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

1. 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.

2. 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.

3. 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)

4. 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.

5. 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 other offender then used electrical tape to tie each of the victims’ hands together in front of them. He took $50 from the wallet of one of them while doing so.

6. The offender and his companion then searched through various rooms of the house. The offender caused Mr Cornish to open a safe in his bedroom and took $700 in cash and a carton of cigarettes. Eventually Mr Cornish told the males that they had taken everything of value and they should leave.

7. At some point the offender asked which key would open a locked cabinet and when Mr Cornish told him he took a number of other items from inside it. The other offender took a number of toiletries and bottles of vitamins.

8. The offender then unlocked the door and, as the two men left, the offender said, “It’s been a pleasure gentleman”. A few moments later he put his head back inside the door and said, “Don’t anybody move until we’re gone”. After the intruders left, the victims contacted the police and made statements.

Murder of Mr Leslie Wallace at Terrigal between 14 and 16 December 2015

9. Mr Wallace lived at Terrigal in a house that had been converted into three separate occupancies. The downstairs area of the house was nominated Unit 1 and a granny flat was nominated Unit 2. Mr Wallace moved in to Unit 2 in mid-2015. He was 65 years old at the time.

10. Mr Steven Watson was the tenant of Unit 1 until he moved out in mid-November 2015. He was a small-scale cannabis dealer.

11. On 11 December 2015 Mr Wallace signed a lease for occupancy of Unit 1. He started moving his belongings into that unit over the weekend of 12-13 December. On the evening of Monday 14 December Mr Wallace’s partner, Ms Lynette Hobbs, her daughter, and her daughter’s boyfriend visited Mr Wallace in Unit 2. He showed them around Unit 1 which he was still in the process of moving into. The visitors left at around 11pm.

12. Sometime between 11pm on 14 December and 2am on 15 December 2015, Ms Tamara Fenton drove the offender to the home of Mr Wallace. They were under the mistaken belief that a drug dealer still lived there. It is part of the agreed facts that they went there with the objective of entering Unit 1, threatening any occupants that may have been there, stealing property, cash and/or drugs, and using violence against any occupants if necessary.

13. The offender and Ms Fenton entered Unit 1. Mr Wallace came upon them. They restrained Mr Wallace with electrical tape. The agreed facts state that “[t]he Deceased was subject to a forceful and sustained assault to the body and the head”. His property, including a laptop computer, a USB drive and a digital projector was stolen. The offender and Ms Fenton left in her car.

Home invasion at The Entrance on 15 December 2015 (to be taken into account)

14. At around 7am on Tuesday 15 December 2015, Mr Frank Barrie was alone in his home at The Entrance. He heard a knock on the front door followed by a tap on his bedroom window. He opened the bedroom window and saw Ms Fenton who said, “I’m Krystal” and asked to borrow $20. Mr Barrie refused and Ms Fenton walked away. He opened his front door to see if he could see her but he could not. He went back inside, closing the screen door but leaving the wooden door open.

15. After he took a few steps back into the house, Mr Barrie heard the screen door open. He turned and saw the offender holding a knife. He tried to run to his bedroom where he had a baseball bat and a cricket bat for self-defence. The offender said, “Get on the floor, get on the floor”. Mr Barrie knelt down. The offender started striking Mr Barrie repeatedly to the head, causing him to feel dazed as though he was losing consciousness. He could feel blood running down his face.

16. After some time the offender left without taking anything. Mr Barrie suffered a number of injuries as a result of the attack, mainly to the head and face, the most significant of which was a 10-12cm laceration to his scalp.

Discovery of Mr Wallace's body and subsequent investigation

17. A real estate agent went to Mr Wallace's home on Wednesday 16 December and found him slumped down in the kitchen of Unit 1. He appeared to be deceased. Emergency services were notified and ambulance and police officers attended.

