R v Farrugia (Sentence)
[2010] VSC 606
•17 December 2010
| IN THE SUPREME COURT OF VICTORIA | Unrestricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0069 of 2010
| THE QUEEN |
| v |
| MICHAEL SAM FARRUGIA |
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JUDGE: | Lasry J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2010 | |
DATE OF SENTENCE: | 17 December 2010 | |
CASE MAY BE CITED AS: | R v Farrugia (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 606 | |
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CRIMINAL LAW – Sentencing – Accused plea of guilty and subsequent evidence given to assist authorities – Relevance of personal circumstances – Sentencing discounts.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C Quin | Office of Public Prosecutions |
| For the Accused | Mr R van de Wiel QC with Mr M Regan | Victoria Legal Aid |
HIS HONOUR:
Michael Sam Farrugia, on 26 November 2010 you pleaded guilty to one count of manslaughter. The maximum penalty for manslaughter is 20 years’ imprisonment. That offence arises from your involvement in the death of Desmond Herbert Moran on Monday 15 June 2009 when he was shot dead in a delicatessen in Ascot Vale. You were originally indicted together with Geoffrey Armour, Suzanne Kane and Judith Moran. The three remaining co-accused will be tried in January 2011, including for murder and related offences.
Circumstances of Offending
I will briefly summarise the manner in which the prosecution allege that you committed this offence and with which you agree. At about 11:59 am on Monday 15 June 2009, Desmond Moran was shot dead at a café at 191 Union Road Ascot Vale. The Crown case is that he was shot by the accused man Geoffrey Armour and the post mortem evidence indicates that Mr Moran was wounded by seven gunshots.
You were present when this occurred and that was because you earlier had agreed to assist Armour for the purpose, as you understood it, of enforcing a debt that Desmond Moran was said to owe to Judith Moran, although as I understand it, you were not then aware of his identity. You have told police that you were told by Armour earlier that day that he was doing some debt collecting for the accused woman Judith Moran and that the person who was ultimately shot by Armour owed her money and had, in some way, abused her.
On 16 November 2010 and 22 November 2010 you made statements to police about the circumstances of the offence. In those statements, on which the Crown propose to rely in the trial of your alleged accomplices, you begin by describing in detail your relationship with Armour dating back to 2004. Contact was maintained between you thereafter and then, from April and May of 2009, the contact between you became more frequent. You had three days off work around the time of the killing of Desmond Moran, due to a close-down at your employer’s business. You spent some of that time with Armour including on shooting trips and you were also introduced to Judith Moran.
On the Sunday night before the killing, at Armour’s invitation, you visited Judith Moran’s premises for dinner. By arrangement, you returned the following day to work on Armour’s car. On that day, after meeting Armour and getting into his car with he and Judith Moran, you later heard Moran say “There’s the bastard” apparently referring to Desmond Moran.
You then made a fundamental mistake which has dramatically changed your life, by offering to help Armour with what you believed would be a debt collection. The offer you made was to assist Armour in any fight that might occur over the debt.
After seeing Desmond Moran, the three of you returned to Judith Moran’s house and you, Armour and Judith Moran got into a Ford sedan with Moran driving and went down Union Road, Ascot Vale towards where Desmond Moran had been seen. After parking behind some shops Armour got out of the car. He had told you to stay in the car and walked off putting on a wig as he did so.
Not persuaded by the instruction to remain in the car, you followed because, you say, you were curious and thought Armour and the person he was heading for would be in some kind of fight and you were ready to be part of it. You claim, and the Crown appear to accept it, that at that stage you were unaware that Armour was armed with a firearm. You saw Armour disappear into a shop and then heard gunshots. You looked into the shop and then ran from the scene. You got into the waiting car with Armour and Moran and the car was driven away. You claim that Armour told Moran that he had “got him”.
From then on various steps were taken to dispose of clothing and in the immediate aftermath you claim to have argued with Armour for getting you involved in the shooting. As you later drove home you heard about the incident on the radio news and so you disposed of an item of clothing as well as some security tapes from your home.
You were visited by the police the following day and you say that by then you had been threatened by Judith Moran to keep your mouth shut and so you did. You were later arrested and remanded in custody.
The Crown case against you is that you were a willing participant and a party to an agreement with Armour to assault Desmond Moran to enforce a debt. The Crown say, and you accept, that the death of Desmond Moran was an unexpected consequence of carrying out the plan to assault him.
Your willingness – indeed your enthusiasm – to be involved in the confrontation with Desmond Moran is hard to understand. Your counsel Mr van de Wiel QC argues that you had nothing to gain from this and that seems to be so but you persisted in your involvement even after you were told by Armour to remain in the car.
Co-operation
As I have already noted, you have made statements to the police. On 26 November 2010 when you pleaded guilty to manslaughter you also gave sworn evidence that the contents of your statements are true and you undertook to give evidence in accordance with them.
There is no contest between you and the Crown that the information in your statements is of great importance in this case. In the trial of your three accomplices, the Crown will place substantial weight on your evidence.
There is no question that you are entitled to a substantial discount for the information you have provided in your statements and for your willingness to give evidence in the forthcoming trial. The quality of the information you have given is apparently significant. The Crown do not contend otherwise. By giving that information, you have exposed yourself and your family to risks. The information you have given relates to the murder of a person in a suburban shopping area in front of several members of the community.
Therefore, pursuant to s 5(2AB) of the Sentencing Act 1991, in sentencing you, I propose to impose a less severe sentence than I would otherwise have imposed due your undertaking to assist the prosecution and, after your sentence has been imposed, in the prosecution of your three accomplices for the offence of murder. I direct that your undertaking be noted in the records of the Court.
