R v Evans; R v Evans (No 6)

Catchwords: SENTENCING – murder – where offenders previously found guilty by a jury and sentenced for murder – where offender successfully appealed against the conviction – where offenders to be sentenced after second finding of guilt by jury – application of the ceiling principle – objective seriousness of offending – where moral culpability reduced by reason of youth and background of disadvantage – where offender has made progress toward rehabilitation in custody

Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) s 15A
Crimes Act 1900 (NSW) ss 18, 33
Crimes (High Risk Offenders) Act 2006 (NSW) s 25C
Crimes (Sentencing Procedure) Act 1999 ss 5, 21A, 30E, 61
Criminal Procedure Act 1986 (NSW) s 294
Evidence Act 1991 (NSW) s 191

Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DH v R [2022] NSWCCA 200
Evans v R; Evans v R [2024] NSWCCA 245.
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Perkins v R [2018] NSWCCA 62
R v Evans; R v Evans; R v Evans [2021] NSWSC 885
R v Gilmore (1979) 1 A Crim R 416
R v Lane (No 4) [2018] NSWSC 1898
R v Millwood [2012] NSWCCA 2
R v White [2023] NSWSC 611
R v XE [2025] NSWSC 877
XE v R (No 2) [2025] NSWCCA 90

Category: Sentence

Parties: Proceedings 2017/00202678
Rex (Crown)
Keith Evans (Accused)
Proceedings 2017/00202629
Rex (Crown)
John Evans (Accused)

Representation: Counsel:
Proceedings 2017/00202678
D Hannan / J Staples (Crown)
M Fernando (Accused)
Proceedings 2017/00202629
D Hannan / J Staples (Crown)
J Stratton SC / J Kumar (Accused)
Solicitors:
Proceedings 2017/00202678
Solicitor for Public Prosecutions (Crown)
Bannisters Lawyers (Accused)
Proceedings 2017/00202629
Solicitor for Public Prosecutions (Crown)
Archbold Gittani Lawyers (Accused)

File Number(s): 2017/202678; 2017/202629

Publication restriction: Publication of the name of the person referred to in these proceedings as XE and the members of Jesse Thompson’s family who are young persons, and any information and material that might lead to those persons’ identification, is prohibited.

JUDGMENT

Introduction

1. The offenders Keith Evans (born in 1993) and John Evans (born in 1967) are before the court to be sentenced for the murder of Jesse Thompson (“the deceased”), contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty is life imprisonment and there is a standard non-parole period of 20 years imprisonment.

2. Mr Keith Evans is also to be sentenced for the wounding with intent to cause grievous bodily harm of Jayke Rodgers, contrary to s 33(1)(a) of the Crimes Act. The maximum penalty for that offence (“the wounding offence”) is 25 years imprisonment. There is a standard non-parole period of 7 years imprisonment.

3. John Evans is Keith Evans’ father.

4. The deceased died on 3 July 2017 at the age of 19 years. This sentence concerns the tragic and utterly avoidable events which occurred on that day and the days which preceded it.

Procedural background

5. The offenders were originally tried for the deceased’s murder with a third co-accused (XE, who is the daughter of John Evans and the sister of Keith Evans), in a joint trial commencing on 13 November 2020 in the Supreme Court before Ierace J and a jury (“the first jury”). Keith Evans was also tried for the wounding offence in that trial.

6. The offenders were both found guilty of murder, and Keith Evans guilty of wounding, by jury verdict on 19 January 2021.

7. The offenders were sentenced by Ierace J on 22 July 2021. His Honour sentenced Keith Evans to an aggregate sentence of 32 years imprisonment with a non-parole period of 22 years and 4 months and sentenced John Evans to 31 years imprisonment with a non-parole period of 22 years and 6 months. XE was sentenced to a term of imprisonment of 17 years with a non-parole period of 10 years and 6 months: R v Evans; R v Evans; R v Evans [2021] NSWSC 885.

8. Both Keith Evans and John Evans appealed against their murder convictions. Keith Evans did not appeal against his conviction for the wounding offence. On 19 December 2024, the Court of Criminal Appeal quashed both murder convictions and ordered a new trial. The sentences imposed by Ierace J were consequently also quashed, although the conviction of Keith Evans for wounding (which had relevantly formed part of the aggregate sentence which Ierace J had imposed) was not disturbed: Evans v R; Evans v R [2024] NSWCCA 245.

9. XE then appealed her conviction. On 23 May 2025, the Court of Criminal Appeal upheld the offender’s appeal, quashed her conviction and sentence and ordered a retrial. Reasons for that decision were handed down on 13 June 2025: XE v R (No 2) [2025] NSWCCA 90. On 29 May 2025, XE entered a plea of guilty to the charge of murder. On 6 August 2025, I sentenced her to term of imprisonment of 14 years and 10 months with a non-parole period of 9 years and 3 months: R v XE [2025] NSWSC 877.

10. A retrial by jury (“the second jury”) for the offence of murder commenced before me on 2 June 2025. On 23 July 2025, the second jury returned guilty verdicts with respect to both offenders.

11. Accordingly, Keith Evans now falls to be sentenced with respect to both the wounding verdict returned by the first jury and the murder verdict returned by the second jury. John Evans falls to be sentenced with respect to the murder verdict returned by the second jury.

12. I observe that there are non-publication orders pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) with respect to the identification of XE and the members of the deceased’s family who are young persons. The orders prohibit the publication of their identity and any material that might tend to identify them.

Background to and facts of the offending

13. At the time of the offending John Evans was 49 years of age. Keith Evans was 24 years of age. XE was 17 years of age. They lived together in a home owned by John Evans in Jilliby Street, Wyee on the Central Coast of New South Wales. John Evans owned at least two motor vehicles, a truck and a white Mitsubishi Triton ute.

14. Keith Evans lived in a granny flat at the rear of the Jilliby Street house with his girlfriend “Christine”, with whom he had been partnered for some years. XE lived in the main house with her father.

15. In February 2017, Keith Evans became aware that Christine had been unfaithful to him by having sexual relations with Jayke Rodgers. Keith Evans was angry at Jakye Rodgers and he decided to take revenge upon him.

16. On 1 July 2017, Keith Evans told Christine that he wanted Jakye Rodgers to come over to their home. He used Christine’s Facebook account to message Jakye Rodgers. While posing as Christine, Keith Evans told Jayke Rodgers that he would be in Nelson Bay for the weekend, and invited him to come to the Evans’ house to meet Christine.

17. At about 1.30am on Sunday 2 July 2017, Jayke Rodgers attended Jilliby Street intending to meet with Christine. He was immediately struck with a hard object by a person who appeared from the darkness. Jayke Rodgers was hit with the object several times to his head, before he managed to jump over the fence towards the street. He was then assaulted by 2 people, including Keith Evans, before he crawled away and sought help from a neighbouring house.

18. Agreed Facts pursuant to s 191 of the Evidence Act 199**5 (NSW) disclose that Jayke Rodgers suffered the following injuries in the attack:-

(i) Right parietal (side and roof of skull) scalp laceration 4-5 cm full thickness through to the bone; (ii) Left parietal (side and roof of skull) scalp laceration 4-5 cm full thickness through to the bone; (iii) Scalp laceration on the crown of his head 1 cm full thickness of skin and fatty tissue; (iv) Laceration behind left ear full thickness of skin and fatty tissue; (v) Haematoma over right temple 2-3 cm in diameter; (vi) Right chest wall bruising/haematoma; (vii) Small superficial abrasion to left elbow; (viii) Abrasions to both palms; (ix) 1 cm superficial laceration to left knee; and (x) Abrasion over right knee.

19. The scalp lacerations required sutures, and it was agreed that (i) to (iv) above satisfy the legal definition of a wound. In accordance with the first jury’s verdict, I find that Keith Evans inflicted the four head wounds on Jayke Rodgers with a blunt object.

20. Jayke Rodgers was hospitalised and released early on 2 July 2017. He told a number of his friends about the assault, including Levi Dean, Shane Weir and Billy Thompson. Jayke Rodgers was re-admitted to hospital later that day because he was vomiting blood as a result of the head injury, and he spent that Sunday night at hospital. Whilst in hospital, Jayke Rodgers sent a number of messages to Keith Evans threatening revenge (“Dead man walking” and “Be prepared for revenge bra”).

