R v Evans

Facts

1. The facts relating to the offending were largely agreed. There were, however, three areas of dispute. I will note areas of dispute where they occur.
2. On the evening of Tuesday 8 May 2012, the offender was at CC's pub located on Queen Street, Campbelltown. While there she met the deceased, Colleen Deborah Ayers, and they started talking.
3. At some point in the evening, the co-accused Duffy, and the offender's sister, Monique Simmons, joined the offender and Ms Ayers.
4. The group of four boarded a train at Campbelltown train station and travelled to Picton. They checked into the George IV Inn which is located on Remembrance Drive, Picton. At the hotel the offender, Duffy and Ms Ayers engaged in sexual activity with each other. Monique filmed the incident on a mobile phone.
5. On the morning of Wednesday 9 May 2012, the group left the hotel and travelled by train from Picton to Campbelltown. The offender bought an amount of methylamphetamine and the group sat in Mawson Park, Campbelltown, consuming methylamphetamine and alcohol.
6. A friend of Monique's, Scott Derbridge, had been to the Centrelink Office in Campbelltown that morning and bumped into Monique. Derbridge went with her to Mawson Park where the offender, Duffy and Ms Ayers were.
7. At some stage the group was joined by Mark Curran, known by the group as "Kiwi". As the evening progressed, Curran became highly intoxicated and was asleep for the majority of the events set out in these facts.
8. The facts put forward by the Crown say that while at the park Derbridge heard some of the group speak about killing the deceased. He heard the offender, Duffy and Monique saying they wanted to kill her. Derbridge thought they were joking or "talking shit." The deceased had gone to get money from an ATM when this conversation occurred.
9. The offender denies that a conversation about killing the deceased took place at the park. However, her version is that an intention was formed by the group at the park to rob the deceased. The offender and Duffy had a particular interest in stealing two firearms that the deceased had told them belonged to her parents.
10. This was the first area of dispute. It is necessary to make findings in relation to it because if the Crown's case on it is accepted, it would tend to show a measure of planning about the killing.
11. The evidence given by Derbridge was that the offender and Monique said, while they were in the park, that they wanted to kill Colleen. No reason was given by them for wanting to do that. Derbridge also said that Duffy was not around at the time that was said. This is to be contrasted with his second ERISP where he alleged that Duffy was present and said similar words.
12. Derbridge said that the first time he heard about guns was after Ms Ayers had been killed. He also volunteered that the offender and Monique also said again, while they were on the train, that they wanted to kill Colleen. When asked if this was when Colleen was present, he at first said it was when Colleen was getting changed but then said it was when the offender and Monique were getting changed. Presumably, they moved away from Colleen with Mr Derbridge at that point although he did not say so.
13. Monique was asked by the Crown if she heard anyone make threats against Ms Ayers before they got on the train. She said she did not remember. She was not asked about threats on the train.
14. I cannot be satisfied beyond reasonable doubt that the offender made any threat to kill Ms Ayers in the park or on the train. Derbridge's evidence was unsatisfactory and, I thought, unreliable about this matter. His exclusion of Duffy from this stated intention and his reference to the threat on the train all seemed to be recent invention. Although I have some doubts about Monique's honesty (she seemed to have clear recollection of all the surrounding matters but could not remember a significant matter like a threat to kill the person who was later killed), I cannot infer from her absence of recollection that such a threat was made. Moreover, an intention to rob Ms Ayers of guns to sell on the black market for drug money seems a much more likely matter.
15. From the ATM, Ms Ayers withdrew a few hundred dollars. The offender used this money to buy methylamphetamine.
16. At some stage, Ms Ayers told the group about her parents' rural property. She told the group that her parents were away and that they should go back to her parents' place for drinks.
17. Later that day the group of six travelled by train to Picton. At 7.10pm all were captured on CCTV entering a Camden Wollondilly Maxi Taxi. They were travelling to 220 Rockbarton Road, Lakesland, which is the deceased's parents' home.
18. En-route to 220 Rockbarton Road, Lakesland, the taxi stopped at the Welcome Inn located in Thirlemere. The offender and Duffy bought alcohol from the bottle shop. The taxi then continued to 220 Rockbarton Road Lakesland. The group of six are captured on CCTV footage exiting the taxi at this time.
19. 220 Rockbarton Road, Lakesland, is a property situated on approximately 25 acres of land. On the property is the main residential house, a two bedroom detached guesthouse and a shed located at the rear of the main residence. The lawful occupiers of this property are Judith and Bryon Green, the parents of Ms Ayers. Both Mr. and Mrs. Green are licensed to hold firearms. Before travelling interstate on 4 May 2012, they believe they locked and secured the property. Ms Ayers did not have permission to enter the premises.
