R v Kane [2011] VSC 19

3 On 15 June 2009, you were arrested and charged with being an accessory after the fact to murder and on 20 July 2009 you were charged with murder, together with Judith Moran, Michael Farrugia and your partner Geoffrey Armour.

4 On 22 January 2010, I granted bail to you on various terms and conditions, and sometime after that in February 2010 you were released from custody and you have been on bail since including since the hearing of your plea.

5 Shortly before midday on Monday, 15 June 2009, Desmond Moran was shot and killed in the Ascot Pasta and Deli Café at 191 Union Road Ascot Vale. As I have just said, that shooting was carried out by Geoffrey Leslie Armour. The prosecution alleged that this shooting was done pursuant to an agreement between Armour and Judith Moran. Mrs Moran has been arraigned and has pleaded not guilty and her trial is underway as at the date on which I am imposing sentence on you.

6 As I understand from the manner in which the case against you is put on behalf of the prosecution, at the time that Desmond Moran was shot by Geoffrey Armour, with Michael Farrugia present and Judith Moran waiting nearby in a motor vehicle, you were at Mrs Moran's premises at 10 Ormond Road Moonee Ponds. After the killing had occurred, it is alleged that Armour, Judith Moran and Michael Farrugia returned to those premises and, according to Farrugia, Armour told him that he did not wish to tell you what had occurred. However, clearly you were told and the conduct which largely comprises this offence is that in order to assist Armour to escape from the situation and hopefully to escape detection, you assisted him by packing clothes for him in a bag, including the cap that Armour was wearing at the time, following which Armour departed and was later arrested on 16 June 2009 at Portland in Western Victoria. Mr Dane QC, appearing on your behalf, described your conduct as spontaneous and "obviously irrational" as a response to being informed as to what had occurred. That submission does not seem to be the subject of any dispute.

7 Consequently, it is urged on your behalf that your offending in this matter is at the lower end of the scale, consistent with sentences imposed in similar cases where the sentence of imprisonment was either fully or partly suspended.[1]

8 The circumstances of your offending do not involve the concealment or disposal of evidence and obviously no actions on your part in any way resembling those of the more serious versions of this offence such as the mutilation of a body or the harbouring of an offender.

9 As I indicated, you pleaded guilty to this offence only a short time ago on 20 January 2011. However, for the vast bulk of the period since your apprehension you stood charged with murder. On 22 January 2010, in the course of releasing you on bail, I expressed the opinion then that the case against you in relation to the charge of murder was not strong "by any means". As I noted at the time, there was no direct evidence against you on which such a charge could be maintained. Therefore, in my opinion, although your plea of guilty is only recent, it can be regarded as a plea made at the first practicable opportunity and bearing in mind other relevant factors, it seems to me that it is indicative of an element of remorse and of willingness to take responsibility for what occurred to the extent that you were involved in it.

10 You have a number of previous convictions spanning a period between January 1983 and September 2007. Many of those convictions are for offences of dishonesty, and it appears that on two occasions in 1995 you were sentenced to imprisonment for offences of theft which was actually required to be served. Your last offence in Victoria was in 1996 and according to the record which you do not dispute, you had one further conviction for theft in September 2007 in Perth for which a fine of $200 was imposed which I assume is a measure of its lack of seriousness. Your prior convictions are not insignificant, but it is fair to describe them as being in the main occurring a significant period of time ago and at a time when your personal circumstances, I assume, were somewhat different from the way they are now.

11 Your personal circumstances were relevant to my determination of your application for bail in January 2010[2]. You were born in January 1964 and are therefore now 47 years of age. As I observed then, most of your life was spent in Melbourne although in more recent times you had been living in Western Australia. Your two sons are, I assume, now aged 11 and 19 years, and I am informed by Mr Dane that the elder son is studying accounting at Murdoch University in Western Australia.

12 I heard evidence during the course of your bail application from a Child Care Worker and trained Mothercraft Nurse who had come to know your youngest son over a number of years through your son's friendship with her daughter. You apparently have a close relationship with your children, and their circumstances have suffered as was argued then and is put again now, due to your incarceration between June 2009 and February 2010.

13 During your time at the Dame Phyllis Frost Centre you came into contact with a Senior Support Worker, Laurel Gore. Ms Gore has since written a letter on your behalf indicating that ever since your release on bail in February 2010 you have been receiving medical care for issues of anxiety and depression.

14 Those issues are no doubt connected with your own circumstances and also the fact that the person with whom you have been in a long term relationship, Geoffrey Armour, is likely to be in custody for a substantial period as a result of his plea of guilty to murder. According to the letter of Ms Gore, there is also particular hardship for Vadym in the fact of Geoffrey Armour's ongoing incarceration and as a result of your time on remand. Vadym is described as missing his father, Armour, "terribly", and Ms Gore notes that he has had difficulty coping with even short periods of separation from you, his mother.

15 Although no report was provided, I accept what Mr Dane has told me that in recent times you have been seeking the assistance of a medical general practitioner and that anti-depressant medication has been prescribed for you.

16 The murder of Desmond Moran was obviously a very serious offence. It must have been apparent to you upon being informed as to what had occurred that a very serious offence had been committed and yet you were willing to assist Geoffrey Armour in such way as you could to avoid detection. Part of that involved facilitating, to some degree, his decision to leave Melbourne and go to Portland. However, for reasons that I have already outlined, I do not regard this as a more serious example of the crime which has been charged against you and I suspect that there is a prospect of deterrence in your commitment to your children and your understanding that with the criminal record you have, coupled with this offence, any further offending by you will likely result in significant punishment.

17 In this case the Prosecutor has submitted that a sentence of imprisonment which is suspended save the for the time you have already served by way of pre-sentence detention is well within the range of options.

18 On the count of being an accessory after the fact to murder you are sentenced to be imprisoned for a period of two years. I will suspend all but seven months and 17 days of that sentence and I suspend it for a period of two years. I express that it is my intention that that period is intended to represent the period of pre-sentence detention. I consider it desirable that that sentence of imprisonment be partly suspended and, pursuant to s 27(1)(A) of the Sentencing Act, that I have considered the need to ensure that the sentence imposed on you adequately demonstrates the denunciation by the Court of the conduct in which you have engaged. In particular, I have considered the nature of the offence and its consequences. I have also considered whether such a sentence would adequately deter you and others from committing similar offences and whether such sentence reflects the gravity of the offence. I am satisfied these considerations are met.

19 I am required to explain to you that if you commit any offence punishable by imprisonment during the next two years, and assuming a court finds you guilty of such an offence, then you may be required to go to prison for the period of this sentence, or some lesser period, or the period of the suspended sentence may be extended. Even if the suspended sentence were extended, you may still be required to serve part of the sentence of two years' imprisonment.

20 Pursuant to s 6AAA of the Sentencing Act 1991, I note that the sentence and the non-parole period that I would have imposed but for your plea of guilty would have been a sentence of two and a half years imprisonment with a minimum period of one and half years before eligibility for release on parole.

21 I declare that the pre-sentence detention is 232 days and direct that that be entered in the records of the Court as being time already served.

22 I have made orders pursuant to s 464ZFB3 of the Crimes Act, being the retention sample for the DNA database, which is not opposed by you.

[1] See R v Alan James Anderson [2010] VSC 485 and DPP v Bahnert [2010] VSC 265.

[2] See In the Matter of an Application for Bail by Suzanne Kane [2010] VSC 8.