21. Keith Evans texted his father, telling him to keep the back door locked, because someone had sent him a message “[s]aying they coming for revenge”. John Evans responded: “See what I told u /nHalf done job”. John Evans told Keith Evans to say that he did not know what the threat was about, because “could b cops with his computer” and “o all turn bad u left a big trail”. Keith Evans replied that there was not a trail because “All erased on both phones”. John Evans replied: “Not messenger”. Keith Evans then sent a text to Jayke Rodgers saying “Whos this don’t know wat ur on about” to which Jayke Rodgers replied “Can’t hide now big boy. Wait till I come outnumbered your dead bra move now.”

22. At about 11.35am on Monday 3 July 2017, Levi Dean and Shane Weir attended the Evans’ house in Jilliby Street, Wyee in a Toyota Kluger which had been rented by Shane Weir. They briefly confronted Keith Evans and XE, who were inside the house, about what they said was the cowardly assault on their friend Jayke Rodgers. Before Levi Dean and Shane Weir left, one of them picked up a spirit level that was on the grass and threw it at the front glass sliding door. The spirit level shattered the entire glass pane and caused superficial grazing and bleeding to XE.

23. XE immediately rang her father and reported the confrontation to him. As a result, John Evans immediately returned home. CCTV footage from the nearby Wyee Bakery captured John Evans returning home in his woodchipper truck and then leaving in the Triton ute two minutes and 22 seconds later, with Keith Evans in the passenger seat and XE in the rear seat. I find beyond reasonable doubt that either John Evans or Keith Evans took with them a 12-gauge shotgun and ammunition, that both knew that the weapon and ammunition was in the Triton, and that they agreed that it would be used to intimidate the persons who had recently attended Jilliby Street .

24. At about the same time, Luke Hill, Jesse Thompson and Daniel Hill attended the home of Billy Thompson in Woodward Avenue, Wyong. About a half hour later, the three decided to leave. They walked out the front of Billy Thompson’s home when the Triton ute pulled up outside the house with Keith Evans, John Evans and XE. XE asked Luke Hill, “Where's big fella (Weir) and Rodgers?” When Luke Hill indicated that he did not know, XE replied, “Don't fucken lie to me Hilly, I know he just come here, cause they just left my house”. Luke Hill replied “I don't know. Well, he's not here”.

25. I find beyond reasonable doubt that either Keith Evans or John Evans, in each other’s presence, then raised his right arm and produced a single-barrel shotgun saying, “Look cunt, I'm not fucking around, where is he?”. I cannot find beyond reasonable doubt which of John Evans or Keith Evans was brandishing the shotgun because of the differences in the evidence of Luke and Daniel Hill. Luke Hill then said, “I don't know, it's got nothing to do with us”. The Triton ute then drove down Woodward Avenue and XE yelled out, “I'll kill your fucken missus Hilly”.

26. Jayke Rodgers was picked up from Wyong Hospital at 12 noon by Shane Weir and Levi Dean in the Toyota Kluger. He learned of their recent visit to the Evans’ home. After they drove away from the hospital, Billy Thompson rang Levi Dean and told him about the recent visit from the Evans family outside his home. Jayke Rodgers then rang XE via Facebook Messenger. They arranged to meet at Baker Park in Wyong. XE was heard telling Jayke Rodgers, “Fuck you. We'll meet up at Baker Park. You shouldn't have fucked Christine”.

27. The three men in the Toyota Kluger immediately made their way to Billy Thompson's house in Woodward Avenue, where they learned more about what had transpired there. Messrs Rodgers, Dean, Weir, Luke Hill, Jesse Thompson and Billy Thompson then armed themselves with weapons, including a wooden log/stick, a metal pole and knives/blades, and piled into the Toyota Kluger. They intended to meet, confront and assault the Evans family at Baker Park.

28. Both the Triton ute and the Toyota Kluger attended Baker Park at different times from about 12.13pm. Both cars continued to drive around the area. XE used Facebook Messenger to tell Jayke Rodgers to meet where there were no “workers”. The Toyota Kluger, driven by Shane Weir, then travelled towards Baker Park along Ithome Street where they saw the Triton ute was stopped. John Evans was driving, Keith Evans was in the front passenger seat and XE was in the rear seat. I find beyond reasonable doubt that both John Evans and Keith Evans agreed that Keith Evans would intimidate the occupants of the Kluger with the loaded shotgun.

29. The Toyota Kluger came to a stop behind the Triton ute. Messrs Rodgers, Hill, Dean, Jesse Thompson and Billy Thompson got out of the Toyota Kluger with the various weapons they had brought with them. At some point shortly thereafter, Keith Evans discharged the single-barrel shotgun. The only finding I can make beyond reasonable doubt, because of the conflicting evidence, is that Keith Evans discharged the shotgun whilst inside the Triton ute and that the shot hit the passenger side mirror assembly and substantially destroyed it.

30. The occupants of the Kluger were alarmed by the sound of the shotgun. Everyone except Levi Dean and Billy Thompson managed to jump back into the Toyota Kluger. Shane Weir reversed the Toyota Kluger away from the Triton ute which was also reversing. Levi Dean and Billy Thompson ran and attempted to hide behind a bush. They then ran into Ithome Street as the Triton ute followed them. They managed to jump into the Toyota Kluger as it briefly stopped to pick them up on Ithome Street. At this time Shane Weir was driving the Kluger and Jayke Rodgers was in the front seat. In the back seat Levi Dean sat behind Shane Weir. Next to him was Billy Thompson. Next was Jesse Thompson and then Luke Hill, who was seated behind Jayke Rodgers.

31. The Toyota Kluger then drove from that location at speed with the Triton ute speeding after it. The Toyota Kluger travelled along a number of streets in Wyong with the Triton ute in close pursuit. CCTV from Wyong Railway Station showed part of the pursuit. Civilian witnesses described both vehicles as driving aggressively, at times on the wrong side of the road and at high speed, with their wheels spinning and screeching as they navigated around corners. I find beyond reasonable doubt that sometime after leaving Baker Park, John Evans, as part of a joint criminal enterprise, agreed with Keith Evans that Keith Evans would deliberately discharge the firearm with an intent to kill one of the occupants of the Kluger.

32. As the Toyota Kluger reached the intersection of Byron Street and Panonia Road it attempted to make a right turn onto Panonia Road. The Triton ute, driven by John Evans, then crossed to the incorrect side of the road and overtook the Toyota Kluger, cutting it off and blocking its path, deliberately forcing both cars to come to a standstill nose to nose about one to two metres apart.

33. Keith Evans pointed the single barrel shotgun out the front passenger window and directed it towards the driver's window of the Toyota Kluger. From the rear driver’s side seat of the Kluger, Levi Dean then threw a small metal pole at the Triton ute. Keith Evans then moved the gun so that it was pointing towards the rear of the Toyota Kluger and discharged it, causing a fatal gunshot wound to Jesse Thompson who was seated second from the left.

34. At the time of the discharge of the shotgun, Keith Evans intended to kill an occupant of the Kluger and John Evans was party to a joint criminal enterprise with him for that to occur. Several factors inform this finding:-

(a) Both Keith Evans and John Evans knew that the shotgun was in working order and that there was spare ammunition; (b) The shotgun was reloaded or re-cocked by Keith Evans sometime between Baker Park and the intersection of Byron Street and Panonia Avenue which was apparent to John Evans who was sitting next to him. The only reasonable inference available is that Keith Evans intended to discharge the shotgun again and John Evans knew and agreed that this was to occur; (c) Just prior to the shooting, John Evans was driving the Triton ute at speed through suburban streets in daylight, chasing the Kluger which contained the persons whom the offenders wished to confront. He had full control of the car and could have abandoned the chase at any time; (d) John Evans deliberately stopped his ute in a position that best allowed Keith Evans to have a clear shot at the occupants of the Kluger. He could have continued driving away from the Kluger, which he did after the shooting. Keith Evans not only pointed the shotgun out the window toward the driver, which he knew to be in working order, but he moved it into a second position before firing it. This was done at very close range at head and chest level. John Evans did and said nothing to prevent or stop Keith Evans from aiming or discharging the shotgun as he did. Uncontested expert evidence led at trial was to the effect that Keith Evans had to have his finger on the trigger of the shotgun at the time it was fired. Conformably with the jury’s verdict, the shooting was not an accident; (e) Keith Evans was motivated to shoot because of the background of infidelity and threats by Jayke Rodgers who he knew to be in the Kluger, and because of the smashing of the glass door panel not long before; and (f) Keith Evans’ actions themselves allow a finding beyond reasonable doubt that he had an intention to kill, irrespective of the background or motive. Likewise, John Evans’ actions themselves, irrespective of background or motive, knowing that the shotgun was loaded and positioning his vehicle so that Keith Evans could have a close and clear shot supports the finding I make beyond reasonable doubt that he was part of a joint criminal enterprise with his son to the effect that his son would deliberately discharge the shotgun with an intent to kill.