20. The group went into the property accessing the main residence, detached guest house and detached shed. They then started a fire in the yard of the premises where they spent much of the night consuming drugs and alcohol. In the following hours the group remained at the property spending most of the time between the guest house and around the fire.
21. At one point during the night Duffy and Ms Ayers went into the main bedroom of the guest house. They could be heard having sex. Derbridge and Monique went into the second bedroom to lie down because Monique was feeling unwell. The offender remained in the lounge room crushing Seroquel tablets. Derbridge and Monique lay down on the bed. The Crown facts then assert that while they were in this room the offender walked into the room and said to them: "We're gunna kill her, we're gunna kill her." This appears to be based on assertion by Derbridge. This is the second area of contention.
22. Both the offender and Monique deny that the offender said at this point that she was going to kill Ms Ayers. The offender and Derbridge both agree that Monique said that she was going "to smash" Ms Ayers and that Monique asked the offender if she would back her up if Ms Ayers "got it over" Monique. Derbridge, having been reminded that that was what he agreed with the police on 16 June 2014 when it was put to him by them, said that it was at that point that the offender said she wanted to kill Ms Ayers.
23. Monique first denied that she ever said anything about wanting to bash Ms Ayers but then gave this evidence: Q. I put it to you that you did say that and that was directed to Rachel, and Rachel's response was, "Yes I'll back you up." You deny that happened do you? A. I don't remember. Q. Is it possible it may have happened but you can't now recall? A. It may have, but because we were that heavily intoxicated on drugs and alcohol, I do not remember.
24. Again, I have doubts about Monique's honesty, and I certainly consider that her evidence is unreliable. I have doubts about the reliability of Derbridge's evidence. Whether because he has intellectual difficulties or the other psychiatric problems identified by Judge Maiden SC when he sentenced Derbridge or because he has damage from his long-term drug and alcohol consumption, I would generally need supporting evidence before accepting what he said. All of these matters mean that I cannot be satisfied beyond reasonable doubt that even at this late stage of that night's events the offender had expressed an intention to kill Ms Ayers before she went into the bedroom where Ms Ayers was with Duffy.
25. Monique followed her sister out of the room. Derbridge went into the lounge room of the guest house and continued to drink beer. Derbridge saw the offender and Monique walk out of the guest house. About five minutes later, Derbridge saw the offender and Monique run into the room in which Duffy and Ms Ayers were having sex.
26. Derbridge remained in the lounge room. He could hear Ms Ayers in the bedroom saying: "Stop it". A short time later Monique came into the lounge room, crying. She told Derbridge that the offender and Duffy had killed Ms Ayers. She explained to him that both the offender and Duffy had tried to strangle her but when that didn't work Duffy had to break her neck. The autopsy did not support the assertion that Ms Ayers' neck had been broken.
27. The Crown Facts assert that the offender admits that she strangled the deceased with a belt and that she was assisted by Duffy during the commission of the murder. The offender disputed that she did so. This is the third area of dispute. However, the offender's evidence in chief was this: Q. ...Do you agree that at some stage you did have a belt or you did put a belt around her neck? A. Yes, sir, I did put the belt around her neck. Q. At the time Miss Ayers stopped resisting who had the belt then? A. Michael. Q. And can you tell me how he came to end up with the belt? A. After my sister hit her in the head, when I put the belt around the neck she fought and she liked bucked and I fell back on my backside and that's when Michael grabbed the belt and started strangulating her and then I got back up and held her head down from the back, holded (as said) her head down, and Monique held her legs and bottom part of her body down while Michael was strangulating her.
28. In cross-examination she said: Q. You have admitted your part in strangling the deceased, haven't you? A. Yes, Ma'am. Q. Was it the case that while you were trying to do that the belt broke? A. The belt didn't break, Ma'am, I - when I first put the belt around Miss Ayers' neck she fought and I let go. I fell back. The belt wasn't broken or snapped, and then Michael picked up the belt from there. Q. So it was the case that you were both engaged in the act of strangling her at various times in that bedroom, is that right? A. My hands were around that belt that one time, Ma'am. Q. My question was at various times in the bedroom you were both engaged in the act of strangling her, is that correct? A. Yes, Ma'am.
29. I am satisfied beyond reasonable doubt from this evidence that the offender took part in the act of strangling Ms Ayers and that she was endeavouring to do just that. I reject her evidence and the submission made on her behalf that she intended only to hurt Ms Ayers. That may have been the position before the offender went into the bedroom, but when she put the belt around her neck and pulled on it she intended to kill Ms Ayers.
30. Derbridge opened the door to the main bedroom and saw Ms Ayers' body hanging over the bed, with Duffy beside it. The offender, who was standing in the corner of the room, yelled at Derbridge to get out.
31. The offender dragged the body of the deceased into the bathroom followed by Duffy. In the bathroom, the offender washed the deceased's body in the shower. Duffy then took a bed sheet and lay it out on the floor in the hallway where he and the offender wrapped the body in the sheet.
