DPP v Debs & Roberts [2003] VSC 30

Supreme Court of Victoria|2003-02-24|Before: Cummins J

CRIMINAL LAW - sentencing - murder - murders of police officers in execution of duty - life imprisonment.

1 On 11 March 1985, Gary Michael Silk, then aged 21 years, took an oath as a member of the Police Force of Victoria to well and truly serve the community without favour or affection, malice or ill-will, to see and cause the peace to be kept and observed, to prevent to the best of his power all offences against the peace, and to discharge to the best of his skill and knowledge all the duties legally imposed upon him, faithfully and according to law. For thirteen years that he did and did in full measure. On 16 August 1998, on the southern side of Cochranes Road, Moorabbin, while loyally performing the duties he as a young man had sworn to uphold, he was murdered - grievously shot first by you, Mr Roberts, and then executed by you, Mr Debs.

2 On 14 August 1991, Rodney James Miller, then aged 28 years, on his graduation day also took the oath as a member of the Police Force of Victoria to serve and protect the people of Victoria. That he did, and did in full measure. Friday 14 August 1998 was the eighth anniversary of his graduation as a member of the Police Force. Two days later, he lay dead at the Monash Medical Centre, murdered by you both - shot by you, Mr Debs, on Cochranes Road, then and there aided by you, Mr Roberts.

3 Each of you committed the murders in order to avoid apprehension for serious criminal conduct.

4 The proper sentence for the murder of a police officer in the execution of the officer's duty, in order to escape apprehension for serious criminal conduct, is life imprisonment. Upholding the law requires it. Protection of the police, and protection of the community they serve, require it.

5 The first Chief Justice of Australia, Sir Samuel Griffith, perceptively observed in 1906:

"When a man does an extraordinary or wicked thing, there is probably some cause inducing or impelling him to do so, and the more heinous the act, the more important becomes the question of motive."[2]

In your cases, the motive each of you had on the night you murdered the two officers, was a callous and self-centred one - to escape apprehension at any cost. That motive was not restrained by a moral sense in either of you, but rather was emancipated by a contempt you both held for police and for the law. Your callousness, selfcentredness and contempt was not confined to the lawful organs of the State but also afflicted ordinary citizens, whom you had terrorised over the preceding five months in a series of armed robberies. Forty five of those citizens gave evidence before the jury. They were decent, brave citizens. You thought you could plunder them with impunity. You were wrong.

6 In fulfilment of their oath to serve and protect the public, police command set up a special operation, codenamed Hamada, to apprehend you. The targets of your criminality were evident - premises with minimal security, ready cash, and ordinary citizens. The area of your criminal operations was the eastern and south-eastern suburbs of Melbourne. The pattern of your criminality soon revealed itself - robberies with violence, committed by two armed and disguised men, one older and authoritative, one younger, compliant and willing, and in which the victims were left bound hand and foot with tape. The first robbery was at Bevic's Auto Parts, Carrum Downs, on 9 March 1998. The final, tenth, robbery was at the Green Papaya Restaurant, Surrey Hills, on 18 July 1998. The eleventh was going to be the Silky Emperor Restaurant, Moorabbin, late on Saturday night, 15 August 1998. Just after midnight, at the stroke of closing time as was your pattern, you together drove into the carpark at the rear of the Silky Emperor Restaurant. You did not leave your car and enter the premises as you had planned, because you spied the deceased officers' unmarked police car parked in the shadows in the carpark. You had driven into a police stakeout. You, Mr Debs, the driver, quietly drove your car out of the carpark and slowly drove north in Warrigal Road and west into Cochranes Road, hoping not to attract attention. But Sergeant Silk and Senior Constable Miller, in their police vehicle, followed you. In Cochranes Road, Senior Constable Miller operated the portable blue flashing light and your vehicle pulled over. The two officers alighted and approached your vehicle. You, Mr Debs, alighted from your vehicle and stood at the driver's door. You hoped by coolness and cunning to bluff the police. You, Mr Roberts, remained low in the front passenger seat. Another unmarked police vehicle, driven by Senior Constable Bendeich and in which Senior Constable Sherren was observer and which was part of the stakeout, drove past and its occupants observed that things were quiet. In order not to reveal their identity in the ongoing operation, those officers proceeded and parked off the scene but kept it under observation. Sergeant Silk commenced to speak with you, Mr Debs. At that moment, and for the first time, you, Mr Roberts, were observed in the passenger seat. Thus, for the first time, it revealed itself that the Hamada pattern might be fulfilled, because there were two men, not one as the officers had first observed. Sergeant Silk moved to the passenger side of your vehicle and called you Mr Roberts out of the vehicle. Senior Constable Miller commenced to move back to the police vehicle to radio in particulars. Sergeant Silk had out his notebook and pen. He called you, Mr Roberts, onto the grassy verge on the south side of Cochranes Road, following good police procedure, so that your answers could not be heard by the driver, Mr Debs. And thus it was that you both had reached a crossroads. You knew that the time for stealth and cunning and bluff was over. You knew that imminently the two officers would search you and your vehicle, and would find the apparatus of the Hamada robbers: handguns, masks or means of disguise, and tape for binding your victims. You had a choice: apprehension or murder. You chose murder.

