R v Evans; R v Rawlinson; R v Proud - [2014] NSWSC 979 - NSWSC 2014 case summary — Zoe

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R v Evans; R v Rawlinson; R v Proud

[2014] NSWSC 979

Supreme Court of NSW|2014-07-03|Before: Harrison J

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Court

Supreme Court of NSW

Decision date

2014-07-03

Before

Harrison J

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

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th with T Quilter (Evans) W Terracini SC (Rawlinson) D Pullinger (Proud) Solicitors: Director of Public Prosecutions (Crown) Aboriginal Legal Service (Evans) Archbold Legal Solutions (Rawlinson) Medcalf Grant Lawyers (Proud) File Number(s): 2011/412091 (Evans) 2011/410710 (Rawlinson) 2011/410458 (Proud) Publication restriction: Nil

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REMARKS ON SENTENCE 1HIS HONOUR: The deceased Katherine Foreman died at her home in the early hours of 27 October 2011, when the upstairs bedroom in which she was sleeping was set alight. The fire engulfed the home and the deceased was later found lying on the landing at the top of the stairs. It is not in dispute that petrol was poured inside the bedroom and ignited. 2Bradley Rawlinson, Michelle Proud and Wendy Evans were each indicted upon a charge alleging that on 27 October 2011 at Corrimal in the State of New South Wales they did murder Katherine Foreman. Ms Evans pleaded guilty to the murder of the deceased on 14 June 2013. A jury found Mr Rawlinson and Ms Proud guilty of the murder of the deceased on 11 April 2014 following a trial in Sydney that commenced on 18 February 2014. 3The offence of murder carries a maximum penalty of life imprisonment. In the event that a determinate sentence is imposed, a standard non-parole period of 20 years applies. In proceeding to determine the appropriate sentence, I am not required to commence by considering whether there are reasons for not imposing the standard non-parole period. Similarly, I am not required to make an assessment of whether or not the offence is within the mid range of objective seriousness (see Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [25]). The relevant statutory provisions generally, and the provisions of ss 54B(2) and (3) and 21A of the Crimes (Sentencing Procedure) Act 1999 in particular, require an approach to sentencing in which all of the relevant factors are identified, and a judgment is reached as to the appropriate sentence having regard to such factors (see Muldrock at [26], citing Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]). The standard non-parole period for the offence of murder requires that content be given to its specification as the "non-parole period for an offence in the middle of the range of objective seriousness". It represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case (see Muldrock at [27] and [31]). 4All three prisoners appeared before me for submissions on sentence on 3 July 2014. I had earlier determined that the sentencing hearings should take place at the same time: see R v Evans [2014] NSWSC 735. However, as discussed in that judgment, because Ms Evans was not a participant in the trial of the others, the facts relevant to her do not include all of the facts potentially relevant to them and vice versa. It is therefore important that the facts that have now been agreed with respect to Ms Evans be clearly and separately stated.

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Factual findings 5The following facts were agreed for sentencing purposes with respect to the case against Ms Evans. 6The deceased was a solicitor who practised in and around Wollongong. She lived at 6 Doncaster Street, Corrimal. Ms Evans is a former employee of the Department of Attorney-General and Justice and worked at various Local Courts over the years preceding the death of the deceased. Ms Evans met the deceased in 2008 through her work. They became friends in about November 2010. 7Mr Rawlinson and the deceased had been in an intimate relationship on and off over a period of about four years prior to her death. They communicated regularly with each other during this time and were intimately involved even as late as the days preceding the death of the deceased. 8For some time leading up to the death of the deceased Ms Proud and Bernard Spicer had been in a de facto relationship. Ms Evans and Ms Proud met and formed a friendship. It appears that Mr Spicer and Scott Field, who was then Ms Evans' partner, had both been inmates of the same correctional centre in 2008. 9On 9 July 2011, Mr Rawlinson had a birthday dinner that was attended by the deceased, Ms Evans and others. The celebrations moved to the Harp Hotel in Wollongong where the deceased was seen to kiss Ms Evans' son. Mr Rawlinson saw this and became angry. He told Ms Evans. The deceased asked Ms Evans to take Mr Rawlinson home. Ms Evans then drove Mr Rawlinson to the deceased's home. 10Mr Rawlinson revealed to Ms Evans that the deceased had been in a sexual relationship with Mr Field. Ms Evans had herself been in a relationship with him from some time in 2009 until about December 2010. Ms Evans was still seeing Mr Field on and off in an intimate way until he was arrested in February 2011 for assaulting her. Notwithstanding that, Ms Evans and Mr Field remained in contact until November 2011. Ms Evans told the police that the deceased had admitted in mid July 2011 that she had slept with Mr Field, and around September 2011 the deceased revealed this to a sheriff's officer at Wollongong Local Court. 11Ms Evans told Sian Regal that she and Mr Rawlinson commenced a friendship on the night of his birthday party. They kept in regular personal and telephonic contact thereafter. Their friendship became intimate on 29 August 2011. Mr Rawlinson would visit Ms Evans every day except when he had his son on weekends. 12On 16 July 2011, the deceased sent Mr Rawlinson a text message that said: "I know you've been talking to Wendy behind my back so keep lying about it see if I care." Mr Rawlinson then sent Ms Evans his own message saying: "Didn't take long, here's the message I just got from Katie." Mr Rawlinson then forwarded the previous message from the deceased to Ms Evans after adding his own words saying, "I'll fuck you both up." 13On 28 July 2011, Ms Evans posted the following on her Facebook page: "Note to self...take a deap [sic] breath, count to ten, remember, murder is still against the law." On 11 August 2011 she wrote: "has been quiet a very long time now, I pity those who have yet to see me pissed off because I have remained calm until now. The volcano is bubbling." 14Numerous work colleagues noted that Ms Evans frequently spoke about her personal life and specifically her friendship with the deceased. This spanned the periods before and after Ms Evans became aware of the fact that the deceased had slept with Mr Field. Ms Evans subsequently told a number of people that the deceased had slept with him, including her mother, her friends and work colleagues. Suzanne Van Kooten was a work colleague, and Ms Evans told her that the deceased was sleeping with police, prosecutors and other solicitors. Ms Evans said to her: "I am going to tell somebody and cause Katie to get what is coming to her" and, "she gets what she deserves for what she has done to me." 15Mr Rawlinson engaged the services of a female escort named Nicole Thompson, who he would see every few months. He spoke to her about the deceased in negative terms. Mr Rawlinson offered Ms Thompson $2,000 to have the deceased bashed, telling her, "I want to put her in hospital." On 27 July 2011, Mr Rawlinson sent Ms Thompson a text message saying, "Hi Nikki, it's Brad, are you able to do that job for me." On 3 August 2011, Mr Rawlinson again asked Ms Thompson about bashing the deceased and sent her a number of follow up messages that she ignored. Ms Thompson ultimately told Mr Rawlinson to "fuck off." 16Ms Evans repeatedly spoke to her work colleagues at the Wollongong Court about the deceased's personal life and their falling out. The deceased also told her father that she had been advised by a sheriff's officer that Ms Evans was spreading rumours about her. One of these officers spoke to senior registrar Kathy Frost about the matter who in turn spoke to Ms Evans on 30 August 2011. Ms Evans had been absent from work but told Ms Frost that, "everything with Katie has come to a head" and that she had not been coping. Ms Evans resigned but would have been dismissed by Ms Frost in any event, because the things that she was saying about the deceased were unacceptable. 17About a month before the fire that killed the deceased, Ms Evans told her friend Sian Regal that she had, "asked the Berkeley Boys to get her [the deceased] bashed" and said, "I should get her bashed". 18Between 1 October 2011 and 22 October 2011, Ms Evans and Mr Rawlinson exchanged numerous text messages. Ms Evans sent a message to him on 1 October 2011 saying, "I hate it when you leave". Mr Rawlinson replied, "Yeah so do I but just keep thinking one more week. Then she is gone and we are away from her". That prompted the following response from Ms Evans: "I hate that she gets to spend the time with you that we should be spending. I'm sorry. But hopefully it's only for another week. I love you and miss you badly when your [sic] not here. Next weekend is going to be so hard. As I won't see you from when you leave here in the morning until late Monday night or even Tuesday night. It will be the longest that we have been apart in a month." 19On 3 October 2011, Mr Rawlinson sent messages to Ms Evans whilst he was in the presence of the deceased, as follows: "I can't wait to see you tonight. This is hell. She is a cow. She's carrying on like an idiot. God I want her gone. ... I want to kiss you tonight and hug you. I love you. ... OK, let me know how you go beautiful. I miss you." 20Ms Evans responded, saying: "I'm OK just finished from the Dr. I have to get antibiotics. I miss you and I love you. I can't wait to see you tonight. So entertain me? What is she doing to be an idiot?" 21On 4 October 2011, Ms Evans sent a message to Mr Rawlinson saying, "I will sweetness. I hope you have a good day at work. I miss you and love you. I wish you were here with me. I dislike it intensely when you are not with me. But it's not for much longer. Then our life together begins." 22Mr Rawlinson sent Ms Evans a message on 13 October 2011 in which he said: "I want to be with you til I die and I hope you understand the various reasons why it needs to happen to her now. I love you." 23Some six days later Mr Rawlinson sent a message to Ms Evans as follows: "Do me a favor [sic] and send her the text from the public phone you were going to yesterday." Ms Evans responded, saying, "I will do it today sweetness. I love you. Have a good day at work." Mr Rawlinson later responded, saying, "OK Wendy. I really do want to spend my life with you which is why she must go. To grow old with you always." 24On that day the deceased received a text message from a public phone in Berkeley. That message was sent by a third person at Ms Evans' request, and was in these terms: "K GOT PACKAGED WILL B URS 2NGT 4SESS OFF URCUNT CU 940 UWIL ENJOY FUK UR RSE NSQEL LIKE PIGS U FUK B READY IWILL LINE URCUNT WITH COC." 25Mr Rawlinson visited the deceased at her home on 19 October 2011, leaving at about 22.30. Approximately 15 minutes later she sent him three messages in quick succession, saying, "Are you here?", "Are you here?" and, "Answer me quick please?" Mr Rawlinson responded with a message at 22.48 saying, "What no why, what's wrong?" The deceased responded saying, "There's someone here I don't know what to do" and, "There's someone here I just went downstairs and there's someone on the bottom deck". At 22.55 Mr Rawlinson sent a message saying, "I'm here". He spent the night at the deceased's house. However, at 23.49 Mr Rawlinson sent a message to Ms Evans saying, "Hi beautiful, I'm sorry but I'm going to stay at mum and dads with Angus tonight because he's not staying on the weekend. I hope you understand. I love you." 26On 21 October 2011, Mr Rawlinson sent a message to Ms Evans as follows: "God I want her ended, I'll send you the text I just got from her." 27Mr Rawlinson then created and sent a further message to Ms Evans on 21 October 2011 that he falsely indicated had been sent to him by the deceased. It was as follows: "Your [sic] fucked, yes you, and your fucking mut kid and your fucking mut wife. You've given me nothing. What have you done for me. I will end you. Why didn't you fill the car with petrol this morning. Because you would rather spend your money on your fucking rat kid. I've had to go to woolies today because you don't buy anything. Nearly 40 dollars you prick. Fuck you! I'll finish him, you watch." 28Ms Evans responded: "Well she thinks ur worth more to her dead. She will then get all ur money. Maybe you should ask her why she wants you around then...Well hopefully that part of your life is over soon sweetness. I love you." 29Mr Rawlinson replied: "Every min away from you takes forever. I want her gone so I'm not having to be away from you. Goodnight beautiful." 30In the period leading up to the events of 27 October 2011, Ms Evans contacted Michelle Proud and asked her if she knew anyone who could bash the deceased. Mr Spicer later called Ms Evans and said that he would do it. It was agreed that Mr Spicer would be paid $3,000 for his assistance. It is apparent from telephone records that Ms Evans and Ms Proud and/or Mr Spicer made contact on 38 occasions between 14.18 on 25 October 2011 and 14.59 the following day. Ms Evans and Mr Rawlinson made contact on 54 occasions between 17.06 on 25 October 2011 and 00.07 on 27 October 2011. 31At 11.43 on 26 October 2011, Mr Rawlinson withdrew $1,000 from the Commonwealth Bank ATM at Figtree. He deposited that amount into the TAB account of Peggy-Ann Case at 11.57. Ms Case is Mr Spicer's sister. Ms Case then received a call from Ms Proud telling her that "a friend" would deposit money in her account. At 12.33, Ms Case withdrew the money and gave it to Mr Spicer. 32Ms Proud and Mr Spicer then booked to stay at the Oasis Motel in Windang, with Ms Evans' assistance. That motel was located about 20 minutes drive from the deceased's home. The booking was made in Mr Spicer's name using Ms Proud's credit card. 33Ms Evans arranged to borrow her mother's green Hyundai Excel motor vehicle that she drove to an address in Whalan on the afternoon of 26 October 2011. Ms Evans collected Ms Proud and her children from that address. At approximately 16.06, Ms Evans sent a text message to Mr Rawlinson saying, "I'm heading back to Wollongong. Then I will be returning to collect the main person. I love you". That was a reference to Mr Spicer. Ms Evans dropped Ms Proud at the motel and returned to Western Sydney, where she collected Mr Spicer and his daughter. From there they drove back to the motel, arriving just before 20.00. 34At about 20.30 on 26 October 2011, a male was observed by a witness parking in Wilford Street, Corrimal a short distance from the deceased's home. It was the Crown case that this male was Mr Rawlinson. Phone records show that he was in Corrimal at that time. CCTV footage also depicts a white Ford Falcon utility heading south along the Princes Highway towards Corrimal at 20.38. The Crown contended that Mr Rawlinson was driving the vehicle. 35Ms Evans left the motel and met Mr Rawlinson at the house at which she was then residing, and was provided by him with two keys to the deceased's house. Ms Evans then returned to the motel and collected Mr Spicer. 36Other CCTV footage shows a white Ford Falcon utility heading north on the Princes Highway towards Woonona and away from the deceased's house at 23.49. It is once again the Crown case that Mr Rawlinson, who was making his way home, was driving this vehicle. Ms Evans and Mr Rawlinson exchanged nine text messages between 23.40 on 26 October 2011 and 3.31 the following day. 37At 00.40 on 27 October 2011, Ms Evans and Mr Spicer went to the K-Mart store in Figtree and purchased a 10-litre bucket, a water container and an aluminium torch. Mr Spicer paid cash for these items. They then went to two service stations. At the first of these they filled a container with petrol as well as the Hyundai car. At the second they purchased a pack of firelighters and a BIC lighter. From there Ms Evans and Mr Spicer made their way to the home of the deceased, passing the intersection of the Princes Highway and Bellambi Lane at Russell Vale heading north towards Woonona at 1.11. Three minutes later, that Hyundai car travelled through the same intersection heading south towards Corrimal. The car was then parked adjacent to a set of stairs that led directly up to Doncaster Street, Corrimal, about 25 metres from the deceased's home. 38Meghan Errington noticed this car at the base of the stairs at about 1.30 and saw a male and a female get out. She continued driving to her house in Doncaster Street, from where she saw the same two people standing at the top of the stairs leaning against the railing. These people were Ms Evans and Mr Spicer. At about 2.20, Ms Evans and Mr Spicer entered the deceased's house using the keys provided by Mr Rawlinson. Mr Spicer carried a firelighter and the bucket that he had earlier filled with petrol. Ms Evans and Mr Spicer walked up the stairs in the deceased's house. Mr Spicer handed the firelighter to Ms Evans, which Mr Spicer had wrapped in a petrol soaked cloth. Mr Spicer said to Ms Evans, "When I say light it, light it and throw it". 39The deceased was at this time asleep in her bed. Mr Spicer proceeded to pour or to throw petrol from the bucket around the deceased's bedroom and possibly onto the bed where the deceased lay asleep. Mr Spicer said, "Light it now." Ms Evans lit the fire lighter and threw it into the bathroom. Mr Spicer retrieved it from the bathroom and threw it into the deceased's bedroom. The petrol ignited immediately. They ran from the house. Fire consumed the bedroom within a very short time. Whilst fleeing from the house, Ms Evans dropped the two house keys. Mr Spicer picked up one of the keys and gave it to Ms Evans. 40The Fire Brigade arrived at the house at about 2.35. The upper level of the house was by then well alight, with flames visible from the bedroom window and the roof. The fire was extinguished and the body of the deceased was located on the small landing at the top of the stairs leading to her bedroom. It was the Crown case that the deceased was awoken after the fire started and attempted to escape, but was overcome by fire and smoke. She collapsed and died just beyond the entrance to her bedroom. 41Ms Evans neither assisted the deceased nor called an ambulance or the Fire Brigade. 42A crime scene was immediately established. The key to the deceased's home dropped by Ms Evans was found on the roadway outside the house. It fitted the front screen door. The house did not show any signs of forced entry. 43An autopsy conducted by a forensic pathologist established that the deceased had inhaled smoke and soot, indicating that she had been alive and breathing during the fire. Petrol was detected on remnants of clothing worn by her. 44Mr Rawlinson was interviewed at Wollongong Police Station that day. He did not disclose his relationship with Ms Evans, or his knowledge of or involvement in the fatal fire. He told police that he had not seen the deceased since 25 October 2011, but said he had sent her a text message the following day. He said that he went down to the Wollongong Harbour in the evening of 26 October 2011 and that he arrived home at about 23.30. 45Between 15.35 and 16.50 on the day of the fire, Ms Evans met with investigators from the Police Integrity Commission at the Novotel Hotel in Wollongong. She had contacted them prior to the death of the deceased, on 29 September 2011. She spoke to the officers about two allegedly inappropriate relationships between the deceased and police officers, in the course of which the deceased was said to have supplied illicit drugs and sex in exchange for reduced charges or better sentencing outcomes for her clients. Ms Evans disclosed that she was having a sexual relationship with the deceased's boyfriend Mr Rawlinson. Investigators to whom Ms Evans spoke were unaware of the fatal fire at that time. The allegations of corrupt conduct were never substantiated. 46On 28 October 2011, Ms Proud went to a Cash Converters store in Warrawong and pawned a number of items. She received $70 in cash, which she used to pay for the return trip to Sydney for herself, Mr Spicer and the children. Ms Proud later told her friend Amie Hull, "Wendy had dogged us, we had to hock Tayla's camera, Matthew's video games, and DS and Wii just to pay for a train ticket to get home for all of us". A short time later, Ms Proud told Ms Hull that she was going to do a grocery shop but was waiting for Wendy to put money into her account. Ms Proud told Ms Hull that it was "a couple of thousand" dollars. Shortly thereafter Ms Proud told Ms Hull, "Wendy had not paid the money that she owes us and BJ and I are going to bash the shit out of her if she does not pay in the next day or so". 47Police investigations led to recovery of a large amount of evidence after the fire. That evidence included the following material. 48Ms Evans went to the Warrawong K-Mart with Ms Regal where she purchased two Samsung phones. Ms Evans told Ms Regal that they were for her and Mr Rawlinson. 49Ms Proud left a number of voice messages for Ms Evans and also sent her several text messages. They included the following:

"Hey Wendy, what's going on, it's Michelle, I need that money. Today."
"BJ's going to Berry tonight. He's going to drop into Brad's. He's got a job to do. Um, either have the money in the TAB account by seven or he'll be around at Brad's house."
"I want my fucking money bitch and this is Michelle. Where is my fucking money? I'll come down and I'll hunt you down. I know where Brad lives so don't fucking stuff me around. I'm nearly kicked out of my fucking house." 50On 5 November 2011 at 17.53, Ms Evans sent a text message to Ms Proud and Mr Spicer saying, "Dad put in at dimond beach rec 495 000 143 478 929 903 $50." Ms Evans was visiting her father at Diamond Beach at the time. 51Three days later at 11.57, Ms Evans sent Mr Rawlinson a text message saying, "By one". At 12.39, Mr Rawlinson withdrew $1,000 from his bank account and gave it to Ms Evans whom he met near Dapto. Ms Evans deposited that amount into Ms Case's TAB account at 15.07 and Mr Spicer withdrew it at 16.57. 52At 9.00 on 16 November 2011, Mr Rawlinson gave a statement to the police in which he said that he had not spoken to Ms Evans for the previous six months. At 11.20 the same day, Mr Rawlinson called Ms Evans from a public phone and they arranged to meet. Mr Rawlinson called Ms Evans again at 14.17 and she told him that she was at Dapto heading to the Telstra shop. Mr Rawlinson asked her, "So you don't know about Telstra, you don't know about those messages yet?" Ms Evans responded, "I'm walking in there right now." They then organised to meet at Michael Hill Jewellers. Immediately thereafter, Ms Evans and an unknown female entered the Dapto Telstra shop and spoke to an employee who told them, in answer to their query, that deleted text messages could not be retrieved. Both Ms Evans and her companion smiled when they were told this. 53Ms Evans was interviewed at Sutherland Police Station the next day. She did not disclose her relationship with Mr Rawlinson, or any knowledge of or involvement in the fatal fire. She told the police that she had not communicated with him since his birthday party and that she had only met him a handful of times in the presence of the deceased. She said that she had not spoken to Mr Rawlinson since the death of the deceased. She also provided a false alibi, claiming that on the night of the fire she had gone to "The Oaks" at Albion Park to collect her mother. She said that she had spoken to Ms Proud by phone throughout the evening of 26 October 2011 but had not seen her since January or February 2011. Ms Evans also said that her contact with the deceased had steadily decreased since she discovered that she had slept with Mr Field. 54At about 21.00 on 18 November 2011, Ms Evans spoke to Mr Spicer and Ms Proud. She asked them, "You got the other thousand, didn't you?" Mr Spicer responded, "Yeah". In the context of discussing the ongoing police investigation, Ms Proud says, "Tell Brad to keep calm." Ms Evans replied, "He is. But he's now stressing about me, because they're hammering me...". 55On 25 November 2011 at 13.09, Mr Rawlinson withdrew $400 from his account and met Ms Evans and gave it to her. At 14.26 Ms Evans put $350 into Ms Case's TAB account. Ms Evans then sent a message to Mr Spicer and Ms Proud at 15.19 saying, "Sorry we just put 350 in now that's all we have." Ms Proud left a voice message for Ms Evans at 15.28 saying, "Hey hon, only me um, we got it. Thanks. Bye." 56Only six minutes later, Ms Proud called Ms Evans on her mobile phone. They discussed the fact that the TAB was investigating transactions on Ms Case's account. Ms Proud suggested that Ms Case was being investigated for money laundering. Ms Evans then referred to the fact that she has just deposited $350 in that account. Ms Case in fact withdrew that sum at 16.00 that same afternoon. 57Police seized the Hyundai motor vehicle on 14 December 2011. 58Ms Evans and Mr Rawlinson spoke by telephone on 19 December 2011 about text messages that they had exchanged, of which there were nine between 23.40 on 26 October 2011 and 3.31 the following morning. Mr Rawlinson advised Ms Evans that the police had called and wanted to see him, because they were checking some "inconsistencies" in relation to her. Other portions of the intercepted calls between them on 19 December 2011 included the following: "RAWLINSON: We cannot be seen to have been together because they'll put the two of us together, as the two that did it. We cannot say that we've been together. I don't know what to do. EVANS: Fuckin' hell. RAWLINSON: I'm fucked. My life is over. EVANS: If you go, I've got to go with you. ... EVANS: There's nothing there to prove anything though. RAWLINSON: Well that text message that night does, doesn't it? EVANS: What does it say? Do you remember? Something about ripping the screen off, something like that. RAWLINSON: Pardon? EVANS: Mentioned something about ripping the screen and that. RAWLINSON: About what? EVANS: Just ripping the screen. RAWLINSON: Say it again. EVANS: Didn't it just say something about ripping the screen? RAWLINSON: Doesn't it say something like just get in and do it and get out? EVANS: I don't know. RAWLINSON: Huh? EVANS: No, it was about make sure they rip the screen from the outside, something like that." 59In another call on the same day, Mr Rawlinson refers to, "the last couple of messages that I had with you". The conversation then continues: "EVANS: I can't remember 'cause I erased everything. RAWLINSON: Yeah, well remember the last couple of messages basically you asked me if she was asleep and I said, 'yes'. And then I just said to you, well do it and get out, do it and get out. EVANS: Mm. RAWLINSON: Remember? EVANS: Yeah. Yeah. ... RAWLINSON: 'Cause I don't know what to say. Yeah, I had communication with you. What sort of communication? Oh well I was just speaking to her in relation to keeping Scott away from Katie... Is that all? Yeah. Then why is there a message talking to her on the night before stating, 'Is she asleep? Need to tell me when she's asleep.' 'Yeah, she's definitely asleep. Um just get the job done and get away.' What do I say to that? EVANS: I don't know 'cause I'm hoping that's what they haven't got. RAWLINSON: Well I don't know what to do if they've got that one. EVANS: But does it say her, does it actually say her name? RAWLINSON: No." 60Ms Evans also spoke with Ms Proud that day: "PROUD: The only problem will be if they check servos. EVANS: Well, what but only for that part of it. Like that's the only thing. PROUD: Yeah. EVANS: 'Cause we put petrol..." 61Ms Proud then asked Ms Evans if she was on a "safe" phone. Ms Evans assured Ms Proud that she was speaking on a different phone altogether and the conversation then continued with Ms Evans referring to filling up the tin "down there", a reference to Wollongong. 62I am satisfied of these facts beyond reasonable doubt.