32. Duffy grabbed Derbridge and told him to go for a walk with him, picking up shovels on the way. Duffy told Derbridge that they were going to dig a hole. Derbridge initially refused to assist Duffy who then started hitting him. The two of them walked down to a part of the property that was near a dam. They began to dig a hole.
33. After they finished digging the hole they walked back up to the guest house. Duffy and the offender carried Ms Ayers' body to the hole that had been dug by Duffy and Derbridge. They then buried the body.
34. After the body was buried the group returned to the house. Items were thrown onto the fire and burnt, including blankets from the bedroom in the guest house. From the main house, the group collected an X Box console, games, mobile phones and jewellery. From a locked cupboard in the garage, Duffy removed a 12 gauge shotgun and a double barrel shotgun, using bolt cutters to break the lock. The group then left the property. On their way from the property the offender made up a story and told the group that, if the "cops" asked, they were to tell them that they left the property during the night and other people showed up.
35. At about 7.40am on Thursday 10 May 2012, CCTV footage depicts the offender, Duffy, Derbridge, Curran and Monique entering a Maxi-Taxi and departing 220 Rockbarton Road, Lakesland. At this time the group can be seen carrying bags of property. In this footage the offender is seen to be jovial and joking with the driver. When asked by the driver how her night was, the offender replied "Yeah it was great... very exhilarating."
36. They travelled to the Picton area, to the house of a friend of Duffy's. They eventually parted company.
37. On 10 May 2012, Judith and Bryon Green were alerted by a neighbour to damage caused to the property and an apparent break and enter. This matter was subsequently reported to Camden Police and investigations commenced. Discovered stolen from the residence was a significant quantity of property including jewellery, electrical items, computers, two firearms, passports and banking documents.
38. On 14 May 2012, the offender attended the Ace Ben Pawn Shop located on Dumaresq Street, Campbelltown, where two items of jewellery stolen from 220 Rockbarton Road, Lakesland, were pledged. The offender received $40. Pledge Number 4208/2012 was signed by the offender.
39. The offender and Duffy attempted to sell both the firearms stolen from the property. They sold the 12 gauge shotgun for around $6,000 to a person the offender later described to police as a drug runner who wanted the weapon for his boss. The offender and Duffy halved the money. They were unable to sell the other firearm.
40. On 25 May 2012, Judith and Bryon Green returned to their home and identified the particulars of the items stolen and damaged. Judith Green observed entire rooms throughout the property to have been ransacked and significantly damaged including the lighting of a fire on the property.
41. A statement obtained from Judith Green confirmed that at no time did any member of the group, including the deceased, have permission to enter her property and remove any items from within.
42. On realising that no one had heard from his daughter in some time and that she was not contactable, Bryon Green reported his daughter to police as a missing person. The deceased was last independently sighted exiting the Maxi-Taxi at the property on 9 May 2012.
43. On 31 May 2012, the offender met up with a friend, Wayne Latta. She told him certain things about the evening of the murder. Latta and the offender made contact with police and arrangements were made for the offender to attend Narellan Police Station.
44. At about 2pm on 31 May 2012, the offender attended Narellan Police Station where she was arrested.
45. The offender participated in an electronically record of interview with police. She admitted to going to the property with the others and gave her account of what happened on the 9 May 2012. Following this interview, the offender accompanied police to the property where she showed police the location of where the deceased was buried. Subsequent examination of this area revealed the deceased's body in a shallow gravesite.
46. On 1 June 2012, police arrested Duffy. He participated in an electronically recorded interview giving police his account of what occurred.
47. Derbridge was also arrested on 1 June 2012. He participated in an electronically recorded interview giving his account of the night of 9 May 2012. During this interview, Derbridge did not reveal anything about the murder and told the false story concocted by the offender that another group of people had turned up at the property. Derbridge was interviewed a second time on 12 July 2013 where he revealed a full account of what happened on the 9 May 2012.
48. A post mortem and formal identification of the body took place on 2 June 2012. Due to the advanced state of decomposition a cause of death could not be determined. Decomposition also made it difficult to evaluate the skin and soft tissue for any ante-mortem injuries. However, on the right side of the deceased's neck was a pink abrasion highly suggestive of a peri-mortem ligature mark. Also found was a fracture of the left posterior horn of the hyoid bone (the bone near the base of the tongue). There was no evidence of a neck fracture, pelvic fracture or any open wounds or lacerations to the deceased's head. The toxicology analysis was compromised due to the decomposition and age of the body. However, levels of alcohol and methylamphetamine were found in the deceased's blood.

