R v Evans - [2017] NSWSC 1523 - NSWSC 2017 case summary — Zoe

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R v Evans

[2017] NSWSC 1523

Supreme Court of NSW|2017-10-12|Before: Hulme J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2017-10-12

Before

Hulme J

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

[1]

Solicitors: Solicitor for Public Prosecutions Criminal Defence Group File Number(s): 2014/309094

[2]

Judgment

HIS HONOUR: Ryan David Evans ("the offender") appears today for sentence in respect of a number of extremely serious offences after he was found guilty by a jury on 30 May 2017.
Each offence is contrary to provisions of the Crimes Act 1900 (NSW). The details are as follows: Count Offence Provision At Badgerys Creek on 30 May 2014 s 18(1)(a); s 19A 1 Murder of Keith Cini Maximum: Life SNPP 20 years s 112(3) 3 Break, enter and steal in circumstances of special aggravation, namely being in company and intentionally wounding Luciana Boldi Maximum: 25 years SNPP 7 years At Medway on 28 April 2014 s 112(3) 4 Break, enter and steal in circumstances of special aggravation, namely being in company and intentionally inflicting grievous bodily harm on Brett Delamont Maximum: 25 years SNPP 7 years 5 Detain Alana Bush without her consent with intent to obtain an advantage, namely a financial advantage, while in company s 86(2)(a) Maximum: 20 years 6 Detain Kirby Delamont without her consent with intent to obtain an advantage, namely a financial advantage, while in company s 86(2)(a) Maximum: 20 years 7 Detain Jack Lisle without his consent with intent to obtain an advantage, namely a financial advantage, while in company and occasioning actual bodily harm s 86(3) Maximum: 25 years

[5]

The plan is made

Mr Brett Delamont (aged 50), Ms Alana Bush (aged 49) and their daughter Kirby Delamont (aged 20) lived in a large house on a 30 acre rural property surrounded by similar acreage homesteads at Medway. Kirby Delamont's boyfriend, Jack Lisle (aged 20), would frequently stay overnight.
Kurt Sinclair, Sam Franklin and the offender were all ice addicts. The offender and Sinclair lived in the Macarthur region, south-west of the Sydney metropolitan area. Franklin was a long-distance truck driver who lived with his wife and children in Taree.
Sinclair knew the Medway property and the Delamont/Bush family quite well as he had been in a relationship with Kirby Delamont when he was aged 18.
The offender was with Sinclair and Franklin in Taree over the weekend of 26-27 April 2014. They were each desperately short of money and Sinclair told the others that there was a good chance of there being a substantial amount of money that could be stolen at the Delamont home at Medway. They formulated a plan to carry out a home invasion. Sinclair drew a "rough diagram" of what he knew of the house and he told the others who would be there and what he thought they should do. He told the offender that there would be at least one gun in the house.
On the Sunday evening the three travelled from Taree to the offender's home at Elderslie (near Camden). They gathered various items including rope, duct tape, face coverings, gloves and torches. It was the offender's idea to use rope to tie up the occupants but Sinclair suggested that using duct tape would be better. The offender also took a pick handle. Sinclair told him that it would not be necessary (he gave evidence of saying that Mr Delamont "was not a terribly confrontational man and that excessive use of violence probably would not be required"), but the offender replied, "Just in case".
After gathering these various items and smoking some ice the three men embarked upon the 80km journey to Medway. They travelled on rural roads so as to avoid the main Sydney - Melbourne highway.
Meanwhile, the two couples at Medway had retired at a modest hour to their respective bedrooms at opposite ends of the house. The house lights were off and external doors were closed, but many were unlocked.
When the three men arrived at Medway the car was parked outside the property (after the men had earlier removed the number plates to avoid identification by neighbours). At Sinclair's direction they approached the house along a secondary driveway. Sinclair led the others around to the back of the house where they entered by an unlocked laundry door.
The plan was for the offender and Franklin to go to the master bedroom while Sinclair looked around to see if there was anyone else in the house.

