning of Year 9 and commenced an apprenticeship as a motor mechanic, completing two years with a firm in Fairfield, before you moved onto a sheet metal working apprenticeship. You have been involved in boxing from a young age and it was in this sport, and a variation of it later in your life, kickboxing, that you excelled, and you had an ambition to represent Australia at the Seoul Olympics. After you started to become successful in boxing you left your apprenticeship and in 1987 ended up working as a crowd controller at a nightclub and it was in this milieu that you met people with whom you became involved in selling drugs. It was submitted that the nightclub scene was accepting of drug taking and it was a part of the culture. Whatever may be the case, it was from that time on that your life began to spiral downwards, culminating in the offending for which you were sentenced in 1989 by Justice Hampel. It was during this sentence that you actually met Lewis Caine, whom you murdered at a later stage. You were released from prison in 1990, and you resumed boxing and worked as a driver. You then entered into partnership in a service station between 1992 and 1996 and worked hard, eventually selling the station for a profit. You then went to Greece for three months, and upon your return worked as a fitness consultant for some years. In 1998 you met Keith Faure as you were again resuming your boxing career, you were, however, diagnosed with a problem relating to a degenerative disc and advised to cease boxing. Faure had been assisting you in your training at that time.

34 You had some issues with depression and in 2001 your father died unexpectedly from a massive stroke on your birthday, exacerbating your issues with depression, and it was around that time you met Nick Radev, another person who was murdered during the gangland wars. He claimed to have a similar background to you in that he lived in a communist country as a refugee, and a friendship developed. Radev was in fact a well known drug dealer and you became involved with, and through him, in the use of amphetamines and cocaine. After some problems with Radev, relating to his promises to set you up in gymnasiums, you had a falling out with him in early 2003, and your drug use, which had become obvious by that point, spiralled out of control. On one occasion, in March of 2003, as a result of the ingestion of drugs, you were admitted to hospital due to an overdose of tablets ,in a form of attempted suicide. You moved to Geelong shortly after this incident and Keith Faure assisted you in regaining your health, and you formed a very close friendship with both him and his wife. This continued until the time of this offending, and beyond, right up till the time that Keith Faure determined that he would assist the police, make the statements and give evidence implicating you and others in this murder. It is clear that the relationship with Keith Faure and his wife was a very strong one up until that time, and you referred to them as auntie and uncle. You spent much of your time on remand sharing a cell with Keith Faure. Some of the conversations that occurred between you and Keith Faure were played to the jury during your trial.

35 The Crown have submitted that the appropriate sentence that should be imposed in this matter is a sentence of life imprisonment and that no minimum term should be set. Your counsel agreed that life imprisonment as a head sentence was clearly within the range, but strongly submitted that a minimum term should be imposed. Mr Shirrefs stated at page 3 of the plea.

It is a murder for which it is conceded that in terms of a head sentence a life term is clearly within the range and indeed it was a life term that was fixed for Keith Faure by his Honour Justice Teague, in respect of this particularly murder, and I'll come to that in due course, but ultimately one in which, in respect of Mr. Goussis, it is submitted, that the fixing of an appropriate non parole period is called for the reasons I will come to in due course.

36 The issue of the fixing or refusing to fix of non parole periods is dealt with by s 11 of the Sentencing Act, which reads:

S 11 Fixing of non-parole period by sentencing court

(1) If a court sentences an offender to be imprisoned in respect of an offence for -

(a) the term of his or her natural life; or

(b) a term of 2 years of more -

the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.

37 It is clear that the parliament intended that non parole should be imposed in all cases unless particular circumstances exist that make the fixing of a non parole period inappropriate. The factors that a court need examine in respect of these issues is dealt with in R v Lowe[1] and the age of the offender at the time of sentencing is clearly one of those factors. Indeed the court stated at page 486 of the judgment:

The younger the offender, the more severe a sentence of life imprisonment will in general be, for the obvious reason that in the ordinary course of events the length of the term of imprisonment to be served depends upon the age of the offender. Accordingly it must be and always has been recognised that in the determination of whether a sentence of life imprisonment is appropriate the offender's age is a relevant and indeed important consideration. It has similarly been recognised that in the determination of whether it is inappropriate to fix a non parole period for a person sentenced to life imprisonment the offender's age is relevant and important.

38 Equally in this case you have two co-offenders, being Keith Faure and Noel Faure, both of whom have pleaded guilty to this murder. Noel Faure has yet to be dealt with but Keith Faure was sentenced by Justice Teague to a term of life imprisonment for this murder, and a sentence of 24 years for the murder of Lewis Caine. His Honour imposed an overall minimum term of 19 years imprisonment on Keith Faure. When examining the issue of parity, as your counsel urged me to, it is clear that there are two major distinctions that exist between you and Keith Faure, the first being that he pleaded guilty to the murder of Lewis Moran, and secondly that he made statements to the police which implicated both you and ultimately his brother, and undertook to give evidence against you. He honoured that undertaking in your trial. His brother Noel Faure has indicted that he also intends to plead guilty to this offence, and that matter will be listed shortly.

39 Equally it must be remembered that the role of Keith Faure, in respect of this murder was, that it was he who procured your services on behalf of Williams and "A", and it was he who decided whether or not the three of you would undertake the murder. Keith Faure was clearly entitled to, and did receive, a very substantial discount for his plea of guilty and more particularly his cooperation with police and prosecuting authorities. It is not possible to maintain parity due to those major distinctions, but I have kept in mind the sentence imposed upon Keith Faure, when determining the issue of whether or not to impose a minimum term and if so, what that term would be.

40 The issues of both general and specific deterrence are relevant in respect of the offending that occurred on this occasion.

41 Taking into account all of the matters to which I have referred including the matters personal to you, your co-offenders and the sentence imposed, the circumstances of the offending and the need to impose a just sentence which incorporates both specific and general deterrence, I have determined that it is appropriate to impose a minimum term, albeit a very substantial minimum term.

42 Pursuant to s 14(1) of the Sentencing Act 1991 I am obliged to impose a new minimum term that will supercede the minimum term that you are currently serving. The minimum term that I am imposing today will commence from today. In other words the sentence of imprisonment that you receive today, will commence from this day, and will not be backdated to the day that you were first incarcerated.

43 For the offence of murder you are convicted and sentenced to be imprisoned for life. For the offence of intentionally causing serious injury, you are convicted and sentenced to be imprisoned for a term of 12 years. Both sentences are to be served concurrently with each and concurrently with the sentence imposed by Justice Teague, which you are currently undergoing.

44 I direct that you are to serve a minimum of 30 years from this day before becoming eligible for parole.

[1] [1997] 2 V.R. 465