The Queen v Orman [2009] VSC 538

3 You were presented jointly on this count of murder with Vincent Benvenuto. The evidence against him differed, in certain key respects, from that admissible against you. It is fair to say, and it seems to have been common ground, that the case against you was stronger than the case against Benvenuto. The jury must also have come to that conclusion because they acquitted Benvenuto, but convicted you.

4 The murder of Peirce was not a spur of the moment crime. It was a carefully planned execution. Although it was Veniamin who fired the fatal shots, you and he acted in concert. That was the basis upon which the case against you was left to the jury and, by their verdict, that must have been the basis upon which you were convicted.

5 I now turn to the evidence in a little more detail. On the night he was killed, Peirce was sitting in his car, which was parked outside a Telstra shop, close to the intersection of Bay Street and Liardet Street, Port Melbourne. Peirce's vehicle was facing south, towards the water. It was clear that he had gone to Bay Street in order to meet Benvenuto, and purchase drugs from him. The case against Benvenuto was that he had lured Peirce to that location, knowing that Peirce was to be killed. There was no evidence, however, of any direct link between Veniamin and yourself, and Benvenuto.

6 Peirce had been waiting in Bay Street for some time, sufficiently long for his estranged wife, Wendy, together with their daughter and son, who lived in the area, to have chanced upon him. Peirce and Wendy spoke for some moments. Then she drove off. Peirce had arranged to see her shortly thereafter. They planned to have a coffee together, at her home.

7 At about 9:15 pm, a blue/grey Holden Commodore, described by witnesses as a VL model, pulled up beside Peirce's vehicle. There were two men in that Commodore. You were the driver and Veniamin the passenger.

8 As the Commodore pulled up, Veniamin got out. He fired a number of shots into Peirce's vehicle. Two of those shots struck Peirce, killing him almost immediately. Veniamin then got back into the Commodore and you drove off in a manner that witnesses described as unexceptional.

9 The prosecution opened its case on the basis that the Commodore which pulled up next to Peirce's vehicle was, as the witnesses had said, a VL model. The jury were invited to find that that vehicle was a VL Commodore, registration number NUM590, which had been stolen earlier that same day. A considerable body of evidence was led at the trial in an effort to establish that the Commodore used in the commission of this murder was indeed NUM590, and that you, Orman, could be linked to its theft. I shall return to that evidence shortly.

10 Peirce was a man with a reputation for extreme violence. He had been a career criminal, and had spent a considerable number of years in gaol. He had convictions for armed robbery, and was known to have possessed firearms. He had been charged with, and acquitted of, the murder, in October 1988, of two young police officers in Walsh Street, South Yarra. At the time of Peirce's death, in 2002, he was said to have been a small time drug trafficker, and also a drug user.

11 Peirce had, for some years prior to May 2002, been associated with a man named Frank Benvenuto who was the brother of Vincent Benvenuto. Frank Benvenuto had been shot and killed in May 2000, almost exactly two years prior to the murder of Peirce. Frank Benvenuto's murder had never been solved. However, his brother Vincent believed, for whatever reason, that Peirce had somehow been responsible for the murder of Frank Benvenuto. Despite that belief, Vincent Benvenuto maintained a regular social, and business, relationship with Peirce, supplying him on a regular basis with drugs.

12 The case against you, Orman, depended heavily upon the evidence of Alphonse Traglia, a long time drug dealer and convicted murderer. Traglia made a number of statements to police implicating various individuals in what might be described as 'gangland killings'. One such statement related to the murder of Peirce.

13 It is not necessary for me to set out in any detail the evidence that Traglia gave at your trial. Put simply, he described how, in the weeks leading up to the shooting of Peirce, Veniamin, in company with you, sought information from him about Peirce's whereabouts. According to Traglia, Veniamin made it clear that he wanted to find Peirce in order to kill him. The reason Veniamin gave was that, if he did not 'get' Peirce, Peirce would 'get' him.

14 In addition, Traglia's evidence was that on several occasions after Peirce had been killed, either Veniamin, in your presence, or you alone, specifically admitted that the two of you had carried out Peirce's murder.

15 The jury were told, in the clearest of terms, that they could not convict you of Peirce's murder unless they were satisfied beyond reasonable doubt that Traglia's evidence as to the making of at least one of those admissions was in fact true. They were also told that they had to be satisfied beyond reasonable doubt that any admission that they found had been made was itself true. Their verdict speaks for itself.

