Supreme Court New South Wales Medium Neutral Citation: R v DEBS [2012] NSWSC 119 Hearing dates: Friday 24 February 2012 Decision date: 24 February 2012 Jurisdiction: Common Law - Criminal Before: RS Hulme J Decision: Life imprisonment to commence on 12 December 2011 Catchwords: CRIMINAL LAW - sentence - murder - motive - worst case Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: DPP v Debs & Roberts [2003] VSC 30 R v Coulter [2005] NSWSC 101 R v Debs [2007] VSC 220 R v Debs [2008] VSCA 240 R v Previtera (1997) 94 A Crim R 76 Veen v R (No 2) [1987-1988] 164 CLR 465 Category: Sentence Parties: Regina (Crown) Bendali Michael DEBS (Offender) Representation: Mr P Barrett (Crown) Mr C Waterstreet (Offender) S Kavanagh (Crown) LawyersCorp Pty Limited (Offender) File Number(s): 2009/285500 sentence 1On 12 December 2011, Mr Debs was convicted by a jury of having, on 22 April 1995 at Minchinbury, murdered Donna Hicks. He now stands to be sentenced. I instruct myself that any conclusions at which I arrive in the process must be consistent with the verdict of the jury, that insofar as I make other findings adverse to the Prisoner and not necessarily implicit in the verdict, I must be satisfied of them beyond reasonable doubt, but that I am only required to be satisfied of matters in mitigation on the balance of probabilities. 2I also wish to make clear that I am sentencing the Prisoner for the murder of Ms Hicks. Although I will in the course of these reasons refer to other of his offending, I take that into account not to punish him for it but solely insofar as it bears on issues relevant to a determination of the appropriate sentence for the death of Ms Hicks. 3In the late evening of 21 April 1995, Ms Hicks was working on the Great Western Highway at Minchinbury as a prostitute. At about 8.30 am on the next morning, her naked body was found at the southern end of Archbold Road, Minchinbury in long grass between the entrances to two properties with boundaries to Archbold Road. 4Blood on one of the entrance driveways and flattening of the grass between there and where the body was found indicated the body had been dragged to its final resting place. The deceased's panties were on the driveway but there were no other of her clothes in the vicinity. 5In the days surrounding Ms Hicks' death, the Prisoner, who lived in Victoria, was shown to have been present in suburbs surrounding Minchinbury. He was then the owner of a dark blue Holden Rodeo utility which had four doors and a canopy over the open area at the rear. The vehicle's wheels were painted silver or some similar colour. 6A witness, Mr Zanker, who had been with the deceased on the highway gave evidence of the deceased having been picked up late on the night of 21 April in a vehicle his description of which in many respects closely matched that of the Prisoner's vehicle. The evidence suggested that the deceased was not seen alive again. 7Examination of the genital and perineal areas of the deceased revealed no injuries. The cause of death was a wound from a "fairly large cartridge" or, differently expressed, "a medium to large calibre bullet" which had entered the deceased's lower left cheek and exited at the top of her scalp. Powder tattooing on the deceased's face indicated that the firearm from which the bullet came was a short distance, say 15 to 50 centimetres, from the deceased's skin at the time the bullet was discharged. There was also powder tattooing to the deceased's right forearm, suggesting that this was near her face at the time of discharge. 8Dr Little, the pathologist who examined the deceased, observed a number of other bruises and abrasions on the body but none were large or appeared to be of significance. Dr Little took a rectal swab before the body was removed from Archbold Road and during the post-mortem also took high vaginal, low vaginal and vulval swabs. In due course, these swabs were combined and it will be convenient to refer to them collectively as "vaginal swabs". 9The vaginal and rectal swabs were examined. Both contained DNA consistent with that of the Prisoner. The chance of finding an unrelated person in the general population with the same DNA profile was fewer than one in 10 billion. 10The deceased's panties were also examined. No DNA other than that of Ms Hicks was found on them. 11In June 1997, the Prisoner resided at Narre Warren, in Victoria. On 17 June 1997, his credit card was used at a service station near his residence. 12At about 11.30 am that day, a woman walking her dog saw a large pool of blood adjacent to a track between Burton Road and Emerald-Beaconsfield Road, Upper Beaconsfield, a location close to Narre Warren. On the following day, two other women also observed the pool of blood and police were called. Their inspection of the scene revealed a body which turned out to be that of Ms Kristy Harty lying a little distance off the track. Flattening of grass and other signs indicated that this body had been dragged from the vicinity of the track to where it was found. The track was one which could be traversed by a vehicle albeit possibly with difficulty or a little care. Ms Harty was clothed but her panties were entwined with a stick around her feet. Prior to her death, Ms Harty worked as a street prostitute. 