Faure v The Queen - [2011] VSCA 115

SUPREME COURT OF VICTORIA

COURT OF APPEAL

NOEL WILLIAM FAURE	S APCR 2009 0633
	Appellant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, REDLICH and MANDIE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 February 2011
DATE OF JUDGMENT	20 April 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 115
JUDGMENT APPEALED FROM	[2009] VSC 181R (King J)

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CRIMINAL LAW – Sentence – Murder and intentionally causing serious injury – Sentence of life imprisonment with a non-parole period of 23 years’ imprisonment – Parity – Poor health of offender – Non-parole period not manifestly excessive.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC	Amad and Amad
For the Respondent	Mr J D McArdle QC with Dr S B McNicol	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

The appellant was arraigned in the Supreme Court and pleaded guilty to a presentment containing one count of murder and one count of intentionally causing serious injury. A plea was conducted and the appellant was sentenced to life imprisonment on the count of murder and to a term of ten years’ imprisonment on the count of intentionally causing serious injury. The sentencing judge directed that the appellant was to serve a term of 23 years before he was to become eligible for parole.

The appellant has been granted leave to appeal against the sentence.

The appellant and one Evangelos Goussis were enlisted by one XP to murder Lewis Moran, at the behest of gangland rivals of Moran.

On 31 March 2004, the appellant, his brother and Goussis drove from Geelong to Melbourne equipped with three firearms and two balaclavas. Lewis Moran was in the habit of attending the Brunswick Club, a gambling institution. The plan was that Goussis would shoot Moran while the appellant would stand at the entrance of the Club to cover his back. XP was to drive the getaway vehicle.

The appellant, XP and Goussis looked through the windows at the front of the Brunswick Club and saw Moran. XP waited in a car in the laneway at the rear of the Club while Goussis and the appellant, wearing coats to conceal two pistols and a shotgun, walked around to the front of the Club. As they neared the Club, they pulled balaclavas down to cover their faces. Goussis ran ahead of the appellant and bounded up the stairs of the club, carrying the shotgun, which he pointed in the direction of Lewis Moran.

Upon seeing Goussis, Moran turned and ran down a corridor and through the area of the Club in which there were gaming machines. Goussis caught up with him as he left the gaming machine area. Goussis shot Moran twice in the head.

Herbert Wrout had been standing with his friend Moran when Goussis entered the room. Wrout backed away in the direction of the appellant, who was standing in the doorway. The appellant shot Wrout in the arm and chest.

Goussis reappeared from the rear of the premises and joined the appellant.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Faure v The Queen

Details

AGLC: Faure v The Queen [2011] VSCA 115
Case: [2011] VSCA 115
Decision Date: 20 April 2011

CaseChat Overview and Summary

Faure v The Queen involved a criminal sentencing matter where the appellant was convicted of murder and intentionally causing serious injury. The High Court of Australia was called upon to review the sentence of life imprisonment with a non-parole period of 23 years imposed on the appellant. The court was required to determine if the non-parole period was manifestly excessive, considering the principles of parity and the appellant's poor health.

The central legal issue before the court was whether the non-parole period was manifestly excessive in light of the principles of parity and the appellant's health condition. The court had to consider whether the sentence was proportionate to the gravity of the crimes committed and whether it aligned with sentences imposed in similar cases. Additionally, the appellant's poor health was a significant factor that needed to be weighed in the proportionality analysis.

The court found that the sentence was not manifestly excessive. It held that the non-parole period was proportionate to the crimes committed, taking into account the principles of parity and the appellant's health. The court reasoned that the severity of the crimes warranted a significant custodial sentence, and the 23-year non-parole period was within an acceptable range for such offences. Furthermore, the appellant's health, while a relevant factor, did not render the non-parole period manifestly excessive. The court concluded that the sentence was fair and just under the circumstances.

No further orders were made beyond the affirmation of the original sentence. The decision underscored the importance of considering both the gravity of the crime and the individual circumstances of the offender when determining an appropriate non-parole period.

Orders