R v Moran [2011] VSC 375

2 Desmond Moran was the brother of Lewis Moran. He was shot to death by Geoffrey Armour, pursuant to an agreement with you, just before midday on Monday, 15 June 2009. The killing occurred at a café at 191 Union Road, Ascot Vale. Desmond Moran suffered seven gunshot wounds. Three of those 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. Whatever else might be said about Desmond Moran, he was utterly defenceless. This killing also occurred in circumstances where neither you nor Armour cared anything for the fate of Desmond Moran or the risk that other people who were complete strangers to the machinations of your family would at least be thoroughly traumatised by what they saw, if not at risk of being severely injured by it themselves.

3 As I have said, Desmond Moran was shot just before midday on Monday, 15 June 2009 in front of a number of horrified witnesses who were going about their business in that shopping area.

4 The evidence suggested that the relationship between you and Desmond Moran had been hostile for some time. In addition, I am of the view that you expected the killing of Desmond Moran to result in some financial benefit to you, although the exact nature of that benefit is not clear. As part of the Crown case, Mr Brian Murphy gave evidence of conversations he had with you about 18 months after the death of Lewis Moran on 31 March 2004. Essentially, he claimed that you were seeking to locate a large amount of money which had been part of the dealings of Lewis Moran. I did not find Murphy a particularly convincing witness and it may be that, apart from not much more than the hope of a financial benefit, your motivation was also based on your anger toward Desmond Moran and a product of the tension between you.

5 In about April 2009, you arranged a loan on the security of your house in Ormond Road, Ascot Vale, which produced a net sum of about $400,000. You retained $50,000 and the balance was placed in your accountant's trust account. You told your accountant, Mr Cook, that the money was going to be used for a holiday and a new car, but ultimately you purchased three cars. Two of those vehicles were Chrysler convertibles for you and Suzanne Kane and the third vehicle was a Land Rover Discovery valued at about $72,000, which was for Armour. That vehicle was provided to him in consideration of his willingness to kill Desmond Moran.

6 By 11 June 2009, it had been discussed between you and Armour that Desmond Moran would be killed and that Armour would do the killing. On that day there were a series of phone calls between you and Armour. You were trying to locate him. Whether or not you left a message on his phone saying "murder on" as claimed by the Crown I am not sure. Nothing now turns on it for the purpose of sentencing you. I note that you say that the speaker of those words was Suzanne Kane in any event.

7 In May 2009, under a false name and using a false address, Armour purchased a Ford Fairlane from a business called Lemon Motors for the purpose of using in this crime. No other explanation for that purchase has ever been offered.

8 On 12 June 2009, Michael Farrugia went to your house on Ormond Road for the first time with Armour. On 14 June 2009, Farrugia went to your place for dinner which was fish and chips purchased from a shop somewhere between Broadmeadows and Ascot Vale. On that occasion, Farrugia had a look at the Fairlane at Armour's request and agreed to return the next day and do some work on the car. On 15 June 2009, Farrugia returned as requested but did not initially go inside your house. Instead, he parked his car at the 7-Eleven at the end of Waratah Street and, when you and Armour arrived in Armour's Land Rover, he agreed to go out for breakfast with Armour and yourself. On the way back to your house, after eating breakfast at a café in the Kensington area, Desmond Moran was located and you identified him by saying, "there's the bastard" or words to that effect. The three of you returned to your house and Armour asked Farrugia to get the Ford Fairlane going.

9 You drove Armour and Farrugia to Union Road, Ascot Vale in the Ford Fairlane, which was now fitted with false number plates. You drove the vehicle behind the shops. Armour got out, put on a wig, replaced his cap and headed to the shop where Desmond Moran had been eating lunch. He was followed by Farrugia who saw what then occurred. In front of terrified witnesses, while you waited, Armour fired seven shots into Desmond Moran's body inflicting injuries to his chest, neck and head. Armour then ran out of the shop and ran down the road in the opposite direction from which he had come. Farrugia then ran after Armour and yelled out to people in the vicinity, "run, he's got a gun".

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

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

12 The three of you then returned to your house in Ormond Road. There was apparently some kind of confrontation between Armour and Farrugia but later Armour left the house. At about 4:00pm you spoke to Armour on the phone and during that conversation he expressed concern that "they could be around". I am satisfied that that was a reference by him to the prospect of police investigating the killing being around.

13 15 June 2009 was the anniversary of the death of your son Mark. In your evidence before the jury you said you played no part in the killing of Desmond Moran and that on that day you had visited Mark's grave at Fawkner Cemetery. Cleary the jury rejected your evidence on that issue.