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Subjective circumstances 63Ms Evans consulted Dr Richard Furst, a psychiatrist, for the purposes of these proceedings. He provided reports dated 20 November 2013 and 14 March 2014. Much of the material that follows is taken from those reports. 64Ms Evans is a 41-year-old Aboriginal woman. She has three sons aged 24, 21 and 20 and a daughter aged 18. Ms Evans grew up in Unanderra and Berkeley, attending Farmborough Road Public School and Berkeley High School to Year 10. She became pregnant for the first time when still at school at the age of 16. She completed her senior high school years at Illawarra Senior College. She does not suffer from any learning disorder or ADHD. She was a well behaved and quiet student. She was never suspended or expelled. 65Ms Evans was hit by a car when she was 8 years of age, sustaining a fractured skull and femur and suffering loss of consciousness. She suffered emotional difficulties as a teenager, feeling unwanted by her father. Her parents separated when she was in her infancy. She was raised by her mother and stepfather, who was an alcoholic. 66She had a conflicted relationship with her stepmother, who treated her violently. She and her sister were also sexually abused by a grandparental figure when she was about 9 or 10 years of age. She reported this but was told to keep it to herself. She was exposed to violence in the family home. Her mother was imprisoned for fraud when Ms Evans was first pregnant. 67Ms Evans married the father of her first three children in 1996. They were divorced in 2000. Their relationship continued sporadically thereafter until 2010. 68Ms Evans started work as a childcare worker in 1995 and worked as an Aboriginal teachers' aide between 1997 and 2001. She fell into depression in 1999 in the context of her failing marriage and the stress of parenting. Her sons all suffered from ADHD. She was treated with antidepressant medication between 1999 and 2000. 69Ms Evans started a relationship with Scott Field in about 2000. That lasted for six months, after which she returned to her husband. Ms Evans suffered from depression over subsequent years. She had low self-esteem, self-doubt and frequent episodes of tearfulness. She felt hopeless but not suicidal. 70Ms Evans started work with the Attorney-General's Department in 2008, working at the Wollongong Courthouse and the Coroner's Court. She enjoyed that work. She remained on antidepressant medication from time to time until 2011. 71Ms Evans became involved once again with Scott Field from about 2006 to 2010. He had been incarcerated until May 2010 and they separated in December that year. Mr Field advised her to, "kick her son out of the house" for stealing from the home. That ended up destroying her relationship with her son. She felt guilty for preferring her relationship with Mr Field over the needs of her children. Ms Evans reported that Mr Field had control over her, even after they separated. He physically assaulted her in December 2010. 72Ms Evans met the deceased through her work at Port Kembla Court. They developed a close friendship. The deceased informed Ms Evans about her relationship with Mr Rawlinson. Ms Evans confided in the deceased about her problems with Mr Field, from whom the deceased told her to get away as she did not like him. The deceased also assisted Ms Evans with her son when he was arrested in 2011. 73Mr Field assaulted Ms Evans in April 2011. His parole was revoked. The deceased provided support for her at that time. Ms Evans attended the deceased's birthday party in June that year. She was unaware that the deceased and Mr Field had been involved sexually some little time beforehand. Ms Evans also attended Mr Rawlinson's birthday party in July. Mr Rawlinson revealed to Ms Evans that the deceased and Mr Field had been together. She became upset about this. 74Ms Evans reported to Dr Furst that Mr Rawlinson told her at around this time he was going to kill himself. She also reported that Mr Rawlinson told her that the deceased intended to hurt her children and have her daughter removed from her care. Ms Evans began to doubt everyone, including the deceased. She reported to Dr Furst that she believed everything that Mr Rawlinson told her, and what he said about what the deceased was going to do to her son. 75Ms Evans became involved in an intimate relationship with Mr Rawlinson from the end of August 2011. She described him to Dr Furst as appearing to be "the perfect man". 76Ms Evans has no drug or alcohol history of significance. 77Ms Evans reported to Dr Furst that she arranged with her co-accused to have the deceased bashed, so that she could feel the pain that she felt. Ms Evans said that she believed that the deceased was going to have her children bashed or sent to gaol. The following is an extract from Dr Furst's first report: "She claimed she rang her friend Michelle [co-accused Ms Proud] to see if Ms Proud's partner [co-accused Mr 'BJ' Spicer] 'knew anybody who could bash her.' Ms Evans said, 'I had no intention of doing anything until after one month of Brad asking if I could find anyone to have her bashed. BJ agreed. I had to pay $1000 into his TAB account by 26/10/11'. The offence took place in the early hours of 27/10/11. Ms Evans maintained that she never thought Ms Foreman would be killed. She added, 'I was petrified on the night. BJ has a violent temper. At first, I never thought he was using petrol. BJ told me to light the firelighter and throw it into the bedroom. I threw it into the bathroom. She was in her bed. I was one step down from the top step.' On further questioning, Ms Evans acknowledged awareness BJ had poured petrol in the house and lighting a firelighter was a dangerous thing to do. However, she still claimed she was 'in fear of BJ,' 'numb' and 'annoyed' about the things she believed the victim said and did." 78Ms Evans told Dr Furst that she hated herself, and that she had become somebody she did not recognise, from a caring and responsible person to "like that". She claimed to have twice attempted suicide between the death of the deceased and the date of her arrest. She has also since come to realise that the things she believed about the deceased were not true. She has come to detest both Mr Field and Mr Rawlinson. She is unable to explain why she listened to Mr Rawlinson but believes she may have been searching for a "father figure". She believes she was easily manipulated. She told Dr Furst that she pleaded guilty because it was, "the right thing to do". 79Ms Evans told Dr Furst that she frequently thinks about the night of the offence and the impact that her actions have had upon her own family. She said that her family wants to know "where Wendy went" and how she "participated in one of the most horrific crimes". She said, "I should have gone to the police to stop it from happening." Dr Furst wrote this: "She expressed remorse about her role in the murder of Katie and the impact of this on Ms Foreman's family. She said, 'I feel every day for her family. That this happened and I did nothing to stop it. I didn't think of the alternatives. I've seen her nieces and nephews and brother. I met her parents. They thought we were out partying. We were driving to Nowra for doughnuts, watching DVDs with the kids. I can never take back time. I want to be sentenced to give her family some peace." 80Dr Furst expressed the opinion that Ms Evans, "was probably vulnerable to the influence of...[Mr] Rawlinson by virtue of her depression, addiction to the pain medication codeine, and general poor judgment by virtue of her dependent personality traits and idealisation of [Mr] Rawlinson as 'the perfect man'." He considered that given her propensity to depression, lack of criminal antecedents, and separation from her children, a custodial sentence might well weigh more heavily on her than the average inmate. He also considered that she had insight into her offending behaviour and was remorseful. Dr Furst expressed the opinion that Ms Evans had a low risk of re-offending and good prospects of being successfully rehabilitated, notwithstanding the obvious seriousness of the offence in question. 81In response to specific questions, Dr Furst opined that Ms Evans was, "probably more vulnerable to being manipulated" by Mr Rawlinson, "by virtue of her adverse childhood experiences and unique personality structure". Dr Furst said this: "In my opinion, the pattern of communication between Ms Evans and [Mr] Rawlinson, relationship dynamics, and a degree of apparent manipulation probably impaired Ms Evans' capacity to rationally deal with the threat she perceived the deceased constituted, especially having regard to her personality structure and personal vulnerabilities." 82He was of the view that, "her decision making at the time of the offence appears to have been adversely affected by her romantic attachment to [Mr] Rawlinson and a desire for the two of them to continue a relationship without the deceased".

