R v Evans, John - [2017] NSWSC 1440

Supreme Court

New South Wales

Medium Neutral Citation: R v Evans, John [2017] NSWSC 1440
Hearing dates: 16 October 2017
Decision date: 23 October 2017
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Imprisonment for 24 years with a non-parole period of 18 years

Catchwords:
CRIME – sentence – constructive murder – home targeted thought to be of drug dealer – two offenders – joint criminal enterprise – objective of threatening any occupants and using violence if necessary to steal – offender tied up victim with tape – forceful and sustained assault causing death – cannot say who inflicted the fatal violence – mid-range objective seriousness – two other offences on Form 1
CRIME – sentence – offender’s personal circumstances – sexual and physical abuse in youth – early homelessness – long history of substance abuse – low intellectual abilities – diagnosis of complex trauma – reduced moral culpability – extensive criminal record – high risk of re-offending – personal deterrence and protection of community – assistance to authorities – guilty plea – remorse not completely genuine
Category: Sentence
Parties: Regina
John Lloyd Evans
Representation:
Counsel:
Mr L Shaw (Crown)
Ms A Betts (Offender)
Solicitors:
Solicitor for Public Prosecutions
McGowan Lawyers

File Number(s): 2015/369728; 2015/369735

Judgment

HIS HONOUR: Mr John Lloyd Evans (“the offender”) is to be sentenced for the murder of Mr Leslie Wallace at Terrigal between 14 and 16 December 2015.
The crime of murder is punishable by imprisonment for life and, in the circumstances of this case, a standard non-parole period of 20 years applies.
In sentencing the offender for the offence of murder he has asked that his guilt in respect of two further offences be taken into account. They are offences of break and enter and commit a serious indictable offence, namely larceny, in circumstances of aggravation, namely deprivation of liberty, at Woy Woy on 27 October 2015 and of break and enter and commit a serious indictable offence, namely, larceny, in circumstances of aggravation, namely recklessly inflicting actual bodily harm, at The Entrance on 15 December 2015. These are offences which have a prescribed maximum penalty of imprisonment for 20 years and a standard non-parole period of 5 years applies.

Facts

Home invasion at Woy Woy on 27 October 2015 (to be taken into account)

At around 5.00pm on Tuesday 27 October 2015 Mr Ben Cornish was at his home in Woy Woy. Four friends arrived during the course of the afternoon. As the last friend was entering the house the offender pushed past him into the house. The offender indicated to those present that he intended to take their property.
A second man then entered wearing a balaclava. He was holding a metal pole in one hand and a knife sharpener in the other. The offender said, “Righto, everybody on the floor”. He took Mr Cornish’s keys and locked the door. He then checked each of the victims’ phones to ensure they were not recording and he checked their pockets. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Evans, John

Details

AGLC: R v Evans, John [2017] NSWSC 1440
Case: [2017] NSWSC 1440
Decision Date: 23 October 2017

CaseChat Overview and Summary

The case of R v Evans, John, involved the defendant being charged with constructive murder arising from an incident where his home was targeted under the belief that it belonged to a drug dealer. The intended objective of the two offenders, who were part of a joint criminal enterprise, was to threaten any occupants and use violence if necessary to steal from the premises. During the course of the crime, one offender tied up the victim with tape and a forceful and sustained assault ensued, resulting in the victim's death. However, it could not be determined who inflicted the fatal violence. The defendant was also charged with two other offences as listed on Form 1.

The court was tasked with determining the appropriate sentence for the defendant, taking into consideration the objective seriousness of the crime, which was deemed to be of mid-range severity. Additionally, the court examined the defendant’s personal circumstances, which included a history of sexual and physical abuse during his youth, early homelessness, a long history of substance abuse, low intellectual abilities, and a diagnosis of complex trauma. These factors led to a reduced moral culpability on the defendant's part. The court also considered the defendant’s extensive criminal record and his high risk of re-offending, while also weighing the need for personal deterrence and the protection of the community. The defendant had shown assistance to the authorities and entered a guilty plea, although the court noted that the defendant's expression of remorse was not entirely genuine.

In determining the sentence, the court considered all these factors and ultimately decided on an appropriate penalty. The court’s reasoning and the final orders were based on a comprehensive analysis of the crime's seriousness, the defendant's personal background, and the need to balance personal deterrence with the protection of the community. The final orders reflected the court's considered judgment on these matters, taking into account both the nature of the crime and the defendant's personal circumstances.

Orders