18. Mr Wallace was sitting on the kitchen floor with his shoulder against the wall and his legs out in front of him. It was confirmed that he had died. There were red marks on his wrists and ankles. Hair appeared to be missing from his left wrist. Three intertwined bundles of silver duct tape and yellow electrical tape were found in the kitchen. A kitchen knife was found resting on an open drawer and another kitchen knife was on top of the stove. A cardboard tape roll and large wooden brush were on the kitchen floor. In the agreed facts it is suggested from this evidence that Mr Wallace was conscious after the offender and Ms Fenton had left the unit and had used kitchen knives to cut himself free of the restraints.

19. The offender was soon identified as a potential suspect. He and his wife, Krystal, were spoken to by police who told them that they were investigating the murder of Mr Wallace. The offender replied, “I was with Krystal all day”. He proceeded to give an exculpatory account of his movements in recent days. He denied any knowledge of the location where the murder had occurred or of the person who had formerly lived in Unit 1. The offender was arrested in respect of the aggravated break and enter that had occurred at Woy Woy (the above offence on the Form 1). Later at the police station he was also arrested in respect of the murder of Mr Wallace. He participated in a recorded interview with police, during which he denied any involvement in the murder of Mr Wallace.

20. The police searched the offender’s wife’s car, where they found a backpack containing, amongst other things, disposable gloves, a roll of grey tape, a screwdriver and a box of plastic bags. They also found the stolen laptop in its carry bag, the USB drive and the digital projector.

21. An autopsy was conducted upon the body of the deceased on 18 December 2015. The direct cause of death was found to be the effects of cranio-facial trauma. Injuries to the face, head, torso and arms were indicative of having been caused by a “severe assault”. Some of the head and facial injuries were distinctive or “patterned” and may have been caused by the wooden brush found on the kitchen floor. There were indications of “defence injuries” to both forearms which were considered to have been caused by blunt force trauma, such as from parrying blows from a blunt object. Two incised wounds of the right palm were also consistent with “defence” type injuries following an attack with a sharp weapon such as a knife. This was thought to indicate that Mr Wallace had incurred these injuries in an attempt to possibly parry blows or grab the blade of a sharp weapon. The head injuries included a substantial subdural haemorrhage and very extensive scalp bruising to the left side of the head, as well as bruising to the left side of the face. Such subdural haemorrhages are usually the result of significant head trauma. It was said that death would not have been instantaneous.

22. Based on the number and severity of the injuries detected, the assault appeared to have been very violent and sustained, possibly over at least several minutes.

23. On 24 December 2015, Ms Krystal Evans contacted police and provided further information. She said that on the weekend of 12 and 13 December 2015 she and the offender met up with Mr Joel Wrench. On 14 December the offender told her that he was going to meet up with Mr Wrench’s girlfriend, Ms Fenton. She dropped the offender at the Bateau Bay shopping centre car park where he got into Fenton’s car which Fenton was driving. She next heard from the offender at around 8am the following morning, when he called her to pick him up from the same car park. When the offender got into the car, he was carrying a black bag which he put in the back (this was the backpack which police found containing the gloves, tape, screw driver and plastic bags).

24. Krystal Evans told police that on 22 December she visited the offender in custody. He had said to her, “I went there to collect money from the person that used to live there but he wasn’t there anymore. We went to leave and he tried to stop us so I tied him up. Tamara kicked him in the face and robbed him … I’m sorry all I wanted to do was get us out of here again I didn’t think that she was going to do that.”

25. Ms Evans also told police that the offender wanted to speak to them. Police carried out a further interview with the offender on 30 December 2015.

Interview of 30 December 2015

26. The following is the account the offender gave in the interview in relation to the murder.

27. The offender said that he had seen Fenton, who he only knew as “Joel Wrench’s missus”, on the night of the murder. He went to Mr Watson's house that night. (He only knew Mr Watson by the nickname "Santa Claus".) Nobody was there and the doors were open to both Unit 1 and Unit 2. He walked into the unit that had a light on and “a bloke” came in behind him and wouldn’t let him back out. There was a bit of a scuffle and he kicked Mr Wallace “in the guts twice”, brought him down to the ground, and then tied him up. He then fled but Fenton attacked Mr Wallace. She then ran out from the property towards the offender and she had some items with her.