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Mitigating factors 83I have referred later in these reasons to the effect of the early plea of guilty. Ms Evans is entitled to the benefit of that plea to the extent that it carries an obvious utilitarian value and informs the existence and extent of remorse. However, in this last respect I note that Ms Evans did not enter the witness box and give evidence of her remorse before me. I found that decision somewhat difficult to understand in the circumstances. If Ms Evans was truly remorseful, it confounds common understanding for her not to have taken a perfect opportunity to express it in her own words in the presence of the deceased's parents, who had both read their respective victim impact statements from that very location earlier in the day. It seems to me to be all the more difficult to understand when the expression of what is said to be a genuine and sincerely felt emotion is simultaneously likely to advance at least my understanding of how Ms Evans has felt following the death of the deceased, particularly having regard to her admitted involvement in causing it. I remain troubled when I am asked to assume favourably to an accused person that he or she is truly remorseful, or in simple words, truly sorry, for what he or she has done, when the closest I am taken to hearing it comes from a second hand report of what a medical professional has managed to elicit during a clinical examination. The giving of direct evidence of remorse can also help to illuminate the distinction between true remorse and self-pity. Usually only one of those emotions is relevant for sentencing purposes. 84Ms Evans has no prior criminal record. It was submitted on her behalf that this offence was a gross aberration. That submission is true by definition. 85I have been asked to accept that Ms Evans' familial circumstances and mental state are such that she is likely to find incarceration more difficult than might otherwise be the case and that I should take that into account in sentencing her. I accept immediately that it must be excruciatingly painful for Ms Evans to realise that her actions will deprive her of a close family relationship for many years. However, I am unable to detect any basis for distinguishing her from almost every other person with a family convicted and sentenced to imprisonment for murder in this State. 86I have had particular regard to the evidence from Dr Furst concerning Ms Evans' mental state and psychological and psychiatric health. I accept that she has from time to time required medication and treatment for depression and associated conditions. It appears that she continues to be vulnerable to the reoccurrence of such health problems. However, I am also informed by the ease with which she was able, notwithstanding these conditions, to operate and perform as an active member of society, to all outward appearances unaffected, or at least not disadvantaged, by her afflictions. There does not appear to me to be the slightest indication of mental illness or associated disability evident from the detailed agreed facts in her case. The only medical attention that she appears to have required as the relevant events unfolded was a prescription for antibiotics that she spoke about to Mr Rawlinson. 87For much the same reason, I consider that Ms Evans has particularly good prospects of rehabilitation. I accept that she has acted completely out of character, a fact that is empirically attested to by her uneventful criminal history and subjectively confirmed by testimonials with which I have been provided. I feel unambiguously confident that she is unlikely ever to re-offend. It follows that I do not consider that Ms Evans will constitute any danger to the community upon her release. These conclusions are also reinforced by the fact that Ms Evans will be considerably older when she is released.

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Objective seriousness 89Ms Evans' crime is objectively very serious. I was urged by the Crown to find that it was in the worst category of case. I was taken in detail to s 61 of the Crimes (Sentencing Procedure) Act 1999 and to authorities such as R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 and R v Miles [2002] NSWCCA 276. 90Section 61(1) is in these terms: "(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 91In R v Merritt, Wood CJ at CL said this at [42]: "[42] Several possible interpretations of the section exist (subject to s 61(3)): (a) First, that a life sentence is required, if the culpability is so extreme that the community interest, in any one of the four indicia, is such that it could only be met by such a sentence; (b) Second, that such a sentence is only required if the culpability is so extreme that the community interest, in each of the four indicia, is such that it could only be met by such a sentence; and (c) Third, that such a sentence is required if the culpability is so extreme that the community interest, in the combined effect of such of the four indicia as are applicable, could only be met by such a sentence (a construction which would embrace a circumstance where any one or more of those factors may be of itself insufficient, or inapplicable). (d) Fourth, a variation of the third construction, that such a sentence is only required where the culpability is so extreme that the combined effect of the four indicia, with each contributing to some degree, is such that it could only be met by such a sentence." 92The absence of one or more of the indicia in s 61(1) will make it more difficult for a trial judge to be satisfied beyond reasonable doubt that the level of culpability is so extreme as to require the imposition of a life sentence: R v Merritt at [5]. However, the absence of the need for personal, as distinct from general, deterrence, is unlikely to influence the decision to any significant degree: R v Merritt at [6]. 93A two-step process is involved in determining whether a life sentence is mandated. The Court must first determine whether, on the objective facts, the level of culpability is so extreme that it warrants the maximum penalty. The Court must then determine whether the subjective factors are capable of displacing the prima facie need for the maximum penalty: R v Miles at [204]; R v Merritt at [37]. 94The fact that an offender pleads guilty does not automatically preclude the availability of a life sentence: R v Penisini [2004] NSWCCA 339. Moreover, in some cases the objective circumstances may be so appalling as to overwhelm the offender's subjective circumstances, including prospects of rehabilitation: R v Miles at [203]. 95Ms Evans acknowledged that this is a very serious case of murder, but submitted that it was not a worst case, and not one calling for a life sentence. Prominent among her contentions in that respect is the submission that she was the victim of undue influence and manipulation by Mr Rawlinson. These submissions were made by reference to the objective gravity of the offending conduct, to which they are obviously relevant. That is because they inform conclusions about Ms Evans' moral culpability. Having regard to the evidence from Dr Furst, however, it seems to me that they are also relevant to a consideration of her subjective circumstances. I hasten to observe, however, that Ms Evans is entitled to have any favourable conclusions reached by me in this respect brought to account in the same way in whatever setting her submissions are considered. 96Mr Smith, of counsel for Ms Evans, submitted that Ms Evans was made to believe that the deceased had threatened her and her family. There is evidence, which was led in the Crown case, that she told other people about these alleged threats. It is now accepted that Mr Rawlinson manufactured these threats and that they were never made by the deceased. The threshold issue is whether Ms Evans believed that what Mr Rawlinson said was true. 97There was evidence led by the Crown at the trial, which Ms Evans embraces for present purposes, to suggest that Mr Rawlinson was a manipulative and unscrupulous liar. Perhaps the most dramatic indication of this characteristic is to be seen in the series of text messages passing between Mr Rawlinson and the deceased on 26 October 2011 between approximately 16:07:50 in the afternoon and 23:03:46 the same evening: R to F 16:07:50 I love you. Is work going ok. R to F 18:21:02 How is work going babe. When do you think you'll be finishing F to R 18:39:03 I don't know it doesn't matter to you anyway R to F 18:40:09 Why babe it does matter. I love you. You are everything to me. F to R 18:50:42 Go and talk to mum and dad they're both too gutless to say anything to me. You're all fucked R to F 18:55:12 I don't want to talk to them. I want you and to be with you and talk to you. You are everything. You are the most beautiful woman in the world whom I adore. I'm sorry for saying that to your mum. I wanted you to know because I love you. F to R 19:00:48 Good cause I don't want to talk to them either, or you R to F 19:08:21 Please babe, I love you. F to R 19:50:02 So pathetic the way you all ignore me R to F 19:57:05 Babe I'm not ignoring you, you are everything. F to R 19:58:56 Yes you are. Tell me what's going on I know you would have spoken to one of them today R to F 20:05:12 Babe I'm not ignoring you I swear and I havnt spoken to either of them today. What I said to you last night is what I know. I'm sorry babe but I havnt spoken to them. F to R 20:08:58 Last night you said to me "your dad talked to your mum and has been for a few weeks" and then I ask you when he told her and you say last night. You can't even keep a story straight R to F 20:12:06 No babe you asked me when your dad spoke to your mum and I said yesterday being Monday. He told your mum he has been spitting up blood and yellow stuff for a few weeks. F to R 20:13:05 No that's not what you said when you were waving the knife at me you said he's been talking to her for weeks R to F 20:16:12 No babe, I said that he told your mum that he had been spitting up stuff for a few weeks. He rang her on Monday and told her that. R to F 21:04:53 I love you babe, I'm not ignoring you. You are everything. F to R 21:14:15 If you really didn't hear from her you still don't think she's pissed off with you? R to F 21:17:40 I haven't heard from her babe. No I don't think so babe but you know her better. F to R 21:18:49 Why don't you think so since you did what you agreed you wouldn't? R to F 21:23:34 I don't know babe maybe because she didn't seem angry at me on the phone last night. F to R 21:31:57 That's because she would be worried about what's going to happen now I know but she'll get over that and start thinking about it and then it will start. Don't you think she would have rung you about the pool or something today if she wasn't pissed off? R to F 21:40:22 I just didn't think she rang today babe because I thought it must have been to wet for them to work. F to R 21:47:14 Ok R to F 21:51:51 Babe you know her better, I Hope she's not. I love you, I'm sorry. F to R 21:54:02 The kids are the ones who will miss out R to F 22:05:34 I don't want the kids to miss out and I don't want to miss out on them or you. I love and adore you and I love those kids. R to F 22:05:43 I'm sorry babe. F to R 22:07:13 Oh well I hope you're all happy now R to F 22:22:49 No I'm not babe. I miss you so much and I wish I was there to hold you and talk to you. You are everything to me and I live [sic] those kids. F to R 22:25:08 I don't want you to talk to me there's nothing to talk about. Well don't blame me if she stops you seeing them I warned you F to R 22:34:36 Can you meet me at the servo in the morning because I can't get the petrol cap off R to F 22:40:17 I don't blame you. I wish I could talk to you about everything because I love you. R to F 22:41:05 Yeah babe no worries. What time do you want to meet. F to R 23:01:59 I don't know I'll text you when I'm leaving if that's ok R to F 23:03:46 Yeah ok babe, no worries. I love you.