35. Immediately after the shooting, the Triton ute drove west along Panonia Road with XE raising her left arm out the window at a 90-degree-angle and holding her middle finger up before it made its way back to the Evans’ home in Jilliby Street Wyee at about 12.35pm.

36. At 12.23pm, NSW Ambulance officers attended Warner Avenue where the Toyota Kluger occupants had stopped to seek help for Jesse Thompson. Paramedics rendered medical assistance to Jesse Thompson. He was unable to be revived and was declared deceased at 12.53pm.

37. At the time of his death Jesse Thompson was 19 years old. He had a partner of five years with whom he had two young daughters aged three years and one year.

38. Keith Evans and John Evans were arrested on 4 July 2017. They have remained in custody since that date.

Exhibits

39. The following material was tendered with respect to Keith Evans:-

40. A sentence bundle, tendered by the Crown and marked as exhibit 1, containing the following items:-

(a) Indictment; (b) Criminal History; (c) Custodial History; (d) Court Attendance Notice, Facts and s 9 bond in relation to H61467064; (e) Court Attendance Notice, Facts and s 9 bond in relation to H62080740; (f) Court Attendance Notice, Facts and s 9 bond in relation to H62245212; (g) Section 191 Agreed Facts with respect to the injuries to Jayke Rodgers; and (h) A bundle of Victim Impact Statements (to which see below).

2. A sentence bundle, tendered on behalf of Keith Evans and marked as exhibit 2, containing the following items:-

(a) A report of Dr Thea Gumbert, psychologist, dated 21 August 2025; (b) Reference Letters on behalf of Keith Evans, including:

(i) Letter of Tracy Timbery dated 20 August 2025; (ii) Letter of Paul Timbery dated 20 August 2025; (iii) Letter of Fiona Armfield dated 20 August 2025; (iv) Letter of Damien Timbery dated 20 August 2025; and (v) Letter of David Evans dated 21 August 2025.

(c) Course Certificates & Academic Records:

(i) Certificate in Aboriginal and/or Torres Strait Islander Cultural Arts from Ace Community Colleges, dated 19 August 2022; (ii) Record of Results in Aboriginal and/or Torres Strait Islander Cultural Arts from Ace Community Colleges, dated 19 August 2022; (iii) Statement of Attainment in Safety Checking Appliances and Minor Repairs of Cords and Plugs from TAFE NSW, dated 19 February 2022; (iv) Transcript of Academic Record in Safety Checking Appliances and Minor Repairs of Cords and Plugs from TAFE NSW, dated 26 March 2025; (v) Record of Results in Laundry Operations from LDCT Laundry Dry Cleaning Training, dated 2025; (vi) Certificate of Proficiency in Laundry Operations from the Commissioner for Vocational Training, dated 3 September 2024; (vii) Statement of Attainment in Laundry Operations from LDCT Laundry Dry Cleaning Training, dated 28 February 2024; (viii) Letter from the Commissioner for Vocational Training regarding completion of traineeship in Laundry Operations, dated 2 September 2024; (ix) Certificate in Supply Chain Operations from TAFE NSW, dated 9 August 2024; and (x) Transcript of Academic Record in Supply Chain Operations from TAFE NSW, dated 13 August 2024.

(d) A list of Keith Evans’ work assignments subpoenaed from the NSW Department of Corrective Services, dated 28 July 2025; (e) Wyong Hospital discharge summary, dated 5 July 2017; (f) A still image taken from a forensic procedure video soon after Keith Evans’ arrest, dated 5 July 2017; (g) Transcript extract from the first trial, from page 1901 at Line 43 to page 1902 at Line 5; and (h) Police photographs of Keith Evans taken following arrest.

3. A psychiatric report of Dr Christopher Bench dated 22 March 2021, which was tendered by the Crown and marked as exhibit 5.

4. The following material was tendered with respect to John Evans:-

5. A sentence bundle, tendered by the Crown and marked as exhibit 3, containing the following items:-

(a) Indictment; (b) Criminal History; (c) Custodial History; and (d) A bundle of Victim Impact Statements (to which see below).

2. A sentence bundle, tendered on behalf of John Evans and marked as exhibit 4, containing the following items:-

(a) Psychiatric Report under the hand of Dr Sam Calvin, forensic psychiatrist, dated 12 March 2021; (b) Letter of John Evans, dated 17 August 2025; (c) Letter of Paul Thomas Timbery, dated 17 August 2025; (d) Letter of Tracy Timbery, dated 17 August 2025; (e) Letter of Nathan Timbery, dated 19 August 2025; (f) Letter of David John Evans, dated 19 August 2025; (g) Letter of Fiona Arnfield, dated 19 August 2025; (h) Letter of Michelle Bogaard, dated 20 August 2025; (i) Letter of Janice Coleman Evans, dated 28 July 2025; and (j) Letter of Judith Montgomery, dated 25 July 2025.

Victim Impact Statements

41. Eight Victim Impact Statements were tendered by the Crown as part of both exhibit 1 and exhibit 3, and were read in court. On the application of the Crown, and with the consent of Ms Fernando who appeared for Keith Evans and Mr Stratton SC who appeared for John Evans, I considered it appropriate to take them into account on the basis that the harmful impact of Jesse Thompson’s death on the members of his immediate family is an aspect of harm done to the community pursuant to the former s 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”), which was in force at the relevant time (and which now appears as s 30E of the Sentencing Act).

42. Statements were read from Jesse Thompson’s partner, his brother, his mother, his sister-in-law, his mother-in-law, his father-in law and his eldest child. His youngest child provided two poignant drawings.

43. The statements describe a warm and loving young man who had faced adversity early in his life, but who had the wherewithal and courage to find a truly loving relationship that would likely have lasted a lifetime. Jesse Thompson was lucky to fall in love with a young woman who loved him in return, and whose family adored him. Together they started a family. Jesse Thompson had everything to look forward to. That he was murdered so cruelly at such a tender age is a tragedy not only for those who loved him, but also for the community. Jesse Thompson’s children will grow up with no memory of their father. His partner was widowed at a very young age and has had to struggle raising two young children as a sole parent. Jesse Thompson had much promise and was destined to contribute to the community as a father, a partner and as a young person who had much to achieve. His senseless death means that we are deprived of his contribution and we are now less as a community.

44. The Court acknowledges the continuing pain and anguish suffered by the victims as a result of Jesse Thompson’s murder and their courage in sharing their memories of him. On behalf of the community, the Court expresses its condolences to all who loved and have lost Jesse Thompson.

45. I will now summarise some of the other documents which are before me.

Evidence in Keith Evans’ case

Criminal and custodial history

46. Keith Evans’ criminal history commences in 2011 when he was a child. It includes convictions for common assault, assault occasioning actual bodily harm, stalk/intimidate, damage/deface property, custody of knife in public place, contravene AVO, destroy damage property, entering building/land with intent to commit an indictable offence, intentionally marking premises without consent, and driving offences. All of these convictions were resolved by way of non-custodial sentences, including fines, bonds and community service orders.

47. Keith Evans’ custodial history discloses that he incurred ten custodial infractions between the time when he first entered custody in 2017 and March 2021. These include citations for possession of drug implements, failing a prescribed drug test, possession of an offensive weapon/implement, failing to attend muster, disobeying a direction, and damaging property. I observe that he has had no infractions on his record from March 2021 to date.

Report of Dr Gumbert, psychologist

48. Dr Thea Gumbert, psychologist, conducted a clinical interview of Keith Evans over two video conferences conducted on 31 July 2025 and 7 August 2025. She reported on 21 August 2025. By that date, Keith Evans had been in custody for over eight years.

49. Keith Evans reported that he is Wiradjuri First Nations man on his mother’s side and that this is an important part of his cultural identity. He was raised on the Central Coast of New South Wales. He reported that his mother abandoned him as an infant, and that he and his sister XE were raised primarily in the care of his father. He told Dr Gumbert that he belatedly discovered that he has four maternal siblings about whom he had not been told. He expressed a sense of rejection by his mother and confusion about why she had not wanted a relationship with him when she was raising her other children.