16 The jury were also told that Traglia's evidence was uncorroborated. That may, in retrospect, have been a somewhat charitable direction, so far as you were concerned. In any event, the jury were warned of the dangers of acting upon the uncorroborated evidence of a person such as Traglia who stood to gain from his co-operation with the authorities, and when sentenced for his own part in a separate murder, plainly did.

17 Despite that warning, the jury obviously accepted Traglia as a credible witness. More correctly, they plainly accepted his evidence that either Veniamin and yourself, or you alone, had admitted to him your joint involvement in the murder of Peirce. The jury had the advantage of having seen and heard Traglia give evidence. He was heavily challenged in cross-examination, but did not resile from any of his central claims. The prosecution led a substantial body of evidence, much of it circumstantial, upon which it relied to support Traglia's account, even if that evidence could not be said to amount to corroboration, at least in the strict legal sense.

18 I refer in particular to a series of telephone conversations which were lawfully intercepted, between Veniamin and yourself. These took place in the days immediately leading up to, and on the day of, Peirce's murder. The prosecution case was that much of what was said in those conversations was in 'code', and reflected the agreement that had earlier been reached between Veniamin and yourself to search out, locate and kill Peirce. Having heard the recordings of those conversations, it was not altogether surprising that the jury accepted the prosecution's suggested interpretation of them.

19 I should add for the sake of completeness that there was other evidence that tended to support Traglia's account. I refer in particular to the testimony of Wendy Peirce, who said that her estranged husband had made it plain to her that he harboured an intent to kill Veniamin. She said that the discovery in Peirce's possessions, after his death, of a note in his card holder with details of Veniamin's home address, and car registration number simply confirmed his fear of Veniamin, and desire to kill him. Your counsel invited the jury to conclude that this note was a fabrication, concocted by, or at the behest of Wendy Peirce, possibly in an effort to secure the reward for the capture of those responsible for Peirce's murder. In my view, it was well open to the jury to reject that suggestion.

20 Finally, I also include, as part of the evidence supporting Traglia's account, those experts who linked your mobile telephone to various communication towers located close by where the two cars, said by the prosecution to have been stolen for use in the murder of Peirce, had been taken from, or found. The prosecution invited the jury to conclude that the first of those two vehicles had been stolen in preparation for what was said to be an earlier abortive attempt to kill Peirce, a week before his death. The second stolen vehicle was said to have been the VL Commodore, NUM590, used in the commission of the murder.

21 In that regard, it is unnecessary for me to make any definitive finding as to whether you, personally, stole the Commodore, NUM590, that the prosecution contended had been used to carry out Peirce's killing. It is entirely possible, in my view, that the jury came to that conclusion, having regard to the evidence as a whole in relation to that matter. However, it is also possible that you were convicted solely on the basis of Traglia's evidence. In that event, the jury may not have reached any definite conclusion as to whether you yourself stole one or other of the two vehicles in question. Certainly, the jury were told that they could make no finding as to your involvement in the actual theft of either car, unless satisfied 'to the requisite degree'. In the context of my directions to them, that meant satisfied beyond reasonable doubt as to the basic fact or facts from which that inference was to be drawn.

22 It follows from all this that, consistent with the jury's verdict, and I so find, you were the driver of the VL Commodore from which Veniamin emerged to shoot Peirce in Bay Street, Port Melbourne. Irrespective of whether that vehicle was in fact NUM590, or some other similar Commodore, you played a key role in procuring it, as is shown from the tapes of your conversations with Veniamin. I cannot say, however, whether it was you who actually stole the vehicle, or indeed the other car said to be linked with the abortive attempt a week earlier. It is possible that someone else carried out each of these actual thefts. It is also possible, though in my view highly unlikely, that neither of these two stolen vehicles had anything to do with the commission of this offence.

23 In sentencing you, I proceed upon the basis that you played a significant role, in some unspecified way, in procuring the VL Commodore that was used in the commission of this murder. The tapes make it clear that Veniamin expected you to fulfil that role. In addition, the banking records and other evidence of that kind demonstrated your involvement in the rental, on two separate occasions, and at critical times, of hire cars as part of the overall preparation for this offence.

