Citation: R v Evans (No 3) [2017] NSWSC 1523
Court: Supreme Court of New South Wales
Date: 10 November 2017
Judge: R A Hulme J
Background
The offender was convicted by a jury of murder and a series of offences arising from two violent home invasions in rural New South Wales in 2014. The first occurred at a rural property at Medway in the early hours of 28 April 2014, carried out with two co-offenders. The second occurred at Badgerys Creek on 30 May 2014, carried out with one co-offender. Both properties were targeted at night while occupants were asleep.
During the Medway invasion, the offender struck a sleeping male occupant over the head with a pick handle, fracturing his skull and causing bruising to the brain. Multiple occupants were bound and detained while cash and a firearm were taken. During the Badgerys Creek invasion, the offender murdered the male occupant with a severe blunt force head injury after binding him, and wounded the female occupant. The jury acquitted the offender of wounding the female occupant with intent to murder, indicating reasonable doubt about intent to kill in that instance.
The sentencing hearing was conducted in two parts, in June and October 2017, partly to allow psychiatric and psychological evidence to be gathered regarding the offender's background, including Attention Deficit Hyperactivity Disorder (ADHD) and drug addiction.
Legal Issues
- Whether the murder fell within the extreme category warranting a life sentence under section 19A of the Crimes Act 1900 (NSW)
- The objective seriousness of each offence, including the break, enter and steal charges in circumstances of special aggravation and the three detain without consent charges
- Whether the offender's personal circumstances, including ADHD and drug addiction, reduced his moral culpability
- Whether any mitigating factors under section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied
- Whether special circumstances existed to vary the standard non-parole period proportions
- The application of the totality principle in constructing an aggregate sentence
Decision
Hulme J found that the murder was not within the extreme category requiring a mandatory life sentence, but described it as very close to that threshold. The victim had been bound and rendered defenceless before being killed, and the offender intended to kill. The indicative sentence for the murder alone was 42 years with a non-parole period of 31 years and 6 months.
The break, enter and steal offence at Medway (Count 4), which resulted in a fractured skull and brain bruising to the sleeping male occupant, was assessed as close to the top of the range of objective seriousness, attracting an indicative sentence of 20 years. The corresponding offence at Badgerys Creek (Count 3) was assessed as well above the mid-range, with an indicative term of 18 years. All three detention offences were also assessed as well above the mid-range.
On the offender's personal circumstances, the court accepted a link between ADHD and subsequent drug addiction, which reduced moral culpability to some degree for the offences committed to fund drug use. However, this did not extend to the acts of violence. The offender showed no remorse, and no mitigating factors under section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 were present. The court found no special circumstances to justify reducing the non-parole period below the standard three-quarters proportion.
Applying the totality principle, the court imposed a modest partial accumulation across the indicative sentences. The resulting aggregate sentence was less than the sum of all individual indicative terms, reflecting the principle that the total sentence should be proportionate to the overall criminality.
Orders Made
- The offender was convicted on all counts.
- An aggregate sentence of 48 years' imprisonment was imposed, with a non-parole period of 36 years.
- The sentence was backdated to 21 October 2014 (the date of arrest).
- The non-parole period expires on 20 October 2050, at which point the offender becomes eligible for release on parole.
- The court noted the offender may be subject to proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW) at the conclusion of his sentence.
Key Takeaways
- A murder committed after a victim has been bound and rendered defenceless, with a clear intention to kill, will be assessed as approaching the extreme category warranting a life sentence, even where that threshold is not ultimately crossed.
- Where an offender's ADHD and consequent drug addiction contributed to property-motivated offending, a sentencing court may find reduced moral culpability for the break and enter conduct, but this reduction does not extend to deliberate acts of violence.
- The totality principle requires some notional partial accumulation of sentences where multiple serious offences are involved, though the degree of accumulation will be limited where the primary sentence is already lengthy.
- Under the Crimes (Sentencing Procedure) Act 1999 (NSW), an aggregate sentence may be imposed in place of individual sentences for each offence, provided the court also records the indicative sentence it would have imposed for each individual count.
- The absence of remorse and the absence of any mitigating factors under section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 left the offender without any basis for a reduction in what would otherwise be warranted by the objective gravity of the offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18, 19A (murder and maximum penalty), 86 (detention offences), 112 (break, enter and steal in circumstances of special aggravation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A (purposes of sentencing), 21A (aggravating and mitigating factors), 61 (aggregate sentences)
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases:
- R v Sinclair [2017] NSWSC 686