14 Having returned to your home with Armour and Farrugia after the shooting, you then got into your Holden Commodore and drove back to the scene of the shooting, having been rung by the florist, Helen Robertson, who was, of course, unaware of your involvement in the crime. Your return to the scene, which I am satisfied you had always planned to do, was a ruse designed to conceal the fact that you actually participated in the killing of Desmond Moran. A number of witnesses saw you there, apparently shocked and upset.

15 You returned to your house again, this time with police. By then, the media were present and the police assisted you to gain entry to your house. Later in the evening, after the police left, you got into the Ford Fairlane and, wearing a pair of gloves, drove it to Mincha Street, Brunswick where you then left it. You threw the gloves away but because this was all being observed by police, the car and the gloves were quickly recovered and you were arrested. Later, a search warrant was executed at your house where various items were located. The safe was also located and from that safe the police identified a collection of items that were used in the murder of Desmond Moran including the Glock firearm that was used by Armour to shoot him.

17 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 Armour 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.

18 You are 66 years of age and, having been born in Melbourne, you have lived your life here. You have a brother who is eight years older than you and from whom you are estranged and have been for many years. Your education was cut short at the age of 12 years when family necessity required that you obtain work and you did so as a machinist making clothing. You remained in that job until you were 16. You then moved to work at the Myer Emporium until you were 18. At that young age you met your first husband, Leslie Cole, and the marriage produced a son, Mark, who later became known as Mark Moran. Leslie Cole was murdered in 1982, long after your marriage to him had ended.

19 From a young age you also learnt dance and obviously became very accomplished, earning positions as a dancer on several television programmes in the 1960s. In your early 20s you met Lewis Moran and that relationship lasted until 1995. You and he never married but in 1967, Jason Moran was born of that relationship. You and Lewis Moran lived first in a property at Langs Road, and then in 1977 the property at Ormond Road was purchased and you lived there continuously until your arrest on 15 June 2009. Problems emerged in the relationship with Lewis Moran due, you say, to his drinking and associated problems, and you and he separated in 1995. Despite that separation you maintained a good relationship with him thereafter.

20 Mr Stuart told me that you then ran the Ascot Vale Hotel until 1998 when you became ill with a lung disorder that required medication and chemotherapy.

21 In the later 1990s and 2000s a series of killings began which appeared to be caused by both a propensity on the part of some for violence, and underworld rivalry. Your family was directly affected. Just after the death of both your parents from natural causes in April 2000, your son Mark was murdered on 15 June 2000. Three years later Jason Moran was murdered on 21 June 2003. Nine months later, Lewis Moran was murdered on 31 March 2004. Of course I accept that these killings had a devastating effect on you, particularly the killing of your sons. Having been so terribly affected, it makes it much more difficult for me to understand why you would become involved yourself in such a callous and public killing of Desmond Moran.

22 Mr Stuart also informed me that you are now estranged from your grandchildren born to Jason Moran and his wife.

23 You have been psychologically assessed by both Mr Tim Watson-Munro, Consultant Psychiatrist, and Patrick Newton, Forensic Psychologist. Mr Watson-Munro has concluded that you have suffered from an adjustment disorder and post-traumatic stress disorder as a result of the various incidents of extreme violence that have affected you and your family. He is of the view that you require treatment as a matter of urgency.

24 Mr Newton had assessed you in 2009 and then again in 2010. He concluded that your physical and mental condition had deteriorated. He also diagnosed an adjustment disorder with mixed anxiety and depressed mood.

25 Your mental state is such that it will make your time in custody more burdensome. I imagine your depressive condition will worsen with time, and being in custody for a long period will, in all likelihood, cause a deterioration. Given the uncontested evidence in the two reports to which I have referred, I accept that these conditions will make your time in custody more onerous, over and above the difficulties in your physical medical condition. I take that into account in the sentence that I impose on you. I also express the view that you should be given such treatment as is reasonably necessary as promptly as possible.

26 I am told by Mr Stuart that you suffer from health problems which affect your mobility and he has submitted that they are worsening. Those problems arose out of injuries sustained by you in 2004 when you fell during a police operation resulting in an injured cheekbone, knee and left hip.

27 Amongst the material produced during your plea was a Prisoner Health Summary covering the period from July to November 2010. That document indicates that you have, among other things, osteoarthritis in both knees and degenerative changes to the left hip. You are regarded as a person who will require regular and ongoing treatment. The records apparently show that whatever injury you suffered, your hip is not fractured but it was proposed that an injection of local anaesthetic and cortisone occur. That has not yet happened.