[6]

Events in the master bedroom

Sinclair directed the offender and Franklin towards the master bedroom where Alana Bush and Brett Delamont were asleep. Upon entering the bedroom the offender immediately proceeded to strike Mr Delamont with the pick handle. Franklin's evidence was that the offender "whacked him over the head with the pick handle … it was all pretty full-on". Mr Delamont was asleep at the time. Franklin thought that the first blow was to the head and there was another to the body. When he was asked what sort of force the offender used he replied, "Just hard enough to cave his head in". On any view, they must have been extremely forceful blows because Mr Delamont was rendered unconscious.
Ms Bush awoke and immediately became aware of the presence of the two men in the room. She began to scream as loud as she could, hoping to wake the others at the far end of the house in order to alert them to the danger.
Ms Bush saw the offender standing on Mr Delamont's side of the bed holding the weapon while the other male, Franklin, was standing on her side of the bed. She screamed and the offender angrily told her, "Shut up, shut up or I'll hit him again". When she continued to scream he lunged across the bed and hit it where Mr Delamont was lying. Mr Delamont was not responding; he was convulsing and his head was bleeding.
I pause here to say that Ms Bush did not identify any of the men. They wore items to conceal their appearance as well as gloves. In this narrative I am attributing names based upon the evidence of Sinclair and Franklin. There was some dispute as to whether it was the offender who struck Mr Delamont but I am satisfied on the evidence of Sinclair and Franklin that it was.
The lights were off but as Franklin had a torch Ms Bush was able to see the men and their movements. She could see that Mr Delamont was not moving and that there was a large amount of blood around his head and on the bedding.
The offender bound Mr Delamont's hands in front of him with one roll of duct tape, while Franklin used a second roll of tape to bind Ms Bush's hands.
It appeared to Ms Bush from the outset that the offender was the dominant "aggressive" male. He was screaming at her and constantly moving. She described Franklin as the "passive male".
The offender demanded, "Where's the cash?" Ms Bush told him that she did not know. He said, "Where's the cash or I'll hit him again". She pointed to a chest of drawers. The offender went to them and took a bundle of cash, $4000.
The offender demanded more money: "There has to be more". Ms Bush tried to stall him, telling him that she had to think and not to hurt her husband because he did not know where the money was. There were more threatening words. Eventually she directed the offender to another chest of drawers on her side of the bedroom. The offender came around the bed and searched the drawers and took more cash, about another $4000.
No doubt using the information previously provided by Sinclair, the offender demanded, "Where is your gun?" Ms Bush was shocked that he knew they had a firearm. She directed him to a walk-in wardrobe. The offender and Franklin entered the walk-in wardrobe and located Mr Delamont's .22 magnum rifle in a case behind the door. They returned to the room and the offender asked for ammunition. Ms Bush was terrified what the males would do with a loaded gun and despite knowing where the ammunition was she screamed, "I don't know where they are" and "we don't have any".
At some point during these events, the offender demanded to know where there was more money. Ms Bush told him there was a small amount of money in a tin in the office. He demanded, "Where are the phones?" She told him they just had mobile phones. The men took hers and Mr Delamont's phone, as well as her iPad.
The offender and Franklin stood at the bottom of the bed and the offender demanded, "Tell me who else is in the house". She took a long time to answer because she did not want to reveal the presence of her daughter. Eventually, but reluctantly, she told the intruders that her daughter and Mr Lisle were at the other end of the house.

[11]