28. When asked for further detail, the offender told police that he had walked inside the unit and the deceased had walked in and shut the door behind him. He kicked Mr Wallace in the stomach twice and Fenton threw him some tape which he used to tie Mr Wallace up, “only for the purpose to get away”. He said that Fenton took Mr Wallace’s bank book, bankcard and wallet.

29. The offender said that he taped Mr Wallace’s arms and legs. He thought he also taped his mouth because Mr Wallace spat at him. This was in the kitchen area. He then went out to the car while Fenton remained in the house.

30. The offender said that he kept the laptop and digital projector in his car intending to sell them because he did not know the deceased had died. He said that when he tied Mr Wallace up, he had no injuries except for maybe a bleeding lip. He said that he “just wanted the person that was in that house so I could get his drugs”.

31. He said when they got back to the car, Fenton said, “I had to attack him”. He described Ms Fenton as having “blood all over her”.

32. In relation to the home invasion at Woy Woy on 27 October 2015, the offender admitted his involvement but said there had been no forced entry; he knocked on the door and Mr Cornish said to let him in because he knew him. The co-offender followed, wearing a mask. There were four or five men inside smoking ice. The offender told the occupants to get on the ground and they initially laughed at him. He said, “get on the ground’ and they complied. He said that he took the cash and other property and nobody got hurt. He was asked if he taped them up and he said he thought he used cable ties. On that occasion he and his co-offender took pot and money. He denied that any of the victims were hurt.

33. The offender was also asked about the home invasion at The Entrance on 15 December 2015. He explained that he and the victim, Mr Barrie, had a falling out and Mr Barrie owed him $300. He said that he attended Mr Barrie’s home at around 3am with Ms Fenton and got her to knock on the window and ask if he had any pot. They left after Mr Barrie said, "No". They returned later when it was daylight and he waited beside the door while Fenton knocked. When Mr Barrie came out through the security door the offender said, “Frankie, where’s my money or my pot?”

34. The offender claimed that Mr Barrie ran inside and grabbed a knife and the offender picked up a cricket bat which happened to be there and “smashed the knife out of his hand”. He hit Mr Barrie four or five times before dropping the bat and running out of the house.

Telephone calls from gaol

35. On 12 and 27 January 2016 the offender was recorded in phone calls made while he was in custody to persons known only as “Gloria” and “Pete”. He told Gloria, “The chick I was with booted him in the face and has killed the bloke after I’ve tied him up and um yeah now I’m in here”. He told Pete, “No I just tied the bloke up, she booted him in the face”.

Victim impact statements

36. Victim impact statements made by Ms Lynette Hobbs (Mr Wallace's fiancé), Mr Ben Wallace and Ms Judy McPhan (his siblings) were read at the sentencing hearing. They were each succinct yet eloquent expressions of their love for Mr Wallace and the deep sense of grief they have suffered from the loss of such a vibrant, creative and generous man. I reiterate that while much of what I need to consider and discuss is concerned with the offender I have kept clearly in mind the impact that this terrible crime has had upon those left to carry the burden of heartache and despair. Again, they have my most sincere sympathy.

Personal circumstances and background of the offender

37. A number of documents detailing aspects of the offender's background and personal circumstances were tendered at the sentence hearing. The offender gave evidence as well.

Report of Ms Lisa Zipparo, clinical neuropsychologist

38. The following is an account of his life the offender gave to Ms Lisa Zipparo, clinical neuropsychologist. He was born in Newcastle and grew up in that area with his mother and sister. He described his upbringing until the age of 9 as being “relatively normal”. At that time his mother moved in with a new boyfriend who was described as a steroid abuser and bodybuilder. The offender described this man as violent and sadistic towards him. He said that his mother was aware of the beatings he received at the hands of this man and she sanctioned them. As a result, he expressed a deep sense of betrayal by her because he could not understand why she allowed these beatings to occur. Also, at the age of 9 his stepfather’s brother began to sexually abuse him. At the age of 10 his neighbour also began to sexually abuse him. At the age of 12 he became weary of the physical and sexual abuse and ran away from home and began living on the streets. He said that his mother never attempted to find him or help him in any way. He had no further contact with her or his sister after he left home.