7 First you, Mr Roberts, without any warning, with your .38 calibre handgun grievously shot Sergeant Silk at close range in the chest. You intended to kill him. As the prosecutor has said, Sergeant Silk had nothing more lethal in his hands than a pen. His police revolver was in its holster and the covering flap of the holster was buttoned down. He fell to the ground where you shot him. Senior Constable Miller, who was then between the two vehicles, drew his police revolver and shot at you, Mr Roberts, in defence of Sergeant Silk. You, Mr Debs, immediately fired at Senior Constable Miller through the hatch window of your vehicle which you had reentered to obtain your .357 magnum handgun. Your fired repeatedly 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. Then you both returned to your car and drove away. But not in panic. With deliberation. Slowly, so as not to attract attention.

8 Sergeant Silk was dead. Senior Constable Miller, dying, bravely gave a vital description of the killers and their vehicle to police who urgently attended him. He was taken by ambulance to the Monash Medical Centre, where he died at 3.35 am. The two officers who had parked off the scene, Senior Constables Sherren and Bendeich, gave a description of you Mr Debs and of your vehicle. But there was a silent witness you left behind, a witness which was to bring both of you undone. That silent witness was the glass from the hatch window of your car, blown out by your .357 magnum, Mr Debs. By a long process of applied intelligence, hard work and integrity, the police, led by Detective Superintendent Sheridan, ultimately traced the shattered glass on Cochranes Road right to your door.

9 For the pattern of the Hamada robberies was not only of two violent men, disguised and armed, who terrorised their victims and robbed them, but it was one of the two men being able to decamp. This was achieved by two means. One was taping the victims so that the robbers could not immediately be pursued and identified. The other was a getaway car. But not a stolen car, because you were bent on continuing your path of violence into the future. You needed a vehicle which you could repeatedly use for repeated robberies. And so you used a car from the family - a Hyundai Excel 3 door hatch, reg no. OJI 862, owned by Nicole Debs, who was your daughter, Mr Debs, and who was your partner, Mr Roberts. That was the vehicle you again were using that fateful night. It was that rear window you shot out with your .357 magnum, Mr Debs. And that was the silent witness you left behind which ultimately unmasked you both.

10 There were two further witnesses who led to your unravelling. They were from the first two Hamada robberies; significantly the first two, because your masking technique developed over the five months of the robberies. In the first robbery, at Bevic's Auto Parts on 9 March 1998, a victim, Ms T. Chadwick, observed you, Mr Debs, and thirty months later, on 21 September 2000, she identified you on a video. In the second robbery, at Sports Mart in Noble Park on 29 March 1998, a victim, Ms O. Coffman, observed you, Mr Roberts, and nineteen months later, on 27 October 1999, she identified you on a photoboard. Both women gave evidence at the trial. You had the misfortune, but the administration of justice had the good fortune, that both women were highly impressive witnesses and people. Indeed, Ms Coffman was the best identification witness I have seen.

11 The prosecution proved beyond reasonable doubt that you both committed the Hamada robberies. You are not to be sentenced for those robberies and you are not. I have outlined them only to trace the pathway which led you to Cochranes Road and to reveal why there on that fateful night you had reached the crossroads.

