DPP v Debs & Roberts [2003] VSC 380

Supreme Court of Victoria|2003-09-04|Before: CUMMINS J

CRIMINAL LAW AND PROCEDURE - Murder - Convictions - Application pursuant to s 32(1) Confiscation Act 1997 for forfeiture of motor vehicle - Considerations applicable - Application granted.

1 Before the Court is an application pursuant to s.32(1) for the forfeiture of a Hyundai Excel motor vehicle, registered number OJI-862. In fact the motor vehicle is the property of Ms Nicole Debs, the older daughter of the first accused, Mr Debs, and is not the property of either accused.

2 The Confiscation Act 1997 makes provision for the forfeiture of such an item not owned by an accused person in certain circumstances. By s.33(1) Confiscation Act 1997 is provided:

"... if the Court is satisfied that the claimed property is tainted property in relation to the offence, the Court may order the property be forfeited to the Minister."

Tainted property is defined under s.3 of that Act as "property that was used .... in connection with the commission of the offence"; in this case, the two offences of the murder of the two police officers, Sergeant Gary Silk and Senior Constable Rodney Miller, on Cochranes Road, Moorabbin on 16 August 1998. Under s.33(4) I am empowered, subject to the rules of Court, to take into account any material I think fit, including evidence in relation to the proceedings, which of course, were the two murder charges. Under s.33(5) I may have regard to the use that is ordinarily made, or had been intended to be made, of the property, any hardship that may reasonably be likely to be caused to any person by the order, and the claim of any person to an interest in the property.

3 Ms Nicole Debs has not appeared before the Court on any of the occasions, including today, to propound any reason against the making of the Order. I can understand why she might not have been here initially, but she also has not been here since.

4 On 31 December 2002, each accused was found guilty by a jury of the murders at Moorabbin on 16 August 1998 of Sergeant Gary Silk and Senior Constable Rodney Miller.

5 On 24 February 2003, I sentenced each accused to life imprisonment on each count of murder. In the case of Mr Debs, I did not set any minimum term of imprisonment before eligibility for parole. In the case of Mr Roberts, I ordered that he serve a minimum of 35 years' imprisonment before being eligible for parole. Pleas on behalf of each accused had been heard by me on 17 February 2003. On that day, certain formal applications were made by Mr Rapke on behalf of the Director of Public Prosecutions. One was that the forensic samples taken in relation to each accused be retained. One was for the forfeiture of certain firearms and other items of Mr Debs, hidden under his mother's house in New South Wales. And one was, the relevant one for today, for forfeiture in relation to the Hyundai. On the day of the sentence, 24 February 2003, as well as sentencing each accused I ordered, pursuant to s.464ZF(b) Crimes Act 1958, that the forensic samples of each accused and any related material be retained; and second, in relation to Mr Debs, pursuant to s.151(1)(b)(ii) Firearms Act 1996, that the firearms and other items of his below his mother's house in New South Wales be forfeited. I stood over the application for the forfeiture of the Hyundai. That was done for two reasons. First, it was in fact the day of the sentence of Mr Debs and Mr Roberts and I thought it was unfair on them, on that day, to be going ahead with the Hyundai application; and secondly, as I have just said, I could understand why Nicole Debs was not present in relation to the forfeiture application of this Hyundai on the day of the sentence of her father. So I stood the matter down for those reasons of fairness.

6 The matter of forfeiture was ultimately to be heard last Friday. Mr Debs and Mr Roberts were not, at that time, represented by any lawyers, and being in custody they appeared on video link. I considered that as they were not represented by lawyers and as they had appeals pending it was fair and proper that I did not hear them in person in case something was said by either of them which was inappropriate and which a lawyer would not have said. So I adjourned the matter over to today and I have now the benefit of the appearance of Mr De Young to assist the Court in relation to Mr Debs and the benefit of the appearance of Ms Altman to assist the Court in relation to Mr Roberts.

7 The two crimes of murder of which each accused was convicted are forfeiture offences because a forfeiture offence is defined by s.3 Confiscation Act 1997 to be an offence in schedule 1 and the very first item of schedule 1 of the Act is an indictable offence against the law of Victoria. Section 3 defines tainted property as "property that was used ... in connection with the commission of the offence", being the two offences of murder, which this vehicle was.

8 No claim has been made by Ms Debs to me as to her interest in the property but I consider the fact that she has the ownership of the property as part of my reasoning process in deciding whether or not to grant this order for forfeiture of her vehicle. She was not of course present at the murders of the two officers. I take those matters into account from her point of view.

9 Under s.33 is provided, as I have recited, that the Court may order that the property be forfeited and the usual discretionary considerations which guide the Court in such matters apply here, including the three matters that I have recited, being subparagraphs (a), (b) and (c) of sub-s.(5) of s.33, and which I take into account. The purpose of forfeiture provision is not to be oppressive or unfair upon persons affected but rather to enable proper and legitimate corollaries of serious convictions to take effect.

10 Looking at the relevant discretionary criteria, I take into account first that the vehicle was directly and intimately connected with the murders of the two police officers. It was also repeatedly used in serious and continual criminal activity against decent citizens before the murders in the series of the Hamada armed robberies. And after the two murders the vehicle was the subject of much deceit and manipulation by the two accused.

11 In all the circumstances, looking at the matter holistically, I consider that it is just and proper to grant the order sought. I also consider it would offend the conscience of the community to refuse this application. I am satisfied positively for the reasons I have stated that I ought to grant it, and accordingly I grant the order sought.

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Judgment (15 paragraphs)

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