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98Within three and a half hours of the last message, the deceased had been killed. 99Ms Evans argues that Mr Rawlinson had the power and the ability to manipulate and influence her, as evidenced in part by this very deception of the deceased herself. Ms Evans submitted that Mr Rawlinson manipulated and deceived her in just the same way, and that she was inevitably taken in by promises of a life together with Mr Rawlinson and convinced by him to become involved in whatever he planned should happen to the deceased. She contends that she would never have become involved in the death of the deceased, or indeed in anything like it, if it were not for Mr Rawlinson's cynical conscription of her to his service. The Crown made submissions to such an effect at the trial, to which Ms Evans made favourable reference for present purposes. 100Counsel for Ms Evans conceded that there was no doubt that she was angry at the deceased because of the deceased's relationship with Mr Field. However, it is submitted that there is no evidence that from the time that she became aware of that fact Ms Evans set upon her own plan physically to hurt the deceased. On the contrary, Ms Evans emphasises that it was only after Mr Rawlinson suggested that the deceased had threatened to harm Ms Evans and her children that she became a participant in any plan to injure the deceased. 101Counsel for Ms Evans referred to these matters in the context of Dr Furst's opinion concerning her particular personality traits, her depression and her vulnerability against a background of familial discord, physical and sexual abuse, limited contact with her father and becoming a mother when still a child herself. 102It will be immediately apparent that resolution of this question necessarily confronts the force of submissions made on Mr Rawlinson's behalf at the trial, to which I take him to adhere, that contrary to what Ms Evans says, it was he who was the victim of control and manipulation by her. I will specifically address that proposition later in these remarks. 103An important starting point must be that Ms Evans was not aware of the deceptions that Mr Rawlinson was simultaneously practising upon her and the deceased. Whereas it may now be easy with hindsight and better information to discard what Mr Rawlinson was saying about the deceased as fantastic and obviously unbelievable, as indeed it was, Ms Evans did not have the same frame of reference that is now available to me. Ms Evans was unaware that Mr Rawlinson was professing his love for the deceased in private communications to which Ms Evans had no access. Mr Rawlinson was furnishing Ms Evans with misinformation about the deceased that had the potential to strike a chord with her because of her genuinely unfavourable predisposition to the deceased that arose from her short physical relationship with Mr Field. It seems to me to be highly probable that Ms Evans would not have become involved in any plan to harm the deceased if Mr Rawlinson had not beguiled or encouraged her to do so. 104Verification of that conclusion can in my view be found in an examination of the text messages between Ms Evans and Mr Rawlinson prior to 27 October 2011. As far as the evidence reveals, these commence in July 2011, not long after they spoke to each other at Anne Foreman's birthday party in April that year. On the day after his own memorable birthday party, Mr Rawlinson sent Ms Evans a text message about his relationship with the deceased, saying, "Yeah things have come crashing down for us." He continues with what is now excruciating irony, saying, "but the most important thing is honesty." He goes on to say, "I swear I'm being honest with you." Mr Rawlinson did not, however, adhere to that mantra. 105Significantly as well is the fact that this group of text messages is completely devoid of any corresponding deception of Mr Rawlinson by Ms Evans. Indeed, one very prominent feature of Ms Evans' messages is her expression of support for Mr Rawlinson throughout the time that his relationship with the deceased was unravelling. Mr Rawlinson constantly resorts to her as a sounding board or confidante and she constantly responds with encouragement and assistance. That extended as well to his relationship difficulties with his son. 106The patent normality of Ms Evans' approach to Mr Rawlinson's difficulties in his relationship with the deceased can be seen quite starkly in a series of messages exchanged by them in early September 2011. Ms Evans and Mr Rawlinson were by then in the first days of an intimate relationship. The following exchange demonstrates in my opinion that Ms Evans was clearly attempting to exert a moderating influence upon Mr Rawlinson and advising that he should in effect just move on, as well as the fact that she saw that there was no genuine threat to herself from the deceased: R to E 18:14:49 The significant other has text to say she is ready to be picked up. I'm leaving the office now to go get her. E to R 13:04:30 Wish you could join us. But hopefully one day you will be here with us. I'm missing you so bad today. R to E 13:20:33 Oh, ok, thanks. I was worried you had had enough. R to E 13:21:06 One day hopefully I will be able to join you. I miss you. E to R 13:40:25 That would be nice. I'm attracted to your personality and how you make me feel. Now as for looks, you do it for me. How do you think I feel here I am a single mother with 4 adult children a handful of foster children and grand children and I'm on the cubby side where you had everything with Katie. So don't you think that I'm the lucky one here. E to R 13:40:42 Sorry chubby side. R to E 13:53:48 Sorry Wendy, nothing compares to you. I'm the lucky one. E to R 13:53:48 Then I guess we are both lucky that we have found each other after all the stuff we have been through with our significant others. I miss you more everyday. stop stressing sweetness I'm not going anywhere without you. R to E 15:00:07 I cant wait to kiss you tonight. E to R 18:12:26 You and me both I'm completely buggered and cant wait for you to get here so I can get a cuddle and kiss and fall to sleep in your arms. I miss you sweetness. R to E 18:54:19 Just had a massive argument with her over the car. She has walked down to the post box. I'm going fucking crazy. E to R 18:55:33 Just walk out. It's not worth it. R to E 18:57:07 She will get my kid if I do and I don't know what else she will do to you E to R 19:01:06 Don't worry about what she will do me. But yeah I forgot about Angus. R to E 19:03:00 I worry about what she will do to you. She's a pycho [sic] E to R 19:17:44 Don't she cant hurt me anymore. R to E 22:48:43 On my way beautiful. I'll be there in ten min. E to R 08:02:17 Good morning sweetness. Try and have a good day. Don't stress to much her day is coming. Miss you always. xxxxxx R to E 11:26:49 My head is a mess because I've got so much work on then there's all the shit with Katie. I miss you too. R to E 13:50:51 Yeah I'm dying for this day to end. Need to be with you, bad. R to E 14:13:18 Are they ok, did they give you any news. Yeah I'm going mental without you. E to R 14:36:57 Well you can be a solicitor and fuck what ever who ever when ever and its allowed as its not ethically wrong. So once again she wins I'm getting drunk tonight. R to E 14:50:12 Yeah, that would be right. They can get away with fucking anything. Pisses me off. They are a law unto themselves. Why are we getting drunk tonight beautiful. R to E 14:59:35 What are we drink tonight then beautiful. Yeap I'm fuming, I want to knock her head off. E to R 16:34:05 What premix with coke or something else... Lucky your not here now or I would just ram your head between my legs. R to E 17:11:53 Yeah premixed is fine thankyou. Mmmmmmmm I would love to ram my head between your legs E to R 17:21:20 I'm holding u to that. Cant wait to c u and get hugs and kisses I really need them from u. So ur going have ur head in between my legs mmmmmmm can't wait mmmmmm Xxx E to R 17:33:04 Sorry need more than a few seconds. Just think It's worth it as you will be spending quality time with Angus. As much as we are going to miss each other you only get 2 days and nights with Angus and we spend the rest of the time together. E to R 21:07:49 I take it your still with her. R to E 21:41:34 I miss you so bad, it's killing me. It feels like years already. E to R 21:44:05 We will survive it. Have fun being with Angus, play music enjoy yourself. I am missing you too.

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107On 12 September 2011, Ms Evans sent a message to Mr Rawlinson telling him that she missed not having him there with her but said, "Angus should be the priority in your life over anything else." 108Shortly after midnight on 18 September 2011, Mr Rawlinson sent a text message to the deceased that concluded with the words, "Goodnight beautiful, I love you." Just after lunch on the following day he sent a message to Ms Evans saying, in part, "I miss you" and "I want her gone beautiful because I want to spend my life with you." 109On 2 October 2011, Mr Rawlinson sent a message to Ms Evans saying, "I know your [sic] angry and pissed off at me. I'm sorry. I love you." Ms Evans replied saying, "Don't worry about it. Hope your [sic] having an enjoyable day. Next week isn't coming fast enough. I love you too. I miss you." Just before midnight on the same day, Mr Rawlinson sent a message to Ms Evans' phone that was apparently directed to Ms De Souza, in which among other things he said to her, "She [referring to Ms Evans] said to me earlier today that next week couldn't come soon enough and I agree totally." 110It is clear that whatever might have been intended by the references to "next week", they are not matched by anything that is known to have happened within that time frame. It also seems unlikely that they were sinister, because Mr Rawlinson openly mentions "next week" in his message to Ms De Souza. 111It is difficult to pinpoint the moment when Ms Evans changes from a patient and interested listener into an active participant in plans to murder the deceased. Certainly by 9 October 2011, when Ms Evans, in an obvious reference to the deceased, tells Mr Rawlinson that, "she is not destroying your chance with me" and says that, "I know she is your devil" but that, "she will be out of our lives soon", Ms Evans is demonstrating a different approach. That appears to be confirmed in the following exchange of messages on 14 October 2011: "R to E: Please tell me it's sorted for tomorrow night. I can't handle more than one more night. E to R: It is sorted so please stop stressing. No more nights to put up with after tomorrow night sweetness. Please stay safe. Remember that I love you." 112Once again, nothing appears to have happened the following night. However, within a short time Ms Evans made contact with Ms Proud and Mr Spicer with a view to acquiring their assistance. By 26 October 2011, Ms Evans is actively driving between Whalan and Wollongong with "the main person", in anticipation of buying the petrol and other equipment with which to attack the deceased in her home the following morning. 113It is trite to observe that Ms Evans was fundamentally involved in the events leading up to and resulting in the death of the deceased. I am however satisfied on the balance of probabilities that her participation came about to a not inconsiderable degree as the result of the significant influences exerted upon her by Mr Rawlinson and a web of lies and deceit that he spun. I am satisfied that Mr Rawlinson manipulated Ms Evans emotionally and psychologically by creating the totally false impression that for as long as the deceased was alive she would remain an immovable obstacle to Ms Evans and Mr Rawlinson "growing old together." That conclusion reduces in a small way her moral culpability. 114Accordingly, while I accept that there is much force in the Crown's submissions, I am unable to accept that Ms Evans' crime is one that attracts a sentence of life imprisonment. It is not in the worst category of case. However, because I consider her crime to be objectively very serious, it is important that I set out the reasons for coming to that conclusion. 115First, the circumstances of the deceased's death and the manner in which she died. The Crown referred to the fact that the deceased was incinerated. Such a description is on one view very emotionally loaded. Unfortunately, it is completely accurate. The deceased was confronted with what was an inferno that exploded in the quiet of the night in the home where she lived. It was unexpected and inescapable. The fact that the deceased was found such a short distance from her bed suggests quite strongly that she was quickly overcome by heat and smoke. She died alone, with no possible chance of escape from the blaze and no apparent prospect of survival even if she had. In the scheme of human understanding, it is difficult to contemplate a more frightening and excruciating way to die. 116Secondly, the fire that led to her death was carefully planned. Counsel for Ms Evans urged upon me that the level of planning was not greatly sophisticated. To the extent that what happened to the deceased was brutal and barbaric, that submission may have some semantic force. What occurred in fact was a carefully planned and executed scheme to ensure that the deceased was killed. This murder involved the premeditated purchase, from more than one location, of items guaranteed to start a fire that could not easily be avoided and that was highly likely to be fatal. This was not a case of a fire started in the downstairs laundry or even in the upstairs sitting room that might, in either instance, conceivably have offered the deceased a chance to escape. Whatever dispute there may be about whether petrol was poured on the floor around the deceased's bed or thrown into the bedroom from the doorway, the unavoidable fact is that it was done deliberately. The deceased's night clothing retained traces of petrol. Ms Evans and Mr Spicer were provided with keys to the house so that they could enter it with ease. Moreover, the text messages to which Ms Evans was a party suggest that the deceased's death had for some time been contemplated as an approaching prospect. It did not occur spontaneously or reactively or to the surprise of anyone other than the deceased. 117Thirdly, it was necessary to solicit the services of Mr Spicer and Ms Proud and to pay them money for their assistance. That was itself indicative of a plan. It is both unnecessary and improper to speculate about whether or not that was also an attempt to avoid detection. 118Fourthly, Ms Proud and Mr Spicer were all ultimately conveyed to and accommodated in a motel a short drive from where the deceased lived. That was in accordance with arrangements made deliberately and in advance. The fact that the plan would not appear to have extended to ensuring that they were returned to Whalan with similar ease is not to the point.