I further make it clear that pursuant to s 6AAA of the Sentencing Act 1991, you will receive a discount for your plea of guilty which I will shortly quantify. The discount I propose to give your for your co-operation is over and above the operation of s 6AAA.[1]
[1]See per Nettle JA in The Queen v Andrew Steven Johnston [2008] VSCA 133 at para [17].
Prior Convictions
You have four convictions from three court appearances between 1983 and 1990. The one offence that you committed which involved violence was your first conviction in 1983, some 27 years ago. Whilst it cannot be said that you are a person without prior convictions, these matter are of no significance for present purposes.
Plea of Guilty
You have pleaded guilty to the offence of manslaughter having been originally charged with the murder of Desmond Moran. You were arrested on 18 August 2009, charged and remanded in custody. In August 2010, you indicated a willingness to make a police statement and the process of taking that statement commenced in September 2010. The process took some time to complete and it was not until November 2010 that you entered your plea of guilty.
The delay in that plea is explicable, among other things, by the time the process took and your fear of the consequences.
I do regard your plea as indicative of your willingness to take responsibility for what you did and a level of remorse and I take it into account on that basis.
Personal Circumstances
You were born on 12 June 1964 and are therefore now 46 years old. Your family is Maltese, and arrived in Australia after the end of World War 2. You are one of six children. Your father died in 2006 and most of the remainder of your family live in Melbourne.
Your education was difficult and you had substantial problems with reading and writing. Mr van de Wiel describes you as “virtually illiterate”. He said the evidence showed that your education was over by the age of 16 years.
Notwithstanding these difficulties you have managed to work consistently in jobs mainly concerned with mechanical activities including the servicing of heavy vehicles and machinery. That was interrupted by a workplace accident in 2003 and it took some time before you were able to return to work. You resumed work as a maintenance fitter in 2006 and remained in that job until your arrest on 18 August 2009. You hold a variety of licences to operate heavy vehicles and machinery. Your most recent employer described you in a reference as having an excellent round of skills and amongst the best he had seen. He was clearly impressed with your work record.
You have been married since November 1985 and you have two children. The property on which you and your family lived in Myrniong was sold earlier this year.
In another reference on your behalf, your wife described both the closeness of your marriage and the way in which you have supported your family. It seems that you have now separated, although she remains supportive of you. The sale of your home has obviously had an effect on your family and they now feel that they are under threat as a result of this case.
You had been active in the Myrniong local community. The parish priest in that area, Father Glasheen, described you as well respected in the area over an extended period of time. Others from that community who know you have attested to the regard with which you are held in that area. You have also been involved in the Myrniong CFA. The captain of that rural fire brigade has provided a reference in support of you and describes you as having been a “great asset” to the brigade and even after your injury you apparently continued to contribute to the brigade.
The other aspect of your personal circumstances relates to your psychological state. Among the material produced on your behalf during your plea was a report of Associate Professor Julian Davis, Consultant Psychiatrist. He had provided two earlier reports in October and November 2009 and given evidence on a bail application you made in this Court in May of this year.
It is put that after your father’s death in August 2006 you suffered depression but that was in remission by 15 June 2009 when this offence was committed. Professor Davis diagnosed clinical depression in November 2009 by which time you were in custody. After that time your mental state fluctuated depending on your circumstances, and was particularly affected when you were placed in protection within the prison in very onerous circumstances.
Your time in custody so far has been difficult for you and included an incident in February of this year when you witnessed a prisoner attempting to hang himself. The records indicate that you immediately supported him so that he survived and the incident does you great credit. You have apparently suffered some reaction to the incident since. I am also told by your counsel that you made one attempt at suicide yourself.
The unchallenged opinion of Professor Davis is that the depression you have suffered during your imprisonment is a serious psychiatric condition. There is no connection between that condition and the offence you committed but it is clear that given your condition, imprisonment is a greater burden on you. Imprisonment has caused your condition to deteriorate and that will be potentially worsened by the stress of giving evidence as you have undertaken to do.[2]
[2]R v Verdins (2007) 16 VR 269 at 275-6.
Sentencing Considerations and Conclusions
You are a man of 46 years who had made a life for yourself and your family and although there is minor offending in your past it is of no real significance for these purposes. Having got yourself into this situation by an act of genuine stupidity, you could not have done much more to make amends for what occurred. You have co-operated with police and you will be a witness at the forthcoming trial. As I have already said, your co-operation is at a very high level and the Crown has not suggested otherwise.
The prosecutor, Ms Quin, indicated a range of sentences that, in her submission, would be appropriate for the disposition of this matter. That range was a head sentence of between six and eight years’ imprisonment with a minimum before eligibility for release on parole of between four and six years. In my view, that range is excessive in the circumstances of this case particularly given, among other things, the level of co-operation you have made and undertaken to make in the future.
For the manslaughter of Desmond Moran, you will be sentenced to be imprisoned for a period of four years. I direct that you serve a period of two years before being eligible for release on parole.
I declare that your pre-sentence detention is 488 days including this day and I direct that that be entered in the records of the Court.
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 five years and six months’ imprisonment with a minimum period of three years and six months before eligibility for release on parole.
I direct that these declarations and their details be entered into the records of the Court.
I have made the order sought by the Crown for retention of a forensic sample pursuant to s 464ZFB of the Crimes Act1958 and not opposed on your behalf.
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