Injuries

When paramedics arrived at the Medway home they stabilised Mr Delamont before taking him to Liverpool Hospital. Upon examination he was found to have suffered: a. a wound to the right side back of his head 3cm wide and 1 cm deep requiring suturing. b. bruising to the left temporal area; and c. a fractured skull and bruising to the brain.
Head injury experts believe Mr Delamont was struck around the head a number of times. He remained in hospital for two weeks under the care of a neurosurgical team. For the first five days he was suffering Post Traumatic Amnesia. After release from hospital he was placed under a treatment plan with the Liverpool Brain Injury Rehabilitation unit. He continued under a treatment plan and the care of Dr Ahamed Veerabangsa.
At first, Mr Delamont needed to redevelop everyday skills such as walking, eating, dressing and showering. He suffered language impairment. He required ongoing speech therapy, occupational therapy and physiotherapy. He needed to learn to drive again. His wife and daughter became his care providers.
In June 2014 he was examined by Dr Veerabangsa. It was noted that his speech was functional but he continued to suffer reduced attention, impairment of short term memory, reduced problem solving skills, reduced hearing in his left ear, vertigo and impaired balance. He continued with various therapies.
Dr Veerabangsa carried out an assessment on 25 November 2015, some 19 months post injury. Mr Delamont still showed difficulties and limitations, including reduced attention regulation and information processing, which impacted upon his ability to retain information and to learn and remember new information. Dr Veerabangsa reported that Mr Delamont sustained: "a moderate to severe traumatic brain injury as a result of the alleged assault on 28/04/2014. He received separate injury to the right side and the left side of the head as a result of impact from a blunt object. He has psychological and cognitive/memory difficulties as a result of the injuries sustained. At one year and nine months prognosis is good but long term if not permanent impairment is likely."
Mr Delamont does not recall the incident at all. He said that he is unstable on his feet and at times has fallen. He has suffered episodes of vertigo; for a number of weeks he suffered more extreme vertigo and at those times he has been unable to function at his pre-injury level, suffering nausea and being unable to get out of bed. He underwent further specialised treatment in relation to this.
Mr Delamont also suffers ongoing fatigue; he is unable to multi task; and sometimes has difficulty holding conversations. His sense of smell is no longer consistent and at times it is non-existent. His intellectual and business skills have been greatly reduced. He is no longer able to carry out his managerial role as the owner and director of his drilling company which employed approximately 12 staff members. He is unable to focus for more than short periods of time.
Mr Lisle suffered a red welt mark on his torso as a result of being hit when under the covers by the male with the weapon.

[14]

The home invaded

When Mr Cini and Ms Boldi had retired to their respective bedrooms that evening the external doors were securely locked. Sometime after 3.00 am the offender and Sinclair got out of the car and pulled their balaclavas down. They had with them a pick handle, duct tape and gloves. They entered the property by smashing a front window. Sinclair cut his finger causing it to bleed.
Once inside the property the intruders came into contact with Mr Cini. It would seem that Mr Cini was first attacked in his bedroom on the basis of his blood being found there. His blood was found in various other parts of the house as well, indicating that the intruders caused him to move around the house in order to facilitate them getting access to the safes.
At some point both intruders had Mr Cini outside Ms Boldi's bedroom door. Ms Boldi was woken by Mr Cini calling "Luce". She got out of bed, turned on the light and opened her bedroom door. She saw Mr Cini in the hallway near one or two figures dressed in dark clothing. (For present purposes it does not matter whether it was one or two; I am satisfied that the offender was with Mr Cini at this point.) The offender approached Ms Boldi. She tried to close her door and stood with her back to it but the offender forced his way into her room.
The offender struck Ms Boldi to the head with the pick handle. He kept hitting her and she put her arms up to protect her face. She fell to the floor behind the door after two or three blows. She was lying on her side with her hands over her face. She was hit further on the arms and the hands. She asked the offender to stop but he did not, so she stopped moving. She said that he stopped when he thought she was dead. At that point she heard the other intruder say, "That's enough Brian". I am satisfied that this was Sinclair saying, "That's enough Ryan".
Photographs later taken by a crime scene examiner showed a large amount of blood on the back of Ms Boldi's bedroom door and the wall beside it on the inside of the bedroom.
At some stage the offender violently assaulted Mr Cini in the hallway, including by hitting him in the head with the pick handle. It was Mr Sinclair's evidence that Mr Cini was on the floor and bleeding from the head when the offender directed him to tape him up while the offender went to look for money. Sinclair applied duct tape to Mr Cini's feet but was then called away to assist the offender. When they returned, Mr Cini was sitting up attempting to remove the tape. The offender then struck him five or six times to the head with "extreme force". According to Ms Jacinta Delander, the offender said some time later that "it was like [I] couldn't control myself … [I] just kept going until he [Mr Cini] didn't look like a person anymore and he was covered in blood".
Ms Boldi remained lying on her bedroom floor. During this time the offender and Sinclair were moving from room to room, ransacking the house and trying to gain entry to the locked study where Mr Cini's money was secured in a safe. One of the intruders re-entered Ms Boldi's bedroom, kicked her leg and then ransacked the room. She remained still, pretending to be dead.
Mr Sinclair said there was a conversation in the car as he and the offender left the scene. The offender spoke of being "pretty sure he's fucking dead" and Sinclair told him that he could not be sure of that. The offender is said to have replied, "Pretty sure I do. Pretty sure he died when I caved his fucking skull in".