39. The offender described his life from that point as one of “survival” on the streets. He slept in “Salvo bins”, ate out of rubbish bins and learned to steal to survive. At one point during his homelessness he lived in an Aboriginal mission in Newcastle, but said that this was not a safe environment. He was provided with shelter and small amounts of food but he described having to sleep with four other people in a single bed. He said he was subjected to sexual and physical abuse because he was regarded as a “fair skinned Aboriginal”. He received regular bashings and on one occasion was raped by a group of five men in the toilets at the mission. Alcoholism and drug abuse were rife.

40. The offender returned to living on the streets. He committed petty crimes and allowed himself to get caught by police just so he could have a meal and a dry place to sleep for a few nights. He described his time spent in juvenile detention facilities as a form of respite from the dangers of living on the streets.

41. The offender said that the only positive event that he could recall since those early years was meeting his wife Krystal ten years ago. They have been married now for five years. He described a deep sense of responsibility for her wellbeing and was “gutted” that he was unable to look after her properly. He said that his only focus and motivation was getting some positive life skills so that he could return to live with his wife and have a normal healthy existence with her. She is his only family; he has no contact with family members and no real friendships. He told Ms Zipparo that he was largely “isolated” and “alone” except for his wife.

42. The offender told Ms Zipparo that he had “a lot of trouble with school work” and did not learn to read and write until he was an adult when his wife taught him. He told her that he left school in Year 7 shortly after he started living on the streets and never returned to any formal education. However, he agreed in cross-examination by the Crown Prosecutor that he had engaged in Year 10 studies at TAFE but he left before attaining a School Certificate. He also agreed that he had attained a number of vocational training certificates whilst incarcerated, such as a Certificate III in Building Construction, Senior First Aid, and a Green Card enabling him to work on building sites.

43. The offender also said that he had never really had a “proper job”. He had some short-term work experiences but it seems there was nothing of any long-term nature. He told Ms Zipparo that he would “try very hard to do the right thing” but he felt circumstances always transpired against him and would find himself reverting to “old habits” such as robberies “to make ends meet”. He told Ms Zipparo that he sometimes did not “even realise it was wrong” as this is how he had survived since the age of 9.

38. Substance abuse has been a major issue in the offender’s life. He started smoking marijuana at the age of 9 and started using heroin at the age of 15. He started using ice from the age of 21 and the report states that he continued to do so until his arrest for the present matter. (I note in the police interview of 30 December 2015 the offender said that at the time of the offences he was using marijuana, not ice.)

39. Ms Zipparo administered a number of neuropsychological tests and she summarised the results as follows:

“Cognitive testing showed Mr Evans is functioning at a low level across most cognitive domains. Mr Evans has general intellectual abilities in the Extremely Low range, commensurate with a Mild intellectual disability. There is some evidence that he may have been functioning at this level from childhood given the self-reported difficulties in learning to read and write. However, the compounding effects of long-term poly-drug use and of a significant mood disorder upon cognitive functioning also need to be considered.”

46. Ms Zipparo’s clinical opinion is:

“Mr Evans’ background of childhood trauma and abuse, his deep sense of abandonment and betrayal by his primary caregiver, his complex psychiatric history, and his long term drug abuse and dependency are highly suggestive of a presentation of Complex Trauma. This term describes the long term impact on brain development when a young child is exposed to repeated trauma. Early and repeated childhood trauma can result in interference in normal brain development resulting in devastating effects on a child’s emotions, ability to think, learn, and concentrate, impulse control, self-image, and relationships with others. Complex trauma is linked to a wide range of problems in adulthood, including those described by Mr Evans, such as addiction, depression and anxiety, self-harming behaviours and other psychiatric disorders.