12 A specialist task force, codenamed Lorimer, was immediately established to investigate the killings. It was commanded by Detective Superintendent Sheridan, with Detective Inspector Graeme Collins second in command. Detective Superintendent Sheridan from the outset determined that the Task Force would operate upon proper organisational criteria and independently of all other police squads and officers. Seven detective sergeants were selected for discrete areas of investigation, each with a defined team of officers. Descriptions of the killers and their vehicle had been made by the dying Senior Constable Miller and by Senior Constables Bendeich and Sherren. Those descriptions, combined with preliminary scientific examination of the shattered glass on Cochranes Road, established that the killers' vehicle was a dark coloured Hyundai Excel hatch, 3 or 5 door, and that the shattered glass was from its rear window. Substantial investigation followed. Ballistics and firearm examination was undertaken (you, Mr Debs, revealing in later electronic surveillance material that you had disposed of the guns used in the killings: recording B14, p.32 on 11 February 2000). A mass of information was analysed. Numerous persons were investigated. A rigorous analysis of the identity of the killers' vehicle was undertaken. Hyundai Australia and Hyundai Korea were most cooperative throughout the enquiry. The vehicle trail commenced with a review of Hyundai and motor registration records. That narrowed the field to 25,755 vehicles. By progressive analysis based upon the shattered glass on Cochranes Road, that number was reduced to approximately 19,000 (by elimination of vehicles manufactured after April 1997 by screen date colour), then to 9000 (by factoring in a manufacturing change in the master silk screen), and then to 2,808 (by factoring in changes in the H terminal symbol). The final stage was the physical checking in Victoria, interstate and in the United Kingdom of those remaining vehicles (that stage codenamed Operation High) by VIN number, build plate and the other criteria I have stated. In the end only one vehicle could not be eliminated as the killers' vehicle - yours. Your vehicle had come off the production line at the Hyundai Motor Company manufacturing plant at Ulsan, South Korea at 9.25 am on 13 March 1997, fitted with a rear window manufactured by the Keumkang Chemical Company at Yeoju, South Korea, in February 1997.

13 At the outset of the investigation, Hyundai suppliers and all glass outlets were contacted by police and asked to contact the Task Force if a replacement Hyundai Excel tailgate window was sought by any person. Numerous reports of replacement windows were received. On 26 August 1998 you, Mr Roberts with Ms Nicole Debs, went to Grant Walker Motors of Bayswater and purchased a Hyundai replacement rear window. That was advised to the Task Force. Later you both were questioned by police about how the rear window had been broken and you lied to the police, you Mr Debs giving a detailed and false story about breaking it at work, and you Mr Roberts feigning ignorance, which became your characteristic mode of address to investigating police. Along with many other vehicles, your Hyundai was, on 21 December 1998, examined at the Victorian Forensic Science Centre laboratories at Macleod. Some fragments of glass (forensic item 171) were extracted and examined. Unfortunately the sample range examined was too small and the vehicle was cleared and returned to you. Investigations over a broad area continued. Then in August 1999 examination of telephone records of yours Mr Debs indicated a criminal link which was promptly pursued. Accordingly, all the fragments extracted from your vehicle in December 1998 (forensic item 171) were, at the Victorian Forensic Science Centre at Macleod, subjected to examination by refractive index analysis and microscopic examination of the H terminal symbol. A match was discovered with the glass from Cochranes Road. As a consequence, in September 1999 a specific operation was established further to investigate your activities on the fateful night, Mr Debs. In October, Ms Coffman identified you, Mr Roberts, as a Hamada robber. In November, lawful electronic surveillance, by means of listening device and telephone intercept, commenced of you both.

