R v Faure
[2006] VSC 169
•3 May 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1440 of 2005
No. 1436 of 2006
| THE QUEEN |
| v |
| KEITH GEORGE FAURE |
---
JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | No. 1440/05: 3-4, 7, 10-14, 17-21, 24-29, 31 October, 2-3 November 2005 | |
DATE OF SENTENCE: | 3 May 2006 | |
CASE MAY BE CITED AS: | R v Faure (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 169 | |
---
Criminal Law – Sentencing – Murder of two victims – Sentence after jury verdict as to one, and after a plea of guilty as to the other – both murders in context of other gangland killings – Substantial co-operation with authorities meriting substantial discount reflected in setting of non-parole period – head sentence of life imprisonment – non-parole period of nineteen years
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Parsons S.C. with Ms R. Carlin (No. 1440/05) Mr A. Tinney (No. 1436/06) | Office of Public Prosecutions |
| For the Accused | Mr J. Montgomery | Rob Stary & Associates |
NOTE: The symbol [...] means that part of the text has been deleted for publication.
HIS HONOUR:
Keith Faure, you have been found guilty by a jury of the murder on 8 May 2004 of Sean Vincent also known as Lewis Caine. I will refer to the deceased after this as Lewis Caine, by which name he was better known.
You were found guilty of that murder in November 2005. Last month, you pleaded guilty to the murder on 31 March 2004 of Lewis Moran.
Before I turn to the circumstances of the two murders, I must make some preliminary points. The first is to note that no plea in mitigation was made by or on behalf of you as to the murder of Lewis Caine. I have had regard in sentencing you as to that murder only to those matters which arose in your presence at the trial. The second is to note that there are reasons for the media to be somewhat circumspect in what is published as to these sentencing remarks. There are other trials still to be heard. There is a significant committal soon to be heard. I have edited this sentence by substituting the initials PSS for the name of a person who is still awaiting trial. My aim in doing so is to confirm and supplement the continuing suppression order which is in place as to his name and otherwise. At the hearing of your plea in mitigation on 4 April last, I made an order for the closing of the court and a suppression order. They will no longer have force in the form in which they were made. I made the orders because of the high risk of endangerment then existing. There remains a significant risk of endangerment. The public interest in the openness of court proceedings now requires that the suppression of what was said at the plea hearing, and is said today, is suppressed only to the extent necessary to maximise the prospect of a fair trial for those still awaiting trial. A related concern also means that I will moderate the language that I use to describe the murder of Lewis Moran. I nonetheless say that it was a callous, planned, premeditated execution for money. To some people, life is not sacred, as it should be. To some people, life is cheap.
On 31 March 2004, around 6.30 p.m., Lewis Moran was enjoying a drink with his friend, Herbert Wrout at the Brunswick Club in Sydney Road, Brunswick. It was a favourite drinking spot of his, as too many people knew. He was shot dead there. Herbert Wrout was also shot there. Wrout received serious, but not fatal, injuries. Two different gunmen shot Moran and Wrout. You had driven with the two of them to a location close to the Brunswick Club. You took with you three firearms and two balaclavas. You did so after having agreed to kill Lewis Moran. For his death, you and your two companions were to receive $150,000 between you. Another two men had agreed to pay the $150,000. Publicly identifying your two companions and one of the two men who agreed to pay the $150,000 is a matter of concern, for the reasons that I have spelt out earlier. All three are awaiting trial. I state the identity of the three because of the undertaking to which I will later refer. The two companions were […]. The first of the two men who agreed to pay for the murder of Lewis Moran was PSS. The second man who agreed to pay for the murder of Lewis Moran was Tony Mokbel. His whereabouts, ever since he failed to appear at the final stages of a recent trial in this court, are not known.
Before 31 March, you had checked out the Brunswick Club. You knew that Lewis Moran had the habit of standing to drink in a position where he could watch those entering the club. On the night of 31 March, after you dropped your two companions, appropriately briefed, in a laneway near the Brunswick Club, you stayed with the car. After one of your companions had shot and killed Lewis Moran and the other had shot Herbert Wrout but not fatally, they joined you and you drove them away. Some days later, you received $140,000. The shortfall of $10,000 was a matter that you proposed to resolve later.
