R v Evans

Catchwords: SENTENCING — Serious example of intimidation and knife offences — Relevant factors on sentence — Mental health of Offender — Deprived background — Poor criminal history — Prospect of appropriate treatment low — Protection of community given significant weight — Offender already institutionalised — Limitations in criminal justice system dealing with Offenders suffering mental health issues in an appropriate way

Legislation Cited: Crimes Act 1900 (NSW) s 33B(1)(a); s 93IC(1); s 60(1)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A; s 5; s 21A

Cases Cited: Bugmy v The Queen [2013] HCA 37
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Ingrey v R [2016] NSWCCA 31
Millwood v R [2012] NSWCCA 2
Muldrock v The Queen (2011) 244 CLR 120
R v Harbourne [2025] NSWDC 388
R v Henry (1999) 46 NSWLR 346
R v Israil [2002] NSWCCA 255

Category: Sentence

Parties: Rex (Crown)
Todd Evans (Offender)

Representation: Counsel:
K Buck (Solicitor) (Crown)
I Vizintin (Offender)
Solicitors:
ODPP (Crown)
Legal Aid (Offender)

File Number(s): 2024/383964; 398054; 399398

Publication restriction: Nil

JUDGMENT

Overview

1. Mr Evans (“the Offender”) was born on 9 December 1984 and is now 42 years of age.

2. He has an appalling criminal record, including violent crimes.

3. Since first being incarcerated as an 18-year-old in 2003, he has spent most of his life in gaol. The longest periods he has been at liberty in that 24-year period have been:

4. Seven months from 7 December 2007 to 23 July 2008.

5. Eight months from 24 February 2009 to 31 October 2009; and

6. Ten months from 17 December 2023 to 27 October 2024.

7. On 27 October 2024, the Offender was arrested for the offences for which he is now to be sentenced. He was on parole at the time for earlier serious offences. He has been in custody since his arrest, a period of 16 months and 25 days. However, for the whole of that period, he was also serving the balance of the earlier sentence for which his parole was revoked. That earlier sentence still has the best part of a year to run, expiring 17 December 2026.

8. The Offender is a Wiradjuri man who endured an upbringing that I am satisfied involved physical, emotional, and sexual abuse which well and truly qualifies for the description of “deprived background" as explained in cases like Bugmy v The Queen [2013] HCA 37.

9. The Offender also has significant mental health issues which, I have no doubt, in combination with his deprived background, are causally connected to his present offending. This reduces his moral culpability. The combination of his deprived upbringing and his mental health issues, together with his heavy use of methamphetamine, which itself is a consequence of those other factors, makes him a very poor candidate to send a message of general deterrence to the community.

10. On the other hand, the facts of the present offending and the Offender’s history of criminal conduct demand that a finding be made that, at the present time, he is a danger to the community. Whilst I have not given up on his prospects of rehabilitation, the best that can be said at this time for the Offender’s risk of reoffending is that it is high. As is so often the case in these situations, his prospects of reoffending are inversely proportional to his prospects of becoming drug-free in circumstances where he is a long and entrenched heavy user of, amongst other illicit substances, methamphetamine.

11. I am satisfied that the Offender is remorseful for his current offending which he puts down to “it getting hard when I got out*…* Being out of jail is hard" and the fact that he was heavily under the influence of methamphetamine at the time of the offending.

The offending

9. There are six charges that cover three separate and distinct days of criminality. I have grouped them together into those 3 days.

10. The first I will refer to as “the Woolworths incident” which took place on 7 October 2024. The second is carrying a visible knife in public and using an offensive weapon with the intent to intimidate, both of which occurred on 27 October 2024, which I will refer to as “the 27 October Conduct”, and the third being his conduct towards police on 28 October 2024 at Waverley Police Station and Waverley Court when he was first brought before the Court for the other charges. There are 3 charges from this conduct, which I will call “the Police Offences”.