[21]

Drug use

According to the history given to Dr Furst, the offender commenced using cannabis from the age of 11 or 12. He used amphetamine and MDMA (ecstasy) from the age of 13-14 and methylamphetamine (ice) from the age of 18-19. He ceased using all drugs at around the time of his daughter's birth in 2007 but relapsed a few years later. He told Dr Furst that he wanted to "party", using drugs and enjoying the lifestyle and the women that came with it. His use of ice increased to the point where he was using up to $1000 worth (3g) per day and required the drug to get going in the morning. Nevertheless, he was able to manage a modest amount of sleep per night, maintained a reasonable appetite and was able to work. He also sold drugs to help support his habit.
Ms Moira Evans, the offender's sister, said that he became involved with using ice when he was about 17 or 18. He then abstained for a period but she became aware in 2014 that he was using drugs again. He told her that he was "just out having a little bit of fun". She recalled that he lost weight and was overly energetic.
Ms Hansen described the offender as loud, energetic, ignorant and rude when he was on drugs but she had never seen signs of violent behaviour. The offender's father and sister also said that they had never seen him acting violently.
Mr Shane Evans, the offender's father, said that his son was on drugs in the period 2007-2009 and then there was a period of abstention. He said that at some stage the offender undertook a course concerned with alcohol, drugs and violence with the Aboriginal Medical Service. However, according to the history the offender gave to Dr Furst, he has never taken part in structured drug and alcohol counselling or rehabilitation.
Mr Evans said that his son was experiencing a lot of frustration and tiredness because of his work in the period leading up to the offences for which he has been found guilty.
The offender's sister described him as being open about his drug problem and shortly before his arrest for the current matter he was speaking of making positive changes for himself, his daughter and his family. His daughter is aged nine and she, and other family members, visit him in custody. Comments have been made about his improved appearance and attitude in gaol.

[24]