Mr Evans displayed some considerable difficulties with executive function tasks. Executive dysfunction is a neuropsychological impairment of particular note in trauma victims, and is consistent with abnormalities in the prefrontal cortex which have been observed in sufferers of Post-Traumatic Stress Disorder [citation of literature omitted]. Executive dysfunction is a problem of particular concern with regard to offending behaviour given that it can significantly impair impulse control, control of aggression and the ability to make good decisions. It is therefore highly likely that Mr Evans’ trauma background and the devastating impact this has likely had on his psychological wellbeing and cognitive abilities has contributed to his offending behaviour.”

47. Ms Zipparo’s report concludes with recommendations as to various means by which the offender can undertake a successful rehabilitation. They comprised that he undertake trauma counselling with an experienced trauma counsellor who understands the difficult and pervasive nature of complex trauma; a long-term residential drug rehabilitation program which incorporates trauma counselling as part of the treatment plan; training and learning vocational skills with sensitivity to the offender’s significant cognitive limitations; and a review of his current medication regime.

Letter from Ms Renee Napier, clinical and forensic psychologist

48. A letter by Ms Renee Napier, clinical and forensic psychologist, confirmed that the offender had attended 10 sessions with her from April to September 2015. He had been referred by his general practitioner for treatment of the previous diagnosis of Post-Traumatic Stress Disorder, depression and anxiety. He was also specifically referred for treatment of the effects of childhood sexual abuse. My impression from the letter is that Ms Napier was only able to begin examining the offender’s psychological issues. For example, she noted that they did not examine childhood sexual abuse in detail. Ms Napier was also of the view that the offender’s “presentation clearly indicated complex trauma”. She wrote that he “was in clear need of long term assistance”.

Letter by the offender

49. A letter by the offender provided further illustrations of his troubled life experiences. Much of this has been described earlier but the letter added that at the age of 15, when he was living on the streets, he met and was taken in by an older man called Ian who was "an ex con". Ian gave him his first shot of heroin. Thereafter Ian gave him heroin daily and "made" him commit armed robberies during the year they were together.

50. The offender said that he then moved in with a friend and was stable for a couple of months. However, he claimed that he and the friend were living in a tent and he was raped by his friend's mother in the tent. He also blamed the friend's mother for introducing him to ice. He said that he was given the drug daily and became dependent upon it. He said that his life had “been one of taking drugs and doing crime to feed [his] habit”. He tried to give up drugs at times but found it too hard.

51. The offender also described in the letter how in October-December 2015 he and his wife were planning on moving away from the Central Coast and finding a new home in Queensland. He said he was withdrawing from drugs and was "in a lot of pain and not thinking straight".

52. The offender conceded that he had continued using drugs from time to time since returning to gaol. He knows he needs intensive counselling and engagement in programs. He said he had been seeing a psychologist and a psychiatrist and had been prescribed medication, including anti-psychotic drugs. He described his former life as a "mess"; he had hurt so many people. He said "my life is shit". However, he claimed to have made progress as a result of the counselling and medication, and he was motivated to continue in that vein. He wrote, "I am determined to continue with the psych's counselling and medication for my psych and drug problems. It is the first time I've seen a psych to get on medication I am feeling so much better and I have hope for the first time in my life and if I work very hard I would be able to come out the other end". Similar sentiments were expressed in the offender's oral evidence.

Character reference

53. A letter from Mr Bill Dimovski, a congregation elder with the Jehovah's Witnesses confirmed the involvement of the offender in Bible Studies at Long Bay for the past three months. He had noticed an improvement in the offender's demeanour and outlook on life during that time. He wrote that the studies "have helped him see the seriousness of his past actions and [he] has indicated his strong desire not to repeat these again."

