Citation: R v Evans [2015] NSWSC 254
Court: Supreme Court of New South Wales
Date: 20 March 2015
Judge(s): Davies J
Background
The offender pleaded guilty to the murder of Colleen Deborah Ayers, committed on 9 May 2012 at a rural property in Lakesland, New South Wales. The offender, along with co-accused Michael Duffy and others, had accompanied the deceased to her parents' property with an intention to steal firearms kept there. The deceased was killed during the course of that night.
The offender was also sentenced for stealing property from the same dwelling, including two shotguns, an Xbox console, mobile phones, and jewellery. Some of those items were later pawned, giving rise to a further offence under the Pawnbrokers and Secondhand Dealers Act 1996 (NSW), which was dealt with on a Form 1 (that is, taken into account at sentencing without a separate conviction).
The offender entered her guilty plea to murder on 19 May 2014, nearly two years after her arrest in May 2012 and only days before the joint trial with Duffy was due to commence. She also assisted investigators by identifying the location of the deceased's body and gave an undertaking to give evidence against Duffy at his forthcoming trial.
Legal Issues
- What was the appropriate starting point for the murder sentence, having regard to the objective seriousness of the offence and the offender's personal circumstances?
- What discount should apply for the late guilty plea to murder?
- How should the court quantify the discount for assistance provided to authorities, including locating the body and undertaking to give evidence against a co-accused?
- Whether, given the length of the overall sentence, the assistance discount should be calculated as a fixed number of years rather than a percentage of the sentence?
- What weight should be given to the offender's significantly disadvantaged background, including childhood sexual and physical abuse, long-term drug and alcohol dependence, borderline personality disorder, and paraphilia?
- How should the sentences for murder and stealing be structured, having regard to the principle of totality?
Decision
Davies J determined that the murder fell within the mid-range of objective seriousness. The victim was a vulnerable person who had become intoxicated with the group, and the killing occurred at a remote rural property in circumstances involving considerable planning to steal firearms. The court found it was not established beyond reasonable doubt that the offender had expressed an intention to kill the deceased earlier in the evening, as the key witness on that point was considered unreliable. The planning that was established related to the robbery rather than the murder itself.
The offender's personal circumstances were significant. She had suffered severe sexual and physical abuse from early childhood, had been involved with drugs and alcohol from adolescence, and had been diagnosed with borderline personality disorder and paraphilia. Davies J acknowledged these factors warranted some mitigation but noted that the offender had an extensive prior criminal record, was on conditional liberty at the time of the offending, and had stolen firearms that were later sold to a drug dealer.
On the guilty plea, the court allowed a discount of approximately 10 percent, reflecting the lateness of the plea (entered just before the joint trial was to begin). On the question of assistance, Davies J departed from the usual percentage-based approach. The court reasoned that applying a standard percentage discount to an already lengthy sentence would produce a result that was unreasonably disproportionate to the assistance actually given. Instead, the court measured the discount in years, arriving at a reduction of three years from the sentence for murder to reflect both the assistance already provided and the undertaking to give evidence.
On totality, Davies J ordered partial accumulation rather than full concurrency between the stealing and murder sentences, noting these were separate offences committed in close proximity. The stealing offence was committed first and the sentence for it was ordered to run before the commencement of the murder sentence, with an accumulation of 12 months at the start of the murder sentence.
Orders Made
- Fixed term of 3 years imprisonment for steal in a dwelling house (taking into account the Form 1 offence), commencing 10 October 2012 and expiring 9 October 2015.
- For murder: non-parole period of 18 years and 9 months commencing 10 October 2013 and expiring 9 July 2032, with an additional term of 6 years and 3 months expiring 9 October 2038.
- Effective overall non-parole period of 19 years and 9 months commencing 10 October 2012 and expiring 9 July 2032, with an additional term of 6 years and 3 months expiring 9 October 2038.
Key Takeaways
- Where a sentence is already very long, applying a standard percentage discount for assistance to authorities may produce an outcome that is unreasonably disproportionate to the assistance actually rendered; in such cases, a fixed reduction expressed in years may be more appropriate.
- A guilty plea entered only days before a joint trial was due to commence attracted a discount of approximately 10 percent, reflecting the limited utilitarian value of such a late plea.
- Severe childhood trauma, long-term substance dependence, and diagnosed mental health conditions are recognised mitigating factors in sentencing, though their weight may be reduced where the offender has an extensive criminal history and was on conditional liberty at the time of offending.
- Partial accumulation of sentences for separate offences committed in close proximity may be appropriate where the offences are distinct in character, even if arising from the same course of criminal conduct.
- Under the standard non-parole period provisions in the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period for murder is 20 years; departure below that figure may be justified by a combination of mitigating factors, including assistance to authorities.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Pawnbrokers and Secondhand Dealers Act 1996 (NSW)
Cases
- Engert v R (1995) 84 A Crim R 67
- R v De Simoni (1981) 147 CLR 383
- R v Dong [2010] NSWSC 1242
- R v Goundar [2010] NSWSC 1170
- R v Privitera (1997) 94 A Crim R 76
- SL v R [2015] NSWCCA 30
- Zaharos v R [2008] NSWCCA 336