13Inspection of her body and a bullet found at the scene revealed that she had been shot with a .357 magnum calibre bullet that entered the left side of the top of her head and exited on the right side of her jaw. The exit injury was described by Dr Burke, a Victorian pathologist, as "a shored exit injury" one which suggested that a firm object was against Ms Harty's right jaw at the time of the gunshot discharge. Dr Burke opined that, taking into account what was to be seen where Ms Harty's body was found, one reasonable possibility was that she was face down with the right side of her face against the earth when the gun was discharged. 14Again, there was a deal of gunshot residue deposited adjacent to the entrance wound and both Dr Burke and a Victorian ballistics expert Mr Vincent expressed the view that this material indicated that the weapon was very close to the deceased's skin when fired. Mr Vincent said that the weapon used was a revolver and that a .357 magnum is a high powered cartridge. 15The post-mortem of Ms Harty revealed no apparent injury to the upper thighs, external or internal genitalia or anal area. 16High vaginal, low vaginal, rectal and perineal swabs were taken from Ms Harty's body and smears on microscope slides taken from those swabs. After the slides were submitted to the Victorian Police Forensic Science Centre, spermatozoa were detected on the high and low vaginal slides but not on the perineal or anal slides. In due course, the high and low vaginal swabs were pooled. DNA extracted from those swabs was the subject of further investigation and found to be consistent with that of the Prisoner. 17All the area of Ms Harty's underpants was examined for seminal stains. Stains were found in two areas but there were none in the area of the crotch. Slides were prepared from these stained areas. On one of these spermatozoa was detected. Samples from each area were sent for DNA examination and DNA consistent with that of the Prisoner was found in one sample. 18Again in the case of the DNA found in both the vaginal samples and the positive underpants sample on the one hand and that taken from the Prisoner on the other, the chance of finding an unrelated person in the general population with the same DNA profile was fewer that one in 10 billion. 19There was evidence from a Dr O'Dell who, though not a gynaecologist, had extensive experience in gynaecological examinations, some as a forensic physician while employed by the Victorian Police Department of Forensic Medicine. Dr O'Dell said that after ejaculation during sexual intercourse, it is almost inevitable that some ejaculate will appear on the outside of the vagina and the absence of staining to the crotch areas of Ms Hicks' and Ms Harty's underpants was very suggestive that they were not worn in the usual position after intercourse. 20In the above account, I have referred to evidence that was given in the Prisoner's trial. I add now that I accept all of that evidence. 21In the Prisoner's trial for the murder of Ms Hicks, I allowed in over objection the evidence relating to the death of Ms Harty because the similarity in circumstances argued against mere coincidence and in favour of the view that the same person was responsible for both deaths. The jury was told that if they were to use the death of Ms Harty as arguing for the Prisoner's guilt they had to be satisfied beyond reasonable doubt he killed her. 22Adopting the same standard, I am satisfied beyond reasonable doubt that the Prisoner killed both women. Considered individually, the circumstances of each death including the presence of his DNA, argues strongly for that conclusion. The possibility that someone else may have happened upon one of the victims after the Prisoner had had intercourse with her is eliminated by the coincidences in the circumstances. Neither victim had the occasion or time to replace her panties to their normal position between having intercourse with the Prisoner and being shot. 23There was no evidence suggestive of any motive that, even in the discrete area of human activity of murder, could be considered normal or rational. Ms Hicks' body displayed none of the signs commonly found when a woman has resisted sexual intercourse. There were no signs of a struggle and it seems clear that the Prisoner had had a complete act of intercourse with her. 24Considered in isolation, it is difficult to avoid the conclusion that the murder of Ms Hicks was carried out as an exercise of power or for some thrill or satisfaction derived from the act, or a combination of these factors. When one takes account of the circumstances of the later killing of Ms Harty, that conclusion becomes inescapable. 25The Prisoner was born in July 1953. Prior to the death of Ms Hicks, he had a minor criminal record in New South Wales of assault, unseemly words, goods in custody and discharging a firearm in a public place. The last mentioned charge was dismissed under s.556A of the Crimes Act 1900 as it then was. The penalties imposed for the other offences were small. An Antecedents Report from Victoria tells a more serious tale. That report showed that in 1988 he was convicted of assault with a weapon and theft. In an appeal in 1989, the sentences imposed for those offences were varied so as to remove any custodial element. In 1991, he was again convicted of theft and in 1996 of theft from a motor vehicle and of reckless conduct creating a danger of serious injury. 