14 The electronic surveillance further revealed your guilt. In your conversations you each exhibited a constant and obsessive interest in the police investigation of the killings and opportunistic responses to any setback to or diversion of that investigation. On 15 February 2000, in listening device recording B24 (pp.86-90) you, Mr Debs, gave a chilling account of the killings of the two deceased officers. On 7 July 2000, in listening device recording B126 (p.211) in which you both participated, you, Mr Roberts, paralleled your shooting of Sergeant Silk with extraordinary callousness. First on 11 February 2000, in recording B14 you, Mr Debs, contemplated killing further police officers to divert and confuse the investigation - in your words, "to make the investigation to spread stupidly" (p.30). You returned to this theme many times. Your tone was of dark malevolence. There is one thing wholly absent from the utterances of you both, in those numerous recordings. The thing that is utterly absent is remorse.

15 Forensic and scientific provision to the investigation was made independently by the Victorian Forensic and Scientific Centre, situated at Forensic Drive, Macleod. The VFSC investigation was headed by the scientist, Mr Peter Ross. A lengthy and painstaking analytical programme was followed. Two critical advances occurred. As I have said, in August 1999 by refractive index analysis and by microscopic examination of the H terminal symbol, the glass at Cochranes Road was matched with the glass from your Hyundai Excel, OJI 862. And following the arrests of you both on 25 July 2000 when the vehicle was impounded, under minute examination, Mr Ross discovered bullet damage, although disguised, to the C pillar of the frame of the hatch of that vehicle, and embedded in it, the presence of lead, antimony and barium - the telltale fingerprint of a fired bullet.

16 At trial, an attempt was made by you, Mr Debs, to escape the inevitable consequence of this scientific analysis, by alleging a criminal conspiracy between the scientist, Mr Ross and Detective Inspector Collins, a senior police officer and second in charge of the Lorimer Task Force, to plant or falsify the evidence. This was a wholly fictitious allegation. You are not to be punished for making it and you are not. However it demonstrated three things: that you had no defence to these charges, that you would do anything to escape your responsibility, and that you have no remorse. There was not a shred of truth in the allegation. Mr Ross, Detective Inspector Collins, and Detective Senior Constable Tyler - whom you sought to suck into this allegation by a side wind - acted properly throughout. Your false allegation reflects not on them but on you. Detective Senior Constable Tyler labelled the allegation "completely false". Detective Inspector Collins labelled the allegation "an absurdity". It was. Perhaps the last word should be that of Mr Peter Ross, an independent and honourable scientist. When without any notice your allegation, Mr Debs, was put to him by your counsel, Mr Ross replied:

"I have been working as a forensic officer for 25 years. I am known amongst the courts as a highly moral and ethical worker... Everything that I have found was found was there, in fact, is there. Everything can be tested. You can find the gunshot residue, the lead on that piece of tape. You can see. It will still be there. It is embedded in there. You will find the gunshot residue that I got from the glass on the stub I took from the glass. Anyone who repeats the work on the symbol will find exactly the same result. It was there. Live with it."

17 I commend the many police officers, commanded by Detective Superintendent Sheridan, who conducted the investigation into the murders of Sergeant Silk and Senior Constable Miller, entitled the Lorimer Task Force. It was a long and difficult investigation. There are no short cuts; nor should there be. The investigation had its frustrations and setbacks, as many investigations do. But Detective Superintendent Sheridan and those under him held the line. They persevered, and ultimately they were rewarded. The investigation was characterised by applied intelligence, hard work and integrity. It demonstrates yet again the value of those qualities. That is the way to solve crime.

18 You were both arrested on 25 July 2000. You both lied to investigating police. You, Mr Debs, were on that day charged with the murders of Sergeant Silk and of Senior Constable Miller. You, Mr Roberts, were released. Despite your mother Mrs Roberts having attended the Homicide Squad office on 25 July 2000 and asking you to tell the police if there was anything to tell, and despite Mr Debs being in custody for three weeks, when you were rearrested on 15 August 2000 you continued to lie. On that day you were charged with the murders of Sergeant Silk and of Senior Constable Miller. After a four and a half month trial, on 31 December 2002 the jury convicted each of you of the murders of the two officers.

19 The jury in this case was empanelled on 14 August 2002. The jurors were finally discharged upon delivering their verdicts on 31 December 2002. For 87 days at selfless personal inconvenience they attended, listened, concentrated and considered. Through Melbourne's winter and spring and into summer the fifteen jurors came, and only two days were lost, through illness. I pay tribute to their responsibility. Time and again juries demonstrate how responsible and selfless citizens are in the administration of justice. Juries in their application to their task demonstrate that the combined understanding and experience of persons is greater, and more democratic, than of one. The jury in this case demonstrated those qualities and values in full. I commend all its fifteen members.