50. Keith Evans reported a strong and positive relationship with his father, who was said to have imparted a strong work ethic. He recalled various positive aspects of his upbringing. However, he also reported that his father and paternal grandfather would not talk about emotions and would mock him if he cried, saying that it “was not a manly thing to do”. He said that he was taught to resolve problems with violence. He says that, on reflection, he did not agree with these values and does not think that it was an appropriate way to raise children. He reported that he still has difficulty talking about his feelings as a result of his upbringing.

51. Keith Evans’ father apparently re-partnered when he was aged 5. He reported difficulties in the relationship with his stepmother. He told Dr Gumbert that from when he was about 12 years of age, she had serious and increasing problems with alcohol and that “when she’d drink, she’d go mental”, smashing things around the house. He would reportedly lock himself in his room to escape the situation, while his father would often go to sleep in the bush. His father and stepmother eventually separated a few years later.

52. Keith Evans reported that he moved out of home for a period between the ages of 19 and 21 but had returned home and was living with father and sister at the time of the offending.

53. Since entering custody, Keith Evans has had very limited contact with his sister. He told Dr Gumbert that they write to each other but that he has little knowledge of her circumstances. For his first five years in custody, he said that he had limited contact with his father, but they have recently become cellmates. He is happy that they are able to support each other whilst in custody. He reported having family support from his aunt and her family who regularly visit him in custody.

54. Keith Evans told Dr Gumbert about his relationship with Christine. He reported that they had maintained their relationship for several years after he was first incarcerated, but she eventually stopped visiting and they are no longer in contact.

55. Dr Gumbert described Keith Evans’ education and employment history. He reportedly had a normal progression, with no significant behavioural difficulties until he was in Year 9 (at about age 14), at which point he reported experiencing two acute traumatic incidents which occurred in the context of the school environment. It is agreed that I will only refer to those incidents obliquely. Keith Evans reported that, following those events, he began intentionally getting himself suspended to avoid going to school. He was eventually expelled, following which he worked variously in automotive spray-painting, as an apprentice mechanic, as an apprentice joiner, and then, at the time of offending, for his father’s tree-lopping business.

56. Keith Evans reported that he began drinking alcohol and smoking cannabis socially at age 13, before progressing to daily cannabis use by age 14. He was using MDMA and amphetamines recreationally by his mid-teens. He first tried methamphetamine at age 16, and from age 20 to the date of the offending, he was using methamphetamine several times a week. Keith Evans acknowledged that he had problems with substance abuse, and that he had “probably” been dependant on methamphetamine and was unable to cease or control his use at the time of the offending.

57. Keith Evans reported that he had detoxed from methamphetamine upon entering custody but that he began using illicit buprenorphine strips instead, eventually becoming dependent. This prompted him to commence Buvidal therapy about four years ago, by way of monthly depot injection. He told Dr Gumbert that he has not used illicit buprenorphine since commencing the injections, and that in the long term, he would like to reduce and cease Buvidal.

58. Keith Evans reported having had no contact with mental health services prior to entering custody. He said that so far as he was aware, he had never been diagnosed with any mental health condition.

59. The offender identified various aspects of his childhood which had been traumatic and attributed the escalation of his substance use to those factors, saying that he used drugs “to mask that, to forget”. Keith Evans reported that he still attempts to avoid thinking about his past trauma as much as possible and that he becomes distressed when he remembers it.

60. Keith Evans reported being prescribed Avanza (mirtazapine) and Seroquel (quetiapine) during his first two years in custody, as he had been struggling with adjustment. He ceased taking those drugs thereafter. He reported having attended a single session with a psychologist a few years ago. He reportedly has had no other mental health treatment during his incarceration.

61. Keith Evans said that he has been struggling following his recent conviction, and told Dr Gumbert that he felt “a bit devastated” as he had “thought there was a bit of hope” that he would be acquitted. He reported his mood as being lower than usual. He denied any history or thoughts of self-harm. He said that he was able to look forward to positive events such as visits. He reported having hope for his future, saying that he knows he “can rebuild” his life once he is released.

62. Keith Evans reported still having difficulty talking about his feelings, saying that he finds it hard to talk about past or present problems. He said that he has still not discussed the offending with his father.

63. Keith Evans acknowledged his criminal history, reporting that most of his charges related to graffiti or fighting. He admitted a tendency to get into fights. He said, however, that he was usually not the instigator but that he was “never going to walk away” if provoked. He also acknowledged his custodial infractions, and admitted fault in relation to some of them, although he said that some had related to items or drugs being found in his cell which did not belong to him.

64. Dr Gumbert discussed the offending with Keith Evans, who maintained that he had not intended to discharge the shotgun or kill the deceased, although he accepted responsibility for the assault on Jayke Rodgers which he acknowledged had prompted the subsequent events. He conceded that he should not have agreed to meet the group at Baker Park or have been involved in the car chase. He expressed sadness about the death of Jesse Thompson and the impact on the deceased’s family, saying that “nobody deserves to lose their life” and that he recognises that “he was just a young fella, he’s died so young. It’s something that should never happened”. He acknowledged that the deceased “would still be alive if we never picked up the gun, or never chased.”

65. Keith Evans reported that he was resigned to receiving an extended custodial sentence. He said that he hopes to use his time in custody positively, including by completing education and vocational training courses, and rehabilitation programs. He said that, in the long run, he hopes to live a normal life, with a family and job. He said that he hopes that is a possibility for him.

66. Dr Gumbert performed two psychometric tests as part of her assessment. First, Dr Gumbert administered the Depression, Anxiety and Stress Scale, which measures the negative emotional states of depression, anxiety and stress during the preceding seven days. Dr Gumbert reported that although Keith Evans did endorse some symptoms from each subscale, his scores all fell within the normal range. Next, Dr Gumbert administered the “PCL-5” PTSD Checklist for DSM-V, which measures the presence and severity of symptoms of post-traumatic stress disorder (PTSD). Dr Gumbert reported that Keith Evans’ scores fell below the recommended cut-point scores that would indicate a likely diagnosis of PTSD, but noted that he reported various symptoms of distress, avoidance and hypervigilance.

67. Dr Gumbert expressed the following opinion:-

“Mr Evans is a 32 year-old man who has been incarcerated for eight years since the index offence. He reported exposure to acute and complex traumatic stressors during his upbringing. He was abandoned by his mother in infancy, and he has remained estranged from her and his maternal siblings throughout his life. He has lacked the experience of secure attachment with a maternal figure, reporting that his erstwhile stepmother was alcoholic and violent. While he reported a positive relationship with his father, he noted that his father and grandfather role-modelled the use of violence, and discouraged emotional expression.

Mr Evans further reported that he was the victim of [childhood trauma], which he has only recently begun to disclose. He identified [that trauma] as a direct contributor to his leaving school early, and the escalation of his drug use in adolescence. Although he reports that he has mostly been in employment since leaving school, Mr Evans related that he generally associated with a delinquent peer group in his adolescence and early adulthood, spending much of his time using drugs and painting graffiti. He reported he had probably been dependent on Ice for a few years prior to the index offences. He had also incurred a number of convictions, including in relation to assaults and property damage, however, all of these had been resolved by way of community sentences.

Mr Evans had never been in contact with mental health services prior to the index offence, but identified that he may have benefited from treatment in relation to trauma. He further identifies that, as a result of his early socialisation, he has limited skills in terms of emotional expression and interpersonal problem-solving skills. He acknowledged a history of getting into fights, and attempting to solve problems with violence, though he did also show a tendency to externalise responsibility for specific incidents.

Based on his self-report, it is my opinion that at the time of the index offence, Mr Evans would have met DSM-5-TR criteria for the diagnosis of Stimulant Use Disorder, with moderate symptoms. While he reports he was not intoxicated at the time of the offence, he reported a pattern of using Ice several times a week, with his last use being two days prior, and he identified himself as having been dependent. I note that his drug use may be a contributing factor to the index offence, as years of chronic drug use would likely have resulted in some impairments to self-regulation, insight, and judgment.

I do not offer any further diagnoses of Mr Evans based on current assessment. He reported some dysphoria associated with adjusting to his conviction, and anxiety about his sentencing, but these symptoms would be expected in the context of his situation and appear to be of sub-clinical severity. However, it should be noted that, due to distance and time constraints, the assessment did not encompass measures of personality functioning.

With regard to his account of the index offence, Mr Evans maintains as he did at trial that his actions were inadvertent and that he did not intend to discharge the firearm nor kill the victim. Regardless, he demonstrated insight into how other decisions he had made had contributed to a series of violent altercations, resulting in the victim’s death. He expressed sadness and feelings of guilt for the victim’s death, and also identified the impact upon the victim’s family.”