26However, those matters pale into insignificance in consequence of the fact that in late 2002, the Prisoner was convicted of having, in August 1998, murdered two police officers. The circumstances of that offence are described in the Remarks on Sentence of Cummins J, reported as DPP v Debs & Roberts [2003] VSC 30 and I should make brief reference to them. 27A car, containing the Prisoner and a Mr Roberts had been stopped by Sergeant Silk and Senior Constable Miller. It was obvious that there was a risk, perhaps a likelihood, that those officers would search the Prisoner, Mr Roberts and their vehicle. Mr Roberts, without warning, shot Sergeant Silk at close range through the chest, causing him to fall to the ground. Constable Miller shot at Mr Roberts in defence of Sergeant Silk. I quote Cummins J's summary of what followed:- You, Mr Debs, immediately fired at Senior Constable Miller through the hatch window of your vehicle which you had re-entered to obtain your .357 Magnum handgun. You repeatedly fired at Senior Constable Miller, one shot mortally wounding him. In great pain, Senior Constable Miller managed to struggle away from the scene to seek help and for your apprehension. In order to avoid the risk of being shot or identified, you did not pursue him. Instead, you, Mr Debs, went up to the helpless and immobile Sergeant Silk who was lying on the grassy verge, shot him in the pelvis and then shot him in the head, the last shot killing him instantly. You executed him - to ensure he could not identify either of you. 28For each of those murders, the Prisoner was sentenced to imprisonment for life, Cummins J declining to set a non-parole period. 29In 2007, the Prisoner was convicted in Victoria of the murder of Ms Harty. On 22 June 2007, Kaye J imposed a further sentence of life imprisonment, also declining to fix a non-parole period - see R v Debs [2007] VSC 220. An application for leave to appeal against that sentence was dismissed - see R v Debs [2008] VSCA 240. 30The timing of events and some evidence in the trial before me of DNA investigation would suggest that it was after the Prisoner's arrest for the murders of Sergeant Silk and Constable Miller that the police secured a sample of the Prisoner's DNA and that led to him being charged with the murder of Ms Harty and later with the murder of Ms Hicks. He was charged with Ms Hicks' murder on 9 November 2010. 31Turning to the topic of subjective circumstances, such evidence as there was in this regard is to be found in the remarks on sentence of Cummins and Kaye JJ and in the Victorian Court of Appeal. It seems that the Prisoner was arrested in Victoria in July 2000. I infer he has been in custody ever since. The Prisoner was born in July 1953. He was married and has five adult children. He was a tiler by way of occupation. 32Cummins J accepted that the Prisoner had had an unstable and difficult childhood, was of ordinary intelligence at best but did not suffer any psychiatric illness or psychological disorder. 33There are a number of statutory provisions by which I must be guided or, at least, I must take into account. They include the following. 34Pursuant to s 19A of the Crimes Act , the maximum penalty for murder is life imprisonment. Such a sentence, if imposed, means precisely that, without the prospect of parole. Of course, a lesser sentence may be imposed - Crimes (Sentencing Procedure) Act 1999, s 21(1). If a lesser sentence is imposed the Court must set a non-parole period unless it appears to the Court appropriate to decline to do so - Crimes (Sentencing Procedure) Act, ss 44, 45. 35Section 3A of the Crimes (Sentencing Procedure) Act sets out the purposes for which a court may impose a sentence. They are:- (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 36Initially, the Crown relied upon s 61(1) of the Crimes (Sentencing Procedure) Act . That section reproduces what was s 431B of the Crimes Act but that earlier provision was inserted only in 1996, ie, after the death of Ms Hicks. The Crown accepted that these provisions seemed to have no application. 37Section 21A of the Crimes (Sentencing Procedure) Act lists a large number of aggravating and mitigating factors and requires that, subject to a number of express qualifications within the section, where relevant and known, such factors be taken into account. (The section also refers to "any other objective or subjective factors that affect the relative seriousness of the offence", but I have mentioned these.) In the circumstances here, the only aggravating factor of relevance is that Ms Hicks, because of her occupation, should be regarded as vulnerable. 38However, there are a number of potentially mitigating factors to which I should direct attention. Summarised, they are whether the Prisoner is unlikely to re-offend, whether he has good prospects of rehabilitation and whether he has shown, in one or other of ways specified, remorse. 39There is no positive evidence in the Prisoner's favour in respect of any of these matters. The lack of normal or rational motive I have found argues against a conclusion that he is unlikely to re-offend and the conclusion I have reached as to the motivation he did have argues in favour of the view that he is in fact likely to do so. These matters lead to a similar adverse result on the topic of rehabilitation. 40The Prisoner's subsequent murder of Ms Harty, who the evidence indicates was most unlikely to have had a vehicle, leads to the conclusion that he was so untroubled by what he had done to Ms Hicks that he engineered a similar situation to arise - victim and offender in a relatively lonely area, intercourse, and him armed with a firearm. The conclusion that he had no remorse at killing Ms Hicks is unavoidable. 