Pre-Sentence Report

54. The offender's most recent contact with Community Corrections was when he was on parole from November 2014 until May 2015, during which time he made "significant progress" and "appeared to be leading a more pro-social lifestyle". The assessment of the author, Mr Chris Baker, Community Corrections Officer, was stated as follows:

"Mr Evans had an unenviable upbringing, developing few life skills. His use of alcohol and illicit drugs has made matters worse for him, and although acknowledging in the past that he would be assisted by entering a long term rehabilitation program, this did not eventuate. It is unfortunate that following a period of relative stability, at a time when he was getting clinical psychological intervention and planning a move away from the Central Coast to start a new life, he again resumed illicit drug use and committed the aforementioned offences."

55. According to an actuarial risk/needs assessment tool, Mr Baker assessed the offender as presenting "a High risk of re-offending". His identified criminogenic needs are:

• Education/employment

• Alcohol/drug problems

• Emotional/personal

Criminal history

56. The offender's criminal history includes offences committed when he was aged 15 to 17 which were dealt with in the Children's Court. They included offences of damaging property, contravening apprehended domestic violence orders, assaults, multiple robberies including an aggravated robbery, and break and enters. Regular offending has continued throughout the offender's adult years, the more significant of which are set out in the following table:

Age at offence	Date finalised	Offence	Sentence
18	14.3.01	Assault	50 hours Community Service Order
19	2.9.02	Resist officer in execution of duty Break, enter and steal Possess housebreaking implements Enter prescribed premises without lawful excuse	Good behaviour bond; Fine; and two suspended sentences of imprisonment (6 months and 4 months)
19	13.3.03	Larceny	Suspended sentence of imprisonment (6 months)
22	16.6.05	Demand property with menaces with intent to steal Do act with intent to influence witness Aggravated assault (in company) with intent to take/drive motor vehicle	3 years 6 months’ imprisonment with non-parole period of 2 years 6 months
25	7.10.09	Recklessly cause grievous bodily harm	4 years’ imprisonment with non-parole period 3 years
31	16.9.14	Assault Enter inclosed land without lawful excuse	4 months’ imprisonment and a fine
31	27.10.14	Steal in dwelling house Stalk/intimidate with intent to cause physical etc harm	9 months’ imprisonment with non-parole period of 3 months

57. The offender has been in gaol for more than eight years in broken periods since the beginning of 2005. His custodial history lists a considerable number of correctional centre punishments, many of them related to drugs (e.g. possess drug implements; failing a drug test).

Objective seriousness assessment

58. It is necessary for me to make an assessment of the objective seriousness of the offence.

59. It is important to recognise that in making this assessment before I can take into account a matter that is adverse to the offender the matter has to be proved to the standard of beyond reasonable doubt.

60. Since the sentencing hearing last Monday I have heard evidence in the first two days of the trial of Ms Fenton. I have heard some things about the offender and about Ms Fenton that would bear upon the credibility of the versions they have given in their police interviews. However, I am unable to take into account evidence in the trial of Ms Fenton because it is not evidence in the sentencing proceedings for the offender. For that reason I am required to put that evidence completely out of my mind.

61. Confining myself to the evidence in the sentence proceedings, there is reason to suspect that it was the offender who inflicted the fatal violence upon Mr Wallace. However, the only evidence that directly suggests this is the transcript of what Ms Fenton told the police. I have not heard her give evidence of that version and the offender's counsel has not had the opportunity to cross-examine and test her credibility. In other words, I have no basis to say that I believe her version in preference to that given by the offender in his police interview. In these circumstances, it is not possible for me to accept Ms Fenton's version beyond reasonable doubt.

62. Based upon the evidence that is able to be taken into account, the Crown submitted that the murder of Mr Wallace is an offence that "falls at least in the mid-range" while counsel for the offender submitted that it "falls below the mid-range".

63. The offence involved not one, but two, offenders carrying out a premeditated invasion of Mr Wallace's home in the middle of the night; a place where he was entitled to safety and security. The injuries he sustained are indicative of there having been a particularly savage and brutal assault, possibly with the impromptu use of one or more items found in the vicinity as weapons. He was left bound and gagged but died some short period of time after managing to free himself from his restraints.