24 I now turn to consider some of the matters personal to you. In May 2002, you were still a young man, aged only 20. You are the third of four children born to working class parents. Your father is Turkish, and your mother is of Turkish/Cypriot origin. In a report dated 9 November 2009, prepared by Patrick Newton, a Clinical Psychologist, which was tendered on the plea, it is said that you described your father as a 'very religious man' who had enforced a strict and authoritarian code of conduct upon the family.

25 You told Mr Newton that your childhood had been characterised by pervasive conflict between your parents. This culminated in their divorce when you were aged 9. Your father returned to Turkey where he subsequently remarried. You remained in your mother's care. You have had little contact with your father since.

26 Mr Newton suggests that you were greatly affected by the absence of any guidance and support from your father. You attempted to find an alternative source of such guidance, and initially turned to your older brother to fulfil that role. Sadly, he died suddenly from leukaemia soon after your parents divorced, and his death left you grief-stricken and 'crushed'.

27 In the aftermath of your brother's death, you began to associate with people in your local community who seemed to you to manifest the qualities of strength, bravado and machismo which you regarded as important qualities for a man to emulate. Veniamin plainly met that description. While in his company, and that of others like him, you engaged in problematic behaviour which culminated in the commission of various offences. Regrettably, it appears that even now you continue to associate with persons of that ilk, despite the calamitous consequences, so far as you are concerned, of having maintained those friendships.

28 You attended a local primary school. You were a relatively poor student. After your parents divorced, your behaviour at school deteriorated markedly. At your father's suggestion you transferred to an Islamic college after completing Year 8. You struggled to cope with its rigid disciplinary code, and were repeatedly suspended for unruly behaviour. You were ultimately ejected from this school after Year 10.

29 After you left school, a family friend offered to mentor you, and assist you with vocational training. With that friend's assistance you commenced training as a panel beater and motor mechanic. However, you did not complete formal trade qualifications. You opened your own panel beating shop in 2004, with moderate success.

30 Turning to your mental state, you reported a history of chronic low-level depression and anxiety. These symptoms date back to the death of your brother, and other childhood problems. Mr Newton suggested that you had experienced a life-long pattern of introversion, with few close relationships, and few experiences of intimate connection. He described your introversion as having added to your vulnerability by decreasing your opportunities for social support. You have been prescribed antidepressants in the past, but have found them to be of little benefit.

31 Your criminal history I would characterise as moderate. You have convictions for assault, and assault with a weapon. You also have a conviction for possession of heroin. I do not regard these matters as having any particular relevance to this case. I have put them to one side when considering your prospects of rehabilitation.

32 I accept Mr Newton's opinion that you are mildly depressed and socially withdrawn. I also accept that you are, not unnaturally, somewhat pessimistic about your future. You are, as I understand it, isolated and alienated within the prison system. You are wary of your fellow prisoners, distrustful of them, and of prison staff. It is said that your symptoms are sufficiently chronic in their nature, and sufficiently severe in their intensity, to warrant the diagnosis of a Dysthymic Disorder. As I understand that diagnosis, Mr Newton regards you as suffering from a chronic mood disorder that falls within the depression spectrum, the opposite of hyperthymia. Dysthymic Disorder is considered a chronic depression, but is regarded as less severe than a major depressive disorder. Mr Newton says that there is a significant risk that your condition will worsen, and your depression will intensify.

33 It is clear to me that you are an extremely immature young man. Mr Newton reports that your self-esteem is low. I accept his view that you have attempted to compensate for that lack of self-esteem by seeking out overtly dominant male mentors who seem to you to display great certainty or strength. You looked to these people to compensate for the missing guidance of your father and older brother. You are, as Mr Newton records, deferential and subservient. You typically seek to curry favour with such men, in a misguided belief that they are worthy role models. You show poor judgment in that regard. You would be likely to accept at face value almost anything that they tell you, and also likely to do pretty much anything that they ask of you.

34 Your cognitive skills are poor. In 2003, you were assessed as having an IQ of 80. You have a limited capacity for rational thought, and a restricted ability to appreciate the full implications of what you do. You are not, however, suffering from a personality disorder, or from any form of psychosis.

35 I take all these matters that are personal to you into account. I accept that, given your depressive state, and your distrust of others, the burden of an extended period of imprisonment may fall marginally more heavily upon you than might otherwise be the case.

36 You do not, however, fall directly within what might be described as the earlier principles enunciated in R v Verdins.[1] There is nothing to indicate that your moral culpability for this offence should be reduced by reason of any mental impairment or condition from which you suffer. It follows that those earlier principles in Verdins do not, of themselves, require your sentence to be moderated to any significant degree.