Dr Furst's report

The offender told Dr Furst of having problems with anger which he said was triggered by frustration. He described "going off" very quickly, whether or not he was using drugs. He would get angry on an almost daily basis. He also told Dr Furst that he is "very impulsive".
Dr Furst considered that the offender's intelligence was in the average range. He found no indication of any major mental illness, intellectual disability or other developmental disorder. He also found no basis for a diagnosis of Bipolar Disorder.
Dr Furst was of the opinion that the offender meets the criteria for the mental disorders of ADHD and Substance Use Disorder (methylamphetamine dependence).
Dr Furst agreed with Ms De Santa Brigida that the presence of ADHD in childhood predisposes and/or is linked with the later expression of a number of adult mental health problems, including substance abuse and a greater susceptibility to the effect of illicit substances. Their explanation was that there is a neurobiological foundation to this. Drugs such as speed and ice have a similar effect on the brain to drugs such as Ritalin which were prescribed to treat ADHD; users of such illicit drugs who had ADHD reported feeling calmer and more inhibited or able to control their behaviour. The offender described to Dr Furst being calm and more focused when using ice at a lower dosage but said he would be "a mess" if he used too much of it.
In his oral evidence, Dr Furst was taken to the offender's early onset of illicit drug use and he said that "those who use drugs earlier would tend to have a more persistent adult patterned drug use, more indicative of addictive tendencies of vulnerability, perhaps".
Dr Furst deferred making a diagnosis of the offender's personality. It was complicated by the presence of a number of features, particularly drug use. He said the offender's "personality and attitudes when drug-free are best assessed over the passage of time with sustained abstinence".
Given the offender's denial of the offences, Dr Furst found it difficult to provide a categorical opinion as to the offender's mood and thoughts at the time. A review of the Crown Case Statement and the history provided to himself and Ms Santa De Brigida by the offender suggested that the main motivation for his participation in the offences was his addiction to ice, which is often associated with aggression and violent offending. Dr Furst said that there were no indications that the offender was unaware of his actions or their wrongfulness. He considered that his underlying ADHD and his addiction to ice probably mitigated "to some degree against the seriousness of his actions, especially as addiction is being increasingly recognised as a neurobiological disorder, rather than just a personal moral choice".
Dr Furst's recommendations for future treatment were for a further trial of a stimulant medication such as Ritalin or Dexamphetamine; structured psychological programs to address addiction issues; and a program to address anger management and offence-related issues and to improve the offender's level of insight and apparent negative attitudes. He considered that work and/or education would also be of assistance.
Dr Furst said that the offender's risk of future offending was difficult to estimate given the lengthy period of time he was likely to spend in custody, uncertainty about his future attitudes, engagement in therapy programs and medication, and potential for amelioration of negative personality trait characteristics over the passage of future decades. He noted that the offender was close to his family, and had worked and studied reasonably successfully in the past. Having regard to these factors and acknowledging the inherent uncertainties involved in prediction of future human behaviour and risk, Dr Furst was of the opinion that the risk of violent re-offending is in the moderate to high range. He explained in his oral evidence, however, that this was not a sound assessment and suggested that it would not be fair to rely upon it.

[25]

Objective seriousness of the offences at Medway

The Medway offences are of considerable objective seriousness. They arose from the planned targeting of a home in a rural location, some distance from neighbours, where the occupants were not only entitled to safety and security, but at a time when they were at their most vulnerable, in bed asleep. The three offenders equipped themselves with means of restraining the occupants and the offender armed himself with a weapon capable of inflicting severe blunt force trauma.
The Crown submitted that it should also be found that "well prior to entering Medway [the offender] had determined that he would take the pick handle with the intention of using it with extreme violence on an occupant or occupants of the home". This was said to follow from the manner in which Mr Delamont was attacked.
The manner in which Mr Delamont was attacked clearly showed that the offender intended to inflict really serious bodily harm. The attack was so brutal and forceful that the harm sustained by Mr Delamont exceeded that which was necessary to make out the element of grievous bodily harm. However, I can only be satisfied beyond reasonable doubt that the offender went to the premises with the pick handle for offensive purposes in mind; he may have intended extreme violence before arriving at the home but I cannot be certain of this.
Mr Sinclair was sentenced in respect of the offence concerning Mr Delamont on the basis that he foresaw that the infliction of such harm was something that could well occur. The present offender must be sentenced on the basis that he actually intended and caused this harm. What makes it even worse is the fact that Mr Delamont was not offering any resistance, or even protest, but was extremely vulnerable, lying in bed asleep.
Given all of the circumstances in which it occurred and the severity of his injuries, the objective seriousness of the offence concerning Mr Delamont is of a very high order, close to the top of the range. The offences concerning Ms Bush, Ms Delamont and Mr Lisle are all well above the mid-range. They were each detained by being bound hand and foot by duct tape, after being woken in their beds by multiple offenders (one of them wielding a pick handle). The ordeal must have been utterly terrifying and the ongoing psychological trauma significant. Counsel for the offender was correct to describe what occurred at Medway as "a violent brutal home invasion".