20 Behind every murder is personal tragedy. Last Monday in court I stated that the victim impact statements exhibited in this case were moving and impressive documents. So they are. The statements of Mrs Silk, devoted mother of Sergeant Silk, and of Mrs Miller, loving wife of Senior Constable Miller, are deeply touching. Those two fine women and their families have loyally been present in court throughout these long and painful proceedings. They and their families have been deeply afflicted by the loss of these fine men, their loved ones. I commend Mrs Silk, Mrs Miller and their families for their loyalty and their dignity.

21 I said earlier that 14 August 1998 was the seventh anniversary of the graduation as a member of the Police Force of Senior Constable Miller. Seven weeks before 14 August 1998, a son had been born to Rodney and Carmel Miller - their first child. On the night of Friday 14 August 1998 together they sat down and wrote to their many friends thanking them for welcoming their son into their lives. When their family and friends received the joint letters on Monday 17 August, Senior Constable Miller was dead.

22 Many members of the Victoria Police also have been afflicted by the murders of the two officers - those who attended the scene, those who worked long and painstakingly on the investigation, those who have been in court as witnesses and observers, the many friends of the deceased officers, and members throughout the force. The murders also bring home to them the responsibilities and dangers of being a police officer - of day after day, year after year, of being in the line of fire. To protect and serve the public.

23 Finally, I turn to imposing sentence upon each of you.

24 No distinction in liability for your murderous conduct at Cochranes Road should be made between you. You acted together.

25 You, Mr Debs, are now 49 years of age, having been born on 18 July 1953. You were 45 years of age at the time of the killings, and had just turned 48 when you were arrested on 25 July 2000. You have been in custody since that time, a period of 945 days. You are married and have five adult children. Although your counsel, doubtless on your instructions, did not particularise it, you had an unstable and I am sure a difficult childhood. You are a tiler by lawful occupation. You have some prior convictions, with two groups (8 December 1988 and 12 November 1996) involving limited violence. As I have said, you are not here to be sentenced for the Hamada robberies which you in fact committed, because they are not on the presentment and you have not been convicted of them. Your counsel rightly relied upon the limited number and type of your prior convictions. Your counsel realistically did not submit the converse, namely that you were of positive law abiding character. He rightly relied upon the burden of the nature and length of the proceedings from arrest to sentence, including not knowing your fate until today. He rightly relied upon your good conduct in court and your good and positive conduct in custody awaiting trial, including fulfilling the courses evidenced by the certificates (exhibit 1D) tendered on your behalf on the plea. I take all those matters into account.

26 You, Mr Debs, do not suffer any psychiatric illness or psychological disorder. You are of ordinary intelligence at best, but are of highly dangerous predisposition. Your conduct, and the electronic surveillance, conclusively demonstrates your lack of remorse for your murderous actions at Cochranes Road. You are not to be punished for your lack of remorse. Its relevance is that remorse is the harbinger of rehabilitation. There is no real prospect of rehabilitation in you, so far as one can tell in your fiftieth year.

27 Of the manifold principles of sentencing, the first, condemnation, applies in full measure to your murderous conduct. The Court, and the community, condemn your conduct. Next, you are to be punished in full measure for your conduct. Next, general deterrence is of especial application to your conduct. Police daily live in the line of fire. Their sworn duty is to protect the public. They need the full protection of the law, so that in turn the public has the full protection of the law. Next, specific deterrence is of especial application to you. You are of highly dangerous predisposition and you have learnt nothing and changed not at all. Unfortunately, reformation - always important to pursue in sentencing - in your case is so remote and marginal that it is of no counterweight to the other principles of sentencing I have stated.

28 I said at the outset (paragraph 4) that the proper sentence for the murder of a police officer in the execution of the officer's duty, in order to escape apprehension for serious criminal conduct, is life imprisonment.