Subjective matters

1. The offender was born on 5 July 1989. At the time of the killing she was aged 22 years.
2. Her parents separated when she was one or two years of age. She has an older half-brother, a younger brother and a younger half-sister. The half-sister was the person Monique Simmons who was involved in the present events.
3. The offender was raised by her mother and her stepfather who sexually abused her between the ages of six and ten years. The sexual abuse at the hands of her mother and her stepfather included being sodomised. She required repair of her injuries from this abuse at hospital when she was seven years of age. She was also physically abused and emotionally abused. Her younger brother was beaten and she was exposed to domestic violence.
4. She was placed into the care of DOCS as a ward of the State. She lived in foster care and was also raised by her grandmother in Melbourne. She told Dr Richard Furst, a psychiatrist, that she estimated living in 30 to 40 foster placements between the ages of 10 and 13 years having been regarded as a 'placement problem'.
5. She attended multiple schools in the Wagga Wagga area, eventually dropping out because of behavioural problems and drug addiction.
6. At the age of 16 years she left Wagga Wagga and lived in Sydney where she supported herself as a sex worker. She lived in cheap brothels and hotels until she met the father of her daughter who is now aged about seven years.
7. She drank alcohol occasionally from the age of 11-12 years. She used heroin from the age of 13 years in what Dr Furst described as a maladaptive pattern of attempting to block-out her negative memories. She used cannabis from the age of 14 years.
8. She reported withdrawal symptoms from not using heroin and she had a dependence on it between the ages of 14 and 17 years.
9. At the time she met the father of her child she did not use drugs apart from some intermittent cannabis abuse. She stopped working as a sex worker. She tried to study hairdressing and attended TAFE but she found her studies "boring."
10. When she broke up with the father of her child in about September 2011 she commenced using drugs again, and that continued until the events in question. She estimated using ice in amounts of 3.5g two and three times per week, including injecting it. She was also dependent on benzodiazepines, using about 50 Serepax or 50 Xanax tablets every couple of days. She was drinking one to two bottles of rum a day. She also started working again as a sex worker.
11. She said that her relationship with the father of her child was okay but she continually had relationships with other people, including women that led to multiple arguments and separations. She said she had had in excess of a hundred relationships and countless sexual encounters.
12. She gave a history of intrusive suicidal thoughts as well as violent thoughts and fantasies occurring on a daily to weekly basis. Dr Furst said that there was evidence of apparent paraphilia in the form of sadomasochism.
13. Dr Furst diagnosed her with the following mental disorders: 1. (a) Borderline Personality Disorder 2. (b) Substance Use Disorder 3. (c) Paraphilia, sado-masochism
14. The offender attempted to hang herself in August 2012. At the time she said she wanted to die. Subsequently she has felt differently because she is not on the same medication and is no longer withdrawing from illicit substances.
15. Dr Andrew Ellis, who saw her in February 2013, also diagnosed her as having Borderline Personality Disorder as well as paraphilia, sexual sadism, masochism and autoerotic asphyxia. He thought she also appeared to have a Substance Abuse Disorder.
16. Dr Ellis also noted that she had previously given information that had turned out to be false. One example of that was saying that she had psychiatric admission to Liverpool Hospital. She had also been prescribed Methadone prior to entering custody but the prescription was given under an alias.
17. Dr Ellis noted various self-harming activities in addition to the attempt at hanging, including burning herself. She had made threats to kill staff in custody and had diverted a number of her legitimately obtained drugs. She had also encouraged intellectually disabled inmates to self-harm and had incited other inmates to strangle her and steal property from the kitchen. Dr Ellis did not make any comment about her likely re-offending once released from custody.
18. She has a criminal record commencing in December 2000 when she was only 11 years of age. Her criminal record is reasonably lengthy. Although there are two convictions for assault occasioning actual bodily harm, the majority of the offences are property and motor vehicle offences. She received a number of control orders whilst she was dealt with by the Children's Court but many of these were suspended. She has, however, been sent to prison a few times as an adult.
19. In fact, after she was arrested on 31 May 2012 she commenced a one month sentence of imprisonment on 3 July 2012 for unrelated offences of common assault and damage property, and thereafter a three month period of imprisonment from 14 July 2012 for unrelated offences of larceny and damage property.
20. The present offences for which she is to be sentenced were committed whilst she was on bail for those offences for which she entered custody on 3 July 2012 and subsequently.
21. Subsequent to her plea of guilty the offender participated in a further ERISP on 20 May 2014 where she detailed her involvement and, in particular, the involvement of her co-accused Duffy.
22. On 31 October 2014 she gave a written undertaking to give evidence at any proceedings against Duffy for offences arising out of the murder of Ms Ayers and the entry onto the property of Judith and Bryon Green in accordance with the ERISP of 20 May 2014.