64. The crime amounts to murder on the basis that the killing occurred in the course of the offender being a party to a joint criminal enterprise to detain Mr Wallace with the intention of stealing property with the offenders being in company and actual bodily harm being inflicted.

65. The offender admits to having initiated the violence and to having bound Mr Wallace's mouth, wrists and ankles, but he blames Ms Fenton for the violence that caused death. It was accepted that I would be unable to determine the truth or otherwise of that claim. It was realistically conceded by his counsel that on the limited evidence before me I should approach the matter on the basis that the offender's liability is indistinguishable from that of Ms Fenton.

66. I am satisfied that the offence falls in the mid-range of objective seriousness in the very wide range of circumstances in which the crime of murder may be committed.

Assistance to authorities

67. The offender has undertaken to give evidence for the prosecution in the trial of Ms Fenton. He signed a statement on 10 August 2017 in which he asserted that what he said in his interview with police on 30 December 2015 is true and is the evidence he would be prepared to give in court. He confirmed this in his oral evidence.

68. There are a number of matters that I must consider in determining the degree to which the offender's assistance to authorities might be taken into account in his favour on sentence.

69. It was contended by the Crown, seemingly based upon a statement by a Detective Senior Constable Fuchs which is part of Exhibit A, that the significance and usefulness of the assistance is limited. This was said to be so because the co-accused Ms Fenton had participated in an interview with police on 24 February 2016 in which she admitted to being part of a joint criminal enterprise to carry out the home invasions at the two premises.

70. A transcript of that interview is before me as part of Exhibit A. On my reading of it, the overall effect is that Ms Fenton categorically denied any involvement in a joint criminal enterprise to carry out home invasions. She gave an account which was to the effect that she had agreed to provide transport for the offender who directed her to the homes of the two victims. But the offending that occurred at those two locations was not something that she foresaw, let alone something that she was a party to.

71. As to the truthfulness, completeness and reliability of the offender's version I am unable to make a determination. The offender’s history of violence in the past gives reason to suspect that he was involved in more of the violent conduct toward Mr Wallace than he has admitted. However, on the assumption his version is accepted by the jury, his evidence could be important in proving that Ms Fenton was a party to the joint criminal enterprise to carry out home invasions alleged by the Crown.

72. The timeliness of the offender's assistance is not particularly significant aside from the fact that it was made sufficiently in advance of the impending trial of Ms Fenton.

73. There is no suggestion of the offender having received any benefits as a result of offering his assistance, that he will suffer harsher custodial conditions or that he or his family are at risk of injury as a consequence.

74. I am required to ensure that any reduction of the offender's sentence on account of his assistance to authorities does not render the sentence disproportionate to the nature and circumstances of the offence. I am also required to indicate the extent of any reduction for past or future assistance. Given what he has done to date is of no value unless and until he fulfils his undertaking to give evidence, I propose to apportion all of the reduction to future assistance.

75. The reduction of the offender's sentence on account of his offer to give evidence for the prosecution in the trial of his alleged co-offender will be 15 per cent (as opposed to the 10 per cent suggested by counsel for the offender).

Other matters bearing upon the assessment of sentence

Form 1 offences

76. The need to take into account the additional offences listed on the Form 1 document is an important matter in the assessment of sentence because they are each quite serious offences in their own right. They call for a significant increase in the penalty to be imposed (although I am mindful of the principle of totality).

Intellectual capacity, mental condition and background of abuse

77. The offender's background of significant physical, sexual and psychological abuse in his childhood and teenage years provides in very large measure an explanation for his involvement in substance abuse and criminal offending from an early age, as well as for the fact that they have been enduring features of his life. His moral culpability for his offending is less than it otherwise would be on this account. It is also reduced on account of his low intellectual abilities and the condition of Complex Trauma. For these reasons there should be less emphasis given to general deterrence, retribution and denunciation in sentencing. A feature which is countervailing to some extent, is that his history of regular offending over the years, which includes violent offending, means that there must be particular emphasis upon personal deterrence and protection of the community in the assessment of sentence.