68. Dr Gumbert recommended custodial programs targeting Keith Evans’ particular risk factors and general programs aimed at building insight into risk awareness, mental health and self-regulation. Dr Gumbert also believes that he would benefit from psychotherapy.

Reference letters

69. The defence bundle contains five reference letters from various members of Keith Evans’ extended family. I will not summarise them in detail here. I have had regard to each of them. Collectively, they express their continuing love and support for Keith Evans. They describe his quiet and reserved temperament, his kindness and his love for his family. They recount his difficult upbringing and confirm his experience of childhood trauma. They speak of the remorse and sadness which he has expressed to them since entering custody for the deceased’s murder and the events leading up to it, and the growth and development which they have witnessed in him over the years since.

Courses, academics, work assignments

70. In evidence are a number of certificates and educational records. They confirm his completion, whilst in custody, of numerous cultural and vocational courses. Also in evidence is Keith Evans’ custodial work assignment record, which discloses that during his time in custody, he has been employed in the prison laundry, the kitchen, and in metal fabrication.

Material concerning arrest

71. Keith Evans also tendered a number of documents relating to the nature of his arrest by police on 4 July 2017. These include:

72. medical records from Wyong Hospital dated 4 July 2017, which disclose that, accompanied by police, he presented to the Emergency Department on that date with a laceration to his chin, bruising to his head and forehead, dry blood covering the side of his face and chin, and abrasions to his left hand and right elbow;

73. a number of forensic photographs, taken by police shortly after his arrest, in which the above injuries can be observed; and

74. an extract from the transcript from Keith Evans’ cross-examination during the first proceedings, in which he relevantly describes his arrest as follows:

“…They rammed my car. I put my hands up out of the window and they pulled me out of the car and they started kicking me when I was on the ground, jumping on my face. And when I was done, I had glass in my face. I was getting glass picked out for three days, out of my face. I was bleeding. I had to go to hospital…”

Report of Dr Christopher Bench dated 22 March 2021

72. Mr Hannan, who appeared on behalf of the Crown, tendered a psychiatric report of Dr Christopher Bench dated 22 March 2021, which had previously been tendered on behalf of Keith Evans during his sentence proceedings before Ierace J in 2021. The purpose of the tender was to contradict evidence in these proceedings relating to some of the childhood trauma allegedly experienced by Keith Evans.

73. Dr Bench’s report records that when he obtained a history from Keith Evans in 2021, Keith Evans reported that he “had no recollection of any domestic violence” and “denied any history of … trauma as a child”. Mr Hannan submitted that, in view of the express disavowal of such a history to Dr Bench, I would not find on the balance of probabilities that the specific incidence of childhood trauma relied on by Keith Evans in these proceedings in fact occurred.

74. I observe that there is a patent inconsistency between the history given by Keith Evans to Dr Bench and to Dr Gumbert. However, I am prepared to accept his most recent assertions on the balance of probabilities for the following reasons. First they are detailed. Second, Keith Evans is a person who has no real experience talking about his emotions. Third, they give context to other adverse events that occurred at about that time in his life about which there is no real dispute. The events disclosed by Keith Evans dovetail with an increase in drug-taking and his abandonment of his education. Fourth, the disclosures align with some evolving insight into the situation he finds himself in, notwithstanding that he does not accept that he murdered Jesse Thompson. Fifth, it is well known that such disclosures are often delayed, and so much is recognised by the criminal law: see s 294 of the Criminal Procedure Act 1986 (NSW).

Evidence in John Evans’ case

Criminal and custodial history

75. John Evans’ criminal history commences in 1986. His record includes convictions for possession of prohibited drug, unlicensed use of firearms, assault occasioning actual bodily harm, resist police, assault police, contravene ADVO, stalk/intimidate, entering a vehicle or boat without consent, destroy or damage property, and low-range PCA driving offences. Each conviction was resolved by way of non-custodial sentences, including fines, bonds and community service orders.

76. His custodial history discloses only one custodial infraction which was incurred in January 2025 for fighting, the punishment for which was three days in his cell. Bearing in mind that John Evans has been in custody for more than eight years, I consider his custodial record to be effectively unblemished.

Report of Dr Calvin, forensic psychiatrist

77. Dr Calvin, forensic psychiatrist, reported on 12 March 2021, following a psychiatric assessment conducted via video conference. I observe that this report is now more than four years old. By that stage, John Evans had been in custody for over three and a half years.

78. Dr Calvin reported that John Evans was born in Manly and grew up with three sisters and a younger brother. John Evans described his life as “perfect” and reported that his family was supportive. He reported some symptoms of hyperactivity and stated that he was not gifted academically. He struggled in some subjects at school. After school, John Evans founded or co-founded several businesses. He described himself as a hard worker and reported that his businesses were successful. Prior to his arrest, John Evans was living on the Central Coast with his adult son and teenage daughter. He was at that time in a stable relationship and enjoying a successful career as a tree-lopper.

79. John Evans reported a limited medical and psychiatric history. He said that he had never received any mental health diagnoses or treatment, although he reported a family history of schizophrenia. He described feeling stressed about his legal proceedings, and expressed concern for his children who were in custody. He reported feeling intense guilt when he thought about his children’s future, which often caused him to break down crying.

80. John Evans reported using recreational drugs when he was younger but denied regular drug use. He said that his alcohol use was limited to the weekends or social occasions with friends. He denied any features of addiction or psychological dependence. Dr Calvin observed that John Evans’ affect appeared appropriate to his situation, and that he did not display any overt cognitive defects.

81. Dr Calvin expressed the following opinion:

“…

2. In terms of his psychiatric issues, Mr Evans’ mental health distress is due to his current legal situation, and he is understandably worried about his children's future. He does not meet the criteria for a psychiatric diagnosis.

3. In relation to the risk of future offending, it appears that prior to the current offence, Mr Evans had few historical risk factors for violent offending. There is no past history of serious violence before the index offence, he denies any history of weapon use or a history of violent attitudes. There is no evidence of any mental illness, substance misuse or trauma. He reports having stable employment and has been able to maintain stable relationships. Currently, his mental state is stable, and his focus at this stage is resolution of his legal matters and supporting his children. All of the above suggests a reasonably favourable prognosis and good rehabilitation prospects.

4. Regarding treatment recommendations, the focus of intervention has to be on a better understanding of his index offence. Mr Evans will benefit from long-term offence specific work after his legal matters have resolved.

5. Mr Evans will benefit from ongoing monitoring of his mental state to ensure he can cope with stress.

…”

Letter from John Evans

82. Tendered in evidence was a letter authored by John Evans dated 17 August 2025. It was apparently written unprompted by his solicitors. I set out the relevant parts of this document in full:-

“I am writing to you with respect, as I await sentencing for my actions in relation to the murder of Jesse Thompson. I would like the court to understand that I am not good at expressing my feelings, but I am hoping this letter is able to show how deeply sorry I am and that I accept responsibility for the consequences of my actions that day. Not a day or night goes by without me being haunted by this loss of a life. No words can express the sadness I feel. I would give my life to end this all, or turn back time for none of this to have happened. I re-live it every day and ask myself why?

Being 49 years old back then, I look back in disgust at myself. Being the eldest out of all the people involved, I should have had the foresight to diffuse the situation, but the actions I took only led to a death. I wish I had made better decisions that day - one call to the police could have changed everything. But back then, there was no way I would have called the police to ask them for help. I can say now, without a doubt it would be the first call I would make.

I wish I could do something to make it easier for Jesse's family, but I know I can't. I know the pain they are going through is something I can never take away. They must hate me but not as much as I hate myself. My actions have taken his life and changed the lives of those around him forever. As a father, I cannot imagine losing a child. His family and friends will carry this pain forever and I am deeply sorry for the impact I have caused on so many people.

Since the death of Jesse Thompson, I have reflected on my actions and begun to work on myself to make real changes in my life to become a better and more responsible person. I am committed to continue doing so during my time in custody and beyond. Since my incarceration in 2017, I have actively worked in all the correctional centres where I have been housed. I have held the position of sweeper, which is given to trusted inmates. I have mentored younger inmates to do better with their lives, so that they stay out of trouble. Before the trial, when I was housed at Clarence Correctional Centre, I was employed packing hygiene packs for inmates. The role was largely unsupervised, as Officers knew that I was hard working and could be trusted. I have used my time in custody wisely by working hard, as this is all I know how to do, having worked my whole life. I intend to continue this, as I wish to better myself and prepare myself for re-integration into the community upon my eventual release.”