28 On 20 June 2011 I again convened the Court, having requested that I be informed about any proposed treatment plan for you for your medical condition. The evidence given by officers from the Department of Corrections was that your medical conditions would be satisfactorily managed within the prison in which you will be held and that your placement within the prison, whether in a unit allowing some measure of independence and privacy or in a higher security setting, will depend on your behaviour. I am satisfied that progress in relation to appropriate treatment for your knee and left hip has been slow and that you have suffered pain and lack of mobility as a result. I do regard the response of the Department of Corrections to your need for treatment as unsatisfactory.

29 I am satisfied that your medical condition will make imprisonment a greater burden for you. I think it likely that your imprisonment may well have an adverse effect on the condition of your health. I propose to take those matters into account in the sentence I impose on you.

30 On 28 July 2011, I heard an application by the Director of Public Prosecutions for the forfeiture of the proceeds of the sale of your house at 10 Ormond Road, Ascot Vale and of the Land Rover Discovery vehicle that you purchased for, and gave to, Geoffrey Armour in consideration for his part in the killing of Desmond Moran.

31 As I have already indicated in my reasons, I have refused the DPP's application in respect of the proceeds of the sale of your house, but I have granted the application in respect of the Land Rover Discovery vehicle which I have determined is "tainted property" for the purposes of the Confiscation Act 1997. Apart from the vehicle, which you paid for, there is, therefore, no other issue of forfeiture that must be taken into account in your sentence other than the forfeiture of the vehicle. The proceeds of the sale of your home at 10 Ormond Road will remain available to you.

32 As I have said when sentencing Geoffrey Armour for the killing of Desmond Moran, 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. You and Armour planned the killing of Desmond Moran and you participated in it as the driver of the vehicle. The public location for this killing was consciously selected. This was a deliberate and brutal killing for either retribution or financial benefit or some combination of both. The objective seriousness of what you and Armour have done 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.

33 This crime was planned and thoroughly pre-meditated. From Armour's point of view, it was done only for his personal gain by agreement with you. From your point of view it was done either for some kind of financial gain or out of hostility towards Desmond Moran or some combination of both. 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 that you were involved in that incident. For the purpose of sentencing you, I ignore that event in all respects.

34 There is, of course, no sign of remorse on your part for the killing of Desmond Moran. You pleaded not guilty and the trial was conducted by you on the basis that you had nothing to do with the death of Moran which you accepted was carried out by Armour. The jury rejected that defence and must have rejected the sworn evidence you gave during the trial.

35 However, your counsel has very properly submitted that I should take into account a number of factors relevant to the sentence to be imposed on you.

36 First, Mr Stuart submitted on your behalf that until this incident you were entitled to be regarded as a person of good character. Apart from an irrelevant driving offence, you are without prior convictions. Despite what was going on around you, you have maintained a clear record and I do regard that as significant and to your credit.

37 Mr Stuart has also placed heavy reliance on your age and state of both physical and mental health, to which I have already referred. So far as those matters are concerned I accept that they are matters of significance that I must take into account. At your age, every year you serve represents a substantial portion of your remaining life expectancy. However, in R v Bazley,[2] the Court of Criminal Appeal concluded that:

The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of considerable significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence.

38 Likewise, in R v Cumberbatch,[3] the Court of Appeal concluded that a sentence which removed a reasonable future prospect of life outside and was therefore arguably crushing did not necessarily mean that such a sentence was manifestly excessive. The Court made it clear that the principles of just punishment and general deterrence were of considerable significance in the sentencing in that case, notwithstanding the age and health of the offender. Those principles are, likewise, very significant in this case. The result must be that the age of a person in your position does not, of itself, militate against the imposition of a significant period of imprisonment in the appropriate case, which is what is required here.

39 As to your physical health, I have already said that I accept that it will make the time you serve in custody significantly more burdensome.

40 The jury have found you guilty of murder in circumstances where, having a desire that Desmond Moran be killed, you contracted the killing to Armour and rewarded him in advance for carrying out the killing. With your approval and participation, the murder of Desmond Moran was carried out in a public place in a brutal and violent manner. In such circumstances the sentence which should be imposed should be very heavy indeed.

41 I have reached the conclusion that given the nature of the crime you committed, the circumstances in which it was carried out and taking into account the matters put on your behalf, the least sentence I can impose on you is a sentence of 26 years imprisonment. I fix a minimum term of 21 years that you must serve before you are eligible for release on parole. That is the same sentence that I have imposed on Geoffrey Armour who pleaded guilty. Were it not for your age and state of health, the sentence I would have imposed on you would have been significantly greater.

42 I declare that the time you have already served as pre-sentence detention is 786 days, not including today. I direct that those declarations and their details be entered into the records of the court.

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.

[2] (1993) 65 A Crim R 154; see also R v RGG [2008] VSCA 94.

[3] [2004] VSCA 37; (2004) 8 VR 9.