Mitigation for plea of guilty

78. The offender's plea of guilty came after charge negotiations which resulted in the two other serious offences being taken into account rather than the subject of separate and additional sentences. The plea was entered a little over a year and a half after he was charged, 6 months after having been committed for trial, 4 months after having entered pleas of not guilty on arraignment but 2 months before the date fixed for trial. A reduction of 10 per cent will be allowed for the utilitarian benefit to the criminal justice system flowing from the plea.

Remorse

79. The offender expressed remorse in his letter and in his oral evidence but an assessment of whether this is genuine is problematic. Clearly, he has low intellectual abilities with the consequence that he may not be as articulate as others in expressing his thoughts and feelings. It is appropriate to make an allowance for this.

80. However, I have some misgivings about his credibility. There is the question of the truthfulness and completeness of the account he gave to police in his interview of 30 December 2015 in which he attributed the blame for Mr Wallace's death almost entirely upon Ms Fenton.

81. A question also arises about the credibility of the evidence the offender gave in the sentence hearing. In cross-examination by the Crown Prosecutor the offender was asked about his account of having kicked Mr Wallace. A proposition was put that he is a very strong man but he responded by saying, "Not at the time" and volunteered that he was only 70 or 75 kg in weight. That was wrong. He told the police in his police interview of 30 December 2015 that he had no reason to use a weapon in the Woy Woy home invasion because he was "a big boy"; he was "98 kilos"; "pretty muscley". He said that "I can scare people with my muscles, with my, with intimidation with the size of me".

82. In further submissions on this point, counsel for the offender proferred the explanation that when giving his evidence the offender was unaware of his actual weight but relied upon that which was recorded in his police criminal history document which shows his weight range as "75kg – 80kg". I do not accept that explanation. There was no equivocation or doubt in his evidence, let alone a suggestion that he did know but relied upon a police document. Moreover, the prosecutor was only asking the offender about his strength; it was the offender who raised the issue of his weight. Putting aside his weight, his denial that he was "a very strong man" is itself contradicted by what he had told police.

83. There is also an issue about whether he minimised his educational and employment history in what he told Ms Zipparo.

84. It might be that the offender is remorseful and I will allow him some credit for that. It must be said, however, that with reason to be sceptical about his credibility, I am not entirely convinced that it is completely genuine.

Prospects of rehabilitation

85. The offender's prospects of rehabilitation are very difficult to gauge. Counsel for the offender argued that "there is a glimmer of hope" (T20.41). The offender’s statements do indicate motivation to engage in rehabilitation and medication appears to be assisting him. However, whether he is able to carry through with his stated intentions is uncertain in light of his history. I note from the custodial record that he continues with disciplinary infractions in gaol; in the last six months he has four entries related to drugs and alcohol.

Special circumstances

86. It was submitted that I should find special circumstances so as to reduce the proportion of the sentence represented by the non-parole period. There are substantial bases for making this finding (see written submissions for the offender at [59]). However, it is also necessary to ensure that the non-parole period provides an adequate reflection of the seriousness of the offence. In the end I consider that the imposition of a sentence bearing the usual proportions will provide an adequate period for potential parole supervision to further facilitate the offender's rehabilitation.

Credit for pre-sentence custody

87. The offender is entitled to have taken into account the time he has been in custody since his arrest. The sentence will be backdated to 16 December 2015 for that reason.

Sentence

88. Convicted.

The offender is sentenced to a term of imprisonment comprising a non-parole period of 18 years and balance of the term of the sentence of 6 years. The sentence is to date from 16 December 2015 so the offender will become eligible for release on parole after the expiry of the non-parole period on 15 December 2033.

That is a total sentence of 24 years. Without the offender's plea of guilty and assistance to authorities it would have been a sentence of 32 years. The amount of reduction for the assistance alone is just under 5 years.

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Decision last updated: 09 November 2017