Objective seriousness

1. The killing of Ms Ayers was gruesome and apparently pointless. Prior to the events concerned she was not known to the offender, Duffy or anyone else in the group. She had engaged in sex with them the day before and presumably thought they could be trusted because she invited them to her parents' home. Then, when at the house, at one minute she was simply engaging (again) in sexual congress with Duffy, the next she was at the mercy of two and probably three persons who, it must have been apparent to her, were intending to harm and kill her. Death did not come instantly. There was evidence that she had called out to the perpetrators to "Stop it" and there was clear evidence that she had physically resisted in such a way as caused the present offender to lose her grip on the belt with which the offender was trying to strangle her. Having been successful in that regard, Ms Ayers was then overpowered by Duffy who completed what the offender had been endeavouring to do.
2. Although it was faintly suggested that the only intention that could be inferred was an intention to cause grievous bodily harm, I am satisfied beyond reasonable doubt that the intention was to kill the deceased. There can be no other explanation for putting a belt around someone's neck and pulling it so tight that when the victim bucked, the perpetrator (ie, the offender) was thrown off, and then the co-accused took over doing the same thing.
3. The offence had a number of aggravating features. First, it involved the use of a weapon being the belt. The Crown submitted and the defence accepted that the belt could be regarded as a weapon. Given the use to which the belt was put I consider that it should be regarded as a weapon in the circumstances of this crime.
4. Secondly, the offence was committed in company.
5. Thirdly, and contrary to the submission of the defence, I consider that the fact that it happened at the home of the deceased's parents is an aggravating factor. Section 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) makes it an aggravating factor that the offence was committed at the home of the victim "or any other person". Even if the property could not be regarded as Ms Ayers' home it belonged to her parents. The offender and the other persons were present at the home only at the invitation of Ms Ayers even though, seemingly, she did not have permission to be there. The situation does not seem to me to be so different from other cases where victims are entitled to feel safe in their own home, notwithstanding (as here) that Ms Ayers was not living there at the time.
6. The parties did not address on the issue of whether it was an aggravating factor under s 21A(2)(ea) that the offence was committed in the presence of a child under 18 years being Monique. It was certainly the evidence of both the offender and Derbridge that Monique was in the room at the time of the killing. Both of those persons asserted that it was at Monique's initiative that they entered the room to "smash" the deceased. The offender claims that Monique helped to hold the deceased down whilst she and Duffy strangled the deceased. The offender also asserted that Monique struck the deceased with a bottle. The injuries to the deceased did not bear out a blow to the head with a bottle. Monique denied being in the room. She said that she stood at the door but the lights were off, she could not see anything, and the offender told her not to put the lights on.
7. I do not accept Monique's evidence in this regard. However, I do not consider in all of the circumstances that her presence in the room, although a child under 18 years of age, should be an aggravating feature. She was 16 years old at the time and she had a significant responsibility for initiating the attack on Ms Ayers which led to her death.
8. Finally, the treatment of the deceased's body after her death including the burying of it in the grave at the property is an aggravating factor: R v Goundar [2010] NSWSC 1170 at [69]; R v Dong [2010] NSWSC 1242 at [46].
9. Although it has not been shown that this offender planned to kill the deceased, the circumstances of the killing that I have detailed mean that the offence of murder must be seen to be high in the mid-range of objective seriousness.
10. In relation to the stealing offence, I am satisfied beyond reasonable doubt that, at least from the time the group was in the park together, the offender and Duffy had planned to steal the guns from the house. That offence was also committed in company. That it happened at the home of the victim's parents should not be seen as an aggravating factor because that is an element of the offence.
11. In my opinion the stealing offence falls within the mid-range of objective seriousness, particularly because two firearms were stolen.
12. Two other matters aggravate the offences.
13. First, the offender was on bail for the two sets of offences to which I have already made reference.
14. Secondly, the offender has a reasonably long criminal record. The offender submitted that her criminal record should not be regarded as an aggravating factor. She pointed to the fact that the serious personal violence offences (the assaults occasioning actual bodily harm) were committed whilst she was under the age of 18. However, the convictions for common assault in 2010 and 2013 cannot be regarded as minor, particularly because for the offence in 2013 she was sentenced to a period of imprisonment.
15. She has a number of convictions for larceny including four in 2012. Other property offences include break and enter, as well as steal in a dwelling house, steal from the person, take and drive motor vehicles, and destroy or damage property.
16. In my opinion, the commission of the present offences and the circumstances in which they were committed involving the prolonged purchasing and use of illicit drugs demonstrates, with her record, a continuing attitude of disobedience to the law. That is accentuated by the fact that she was on conditional liberty at the time of the commission of these offences.
17. In my opinion her criminal record is an aggravating feature for both offences.