The charges

11. Before coming to the facts, not all of which are agreed, I set out the offences and the maximum penalties, together with their sequence numbers.

| Event and Sequence | Offence | Section and Act | Maximum Penalty | | The Woolworths Incident | | H82351557 – Seq 4 | Stalk/Intimidate intend fear physical harm (personal) | s 13(1) Crimes (Domestic and Personal Violence) Act 2007 | 5 yrs &/or 50 PU | | The 27 October Conduct | | H98534326 – Seq 1 | Carry knife visible in public place cause fear for safety | s 93IC(1) Crimes Act 1900 | 4 yrs &/or 100 PU | | H98534326 – Seq 3 | Use offensive weapon with intent to commit indictable offence (Axe / hatchet to intimidate | s 33B(1)(a) Crimes Act 1900 | 12 yrs | | The Police Offences | | H82058435 – Seq 5 | Intimidate police officer in execution of duty without causing actual bodily harm | s 60(1) Crimes Act 1900 | 5 yrs | | H82058435 – Seq 6 | Assault police officer in execution of duty without causing actual bodily harm | s 60(1) Crimes Act 1900 | 5 yrs | | H82058435 – Seq 2 | Intimidate police officer in execution of duty without causing actual bodily harm | s 60(1) Crimes Act 1900 | 5 yrs |

Contested facts

12. The facts were largely agreed. Prior to commencing the sentence hearing itself, I heard evidence and submissions as to two contested facts. The first fact in contest was the question of whether the Offender actually had a knife in his pocket when dealing with a security guard in the Woolworths Incident, and the second being what he threatened a 14-year-old schoolgirl with in the 27 October Conduct. The possibilities being, on the one hand as contended for by the Crown an axe or hatchet, or on the other hand as contended for by the Offender, a wooden leg from a table which had a silver steel component at one end that would have looked very much like an axe.

13. After hearing evidence and submissions as to those contested facts, I indicated to the parties that I was satisfied beyond reasonable doubt that, in the Woolworths Incident, the Offender did show the handle of a knife to the security guard and the manager of the shop, which knife was in the pocket of his hoodie. I also indicated that I was not satisfied beyond reasonable doubt that the weapon used on 24 October was an axe or hatchet, but rather I was satisfied beyond reasonable doubt, firstly, that what was used was a table leg as I have described, and secondly, that the Offender did cross the road and follow the Schoolgirl down the street in the course of threatening her with that weapon.

14. I said that I would provide my reasons for those findings as part of my sentencing judgment. My reasons for so concluding are as follows.

15. As to the Woolworths Incident, the evidence relied on by the Crown consisted of CCTV footage of the incident, together with oral evidence of the security guard.

16. I found the security guard to be an honest witness and have no doubt, indeed it was not submitted to the contrary, that he honestly believed that he saw the handle of a knife in the Offender’s right hand in the Offender’s pocket just before the Offender said words along the following lines. “I will use this if youse [sic] come any closer." Both the security guard and the shop manager then both immediately step back three or four paces and look apprehensive.

17. In the CCTV footage, the Offender can be seen holding some groceries under his left arm and, for most of the interaction, has a mobile phone in his right hand. At the point just before he says the above words, he puts his right hand into the pocket of a “hoodie" that he was wearing, he then says the words, the two people immediately look scared and step back, and he then removes his hand, which again has the mobile phone in it.

18. The Offender gave evidence that there was no knife in his pocket and that, when he said the words “I will use this if youse [sic] come any closer," he was referring to either the mobile phone in his pocket, together perhaps with a clenched fist around that mobile phone.

19. I found the Offender’s evidence in this regard to be unsatisfactory to the extent of implausible and do not accept it. Whilst it is true that no part of a knife can be seen in the CCTV footage, I have no reason not to accept the direct evidence of the security guard when he says that he saw the handle of something that he believed to be a knife, and most certainly not a mobile telephone, at the time the words were spoken, which explains why he and the other man stepped back. The reaction of the two people involved is entirely consistent with his evidence. It is not suggested that the security guard did not think he saw a knife, rather it is put that he is honestly mistaken. I do not accept that submission. Apart from anything else, the words spoken by the Offender make no sense if all he had in his pocket was a mobile phone.

20. As to what happened on 24 October, the essential agreed facts were that the Offender came out of his house to confront a group of school children with something in his hand.