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Intention 119The Crown contended that I would be satisfied that Ms Evans committed the offence with an intention to kill the deceased. That submission was supported by the (not altogether settled) proposition that an offence involving an intention to kill is generally more serious than one involving only an intention to inflict grievous bodily harm. I briefly examined the different possible views about this issue in R v Kristi Anne Abrahams [2013] NSWSC 952 at [25] - [27]. Counsel for Ms Evans in fact submitted that this might very well be a case where there is little difference objectively between an intention to kill and an alternative liability for murder. 120Accepting for present purposes that there may be little difference, either in this case or more generally, between the two possibilities, I am satisfied beyond reasonable doubt that Ms Evans intended to kill the deceased. Much of what I have already referred to supports that conclusion. For example, the location and intensity of the fire is overwhelmingly supportive of the proposition that the fire was set with a view to killing the deceased. If the intention had been merely to cause serious bodily injury to the deceased, one might have expected either some other method of causing injury to have been used, such as direct physical assaults upon her as she lay in bed, or the setting of a fire in some location that may have caused injury to the deceased but permitted her to escape. The setting of a fire that must inevitably have led to an immediate conflagration within a small room with only one means of ingress or egress, is highly inconsistent with any other conclusion. That satisfies me beyond reasonable doubt that Ms Evans intended to kill the deceased. 121It is an agreed fact that Ms Evans threw a firelighter into the bathroom rather than the bedroom. It is submitted for her that that is consistent with an intention to do grievous bodily harm to the deceased but not to kill her. That has to be contrasted with the fact that Mr Spicer retrieved the item from the bathroom and threw it into the bedroom while Ms Evans passively stood by. Her failure to intervene to prevent Mr Spicer doing that is inconsistent with the lesser intention and is consistent with an intention to kill. 122Quite apart from that, the content and timing of the text messages between Mr Rawlinson and Ms Evans satisfy me that Ms Evans intended to kill the deceased. I am not satisfied that there is any alternative readily available and credible explanation for words such as, "God I want her gone" or, "then she is gone and we are away from her." I accept that Ms Evans did not write those words. However, they were written to her and she offered no response to indicate either that she did not understand them or understood them to mean something else. The results of a pending Police Integrity Commission investigation would not have seen the deceased "gone" and the surrounding context within which the words appear is telling. 123Even more significantly, however, would appear to be the total lack of any reference by Ms Evans, or Mr Rawlinson when communicating with her, after the death of the deceased, to any surprise or dismay at the fact that what happened on 27 October 2011 actually caused the death of the deceased, as opposed to something less. If the intention were not to kill the deceased, one would have expected that issue to figure prominently and extravagantly in what they said to each other before they were arrested or realised that their conversations were being intercepted. Quite to the contrary, the conversations between Ms Evans and Mr Rawlinson are chillingly sanguine and casual. For example, Ms Evans and Mr Rawlinson speak by telephone on 27 November 2011 and discuss "nice clean fresh crisp...blue and white...sheets" and whether Mr Rawlinson should join her at Amanda De Souza's house for "spag bol". 124I accept for present purposes that Mr Smith's submission, that the difference between the two types of intention may in effect be academic, has some force. The circumstances of the killing, even accepting the formation by Ms Evans of no more than an intention to cause serious bodily injury, are so dangerous and extreme, that there is arguably little scope for the imposition of a discernibly different sentence. Indeed, although proffered in the context of his opposition to the imposition of a life sentence, counsel for Ms Evans contended that the relevant sentencing objectives could be satisfied in this case by a lengthy determinate sentence.

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Factual findings 128I acknowledge that my fact-finding role is that described in Isaacs v R (1997) 41 NSWLR 374; (1997) 90 A Crim R 587. I am required to find the facts material to the sentence. To the extent that my findings are based on facts led at the trial, they must be consistent with the verdict of the jury. Any findings of fact that are adverse to the offender must be found beyond reasonable doubt. Matters in mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202. A judge's finding of facts upon which the sentence is based is, "both on what was necessarily implicit in the jury verdict and on his/her own impressions": R v Spathis; R v Patsalis [2001] NSWCCA 476 at [196]. 129At the sentencing proceedings before me, Mr Rawlinson, through his counsel, maintained his innocence. Having regard to the plea of not guilty of murder but guilty of manslaughter that he offered at the trial, I take that stance to be a maintenance of his admission of guilt to the lesser charge notwithstanding the verdict of the jury that he is guilty of murder. Because Mr Rawlinson has adopted that position, I consider that I should make some specific remarks about the jury verdict, and the extent to which the facts that I am prepared to find are consistent with it. 130Mr Rawlinson did not give evidence at the trial. He was not then, and cannot now, be criticised for that decision. The jury were not, however, confronted with a version of the facts that contradicted the Crown case, but only the detailed and skilful address of his counsel. That jury's verdict carries with it at least one of the following conclusions. Either that the jury must have been satisfied beyond reasonable doubt that the deceased died as a result of an act of one or more of the participants in a joint criminal enterprise, when the offenders had an intention to kill or inflict really serious injury upon her and that Mr Rawlinson was a participant in the commission of this crime. Alternatively, that the deceased died as a result of an act or acts of one or more of the participants in a joint criminal enterprise, when those participants had an intention to kill or inflict really serious bodily injury upon her, and where Mr Rawlinson was part of a joint criminal enterprise to cause physical harm to the deceased where he contemplated the possibility that in its execution she would be killed or at least have inflicted upon her really serious bodily injury. The case marshalled against Mr Rawlinson was in my view an overwhelming circumstantial case capable of supporting the jury's verdict on either of these bases. 131The evidence at the trial included Mr Rawlinson's electronically recorded interview with the police. Mr Rawlinson told the police that the deceased threatened to kill his son as many as 50 times over the course of their relationship, a suggestion that is so improbable that it borders upon the bizarre. Be that as it may, the police asked Mr Rawlinson what he did about that threat. He replied, "I organised through Wendy for people to come down but they weren't meant to kill her." The effect of Mr Rawlinson's present stance, and his anterior plea of guilty to manslaughter, must therefore be that he was part of a joint criminal enterprise seriously to injure the deceased but that he did not contemplate even the possibility that she may have been killed in the process. 132The jury clearly rejected that analysis. In doing so they had available to them the following facts, consistent with their verdict, concerning Mr Rawlinson's involvement in the murder of the deceased that for sentencing purposes I find beyond reasonable doubt. 133Mr Rawlinson felt a very substantial enmity towards the deceased for at least some months prior to her death. His motive for killing her was to make her pay for what he perceived she had done to him. He had attempted to have grievous bodily harm inflicted upon her in July 2011. 134Mr Rawlinson was part of a joint criminal enterprise to kill the deceased. He planned with Ms Evans to kill her by setting fire to her bedroom in the early hours of the morning while she lay asleep in her bed. Mr Rawlinson deployed the ill will that Ms Evans already had for the deceased and systematically provided her with false information concerning the deceased in order to increase it. That included the lie that the deceased had threatened to kill Ms Evans' children. It also included false information that Mr Rawlinson could not commit himself to a relationship with Ms Evans until the deceased was out of his life. 135At all times before and after the murder Mr Rawlinson sought to distance himself from the killing. However, he paid for the killing to be carried out. Notwithstanding that, he falsely portrayed himself as the deceased's grief-stricken partner and actively sought to suggest false possibilities about how and why she may have been killed. 136I am satisfied of these facts beyond reasonable doubt. I am also satisfied beyond reasonable doubt, for the purposes of sentencing Mr Rawlinson, of the same facts of which I was satisfied in the sentencing proceedings involving Ms Evans.

[15]

Subjective circumstances 137Mr Rawlinson is 42 years of age. He was divorced from the mother of his only child in about 2008. His son, who is 13 years of age, continues to live with her. Mr Rawlinson learned at the age of 14 that he was adopted shortly after his birth. He told Dr Jonathon Adams, a psychiatrist who examined him for the purposes of these proceedings, that he always felt unwanted. Dr Adams' report dated 22 June 2014 was tendered as an exhibit. 138Because Mr Rawlinson did not give evidence at the sentencing proceedings, the only significant material containing details of his subjective circumstances is what appears in the careful history taken by Dr Adams. Unfortunately, I consider that Mr Rawlinson has failed conspicuously to be truthful with Dr Adams and has instead provided him with a series of self-serving lies and half-truths in order to present himself in a good light. Some examples of this are as follows. 139Mr Rawlinson told Dr Adams that on two or three occasions he engaged in sexual intercourse with Ms Evans during the months leading up to the offence. That is patently untrue, as any reasonable reading of the text message summary conspicuously and graphically reveals. Mr Rawlinson told Dr Adams that he did not consider Ms Evans to be his partner during that time, believing that he remained in a relationship with the deceased. The tone and content of the same text message summary makes at least the second of those assertions completely incredible. 140Dr Adams asked Mr Rawlinson about Ms Thompson, referred to as the "female escort" in the Crown case statement. Mr Rawlinson told the doctor that, "he saw this 'escort' on only one occasion, and that he had ongoing text messages with her about employment opportunities, driving jobs." Those suggestions are totally at odds with the evidence at the trial, given by Ms Thompson, which I have no difficulty accepting as truthful. Mr Rawlinson never challenged Ms Thompson's evidence to suggest that he saw her more than once. One of Mr Rawlinson's text messages to Ms Thompson said, "Babe, I do trust you, and it is my problem because I like you and care about you." 141Dr Adams also asked Mr Rawlinson about paragraph 14 on page three of the Crown Case Statement. Although it involves some repetition of material to which I have already referred, it is necessary to set out in full what that paragraph contains, as follows: "Between 1 October 2011 and 22 October 2011, RAWLINSON sent numerous texts messages to EVANS. On 1 October 2011, RAWLINSON sent EVANS a text message stating 'Yeah so do I but I just keep thinking one more week. Then she is gone and we are away from her'. On 3 October 2011, RAWLINSON sent EVANS a text message stating 'I can't wait to see you tonight. This is hell. She is a cow. She's carrying on like an idiot. God I want her gone'. On 13 October 2011 RAWLINSON sent EVANS a text message stating, 'I want to be with you 'til I die and I hope you understand the various reasons why it needs to happen to her now. I love you.'" 142Dr Adams reports that Mr Rawlinson told him this about that paragraph: "He said that these messages were written by both Ms Foreman and himself, and were always written in her presence. He said that they were written in an effort to get Ms Evans to 'open up' about the potentially incriminating information." 143I accept that Mr Rawlinson said that to Dr Adams. However, I totally reject it if it is proffered now on behalf of Mr Rawlinson as a true statement. 144Dr Adams also asked Mr Rawlinson about the sum of money placed into what was Ms Case's TAB account. Dr Adams recorded the following as the answer he was given: "He told me that prior to this he had had a discussion with Ms Foreman and her parents about how to resolve the issue, and that they decided to give Ms Evans a sum of money. Mr Rawlinson told me that he had believed this account to belong to Ms Evans' father." 145It is a little difficult to know just where to start in order to demonstrate the falsity of this statement. It is perhaps sufficient to note that it is generally at odds with his plea of guilty to manslaughter, but particularly contrary to the evidence of him personally attending the TAB where Ms Case was present and also what he said in his ERISP about it. 146Dr Adams also said that Mr Rawlinson, "denied any involvement in Ms Foreman's murder". Dr Adams reported as follows: "With regards the murder of Ms Foreman, Mr Rawlinson commented, 'never in my wildest dreams did I think what was going to happen would happen, I can't believe it'. He reiterated that he had no knowledge of the plan to murder Ms Foreman. He stated, 'I hate violence, absolutely and completely...I want to help people, I don't like to see people get hurt'." 147As earlier noted, Mr Rawlinson told the police that he had organised for people to come down but they were not meant to kill the deceased. It leaves a reasonable observer wondering what they were supposed to do if not commit an act of violence of some sort. 148To my observation from the evidence tendered at the trial, Mr Rawlinson was in the constant habit of lying. I have difficulty accepting anything that he told Dr Adams that is not otherwise confirmed. It is not without a tragic irony that the deceased sent a text message to Mr Rawlinson on the evening of 9 October 2011 in these terms: "You are obviously never going to stop lying so I really think you need some professional help for it. I told you that a long time ago and it's only getting worse." 149Evidence that I am able to accept can be found in what Mr Rawlinson's parents reported to Dr Adams. It was as follows: "Mr Rawlinson's adoptive parents corroborated the account that he provided during my assessment. They confirmed that they adopted Mr Rawlinson when he was 3 weeks old, via their involvement with the Salvation Army. They confirmed that he learned of his adoption at the age of 14 years, and discussed it more recently in the context of his worsening mood. Mrs Rawlinson confirmed that Mr Rawlinson had a very close relationship with his maternal grandfather, and was distressed following his death. Mr and Mrs Rawlinson described their adopted son as generally a 'quiet, well-natured person'. They described his caring manner, and referred to several 'great friends'. They said he had never been aggressive or irritable towards others, and they did not refer to any underlying antisocial tendencies. They described how he had a stable and supportive relationship with his wife and son prior to their relationship difficulties. Mr and Mrs Rawlinson did not provide any history consistent with any symptoms of mental illness prior to 2006. Mr Rawlinson's adoptive parents confirmed that his emotional state deteriorated significantly in 2006, in the context of working long hours. They described his depressed mood. They said he became 'more quiet' and less sociable. They said that when he resided with them he tended not to sleep, would spend more time in his room, and declined the food that was prepared for him. Mrs Rawlinson recalled Mr Rawlinson's negative thought processes, providing one example of Mr Rawlinson commenting, 'if I die will you bury me next to grandfather'. Mrs Rawlinson reported that Mr Rawlinson's wife escorted him to the general practitioner in approximately 2008, and confirmed that he saw a few counsellors thereafter. Mrs Rawlinson referred to the relationship problems between Mr Rawlinson and Ms Foreman. She commented, 'He would often neglect his son to please her'. Mrs Rawlinson raised her concerns about the impact of the correctional setting upon Mr Rawlinson's mood."