Plea and Assistance

1. The offender's plea came very late. Its lateness had very little utilitarian value because it resulted in the need to vacate the trial of the co-offender Duffy. That trial will, as I have said, proceed in any event. I accept, however, that the assistance provided by the offender, albeit latterly, and the assistance that will be provided, may shorten Duffy's trial. I consider that the discount for the plea alone should be limited to 5%.
2. On 31 May 2012 the offender participated in an ERISP at Narellan Police Station. Although she initially provided misleading information and minimised her role in the matter she eventually told the police that Ms Ayers was dead. She then provided a more accurate version of events and agreed to attend the scene to assist in locating the body. She also identified Duffy and Derbridge from photographs. The offender does not suggest that these persons were not already suspects.
3. After she pleaded guilty to murder she participated in a further ERISP on 20 May 2014 where she detailed the events of the night in question, particularly the actions of Duffy. As I have said earlier, on 31 October 2014 she signed an Undertaking to Give Evidence in the trial of Duffy.
4. Derbridge pleaded guilty to being an accessory after the fact to murder and to break, enter and steal. He received a combined 40% discount for his plea and assistance. That involved a 20% discount for plea and past assistance with 20% being allocated for future assistance.
5. I certainly do not accept that, without the offender's evidence, there would be a difficulty in the Crown proving that Duffy had murdered Ms Ayers. However, I accept that her evidence, if accepted, will be significant in circumstances where Derbridge was not, on anyone's account, in the bedroom at the time, and Monique denies having been in the bedroom although the evidence of both Derbridge and the offender certainly suggests otherwise. Certainly, because of her denial, Monique will not be giving evidence of what happened in the bedroom.
6. I have read the Remarks on Sentence by the judge who sentenced Derbridge. He considered that Derbridge's evidence would fill what the judge regarded as a gap in the Crown case. This was before the plea by the present offender. Further, Derbridge pleaded guilty to the offences with which he was charged at a relatively earlier time than the present offender. These are significant differences from the present offender's situation.
7. However, the most significant difference arises because of the length of the sentences given to Derbridge and the length of the sentence which the present offender will receive but for the plea and assistance. Basten JA recently drew attention to this matter in SL v R [2015] NSWCCA 30 at [13] where he said: There is another sense in which disproportion may not be properly reflected in the actual "proportion" by which a sentence is reduced. The reduction could be measured by reference to years, rather than a percentage. In terms of length of imprisonment, a percentage reduction will give a greater benefit, the more serious the offender's criminality. On the other hand, the person who plays the lesser role in the offending and may face a relatively shorter sentence than the co-offenders against whom the assistance is provided, may nevertheless be at equal or greater risk as a result of providing assistance to the authorities than an offender who committed more serious offences. Thus a 25% reduction of a four year sentence is one year; the same proportionate reduction of a 12 year sentence is three years. The mechanical exercise (applying a percentage reduction), may, in some cases, fail fully to serve the purpose of the reduction for assistance to authorities. (The percentage reduction is appropriate in the case of a guilty plea.)
8. There was no evidence that the assistance provided and to be provided is likely to cause her to serve her sentence under protection in a more onerous environment.
9. I do not consider that it is appropriate in the present case to provide a percentage reduction for the assistance. Even a relatively modest percentage discount produces a reduction in the overall sentence from the starting point I consider appropriate which results in a sentence unreasonably disproportionate to the nature and circumstances of the offence. Rather, I consider that the discount for assistance should be measured by reference to years.