21. He gave evidence that what he had in his hand was a table leg that may well have looked very much like an axe.

22. He says that he stayed on his side of the road and did not cross the road, nor follow the Schoolgirl down the street to threaten her with it.

23. On the other hand, the Schoolgirl gave evidence, as did an entirely independent witness who did not know either the Schoolgirl or the Offender. Both the Schoolgirl and the Offender say that the Offender was carrying an axe or a hatchet.

24. They were both very impressive witnesses, and I accept entirely that their honest perceptions at the time were that he was carrying an axe or hatchet.

25. The Offender was not an overly impressive witness and some of his evidence was inconsistent and a little bit incoherent.

26. When I consider the matter, I have doubt. This is because it is common ground that what the Offender says he was carrying looked very much like an axe or hatchet, it is also accepted that he was waving it about as if it was some sort of weapon, which might well explain why, in the heat and stress of the moment (from the Schoolgirl’s perspective), or from an upstairs window (from the witness’ perspective), they perceived it to be an axe.

27. I am not satisfied to the requisite standard of beyond reasonable doubt and therefore concluded that he was carrying a table leg as described.

28. However, I do accept the evidence of the Schoolgirl and the neighbour where it conflicts with the Offender as to whether he crossed the road and followed the Schoolgirl down the street and I am so satisfied beyond reasonable doubt. I reject the Offender’s evidence to the contrary.

29. Having resolved those two contested factual matters, when combined with the Agreed Facts, the facts for the purpose of sentencing are as follows.

The Woolworths incident – 9 October 2024 – H82351557

Sequence 4

30. On 9 October 2024, the Offender was at Woolworths Eastgardens. He was behaving strangely, pacing up and down the aisles, talking to himself, and playing loud music from his backpack.

31. The store manager was keeping an eye on the Offender. This made the Offender angry. The Offender said, “what the fuck are you looking at cunt*?” to which the store manager replied “mate, I’m not looking at you, just go about your shopping”. The Offender then said, “tell everybody to stop fucking looking at me.*”

32. The store manager then located a security guard, and they both spoke to the Offender who was still in the store. He was noticeably irritable and vocal, again questioning why people were looking at him. The Offender approached the security guard and said, “who called you*?* this cunt*?*” referring to the store manager, followed by “or that slut?” referring to a female store employee.

33. The Offender then walked up to the security guard and while standing approximately one meter away from both the store manager and the security guard, he reached his right hand into his hoodie pocket and pulled the top of a knife out and then motioned his head in the direction of his hand.

34. The Offender said to the pair, “I will use this if yous**e [sic] come any closer”. The store manager and the security guard both backed away from the Offender. The store manager immediately went to the office area of the store to call police. The security guard continued to talk to the Offender to try and diffuse the situation.

35. The security guard said to the Offender, “there is no need to do this”, in which the Offender responded, “I needed to get groceries for my sick child”. The security guard responded, “if you want to, you can purchase your items and be on your way”. The Offender proceeded to drop the grocery items he was carrying before leaving the store. The security guard followed the Offender until he had left the store.

The 27 October 2024 Conduct – H98534326

36. A schoolgirl, who I will refrain from naming, but will refer to as “the Schoolgirl”, was 14 years old at the time of the offending.

Sequence 1

37. On Sunday 27 October 2024, the Schoolgirl and some of her friends were on the 392-bus travelling from Eastgardens to Matraville. There had previously been some sort of interaction between them and the Offender at the shopping centre. The Offender was also on this bus. A conversation ensued, before the Offender produced a knife and proceeded to violently stab and slash the bus seat. This occurred in the presence of a number of school children and other people. All of whom would have been scared for their safety.

Sequence 3

38. The Schoolgirl and her friends got off the bus and were walking home. The Offender had previously also got off the bus and began yelling at the group and chasing them. The group separated, the Schoolgirl ran and hid in the front yard of a house. The Offender went into his home and retrieved a table leg that had steel on one end. It looked like an axe.

39. When the Schoolgirl thought it was safe to do so, she came out from hiding and began walking down the street. The Offender saw her and began chasing her with the table leg in his hand. The Schoolgirl thought that it was an axe.

