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Supreme Court 22 July 2021

R v Evans; Evans; XE (No 2)

[2021] NSWSC 885

Assault & violenceHomicideFirearms & weapons

Citation: R v Evans; Evans; XE (No 2) [2021] NSWSC 885
Court: Supreme Court of New South Wales
Date: 22 July 2021
Judge: Ierace J

Background

Three members of the same family, a father, his adult son, and his teenage daughter (referred to as XE to protect her identity), were convicted by jury of the murder of a 19-year-old man on 3 July 2017 in the Wyong area of the NSW Central Coast. The adult son was also convicted of a separate offence of wounding with intent to cause grievous bodily harm, committed the day before the murder.

The events arose from a private feud. The adult son had lured a man he suspected of having a sexual relationship with his girlfriend to the family home and arranged for that man to be seriously assaulted. Word of the assault spread through social networks, and the following day a group of the victim's associates confronted the family at their home, smashing the front door and injuring the teenage daughter. The family then drove off in pursuit of that group.

The pursuit ended when the adult son discharged a loaded shotgun from a moving vehicle into the occupants of the pursed vehicle at close range, killing a 19-year-old passenger who had not been involved in the earlier events at the family home.

Legal Issues

  • Whether the adult son deliberately discharged the firearm with intent to kill at the Byron Street intersection.
  • Whether the father's role in driving and stopping the vehicle alongside the other car made him a party to a joint criminal enterprise to kill.
  • Whether the teenage daughter, a back-seat passenger, was a participant in the joint criminal enterprise and on what basis.
  • What sentences were appropriate for each offender, including the application of aggravating and mitigating factors such as objective seriousness, remorse, criminal history, youth, and likely hardship in custody.

Decision

Issue 1: Keith Evans and the murder

The court found beyond reasonable doubt that the adult son deliberately discharged the shotgun at occupants of the back seat of the other vehicle at the Byron Street intersection, intending to kill one or more of them (at [94]). The court drew this inference from his earlier discharge of the shotgun towards the same vehicle at Baker Park and from his aiming the loaded weapon at close range, at head and chest level, first at the driver and then at the four packed occupants in the back seat (at [94]). The court rejected his account that the discharge was accidental. The court assessed the objective seriousness of his murder offence at a mid-point between mid-range and the maximum level (at [127]).

Issue 2: John Evans and joint criminal enterprise

The court found beyond reasonable doubt that the father deliberately stopped the vehicle immediately alongside the other car at the Byron Street intersection, knowing the adult son had already discharged the shotgun at Baker Park and intending that he would do so again with the inevitable consequence that one or more occupants would be killed (at [98]-[99]). The court identified the father as the leader of the joint criminal enterprise, noting his critical text message the night before, his two-minute turnaround at the family home before heading out with the shotgun, his threatening conduct at Woodward Avenue, and his disposal of the weapon after the killing (at [152]). The court assessed his objective seriousness as slightly above that of the adult son, in part because he involved his own children as co-offenders, including a 17-year-old for whom he bore parental responsibility (at [153], [156]).

Issue 3: XE and extended joint criminal enterprise

The court found beyond reasonable doubt that the teenage daughter was a participant in the joint criminal enterprise and that, at least by the time of the shooting at Byron Street, she remained a participant with knowledge that the objective was to kill one or more occupants of the other vehicle (at [107]). The court relied on her use of knowledge about mutual friends to direct the family to the location of the other group, her presence in the vehicle throughout both the Baker Park discharge and the Byron Street shooting, her post-shooting gesture of defiance from the rear window conveying approval of what had just occurred, and her phone call shortly afterwards indicating she understood and approved of the outcome (at [100]-[107]). The court found the objective seriousness of her offence was below mid-level, significantly mitigated by her youth and immaturity and the fact that her father, who bore responsibility to protect her, had instead encouraged her participation (at [173]-[174]).

Issue 4: Sentencing considerations

The court took into account aggravating factors common to all three offenders including the use of a firearm, commission of the offence in company, and the grave risk of death posed to other people in the residential area at the time (at [114]-[115]). Neither the father nor the adult son expressed any remorse (at [140], [167]). The teenage daughter expressed genuine regret but her remorse was tempered by her refusal to admit guilt (at [188]). The court found the adult son faced likely harsher prison conditions due to threats of attack and adjusted the ratio of the non-parole period accordingly (at [145]-[146]). The teenage daughter's prospects of rehabilitation were found to be very good, warranting a finding of special circumstances and an adjusted non-parole ratio (at [196]).

Orders Made

  • Keith Evans: Aggregate sentence of 32 years imprisonment, backdated to commence 4 July 2017 and expire 3 July 2049, with a non-parole period of 22 years and 4 months expiring 3 November 2039.
  • John Evans: Sentence of 31 years imprisonment, backdated to commence 4 July 2017 and expire 3 July 2048, with a non-parole period of 22 years and 6 months expiring 3 January 2040.
  • XE: Sentence of 17 years imprisonment, backdated to commence 4 July 2017 and expire 3 July 2034, with a non-parole period of 10 years and 6 months expiring 3 January 2028.

Key Takeaways

  • A participant in a joint criminal enterprise can be found guilty of murder where the court is satisfied beyond reasonable doubt that, before the fatal act, the participant contemplated the possibility that a co-offender would discharge a firearm with intent to cause at least grievous bodily harm and nonetheless remained a participant in the enterprise (at [95]-[107]).

  • Where an offender is the leader of a joint criminal enterprise and deliberately involves his minor child as a co-offender in a killing, those facts can elevate the objective seriousness of the offence above that of the direct perpetrator (at [152]-[156]).

  • Youth and parental encouragement to participate in a criminal enterprise are capable of significantly mitigating the objective seriousness of an offence, even one as grave as murder (at [173]-[174]).

  • An offender's likely exposure to threats of violence and harsher conditions in custody, arising from the nature of the offences for which they are convicted, is a factor that can justify adjusting the ratio of the non-parole period to the head sentence (at [145]-[146]).

  • A pre-trial offer to plead guilty to a statutory alternative charge attracts only minimal mitigation where the concession made did not result in any significant saving of court time (at [130]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15C
- Crimes Act 1900 (NSW), ss 18, 19A, 33, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, Pt 4, Div 1A

Cases
- Apps v R [2006] NSWCCA 290
- Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131