41In dealing with these matters - unlikelihood of re-offending, rehabilitation and remorse - I have expressed myself without regard to the fact that, as they are matters of mitigation, the onus of establishing them lies on the Prisoner. He has failed to discharge that onus. 42Before I proceed further, I should acknowledge that there was tendered during the sentence proceedings a Victim Impact Statement of Barbara Hicks, Ms Donna Hicks' mother and grandmother of Ms Hicks' three children. That statement, as do others like it, serves to bring home the loss and suffering which those close to victims of violent offences suffer. That said, I must approach the statement as dictated by R v Previtera (1997) 94 A Crim R 76. 43Against the conclusions at which I have arrived, I turn to the question of the sentence to be imposed. In some respects there was nothing particularly remarkable about the murder of Ms Hicks. There was an intention to kill but many murders are committed in that situation. There was no more violence than commonly associated with murder by shooting. The victim was not someone whose murder was calculated to impose any special harm on the community, such as those persons whose death may attract a standard non-parole period of 25 years. I could not be satisfied beyond reasonable doubt that the killing was premeditated. 44On the other hand, the circumstances bespeak a cold-blooded execution and this of a woman with whom the Prisoner had just had intercourse. They demonstrate, particularly when combined with the circumstances of the death of Ms Harty, a complete - I emphasise that word - lack of humanity. That conclusion is reinforced if regard is had to the shooting of Sergeant Silk but I do not need to rely on that to reach the conclusion just expressed. 45The lack of any normal or rational motive is also a feature that distinguishes the Prisoner's crime from nearly all other instances of murder. So does my conclusion that the murder of Ms Hicks was carried out as an exercise of power or for some thrill or satisfaction derived from the act or perhaps some combination of these factors. So far as the objective circumstances of the offence are concerned, there are no mitigating factors. 46The Prisoner's actions lead inescapably to the conclusion that he is, and will remain, a danger to the community. Its only protection is to have him locked up for the rest of his life. There is no reasonable prospect of the Prisoner's rehabilitation. 47That said, in Veen v R (No 2) [1987-1988] 164 CLR 465 at 473 the High Court laid down that while the protection of society is a material factor in fixing an appropriate sentence, that object cannot justify the imposition of a sentence beyond what is appropriate to a crime. One might wonder whether the express reference in s 3 of the Crimes (Sentencing Procedure) Act to protecting the community from the offender as one identified purpose of sentencing provides grounds for thinking that what the High Court said is no longer law but the matter is not so clear that, sitting as a single judge, I should so decide. Accordingly, I proceed on the basis of what the High Court has said. 48Veen v R (No 2) makes clear that a sentence must be proportional to the gravity of an offence, the maximum sentence prescribed being reserved for offences falling within a category of worst cases. Of course, subjective considerations may operate to effect some amelioration of this. 49So where does the Prisoner's offence lie? Despite the features of the murder of Ms Hicks that are common to many murders, do the other matters to which I have referred raise his offence into a worst case category? Is the inhumanity and cold bloodedness of the Prisoner's actions done, not for any rational reason but, as I have found, as an exercise of power or for some thrill or satisfaction derived from the act or some combination of these factors sufficient to do so? 50These last two questions must be answered in the affirmative. 51I acknowledge that there must be an element of the subjective in that decision. However, at least arguing in favour of it are those cases, eg, R v Coulter [2005] NSWSC 101 where a similar conclusion has been reached when a significant factor leading to the conclusion would seem to have been the treatment of a victim's body after death. By definition, that treatment was not experienced by the victim. Its occurrence was not likely to lead to much repetition of such conduct by others. Rather, did the harm in such treatment lie in the departures from what are accepted to be proper standards of humanity, departures which were calculated to result in substantial weight being given to considerations of punishment and retribution. 52Returning to the circumstances here, there is nothing in the circumstances of the offence or the Prisoner that argues for a lesser rather than a greater penalty other than that his conduct could have been worse. However, as Veen v R (No 2) makes clear, that is not enough. Ingenuity can always conjure up a case of greater heinousness. 53While recognising the criticisms that have been made of life sentences, I am nevertheless satisfied that that is the only appropriate sentence in this case. 54I sentence you, Bendali Michael Debs, to imprisonment for life, your sentence to commence on 12 December 2011. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2012