40. As the Offender was chasing her, he yelled out to her that she had “bricked” his window and said to her, “I’ll fucking rip your head off”. She says she replied, “it wasn’t even me”.

The Police Offences – 28 October 2024 – H82058435

41. In October 2024, Constable Maxwell Stutely, Constable Madeline Hession, and Sergeant Ben Elder, were serving Police Officers attached to Eastern Beaches Police Area Command.

42. On 28 October 2024, the Offender was held in custody at Waverly Police Station awaiting an appearance before Waverly Local Court for the charges relating to the Woolworths Incident and 27 October 2024 Conduct. At about 11:10am, Constable Stutely and Constable Hession conveyed the Offender from his cell to Courtroom 2 at Waverly Local Court. The Offender was bail refused by the Magistrate and was required to be taken back to his cell at about 11:25am by Constable Stutely and Constable Hession. At this time, the Offender became agitated and erratic.

Sequence 6

43. Constable Stutely opened the door of the dock in the courtroom, and as Offender began to exit the dock, he stated to Constable Hession “move out of the fucking way”. The Offender then lunged quickly towards Constable Hession. Constable Hession, believing that she was going to be headbutted, moved out of the way to avoid getting hit.

Sequence 5

44. The Offender moved towards the courtroom door that Constable Stutely was holding open for him and Constable Hession to exit through. As Constable Stutely followed through the door and walked past the Offender, the Offender forcefully used his right elbow to make contact with Constable Stutely’s right eye, causing him immediate pain. There was subsequent swelling. The Offender was placed in handcuffs and escorted back to his cell.

Sequence 2

45. Once the Offender was back in his cell, Constable Adams, Sergeant Elder, and Sergeant Holden entered the charge room to check on the welfare of Constable Stutely. At this time, Sergeant Elder approached the Offender to speak to him regarding the assault. The Offender was highly agitated and pleaded with Elder to take his handcuffs off and to engage in a fight. The Offender then stated to the Officers, “when I get out, I am going to come back and shoot you three”.

46. The Offender then separately threatened Sergeant Elder. These threats made Sergeant Elder feel fearful.

47. Sergeant Holden placed the Offender under arrest and cautioned him.

48. Sergeant Elder activated his body worn video to offer the Offender an offer to be interviewed. A conversation then occurred where the Offender falsely accused the police officer of threatening his family.

Objective seriousness

The Woolworths Incident (Sequence 4)

49. I consider the objective seriousness of this offending to be high. The Offender intended to cause fear in the two people he was dealing with, who were both at their place of work, by showing them the handle of a knife and indicating that he was prepared to use it on them.

The 27 October 2024 Conduct (Sequence 1)

50. The offence is the carrying of the knife on the bus so as to cause people to be in fear of their safety.

51. What the Offender did was to get on a public bus where there were a number of schoolchildren and other people and then take out a knife and to slash the bus seat in their presence. He did so in a violent and aggressive manner, which would have caused significant fear in everyone else on the bus.

52. I consider this offending to be a very serious example of this type of offence.

The 27 October 2024 Conduct (Sequence 3)

53. As far as the incident later that day involving the table leg, again, even accepting that the offending did not involve an axe, the fact is a table leg with some sort of steel on the end of it that looked like an axe wielded by an adult against a 14-year-old schoolgirl in her own street, only needs to be described to understand just how serious it is. She would have been terrified.

The Police Offences (Sequences 2, 5, and 6)

54. Whilst no doubt police have to put up with all sorts of antisocial conduct by people in their custody, again, I consider this offending to be serious, insofar as I would place it around the middle of some sort of notional range.

Aggravating factors

55. As to the carrying of the knife in a public place on 27 October (Sequence 1), the offending occurred in the presence of a number of children, which an aggravating factor: s 21A(2)(ea). Again, the incident involving the use of the table leg (Sequence 3) involved a 14-year-old girl. I must be mindful to not double count here because I have already factored into my assessment of the objective seriousness of the offending that children were involved.