29 That is because the crime of murdering a police officer in the lawful execution of the officer's duty, in order to avoid apprehension for serious criminal conduct, is in the worst category of murder. A safe and functioning society depends upon its police force. An attack upon a serving police officer is an attack upon society itself. The nature and gravity of your offences are in that worst category. Your conduct was deliberate, calculated and unprovoked.

30 The question arises as to whether a minimum term should be set. I bear in mind that which was cited with apparent approval by Dawson, Toohey and Gaudron JJ in Bugmy v R[3] from Deakin v R[4] (in turn adopting that which was said in Power v R[5]) as to minimum terms:

"The intention of the legislature in providing for the fixing of a minimum term is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, where appropriate, once a prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of the offence."

I bear in mind also what Jenkinson J said in Morgan v Morgan[6] where his Honour said:

"The minimum term is the period before the expiration of which release of that offender would in the estimation of the sentencing Judge be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify."

31 As I have said, these two murders are in the worst category of murder. The Court has often said it is profitless to seek to rank individual murders within that worst category[7]; and to do so also would be further distressing to the victims of such murders. In the worst category of murder it is appropriate and necessary to sentence to life imprisonment.[8]

32 Section 11(1) Sentencing Act 1991 provides that a minimum term before eligibility for parole must be set unless the Court considers that the nature of the offence or the past history of the offender make the fixing of a minimum term inappropriate. Mr Debs, the nature and gravity of your two offences and your past history make the fixing of a minimum term entirely inappropriate. I refuse to set a minimum term.

33 Mr Debs, for the murder of Sergeant Silk I sentence you to life imprisonment. For the murder of Senior Constable Miller I sentence you to life imprisonment. No minimum term of imprisonment before eligibility for parole is set. You are sentenced to be imprisoned for the remainder of your life. Life means life.

34 Mr Roberts, you are now 22 years of age, having been born on 23 August 1980. You were one week short of 18 years of age at the time of the killings, and were eight days short of 20 years at the time of your final arrest. You were brought up in a family environment. In 1990 your father died suddenly when you were but a child. You continued to live with your mother and younger brother at Cranbourne until in 2000 you commenced living nearby with Ms Nicole Debs, Mr Debs' eldest daughter. You were educated to Year 10 level and thereafter worked. You suffer no psychiatric illness or psychological disorder. You are an intelligent person, just above average by psychometric testing (full scale of 105 on WAIS: Mr B. Healey's psychological report of 15 February 2003) and by my observation well above average.

35 Your counsel rightly and strongly relied upon your young age, at the time of the killings and still. Plainly, your young age is a central consideration on sentence. Your counsel rightly relied upon your lack of any convictions. Your counsel rightly relied upon your good conduct in court and your positive conduct in custody awaiting trial, and the length and burden of your incarceration and of not knowing your fate until today. In custody you have been appointed a peer educator, a responsible position and one which shows the custodial authorities have confidence in you. You have completed a number of improvement courses. A youth development worker gave positive evidence on your behalf.

36 I take all those matters into account, both generally and also particularly on the question of rehabilitation.

37 Although you have no convictions, and are not to be sentenced for the Hamada robberies you in fact committed because they are not on the presentment and you have not been convicted of them, those robberies involve that the absence of convictions, while important as the absence of a negative, does not translate unequivocally into the holistic positive of antecedent good character.

38 By your instructions, your counsel did not seek to cast blame or responsibility for your presence and conduct at Cochranes Road upon Mr Debs. However, I must and do consider the question of the influence upon you, in your presence and conduct at Cochranes Road, of the much older and more worldly Mr Debs, to whom you also were attached because of your genuine affection for his daughter Nicole. Probably Mr Debs recruited you at the outset of the Hamada robberies, and clearly in them he was the leader and was more aggressive than you. But you kept coming back for more, knowing Mr Debs' conduct, and knowing you were an indispensable part of the Hamada operation. So the differential between you both in Hamada is of some but limited utility in your favour. As for your presence and conduct at Cochranes Road, I am affirmatively satisfied that you were there, and acted murderously there, fully by your own free choice and decision. We all know young people who act foolishly through immaturity or through misguided thrall of an older more worldly person or through both. You were not such a youth at Cochranes Road. You were on the threshold of adulthood. You were more mature, worldly and hardened than your years. You were there after ten armed robberies. You were armed, yet again, with a lethal, loaded firearm. You were not caught by surprise. You had time to think. You knew exactly what you were doing. You got out of the car with a loaded gun. You fired the first shot.