Remorse

1. The offender gave evidence that she decided to plead guilty because she wanted to take responsibility for Ms Ayers' death and she felt it was the right thing to do. She said that she was sorry but she knew that "sorry doesn't cut it" and "you can't say sorry for just taking a life". Taken at face value, she now shows some remorse.
2. It is necessary, however, to have regard to the assessment of her by Dr Ellis and Dr Furst, two very experienced forensic psychiatrists. Dr Ellis said in his report of 21 March 2013 that the offender describes an unstable sense of self identity, deceit in her interactions with others and a difficulty experiencing the point of view of others.
3. Dr Furst's report of 17 October 2014 reached similar conclusions, albeit he thought that there had been improvement in some areas. His report contained a number of significant conclusions relevant to the genuineness of her remorse and her risk of re-offending. He said: In my opinion, her apparent deviant and intrusive sexual thoughts relating to violence against others, and her pattern of sexual arousal when feeling pain or inflicting pain on others are consistent [with] a paraphilia in the form of sadomasochism, which is a paraphilia (disorder of deviant sexual arousal and a pattern of abnormal sexual behaviour). There was also evidence of arousal from auto-erotic asphyxiation. There is an apparent obsessional component to her thinking. … Ms Evans has a history of conduct disorder, multiple offences as a juvenile, childhood victimisation, a severe personality disorder, sexual deviance in the form of sado-masochism, and an obviously serious offence involving the murder of Colleen Ayers in the company of others on 09/05/12. Although she made some expressions of remorse, she appears to lack insight into the severity and risks posed by her sexual deviance and any relationship this may have had with her offending. She also has a history of chronic self-harm, emotional dysregulation, and substance abuse. Those factors place her at high risk of future offending. She also poses a high risk to herself and fellow inmates, especially if sharing a cell and engaging in sado-masochistic sexual practice. I note Ms Evans has taken some positive steps to engage in therapy with clinical psychologists, PDBU and the mental health services of Justice Health. The treatment measures outlined above may go some way to reducing the risks she poses to herself and others over the longer term. (emphasis added)
4. My assessment is that the offender has shown some remorse by her plea and by what she has said. This remorse, however, was a long time coming. Her statement in the taxi afterwards that the night was exhilarating showed quite the opposite of remorse at the time. She lied in her first ERISP saying first that Ms Ayers was fine when they left the house, and thereafter lied by putting the whole blame on Duffy for Ms Ayers' death and minimised her own involvement. There was no remorse expressed in that interview.
5. On a charitable view, it might be thought that she was somewhat remorseful when she spoke with Dr Furst in August and September 2014 although most of her account of the offence to Dr Furst reads as if she was simply coming to realise quite what she had done. Dr Furst seems also to have had reservations about the extent of her remorse, as appears from the highlighted passage above at [105]. Neither Dr Furst nor Dr Ellis relates her suicide attempt and other acts of self-harm to regret or remorse for killing Ms Ayers. Nor did the offender so connect those matters in what she said to them.
6. The personality issues to which the psychiatrists refer mean that I must have some reservations about the extent to which the offender's statements of remorse are heartfelt. I do not think that they satisfy s 21A(3)(i) of the Act.
7. Ms Ayers' father provided a Victim Impact statement. It is clear that Ms Ayers was a troubled woman with drug and mental health issues that may have led her into the events which resulted in her death. No parent should have to endure the pain from the death of a child in such terrible circumstances as these. The Court expresses its sympathy to Mr Green, his wife and Ms Ayers' siblings. The offender had pleaded guilty before the changes to the legislation commenced for the taking into account of Victim Impact statements and the position is governed by R v Privitera (1997) 94 A Crim R 76.

Psychiatric issues and rehabilitation

1. Mr Young of Senior Counsel for the offender submitted that Dr Furst's report showed a clear linkage between the offender's actions and her mental disorders. He submitted that such a finding would bring into play s 21A(3)(j), that is, that it is mitigating factor if the offender was not fully aware of the consequences of her actions.
2. Mr Young referred to statements made by the offender at various times about feeling nothing or her brain not going at the time or she was "weird" at the time. He pointed to what Dr Furst said (at p.12): In my opinion, it is likely Ms Evans was experiencing violent and sexual fantasies at the time of the killing, in keeping with her underlying sadomasochistic disorder and severe personality disorder, possibly including deviant fantasies of killing the victim for sexual gratification. … In my opinion, her childhood trauma, dysfunctional personality style, paraphilia, substance abuse problems and the obsessional nature of her thinking probably mitigates to a degree against the seriousness of her actions.
3. In Zaharos v R [2008] NSWCCA 336 McClellan CJ at CL (with whom Grove and Howie JJ agreed) said: [14] … Where mental illness has played a part in the offending, the need for general deterrence may be diminished: R v Wright (1997) 93 A Crim R 48. However, where an offender understands what he is doing and the gravity of his actions, general deterrence may be of continuing significance: Wright at 51; R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [252]-[254]. The issue is further discussed in R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 and R v Hemsley [2004] NSWCCA 228 at [33]-[36].
4. In circumstances where the offender had been ingesting large quantities of drugs and alcohol over an extended period of time prior to the killing, where there was planning to the extent of robbery involved, where there was organisation about covering up what was done, where no evidence was given suggesting the offender obtained any sexual gratification for what she did and where there was no prior offending involving sado-masochistic behaviour, sexual or otherwise, I cannot accept Dr Furst's connection between the offender's psychiatric disorders and the killing in a way that mitigates the seriousness of what she did. Indeed, Dr Furst himself acknowledges that efforts made to avoid detection indicate that she was aware of her actions and their wrongfulness.
5. The offender's conversation with her sister before going into the bedroom suggests very clearly that she knew exactly what she was doing. At that time it was to back her sister up when her sister assaulted the deceased. Whilst the matter escalated once they were in the bedroom, nothing suggests either any sexual gratification nor any unawareness of the consequences of her actions.
6. If it were the case that her psychiatric problems somehow minimised what she did and made general deterrence of less significance, other considerations might assume greater significance such as protection of the public: Engert v R (1995) 84 A Crim R 67 at 68.
7. Whilst I accept that what is recorded in Dr Furst's report about her behaviour in custody and her willingness to undertake appropriate courses and treatment demonstrates some improvement from what Dr Ellis had reported some 18 months earlier, Dr Furst had a very guarded view about her prospects of reoffending as the passage at [105] above makes clear. I note the documents tendered on her behalf showing the courses in which she has enrolled and the units completed. In the light of her history more time will be needed before a positive view could be formed with respect to the likelihood of her reoffending.
8. Mr Young submitted that a lengthier than usual time will be necessary for close supervision and rehabilitation in the community, and in that regard special circumstances should be found. In my opinion, the overall length of the sentence to be imposed means that the statutory ratio does not need to be varied for that or any other reason.