Mitigating factors

Plea of guilty

56. The Offender pleaded guilty to all of the offences at the first available opportunity but did not agree as to all of the facts for the Woolworths Incident, nor the 27 October Conduct: s 21A(3)(k).

57. I have resolved the factual contest largely in favour of the Offender in relation to the 27 October Conduct, but not in relation to the Woolworths Incident. It is common ground that the Offender should lose some (but not all) of what would otherwise be his entitlement to a 25% discount, because the utilitarian value of that plea was not as great as it otherwise would have been, in particular as the witnesses to that event were called and cross-examined.

58. I propose to deal with that issue by reducing the 25% discount in relation to that first charge to 20%.

59. Otherwise, the Offender is entitled to the full 25% discount from what would otherwise be his sentence for the other matters. The pleas of guilty are also relevant to the important questions of remorse and insight.

The Offender’s subjective case

Age as at sentence and age as at the offending

60. The Offender is 41 years of age. He was 39 years of age at the time of the offending.

Family and relationships

61. The Offender identifies as a Wiradjuri man through the ancestral birthrights of his mother. He has four older sisters, two of them sharing the same mother and two of them sharing the same father. He was removed from his parents' care at 9 months of age. He and two of his sisters were placed with a foster family.

62. He was abused physically, emotionally, and sexually by his foster father. His foster father also physically abused his foster mother.

63. He ran away from his foster home when he was about 16 years of age. He stayed in refuges and on the streets of Canberra and Queanbeyan. He secured his own housing in the Oaks Estate in Queanbeyan when he was 17 years of age.

64. His cousin committed suicide when he was 17 and the event had a profound impact on him.

65. He has had three serious relationships in his life. He has three children each from one of those relationships, only one of which he still has contact with. She is 10 years’ old.

Education

66. The Offender attended Wanissa High School in year 7 for a week and then attended Lanyon High School. At Lanyon High School, he was physically and sexually abused by the school principal

67. He attended Lanyon High School until half-way through year 9. Subsequently, he attended a behavioural school until the end of year 10. He started year 11 at Woden College but left after learning the same principal from Lanyon High School was now the principal of Woden College

68. He was suspended multiple times at school for behavioural issues and had difficulties with concentration.

Employment

69. The Offender attended the National Culinary Institution from the beginning of 2024.

70. He has completed a number of programs whilst incarcerated.

Drug and alcohol use

71. The Offender started smoking marijuana at 12 years of age and stopped after he was released from gaol in 2023.

72. He started drinking alcohol at 12 years of age and stopped at 19 years of age.

73. He started using heroin at approximately 14 to 15 years of age and stopped at approximately 17 years of age after witnessing a friend overdose.

74. He starting using methamphetamine at approximately 16 to 17 years of age and stopped using upon his incarceration for the offences before me. He was using meth heavily at the time of the offending.

75. He has been on the Buvidal Treatment Program for the last six years and engaged in weekly drug and alcohol counselling with his CRC AOD counsellor, Liam Naudi.

Mental health

76. The Offender was diagnosed with ADHD as a child. He has also been diagnosed with depression, anxiety, social anxiety, substance use disorder, and complex post-traumatic stress disorder.

77. He has been participating in weekly counselling for the last 10 months whilst incarcerated through Victim Services.

78. He was hospitalised after a suicide attempt when he was 17 years of age, in response to his cousin's death.

79. In her report, Ms Vanessa Edwidge, psychologist, opined at [15]:

“Mr. Evans has had a childhood and adolescent trauma history which has impacted on his ability to self-regulate. Mr. Evans' dysregulated behaviour from a young age is indicative, in my clinical opinion, of complex developmental trauma resulting from cumulative exposure to adversity and early Life disadvantage. Developmental trauma increases the risk of dysfunction in the areas of language development and functioning in the social, emotional and behavioural domains.”

80. And later, at [16]:

“His history is characterised by prolonged exposure to abuse and neglect, including physical, emotional, and sexual abuse by a trusted caregiver, institutional trauma within a school setting, and significant losses, including the deaths of multiple close family members. These adversities occurred during critical periods of neurological, emotional, and relational development and have had enduring effects on his capacity for emotional regulation, stress tolerance, attachment security, and adaptive coping.