On 8 May 2004, shortly after 11 p.m., the body of Lewis Caine was found on the roadway in a dead-end street in Brunswick. He had been shot once in the face, just under the right eye. Shortly prior to that shot being fired, you and Evangelos Goussis had been drinking with Lewis Caine for some time at a Carlton hotel. That drinking session had been arranged at a time, and in a context, when there was much publicity about a series of gangland killings, including that of Lewis Moran. All three of you had close contacts in the camps that were, or were seen to be, engaged in a series of retributive shootings. All three of you had reasons to be guarded as to where the loyalties of other contacts lay, and to be interested in gathering intelligence. In early May 2004, Lewis Caine had a very close link to the camp of PSS. You had links to both the camp of PSS and that of Mario Condello. That was a matter of some moment, given that Lewis Caine had raised with you the possible execution of Mario Condello. Lewis Caine seems to have chosen to meddle in the gangland war, and to have invited you to meddle too. Whatever the precise nature of the links, and the proposed meddling, gangland killings and blurred loyalties were a significant part of the context in which you were drinking with Lewis Caine.
There was before the jury evidence that that time together at the hotel was a friendly drinking session. There was other evidence which pointed to the apparent friendliness of that drinking session being contrived. You and Goussis chose to drive from Geelong to the hotel to meet up with Lewis Caine. Further, you asked him to join you for drinks. It was not that he asked you. Further, Goussis chose to take a gun to the meeting. Given a then recent firearm conviction, that deliberate choice to take a gun was more than curious. It was courting danger. Further, the two of you drove to Melbourne in a recently acquired 4WD. The reasons you were later to give for meeting Lewis Caine were implausible. There was a particular implausibility about your claim that Lewis Caine was keen on buying the 4WD, and about your claim that another vehicle was driven to Melbourne as well as the 4WD. The jury had only your say-so that there were two vehicles, that Lewis Caine wanted to buy the 4WD, and that Lewis Caine had with him a gun. Absent other evidence, I find to the contrary as to each of those three matters.
I would briefly note the thrust of the toxicological results relative to Lewis Caine. He seems not to have had a great deal to drink that night. Moreover, given that only a very small amount of residual cocaine metabolite was found in his system, he could not have been affected significantly adversely by any drugs.
I cannot make precise findings as to what occurred between the time when you, Goussis and Lewis Caine left the hotel and the time when Caine was shot. The nature of the gunshot wound and blood stains point to his having been shot at a time when he was sitting in the back seat of the 4WD. Goussis admitted to police that he fired the fatal shot. The Prosecution case was that, despite assertions to the contrary, you and Goussis were seated alongside each other when the fatal shot was fired. I proceed upon the basis that the jury accepted that that was so and that the two of you were acting in concert. The body of Lewis Caine was promptly dumped in a dead-end street after he had been shot. I was urged to treat that as an indication of no or little premeditation. On the other hand, the callous dumping of a meddler could also have been seen as a way of conveying a message as to how would-be executioners might expect to be dealt with. The 4WD was then driven to Geelong. It was hidden, as was the gun that fired the fatal shot. You and Goussis changed your clothes. The two of you then chose to visit some night-clubs.
When the police arrested you, you told them a set of lies that you and Goussis had concocted together. After you realised that they were seen quite obviously to be lies, you concocted together a second set of lies. According to the first set of lies, at the time of the shooting, you were asleep at Geelong and Goussis was at his mother’s home at Fairfield. According to the second set of lies, you were in a separate vehicle from the other two and at a critical time needed to vomit. Hence, you were not present at a time when Lewis Caine, on the account of Goussis, produced a gun, which would not fire, a supposedly surprising act which was said to have led to Lewis Caine being shot by Goussis in self defence. The second set of lies were not so readily capable as the first set of being shown to be lies, particularly as the 4WD and the gun were not available to be tested.
After the murder, not only did you and Goussis lie as to many matters of significance related to the murder, you engaged in other conduct which inferentially spoke clearly of your guilt of that murder. There was an obvious plan to mislead, as by making calls to Lewis Caine’s mobile phone and leaving messages for him as if you did not know that he was dead. You claimed not to be able to identify the location of the shooting. Further, you claimed that other considerations warranted your not being able to provide to the police any of three very significant items: the 4WD; the gun fired by Goussis; and, the gun claimed to have been produced by Lewis Caine.