[26]

Objective seriousness of the offences at Badgerys Creek

The Badgerys Creek offences were also the product of a planned targeting of a home at a time when the occupants would be at their most vulnerable. The home was in a semi-rural area with few neighbours in close proximity. Again, the offender and Sinclair equipped themselves with means of restraining their victims and the offender brought along a weapon capable of inflicting severe blunt force trauma. The infliction of physical harm in the case of both victims was callous and gratuitous.
There was no dispute for the purposes of sentencing that it was the offender who killed Mr Cini. In any event, I am satisfied of this beyond reasonable doubt based upon the evidence of Mr Sinclair and the combined effect of admissions made by the offender to Mr Shaun Kenney, Mr Franklin and Ms Jacinta Delander.
A submission was made by counsel for the offender that I should find that it was a reasonable possibility Sinclair carried out the attack upon Ms Boldi. For example, it was said that "it is possible if not probable that each of the offenders singled out and set upon a single victim in and about the same time". There are a number of problems with this submission. Some of the points raised were not supported by evidence but were purely speculative, for example, that there was a possibility that more than one weapon was brought to the scene. I am satisfied beyond any doubt that there was only the one weapon, as Mr Sinclair said in his evidence. The suggestion that the offender brought it to the scene (which is not disputed) but that Sinclair acquired and used it to attack Ms Boldi before returning it to the offender who used it to kill Mr Cini is fanciful.
One of the matters relied upon by counsel for the offender to support the notion that it was Sinclair who attacked Ms Boldi was an opinion she had expressed about the height of her attacker. I would place no reliance upon her opinion in relation to this because of the terrifying circumstances in which she made her observations of that man, and having regard to the fact that, while she was upright for a very brief period at the commencement of the attack, she was then cowering on the floor covering her head and pretending to be dead. The undisputed fact that while Ms Boldi was being attacked she heard the other intruder call out, "That's enough Brian" (which I am satisfied was a mishearing of "Ryan") further puts paid to the submission. I am satisfied beyond reasonable doubt that it was the offender who attacked Ms Boldi.
The repeated beating of Ms Boldi with a weapon in her own bedroom, wounding her and causing other quite significant physical injuries after the offenders had violently broken into the home in the middle of the night, is an offence of considerable seriousness; well above the mid-range.
I am satisfied beyond reasonable doubt that by going armed to Badgerys Creek the offender contemplated the use of the pick handle to cause serious harm to one or more occupants. I am also satisfied that while Mr Cini was lying in the hallway, injured and bound, completely defenceless and vulnerable, the offender formed an intention to kill him. The offender's counsel described it as "a cowardly, violent and shameful attack". I agree.
I accept that it may be possible that there was some physical interaction between Mr Cini and Sinclair while the offender was battering Ms Boldi. However, a contention that the offender attacked Mr Cini in order to rescue Sinclair is one I cannot accept. Sinclair's evidence, which I accept on this aspect, was that Mr Cini was sitting up and trying to remove the duct tape from around his feet when the offender proceeded to strike him five or six times to the head with the pick handle with extreme force. Duct tape was later found on Mr Cini's wrists and ankles. But even if the offender attacked Mr Cini for the reason suggested, I fail to see how it would make any difference to the offender's culpability given that the ferocity of the attack went way beyond what might have been necessary to "rescue" Mr Sinclair.
The offender's culpability for the murder is greater than that of Sinclair, who was sentenced on the basis that he knew the present offender was armed and that grievous bodily harm could well be inflicted (but was not aware of the possibility of death). While the offender initially contemplated that he would cause grievous bodily harm, he proceeded callously and unnecessarily, but intentionally, to kill Mr Cini.
Counsel for the offender conceded that "this [is] a very serious, or grave, example of this crime" but submitted that it was not within the worst case category. The Crown, on the other hand, submitted that the offender's culpability was so extreme as to warrant the imposition of a sentence of imprisonment for life.
The written submissions for the Crown provided a useful summary of the legislation concerning mandatory life sentences for certain offences (s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) and cases dealing with this issue. It was submitted that "[t]his is a murder committed in company upon an elderly man in the early hours of the morning in his home" and that "the objective circumstances reach the level addressed by the legislation and that this offender's level of criminality has that level of extreme wickedness referred to in the common law cases".
I have given earnest consideration to the Crown's submission but, as bad as it is, I am not satisfied to the required standard that the murder of Mr Cini falls within that extreme category (although I am satisfied that it is very close to it). I am satisfied that the need for punishment, retribution, deterrence and community protection can be sufficiently served by the imposition of a long determinant sentence.