…

At the time of the offences, it is my opinion that Mr. Evans was experiencing an acute psychological deterioration in the context of cumulative stress, unresolved trauma, and substance intoxication. It is my clinical opinion that at the time of the offences Mr. Evans had mental health impairments that were clinically significant and arose from Complex Post traumatic Stress Disorder, Major Depressive Disorder with anxious distress and Substance use disorder (stimulant use disorder) and meets the diagnostic criteria in the DSM 5 and lCD11 for these disorders. In this context, Mr. Evans' emotional regulation and executive functioning were significantly impaired. His account indicates a state of acute emotional overload, substance intoxication, and stress-induced dysregulation, culminating in significant paranoia. His behaviour at the time in my opinion is best understood as reactive and trauma driven, arising from a collapse in coping rather than from antisocial values. It is my opinion that Mr. Evans' ability to make to make reasoned judgments, think clearly, regulate his behaviour and fully appreciate the wrongfulness of the act was significantly impaired at the time of the offence.”

81. The fact that an Offender has “a mental illness, intellectual handicap or other mental problems” may be taken into account on sentencing: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 (“De La Rosa”) at [177].

82. An Offender's mental condition can have the effect of reducing a person's moral culpability and matters such as general deterrence, retribution and denunciation have less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354.

83. I am satisfied that the following principles from De La Rosa apply:

84. The Offender’s mental health contributed to the commission of the offence in a material way, and his moral culpability should be reduced with a reduction in the sentence.

85. A custodial sentence may weigh more heavily on the Offender.

86. There is a reduced need for specific deterrence.

Deprived background

84. I accept that the Offender’s upbringing included significant family disruption and early exposure to drugs and alcohol, domestic violence, and childhood sexual assault.

85. The Offender’s background compromised his "capacity to mature and learn from experience": Bugmy v The Queen [2013] HCA 37 at [43]; Ingrey v R [2016] NSWCCA 31 at [39]. I accept that his deprived background means that:

86. There should be some reduction in moral culpability, because the Offender has had fewer emotional resources to guide his behaviour: Millwood v R [2012] NSWCCA 2 at [69].

87. Whilst acknowledging the important role of general deterrence in the sentencing exercise, there should be some reduction in weight attributed to general deterrence.

88. Rehabilitation should form a significant part of the sentencing exercise.

Antecedents

86. It is common ground that the Offender’s significant criminal record disentitles him to the leniency that he might otherwise be afforded. It is so substantial in terms of quantity that I will not try and summarise it. Suffice to say, it includes a long history of all sorts of offending, including violent offending.

Remorse and insight

87. The Offender has expressed remorse as to his conduct. He puts it down to his continued drug use and the fact that he finds it difficult to cope with life out of jail.

88. Ms Edwidge records that he said to her:

"I regret them all. If I could take it back I would. I would have done things differently. Mental health was really bad at the time. It was gone. Not sleeping, not eating, and up for weeks"

89. I think his remorse is more directed to his disappointment in himself for ending up back in custody, rather than a real appreciation for the effect his conduct has had on others, and his insight is, again, not complete.

90. Nonetheless, he is sorry and understands that, in order to not reoffend, he needs to stay off drugs and get treated for his mental health issues. He does not want to reoffend because he wants to maintain a relationship with his youngest child. He does not want to spend the rest of his life in gaol, which is what will happen if he continues to offend. He understands this.

Prospects of rehabilitation and likelihood of reoffending

91. The questions of a person's prospects of being rehabilitated and/or the likelihood of them reoffending, are necessarily a prediction about what might happen in the future.

92. The past is not always an accurate guide as to the future. However, it is often all one has to go on. It is not irrelevant that the Offender has been in and out of custody for most of his adult life, and undoubtedly has, from time to time, tried very hard to get free of drugs, but has failed.

93. It is not just his drug use that he needs to deal with. He needs to get proper treatment for his mental health issues.

94. That is not happening in a satisfactory way whilst he is in custody. He is asking for help, but it does not seem to be available.