[16]

Mitigating factors 150Mr Terracini SC made very limited submissions on behalf of Mr Rawlinson at the sentencing hearing. Mr Terracini would appear to have been constrained by limited instructions having regard to Mr Rawlinson's expressly confirmed belief in his innocence. I was not specifically referred to the presence of any mitigating factors that I could take into account in Mr Rawlinson's favour. 151Doing the best I can, I consider that the following factors may potentially be available to Mr Rawlinson: (1)he does not have any record of previous convictions, (2)he was a person of good character, (3)he is unlikely to re-offend, (4)he has good prospects of rehabilitation, whether by reason of his age or otherwise. 152I have no difficulty accepting the first two of these factors. I have no information capable of reliably informing me about the last two factors. Dr Adams certainly does not deal with them. He did say that he "did not elicit any evidence of pervasive or persistent maladaptive personality traits or behaviours." Dr Adams noted that, "Mr Rawlinson's depressive symptomatology was not severe enough to render him incapable of engaging in interpersonal contact or working, but his symptoms might have had a deleterious impact upon his rational thought processes and decision making capacity." 153In my estimation Mr Rawlinson neither has, nor has he exhibited, any insight into or understanding of the level of his offending. His continued protestation of innocence suggests, if it does not prove, that he is in a complete state of denial. That state would appear from my lay perspective to be wholly irrational. It leaves me with no basis upon which to express a meaningful or worthwhile view about the likelihood that he will re-offend or what his prospects of rehabilitation really are. 154I consider that I am unable to say more than that, on the balance of probabilities, particularly having regard to his lack or previous criminal history and his likely age upon release, that his prospects of re-offending are low. Any attempt by me to quantify his prospects of rehabilitation would amount to speculation. That is because he denies "any involvement in [the deceased's] murder" in the face of a most persuasive and powerful case to the contrary. Such a circumstance cannot be the foundation for any optimism at all. 155Mr Rawlinson has also shown no remorse. Even in the beneficial environment of Dr Adams' careful interrogations, Mr Rawlinson appears never to have expressed the slightest breath of regret for what has occurred or the tiniest hint of sympathy or concern for the parents or relatives of the deceased. He did not do so at the sentencing hearing and continues in the face of the facts to reprobate any involvement in the murder. I hasten to add that the lack of remorse is not an aggravating factor, but this is a case where I am not even troubled by a decision about whether or not Mr Rawlinson's expressions of remorse are genuine. There was none and Mr Rawlinson is not entitled to any mitigation of his sentence on this account. 156There is no evidence to support the proposition that Mr Rawlinson was acting under duress in the sense contemplated by s 21A(3)(d) of the Act. The issue of whether or not Mr Rawlinson was manipulated by Ms Evans is best considered in the context of objective seriousness.

[18]

Objective seriousness 158Mr Rawlinson's crime is a very serious case of murder. It lies well above the mid-range of seriousness for cases of its type. It is not in the worst category, and does not warrant the imposition of a life sentence. It is however a crime of terrible and extreme violence, perpetrated in the detailed circumstances to which I have already referred. It was described during final addresses to the jury by Mr Rawlinson's counsel as a "cowardly, cruel, horrible murder, about which there could be no question." I adopt that description. 159The calculating and calculated nature of this murder marks it out as one of particular callousness and brutality. On no account was there any comprehensible explanation for it and, as I have said, I personally remain at a complete loss to understand why it ever occurred. Whatever so-called issues Mr Rawlinson had, or thought that he had, with the deceased, they were insignificant in the scheme of the ordinary understanding of rational human affairs. These issues were hardly the stuff of revenge or retribution or unexpected impulse or miscalculation as so often comes to light in this Court. The murder of the deceased was on the contrary inspired by a cold indifference to the deceased's right to live her life in her own way and on her own terms. I am entirely unable to understand what twisted perceptions motivated Mr Rawlinson to assemble a group of immoral assistants to carry out his awful plan, or under what standard of acceptable human behaviour he thought it was acceptable. 160I am led to understand that Mr Rawlinson continues to maintain that he finds himself where he is today as the result of the malevolent influence over him exerted by Ms Evans and her manipulation of his will to resist. He contends, in effect, that she threatened him and that any involvement on his part was a direct function of her threats and manipulation. Such a submission requires a very selective dissection of the facts, not to say a complete suspension of belief, if it is to be even remotely plausible. Support for that proposition is everywhere. Some examples will suffice. 161Mr Rawlinson originally told the police in his ERISP that he did not want anything to happen to the deceased. That exculpatory position later erodes to a concession that he just wanted her to be scared. He agreed with the police that he knew, "something was going to happen that night". He maintained that the fire was Ms Evans' idea, because of "grievances" that she had with the deceased. There is therefore at the most fundamental level a concession by Mr Rawlinson, quite apart from Ms Evans' views on the matter, that he wanted something to happen to the deceased that would scare her. There is no suggestion that his instruction in that regard was the result of pressure from Ms Evans. 162Mr Rawlinson also told the police that the death of the deceased was connected to Ms Evans' threats to him. Indeed, he was given an open opportunity to explain his position, when asked by the police whether the threats from Ms Evans to him had anything to do with the death of the deceased. His answer was as follows: "Well, only from the viewpoint that she was using me to give her money and that she said that if I went back to Katie and told her what had happened and, you know, that there was nothing in it any more and all back to, that, yeah. She was going to do something." 163Even making allowances for the situation in which Mr Rawlinson found himself at the time, that explanation does not support a contention that Ms Evans was manipulating him. 164The text message schedule is one of two overwhelming collections of evidence disproving the submission that Ms Evans was the dominant party. Mr Rawlinson's texts are full of lies and fantasy. They are the exclusive source of references to the deceased being "gone". They are the predominant source of scurrilous and disparaging references to the deceased. They are the only texts that contain any suggestion of threats to children or family from the deceased. They are most tellingly entirely free of anything remotely approaching a threat from Ms Evans to Mr Rawlinson. Ms Evans' texts are, as I have already indicated, very often conciliatory and cautious. There is an enigmatic tone of concern and decency in much of what she writes. Mr Rawlinson's texts are also crammed with protestations of love and adoration for Ms Evans, hardly suggestive of a man being manipulated by the object of his praise: "I am in love with you"; "I do really want to spend my life with you, which is why she must go. To grow old with you always". These are not things that upon any view of reality one would expect Mr Rawlinson to say to Ms Evans if she had recently threatened to kill him and his family. Ms Evans' responses are correspondingly coy and flattering. The texts paint a superficial picture of reciprocated affection, but for the fact, unknown to Ms Evans, that Mr Rawlinson was deceptively attempting simultaneously to maintain his relationship with the deceased. 165The second body of evidence that puts the lie to Mr Rawlinson's submission is their post mortem conduct. There are several intercepted phone conversations between them after the death of the deceased. They plan to go away together. They appear to go shopping. They jointly plan their responses to the police investigation. 166Mr Rawlinson's moral culpability is not in any way diminished or reduced as the result of any undue, improper, overpowering or burdensome influence being exerted over him by Ms Evans. She was enthusiastic in her support for him, but that enthusiasm was the result of his encouragement of her and not the reverse. Ms Evans did not have the upper hand. She did not manipulate him.

[19]

Intention 167Mr Rawlinson was not present at the fire. He left or delegated the commission of the physical acts that caused the death of the deceased to others. There is no evidence to support a finding that he knew the precise details of what Ms Evans and Mr Spicer were proposing to do when they entered the deceased's house. Those circumstances cannot therefore inform a conclusion about Mr Rawlinson's intention. However, other material can. 168I have already referred to some of the text messages sent by him to Ms Evans. I am satisfied beyond reasonable doubt that expressions or phrases such as, "just keep thinking one more week [t]hen she is gone and we are away from her", "God I want her gone", "I want her gone so I'm not having to be away from you", and, "I want her gone beautiful because I want to spend my life with you" are all references by Mr Rawlinson to his desire for the deceased to be killed. They are to be contrasted with Ms Evans' advice to Mr Rawlinson on 7 September 2011, in the early days of their intimate relationship but before he had pummelled her with inflammatory lies about the deceased, that he should "just walk out" and that "it's not worth it." I am satisfied beyond reasonable doubt that the content and timing of these words, written by Mr Rawlinson, prove that he formed an intention to kill the deceased, which was effected by his recruitment of Ms Evans and Mr Spicer, to whom he paid $3,000, to enter the house of the deceased while she slept and set it on fire. They are unambiguous in the context and particular circumstances surrounding the death of the deceased. 169Once again, as in the case against Ms Evans, I am also satisfied beyond reasonable doubt that Mr Rawlinson formed that intention by his total failure, when speaking to Ms Evans or communicating with her after the death of the deceased, to speak of his surprise or dismay or revulsion or shock at the fact that what happened on 27 October 2011 actually caused the death of the deceased, as opposed to something less. If the intention were not to kill the deceased, but only to scare her, I am satisfied that fact would have figured prominently and emphatically in what Mr Rawlinson and Ms Evans said to each other even before they were arrested or realised that their conversations were being intercepted. Quite to the contrary, the conversations between Mr Rawlinson and Ms Evans give not the slightest hint that Ms Foreman's death was anything other than entirely expected. Their lives proceeded together as normal. Mr Rawlinson's later protestations to the police, that the plan was only to harm the deceased, but not to kill her, were patently self-serving, disingenuous and totally unbelievable.

