R v Debs [2007] VSC 220

Supreme Court of Victoria|2007-06-22|Before: KAYE J

CRIMINAL LAW - Sentence - Murder - Subsequent convictions for murders of two police officers - Serious offender - Sentenced to imprisonment for life - No minimum term fixed.

1 Bandali Michael Debs, you have been found guilty by the jury empanelled upon your trial in this Court of the murder of Kristy Mary Harty on 17 June 1997 at Upper Beaconsfield.

2 You are already serving two terms of life imprisonment, without a non-parole period, imposed on you by order of this Court on 24 February 2003. Although any sentence which I now impose on you will not have any practical effect on your disposition, nevertheless the process of sentencing you for the murder of Kristy Mary Harty is an important one.

3 The purposes of sentencing are not confined to questions of punishment and deterrence of you as the offender. They also serve other important purposes. They include the denunciation by this Court of your conduct, and in particular the public condemnation of the intentional taking by you of the life of Kristy Harty. In addition, the process of sentencing involves this Court imposing a just sentence for what is a very serious offence, and the vindication of the rights of the victim, and of those who are left behind to grapple with the grief and trauma which have resulted from her violent murder. Furthermore, in a case such as this the principle of general deterrence is of particular relevance.

4 The case against you was circumstantial. Accordingly, the precise circumstances in which you murdered Kristy Harty will never be known. However, the evidence which was presented at your trial, and which was obviously accepted by the jury, painted a sufficiently clear picture to enable me to make appropriate findings of fact for the purpose of sentencing you.

5 At the time of the offence you were 44 years of age. You were living in Narre Warren with your wife and your family. You were then a self employed tiler.

6 Before the day of her murder, Kristy Harty was unknown to you. She had just turned 18 years of age. When she was a young girl, her father had died in an accident. His death had a traumatic effect on her family and herself. As a result, she became a very troubled and confused young woman who, from an early age, had been significantly afflicted with psychological and emotional problems. In the days preceding her death, she told a number of people that she was in urgent need of the sum of $90 to pay off a debt. On the day of her death, she resorted to attempting to solicit sex for money from motorists on the Princes Highway, Dandenong, and on surrounding roadways, in order to be able to repay that debt. She was last seen on the Princes Highway a short distance east of Dandenong at about 4.30 pm. A short time later she attended a take away food shop in Dandenong. That was probably the last sighting of her. Another witness did give evidence that he had seen a girl answering Ms Harty's description in Belgrave at 6.30 pm. However, I doubt that that sighting occurred on the day on which Ms Harty died; rather, I consider that it must have occurred on a previous day.

7 On the next day, 18 June 1997, the body of Kristy Harty was found in bush a short distance from a track, some 180 metres west of the Upper Beaconsfield Road. She had been shot at very close range in the back of her head. Her underpants were around her ankles. Pathology tests and DNA analysis proved that she had had unprotected sexual intercourse with you in the period leading to her death. The forensic evidence showed that she had been shot with a .357 Magnum calibre revolver. Such a weapon, and ammunition similar to that with which she was killed, was subsequently connected to you.

8 It is clear that you had met Kristy Harty on the day of her death while she was soliciting sex for money on the Princes Highway. You both then travelled together to the bush track in order to have sexual intercourse, for which you were to pay Ms Harty. At that stage you were armed with a loaded .357 Magnum calibre revolver. When you had both walked to the point at which Ms Harty was killed, she produced a safe sex pack and unwrapped a condom for you to use. That condom was not used. Instead, you had unprotected sexual intercourse with her, and shot her in the back of the head at very close range while she was lying face down on the ground. You then dragged her dead body into the bushes and dumped her there.

9 You have not been charged with any offence relating to the act of sexual intercourse which you had with your victim. Therefore your sentence will not be affected by anything relating to that act. However, there are a number of particularly aggravating features concerning the circumstances in which you murdered Ms Harty. Your victim was of tender years. The age difference between you and her was exacerbated by the fact that Ms Harty was a deeply troubled young woman, a fact which would have been obvious to anyone who had even the most fleeting contact with her on that day. Many of the witnesses at your trial gave evidence as to the erratic and bizarre nature of her conduct. Anyone who had met her that day would have readily realised she was a person of low intelligence, who was acting in an unstable way, with no instinct for her own safety. Thus, I am satisfied that you well knew that your victim was particularly vulnerable and defenceless. That made her an even more easy prey for you.

10 At the point at which she was murdered, Kristy Harty was totally defenceless. She was alone and isolated on a bush track. The killing took place either at dusk or in the dark. She could not have been more vulnerable and helpless. You shot her from behind immediately after having sexual intercourse with her. Your killing of her was utterly cowardly.

11 There was no sign of any struggle or disagreement between Ms Harty and yourself before you shot her. There was no evidence at all of anything which could have given you even the slightest reason to contemplate doing her any harm, let alone brutally murdering her as you did. Your murder of Ms Harty was entirely senseless, needless and wanton. The evidence discloses beyond any doubt that this was not a case of a sexual encounter in which, in the heat of the moment, feelings or passions may have led to a spontaneous and irrational act of violence. Rather, and quite to the contrary, this was, most clearly, a callous, craven and senseless murder in cold blood of an entirely innocent, defenceless and vulnerable young woman. The evidence leads to the inevitable conclusion that you murdered Kristy Harty for no other reason than for the sheer sake of it. That factor, and the other factors to which I have already referred, make this a most serious instance of the crime of murder. Indeed, your counsel, on your plea, correctly recognised and accepted that the circumstances of the offence for which you have been convicted are extremely grave.