[28]

Sentencing of co-offenders

In relation to the sentences imposed upon co-offenders, it is only necessary to refer to the sentencing of Kurt Sinclair. It was not contended by counsel for the offender that I should also have regard to the sentencing of Sam Franklin for his involvement in the Medway offences or of Ms Brittany Bradshaw for her offences in the aftermath of the Badgerys Creek offences (receiving stolen property and concealing a serious offence).
Kurt Sinclair pleaded guilty to offences at Medway and Badgerys Creek and was sentenced by me on 15 May 2017: R v Sinclair [2017] NSWSC 686. The sentences for the offences at Medway and Badgerys Creek were reduced by 35% and 15% respectively for his pleas of guilty and his undertaking to give evidence in the present offender's trial. I imposed an aggregate sentence of 38 years with a non-parole period of 28 years and 6 months. Details of his offences and the individual sentences (which after discounting were rounded) are set out in the following table. Offence Starting point Indicative Sentence 1 Murder of Keith Cini 35 years 30 years NPP 22 years 6 months 2 Break, enter and steal in circumstances of special aggravation, namely being in company and intentionally inflicting grievous bodily harm upon Luciana Boldi 16 years 13 years 6 months NPP 10 years 3 Break, enter and steal in circumstances of special aggravation, namely being in company and intentionally inflicting grievous bodily harm upon Brett Delamont 18 years 6 months 12 years NPP 9 years 4 Detain Alan Bush without consent in company with intent to obtain a financial advantage 13 years 8 years 6 months 5 Detain Kirby Delamont without consent in company with intent to obtain a financial advantage 13 years 8 years 6 months 6 Detail Jack Lisle without consent in company causing him actual bodily harm with intent to obtain a financial advantage 14 years 9 years

[30]

Other matters bearing upon the assessment of sentence

In assessing the appropriate sentence for each offence I am obliged to have regard to the statutory guideposts of the prescribed maximum penalties and standard non-parole periods (where applicable) to which I have earlier referred (in the table at [2]).
Of the aggravating factors listed in s 21A(2) of the Crimes (Sentencing Procedure) Act, there are no further matters that I have not already taken into account in my assessment of the objective seriousness of the offences (see above at [107]-[122]).
There is no suggestion that the offender is remorseful. Indeed, no submission was made that any of the mitigating factors listed in s 21A(3) are present. I cannot discern any.
The purposes of sentencing listed in s 3A need to be borne in mind. Principal among these are deterrence, denunciation, making the offender accountable for his actions and recognising the harm caused. Relevant to the weight to be afforded to these matters is my acceptance that the offender's moral culpability for breaking into homes in order to steal property is reduced to a modest extent because of the indirect link between the childhood-onset ADHD condition and the subsequent drug addiction that it rendered him more susceptible to. I do not find, however, that his moral culpability for the acts of violence is reduced on this account at all.
Protection of the community is presently a concern given the nature and seriousness of the offences. However, having regard to the likely age of the offender when he may be considered for release, it is a factor of less significance.
An aggregate sentence is to be imposed and shortly I will indicate the sentences that would otherwise have been imposed for the individual offences. There is additional criminality in each of the offences and so it is necessary for there to be some notional partial accumulation in the application of the principle of totality. It will be relatively modest, however, because of the length of the sentence I would impose for the murder alone.
It was not submitted that there are special circumstances that would justify the non-parole component of the sentence being less than three quarters of the overall term. The usual statutory proportions will allow for a more than adequate period of potential parole supervision, assuming parole be granted.
I am obliged to warn the offender that he may be the subject of proceedings brought against him under the Crimes (High Risk Offenders) Act 2006 (NSW) for his continued detention or supervision at the end of his sentence. I ask his solicitor to explain the ramifications of this to him, including the steps he can take towards rehabilitation which might minimise the prospect of such proceedings.
The offender has been in continuous custody since his arrest and so his sentence must be backdated to 21 October 2014.

R v Evans

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Judgment (33 paragraphs)

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Cited By (4)