[23]

Subjective circumstances 176Ms Proud was seen by Dr Olav Nielssen, whose report dated 17 June 2014 was tendered in evidence at the sentencing hearing. She gave a history to him, to which some reference is made in what follows. 177Ms Proud is 29 years of age. At the time when the offence was committed she had been in a relationship with Mr Spicer for a number of years. They have three children together, who are now aged eight, seven and nearly four years of age respectively. Mr Spicer's daughter from a previous relationship also lived with them. Those children have since been taken into the care of the Minister for Family and Community Services. Direct contact with her children is limited to four times a year, although contact through correspondence may also occur. 178Ms Proud's relationship with Mr Spicer was troubled and fraught with domestic violence. She gave evidence of this during the trial. She confirmed it in consultation with Dr Nielssen. Ms Proud said that Mr Spicer was abusive towards the children and her, and that they lived in fear of him. Ms Proud met Mr Spicer in 2005 when she was recovering from the death of her mother. Ms Proud had attempted suicide and was feeling alone. Ms Proud took out an apprehended violence order against Mr Spicer at one time when he threatened to take the children and have her hurt. They reconciled before the birth of their third child. 179Ms Proud met Ms Evans in 2008 while visiting Mr Spicer in prison, when Mr Field was also incarcerated. They became occasional friends. Some time before the death of the deceased, Ms Evans rang Ms Proud and told her that she wanted someone "hurt and scared". Ms Proud said that she did not want to be involved. She could not remember if she passed on the message to Mr Spicer or if Ms Evans contacted him separately. 180Ms Proud confirmed to Dr Nielssen that she had contacted Ms Evans after the offence to ask for the money that Ms Evans had promised to pay Mr Spicer. She was then in straitened circumstances, Mr Spicer was addicted to drugs and alcohol, and he took money from her to support his habits. 181At the time of the offence, Ms Proud was taking antidepressants and seeing a counsellor because of the violence in her relationship. Ms Proud had an unhappy childhood and had been subjected to familial sexual interference. She had performed acts of self-harm as a teenager. She attempted suicide in 2000 while still at school. She was admitted to St John of God Hospital in 2004 following another attempt on her own life. She was admitted to Blacktown Hospital following yet another attempt after an episode of physical abuse by Mr Spicer. 182Ms Proud currently has difficulty sleeping and cries frequently. She reported constant worry and ruminations about her situation and the welfare of her children. She told Dr Nielssen that she found it very hard to live with what she and Mr Spicer had done. 183Ms Proud never smoked and rarely drank, and never used illicit drugs. She finished Year 12 at High School but had generally struggled as a student. She was bullied and picked on but never repeated a year. She was literate. 184Medical records to which Dr Nielssen was given access suggested that Ms Proud had a borderline personality disorder. A Uniting Care case summary noted 31 visits because of domestic violence and mental illness. Dr Nielssen diagnosed Ms Proud with a major depressive illness and dysthymic disorder. He opined that these conditions and her low self esteem probably contributed to her entering and remaining in an abusive relationship. 185Dr Nielssen helpfully indicated that Ms Proud had reasonably good prospects of eventual rehabilitation: she has no substance abuse problem or any pattern of criminal conduct, and could be expected to return to paid employment. She expressed remorse for her role in the offence and the consequences of her behaviour in a way that Dr Nielssen considered was independent of the pathological guilt associated with severe depression.

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Mitigating factors 186Ms Proud does not have any significant record of previous convictions. She is, apart from the current offence, a person of good character. She is unlikely to re-offend and has good prospects of rehabilitation. 187Ms Proud has also shown remorse. She was alone among her co-accused in either giving evidence at the trial or at the sentencing proceedings. In the latter case, Ms Proud expressed regret at what had happened. 188The Crown contended that the listening device material and intercepted phone calls demonstrated that Ms Proud was not truly remorseful at all. There is considerable support for the making of such a submission. Ms Proud refers to the deceased in particularly pejorative terms, ascribing to her all manner of negative characteristics, including the commission of violent acts and threats to do so. 189The most significant example of this is to be found in the transcript of a secretly recorded conversation between Ms Proud and her friend Danielle Gallagher on 15 December 2011. Some of what was said is as follows: "PROUD: 'Cause she's a very nasty girl and she used to bash, the bloke Wendy is with now was her ex-husband. GALLAGHER: Mmm. PROUD: And 'cause she was fucking every copper, she knew every copper and that and she was fucking them, she was getting away sending people. She put her ex-husband in hospital with concussion by hitting him with pots across the head and that, and they had enough and she got people out on Wendy and her kids. ... PROUD: And Katie was doing all this shit. Katie was a nasty woman when I met her too. The stuff with Wendy's ex Scott who is in gaol now, what she was planning on doing to Scott, for what Scott did to Wendy, she was going to have fuckin' Scott done in gaol. GALLAGHER: Oh. PROUD: She was going to have Scott killed in gaol, this Katie girl. But no one believed Wendy's story, because Katie was well in with the judges and she was fucking every copper in Wollongong and all this and that so Wendy went and asked if we knew anyone that could do the job and like she'd pay them." 190None of the things asserted by Ms Proud about the deceased was true. More importantly, none of those things was the product of Ms Proud's own observation or experience concerning the deceased, who she hardly knew, but were manifestly things that she had been told. They are matters that she repeated in my opinion as some kind of justification for what occurred. To that extent they are literally inconsistent with remorse. However, she was not likely at that time to express remorse for at least two obvious reasons. The first is that she had not been charged with any crime or implicated in what happened to the deceased. The entire conversation with Ms Gallagher proceeds upon the basis that Mr Spicer was involved but that she had nothing to do with it. That is plain from the concern she expresses about the prospect that Mr Spicer may be in trouble, whereas there is no such concern expressed about her personal position. It is easy to understand, even if morally difficult to accept, that Ms Proud would not express remorse for the death of the deceased when her death had, as far as Ms Proud was concerned, nothing to do with her. The fact that she did not express remorse, or even the fact that she spoke ill of her, which in the circumstances may appear to be the same thing, is explicable when she clearly held no fears for her own position and patently did not appreciate that she was in any way potentially implicated in the death of the deceased. 191The second reason is that Ms Proud appears genuinely to hold the view that the deceased was only supposed to be scared but not killed. The conversation with Ms Gallagher refers to this as follows: "PROUD: Well, the night we went down there they went and got the fuel and they weren't supposed to kill her, but they ended up killing her when they lit the house on fire. GALLAGHER: Who lit the house on fire? PROUD: BJ and Wendy, it was only supposed to be a warning thing for her to back off. GALLAGHER: Mmm. PROUD: And they actually ended up killing her... GALLAGHER: Mmm. ... GALLAGHER: Is this when you went away? Is he upset? PROUD: He was sick when he found out on the news that she was killed. It was in the news the next day. It wasn't supposed to kill her, it was just supposed to warn her to back off. ... GALLAGHER: It's crazy... PROUD: And it wasn't supposed to kill her, it was only supposed to warn her to back off. See, all BJ was supposed to do, like I said to BJ all you do is, is you go in there, you mess her up a bit, I said damage her face, because she thought she's this crash hot so, like she could fuck anyone she wanted... GALLAGHER: Yeah. PROUD: ... and that... said, 'just damage her face and whatnot. GALLAGHER: Yeah. PROUD: Just bash her a bit and that, put her in hospital to the point her face can't be fixed and no one will want her after that, because coppers never believed Wendy, that Katie was doing all this shit. I've met Katie before. ... PROUD: ...It wasn't meant to be murder...it wasn't meant to be a murder, it was only supposed to scare her. It just went straight up in flames as soon as he walked down." 192In my opinion, these matters do not tell against Ms Proud's expressions of remorse, which may be taken to mean deep and painful regret for wrongdoing. Ms Proud was neither a wrongdoer in her own eyes at the time she spoke to Ms Gallagher, nor did she anticipate she would be found to be one. Moreover, her flawed but understandable reasoning at that time was that the death of the deceased was actually a mistake. As morally and legally offensive as that logic may be, it contextualises Ms Proud's reaction to the death of the deceased at the time. It does not derogate from the sincerity of later expressions of remorse when she had cause to have sincere regret for what she had done.

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Objective seriousness 194The legal and factual foundations for Ms Proud's liability for the murder of the deceased are different to those of both Ms Evans and Mr Rawlinson. Ms Proud was not present at the scene of the crime. She was not involved in assisting the commission of the murder by direct or active participation in events that caused the death of the deceased. She was uninvolved in planning the murder or in carrying it out. Ms Proud barely knew the deceased and clearly had no basis upon which to feel any animus towards her beyond the lies she was told and the misinformation with which she was cynically provided. Ms Proud became liable for the murder of the deceased because of the violent domestic and impoverished financial situation in which she found herself as the result of her unfortunate association with Mr Spicer. 195I am satisfied beyond reasonable doubt that Ms Proud was a party to a joint criminal enterprise to cause serious harm to the deceased. However, with one relevant exception, her role in that enterprise was entirely passive. The exception is, simply as a matter of happenstance and disastrously for her, that she introduced Ms Evans to Mr Spicer. No other act committed or performed by Ms Proud in any way advanced or facilitated the commission of the crime. Her enthusiastic demands for payment of the money owed to Mr Spicer by Ms Evans and Mr Rawlinson after the event were not acts performed in the course of committing the crime, even if they inculpated her as a participant in the enterprise. 196To that extent the particular crime of murder for which Ms Proud stands to be sentenced is in my opinion clearly below the mid range of objective seriousness for offences of this description. One might well have expected the jury to return a different verdict in her case, or not to be surprised if it had done so. In contrast to the crimes of murder for which Ms Evans and Mr Rawlinson have been found guilty, which I have indicated are objectively very serious examples of murder, Ms Proud's crime is not. I hasten to add that such a conclusion ought not to be mistaken for the expression of an opinion about the seriousness of the crime of murder generally, for which the community and the legislature have unambiguously and consistently reinforced their unanimous disapprobation. It is rather no more than my recognition of the need expressly or impliedly, but in either case clearly, to indicate where in the comparative range of offences of this nature Ms Proud's crime should be placed.