12 On their own, and without anything else, I would consider that the circumstances of this case make it appropriate, and indeed necessary, that I impose a sentence of life imprisonment on you for your murder of Kristy Harty. However, in addition, there are further circumstances which are relevant both to your head sentence, and also to the question whether I should fix a minimum non-parole period.

13 In December 2002, a Supreme Court jury convicted you and Jason Roberts of the murder of two police officers, Sergeant Gary Silk and Senior Constable Rodney Miller. Those murders took place on 16 August 1998, just thirteen months after you had murdered Kristy Harty. On 24 February 2003, the trial judge, Cummins J, sentenced you to two terms of life imprisonment. He declined to set a non-parole period in respect of either of those terms of imprisonment. I have had the opportunity of reading his Honour's reasons for sentence. His Honour's description of the murder by you and Roberts of the two police officers is chilling. You used a .357 Magnum calibre revolver, which is the same type of weapon you used to murder Kristy Harty. You shot both police officers at close range. At the time you shot Sergeant Silk, he had already been shot by Roberts, and was lying on the ground severely incapacitated. You then shot him twice at close range. The murder by you of those two police officers displayed the same callousness, and the same total disregard for the life of another, which characterised your murder of Kristy Harty in this case.

14 Your convictions for the murder of the two police officers are of particular significance, notwithstanding that they were subsequent to the murder for which I am to sentence you. Those convictions demonstrate most clearly that your killing of Kristy Harty was not an isolated, oneoff event. They reinforce the conclusion that you are an evil, violent and dangerous man, who places no value on the life of another. By your murder of the two police officers, you have shown that you did not have any insight into the enormity of your murder of Kristy Harty, let alone feel the faintest twinge of regret for the dreadful deed which you had done. The two sets of killings, occurring within almost 12 months of each other, make it clear that you would be a grave danger to the community if you were ever let at large. It is quite clear that there are, in my view, no prospects for your successful rehabilitation into society.

15 It was put to me on your plea that before the murder of Kristy Harty, you had not been convicted of any crime which displayed any similar level of violence. That is correct. You did have previous convictions, some for dishonesty, and two which had some elements of violence relating to them. However, those previous convictions are relatively inconsequential when compared to your criminality in this case, and your subsequent criminality. They are, however, relevant to the extent that they show that you were not a man of otherwise good character at the time you murdered Kristy Harty.

16 On your plea, Ms Spowart, who appeared on your behalf, did not make any submissions against the proposition that an appropriate head sentence for you is the imposition of a life sentence of imprisonment. As I have stated, in my view, the facts of this case, standing alone, require that I impose such a sentence. That conclusion is only reinforced by your subsequent offending. However, Ms Spowart did submit that I should fix a minimum non-parole period, which would serve the purpose of giving you the opportunity, ultimately, to rehabilitate yourself into society.

17 The authorities point out that the imposition of a sentence of life imprisonment without a non-parole period is an extreme penalty, which should only be imposed in the most serious of cases. Such cases would, of necessity, only be the exception to the rule. However, in this case I am well satisfied that there is no prospect for your rehabilitation. You are beyond redemption. The enormity of your murderous conduct is such that you have forfeited the right ever to be at large in the community. It has been correctly acknowledged that you should be characterised as a serious violent offender under Part 2A of the Sentencing Act 1991. There is, I consider, a substantial need to protect the community from you, not only in the medium term, but for the rest of your life. Notwithstanding the fact that your family has stood by you, and the fact that you had been engaged in regular employment until your offending, those factors are insufficient to give me any reason to hope or expect that at any time in the future you could be safely rehabilitated into society.

18 It is important that the sentence which I impose on you should be a particularly stern sentence and should reflect the gravity of your crime. As I have already stated, the concepts of general deterrence, and the appropriate condemnation by this Court of your offending, are of significance in a case like this. Your behaviour offends the basic norms of a civilised society. You have no respect for the right to life of others. All of those matters combine to make it inappropriate that I set a non-parole period for the offence for which you have been convicted.

19 Before I pronounce formal sentence on you, it is relevant to note two other matters. Neither of them affects the sentence which I am to pass on you. First, I have read the victim impact statements of Ms Harty's mother, and her two siblings, which were tendered to me on the plea. Those statements speak of the traumatic and shattering effect which the brutal murder of Kristy Harty has had on her remaining family. Kristy Harty was the primary victim of your evil murderous conduct. However, it must not be forgotten that there are other victims who remain with us, still grieving, and still unable to come to terms with their appalling loss. Their suffering is a direct consequence of the murder by you of their loved one.

20 Secondly, during your trial, through your counsel, you launched an entirely unsubstantiated and groundless attack on the credibility and integrity of the police who were responsible for investigating your crime. I observe that you did not make yourself available for cross-examination by giving evidence at your trial. It is important, in these sentencing remarks, that I record that there was not the slightest basis for that attack upon the integrity and competence of the investigating police. I consider that the investigation of this case was thoroughly professional, competent and proper. It is right that a sentencing judge in the position of myself should make these remarks in order to vindicate the reputation of those who had the task of investigating your criminality, and of bringing you to justice.

21 As I have stated, the matters which I have outlined in these reasons satisfy me that, in view of both of the nature of the offence for which I am to sentence you, and also your background, and particularly your subsequent convictions, it would be inappropriate for me to fix a period during which you are not eligible for parole.

22 Accordingly, the sentence of the Court is that, for the murder of Kristy Mary Harty at Upper Beaconsfield on 17 June 1997, you be imprisoned for the rest of your natural life and without the opportunity for release on parole. In addition, at the request of the Crown, I declare you a serious offender for the purpose of Part 2A of the Sentencing Act 1991. That declaration will be entered in the records of the Court under s 6F of the Act.

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Judgment (24 paragraphs)

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