Sentence

1. In relation to the steal in a dwelling house, the offence is aggravated because it was planned. It is a matter of concern that two of the items stolen were firearms both of which the offender endeavoured to sell and one of which she and Duffy did sell to a person the offender described as a drug runner who wanted it for his boss. The offender's actions had the result that a firearm was provided to a person involved in crime and drug supply. I accept on the basis of R v De Simoni (1981) 147 CLR 383 that I am not sentencing the offender for the sale of the firearm, but the ultimate disposition of the firearm, which was not a matter incidental to the offence (it was always intended to sell the firearms for money) is a matter I can and should take into account.
2. I consider that it is also an aggravating factor that the stealing took place from a property to which the offender had been invited by Ms Ayers and with which Ms Ayers had a connection, it being her parents' house. She had no knowledge that the purpose of the offender in coming to the house was to steal the firearms. The theft of the other items appears to have been spontaneous.
3. The offence on the Form 1 arose as an ordinary consequence of the offence of steal in a dwelling house and does not result in any increased penalty for the principal offence.
4. The offender pleaded guilty to this offence shortly after it was substituted for the earlier more serious offence. She is entitled to a modest discount for that. Its utilitarian benefit was small in the circumstances of the late plea for the murder and the negotiations in relation to this offence. The assistance provided by the offender is principally concerned with the murder. I do not consider there should be any additional discount for assistance for the stealing charge.
5. For the offence of a steal in dwelling house, and taking into account the offence on the Form 1 the offender should be sentenced to a fixed term of 3 years. I decline to set a non-parole period because of the sentence that will be imposed for the offence of murder.
6. In respect of the offence of murder I consider that the starting point should be a period of 30 years. With a discount of 5% for the late plea, the sentence, but for the assistance provided and to be provided, would be 28 years and 6 months. I consider that the offender should be given a discount of 3 years and 6 months for assistance with 18 months of that period being allocated to future assistance. The result is a head sentence of 25 years with a non-parole period of 18 years and 9 months.
7. A direct comparison with Derbridge regarding the discount for assistance is not possible because the Sentencing judge did not identify the discount for the plea separately. However, the effect of the combined discount for plea and assistance given to Derbridge was that he received a reduction of about 19 months from a notional starting point of about 4 years in circumstances where there was not at least a belated plea as here.
8. As far as totality is concerned I do not consider that the sentence for steal in a dwelling house should be entirely concurrent with the sentence for murder. They were separate offences, albeit committed in close proximity. The murder was not committed for the purpose of stealing. The stealing was planned from the outset. It is appropriate that the sentence for the stealing offence should be served first because of the length of the sentence for the murder. There should be an accumulation of 12 months for the start of the sentence for the murder.
9. The offender has been in custody since 31 May 2012, being the date of her arrest. However, she served a sentence of 1 month from 3 July 2012 to 2 August 2012 for unrelated offences of common assault and damage property. She then served a 3 month sentence from 14 July 2012 to 13 October 2012 for unrelated offences of larceny and damage property. It may be noted that she was accorded some leniency in respect of the latter sentence in that it commenced only 11 days into the prior sentence. In my opinion the present sentences should commence at the conclusion of the second of the earlier sentences but taking into account the 3 days in custody pertaining to her arrest for the present offences. The result is that the sentence for steal in a dwelling house will commence on 10 October 2012.
10. Rachael Margaret Evans, for the offence of steal in a dwelling house and taking into account the offence on the Form 1, I sentence you to a fixed term of 3 years imprisonment commencing 10 October 2012 and expiring 9 October 2015. For the offence of murdering Colleen Deborah Ayers, I sentence you to a 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. The overall sentence is an effective 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.

Amendments 25 May 2015 - Publication restriction lifted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2015