95. Ms Edwidge has expressed the following opinion as to the Offender’s commitment to improving himself:

“He has said that he is devoted to his 10-year-old daughter and knows that, unless he can become a better member of the community, he will not manage to succeed in that endeavour”

96. As far as it goes, I accept all of that.

97. Dr John Roberts, psychiatrist, says the following:

“I have formulated a Treatment Plan which contains modalities of treatment which has the potential to assist Mr Evans, however the condition(s) suffered by Mr Evans would on reasonable psychiatric grounds, render him a person who would be unlikely to be able to persevere with treatment, the treatment for his psychopathology would be complex, both for him and for his therapist, would require considerable effort by his therapist and Mr Evans, to continue to engage in treatment over time, and while theoretically the Treatment Plan as set out below, is appropriate, the probability that Mr Evans would be able to persevere with treatment, cooperate with treatment and achieve the abstinence from substances that would be necessary for treatment success, would be remote.”

98. This opinion, which I accept, is as sad as it is realistic.

99. The Sentencing Assessment Report prepared by Corrective Services assesses the Offender as being in well above the average range of committing a sex offence and a high risk of reoffending generally.

100. It is also a sad, objective fact that the Offender has a poor recent history of compliance with supervision and parole conditions, including in his recent period on parole, not complying with the reporting conditions, not always wearing his ankle bracelet, and regularly taking large amounts of drugs.

101. I do not wish to give up on the Offender, but the best I can say at the moment is that his prospects of improvement are guarded, and thus his chances of reoffending are significant. I wish him well in the future and hope he continues to try to improve himself.

Pre-sentence custody

102. As I have said, the Offender was arrested on 27 October 2024. He has been in custody since then, a period of 16 months and 25 days.

103. That period covers the balance of his earlier sentence which still does not expire until 17 December 2026.

104. The question is, how much of any of that presentence custody should be taken into account for the purpose of considering what is an appropriate total sentence for all of the criminality involved?

105. My understanding is that the question needs to be considered, at least in part, by hypothetically considering what it would have been the total sentence if all of the matters – that is the matters the subject of the sentence still being served – together with the matters before me, were dealt with in one aggregate sentence, without in any way seeking to send any message that repeated offending leads to a perverse result where, the more one offends, the less the penalty is for later offences.

106. This is a difficult question. Ordinarily, in these type of cases in my experience, one is able to say that, if not for the offending the subject of the sentence, the Offender’s parole would not have been revoked. However, I am not confident that is the case here. The Offender was non-compliant with various, what appear to be, important conditions of his parole and, in my opinion, there was every chance that his parole would have been revoked in any event, even if he had not reoffended.

107. There is also the period between now and 17 December 2026.

108. At first, I was minded to allow only that future period when considering totality, but on reflection, I have decided to backdate the inevitable sentence of imprisonment a modest amount to 17 December 2025.

Resolution

109. This is a difficult and sad matter. There is no doubt that the s 5 threshold has been met. No sentence other than a term of imprisonment would be appropriate. The question is, for how long?

110. The Offender presents with an extremely strong subjective case. I am comfortably satisfied that his lifetime of crime to date is largely the consequence of things beyond his control. It is not his fault that he had a terribly deprived childhood, it is not his fault that he suffers from mental health issues, and whilst it is sometimes said that drug addiction is the consequence of an informed choice to take drugs in the first place, I do not think that can be fairly said against this Offender.

111. On the other hand, he has had a long and sorry life of crime, including significant violent crime. He presents a significant danger to the community. All of the offending took place whilst he was high on methamphetamine. That is no excuse but is at least an explanation that emphasises that he will remain dangerous unless he can get off of drugs.

112. When I consider the matters required to be taken into account under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), it seems to me that because of his deprived childhood and other subjective issues, he presents as a very poor candidate for a message of general deterrence to be sent. I, therefore, give general deterrence limited weight.