Reference letters

83. John Evans’ sentence bundle also included eight letters of reference, provided on his behalf by family and friends. I will not summarise them in detail here. I have had regard to each of them. Collectively, they express their continuing love and support for John Evans. They describe John Evans’ quiet and hardworking nature, and his kindness and generosity towards them. They describe a man who rarely expressed his emotions, but they also speak of his love and dedication to his family and to his children.

84. They recount the regret, sadness and remorse which they have observed in John Evans since he entered custody, both for his role in the death of Jesse Thompson and for the devastating impact which his actions have had on the lives of the deceased’s family and friends. They note the guilt he feels for the consequences on the lives of his own children.

85. The letters from John Evans’ siblings also provide important insight into his upbringing. Contrary to John Evans’ self-report to Dr Calvin in 2021, John Evans’ siblings (aside from his youngest brother who is almost 20 years his junior) describe a dysfunctional childhood, marred by aggression, cruelty and verbal abuse perpetrated by their father. They describe their father’s drunken rages and the domestic violence which would follow, meted out against them and their mother. They describe how, both as a boy and a young man, John Evans’ father would mock and belittle him, in particular for his quiet and timid temperament. They describe how these events inculcated in John Evans an aversion to expressing his emotions, and a penchant for using violence and aggression to resolve problems.

86. The Crown submitted that I would not be satisfied on the balance of probabilities that John Evans’ siblings were telling the truth about his background, and that I would accept that his report to Dr Calvin – that his life was “perfect” – was the truth.

87. I am prepared to accept John Evans’ siblings reports of their childhood and their family’s dysfunction. I accept that John Evans is reserved and has real difficulty expressing his emotions. His past, as described by his siblings, explains or gives context to the life in his adult home as described by Keith Evans. Keith Evans’ description of his paternal grandfather aligns with the description of him by John Evans’ siblings. That John Evans does not blame his father for his dysfunctional upbringing is consistent with John Evans being bullied and belittled by him. I therefore accept, on the balance of probabilities, the description of John Evans’ family life provided by his siblings.

Keith Evans

Objective Seriousness

Wounding

88. I note the facts of the wounding offending set out above.

89. The Crown submitted that the following were relevant to the assessment of objective seriousness:

(i) The offence was planned and premeditated with messages sent to the victim to lure him to Jilliby Street at least 12 hours before the offence was committed; (ii) The offence was committed in the company of at least one other person; (iii) The offence was motivated by retaliation/revenge for the victim’s involvement with the offender’s then partner Christine; (iv) The victim was struck multiple times to his head, which is a vulnerable part of the body, with a weapon; (v) The injuries occasioned were significant wounds to the head that required treatment with sutures in hospital; and (vi) The offence was committed whilst the offender was subject to conditional liberty.

90. I accept that each of these matters (but for (vi)) are relevant to my determination of objective seriousness.

91. The Crown submitted that I would adopt Ierace J’s conclusion that the wounding offence fell at slightly above the mid-range.

Aggravating Factors

92. With respect to the wounding offence, it is agreed that the fact that the offending was committed in the company of one other person (s 21A(2)(e) of the Sentencing Act), that a weapon was used (s 21A(2)(c) of the Sentencing Act) and that there was planning involved in the offending (s 21A(2)(b) of the Sentencing Act). Each aggravates the objective seriousness, and none of which I double count.

93. As to the fact that the wounding offence was committed whilst the offender was subject to conditional liberty (three separate s 9 bonds) (s 21A(2)(j) of the Sentencing Act), that is not a matter that aggravates the objective seriousness of the offending but rather aggravates the offender’s subjective case.

94. Ms Fernando submitted that there is a breadth of both conduct and consequences which are captured by the wounding offence. She submitted that the Court would have regard to the extent of the injuries (which were not life-threatening) and the circumstances of the offence.

95. Ms Fernando submitted that that I would find objective seriousness well into the mid-range but not above it.

96. I observe that there is no obligation on a Court to indicate where on a notional scale of objective seriousness the offending lies. In DH v R [2022] NSWCCA 200 (“DH”), Yehia J said at [58] – [60]:-

“[58] Some degree of confusion remains as to whether a sentencing judge is obliged to indicate “where on the scale of seriousness each offence falls” when dealing with an offence which carries a standard non-parole period. The applicant submitted that the sentencing judge was obliged to utilise the concept of mid- range offending [emphasis added] and assess where on the scale of seriousness the offending for the offences which carried a standard non-parole period lay.

[59] To be clear, there is no such obligation or requirement. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [29] the High Court said that the standard non-parole period legislation:

“is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formulation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”.

[60] The assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence: Zreika v R [2012] NSWCCA 44 at [46]; R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118. A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as “low end of the middle of the range”, “upper end of the middle of the range” or, “just below or above the midpoint” add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence.” (endnote omitted) [emphasis in original]

97. I have taken into account the legislative guideposts of the maximum penalty and the standard non-parole period. The offending is by its nature, objectively serious. In deference to the submissions made by the Crown and Ms Fernando, I find that that the objective seriousness sits somewhere at the mid-range.

Murder

98. The Crown submitted that Keith Evans acted with an intention to kill one or more occupants within the rear of the Kluger when he discharged the shotgun from the passenger seat of the Triton and that John Evans drove the Triton and positioned it at the relevant intersection as part of the agreement he had with Keith Evans to enable Keith Evans to deliberately discharge the shotgun with an intention to kill one or more of the occupants in the Kluger. I have made those findings, set out above.

99. The Crown submitted that there were other uncontroversial, relevant objective facts which, as background, went to the determination of objective seriousness. These are, chronologically:

(i) Keith Evans’ discovery in February 2017 that his partner had been having sexual relations with Jayke Rodgers, provided the motivation for setting up the attendance of Jakye Rodgers at Jilliby Street in the early hours of 2 July 2017; (ii) The significant assault perpetrated upon Jakye Rodgers by Keith Evans in the early hours of 2 July 2017; (iii) The threatening messages sent by Jayke Rodgers to Keith Evans after the assault. The receipt of those messages was conveyed by Keith Evans to John Evans who responded “see what I told you/nHalf done job”; (iv) Levi Dean and Shane Weir attended the Evans home at about 11.35 am on 3 July 2017 when one of them threw a spirit level at a glass door smashing it. John Evans rushed home, and two and half minutes later left with Keith Evans and XE with a shotgun and ammunition; (v) Shortly thereafter, outside Woodward Avenue, one of either Keith or John Evans presented the shotgun and intimidated Billy Thompson, Daniel Hill and Luke Hill; (vi) Not long thereafter the Evans family met up with the Kluger group at Baker Park where one shot was fired by Keith Evans which destroyed the internal passenger mirror assembly. The Kluger group retreated and travelled away from the park at speed to escape; and (vii) John Evans drove the Triton around the streets of Wyong chasing and closely following the Kluger for several minutes before coming to a nose to nose position at the intersection of Byron Street and Panonia Avenue when Keith Evans fired the shot as described above. Keith Evans either reloaded or re-cocked the shotgun en route to the knowledge of John Evans.

100. The Crown accepted that the shooting was not pre-meditated in the traditional sense, but submitted that it was also not spontaneous. I accept this submission.

101. The Crown submitted that there are few differences in objective seriousness of the murder offences committed by each of Keith Evans and John Evans. He submitted that whilst the motivations may have been different (with Keith Evans being partly motivated by revenge upon Jayke Rodgers for the infidelity and John Evans being partly motivated by the attack upon his property by Levi Dean and Shane Weir), retribution was the motivation for the attack. In his submission, while Keith Evans fired the fatal shot, John Evans was aware of the loaded shotgun and drove the car into the position so that Keith Evans could have a clear shot at the Kluger. The Crown submitted that whilst their roles in the shooting differed, their aims and motivations were joined such that there is very little to distinguish their individual culpability for the offending.

102. I accept the Crown’s submissions.

103. Ms Fernando submitted that the offence was unplanned and unsophisticated. She submitted that the offending was highly reactive and emotional rather than calculated and cold-blooded. She said that it was responsive to the visit at Jilliby Street by Levi Dean and Shane Weir. I accept these submissions, other than her unwillingness to characterise the offending as cold-blooded. The offending was pitiless and cruel. Ms Fernando observed that the offenders were not solely responsible for the perpetuation of conflict. I accept this submission, but I observe that it only provides context for the fatal shooting and cannot excuse it. At any time, the Evans family could have retreated and either reported the matter to police or returned home.