The prosecution case was not, despite certain indications the other way, that this was a premeditated execution. I must sentence you on the basis that the murder as to which the jury has found you guilty was not premeditated. The murder cannot therefore be seen as warranting a sentence towards the top of the range. On the other hand, it cannot be seen as being towards the bottom of the range. This was a far cry from a spontaneous domestic stabbing. This was a shooting, with a gun that should not have been on hand, in the context of other shootings and camps and divided loyalties, by two men acting in concert, two men whose record shows no great respect for the law.
I have read, and listened to the reading of, three victim impact statements prepared by each of the mother, grandmother and sister of Lewis Caine. Each has described the bonds that tied Lewis Caine to them, and the pain, the heartbreak and the sense of emptiness that has followed his death, and that they say has continued thereafter and will continue hereafter.
As to the shooting of Lewis Moran, there are three victim impact statements. I have been informed that the required arrangements as to the seeking out of such statements have been made and that no reading from them has been requested. One is from Judith Moran, the wife of Lewis Moran. She writes of the devastating emotional consequences to her of the murder of Lewis Moran amid other gangland killings, including of two sons. The other two are from two managers at the Brunswick Club. Ms Sugars was close by when the fatal shots were fired. She has nightmares and other problems. The other, Ms Connaughton, writes of the enduring adverse consequences of the fatal shooting for the Club and its members.
I turn from the crimes and their victims to you. You are 54 years of age having been born in June 1951. You were born into a family where your father set a poor example, that was followed by you and your brothers. Mr Montgomery informed me on the plea that your parents are now dead, that your father lived to the age of 78, and your mother to the age of 58.
You have many convictions for many offences, including for crimes of violence. Of particular note are the following six occasions when you received sentences of imprisonment for some years: February 1974, 2½ years for robbery in company; April 1974, 4 years for armed robbery in company; February 1977, 8 years for manslaughter; July 1977, 9 years for manslaughter; November 1977; 10 years for robbery in company; and, April 1989, 13½ years for armed robbery.
You suffer from a number of health problems, including some arising from incidents at work and on the road. Since your arrest for the murder of Lewis Caine, you have had to endure particularly onerous prison conditions. Enduring additional hardship must inevitably be a part of your future years in prison. The sentence management problems facing you and the authorities are thorny indeed.
I turn to the matter of your co-operation with the authorities. It is to be added to the plea of guilty, which itself is a factor of significance. The courts have often spelt out the reasons why extensive co-operation can merit a very substantial reduction in the punishment that can be imposed. It is often difficult to assess the relative advantages to the administration of justice and hence to the public. In your case, the indications are that the benefit from the co-operation will be extremely high. You have prepared and lodged with the court an extensive statement as to your role in the murder of Lewis Moran. You have undertaken to give evidence when called upon to do so, to attest to the truthfulness of the matters set out in that statement. I direct that the appropriate record of that be made in the court records. You have said that you understand that, if you fail to honour that undertaking, you could be re-sentenced. You have also promised to assist the police in their investigation of another matter.
Sentencing you is a difficult exercise. It is made difficult because of the need to balance a number of sentencing principles. I have highlighted the matters of the plea of guilty and the provision of co-operation. There are also the principles of totality and parity to be allowed for, as well as the need to provide for general deterrence, special deterrence, rehabilitation and more.
As I have noted earlier, the murder of Lewis Moran was a callous, planned, premeditated execution. Even after taking all relevant sentencing discounting factors into account, only a sentence of life imprisonment is appropriate, given the nature of the crime and of your antecedents. As to the murder of Lewis Caine, I am not able to say more than I said earlier. There is not the evidence that it too was a pre-meditated murder. For it, I will fix a term of years. The fixing of a non-parole period is probably the matter in which you have the closest interest. I have looked carefully at comparable sentences. More relevant is your own age and health and to a degree, the longevity of your parents. Your co-operation merits your being given a chance to spend some of your senior years outside prison. Parole experience has shown how amenable to rehabilitation that that can be.
I have signed orders submitted to me as to retention, disposal and forfeiture, there being no objection to my doing so. The period of pre-sentence detention is 715 days. I direct that that be entered in the court records. For the murder of Lewis Caine, I sentence you to 24 years in prison. For the murder of Lewis Moran, I sentence you to life imprisonment. I fix a non-parole period of 19 years.
0
0
0