113. As far as specific deterrence is concerned, I do not think that has any part to play here. The Offender’s criminal history and custodial record are such to satisfy me that sending him to gaol will not deter him from reoffending. He is already institutionalised and that will only get worse. The only thing that will stop him reoffending is if he decides to become drug-free and get on top of his mental health issues. This will only happen if he wants it to and if he receives the necessary help to do so. Even then, there is no certainty he will succeed. I consider the safety of the community is a very significant factor. Quite frankly, I do not think sending the Offender to gaol will do him any good at all. Nor will it do the community much good as he will eventually be released. He is less likely to receive proper care and attention in gaol, but nonetheless, as things currently stand, the community needs to be protected from him, and the victims of these various crimes are all entitled to have the crimes acknowledged by the Court so as to be vindicated. If I could sentence the Offender to a mental health/drug rehabilitation clinic until he is better, I would, but that option is not available. He desperately needs help, but society does not seem to be able to provide that help. I have previously observed that there is a “no man’s land” between the criminal justice system and the mental health system where many people find themselves: R v Harbourne [2025] NSWDC 388 at [60]-[65].

114. Notwithstanding the Offender’s strong subjective case, which is a tragedy, the simple fact is these offences are objectively, each and every one of them, very serious and the Offender presents as an ongoing danger to the community. I give those matters significant weight.

115. I have decided to impose an aggregate sentence.

116. My indicative sentences, with some rounding in favour of the Offender, are as follows:

117. The Woolworths Incident (H82351557) – Sequence 4 – 2 years after deduction of 20% for the guilty plea (2 years and 6 months before discount).

118. The 27 October Conduct (H98534326) – Sequence 1 – 2 years, after deduction of 25% for the guilty plea (2 years and 8 months before discount).

119. The 27 October Conduct (H98534326) – Sequence 3 – 6 years, after deduction of 25% for the guilty plea (8 years before discount).

120. The Police Offences (H820584345) – Sequence 6 – 2 years, after deduction of 25% for the guilty plea (2 years and 8 months before discount).

121. The Police Offences (H820584345) – Sequence 2 – 1 year, after deduction of 25% for the guilty plea (1 year and 4 months before discount).

122. The Police Offences (H820584345) – Sequence 5 – 1 year, after deduction of 25% for the guilty plea (1 year and 4 months before discount).

123. There are three distinct days of separate criminality. The events of the 27 October Conduct and the Police Offences can properly be described as single episodes. I have determined that an aggregate sentence of 10 years imprisonment is appropriate and proportionate to the overall criminality involved, taking into account the principle of totality and trying as best I can to avoid a crushing sentence.

124. For reasons I have explained, I propose to backdate that sentence to 17 December 2025.

Special circumstances

119. I make a finding of special circumstances. The Offender is almost certainly already institutionalised. However, on balance, I think whatever his prospects of rehabilitation and not reoffending are, they will be greater if he spends a lengthy period under supervision in the community than they will be in custody.

120. Accordingly, I propose that the Offender is to be eligible for parole after serving 60% of the head sentence.

121. I also propose to make recommendations to the Parole Board that a treatment plan along the lines set out in Dr Robert’s Report at page 56 and following, of page 103 of Exhibit B, on Sentence or a Treatment Plan to that effect, be one of his conditions of parole.

Orders

122. My orders are:

123. For the various matters the subject of sentence (H82351557 Sequence 4, H98534326 Sequences 1 and 3, and H820584345 Sequences 6, 2, and 5), after deduction of 20% for the guilty plea in relation to Sequence 4 of H82351557 and 25% for the balance of Sequences (H98534326 Sequences 1 and 3, and H820584345 Sequences 6, 2, and 5), I sentence the Offender to an aggregate term of imprisonment of 10 years to commence 17 December 2025 and expire 16 December 2035.

124. I make a finding of special circumstances and order that the minimum term to be served before the Offender becomes eligible for parole is 6 years, also to date from 17 December 2025, so that the Offender will first be eligible for parole on 16 December 2031.

125. I recommend to the Parole Board that, as a condition of parole, the Offender needs to receive treatment for his mental health issues, his drug addictions, and that a Treatment Plan along the lines recommended by Dr Roberts in his Report of 17 August 2025 (at pages 15, 16, 17, and 18) be a condition of parole.

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Amendments

27 March 2026

Typological error on coversheet amended