104. Ms Fernando submitted that the offending is below the mid-range or in the lower end of the notional mid-range of objective seriousness.

105. I note that Ierace J found the offending to be at a mid-point between the mid-range and the maximum level of objective seriousness.

Aggravating Factors

106. With respect to the murder offence, it is agreed that the following aggravating factors aggravate the objective seriousness of that offending: the offence involved the actual use of a weapon (s 21A(2)(c) of the Sentencing Act) and a grave risk of death to another person, particularly the persons other than Jesse Thompson seated in the back of the Kluger (s 21A(2)(ib) of the Sentencing Act). I do not double count these aggravating factors. The Crown relied on the offence being committed in the presence of a child under 18 years, being XE, (s 21A(2)(ea) of the Sentencing Act), but in the circumstances of XE’s age (17 years) and her active participation in the murder, in my opinion that factor, although strictly present, does not meaningfully aggravate the offending.

107. With respect to both offences, an additional aggravating factor is present and agreed, but it aggravates Keith Evans’ subjective case rather than the objective seriousness, ie, that the offence was committed whilst the offender was subject to conditional liberty (three separate s 9 bonds): s 21A(2)(j) of the Sentencing Act.

Mitigating Factor

108. Ms Fernando submitted that if I found that Keith Evans had an intent to kill, it could only have arisen during the car chase. She submitted that I would find that the murder was not planned and was unsophisticated and that the absence of planning would qualify as a statutory mitigating factor pursuant to s 21A(3)(a) of the Sentencing Act. I have found that Keith Evans’ intention to kill arose sometime after he left Baker Park, but there were several minutes between that time and the murder, during which Keith and John Evans agreed on the plan which eventuated. In my opinion, the murder cannot be understood as a spontaneous act. I accept that the murder offending was not planned such that it amounts to an aggravating factor, but neither in my opinion is there an absence of planning such that it amounts to a mitigating factor.

109. I have taken into account the legislative guideposts of the maximum penalty and the standard non-parole period. I re-iterate the comments made by Yehia J in DH. The offending is objectively very serious. In deference to Ms Fernando’s submissions on the notional range, I find that the objective seriousness of the offending lies just beyond the mid-range.

Subjective Circumstances

Prior Criminal History

110. I have noted Keith Evans’ criminal history above. It is agreed that it is not an aggravating factor. Neither is it insignificant. It is a neutral factor on sentence.

Remorse

111. I cannot find on the evidence that Keith Evans makes out the statutory mitigating factor in s 21A(3)(i) of the Sentencing Act. Notwithstanding that comment, Keith Evans clearly has evolving insight to his offending. He is now able to express appropriate empathy about the consequences of his actions, which he could not do when he spoke to Dr Bench in 2021. It is hoped that over time, Keith Evans will come to accept responsibility for the murder of Jesse Thompson and acknowledge that his participation in the murder caused the loss of a father, husband, family member and friend. Remorse is the gateway to his rehabilitation.

Prospects of Rehabilitation and Risk of Re-offending

112. There are many factors in favour of Keith Evans’ rehabilitation. He is now connected to culture and takes pride in his status as a First Nations man. He has managed over four years to cease taking illicit substances. He has no custodial infractions on his record since 2021. He has continued to better himself whilst in custody by engaging in educational programmes. He has a growing insight into the events in his life which have brought him to his present situation. Taking all matters into account, in my opinion, Keith Evans has reasonable prospects of rehabilitation. Much will depend on his continued progress whilst in custody, and his continued abstinence from illicit substances. Likewise, his risk of re-offending will diminish if he continues to be a hard-working inmate who manages to keep out of trouble.

Background of Disadvantage/Moral Culpability

113. The details of the offender’s background of deprivation are set out at some length above. His mother abandoned him as an infant and his father, although caring, had a skewed moral compass. There were incidents in his school years which precipitated a descent into drug use and arrested his education. He grew up in a background of domestic violence. He was taught to use violence to resolve interpersonal conflict.

114. As Fullerton J said in Perkins v R [2018] NSWCCA 62 at [99]:

“The insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented.”

115. The Crown does not dispute that Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) principles apply. It is uncontroversial that the effects of profound childhood deprivation do not diminish with the passage of time and must be given “full weight” in every sentencing decision: Bugmy at [44].

116. To paraphrase Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69], I am not prepared to accept that Keith Evans bears equal moral responsibility with an offender who had a normal or advantaged upbringing. He had fewer emotional resources to guide his behavioural decisions. Those decisions have had devastating consequences.

117. Because of Keith Evans’ background of deprivation, I find that his moral culpability is diminished.

118. It is important to note that a finding of diminished moral culpability does not mean that Keith Evans’ moral culpability has been extinguished. On the contrary, Keith Evans bears responsibility for the murder of Jesse Thompson. However, his diminished moral culpability on account of his deprived background is a matter to synthesise on sentence.

General deterrence and denunciation

119. Notwithstanding my findings about the offender’s background of disadvantage, general deterrence and denunciation in particular have a very significant role to play in this sentencing exercise because of the subjective features of the offender and the gravity of the offending. I observe that Ms Fernando did not submit otherwise.

Commencement Date

120. It is agreed that the sentence should be backdated to commence on 4 July 2017.

Accumulation/Totality

121. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.

122. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. The ultimate sentence must be appropriate to the totality of the offender’s offending and his personal circumstances. In this case there must be some modest accumulation.

123. I have also considered the principle of proportionality.

Aggregate Sentence

124. It is not disputed that in the case of Keith Evans I should impose an aggregate sentence.

John Evans

Objective Seriousness

125. I do not repeat the Crown’s submissions on objective seriousness which are set out at length above and which I accept.

126. Mr Stratton SC submitted that there was a difference in the objective seriousness between the offending of John and Keith Evans. This submission was made on the basis that John Evans should be sentenced for his participation in an extended joint criminal enterprise, ie, that he foresaw or contemplated the possibility of the gun being fired with an intention to kill or inflict grievous bodily harm. I have rejected this submission in my findings of fact set out above.

127. Mr Stratton further submitted that there was an element of provocation by members of the deceased’s group towards the offender’s family. The death threats made by members of that group towards Keith Evans, and the confrontation which took place at John Evans’ home in his absence, were communicated to him by his children. It was submitted that this background, which it was conceded does not provide John Evans with an excuse or a defence, provides important context for the shooting.

128. Mr Stratton observed that had a shooting taken place in circumstances without such provocation, the objective gravity of the offending would be higher. He submitted that the objective seriousness fell below the mid-range.

129. I note that Ierace J found that the objective seriousness of the offending by John Evans to be slightly above that for the offence of murder committed by Keith Evans which was at a mid-point between the mid-range and the maximum level of objective seriousness.

Aggravating Factors

130. The following aggravating factors aggravate the objective seriousness of the murder: the actual use of a weapon (s 21A(2)(c) of the Sentencing Act) and the fact that the offending involved a grave risk of death to another person, particularly the persons other than Jesse Thompson seated in the back of the Kluger (s 21A(2)(ib) of the Sentencing Act). As I have noted above, the Crown relied on the offence being committed in the presence of a child under 18 years, being XE, (s 21A(2)(ea) of the Sentencing Act), but in the circumstances of her age (17 years) and her active participation in the murder, in my opinion the factor, whilst strictly present, does not meaningfully aggravate the offending.

131. There are obvious distinguishing features of the offending between Keith Evans and John Evans which have been noted at length above. In my opinion, those features largely balance each other out. However, in my view there are features of John Evans’ offending that affect and increase objective seriousness.

132. John Evans, as the parent of his two co-offenders, had an influence over them. Rather than diffusing a volatile situation, he escalated it. The “job half done” text demonstrates a callousness and indifference to the wounding of Jayke Rodgers and a condoning of serious violence. Whilst John Evans’ participation in the shooting was no doubt motivated by the attack upon his property and his daughter, the two-and-a-half-minute turn around after he arrived back home in response to his daughter’s message, leaving with them in the Triton with a shotgun and ammunition, demonstrates an alarming dereliction of parental responsibility. At all relevant times on multiple occasions, John Evans, as the driver of the Triton, could have ended the confrontation between the two groups. These matters, in my opinion, inform the objective seriousness of his offending.