39 On the electronic surveillance material, you showed no remorse.

40 In July 2000, when Mr Debs was in custody and you were not, and after your mother had earnestly asked you to tell the truth if there was anything to tell, you independently continued falsely to deny your involvement in the killings.

41 I conclude that you are fully responsible for your presence and murderous actions at Cochranes Road.

42 You are not to be punished for the material revealed by the electronic surveillance. Its relevance is that it conclusively demonstrates your lack of remorse for your murderous actions at Cochranes Road. You have no remorse for your actions. None.

43 You also are not to be punished for your lack of remorse. Its relevance is that remorse is the harbinger of rehabilitation. The only harbinger of rehabilitation in you is your age, combined with your positive conduct thus far in custody. And, unlike Mr Debs, you were not contemplating over time further killing to divert the police investigation.

44 For the reasons I stated in sentencing Mr Debs (and which I shall not here repeat) your offences are in the worst category of murder.

45 Counsel have referred to various authorities as to the sentencing of young persons. Some were of persons who had pleaded guilty: R v Denyer[9] and R v Beckett[10] and thus are significantly different from your case and one, R v P.D.J.[11] was of a person significantly younger than you.

46 And as the Court stated in DPP v S.J.K. and G.A.S.[12] as to the factors of youth and rehabilitation, "(those) factors constituted only some of a number of matters that must be taken into account and... even in the case of a young offender, there are occasions on which they must give way to the achievement of other objectives of the sentencing law" (at para.65 per curiam).

47 Despite your youth, the manifold elements of sentencing apply, Mr Roberts, and apply in full measure, to your murderous conduct. The Court, and the community, condemn your conduct. Next, you are to be punished in full measure for your conduct. You were almost 18 and acted with full knowledge and deliberation. Next, general deterrence is of especial application to your conduct, for the reasons I stated in sentencing Mr Debs. Next, specific deterrence is of real application to you. You must be deterred from further violence. Next, reformation is of significance with you. On the one hand, you have absolutely no remorse; on the other, you are young and have acted positively in custody. Your youth is of central relevance to the proper sentence to be imposed upon you, of itself, because of the matter of the extent your life expectancy at age 22, and because of chronological disparity with Mr Debs. But despite those considerations in your favour, I consider the elements of condemnation, punishment and general and special deterrence are of predominant significance in deriving the proper sentence to be imposed upon you. Conscious of its exceptional application to a young person, I conclude that the proper sentence to impose upon you, Mr Roberts, is life imprisonment.

48 For the murder of Sergeant Silk, I sentence you Mr Roberts to life imprisonment. For the murder of Senior Constable Miller, I sentence you to life imprisonment.

49 Only because of your youth do I consider that a minimum term of imprisonment should be set. I do consider a minimum term should be set in your case. Such a term should be substantial, given the factors I have stated. However, it also should give you an opportunity upon possible release. You have served 924 days in pre-sentence custody. Pursuant to the provisions of s. 18(4) Sentencing Act 1991 I declare that period of 924 days served under the sentences I impose and I so certify. I direct that you serve, upon the sentences I have imposed upon you, a minimum term of imprisonment of 35 years before eligibility for parole.

[1] Police Regulation Act 1958 section 13 and Second Schedule.

[2] MLC Insurance Company of New York v Moss [1906] HCA 70; (1906) 4 CLR 311 at 317.

[4] [1984] HCA 31; (1984) 54 ALR 765 at 766 per curiam.

[5] [1974] HCA 26; (1974) 131 CLR 623 at 629 per Barwick CJ and Menzies, Stephen and Mason JJ.

[7] R v Dumas [1988] VicRp 8; (1988) VR 65 at 71 per curiam and other authority.

[8] R v Lowe (1997) 2 VR 465; R v Coulston (1997) 2 VR 446 and other authority.

At a glance

Court

Decision date

Before

Source

Judgment (68 paragraphs)

Parties

Cases Cited (6)