37 In the end, you are to be sentenced upon the basis that you were an entirely willing, albeit somewhat subservient, party to a carefully planned execution. This was a brazen and calculated crime. The killing took place in a public street, and in the presence of a number of bystanders. By your conduct, you showed a callous disregard for the value of human life. The community simply cannot countenance the warped sense of morality, and distorted sense of loyalty, that plainly influenced you to assist Veniamin in the way that you did.

38 In sentencing you, I am required to have regard to a number of considerations. Paramount among these are deterrence, both general and specific. The maximum penalty for murder is, of course, life imprisonment. Bearing in mind that murder is always an offence of the utmost gravity, this case is, by reason of pre-planning, and the execution style killing, a bad example of that offending. Your role in this crime may have been subservient to that of Veniamin, but it was by no means insignificant.

39 You of course did not plead guilty, and since being convicted you have shown no remorse. These are not aggravating factors. However, apart from your youth, the subservient role that you played in the commission of this offence, and the matters personal to you, there is not very much that you can call in aid by way of mitigation.

40 The Sentencing Act 1991 requires me, when sentencing you, to take into account 'current sentencing practices'. With regard to this, there is authority for the proposition that when sentencing practice has moved adversely to an offender, it is proper for a court to take into account what the sentencing practice was as at the date of the commission of the offence.[2]

41 There is a question as to whether sentences for murder have increased since 2002. The Crown, at my request, produced an analysis of the statistical information provided by the Sentencing Advisory Council. In the Crown's submission, the figures show no discernible change in the average length of imprisonment imposed on those sentenced for murder from the period 2001 to 2008. Likewise, the Crown submitted that there has been no discernible change in the average non-parole period fixed.

42 I have considered two Sentencing Snapshots, No 27 which deals with sentences for murder between 2001 and 2006, and No 84 which covers the period 2003 to 2008. In my opinion, the Crown's contention is, to some extent, borne out by those figures. However, it must be remembered that averages are less helpful, in that regard, than median sentences. In broad terms, the average length of imprisonment imposed on those sentenced for murder between 2001 and 2006 was, consistently, of the order of 18 to 19 years. The average non-parole period tended to be about 15 to 16 years.

43 The figures show that in 2007 to 2008 the average total effective sentence and average non-parole period fixed in relation to those imprisoned for murder increased, though only marginally. The figures over that period came to approximately 22 years with a non-parole period of 18 years. That increase may reflect some of the more heinous offences dealt with in that time, including some sentences for 'gangland killings'.

44 In light of the authorities, and the statistical material provided, I propose to moderate somewhat the sentence I impose upon you to take into account the marginally lower range of sentences generally imposed for murder in the period prior to 2007.

45 The Crown has also provided me with information regarding sentences imposed for murder in a number of individual cases. The summary was taken from the Sentencing Manual prepared by the Judicial College of Victoria. It consists of some 25 cases covering the period 2001 to 2005, and a further 22 cases covering the period 2006 to 2009. I have had regard to the sentences imposed in those cases in an effort to ascertain 'current sentencing practice' with regard to murder in this State.

47 Faruk Orman, as a result of your role in the murder of Victor Peirce, and the matters personal to you earlier discussed in these sentencing remarks, the Court will impose a somewhat lower sentence than might otherwise be appropriate. You are sentenced to a term of 20 years' imprisonment. Because I regard you as having some prospects of rehabilitation, I will fix what some might regard as a lower than normal non-parole period. I direct that a non-parole period of 14 years be fixed.

48 I order, pursuant to s 464ZF(2) of the Crimes Act 1958, that you undergo a forensic procedure for the taking of a scraping from the mouth, in accordance with sub-div 30A of Part 3 of that Act, until a sample of sufficient standard is obtained for placement on the data base. If you do not consent to the taking of such a sample under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. I make this order on the basis that it is not opposed.

49 I declare that the period of 887 days, excluding today, is to be reckoned as time already served under the sentence I have imposed. I order that there be noted in the records of the Court the fact that such a declaration was made and its details.

[1] [2007] VSCA 102; (2007) 16 VR 269.

[2] See generally R v RL [2009] VSCA 95, [58]-[59] and the New South Wales authority, R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368, therein cited.