133. I have taken into account the legislative guideposts of the maximum penalty and the standard non-parole period. I again re-iterate the comments of Yehia J in DH. The offending is objectively very serious. In deference to Mr Stratton’s submissions on the notional range, I find that the objective seriousness of the offending lies just beyond the mid-range, marginally beyond that for the offence of murder committed by Keith Evans.

Subjective Circumstances

Prior Criminal History

134. John Evans’ past criminal history is not insignificant, but neither is it aggravating. It is a neutral factor on sentence.

Remorse

135. John Evans cannot make out the statutory mitigating factor in s 21A(3)(i), as he does not accept that he murdered Jesse Thompson. However, it is clear from his recent letter to the Court that he has an emerging awareness into that event. So much is clear from the deepening understanding of his involvement in the offending and the consequences of his actions. The Court very much hopes that John Evans will continue on this path, which is essential for his rehabilitation.

Prospects of Rehabilitation/Risk of reoffending

136. John Evans has had an exemplary record whilst in custody. He has held a trusted sweeper position and avoided trouble for over eight years. I do not doubt that he has a good work ethic and that he will continue along this path. Should he do so, in my opinion his prospects of rehabilitation will be very good in the event that he is ultimately paroled. As he will be aged approximately 68 years on his first possible parole date, I expect that he will be at a low risk of reoffending. This aligns with Dr Calvin’s analysis that John Evans has few historical risk factors for violent offending.

Background of disadvantage/Moral Culpability

137. The details of the offender’s dysfunctional background are set out above. It was marred by aggression, cruelty and verbal abuse perpetrated by his father. There was alcohol fuelled domestic violence which was meted out against his mother and his siblings. As a boy and a young man, John Evans’ father would mock, belittle and bully him. He grew up in an environment of domestic violence. He was taught to use violence to resolve interpersonal conflict.

138. The Crown does not accept that Bugmy principles apply in John Evans’ case. I disagree. John Evans’ dysfunctional background gives context for and explains the dysfunctional background in which he brought up his own children. This is a case that demonstrates that dysfunction may be repeated across generations because the effects of profound childhood deprivation do not diminish with the passage of time. That is why those effects must be given “full weight” in every sentencing decision: Bugmy at [44].

139. Because of his dysfunctional childhood, I am not prepared to accept that John Evans bears equal moral responsibility with an offender who had a normal or advantaged upbringing. He had fewer emotional resources to guide the behavioural decisions which have contributed to the tragedy with which these proceedings are concerned.

140. I find that John Evans’ moral culpability is diminished. However, as he was the parent of Keith Evans when the offending took place, in my view his moral culpability is diminished to a lesser extent than his son’s.

141. I reiterate that a finding of diminished moral culpability does not mean that John Evans’ moral culpability has been extinguished. It has not. John Evans bears responsibility for the murder of Jesse Thompson. However, his diminished moral culpability on account of his dysfunctional background is a matter I will synthesise on sentence.

General deterrence and denunciation

142. Notwithstanding my findings about the offender’s dysfunctional childhood, general deterrence and denunciation have a very important role to play in this sentencing exercise, bearing in mind the subjective features of the offender and the objective seriousness of the offending. The penalty that I will impose will reflect the community’s abhorrence of John Evans’ criminal conduct.

Commencement Date

143. It is agreed that John Evans’ sentence should be backdated to commence on 4 July 2017.

Special circumstances

144. The Crown disputed that a finding of special circumstances was appropriate in all the circumstances of each of Keith Evans’ and John Evans’ case. He submitted that each would have an adequate period of supervision on parole without such a finding. I disagree. This is each offender’s first time in custody. Both offenders have endured the entirety of the COVID-19 pandemic whilst in custody (and the onerous conditions in custody during that time) and each will have special requirements when and if they are paroled. In my opinion, each will require an extended period of supervision to allow for their re-integration into the community and to be afforded assistance with matters such as housing, employment and mental health support so that they can address their childhood trauma. I observe that when paroled, Keith Evans will effectively never have been employed in any enterprise other than his father’s tree-lopping business and John Evans will be beyond the usual age of retirement and will not likely be able to find employment in any position requiring strenuous physical activity. I make a finding of special circumstances in both cases and deviate from the statutory ratio to 66.6%.

Sentences

Life sentences

145. The Crown did not submit that a life sentence was called for in the circumstances of this case for either offender. Taking into account the circumstances of the offences and the offenders, I am not satisfied pursuant to s 61(1) of the Sentencing Act that the offenders’ culpability in the commission of the offences is so extreme that the community interest in retribution, punishment, community protection and deterrence could only be met through the imposition of a life sentence.

Threshold

146. Having considered all the possible alternatives, I am satisfied that the threshold in s 5 of the Sentencing Act has been crossed in both Keith Evans’ and John Evans’ cases. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were made to the contrary.

Ceiling principle

147. As set out above, Keith Evans and John Evans were sentenced by Ierace J on 22 July 2021 to terms of 32 years with a non-parole period of 20 years and 31 years and a non-parole period of 22 years and 6 months respectively. If an accused is convicted at a retrial following the quashing of a previous conviction, he should ordinarily not receive a longer sentence or non-parole period than that which was imposed following the first trial: R v Gilmore (1979) 1 A Crim R 416 at 419-420; R v Lane (No 4) [2018] NSWSC 1898 at [73]; R v White [2023] NSWSC 611 at [75]. The “ceiling principle” therefore applies, and in my view there is no reason to depart from the principle in the present circumstances. No submissions were put otherwise. I have assessed the sentence I consider ought to be imposed and then compared it with the sentence imposed by Ierace J in order to assess whether any adjustment should be made in light of the “ceiling principle”. I observe that the trial before me was different to that before Ierace J. Furthermore, on sentence I take into account the offenders’ deprived backgrounds and their continuous efforts at rehabilitation which were not before Ierace J.

Disposition

148. I have taken into account the various purposes of sentencing under s 3A of the Sentencing Act. These purposes include ensuring the offenders are punished for their conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and these offenders highlight how the various purposes of sentencing pull in competing directions.

149. As the High Court said of s 3A in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [20]:-

“The purposes there stated (in s 3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.”

150. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the Court, including the facts surrounding the commission of the offences, matters affecting relative seriousness, the offenders’ subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty, the standard non-parole period and the factors referred to in s 21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

151. I intend to proceed to sentence Keith Evans by way of an aggregate sentence pursuant to s 53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved. Taking all matters into account, as I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment of 27 years and 6 months with a non-parole period of 18 years and 4 months. As required by s 53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows:

152. For the count of wound with intent to cause grievous bodily harm, I would have imposed a sentence of 5 years and 6 months with a non-parole period of 3 years and 8 months; and

153. For the count of murder, I would have imposed a sentence of 26 years with a non-parole period of 17 years and 4 months.

154. With respect to John Evans, having considered all of the matters I have referred to in this sentence judgment, I impose a sentence of imprisonment of 26 years and 6 months with a non-parole period of 17 years and 8 months.

Orders

153. Keith Evans, please stand.

154. I convict you of the offences of wound with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act and murder contrary to s 18(1)(a) of the Crimes Act and impose an aggregate sentence of imprisonment of 27 years and 6 months with a non-parole period of 18 years and 4 months. The indicative sentences I would have imposed are as follows:

(i) For the count of wound with intent to cause grievous bodily harm, I would have imposed a sentence of 5 years and 6 months with a non-parole period of 3 years and 8 months; and (ii) For the count of murder, I would have imposed a sentence of 26 years with a non-parole period of 17 years and 4 months.

2. I have backdated your aggregate sentence to commence on 4 July 2017. Your head sentence will expire on 3 January 2045. You will be eligible for release to parole on 3 November 2035.

3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), you are advised of the existence of that Act and of its application to the offence of murder for which you have been convicted. Your legal representatives are directed to advise you of the implications of that matter to you.

4. Keith Evans, do you understand the orders I have made?

5. John Evans, please stand.

6. I convict you of the offence of murder contrary to s 18(1)(a) of the Crimes Act and impose a sentence of imprisonment of 26 years and 6 months with a non-parole period of 17 years and 8 months.

7. I have backdated your sentence for murder to commence on 4 July 2017. Your head sentence will expire on 3 January 2044. You will be eligible for release to parole on 3 March 2035.

8. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), you are advised of the existence of that Act and of its application to the offence of murder for which you have been convicted. Your legal representatives are directed to advise you of the implications of that matter to you.

9. John Evans, do you understand the orders I have made?

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